Queen’s Speech

Lord Richard Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Richard (Lab)]

My Lords, the trouble with these debates is that you hear about so many issues that you would like to pursue. You have five minutes and a speech in your hand, and you wonder whether you should throw it away to pursue the issues you have been listening to or deliver the speech. I am going to say only two or three things about the issues I have been listening to. I note with great interest from the noble Lord, Lord Faulks, that we are not going to have a Bill on repealing the Human Rights Act; rather, we will have proposals that no doubt will have to be consulted on and that no doubt the Government will have to consider after the consultation, and then eventually at some stage in the indefinite future they will tell us what they have in mind.

I was also tempted to pursue the arguments put forward by the noble Lord, Lord Wakeham. He said that it is important that Governments should get their way on delegated legislation. That is obviously true, but on the other hand it is also obviously true that Governments should not use delegated legislation where they ought to use primary legislation. If the Government continue to produce skeleton Bills, they should not be too surprised about the vigour with which this House then approaches the regulations made under them.

I am indebted to the noble Lord, Lord Lisvane, for pricking my curiosity about the issue around the assertion of financial privilege by the House of Commons in response to an amendment by the House of Lords to a Bill which on the face of the amendment does not directly raise an issue of finance. It seems that too often in recent years financial privilege has been claimed by the Commons in respect of matters which are not particularly financial but, rather, are matters of general policy. It is time that we had a joint and open discussion on this procedure.

Financial privilege seems to go back to a resolution of 1671 which stated,

“that in all aids given to the King by the Commons, the rate or tax ought not to be altered by the Lords”,

and was followed by a further resolution of 1678 which restated,

“the undoubted and sole right of the Commons”,

to deal with all Bills of “aids and supplies”. That is fairly clear. Erskine May has now elevated these strange little principles to this:

“The Commons’ claim to sole rights in respect of financial legislation applies indivisibly to public expenditure and to the raising of revenue to meet that expenditure ... The Commons treat as a breach of privilege by the Lords not merely the imposition or increase of such a charge but also any alteration, whether by increase or reduction, of its amount or of its duration, mode of assessment, levy, collection, appropriation or management”—

in other words, just about everything, except in relation to money Bills, where the issue is perfectly clear because they are covered by the Parliament Act 1911. It is when the Commons uses financial privilege to reject a Lords amendment on policy grounds that the difficulties arise.

Prima facie, almost every Bill that comes to the Lords and therefore almost every amendment made by the Lords is capable of attracting a claim for financial privilege. I was interested in the procedures for this down at the other end. As the noble Lord, Lord Lisvane, said recently, it is important to realise that financial privilege operates on something of a hair trigger; we do not need very much to engage it. As I understand it, it is for the Clerk of Legislation in the Commons to take the decision as to whether an amendment coming from the Lords has a financial effect. This is normally fairly straightforward. The Speaker is not directly involved at that stage, and nor indeed are the Government of the day, but where they do become involved is in deciding whether the Commons should waive that financial privilege. In many cases it does, and the Lords amendment is then considered on its merits. What worries me about this is that it is very much a matter for the Government to decide whether an amendment should be stifled or allowed to breathe.

Two considerations flow from this. The first is whether the Clerk of Legislation is the appropriate authority to decide whether financial privilege is involved and, if so, by what criteria he should act. Secondly, surely there is too much power in the hands of Governments to decide which amendments they will permit to go forward for further consideration. It means that a Government can pick and choose which amendments they wish to strangle and which will be allowed to live. I really do not think that this is satisfactory. It is time that both Houses got together to try to decide the scope of financial privilege and whether the existing procedures of claiming and waiving it are the best that can be devised. I urge the Government to consider setting up some kind of joint mechanism of both Houses to consider this matter. The present position is beginning to create irritation and frustration in the Lords and, dare one say it, a tinge of arrogance on the part of the Government in the House of Commons. We should be doing something to put this right lest it get really out of hand.