That the Report from the Select Committee Further temporary suspension of the Standing Orders relating to hereditary peers’ by-elections, Terms of reference of the Secondary Legislation Scrutiny Committee, House procedures and Court Injunctions, Cessation of Membership and Revision of Standing Orders Relating to Public Business (6th Report, HL Paper 223) be agreed to.
My Lords, there are three Motions in my name on the Order Paper today. Should the House agree to the first Motion, which is to agree the recommendations of the Procedure and Privileges Committee’s sixth report, the further two Motions are resolutions which give effect to the report’s recommendations.
Before we get any further, I express my gratitude to the Government Chief Whip for providing this time promptly after the committee produced its report on 8 February. Such reports are usually presented to the House as brief business after Questions in hybrid proceedings, but given the interest that the issue of hereditary Peers’ by-elections has generated on previous occasions, and representations from a number of noble Lords who have indicated that they might wish to take part in a debate remotely and who would not currently be able to do so, I was keen to find a slot which would facilitate contributions as inclusively as possible.
I now turn to the committee’s report. The first issue it considers is that of hereditary Peers’ by-elections. Standing Order 10(6) states that by-elections must take place within three months of the vacancy occurring. On three occasions last year, the House agreed to suspend these provisions for short periods, most recently on 14 December 2020. During the short debate on 14 December, I undertook to return to the House early in the new year once the committee had had the opportunity for a further discussion and to produce a further report.
As the report before the House makes clear, there is a range of views within the committee about the appropriate point to resume by-elections, given the continuing and unpredictable impact of the Covid-19 pandemic. However, on balance, and in line with the previous recommendations the committee has made, we agreed to ask the House to agree further to suspend Standing Order 10(6).
In making this recommendation, the committee is aware that it is technically possible for us to hold by-elections if we used electronic means to do so. But, overall, the sense of the committee is that it would be difficult for by-elections carried out in this way to be satisfactory. In particular, we felt it was undesirable to restrict hustings to a virtual form when those candidates who are largely unknown to the electorate might be at a significant disadvantage if they are restricted to interacting virtually only.
In making this recommendation, which would be implemented if the House agreed to the second Motion on the Order Paper, the committee was very mindful of the legal position. This question attracted attention from a number of noble Lords on 14 December and I will take this opportunity to set out the position in a bit more detail.
We are clear that the House of Lords Act 1999 requires by-elections as a matter of law. Any suspension can therefore be only temporary, and at this time it is a response to the ongoing national pandemic. In discussion, we agreed that to reflect this position it was important that the suspension must continue to be subject to regular review and decision by the committee and the House, to ensure that the suspension remains proportionate and necessary in the situation to reflect the circumstances presented by the ongoing pandemic. With that level of caution, we have recommended only a short further suspension until after Easter 2021, at which point the position will need to be reviewed again.
At end insert “but that this House regrets the further suspension of hereditary peers’ by-elections, and calls for such by-elections to resume forthwith.”
My Lords, I think I owe your Lordships an apology, as I have caused some confusion by my decision not to move the amendment standing in my name on the Order Paper. I listened carefully to the noble Lord, Lord McFall—the Senior Deputy Speaker—and have had discussions with the Chief Whip, and I think it would be wrong to impose a tense debate on your Lordships this evening. For that reason, I have decided not to move the amendment I tabled. Of course I remain of the view that the by-elections are important and hope they will be resumed very soon. I hope that the noble Lord, Lord McFall, will take the matter back to the Procedure Committee immediately after Easter and that the by-elections will resume immediately thereafter.
No apology needed, Lord Trefgarne. We have had a number of scratches so, to give everyone an opportunity to be ready, I will name the speakers who have scratched: the noble Lords, Lord Strathclyde and Lord Hunt of Kings Heath, the noble Earl, Lord Shrewsbury, the noble Lords, Lord Cormack and Lord Snape, and the noble Baronesses, Lady Fox of Buckley, Lady Altmann and Lady Hoey. I call the next speaker, the noble Lord, Lord Faulkner of Worcester.
My Lords, I congratulate the Senior Deputy Speaker on the way in which he introduced the sixth report from the Procedure and Privileges Committee. Although I am listed as a member of the committee, I shall not attend my first meeting of it until next Tuesday, 2 March, so I can claim no part in the authorship of this report—although I am 100% supportive of the proposals in it.
I will concentrate on just two subjects. First, the debate is an opportunity to congratulate all our brilliant staff on the extraordinarily successful way in which they have steered us through the implementation of all the new rules relating to the management of the hybrid House. Like most noble Lords, I cannot wait for us to return to normal times, but everyone concerned with getting us to where we are now deserves our heartfelt thanks for being able to help us keep the show on the road.
