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House of Lords

Wednesday, 13 January 2016.

3 pm

Prayers—read by the Lord Bishop of Rochester.

Bus Services: Local Government Funding


3.06 pm

Asked by Lord Greaves

To ask Her Majesty’s Government what assessment they have made of the effect of reductions in local government spending on local bus services in 2016–17.

The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con): My Lords, decisions about the provision of bus services requiring local government subsidy are a matter for individual English local authorities in the light of their other spending priorities. The majority of public funding for local bus services is via the block grant provided to local authorities in England from DCLG. The Department for Transport also provides £40 million in bus service operators grant funding directly to English local authorities to help deliver local bus services.

Lord Greaves (LD): My Lords, that is a factually correct account. However, all over the country there are horrific stories about local bus services being cut as a result of cuts in council subsidies as a result of cuts in the funding of local authorities. In my own county of Lancashire, the proposal that will go before the county council is to abolish bus subsidies for services to villages, services in rural areas, and the little buses that go around the towns, which are so important. Is this really the legacy that this Government want to leave?

Lord Ahmad of Wimbledon: It is not. I mentioned the bus service operators grant. In Lancashire, last year, we provided £1.86 million directly for the purposes of retaining services. The Government are looking at the overall offering of bus services, particularly in rural areas, to ensure both connectivity and the sustainability of essential transport links.

Lord Snape (Lab): My Lords, did the Minister happen to see the BBC “Countryfile” programme last Sunday, which set out starkly the decline in bus services throughout this country, particularly in rural areas? Does he agree with the conclusions of that programme that this decline is largely due to the reduction in government payments to local authorities and direct grants for bus services? Can he assure the House that the much-vaunted devolution of these services will be accompanied by proper finance? Otherwise, some of us might suspect, that decline will continue, with the blame moving from Whitehall to the town hall.

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Lord Ahmad of Wimbledon: I did not see the programme. Part of my Sundays are taken up with my own “countryfile” responsibilities of helping my children build their country projects—in this case, however, it was a chocolate cake.

To get back to the question, the noble Lord is quite right to point out that there are challenges in funding. However, this is not about apportioning blame to one over the other; it is about ensuring that essential services are sustained, and the Government are moving forward on this. Indeed, yesterday, during the debate on the devolution Bill, I talked about the creation of STBs, which I intend will ensure that local decisions on transport are made by the people who know best.

Lord Rosser (Lab): My Lords, given the drop in fuel prices, what action have the Government taken to ensure that there is now a reduction in bus fares to reflect the reduced cost arising from that?

Lord Ahmad of Wimbledon: As the noble Lord will be aware, one of the legislative proposals coming forward is the buses Bill, which will ensure again that local authorities are empowered—through the purposes of franchising, for example—to ensure better, sustainable fares and the sustaining of essential bus services. That will form part and parcel of the Bill.

Baroness Randerson (LD): My Lords, Conservative councillors in Wiltshire, Dorset and Somerset are all among those proposing swingeing cuts to bus services across the country. Indeed, Somerset plans to cut community transport schemes which are usually the last refuge for rural services. The Government proposed after the election the reform of the bus service operators grant. That is clearly now delayed. Can the Minister tell the House when announcements will be made on this? Can he assure us that any reform of this grant will include an element for mileage which would protect rural bus services?

Lord Ahmad of Wimbledon: I am sure the noble Baroness is aware that the grant she talks about is being protected. Indeed, in the last spending round that is exactly the commitment given by my right honourable friend. The announcements are imminent and will be made quite shortly. I also draw the noble Baroness’s attention to the total transport pilot fund we are currently allocating to 37 local authorities which are looking at an integrated form and retention of transport funding, which includes the bus services operators grant, local bus services support through DCLG, home-to-school transport provided through DfE and DCLG, and non-emergency patient transport. We need an integrated approach to long-term solutions and sustainability at a local level.

Baroness Perry of Southwark (Con): My Lords, does my noble friend agree that it is unfortunate that some local authorities are making cuts in services when they are sitting on substantial reserves?

Lord Ahmad of Wimbledon: I agree with my noble friend but, as I have said already, it is very much a decision-making matter for local authorities. We are,

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through various legislative measures that we have taken in the previous Government and in this Government—only yesterday through the devolution Bill—underlining the importance this Government attaches to local decision-making, including on transport.

Baroness Royall of Blaisdon (Lab): My Lords, local decision-making is extremely important but it requires funds to underpin it. However, much has been made about the need for good rural bus services. At the moment the cuts in rural bus services are hitting students particularly harshly. Will the Minister have a discussion with his colleagues in the Department for Education so that we can ensure that students choose their post-education studies on the basis of what is best for their future and not on the availability of buses to get them to and from their courses?

Lord Ahmad of Wimbledon: I assure the noble Baroness that I have regular discussions and conversations with colleagues across a vast range of areas and across different ministries. The total transport pilot fund I have highlighted again underlines the Government’s commitment to look at how funding works and how government funding is sourced and provided at a local level across a range of different departments. We are half-way through the pilot and I shall report back once we have completed it.

Lord Lea of Crondall (Lab): My Lords, do the Government agree that public services are part of our living standards and that when measuring the cost of living it is not only the retail prices index that is not moved by these affairs? People have to go to a supermarket a long way away and pay for a taxi or make some other arrangement. Is there not a case for an inquiry into how we measure the cost of living when it does not include these major elements?

Lord Ahmad of Wimbledon: As a public servant I agree with the opening statement of the noble Lord: the public sector is an important part of this. I do not agree with the premise that an inquiry is required. When it comes to transport, we need to ensure that we have schemes in place that work for ensuring sustainable transport at a local level. That is the Government’s priority.

Gross Value Added


3.14 pm

Asked by Lord Wigley

To ask Her Majesty’s Government what are the latest figures for the gross value added per head in England, Wales, Scotland and Northern Ireland respectively.

Lord Ashton of Hyde (Con): My Lords, the latest figures published by the Office for National Statistics show that in 2014 gross value added per head was £25,367 in England, £17,573 in Wales, £23,102 in Scotland and £18,682 in Northern Ireland.

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Lord Wigley (PC): My Lords, last week the Chancellor of the Exchequer boasted in Cardiff about the UK Government’s role in securing a small improvement in the Welsh economy. That being so, do they also take their share of the responsibility, at least, for the fact that the average Welsh income per head is still more than 25% below the average for England? That has stubbornly been the fact for the past three decades. Are the Government totally complacent about that?

Lord Ashton of Hyde: My Lords, as the House knows, my right honourable friend the Chancellor is a modest man and will take credit only where it is due. The fact is that since he became Chancellor, some 70,000 jobs have been created in Wales, unemployment has fallen by 30% and we have invested £69 million in rolling out superfast broadband to 500,000 homes and businesses. But as the noble Lord has said, it is also true that since GVA statistics started in their current form in 1997, under all Governments GVA in Wales has been around 70% of that in England every year. Certainly, the Chancellor is not going to take responsibility for all those years, but the good news is that since 2010, Wales’s GVA has grown at a faster rate than England’s.

Lord Forsyth of Drumlean (Con): My Lords, can my noble friend confirm that the figures for Scotland would be disastrously lower had Scotland voted for independence in the referendum, given that the oil price has fallen from what the SNP said it would be, which was $110 a barrel, to $31 today?

Lord Ashton of Hyde: Obviously, the premise of the independence party was based to a large extent on the oil price, but as my noble friend has said, it has fallen, from $120 per barrel in 2012, and is predicted to fall as low as perhaps $25. That is a very important factor to take into account.

Lord Anderson of Swansea (Lab): Does the Minister agree that a similar picture of comparative poverty emerges from tax receipts in Wales? The last figures I saw suggested that only 4,000 Welsh taxpayers are in the top tax band. The question is surely this: what are we going to do about it? Does that not have implications for the Barnett formula, and will the Minister confirm that the comparative position in Wales is deteriorating?

Lord Ashton of Hyde: The trouble with comparing England and Wales is that England has a population of about 53 million, while the population of Wales is some 3 million, so it is a difficult comparison to make. A better comparator would be the regional differences in England. But obviously, what we want is for more people to go into higher tax bands in Wales because the economy is booming and we are doing our bit to help that through investment. We hope that, when the devolution settlement is reached under the new Wales Bill, the Welsh Assembly will be able to play their part in growing the Welsh economy.

Lord Thomas of Gresford (LD): My Lords, in 1999 the GVA index for Wales was 79.2 as against a UK average of 100. The Labour Government of the day

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promised to increase it to 90 by 2010, but in fact it has dropped to 71. Perhaps I may employ my family motto, ar bwy mae’r bai—who can we blame?

Lord Ashton of Hyde: My Lords, I think we should take a more positive view and work out what we are going to do about it. Certainly in Wales, there is plenty that the Government are doing. For example, capital spend is increasing by £900 million over this Parliament. Infrastructure investment through the block grant in this Parliament will rise by just under 17%, and among other things we would like Cardiff to agree to a city deal which will help its economic growth.

Lord Geddes (Con): Does my noble friend agree that the economy of Wales would be greatly improved if the Severn barrage project went ahead? What progress has been made on that?

Lord Ashton of Hyde: I believe that my noble friend has raised this point before. I am not sure that I can make much more progress, except to say that the Government have started a due diligence process on this project. But it is very important to work out the cost-benefit analysis of tidal lagoon energy. This is an ongoing process. It is important that we understand the costs of this project and the technology in detail, particularly in the broader context of energy needs and prices, and availability.

Lord Davies of Oldham (Lab): My Lords, the Minister said that the Chancellor was a modest man. Well, he certainly used to boast about the fact that he was going to achieve a balanced economy in terms of manufacture and finance, as well as regional balance. Since 2009, London’s economy has grown by 20.9% but in one region—Yorkshire and Humberside—the figure is 12.8%. What on earth have the Government got to boast about in achievements in that area, particularly when, for the first time in a decade, wealth inequality in this country has increased? Is it not clear, in this the seventh year of the long-term economic plan, that this Government are utterly incapable of creating fairer growth across the economy and ensuring that all citizens participate to some extent in improving conditions?

Lord Ashton of Hyde: The noble Lord should not decry the fact that gross value added wealth creation takes place in the south-east and London: that is obviously a good thing for the country. However, we do want to make sure that that same growth applies to the regions. He is right that it is less in the regions of England and the devolved Administrations than in London, which is bigger by far than the rest of the regions. Of course, we do have a comprehensive plan to rebalance the economy and strengthen every part of the UK. It involves major investment in transport infrastructure, science and skills, and support for local businesses. We have set up the National Infrastructure Commission, for example, which will spend £100 million in this Parliament, of which £61 million will be on transport.

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Saudi Arabia: Executions


3.22 pm

Asked by Lord Hoyle

To ask Her Majesty’s Government what representations they have made to the Government of Saudi Arabia about their reported plans to execute 50 people.

The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con): My Lords, the British Government are firmly opposed to the death penalty in all circumstances and in every country. We are deeply concerned about the execution of 47 people on 2 January. We have expressed these concerns to the Saudi authorities. The British Government do not shy away from raising legitimate human rights concerns and we believe that we would be more successful discussing cases privately with Saudi Arabia than criticising it publicly.

Lord Hoyle (Lab): I thank the Minister for that reply and I am pleased that she has taken a stronger attitude in relation to the plans, because there appeared to be a craven silence in relation to them, particularly as this is the largest number since 1980. What view does she take of the opinions that have been expressed that these are intended to derail the Syrian peace process talks taking place in Vienna?

Baroness Anelay of St Johns: My Lords, throughout my time at the Foreign Office, I have made it clear on every possible occasion the strength of feeling that the Government have about the death penalty. It is wrong in principle and wrong in practice. Clearly, the noble Lord and I agree on that. There is a concern that any changes in behaviour by any country in the region may have a destabilising effect on the important discussions to which the noble Lord rightly alluded. We understand from both Iran and Saudi Arabia that they expect to continue to support the negotiations on Syria.

Baroness Falkner of Margravine (LD): My Lords, the noble Baroness accepts that Saudi Arabia not only uses the death penalty but uses it against political prisoners, which is a significant point. It also wages illegal wars, as with its neighbour Yemen, and supports jihadi groups in Syria. Will she tell the House how she thinks that the UK Government supporting and collaborating with it to get it elected to the Human Rights Council of the United Nations advances international peace and security or the UK’s interests? Does it advance human rights?

Baroness Anelay of St Johns: My Lords, there are at least five questions there. Of course, I am supposed to try to address just two. I will choose perhaps the two most contentious. First, with regard to Yemen, it is not an illegal activity. I remind the noble Baroness that the request for support was made by the legitimate President, President Hadi, to the United Nations Security Council.

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Regarding the Human Rights Council, I say now, as I have said throughout, that the matter to which the noble Baroness referred was an uncontested election—I know that that has not got into the media, so many people are not aware of it—and therefore the Saudi Arabian place, by the interesting way in which the Human Rights Council works, was taken because it is a member of the Asian group.

Lord Singh of Wimbledon (CB): My Lords, by any sort of measure the regime in Saudi Arabia, with its beheadings, amputations and public floggings, is one of the most barbaric in the whole of the Middle East, yet our Government continue to look more benignly at that regime than at others in the area. There is a Christian hymn that states:

“They enslave their children’s children who make compromise with sin”.

Does the Minister agree with this sentiment and agree that the overriding strategic interest for the 21st century is even-handed respect for the human rights of all people?

Baroness Anelay of St Johns: My Lords, we do indeed subscribe to that very value: there should be even-handed respect for the human rights of all people. But we have to recognise, whether we like it or not, that Saudi Arabia follows sharia law, as other states do, and that the death penalty is part of that. Clearly, we do not support that and we work towards its eradication around the world. Saudi Arabia is a country with which we continue to work strongly. It is an important partner for security purposes. Indeed, it has provided information that has enabled us to avoid serious security incidents in this country.

