Government and Parliament

Lord Wallace of Tankerness Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, like all the other contributors to this first-class debate, I congratulate the noble Baroness, Lady Smith of Basildon, on introducing this topic and on the constructive suggestions that she—and indeed many others—put forward. The debate will repay reading in the days and weeks ahead.

As so many contributors have indicated, a delicate balance lies at the heart of our constitution: the balance of power between the Executive and Parliament. It is important that we are always on our guard to make sure that the balance does not tip too far in one direction—in favour of the Executive and to the detriment of Parliament.

For Liberal Democrats, the distribution of political power is an issue of prime importance. The belief is in our DNA that, ultimately, sovereignty rests with the people, and that authority in a democracy derives from the people. These beliefs point to a strong democratic process with a just and representative system of government and effective parliamentary institutions, with decisions being taken at the lowest practical level possible.

A key role of Parliament in a parliamentary democracy is to hold the Government of the day to account. That applies to both Chambers. We do this by Questions, by challenging the Executive’s policies and actions and by requiring Ministers and senior officials to account publicly and in person for their decisions.

I agree with the noble Lord, Lord Norton of Louth, that there have been a number of positive developments in recent years, both here and in the House of Commons, to improve the balance between Executive and the legislature. There have been changes in the House of Commons following the recommendations of the Wright committee, the new arrangements for Select Committees and the establishment of the Backbench Business Committee. In your Lordships’ House, there has been the introduction of the ad hoc Select Committees which allow us to investigate current issues facing the country in an in-depth and timely manner, and the practice of reserving one of those committees to conduct post-legislative scrutiny, which ensures a more regularised system for evaluating how well an Act of Parliament is working. Added to that, we have topical Questions for Short Debate, for which more time has been made available and perhaps still more could be.

But there is still some distance to go on the path to reform. At the heart of the challenge before us is the capacity of Parliament effectively to scrutinise the volume of legislation that is routinely presented by the Government of the day. The noble Lord, Lord Cunningham, mentioned the paper which was circulated to a number of us by Mr Daniel Greenberg, in which he indicates that between 1960 and 1965 the average number of clauses in a new Act was 24, but between 2010 and 2015 the average number of clauses in a new Act had risen to 49. There has not been an equivalent increase in the amount of parliamentary time devoted to scrutinising them. The paper further points out that in the 1960 annual volume of Public General Acts there were 1,200 A5 pages, whereas in 2010 the same document had grown to 2,700 A4 pages. That is quite a significant increase.

The noble Baroness, Lady Smith, quoted from the recent report of the Constitution Committee, chaired by the noble Lord, Lord Lang of Monkton, which stated that,

“the nature of the instruments has also changed. Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature”.

Examples have been given of Bills in the previous Session and in this Session where that has been case, and it was particularly graphically illustrated by the Housing and Planning Act, cited by both the noble Baroness, Lady Hollis, and the noble Lord, Lord Campbell-Savours.

If an increasing amount of legislation is being presented to Parliament, and more policies are being implemented by way of statutory instruments instead of primary legislation, there must be a concern as to whether Parliament has the capacity to cope and to perform its role effectively and efficiently. The result is that government can pass legislative proposals with greater ease and less scrutiny—and that problem is compounded if a Bill is inadequate. Much emphasis in the debate was placed on the importance of having impact assessments on time and on having draft regulations and codes of practice.

Another paragraph in the document from Mr Greenberg caught my eye. It is not just in secondary legislation that much detail is found. Mr Greenberg wrote:

“Another rule of law issue of concern to many is the enormous growth since around 2000 of the use of powers to make quasi-legislation in the form of guidance, codes, schemes and other instruments which have legislative effect but are not given the formality of scrutiny associated with subordinate legislation. They are not published on the National Archives legislation site, and although in principle published on the government’s central website they can be difficult or impossible to find, even if one knows of their existence”.

So there is a whole tranche of regulation or sub-regulation which Parliament barely gets an opportunity to look at.

I have mentioned before how this House has updated its procedures and practice to try to deal with the onslaught of more and more delegated legislation. It is widely agreed across your Lordships’ House that the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee provide us with an invaluable service in the work they carry out on the meaningful scrutiny of statutory instruments. This is something that the other place might wish to emulate.

The noble Lord, Lord Cunningham, was right to say that the conclusions of the Joint Committee he chaired were endorsed by the Liberal Democrats. My noble friend Lord McNally served on that committee. It concluded that the House of Lords should not regularly reject statutory instruments but that in exceptional circumstances it might be appropriate for it to do so. To roll back from that in any way would be a dilution not only of the power of your Lordships’ House but of the power of Parliament.

It is against that context that we look at the recommendations proposed by the review conducted by the noble Lord, Lord Strathclyde. It has not had a great press from the various influential committees of your Lordships’ House which have reported on it, or from the Public Administration and Constitutional Affairs Committee of the House of Commons, as has been said.

The common view was best summed up by the noble Lord, Lord Norton of Louth, who, in the Lords of the Blog on 23 March, said:

“Lord Strathclyde’s review is not some minor technical report—it is actually quite dangerous in seeking to constrain the capacity of Parliament to call government to account”.

The House of Commons committee, which has been referred to, said:

“The Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives and in building better relations with the other groupings in the House of Lords”.

We should not consider any actions that diminish the impact of Parliament’s scrutiny function of the Executive. Instead, both Houses of Parliament should examine better ways in which we can work together to achieve a more comprehensive, informed and effective scrutiny of the Government’s legislation and actions. We continue to reject the notion that any Government achieving a majority in the House of Commons should have an absolute power to prosecute their business without the proper burden of checks and balances. As the noble Baroness, Lady Smith of Basildon, said, the Government of the day are not always right about everything and at all times.

We should not confuse the primacy of the House of Commons with the primacy of the Executive—there is an important distinction to be made there. It is incumbent on Parliament, therefore, not just to fight against moves to weaken our ability to hold the Executive to account but to try to find new ways in which we can improve our procedures. There have been some good suggestions today. The pause button referred to by the noble Baroness, Lady Hollis, is worthy of examination.

My noble friend Lady Smith of Newham drew attention to the fact that the House of Commons has passed resolutions which the Government have done nothing about. We should perhaps examine that issue. The committees of the Scottish Parliament can be the sponsors of legislation. Mr Greenberg suggests that there should be an annual debate. Every Act when it is passed should have something attached to it indicating how much scrutiny it received. If the Government had to debate it annually, it might make Ministers think before they act.

The noble and learned Lord, Lord Judge, asked how long we can go on talking. There has been some worthwhile talking today but I take his point that it may be time for action. There have been many good ideas in the debate. I hope that the Leader of the House will respond in the constructive spirit in which noble Lords have contributed, because what is needed is a willingness to seize the initiative.