Recognition of what the House has achieved came this morning, rather unexpectedly, in a whole-page article in the Guardian entitled “Peer pressure: Lords embrace lockdown technology and set the pace for virtual reform”. I know we should not regard the other place as our rival, but the paper’s political correspondent offered the view that, compared with the Commons,
“it is the Lords—with an average age of 70—that has seemingly embraced the modern era more thoroughly”.
Paraphrasing the Senior Deputy Speaker, the article says
“the chamber has a commitment to inclusive participation, and the option to speak remotely assists this”.
That is a commitment he repeated in his opening speech this evening.
This brings me to my second point: how we handle consideration of Commons amendments—ping-pong. The guidance note from the Procedure Committee says:
My Lords, it is a pleasure to follow the noble Lord, Lord Faulkner of Worcester, and I certainly associate myself with his comments on the ability we have now of being a virtual House. I appreciate being able to take part virtually, and the staff certainly need congratulating on getting us to understand the technology and enabling it.
I want to speak on a narrow point this evening. This Motion talks about the revision of Standing Orders, and I want to ask about Standing Order 1(2). This defines who may sit in the Chamber, besides Peers, when Her Majesty addresses the House. They include diplomats and, as the Standing Order says at the moment, “Peeresses”. I suggest that this has escaped revision and has not kept pace with all the modern equality legislation that it should have, because “Peeresses” are defined as a woman who is the wife of a Peer. By definition, it excludes men who are husbands of Peers. It excludes men who are in marriages with a same-sex partner—although, interestingly, it possibly does not exclude the wife of a female Peer should they be in a same-sex marriage.
At the very least, this Standing Order needs to be urgently amended to be inclusive and reflect current equality legislation that should govern your Lordships’ House as well as the rest of the country. Maybe we will still have a lot of distancing when Her Majesty addresses the House for the next Session, but maybe we will have reverted to normal. I hope that, whichever way it is, this Standing Order can be amended so that our House will reflect the sort of equality we have come to expect the rest of society to follow.
We have had one further scratch, from the noble Lord, Lord Mancroft, so after the noble Lord, Lord Foulkes of Cumnock, we will hear from the noble Lord, Lord Northbrook.
My Lords, I am really grateful to my noble friend Lord McFall, the Senior Deputy Speaker, for arranging this debate today in a manner in which we can all participate—virtually, if we wish. I do hope that, given the announcement in the other place today, it will not be long before we are all able to come into the House and participate properly. I look forward to that opportunity. I must say I find it very strange today that speakers are dropping out; we have just had another. They seem to be falling out quicker than the English cricket team; it is really quite astonishing.
I greatly welcome this report, particularly in relation to the by-elections, and I hope it will be approved. Notwithstanding the article in the Guardian today that my noble friend Lord Faulkner referred to, I am afraid that the House of Lords has not had a good press recently. The explosion in the number of Members—which results from the Prime Minister being eager to use, or maybe abuse, his patronage—when the Lords had agreed, as Members will recall, to cut our numbers, has given our critics plenty of ammunition to start with. When our new Members include one rejected by the Appointments Commission, the son of a KGB agent and nearly all the renegades who backed the Tory Vote Leave campaign, and our numbers increase again to over 800, there are very few arguments with which we can mount a defence at the moment.
We in the Labour Party plead not guilty on this issue of numbers, in that we have been able to stick to the formula agreed to cut our numbers. Our new appointments number fewer than half the sad deaths and retirements among Labour Peers over the last couple of years, and our appointments are all new working Peers. These are anachronisms, but the greatest anachronism of all is the system of by-elections for hereditary Peers. It is bad enough that the hereditaries have a substantial place in the second Chamber, but the fact that they are the only group—now all men—able to automatically renew their membership through this discredited and farcical procedure rubs salt into an already open wound.
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I am of course aware that the noble Lord, Lord Trefgarne, has tabled an amendment which calls for by-elections to be resumed forthwith. I will not pre-empt the noble Lord, who will be asked to move his amendment when I conclude, but I hope that in setting out the position in some detail I have at least explained why the suggestion from the committee is as it is.
The report makes recommendations in four further separate areas. The first of these is to adjust the terms of reference of the Secondary Legislation Scrutiny Committee to allow it to fulfil the same important role in “sifting” any proposed negative statutory instruments laid under the European Union (Future Relationship) Act 2020. It has performed the same role with equivalent instruments under the European Union (Withdrawal) Act 2018. This is, I hope, an uncontroversial suggestion, and raising it gives me the opportunity to put on record my thanks to the noble Lord, Lord Hodgson of Astley Abbotts, and his colleagues on the committee for the outstanding work they continue to do for the House at a time when the parliamentary scrutiny of statutory instruments continues to be of critical importance.
The report also recommends a change to the Companion reminding all noble Lords of their responsibilities in exercising their rights under parliamentary privilege, in particular that in exercising our undoubted right to free speech we have due regard to the relationship between Parliament and the courts. This change recognises that, although the Companion gives clear guidance on the application of the sub judice resolution, it has not done the same for Members proposing to raise issues subject to court orders and injunctions. We hope that increased clarity will be helpful to noble Lords.
