Health and Social Care Bill

Lord Strathclyde Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am sure that at Report on the Bill there will be issues which relate, however indirectly, to the finances of the National Health Service. Perhaps I may ask the Leader of the House whether the Government could give an indication of the procedural implications for this House on the Welfare Reform Bill following a Statement on financial privilege by the Minister earlier today in the other place.

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I thank the noble Lord for his kind invitation for some procedural advice. We will be dealing with the Welfare Reform Bill when it comes back from another place. I should say that matters for privilege are not a matter for the Government but a matter for the House of Commons and the Speaker of the House of Commons on advice from his clerks. The position of privilege has of course been jealously guarded by the House of Commons since 1671. It is well precedented and there is nothing unusual, although the second Chamber might always think that the Commons using financial privilege is a little unfair.

We will get to that Bill in due course. I cannot comment on the Health and Social Care Bill, which is of course the subject of the Motion before us now, as to what the Government’s attitude will be on defeats. But, as I said earlier, there is nothing unusual about financial privilege being prayed in aid. Since there are many former Members of another place present in this House I am sure that they will readily understand.

[Lord Grocott]

My Lords, the Leader of the House has given us a proper and guarded answer to quite a difficult question. However, does he not agree that this encapsulates the kind of problem which needs to be resolved before we have a directly elected second Chamber? It goes to the heart of one of the issues that has been accepted as the norm by both Houses for many decades but which would undoubtedly be challenged time and again in the event of a directly elected House. I do not expect the noble Lord to give an immediate answer now—he will give a guarded response—but can I try to be helpful and suggest that this is the kind of issue which the committee of my noble friend Lord Richard should look at, and that that may involve an extension of the period of time the committee needs to consider it? But it is clearly issues like this—alongside, in relation to an Oral Question taken earlier, issues like the impact of a referendum in Scotland—which need to be considered by the Joint Committee before we proceed any further.

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[Baroness Hollis of Heigham]

My Lords, perhaps I may ask a question of the noble Lord, Lord Strathclyde. I ask him as the Leader of the whole House—which I know he is very mindful and respectful of—and not just as the leader of a government coalition party. Whenever we deal with a social security Bill—apart from turning negative regulations into affirmative regulations—that almost inevitably involves expenditure, either increasing it or reducing it. That may also apply to health Bills and transport Bills. If, on any choosing of the Speaker and one of the noble Lord’s right honourable friends at the other end in a position of authority, the claim can be made that that is financial privilege—this is before the Speaker has even ruled on it, so clearly there is a government view so far as I can tell; I stand to be corrected—and if any Bill involving any element of expenditure, including on welfare, pensions, health and education, can at the fiat of the House of Commons be ruled as money and therefore privilege, then, taking the noble Lord’s statement that this House is a part-time House, it will become a very part-time House indeed because we might as well go home.

[Lord Strathclyde]

My Lords, let me deal with the two questions put by the noble Baroness, Lady Hollis, and the noble Lord, Lord Grocott. My noble friend Lord Howe, who is an expert on these matters, will respond to the noble Lord, Lord Campbell-Savours. In response to the noble Baroness, as I said earlier, this is a matter for the House of Commons; it is not a matter for me. It is the Speaker who takes a view on the advice of the clerks. I would not be at all surprised if they had had a discussion with the Government, but there is nothing new in any of this. No procedure has changed and no substantive law or practice has done so. It is perfectly possible for this House to suggest and recommend changes to Bills over a whole range of issues, no doubt including financial ones. How the House of Commons deals with those is a matter for that House.

I thought that the points made by the noble Lord, Lord Grocott, were precisely the kind of points that he might make if a “reform of the second Chamber” Bill were brought forward. I would not dream of trespassing on matters which are the preserve of the noble Lord, Lord Richard, and his Joint Committee. I am sure that they will have taken account of what the noble Lord said.

[Lord Hunt of Kings Heath]

I thank the noble Lord, Lord Strathclyde. Perhaps I may come back to a point he raised. I am sure that the procedure was followed appropriately in the other place and I assume that the Government made application to the Speaker. The question is whether it was wise for the Government to use this process in this place, because, essentially, they are hiding behind parliamentary procedure to curtail consideration of the amendments that your Lordships passed on the Welfare Reform Bill. In essence, my noble friend has put it absolutely right: if the Government continue to do this on these Bills, our role as a revising Chamber is effectively undermined.

