Strathclyde Review — Motion to Take Note

Part of the debate – in the House of Lords at 10:07 pm on 13th January 2016.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 10:07 pm, 13th January 2016

My Lords, this has been an excellent debate. I warmly welcome the noble Baroness, Lady Bowles, and, of course, my noble friend Lord Darling, to the House. I congratulate them both on excellent maiden speeches. Right at the start, at about 3.35 pm, the noble Lord, Lord Strathclyde, said that this debate goes to the heart of the work of the Lords as a revising Chamber. Of course, that is true.

Interestingly, as we have developed during today, what has become clear is that, whatever view one has about the conventions, financial privilege and what happened in October, this debate is really about the role of Parliament and the fears that many Lords have expressed about the encroaching approach of the Executive seeking to gain more control over the legislature.

That is why we have to be wary, at the very least, of giving up our veto on the strength of what, in the noble Lord’s report, are essentially vague possibilities that the Government will reduce their use of statutory instruments or even that the other place might take statutory instruments rather more seriously in the future.

We are, of course, highly indebted to the noble Lord, Lord Strathclyde, for his report and for opening the debate. Clearly, he has a new role ahead as chairman of numerous public inquiries. But he will know that, like my noble friend Lord Grocott, we cannot accept his arguments. We did not break a convention; we did not challenge the primacy of the Commons; there is no constitutional crisis. In October we overwhelmingly declined to support a fatal Motion. Instead, we asked the Government to reconsider and bring forward changes. As the noble Lord, Lord Lisvane, pointed out, the Government had many options for doing that, either through primary or secondary legislation. They chose not to do so. The Chancellor accepted the logic of the Lords’ position, as the noble Lord, Lord Forsyth, pointed out. As my noble friend Lord Haughey said, there was no victory or defeat, just common sense prevailed.

My noble friend Lady Hollis remarked that it was not our vote on tax credits that strained the conventions, but the Government deploying an statutory instrument in the first place to introduce by the back door highly controversial measures affecting millions of people and, essentially, to avoid proper debate in the other place. My noble friend Lord Cunningham put it so well. The resulting fit of pique by the Government is not the basis on which to make far-reaching changes without a careful examination of the long-term consequences.

So we come to the detail of the report by the noble Lord, Lord Strathclyde. For me, the most important part of that report is the last paragraph, on page 23, concerning the appropriate use of statutory instruments as opposed to primary legislation. Many noble Lords expressed worries about the increased use of statutory instruments, in particular the growing use of what are now being called skeletal Bills, backed up by a host of statutory instruments including Henry VIII powers. The noble and learned Lord, Lord Judge, made a most telling contribution. My noble friend Lord Williams spelled this out: 34 Acts since 2010 contained such Henry VIII powers. Let us be frank: the Government of which I was a member was also guilty of that.

In that paragraph, the noble Lord, Lord Strathclyde, said that,

“in order to mitigate against excessive use of the new process”,

which he proposes under option 3, he believed that,

“it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”.

It is the most important point he makes in the report. The question I put to the Leader of the House is this: how is that to happen? What guarantees are there for this House were it to give up its veto on secondary legislation? I hear what the noble Lord, Lord Young, said, but in this case warm words are simply not enough.

We then come to the question of the role of the Commons in dealing with statutory instruments. It has been confirmed by many Members of your Lordships’ House who have come from the other place that the way the Commons deals with statutory instruments is frankly nothing short of disgraceful, with minimal interest, discussion and scrutiny. The Lords has been asked to take an awful lot of things on trust were it to accept the recommendations of the noble Lord, Lord Strathclyde. Will the noble Baroness tell us what guarantees we have that the House of Commons is seriously going to change its ways in dealing with statutory instruments?

I want also to ask her about the details of the noble Lord’s report, in particular his option 3. There have been a number of detailed questions and criticisms of some aspects of that recommendation. My noble friend Lady Hollis raised the importance of a set period of delay. Without such a set period, what on earth would make a Government take notice of anything the Lords said on such an instrument? There are other questions: how will the Executive engage with noble Peers on statutory instruments? How will the view of the Lords be conveyed effectively to the House of Commons? Will the resolution be preceded by debate on the Floor of the House of Commons? How much time would be allowed for it? Would it be more than the five minutes a day on average that currently occurs? Will the matter be subject to deferred Division in the Commons, as is the case with many statutory instruments now? Will statutory instruments continue to be started from both Houses, because that certainly has an impact on whether the House can ask the Commons to think again if the Commons has not thought about something in the first case? Will amendments be allowed? This is a very important question about amendments in relation to statutory instruments. The noble Baroness, Lady Fookes, made an excellent contribution and put forward many excellent ideas in relation to how we might take the scrutiny of statutory instruments forward.

In listening to the debate I sense that most noble Lords on all sides of the House are not opposed to a careful examination of how we might improve the way we scrutinise secondary legislation and of how the relationship between the two Houses might be more carefully effected in the future, alongside a review of what most appropriately constitutes primary legislation as opposed to secondary legislation. However, the House does not wish to give a blank cheque to the Executive or to proceed without fully understanding the long-term implications. It is here that we look to the Leader of the House. She is, of course, a government Minister and is Leader of the Conservative group of Peers in your Lordships’ House. However, as Leader, she has a wider responsibility to guard the House’s interest and to ensure that its role is cherished and enhanced.

Many noble Lords have quoted the Hansard Society paper that we received this morning, and a very good paper it is, too. However, it concluded:

“The complexity of the delegated legislation process, the lack of understanding amongst parliamentarians … all point to a system that is no longer fit for purpose”.

As noble Lords have said, the Hansard Society argues for an “independent expert inquiry” and certainly adds weight to the case for a constitutional convention.

My noble friend Lord Darling made a persuasive case for that in describing the problems arising from a piecemeal approach to constitutional change.

We are not elected. We are the second Chamber. We accept without question the primacy of the other place. However, we are the only part of Parliament that takes secondary legislation scrutiny seriously. Therefore, in the light of our debate, I hope that the noble Baroness the Leader will tell us what she is now going to do. However rarely it is used, we currently have an unfettered right to veto secondary legislation. I believe that is a safeguard for both Parliament and the public. Does the Leader want to be the person to remove that right and hand yet more power to the Executive? I hope not. I certainly hope that she will listen very carefully to what noble Lords have said before she takes any such precipitous action.

Many noble Lords have suggested that we appoint a Joint Select Committee of both Houses to look at this issue in the round. The work of my noble friend Lord Cunningham is an excellent example of how that might be done. It would also enable us to embrace the very interesting point made by the noble Lord, Lord Crickhowell, about the need to reflect and understand the views of Members of Parliament.

I say to the noble Baroness that this has been a rather remarkable debate. Different views have been expressed, but I think that there is an urge in the House to try to find sensible consensus on the way forward. She would find huge support on all sides of the House if she said tonight that she would agree to the appointment of such a Joint Select Committee of both Houses. Having heard this debate, I am convinced that is the right way forward.