Government and Parliament

Debate between Lord Trefgarne and Lord Cunningham of Felling

Thursday 9th June 2016 Lords Chamber

[Lord Trefgarne (Con)]

My Lords, as chairman of your Lordships’ Secondary Legislation Scrutiny Committee, I thought it right to make a brief intervention in this debate. I emphasise that what I am going to say is my personal view, although I rather think that most of my views will be shared by other members of the committee.

I want particularly to deal with the matter that arose after 26 October last year when your Lordships rejected the tax credits statutory instrument. I recognise that there is room for more than one respectable view as to whether that was a breach of the convention that existed—but there is certainly a serious body of opinion that takes that view, which, frankly, is one that I share. So the question is: what do we now do about that? My noble friend Lord Strathclyde has reported. His report has not been universally acclaimed but has been widely appreciated for the detail into which it went. He has raised some important possibilities which the Government will no doubt carefully consider and to which they will respond in due course—maybe even this afternoon.

Before we, or the Government, decide upon bringing in new legislation, we should have an attempt at re-establishing the convention which some of us, at least, believed existed before October last year. I hope that that can be done. It would need the acquiescence of all the major political groupings in your Lordships’ House, including of course the Opposition, as led by the noble Baroness, Lady Smith, and the Liberal Democrats under the noble and learned Lord, Lord Wallace. I believe that the Liberal Democrats take it that they are not party to the existing convention—or what was the existing convention. If they are not party to it, they will have to be party to the new one if that is what is decided upon. So indeed will the Cross-Benchers—but how that can be achieved I am not so sure, because of course they take the view that they are not united on anything, so that is a matter on which they would have to decide. The noble and learned Lord, Lord Hope, the Convenor of the Cross Benches, would have to decide what assurances he could give as to the position of his colleagues on the Cross Benches if that were to proceed.

I hesitate to suggest that the right reverend Prelates should have to take part in all of this. Perhaps that is a step too far—but they were of course party to the proceedings in 1215, when his late Majesty King John was persuaded to sign the Magna Carta. Apparently that is not part of the proceedings nowadays. If it is not possible to reach a new agreement—

[Lord Cunningham of Felling]

I am grateful to the noble Lord and do not want to take up too much of his time, but since he mentioned the Lib Dems and the Cross-Benchers, they were represented on the Joint Committee on Conventions and voted unanimously for its conclusions. They supported its conclusions on the Floor of this House, so they are committed to the convention.

[Lord Trefgarne]

I am very glad to hear that, but I think that there will need to be a new procedure now. If he does not mind me saying so, the noble Lord’s committee, to which he referred, sat a number of years ago and the procedure therefore needs to be re-established following the events of October last year. The new convention will need to set out the understanding that only in the most exceptional circumstances would your Lordships want to vote against a statutory instrument. I would wish to add that a Motion for a significant delay would be very similar to a Motion to negate a statutory instrument. I dare say that the convention would need to recognise that point.

I will make one other, more current observation. It relates to the supporting documentation for statutory instruments, which my committee considers nowadays. A number of noble Lords have already referred to this. I have to say that at least 10% of the Explanatory Memoranda and other supporting documentation which we receive is inadequate or unsatisfactory. We often have to ask for it to be rewritten or reproduced. I regret that that is the case but I hope your Lordships will understand that it is an important part of the work that we do. I would like to exempt my noble friend Lord Freud from all that. He has recently gone to great lengths to persuade his department to improve its supporting documentation and I very much appreciate what he has been able to do. I believe that my colleagues on the Select Committee appreciate that likewise.