Democracy Denied (DPRRC Report)

Viscount Eccles Excerpts

Thursday 12th January 2023 Lords Chamber

[Viscount Eccles (Con)]

My Lords, this is our second shot at these excellent reports; we had a go almost exactly a year ago. It seems to me that our analysis of what flows from the extensive work that has been done has sharpened up. I find it quite difficult to know what to say after the speech from the noble Lord, Lord Lisvane, with which I agreed 100%. Indeed, just before him, my noble friend Lord Howell also referred—and it is a good title—to the study of the legislative agenda. I think that that is where we have to be.

This is a very good prelude, but secondary legislation comes attached to and after primary legislation, and at the moment it is quite difficult to see how we will make much progress as the boundaries between primary and secondary legislation have, in my view, completely gone. They simply do not exist in the way that we understood them to exist.

When I think of the two Motions, I am not so sure about the Delegated Powers one, because it uses the word “power”. To me, that is not the right subject. The right subject is housekeeping. Are our Government and our Parliament conducting the housekeeping of our nation’s affairs in a proper manner? How much real power do they have to direct that housekeeping? I think it is better to think about it so there is not a great deal.

I want to make a point about the report from what I used to call the Merits Committee when I was on it. It refers to the efforts and the explanation of the efforts that the draftsmen have put into a piece of legislation and says that if, at the end of those efforts, the policy is not clear, the Bill must be “premature”. I would go further. There is always a possibility that the Bill was not necessary in the first place. What was the motive for putting it forward? Recently, the freedom of speech in universities Bill would be a good example of that.

When it comes to thinking about, for example, framework Bills and what the Merits Committee has said about the possibility that the legislation is not necessary, that is the end of the Environment Act. It is a catalogue of regulations and targets. As far as I can see, there is absolutely no way of evaluating how that Act is performing, because you will always get an answer back saying, “Well, as you know, most of it is to be done tomorrow and we’ll tell you in due process time”.

We have to then give one minute’s thought to the position of the Government. I think they might say, “We are having a very difficult time meeting democratic expectations if we are to be re-elected”. There are difficulties: climate change, biodiversity loss, freedom of speech issues, trans issues, mental health problems among teenagers, gambling addiction. Does any of us really think that we know how we would draft primary legislation to deal with this? Do we even think that, in all cases, primary legislation would be the relevant way of trying to cope with some of these issues?

I have one last thing to say. Please do not blame the parliamentary draftsmen. I think that if we were working with them, we would make exactly the same comments as we make about the staff of our own committees. I suspect that we are out of our depth, and that we need to find a way back to competent housekeeping.

Higher Education (Freedom of Speech) Bill

Viscount Eccles Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Viscount Eccles (Con)]

My Lords, in following the noble Lord, Lord Desai, I agree with him that the Bill is attempting to deal with very clear problems, but I am not sure it is dealing with them as a matter of detail. I think it also treads on the ground of principles. In following the noble Lord, Lord Desai, I am very conscious of the speech from the noble Lord, Lord Stevens, which I thought was an extremely good exposition of the position.

My question at this late stage in the debate in thinking about whether the Bill will improve the situation for freedom of speech is to wonder about the present regime. It depends predominantly on, I think, Section 43 of the 1986 Act and, of course, on the provisions of the 2017 Act, which set out the OfS.

It is interesting to look at the general duties in Section 2 of the 2017 Act. The first one is

“the need to protect the institutional autonomy of English higher education providers”.

I suppose that we agree with that.

I am not absolutely certain that every provider of higher education quite appreciates the importance of the word “autonomy”. I have a feeling that some providers, in their evidence that led to the Bill, are looking for some shelter or some cover, and my concern is not to give them that shelter or cover, and not to give up on the general duty to protect institutional autonomy, because it seems to me that, for a functioning democracy to work well, it is extremely important that we have autonomous institutions between Parliament and the people. I am not at all clear to what extent it is part of Parliament’s duty or, indeed, in Parliament’s interests, to get directly involved in trying to solve some of the problems that have been articulated this evening.

Indeed, Section 2(8)(a) of the 2017 Act, under “General duties”, which goes somewhat beyond the original list of eight duties, says that the OfS must have regard to

“the freedom of … providers … to conduct their day to day management in an effective and competent way.”

The freedom and indeed the duty to manage day-to-day affairs goes back a long way in our post-war history. It goes back, in fact, to Herbert Morrison and his control, on behalf of Attlee, of the nationalisation programme, where the distinctiveness of day-to-day management was set up and was extremely important to all of us who dealt with those institutions subsequently: on the whole, it worked extremely well. This leads me to say that Parliament should be very careful about eroding that freedom to conduct day-to-day management.

