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Arrangement of Business

Volume 740: debated on Wednesday 31 October 2012


My Lords, before we continue with the rest of the day’s business, I should like to make a short business statement.

The House will notice from the Order Paper that the main business today is no longer the second day in Committee on the Electoral Registration and Administration Bill, as we were expecting. Instead, we shall have a short day to consider the fast-tracked Mental Health (Approval Functions) Bill.

The reason for not proceeding today with the Electoral Registration and Administration Bill is that late yesterday the noble Lord, Lord Hart of Chilton, tabled an amendment, printed as Amendment 28A on a supplementary sheet as it was too late to be included in the Marshalled List. Its intention is to change the date for the report from the Boundary Commission on parliamentary constituencies from before 1 October 2013 to not before 1 October 2018.

It became apparent to me in the course of yesterday evening that the advice of the Public Bill Office to the noble Lord, Lord Hart, was that his amendment was inadmissible and should not be tabled because it was not relevant to the Bill. It is worth pointing out that if a similar situation arose in the Commons and the clerks there came to a similar view, the clerks would advise the Speaker that the amendment was out of scope and inadmissible, and the amendment would simply not be moved. In our self-regulating House, we rely on Members taking the advice of the Public Bill Office. The Companion makes this clear:

“The Public Bill Office advises on whether an amendment is admissible and it is expected that this advice will be taken”.

The noble Lord, Lord Hart, has however, insisted that the amendment be tabled against the advice not only of the Public Bill Office but of the Clerk of the Parliaments. The Companion provides that in the rare circumstances that a Member of this House tables an amendment against the advice of the clerks, it is for me, as Leader of the House, to ask the House to endorse the opinion of the Public Bill Office. If the amendment comes before the House when the Bill is next considered, I will readily invite the House to endorse that advice, as any Leader would be bound to do. However, that is not a decision for today.

Yesterday evening, I decided that, in view of the highly contentious nature of the amendment and the clear advice of the clerks, the House needed the opportunity to reflect on that advice before taking a decision on this matter. The Chief Whip withdrew the Bill from the Order Paper and informed the Opposition and the usual channels, and I have placed a copy of the advice from the Public Bill Office in the Library of the House. I would prefer an informed debate next week to an ill-informed, disorderly row today.

By the late tabling of an inadmissible amendment the noble Lord proposed to ask the House to act precipitately without notice and against the advice of the clerks. This is not how we should go about our work. These are the reasons why I have changed the business before us today, to enable the House to reflect carefully before it takes a decision either on the admissibility of the amendment of the noble Lord, Lord Hart, or on its merits. I believe that it is a decision made in the best interests of the House.

My Lords, I thank the Leader of the House for his statement seeking to explain why the House is not dealing today with the business it was expecting to consider—indeed, the business that the House should be considering today. Until this morning the Order Paper for today contained as first business after Questions the second day of the Committee stage of the Electoral Registration and Administration Bill. Yesterday lunchtime—not late, and well within the rules as set out in the Companion—noble Lords, Lord Hart of Chilton, Lord Kerr of Kinlochard, Lord Rennard, and Lord Wigley, tabled an amendment to the Bill, the effect of which would be to delay for five years the proposed changes to parliamentary constituency boundaries for the election of Members to the House of Commons.

There was an issue on whether the amendment was within the scope of the Bill. The parliamentary clerks, serving your Lordships’ House argued that boundary changes were not relevant to registration. Supporters of the amendment considered that since boundaries are determined by the number of registered voters in an area, registration was highly relevant to boundary changes. The amendment’s supporters obtained written advice from Queen’s Counsel to this effect. That advice was provided to the clerks; they still disagreed.

We are not in the House of Commons, as the Leader of the House is oft wont to point out, and the House of Lords Companion stipulates that it is for your Lordships’ House itself, and no one else, to reach a decision on such contested issues about relevance. The supporters of the amendment have been scrupulous in ensuring that the clerks have had time to consider the issue. Some time during yesterday afternoon the Government became aware of the amendment. According to media reports, some time during the afternoon or early evening, there was communication between the Prime Minister and the Deputy Prime Minister about the amendment. At 8.18 pm last night my noble friend the Opposition Chief Whip received an e-mail from the Government Whips’ Office saying:

“Lord Bassam, the Leader has asked me to let you know that the order paper for tomorrow has changed and no longer contains the Electoral Administration Bill. The Mental Health (Approval Functions) Bill will thus be first (and only) business”.

