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Procedure and Privileges Committee

Volume 831: debated on Monday 17 July 2023

Motion to Agree

Moved by

That the Report from the Select Committee Leave of Absence, Sifting of proposed negative instruments under the Retained EU Law (Revocation and Reform) Act 2023 and amendments to the SLSC Terms of Reference (6th Report, HL Paper 228) be agreed to.

My Lords, the report recommends two sets of changes to the House. The first relates to the leave of absence scheme and the second to the sifting of proposed negative instruments by the Secondary Legislation Scrutiny Committee.

I turn first to the proposed small change to the leave of absence scheme. In applying to the Clerk of the Parliaments for leave of absence, Members are currently required to state that they have a “reasonable expectation” of return, to specify a reason for requesting the leave of absence, and to give a

“date by which they expect to return”.

This last requirement has caused some difficulty for Members who genuinely do not know when they will be in a position to return. Cases may include a Member seeking leave of absence for medical treatment or to take on caring responsibilities for a family member.

The change proposed by the committee would allow a Member who is not able to specify a date instead to explain the

“circumstances which will allow their return”.

The committee intends to look further at the leave of absence scheme in the autumn, and I would be happy to talk to any Member who had thoughts on how it could be improved. For now, I hope that the House will support this adjustment.

The report also contains proposals relating to the sifting of proposed negative instruments laid under the Retained EU Law (Revocation and Reform) Act 2023 and their scrutiny by the Secondary Legislation Scrutiny Committee. These proposals mirror the arrangements that operated under the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020.

The report speaks for itself and I will not detain the House unnecessarily. However, I want to place on record my considerable thanks to the members of the Secondary Legislation Scrutiny Committee, who are content to take on this extra scrutiny and to the excellent officials who serve the committee.

I would like to be very clear that the laying of negative instruments during Recess would not reduce the House’s ability to scrutinise them as the scrutiny clock would not start until the two Houses were sitting again. The advantage of allowing proposed negative instruments to be laid during recesses is that it would enable staff working for the committee to continue their work in recesses in order to provide papers immediately after the return of the House. I beg to move the first Motion standing in my name. I beg to move.

My Lords, I will speak briefly to the Procedure and Privileges Committee’s recommendation that the terms of reference of the Secondary Legislation Scrutiny Committee, which I am privileged to chair, should be extended to include scrutiny of proposed negative instruments laid under the retained EU law Act. In 2018, the committee was given a similar sifting function in relation to the withdrawal Act, which was later extended to include the sifting of proposed negative instruments under the 2020 future relationship Act.

At the beginning, the committee was in uncharted territory, but under the wise leadership of my noble friend Lord Trefgarne, the noble Lord, Lord Cunningham of Felling, and then my noble friend Lord Hodgson of Astley of Abbotts, ably assisted by the noble Lord, Lord Hutton, and others, together with a strong team of advisers and other staff, I believe the committee has since become well accustomed to what was at the time a novel procedure. Having considered nearly 350 proposed negative instruments laid under the 2018 and 2020 Acts, we would welcome this opportunity to apply our experience to sifting instruments laid under the retained EU law Act.

My Lords, can I raise a couple of points in relation to leave of absence? I have reason to believe that in one or two cases the leave of absence provision has been exploited in an unfortunate way. I wonder therefore whether the committee and the chairman could consider two things. I understand why this is not retrospective and says “in future”, but first these proposals should be drawn to the attention of those who are currently on leave of absence and, secondly, each current case of leave of absence should be looked at to ensure it is not being exploited in an unfortunate way. If the chairman wants further information, I am very happy to provide it.

My Lords, I would just like to add a few words to what the noble Lord, Lord Foulkes, has said. This House is frequently criticised because of its size. We have trotted out in newspaper leaders and articles that it is second only in size to the Chinese National People’s Congress, but if one actually looks at this House and studies it, the vast majority of work falls on the shoulders of a relatively small number of the 800 or so Members.