The report also invites the House to address an issue which could potentially cause confusion arising out of the House of Lords Reform Act 2014 and the cessation of membership of this House. Noble Lords will be aware that the Act provides that a Member who does not attend the House during a session of six months or longer ceases to be a Member at the beginning of the next Session. This provision does not apply to noble Lords who were suspended or disqualified from sitting or voting for the whole of the Session in question or to noble Lords on leave of absence for the whole or part of that Session. The Act defines a Member of the House as a person entitled to receive writs of summons to attend. This therefore includes new Members, and the committee was concerned that any new Members who receive their writs towards the end of the Session and are not introduced by the end of the Session could be caught by the provision inadvertently and would cease to be Members of the House. This issue was not raised during the passage of the Act in either House.
However, Section 2(3)(b) of the Act states that the non-attendance provision does not apply to a Member if the House resolves that it should not
“by reason of special circumstances.”
We believe that the situation of new Members who have not, for any reason, been introduced, falls within the “special circumstances” envisaged by the Act. The third Motion in my name would allow the House to clarify that provision and avoid an unintended consequence.
Lastly, the report asks the House to agree to an updated edition of our Standing Orders, reflecting changes agreed since the last edition was published nearly five years ago, as well as some stylistic changes.
I look forward to contributions in the short debate ahead and I beg to move.
“When the hybrid House considers Commons Amendments and there are no counter propositions to the Minister’s motion or to the Commons message, the only speakers will be the mover of the original Lords amendment, or another sponsor of that amendment with the mover’s agreement, followed by frontbenchers and a Crossbencher nominated by the Convenor. They can participate physically or remotely … When there are counter propositions to the Minister’s motion or to the Commons message, in addition to the members above, the movers of counter propositions may participate either physically or remotely. Any other member may participate physically, subject to usual seating arrangements and the capacity of the Chamber.”
It is therefore not possible for Members who have not signed the amendment, but wish to speak remotely, to do so.
I believe that this guidance should now be reviewed for three reasons. First, it conflicts with the House’s advice to Members to work from home. Secondly, it contradicts the statement made every day from the Woolsack by the Lord Speaker or one of his deputies:
“Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally.”
Thirdly, the rule can give rise to the highly undesirable situation where Members are denied the opportunity to participate in a debate on a Commons amendment which has not been discussed in your Lordships’ House previously. I cite the proceedings on the Fisheries Act 2020 last year as evidence of that. The Bill started in your Lordships’ House on 29 January 2020. It received our normal thorough scrutiny, with four days in Committee in March and two on Report in June. At some point, the Government decided that they wished to add a permissive extent clause—a PEC—which would give them the power to overrule the wishes of the democratically elected Governments of the Channel Islands on fisheries matters if they wished to. This was hugely controversial and caused great concern in Jersey and Guernsey. There is no need to go into the detail of that today as the arguments were extensively aired in our ping-pong debate on 12 November.
The crucial point as far as our procedures are concerned is that any Member who had not signed the amendment tabled by the noble Lord, Lord Beith, or who was not physically present in the Chamber, was not able to take part. This was even though there had been no reference to the new clause on the PEC tabled by the Government throughout any Lords stage on the Bill and indeed, during the Commons consideration at Second Reading and in Committee.
It is particularly regrettable that a Member who was most upset at being prevented from taking part—she was following medical advice and isolating at home—was my noble friend Lady Pitkeathley, the only Guernsey-born Member of your Lordships’ House. She was able to send me her views and I included them in a speech I made in the debate. It would have been much better had the House been able to hear from my noble friend herself. That is why this one aspect of the hybrid procedure really needs to change.
The House is in urgent need of reform and we could and should start with ending this farce, as my noble friend Lord Grocott, who will be speaking later in the debate, regularly and rightly urges us to do. Meanwhile, we can at the very least postpone any more by-elections while we are suffering this awful pandemic, which I hope will allow us time to consider ending them permanently.
Finally, I raise another issue while we are on the report from the Procedure and Privileges Committee. My good friend, the noble Baroness, Lady Miller, has just referred to the Queen’s Speech, and I ask whether the Senior Deputy Speaker will take this opportunity to inform the House as to whether the committee is now considering the arrangements for the end of the current Session and the start of the new one, including the Queen’s Speech, and what arrangements there might be, given the current circumstances? It is a very important issue; I would expect the Procedure and Privileges Committee to be considering it, and I hope that the Senior Deputy Speaker will confirm that and will be able to tell the House tonight what the current situation is.
Meanwhile, I say once again that I welcome this report, I hope it will be approved and I am most grateful —I have never said this before—to the noble Lord, Lord Trefgarne, for agreeing not to move his amendment.