Strathclyde Review

Lord Strathclyde Excerpts

Wednesday 13th January 2016 Lords Chamber

Moved by

[Lord Strathclyde]

That this House takes note of Command Paper Cm 9177, Secondary legislation and the primacy of the House of Commons.

[Lord Strathclyde (Con)]

My Lords, I am flabbergasted by the number of Peers who have put their names down to speak this afternoon. For a moment I wondered whether they realised that we are discussing statutory instruments, then I thought that perhaps I had been more controversial in my review than I had originally intended. I think, however, that it is a sign of the importance that we attach as a House to the way that we pass legislation and to the powers that we have. All are, therefore, extremely welcome, perhaps none more so than the two maiden speeches that we will hear this afternoon, from the noble Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Darling of Roulanish. The noble Lord, Lord Darling, brings recent and genuine breadth of experience and knowledge from the House of Commons, which I know will be extremely valuable to this House. Another reason I welcome his words is that I think he was probably the Minister responsible for the introduction of tax credits in the first place. So long as he can keep his words uncontroversial, it will be interesting to hear what he has to say.

This debate goes to the heart of what we believe we are here to do—what we are for. It goes to the heart of the relationship between this House and the House of Commons and how we conduct our affairs, particularly given that the Government are, and always are, a minority in this House. There has been nothing new in that since 1945. I have heard some people say that the Government have overreacted in all this because it is the first time that a Conservative Government find themselves not in control of the House of Lords. I have some sympathy with why people say that. I do not think that it was always quite as easy as some people imagine when we had about 400 Peers in the House of Lords, mainly because they did not always turn up, but I understand the point that is being made. The answer to that, of course, is that the Government need to learn lessons about how to handle the House of Lords. However, it is also the first time that the Labour Party finds itself in a position of power and authority as the Opposition in this House and, therefore, a great responsibility falls upon its shoulders.

I also presume no greater qualification than anybody else to be leading this debate, but between 1994 and 2013 I was either the Chief Whip or Leader in opposition and in government. Therefore, I had a rare view and a period of study of the theory and practice of how we deal with secondary legislation in this House, particularly how statutory instruments are dealt with, and of the various conventions that guided us during that period. I am sorry that the noble Lord, Lord Hennessy, is not here, because it is what he might have said was a study in the emotional geography of the House, and in how it has changed over the last 20 years.

We need at least to understand and agree on the nature of this House. Without a government majority, it is a very strange beast. I was in opposition for 13 years, and there is always an obligation in opposition to know that there is often an opportunity—a requirement, in fact—to pull your punches: a self-denying ordinance. If not, the House can virtually always defeat the Government, and that way chaos lies and the patience of the House of Commons will be tried. You have only to look at the history of the 20th century. The House of Lords behaved foolishly in the run-up to the 1911 Parliament Act, and of course the 1949 second Parliament Act is a reminder of what happens when the Commons loses trust in the ability of the House of Lords to complement its work.

To avoid these problems, in the latter part of the 20th century we developed a whole series of practices that developed into conventions of the House, such as the one I contend existed on statutory instruments. There are others on reasonable time and, of course, the far better-known Salisbury/Addison convention on Second Reading amendments. I am delighted that one of the speakers this afternoon is none other than the noble Lord, Lord Cunningham of Felling. When he was in the House of Commons, he chaired a Joint Committee that did a comprehensive study about the conventions that govern the relationships between the two Houses.

[Noble Lords]

He was in the Lords.

[Lord Strathclyde]

Well, he had been in the House of Commons, my Lords, and therefore it would be fair to say that he had a pretty good view of the relationship from both sides of the argument. He was then a supporter of the Government; I am sure that he is still a supporter of the Labour Party. These things are important, because when you reread his work from 2006 you find that it is still fresh and interesting, and I urge noble Lords who are so interested to go back and have a look at it. Perhaps the Library could be persuaded to give a small extract from it on the conventions of the House of Lords to remind us.

Why conventions? Conventions require us to behave in ways that we would rather not. They require us to sign up to a series of obligations that constrain the way the powers of the House of Lords are used. To work, they need to be binding on those who agree them; and they are of course based on trust, because there is no legal basis for them.