So, in thinking about these problems and thinking about the Bill, which is after all a big insertion into existing legislation—if and when it becomes an Act, it is not actually going to be a separate Act; it is going to be an insertion into the existing Act—we should be very conscious of the fact that it may be that this is not really a matter for Parliament when it comes to how we are going to deal with the problems of today and preserve the freedom of speech. I think we should have one more big effort to say to the higher education providers, “This matter is really up to you. There is sufficient legislation to enable you to carry out these duties, and we see it as being a preferable way of conducting business only to do those things that, after suitable consultation and pre-legislative scrutiny, we agree mutually should be done, rather than that anything is imposed upon you because we have identified a problem and, in our search for votes, we want to put something to Parliament without sufficient care and consideration.”

House of Lords: Governance

Viscount Eccles Excerpts

Wednesday 8th December 2021 Grand Committee

[Viscount Eccles (Con)]

My Lords, I will first talk about two things which I think are works in progress. The first is the External Management Review, which the Senior Deputy Speaker referred to in his opening remarks. I believe that he has a certain responsibility for what is going to happen as a result of this document, which was published in January last year. It is also fully covered in the excellent Library review, with a big shopping list. Probably the most controversial suggestion in it is that the commission should be made statutory. Your Lordships will wonder whether the present Administration in Downing Street would have any interest in providing parliamentary time for such a thing to happen, but that is probably the most dramatic recommendation in this review. The review is problematic, and I will come back to that.

Secondly, there are a number of things in this House’s relationship with the Government and the House of Commons that are a work in progress and need attention. Indeed, those relationships should be a very high priority in any system for running this House.

Before I start on these two issues, we are still, whether we like it or not, a self-regulated House, and we depend upon self-discipline. We do not set our own agenda, except to a very limited extent. We do not select our Members. We get the business that comes from the Government of the day and the business that comes from events. Of course, with our committee structure, we can think about events and make suggestions about the best way in which things might go.

Reverting for a minute to the External Management Review, before going out to buy a 133-page report, it would have been of interest for the House to have known at the time what it was going to cost and the qualifications of the people who were going to do it. I have to report that when I got to about page 50, I thought, “Unfortunately, the two people writing this report do not understand the House of Lords.” Their minds were on the governance of limited liability companies.

I have had to face up to annual general meetings, and I knew the systems of governance that I had to be aware of. At the Royal Botanic Gardens, Kew, we have legislation of our own, and you know very clearly where you are on the matter of governance. In a charity—and the review mentions Samaritans—you know very clearly what your system of governance is, but it is not nearly as easy to define and be certain about what sort of system of governance this House should have. My perception is that you cannot expect it to be legally enforceable and you have to rely, as we always did, on conventions and on peer group pressure: “This is the way that we do things, and this is the way that we don’t do things.” That culture in this House is extremely important.

I am not very optimistic about this external management review, despite the very long and well-composed shopping list in the Library report. I think, if I were to sum it up, it is an example of naval-gazing and of looking inwards when an institution should always be very careful to be looking outwards.

That takes to me to my second subject, briefly. We have two reports: Government by Diktat and Democracy Denied? For the 20 years that I have been here and on both what was then called the Merits Committee and the Delegated Powers Committee, we have always been concerned, and we have been advised by our legal advisers and our clerks, quite brilliantly, about the dangers of framework Bills and legislation that takes a lot of powers but does not really tell you how it is going to be used. These two reports have highlighted that. It seems to me that the way that the usual channels and the Leader respond to these two reports and advise the House on how to respond is an extremely important piece of work in progress.

I also think that, in a minor key, the way that the Government deal with Written Questions is pretty disgraceful. If anybody wants to look at a good example, I recommend the Answers about the Holocaust memorial that is planned for Victoria Tower Gardens. If ever there were, over a period of seven years next January, a list of non-Answers to Questions, they are an example. Again, I think that the authorities—if I may call them that—in this House should be taking up the issue of the standard of replies to Written Questions.

If I might suggest it, in concluding, it seems to me much more important that the commission and the usual channels concentrate on our relationship with the other House and what it is about it that is working well or not working so well, with us as a revising Chamber, fully appointed and, in the end, always giving way but, in the run-up to giving way, trying to make as much sense as we possibly can.

Covid-19 Update

Viscount Eccles Excerpts

Tuesday 3rd November 2020 Lords Chamber

[Baroness Evans of Bowes Park (Con)]

I am grateful to the noble Lord for acknowledging the £7.2 billion of funding for Scotland. This intervention has saved nearly 1 million jobs in Scotland, which I am sure is very welcome. As we have said, the furlough scheme is a UK-wide scheme, and it will always be there for all parts of the UK.