Lord Tugendhat (Con): My Lords—

Baroness Corston (Lab): My Lords—

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): I am sorry to interrupt. We have not heard from the Conservative Benches, but it would then be right to come back to the Labour Benches.

Lord Tugendhat: My Lords, I congratulate the Minister on her reply. Would she not agree that, while megaphone diplomacy is never very helpful, it is important that the Government should make clear privately to the Saudi Government that the indignation and concern felt about their policy crosses all political boundaries in this country and that therefore, if they persist in their present line of policy, it will make it very difficult indeed for the British people, let alone the British Government, to support the continued close relationship that we have enjoyed with Saudi Arabia in the past?

Baroness Anelay of St Johns: My Lords, my noble friend makes the excellent point that all states around the world need to balance very carefully their actions against how they will be seen by the international community.

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Baroness Corston: My Lords, given what the Minister said in reply to other noble Lords, and in view of the fact that she and I were on a Speaker’s delegation to Saudi Arabia in December 1997—probably the only time in our lives when our ankles had to be covered because they were considered provocative—and remembering the experience of that visit, would she agree that it would have been much better if the Prime Minister had said something a little more emphatic than that it was “disappointing” that 47 people had been executed?

Baroness Anelay of St Johns: My Lords, we do not talk about disappointment with regard to individuals—we say that it is wrong for the death penalty to be used and we are deeply concerned when it is—because it is wrong to pick out one individual as against another. Every death is to be mourned and grieved. It is wrong and we need to work together to change the future. Saudi Arabia may be changing slowly, but it is. The noble Baroness reminds me of that visit. However, we may have been the first ladies to visit Riyadh—indeed, even into the mosque in Riyadh, where we were not asked to cover our heads.

Sugar Tax


3.29 pm

Asked by Lord Clinton-Davis

To ask Her Majesty’s Government what plans they have to impose a sugar tax on fizzy drinks.

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): My Lords, we will be launching our childhood obesity strategy soon. It will look at everything, including sugar, that contributes to a child becoming overweight and obese. It will also set out what more can be done by all sides.

Lord Clinton-Davis (Lab): If we had a league of government U-turns, this one would surely head the list. Not so long ago, the Prime Minister said that a sugar tax was not worth while. Now, urged on by experts and MPs of all parties, he says that it is not a bad idea. What should we now do? My view is that we should follow the example of Mexico. Why wait for many months when the evidence is very clear? Why do the Government not act immediately?

Lord Prior of Brampton: My Lords, I think the Prime Minister’s position is that he will want to think long and hard before imposing a tax that would fall by and large on those least able to afford it. On the other hand, the Prime Minister and the Secretary of State for Health recognise that obesity is a scourge in this country, affecting young people in particular, and will want to implement a comprehensive range of measures to tackle it.

Baroness Hollins (CB): My Lords—

Lord Ribeiro (Con): My Lords—

Noble Lords: Cross Benches!

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The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, I was just going to say that perhaps the House itself would like to indicate who it would like to ask a question because we are at that point in the cycle when it is not anybody’s turn next. However, I think the House has indicated that it would like to hear from the noble Baroness, Lady Hollins.

Baroness Hollins: My Lords, what assessment have Her Majesty’s Government made of evidence provided by the BMA—I should declare an interest here as chair of the BMA’s Board of Science—Public Health England and others on the anticipated positive impact of implementing a sugar tax? Does the Minister agree that we need a range of regulatory and educational measures to reduce the intake of added sugars, particularly among children and young people, but also adults with learning disabilities who are vulnerable to some of the same market pressures?

Lord Prior of Brampton: My Lords, the Government have taken into account a range of evidence from Public Health England, the McKinsey institute, the SACN and others in coming to their strategy. The noble Baroness is absolutely right that the response will need to take into account issues such as reformulation, portion size, availability and a whole range of other issues that affect sugar intake.

Lord Ribeiro: My Lords, while the sugar tax for fizzy drinks is a regressive tax, the very people it would target stand to benefit from such a tax because, leaving aside obesity, which is a long-term problem, dental caries are a short-term problem. There is no doubt that sugary drinks are causing a massive amount of dental caries, the cost of which falls on the NHS, as these unfortunate children have to have dental extractions which will affect their well-being and quality of life for years to come.

Lord Prior of Brampton: My Lords, reduction of sugar is a critical part of the Government’s obesity strategy. It has been made clear by the reports of Public Health England, the McKinsey institute and others that there is no silver bullet. It is not just a question of passing a tax and getting the results that you wish to have. If a tax were to come in, it would be part of a whole range of other measures.

Lord Rennard (LD): My Lords, does the Minister accept that the introduction of a modest sugary drinks tax should be a win-win policy in that, if it works, people would be deterred from consuming those drinks, switch to alternatives and lead healthier lifestyles, and, if it does not work, it would raise money much needed by the NHS to deal with the problems of the obesity and diabetes epidemics?

Lord Prior of Brampton: My Lords, as I said earlier, the Prime Minister and the Secretary of State for Health are thinking long and hard about what should be part of the obesity strategy. I am not sure that the noble Lord is right when he says that a modest tax

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would have much of an impact; it would have to be a significant tax to have a major impact on the consumption of sugary drinks.

Lord Brooke of Alverthorpe (Lab): My Lords, does the Minister agree that the campaign against tobacco and cigarettes has been particularly effective? It has been applied across all sectors of the economy with no differentiation between any particular sectors. He mentions that, this time round, we have to be concerned about how sugar might impact on particular parts of the community but, surely, we should make our approach similar to what we did with cigarettes and tobacco and we should apply it right across the board so that we all gain from the change.

Lord Prior of Brampton: My Lords, I think that the noble Lord is right; indeed, the Prime Minister has called this the new smoking. Obesity is as important to public health as smoking has been in the past. We have to build a much stronger case among the public at large before we can start to introduce the full range of tax and other measures that we have had for cigarettes and alcohol.

Baroness Walmsley (LD): My Lords, has the Minister tried the Sugar Smart app on his mobile phone, which can be found on the Change4Life website? I tried the app this morning—it is very clever; it reads a barcode and tells you how much sugar is in a product. Unfortunately, however, I tried it on five sugary products and it did not have any of them in its database. Has this very good idea been under resourced?

Lord Prior of Brampton: My Lords, fortunately I, too, tried the Sugar Smart app this morning. Interestingly, 600,000 people have downloaded that app and the PHE Change4Life programme has had considerable success in raising awareness of the amount of sugar that you consume when you buy a product in the supermarket.

Housing and Planning Bill

First Reading

3.36 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Strathclyde Review

Motion to Take Note

3.36 pm

Moved by Lord Strathclyde

That this House takes note of Command Paper Cm 9177, Secondary legislation and the primacy of the House of Commons.

Lord Strathclyde (Con): My Lords, I am flabbergasted by the number of Peers who have put their names down to speak this afternoon. For a moment I wondered whether they realised that we are discussing statutory

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instruments, then I thought that perhaps I had been more controversial in my review than I had originally intended. I think, however, that it is a sign of the importance that we attach as a House to the way that we pass legislation and to the powers that we have. All are, therefore, extremely welcome, perhaps none more so than the two maiden speeches that we will hear this afternoon, from the noble Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Darling of Roulanish. The noble Lord, Lord Darling, brings recent and genuine breadth of experience and knowledge from the House of Commons, which I know will be extremely valuable to this House. Another reason I welcome his words is that I think he was probably the Minister responsible for the introduction of tax credits in the first place. So long as he can keep his words uncontroversial, it will be interesting to hear what he has to say.

This debate goes to the heart of what we believe we are here to do—what we are for. It goes to the heart of the relationship between this House and the House of Commons and how we conduct our affairs, particularly given that the Government are, and always are, a minority in this House. There has been nothing new in that since 1945. I have heard some people say that the Government have overreacted in all this because it is the first time that a Conservative Government find themselves not in control of the House of Lords. I have some sympathy with why people say that. I do not think that it was always quite as easy as some people imagine when we had about 400 Peers in the House of Lords, mainly because they did not always turn up, but I understand the point that is being made. The answer to that, of course, is that the Government need to learn lessons about how to handle the House of Lords. However, it is also the first time that the Labour Party finds itself in a position of power and authority as the Opposition in this House and, therefore, a great responsibility falls upon its shoulders.

I also presume no greater qualification than anybody else to be leading this debate, but between 1994 and 2013 I was either the Chief Whip or Leader in opposition and in government. Therefore, I had a rare view and a period of study of the theory and practice of how we deal with secondary legislation in this House, particularly how statutory instruments are dealt with, and of the various conventions that guided us during that period. I am sorry that the noble Lord, Lord Hennessy, is not here, because it is what he might have said was a study in the emotional geography of the House, and in how it has changed over the last 20 years.

We need at least to understand and agree on the nature of this House. Without a government majority, it is a very strange beast. I was in opposition for 13 years, and there is always an obligation in opposition to know that there is often an opportunity—a requirement, in fact—to pull your punches: a self-denying ordinance. If not, the House can virtually always defeat the Government, and that way chaos lies and the patience of the House of Commons will be tried. You have only to look at the history of the 20th century. The House of Lords behaved foolishly in the run-up to the 1911 Parliament Act, and of course the 1949 second Parliament

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Act is a reminder of what happens when the Commons loses trust in the ability of the House of Lords to complement its work.

To avoid these problems, in the latter part of the 20th century we developed a whole series of practices that developed into conventions of the House, such as the one I contend existed on statutory instruments. There are others on reasonable time and, of course, the far better-known Salisbury/Addison convention on Second Reading amendments. I am delighted that one of the speakers this afternoon is none other than the noble Lord, Lord Cunningham of Felling. When he was in the House of Commons, he chaired a Joint Committee that did a comprehensive study about the conventions that govern the relationships between the two Houses.

Noble Lords: He was in the Lords.

Lord Strathclyde: Well, he had been in the House of Commons, my Lords, and therefore it would be fair to say that he had a pretty good view of the relationship from both sides of the argument. He was then a supporter of the Government; I am sure that he is still a supporter of the Labour Party. These things are important, because when you reread his work from 2006 you find that it is still fresh and interesting, and I urge noble Lords who are so interested to go back and have a look at it. Perhaps the Library could be persuaded to give a small extract from it on the conventions of the House of Lords to remind us.

Why conventions? Conventions require us to behave in ways that we would rather not. They require us to sign up to a series of obligations that constrain the way the powers of the House of Lords are used. To work, they need to be binding on those who agree them; and they are of course based on trust, because there is no legal basis for them.

My view is that the convention on statutory instruments has been fraying for some time, for a number of reasons. First, the House of Lords has changed substantially over the last 17 years. There is undoubtedly a new confidence in the House of Lords; I applaud that. There has been an influx of new Peers over many years. There has been a fundamental change from a more hereditary House to one that has been appointed, with people here on merit. On the other side of the equation, however, there has been a loss of collective memory and less understanding of the implications of what happens when we use our powers too aggressively. I tried to avoid that after 1999, when it should be remembered that nearly half the Conservative Party in the House of Lords was expelled by the Government. I do not want to give this Government any ideas, but it was quite effective at the time.

In 2000, I declared in a speech that the convention was now dead. I did so quite deliberately and pointedly, and we then went on to defeat the Government on some order to do with the London mayoral elections. Two things happened immediately afterwards. First, we agreed a process by which the offending order was put into legislation and, secondly, Lord Williams of Mostyn and I agreed that of course the convention should stay on and that it was not true that there was no need to continue the conventions from the old

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hereditary House into the new House that had been created after the 1999 Act. He understood, as a Leader of the House and leader of the Labour Party in this House, that it would help the House of Lords to work better to maintain this convention.

There is a similarity between that and what happened in 1968. Incidentally, one of the remarkable things about this House is that my noble friend Lord Trefgarne, who is going to speak in a few moments, was around in 1968 and voted on the Rhodesia orders, on which the House foolishly voted to vote down the orders to impose sanctions on Rhodesia. My noble friend Lord Carrington and Lord Shackleton, who were then the Leader of the Opposition and the Leader of the House, agreed that there should be a convention that this should never happen again—and nor did it, until 2000. In the 1970s came the start of the Motions to Regret, which were a sensible way forward. However, that agreement of my noble friend Lord Carrington and Lord Shackleton was a sensible and pragmatic understanding between two parties. They accepted that the Lords may have the power to reject but that they should not use it, because they did not have the authority to do so.

In 2007, the super-casino orders were also lost in the House of Lords. There was no Conservative Whip but it was interesting that 15 Labour Peers voted against the Government and there was a dramatic last-minute intervention by the then most reverend Primate the Archbishop of Canterbury. No more was heard of the super-casinos after that.

That brings us to tax credits, because what was so interesting about the votes that took place on them is that the House divided along entirely political lines. In fact, what was so unusual is that several senior Labour Peers voted to support the Government—not, I hasten to add, because they had any affection for what the Government were doing on tax credits but because they understood the constitutional implications of what was to take place and that a practice was going to change. In the Chamber itself, there was some confusion as to whether the delay Motions of the noble Baronesses, Lady Hollis and Lady Meacher, were in tune with the convention or broke it. At a stroke, there was then more than one interpretation of what the convention was; hence there has been a need for clarity and the Prime Minister, in his wisdom, invited me to conduct my review.

I should say at this point that I absolve completely, if any absolution is required, the two noble Baronesses in their Motions. I do not think for one moment that they were seeking to undermine the conventions that existed. In fact, they had rather cleverly and innovatively found a frame of words that technically did not break the convention. These were words that were neither fatal nor non-fatal; this is the cleverness that succeeded.

My view is that, in practice, whatever the technicalities, they proved fatal because they took the order hostage and would not pass it unless certain conditions were met. The noise from the opposition Benches exemplifies what has gone wrong, because if we cannot now agree what the convention is, we have to either re-establish it or find another way to try to get it right.

