Government and Parliament

Lord Butler of Brockwell Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, at the start of her speech, the noble Baroness, the Leader of the Opposition, was kind enough to make some complimentary remarks about what I said in the Queen’s Speech debate. I want to return that compliment. I very much welcomed the constructive tone of her speech today. I must say that I was a little surprised to hear the noble Lord, Lord Cunningham, say that he agreed with every word that the Leader of the Opposition said, but fundamentally disagreed with the noble Lord, Lord Strathclyde, because, for a major part of their speeches, they were both saying the same thing.

When the Leader of the Opposition put down this Motion for debate, I assumed that this would be a further debate on Strathclyde, so I went to the Printed Paper Office and drew out yet again the noble Lord’s report and the reports of the three Lords Select Committees to find that yet another report had appeared—this time from the Public Administration Committee in another place. I reflected that this issue seems to be prolific in producing Select Committee reports. The only thing that it has not produced so far is a response from the Government.

Today—and I welcome this—the speech of the Leader of the Opposition went wider. She referred not only to Strathclyde and statutory instruments but to the unsatisfactory nature generally of legislation which the Executive present to Parliament. I welcome that because, although secondary legislation is an important part of what is wrong with our legislative procedures, it is not the only aspect. As somebody who spent my career in the Executive, I respectfully agree with the noble Lord, Lord Strathclyde, that what is at the root of this is not any conspiracy to simplify the legislation coming to Parliament but the desire of the Executive to make themselves an easier life. That has been going on for some 250 years. It lies at the root of the development of the party system, the whipping system, it continues to go on and it results in Bills of the sort we see now. The shelves of the Libraries since I migrated from being a bureaucrat to a law-maker are groaning with the reports of committees on which I served, which sought to draw attention to the ill results of our country’s unsatisfactory law-making. As has been said, Bills are ill thought out, inadequately prepared, insufficiently consulted on and hugely added to by the Executive during their passage and finally often replaced before they are brought into operation. The noble and learned Lord, Lord Judge, who I am delighted to see is taking part in this debate, in a devastating lecture, drew attention to how appalled he has been in migrating from being a judge to a law-maker by the widespread and growing preponderance of Henry VIII clauses and secondary legislation, introducing policy changes which should have been in the original Bill. On that I agree with the noble Lord, Lord Cunningham.

One of the committees of which I was a Member—the Leader’s Group on the House of Lords procedure in 201l, set up by the noble Lord, Lord Strathclyde— recommended that the House should establish a legislative standards committee to deal with precisely the deficiencies in legislation presented to the House which have been referred to and to answer these questions. Has the policy underlying the Bill been properly explained? Has there been consultation to establish whether the proposals are practicable? Is there enough detail to enable Parliament to scrutinise it properly?

The proposal of that Leader’s Group, on which representatives from all sides of the House served, was that, like the Delegated Powers and Regulatory Reform Committee, this new committee would consider those factual questions between introduction and Second Reading—not policy questions but the state of preparation of the Bill—and it should report to the House whether a Bill and its surrounding information were in a fit state for parliamentary scrutiny. The clerks to the House recommended that such a procedure was entirely practicable but your Lordships will be unsurprised to hear that this was yet another proposal on which the Government did not support action. Now the time may well be to return to it.

In the Queen’s Speech debate, I said that Parliament’s scrutiny of statutory instruments needed consideration by the Commons as well as by the Lords. Prompt upon its cue comes a report from the Commons Public Administration Committee which reaches similar conclusions. That committee concludes that instead of producing legislative proposals,

“aimed at implementing … Strathclyde … the Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives”.

I would add that if the Government do not do so, as has been said, fatal resolutions in this House—so rarely used over the last 60 years—are likely to become more frequent.

The Leader of the Opposition has proposed that we look at this whole question of parliamentary law-making. Why should we not do so? Committee after committee has said that there is a problem to be solved. The Government have an interest in avoiding fatal defeats on statutory instruments in the House of Lords. The Opposition have an interest in securing a procedure which they can legitimately use to defeat or amend statutory instruments in the House of Lords, while respecting the ultimate primacy of the House of Commons. I agree that in this respect the noble Lord, Lord Strathclyde’s proposals have been misunderstood and misinterpreted. He is not proposing that the House of Lords’ powers in relation to statutory instruments should be curbed. What he is proposing is to substitute a procedure which the House of Lords rarely dares to use for one that it could use much more frequently to cause the Government to reconsider or amend statutory instruments in a proper way.

I hope that in replying to this debate, the Leader will respond constructively to the Leader of the Opposition’s proposal. But let not the best be the enemy of the good. We also need to solve our problem over statutory instruments. We do not want yet another report about which nobody does anything.