[Lord Strathclyde]

I simply disagree with the noble Lord. This situation has existed for 350 years. It was as though the noble Lord were suggesting that the Government had found some new ploy to stop the will of the House of Lords. I think that the noble Lord, Lord Grocott, will agree that we are an unelected House. The House of Commons is an elected House. It has protected its financial privilege since 1671. Nothing has changed for the debates that we will no doubt have on the health Bill and the welfare Bill.

[Lord Mackay of Clashfern]

I wish to question the timing of such a decision on the part of the Speaker. It seems somewhat of a waste of time if your Lordships debate provisions which turn out to be completely sacrosanct because of the decision on privilege made at the other end. The expense involved in your Lordships coming here and taking part seems a waste of taxpayers’ money at a time of considerable austerity if the whole procedure is useless. I suggest that the timing of such decisions needs to be looked at.

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[Lord Elton]

Would my noble friend enlighten me? I think I know the answer to this, but I may well be wrong: the more an amendment changes the volume of money in issue, the more likely a Bill is to become a money Bill. If that is the case, we all know where we are: it is just a question of how high the bar is.

[Lord Strathclyde]

My Lords, I am rapidly becoming an expert on privilege, which I was not expecting a few moments ago. I am grateful to the noble Lord, Lord Martin of Springburn, because he explained with his experience the process of deciding privilege in another place, which I repeat is not a matter for me as a member of the Government. Nor is it a matter for the Government or a Member of this House. It is something that has been jealously guarded by the House of Commons for many years.

My noble and learned friend Lord Mackay, the noble Lord, Lord Rooker, and indeed the noble Baroness, Lady Hollis, raise the same question, which is how we could be pre-warned. I am not sure how that process could take place because we do not know what the Government will lose or what amendments the House of Lords will press to a Division. I dare say that we could. I am thinking as I am speaking, which is always a dangerous thing to do from the Dispatch Box, about a system where amendments might be deemed to be likely to invoke privilege by the House of Commons. But I suspect we can probably do that ourselves. Maybe my noble friend Lord Elton was correct in saying that amendments that mean a substantial increase in expenditure of public spending are more likely to invoke privilege than those that do not. Perhaps that is the way to go.

I wonder if we are profiting in continuing this debate now. Would it not be better to wait until the Welfare Reform Bill returns from the House of Commons with its amendments to see if privilege has been invoked? There is then a well trodden process in this House. I do not think that the House wastes its time by debating the issues. We do not insist on all the amendments that we pass in this House. We sent them back to the House of Commons to get the Government and the House of Commons to think again. If they have thought again and invoked financial privilege, we should let the matter rest.

[Lord Hughes of Woodside]

My Lords, I have listened to the noble Lords, Lord Martin of Springburn and the Leader of the House. They both claim, each in their different way, that this is a wholly independent procedure. Are we really to believe that one morning the Speaker gets up and says, “Eureka, I’m going to decide whether this is financial privilege or not”? Who initiates the process? It is hard to believe there was not a nudge and a wink from the Government to try to save their own blushes.

[Lord Howarth of Newport]

My Lords, is not the reality that when the Government have run out of arguments and patience they ask the Speaker if he will invoke financial privilege? They cross their fingers and hope that he will do so. Do this Government actually want the House of Lords to operate as a revising Chamber or not?

[Lord Strathclyde]

I do find it faintly comical that former Members of the House of the Commons, who would have died in a ditch to preserve and protect financial privilege, decide to take a completely different view as soon as they are translated into Members of this House. I said earlier that surely the time for us to have this debate is when we are faced with the facts of the Bill, with the amendments from the House of Commons. We will have the benefit of seeing the debate that is taking place in the House of Commons as we speak. Would that not be a better way of proceeding? I very much hope that we will be able to pass this Motion from my noble friend Lord Howe, unless he wishes to add anything to the questions that were put to him.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, perhaps I could address the question posed by the noble Lord, Lord Campbell-Savours, about my department’s risk register. When I last spoke to the House on this matter, I promised to use my best endeavours to ensure that the appeal hearing on the matter of the risk register took place at the earliest possible date. As a result of discussions between my department and the tribunal that will hear the Government’s appeal, that date was brought forward from the one that I originally announced to 5 and 6 March. I believe that is a welcome development. The outcome of the appeal will not be known until a few days after that. It is of course a matter for the tribunal.

As regards the timing of Third Reading, the noble Lord will know that it is a matter for the usual channels in this House. I am aware that there is a Motion in the name of the noble Lord, Lord Owen, which invites the House to consider the matter of the department’s risk register before the House goes into Third Reading on the Bill. I suggest that once the timing of the appeal outcome and of Third Reading are known, it would be appropriate to revisit this question. However, it is perhaps a little early to decide now quite what the best order of events should be.