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My review was greatly helped by an excellent team of officials from the Cabinet Office and a group of parliamentary advisers whose combined knowledge of Parliament and the passing of legislation is, I think, unparalleled. However, it was my review and my report, and I am entirely responsible for all the views held in it.

One issue that exercised us perhaps more than anything else was that of financial privilege. In my report, I discuss the old conventions between the two Houses on tax and supply, which go back to the 17th century—some argue to the 15th or the 14th century. Sometimes these things are not well understood these days. What is true is that financial privilege is very much a matter for another place, which, rightly, jealously guards its financial privilege. I have made recommendations that government and parliamentary authorities ought to discuss more, perhaps with the House of Commons Procedure Committee, exactly how to deal with financial privilege in future.

Of the three options that I have put forward, the first two are pretty self-explanatory. The first is to remove the House of Lords from debating and discussing statutory instruments, which I think would be a loss of scrutiny and an encouragement for the Government to use statutory instruments and secondary legislation even more. The second is somehow to rebuild the convention, but the convention can be rebuilt only if it comes from the House. Governments cannot impose conventions on the House. That is why I came to my third option, which is a genuine attempt to find a new procedure and give the House of Lords a new power, a very practical power that we have never had before. I also have to admit that there was nothing original in it. As part of my studies, I looked at previous debates and discussions. As early as 2001, in the great Royal Commission on Reform of the House of Lords chaired by my noble friend Lord Wakeham, he and his team of commissioners came up with a plan that looks remarkably similar to my option 3, and it has been echoed in other studies as well.

By having the ability to do what the House of Lords traditionally does so well, which is to ask the House of Commons to think again, we are doing what we have always done. To limit it to—if I may call it this—a ping without a pong, we are giving the House of Lords certain rights that it does not have at the moment. In other words, we have a conversation between the two Houses but the other House has the final say.

I should also like briefly to mention the scrutiny committees. One thing that became apparent very quickly was in what high regard the scrutiny committees of the House of Lords, chaired by my noble friends Lady Fookes and Lord Trefgarne, are held by government departments, Commons committees and outside commentators. There is no question in my mind that secondary legislation—statutory instruments—are an absolute requirement in the modern era, but it is very important that we have the right tools for scrutiny. We should question very strongly when framework Bills are put before us whether the requirements for ministerial powers are necessary.

Since the Statutory Instruments Act was passed in 1946, we have enjoyed unfettered powers to vote on Secondary Legislation. In this context, I asked myself

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these questions. First, is there a problem that now needs to be solved? I concluded that there was. Secondly, should the Lords retain this veto power? I concluded that the answer was no. Thirdly, is this the right time for a new power and a new procedure for the House of Lords to do what it does best? That is, to ask the House of Commons to think again, and the answer to that was yes. It is now up to your Lordships and the Government to decide not only whether these are the right questions but whether they are also the right answers to find a sustainable process that will serve the interest of Lords and Parliament alike over the next few years. I beg to move.

3.56 pm

Baroness Smith of Basildon (Lab): My Lords, I have greatly enjoyed listening to the noble Lord, Lord Strathclyde. At the outset, I thank him for his service to your Lordships House’ through this report. For years your Lordships have, without any recognition, fanfare or glare of publicity, dutifully and with great expertise considered and advised Governments on Statutory Instruments—or SIs as we affectionately call them. Rarely if ever has there been any interest outside Parliament. Now, with the Government having been asked to reconsider just one such SI, their massive over-reaction means that suddenly, SIs are the hot and exciting political issue. In the language of social media, SIs are trending in UK politics. Part-baffling and technical, part-exotic with lots of promise, they have, some may say, even added a frisson of excitement to parliamentary proceedings. For that I thank the noble Lord.

More seriously, I also thank him for his report, and for the extraordinary speed with which it has been produced and the vigour with which he has sought to defend the Government’s exceptionally weak rationale for undertaking it. Like him, I look forward to this debate and welcome that there is such interest across the House from those speaking today. I am also pleased that we have two maiden speeches, from the noble Baroness, Lady Bowles and my noble friend Lord Darling, whom it is a great pleasure to welcome.

The noble Lord, Lord Strathclyde, is a jovial man of great integrity. He was a popular and effective fellow leader during the last Labour Government. Before he spoke today, I must admit that I was starting to worry that his memory was failing him. When I read his report, I thought that he had forgotten his speech, the date of which our memories may differ over—I think it was in 1999 but he says it was in 2000—in which he declared that the convention was dead. He disabused me of this when he spoke. So what has changed, now that he now sits on the government side of the Chamber? As I have said before, I think that there are two versions of the noble Lord, Lord Strathclyde: one for opposition, and now we have a shiny new one in government.

Across this House we are proud of our well-earned reputation for effective legislative scrutiny. It is what we do, and we do it well. As part of that, SIs are normally examined in Committee by Peers who have knowledge of or expertise in the issues. Any member of your Lordships’ House is entitled to ask questions

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or express an opinion in an SI committee. Very occasionally, there is a vote. Exceptionally this House may reject an SI. It last did so in 2012, on legal aid, and prior to that in 2007, under the noble Lord’s leadership. In his report the noble Lord recommended that the Lords’ power be limited to asking the other place to think again only. But SIs are sent to your Lordships’ House from the Government, not from the Commons, and it is perfectly proper for us to consider an SI first. Perhaps more importantly—and it is probably easier for me to admit this as a former Member of the other place—your Lordships’ House’s processes are more robust.

In the other place the Government ensure they have a majority on any SI committee and MPs are chosen by Whips. Other former MPs may recognise that the two most common questions asked by MPs selected to serve on an SI committee are, first, “Why me?” and secondly, “How long will it last?”. It is a rare Minister who welcomes Back-Bench interventions.

Of course, we should examine our procedures to see whether they remain effective, appropriate and relevant, but that should be in the interests of good governance and with respect to the role of your Lordships’ House, not for the advantage of any Government. If we are seeking to change how we scrutinise legislation, even in the narrow way outlined in report by the noble Lord, Lord Strathclyde, we surely have to consider not just our own procedures but whether any change here should be undertaken alongside the creation of a more effective process in the other place.

We know that this report has been produced only because of our decisions to support two Motions on tax credits, one from the noble Baroness, Lady Meacher, and the other from my noble friend Lady Hollis. The result was that the Chancellor took that opportunity substantially to change his position. Indeed, perhaps Mr Osborne learnt a valuable lesson—that this House can be a Minister’s friend. As the noble Lord, Lord Forsyth, who will forgive me for quoting him, so perceptively pointed out recently in a Question to the Leader of the House,

“had this House passed the secondary legislation on tax credits, it would have had the immediate force of law and prevented the Chancellor of the Exchequer abandoning his proposals in his Autumn Statement”.—[

Official Report

, 3/12/15; col. 1199.]

He is quite right. We provided a breathing space for the Government to reconsider.

There was also the fatal Motion in the name of the noble Baroness, Lady Manzoor, which was rejected. The noble Baroness and I sought the same end, but we on these Benches chose to use the procedures of this House in a way that was both principled and sustainable. Even that was too much for this Government. Before any Motion had even been tabled, we had threats that the Government would pack the Lords with 150 new Conservative Peers or, more bizarrely, that this House would be suspended.

Challenge and scrutiny are not new. They were not invented by this Opposition. Indeed, unless the noble Lord’s is memory is failing, he will recall his time on this side of the House. He alluded to it in his comments today. As Opposition leader and Chief Whip, he could boast well over 500 government defeats, including

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145 during the 2005-10 Labour Government and 245 during the 2001-05 Labour Government, which had an elected majority of 167. Those many defeats included a government Bill at Second Reading, two fatal SIs and a number of key national security measures that involved ping-pong late into the night. Those were hugely significant defeats for the Labour Government, so we understand that challenge and scrutiny are never easy for any Government or any Minister; but any changes must be in the public interest, provide for better legislation and be agreed by this House. They cannot be forced on Parliament by an Executive who fail to understand the role of and reason for effective challenge. As the Hansard Society points out in its excellent report, this is no way to undertake reform. An independent inquiry into the legislative process is required.

Every year around 1,000 SIs are debated here following consideration by our highly regarded Secondary Legislation Scrutiny Committee. The committee flags up the issues it knows we will take an interest in or where the Government have fallen short, and we welcome those reports as essential to proper scrutiny. So, given that hundreds of SIs have already gone through your Lordships’ House, is it really the case that the Government are failing to get their business through? Of course not. The reality is that we seldom use our powers to their limits, but that does not mean they should not exist. It means that this House is respectful of when it is appropriate to use them. That was recognised in the Cunningham report of 2006, and I look forward to the contribution from my noble friend Lord Cunningham later today.

The Government’s case for weakening Lords’ scrutiny of secondary legislation is feeble. It is an unnecessary solution to a fictitious problem. We have to ask: is the overreaction to the tax credits vote symptomatic of the Government’s attitude to scrutiny and challenge? We should not see this as a stand-alone report; rather, it should be seen alongside other legislation and proposals—for example, the lobbying Bill in the previous Parliament that restricted the ability of charities and other groups to campaign for their causes; new limits on freedom of information; and the Trade Union Bill, debated this week, which will strip the Labour Party of its funding, quite contrary to the balanced proposals from the Committee on Standards in Public Life. We have seen reports of Ministers being told to make increased use of statutory instruments to drive through legislation without proper scrutiny; and now we have the proposal to remove this House’s power to veto the same secondary legislation that the Government favour. It is hard not to see this as an authoritarian Executive waging war on the institutions that hold them to account. The Government are seeking to stifle debate, shut down opposition and block proper scrutiny. They are a Government who fear opposition and loathe challenge.

The noble Lord’s report is entitled Secondary legislation and the primacy of the House of Commons. This is not about the primacy of the House of Commons over your Lordships’ House; it is about the Executive seeking to brush this House aside. The noble Lord asks for responsible opposition. We provide that. What we seek is responsible government.

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4.06 pm

Lord Wallace of Tankerness (LD): My Lords, I join the noble Baroness, Lady Smith of Basildon, in thanking the noble Lord, Lord Strathclyde, for setting out so clearly and comprehensively the preferred recommendation in his report, and indeed, during the preparation of his report, for meeting my party leader, Tim Farron, and myself to discuss his review. I also thank the noble Baroness the Leader of the House for giving the House an opportunity so swiftly to consider the important matter of the noble Lord’s report. Like previous speakers, I look forward to the maiden speeches during this debate from my noble friend Lady Bowles of Berkhamsted, whom I welcome to these Benches, and our long-standing and very much respected political colleague, the noble Lord, Lord Darling of Roulanish.

It is fair to say that, with some noble and honourable exceptions, not many pulses start racing when you mention the subject of statutory instruments. As your Lordships’ House knows only too well, though, the reality is that SIs often contain very important and far-reaching policy detail. I am not going to rehearse all the events surrounding the tax credit regulations; suffice to say that it was a statutory instrument that brought forward policy changes that would have had a significant effect on millions of working people on low incomes. One might be forgiven for having thought that a policy proposal with such far-reaching consequences would have been brought before both Houses of Parliament as a Bill, as primary legislation, giving both Houses the opportunity to discuss the policy in detail at Second Reading, in Committee and on Report, and to propose amendments to it. Indeed, it was possible and conceivable that it could have been put in a Finance Bill, in which case this House would have had no locus at all.

However, that is not what the Government did. They proposed the change in a statutory instrument, for which the scrutiny process is considerably weaker. It is a matter of regret to me, as I am sure it is to other Members of your Lordships’ House, that because of how the Government approached this matter there was no opportunity for Members of this House, nor indeed for those in the House of Commons, to propose amendments to the policy, or for the two Houses to have a conversation and potentially reach an accommodation. As a consequence of the Government’s decision, this House took the only action that I believe it could take to make its voice heard: we voted to delay the implementation of the changes to tax credits until transition measures could be put in place.

On reflection, as the noble Baroness, Lady Smith, has indicated, the Government did of course change their mind, and that also led to the review that has been carried out by the noble Lord, Lord Strathclyde. His report has recommended that the House lose its important power to ultimately reject statutory instruments. This House has long recognised that, although some statutory instruments can be minor, others, such as the one on tax credits, contain significant policy issues, the consequences of which may have a deep and lasting effect on the people of this country.

As a consequence of the Jellicoe report in 1992, this House radically reformed the way it looks at statutory instruments by setting up the Delegated Powers and

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Regulatory Reform Committee, and the excellent work that that committee carries out has been complemented by the Secondary Legislation Scrutiny Committee. It is disappointing that the House of Commons does not seem to have availed itself of the opportunity to update its procedures in a similar way and to enhance its scrutiny of secondary legislation. As Mr Matthew Parris said in the


on 19 December,

“MPs need procedures for early whistleblowing when dodgy secondary powers are sneaked into draft legislation”.

The consequence is that, in the vast majority of cases, meaningful scrutiny of statutory instruments is carried out by your Lordships’ House. That is why we on these Benches support and fully endorse the Motion that was proposed by Lord Simon of Glaisdale and carried by this House in 1994, and which is now enshrined in the Companion to the Standing Orders:

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

This long-cherished freedom means that, if a parent Act agrees that a delegation is appropriate, this House is entitled to discuss, scrutinise—and, yes, in exceptional circumstances reject—statutory instruments. It is an incontrovertible truth that this House rarely rejects statutory instruments. This has only happened now in six instances since the 1946 legislation. We can safely say that six occasions in 70 years means it is a rare event.

My party believes that both Houses of Parliament should be examining better ways to work together to achieve more comprehensive, more informed and more effective scrutiny of the Government’s legislation and their actions. We continue to reject the notion that any Government who achieve a majority in the Commons should have the absolute power to prosecute their business without the burden of proper checks and balances, particularly as voter turnout declines and Governments are elected by a smaller and smaller share of the vote. We believe that a second Chamber, however it is constituted, should not be a mere echo of the House of Commons, and we are interested in ways to strengthen the role of Parliament as a whole, not to convert the House of Lords from an effective revising Chamber into something more akin to an impotent debating society.

