Queen’s Speech

Lord Norton of Louth Excerpts

Wednesday 11th June 2014 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I wish to focus on constitutional issues. For reasons of time, I do not propose to address those which have already been addressed today—we have had some outstanding speeches on the case for maintaining the union—and which we will be debating further during the Session. Rather, I wish to comment on two issues that are not scheduled for debate, but which I believe we should address. One derives from the overall legislative programme and the other from the consequences of the Fixed-term Parliaments Act 2011. The provisions of that Act determine that we are in a fifth Session, but they also raise wider constitutional questions. Both issues are core to the relationship between the Executive and Parliament.

The Government have been criticised for the fact that there is a light legislative load this Session. At the same time, we are variously told that there is too much legislation. Like my noble friend Lord Tyler, I prefer the emphasis to be on quality rather than quantity, and I therefore do not complain when there is not a heavy legislative programme. Where I think critics do have a point is in criticising the fact that the House does not sit so regularly when there is a light legislative agenda. The Government appear to think that when they have not got Bills to be considered then there is no point in either House sitting. Legislative scrutiny is a core function of Parliament but it is not the only one. Parliament gives expression to the views of the people. It serves, crucially, to call the Government to account for their actions. The Government need to accept that Parliament should sit even if there is not much legislation to discuss. As my noble friend Lord Tyler indicated, there is a great deal that we can and should be doing. One cannot rely on the Government to provide the time. We therefore need to address the issue of who determines the business and, more fundamentally, when we sit. The former issue was addressed by the Goodlad committee, but not endorsed by the House. The latter is a fundamental constitutional issue that has yet to be addressed.

I turn to a question of constitutional significance that has been neglected. The Constitution Committee’s report last Session on the constitutional implications of coalition government addressed the importance of collective responsibility. One feature of the doctrine is that the Government rest on the confidence of the House of Commons. It was a convention that if a Government were defeated on a vote of confidence, they either resigned or requested the dissolution of Parliament. The Fixed-term Parliaments Act translated the convention into statute, something that is very rarely done. If an explicit vote of no confidence is carried, an election is triggered unless within 14 days a new Government are formed and achieve a vote of confidence from the House.

The Constitution Committee report notes that a vote on the Queen’s Speech is often seen as a traditional means of expressing confidence in the Government. But what happens now if the Government are defeated on the Queen’s Speech or on a major issue of public policy? There cannot be an early election under the provisions of the 2011 Act. One presumes that the Opposition would move a Motion of no confidence, but it is not beyond the bounds of possibility that a Government could be defeated on a substantive issue, but that the third party or dissident government Back-Benchers responsible for the defeat do not want an election and are not prepared to vote for a Motion of no confidence. What happens then? The Government could resign—the other option under the old convention. What if they do? No provision of the 2011 Act has been engaged. What does the Palace do?

I was going to develop the point but I am conscious of time. These are important issues. It is up to the House to take the initiative rather than simply responding to what the Government have placed before it. I hope that we will take the opportunity of using this Session to address issues that are fundamental to the relationship between Parliament and the Executive and deserve to be addressed sooner rather than later.

My comments are addressed to the House but I conclude with a question to the Minister: when will the long-awaited response of the Government to the Constitution Committee report on the constitutional implications of coalition government be published?

Pre-emption of Parliament: Constitution Committee Report

Lord Norton of Louth Excerpts

Thursday 6th February 2014 Grand Committee

[Lord Norton of Louth (Con)]

My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on initiating this debate and the Constitution Committee on producing this timely and important report. In the time available, I wish to make two points. The first is one of clarification. For me, the key quotation in the report is that of Sir Stephen Sedley at paragraph 68, as distinguishing,

“between acting in certain ways in case draft legislation becomes law, and acting as if it were already law. The latter is prohibited in general terms; the former is not”.

That is a clear distinction, but it is one somewhat masked by the title of the report. The report states in paragraph 2:

“During this inquiry we have described Government action in anticipation of Parliament passing a bill as the ‘pre-emption of Parliament’”.

For me, “pre-emption” constitutes the second of Sir Stephen Sedley’s categories. It does not encompass both. There is a difference between anticipatory action and pre-emptive action. The first, in some circumstances, may be acceptable. The second is not.

There are no grounds for pre-empting Parliament’s capacity to enact primary legislation. If there is some urgency, it is in the gift of Government to seek all-party agreement to a Bill being passed in the course of 24 or 48 hours. There are various instances where that has occurred. Any claim for pre-emption in the event of a national emergency has in large measure been eliminated by the Civil Contingencies Act.

My second point is on the other aspect, that of anticipatory action. The committee recognises that waiting for a Bill to pass may impose such strict restraint on the Executive as to be inefficient or expensive. This, it says, is widely recognised. The report proceeds on the basis of the acceptance that there is a case for such anticipatory action. It does not seek to challenge it; it is more concerned with the mechanisms by which it is reported and scrutinised.

I fear that I am going to take a more sceptical view. We really need to test the case rather than take it as given. I do not challenge the claim that preparatory work may need to be undertaken by the Government before a law comes into effect. However, we already have a mechanism for that, one that ensures parliamentary approval before action is taken. I refer to commencement orders. Through their use, one does not have to anticipate parliamentary approval. Parliament has already considered the measure and the Minister is acting on the basis of statutory authority in deciding when to bring the provisions into effect. I initiated a debate in November last year on such orders and, in replying to the debate, my noble friend Lord Gardiner of Kimble confirmed that the Government had no plans to change the use of commencement orders.

Given the use of such orders, then, what therefore is the case for anticipatory action by Government? The report cites two activities that could qualify but I am not persuaded by either example. Hiring a project team is something that should await enactment and is the sort of thing that can be undertaken before a provision is commenced. One could sound out the potential members in advance, but that is a different matter, entailing no commitment and no expense. As for scoping inquiries, I am not clear why they would be undertaken after a Bill has been introduced. I would be rather worried if a measure had been drafted before a scoping inquiry was undertaken.

I therefore invite the Minister to explain the case for anticipatory action in the context of my point about commencement orders. It is not sufficient to say that there is a case for taking anticipatory action if that action can be taken following Parliament’s approval of the measure and before the relevant provision is commenced. We need to be far more rigorous in making sure that anticipatory action is undertaken only in truly exceptional circumstances—I look forward to hearing what they are—and that the Government, in reporting these to the House, explain why the action cannot be taken after Royal Assent but can be before the relevant provision is commenced. That at the very least will impose a useful discipline and, I trust, a deterrent.

I very much welcome the committee’s report, shedding light as it does on a largely neglected but important topic. I welcome the Government’s response, but we need to build on what is before us in order to ensure that Parliament is not taken for granted.