Oral evidence: Strathclyde Review, HC 752Tuesday 19 January 2016

Oral evidence, 19 January 2016.

Witness

Lord Strathclyde gave evidence.

Chair

May I welcome our second witness this morning, and could you please identify yourself for the record?

Lord Strathclyde

Good morning. I am Lord Strathclyde, and I conducted the review on secondary legislation that you are discussing today,

Chair

Did you, in fact, do it on your own?

Lord Strathclyde

It was a committee of one, which made organising the diary extremely straightforward. But I was supported by three eminent people with practically unrivalled parliamentary experience. Would you like me to name them?

Chair

Yes, please.

Lord Strathclyde

A former clerk in the House of Commons, whose name has suddenly gone out of my mind.

Chair

Jacqy Sharpe.

Lord Strathclyde

Jacqy Sharpe, who was excellent, Michael Pownall, who is a former Clerk of the Parliaments, and Sir Stephen Laws, who is the former First Parliamentary Counsel. So between them, my experts were House of Commons, House of Lords and chief legislator, drafting and writing legislation. I hasten to add that it was my report, it was not their report, and I do not suppose that they all agreed with every bit of it. What they did was to provide background as to how these things would work in practice. I think one of the reasons why your previous witness said it was a useful report was because it explained very clearly how secondary legislation passes both the House of Commons and the House of Lords, and what its primary purpose is.

Mrs Cheryl Gillan

Lord Strathclyde, what is your precise interpretation of the conventions that regulate the House of Lords’ ability to reject statutory instruments?

Lord Strathclyde

Between 1968 and 2000 I think it was very clear that the House of Lords did not reject secondary legislation, and they created in the House of Lords a system of what became known as a “regret motion”, sort of “not in my name”. Although the secondary legislation would still go through, the order would still go through, the House of Lords would have made a very clear statement that they disapproved or disagreed with it. In 2000, with the new House, which we were told was stronger, by defeating a particular order to do with the London mayoral elections we re-established that convention, and that position continued until Jack Cunningham’s report on conventions. In a way, by laying it out in the way that he did, he brought in this phrase about “exceptional circumstances”, and we never entirely described what those would mean. That did introduce an uncertainty going from “the House of Lords should never do this” into something else, and then that is what happened. Then there were some pretty minor defeats, one on the super-casinos in 2007 and then the one in the coalition Parliament on legal aid, which again I think was a coalition issue. Until October 2015 that was it. My view of why the Government wanted me to review it is because they felt, as I felt, that something different happened on tax credits that had not happened before. This was not a pure rejection. The motion that was passed in the House of Lords was a delay motion, but by taking it hostage for three years it was in practice and in effect a reject motion. That was when there was a disagreement between those who believed it had not broken the convention and those who believed that it had, and trying to sort out that complexity was what I was trying to do.

Mrs Cheryl Gillan

In the Lords Companion it affirms—and I think I am quoting directly from it—the House’s “unfettered freedom to vote on any subordinate legislation submitted for its consideration”. Would you say that that is really the situation in the House of Lords and how it should be? Is that able to coexist alongside the “conventions”?

Lord Strathclyde

There is no doubt in my mind that under the law the House of Lords has an unfettered right to vote on, debate, discuss and vote down secondary legislation. But since 1968 when the House of Lords unwisely rejected Harold Wilson’s Rhodesia sanctions order, the convention was created not to do this ever again. The conventions are voluntary agreements. They should be binding on those who come to agreement and their successors. In fact, it is remarkable that here we are, nearly 50 years after 1968 and still debating this convention. But as I said in my report, for some years it had been fraying at the edges; people were beginning to try to find what the boundaries were, disagreeing on their impact and so on. In October last year that fraying stretched the convention to breaking point.

Mr David Jones

Lord Strathclyde, we have heard from Professor Russell, who has said that the convention in fact was not routinely to reject a statutory instrument that comes from the Commons. Is it not possibly the case, so far as the tax credit SI was concerned, that what has prompted your appointment is a fit of pique by the Government, whose predecessors had previous experience of the Lords rejecting statutory instruments?

Lord Strathclyde

What the Straw Committee also said was that the parties of Opposition should not use their political numbers to vote down a Government order simply because they could. When you looked at the political breakdown of the votes, it was all Labour and Liberals on one side and Conservatives on the other. This was clearly a political expression of the House of Lords. The House of Commons had voted on these matters two or three times. There had been no members of the Government in the Opposition lobby. In fact, what was unusual in the House of Lords is that there were some very senior Labour peers who voted with the Government, not because they had any affection for what the Government was doing on tax credits but because they understood the constitutional position and the possible implications of the House of Lords voting down something that was clearly financial in scope, went to the heart of the Government’s financial strategy, and was from a Government that had only been elected for six months. This was high-risk stuff, and it was doing something that we had not done in that way before. That is why it created the response from the Government that it did.

Mr David Jones

You said that the convention had been stretched to breaking point, but isn’t it the fact that there had been, as you have just outlined, previous cases where that had happened?

Lord Strathclyde

Yes, there had. But on every other occasion it had been a straight rejection, and this was not a rejection. It might be quite useful just to go back to the quote that Professor Russell gave, when I absolved the two noble baronesses of deliberately trying to undermine the convention—I don’t think that is what they were trying to do; I think they were trying to do something that was within the rules. What I went on to say was, “My view is that, in practice, whatever the technicalities, they, the motions, proved fatal because they took the orders hostage and would not pass it unless certain conditions were met”. That is the thing that changed in October. Suddenly we have discovered a new procedure that on one side people said, “This is entirely in accordance with the convention” and others said, “No, it isn’t”. Once you have a convention of people who disagree on what it means, you have to then have a debate, which is what we have had, about what to do next.

