Syria and the Use of Chemical Weapons

Lord Mayhew of Twysden Excerpts

Thursday 29th August 2013 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, it is a privilege to follow the noble Lord, Lord Kerr, and it is tantalising that he did not have longer to develop his themes, which were based on enormous experience. I particularly agree with him that the doctrine of punishment has no place in international law. We cannot intervene in order to punish. This might not be universally accepted, especially in the United States, but it is quite clear that it is no part of international law’s right to punish somebody or to retaliate.

I want to make one additional point. I have heard a noble and gallant field marshal in this House say on more than one occasion that the first question asked of you if you visit troops who are committed to active service is, “Is the country behind us? Do the people support what we are being asked to do?”. That is an extraordinarily important question to have in mind when we consider the Syria issue. It is all very well having a military covenant and enshrining it with the force of law—it is very important that that should have been done—but we are not treating troops fairly if they are not given a truthfully positive assurance in answer to that question. That is the great significance of the opinion polls. The Government have to face the fact that so far opinion polls have been about nine to one against what is understood to be in the Government’s mind on military intervention. It is therefore extremely important that in the days ahead, as the evidence available becomes clearer, the Government make every effort to explain the basis upon which the doctrine of the responsibility to protect is founded.

I am extremely glad that the Attorney-General has published a summary of his opinion for use in this debate rather than his full opinion. I cannot agree with those who wish to see the full opinion. That gives rise to tendentious cherry picking and is unhelpful rather than helpful. The public will be reassured to see that one of the criteria to be fulfilled is a humanitarian purpose inspired by humanitarian needs of almost catastrophic proportions. That is the kind of thing that we should expect to see more readily understood in the days ahead. The days ahead are going to be extremely important. Upon them may depend, among other questions, of course, which there is no time to develop, the answer to the question in future, should it arise: “Sir, is the country behind us?”.

Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Lord Mayhew of Twysden Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, I warmly endorse the tribute that my noble friend has just made to the quality of our staff in the committee of which I hold the honour to be a member. I also warmly endorse the comments with which she concluded her remarks.

I suspect that all Ministers would in their heart of hearts prefer to legislate for as much of their policy as possible by means of an order, rather than undergo the rather more exciting—in Duke of Plaza-Toro terms—of having to succeed by the primary provisions of a Bill. That can be difficult and it can certainly be embarrassing when, for example, on judicial review, an exercise of discretionary power conferred on them is overturned by the courts and you have to come back with a Bill trying to put matters right.

Far preferable for them, therefore, to be able to remedy the setback by exercising a discretionary enabling power deriving from the Bill itself, especially since debate, as we have just been reminded, on the chosen order will be strictly time-limited and the order will not be amendable even if it contains a Henry VIII provision repealing a statute.

Seen from Ministers’ point of view, this is entirely understandable, but from the public’s and Parliament’s point of view, its defective character speaks for itself, and so strongly that it seems extraordinary that it was not until 1992 that the committee whose report we are discussing was set up. It is remarkable that the other place has yet to establish any such committee.

Here, I declare, I suppose, something of an interest, as I am now well into my third stint as a member of the committee, chaired in my first experience by Lord Alexander of Weedon QC and now, delightfully and extremely skilfully as we might expect, by my noble friend Lady Thomas of Winchester. I think that we can claim that the decision to establish the committee was well founded all those years ago. It is important to note that the merits or demerits of policies are outside our remit—that is not for us. We can only make recommendations, whether as to the appropriateness of the order in question for delegated legislation or as to the degree of supplementary scrutiny it should receive. However, year after year, it has proved extremely unusual, as my noble friend has mentioned, for our recommendations to be rejected or, at any rate, not to be accepted by the Government. When that happens, they have to account for it and can expect to receive some criticism in the Chamber.

I suggest that the first point that stands out about the special report that we are discussing is that it relates to a parliamentary success story, and a House of Lords story in particular. It is a story beginning with the recognition of an increasing curtailment by government of the parliamentary right, and duty, to scrutinise proposed ministerial legislation, an increase causing—to quote a 1992 report—“considerable disquiet”. A remedy was then proposed. That report stated that a delegated powers scrutiny committee would,

“be well suited to the revising function of the House”.

The story culminates in the establishment of your Lordships’ committee, in the sensible limitation of its remit and in the general recognition that the committee is there to address an important need—and that, with the advantage of some 20 years’ experience, the committee generally addresses it well.

The report also demonstrates that the originating problem is ongoing. Rather like a virus, it mutates. Unlike a virus, however, there are already antidotes, which in this report your Lordships’ committee endeavours to prescribe. I must be selective, given the list of speakers whom your Lordships will wish to hear. Let me select the important statement that the report makes that it is the practice of the committee to try to take a consistent approach in its judgments as to whether a strengthened power proposed in a Bill is appropriate to be delegated by Parliament to Ministers at all and whether, if it is, it will be subject to an appropriate level of parliamentary scrutiny, not merely by means of the familiar negative procedure or the affirmative procedure but by the super-affirmative procedure or whatever variant may be proposed. Consistency on the committee’s part is obviously desirable and necessary.

The trouble is that Bills come forward with “marked differences” in their provision for strengthened parliamentary scrutiny, as my noble friend has already said. As the report states, it is that variation that has led our committee to undertake the analysis at its heart. Here I agree with what my noble friend says about Table 1—and I would add Appendix 2—of our report. The contents fully justify that reaction. The detail certainly illustrates the outstanding service that we receive from our clerks. They have led the committee to recommend that—here I paraphrase—when proposing a strengthened scrutiny procedure, the Government should normally use an existing model. I shall explain the basis for that decision. I am personally very glad that the Government have effectively accepted this. It would be helpful to the House if it is brought into practice. That would be highly desirable and helpful to the public.

The Government have so far been less accommodating —my noble friend referred to this, too, so I can be brief about it—about adopting undertakings given by the previous Government, made during the passage of Clauses 12 to 19 of the Legislative and Regulatory Reform Bill in 2006. These are discussed at paragraphs 21 and 22 of our report, and they are of such a character that they would, if generally adopted, have an effective impact on future attempts to legislate in this way. That is a very important matter to consider. I hope that the Government can be induced to agree to adopt the undertakings given in 2006 legislation. It was a little disappointing to find from their report that they are considering this and will report in due course. Our report was published in July and the response is, I would respectfully suggest, rather overdue. I hope that it will be favourable.

I want to end without striking a churlish note. This report and the history leading to it serve to remind us that effective parliamentary scrutiny of delegated power, although it needs nurturing, is now strongly embedded in our governance. Accordingly, those inclined to perceive an irresistible progression of executive power can take heart from this afresh.