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Parliament and the Legislative Process

My Lords, I welcome this excellent report which is full of practical and well founded recommendations. Since publication of the report, we have seen in their manifesto the Government’s proposals to appoint a Joint Select Committee. I shall quote from that as it will help the House as it relates to the work of the committee:"““Following a review conducted by a committee of both Houses, we will seek agreement on codifying the key conventions of the Lords, and developing alternative forms of scrutiny that complement rather than replicate those of the Commons; the review should also explore how the upper chamber might offer a better route for public engagement in scrutiny and policy-making. We will legislate to place reasonable limits on the time Bills spend in the second chamber—no longer than 60 sitting days for most Bills””." There was also the report of the Labour Peers’ group so ably chaired by my noble friend Lord Hunt of Kings Heath on the reform of the powers, procedures and conventions of the House of Lords. The House held a full debate on that report last Session. If we take all that together, there is clearly much to take into account when considering Parliament and the legislative process. The report is based on the three areas of parliamentary process—pre-legislative scrutiny, the passage of legislation and post-legislative scrutiny. There is much to be said for the proposal in the report that the great majority of Bills should be published in draft. How best to examine draft Bills and to make proposals for their improvement should be carefully considered. There will be a real time and resource problem if every draft Bill is to be subjected to formal consideration, with evidence taken and so on through either a departmental Select Committee in the Commons or a Joint Select Committee of both Houses. The resource problem is not just one of staffing, there is also the problem of finding the number of MPs and Peers to provide the membership of the parliamentary committees which would be set up to take evidence and report. I am sure that the Government approach of dealing with the matter on a case by case basis is the right one. Having chaired two Joint Select Committees on the draft Mental Capacity Bill and the draft Disability Discrimination Bill and sat on a third, the draft Mental Health Bill, I am a great believer in the formal process of pre-legislative scrutiny. That can be provided only for a limited number of Bills. In my view the right approach would be to publish as many Bills as possible in draft. A number of those would be considered by departmental committees in the Commons and a smaller number by Joint Select Committees of both Houses. The remainder should be subject to wide consultation to be based on written submissions, with the Government’s response published with their proposals for amending the draft Bills as a result of the consultation. Getting the maximum number of Bills published in draft in the first place is the main hurdle. Appropriate scrutiny can then be decided, as I have said, on a case by case basis. A general point regarding timing should be borne in mind when considering both pre-legislative scrutiny and the passage of Bills, which is generally overlooked. Now that four-year Parliaments and spring elections seem to be becoming the norm, the life of each Parliament is now divided into one long 18-month Session, two normal Sessions of 12 months and a short pre-election Session where electoral considerations rather overtake the considerations of the smooth passage of business. I am putting that as politely as I can. If we turn to the actual passage of legislation, I would propose one major change; namely, that the carry over of Bills should become more or less automatic. I can see nodding from the other side of the House from a former leader of the Commons, the noble Lord, Lord Norton of Louth. There is mention in the report of a rolling programme of legislation and there have been proposals to abandon Sessions altogether and to have each Parliament as one long Session. In my view the existing Session structure should remain, with the majority of Bills still being announced at the beginning of each Session. But, as Bills become ready for introduction as the Session progresses they should be introduced and then carried over to the next Session. A further refinement would be to give each Bill its own life of either the 14 months which is mentioned in the report or the 12 months suggested by the Hunt committee. However, I believe that that would require amendments to the Parliament Act. Such a process would automatically smooth the progress of legislation and reduce but not completely avoid the present log-jam at the end of each Session. I should point out that the Opposition would not lose its power to press for changes as each Bill reaches the appointed time for completion, either the 14 or 12   months. In fact, the Opposition will be able to negotiate from a position of strength on every Bill and not just those which are piled up at the end of the Session. There is the further advantage of giving the Commons something to do in their fallow period between, say, the end of June and the end of the Session. Bills could be introduced in the Commons in the summer. They could be carried over and would then come to the Lords in the next Session. It would be relevant at this point to say something about the Government’s proposal of a limit on each Bill of 60 sitting days in the Lords. That is of course not a new proposal. The 1968 White Paper on Lords reform in paragraph 53 stated:"““The House of Lords would have a period of 60 parliamentary days in which to consider a Bill””." That White Paper was approved in this House on a vote. There has been some misunderstanding about the actual effect of a 60-day limit. A big Bill that requires eight days in committee would require a total of 14 sitting days—one for Second Reading, eight for Committee, four for Report and one for Third Reading. The great   majority of Bills would require less time. Of course a 60-day limit would prevent the Government exercising undue delay in taking the stages of a Bill—the Hunting Bill springs to mind. There is, however, the problem of defining a sitting day. The number of days for legislation in the Lords is constrained