My view is that the convention on statutory instruments has been fraying for some time, for a number of reasons. First, the House of Lords has changed substantially over the last 17 years. There is undoubtedly a new confidence in the House of Lords; I applaud that. There has been an influx of new Peers over many years. There has been a fundamental change from a more hereditary House to one that has been appointed, with people here on merit. On the other side of the equation, however, there has been a loss of collective memory and less understanding of the implications of what happens when we use our powers too aggressively. I tried to avoid that after 1999, when it should be remembered that nearly half the Conservative Party in the House of Lords was expelled by the Government. I do not want to give this Government any ideas, but it was quite effective at the time.

In 2000, I declared in a speech that the convention was now dead. I did so quite deliberately and pointedly, and we then went on to defeat the Government on some order to do with the London mayoral elections. Two things happened immediately afterwards. First, we agreed a process by which the offending order was put into legislation and, secondly, Lord Williams of Mostyn and I agreed that of course the convention should stay on and that it was not true that there was no need to continue the conventions from the old hereditary House into the new House that had been created after the 1999 Act. He understood, as a Leader of the House and leader of the Labour Party in this House, that it would help the House of Lords to work better to maintain this convention.

There is a similarity between that and what happened in 1968. Incidentally, one of the remarkable things about this House is that my noble friend Lord Trefgarne, who is going to speak in a few moments, was around in 1968 and voted on the Rhodesia orders, on which the House foolishly voted to vote down the orders to impose sanctions on Rhodesia. My noble friend Lord Carrington and Lord Shackleton, who were then the Leader of the Opposition and the Leader of the House, agreed that there should be a convention that this should never happen again—and nor did it, until 2000. In the 1970s came the start of the Motions to Regret, which were a sensible way forward. However, that agreement of my noble friend Lord Carrington and Lord Shackleton was a sensible and pragmatic understanding between two parties. They accepted that the Lords may have the power to reject but that they should not use it, because they did not have the authority to do so.

In 2007, the super-casino orders were also lost in the House of Lords. There was no Conservative Whip but it was interesting that 15 Labour Peers voted against the Government and there was a dramatic last-minute intervention by the then most reverend Primate the Archbishop of Canterbury. No more was heard of the super-casinos after that.

That brings us to tax credits, because what was so interesting about the votes that took place on them is that the House divided along entirely political lines. In fact, what was so unusual is that several senior Labour Peers voted to support the Government—not, I hasten to add, because they had any affection for what the Government were doing on tax credits but because they understood the constitutional implications of what was to take place and that a practice was going to change. In the Chamber itself, there was some confusion as to whether the delay Motions of the noble Baronesses, Lady Hollis and Lady Meacher, were in tune with the convention or broke it. At a stroke, there was then more than one interpretation of what the convention was; hence there has been a need for clarity and the Prime Minister, in his wisdom, invited me to conduct my review.

I should say at this point that I absolve completely, if any absolution is required, the two noble Baronesses in their Motions. I do not think for one moment that they were seeking to undermine the conventions that existed. In fact, they had rather cleverly and innovatively found a frame of words that technically did not break the convention. These were words that were neither fatal nor non-fatal; this is the cleverness that succeeded.

My view is that, in practice, whatever the technicalities, they proved fatal because they took the order hostage and would not pass it unless certain conditions were met. The noise from the opposition Benches exemplifies what has gone wrong, because if we cannot now agree what the convention is, we have to either re-establish it or find another way to try to get it right.

My review was greatly helped by an excellent team of officials from the Cabinet Office and a group of parliamentary advisers whose combined knowledge of Parliament and the passing of legislation is, I think, unparalleled. However, it was my review and my report, and I am entirely responsible for all the views held in it.

One issue that exercised us perhaps more than anything else was that of financial privilege. In my report, I discuss the old conventions between the two Houses on tax and supply, which go back to the 17th century—some argue to the 15th or the 14th century. Sometimes these things are not well understood these days. What is true is that financial privilege is very much a matter for another place, which, rightly, jealously guards its financial privilege. I have made recommendations that government and parliamentary authorities ought to discuss more, perhaps with the House of Commons Procedure Committee, exactly how to deal with financial privilege in future.

