Death of a Member: Lord Judge

Lord Lisvane Excerpts

Thursday 9th November 2023 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, the noble and learned Lord, Lord Judge, was a great man and a wise man. He was funny, tough and, as so many have said, extremely kind. He and I were in Oman together, about three or four years ago. At a formal meeting of the State Council, which is the Omani equivalent of this upper House, I was asked a question by one of its Members. It was a long and complicated question, in very rapid and totally incomprehensible English. I had no understanding or clue of what exactly I was being asked, but I floundered on until I was rescued by Igor. He swept down and, with his very graceful words, said, “Perhaps I may add”, which immediately made everything extremely clear. He will be missed immeasurably. Perhaps the best and most lasting tribute we in this House can give him is to challenge wherever and whenever we see Henry VIII powers.

[Lord Lisvane (CB)]

My Lords, Igor Judge was a man of warmth, courtesy, humour and wisdom. He moved seamlessly from being a giant of the law to a doughty defender in this House of the constitution. I got to know him when I was Clerk of the House of Commons and he eagerly embraced the proposal that there should be regular meetings between senior members of the judiciary and senior officials of the Commons, which proved to be invaluable.

When my wife was a high sheriff, Igor came down to deliver a superb and memorable high sheriff’s lecture on the threats to our constitution. Away from that serious subject, it was a weekend when the four of us laughed a very great deal. I was privileged to have him, with Betty Boothroyd, as a supporter for my introduction to this House. Thereafter, he was a friend, guide and mentor, as he was to so many.

During what we hoped would be his convalescence, he and I exchanged books by post—on cricket, naturally. My profound sympathies go to Judith and his beloved family. Igor’s loss will be deeply mourned and long felt.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, on behalf of the other former judges who cannot be here, I would like to add a short word, as I had the privilege of working closely with my noble and learned friend for 25 years. As has been said, he was unfailing in his kindness to everyone, whatever their position. He had a willingness to listen, but always with an acute understanding of the problem being presented to him and in doing all he could to help.

He led the judiciary in the transformation necessary after the reform of the office of Lord Chancellor. He established new working relations with Parliament and the Government on broad issues, but some involved detailed work, such as going over with the Lord Chancellor—jackets off, late into the night—the drafting of the legislation establishing the current Sentencing Council. He was a man of great learning, but it was lightly worn. It was always evident here, but he often used it to add humour to ceremonies, such as when he opened a court in Chester; he had his own volume of the yearbooks, with their Middle Age cases, which was entirely apposite to that city.

In short, he was a great Chief Justice—a servant of justice with a sense of duty that was wholly unsurpassed.

Democracy Denied (DPRRC Report)

Lord Lisvane Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, looking at these two excellent reports, I must confess to a feeling of helplessness. The phenomenon which the two committees analyse so tellingly is a familiar one and was most effectively criticised in the splendidly excoriating contributions of the chairmen of the two committees earlier in the debate. I declare that I am a former member of the Delegated Powers Committee and am about to come to the end of my term on the SLSC.

For many years now, the boundary between primary and secondary legislation has been moving steadily upwards, with matters of policy and principle, as has been said by many noble Lords, being increasingly included in secondary legislation, with commensurately low levels of parliamentary scrutiny. There are attendant risks: just look at what happened with the tax credits SI, which was an entirely self-inflicted wound. At the same time, the powers which Parliament is asked to grant Ministers to exercise, with little scrutiny, grow ever more extensive. We have the baneful Henry VIII powers, on which the noble and learned Lord the Convenor has waged unremitting war for some time but, I hope he will not mind my saying, without inflicting significant casualties. Those are bad enough, but when Ministers are given the power to amend not only any statute passed at any time but even the statute resulting from the very Bill under consideration, one must ask what value is to be placed on the legislative process as a whole.

Distinct from Henry VIII powers are the sweeping powers given to Ministers for barely specified purposes. As the reports point out, this means that, when the enabling legislation is passed, our fellow citizens may have little idea of what the law affecting them may eventually look like. I am extremely grateful to the right reverend Prelate for his reference to that earlier in the debate.

It is common ground that your Lordships’ House leads the way in the exacting process of scrutinising secondary legislation, and I am sure that I am not alone in finding it ironic that this House, so often the subject of naive proposals for reform, is so far ahead of the elected House in seeking to protect the interests of citizens in this way.

This afternoon, our focus is on secondary legislation, but I fear that this is symbolic of a deeper malaise in the legislative process as a whole. A previous Prime Minister used to describe proposals as “oven-ready”, but what we have to deal with is the half-baked. Even allowing for the chaotic uncertainties of the last couple of years, this is not acceptable.

Take the development of policy, for example. What happened—and this was well mentioned earlier—to the idea of Green Papers, followed by White Papers, followed by legislation? The former Leader of the House of Commons rather gave the game away in his letter of 24 January to the chairmen of the two committees, in which he said that

“there will invariably be times when greater flexibility may be needed when legislating, for example as part of an emerging policy response.”

