Government and Parliament

Lord Lang of Monkton Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, like others, I begin by complimenting the noble Baroness, Lady Smith of Basildon, not only on the timely arrangement of this debate, but on much that she said, with which I find myself in agreement. I believe that her specific suggestions, and those of the noble Baroness, Lady Hollis, which we have just heard, are worthy of further consideration. I hope that this debate will generate a large number of such suggestions that will be considered very carefully.

I propose a slightly more general approach in my remarks. They are triggered as a result of the unsettling mood that exists on constitutional matters at present following the words of the gracious Speech referring to the sovereignty of Parliament and the primacy of the House of Commons. Why did it say that? What does it mean by it? Others have wrestled with this and reached different conclusions. They are both familiar concepts, but each is utterly different from the other, so the juxtaposition is strange: they are not two sides of the same coin; they do not complement each other, nor does one qualify the other. The sovereignty of Parliament is a familiar and profoundly important core principle of our constitution. It is the basis of the rule of law and of the authority of all our lawmaking. But the Parliament to which it refers is not the House of Commons, but the bicameral Parliament of two quite deliberately and desirably different Chambers, each playing its distinctive part and complementing the other. So the concept of Parliament is thus indivisible. It embraces both Houses.

The primacy of the House of Commons is a fact, but it exists de facto rather than de jure. It is built on the existence of the Parliament Acts, the unelected nature of this House and on various established practices and procedures—perhaps not so strongly nowadays on conventions, because they were broken, or certainly badly damaged, last October. That in itself raises problems that have to be addressed. Primacy, however, is not something for the Commons to claim. It is for this House to acknowledge and to volunteer, as we always do. Our restraint, when we adhere to it, is a vital component of what makes the system work. The reason it has broken, or has been crumbling for some time, is partly the loss of restraint in respect of our normal way of behaving on various occasions, but more so—this is the burden of what I want to say, even though it has already been touched on extensively by others—because of the poor quality of the legislation that has been fed into the system in recent times.

The Constitution Committee, which I have the honour to chair—although I stress that my remarks are of a personal nature—has been reviewing the draft of its sessional report for the year 2015-16. It pains me to say that we have found a litany of bad lawmaking habits. The then Scotland Bill was probably the most egregious, for a whole complicated list of reasons from beginning to end that I will not bore the House by developing today, but it is a shaming indictment of how to make laws. I hope it is never repeated in any shape or form with any other legislation. But there is also the growing abuse of delegated legislation, as referred to by others. We reviewed too high a number of vaguely worded Bills that conferred broad and undefined delegated powers on Ministers, with few restrictions, to achieve legislative objectives.

It has been suggested that an effort is now in place in government to improve the preparation and internal consideration of new legislation before publication. I hope that it happens; we have yet to see it. But whatever happened to Green Papers and White Papers, to pre-legislative scrutiny? Instead we have had a diet of skeleton Bills, Christmas tree Bills, very urgent Bills and Henry VIII powers like a sauce added to everything, followed by a flood of slippery secondary legislation, often hoping to slip though policy changes. The trend is not new with this Government. It is true that the numbers are not very much greater than they have been at any time in the last 20 years, but what is different is that they are longer and have more substantive contents, including the trend towards policy development.

I could go on about this but in setting up the Strathclyde review, Her Majesty’s Government blew their own cover when they described its purpose as being,

“to secure their business in Parliament”.

They went on to refer to,

“the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation”.—[Official Report, Commons, 4/11/15; col. 25WS.]

These two quotations are, in the first case, a clear statement not about the constitutional proprietaries, where they may have had a case of some sort, but about the Executive getting their way by whatever means they could deploy; and, in the second, at best a highly polished gloss of the true position and at worst a distortion of it.

My noble friend Lord Strathclyde accused my committee of castigating him. I am bound to say we did not; we actually let him off the hook because our conclusion was that he had been asked the wrong question and therefore his answer was not really relevant to the issues before us. Our committee and two others separately reached that view. If the words I quoted explain what was meant by the cryptic reference in the gracious Speech to the sovereignty of Parliament and the primacy of the House of Commons, I suggest that the Government might be about to take the wrong kind of action.

It may be that there is a case for reforming the relative powers of the two Houses. It seems, for example, slightly bizarre that this House can amend primary legislation but has power only to reject secondary legislation. Let such matters be considered in the proper and unhurried way, but it is essential to preserve the present balance of powers between the two Houses. We may be faced with some proposals to codify in some way the damaged convention system. If that can be done in a way that maintains the delicate balance of powers between the two Houses, let us at least examine it—though I am sceptical that a way will be found that does not undermine the standing of this House.

However, if the Government come forward with changes simply to make it easier to get their business, that is quite another matter. That would provoke a strong and sustained reaction here. At the end of the day, Governments must get their business. Overall, the present balance of powers provides for that, and so does the general will of this House. The issue should not be sovereignty, the balance of power or primacy but the nature and quality of the legislation laid before Parliament by the Executive. That deserves close scrutiny. It is high time the Government did a better job.