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Strathclyde Review

Volume 776: debated on Thursday 17 November 2016


My Lords, I would like to make a Statement on the Government’s response to my noble friend Lord Strathclyde’s review into secondary legislation and the primacy of the House of Commons. The Government will publish their response to his review shortly and write to the Select Committees which have reported on the issue. As there has been media speculation this morning, I am making a Statement now because I know that this is an important issue for your Lordships’ House and I want to be clear about the Government’s position.

Noble Lords will recall that the former Prime Minister commissioned my noble friend Lord Strathclyde to undertake a review following the decision by the House of Lords to withhold agreement to a tax credits SI. Underpinning that decision and, indeed, the subsequent work of my noble friend’s review, was the desire to strike the right balance between recognising and upholding the vital role this House plays in scrutinising legislation and ensuring that the elected House has the final say, for while that is clear on primary legislation, where the Parliament Acts provide for the will of the other place to prevail, there is no such mechanism for secondary legislation.

I would like to thank my noble friend Lord Strathclyde and his panel of experts for undertaking the review and producing a comprehensive and balanced report. In his report, my noble friend considered three options for securing the primacy of the elected House in relation to statutory instruments, recommending his third option. The Government have considered these recommendations carefully and listened to views across both Houses, including those expressed by four parliamentary Select Committees, three of which are in this House.

The House has clearly signalled that it recognises the importance of working constructively together as noble Lords scrutinise the legislative programme before us. I would like to thank noble Lords across this House for the spirit of partnership that has been shown.

The Government agree with my noble friend Lord Strathclyde’s conclusion that on statutory instruments, as with primary legislation, the will of the elected House should prevail, and we believe that his option 3 provides a credible means of achieving this. However we do not believe that we need to introduce primary legislation at this time. We recognise the valuable role of the House of Lords in scrutinising SIs, but there is no mechanism for the will of the elected House to prevail when they are considered, as is the case for primary legislation. The Government are therefore reliant on the discipline and self-regulation that this House imposes upon itself. Should that break down, we would have to reflect on this decision.

This House has an important role to play in scrutinising and revising legislation, and the Government recognise this. As we will find ourselves considering the legislation resulting from the decision of the British people to leave the European Union, the constructive approach this House has so far shown will be ever more important.

My Lords, I thank the noble Baroness for the Statement. It came very promptly after the leak last night, and I do not think she expected to be here this morning. The decision not to proceed with legislation is warmly welcomed by your Lordships’ House, as she will have heard. I pay tribute to the noble Baroness the Leader of the House and to the noble Lord the Government Chief Whip for the way in which they have approached this issue—it is appreciated. I also put on record our thanks to the noble Lord, Lord Strathclyde, for the diligence and care he took on his report. I welcomed and enjoyed the discussions we had, although I have to say that, knowing the commitment he has shown to this House over many years, I sometimes felt his heart was not quite in it.

Although we welcome the main conclusion that there should not be legislation, we still feel that option 3 in the report is wrong, and that it misunderstands the role of this House and the constitutional position of statutory instruments, which are sent to your Lordships’ House from the Government, not from the House of Commons. This was never about the primacy of the House of Commons but about the primacy of government. We certainly welcome the fact that this has been done in the spirit of looking forward rather than of what has happened in the past, and none of us wants to rerun the old arguments. However, I want to briefly reflect on the constitutional background that led to the Strathclyde review following the votes on the tax credits statutory instrument.

That review and its recommendations were an absurd overreaction from the then Prime Minister and completely unnecessary. But perhaps it did us a great service: for one brief moment in time, statutory instruments became exciting to people who had never heard of them before. This House has an enviable and well-deserved reputation for the way in which it fulfils its duty of scrutiny of government legislation, including secondary legislation. As a House, we recognise those responsibilities but also our limitations as an unelected second Chamber. We also recognise that when it comes to secondary legislation, with our scrutiny committees and our debates, we discharge that duty with both expertise and experience.

We considered that, as a significant policy change, the tax credits proposals should have been dealt with more appropriately and properly as primary legislation. But even then, this House was reluctant to just block them and we rejected a fatal Motion. However, again in the spirit of how this House works best, we sought to find a sustainable way forward to provide the Government with greater detail on the impact of the proposals, and the time and the space to think again, reflect and reconsider. That gained support from all corners of this House and was passed. The Government reconsidered and changed the policy. That was the right and appropriate action to take.