No; legislate when you have agreed the policy, not before. Do not rely on delegated powers to rewrite—or write—the bits of the Bill that could not be settled before introduction. Do not try to solve business management problems by bolting together proposals which should be separate Bills. The Levelling-up and Regeneration Bill is a current and indeed fairly dreadful example of the species. Try and plan for more Bills in draft—they will save you trouble in the long run and, incidentally, they can be a sensible way of settling on appropriate delegated powers.

On secondary legislation, it is frustrating that the Government could, if they wished, change things fundamentally as a matter of good practice. But, at the moment, we seem to be told that this is the way that things are done, rather than the more important question being answered of whether it is the way that things should be done.

I commend the work of the Hansard Society and declare to your Lordships that I am a member of its advisory panel. I hope that, when it reports, the Government will approach its recommendations in a positive and collaborative spirit.

Let us not deceive ourselves: delegated legislation is a real problem area, but it is not the only one. The legislative process as a whole needs a fundamental overhaul, but that would take a lot more than my five minutes—which I have already exceeded.

Restoration and Renewal

Lord Lisvane Excerpts

Wednesday 13th July 2022 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I find it difficult adequately to communicate the sense of frustration that I feel at the way these matters have been handled. In 2011, together with my opposite number Sir David Beamish, I commissioned the original condition survey of the Palace. I felt passionately that we could not be another generation of stewards who passed up on our responsibilities for this wonderful building; it had been only too easy to do, year after year and decade after decade. David and I agreed that this had to stop.

The principal conclusion of that survey was that doing nothing was not an option. Now, more than a decade later, we are still unable to escape from Groundhog Day. Still beneath our feet is that horrifying basement, so vividly and frighteningly described by the noble Lord, Lord Best, and which I very early on christened the “Cathedral of Horror”. Certainly, there is no reason to change its name now.

I supported the original R&R governance structure on two main grounds: that parliamentarians would be unable to resist interfering with the delivery of the project, as happened for decades when the Palace was being built; and that Parliament is not good at taking executive decisions—and why should it be? Now, it seems, everything is to be put back into the melting pot.

I spoke in the debate on 6 February 2018, at the end of which your Lordships concurred with the House of Commons in recognising the

“clear and pressing need to repair the services in the Palace of Westminster in a comprehensive and strategic manner to prevent catastrophic failure in this Parliament”.—[Official Report, 6/2/18; cols. 1916-17.]

The two Houses agreed that the only option was a full decant, and that the right governance model was a sponsor board and delivery authority. Now we are back to square one—or possibly square minus one. I do not feel strong enough at the moment to revisit the arguments about governance, nor those about the likely cost. My concern is with the immediate practicalities, which I hope the noble Baroness the Leader of the House will be able to address in her reply.

First, let us suppose that there is what the 2018 resolution of both Houses called a “catastrophic failure” of services. It might be caused by fire, flood, power outage, asbestos escape, whatever. If there were a major incident, it might well mean that the Chambers and perhaps large areas of the Palace were unusable for a long time. Let us also say that, instead of the vague possibility of such a failure, the very vagueness of which has been such a comfort over recent years, the disaster happens tonight—for the sake of argument, at about 11.30 pm. What happens tomorrow? How does Parliament continue its work? I hope there are good answers to these questions, but I fear I do not know them.

It is worth remembering, too, that there are already a large number of projects under way on this crowded and constrained site, and it is a credit to those who plan and carry out those works that the effect on day-to-day business has been minimised.

The first paragraph of the Motion before us emphasises the need to ensure the safety of all those who work in, and visit, the Palace, now and in the future. It is one thing to express such a commitment but quite another to fulfil it. We may think that we carry some collective responsibility for these matters, but legally they fall to two people only: the Clerks of the two Houses, who under the Parliamentary Corporate Bodies Act 1992 are the corporate officers. Those of your Lordships who have been corporate officers, in whatever contexts, will be only too well aware of the unforgiving nature of the law in respect of corporate responsibility. The Corporate Manslaughter and Corporate Homicide Act 2007 concentrates the mind wonderfully—it certainly concentrated mine. It is for a corporate officer, and for him or her only, to decide whether an organisation can discharge its duty of care and, if not, what remedial action to take.

In a parliamentary context, that could mean deciding that part of the Palace was too hazardous to allow access to. That could not be overruled by the commissions of the two Houses, and it might have a very significant effect on the transaction of parliamentary business. I would simply observe that in terms of hazards—multiple hazards—we are living very close to the edge. We can be lucky only for so long, and if we are not, national and world opinion will not be kind to us.

When I spoke in the February 2018 debate, which was just about a year before the Notre Dame fire, I suggested what I described as,

“a highly plausible scene … on a hot summer’s evening, with both Houses sitting late to finish business before the Recess. One of the too many minor fires, which we are told occur each year, swiftly becomes a major fire and spreads rapidly because of the lack of completed fire compartmentation. The electricity supply goes down completely. A huge demonstration which happens to be taking place in Parliament Square means that the emergency services cannot get to us quickly. There are hundreds of casualties and possibly fatalities.”