I firmly believe that there is a strong case for enhanced parliamentary scrutiny of secondary legislation. This is particularly important when the primary legislation introduced by the Government is a so-called skeleton Bill, with statutory instruments flowing from it which contain provisions that are more suitable for primary legislation. If Governments make increasing use of skeleton Bills, it stands to reason that the statutory instruments stemming from them should be afforded much closer scrutiny.

To that end, my party submitted formal written evidence to the noble Lord, Lord Strathclyde, proposing two different mechanisms by which this House—and the House of Commons—could propose amendments to statutory instruments. We suggested that a controversial SI could be “parked” while a Motion is moved with the wording of the SI embedded in it. Amendments could then be moved and voted upon, at the end of

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which there may be an amended Motion for the Government to reflect upon. An alternative would be to amend the Government’s Motion to approve statutory instruments to suggest that specific provisions of the SI are removed or replaced with alternative wording. We believe that either mechanism would allow the House of Commons to think again and would in fact reduce the number of incidents where this House withholds its approval of a statutory instrument.

This is in contrast to the recommendations from the noble Lord, Lord Strathclyde, which I fear could diminish the ability of Parliament to hold the Government to account, and, as the noble Lord admits in his report, might lead to an increase in the instances where the House withholds its approval of a statutory instrument. Will the noble Baroness the Leader of the House give some assurance that the Government will not only consider the report of the noble Lord, Lord Strathclyde, but also examine the option of bringing forward procedures which would allow statutory instruments to be amended—or at least proposals to be made as to how they might better be amended—as part of their consideration of the review, and that they will do so within the appropriate committees of this House?

We maintain that it is an important right of both Houses of Parliament to vote on, and occasionally reject, statutory instruments. We do not believe that this House should be required to give up its power of veto when this is such a rare occurrence. To do so would change the arrangements agreed by both Houses following the report of the Joint Committee on Conventions in 2006, to which the noble Lord, Lord Strathclyde, referred. I am somewhat disappointed that the report proposes such a drastic step without suggesting any innovative way to ensure that the effective scrutiny of statutory instruments continues.

On some specifics, I am further concerned by the suggestion that there should be no fixed period for the Government to reflect on concerns raised by this House before pushing a statutory instrument through the Commons for a second time. The noble Lord’s reasoning is that,

“it might in a particular case overrun the time specified in the draft or instrument for its commencement … The Commons needs the ability to override the Lords rapidly in cases of urgency and the extent to which decisions of the House of Lords should be fatal to a particular instrument should not depend on arbitrary factors, such as the commencement arrangements for the instrument”.

Does not the same logic apply to primary legislation, where ultimately this House has the ability to delay a Bill for a year? This particular contention undermines further the ability of the two Houses of Parliament to have a conversation about the policy proposals put forward by the Government. We frequently see in primary legislation that, through a dialogue between both Houses, good sense allows Parliament to reach an accommodation. Instead, what is proposed here could potentially allow a Government to ignore concerns raised by your Lordships’ House. I do not believe that is in the best interests of scrutiny.

Furthermore, I draw attention to page 20 of the noble Lord’s report, where he suggests that removing the ability of your Lordships’ House to ultimately

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reject a statutory instrument could actually lead to an increase in the number of occasions where your Lordships’ House would approve such a Motion. The report says:

“If that were to happen, there are a number of ways in which it might be dealt with. The House of Commons might need to find ways to expedite its override procedures, which would have the effect of reducing the consideration given to the Lords rejections or it might lead to demands to proceed with option 1”.

That is, the House of Lords might lose its ability to scrutinise secondary legislation entirely. I am deeply concerned that this paragraph contradicts the intention on a previous page of the report that a Government should give “serious reconsideration” to the instrument in question and that they should do this both “seriously and well”.

In fairness to the noble Lord, Lord Strathclyde, he did mention this again today, if only in passing, but I am also disappointed about the problem I have already raised about skeleton Bills. One might say that his report is rather skeletal as to how the matter might be addressed. The noble Lord does not address the issue of a Government using statutory instruments as a means of implementing new policy, rather than putting that new policy before Parliament as primary legislation.

This is not a matter simply a matter for the Prime Minister and the Government: it is, as I think has been recognised by us having this debate today, a matter for Parliament. It is about the relationship between the two Houses, the role of Parliament as a whole in providing effective scrutiny, and the burden of proper checks and balances on the Executive. We on these Benches believe that it would be appropriate for Parliament to deliberate on any further discussion, and it may well be that the Joint Committee could be reconstituted. Whether the noble Lord, Lord Cunningham, wishes to chair it again is another matter, but he proved to be a very capable chair the last time that he did so.

As less and less detail appears on the face of Bills and statutory instruments become more complex and more important, they should be accorded more scrutiny, not less. I regret to say that, alongside the points made by the noble Baroness, Lady Smith, I can do no better than quote from Monday evening’s contribution by the noble Lord, Lord Kerslake, on the Trade Union Bill. Referring to the provisions of the Bill, he said:

“When this is taken with the other measures being put forward by the Government—the curtailing of the powers of this House, the moves to water down the Freedom of Information Act and the reduction in so-called Short money to support opposition parties—there appears to me to be a worryingly authoritarian streak emerging from this Government, who are uncomfortable with scrutiny and challenge”.—[Official Report, 11/1/16; col.79.]

Finally, the noble Lord, Lord Strathclyde, has admitted, as echoed by the noble Baroness, Lady Smith, that he did once pronounce the convention dead. I think he did it in a lecture in 1999, and surely the noble Lord does not want to give it the Lazarus effect. We await with interest to see how the Government will respond.

4.18 pm

Lord Wakeham (Con): My Lords, we have had three powerful speeches so far. A great deal of what the leaders of the two opposition parties said was about criticising what went on in the House of Commons.

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I have some considerable sympathy with that but want to restrict my remarks to what I consider to be the role of the House of Lords.

The issue of this debate has not arisen particularly because of recent events, but has been a long time coming. As the noble and learned Lord, Lord Wallace, mentioned, there was a very interesting debate in 1994, when the wonderful former law officer Lord Simon of Glaisdale set out with clarity that the House of Lords had absolute, unfettered power to reject secondary legislation. He was followed by my successor as Leader of the House, my noble friend Lord Salisbury, who accepted Lord Simon’s proposition but then set out clearly the way that conventions had influenced how the House operated. It is a debate well worth rereading, but in the end it demonstrated to me that the conventions were not powerful or clear enough to be an acceptable way to run matters in the House as it is now constituted. It may well have been when the House was mainly hereditary but not now in a House with so much greater political wisdom and experience.

That was one reason why, in my royal commission report some 15 years ago—when I was an opposition Member but was supported by all parties at the time—I recommended that we changed the way that secondary legislation was dealt with in this House and made a proposal not very dissimilar from option 3 proposed by my noble friend Lord Strathclyde.

Secondary legislation is here to stay. It is important to remember the advantages which government, Parliament and society derive from the existence of delegated powers. Ministers and other statutory authorities are able to legislate by secondary legislation on detailed points within the limits of the delegated power in the original Act. In consequence, Bills can be restricted to their essentials, Parliament can concentrate on the key principles and Acts will be better drafted and understood. There is less need for subsequent corrective amendments to primary legislation. Secondary legislation can be amended or replaced much more easily than primary legislation.

In my royal commission report, we said that the number of statutory instruments had increased substantially over the last 100 years, but my noble friend Lord Strathclyde reports that the number has stabilised since then. Nevertheless, it is important that they are dealt with effectively. The proposal before us is to give the House of Lords not less but more influence over secondary legislation. In my view, it is ironical that the present powers of the House of Lords are more absolute over secondary legislation than they are over primary legislation, but we have got by because of the conventions, which, as I indicated, some of us felt were at breaking point even 15 years ago.

Over the years, all Governments have got secondary legislation passed in the House of Lords, even when the House of Lords would have preferred to ask the House of Commons to think again. My noble friend’s proposal would change all that and allow the House to ask the Commons and the Government to think again, and thus give the House a revising function over secondary legislation that it at present lacks by contrast with its role in relation to primary legislation. The proposal

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before us is to give the House of Lords more power and influence over secondary legislation, which in the right circumstances they should use.

These proposals are entirely consistent with our constitutional practice. The Lords’ role is to review and, if not satisfied, to ask the House of Commons to think again. The Commons’ role is to think again but in the end to decide. Recent events indicate that it is a course that can be effective. However, our democratic system requires the House of Commons to prevail.

4.23 pm

Baroness Hollis of Heigham (Lab): My Lords, I very much welcome this debate and look forward to the maiden speeches that we will enjoy later, particularly that of my noble friend Lord Darling, my former boss at the time when legislation on tax credits was introduced in this House.

Why have this review? Is it because of tax credits? As I think has been conceded, that was a delay Motion and, happily, the Commons did indeed reconsider, as this House wished. But even if it had been fatal, which it was not, it would not have been a constitutional threat, as is acknowledged, because between 2000 and 2010 the Conservative Opposition, under the noble Lord, Lord Strathclyde, ran 11 fatal Motions against the Government. Five of them were led by former Ministers, including a former Leader of the House, and two of them were successful. No one had a tantrum; no one called for a review; no one proposed to legislate on the subject; no one threatened to create 100 Peers. The only difference now, as my noble friend Lady Smith said, is that the then Opposition is now in government.

Was the tax credits issue, none the less, a constitutional outrage because it dealt with financial matters? No, that will not run either. Most of what our work involves concerns finance, whether it is defence, transport, childcare or social security. The Government know perfectly well that SIs are not financially privileged and do not need to be if they are used, as they should be, for fairly minor matters according to our conventions. So in my view, it was not the tax credits vote that strained our conventions but the Government in the first place using a statutory instrument for a highly controversial measure that would take millions of pounds away from millions of families, despite the Prime Minister’s election promises to the contrary.

With tax credits, an SI was used not to apply the original policy intent of the Bill, which is what SIs are for, but to subvert it. As has already been said, that task should have been done by primary legislation, if that was the Government’s intent. Having chosen an SI route, which cannot carry financial privilege and to do what SIs were never intended to do, the Government then claimed retrospectively that financial matters come under some sort of informal financial privilege, which, even though it had not been sought, they wanted us to respect as though it had been—when it had not. That is indeed a straining of conventions.

Why then do we have a review? Is it petulance from the noble Lord, Lord Strathclyde? Surely not. But the Government do seem to feel hard done by, victimised, with their 30.5% of the vote. As Ministers, we had

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31% of the vote. We did not whinge, despite huge majorities down the other end; we worked for our votes the hard way. No, the issue that really matters is not the tax credit vote, as the noble Lords, Lord Strathclyde and Lord Wakeham, have acknowledged. The issue is the expanding role of SIs and their lack of scrutiny. Thanks to the noble Lord, Lord Strathclyde, this debate allows us to discuss this more fully, to which I now wish to return.

More and more, we have framework legislation—for social security, childcare, the Cities and Devolution Bill—where key decisions are to be carried by SIs beyond reach of amendment, sometimes drawn down months, even years, later. That role was never intended: nor, I believe, is it appropriate. Bills are now being future-proofed for future Secretaries of State with open-ended SIs that place future policy development beyond effective scrutiny.

The noble Lord, Lord Strathclyde, calls for greater clarity and certainty surrounding SIs. That is nice—for the Government. But what is really needed is effective scrutiny. I doubt that the Commons can do it, and I think that we can and that we should. Only we have the admirable delegated powers and scrutiny committees, and your Lordships have relevant expertise. We spend twice as much time as the Commons on debating SIs, even though we all know that we are wasting our time. As the Hansard Society says, we have the interest, appetite and time to do effective scrutiny.

So why do we not? We know why. The noble Lord, Lord Strathclyde, is right: we should, but do not usually, get draft SIs during the process of the Bill so that we can consider them. We cannot, as a result, amend SIs that are passed and brought to us subsequently. Motions to Regret deplore and are ignored; fatal debates debate and destroy. However, in certain circumstances, either may be appropriate.

However, in 65 years, the Lords has rejected only five of the 169,000 statutory instruments before it. In 35 years, the Commons has not rejected one. As the noble Lord, Lord Goodlad, said in his report on page 147, why bring SIs to Parliament at all if parliamentary scrutiny makes no difference? The noble Lord, Lord Wakeham, called for a suspensory veto to “force”—which he italicises—the Government and the House of Commons to take our concerns seriously. They were strong words from the noble Lord and he was absolutely right. Every review of Lords practices has called for a power of delay requiring the Government to think again while ensuring that the final say rests with the Commons.

Would option 3 in the report of the noble Lord, Lord Strathclyde, do that? It could, but only if it specified, as the noble and learned Lord, Lord Wallace, said, the period of delay—say 30 sitting days—before the SI returns to the Commons. Otherwise we could pass a delay Motion and the Government could take it back to the Commons, without reflection, with irritation and within 48 hours. The noble Lord, Lord Strathclyde, assures us that a Government would never behave like that. You think? He writes that the Commons may need to override the Lords rapidly in cases of urgency. If something is indeed urgent—such as national security —would we really delay? It seems deeply implausible and, in any case, the usual channels would sort it.

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He then fears that the specified delay might run past the proposed implementation date. That is pretty feeble, too. With the Library’s help, I checked the 60 or so statutory instruments we have had so far in this Session. As we know, they have three stages: they are laid, debated and implemented. I agree that with perhaps four of those 61 there was less than six weeks between laying the SI and its implementation date—for example, the Northern Irish election order last July and the Asian banks immunity order last October—but most of the rest were laid three to six months before their implementation date. There is adequate time for a delay Motion if those SIs are debated in good time. What struck me was the length of time, often three months or more, between laying and debating them. However, that can be sorted by effective departmental and business management; it is not a pretext for denying us and the public effective scrutiny.