That was the first intimation from the Government business managers of any change. There had been no consultation, as required by the Companion. An Order Paper was then published today without the Electoral Registration and Administration Bill on it. Those are the facts. They show not this self-regulating House determining its order of business, through the operational proxy for a self-regulating House of the usual channels, but the order of business in your Lordships’ House being determined by the Leader of the House. That is not right. That is not how this House conducts its business.

Of course, the Leader can have an influence on the order of business in the Lords—that is proper. After all he leads the government party whose business your Lordships’ House must consider. The Government are entitled to have their business considered, but in this case their business is not in jeopardy. The principle of the House of Lords determining its own business goes to the heart of its independence from the Government. That principle is reflected in the Companion. The Companion allows the Peer in whose name a notice is on the Order Paper to withdraw that notice, but that is intended to deal with cases when the Peer for some reason cannot carry out the business. It is not intended to override paragraph 3.30 of the Companion.

We understand that the Government are resting their case of their ability to pull business in this way on Standing Order No 42 (1)—a standing order passed as recently as 26 March 1852. The Government really need to do better than this. If they want to rearrange business, they should do so through the usual channels, as made clear in the Companion. The correct course for the Government last night was to seek agreement through the usual channels. If agreement was not forthcoming, the correct course would be for your Lordships’ House to be asked to agree the change of business today—in other words, for a statement to be made to the House which could then be debated, and if necessary challenged. I know that the noble Lord is making a statement today but it is after the publication of the new Order Paper.

In terms of the merits of the amendment tabled, the argument being put is not a political, and certainly not a party political, one. It is an argument about supporting a proper system of democracy and about certainty in the democratic system when candidates for election to the House of Commons are already being selected under a system which is now wholly lacking in clarity. That is the argument that we on these Benches and on many sides of the House want to engage in when the amendment in question comes before your Lordships’ House. It will then be for your Lordships’ House and no one else—not the Leader of the House, not the clerks, not the Opposition—to decide on that amendment on its merits. But, at the heart of this issue today are not the merits of the amendment: it is who determines the House’s business—the Leader or this House: this self-regulating House.

I would be content with the following course. First, that the Government accept that the procedural position as to who determines the business is as I have described it, as set out in the Companion. Secondly, that the Government advise the House of their proposed plans for the Committee stage of the Bill. I understand from what the noble Lord has said that the Government wish to have a short pause—which is acceptable—until Monday of next week to consider their position. We would not find that unreasonable. However, I would like an assurance from the Leader of the House that the House will indeed have the Committee stage of the Bill on Monday. The House needs that assurance—and it needs it today.

It needs it beyond it currently being on the Order Paper because, as we have seen in this instance, the attitude of the Government towards your Lordships’ House is that the Order Paper setting out the business of this House is not worth the paper on which it is printed. I invite the Leader of the House to give those assurances now.

My Lords, it is interesting how two people can look at the same set of events and come to two completely different conclusions. However, it was ever thus.

It is worth pointing out for the record that I received the clerks’ formal advice at about ten-past eight last night. Less than 10 minutes later, my office informed the Opposition that the business for today had changed. I do not have to remind the House that my noble friend the Chief Whip is responsible for the arrangement of business. It is a commonplace but it is also set out in paragraph 3.30 of the Companion. Of course, we always try to work through the usual channels. The clerks this morning confirmed that the Chief Whip has authority to schedule government business, and only the Government can schedule government business. The Chief Whip can withdraw an item from the Order Paper at any time without first consulting the usual channels—and frequently does with secondary legislation and Back-Bench business.

Noble Lords must ask themselves what would have happened if the Government had tabled an amendment to their own Bill—which they do many times—with minimum notice, had received advice from the clerks that it was inadmissible and had demanded that the House should vote to overturn its own rules. The first people who would be rightly outraged by such an action would be noble Lords opposite. That is why I acted in the way that I did.

