Government and Parliament

Lord Woolmer of Leeds Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Woolmer of Leeds (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Norton. I agreed with an enormous number of his remarks.

The House of Lords has an important constitutional obligation to consider these matters dispassionately, in a non-partisan way. That has been the overwhelming spirit of today’s discussions. The Government of the day, of any political persuasion, will always want to get their business through as readily as possible. That cannot be the starting point from which the Houses of Parliament consider how they scrutinise legislation; it is an important element, but it cannot be the purpose of scrutiny.

The issue of secondary legislation has loomed large. As has been said by many noble Lords today, the root cause lies in primary legislation, but secondary legislation gives the Executive enormous powers, with much less scrutiny than primary legislation. Most people outside Westminster do not understand the difference between primary and secondary. A large amounts of the legislation that affects people in their everyday lives is secondary legislation. Those changes can make an enormous difference to people’s lives, and the tax credits statutory instrument is a very good example of that. So the primary legislation is the root cause, but the secondary legislation that results from it has been granted secondary legislation status by both Houses; that gives the Government of the day substantial powers, with less scrutiny than otherwise. Therefore, the role of both Houses in scrutinising secondary legislation takes on rather more importance than one would imagine. With primary legislation, the House can ultimately reject the Bill or an element of the Bill; it can then be subject to the Parliament Act, but that is a substantial and very rarely used power. This House has the power to reject secondary legislation, but has done so only five or six times in 50 or 60 years. Nobody outside Parliament would regard that as excessive or dangerous use of the powers of this House.

The use of powers to reject is very rare indeed. It requires some care by any Government—and it could be a Government with my party in control, the current Government or some future Government. Governments will always be frustrated by that use, if it happens, but that is not the basis for wanting to change the powers. Woe betide any Government who say that they will take away the power of a House of Parliament because once in so many years it used that power. That would be an abuse of power on the part of government—and I hope that the Government think very carefully before they use one case in a long time to say that they will change the constitutional position of this House.

Briefly, I turn to secondary legislation. I had the privilege—although I did not think of it as a privilege when I was first appointed—of being on the Secondary Legislation Scrutiny Committee for three years. I have just finished, much to the delight of the postman who delivers the mail to my house in Leeds. I learned a number of things from it; I learned how important secondary legislation is, compared to what I realised before I was on the committee. I always realised it on an issue that I was interested in, but I did not realise that it was important for so many things. I also realised how important the role of this House is in scrutinising that secondary legislation. As the Public Administration Committee said in its report, it is the House of Lords to which Parliament owes a debt for scrutiny.

We scrutinise around an average of 1,000 instruments a year—80% negative and 20% affirmative. We refer only about 10% of them to the House to debate. The noble Lord, Lord Wakeham, said, incorrectly, in his speech on the Queen’s Speech that the House of Commons considered and approved secondary legislation before the House of Lords, but that is not true. Secondary legislation goes to both Houses from the Government, not to this House from the House of Commons. We have parallel duties to consider it. Indeed, 10% or 11% of secondary legislation is considered and approved by this House before the House of Commons. We do a very important job.

Finally, I return to the larger issue. The Strathclyde report suggests what I call, perhaps unkindly, the snake oil solution of letting this House reject secondary legislation once, with the House of Commons then being able to override it. My experience of the House of Commons is not large, but my colleagues who were in the House of Commons tell me that that will not work. Overwhelmingly, Governments use their majority in the House of Commons to get their business through. The idea that this House will reject once, then the House of Commons will consider carefully what was said, and that there will be substantial debates and a response from the Minister is simply hocus pocus—it is not true.

--- Later in debate ---

[Lord Wakeham (Con)]

My Lords, it is one of the great strengths of the House of Lords that a considerable amount of thinking seems to go on between one debate on a subject and the next time that it comes up. That is a credit to everyone, but today I think credit is due particularly to the Leader of the Opposition. A great deal of what she had to say was very sensible, and I am very glad that she said it. This goes back to what I said in the Queen’s Speech debate: I wanted a proper discussion on these matters and I wanted it to be led by the Opposition. Governments have the chance to bring in legislation if they want, but Oppositions are the people who have the power and the opportunity to persuade people that we are not doing things the right way and that we ought to change them. So I am full of praise for the start of the debate. I am hesitant to say a lot of the things that I might otherwise have said, because I do not want in any way to prejudice a proper discussion of all these matters, which I think is not best done in the atmosphere of the House.

