Strathclyde Review

Lord Grocott Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Grocott (Lab)]

My Lords, the noble Lord, Lord Strathclyde, presented his report in his characteristically emollient way. I do not think we should be too taken in by the gentle way in which he presented it, because what he is suggesting is a substantial constitutional change that will transfer power to the Executive from Parliament and will alter the relationship between the two Houses. I do not object to constitutional change but the responsibility for arguing for it must come clearly from those proposing it and we should review it with all the skills of forensic examination that are at our disposal.

I want to look at the two key arguments that the Government and their supporters—or, I should say, the noble Lord, Lord Strathclyde, and his supporters—have advanced on the need for this constitutional change. The first is that, somehow, the decision on 26 October had considerable impact on our primary concern, the primacy of the House of Commons, and threatened that primacy. The title of the noble Lord’s review even refers to the primacy of the House of Commons. But it did not. If the Commons or the Government had decided that they did not like the decision that we made on 26 October, they had several simple options open to them. One would have been, as the noble Baroness, Lady Hayman, said, to resubmit a statutory instrument in a slightly modified form, which this House would have then had to consider. It would probably have been like ping-pong but it would, sooner or later, have been sorted out. Alternatively, the Government could have brought in a simple Bill and timetabled it strictly, and no doubt it would have been designated a Bill over which this House should have no control. They easily had the capacity to remedy and to enshrine the principle of primacy.

The other argument advanced, including by the Leader of the House in her presentation on the report, is that the decision on 26 October somehow threatened the constitutional convention about the Lords not throwing out statutory instruments; she went so far as to say that it was “broken”. I took the precaution of asking one or two Questions of her. First, I asked her how often since the Second World War the convention had been broken. The reply came back that it was on five occasions, in 1968, 2000, 2007, 2012 and 2015; I remark in passing that three of those were when Labour Governments were in office. So we find that in 71 years since the Second World War, on the Leader of the House’s own acknowledgement, the convention has been challenged on five occasions.

I asked the Leader of the House how often the convention had been broken on those five occasions when the Lords threw out a statutory instrument that had come from the Commons, and the answer is once—the last time. I am conceding the Government’s whole case now and saying that the amendment passed here could have been interpreted as a fatal amendment, but even on those grounds—the Government’s own terms—only once in 71 years has the convention been threatened, and now they propose to change the constitution to deal with it. By the way, during the whole of that time there were 41 years of Tory Government, and they suffered two defeats on statutory instruments. If that is the rate of defeat, I do not think it is enough to get in a lather about. So why are the Government determined to go ahead when, quite plainly, on their two principal arguments, the primacy of the Commons is intact and the convention is intact?

I cannot resist doing this; I apologise in advance to the noble Lord, Lord Strathclyde, but he had this to say about secondary legislation and statutory instruments in a debate on the Cunningham committee:

“although many have argued … that a power to reject might be replaced by a power to delay, or even a power to amend, the practical difficulties are great … I think that we need … more legislative restraint by government with fewer skeleton Bills backed by reams of regulation … Sometimes, as the committee acknowledged, rejection may be needed—very rarely—but the circumstances must be exceptional and extremely rare”.—[Official Report, 16/1/07; col. 632.]

They are exceptional and extremely rare, on any reading of what has happened.

So why is this change proposed? It is part of a wider concern of the Government: they do not like it when they are defeated. No Governments like it when they are defeated but all I can say is, “Join the club”. I know what it is like to be defeated. In the five and three-quarter years of this Government, they have suffered 123 defeats. In the five and three-quarter years with which I am particularly familiar, between 2002 and 2008, the Government suffered 325 defeats. I know the response but, even allowing for the undoubted ineptness of the Government Chief Whip at the time, 325 defeats against 123 hardly gives this Government grounds for their persecution complex. They have a very easy time in relation to the House of Lords most of the time. In the 115 years of my dear old party’s being around, only for eight of them has it even been the biggest party in the House of Lords, despite years of Labour Governments. If you do the maths, in 107 of the last 115 years the House of Lords has had the Conservative Party as its biggest party.

The ball is really in the Prime Minister’s court. He has the power and can do what he likes. He can cut our powers, if he brings in legislation and is able to get it through. He can create large numbers of Conservative Peers, as he has already been doing, but if he wants to carry on then no one can stop him. He can even abolish us if that is his wont, since he has a Conservative majority—although he might find it tricky. But I very much hope that he will go away, calm down and decide that, “This isn’t broke, so don’t fix it”. Governments do not like being defeated and I believe that there are enough people in the House of Commons who do not like this unnecessary encroachment of executive power. I certainly hope that should any firm proposal come to cut our powers in this House, enough people here will be certain enough about our responsibilities to ensure that it is rejected.

--- Later in debate ---

[Baroness Stowell of Beeston]

I am conscious of time; everybody is tired. I am going to come on to that; I have just said that that is what I am going to come on to, and I will.

Some noble Lords thought that it would be best to proceed without legislation and instead to codify the convention; certainly there is an argument to be made in respect of that, but that approach would require us to restore a shared understanding about the convention underpinning our power of veto. Most noble Lords focused their comments on the third option put forward by my noble friend, the one that he recommends—as he described it, the ping without a pong. He suggests that that would replace this House’s power of veto with a new power to ask the other place to think again, with the House of Commons having the final say.

What he is recommending there is what noble Lords are arguing for. However, some thought that it would be necessary to retain the veto available to us now. I stress again that all these things are under consideration, but it is important for me to point out that we do not have an absolute veto when it comes to primary legislation. The new power that my noble friend suggests would be more in keeping with the role of this House, and the desire it has to ask the other House to think again.

The noble Baronesses, Lady Taylor and Lady Smith, and the noble Lord, Lord Hunt, and others asked me from the Labour side of the House to consider what was possible that would have some longevity and was not about just advancement for any particular party in government. Again, I found it very helpful to revisit what the Labour Party said to the Joint Committee on Conventions about the veto when they were in power. Forgive me for singling out the noble Lord, Lord Grocott, again but it was he who made this point to the Joint Committee. He said that,

“the House of Lords can veto secondary legislation … the very legitimate question arises … whether it would be sensible to consider the proposition that the Lords in respect of secondary legislation should do what it does with primary legislation, and see its function as being a delaying, revising chamber but not a vetoing chamber. That is really the question that is being put”.

[Lord Grocott]

My Lords, the noble Baroness will acknowledge that a lot of evidence went to the Joint Committee, which was set up by the Labour Government precisely to look at all these issues. That all-party Joint Committee, although a committee with a Labour majority on it, looked at it and the conclusions that it reached were agreed unanimously and adopted by both Houses. That is the way the process worked and it is the way any new process should work.

[Baroness Stowell of Beeston]

I say to the noble Lord that the Joint Committee on Conventions of 2006 was clearly highly respected. It was a very significant committee, and its findings and work have really stood the test of time. The problem we have is that the convention that was set out there and reinforced by the Joint Committee—I am afraid that this is the problem, because we disagree and this is what we are having to address—is no longer operating in the way that it was agreed it should operate.