I cannot agree with the noble Baroness the Leader of the Opposition on her interpretation of how business is arranged, although, as she and I and the House know, the usual channels work on the overwhelming majority of occasions extremely well.

I expect the business to be taken next Monday—it is in the Forthcoming Business—but the most important thing at the moment is that there is scope for reflection by all sides before then. It is good to hear the noble Baroness say that we should bring forward government legislation. I can assure her that in the weeks and months ahead we shall have plenty more legislation.

Perhaps I may respond briefly on three points. I hear what the noble Lord says, that he did not have the opinion from the clerks until eight o’clock last night, but as I say, we tabled—not we, but my noble friend and three other—

My Lords, my noble friend Lord Hart of Chilton is a Member of the Labour Benches. Would it not be surprising if we were not aware of what was happening? As I understand it, the four noble Lords in question tabled their amendment shortly after midday yesterday, at 12.30 pm. I cast no aspersions, but I am therefore surprised that the noble Lord was not informed of the views of the clerks until 8.30 last night.

Paragraph 3.30 of the Companion refers to the “usual channels”, but it always talks about consultation. I know that with secondary legislation from time to time, the noble Baroness the Chief Whip will do things without consultation, but it is absolutely usual for the usual channels to do things in consultation, and that is what has not happened on this occasion.

In response to the noble Lord’s point about amendments being tabled on the eve of the debate on them, perhaps I may gently remind the noble Lord the Leader of the House that the Government frequently table amendments, admissible or inadmissible, on the eve of their being debated.

My Lords, I have listened carefully to the noble Lord, Lord Strathclyde, as I have listened carefully to what the Leader of the Opposition has said on this matter. We can argue about what methods should have been used to reach a decision, as the noble Baroness said, but we are where we are at the present time. I accept the reason given by the noble Lord, Lord Strathclyde, that the matter requires careful consideration and reflection, and for that reason we would certainly support his point of view in terms of pulling this amendment out.

The Clerk of the Parliaments has offered advice. By its very nature it is advisory to the House, and it is for your Lordships’ House to determine whether to accept it or not. The intervening time will give an opportunity to all Members of the House to listen to and read the advice and the reasons for it. They will then be able to reach their own opinion. The intervening period gives us not only time to reflect but, having done so, we can come back to the House to debate the advice with a view to reaching a resolution on this matter.

There is a further matter. If the advice from the Clerk of the Parliaments is that the amendment is out of the scope of the Bill, we would certainly want to seek his advice as to how to bring it within scope so that it can be debated by noble Lords. Having said that, the substantive matter will still need a resolution. Let me make the position of my party absolutely clear. It is the position which has been made clear by my right honourable friend the Deputy Prime Minister. This was not part of the coalition agreement and it does breach any agreement we have reached with the Conservative Party. For that reason, we on this side of the House will support the amendment when it is debated.

My Lords, I am very grateful to my noble friend for his support for the action that I have taken today. I agree with his invitation to noble Lords to reflect and read the advice and thus become informed about the issues. I am also equally keen that we should resolve the issues before us.

It is perhaps worth reminding the House that I have placed a copy of the clerks’ advice in the Library. As to why the amendment is inadmissible, in short, amendments have to be relevant to the subject matter of the Bill. The Bill is about two things: individual electoral voter registration and the administration and conduct of elections. The clerks’ advice, which I endorse, is that the question of boundaries, just like the question of the franchise, is relevant to neither of the purposes of the Bill before us. As to whether the clerks could make it admissible—I am sure that the noble Lord, Lord Hart, asked that question when he originally tabled his amendment.

My Lords, in my experience there is very little that is new in this House and I have no doubt that inadmissible amendments have been tabled in the past. However, can my noble friend the Leader of the House tell me what the experience in the past in this House has been? Has the House ever voted on an inadmissible amendment and, if so, how often?

My Lords, the records reveal that the Public Bill Office has had to correspond in these circumstances on only five occasions in the past 20 years. On every occasion, the Member concerned respected the advice of the Public Bill Office and the amendment was not moved.

