House of Lords: Working Practices

Baroness Thomas of Winchester Excerpts

Monday 27th June 2011 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, I, too, think that the report is masterly. I congratulate the committee and its clerk and endorse its recommendations.

I will concentrate on the section on delegated legislation and what the group has proposed. On first reading that section, I confess that I got the wrong end of the stick, so I thought that I would use my speech to try to unpack it a little—as much for my benefit as anyone else's. I hope that in doing so, I am not teaching my collective grandmothers to suck eggs, but here goes.

The whole purpose of that part of the report is to encourage the House to be bolder if it really does not approve of a particular instrument. The House is, perhaps understandably, squeamish about voting instruments down, and has found all kinds of ingenious ways around taking that fatal step. I myself have tabled reasoned amendments of a “regrets” nature on which I have called a vote, and the opposition Front Bench has become particularly keen on that course of action.

The reason why the House is so weak-kneed about voting down instruments is that if the Government lose the vote to approve an affirmative instrument or on a prayer to annul a negative instrument, that instrument is dead. It does not hover between life and death, it is dead, even if it has been passed by the other place—which we must now call the Commons, fair and square, if the report is agreed to.

The report, as I understand it, suggests that we all need reminding of what can happen next if an instrument is voted down. Although that is the end of the story for that particular instrument, the Government are perfectly within their rights to bring back another very similar or even identical instrument, the very next day if they want, to try their luck with that one. It would certainly be inconvenient for them, because both Houses will have to find time to consider the new instrument, but the Government do not have to wait for a new Session. Although the original Motion was fatal, it does not mean that the door is slammed in the Government’s face for that particular policy. One would hope that such a defeat would mean that, if the Government were intent on going ahead with the policy, the instrument would be redrafted with a change reflecting the debate, and perhaps with an interval of at least a few weeks to allow for that reflection.

The report suggests that the House passes a resolution asserting three things: first, the House’s freedom to vote robustly on the Motion to approve the instrument in the first place; secondly, that the purpose of the use of the fatal power is not necessarily to do more than to make the Government think again about the policy; and, thirdly, that if the Government, having considered the matter again, worked to lay a substantially similar instrument that had been passed by the Commons, the House would not vote the instrument down a second time.

In some ways, the last matter appears to be a curious one to concede, because one can foresee circumstances in which the House may be giving too much power away. If, for example, the previous Government were furious that the Lords had voted down the instrument allowing a super-casino to be built in Manchester a few years ago, all they would have needed to do was to introduce a broadly similar instrument a few weeks after the fatal Lords vote, put it to a compliant Commons, and then wait until the Lords passed it without a murmur. In that case, the Government of the day could have used a broadly similar instrument, but they chose not to. I guess that, with the recession looming, they were relieved that the Lords had saved them the considerable embarrassment of having a half-built super-casino at the height of the recession in a poor part of Manchester.

The Government did not take that course of action, and the only time it was taken in recent memory was when the House voted down the instrument to bring in sanctions against Southern Rhodesia in 1968. When the Government re-laid a broadly similar instrument a month or so later, the House passed it, although talks on Lords reform broke down as a result of the shenanigans. The House has never turned down a second instrument that anyone can remember. That means that the power that the House would sacrifice has never been used, to anyone's knowledge.

I believe that the House should take the risk of taking the steps suggested in the report. I cannot see that that would result in all hell breaking loose and the Order Paper being littered with lots of “decline to approve” Motions. After all, Governments change and there is usually inbuilt caution before an Opposition decide to take such a drastic course of action, because they know that it could be used against them sooner or later.