Your Lordships’ House unanimously agreed the report of the Joint Committee on Conventions, chaired by the noble Lord, Lord Cunningham of Felling, in 2006, which said that in clearly exceptional circumstances this House retains the power to vote against and reject secondary legislation. But the significance of that power is reflected in how rarely it is used: just five times in nearly 70 years. There have been other attempts, but all have failed. That is because it must be exceptional—for example, where the primary legislation is in effect a skeleton Bill or where an SI is being used for a significant policy change, but not where secondary legislation is merely implementing the details of policy from primary legislation. That does not mean we do not challenge the Government or hold them to account but, as the report clearly says, unless there are exceptional circumstances,

“opposition parties should not use their numbers in the House of Lords to defeat an SI simply because they disagree with it”.

The tax credits votes that led to this review were exceptional. They fulfilled the criteria. It was not just a matter of disagreeing, but was completely in line with the history and conventions of this House and the Cunningham report.

The noble Baroness referred to Brexit. Over the past few weeks, there has been considerable speculation about the role of your Lordships’ House in examining Brexit. We have been clear: we will not block; we will not delay. But a Government without a plan do not have a blank cheque. Clearly this House will have an important role, especially if there is considerable secondary legislation that will need us to work together to provide effective scrutiny from all sides of the House in the public interest. I say to the noble Baroness that I hope she and her colleagues in government will see this House as an asset rather than just a challenge.

On these Benches we always considered that the Strathclyde review was evidence that the then Prime Minister, David Cameron, loathed challenge and feared scrutiny. That made life a bit difficult for us because challenge and scrutiny are what we do. However, in warmly welcoming today’s announcement, I thank the noble Baroness and the Chief Whip. I hope this heralds a new, more adult and reasonable approach to government and opposition where challenge and scrutiny are recognised as being in the public interest.

My Lords, I thank the noble Baroness the Leader of the House both for making the Statement and for its content. I echo the words of the noble Baroness, Lady Smith, about the sensible approach that she and the Chief Whip have taken over this issue.

At the time, we regarded the Government’s response to the votes on tax credits as being a petulant overreaction. It was part of a general approach that regarded Parliament as a bit of an inconvenience, an approach sadly replicated by their view on parliamentary debates on triggering Article 50. In our view, the House was exercising its scrutiny powers within well-established rules. We rested our case on the Motion proposed by Lord Simon of Glaisdale in 1994, now enshrined in our Companion to the Standing Orders:

“That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”.

Our traditional role is to ask the Commons or, as in the case of tax credits, the Government to think again when we believe they have got it wrong. It is worth recalling that in reality, on the question of tax credits, exercising that role produced the rethink that your Lordships’ House was seeking.

The noble Lord, Lord Strathclyde, undertook his review with his customary energy and wisdom but struggled to find a way forward that was an improvement on the current position. It was extremely interesting when his report was debated in your Lordships’ House what wide agreement there was across the Benches about both the pitfalls of his preferred approach and the other things that could be done to improve secondary legislation and the way that it is scrutinised. The clearest message from that debate, which I strongly endorse, was that many of the problems with secondary legislation arise when the Government use it to implement measures that should be included in primary legislation.

There was also a widespread view in the debate that the way in which we scrutinise secondary legislation could be improved by giving some scope for rethink and amendment. Certainly, both as a party spokesperson and as a Minister, I have found debates on statutory instruments for the most part particularly sterile. Will the Government therefore be prepared to countenance further discussion about how the quality of scrutiny of SIs by your Lordships’ House could be improved? In the light of yesterday’s suggestion that the Brexit process might lead to upwards of 2,000 SIs being produced, could the Government give an assurance now that they will not abuse the SI system in future by including in statutory instruments substantial policy issues that should rightly be the subject of primary legislation?

My Lords, I thank the noble Baroness and the noble Lord for their constructive and positive comments. I hope my future Statements may be treated with similar enthusiasm, although I fear perhaps not.

I too do not want to rerun the arguments about what happened. I want to look forward. As I have said, since being Leader I have been very taken with and impressed by the constructive way in which we have been able to work together, and I hope that will continue. However, we felt that what happened raised an issue that we needed to look at. We commissioned a review and I hope I have now been clear that the Government have decided, on the basis of considering that carefully, that we will not be legislating.

I particularly welcome the constructive comments from the noble Baroness around our approach to Brexit. I think we have seen already that noble Lords have taken a constructive approach in the debates we have had, and I am confident we will be able to continue to do so.

The noble Lord, Lord Newby, mentioned the House’s role in scrutinising SIs. It is indeed an important role. The legislation we will have from Brexit will cause us challenges. I am keen to work with Members across the House to ensure that our revising and scrutinising role can be properly undertaken and that we can do this House proud in the work we do.