It is also clear, when one looks at the list of those who have taken leave of absence, that there are big question marks over some of them. Of course, an ambassador, such as our current ambassador in Italy, should, without question, be given leave of absence. We know that when he retires from his diplomatic career, he will be able to add many wise words to our counsel in this place. The same was true, of course, of the noble Baroness, Lady Ashton, when she had a very important job in the European Union and had leave of absence.

However, there are others, whose names I will not mention, who do not necessarily measure up to that and are not necessarily very ill for a long period. Of course illness or caring for a loved one should be taken into account and accepted as a proper reason, but there ought to be much more frequent reviews of this. My understanding is that, although it is supposed to be looked at by committee on a regular basis, that actually happens very infrequently. I am most grateful to my noble friend and delighted that it is being examined at the moment.

I would be grateful if, when my noble friend replies to this brief debate, he would tell us how many currently are on leave of absence, and how many have been for more than two years. My view is that, unless there is an overriding reason—health, a diplomatic appointment or something like that—a leave of absence should not be readily granted for more than a parliamentary Session. After all, if someone does not appear during a parliamentary Session, under the terms of the 2014 Act, known as the Steel Act, that Member forfeits membership. There is a very strong case, although I will not expand on it now, that those who do not put in a certain minimum attendance should forfeit their right because you are not able to play a constructive part in a Chamber of Parliament unless you attend on a reasonably regular basis and participate.

I hope that the review to which my noble friend referred—he said it would be coming back in the autumn—will take evidence and discuss this with bodies such as the Campaign for an Effective Second Chamber, which I have the honour to chair, and which has Members from all political parties and the Cross Benches and meets on a frequent basis. I hope we will have the chance to make a submission. If numbers are something that bring obloquy on the House, we ought to try to deal with that in a constructive and sensible manner. Granting indefinite leave of absence without rigorous examination, frankly, does no service to Parliament in general or to this House in particular.

My Lords, I was not intending to speak so I shall be brief. I endorse many of the comments made by the noble Lord, Lord Cormack.

As the House knows well, we are entering a period when there is going to be a great deal more debate about the future and the nature of the composition of the membership of this House, and that will extend beyond the next general election. When I read, as all Members have done, in the recent report by the Speaker’s committee on the composition of the House that the House of Commons Select Committee is currently investigating this House then I think there is all the more reason why we ourselves should have a full and proper discussion and not wait until the next election, so I fully endorse the Senior Deputy Speaker’s suggestion that we return to this in the autumn.

My Lords, I thank the noble Lord, Lord Hunt of Wirral. On what he said about “uncharted territory”, my view is that the noble Lord’s committee has acquired expertise on these matters of sifting extremely quickly, and I place on record my gratitude to previous members and current members and staff for their considerable work in this regard.

On the question of leave of absence, we have had three very helpful contributions. The work that will be getting under way, which I mentioned in prefacing this debate, is precisely for the reasons that have been articulated. We need to get this right and it needs to be appropriate. The reference regarding leave of absence is to “temporary circumstances”. One can interpret “temporary” in different ways, and we have heard various examples of rather longer periods of temporary circumstance when a Member takes leave of absence.

To answer some questions, I knew the answer to the first one, which is that 38 Members are currently on leave of absence, but then a helpful note was passed to me with a figure that I did not know, which is that 18 Members are on leave of absence for more than two years. So those are the two figures.

On future dialogue, as I have said, I very much welcome contributions, submissions or one-to-one meetings with any Members who have particular thoughts on this matter. There is an opportunity for your Lordships’ Select Committee to look at this in the autumn, because we want to make sure that it is contemporary and correct. We are of course mindful that there is the ability for some of our Members to be away for the reasons that we all know and, I hope, to come back and make a strong contribution—sometimes because of the experience they have had in other disciplines and tasks.

We have heard very helpful comments from Members of the House today. In the meantime, I commend the report to the House.

Motion agreed.