The only real argument against a specified delay period is the one the review will not admit to: that it would be highly inconvenient for the Government. Yes, it is meant to be. I would not expect a delay Motion to happen very often—perhaps half a dozen times a year—but the fact that it might—

Viscount Younger of Leckie (Con): My Lords, I am sorry to interrupt but the noble Baroness might be aware that the guide time for speeches is six minutes.

Baroness Hollis of Heigham: It is an advisory time and I am coming to the end.

I would not expect a delay Motion to happen very often—perhaps six times a year—but the fact that it might would transform the value of our scrutiny; it would transform the care with which departments bring SIs to this House. The Lords would be doing exactly what it should by asking the Government and the other place to think again and then respecting their decision, as we should, when they have done so. So I hope that we can move down that path but with appropriate specified delay periods.

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, perhaps I may interrupt before the next noble Lord rises to speak and add to the comment of my noble friend. We put in the guidance time because we know that the House will wish to rise at around 10 pm. We can do that only if everybody respects the speaking time. So I urge noble Lords to co-operate. When I get to my bit at the end I shall try to be brief but I know that the House will also want me to be fulsome in my reply.

4.34 pm

Lord McNally (LD): My Lords, I was intrigued by the very first sentence of the executive summary in the paper of the noble Lord, Lord Strathclyde, which states:

“Since 1968, a convention has existed that the House of Lords should not reject statutory instruments (or should do so only rarely)”.

To my mind, that is exactly what has happened over the past 50 years. The Motions that caused the establishment of the Strathclyde report, and even the noble Lord,

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Lord Strathclyde, himself has accepted this, were not in any way breaches of the convention in terms of rejection.

I am taking part today because it is 20 years since I first took my seat in the House, and therefore I thought it would be useful to contribute to what the noble Lord, Lord Strathclyde, referred to as the collective memory. During that time, I have spent nine years as Leader of the Liberal Democrats, three very pleasant years as the Deputy Leader of the House under the noble Lord, Lord Strathclyde, and three and a half years as a Minister. I have never made any secret of my view that although this House has many admirable qualities and does some extremely useful work, in its present form it is an affront to democracy. I regret the opportunities missed more fully to reform the House in 1999 and, as the noble Lord, Lord Wakeham, knows, I regret the missed opportunity of the Wakeham commission in 2000. However, we must not be seduced today by the argument that because the recommendation of the noble Lord, Lord Strathclyde, is close to one of the proposals made by the noble Lord, Lord Wakeham, it has greater weight and authority. The Wakeham proposals were, as I am sure the noble Lord would agree, a carefully balanced package of powers and responsibilities, not a single measure designed to weaken and undermine the authority of this House. I may want to see this House reformed, but I have no wish to see it become Mr Cameron’s poodle, and a neutered poodle at that.

One of the most useful experiences I have had in the past 20 years was to serve on the Cunningham committee, and I am delighted to see that the noble Lord, Lord Cunningham, is here today. It is worth remembering that the impetus for the setting-up of the Cunningham committee was that the then Labour Government thought that the House of Lords was getting too big for its boots. This is not a new phenomenon. Every former Leader of the House will be able to show you the scars of being hauled over to No. 10 to explain some defeat or other in the Lords. I well remember having to prepare, as Leader of the Liberal Democrats, a tribute to the late Lord Belstead, who had been a Leader of the House under Mrs Thatcher. I thought I would find something nice to say about him by looking at the Thatcher memoirs. The only reference I could find was to a handbagging he had received from Mrs T following a defeat in the House of Lords. That is the nature of the relationship. I freely confess to my own impatience as a Minister when the House shredded some carefully constructed inter- departmental compromise or spotted a piece of legislative corner-cutting which had escaped the scrutiny, or lack of it, of the other place.

I do not believe that the Lords over-reached themselves in the matter before us, but the whole furore has exposed the need to look at the increasing use by the Government of skeleton Bills backed by secondary legislation, as well as the increasing tendency of the clerks in the other place to affix financial privilege to an amendment. I remember the surprise and relief in the Ministry of Justice when some mainly legal amendments to one of our Bills suddenly had financial privilege attached to them in the other place. We all breathed a sigh of relief that they did not come back to the Lords.

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It is 40 years since the late Lord Hailsham warned against a Parliament without checks and balances becoming an elective dictatorship. That warning is even more pertinent today, when the flaws in the first past the post system provide us with a Government with 100% of the power and only 36% of the vote. We are now living with our past failures to reform both the House and the voting system. In those circumstances, it is essential that this House should retain the right to say no. It is the paragraph of the Cunningham committee report that I fought hardest to have included, and that report was endorsed by both Houses. Let us be clear: that Cunningham report is the baseline; it is not Salisbury/ Addison, which was never endorsed by other than the two political parties, and never by these Benches. I urge this House not to abandon its right to say no: use it prudently, yes; use it sparingly, yes; but retain it we must.

I can only say to the Conservative Benches, on which there are some very wise heads, that the best service they can provide is gently to tell the Chancellor and the Prime Minister that the best way to avoid the hubris which overtakes all long-serving Ministers is to retain the safety catch which accident rather than design has left here in the House of Lords to protect us from that elective dictatorship which Lord Hailsham so wisely warned us against.

4.40 pm

Baroness Hayman (CB): My Lords, the noble Lord, Lord Strathclyde, was asked to review in haste. He did so and he produced a review that is an enormously valuable starting point for a more comprehensive approach to how we improve the scrutiny of secondary legislation not only by this House but by the other place as well. When he introduced this debate, the noble Lord said that it took us to the heart of what we are here for as parliamentarians. I agree with that. We have a responsibility to look very carefully at the proposals before us and to approach them, I hope, in a way that looks forward rather than backwards. But it is impossible completely to disregard the circumstances that gave rise to the review and to allow a mythology to grow up that this House had overstretched itself and had broken with convention.

I find it extraordinary that when everyone agrees that the convention is that only in the most exceptional circumstances should the House vote down an SI, the Government bring into the argument the fact that this was an exceptional SI. It was to do with a major plank of government policy. It had huge financial implications. They defeat their own argument by arguing its exceptionality. What I think was exceptional was that the House found a constructive way forward on this occasion, which was not to kill stone dead.

When there was a murmur of disagreement as the noble Lord, Lord Strathclyde, said that we had killed off the tax credits legislation, he said that it illustrated that there was not clarity about the convention. It did not illustrate that at all. People were arguing with whether the vote in this House killed off the tax credits legislation. It did not. The SI had still been through the House of Commons. It could have been brought back to this House in exactly the same form. It could have been incorporated in a short, sharp Bill

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that was a finance Bill that never came to this House. None of those things happened. What happened was that the Government thought again. They thought that there was some sense in what was being said here and changed their policies. That was a good example of what this House is for.

We have to look at the proposals in the report of the noble Lord, Lord Strathclyde, and, building on the work that has been done by the noble Lord, Lord Wakeham, and others, we have to ask ourselves whether there is a way of effectively asking the House of Commons to think again. Effectively asking it to think again is not as easy as simply having a delay Motion. It will not think again at all on a large proportion of statutory instruments that have not been thought about at all in the House of Commons—those that come here first. It will not think again effectively if that means that the Government can bring forward a vote on a deferred Division within 48 hours of it coming back from this House with no debate.

If the House is to be asked to give up a very precious, very rarely used freedom to kill off an SI, it should not sell that freedom for a mess of pottage. It should do so only when it is absolutely convinced that the scrutiny that Parliament as a whole would thereafter be able to give to statutory instruments would be improved dramatically. That is the test to which I would put these proposals.

I worry about legislation. It will not do what the Government want it to do unless it is retrospective, and I do not like retrospective legislation. It will not do what the Government want it to do if we do not recognise that the reason, in the words of the noble Lord, Lord Strathclyde, that the convention had become “frayed” was because, over the years, use of statutory instruments, culminating with the tax credits regulations, has gone way beyond their original purpose.

4.46 pm

The Lord Bishop of Rochester: My Lords, I, like other Members of your Lordships House, am grateful to the noble Lord, Lord Strathclyde, for the work that he has undertaken and for giving rise to what is clearly an important debate about the role of this House, which probably goes much wider than some of the specifics in front of us today. By way of introduction, I will add a little correction to the text of the noble Lord’s report. He ascribes to my right reverend friend the Bishop of Southwark the tabling of an amendment that was not, in fact, put to a vote. Although they would not argue over it, it was actually my right reverend friend the Bishop of Portsmouth who tabled that unvoted on amendment, which was, as it happened, an amendment that asked the Government to consider again—precisely the kind of amendment under consideration here.

I am conscious that in speaking in this debate there are many in this Chamber who have many years more experience than I do in these matters of constitution and convention, as has already been amply illustrated. However, there are one or two things I would like to offer the debate.

If we are to change the present convention, perhaps we need some criteria against which we assess any changes that we might make. Three might be: would

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any change enhance or diminish the ability of your Lordships’ House to scrutinise legislation and thereby hold the Government to account; would it improve or worsen relationships between this House and the other place; and what might the impact be on the reputation and status of your Lordships’ House. As a relatively new Member of this House I understand its primary function to be that of a revising Chamber, thereby holding the Executive to account and occasionally, it has to be said, saving the Government from themselves. If we can achieve that, it will be a hugely valuable contribution.

One of the difficulties with SIs, as has already been indicated, is that our capacity to revise them is severely restricted. Indeed, we cannot revise them; there is no power to amend. Therefore, the increased use of SIs presents this House with a problem in fulfilling its function as a revising Chamber because we are left with a blunt instrument of yes or no. That seems to be part of the problem we face. I am encouraged that there are some helpful suggestions in the noble Lord’s report and elsewhere in the conversation. Establishing some clarity over the respective roles of the Houses on finance Bills and other financial matters will clearly be helpful. Indeed, it will be very helpful if the proposed review by the Procedure Committee established some guidance on that. A strong encouragement to government to rein in the excessive use of secondary legislation and put more detail in Bills, as stated in the noble Lord’s report, is clearly important too. If we are to establish or re-establish relationships of trust, we need to be confident that that will take place as it is a necessary ingredient in balancing the roles of the two respective Houses.

It seems to me that beneath the detail and the circumstances of this debate there is an assumption that trust between this place and the other place has been lost to some degree, and that we are being asked to consider surrendering part of our self-regulation relating to our role within that relationship of trust. The suggestion, or implication, of the proposals in the noble Lord’s report is that we have gone beyond the point where the present self-regulatory framework can be allowed to continue, and that something formally laid down in statute may be required in place of the current convention. If that is the case, there is a sadness to it. Even if we do find ourselves going down the line of changing the arrangements, I encourage noble Lords to consider also the underlying question of the level of trust that exists between the two Chambers and between government and Parliament.

My most reverend friend the Archbishop of Canterbury is currently in another other place, where he is trying to deal with the re-establishment of relationships of trust within the worldwide Anglian communion. Therefore, there is experience of these kinds of processes. If we are to pursue changes, I encourage noble Lords, through whatever channels are available to them, to look also at the wider culture of the relationship between this House and the other place to see whether we can find ways of improving that and building on the existing depth of trust because whatever we put in place will work only if that environment of trust is in place.

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For my own part, I would regret your Lordships’ House no longer having the power to veto SIs but accept that the introduction of another way of tackling them may prove necessary. I hope that might be combined with a consideration of the possibility of amending them. That could enhance the whole process, enabling SIs to be improved and their purpose to be more fully achieved. I encourage us to have that conversation so that, whatever our powers may be, we can fulfil them responsibly within a rebuilt and re-established spirit of trust.

4.53 pm

Lord Trefgarne (Con): My Lords, in rising to intervene briefly in this debate, I start by explaining that I am chairman of your Lordships’ Secondary Legislation Scrutiny Committee, which has the task of looking at virtually all the secondary legislation coming before Parliament and reporting, as necessary, to your Lordships. We see about 1,200 or so such items each year, but, happily, only need to trouble your Lordships with a very much smaller number. Your Lordships’ Select Committee intends to study my noble friend’s review, taking into account your Lordships’ views expressed today, and will no doubt submit a report in due course. I must therefore emphasise that everything I say today reflects my personal view only.

I turn now to the events of 26 October and subsequently. While I accept that in theory—and in theory only—your Lordships’ decision on that day was not formally fatal, fatality was, indeed, the practical effect and Ministers and the other place were entitled to take that view. Furthermore, there was never any doubt that that would be their reaction.

There are two reasons why I think that your Lordships were mistaken on that day. First, there is a long-standing convention that secondary legislation is rejected only in the most exceptional circumstances—a mere political disagreement is not sufficient. When your Lordships came to express your opinion in the Division Lobby, not a single Conservative supported the amendments. The matter was pure politics and nothing else. The second argument in relation to the tax credits order was the plain and simple fact that it dealt with essentially financial matters, for which your Lordships have long accepted House of Commons primacy. For these reasons, I consider that your Lordships took a mistaken decision on 26 October and I am, therefore, not surprised that my right honourable friend the Prime Minister asked my noble friend Lord Strathclyde to conduct his review, for which we are grateful to him.

I turn now to my noble friend’s conclusions set out in Cm 9177, in which he offers three alternatives. I deal first with his first possible change, namely primary legislation to remove your Lordships from all future consideration of secondary legislation, leaving it to be entirely a matter for the other place. While I can see that that would be a possible reaction, it would be, I believe, a mistake. The fact is that your Lordships have always, through relevant Select Committees, offered much more detailed and constructive consideration of secondary legislation than has ever been possible in the other place. It would be a great pity if all that was brought to an end. It is, I suggest, highly unlikely that the other place would find it possible to create a mechanism for such detailed scrutiny.

