House of Lords: Strathclyde Review

Lord Dholakia Excerpts

Thursday 17th December 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness for repeating the Statement and I thank the noble Lord, Lord Strathclyde, and his team for the uncharacteristic speed in which it has completed a government review. However, it has not taken long, has it? This is the first wholly Conservative Government for nearly 20 years and it is the first ever Conservative Government without an automatic majority in your Lordships’ House, yet within months they are already trying to change the rules, on the pretext that this House has exceeded its powers.

From the outset, I want to be clear: we do not set our face against change and improvements. It is Labour Peers who have proposed immediate changes in how we operate. We have also proposed significant change through a constitutional convention. The Government have declined to hold such a convention. Instead, we have today’s announcement on the Government’s growth area of legislation—statutory instruments.

At this point, most normal people’s eyes will glaze over, but SIs are the Government’s secret weapon. Traditionally, they were not used for issues that should be in primary legislation or for major policy changes where there should be full scrutiny and consideration. But their use has grown over a number of years and, more significantly, at a faster rate since 2010. The tax credits changes originally proposed were a major policy shift, and it would have been entirely appropriate for them to have been considered in primary legislation. But the Government chose to use an SI.

We will want to consider the report from the noble Lord, Lord Strathclyde, in more detail, but I say to the noble Baroness that the process he recommends is a very significant change. First, it is a major departure to use legislation to address this issue. Secondly, in terms of procedure, a statutory instrument is not sent to your Lordships’ House from the House of Commons but from the Executive—from the Government. It is not like legislation where proposals are considered and sent from one House to another.

In terms of statutory instruments, both Houses separately consider measures proposed by the Government. Either House can accept or reject, and rejection by either House is in effect a veto. That is why this House has so rarely rejected a statutory instrument. Since 1999, it has happened just four times in 16 years—approximately once a Parliament. The noble Baroness referred to this, but let us be clear that in this Parliament three attempts at a so-called fatal Motion to reject an SI have failed.

The recommendation from the noble Lord, Lord Strathclyde, is that your Lordships’ House could send an SI back to the Commons, but there is no guarantee that the Commons will have considered it first and there is no indication of the timescale. This proposal denies your Lordships’ House the opportunity to ask the Government to reconsider. It instead sends it to the House of Commons. I know that other noble Lords share my concern about the degree of scrutiny for statutory instruments in the other place. We know that any Government with a majority would just ensure that a small committee will consider and pass the SI.

Why do the noble Lord, Lord Strathclyde, and the Prime Minister consider such change is needed? We are told that it is because of the tax credits vote. This House fulfilled its duty in scrutinising secondary legislation. Contrary to some reports, we overwhelmingly declined to block the measure through a fatal Motion but supported asking the Government to reconsider and bring forward changes. That is the right and legitimate role of a second Chamber. Indeed, it allowed the Chancellor to reconsider and to bring forward even more substantial changes than suggested by your Lordships’ House.

We are also told that the Labour Opposition and the Lib Dems are ganging up on the Government and forcing through legislative change. The evidence for that assertion is feeble. There have been 42 votes in your Lordships’ House since the election. The Government have lost 23 and won 19. But, significantly, 16 of those government defeats were on Bills that started in your Lordships’ House with no pre-legislative scrutiny and no prior consideration by the other place. We would have been failing in our duty as a second Chamber if we had not appropriately scrutinised that legislation. Those concerns were raised by the Delegated Powers Committee and the Constitution Committee.

The Government’s collective memory is at fault. Between 2005 and 2010, the Labour Government lost 105 votes, including a Second Reading and a fatal SI Motion. Between 2001 and 2005, we suffered 245 defeats, and that was with an elected Commons majority of 167. That was when the noble Lord, Lord Strathclyde, was Leader of the Opposition. I think there are two Lord Strathclydes: there is the one who used to do my job as Leader of the Opposition, who would make, and I am sure has made, the very points that I am making now, and then there is the new version that we see today. The only difference is this Government.

The other point is that we lost major and very serious votes on terrorism and security legislation. I cannot recall a single vote that this Government have lost that is of that magnitude or seriousness. It has to be taken into account that we vote far less than the other place. They have voted 143 times in this Parliament; we have voted just 42 times. That is because, in recognising the role of a second Chamber, we are more selective and cautious in choosing when we vote.

So let us be honest with ourselves: this is not about tax credits or any other issues on which your Lordships’ House has disagreed with the Government. If it was, it would be a massive overreaction. It is far more serious than that, so let us look at these changes in the wider context of: the misnamed lobbying Bill, or the gagging Bill as it was nicknamed, which has made it so much harder for charities and campaigning organisations to be effective in their campaigning and lobbying; the weakening of freedom of information legislation; and the fact that, for the first time ever, a Government have instructed the Boundary Commission as to how many constituencies there should be, knowing that the reduction favours Conservatives over Labour; and at the same time appointing Members of this House at a faster rate than any other Prime Minister in our history, with the greatest ever proportion of government Peers.