I asked:

“How do we feel about continuing to carry that risk…?”—[Official Report, 6/2/18; cols. 1972-73.]

The noble Baroness the Leader of the House emphasised the need to proceed more quickly with safety-critical works, but I would say—adopting Lenin’s words, “everything is connected to everything else”—that it is quite hard to complete safety-critical works within the wider context of building restoration. You cannot do it properly without doing it as a single exercise.

I shall finish on a less pessimistic note. I endorse the aspirations of the amendment in the name of the noble Lord, Lord Blunkett. As chairman of the fabric advisory committee of a cathedral, I am very well aware of the shortages in the many heritage crafts that will be needed for the restoration and renewal of this world-renowned building and the desirability of these being found from all parts of the country. I am glad that it seems accepted that R&R should be supported by a heritage crafts academy, which partly through apprenticeships will support the skills needed and thereafter will stand as a permanent public benefit.

Constitution, Democracy and Rights Commission

Lord Lisvane Excerpts

Wednesday 29th January 2020 Lords Chamber

Asked by

[Lord Lisvane]

To ask Her Majesty’s Government when they expect the Constitution, Democracy and Rights Commission to be established.

[Earl Howe (Con)]

My Lords, the Conservative manifesto committed to reviewing the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. We will set up the commission within this Government’s first year. Further announcements will be made in due course.

[Lord Lisvane (CB)]

My Lords, I know that I speak for the whole House in wishing the noble Earl many happy returns for his birthday. On a similarly positive note, I hope that he will be able to give us assurances about the authority and independence of the commission, to be demonstrated by its membership, and, above all, an assurance that the commission will not have its card marked by the Government.

[Earl Howe]

My Lords, I am grateful to the noble Lord for his kind greetings. I recognise absolutely the concern that lies behind his Question. The one thing we want to achieve from this exercise is a set of recommendations that command public confidence. That means a wide range of engagement by the commission when it is formed and a feeling on the part of the public and, indeed, civil society as a whole, that they are engaged with, and sympathetic to, the outcome.

Palace of Westminster: Restoration and Renewal

Lord Lisvane Excerpts

Tuesday 6th February 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, like the noble Lord, Lord Blencathra, I have a bit of form on the subject before us today. It was I who, with the previous Clerk of the Parliaments, in 2012 commissioned the original condition survey which led to the options appraisal and then to the inquiry by the Joint Committee and its excellent report. We commissioned that condition survey together because I felt passionately that we could not be yet another generation of stewards who abrogated our responsibilities for this extraordinary building. Over the years, the excuses for doing nothing have been lame, but many and various: “too expensive”; “too disruptive”; “too embarrassing”; “too soon after the war”—which gives an idea of how long this perennial problem has gone on and how long the difficult issues have been dodged.

I have never had any doubt that the only solution to this problem was a full decant. Those who in good faith genuinely think that it can all be done while we stay here and try to carry on as normal have either little experience of the sort of works that would be required or little idea of the sheer scale of what would need to be done. A visit to the floor below us—the place that in 2012 I christened the “cathedral of horror”, a name which seems to have stuck—ought to disabuse them as it has enlightened many noble Lords.

The Cox and Box decant—first one House and then the other moving out—may be superficially attractive but the services need to be replaced in their entirety, and as a unity. Once the asbestos is tackled, this option becomes even less practical. The idea of some sort of cordon sanitaire halfway down the Palace, crossing the Central Lobby, is simply not on.

We all know that the cost, even of the third and, I will not say the cheapest but the least expensive option, will be huge. But this is the penalty for more than half a century of dodging the issue. That pusillanimity—there is no other word for it—has backed us into a corner, because further delay becomes ever more hazardous. May I in passing respectfully commend our Lord Speaker for speaking so plainly about the dangers and for making the case for action?

The decision of the House of Commons last week is welcome, but we are a long way from being out of the woods, and the Motion before us today, welcome as it is—I pay tribute to the noble Baroness the Leader of the House—is not completely reassuring. There will of course have to be approval of the business case, and there is no doubt that there has to be a statutory delivery authority, not only to bypass the delays and problems of the planning system, which primary legislation can do, but to take full responsibility for the work, deliver the project and—the noble Lord, Lord Blencathra, hit the nail on the head here—so that it is protected from political meddling while it does it. However, there are real risks of further significant delay.

The initiation of this legislation will be in the hands of the Government, and I can already hear the well-worn phrases about the, crowded legislative timetable and competing pressures. Those pressures will have to be resisted. Paragraph 7 of the Motion instructs the shadow board and delivery authority “and their statutory successors” to come back to Parliament with what will be effectively a fresh proposal, no doubt to be voted upon again. So even when the statutory delivery authority has been set up, it seems that it will require further instruction before it is able to begin work.