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My noble friend’s second alternative is for your Lordships simply to rewrite the existing Standing Orders relating to secondary legislation and hope that they would stand the test of time. The snag with that arrangement, as my noble friend points out, is that Standing Orders can of course be changed by a simple resolution, and I can well see that the other place would regard this as an inadequate response.

We are, therefore, left with my noble friend’s third alternative, namely setting out a new procedure in statute providing for your Lordships to invite those in the other place to think again when a disagreement arises and allowing them to insist, if they so decide, on primacy. As my noble friend suggests, this would be a not dissimilar process to the one set out in the Parliament Acts relating to primary legislation. It is the way forward that I personally support.

I end by saying that I recognise that there is room for more than one respectable point of view on this matter. My view is the one that I have described, which I hope will in due course find favour. I look forward to the two maiden speeches that we shall hear in a little while.

4.57 pm

Lord Grocott (Lab): My Lords, the noble Lord, Lord Strathclyde, presented his report in his characteristically emollient way. I do not think we should be too taken in by the gentle way in which he presented it, because what he is suggesting is a substantial constitutional change that will transfer power to the Executive from Parliament and will alter the relationship between the two Houses. I do not object to constitutional change but the responsibility for arguing for it must come clearly from those proposing it and we should review it with all the skills of forensic examination that are at our disposal.

I want to look at the two key arguments that the Government and their supporters—or, I should say, the noble Lord, Lord Strathclyde, and his supporters—have advanced on the need for this constitutional change. The first is that, somehow, the decision on 26 October had considerable impact on our primary concern, the primacy of the House of Commons, and threatened that primacy. The title of the noble Lord’s review even refers to the primacy of the House of Commons. But it did not. If the Commons or the Government had decided that they did not like the decision that we made on 26 October, they had several simple options open to them. One would have been, as the noble Baroness, Lady Hayman, said, to resubmit a statutory instrument in a slightly modified form, which this House would have then had to consider. It would probably have been like ping-pong but it would, sooner or later, have been sorted out. Alternatively, the Government could have brought in a simple Bill and timetabled it strictly, and no doubt it would have been designated a Bill over which this House should have no control. They easily had the capacity to remedy and to enshrine the principle of primacy.

The other argument advanced, including by the Leader of the House in her presentation on the report, is that the decision on 26 October somehow threatened the constitutional convention about the Lords not

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throwing out statutory instruments; she went so far as to say that it was “broken”. I took the precaution of asking one or two Questions of her. First, I asked her how often since the Second World War the convention had been broken. The reply came back that it was on five occasions, in 1968, 2000, 2007, 2012 and 2015; I remark in passing that three of those were when Labour Governments were in office. So we find that in 71 years since the Second World War, on the Leader of the House’s own acknowledgement, the convention has been challenged on five occasions.

I asked the Leader of the House how often the convention had been broken on those five occasions when the Lords threw out a statutory instrument that had come from the Commons, and the answer is once—the last time. I am conceding the Government’s whole case now and saying that the amendment passed here could have been interpreted as a fatal amendment, but even on those grounds—the Government’s own terms—only once in 71 years has the convention been threatened, and now they propose to change the constitution to deal with it. By the way, during the whole of that time there were 41 years of Tory Government, and they suffered two defeats on statutory instruments. If that is the rate of defeat, I do not think it is enough to get in a lather about. So why are the Government determined to go ahead when, quite plainly, on their two principal arguments, the primacy of the Commons is intact and the convention is intact?

I cannot resist doing this; I apologise in advance to the noble Lord, Lord Strathclyde, but he had this to say about secondary legislation and statutory instruments in a debate on the Cunningham committee:

“although many have argued … that a power to reject might be replaced by a power to delay, or even a power to amend, the practical difficulties are great … I think that we need … more legislative restraint by government with fewer skeleton Bills backed by reams of regulation … Sometimes, as the committee acknowledged, rejection may be needed—very rarely—but the circumstances must be exceptional and extremely rare”.—[

Official Report

, 16/1/07; col. 632.]

They are exceptional and extremely rare, on any reading of what has happened.

So why is this change proposed? It is part of a wider concern of the Government: they do not like it when they are defeated. No Governments like it when they are defeated but all I can say is, “Join the club”. I know what it is like to be defeated. In the five and three-quarter years of this Government, they have suffered 123 defeats. In the five and three-quarter years with which I am particularly familiar, between 2002 and 2008, the Government suffered 325 defeats. I know the response but, even allowing for the undoubted ineptness of the Government Chief Whip at the time, 325 defeats against 123 hardly gives this Government grounds for their persecution complex. They have a very easy time in relation to the House of Lords most of the time. In the 115 years of my dear old party’s being around, only for eight of them has it even been the biggest party in the House of Lords, despite years of Labour Governments. If you do the maths, in 107 of the last 115 years the House of Lords has had the Conservative Party as its biggest party.

The ball is really in the Prime Minister’s court. He has the power and can do what he likes. He can cut our powers, if he brings in legislation and is able to get it

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through. He can create large numbers of Conservative Peers, as he has already been doing, but if he wants to carry on then no one can stop him. He can even abolish us if that is his wont, since he has a Conservative majority—although he might find it tricky. But I very much hope that he will go away, calm down and decide that, “This isn’t broke, so don’t fix it”. Governments do not like being defeated and I believe that there are enough people in the House of Commons who do not like this unnecessary encroachment of executive power. I certainly hope that should any firm proposal come to cut our powers in this House, enough people here will be certain enough about our responsibilities to ensure that it is rejected.

5.05 pm

Baroness Bowles of Berkhamsted (LD)(Maiden Speech): My Lords, I rise for the first time, deeply conscious of the honour that it is to serve in your Lordships’ House. I am grateful for the kind way in which noble Lords have received me, for the friendliness of all staff and for the elegant and discreet way in which the attendants and doorkeepers have steered me from uncertain manoeuvres. I thank the noble Lords who introduced me, my noble friends Lord McNally and Lady Falkner of Margravine, and all those who have enriched my life and learning, without whom I would not be here.

I hope to contribute to various deliberations drawing upon my experience from both strands of my career. The first strand was that of scientist, engineer and patent attorney for over 25 years, running a professional business and immersed in leading-edge technology. The second strand was nine years in the European Parliament, culminating in five years as chair of the Economic and Monetary Affairs Committee, facing a vast and profound agenda due to the financial and eurozone crisis.

Many noble Lords have long-standing experience of the conventions of your Lordships’ House, so I speak now with great respect. None the less, secondary or delegated legislation exists in other legislatures and I have been deeply involved in the establishment and scrutiny of European secondary legislation, while keeping a watchful eye on that of the United States. My somewhat unoriginal observation is that secondary legislation works well until you hit a problem: then it works rather badly and does not fail-safe.

Financial services legislation is highly delegated in most countries and Europe now has delegated Acts and regulatory technical standards, the latter also involving the European supervisory authorities. Scrutiny is by the European Parliament and the Council of member states; each can veto independently, but not amend. From that well-populated setting, and with your Lordships’ indulgence, I will elaborate three experiences that resonate with the wider debate around delegated legislation.

The first is that of overarching constraint. Europe has the ECJ’s Meroni constraint, which limits delegation of discretionary power. Despite debate, constraint has had useful benefits. It reduces the likelihood of secondary legislation doing extraordinarily large or unexpected things. But perhaps even more importantly, it fosters vigilance on how to frame the delegated power with

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objective, legislation-specific guidance: an important aid for transparency, benefiting individuals and businesses as well. In the context of the review of the noble Lord, Lord Strathclyde, I venture that greater vigilance over the framing of delegated power is a natural response to other curtailments, even if the drafting of that guidance will rarely seem as exciting as other amendments or may even upset the odd Sir Humphrey.

The second experience is the inability to amend. On the technical standards for the European Markets Infrastructure Regulation, EMIR, a committee stage motion to reject was carried. Only a couple of parts in a complex, interconnected proposal were wrong, but they were important parts affecting small and medium-sized business, and it also went against the grain of prior understandings. A subsequent plenary rejection would have meant deadlines missed and various embarrassments to be felt all round, so a clarifying interpretation was obtained from the European Commission and, although it was not as good as proper correction, the fact is that without corrective opportunity, secondary legislation risks being, if not second-rate, at least second-best legislation. I also extracted a commitment to consultation for future proceedings—effectively, a correction in advance opportunity—but it is still thought that limited corrective amendment has a place.

The third experience is of a scrutinising Chamber feeling conflicted, which also came to light in our EMIR adventure. The Council privately agreed about the identified problems, but it emerged that various member states were embarrassed to vote against technical standards that had been signed off by their national regulatory authorities—which is a story in itself. However, they were glad that the European Parliament could take responsibility for the remedy. Of course, the constructs are different, but this shows the usefulness of independent veto powers for separate Chambers.

Europe has travelled in the direction of fuller framing of delegated power and, in contrast, I cannot disguise consternation about the extent and scope of some of our delegated legislation. What I have read and heard in your Lordships’ House on this subject, as in all things, is thoughtful and has raised similar remedies to those that I favour. I do not see a single silver bullet, but constraint, guidance and corrective amendments are tools for avoiding secondary legislation becoming second-best.

5.12 pm

Lord Hannay of Chiswick (CB): My Lords, it is a very great pleasure to have been placed on the list after the noble Baroness, Lady Bowles of Berkhamsted. As a member of your Lordships’ EU Select Committee for a number of years, I watched with fascination and admiration the work that she did in the European Parliament. The work that she did then was inestimable. The Ancient Mariner was always said to have stopped only one in three, but the noble Baroness quite often stopped two or even three in three of the dafter ideas that came out of the Commission or the other members of her own Assembly. We all hold her a debt of gratitude for the way in which, as chair of that committee, she handled the large amount of legislation that came forward after the crisis of 2008.

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In my view, she has in her maiden speech this afternoon demonstrated very clearly the sort of skills that she will bring to this House and her knowledge of financial regulation, which is remarkable—and that subject occasionally comes before us. I am sure that her plea to consider enhancing this House’s power to send an amendment back to the other place—which we do not have at the moment—is very wise. So I look forward very much to her future work in this House.

Turning to the matter we are debating, I suggest that we should not focus too much in today’s debate on the events which triggered the Strathclyde review last October. Panicky and opportunistic its origins may have been, but, in truth, a review of the way we handle secondary legislation was long overdue. The present arrangements are hard to sustain and hard to defend. Of course, one might have hoped for some recognition by the Government that this House, by the action it took last October, enabled the Government to avoid falling into a trap similar to the one which their predecessors fell into over the poll tax in the 1980s—but I am not holding my breath for that recognition.

The noble Lord’s review is admirable: short, crisp and persuasive. Of the three options for reform that he considers, I am sure that he is right to have excluded the idea of simply cutting this House out of any role in secondary legislation. That would have been to make a mockery of the very existence of this House as a scrutinising and revising Chamber. To place the House, as the other two options do, in a position that is analogous to that which we have on primary legislation—being able to propose amendments and ask the other place to think again—must be the right way to move.

The loss of the so-called “nuclear option”, which we hardly ever dared to use, is no particularly serious cause for regret. Incidentally, I have doubts about the noble Lord’s speculation that we would not often make use of the new powers—the “non-nuclear options”—which he suggests that we should have: I suspect that he may find that that will not be borne out by events, but time alone will tell. As for the choice between a new system based on primary legislation or one based on convention, I share the noble Lord’s view that the former is clearly preferable. Surely we do not want to risk falling back again into muddle and dispute.

Putting the preferred option into primary legislation will not be without its complexities. There is the issue of time factors that has been referred to. I agree that the Government will need to be able to return a measure again, overriding this House’s view, within the same Session of Parliament—which is a difference from the Parliament Acts of 1911 and 1949. It is important to note that the noble Lord’s review was silent on whether the measure to be returned by the House of Commons could be an amended version of the original statutory instrument, perhaps taking account of the views expressed by this House when it sent the matter back. Such a possibility is sensible and desirable, but it is not what is envisaged in the Parliament Act, which requires that the overriding measure be identical to the one that was first rejected. I look forward to hearing the Government’s response on that point.

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There is also the tricky issue of financial privilege, which the noble Lord managed to duck. That, too, has given rise to plenty of controversy, most recently when it was invoked, unnecessarily in fact, in the case of the EU Referendum Act last month. The least that needs to be done is to introduce a bit more proportionality and transparency into the system’s operation. Invoking financial privilege over a sum that represents expenditure of a vanishingly small percentage of overall government expenditure, as happened in December, risks bringing every single piece of legislation and amendment that this House proposes within the ambit of financial privilege. That would not be a defensible or proper use of the power and I hope that the Government will now consider how in future to bring about a more proportionate and transparent approach to those determinations.

In conclusion, I congratulate the noble Lord on his review and hope that the Government will move ahead and introduce primary legislation on the basis of his preferred option. That could well result in a more effective House, but one operating clearly within the spirit and parameters of the 1911 Act.

5.19 pm

Lord Jopling (Con): My Lords, I have put my name down to speak this afternoon with a background as a former business manager and a former instigator of procedural changes in another place. Quite frankly, it is time that we faced up to the problem of statutory instruments. We have argued about it for years. It is not a new issue. We have had references this afternoon to Lord Simon of Glaisdale and to the reports by my noble friends Lord Wakeham and Lord Goodlad. We need to get on with it. The noble Lord, Lord Hannay, who has just spoken, made exactly the same point.

I shall begin by making one or two general points. In my experience, some Ministers are sometimes tempted to cut corners in getting their policies agreed by Parliament. It has nothing to do with the matter before us, but I remember cases where Ministers produced huge draft Bills to the Cabinet committee on legislation and the Cabinet committee said, “Oh no you don’t. You cut that down”, and made them take a third of it out, and that seemed all right. Then, to the fury of the business managers, one found that they put all the things they had taken out back as Schedules to the Bill at Committee stage. One has to put up with the enormous appetite of some Ministers to legislate. That was an abuse.

