House of Lords: Working Practices

Lord Norton of Louth Excerpts

Monday 12th July 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, speaking as a member of the Merits Committee, I can assure the noble Baroness that, as the Session progresses, she will find that the agenda gets considerably longer.

I very much welcome this debate and I congratulate my noble friend on initiating it. Like him, I take the term “working practices” as an all-encompassing one. Working practices exist for a purpose. My starting point therefore is to address the basic principles that should guide us in determining those practices. First, we need to establish the purpose of Parliament and the relationship between the two Houses, as several noble Lords have already said. This point is fundamental, both to the debate about the composition of this House and about its structures and procedures. Parliament is the body which calls Government to account. The Government are the body that crafts public policy and is responsible for the administration of the state, but does so within constraints imposed by Parliament. Parliament sustains the Government but it also scrutinises them to ensure that their measures, as well as their actions, are appropriate and that they justify approval. To fulfil those tasks, it needs appropriate resources. Its fulfilment of those tasks is enhanced, both in terms of effect and legitimacy, by being carried out openly and through engagement with people outside the Palace of Westminster.

The value of Parliament is maximised by having two Chambers that work in such a way as to complement one another. The difference between the two is a particular strength of our political system. The House of Commons is the body through which the Government are chosen and the body that, by virtue of being elected, constitutes the grand debating arena of the nation. It is the place where the battle between the parties is fought. MPs are returned to support their party and to argue the case for that party. Election affects fundamentally the terms of trade between the parties. The parties fight it out in the full glare of national publicity. Partisanship is intrinsic to the way the House operates. The other place, quite naturally, focuses on vote-winning exercises. Members' legitimacy in fulfilling their tasks derives from election.

This House is very different. By not being elected, there is not the same clash between the parties. By not being elected, Members do not need to achieve high profiles for the purposes of promoting their parties and their own re-election. This House can complement the other place by fulfilling tasks essential to Parliament, but tasks for which the House of Commons lacks the political will, time or sometimes the resources to fulfil.

In addressing our working practices, we thus need to recognise that we are not here to emulate or to challenge the ultimate authority of the elected House. Rather, we exist to add value by fulfilling tasks that play to our strengths and enable the other place to focus on those tasks to which it gives priority. This House complements the other place by engaging in rigorous and detailed scrutiny. The other place determines the ends of public policy and devotes some time to examining the means. This House focuses primarily on the means.

Our legitimacy for engaging in detailed examination derives from the experience and expertise of Members. I cite in aid the findings of the Ipsos MORI poll, commissioned by the Constitution Unit at University College London and carried out in 2007. The survey found that considering legislation “carefully and in detail” was ranked as very important in determining the legitimacy of the House by 73 per cent of those questioned. Having many Members who are experts in their field was also ranked as very important by a majority of respondents.

That is my first point. That establishes our core functions. If we are to fulfil our functions effectively, then we need to have appropriate structures and procedures in place. Who, though, determines those structures and procedures? How do we ensure that they remain the most appropriate? How do we review them on a regular basis?

This House does a good job in fulfilling the functions I have mentioned. We variously point out how good we are at legislative scrutiny, not least relative to the other place. We have various procedural advantages which are denied to MPs, as my noble friend Lord Strathclyde outlined. Yet in some respects we are in danger of being left behind by the other place. Public Bill Committees are now utilised by the House of Commons. Government Bills not subject to pre-legislative scrutiny are sent, after Second Reading, to evidence-taking committees. We have procedures for sending Bills to evidence-taking committees, but, as my noble friend Lord Strathclyde mentioned, very rarely use them.

We need to review our practices, but the mechanisms for doing so are rather clunky. Our means of review are occasional and reactive. Our working practices start to look a little worn and Members recognise that there may be a case for reviewing them. What happens? We have to press for a review, for example, through a Leader's Group. There is a growing recognition that we need to develop our committee structure. What happens? A Member or Members of the House write to the Liaison Committee asking it to recommend the creation of a committee. In short, we lack the means for examining what we do on a holistic and continuing basis. The Liaison Committee has recently reviewed the committee structure and generated criteria for assessment. That is a welcome development, not least given that the criteria take into account the relationship between the two Houses. However, we need to go further.

