Government and Parliament

Lord Richard Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Strathclyde (Con)]

My Lords, this is an excellent Motion to debate and I am delighted that the noble Baroness has brought it forward. It is also an excellent time to have the debate. A year on into a Conservative Government and a new Parliament, with four years to go, it is an opportunity for us to consider and reflect on how Parliament and the Executive operate and on the quality of legislation. In raising these important issues, the Leader of the Opposition has fulfilled her constitutional duty. During the course of her speech, I could not help thinking how much I agreed with her and how I could have made a similar speech from where she is sitting and from where my noble friend the Leader of the House is sitting, too, because these are universal ideals.

I do not detect a concerted or co-ordinated attempt by this Government to circumvent scrutiny by either House of Parliament and there is no evidence to say that there is. However, we should take seriously the natural instincts of all Governments to make their lives a little easier. You do not have to look back far in history to know that the Government of Tony Blair and Gordon Brown, under the guise of modernisation, brought in deferred Divisions, sofa government to avoid Cabinet government, and guillotines as a matter of course. This was all in order to make the life of the Government a little easier.

Of course we should have more thought-through policy before it comes to Parliament and we should demand better drafted and more understandable Bills. I have still not got to the bottom of why Bills drafted today are so much more complicated than they were 20 or 30 years ago.

Of course Governments can ask for—and should be given—order-making powers for all the reasons that we understand, but they should be clearly expressed and, where possible, published in draft. I would be in favour, if one were proposed, of a committee to look at the drafting of legislation and perhaps take evidence from the First Parliamentary Counsel on the department in question’s resources, its drafting guidelines and so on. I hope the Government would support that.

The noble Baroness raised the issue of what happened towards the end of the last Session of Parliament. At one point, with a few weeks to go, it looked as if we were heading for a great legislative car crash. However, the reverse happened—there was wisdom. This not only requires sensible Ministers but a sensible Opposition to reach a compromise. If, however, we have to agree to disagree, we should do so and not push it any further. That is a proper constitutional role for the House of Lords which is well understood. Yet, in the last Session of Parliament the Government were defeated in more than half the votes—53%—in this House. That just sounds like too many, and I hope the noble Baroness will take her Chief Whip and Deputy Chief Whip to one side and suggest to them that that was overkill. With that sort of record it is hardly surprising that, as the noble Baroness asserts, my right honourable friend the Prime Minister is thinking of stacking our Benches with more Conservative Peers. I suggest that they focus a little more on their votes rather than the broad-brush approach which they have tried so far.

[Lord Richard (Lab)]

I thank the noble Lord for giving way. He will remember from the position he then held and I remember from the position I then held that during the whole of the period of the Labour Government from 1997 onwards, not only did we never have a majority in this House, but for most of that time we were not even the largest single party here; his party was. The voting records of those Parliaments show that the average number of defeats of Labour Governments was somewhere between 40% and 50%, which is not very different from what he is complaining about now. I did not hear him complaining about the position then.

[Lord Strathclyde]

My Lords, I am sorry that the noble Lord made that last point because when he looks back at the figures, I think he will find that the average during that period when we were in opposition was around a third. No doubt the noble Baroness the Leader of the House will be able to put me right if I am wrong on that.

The other argument that is made by many is that we have been faced with a tsunami of secondary legislation, and yet the figures which have just been published demonstrate that in the last Session of Parliament we had the fewest statutory instruments since the 1996-97 Session. Last October I was invited to conduct a review. Some thought that I was reforming the whole of the House of Lords—I hasten to add that I was not. Some thought that I was recasting all secondary legislation, but I was not. I was dealing with a small point about how we agree statutory instruments in this House, and seeing if there is a better way. Since then there have been four parliamentary committees, three in this House and one in another place, all pretty much castigating my humble suggestion but none of them coming up with an alternative. That said to me that they had misunderstood the fundamental problem we face in how to agree statutory instruments in this House, and that they had misunderstood the uncertainty of the status quo.

As practically every child knows, the House of Lords is here to revise and to scrutinise, but it does not block legislation. If it does, there are the Parliament Acts which give the House of Commons the power to overrule this House. This does not apply to statutory instruments. Why not? The first question is this: should we retain our veto? I answered no.

As far back as 1968, my noble friend Lord Carrington asserted that we should not defeat statutory instruments. In his royal commission my noble friend Lord Wakeham built on that theme, and again, I believe that he did so by giving us a little more flesh on the bones of my Motion. What I took into account were those who said that the regret Motions we now have are not enough. Far from clipping the wings of the House of Lords, my suggestion was for a new power and a new ability for this House to demand that a Minister in the House of Commons come to the Dispatch Box, explain why the House of Lords is wrong, and if the House of Commons then reaffirms the original order, we should step back. I still think that that is the right way forward.