It is also an abuse to cut corners and try to enact policies through statutory instruments rather than through primary legislation. I deplore that trend. I have never been able to convince myself that the tax credit issue should not have been done through primary legislation. I commend the last few words of my noble friend Lord Strathclyde’s executive summary, where he says 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”.

I believe very strongly in that. I also cannot get my mind around why the tax credit issue came here at all, because it seemed to me that it was a financial issue that we should never have been asked to discuss.

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In his report, my noble friend gives us three options. I am very strongly opposed to the first option of taking the consideration of statutory instruments away from this House. That would be a travesty of the bicameral basis of our parliamentary procedures. For the first three or four years, I was a member of the Select Committee on the Merits of Statutory Instruments where, as my noble friend Lord Trefgarne pointed out, we looked at more than 1,000 statutory instruments a year. That consideration of legislation in the form of statutory instruments is hugely important and thorough and is far better than what is carried out down the corridor in another place. Indeed, I was one of the instigators in that committee of the recommendation to reject the draft Gambling (Geographical Distribution of Casino Premises Licences) Order 2007, which this House, quite rightly, kicked out.

I also do not like option 2 because it does not take us much further than the current contentious situation. It seems to be a recipe for continued argument.

I see much more merit in option 3. It preserves the right of the Commons to ride over us. I cannot see the logic of this House being able to delay primary legislation whereas on the other hand it can veto statutory instruments; that seems to me to be the wrong way round, and the two ought to be comparable together. My old friend, the noble Lord, Lord McNally, who I think is no longer here, said that we must preserve the right to say no. Option 3 maintains that right. It is an extension of the Wakeham all-party proposals as well as the similar Goodlad all-party ideas. I suggest that the Government should listen to our views, have this report debated in another place and bring legislation that develops the option 3 proposal. The Leader of the Opposition said in her opening speech that the tax credit event gave the Government the opportunity to think again. So does option 3, and I believe that that is the way we should go

5.26 pm

Baroness Andrews (Lab): My Lords, I sought to speak in this debate for one specific reason. It has been my privilege in recent years to be a member of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee, as well as of the Goodlad committee. Noble Lords may wonder what I have done to deserve such cruel and unusual punishment, but it has been a genuine privilege to see the way that the House does scrutiny.

I am speaking personally now. I am concerned about anything that might reduce the legitimate use of our powers of scrutiny in this House and diminish the power of Parliament. I believe that the weight of opportunistic changes to our political system, some of which has been rehearsed in the House, has reached a tipping point in terms of Executive power and away from Parliament and, with respect, the noble Lord’s review sits at the heart of that. Far from having a quarrel with the other place, we are here today making a defence of Parliament as a whole and its ability to hold the Government to account—a Government who, as many noble Lords have already said, find it difficult to face losing votes. Sometimes they seem to behave as if it were 1796, not 2016. I advise the party

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opposite to remember that there is an ineluctable law in politics that no Government have an endless shelf life.

Talking of hubris, despite the elegant way in which the noble Lord, Lord Strathclyde, delivered his speech, in 1999 he declared that the convention that this House did not vote against statutory instruments was dead. In 2005, he conceded that it had had a lively revival and was rather robust, but now, awkwardly, the Government have required him to declare it conveniently dead after all, and have charged him with finding a way of resuscitating the patient. The problem is of course that the patient is not actually dead; as we have heard today, it is sitting up and having a hearty breakfast. Unfortunately, that means that the noble Lord’s review started on a false note with a false premise. Since there is no evidence of the excessive use of statutory instruments being rejected in this House, no case can be made for the abolition of our power to veto.

Having been invited to address the wrong question, the noble Lord, not surprisingly, came up with the wrong answer. It appears that we are the problem, with our apparent “failure” to understand the conventions. We are also told that the convention has been fraying for many years; indeed, to quote from the report, it,

“has been stretched to breaking point”.

I know that the noble Lord has a fine sense of irony—we saw it in operation many times when he was Leader of this House—but to say that it is stretching the convention to breaking point for the House of Lords to reject five statutory instruments in 65 years, and four in the past 16 years, itself stretches credibility to breaking point. What is frayed and stretched is the other important and very long-standing convention, the distinction between primary and secondary legislation, which has already been alluded to. As Erskine May itself puts it, the purpose of secondary legislation is to deal with the application of detail. The fact that secondary legislation is increasingly not about detail at all but about the scope, the impact and the implementation of primary legislation and making substantial variations to it is the source of the crisis that this Government have manufactured, and is exemplified by the tax credits regulations.

This is evident in the raft of Bills, some already cited by noble Lords, which have been described by the DPRRC in one instance as simple mission statements. Most notoriously, perhaps, there is the Childcare Bill, which led that committee to say that the delegated powers,

“go to the very heart”,

of the Bill. My experience on both the scrutiny committees of this House leaves me in no doubt that the Government find us a thorough nuisance. Time and again in the past two Sessions the Government have been reprimanded by both committees for excessive and inappropriate use of delegation. We have had to refer back to this House secondary legislation which contains substantial policy changes with substantial impacts—for example, the draft hunting regulations, immigration changes, and universal credit. In this Session alone, 32 SIs have had to be corrected by government after serious flaws were identified and 16 have had to be withdrawn completely.

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If we add to that ministerial failure to provide impact statements, or Explanatory Memoranda which do what they are supposed to do, a picture emerges of a Government who not only deliberately exploit secondary legislation and reduce parliamentary scrutiny in the process but are resentful of proper scrutiny. If we were to lose our exceptional power to reject SIs, Parliament would lose a legitimate brake on government excess. However, it would also reduce the credibility of the scrutiny process as a whole and open the gate to greater abuse. What is needed, which the noble Baroness, Lady Hayman, anticipated, is a wholesale review of secondary legislation to remind Ministers of their public duty to be open and transparent about policy and legislation, to be accountable, and to respect—in fact, invite—the role of scrutiny.

Instead, we have the three options before us. We are invited to focus on option 3, which involves a new procedure to be set out in statute which would allow the Lords to invite the Commons to think again when a disagreement exists and to assert its primacy. Sadly, this option raises more questions than it resolves. Where is the timetable which will allow the House of Commons to think again? Where are the provisions for legitimate delay? Where is the guarantee that the House of Commons—either as a whole, or in Committee —would be able to show that it had indeed thought again, by debate, or by vote? Where, in short, is this additional provision for scrutiny which would compensate the House for the loss of our veto?

Many commentators are already alarmed by what this implies. We have heard the Hansard Society quoted. Meg Russell of the Constitution Unit says:

“If a Lords defeat did not trigger a debate, and a full-blown vote, peers could find themselves overridden by MPs who had no clue what they were voting on”.

The reality is that we could end up with the worst of all worlds: having lost important competence in this House but with no extra scrutiny in place.

Finally, when the noble Baroness winds up I hope that she will give some indication of the issues raised by the proposal to legislate for these changes. The legislation, we are cheerfully told by the noble Lord, is likely to be short. That will not stop it being problematic. It will be extremely difficult. Nothing like this will have been done before. I know that the noble Baroness is aware of the pitfalls. I detect a certain wistfulness in the noble Lord’s tone when he says that when the conventions go, Parliament and the people it serves will miss their value. Indeed they will, and they will miss nothing more than the power of this House to have a veto over a Government who sometimes act far too hastily, which is when we save them from themselves.

5.33 pm

Lord Empey (UUP): My Lords, following the general election and the opening of the new Parliament, it is fair to say that a number of us looked forward to a period in which reform of this House was not on everybody’s lips but instead we had an opportunity to get on with business, scrutinise legislation and do the job which we are sent here to do.

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Sadly, as the summer progressed, the Sewel scandal had a huge impact on the standing of this House, and of course another major controversy erupted in the autumn over the tax credits issue. A number of noble Lords have already questioned whether that piece of secondary legislation should have been brought to your Lordships’ House in the first place. Maybe, on reflection, there could have been another way, but the temptation in this case to stop such a controversial measure was irresistible.

My main concern about option 3 is, in part, shared by the noble Lord, Lord Strathclyde, himself. In the final paragraph on page 6 of his review, the noble Lord expresses the concern that I share, when he uses the words,

“Finally, in order to mitigate against excessive use of the new process which I have proposed under option 3”,

et cetera. My anxiety is that the temptation will be to ping-pong piece after piece of secondary legislation down the corridor and say, as the scorpion did to the frog, “It’s what we do”. It could lead to further confrontations rather than fewer.

Perhaps we need to look at other measures. These could include, as mentioned by many Members this afternoon, those around the question of secondary legislation. Anybody who has ever had any role in a formal legislative process, either nationally or regionally, will know that Ministers all like statutory instruments. They are easy and quick, and difficult to amend. You can achieve quite a lot with them. Of course there is now future-proofing of legislation—I have no doubt that the draftspeople will deny it, but I do not accept that—where provision is made so that Bills can be subsequently amended by statutory instrument. The temptation is undoubtedly there.

I sincerely hope that we can look at some kind of change. However, although it may certainly be required, I am anxious that we will escalate the number of confrontations rather than reduce them. The temptation will be to send any statutory instrument back to the other place to amend it. It would open up a huge degree of additional traffic between the two Houses, which would not necessarily be helpful.

I am of course a very strong believer in the primacy of the other place, but I also believe that, to do our job properly, this House needs to be able to express a view in order to improve legislation and cause the Government to rethink their position from time to time. However, where we may be starting to go wrong is that this House should not allow itself to become the national Opposition to Her Majesty’s Government, which I fear is the temptation to which a number of Members of your Lordships’ House have yielded in recent months. That is not helpful to the balance in this Parliament.

There is growing hostility towards us among some Members in the other place, which is concerning. This is in part as a result of confrontation coming so soon after the Government secured a mandate. I fear that there might be far less support expressed for this House in the Commons today than there was when the Clegg proposals were being pushed through a few years ago. It would be churlish not to acknowledge the work done by the noble Lords, Lord Cormack and

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Lord Norton of Louth, and their very effective group in trying to get a proper balance in the relationship. Knee-jerk reactions and changes always carry risks.

The fundamental weakness in all this is the unco-ordinated nature of the changes occurring to our unwritten constitution at so many different levels. Devolution to the home nations is evolving rapidly, with no thought given to accountability to Parliament; major changes are taking place at local level, with the new council and mayoral arrangements being introduced; and, finally, we saw last night another attempt to resolve the West Lothian question, with EVEL being used for the first time in the other place. Only a coherent and comprehensive examination of all our constitutional arrangements taken together will provide the platform for a fully thought-through constitution for the 21st century. That must involve consideration of what role this House plays.

What we are discussing today is an understandable attempt to resolve what is seen as a challenge to the primacy of the other place, and I do not believe there is real support in this House for any challenge. That is the weakness that is so apparent in the way successive Governments have chosen to handle the constitution. I sincerely hope that we can promote a more joined-up approach and that the noble Baroness the Leader of the House will address this matter during her contribution later in the debate. I thank the noble Lord, Lord Strathclyde, for the work he has done, but I believe we need further refinement, perhaps around option 3 or variations thereof. Otherwise, I fear we will increase, at a dramatic rate, the number of issues which we will be sending back to the other place.

5.39 pm

Lord Naseby (Con): My Lords, it may help if I explain my background as Chairman of Ways and Means in the other place. First, it was a post that I held when the Government of the day had a small majority rather similar to that of the present Government. Secondly, we took through the Maastricht treaty, which has probably been the most controversial piece of legislation since the war, with four clauses, 500 amendments and four all-night sittings. Our guidance then was not convention; it was that wonderful bible Erskine May, and, when quoted from the chair, every Member accepted the ruling.

Furthermore, there was a secondary role for the position of Chairman of Ways and Means and it related to SIs. They were handled primarily by Speaker’s Counsel and the clerks, but when an SI was controversial I was shown it and, if I thought it really was controversial, I shared that with the Leader of the House. If we both thought it was controversial, the Secretary of State was called in and the matter was discussed in some depth. I suspect that that procedure has gone by the board. I cannot believe that it happens today, otherwise the SI that arrived here would never have been in the state in which it was, and it most definitely should not have ever got to this House. I say in parenthesis that I suggested to my party that the whole thing should be pulled.

Of course, there is the other side of the coin. We all knew that there was a convention in this House. We all knew that this was a major issue with £4 billion

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at stake. A number of my former colleagues from the other place sitting on the opposition Benches did not vote for the Motion before the House that night—they saw how important it was that that particular convention was not abused. However, we are perhaps all politicians and the temptation was for the Opposition to give the Government a bloody nose, which they certainly did. We have to recognise that that is what happened.

My noble friend Lord Strathclyde was asked to look at this issue. He has produced a report with three recommendations. I reject the first but think that both the second and third are possible. If option 3 has more certainty, I should like to know what safeguards there are to ensure that the other place does think again and does not just nod through a measure, producing exactly the same result. There needs to be some clarity there. I also commend my noble friend on the last paragraph on page 6 of his report. It says in patent terms, “You must look again at what used to happen to SIs and clearly is not happening today”.

However, I am sorry to say that I question Appendix C to the report. I have worked with the Library and have carried out research using legislation.gov.uk. That shows that in recent years, on a calendar basis, the volume of SIs has increased—from around 2,000 in 2009 up to nearly 3,500 in 2014, and, looking at the graph in the appendix, it seems that in 2015 the record will go even higher. It is not just a matter of the numbers. When I used to look at SIs, they consisted of just two pages; now, on average they consist of four pages and some are considerably longer. Added to that is the size of an average Bill today, which I would guess is at least double what it used to be in the early 1990s.