My Lords, this Statement appeals to the very best, indeed, the noblest instincts of this House. Twelve months on, the Government have listened very carefully to the voices around the House and decided that the best way forward is the way the House always proceeds: by agreement, at a pace and with perspective.

That is why I very much welcome what the noble Baroness the Leader of the Opposition said. She reminded us of the statistic that Governments have been defeated at least five times in 70 years. Frankly, if that is the pace that will continue, neither this nor a future Government will have very much to concern themselves with. It is that commitment, which would been very difficult to receive a year ago, which has made so much difference today.

The noble Lord, Lord Newby, raised a question about secondary legislation. Perhaps I may finish with one question on that. It is true that the guidelines on when secondary legislation and primary legislation are to be used are vague or, indeed, opaque. I very much urge the Government to work with the parliamentary draftsmen and make public through departments when it is most desirable to use secondary legislation. Then we can avoid these sorts of issues in future.

If my report has been any part of bringing us to this good solution, I am delighted.

I once again thank my noble friend for all his work in this area. In response to his question, I am very happy to look at the comments he made.

My Lords, first, I join my noble friend Lady Smith in congratulating the noble Baroness the Leader of the House on her Statement and on the positive and rapid way in which she has bought this matter to what I think most people agree is a satisfactory conclusion. After all, the Prime Minister and Chancellor of the Exchequer, who made the original error that led to the charges of abuse of procedure, have now both left office. We have a new Prime Minister, a new Chancellor and a new Leader of the House. It is time to move forward and put behind us the false claims that somehow this House had abused its powers and acted wrongly. That was never the case and, speaking for myself, I hope that it never will be. I, for one, would not abuse my vote by voting against any measure which came from the other place which was covered by financial privilege. I voted on the matter of tax credits because it was a statutory instrument, not a Bill, and therefore was not covered by financial privilege.

I thank the noble Lord for his comments and hear what he says. As I said, when we work constructively together, we are an extremely effective House.

My Lords, like others, I am extremely grateful to the noble Baroness for her Statement and for the decision that has been made. I was delighted to hear that the noble Lord, Lord Strathclyde, has returned to his normal tranquillity and confidence in the House’s ability to behave rationally and in a mature fashion, which was uncharacteristically absent, I felt, in some of his report and the consequent discussions.

To return to the point made by the noble Lord, Lord Newby, the tenor of the debate following the tax credits issue was very much about the quality of the scrutiny that Parliament gives to secondary legislation. Although we all agree that in many instances we need primary legislation, in fact we have a great deal of secondary legislation and the challenge will be greater after the so-called great repeal Bill. Do not both Houses of Parliament need to look at how, together, they provide more effective scrutiny and greater challenge to the Executive? Will the noble Baroness consider again the suggestion made at the time that a Joint Committee of both Houses looking at ways to improve scrutiny could be very valuable?

I thank the noble Baroness for her comments. She is absolutely right: we will face significant challenges with the amount of legislation, both primary and secondary, that will come to this House, and I am looking forward to working with the leadership across this House to ensure that we do the most effective job in helping to produce the best deal we can for this country. I am happy to take away her thoughts about scrutinising secondary legislation, and I will talk to colleagues in government.

My Lords, I am always most worried when the House is congratulating itself on how wise it has been. I was a member of the Cunningham committee, and if there is a paragraph in its report of which I claim authorship and in which I take pride, it is the one that repeats the assertion by Lord Simon that this House must retain the right to say no. What makes this House work, faced with the Government’s oft-repeated threats to clip its wings, is its grim determination to retain that right to say no. The warning, and the danger, is that if we ever gave away the right to say no—sparingly as it is used—the dynamics of this House would change. We would become a debating society, because Governments would know that whatever process they adopted—option 3 was just a single example—they could bypass this House. This House is here for a special reason, and it is the right to say no that protects its authority and makes Governments think twice.

I entirely agree with the noble Lord that this House has a vital role to play, but we must remember that the elected House has the final say, because it is the elected House. What we can do is add our voice and our expertise to ensure that opinions are reflected, and that we can improve legislation—but we are reliant on the House’s self-regulation and discipline to achieve that. As I said, I believe that we are constructive and we work well together—but if that breaks down, we will have to reflect on what that means.