Of the three options that I have put forward, the first two are pretty self-explanatory. The first is to remove the House of Lords from debating and discussing statutory instruments, which I think would be a loss of scrutiny and an encouragement for the Government to use statutory instruments and secondary legislation even more. The second is somehow to rebuild the convention, but the convention can be rebuilt only if it comes from the House. Governments cannot impose conventions on the House. That is why I came to my third option, which is a genuine attempt to find a new procedure and give the House of Lords a new power, a very practical power that we have never had before. I also have to admit that there was nothing original in it. As part of my studies, I looked at previous debates and discussions. As early as 2001, in the great Royal Commission on Reform of the House of Lords chaired by my noble friend Lord Wakeham, he and his team of commissioners came up with a plan that looks remarkably similar to my option 3, and it has been echoed in other studies as well.

By having the ability to do what the House of Lords traditionally does so well, which is to ask the House of Commons to think again, we are doing what we have always done. To limit it to—if I may call it this—a ping without a pong, we are giving the House of Lords certain rights that it does not have at the moment. In other words, we have a conversation between the two Houses but the other House has the final say.

I should also like briefly to mention the scrutiny committees. One thing that became apparent very quickly was in what high regard the scrutiny committees of the House of Lords, chaired by my noble friends Lady Fookes and Lord Trefgarne, are held by government departments, Commons committees and outside commentators. There is no question in my mind that secondary legislation—statutory instruments—are an absolute requirement in the modern era, but it is very important that we have the right tools for scrutiny. We should question very strongly when framework Bills are put before us whether the requirements for ministerial powers are necessary.

Since the Statutory Instruments Act was passed in 1946, we have enjoyed unfettered powers to vote on secondary legislation. In this context, I asked myself these questions. First, is there a problem that now needs to be solved? I concluded that there was. Secondly, should the Lords retain this veto power? I concluded that the answer was no. Thirdly, is this the right time for a new power and a new procedure for the House of Lords to do what it does best? That is, to ask the House of Commons to think again, and the answer to that was yes. It is now up to your Lordships and the Government to decide not only whether these are the right questions but whether they are also the right answers to find a sustainable process that will serve the interest of Lords and Parliament alike over the next few years. I beg to move.

--- Later in debate ---

[Baroness Taylor of Bolton (Lab)]

My Lords, the noble Lord, Lord Strathclyde, opened this debate by posing three questions. First, he asked: is there a problem? I think that there is a problem, but not the one that he defined. Secondly, he asked: should we retain our veto? I am inclined to say that we should. Thirdly, he asked: was there scope for change? There is general agreement that there is scope for change, but his report is not a definitive answer.

I go back to the noble Lord’s first question on whether there is a problem. He quoted the events of 26 October in justification for the fact that there is a problem, yet he said today—I wrote down his words carefully—that the two noble Baronesses, my noble friend Lady Hollis and the noble Baroness, Lady Meacher, cleverly found a form of words that did not break the convention. If they did not break the convention, why is the noble Lord quoting that as the case for the changes that he is suggesting? It makes it very puzzling—

[Lord Strathclyde]

I wonder if it would be worth clarifying that point. I completely stand by the words that the noble Baroness cited but they were in the context of saying that there was now more than one interpretation of what the convention actually was. There was the one propagated by the noble Baronesses while others, including me, regarded those Motions as being in practice fatal. Once you can no longer agree what the convention is then you have to have the kind of debate that we are now having.

[Baroness Taylor of Bolton]

It was not the words of the Motions that were fatal but the political consequences that the Government were fearing, not least because their Members in another place then woke up to what these regulations were all about. The hype that we saw, which my noble friend Lady Smith mentioned, about the threats of extra Peers and the suspension of this House was more to do with the political consequences than the actual point about a convention being broken.

For several years, I was part of the business management team in the House of Commons. I was leader of the Commons and its Chief Whip; before that, I was the shadow leader of the House when Tony Newton was the leader of that House. One of the main problems that government business managers had—looking at what the noble Lord, Lord Jopling, said earlier, I think that it is the case on all sides—was in trying to keep Ministers realistic about what they could achieve in their legislation. They always wanted to do more and to have wide framework legislation. They always wanted to load the legislation so that a lot could be done by statutory instruments. There were mechanisms for dealing with that, but it was very difficult to contain Ministers at times.