by having the weekly debate day, which is now on a Thursday. Only three days per week are available to the Government for legislation in the Chamber between State Opening and the end of June. Also the sitting days in the Chamber are of about six   and a half to seven hours duration, less if there is a Statement. In Grand Committee the sitting day is only four hours, from 3.30 pm to 7.30 pm. In a normal Session of 140 to 150 sitting days, the number of days actually available for legislation in the Lords is fewer than the total number of days. I cannot help feeling that rather than trying to set a limit by legislation, it would be better to establish a limit by agreement as a convention of the House, in rather the same way as the intervals between the stages of a Bill are now a convention; they are generally observed but they can be changed by agreement. The Companion might say that,"““normally Bills should not exceed 60 sitting days whilst in the Lords””." I hate to be critical, but the wording in the manifesto states:"““We will legislate to place reasonable limits on the time Bills spend in the second chamber—no longer than 60 sitting days for most Bills””." Quite how you define ““most”” legislation, I am not sure. I suggest one other change to our procedures in considering legislation. I made this suggestion in my evidence to the constitution committee. In my view, for virtually all Bills the Committee stage, whether on the Floor of the House or in Grand Committee off the Floor, should be conducted by Grand Committee rules, that is, without votes. In my experience, it is much easier to secure changes by the Government to a Bill if the Committee stage is a genuine process of scrutiny and discussion of possible changes, rather than an artificial battle between a Minister whose brief says ““resist”” to every amendment and an Opposition who have to pretend that they might vote on everything. The House works much better in Committee in collegial rather than in adversarial mode. The battles of principle—and there will be some of course—should be decided by votes on Report. I referred at the beginning of my speech to the Government’s proposal for a Joint Committee of both Houses to examine the powers and conventions of the House. Such a committee would no doubt wish to examine the operation of the Parliament Act. The Act certainly needs some technical changes to improve its clarity. Two Bills were nearly lost inadvertently through different interpretations of the Parliament Act. The Planning Bill was accidentally killed in the Commons and had to be revived through the good offices of the Opposition by a special, and probably unique, Motion in the Lords—illustrating, incidentally, the flexibility of our procedures compared with those in the Commons. Also the authorities in the two Houses took differing views during the final stages of the Hunting Bill about the precise effect of the Parliament Act. There really is a need for clarity in the interpretation of the Act. Mention of the Parliament Act brings me to what might be called the new McNally doctrine regarding the Salisbury/Addison convention, on which it appears that the noble Lord, Lord McNally, seems to have declared UDI. The noble Lord, Lord McNally, and I both contributed chapters to a recent publication, Parliament in the 21st Century. The noble Lord, Lord McNally, in his chapter said:"““I do not want to see a Second Chamber which would challenge the pre-eminence of the Commons””." Perhaps when the noble Lord, Lord McNally, winds up he will be good enough to reconcile that statement with his newly declared position on the Salisbury/Addison convention. The noble Lord, Lord Strathclyde, is winding up for the Opposition. That would be a very good opportunity for him to state the Official Conservative Opposition view of the Salisbury/Addison convention. The noble Lord may remember that he wrote to me before the 1997 election confirming that if Labour were to form the Government the Conservative Opposition would observe the Salisbury convention. Has that position changed? There is, of course, a fundamental difference between the Conservatives and the Liberal Democrats so far as concerns the Salisbury convention. I believe that the Conservatives have it firmly in mind to form a government as soon as the opportunity arises and would be powerfully aware of the dangers of creating a precedent that would affect them when in government. This is not a possibility that unduly troubles the Liberal Democrats. To conclude, I quoted at the beginning of my speech from the Government’s manifesto commitment to set up a Joint Committee of both Houses to consider the relationship between the two Houses and related matters. I cannot do better than to conclude by quoting from my own chapter in Parliament in the 21st   Century. I should point out that my chapter was drafted 18 months ago, long before the Labour Party manifesto was being considered. I said:"““Whatever the eventual reformed composition of the Lords, whether appointed, elected, or a mixture of the two, the powers,   procedures and conventions of the Lords will have to be re-examined  . . . There has to be a balance between the right of the Lords to revise and scrutinise legislation and, indeed, delay it, and the right of the elected Government to obtain its programme of legislation.""A settlement between the political parties in the two chambers in setting out the agreed modalities of the legislative process will have to be reached. To codify such a settlement completely in legislation is possible but this would be an inflexible solution, although some revision of the Parliament Act may be necessary. It would be better to reach agreement on a concordat setting out the relative powers of the two chambers of Parliament and the   conventions which should govern the proper conduct of the Lords. Without such an agreement and understanding the House of Lords will have the considerable power of a House where the government of the day is always in the minority without the   responsibility or accountability of an elected House where the majority party forms the Government. It should not be beyond the power of responsible parliamentarians to find a solution which firmly establishes the scrutinising, revising and eventual delaying powers of the Lords while allowing the elected government to obtain its programme of legislation””."