Paragraph 5 of the Motion says that during this Parliament there will be works,

“essential to ensure the continuing functioning of the Palace”.

Given the scale of what needs to be done, I find it quite difficult to imagine what these might be, and I am afraid that I harbour suspicions that, once those works, whatever they are, have been carried out, the fools’ paradise so created could be a further excuse for doing nothing after all. At best, it seems, as many noble Lords have said, that work will not start before 2025. Seven years is a long time for nothing bad to happen, and I hope that we can proceed very much faster than that.

Nearly 10 years ago, I was gold commander—a wonderful term—for a very well-planned and comprehensive disaster exercise, set up by a specialist team from the Cabinet Office. We had no advance warning of the exercise scenario but we quickly discovered that it was a fracture of the venerable main sewer. As the levels of water—and other things—rose, the electricity went out and mains water could not be used. In the virtual reality of the exercise we managed to keep the Palace functioning for 36 hours before closing everything down and moving out—I am trying to avoid the word “evacuation” here—with no discernible prospect of moving back. I leave your Lordships to consider what the cost and disruption of that scenario would be in real life, and how little notice we would have.

The risk of a catastrophic failure of services will be with us until the decant happens. It is accompanied by the risk of fire, which used to cause me sleepless hours when I was the legally responsible corporate officer at the north end of the Palace, with the penalties prescribed by the Corporate Manslaughter and Corporate Homicide Act very much in mind. A highly plausible scene might be on a hot summer’s evening, with both Houses sitting late to finish business before the Recess. One of the too many minor fires, which we are told occur each year, swiftly becomes a major fire and spreads rapidly because of the lack of completed fire compartmentation. The electricity supply goes down completely. A huge demonstration which happens to be taking place in Parliament Square means that the emergency services cannot get to us quickly. There are hundreds of casualties and possibly fatalities. How do we feel about continuing to carry that risk for seven years or more?

To end on a rather less apocalyptic note, when the works are finally carried out, I hope that every opportunity will be taken to increase the utility and flexibility of this building, and above all—here I pick up the point so well made by the noble Lord, Lord Kirkwood of Kirkhope—its accessibility, whether real or virtual. We must never forget that the Palace does not belong to parliamentarians; it belongs to the people that Parliament is here to serve. Our challenge is for people to look back in 100 years’ time and say, “They got it right”.

And I hope, as I suggested in my maiden speech in your Lordships’ House and as other noble Lords have also suggested, that we will take the opportunity to establish a Westminster academy as a focus for training and apprenticeships in all the practical heritage skills that will be needed but which at the moment are in very short supply. I speak as chairman of the fabric committee of a cathedral, so I know of what I speak. I hope, too, that such an academy will far outlast the works and that it will be a permanent and really worthwhile legacy.

Clerk of the Parliaments

Lord Lisvane Excerpts

Monday 24th April 2017 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I have known Sir David Beamish for 42 years. For three years I had the pleasure of being his opposite number in the House of Commons. I pay tribute to him for staying in his job a little longer than I stayed in mine. David’s friendship, courtesy, intellectual horsepower and indomitable cheerful optimism, no matter how adverse the circumstances, made that a delightful and constructive relationship.

As Clerk of the Parliaments, David was always a great advocate of comity—the mutual respect and co-operation between the Houses. This showed itself always in seeking a solution that was best for Parliament without ever losing sight of the interests of your Lordships’ House. More effective shared services between the two Houses was one outcome, but I was especially grateful to David for his partnership in commissioning the first comprehensive assessment of the condition of the Palace of Westminster. We both felt that we could not be another generation of stewards of this extraordinary building who were not prepared to deal with its problems. For David, his love not only of Parliament but of its ancient home was a powerful motive.

David has been a fine servant of your Lordships’ House and of Parliament, and I wish him and his family every happiness for the future.

European Union (Notification of Withdrawal) Bill

Lord Lisvane Excerpts

2nd reading (Hansard): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Lisvane (CB)]

My Lords, almost exactly 44 years ago I was in Strasbourg as one of the secretaries of the British delegation to the European Parliament, at the first session of the Parliament that had the United Kingdom as a member state. Bringing up the century as the 100th contributor in this unprecedentedly long list of speakers may have a certain symmetry about it, but it is in no way an outcome that I wished for when I cast my vote on 23 June last year.

Over the years, I have spent a good deal of time on the relationship between this Parliament and European institutions. I devised the protocol on the role of national parliaments which was appended to the Amsterdam treaty, thanks to its enthusiastic endorsement by the highly effective then Minister for Europe during a UK presidency, someone for whom I had and continue to have great regard—and who by one of life’s little ironies is now the Secretary of State for Exiting the EU.