[Viscount Eccles (Con)]

My Lords, I would like to make a small plea about the NHS. There was a very good statement today from Professor Stephen Powis on the actual position facing the NHS. Accurate information is essential to keeping the confidence of the public, as has been said already today. Sometimes it seems that what is happening in the NHS is slightly cloudy behind a lot of other information—scientific information in particular. Will my noble friend encourage the NHS to go on telling us exactly what is happening within its own front line and make sure that, when it does, it gets properly publicised?

[Baroness Evans of Bowes Park (Con)]

Across the House, we pay tribute to all staff in the health service, from doctors and nurses to cleaners and security, who have done so much over the last few months. I cannot imagine the strain they must be feeling at the moment. Data from the NHS is critical. One of the key things we are trying to do in taking these measures is to ensure that the NHS is not overwhelmed and continues to provide fantastic service, support and care for all members of our society.

Pension Schemes Bill [HL]

Viscount Eccles Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd March 2020 Grand Committee

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who have spoken to this group of amendments. Perhaps I can start by addressing the questions raised by the noble Baroness, Lady Sherlock, in the context of the issues posed by the Constitution Committee. I appreciate the points she and the noble Baroness, Lady Drake, made on this. The Constitution Committee raised the skeletal nature of the provisions in this part of the Bill and sought clarification on how, and by whom, some of the powers might be exercised. Notwithstanding that, as I have pointed out previously, the committee accepts the need for some of the powers, even if in skeletal form. The noble Baroness was kind enough to concede that.

The noble Baroness picked me up on the distinction I made last week between policy and policy implementation. The policy in this area is developed: we are clear about what we want to achieve and what needs to occur for that to happen. There was a full and thorough government consultation. Following that, a government response was published and our policy aims were set out. As we have made clear throughout this process, further work on the technical development must be carried out and in due course, we will bring forward the affirmative regulations that provide much of the detail that noble Lords seek.

I would like to explain why it was necessary to bring the Bill forward at this point. The noble Baroness asked me why we think dashboards are a good thing. In our government consultation, there was overwhelming support across consumer groups, individuals and industry for our proposal to introduce a legislative framework in order to,

“deliver dashboards within a reasonable timeframe”.

Our experience over the past five years of trying to make progress on this matter—a long time, as noted by my noble friend Lord Young—is that without the clarity of our commitment brought by legislation, it would prove impossible to bring together the industry in a way to develop the service that consumers require and have said they want.

We have asked the industry delivery group, under the guidance of the Money and Pensions Service, to develop the infrastructure required to provide dashboards by working with a range of stakeholders, including pension scheme providers. This process will inform the content of the delegated powers. The alternative approach would be to table a Bill once all the technical work has been completed but, as I have just outlined, we would struggle to get industry to engage with us to enable this technical work to complete. We took the view that that course of action would be impractical and simply further increase the time that consumers need to wait for a dashboard service.

I am the first to recognise the Constitution Committee’s reservations about the use of delegated powers but, in this instance, we consider their use to be entirely appropriate and in keeping with the committee’s suggestion that they meet “an exceptional justification”. As to that justification, the reasons for the nature of the delegated powers are fully set out in the delegated powers memorandum. This recognises the need for a degree of flexibility while creating a digital service solution in order to ensure that the service provided remains up-to-date, secure and accurate. Technical requirements and user needs change and the legislative framework needs to be able to adapt at pace to meet those requirements.

The committee also referred to Clause 118 and asked the Government to explain who might be prescribed by the Secretary of State as someone who can publish standards, specifications or technical requirements for a qualifying pensions dashboard service. Pensions dashboards fit with wider government aims to give consumers access to and control over their own data, particularly across financial services. The Government’s approach is therefore to ensure that dashboards are fit for purpose over the long term, which includes recognising that ownership of the dashboard infrastructure and responsibility for the setting of standards may need to change over time, as explained in paragraph 1.364 of the delegated powers memorandum. It is not possible to set out now who might be asked to take on this responsibility in future, nor to state now the mechanisms of accountability to Parliament. That would need to be determined according to the circumstances but, as we have already set out, such changes will occur within the wider legislative framework, which offers multiple layers of consumer protection.

[Viscount Eccles (Con)]

Perhaps I should already know this, but will it be possible, in the additional technical work, for an individual to decline to have the information about his or her pension position put on to a dashboard? If past history is any guide, some people will always prefer not to join such a system. They might feel that they do not need it. Therefore, I express the hope that it will be possible to opt out.

[Earl Howe]

It will be entirely up to the consumer to decide whether they wish to have a dashboard showing all the information relating to their pension entitlements. Nobody will be forced—