I hope the Government will respond shortly not just to my report but to the others. There may be room for an agreement with the Leader of the Opposition, but if there cannot be an agreement, I can see that in order to clarify the situation, there will have to be legislation. I am sure that I am not alone in regretting that.

--- Later in debate ---

[Lord Richard]

My Lords, I agree with a large part of the speech that the noble Lord, Lord Lang, just delivered. It is interesting the way in which this debate is developing. There seems to be a genuinely cross-party approach to what is clearly a major problem. That is a good thing. I congratulate my noble friend the Leader of the Opposition on bringing this subject forward at this stage. When I saw it on the Order Paper I thought it would be a rerun of what we debated on the Queen’s Speech—as somebody said, déjà vu all over again. It could have been, but listening to the debate it has taken a different tack.

Before I turn to the Strathclyde review, I will just put some of this argument into historical context. It is interesting to look at the figures on defeats of delegated legislation. In the calendar years from 1950 to 2015 there were five government defeats on fatal Motions. The first was in 1968 against the Labour Government, there were two against the Labour Government in 2000, one in 2007 again against the Labour Government, and one in 2012 against the coalition Government. My arithmetic seems to indicate that that is 4:1. In the same period, there were 27 non-fatal Motions. There was one in 1977 and one in 1978, both against the Labour Government. One in 1983 was against the Conservatives. One in 1985, one in 1992, two in 1993 and one in 1995 were all against Conservative Governments. Then the great change happens. There was one in 1998, four in 2003, two in 2005, one in 2007, three in 2009 and three in 2010, all against Labour Governments. Again, if you add it up, there were 11 non-fatal Motions against Conservative and coalition Governments and 16 against Labour Governments. In addition there was a government defeat on a Motion moved by the noble Baroness, Lady Hanham, on 13 July 2009. Whether the Motions were fatal or non-fatal, the vast majority have come from the Conservative side of this House and not the Labour side. Almost all of them came, too, at a time when the Labour Party was in the distinct minority here in the House of Lords. Indeed, for a large part of that time, we were not even the largest single party. So let us have no more of this nonsense about the Labour Party being more rigorous or awkward in the way it approaches statutory instruments. That is not true. The facts lead precisely in the opposite direction.

Faced with that, we should put the Strathclyde proposals in a rather more severe context. I repeat what I have said in this House before—it has been repeated today—that the only justification for removing the power to defeat a statutory instrument here is that the Government then legislate in a proper way. By that, I mean that they use primary legislation for dealing with matters of policy and use statutory instruments for what they were designed for: the implementation of that policy. You cannot expect this House to remain silent in the face of legislation such as the recent housing Bill. If the Government insist on sending up skeleton legislation with enormous discretion given to Ministers as to how to put the flesh on the bones, this House cannot be expected to sit down and let that happen. That would be a clear breach of the spirit if not the terms of the Parliament Act.

Of course, that Act gives the Government the authority to disregard the views of the House of Lords in relation to primary legislation but not to secondary legislation. An attempt to use that distinction to evade the possibility of constitutional delay by this House would be a distortion of the existing constitutional arrangements between the two Houses. Nor should it be forgotten that this argument is really not about the Commons versus the Lords; it is about the Government versus Parliament. On this issue, the views of the House of Lords really cannot be disregarded.

One thing that has emerged in this debate is that there is a consciousness here of a very real problem in the quality of legislation as it leaves the House of Commons and comes up to your Lordships’ House, in the fact that it is not properly scrutinised in the House of Commons, and in that the drafting these days seems to be much less precise and cogent than it was years ago. Many years ago, in the late 1960s and early 1970s I sat on a committee. I have the same sort of memory as the noble Lord, Lord Butler. The committee was chaired by—I cannot remember his name, but it was a committee on drafting legislation. Ah, it was chaired by Lord Renton. We sat for a long time, took a great deal of evidence, heard from parliamentary draftsmen and heaven knows who else, and produced an erudite report asking for certain things to happen. Of course, none of it has taken place and that was nearly 50 years ago.

I am not optimistic that another such committee would produce more fruitful or rapid results but I am certain that such a committee ought to be set up. Given the quality of the legislation as it comes up from the House of Commons to this House, the way in which the Government now use statutory instruments rather than primary legislation, and the way in which that claim of financial privilege is used by the Government, there are issues here that deserve full consideration, and on a cross-party basis. I agree with my noble friend Lord Cunningham that there is no reason at all why this should not start up here. We do not need to wait for the House of Commons to do this. A committee of your Lordships’ House considering this matter would be a very good start. I hope that when the Minister comes to reply she will deal with this. I raised it in the debate on the Queen’s Speech but, notably, it was totally not dealt with. Perhaps today will be better.