However, we are not quite as bad as some people have made out. If we look back to the debate on 24 March, we see that a lot of concerns were expressed but there were quite a lot of things on which most of the people who spoke more or less agreed. First, for example, there was a degree of unanimity that things were not satisfactory at present. Secondly, there were those of us who argued that what we were concerned with were clashes between the Lords and the Commons, while others argued that they were clashes between the Executive and Parliament. It was the noble Lord, Lord Butler, who pointed out that they are both the same thing in practice, and that we ought not to get too uptight about that. There was also, as there has been in this debate, a general feeling that a Government with a majority are entitled to get their business through. Lastly, while no one actually ruled out legislation, at least on the government side, there was a general feeling that if we could find a way of dealing with these matters without legislation it would be a great advantage to everyone. Of course there were things on which we disagreed, and we have encountered them again today, such as statutory instruments, Henry VIII clauses and so on.

It is roughly 44 years since I came into Parliament, and I have to say that these debates have been going on for all that time and probably will for another 44 years after I have long since disappeared. The evidence is not overwhelmingly on one side, which is why the matter needs to be looked at. There are people who argue that that is not what has actually been happening. It is argued—my noble friend Lord Norton said something like this a minute ago—that the Executive are becoming more powerful than Parliament. However, quite a lot of academic research demonstrates that Parliament has much more power over the Executive than was ever the case in the past. There is a considerable amount of academic information about things that Parliament has done to Bills brought in by Governments. I would like there to be a cool discussion of these issues in finding a better way forward.

Every now and again we hear from the noble Lord, Lord Richard, on this subject. He is quite right to raise the question of financial privilege—we have not yet had an answer on that. We need to know what goes on and whether it is properly controlled. It is not that we are worried about the House of Lords having the right to vote down secondary legislation; it is the fact that under the present system there is a complete veto. That is the problem. We need to find a way of getting over it, so of course we need to have a proper discussion. An absolute veto is not acceptable in this day and age.

I very much welcome the tone of a lot of the contributions to this debate. There are ways forward that will not necessarily require legislation, but this issue will require a certain amount of good will and co-operation on all sides of the House.

[Lord Woolmer of Leeds]

The noble Lord mentioned an absolute veto. Is it not the case that a statutory instrument annulled by this House as a negative instrument can be brought back immediately with a change of title, and that an affirmative resolution instrument which is rejected can be brought back with minor amendments? So it is not an absolute veto. That is what happened in the case of the Rhodesian sanctions.

[Lord Wakeham]

Somebody who has spent as many years in business management as I have knows that there are ways around all sorts of things. However, the fact is that a statutory instrument which is rejected by this House is dead and another way has to be found of dealing with it. In my opinion, that is a nonsense. We have to find a way of giving this House more influence while recognising that, ultimately, the House of Commons has the final say.

European Union (Referendum) Bill

Lord Woolmer of Leeds Excerpts

Friday 31st January 2014 Lords Chamber

[Lord Kerr of Kinlochard]

My Lords, before the noble Lord, Lord Dobbs, replies to the debate, I should like to speak briefly on the Gibraltar point raised by the noble Lord, Lord Anderson. I should also like to raise a bigger point for the noble Lord, Lord Dobbs, to think about.

On Gibraltar, I point out first that no one has an amendment tabled to Clause 4; nobody in this House objects in principle to the idea of Gibraltar voting in the referendum. Although it was not in the original Bill and was added in the House of Commons, nobody here is objecting to it, and I certainly do not do so. It is a little anomalous that a British overseas territory should vote, of course, but that the Gibraltarians should be able to vote is not nearly as anomalous as the expatriates across the frontier in Spain being unable to vote. Gibraltar is a country member of the European Union; large numbers of European Union rules do not apply there—it does not have VAT, and it is not in the customs union, the common commercial policy, the CAP or the CFP. On the other hand, expatriates would see a very serious change to what they might legitimately have expected, if the referendum produced a no—but we will come to that under a later amendment, and I shall not pursue it now.

