House of Lords: Working Practices

Lord Filkin Excerpts

Thursday 1st November 2012 Lords Chamber

Moved By

[Lord Filkin]

That this House takes note, in the light of the Government’s decision not to proceed with the House of Lords Reform Bill, of the options for making better use of the skills and experience of its Members in performing its core functions of scrutinising legislation, holding the Government to account and providing a forum for public debate.

[Lord Filkin]

My Lords, I am delighted to see how many people are in the Chamber wishing to speak on this Motion. Unfortunately, noble Lords will pay a price in the amount of time that they will have to do so.

I will argue how crucial it is now that we look afresh at how we make better use of our talents and the skills of our Members, fundamentally better to fulfil the functions of the House as set out on the Order Paper. I will argue that it is timely to do so. We know now that fundamental change to the composition of the House is off the agenda, at least for the immediate future. You can make your own guess, but I would expect that the present incumbents, if we are fortunate, may well be here in 10 years’ time. That therefore increases the necessity of looking at our processes to see whether we can improve them.

Next, it is right to look at this again because there is unfinished business. The Leader helpfully set up a Leader’s Group, chaired very ably by the noble Lord, Lord Goodlad, but many of those recommendations, some of the most important ones, have not yet come before the House for discussion and decision. It is timely for many of them to do so.

Lastly, there are wider issues, and none of us will be able to resist some of the temptation of straying into them. However, the fundamental issue should be about completing the Goodlad business that was started and is not yet at its end.

I turn to what was in the Goodlad report. My apologies to the noble Lord, Lord Goodlad, for using the abbreviation; he will know what I mean by that. The report looked at the scrutiny of legislation. That matters. We spend most of our time on it; it is our most important function. The volume and complexity of legislation have increased enormously over recent decades. We do not do a bad job, but we do not do a good enough job either. That is not always helped by the fact that Governments of whatever party have a persistent disease of rushing Bills into the House before they are properly ready and prepared.

There are two fundamental recommendations in Goodlad which would have helped to address that. The first was establishing a presumption that there should be pre-legislative scrutiny on all important Bills, particularly those which made major policy shift and/or had not had full consultation via Green Papers or White Papers. The second was a test of legislative preparedness before a Bill had its Second Reading to ensure that some basic process tests had been fulfilled. This may sound tedious and unnecessary, but I ask noble Lords to reflect on the Health and Social Care Bill that came into this House. I hope that the Health and Social Care Act works because, for most of us, the improvement of the NHS is fundamentally important to the cohesion, health and well- being of our society. But it was an object lesson in how not to proceed. I do not make that as a party-political point. The Government of whom I was a Minister was, at times, guilty of similar failings. I argue that a fundamental change like that needed the fullest consultation before the Government had firmly made up their mind. That is why pre-legislative scrutiny matters: because Governments are more flexible before they and their officials have committed themselves in that way. If we had had pre-legislative scrutiny, and if we had had tests of legislative preparedness, I am confident that the Health and Social Care Bill would have had an easier passage, probably a quicker one, and I would have expected that it would have been a better Act at the end of the process.

The Goodlad report also recommended that we should change some of our processes. The primary recommendation was that most Bills should go into Grand Committee. I will not go on in detail about that; we have debated it. However, the Goodlad proposal was not of course the proposal on which the House voted. I hope that at some stage—not in the near future but at some stage—we will come back to the proposal that most Bills should be scrutinised in Grand Committee. The process of scrutiny is evidentially better there than it usually is on the Floor of the House.