Our committee structure has developed on an ad hoc basis. We need to examine whether there are gaps that can usefully be filled by committees in this House. What cross-cutting issues receive no systematic parliamentary examination? Can our committees be reconfigured and form part of a coherent committee structure? We need a body that can engage in such reflection. Not only that, we need a body that can review the committees of this House and our working practices generally and do so on a continuing basis. We have nothing equivalent to the other place in being able to do so. Our Procedure Committee is essentially a reactive body. We need something like a permanent Leader's Group, one that comprises Members from all parts of the House, is empowered to set its own agenda and to take evidence. Then and only then can we ensure that our working practices remain effective and efficient for fulfilling our core purposes.

It is essential that we make use of this opportunity to press for such a committee and in the interim to identify those changes that will strengthen our working practices. As has been mentioned, we have the reports from the three working groups that reported at the end of the previous Parliament. I served on all three and I endorse the recommendations that they produced. They are well targeted for ensuring that this House fulfils its functions. In the time available, I wish to identify three changes relating to legislation that have been recommended and that will enable this House to play to its strengths in undertaking detailed scrutiny. In so doing, I shall reinforce some of the points already made by noble Lords.

The first is the recommendation of the working group, chaired by the noble Lord, Lord Filkin, that a committee on legislative standards be appointed to advise the House on whether a Bill meets an agreed set of criteria on legislative standards and Bill preparation. This strikes me as eminently appropriate. It fills a gap in the existing legislative process and it plays to the strengths of this House. It fits very much with what the public expect of this House. Such a committee has the potential to identify best practice and to help to raise the standard of legislation in this country.

The second relates to a Bill once it has been introduced. The Constitution Committee of your Lordships' House, in its 2004 report, Parliament and the Legislative Process, recommended that each Bill should, at some point during its passage through Parliament, be subject to examination by an evidence-taking committee. Since then, the other place has introduced Public Bill Committees. What flows from this, as recognised by the group chaired by the noble Lord, Lord Filkin, is that a government Bill starting life in this House and not subject to pre-legislative scrutiny should be referred to a temporary Select Committee. That would bring us into line with the other place.

I add one qualification. We should not preclude the possibility of following the same procedure for Bills brought from the Commons. There are problems with the Public Bill Committee procedure in the other place—not least the limited time between evidence taking and commencing consideration of amendments—and some Bills may be unduly rushed or not even be submitted to such evidence-taking.

My third point relates to post-legislative scrutiny, a point on which several noble Lords have touched. The Constitution Committee, in its 2004 report, recommended that post-legislative review be introduced and that reviews undertaken of Acts be submitted to a Joint Committee of both Houses. The Government referred the recommendation to the Law Commission. The commission endorsed the recommendation, including the creation of a Joint Committee. The Government accepted the recommendation for post-legislative review, and, as has been mentioned, most Acts are now reviewed three to five years after enactment. However, no action was taken on the proposal for a Joint Committee. The Filkin group has reiterated the case for a Joint Committee. Like the Constitution Committee, it recognises that if there is no interest in the other place in setting up a Joint Committee, this House should establish such a committee.

For the reasons I mentioned earlier, there may well be little interest in the other place in a Joint Committee. It is not politically high profile; there is no scope for partisanship and attracting votes. It again is something that would play to the strengths of your Lordships' House. It would enable post-legislative reviews to be considered in Parliament and for best practice to be identified.

It is important for such a committee to be created fairly quickly. That is for two reasons. The first is that several post-legislative reviews have already been published, including on anti-terrorism legislation and the Constitutional Reform Act 2005. The second is that, at a time of austerity, there is the danger that the Government may view suspending post-legislative review as an easy way of reducing costs. If they do, we revert to the situation where Ministers see success in terms of Royal Assent—getting a measure through—rather than in terms of the effect it has. Creating a committee on post-legislative scrutiny, which need not be particularly resource-intensive, will be a step towards improving the quality of legislation in this country. Again, it will play to the strengths of this House.

The arguments I have just outlined for a committee on post-legislative scrutiny also apply to the case for creating a committee to examine treaties—an essential step, in my view, following enactment of the Constitutional Reform and Governance Act.

There is a great deal that we can and should do to strengthen our working practices. There are clear and compelling recommendations from the three working groups. Those recommendations need to be set within a clear conceptual framework of the purpose of this House in our political system. We need to be clear as to what we are here to achieve, and we need to have in place mechanisms that enable us to keep our structures and procedures vibrant and efficient. This debate is a starting point, or at least one step on the road, to achieving that. By playing to our strengths, we deliver what the public expect of us. Let us make sure that we live up to expectations.