Strathclyde Review — Motion to Take Note

Part of the debate – in the House of Lords at 6:32 pm on 13th January 2016.

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Photo of Lord Cunningham of Felling Lord Cunningham of Felling Labour 6:32 pm, 13th January 2016

My Lords, first, I apologise for the state of my voice. Secondly, as the first speaker from this side of the House to follow the incisive and commanding maiden speech of my noble friend Lord Darling, I think I speak for the whole House when I say that we look forward to hearing him on many more occasions.

I begin by quoting from the preface of the report of the noble Lord, Lord Strathclyde, in which he states:

“Conventions exist because they provide a basis for orderly government. They will survive only so long as there is a continued understanding of why they were originally brought into being. But when they go, Parliament and the people we serve will, I believe, come to miss their value”.

Yet he goes on to recommend just that—the abolition of the convention—in his report. I make it clear to your Lordships’ House that statutory obligations are not the same as conventions; they are entirely different. Therefore, the convention would go if the only one of the recommendations of the noble Lord, Lord Strathclyde, worth considering—that is the third one: I do not think the other two are worth considering at all—were enacted just as it stands, and we would be left in almost as big a morass of uncertainty as, apparently, some people claim we are now. I am sure that none of us wants that.

The noble Lord, Lord Strathclyde, has adopted many different positions on the convention. In 1999, he declared that it was deceased. He said that the convention on statutory instruments was dead. By 2005, he had given it the kiss of life, and said that it had been,

“surprisingly robust over the decades”.—[ Official Report , 26/01/2005; col. 1375.]

Those two statements cannot be reconciled. However, the reality is that, whatever his personal views, between the votes on the Greater London Authority orders in 2000 and the end of the 2004-05 Session, this House divided nine times on Motions potentially fatal to a statutory instrument. On three of those nine occasions, the Motion to annul was moved from the opposition Dispatch Box, so there is no doubt at all—as the record shows—that whatever any individual thought about the convention, there was an attempt to use it on those occasions. There were no cries of a constitutional crisis then. There were five rejections in all under this convention in about five decades; three of them, incidentally, were defeats for Labour Governments. One was a defeat for the coalition Government and one—the most recent one—was a defeat for the current Administration.

This is not to say that we do not face serious problems with statutory instruments in this House; of course, it would be foolish to deny that. However, let us be clear: if the number of statutory instruments coming to this House was cut by 50%, there would still be occasions on which strong opposition to some or other of those instruments would arise. Therefore, cutting the number of statutory instruments—I would be in favour of that and I certainly share the view of the noble Lord, Lord Strathclyde, on that, as, I am sure, do most Members of your Lordships’ House—would not obviate the problem of this House wanting to disagree with however many statutory instruments remained.

In 2006, foreseeing some of these problems, or perhaps just recognising them rather late in the day, the then Labour Government set up the Joint Committee on Conventions, which I had the honour and privilege to chair. The remarkable thing about the committee—which was made up of Members on all sides of the

House, here and in the Commons—was that all its decisions and recommendations were approved unanimously. There was not a single vote in the whole of the committee’s deliberations. Therefore, the report was unanimous, which, in turn, was unanimously approved by this House and the other place. However, here we are, 10 years later, asking ourselves more questions about how we operate. The report, which we deliberately entitled

Conventions of the U



, has stood the test of time. If we want to re-examine these matters—I am certainly not against that—it is surely not sensible to do it in a piecemeal way on the back of an angry, intemperate reaction to one defeat of the Government in this House. That is not the way we should deal with this problem. Frankly, it is simply not credible to suggest that this House has abused the use of the convention on statutory instruments in any way at all. It has not exceeded its powers and I do not believe that statutory codification of these issues will improve the working of the House or improve our relations with the other place.

In reality, the Government have decided to strip this House of its ability to reject any statutory instrument because of the one defeat sustained in October last year. That strengthens the Government and the Executive against Parliament because, if it happens, it will weaken not just this House but the position of the other place as well. That is not what we should be seeking to agree to, in my opinion. The reality is—I am overrunning my time, I apologise—that this House has a far better record of scrutiny of statutory instruments than the other place. I believe that it is time we looked at this, as previous speakers have indicated, in a far more comprehensive, effective and collective way than simply to accept the diktats of the Government because of their annoyance at their defeat.