As many noble Lords have said, this is a refreshingly short Bill, but I am a little puzzled by the catch-all provision in subsection (2) of Clause 1. Is it simply an insurance policy—an attempt to avoid an “Oh crikey” moment within Government when some inconvenient provision of legislation is unearthed? Or do the drafters have something particular in mind—something which might be found to be at odds with the main provision of the Bill? It is as well to recall the old rule of legislative drafting: if you do not specify the target at which you are aiming, the courts may not agree that you have hit it. I am also looking forward keenly to the Government’s response to the magisterial intervention of my noble and learned friend Lord Hope of Craighead about what further legislative authority may be required. No doubt there will need to be a ratification of the exit treaty according to the CRAG 2010 procedure, but if prior approval of the terms of that exit requires legislation, that would of course add a new dimension. How practical any choice would be as the clock ticks towards the end of two years is another matter entirely.

The noble Lord, Lord Boswell of Aynho, and others, have spoken about parliamentary scrutiny of the negotiations as they proceed. My particular concern is about the legislative process that will follow, and of which the Bill now before us is a precursor. Chapter 1 of the White Paper says that the great repeal Bill will repeal the ECA 1972, preserve EU law where it stands at the moment we leave the EU, and where necessary make changes to allow that law to function sensibly. There will be a triage process where this Parliament and the devolved legislatures will,

“be able to decide which elements of that law to keep, amend or repeal”.

In the referendum campaign we heard a lot about regaining our parliamentary sovereignty; perhaps it is a little ironic that we have had in the first instance to rely upon the assistance of the courts. However, it would be even more ironic if the legislative process of withdrawal involved a major transfer of power to the Executive.

The extent of delegation of powers to Ministers, and the level of parliamentary scrutiny, will be crucial. One test, and it would be a strict one, could of course be that secondary legislation must be “necessary” to allow EU law to function sensibly, and to reflect the outcome of negotiations. However, if the test is merely that that subordinate legislation should be “expedient” then that allows a much greater degree of ministerial discretion. The means of scrutiny will be key. Although super-affirmative instruments allow in-depth scrutiny, Governments are quite allergic to them, and I doubt whether Ministers would be attracted by a surge of super-affirmatives. Perhaps some bespoke process might be devised—the issues are certainly substantial enough to warrant it—and I look forward to the conclusions of the Constitution Committee on this aspect.

I will conclude with two other thoughts. The first is on timing. There is a temptation to think that policy areas will come forward one by one to be tied up in neat parcels and dealt with by whatever legislative or scrutiny process is in place, but that is not the way that negotiations proceed in practice. A deal in one area may depend on reaching agreement on a wholly unrelated issue elsewhere. The practical effect of all this will probably be to move everything to the right, and only late in the two-year process will there be something to bite on in legislative terms.

It is welcome that the White Paper states in paragraph 1.8 that,

“any significant policy changes will be underpinned by other primary legislation”.

Here again, however, the pressure of time may be the problem. The process will, in any case, be a business management nightmare and the temptation to proceed by skeleton Bills will be powerful. That will pose real questions about parliamentary accountability.

Whatever means are found to scrutinise and authorise the process, I hope that it will involve people outside government, Parliament and the devolved legislatures. The changes in prospect will have profound effects on the lives and livelihoods of the people of this country, and Parliament has some ground to make up. Evidence-based scrutiny is the best sort, and this should be an opportunity to allow access to the process to those who will be directly affected, rather than have them simply as onlookers of a private conversation between Parliament and the Executive.

Noble Lords might feel that I have strayed a little from the Bill before us, but I would suggest not. The Bill would trigger notification, but it would also start us on what will be an extraordinary challenging time for Parliament. Now is the time to think seriously about how we meet that challenge.

House of Lords: Size

Lord Lisvane Excerpts

Monday 5th December 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, it is a pleasure to be able to reassure the noble Lord, Lord Foulkes of Cumnock, that this is not my annual appearance on these Benches. It is also a pleasure to join in the deserved chorus of congratulation to the noble Lords, Lord Cormack and Lord Norton of Louth, for their hard work, persistence and determination in bringing this issue before your Lordships’ House. It has been a pleasure to work with them on the Campaign for an Effective Second Chamber—if the noble Lord, Lord Foulkes, does not regard that as too sinister a remark.

There is a perfectly respectable argument to the effect that reducing the size of the House will be difficult, contentious and may have unforeseen consequences. But we can no longer indulge ourselves in the luxury of that argument, and we cannot ignore the widespread perception that this institution is losing its claim to be an effective part of this sovereign Parliament. That perception is unfair, but powerful. That view is held in the media, it is held by some—possibly too many—Members of the House of Commons, and it is held more widely by many people outside this place who do not know what this House does.

In his book The English Constitution, published in 1867, Walter Bagehot said—or rather, he put the words into the mouth of a stooge—that,

“the cure for admiring the House of Lords was to go and look at it”.

