Procedure and Privileges

Lord Tyler Excerpts

Tuesday 13th July 2021 Lords Chamber

[Lord Tyler (LD) [V]]

My Lords, tempting as it is to dive straight into the minutiae of the committee’s report and the associated Motions, I will spend my allotted time on the wider issues facing your Lordships’ House. What is the context in which we are taking these decisions? There are two crucial issues we have to address before we get too absorbed in the detail.

First, it is not good enough simply to revert to the way we operated pre-pandemic. We were not doing a perfect job then and pretending that we were, and trying to repeat the way we operated, will not be good enough. We have a chance to do better. I will look in a little detail at one area crying out for improvement, in a moment.

Secondly, we would be foolish and myopic not to acknowledge, and welcome, the notable silver linings there have been to the awful clouds of Covid. Most significantly, the House has found new ways to communicate, engage and listen, thanks to the remarkable efforts of all those who have helped us develop technical solutions to the problems we did not have 18 months ago—as several Members have referred to. This is so obvious that I do not need to say much more on that score, but it is important that we recognise that the recommendations before us are clearly transitory, cautiously tentative and in no way future-proofed for the further technical evolution that may take place. Perhaps we will have to wait for the full restoration and renewal programme to roll out before we can begin to appreciate the potential improvement in the way that the whole of Parliament can work.

Meanwhile, there are specific issues that were not addressed effectively before the pandemic and which our current ongoing review should address. In the interests of brevity, I will concentrate on the scrutiny of secondary legislation. I know from personal experience how effective the Delegated Powers and Regulatory Reform and Secondary Legislation Scrutiny Committees are and, equally, how relatively weak and haphazard the Commons system is. But that is not where the problem lies. Despite all the meticulous examination and advice from the DPRRC and SLSC, a farcical false choice faces the House as a whole, bringing the whole process into disrepute. The current options are to approve an SI without incorporating the necessary improvements recommended by those committee colleagues, on the one hand, or to refuse point blank to do so, on the other. As a result, we hardly ever do the latter, and have to fall back on pathetic regret Motions, which Ministers blithely ignore.

Ever since the report of the 2006 Joint Committee on Conventions, whose recommendations both Houses approved in toto, there has been pressure to find more practical and positive ways forward. Should there be a middle way? Should we have an amendment possibility for SIs? Should we have a specified delay of implementation while Ministers have to consider amendment? Should we be able to have a Motion that sets out reservations and invites the Minister to reconsider, or some mixture of those alternatives? I know that the Hansard Society, the Institute for Government and the UCL Constitution Unit have been thinking through possible improvements. We should invite them to advise us, as we go forward.

Meanwhile, tinkering is not enough. Extending Grand Committee sittings from four hours to five, as suggested by the report before us today, is surely pointless if the outcome of the SI debates itself remains pointless. It is also true that the Commons would naturally need the same alterative processes. With secondary legislation, we are not in competition with them, since the proposal comes to each House directly from the Government. This is not intra-parliamentary, but a direct exchange between the Executive and the legislature. What is certain is that the experience of the last 18 months means that we cannot simply revert to previous practice.

In the 2006 committee, I recall with enthusiasm the vigorous defence of your Lordships’ House to exercise its right—indeed, responsibility—to refuse to accept inadequate SIs, notably then from the noble Lord, Lord Strathclyde, Leader of the Conservative Opposition. The clear theme was to assert that there was no point in having a second Chamber if it could not occasionally say no. I wish he had been so forthright when we were faced with clearly inappropriate secondary legislation, under both Covid and Brexit, in more recent months.

I am struck by the extent to which Members of both Houses seem to have become conditioned to accept this major fault in our scrutiny system. MPs and Peers who have arrived since December 2019 may think that this is both normal and immutable. They have known nothing else. Certainly, Henry VIII powers seem to have become dangerously habit-forming for Ministers, and all too many scrutineers, in either House, may have succumbed to that addiction too. The Leader of the House implicitly acknowledged this today.

The failure of Parliament to do its duty with the hugely significant Brexit and Covid secondary legislation, under the inevitably difficult constraints of the last 18 months, is just one of the lessons to be learned. But hoping to revert to the previous system would be insufficient and a clear dereliction of duty. There is no room for complacency. I hope all concerned acknowledge that today’s Motions, and the debate on them, comprise only a temporary and limited step towards more effective analysis of our shortcomings and opportunities for improvement.