House of Lords: Working Practices

Lord Phillips of Sudbury Excerpts

Monday 12th July 2010 Lords Chamber

[Baroness Hamwee]

My Lords, one of our new colleagues asked me last week how it was that the House was self-regulating when there were so many things that he could not do. That led us to talk about self-regulation starting one step back from day-to-day procedures but it being important that the process should take the House with it when agreeing what our procedures and rules should be. Like the noble Lord, Lord Cope, I have been thinking about some of the things that Lord Russell used to talk about. He felt strongly that if we had a Speaker with a role similar to that of the Speaker in the Commons, we would all rapidly begin to behave rather badly. We would push at the boundaries and wait to be pulled back, and our behaviour would worsen significantly.

[Lord Phillips of Sudbury]

Hear, hear.

[Baroness Hamwee]

I do not know whether my noble friend’s “Hear, hear” was a comment on the rest of us or himself.

There has been a band of brothers and sisters working energetically on these issues, many of whom are speaking in this debate and are to be congratulated. I should like to speak mostly about the “what”—what we do—rather than the “how”, but it is time to review the role and remit of the Lord Speaker, because if we do not do that now, it will be some time before we can do it. We are coming to the end of the first term of the Lord Speakership. I doubt that its role and remit will make it into the manifesto of candidates in future campaigns for the Lord Speakership or that the House would welcome that. We would not be comfortable turning the election of an individual into a referendum on the role.

Four years ago, we resolved to elect our own “presiding officer”—that was the term. The outside world and many inside the House would expect a presiding officer to have more of a role within the Chamber. Self-regulation has meant that Question Time, for instance, has become quite a noisy affair, as other noble Lords have mentioned, and the logic of the government Front Bench rather than the presiding officer acting as the traffic warden is not obvious to everyone. If we are to look at the role of the Lord Speaker, some changes to the role of the Deputy Speakers would naturally follow, but, as the governance group identified, there is scope for the development of their roles, and what was once a logical distribution of work between the Chairman of Committees and the Deputy Speakers may no longer apply.

Huge strides have been made, many at the instigation and under the guidance of the Lord Speaker, in demystifying the work of the House. One of our guiding principles—this was very much the thrust of the speech of the noble Baroness, Lady Jones—should be not just transparency but intelligibility and accessibility. Democracy demands this. At a time of reform, there is a danger in being seen as having our gaze fixed on our collective navel, and we should be aware of what the public expect and want—although I am aware that they are not one homogeneous entity. Much of this comes down to common sense.

One thing that most people would expect of any organisation is that it reviews and evaluates what it has done to help it in future. That is why I am keen to see a development of the scrutiny of legislation both before and after its enactment. I declare an interest as a co-president of the Centre for Public Scrutiny. Most of us are alert to this House being complementary to the House of Commons—and we are all spelling “complementary” with an “e” this evening. This House is particularly suited to undertaking the work that many noble Lords have described. Parliament has a role that is distinct from government. I am perhaps the first this afternoon to say that we have a coalition Government, not a coalition Parliament. It is inevitable that Back-Benchers on the government side will be teased if we say anything mildly critical of the Government, but I have never seen scrutiny as equivalent to opposition. If you are on the government side, you hope to be a critical friend. Friends and opponents working together can do a very good job of scrutiny. Both want to test a proposal; the opponents because they want to show that it will not work, the friends because they want to ensure that it will. That was an observation that I gleaned fairly early on when I was chair of the London Assembly, the main job of which is scrutiny of the executive in London.

I hope that we will be able to extend our pre-legislative scrutiny. Once we in this House get stuck into a Bill that has had only partial attention in the Commons, we can be like terriers; but by this stage—and this applies also if the Bill has started here—Ministers are defending rather than debating. Positions are polarised, and that is not a good basis for taking forward a discussion. It might be easier for the Government, which is one reason why Parliament and not the Government should determine which Bills are presented in draft. Pre-legislative and post-legislative scrutiny are part of the same process, each building on the other. Identifying how legislation might have been better should feed in to improving it in future. It is a frequent complaint that Government do not let legislation settle down before introducing the next tranche. The noble Lord, Lord Luce, referred at the start of the debate to the quantity of legislation. Teachers, school governors and LEAs have been wearied by 33 education Acts in the past 26 years. Health has had 35, criminal justice 108 and the constitution 123. I am not arguing that these were all bad, but neither were they all good.

The noble Baroness, Lady Royall, mentioned the Digital Economy Act. We all have our candidates for post-legislative scrutiny. Freedom of information and data protection might well be high on the list, because the world that they were addressing has changed technically and politically. The previous Government committed themselves to reviewing legislation after three years. As I understand it, the current Government intend to continue this. I am not sure whether this refers to three years after enactment or after commencement. What might come out of post-legislative work could be the flushing out of the number of Acts and sections within Acts that are not in effect. It is very confusing—again I am taking the point of view of a member of the public—for those who need to know day-to-day what sections are actually implemented. My noble friend Lady Thomas of Winchester, who is the new chair of the Delegated Powers Committee, would have made that point had she been able to be here this evening. Review by the Government is not the same as scrutiny. It is not a substitute for cross-party consideration of the operation of legislation, hearing from stakeholders, questioning Ministers, considering whether the legislation is fulfilling its purpose and whether the costs, risks and benefits were properly and accurately identified.

As I have said, this Chamber is complementary to the House of Commons. Our work could be done in conjunction with the House of Commons, or, if the Commons is not inclined to do this, separately, being mindful of what the Commons does not find time for. There is a case for a committee separate from the Commons Select Committees, because a specialised committee could develop expertise and perhaps be in a better position to disseminate best practice across the board. I am not arguing that every Bill should go through the process. We need to find the right balance. The workload is not negligible, and nor are the resources needed, but I hope that the Leader’s Group will look at the mechanisms available and perhaps, as a first step, undertake a scoping exercise.

I am lucky enough to have been appointed recently to the Merits of Statutory Instruments Committee. Not everyone would say that was luck, and the size of the first agenda was a facer. However, as a Member of the House who has taken advantage of the committee's work in the past and who is now a member of the committee, I endorse it. Requiring both Ministers and civil servants to justify secondary legislation should lead to better practice. With around 1,100 statutory instruments a year, we need formal, structured attention, not a haphazard response relying on luck rather than management. In the short time that I have been a member of the committee, I have been very impressed by the workload carried by those officials who support the committee and who do a lot of thinking for us. It takes particular skill to give a critique while remaining on good terms with those you are critiquing, in this case the departments. However, they manage to carry through work that reflects the joint approach that we want to operate properly within our terms, even if we do not share policy objectives. There is a case for post-legislative scrutiny, including post-implementation reviews of statutory instruments.

None of this is groundbreaking: it is common sense and what the public expect. It should not be seen as threatening what is good about the way in which we work. If the message is to be got over, we will also need to work with the media. When I have said this before, in effect the comment has been, “steady on”; but they are part of the way in which our democracy operates. What is common sense but also novel in the UK Parliament, though not in other parts of our constitution, are procedures that recognise the changed political configurations within the Chamber. The public pretty much support political parties working together, as two of us now are, but they also expect us calmly to tweak the procedures to fit the new reality. I take issue briefly with the noble Baroness, Lady Royall, who referred to an inbuilt government majority. That is not the case—I will not say “unhappily not the case”. The first vote of the Session made that clear.

Scrutiny is not a second-class activity: good government needs good scrutiny. I congratulate those who have done so much work. There is a lot more that could be said, but I will regulate myself and say simply that I hope that the House can do justice to all the work that has already been done.