Strathclyde Review

Lord Newby Excerpts

Thursday 17th November 2016 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness for the Statement. It came very promptly after the leak last night, and I do not think she expected to be here this morning. The decision not to proceed with legislation is warmly welcomed by your Lordships’ House, as she will have heard. I pay tribute to the noble Baroness the Leader of the House and to the noble Lord the Government Chief Whip for the way in which they have approached this issue—it is appreciated. I also put on record our thanks to the noble Lord, Lord Strathclyde, for the diligence and care he took on his report. I welcomed and enjoyed the discussions we had, although I have to say that, knowing the commitment he has shown to this House over many years, I sometimes felt his heart was not quite in it.

Although we welcome the main conclusion that there should not be legislation, we still feel that option 3 in the report is wrong, and that it misunderstands the role of this House and the constitutional position of statutory instruments, which are sent to your Lordships’ House from the Government, not from the House of Commons. This was never about the primacy of the House of Commons but about the primacy of government. We certainly welcome the fact that this has been done in the spirit of looking forward rather than of what has happened in the past, and none of us wants to rerun the old arguments. However, I want to briefly reflect on the constitutional background that led to the Strathclyde review following the votes on the tax credits statutory instrument.

That review and its recommendations were an absurd overreaction from the then Prime Minister and completely unnecessary. But perhaps it did us a great service: for one brief moment in time, statutory instruments became exciting to people who had never heard of them before. This House has an enviable and well-deserved reputation for the way in which it fulfils its duty of scrutiny of government legislation, including secondary legislation. As a House, we recognise those responsibilities but also our limitations as an unelected second Chamber. We also recognise that when it comes to secondary legislation, with our scrutiny committees and our debates, we discharge that duty with both expertise and experience.

We considered that, as a significant policy change, the tax credits proposals should have been dealt with more appropriately and properly as primary legislation. But even then, this House was reluctant to just block them and we rejected a fatal Motion. However, again in the spirit of how this House works best, we sought to find a sustainable way forward to provide the Government with greater detail on the impact of the proposals, and the time and the space to think again, reflect and reconsider. That gained support from all corners of this House and was passed. The Government reconsidered and changed the policy. That was the right and appropriate action to take.

Your Lordships’ House unanimously agreed the report of the Joint Committee on Conventions, chaired by the noble Lord, Lord Cunningham of Felling, in 2006, which said that in clearly exceptional circumstances this House retains the power to vote against and reject secondary legislation. But the significance of that power is reflected in how rarely it is used: just five times in nearly 70 years. There have been other attempts, but all have failed. That is because it must be exceptional—for example, where the primary legislation is in effect a skeleton Bill or where an SI is being used for a significant policy change, but not where secondary legislation is merely implementing the details of policy from primary legislation. That does not mean we do not challenge the Government or hold them to account but, as the report clearly says, unless there are exceptional circumstances,

“opposition parties should not use their numbers in the House of Lords to defeat an SI simply because they disagree with it”.

The tax credits votes that led to this review were exceptional. They fulfilled the criteria. It was not just a matter of disagreeing, but was completely in line with the history and conventions of this House and the Cunningham report.

The noble Baroness referred to Brexit. Over the past few weeks, there has been considerable speculation about the role of your Lordships’ House in examining Brexit. We have been clear: we will not block; we will not delay. But a Government without a plan do not have a blank cheque. Clearly this House will have an important role, especially if there is considerable secondary legislation that will need us to work together to provide effective scrutiny from all sides of the House in the public interest. I say to the noble Baroness that I hope she and her colleagues in government will see this House as an asset rather than just a challenge.

On these Benches we always considered that the Strathclyde review was evidence that the then Prime Minister, David Cameron, loathed challenge and feared scrutiny. That made life a bit difficult for us because challenge and scrutiny are what we do. However, in warmly welcoming today’s announcement, I thank the noble Baroness and the Chief Whip. I hope this heralds a new, more adult and reasonable approach to government and opposition where challenge and scrutiny are recognised as being in the public interest.

[Lord Newby (LD)]

My Lords, I thank the noble Baroness the Leader of the House both for making the Statement and for its content. I echo the words of the noble Baroness, Lady Smith, about the sensible approach that she and the Chief Whip have taken over this issue.

At the time, we regarded the Government’s response to the votes on tax credits as being a petulant overreaction. It was part of a general approach that regarded Parliament as a bit of an inconvenience, an approach sadly replicated by their view on parliamentary debates on triggering Article 50. In our view, the House was exercising its scrutiny powers within well-established rules. We rested our case on the Motion proposed by Lord Simon of Glaisdale in 1994, now enshrined in our Companion to the Standing Orders:

“That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”.

Our traditional role is to ask the Commons or, as in the case of tax credits, the Government to think again when we believe they have got it wrong. It is worth recalling that in reality, on the question of tax credits, exercising that role produced the rethink that your Lordships’ House was seeking.

The noble Lord, Lord Strathclyde, undertook his review with his customary energy and wisdom but struggled to find a way forward that was an improvement on the current position. It was extremely interesting when his report was debated in your Lordships’ House what wide agreement there was across the Benches about both the pitfalls of his preferred approach and the other things that could be done to improve secondary legislation and the way that it is scrutinised. The clearest message from that debate, which I strongly endorse, was that many of the problems with secondary legislation arise when the Government use it to implement measures that should be included in primary legislation.

There was also a widespread view in the debate that the way in which we scrutinise secondary legislation could be improved by giving some scope for rethink and amendment. Certainly, both as a party spokesperson and as a Minister, I have found debates on statutory instruments for the most part particularly sterile. Will the Government therefore be prepared to countenance further discussion about how the quality of scrutiny of SIs by your Lordships’ House could be improved? In the light of yesterday’s suggestion that the Brexit process might lead to upwards of 2,000 SIs being produced, could the Government give an assurance now that they will not abuse the SI system in future by including in statutory instruments substantial policy issues that should rightly be the subject of primary legislation?

[Baroness Evans of Bowes Park]

My Lords, I thank the noble Baroness and the noble Lord for their constructive and positive comments. I hope my future Statements may be treated with similar enthusiasm, although I fear perhaps not.

I too do not want to rerun the arguments about what happened. I want to look forward. As I have said, since being Leader I have been very taken with and impressed by the constructive way in which we have been able to work together, and I hope that will continue. However, we felt that what happened raised an issue that we needed to look at. We commissioned a review and I hope I have now been clear that the Government have decided, on the basis of considering that carefully, that we will not be legislating.

I particularly welcome the constructive comments from the noble Baroness around our approach to Brexit. I think we have seen already that noble Lords have taken a constructive approach in the debates we have had, and I am confident we will be able to continue to do so.

The noble Lord, Lord Newby, mentioned the House’s role in scrutinising SIs. It is indeed an important role. The legislation we will have from Brexit will cause us challenges. I am keen to work with Members across the House to ensure that our revising and scrutinising role can be properly undertaken and that we can do this House proud in the work we do.