Strathclyde Review

Lord Howarth of Newport Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, we do not have a constitutional crisis on our hands. We are dealing with two problems, both of which are much more mundane: the problem of Ministers feeling frustrated and sore, and the problem of a system of scrutiny of statutory instruments that we all agree does not work well.

As to statutory instruments, the vote on tax credits and the complaints about that, it is clear that it was not your Lordships who breached any convention governing relations between the two Houses. As we have noted, the report of the Joint Committee on Conventions, agreed unanimously by both Houses, made it clear that the House of Lords is entitled to go so far as to vote down a statutory instrument in exceptional circumstances, and the circumstances attending the tax credits SI were exceptional. It is entirely outside the conventions of Parliament, as is made clear in Erskine May, that the Chancellor should have tried to sneak through Parliament in an SI radical and massively contentious legislation on tax credits. He was not candid about the impact of his measure, so that the House of Commons voted it through in ignorance of what it would mean for millions of people on low incomes. It was this House that ensured that the appalling damage the SI would have done to so many of our fellow citizens was correctly understood by Parliament. The Government duly thought again and withdrew the measure.

Wise Ministers recognise that effective opposition benefits the quality of government. Indeed, it has long been one of the most valuable roles of this House—performed sparingly; for sure, only on rare occasions—to rescue a Government from themselves. The pattern in these events is that a Government take it into their head to do something ill-considered and unacceptable; the House of Commons wakes up to what is amiss too slowly; the House of Lords obliges the Government to pause and think again; the public are delighted; government Back-Benchers are relieved; and Ministers go into a sulk and get all huffy about the constitution, but the misguided element of policy is dropped, tempers die down and life then returns to normal.

This Government have behaved true to the pattern so far. First, there was an absurd briefing that the House of Lords was to be suspended. Then there was the threat of the mass creation of new Tory Peers on top of what we have already had. Then the heavy artillery was rolled out: the noble Lord, Lord Strathclyde, was commissioned to carry out a review. As the noble Baroness, Lady Williams, noted, the noble Lord does not bark, but on behalf of the Prime Minister he growled in his foreword that,

“the patience of the Commons is not unlimited”.

Then, on page 18, he resorted to the assertion that this House had acted in defiance of the Government’s “electoral mandate”. But the Conservative Party never told voters that it intended to make massive cuts to in-work benefits, and it won a House of Commons majority of only 12 seats on the votes of just 24% of the total electorate, so the claim that the Lords defied an electoral mandate is tosh.

In his menu of recommendations the noble Lord set out an outrageous option 1, to remove the House of Lords altogether from consideration of SIs. Almost as threatening to the principle of bicameral government and effective accountability, he also proposed that the House of Commons should consider annexing a greater range of SIs, not just on financial matters, to Commons-only procedures. He made this proposal, notwithstanding that scrutiny by the House of Commons of SIs is perfunctory in the extreme. In committees on SIs, all too many MPs scrutinise their Christmas cards more thoroughly than the legislation before them. If the House of Commons persistently fails to scrutinise legislation adequately, of course more responsibility falls on the Lords, and we should not shirk it. Finally, the noble Lord proposed, as a so-called compromise, statutory regulation of the relationship between the two Houses.

I dread to think what the process of legislation that the noble Lord has advocated would be like. Consideration of such a Bill would be prolonged and expansive. The House of Lords would not—surely it should not—willingly give up its present power to strike down SIs. At the very least, agreement would need to be secured on three points. The first—relatively easy to deal with, but insufficiently guaranteed in the prescription of the noble Lord, Lord Strathclyde—would be that Commons reconsideration must be genuine, with adequate time given to debate and proper explanation of the Government’s position. The second agreement that would be needed is more complex still. It would have to be agreed that statutory instruments were not to substitute for primary legislation. I agree with those noble Lords who have said that we need a Joint Committee of both Houses to review and clarify the appropriate use of SIs and the appropriate means of scrutiny of them in both Houses of Parliament.

The third, and much more difficult condition, but which is essential for the health of Parliament, would be that a limit must be placed on the Prime Minister’s power to pack the government Benches in the Lords and thus disable this House by another means. Surely we will make better progress if we apply ourselves to a renewal of the conventions rather than attempt such legislation.

It is healthy if Governments are nervous of what it is in the power of Oppositions to do. That is a strong argument for our not renouncing fatal Motions. However, it is not an argument against the development, within the conventions, of an additional power that is less devastating than a fatal Motion but less futile than a regret Motion. The precedent has now indeed been set for use by this House, on an important issue, of a delaying power where an SI is concerned. A series of reports, the latest being the report of the noble Lord, Lord Strathclyde, have proposed the formalisation of a new delaying power on SIs exercisable by the Lords. I hope Ministers will now be willing to accept that. I do not see, however, that such a power would need to be created by statute, and I see good reasons why it should not.

The kind of mature relationship that the two Houses need cannot be legislated for. As Professor Dawn Oliver says in her excellent pamphlet, Constitutional Guardians: The House of Lords, what is required in dealings between the Houses is emotional intelligence. The noble Lord, Lord Strathclyde, knows this really. He opens his report by saying, rightly:

“Conventions in parliament are a cornerstone of our Constitution”.

But he then wrings his hands and despairs of conventions any longer being able to work.

My advice to the Government, if I may be so bold, is to lighten up, and certainly to stop trying to bully this House. It is time now to restore to working relations between the Houses, and within this House, an atmosphere of tact, forbearance, proportion, mutual respect, courtesy and good sense.