Nearly 150 years later, we may reasonably amend that to say that the cure for criticising the House of Lords is to go and look at it: to see exacting scrutiny of legislation, not just of primary legislation but crucially, and uniquely, of the huge body of secondary legislation; exploration of subjects that the House of Commons, for very good reasons, does not have the time to debate—the debate initiated by the most reverend Primate the Archbishop of Canterbury on Friday is an excellent example of that—authoritative examination of policies and issues through an energetic and respected Select Committee system; and the ability to ask the House of Commons to think again without challenging the primacy of that House. However, for so many people outside this Chamber, those roles are seen through the prism of size, and the value of those roles is thus obscured or dismissed. We therefore need to deal with this issue, and we need to be seen to be dealing with it ourselves.

This Chamber is not the place to explore the complexities of competing solutions, although I hope that there would be—there certainly seems to be—widespread agreement on the basic principles that have been enunciated. To examine the detailed issues, taking account of a wide range of views and proposing solutions, is a classic task for a Select Committee. I have a strong preference for a formal Select Committee rather than, for example, an informal Leader’s Group. This is not to undervalue the excellent work which Leader’s Groups have done on other issues, but in this case only the transparency and authority of a Select Committee inquiry will answer. Moreover, when a Select Committee reports, there is a more formal expectation that this House will take decisions on its recommendations.

Incidentally, with a thought for the typically wise words of the noble Lord, Lord Wakeham, I suspect that quite a lot could be done without legislation, although for some heavy-duty things—perhaps a cap on appointments—legislation would be necessary. But legislation can be quite hazardous, because depending on its scope there might be the possibility of Commons amendments arriving here, which would be to an effect that many of us would find unwelcome.

To deal with the size issue is, as several noble Lords have said, only the first step in making the work of this House better understood and so better valued, but it is a vital preliminary. If we do nothing, we shall still be wringing our hands and saying, “Something must be done” a decade hence. The difference may be that the longer the problem goes unsolved, the greater the temptation for others to force possibly unwelcome solutions upon us.

Housing and Planning Bill

Lord Lisvane Excerpts

Wednesday 13th April 2016 Lords Chamber

Moved by

[Lord Lisvane]

53: Clause 67, page 30, line 5, after “may” insert “by regulations”

[Lord Lisvane (CB)]

My Lords, Clause 67(1) gives power to the Secretary of State to make a determination requiring a local housing authority to make a payment to him in respect of vacant high-value housing—or, if later government amendments are agreed to, higher-value housing. The vehicle of a determination has been well described by the distinguished legislative draftsman Daniel Greenberg, who is also the editor of Craies on Legislation, as “quasi-legislation”. It nevertheless has the force of law and as such it can, for example, modify, dilute or remove rights. Clauses 67 to 71 set out some undemanding parameters for the Secretary of State in making his determination, although the Government regard it as,

“setting out clearly the scope of the determination-making power”.

But in essence, in the Bill as reported, the Secretary of State would have extensive freedom of action in an area which may be the subject of considerable contention.

Amendment 53, in my name and those of my noble friend Lord Kerslake and the noble Lord, Lord Beecham, would require any determination made by the Secretary of State to be by regulations. Taken together with Amendment 132, any determination that affected more than one authority would be subject to the affirmative procedure. Amendment 132 would additionally apply the affirmative procedure to regulations that contained more than one determination. It would also make the definition of high-value—or higher-value—housing subject to parliamentary approval.

Parliamentary approval and authority is at the heart of this issue. This is not about the threshold between primary and secondary legislation—much in our minds in the Strathclyde context—although those issues will be very much to the fore in the very last group on the Marshalled List. Instead, this is about what Ministers may do without seeking the approval of Parliament. The Delegated Powers and Regulatory Reform Committee, of which I am a member, under the exemplary chairmanship of the noble Baroness, Lady Fookes, reported on this proposed delegation in its 20th Report of this Session. The committee concluded that it was,

“inappropriate to delegate to the Secretary of State a power to determine the amount of the payment to be made by local housing authorities without any form of Parliamentary scrutiny, particularly in view of the paucity of detail on the face of the Bill to guide how the power is to be exercised”.

The Minister responded to that report and to the following one dealing with the second half of the Bill on 23 March. Although I am speaking in an understandably critical vein, at this point I pay tribute to the noble Baroness for the care and courtesy with which she has handled proceedings on the Bill and for her readiness to engage with noble Lords in all parts of the House. However, I have to take issue with her on what she said in her reply to the Select Committee. She said:

“The nature and amount of information that will be contained in the determination … means that it is appropriate to use a determination rather than a statutory instrument. The determination will contain the formula, the assumptions and the payments for … each of the 165 local housing authorities … including, amongst other things, the authority’s vacancy rate, the value of its high value housing, the number of high value properties and amounts in respect of transaction costs and attributable debt … In setting out such a large and complex set of data there is the potential for errors to creep in, which would only be noticed by the relevant local authority. We therefore want to ensure that there is flexibility to amend the determination very quickly to correct any such errors”.