From that research I am now much clearer about the issues. I think the word “convention” has to go. Of course, we have our Companion. I have it here, and it is a wonderful document, but the other place has Erskine May. Erskine May has 1,097 pages and our Companion has just 296, including the contents and index. But the really interesting point is that there are 432 pages in Erskine May of direct relevance to and with mention of your Lordships’ House. I suggest to my noble colleagues that the time has come for a complete review of the Companion, including the parts that are in Erskine May, and for putting the whole lot together. Colleagues may ask what that would really achieve. It would give this House, in our bicameral Parliament, a framework similar to the Commons but geared to our needs and to the needs highlighted by Erskine May on the law, privileges, proceedings and usage of Parliament as relevant to your Lordships’ House.

In conclusion, unless we take such action ourselves along these principles, I foresee ever-increasing arguments and diktats from Governments of the day. Surely it is wiser to pre-empt such action and produce our own comprehensive equivalent of Erskine May.

5.46 pm

Baroness Williams of Crosby (LD): My Lords, I ask the indulgence of the House for a moment to say just a word about my friend and colleague who gave her maiden speech a few moments ago. There is no doubt that my noble friend Lady Bowles of Berkhamsted is one of the most remarkable economists, with incredible knowledge of very complex financial matters. She has

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already been a great asset to the European Parliament, and anybody who follows its work will know that, time and again, she has intervened in order to establish a more sensible, more rational, more thoughtful and less bureaucratic approach by the Commission to many of the things that it does within Europe. I believe that she will make a major contribution to our discussions over the next few weeks and months with regard to the referendum and its outcome, one for which the House will be extremely grateful. She made in her maiden speech a compact, short but extremely wise contribution to what will be a future discussion perhaps even more than to the present discussion today.

One of the subtle things about the noble Lord, Lord Strathclyde, is that he is very good at hinting at what he wants to say without shouting about it; he just leaves it to sink in so that people understand the complexities of what he is trying to get across. What I am saying in another kind of language is that if one reads his review carefully, one will see that it points to the weaknesses in the whole structure that we have for how we deal with statutory instruments.

Let me take two examples from his compact, well-worded and thoughtful review. In it he points out, as the noble Lord, Lord Jopling, pointed out, that there is a real problem with the sheer scale of statutory instruments. He does not say that in so many words, but he makes it quite clear that in making his own proposals work, he hopes that there would be a much greater recognition by government of the limitations of and obvious flaws in relying on statutory instruments as a way to get across complex legislation. In that context, I have to say that, frankly, I do not think that the tax credit system was one that lent itself to having a statutory instrument explain it rather than the proper procedure of primary legislation. The House has already indicated the ways in which that could have been done.

I believe that the House sometimes sells itself short. It is more than just a revising Chamber. It is a Chamber that, on many occasions, has reiterated the fundamental foundations of what it is to live in a constitutional democracy. In that context, to deal with legislation on issues as sensitive as the level of income of people already hard-pressed as a result of the economic crisis is not appropriate for a statutory instrument. It is much more appropriate for what the Lords does well: to bear in mind the balances and challenges that make it possible for a democracy to survive. Although it is not itself democratic, as my noble friend Lord McNally pointed out, the Lords is often very conscious and sensitive about the constitutional issues that have to be taken into account.

Among those constitutional issues, the noble Lord, Lord Strathclyde, pointed to what he calls the conventions. Therefore, I think that the acceptability of his third option, which has certain attractions, would be much enhanced if he was able to show that there is a balance, in constitutional terms, for it. That balance needs to be of two things, as he himself has hinted. The first one I have mentioned already: a real study of whether statutory instruments are becoming out of control in terms of the sheer weight and volume of them—over 3,000 a year in years that do not have an election within them.

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The second one, as he also made clear in his review, is the deep and profound undesirability of statutory instruments replacing primary legislation. That is why he also very sensibly said that primary legislation must be enriched by being clearer and by spelling out in more detail what the implications of it are; and that the steady retreat of Governments of all kinds from primary legislation which is detailed, sensibly set out and clear into statutory instruments is a substantial threat to the best workings of parliamentary democracy.

I am inclined to agree with my noble friend Lord McNally that we would be unwise to give up at this stage the concept of losing a veto over a statutory instrument, rare though its operation is, because we do not yet have the reassurance that we would need that the Government on their own side would be responsible for changing the ways in which legislation is drawn up in order to enable this House to continue to do its valuable and essential work, not only of scrutiny but, as I have tried to say more widely, a genuine commitment to the principles on which democracies depend.

I wish to say two other things before I conclude. A more appropriate approach would have been for the two Chambers’ Leaders to meet and discuss whether this matter could not have been handled much more responsibly and consensually. That would have been good not only for the House of Lords but immensely good for the House of Commons. It would have enabled us to say what the House of Commons’ responsibilities were in relation to any change in the current actions and powers of this House. To have the reassurance that we need, that means that they would properly respond to the new responsibilities vested upon them. However, some of recent history does not suggest that one can be sure of that.

I have great sympathy with what the noble Lord, Lord Jopling, and the noble Baroness, Lady Hayman, had to say about the way that this issue should have been handled more properly—not by the Government, despite the brave attempts of the noble Lord, Lord Strathclyde, to find a sensible and thoughtful response, but rather through the parliamentary system and our constitutional structures. I would advocate strongly that we do not in future allow any Government of any colour to determine what should be the powers of this House.

5.52 pm

Lord Cormack (Con): My Lords, it is always a privilege to follow the noble Baroness, Lady Williams. She brings great experience and wisdom to all the debates in which she takes part. I echo what she said about her noble friend Lady Bowles, who made a notable maiden speech. I also echo her perceptive and truly appreciative remarks about my noble friend Lord Strathclyde and the work he has put into what is certainly a thoughtful and constructive report. However, it is not the last word. I am grateful to the Leader of the House for ensuring that this is a “take note” debate and that we can all reflect on what is said in it.

We have to begin by recognising that this debate has come about because of a paradox. Rarely has there been a more popular vote in the country, as far as the

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House of Lords is concerned, than the one that took place on 26 October; and rarely has there been a greater change of policy on the part of a Government as a result of the vote. I recognise that, even though I voted enthusiastically in the other Lobby. The Labour constitutionalists, as I call them, and noble Lords in other parts of the House thought that this was a step too far. However, because of the enormous financial cost involved, it was understandable that the Government reacted—but I believe that they overreacted.

It is very interesting that wherever you sit in this House you are conditioned by the position of your party. Position lends difference to the view. I well remember that in another place I fulminated—sometimes from the Front Bench as well as from the Back—against some of the changes of procedure to the House of Commons introduced by the Labour Government. I deplored Programme Motions; I deplored the proliferation of what we called Henry VIII clauses on skeleton Bills; I deplored deferred Divisions; and I very much hoped that when my party came into government those things would go. I even said from the Front Bench that they would go—but of course I was not then in a position to do anything about it. But some of those who had made promises became members of, first, the coalition Government and then the Conservative Government and felt it inconvenient to carry them out because all of those changes were helpful to the Executive. This is really what it is all about.

The noble Lord, Lord Grocott, referred to this in a whimsical way. I almost thought that he was going to quote Corporal Jones from “Dad’s Army”—“They don’t like it up ‘em”. The fact is that Governments do not “like it up ‘em”—which is why we are in this position today.

Having said all that, we do have a real problem: what should this House do about, and what should its powers be over, important legislation with financial implications—secondary legislation particularly in this case? My noble friend Lord Strathclyde has pointed the way. It is important that we follow some of his suggestions but address them in a manner in which the House of Commons, the other place, has to learn to behave: with more robust independence when it comes to secondary legislation.

I hope that as a result of my noble friend’s report there will be a realisation on the part of government that skeleton Bills should become a thing of the past. Governments are not there to create Christmas trees on which Ministers then hang balls. I hope, therefore, that following today’s “take note” debate there will be a discussion in government. I also hope that a Joint Committee of both Houses will be established to look at the whole issue of secondary legislation and that it will take on board the wise advice given a few moments ago by my noble friend Lord Naseby. We cannot stay where we are—we have to have clarification—but we have to preserve the position of this House, to which I am passionately devoted, to have a real role in legislation while never subverting the superiority, in legislative terms, of the other place, the elected House.

So let us go forward from here having taken note of this sagacious and helpful report. Let us have a Joint Committee of both Houses; let the Government realise

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that they were largely responsible for the debacle on 26 October. My position then was very like that of my noble friend Lord Lawson, who said that he was determined to vote as he did—as we both did—but that he had considerable sympathy with the points being made by those who were going to vote in another direction. We have had our lesson, I hope. Let us now move forward constructively so that this House’s position in our country’s legislature is properly recognised and confirmed, so that the supremacy of the Commons is not challenged but legislation, both primary and secondary, is thoroughly scrutinised.

5.59 pm

Lord Kakkar (CB): My Lords, I join in thanking the noble Lord, Lord Strathclyde, for the thoughtful way in which he introduced his review, and indeed for the very thoughtful approach he has taken to it. I believe that a review was necessary because there is a difference of opinion both within your Lordships’ House and between this House and another place over the role that this Chamber should play in the scrutiny and disposition of secondary legislation. A convention can exist only if there is consensus. On this occasion, it is clear that the consensus has started to break down and, therefore, the matter must be addressed. The noble Lord’s review is a starting point, as indeed is this important debate to take note.

We need to recognise that the debate on 26 October raised an interesting and important issue. My understanding previously had been that with regard to statutory instruments, the role of your Lordships’ House was to scrutinise them, but that our response was binary; that is, either to accept them or to reject them. A new, potentially helpful concept was introduced that the House should be able to consider a statutory instrument and provide an opportunity for the Government to think again in a meaningful and real way, and indeed that is what happened on that occasion. The third proposal in the report of the noble Lord, Lord Strathclyde, seems to provide that option in a more definite way, and if one reviews the debate of 26 October, many arguments were made. I was particularly taken by that of the noble Lord, Lord Rooker, when he said at col. 1015 that the powers of your Lordships’ House with regard to secondary legislation were “too drastic”. There must be a possibility for your Lordships, in looking at the development and evolution of conventions, to consider seriously the proposal made by the noble Lord, Lord Strathclyde.

In his review, the noble Lord also makes an important point about the need to look in addition at the way that primary legislation is drafted and, in particular, at the use of delegated powers if this new convention is established for your Lordships’ House. This is important, particularly in terms of the use of delegated powers that may have constitutional ramifications. We have only to look to the previous Session of Parliament and the passage of the Fixed-term Parliaments Act 2011 to note that there are delegated powers in that Act which provide for the extension of the life of this or any Parliament by two months on the basis of a statutory instrument. Two months is a short period, but there is an important principle here with regard to the constitutional implications of that statutory instrument.

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Therefore, any criteria that are developed with regard to the drafting of primary legislation and the appropriate use of delegated powers must make special reference to those with a constitutional implication.

There is then the question of the many Acts of Parliament currently on the statute book that have delegated powers, some of which may also be used for constitutional purposes. I should like to ask the Leader of the House how the Government would go about providing an opportunity for an understanding of the implications, with regard to existing legislation and delegated powers, in this specific area of constitutional importance so that we can be certain that our important role as guardians, to some extent, of our constitution can be maintained. The Parliament Act 1911 made specific reference to an ongoing and important role of your Lordships’ House at that time to ensure that the life of a Parliament could not be extended beyond five years. That provides the context of our constitutional responsibilities and therefore the need, in taking forward these proposals, to ensure that there are no unintended consequences that serve badly our country, our fellow citizens and this Parliament in the future.

6.04 pm

Baroness Fookes (Con): My Lords, I rise to take part in this debate from the perspective of the chairman of the Delegated Powers and Regulatory Reform Committee. I am speaking for myself because I have an extremely active and assiduous committee and I would not dream of speaking on its behalf, so anything I say is my own view alone.

I have come to value very much the work that we do in a quiet way, which is certainly of no interest whatever to the media. But we perform a valuable role and therefore option 1 in my noble friend’s report fills me with horror. That is because there is nothing in the House of Commons as it is currently constituted which would replicate the work we do.

For those who may not be so familiar with the committee’s work, perhaps I may be allowed to explain that we look at each Bill as it comes through, usually between Second Reading and Committee. We have the help of an assiduous team of very experienced lawyers and we look, first, to see whether the delegated power is appropriate—in other words, is it delegated legislation that ought to be on the face of the Bill?—and, secondly, whether the degree of parliamentary scrutiny is appropriate for that particular work.

We are guided, hopefully, by a departmental memorandum which is supposed to explain why the powers have been taken and the justification for them. I have to say that the quality of these memoranda is extremely variable, and indeed we produced a report on this subject before I became the chairman. If the Government want to make a modest start, they should take a look at how seriously the various departments, and the Bill committees in particular, take those duties. I think that the Cabinet Office, which actually tells the departments what they are supposed to be doing, should take a good, hard look and make sure that they do so. This might deal right at the outset with some of the problems that subsequently come forward.

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Much greater attention should be given to allowing draft regulations to be brought forward while we in the House of Lords are looking at the main Bill, because often they are not available. They do not become available for ages, and again a lot of difficulties could be overcome if the regulations were with us so that we could discuss them without coming to the final point where we have to accept or reject or, as I rather vulgarly call it, swallow it whole or spit it out.

Furthermore, the Government should be looking seriously at the way in which they think about the development of legislation. I can remember a time when, before important Bills ever appeared, they would have a Green Paper making suggestions, then a White Paper giving the Government’s views and finally the Bill. Where has that system gone? I am absolutely certain that, if we had more of that, we would have far fewer problems that then arise subsequently.

Noble Lords: Hear, hear!

Baroness Fookes: Alternatively, we have the draft Bill approach, which again can be valuable, but how often is that used? In my view, not often enough. If the Government are really keen on improving the quality of legislation and not having the various difficulties that have been so eloquently expressed, they ought to take a hard look at how they approach the whole possibility of legislation.