My Lords, this has been a fascinating and thoughtful debate. The contributions and the expertise that have been displayed in the past few minutes have been particularly helpful to your Lordships’ House.
I will refer briefly to two remarkable maiden speeches. My noble friend Lady Bowles brings not only professional expertise and experience to this House but particularly interesting experience from the European Parliament. The direction of travel there is to have more democratic control over secondary legislation while in this House this evening it looks as though we might be going in the opposite direction. That is a useful lesson for us. I suspect that the parliamentary experience and touch in the Treasury would never have let the noble Lord, Lord Darling, ride into this House and fall into the elephant trap that the present Chancellor fell into on 26 October. His expertise and experience will be welcome in this House, too.
If there has been a theme during the debate today, it is that this is not a new problem. It is complex, it is not simple—and to that extent we are all indebted to the noble Lord, Lord Strathclyde for trying to simplify it—but it is not new. Therefore, it is up to us to realise that there is no novel, simple one act that could suddenly transform the situation.
As a non-expert, I have at least enough humility to listen carefully to previous wisdom. With the noble Lord, Lord Higgins, and my noble friend Lord McNally, I served on the Joint Committee that the noble Lord, Lord Cunningham, so brilliantly steered in 2006 which produced the report on conventions at the UK Parliament. I read again last night some of the excellent evidence that was put before us on 20 June 2006, when we heard from three distinguished witnesses. This was their first key statement:
“The only inference to be drawn from these proposals is that the Government intends further restriction of the freedoms and powers of the House of Lords. We would start from precisely the opposite premise—the freedoms of both Houses should be upheld and, where possible, extended. We further disagree with the government’s view that ‘codification’ is necessary as a prelude to the reform of the House of Lords. Even if true, which it is not, it could never justify further weakening of Parliament”.
The delegation that produced that evidence included Mrs Theresa May, MP, then shadow Leader of the Commons; the noble Lord, Lord Cope, then Opposition Chief Whip here—and it was led by none other than the noble Lord, Lord Strathclyde. Members of your Lordships’ House may have guessed that the evidence they gave was given on behalf of the Conservative Opposition. Colleagues may also recall that the Joint Committee was set up by the previous Labour Government because Mr Jack Straw wanted to clip the wings of your Lordships’ House—is that not, too, familiar?—as my noble friend Lord McNally reminded us today.
The evidence of the noble Lord, Lord Strathclyde, continued powerfully:
“‘Codification’ could cause more problems than it solves … We therefore agree with the Government that it would be undesirable to legislate on the conventions and other relations between the two Houses. That would lead to judicial intervention in and resolution of parliamentary and political difficulties”.
I agreed then and I agree now, because there is a real danger that we could drift into justiciable decision-making, which would put us in a very awkward position.
This has been referred to during the debate today by a number of colleagues on all sides of the House, including the noble Lords, Lord Cunningham and Lord Higgins, from the committee, my noble friend Lady Thomas, the noble Lord, Lord Forsyth, who spoke forcefully a few minutes ago, the noble Lord, Lord Howarth, and, most recently, the noble Lord, Lord Lisvane. That is a dangerous route for us to go down without thinking it through very carefully indeed—and I will come to how I think we should do that.
Those witnesses then turned to the specific subject with which we are engaged today. They said:
“The conventions on secondary legislation are equally well understood. We propose no alteration. We uphold the right of the Lords to reject secondary legislation, while considering its use should be exceptional in the extreme. However, there is an important balancing convention to this, namely that governments should not use their majority in the Commons to introduce skeleton Bills as a basis for introducing unamendable secondary legislation”.
There is nothing new under the sun. It has been said again today several times that we have skeleton Bills which have become more and more skeletal.
A reference was made earlier by, I think, the noble and learned Lord, Lord Judge, to the Childcare Bill. I draw the attention of the House to the work done on that Bill by the Delegated Powers and Regulatory Reform Committee, chaired by the noble Baroness, Lady Fookes, and on which I serve. It pointed out admirably that the Childcare Bill was not sufficiently well thought through to put before either House of Parliament. It was indeed so skeletal as not to be worth consideration by either House. Some time ago in the debate the noble Baroness, Lady Hayman, referred to this issue, as did my noble and learned friend Lord Wallace. We believe that that is a major problem so far as the House’s consideration is concerned.
Having previously argued that the convention on secondary legislation was “dead”, the noble Lord, Lord Strathclyde, came before the Joint Committee with a slightly modified view. He said:
“However, on many, many occasions the House of Lords has asserted its unfettered right to maintain its power to throw out
secondary legislation; I think the custom and practice that has built up, in combination with the long-stop power in the House of Lords, works extremely well”.
He has changed his mind since then.
There was a good deal of support from other witnesses and in the Joint Committee for that approach. I shall quote from the committee’s report. The noble Lord, Lord Norton of Louth, who has also spoken today,
“likewise argues against codifying a convention that the Lords do not reject SIs. He observes that:
(a) It is not agreed that there is any such convention;
(b) SIs do not normally involve ‘great issues of principle’, and any argument in Parliament is usually only about fitness for purpose;
(c) A rejected order can be re-laid;
(d) The power to reject supports the work of the SI Merits Committee;
(e) Power to reject orders under the Legislative and Regulatory Reform Bill will be even more important than power to reject mainstream SIs”.
The work of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House makes his case even more powerful; it is a critical part of our job and it is very effective in undertaking that responsibility.
As has already been quoted once or twice in the debate, the eventual recommendations of the Joint Committee are unequivocal and bear repetition. The committee states that,
“we conclude that the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate for it to do so. This is consistent with past practice, and represents a convention recognised by the opposition parties. The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree ... The Government’s argument that ‘it is for the Commons as a source of Ministers’ authority to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it”.
That, like every other recommendation of the Cunningham committee, was not only debated in both Houses, it was unanimously and enthusiastically approved by both Houses.
It was also welcomed enthusiastically—unsurprisingly, since we had accepted so much of his evidence—by the noble Lord, Lord Strathclyde. I find it difficult, as my noble friend Lord Clement-Jones hinted earlier, to understand what precisely has happened to that noble Lord, Lord Strathclyde. The contrast between the evidence to the Joint Committee, written and oral, and what we have heard today and read in his report is so remarkable that it makes one slightly suspicious.