We have to acknowledge that the whole process of using statutory instruments, while absolutely vital to the machinery of government, is or can be open to abuse. The noble and learned Lord, Lord Judge, said that that is possibly the case with all Governments. I accept that there have been occasions when all Governments have pushed the limits further and further, but we are now in a new ball-game with the framework legislation that we get and in terms of the SIs. The example that the noble and learned Lord gave about the provisions in the Childcare Bill during the previous Session prove the point. The idea that you can make a criminal conviction through an SI is just outrageous and we should not even be contemplating it.

I think that we have a great deal of agreement this afternoon that we need change, but it is not a question of what changes need to affect this House. It is a question of what changes need to be implemented in Parliament as a whole to deal with the whole question of secondary legislation and how we scrutinise and hold the Government to account.

My noble friend Lady Smith reminded us of the difficulty in the House of Commons of getting Back-Benchers to serve on SI committees. It was and is a real problem, because people saw little mileage in it for themselves and very little point, because it is a very limited debate. Often, the problem was getting a quorum rather than being challenged on the issues thrown up. At the moment, we see minimal scrutiny in the House of Commons by government Back-Benchers who are told to keep quiet and opposition Back-Benchers who do not think that they will make any difference.

We have three problems here: framework Bills, the number of SIs—and, probably more importantly, their scope, which is much greater than it used to be—and the problem of lack of scrutiny in the House of Commons. When we are considering what the next stage should be, it should not be a simplistic Bill, as the noble Lord, Lord Strathclyde, has suggested; it should be a comprehensive look at this problem. We have had some interesting suggestions during this debate of a Joint Committee, with the noble Baroness, Lady Fookes, making some very pertinent points and the noble Lord, Lord Higgins, talking about implications of financial privilege for SIs. I would say that most SIs have a financial implication. Are we to have a threshold or to say that we can never look at any of them?

There is general agreement on all sides of this House that this is a bigger problem than one of a convention that may or may not have been broken. Therefore, I urge the Government and the Leader of the House to think about not only what is convenient for this Government in the short-term but—I know that it is unlikely in the near future—what they may have to and want to do in opposition. Do not think about the short term, because that will not be good for Parliament as a whole. We have a big responsibility in this House to Parliament as a whole. That is the way that we should go forward in considering this issue.

--- Later in debate ---

[Lord Tyler (LD)]

My Lords, this has been a fascinating and thoughtful debate. The contributions and the expertise that have been displayed in the past few minutes have been particularly helpful to your Lordships’ House.

I will refer briefly to two remarkable maiden speeches. My noble friend Lady Bowles brings not only professional expertise and experience to this House but particularly interesting experience from the European Parliament. The direction of travel there is to have more democratic control over secondary legislation while in this House this evening it looks as though we might be going in the opposite direction. That is a useful lesson for us. I suspect that the parliamentary experience and touch in the Treasury would never have let the noble Lord, Lord Darling, ride into this House and fall into the elephant trap that the present Chancellor fell into on 26 October. His expertise and experience will be welcome in this House, too.

If there has been a theme during the debate today, it is that this is not a new problem. It is complex, it is not simple—and to that extent we are all indebted to the noble Lord, Lord Strathclyde for trying to simplify it—but it is not new. Therefore, it is up to us to realise that there is no novel, simple one act that could suddenly transform the situation.

As a non-expert, I have at least enough humility to listen carefully to previous wisdom. With the noble Lord, Lord Higgins, and my noble friend Lord McNally, I served on the Joint Committee that the noble Lord, Lord Cunningham, so brilliantly steered in 2006 which produced the report on conventions at the UK Parliament. I read again last night some of the excellent evidence that was put before us on 20 June 2006, when we heard from three distinguished witnesses. This was their first key statement:

“The only inference to be drawn from these proposals is that the Government intends further restriction of the freedoms and powers of the House of Lords. We would start from precisely the opposite premise—the freedoms of both Houses should be upheld and, where possible, extended. We further disagree with the government’s view that ‘codification’ is necessary as a prelude to the reform of the House of Lords. Even if true, which it is not, it could never justify further weakening of Parliament”.

