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My Lords, at this stage of the debate I do not want to do what so many noble Lords so far have done. I have listened with great admiration and have been bowled over by so many cameo presentations from noble Lords that summed up the position from their point of view based on so much distinction, experience and wisdom. I was particularly fascinated by the speech by the noble Lord, Lord Norton of Louth, and his explanation of the difference between conventions and usages. I shall dine out on that for quite a long time.
The noble Lord, Lord Empey, asked, “Is there a crisis?” and said that there was not. I agree with him. The noble Lord, Lord Foulkes of Cumnock, pointed out that a fit of pique by the Prime Minister and an outbreak of anger at the top of the Government does not amount to a constitutional crisis. However, this whole process, if it is handled well, could lead to better procedures in Parliament as a whole. I will therefore just chuck one or two little pebbles into the pond.
First, in the foreword of the report—that shows that at least I read the first page, if nothing else—the noble Lord, Lord Strathclyde, calls for “more certainty and clarity” to be brought to the process of bringing statutory instruments and their passage through
Parliament. I thought about this. Yes, we want clarity of process and procedures and quality of scrutiny, which is very important. On certainty, clearly we do not want chaos, where everything is being thrown to the winds all the time, but absolute certainty makes a mockery of proper scrutiny. The Government ought not to be in a position where they are 100% certain to get their statutory instrument through every time, otherwise the ability to make changes when things go wrong is taken away.
My second point leads on from that. This House has very good procedures for dealing with statutory instruments, particularly the Secondary Legislation Scrutiny Committee and others, which, as many noble Lords have pointed out, do better than the House of Commons. However, that all depends on the willingness of the Government to take seriously the concerns and representations that are made. A veto used five times in 60 years is hardly a threat to any Government or to the constitution, but it is important as a backstop. There is a lot of anecdotal evidence one can cite of civil servants writing statutory instruments and Ministers putting them forward, having to think hard and to rewrite drafts and so on because they know that that power is ultimately there and that scrutiny will take place to find out if the legislation is necessary. If that veto goes, there could be far more objections by noble Lords, as has been suggested by various Members in the debate. It will be easier to reject because it will not be fatal, and that could diminish the process; the process that we have could have less effect than it does at the moment. The noble Baroness, Lady Andrews, said that it could lead to greater abuse, and I agree with her. That is one of the unintended consequences.
My third pebble is that we must be very careful to ensure that this process does not lead to unintended consequences. One could be that when we are discussing primary legislation, there is greater pressure to refuse to accept a ministerial power to make orders and regulations in the Bill because the process of scrutinising those when they are made may be less useful, which could cause more unnecessary and irrelevant debate at the Bill-making stage. The Government ought to be careful about what they wish for.
The noble Lord, Lord Strathclyde, also said that his third proposal gives us what we do not have now—an ability for a conversation between the two Houses. It does not; all it provides is the ability for this House to reject and for the House of Commons perhaps to reject the rejection within days—certainly it would not come back and there would not be ping-pong. However, if we look at ping-pong on Bills, very little conversation takes place between the Houses. Conversation takes place informally, outside the formal structures, among politicians within the Government and between the parties, but there is very little conversation between the Houses. I suggest that the exchange of brief, inadequate messages is not a conversation. If we need conversation between the Houses, let us think hard about that issue and think of ways to set up some kind of mediation committee or negotiating system between the Houses to do a much better job than coming here occasionally in our pyjamas at 4 o’clock in the morning and traipsing through the Division Lobbies on the fifth ping-pong on some Bill.
The noble Baroness, Lady Smith of Basildon, in a superb introductory speech from her side, pointed out that at the moment statutory instruments are in a direct relationship between the Government—in the form of their Ministers—and each House of Parliament. That is the formal system; I accept that political discussions also take place informally. However, if we want to introduce a new formal system in which there is a relationship between the two Houses on statutory instruments as there is on Bills, we need to think of better ways of doing it than ping-pong, as I have just said. That at least is a constitutional issue that needs thinking about carefully and not just rushing through because the Prime Minister was piqued.
My final pebble is this: everybody thinks that House of Lords procedures have been here for 700 or 300 years, or whatever it is, and that they are historic and traditional, but of course it is completely untrue. They evolve all the time in a sensible, pragmatic way so that this self-regulating House can do what it wants to do. Therefore, let us not do anything which stops us doing what we might want to do on some occasion in the future. Let us do it in a careful, evolutionary way, and when we do that, three weeks later everybody will think that it has been here since 1215, probably.