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House of Lords Hansard
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Procedure Committee
11 July 2018
Volume 792

Motion to Agree

Moved by

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That the 5th Report from the Select Committee European Union (Withdrawal) Act 2018: Sifting of proposed negative instruments by the Secondary Legislation Scrutiny Committee; Consideration of Commons Amendments; and Grand Committees on Questions for Short Debate (HL Paper 163) be agreed to.

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My Lords, the report covers three areas. The first concerns sifting arrangements for certain instruments laid under the European Union (Withdrawal) Act 2018. For some regulations laid under the Act, the Minister will have a choice about whether to apply the affirmative or the negative resolution procedure. This is unusual, and the withdrawal Act includes a sifting procedure so that Parliament has an opportunity to comment on the Minister’s choice.

The new sifting procedure requires that where a Minister decides in favour of the negative procedure, a proposed negative instrument will be laid before Parliament accompanied by a statement explaining why that procedure has been chosen. The proposed instrument will be considered by sifting committees in each House, which will be able to recommend that an instrument should be upgraded to the affirmative procedure. In this report, the Procedure Committee is recommending that the Secondary Legislation Scrutiny Committee should undertake this sifting function and, as a result, that certain changes should be made to that committee’s terms of reference. These include giving the committee power to form sub-committees and, in the interests of time, allowing the sub-committees to report directly to the House.

In addition, the Procedure Committee is recommending a new Standing Order 70A to enable proposed negative instruments to be laid in the recess. This mirrors current Standing Orders in relation to negative instruments, and similar provision has been proposed in the House of Commons. I should make clear that this will not affect the Secondary Legislation Scrutiny Committee’s ability to examine and report on proposed negative instruments. This is because the scrutiny period set out in the Act is expressed in terms of sitting days. The clock will not therefore run in recess, although staff will be able to prepare papers and other issues during the recess.

Secondly, the report seeks to address an ambiguity in the Companion relating to the rules during consideration of Commons amendments—often referred to as ping-pong. It recommends that, during ping-pong, if a Member with a proposition on the Marshalled List is absent or says, “Not moved”, any other Member of the House may move it. This follows the procedures we have for other types of amendment.

Finally, the report recommends an increase in the frequency of Grand Committees on Questions for Short Debate so that they take place once every five sitting weeks—rather than once every six sitting weeks at present—and that each such Grand Committee should cover four QSDs rather than the five at present.

It may also be helpful to the House if I say a few words about the amendment to the Motion tabled by the noble Lord, Lord Trefgarne. At its last meeting, the committee considered a proposal from the noble Lord that the franchise for hereditary Peer by-elections should be extended to all Members of the House. However, there was little support for the proposal, and the committee agreed not to recommend any changes to the Standing Order governing heredity Peer by-elections. I beg to move.

Amendment to the Motion

Moved by

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As an amendment to the above motion at end insert: “but that this House regrets that the Committee has not reported on proposals to amend the procedures relating to hereditary peer by-elections and invites the Committee to reconsider such procedures and to report to the House”.

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My Lords, I do not intend to delay your Lordships very long, as the noble Lord, Lord McFall, has already replied to my amendment. I will say only that I was aware that the matter was being considered by the Procedure Committee, but it was rather difficult for me to extract what conclusion it had reached. The first official information I have had is the remarks that the noble Lord has just made, for which I am grateful.

In reference to the earlier remarks of the noble Lord, Lord McFall, on the work of the Secondary Legislation Scrutiny Committee, and as chairman of that committee, I am happy to accept what has been decided.

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My Lords, I am surprised that the noble Lord, Lord Trefgarne, decided to move this amendment—

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He has not.

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Even if he did not move it—

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This may confuse things even more, but I am informed by bush telegraph that the noble Lord, Lord Trefgarne, did not move his amendment.

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My Lords, I apologise that I did not proceed as I should have done. I beg to move the amendment.

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I feel worn out already. As I said, I am surprised that the noble Lord, Lord Trefgarne, has decided to raise the issue of hereditary Peers’ by-elections. However, although it is unrelated to the report, it gives me and others an opportunity to speak on the subject, as these are current matters that urgently need the attention of the House.