Will the Leader of the House make it quite clear beyond peradventure that the ultimate decision is for the House and that the concept of scope and relevance is not without difficulty?

Yes, my Lords, I confirm to the noble and learned Lord that that is what is laid out in our Companion. However, perhaps I can repeat the words in the Companion:

“The Public Bill Office advises on whether an amendment is admissible and it is expected that this advice will be taken”.

In House of Lords language that is a very strict view that the advice should be taken. As I pointed out in responding to my noble friend Lord Wakeham, it usually is.

My Lords, is it not just passing strange that someone who until very recently regarded this House with little short of disdain should now be seeking to use this House for entirely divisive political purposes, in a Bill where the Minister in charge is of the Liberal Democrat persuasion and would have to stand on his head rather than vote?

My Lords, I do not really know all the ins and outs of the genesis of this amendment. I am sure that the noble Lord, Lord Hart, was acting in good faith and encouraged others to support him. As regards my noble friend, I have complete faith in his abilities to take this Bill through.

My Lords, can the Leader of the House assist the House by explaining how the business will proceed on Monday—and, indeed, how it would have proceeded had we taken it today—in respect of the relationship between the question of admissibility and the substantive issue to which the amendment relates? It is my impression, and he will no doubt correct me if I am wrong, that it would be very difficult to discuss the admissibility of the amendment without discussing its substance. I do not see how that can be done. Can the Leader of the House explain the likely nature of the debate on Monday when we come to it?

My Lords, there would be two questions before the House. The first would be a question on admissibility. I suspect that the noble Baroness is entirely correct that, during the course of that debate, there would be discussions on the substance of the amendment. It would be difficult to see how one could progress without that taking place. When that is settled, if the House agrees to support the view of the clerks, then the amendment would not be taken; if the House decided to continue with the amendment, there would be a second, alternative debate in the normal manner on the amendment and the House would need to take a decision on how to dispose of that.

My Lords, we are getting into very treacherous waters. When I was Secretary of State for Scotland, I had to sign a Boundary Commission report that effectively wrecked my constituency. It never occurred to me for a moment not to do so, because the convention was that the Boundary Commission reports were sacred and people did not play party political games with them. Although it is for this House to decide its business, it is surely also absolutely central to its operation that we respect the views of the clerks. If we do not, we will be lost.

My Lords, with all his experience and good judgment, my noble friend makes an extremely good point, which is on the substantive issue of the amendment. I agree with him that we are getting on to very treacherous ground, not least because—look around this House—none of us is elected to anything. Surely it would be better to let the House of Commons, which is elected and is impacted by this, to look at this first of all.

Perhaps I might correct something I said a moment ago to the noble Baroness on what will happen when we debate this issue. I will do my duty as Leader of the House and draw the attention of the House to the advice of the Public Bill Office and ask the House to endorse that advice. The previous occasion this happened was during the Police Reform and Social Responsibility Bill on 4 July 2011, when the mood of the House was to support the advice of the clerks, and good order, and the noble Lord concerned chose not to move his amendment. There is, however, no mechanism to prevent the noble Lord, Lord Hart—if it is he—from moving his amendment and, if he insists, the amendment will still be put before the House.

My Lords, the Leader of the House has given all of us an opportunity to look at this matter in a reasoned way, because of the delay. As someone who has spoken on this legislation, and who intended to speak on it today, I would have been very concerned to see a brand new amendment talking about delaying the boundary changes for several years. More senior Members than I can remember that there was a great dispute around 1980 because there was a delay in the boundary changes and it was felt that that was undemocratic. A knock-on effect of that delay was that when a Member of Parliament in Glasgow died—my good friend the late Tom McMillan—his constituency consisted of an electorate of 20,000, which was just slightly bigger than a regional ward in the Strathclyde region, because of those delays.

