My Lords, I venture to speak in this debate because, when it comes to tabling and then moving an annulment Motion to an affirmative instrument, I have form. I tabled an annulment Motion to the Transfer of Tribunal Functions Order 2008, an affirmative instrument. One long-standing tribunal, the Armed Forces Pensions Appeal Tribunal (England and Wales), dating back to 1919, was to be scrapped. Its work was to be taken on by a widely drawn social entitlement chamber. The Royal British Legion, COBSEO and senior members of the existing tribunal all told the Government that this did not make sense, well before the order reached your Lordships House.
It was clear that the order had had little consideration in the other place, and it was being taken for granted by the Government that your Lordships would also nod it through. So I tabled my annulment Motion just before the 2008 Summer Recess. I was of course made aware of the convention about such an amendment, but I felt that the issue was of such importance to Armed Forces veterans that I should proceed in the hope that the Government might think again. Indeed, during the Recess, the Government took greater heed of the expert advice that they had received. They decided to set up a separate Armed Forces chamber. The Lord Chancellor, then Jack Straw, and the Senior President of Tribunals signed a joint undertaking that no later attempt would be made to unpick this arrangement unless first approved by Parliament. This was subsequently incorporated into a Written Ministerial Statement on 16 October by the Lord Chancellor, and repeated by the noble Lord, Lord Bach, for this House. When the House came to debate the order on 23 October, I moved my annulment Motion but had already agreed with the Government that, in the light of the changes they had made and the Written Ministerial Statement, a key undertaking, I would not divide the House on my amendment.
In keeping with his terms of reference, the review by the noble Lord, Lord Strathclyde, offers three options for consideration to replace the present arrangements on the debatable ground that the Government have an explicit, invariable right to carry all their proposed legislation—a position where, to quote from the review,
“the veto is left unused”.
None of these three options seems to be a widely favoured runner, being either too extreme or having to rely on achieving a legally binding or codified consensus across both Houses.
My proposal, for what it is worth, based on my experience in 2008, is not to seek to change the current “convention”—it should by now be in quotation marks. The House should not readily surrender its very long-standing power to move a veto in exceptional cases. The historical record of the rarity of annulment defeats, going back to the 1950s, is well known. Since my Motion in 2008, there have been only nine attempts in over seven years to reject, as opposed to regret,
an affirmative SI. In only one were the Government actually defeated before the recent case and the heavyweight, OTT reaction to it. In the same period, more than 1,500 affirmative SIs were passed by this House; a success rate for the Government verging on 99.5% of their business—surely close enough to the “certainty” that the Strathclyde review envisages.
Given such figures, it seems statistically most premature to be doing more than considering a possible way forward—contingency planning, as it were—in the event that the examples relating to tax credits and electoral issues prove to be the harbinger of frequent and successful attempts in this Parliament to thwart government SI business. Although the recent experience was a greater setback for the Government than my case in 2008, the principle of expecting the Government to think again, ahead of a debate, a vote or on an annulment Motion, is sound. It is a fine example of holding the Government to account and gives them the opportunity to reconsider, modify their original intention and seek a better consensus and more widely acceptable outcome. It would be wrong to give the Government a freedom from expert scrutiny, which this House demonstrates, time after time, in the course of its work. Government should welcome that scrutiny and not seek in narrow party interest to weaken, let alone bypass, that input to legislation.
With the benefit of hindsight, I see that it was a mistake for the Government to have relied so much on the supply argument in the tax credit SI. In casting my vote, I supported this, but I did so with a heavy heart because I felt that the arguments so forcefully put for the other side during the debate needed far greater consideration. Indeed, the outcome indicates that the Government have, in part, acknowledged the strength of the counterarguments.
To conclude, I do not favour any of the three options. I would prefer to remain, for the moment, with the current “convention”. It is the least objectionable of the possibilities before us. Indeed, I shall not hold my breath in expectation that any of the options put forward by the noble Lord, Lord Strathclyde, will be adopted. Perhaps if a wider look were to be taken at the complex constitutional issues involved, a better solution than the present one might evolve. Again, however, I do not propose to hold my breath.
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