The Government are also making it harder, through individual electoral registration, to register to vote, and we have had English votes for English laws—who knows where that will lead? Also, leaping in where the late Lady Thatcher chose not to tread, there is the Trade Union Bill. Not only does that Bill make it harder to fund and to campaign for trade unions, but it will also completely undermine the funding of the Labour Party, while keeping very quiet about Conservative Party funding.

All this paints a very unattractive picture of a Prime Minister and a Government who will not tolerate challenge. They loathe scrutiny; they fear questioning. The evidence base for the changes proposed today are weak. I guarantee and assure your Lordships’ House that we are very open to genuine suggestions for clarification, modernisation and changes, but that has to be in the context of fulfilling our duty and our legitimate constitutional role, not just because the Government and the Prime Minister did not like losing a vote.

I ask the noble Baroness four key questions. When will the Government respond to the report? Does she accept the assertion on page 23, and, indeed, throughout the report by the noble Lord, Lord Strathclyde, that too much legislation is being undertaken by statutory instruments and that that should be changed? What consultation will there be prior to a decision by the Government, other than a debate in your Lordships’ House? And can she comment on suggestions that the Government intend to use the Parliament Act to force through any legislative change?

[Lord Dholakia (LD)]

My Lords, I add my thanks to the Leader of the House for making the Statement and giving us advance sight of the report from the noble Lord, Lord Strathclyde. I also add my thanks to the noble Lord, Lord Strathclyde, and his team. The noble Lord promised the report before Christmas and he has delivered.

My party believes that both Houses should be examining better ways to work together to achieve more comprehensive, more informed and more effective scrutiny of government legislation and the actions of the Executive. We continue to reject the notion that any Government achieving a majority in the Commons should have the absolute power to prosecute their business without the burden of proper checks and balances, particularly as voter turnout declines and Governments are elected by a smaller and smaller share of the vote. We believe that a second Chamber, however it is constituted, should not be a mere echo of the House of Commons. We are interested in ways to strengthen the role of Parliament as a whole, not to convert the House of Lords from a revising Chamber to an impotent debating society.

We firmly believe that there is a strong case for enhanced parliamentary scrutiny of secondary legislation. This is particularly important when the primary legislation introduced by the Government is a skeleton Bill, with the statutory instruments flowing from it containing provisions which are more suitable for primary legislation. Already in this Parliament, the Government have introduced two such bills: the Childcare Bill and the Cities and Local Government Devolution Bill. If Governments make increasing use of skeleton Bills, it stands to reason that the SIs stemming from them should be afforded much closer scrutiny.

To that end, my party submitted formal evidence to the noble Lord, Lord Strathclyde, suggesting two different mechanisms by which this House could propose amendments to statutory instruments. We firmly believe that such a mechanism would allow the House of Commons to think again and would, in fact, reduce the incidence of this House withholding its approval of a statutory instrument—which, incidentally, has occurred only six times in the last 50 years. We do not believe that this House should be required to give up its power of veto, when this is such a rare occurrence. To do so would change the arrangements agreed by both Houses following the report of the Joint Committee on Conventions in 2006.

Does the Leader of the House agree that this is not simply a matter for the Prime Minister and the Government, but for Parliament? As there are wider implications, not least for the Parliament Acts, does she recognise that a simple amendment to the Statutory Instruments Act 1946 is clearly not sufficient to deal with this important issue? Does she agree that the proper way to proceed would be to reconstitute a Joint Committee of both Houses to ensure that the matter is fully debated?

We will have a further opportunity to discuss this issue and we will certainly have more to say at that time.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Baroness and the noble Lord for not rushing to their own conclusions on the report of my noble friend Lord Strathclyde, which was published today. I was encouraged by what the noble Baroness, Lady Smith, said about how she and the Opposition are very much interested in change that helps this House fulfil its purpose, because that is what I am interested in, too. This House has a very important role in the legislative process and in Parliament. We are here to scrutinise, challenge and hold the Government to account, and I say that as a member of the Government. I know that that is what this House is here to do, and I want it to be very effective at doing all those things. I want its purpose to be fulfilled properly.

Where I differ from the noble Baroness is about what happened in October. That is the problem. We are now confused as a House. We do not quite know how to deal with secondary legislation because the procedures that we have before us have become confusing. We have this massive power of veto and we have a convention which says that we should not use that veto except in exceptional circumstances.