The delegation that produced that evidence included Mrs Theresa May MP, then shadow Leader of the Commons and the noble Lord, Lord Cope, then Opposition Chief Whip here. It was led by none other than the noble Lord, Lord Strathclyde. Members of your Lordships’ House may have guessed that the evidence they gave was given on behalf of the Conservative Opposition. Colleagues may also recall that the Joint Committee was set up by the previous Labour Government because Mr Jack Straw wanted to clip the wings of your Lordships’ House—is that not, too, familiar?—as my noble friend Lord McNally reminded us today.

The evidence of the noble Lord, Lord Strathclyde, continued powerfully:

“‘Codification’ could cause more problems than it solves … We therefore agree with the Government that it would be undesirable to legislate on the conventions and other relations between the two Houses. That would lead to judicial intervention in and resolution of parliamentary and political difficulties”.

I agreed then and I agree now, because there is a real danger that we could drift into justiciable decision-making, which would put us in a very awkward position.

This has been referred to during the debate today by a number of colleagues on all sides of the House, including the noble Lords, Lord Cunningham and Lord Higgins, from the committee, my noble friend Lady Thomas, the noble Lord, Lord Forsyth, who spoke forcefully a few minutes ago, the noble Lord, Lord Howarth, and, most recently, the noble Lord, Lord Lisvane. That is a dangerous route for us to go down without thinking it through very carefully indeed—and I will come to how I think we should do that.

Those witnesses then turned to the specific subject with which we are engaged today. They said:

“The conventions on secondary legislation are equally well understood. We propose no alteration. We uphold the right of the Lords to reject secondary legislation, while considering its use should be exceptional in the extreme. However, there is an important balancing convention to this, namely that governments should not use their majority in the Commons to introduce skeleton Bills as a basis for introducing unamendable secondary legislation”.

There is nothing new under the sun. It has been said again today several times that we have skeleton Bills which have become more and more skeletal.

A reference was made earlier by, I think, the noble and learned Lord, Lord Judge, to the Childcare Bill. I draw the attention of the House to the work done on that Bill by the Delegated Powers and Regulatory Reform Committee, chaired by the noble Baroness, Lady Fookes, and on which I serve. It pointed out admirably that the Childcare Bill was not sufficiently well thought through to put before either House of Parliament. It was indeed so skeletal as not to be worth consideration by either House. Some time ago in the debate the noble Baroness, Lady Hayman, referred to this issue, as did my noble and learned friend Lord Wallace. We believe that that is a major problem so far as the House’s consideration is concerned.

Having previously argued that the convention on secondary legislation was “dead”, the noble Lord, Lord Strathclyde, came before the Joint Committee with a slightly modified view. He said:

“However, on many, many occasions the House of Lords has asserted its unfettered right to maintain its power to throw out secondary legislation; I think the custom and practice that has built up, in combination with the long-stop power in the House of Lords, works extremely well”.

He has changed his mind since then.

There was a good deal of support from other witnesses and in the Joint Committee for that approach. I shall quote from the committee’s report. The noble Lord, Lord Norton of Louth, who has also spoken today,

“likewise argues against codifying a convention that the Lords do not reject SIs. He observes that:

(a) It is not agreed that there is any such convention;

(b) SIs do not normally involve ‘great issues of principle’, and any argument in Parliament is usually only about fitness for purpose;

(c) A rejected order can be re-laid;

(d) The power to reject supports the work of the SI Merits Committee;

(e) Power to reject orders under the Legislative and Regulatory Reform Bill will be even more important than power to reject mainstream SIs”.

The work of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House makes his case even more powerful; it is a critical part of our job and it is very effective in undertaking that responsibility.

As has already been quoted once or twice in the debate, the eventual recommendations of the Joint Committee are unequivocal and bear repetition. The committee states that,

“we conclude that the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate for it to do so. This is consistent with past practice, and represents a convention recognised by the opposition parties. The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree ... The Government’s argument that ‘it is for the Commons as a source of Ministers’ authority to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it”.

That, like every other recommendation of the Cunningham committee, was not only debated in both Houses but unanimously and enthusiastically approved by both Houses.

