Speech in debate on the Strathclyde Review recommendations

Angela Smith speech to The House of Lords

At the outset of this debate I’d like to thank the NL Strathclyde for his service to your Lordships House with this Report.

For years Your Lordships have without recognition, without fanfare and without the glare of publicity. Dutifully and with great expertise considered and advised governments on thousands of Statutory Instruments, or SIs as we affectionately call them.

There has rarely been any interest outside parliament. But now, having asked the government to reconsider just one such SI – the Government’s massive over-reaction means that suddenly Sis are the hot, 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 – some might even say they’ve added a frisson of excitement to parliamentary proceedings. 

I thank him for that.

I also thank the Noble Lord for the Report – 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.

A jovial man of integrity, the Noble Lord was a popular and effective Shadow Leader during the last Labour government.  But I do worry that his memory may be failing him. 

For in criticising Your Lordships House for breaking ‘new ground’ on the tax credits vote he must have forgotten his 1999 speech on the convention that the Lords Opposition should not, other than in exceptional circumstances, vote against secondary legislation. He said then: “I declare this convention dead”.

So what has changed now that he sits on the Government side of the Chamber? I’ve said before – I think there are two Lord Strathclyde’s – one for Opposition and a shiny new one for Government.

My Lords, 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. And as part of that SIs are normally examined in Committee by Peers who have knowledge or expertise on an issue.

Any member of Your Lordships House is entitled to ask questions or express an opinion. Very occasionally there may be a vote. And 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.

The Noble Lord in his Report recommends that the Lords power should be limited to only be able to ask the Commons to think again. But SIs are sent to Your Lordships House from Government - not from the Commons and it is perfectly proper for us to consider an SI first.

More importantly, and perhaps it’s easier for me to admit this as a former MP, Your Lordships House process is more robust. 

In the other place the Government ensures it has a majority on any SI Committee and MPs are chosen by whips.  Other former MPs may recognise the two most common questions asked by MPs selected to serve on an SI Committee as being: ‘Why me?’ and ‘How long will it last?’

And it is a rare minister who welcomes backbench interventions.

My Lords, we should examine our procedures for effectiveness or to see if they remain appropriate and relevant.  But that should be in the interests of good governance and with respect to the role of Your Lordships House – and not for the advantage of any Government.

Also, if we are seeking to change how we scrutinise legislation – even in the narrow way outlined in the Noble Lord Strathclyde’s Report – we surely have to consider not just our own procedures but whether change here should be undertaken alongside the creation of a more effective process in the other place?

We know that this Report has only been produced because of our decisions to support two motions on tax credits – one from the Noble Lady, Baroness Meacher; the other from my Noble Friend, Baroness Hollis. The result was that the Chancellor took that opportunity to substantially change his position.

Indeed, perhaps Mr Osborne learnt a valuable lesson in that this House can be a Minister’s friend.

As the Noble Lord, Lord Forsyth so perceptively pointed out recently: “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”.

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

And there was a fatal motion in the name of the Noble Lady Manzoor, which was rejected. The Noble Lady 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 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 is not new. Indeed, unless his memory is failing him again the Noble Lord will recall his own time on this side of the House. As the Opposition Leader and Chief Whip he could boast well over 500 government defeats. Including: 145 in the 2005-10 Labour Government, and 245 in 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, including on ping pong late into the night. These were hugely significant defeats for the Labour Government.

So we understand that challenge and scrutiny is never easy for any Government or any Minister. 

But any changes must be in the public interest that provides for better legislation and be agreed by this House. Not change forced on Parliament by an executive that fails to understand the role and reason for effective challenge.

As the Hansard Society points out in its Report today “This is no way to undertake reform – an independent inquiry into the legislative process is required”.

Every year around a thousand 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 has fallen short, and we welcome those reports as essential to proper scrutiny.

So, of the hundreds of SIs that have already gone through the House, is it really the case that the government is not getting its business through?  Of course not.

The reality is that we seldom use our powers to their limits. But that doesn’t mean they shouldn’t exist. It does mean that this House is respectful of when it is appropriate to use them. And that was recognised in the Cunningham Report of 2006.

My Lords, the Government’s case to weaken Lords scrutiny on secondary legislation is feeble. This is an unnecessary solution to a fictitious problem.

Is the overreaction to the tax credits vote symptomatic of the Government’s attitude to scrutiny and challenge?

This is not a stand-alone Report but should be seen alongside other legislation and proposals, for example:-

• The Lobbying Bill that restricted the ability of charities and other groups to campaign for their causes
• New limits on the Freedom of Information Act
• The Trade Union Bill, debated this week, which will strip the Labour Party of its funding quite contrary to the balanced proposals of the Committee on Standards in Public Life
• Reports of Ministers being told to make increased use of Sis to drive through legislation without proper scrutiny
• And now the proposal to remove this House’s power to veto that same Secondary Legislation it favours.

It’s hard not to see an authoritarian Executive waging war on the institutions that hold it to account.  This government is seeking to stifle debate, shut down opposition and block proper scrutiny. It is a Government that fears opposition and loathes challenge.

The Noble Lord’s Report is entitled: ‘Secondary Legislation and the Primacy of the House of Commons’.

This isn’t an issue of the Primacy of the House of Commons over Your Lordships House. This 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.

-ENDS-

Baroness Angela Smith of Basildon is Shadow Leader of the House of Lords. She tweets @LadyBasildon

Published 13th January 2016