On secondary legislation, Goodlad recommended what had been recommended by the Wakeham commission previously: that the convention on secondary legislation that the House does not usually strike down and defeat SIs would be better replaced by a convention that essentially said that the House should use a power to defer and ask the Government to think again. That is absolutely consistent with what we do on primary legislation, and the benefits of doing it on secondary legislation are for the once or twice a year when there are manifestly failings in an SI brought before the House, either because its policy or processes are unclear or its consultation has been poor. The Government would be invited to think again about such an instrument and bring it back in a month’s time with amendments or with a better argumentation as to why that SI should stand. We would have better SIs as a consequence because officials and Ministers would be aware of this potential delaying power and would therefore do their homework better. That is not to imply that the quality of SIs is generally poor, because it is not; it has improved.

Those are some of the changes on legislative process that this House has within its power to make relatively simply, at relatively little cost. The public would be better served if we did so.

This House is an important forum for debate and inquiry. We do not get that much attention in the wider world. Sometimes, that is the media’s fault; sometimes, it is our own. The question for us, though, is how we make better use of our time and skills to be an effective forum for debate and inquiry. I shall make three simple points.

First, Goodlad argued that the process for choosing Back-Bench debates was somewhat arcane—some of us would say asinine. Essentially, the Government can table a debate on a topic that they think is important, relevant or even urgent at any time they wish to do so. Back-Benchers are not able in this House to do that. The only mechanism by which they can do so is if they win the lottery, which is what, of course, the ballot is, and there is no guarantee that the name that comes out of the hat will meet the test of being important or topical. Alternatively, they can put their name down for a Question for Short Debate. We are now debating issues on Questions for Short Debate that were tabled five months ago. Therefore, it is impossible by that mechanism to use QSDs to raise timely and urgent issues. There is something fundamentally flawed in the way in which we select topics for Back-Bench debates. Goodlad recommended a very simple, very low-cost process for doing so, whereby the Back-Bench Members of this House control that process. I very much hope that we will discuss that before long.

Secondly, recommendations that Goodlad made that have been introduced, and I was delighted to see them, were to establish two ad hoc sub-committees. They were not introduced in exactly the way that Goodlad recommended them, but it could well be that the Leader of the House was right on this occasion, as he often is, to recommend that they be short and sharp rather than standing or long-standing. Two are under way, on SMEs and on public service and demographic change, and they will report by Easter. There will be two new ones next year. Therefore, it is clear that we should focus on that issue and try to ensure that we have two excellent topics for the successor committees. I hope that, in time, we will recognise that this is one of the best possible ways of harnessing the talent in this House and that we have more such ad hoc sub-committees. However, that will depend on whether we can demonstrate that there are good topics that need to be so debated.

Thirdly, we need to find ways of getting on with debates on Select Committee reports. It is not healthy that a committee works very hard to produce a report and that it has then to wait sometimes weeks and months before there is a debate on it.

Transparency was touched on in Goodlad, although perhaps with not quite that language. Transparency is an objective of this Government and I commend them for it. It is healthy for public life and public policy if most of our processes are more transparent and thereby accessible to the public and the wider world. However, public understanding of and involvement in the House of Lords, while they have improved, are still not good enough. Members’ own understanding of its processes and decisions is often shaky and weak—I think, after 10 or 12 years here, I begin to understand how it works, but I would not like to sit a GCSE on the subject.

One illustration—I am not just teasing the Front Benches on this—is the way in which the usual channels work. The processes of the usual channels are necessary—I do not think that the usual channels are malign, or at least not usually—but it is clear that many Members do not understand how they work. Goodlad argued that it would be healthy if the Leader looked at how we could make the workings of the usual channels more understandable and thereby accessible to the wider membership of the House. That is necessary and I hope that it happens before long. It would also be helpful to the wider public.