This time last week, we had the announcement of the result of a by-election for the Cross Benches. We had only minimal information from the Clerk of the Parliaments, which is perfectly in order. I sought to get more details and am happy to say that the full documentation is available in the Printed Paper Office and it provides a wealth of information, which I will distil for the benefit of the House.

It reminds us that for that by-election—that is, for a place in Parliament—there were 31 electors and 19 candidates. I now know from this document that 10 of those candidates did not receive any votes at all. I should say that one of the candidates stood in the hereditary Peers’ by-election for the vacancy on the Cross Benches and the same candidate will be standing in the current election for a Conservative vacancy—

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So he is a man of few permanent political convictions. The voting was based on the alternative-vote system. There were six rounds of balloting and the winner won by a margin of 12 votes to five—a majority of seven. I have fought a lot of elections but I do not know, on the basis of the votes given, whether that would be a marginal or a safe seat. As far as I know, no psephologist has analysed the figures in any detail to see what significance, if any, they have in terms of swing or the likely outcome of the next general election, or anything of that sort.

However, I say to the House that the noble Lord, Lord Trefgarne, is trying to do the impossible. He is trying to make a system work when it is fundamentally flawed and deserves to be scrapped. If I dare say so, I think that he tests the patience of the House by persisting in blocking a Bill which would solve this problem very simply and would hurt no one.

The noble Lord’s proposal, which, in my view, the Procedure Committee very wisely decided not to proceed with, was simply that the whole House should take part in these elections. I do not want to weigh everyone down with statistics but, just for information, the last time the whole House took part in a by-election for the replacement of a hereditary Peer was in March 2017. Then, the electorate—the whole House—was 803 and 346 people turned out to vote. That was a turnout of 43%, which, for interest, was lower than the lowest turnout for any of the 650 House of Commons seats at the last general election, so I am happy to say that there was no great enthusiasm among Members of this House even for an electorate of the whole House. However, of course that does not deal with the fundamental problem, which is that the only people eligible to stand are hereditary Peers. There are 92 reserved places and, of the 211 people on the official list, 210 are men, although all that is unaffected by the proposal put forward by the noble Lord, Lord Trefgarne. This matter is urgent, not least because two by-elections are pending.

There is one rather sombre piece of information that we all have to consider at some stage. There were 92 names on the original list in 1999, when the exempted hereditary Peers remained in the House. Of those 92, 33 have been replaced since then in by-elections. That leaves 59 still potentially pending. However, the inevitable consequence of Father Time is that those elected in 1999 and still here are getting on a bit, which I think is the actuarial term. The by-elections of the 59 still pending from the original 92 will inevitably come up with monotonous regularity, and that monotony will be exacerbated by me repeating this speech on numerous occasions every time this occurs—for which I apologise to the House, but it needs to be dealt with soon.

All I ask of the noble Lord, Lord Trefgarne, is that he stops playing King Canute. These by elections will cease—the House wills them to cease. Please do not block the Bill any more but allow it to pass through and achieve something which virtually the whole House knows is both inevitable and desirable.

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My Lords, perhaps I may ask a question about transparency. Would it not be within the bounds of possibility that whatever is discussed in something like the Procedure Committee is noted for us? If this matter had not been raised, one would not know as a Back-Bencher what had been discussed. Surely it would be quite easy to say that this matter was discussed but not agreed to.

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My Lords, the Procedure Committee minutes will be published and it will be noted, and I can say as chair of the committee, that there was negligible support for the proposition. That will be a matter of record. The noble Lord, Lord Grocott, raised a point about making his speech. He will have a chance again to make the same points on Friday, 7 September, when his Private Member’s Bill will be discussed. We look forward to that.

Far be it from me to get between the noble Lords, Lord Grocott and Lord Trefgarne. I have been a friend of the noble Lord, Lord Grocott, for many years—he has been a good friend to me—and, since I have taken up this position, the noble Lord, Lord Trefgarne, has been most courteous in his dealings with me, both on the sifting issues regarding the Secondary Legislation Committee and in giving me notice of his amendment.

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I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.