It was also welcomed enthusiastically—unsurprisingly, since we had accepted so much of his evidence—by the noble Lord, Lord Strathclyde. I find it difficult, as my noble friend Lord Clement-Jones hinted earlier, to understand what precisely has happened to that noble Lord, Lord Strathclyde. The contrast between the evidence to the Joint Committee, written and oral, and what we have heard today and read in his report is so remarkable that it makes one slightly suspicious.

[Lord Strathclyde]

My Lords, perhaps I may clarify that to the noble Lord, because he has made quite a meal of it. I stand by every word I said until 25 October of last year. On 26 October, it all changed. That was when I got my review. As a result of that, I conducted my review and produced it for the debate today. The noble Lord can poke as much fun as he would like about what I said, but, as I have just said, I stand by every word of it.

[Lord Tyler]

I do not think that the House fully understands that, and I think that it has taken a more measured view of these issues. Perhaps I may say that it has been all across the House. It has been remarkable how much consensus there has been in the debate today. These issues clearly are inappropriately dealt with by an internal government review. These matters are of great importance to the whole of Parliament—both Houses.

The memorandum from the Hansard Society sent to Members today makes a very powerful case on this point. The society suggests an independent inquiry. But I have been arguing for some weeks that an evidence-taking, properly constituted and properly advised Joint Select Committee of Peers and MPs would carry even more authority. During this debate, I have lost count of how many Members, from all sides of the House, have supported the idea of a new Joint Select Committee. It would meet the requirements of so many Members who have contributed today. The noble Lords, Lord Cormack and Lord Cunningham, and a number of other Members have said that that is the appropriate way for Parliament together to think through these issues. This is not us against the House of Commons. It is both Houses of Parliament having to think together about how we best operate in undertaking our responsibilities to hold the Executive to account. That is the proper, effective constitutional role of the two Houses.

If we pursue option 3—a powerful case was made for option 2—there would be all sorts of difficulties. Every Member who said that they are in favour of option 3 also said that there were difficulties. Where are we going to elucidate how we can deal with those difficulties? The only appropriate way to do so is of course in a Joint Committee. If there is to be any revision at all of the way in which the two Houses interrelate, modifying the agreed position set out in the 2006 Joint Committee report, there must be a new Joint Committee to take evidence to make new recommendations.

I hope that the Leader of the House, in responding to this debate, will specifically answer that point. All sides of the House have said that that is the appropriate way forward and it is the one thing on which there is clearly a consensus across the House. I trust that when evidence is given to that committee by, I hope, a “Strathclyde mark 2”, he will be as forthright and as protective of the proper role of your Lordships’ House as he was when he was “Strathclyde mark 1”.

--- Later in debate ---

[Lord Strathclyde]

My Lords, what is so refreshing about the debate we have had today is that we have been discussing what we are here to do, what we are for and what the House of Lords is for. What a contrast that is with the years we spent discussing how to get here. At last we are discussing what we have to do in practice.

I shall make two short points. First, for me the most significant and interesting contribution was from the noble and learned Lord, Lord Judge, which showed what a good thing it is to have properly qualified senior former members of the judiciary here—with due deference also to the noble and learned Lord, Lord Hope of Craighead—and how wrong we were to throw out the Law Lords all those years ago.

Secondly, and perhaps more substantively, there has been an enormously wide range of views expressed in the debate. I wish the Government the best of luck in trying to bring all this together and come out with a coherent response. It will be difficult.

My noble friend Lord Young of Cookham heard something that I also heard. Although there were numerous disagreements, if we are going to change the way we debate this, the key area of disagreement is whether it should be by legislation or by agreement. I urge all those who are in favour of doing it by agreement to work within the House and with the Opposition and the Government to see if that agreement would work.

The noble Lord, Lord Cunningham, misunderstood what I wrote in my report—it is my fault because it was not clear. In my foreword, I talked about conventions, but conventions cannot be imposed by me, by the Government or by the Opposition. They can be reached only by agreement, by good will, by compromise and by joint objective. If that is the result we end up with, I will be the first to cheer.

Motion agreed.

House adjourned at 10.47 pm.