There is a syllogism here which I hope the noble Baroness will acknowledge. She is in effect saying: first, there is a huge amount of information; secondly, all that information must be in the determination; thirdly, it is too much information to put into an SI, especially if correction might be needed; and fourthly, ergo, the determination cannot be in an SI. But that is not so, and I hope that I can help the noble Baroness out of this particular cul-de-sac. The sharp end, as it were—the formula, the assumptions, the payments for each authority—can be in an SI subject to the approval of Parliament. The extensive supporting working can of course be published at the same time, but it does not have to be in a form which is formally subject to the approval of Parliament in an SI.

The distinction in Amendment 132, applying the affirmative procedure to a determination which is of general application and the negative procedure to any which has specific application to an individual authority, would deal very neatly with the Minister’s concern about needing to correct mistakes which could be noticed only by the relevant local authority. A correction of that sort could be done very quickly by a negative SI without needing explicit parliamentary approval—which of course I agree would take time. On the other hand, a systemic error, or a major change in assumptions, would attract the affirmative procedure and Ministers would have to explain themselves to Parliament. That is as it should be and as I hope it will be. I beg to move.

[Lord Kerslake (CB)]

My Lords, I will speak very briefly on this issue because it is almost impossible to follow that advocacy. I learned more in that particular bit about the process of dealing with these issues than I have over a long period.

During the Bill’s passage, there has been a great deal of concern about the things we do not know and cannot see at this point in its progress. We will come on to the question of secondary legislation, as the noble Lord, Lord Lisvane, said, but here and now we have an opportunity to get this issue right between regulation and determination. Any technical issues that might flow from that were amply addressed by the noble Lord. I commend the amendment to the House as a practical and sensible way to address a continuing strand of debate throughout the whole passage of the Bill.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)]

My Lords, first, I welcome the noble Lord, Lord Lisvane, to his first outing on the Housing and Planning Bill and pay tribute to his constitutional expertise in the other place, which he now brings to this House. It may help him if I say that I have listened very carefully to what he and other noble Lords have said on whether regulations on the definition of “high value” should be made under affirmative resolution. I also pay tribute to him for his work on the Delegated Powers and Regulatory Reform Committee. As a direct result of the committee’s work, I have considered further its point about delegated powers in this chapter. I shall go into a bit more detail in a few moments, but I believe that the House should have the opportunity to scrutinise the detail before the regulations come into force, so I shall return to this at Third Reading.

On the specific amendments tabled by the noble Lords, Lord Lisvane, Lord Kerslake and Lord Beecham, I understand that Amendments 53 and 132 reflect the recommendations made by the DPRRC in its report on Parts 1 to 5 of the Bill, published on 5 February. As I have announced, we will bring forward an amendment to make the high-value regulations affirmative. I shall focus on Amendment 53 and the corresponding part of Amendment 132, which would require determinations to be made through regulations and, under certain circumstances, subject to the affirmative procedure. I know that the noble Lord, Lord Lisvane, is a member of the DPRRC and will have seen my letter of 23 March to my noble friend Lady Fookes, the chairman of that committee, where I set out the reasons why we considered that we should not accept the recommendation to put the determination into regulations. If the noble Lord will forgive me, for the benefit of your Lordships’ House, I shall now repeat some of my reasoning here.

Our view is that the determination is the most appropriate way of setting out the information of what payment a local authority will make to the Secretary of State. The key elements of the calculation are set out in the Bill, including the housing to be taken into account and the definition of vacancy. Other elements, such as the definition of high value and the types of properties which are to be excluded will be set out in regulations and therefore subject to further parliamentary scrutiny. Indeed, my announcement that the definition of high value is to be made through an affirmative procedure has, I hope, demonstrated my willingness to listen to the House. As I explained in my response to the committee, we also think that the nature and amount of information contained in the determination means that it is appropriate to use a determination rather than a statutory instrument. The determination will contain the formula, the underlying assumptions and the payment for each authority, as the noble Lord pointed out, but it will also include the figures to determine the payments for each of the 165 local authorities, including, among other things, each authority’s vacancy rate, the number of its high-value properties and the level of its attributable debt.

Such a large and complex set of data creates the potential for errors to creep in, which will be noticed only by the relevant local authority. We therefore want to ensure that there is flexibility to amend the determination very quickly to correct any such errors. We of course welcome scrutiny of the formula and other elements of the determination. That is why Clause 69(2) requires the Government to consult all affected authorities, the LGA and relevant professional bodies before making a determination. On this basis, and with the amendment that I have announced on high-value regulations, I urge the noble Lord to withdraw the amendment.

[Lord Lisvane]

My Lords, I am extremely grateful to the Minister. With her customary diplomacy and courtesy, she has given us about a quarter of a loaf. It may tend towards a third of a loaf, but not more than that. In effect, she has accepted the second element of Amendment 132. However, the issue of the determination being in regulations subject to parliamentary approval is serious. I was much fortified by the remark of the noble and learned Lord, Lord Hope of Craighead, who has immense experience and knowledge, about the possibility of protecting what was done from judicial review in a way that would happen if there were parliamentary approval. I hope the Minister will acquit me of any churlishness, but the remaining elements of Amendments 53 and 132 are important enough for us to test the opinion of the House on Amendment 53.

