Government and Parliament

Lord Cunningham of Felling Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Cunningham of Felling (Lab)]

My Lords, I would normally begin by saying that it is a pleasure to follow the noble Lord, Lord Strathclyde, but I have to say that I fundamentally disagree with almost everything he said. On the other hand I warmly commend the speech of my noble friend from the Dispatch Box on this side of the House and strongly support the recommendations that she has put forward.

An effective and robust balance of power between Government and Parliament lies at the heart of good governance. It also lies at the heart of good democratic scrutiny and control of the Executive. It cannot be acceptable in those circumstances that any Government can arbitrarily decide to change the existing balance of powers or the conventions of Parliament because of a voting defeat resulting from the legitimate use of parliamentary power. Nor is it correct for the Government to assert, as they have done, that a defeat of a statutory instrument by this House is a challenge to the primacy of the House of Commons. Nothing could be further from the truth. The House of Commons does not refer statutory instruments to this House; that is done by the Government. The Government invite both Houses to express an opinion at the same time.

As the Joint Committee report on the conventions of the United Kingdom Parliament makes clear, the primacy of the House of Commons is unanimously accepted not just by the committee but by the unanimous endorsement of that report by this House and the other place. The reality is that four Select Committees, which the noble Lord has just referred to—three of your Lordships’ House and one in the other place—comprehensively rejected his proposals. The House of Commons Public Administration and Constitutional Affairs Committee stated in its report:

“The Government should not produce legislative proposals aimed at implementing the Strathclyde Review’s recommendations. Such legislation would be an overreaction and entirely disproportionate to the House of Lords’ legitimate exercise of a power that even Lord Strathclyde has admitted is rarely used. The Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives and in building better relations with the other groupings in the House of Lords”.

There is not much sign in that statement that the House of Commons feels that its primacy is being challenged by this place.

All four committees mention the overuse, or perhaps I should say the abuse, of secondary legislation by this and earlier Governments to make changes in policy, which is not what statutory instruments were originally intended to do. To be fair, the noble Lord, Lord Strathclyde, mentioned this in his own report. The recent report by Mr Daniel Greenberg, entitled Dangerous Trends in Modern Legislation, for the Centre for Policy Studies, also highlights very succinctly the problems of the overuse of secondary legislation. Like my noble friend’s opening speech, that is a good starting point for the urgently needed discussion in your Lordships’ House. We should take the initiative and get on with it. There is no point leaving the procedures of this House and the way it conducts its affairs simply to the Executive. We should not delay. Equally, I strongly believe that we should not delay on reforming other aspects of the work of this House.

Let us face it, this impasse began with a misjudgment by the Chancellor of the Exchequer in trying to use a statutory instrument to make fundamental changes in policy. That is where the problem began. It did not begin in your Lordships’ House, it began in the Executive and the Government, and it was an error from which they are still trying to recover. I remind noble Lords opposite of Healey’s first law of politics: when you are in a hole, the best thing to do is stop digging.

I have seen no evidence to suggest that it is necessary or would be appropriate for this House to make some kind of concession in the face of these government errors. Why should this House agree voluntarily to reduce its very minimal powers, which we all agree are used only exceptionally? It would be going in the wrong direction entirely. I have even heard it suggested—indeed, it was suggested by a member of the Government to one of the Select Committee hearings—that we should agree that this power should remain but should be used only once in a Parliament. Who would make that decision? That would mean that the Government were home free for the rest of the Parliament. They could do what they liked with statutory instruments and this House could do nothing about it. It is a preposterous, ridiculous proposal, and I hope that no one will give it any credibility.

The reality is that we in our own House should challenge this problem head on: the problem of the overuse and the inadequate scrutiny of secondary legislation. After all, most of the scrutiny takes place in this House, so we should be in charge of reforming it.

--- Later in debate ---

[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.