The time factor given to us by the Leader of the House has given us all a chance to reflect on this amendment, which I have not had the opportunity to examine. I would be very concerned about any amendment where the advice of the Clerk of the Parliaments has been rejected. I understand that it is advice that the officials give and it does not necessarily need to be taken, but it is sound advice that the Clerk gives. I am not taking sides with the Labour Party or the Conservative Party or indeed the Liberal party, but at least with this delay people like me, who have taken an interest in this legislation, can go to the Clerk and make him an even busier man than he is at the moment and get advice, and ask him why he feels that this matter is out of the scope of the business before us. I do not see any harm in a delay. In fact, often it is better to have a delay so that we can come to a reasoned decision.

My Lords, following on from the point that has just been made, as I understand the position in the House of Commons, if this were to happen there, the clerks would advise the Speaker. The Speaker would then consider the advice and would decide whether or not he wanted to accept it. If he decided that he wanted to accept it, he would rule the amendment inadmissible and therefore it would not be taken. If, on the other hand, he decided to overrule the clerks’ advice, which he is perfectly entitled to do, he could decide that the amendment was admissible and it would then be taken.

This House is self-governing; we do not have a Speaker. Who plays the role of the Speaker to decide that issue in this House? The answer is: the House as a whole. Therefore, we are in the same position as the Speaker of the House of Commons. We have been presented with advice from the Clerk, which I have not yet seen, as to a certain course that should be pursued. Just as the Speaker in the House of Commons can accept or reject that advice, so this House can accept or reject this advice.

My Lords, in order that we might use the time for reflection to best effect, would it not be highly desirable if the opinion which I understand has been taken by the noble Lord, Lord Hart, or others of the group pressing the amendment, was made available to us? We could then take that into account along with the advice given by the Clerk. Is my noble friend the Leader of the House aware whether that might be enabled?

My Lords, might I answer that point? I shall ask my noble friend whether he will agree to place the opinion of counsel in the Library of the House alongside that of the Clerk of the House.

My Lords, I may be the only one, but, further to the clarification which the Leader gave, I am now more confused than ever. He appeared to say that it would be open to this House to agree to proceed with a debate, but that it would not be open to it to deny a debate if the mover of the amendment insisted on proceeding with it. Did I understand him correctly and, if that is the case, does that apply to other Members of this House who have their name to the amendment? In other words, if any of them insisted on going ahead, must a debate take place? That is now my understanding of what the Leader said in his clarification. If he could confirm that, I would be obliged.

Did the Leader of the House consider inviting the House today to suspend consideration of the amendment of the noble Lord, Lord Hart, but allowing the Committee to proceed with the other business under this important Bill, which many of us were prepared today to come along to attend to?

My Lords, I am grateful for the support of the noble Lord, Lord Martin of Springburn. I think that it was support not just for me as Leader of the House but for the correct procedures and processes in this House of Lords. What he said was extremely important and I hope that noble Lords will think very carefully about how they proceed having heard what he said and perhaps having read it in Hansard.

The noble Lord, Lord Richard, made a perfectly good point about who decides these matters. The fact is that we do not have a Speaker. We ultimately can decide these things for ourselves, but we have probably the best set of clerks in the world, who give us authoritative advice about these matters. My view is, and it was my view when I was Leader of the Opposition, that if the clerks take a view on something like this, we would accept it.

On what the noble Baroness the Leader of the Opposition said, I was not aware that a counsel had been taken on the amendment of the noble Lord, Lord Hart, and an opinion sought and received which will be made available. I am sure that that will be very useful to noble Lords who like to read that sort of thing, but I do wonder whether we really want to go in the direction of reaching for our lawyers every time there is an issue of disagreement. It is not so long ago when this House was the last court of appeal in this country; I think that we are a lesser House for having removed that function from it. So it is not something that I would greatly encourage.

I gave an answer to the noble Lord, Lord Reid. He was right to raise his question in a tone of incredulity. There is incredulity here that any noble Lord would wish to continue once the House had taken a view. I say in response to the noble Lord, Lord Pannick, that I did not consider the option that he described. I dare say that it could have been open to us, but I felt that very few people in this House had any knowledge of what had happened yesterday afternoon and that I should bring it to the attention of the House as early as possible, which is what I have done, and allow for a period of reflection over the course of the next few days to see whether this can be sorted out and how to proceed.