I say with tact that the usual channels are extremely influential in the way in which they manage the business of the House and are extremely influential in the major committees of the House. The consequence can be, no doubt unintentionally, that they have quite an influence on how Back-Bench issues are addressed as well. The House should take ownership of its own Back-Bench business within the time that is allocated to it as a fundamental principle. It does not always feel as if that occurs. I shall illustrate the point by mentioning again the two new ad hoc committees that will be set up next April. How many Members of the House are aware that there will be two new ad hoc committees? How many Members of the House are aware of any process by which they can put forward suggestions? Some Members are, but very many are not. How many members of the public are aware that two new ad hoc sub-committees will be set up next year? There is nothing wicked here, but it would be a cleaner process if the wider world and ourselves were aware that there were two slots for ad hoc sub-committees next year. They would thereby be well sighted on the potential for putting in argumentations for them and aware of the criteria that will be used for selection of those and where the decisions will be made. Nothing is wrong with what is happening at present, but that would certainly be a better process.

I shall touch very briefly on wider issues. The elephant in this Chamber, which you can all see, is that this House is too big. It frustrates the ability of new Members and many older Members to participate and it damages our credibility to some extent. It is self-evident that, if we are meant to be a House of expertise doing good scrutiny, we need to refresh and bring in new talent. Those two objectives are in conflict and the way of resolving them is obvious to us all: there has to be some process of retirement. Such a process will not be easy or even possible unless a government of the day are prepared to introduce legislation. However, it is necessary, as otherwise the House will clog up and become discredited, or we will fail to bring in sufficient new talent, which is clearly necessary.

If the scrutiny of legislation is our fundamental task, are the resources available to opposition Front Benches, of whatever party is in power, or to Members sufficient to do that? I have taken part in the scrutiny of legislation, and your Lordships know as well as I do the process. It is almost impossible unless you are lawyer to engage in the amendments and their processes without external support. That can be helpful and it involves the wider world, but it can also lead to risks. I also hope that we will as a House recognise that we have to champion Back-Bench interests, not in the interest of Back-Benchers per se but in the interest of better scrutiny, better debate and a better holding of the Government to account.

In conclusion, I am arguing that the priority is to make the case for a Back-Bench debates committee as soon as possible, and bring that before the Liaison Committee when we have completed making the case; in time, to bring in a process for a legislative standards committee; to review the transparency of our processes with a view to improving them; and, lastly, I urge all Back-Benchers, and even Front-Benchers, to persist in the important task of improving the processes of this House, because we have an obligation to the public we serve to do so.

[Baroness Anelay of St Johns]

My Lords, it might be helpful if I point out that this is a popular debate. There are 24 Back-Bench speakers to follow, with four minutes for each. When the clock hits four, I am afraid that four minutes are actually up.

--- Later in debate ---

[Lord Filkin]

In rising to thank all Members who have taken part in the debate, I shall do my utmost to be charitable, as it is nearly the end of our working week. First, I shall try to be charitable to those Members who have persistently and roundly insulted me by describing me as an oily mechanic or a mongrel. I have seldom had to suffer so much in silence in my career until now. I shall also, with no difficulty, seek to be charitable to the Leader of the House, because I believe that he had largely written his speech before he had listened to the debate that we have had in the past two and a half hours. I say that with good grace, because I have seldom heard such feeling around the House that we ought now to make sensible progress on reforms of this House. The Leader gave his usual eloquent and urbane reason that we had done all that we sensibly could and had better let sleeping dogs lie—or, as a councillor once said to me, had better leave lying dogs to sleep, which is slightly different.

Nevertheless, the Leader of the House has given us some pointers. First, a number of us are bound to wish to have a discussion with him. Without doubt, with his usual good grace, he will give us time. Our discussion with him will be about on which elements of the changes that have been strongly supported from all corners of this House we can move forward. As he implies, ultimately, it is not what I think or even he, from his eminence, thinks; it is what this House thinks that it wants to do on some of these issues. We will discuss with him the procedures that are there for us to explore how some of these things can be fairly, without too much manipulation, brought before the House in the ways in which they were expressed in the Goodlad report and, no doubt, informed by good guidance about what is practical. I think that the House would welcome it if we did that in a sensible and measured way. I thank again all who have spoken so strongly and supportively of the need for sensible, progressive change.

Motion agreed.