My Lords, I am not at all averse to joining in universal congratulations where they are deserved, and I warmly congratulate my noble friend on her role in helping to bring a sensible conclusion to this matter. This House works best, in a bicameral parliamentary democracy, when each House understands and respects the powers, responsibilities and limitations of the other. I hope that as a result of this past confrontation, now resolved, there will be greater understanding in the future. The suggestion by the noble Baroness, Lady Hayman, of further consultation between the Houses may well offer an appropriate way forward.

As for secondary legislation, I assure your Lordships that your Constitution Committee has made this a long-running campaign for improvement. This is a besetting sin of successive Governments—it is by no means confined to the present Government—and I would suggest one way forward to my noble friend: if the Government would take a self-denying ordinance over ever inserting primary legislation into delegated secondary legislation, that would be a good start.

I do not want to give answers that diminish the enthusiasm we are showing today, but I shall not make promises I cannot keep. I add my thanks for the work of the Constitution Committee, both for its report on this review and for its wider work, which is extremely valuable and well respected.

My Lords, I was slightly worried that the Leader of the House was implying that she and the Government would have an easy time when it came to scrutinising all aspects of Brexit. The legislation that gave us the referendum was itself flawed, in that it had a very restrictive franchise and no threshold, and it was not, in my view, considered properly by Parliament. As a result of that we are in a mess. That is why it is very important to scrutinise every aspect of Brexit and all the consequences, which are huge and serious, not just in Scotland and Northern Ireland but throughout the whole of the United Kingdom, affecting the constitution of this country as well as its stability and prosperity. If we do not scrutinise them properly, we are not doing our job.

My Lords, I am under no illusions about the task that we have ahead and the role this House will play in scrutinising legislation relating to Brexit. As I said, noble Lords have already taken a constructive approach in dealing with the debates we have had so far, and I have faith that this will continue. As I said to the noble Lord, Lord McNally, we are also reliant on self-regulation and discipline to ensure the passage of legislation. We hope that that will continue.

After what the noble Lord, Lord Jones of Birmingham, said on the “Today” programme this morning, could my noble friend confirm that this House is acutely aware of the supremacy of the other place and always will behave accordingly? I congratulate her on persuading her colleagues to accept this position. Could she make it absolutely clear that this position has been reached on the understanding, because of her advocacy, that the House continues to do so, as everyone here is determined that it will?

My Lords, in welcoming the Statement, I take the opportunity to place on record my personal thanks to the noble Baroness’s predecessor, the noble Baroness, Lady Stowell of Beeston, and the Chief Whip, for the very constructive way in which they engaged with me on this issue when I was the leader of the Liberal Democrat Peers. I welcome the outcome that there has been, but I reinforce the call made by the noble Baroness, Lady Hayman, to consider a Joint Committee. One of the frustrating things that noble Lords often feel—as, indeed, do Members of the other place—about statutory instruments is that it is take it or leave it; there is no chance to amend. I know that, during the course of discussions in evidence given to committees, there were some suggestions as to how it might be possible to devise some procedure which would allow amendment of statutory instruments. Very often, it is just one small part of the instrument that people feel aggrieved about. Would she be willing to take that on board and give serious consideration to it? We should not just let the thing finish here but consider other ways in which we can actually improve the scrutiny of statutory instruments?

Again, I am not going to make any promises that I cannot keep, but I am very happy to say that I want this House to work effectively and I want us to make sure that we use our expertise properly. I want to improve the processes that we have, if we can. I am happy to take that point away, but I cannot promise what the outcome will be.

My Lords, as the chairman of your Lordships’ Secondary Legislation Scrutiny Committee, I warmly welcome the announcement made by the Leader this morning. My committee made representations along the lines that have now been agreed to, and I am very satisfied with that.

I thank my noble friend for that and thank his committee for all the work that it did in relation to the review and the work that it does regularly for the House.

My Lords, I join all noble Lords in congratulating the Government and the Leader of the House on reaching a much more mature position than was threatened by the previous Prime Minister. The whole House very much welcomes the recognition of the House’s role. However, I warmly endorse the remarks of the noble Lord, Lord Lang, about the overreliance on secondary legislation as part of the legislative process. Along with others, I have spent many happy hours in the Moses Room tormenting Ministers, or endeavouring to, on the contents of secondary legislation. I am particularly conscious of how the system works in the light of the experience over the Housing and Planning Act, as it now is. It is now more than six months since the Act received Royal Assent; the Bill went through on the basis of consultation that had not taken place and leading to secondary legislation, none of which has yet emerged. We have not even seen the response to the consultation. This is a grave defect in the system, and the noble Lord was right to draw attention to it—and it is a matter that the House and the Government need to consider, because it makes a nonsense of the time devoted in this House to primary legislation if so much of what actually happens is determined by this somewhat difficult process, over which we have little control and which, on the basis of the experience of the Housing and Planning Act, seems never to emerge.