Strathclyde Review

Lord Lisvane Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Goodlad, whose 2011 report—particularly at about paragraph 154 in the context of today’s debate—is a source of great wisdom. The report of the noble Lord, Lord Strathclyde, is technically an excellent piece of work. I say this not merely because he has been kind enough to refer in it to two works in which I myself had a hand. I cannot fault his description of the constitutional background and the procedural arrangements. He has been very well served by his team of expert advisers, all of whom I know well and have worked with, and for whom I have the very greatest respect.

I do not want to be unduly churlish to the Government Front Bench, because I suspect that it was not master of its fate, but what happened on 26 October was at least in part a failure of business management. If defeat was likely or possible—and that must have been apparent—then several options were of course open to the Government. They could have delayed and sought some sort of accommodation; they could have achieved what they wanted by inserting new clauses in the Welfare Reform and Work Bill, which was conveniently to hand; or they could have made the required changes in a free-standing Bill, which as the noble Lord observes—and I respectfully agree—would most probably have been certified under the Parliament Acts and would therefore not have touched the sides, so to speak, in your Lordships’ House.

Of course, in the event of defeat on an SI, the option is always there of withdrawing and re-laying. The substitute instrument has to be slightly different to avoid breaching the rule about deciding the same question twice in the same Session, but it does not have to be very different, and that simple pragmatism is always at the disposal of Governments who suffer defeats on SIs in either House.

So what about the three options that the noble Lord has put before us? They need to be seen against the asymmetry of consideration of delegated legislation in the two Houses. This is not in itself a problem, because one of the strengths of Parliament is that the two Houses are complementary and not competing. But that is also a powerful argument against diminishing the role of your Lordships’ House, as the House of Commons is not in a position to take up the slack.

In the latest edition of How Parliament Works—I am not seeking to advertise here but it was written before I left my previous post—I described Commons scrutiny of delegated legislation as a “legislative black hole”. The noble Lord, Lord Beith, has drawn attention to the average time—averaged out per day over a Session—taken in considering SIs in the Commons Chamber.

I hope that option 1, simply excluding this House from the consideration of statutory instruments, will be rejected out of hand. Indeed, I think that the noble Lord is very nearly counsel for the prosecution in terms of the significant disadvantages of this option that he identifies in his report. If it were decided to go down that extremely ill-considered route, I think that the legislation would have to be Parliament-Acted, with all the collateral damage for a considerable period to the Government’s legislative programme.

Option 3, the recommended outcome, has some attractions, although of course it does not guarantee a proper debate at the Commons second stage—a point raised by a number of noble Lords. And it is not without hazard. In the context of Article 9 of the Bill of Rights, I have an instinctive dislike of legislating for proceedings in Parliament. There is a more immediate hazard—and here I take the timely warnings of the noble Lord, Lord Crickhowell—because the scope of a Bill, and the relevance of amendments to it, is determined not by the Long Title but by what is actually in the Bill. I do not think anybody can guarantee that there could not be in the Commons more wide-ranging amendment of the noble Lord’s apparently simple proposition—and then where should we be?

Then there is option 2, a non-statutory resolution of both Houses. The noble Lord expresses scepticism about this route and whether it can be achieved because,

“a wide range of different views has been expressed about what the convention is”.

That seems to me an excellent argument for redefining the convention—or, with a nod towards the noble Lord, Lord Norton, the doctrine—probably using a Joint Committee to achieve a cross-party and inter-House agreement rather than rushing to legislation, although I accept that legislation will be there as a potential penalty, should that route fail. If there were to be such a Joint Committee, I agree with many noble Lords that it could be a forum for a much more comprehensive examination of how Parliament as a whole deals with delegated legislation.

Briefly, I have two other observations. The noble Lord suggests that the Government should review, with the help of the Commons Procedure Committee but not with the help of a committee of this House, when SIs should be subject to Commons-only procedures. However, there is a quid pro quo to this. If SIs receive less scrutiny in the Commons than in your Lordships’ House, it must be clearly understood, and delivered, that Commons-only SIs must contain only matter which engages Commons financial privilege and must not be freighted with non-financial matters simply because of the attraction of an easier ride.

My last point is also the noble Lord’s last point. In the review it is almost a throw-away line, but it is the real reason that we are in this fix. The threshold between primary and secondary legislation has been steadily rising, no doubt because SIs are more convenient for Governments, and SIs are being used for matters of policy and principle which should find their place in primary legislation. Both the Constitution Committee and the Delegated Powers Committee have consistently pointed this out, and the searing indictment of my noble and learned friend Lord Judge is still ringing in our ears.

I could wish that we were not in this fix but, now that we are, that is the real mischief that needs dealing with. I think it is reasonable to say that we should expect a striking and sustained change of culture before your Lordships give up any powers over delegated legislation.