The very small point that I would like to make is on the Channel Islands, which are much more closely integrated into the European Union than is Gibraltar. They apply the common agricultural policy, and their main export is to France—agricultural goods and products derived from them. I do not know why the drafters of the Bill included Gibraltar and not the Channel Islands. That is a legitimate question to ask the noble Lord, Lord Dobbs, to think about and come back to. I am speaking in support of what was, I think, a probing amendment about Gibraltar and asking that the probe should go a little wider and include the anomaly of the Channel Islands.

I come to my bigger point about the nature of probing amendments. We worked quite hard for quite a long time a week ago. A number of noble Lords withdrew amendments, for which there was quite a lot of support around the House, on the understanding that there would be reflection. I have heard nothing from the sponsors of the Bill on the major amendment I withdrew. I have heard from one distinguished Member of this House—he is now in his place—but I am not going to embarrass him by saying who he is or what he said. Probing amendments are well worth it if they are designed to see whether the sponsors will accept them or will come back with a different version of them. However, on none of the amendments that were withdrawn in our eight-hour debate last week with a view to coming back on Report, have the sponsors subsequently been in touch with the proposers. What is the point of a probing amendment? It seems to me the only way one can get the defects in this Bill corrected is in the Division Lobbies. The House has voted three times, and three times by substantial majorities has amended the Bill.

It has been suggested more than once that, once one amendment was carried and therefore the argument that the Bill must stay intact had collapsed, there was no cost to the noble Lord, Lord Dobbs, in buying an amendment. Indeed, there might be considerable advantage. I had hoped that today’s debate would take place in a less confrontational way than last week’s one started and that we would be more consensual and try to find areas of agreement. However, on the previous amendment on which we have just voted, the noble Lord, Lord Dobbs, must have known from the debate that the Division Lobbies would not give the result he wanted. Why did he not feel that he could accept the amendment? Why do we have to force it on him? If anything is wasting time, it is this.

We had an hour and a half’s debate and then a Division on something that plainly was correct and was going to be written into the Bill one way or another. The only argument that the noble Lord, Lord Dobbs, produced against it was that it was unnecessary. He did not say it would be damaging. I do not think he was right. The House did not think he was right and clearly thought the amendment was necessary. If the noble Lord thinks that it is unnecessary but does not do any harm why does he not buy it? What does the House expect to happen when it puts forward probing amendments and takes them away again? It expects something to occur, perhaps in the gap between Committee and Report. The gap is there for approaches. I had hoped that there would be an approach to me about Amendment 10 by now and I am very sorry that has not happened. It is pity to force us into the Division Lobbies. It wastes a lot of time. It would be much better, and we would make progress with this Bill, if the noble Lord, Lord Dobbs, was prepared to accept amendments.

I am not saying that the Gibraltar issue, let alone the Channel Islands issue that I have raised, is one that deserves an immediate answer or anything like that. Mine was a genuine probing amendment. I do not know why the Channel Islands are not in and Gibraltar is. The biggest question is that I do not know how we make progress with this Bill if no amendments can be accepted other than through the Division Lobbies.

[Lord Woolmer of Leeds (Lab)]

Following up on that contribution to the debate, the Isle of Man, which is a Crown dependency, is in the same situation. Its relationship with the EU is determined by Protocol 3 of the 1972 accession Act. The United Kingdom has traditionally been responsible for the foreign relationships and foreign affairs of the Channel Islands and the Isle of Man. It would be helpful to know—not necessarily today, but on another occasion—to what extent the United Kingdom Government are committed to consultation with the Crown dependencies, such as the Channel Islands and the Isle of Man, on the effect of a possible withdrawal of the UK from the EU, and doing so in advance of any referendum, to take their views and to enable them to be made clear. If the noble Lord, Lord Dobbs, is able to comment today, which is possibly unlikely, that would be helpful. If not, perhaps we could return to it on a future occasion.

[Baroness Quin (Lab)]

My Lords, there is no doubt that the inclusion of Gibraltar was greatly welcomed in Gibraltar itself. It was certainly done on the basis of one of the rare obvious cross-party agreements on this issue in the other place. Of course, the people of Gibraltar vote in European parliamentary elections.

However, the points that have been raised on this issue are important. I, too, would like to reinforce the point just made by my noble friend and by the noble Lord, Lord Kerr, as to what consultation there has been with both the Channel Islands and the Isle of Man, whether or not they have expressed an interest in wanting to be involved in the vote, how they think that their interests are going to be affected and what kind of consultation will take place with them.