Like the noble Lord, I often reflect on the many hours that we spent in this Chamber on the Housing and Planning Bill in the last Session. On a broader point, there has not been an increase in the use of SIs laid before Parliament in the last 20 years, but I hear what he says in relation to that Bill.

My Lords, as chairman of the Delegated Powers Committee, which also produced a report, may I say that this is a very happy conclusion and I thank the Minister for it? I want to make a slightly different point about delegated legislation in general. I think that it would be good if Governments were more careful before they introduced legislation and thought far more carefully about what should be in primary legislation and in delegated legislation. Sometimes it is a case of more haste, less speed.

I thank my noble friend and her committee for the work that they have done on this review and more generally. I assure her that I am working very hard with the leader of the House of Commons to have a rigorous approach with our Cabinet colleagues when they bring forward legislation to us.

My Lords, I congratulate the Government on the decision. I have one simple request, as this seems to me a golden opportunity. Can the Government say what they are going to do, using this as a lever, to explain to journalists and commentators the role of this House? It is the supreme ignorance among journalists and commentators—which I agree exists also among the other House, and which I shared before I came here—about our role that led to the kind of ignorant interview that the public heard on Radio 4 this morning. Can we use this as an opportunity to explain to the media, as many of us do with the Peers in Schools programme, the exact role of this House? This seems a golden opportunity for the Government, on an all-party basis, to do something about that.

I thank the noble Lord for his comments, and I entirely agree that we have a lot of work to do to improve the public’s understanding of the excellent and important work of this House. I am very keen to try to play my part in that, but we need Members across the House to do it. I know that the Lord Speaker is also very keen to make sure that we do what we can to help the public understand the important role that we play.

My Lords, there has never been a greater need for the calm deliberation that this House can bring to contentious issues. Will my noble friend accept that the example that we have had from both Front Benches today has been splendid? We all feel, across the parties, that we have a Leader of the House who takes that role seriously and we have a Leader of the Opposition who responded in an entirely constructive manner.

I thank my noble friend for those comments; I think I probably do so on behalf of the Labour leader, the noble Baroness, Lady Smith, as well.

My Lords, I echo the suggestion made by the noble and learned Lord, Lord Wallace, about the amendability of statutory instruments; I have spent the last 30 years arguing for that. In view of the work that will be done pursuant to my noble friend’s report, it would be very helpful if we could look again at the possibility of amending statutory instruments.

As I said, I can make no promises. I said to the noble Lord that I will obviously take these comments back and we will investigate further.

I do not think that this debate can conclude without mention of Henry VIII. Repeatedly, some Members—certainly on my Benches—have complained about the overuse of Henry VIII clauses. Can the Government look more carefully at that? It is not only the use of them but the wording used; sometimes one can see the force of having a clause of that kind, but can find it is overdone. There is really a major issue here as to whether this should be properly controlled.

I assure the noble Lord that when we legislate we most certainly do, and will, take care to ensure that powers are delegated appropriately.

My Lords, can I commend to the Leader of the House the transcripts of recent evidence sessions of the Constitution Committee? They illustrate so clearly that this is not merely a procedural problem for this House; the inability to amend statutory instruments has profound effects on those who have to carry out the law and would rather have it in the form of primary legislation.

My Lords, briefly, I agree with all the rightful praise that the Government have received. I particularly appreciate the comments of my chairman, the noble Lord, Lord Lang, who is chairman of the Constitution Committee—we are very fortunate to have him—that there has been abuse of the procedure for delegated legislation. However, the reason for my standing up is that I think there has been abuse at a more fundamental level. The noble Lord, Lord McNally, observed that the House of Lords should preserve the right to say no, but there are different ways of saying no. One way, in effect, of saying no is not to be allowed to speak, and I feel that the understanding of financial privilege has been incorrect and confused for many years. We had that with many important measures such as that on welfare reform, and I heard the noble Lord across the Chamber—a former Clerk of the House of Commons—taking the same view. The view that we have taken of financial privilege has been very broad and vague, and not in accordance with what Mr Asquith said in passing the Parliament Act 1911. As long as the House of Lords is restricted in a way that I regard as incorrect and unhistorical, we will continue to have problems.

I will reflect on the noble Lord’s comments. However, I end by saying that this discussion and debate has shown that we work best when we work together.