Mr David Jones

You mentioned the previous practice of passing regret motions, and in fact I think it was the Bishop of Portsmouth who put down something that looked a bit like a regret motion on this occasion. Would you think that there is any merit in considering the reintroduction of regret motions as a process of salving the conscience of the Lords in such cases?

Lord Strathclyde

The House of Lords already has that power and has done it very regularly, and in fact there is no reason why they shouldn’t keep doing regret motions. I think regret motions are a very good way of the House of Lords expressing its view. Sometimes in opposition it is hard to get your party to come and support it, because they think it doesn’t matter and it has no bearing on the Government, which is half true. But on the other hand, in terms of publicity and exposing what the Government is trying to do and demonstrating that the House of Lords is against it, I think it is quite a good form of motion to use.

Chair

You explained that something different happened and, as we heard from Professor Russell, the rather lame argument was presented that what was different was that this was not a straight rejection, it was less than a rejection. How is this something different, and therefore more significant, from any other previous occasion and a breach of the convention?

Lord Strathclyde

The clever wording of the motion was not to simply reject it. There was a reject motion on the order paper from a Liberal Democrat, which was voted on and overwhelmingly rejected by the House of Lords, which then assumed that it was okay to vote for the motions of Lady Hollis and Lady Meacher. I can see exactly how they got into that, but the effects of those motions were pretty much exactly the same as a full rejection. What the Government did was to wake up to the idea that there was this procedural innovation in the House of Lords on these motions, and they wanted to find out whether or not this was going to become more permanent practice.

Chair

You remark about the words “exceptional circumstances”, and of course the definition of exceptional circumstances, or the use of those words, is deliberately ill defined, is it not? It is real Sir Humphrey-speak, is it not?

Lord Strathclyde

Yes.

Chair

I am just looking at my thesaurus—“extraordinary, phenomenal, special, unique, notable, rare, strange, unprecedented”, but that does not provide any useful definition of what “exceptional” is. Doesn’t all this add up to the fact that there isn’t really a convention? There is the law and there is a convention that is proved only by the breaking of it.

Lord Strathclyde

Yes. There is the law, there is no disagreement about what the law says. I think that the convention from 1968 was that the House of Lords simply did not do this sort of thing.

Chair

But you led the rebellion on the casinos yourself.

Lord Strathclyde

No, not on casinos. It was on the London mayoral audits, and I did so quite deliberately, first of all, warning the Government that this is—

Chair

I accept that correction, which usefully makes the same point I was making.

Lord Strathclyde

Yes, but it was a different issue, for reasons that I will come to. I laid out in a speech, after the removal of hereditary peers, that now these conventions presumably were no longer necessary and we would find an opportunity to reject a statutory instrument, which is what we did.

Chair

So the convention doesn’t exist, as Lord Norton points out.

Lord Strathclyde

There are constitutional conventions, which are rare, and then there are conventions of the House that, after all, Jack Cunningham and his Committee examined and made various proposals for. I humbly and respectfully disagree with Professor Lord Norton. I think that there are conventions of the House that are useful in parliamentary process.

Oliver Dowden

We have covered a number of these points already, so forgive me if we are going over old ground. Could you clarify how constitutionally significant, if at all, you think the Lords’ behaviour was in relation to tax credits?

Lord Strathclyde

I don’t think it was a constitutional crisis. It could have become a constitutional crisis; these things could do if they continued, but I don’t think it was at the time. Everyone behaved within the law. The House of Lords was entitled to vote in the way that they did, even though it was a bit of an innovation to do so in the way that they did. Equally, the Government were entitled to believe that the conventions would stick. Also, to those who criticised the Government for not having brought it under primary legislation, that option was open to the Government, but on the other hand Parliament had already agreed under the Tax Credits Act 2002 that powers should be given to Ministers to make these changes under secondary legislation. Everybody behaved with constitutional propriety but then created a muddle on which I like to think I have tried to provide a little bit of clarity in my report.

Chair

Sorry, I will just make the point that Parliament also agreed that those delegated powers should exist in that legislation against the background that the House of Lords might use its powers to reject the regulations. I don’t see how—

Lord Strathclyde

In theory, Mr Chairman, yes. In practice, I don’t think any of these powers have ever been passed by the House of Commons, I venture to suggest, with the idea that the House of Lords is going to use a veto power that it has only used five times since the Second World War.

Oliver Dowden

What about the previous witness’s point that this delegated legislation was intended to vary the rate rather than to abolish the benefit altogether, and that is what amounted to exceeding the powers intended by the primary legislation?

Lord Strathclyde

I am sure that was the original intention of Ministers who brought it forward, but the drafting of the founding Act was such that what the Government proposed in the tax credits regulations was entirely intra vires with the founding Act and there was no problem with that issue. Whether they were politically wise to do so, in retrospect, is another question, but under law they were totally within their correct powers.

Oliver Dowden

Do you believe that this amounted to a breach of a constitutional convention, and if so which constitutional convention—one in relation to statutory instruments or one in relation to financial privilege of the Lords?

Lord Strathclyde

For “constitutional convention”, can I say a convention of the House of Lords on statutory instruments? Yes, I think it did ultimately break that in practice because of what it did, even though some people said that the motions were neither fatal nor non-fatal, but in practice I think they were fatal. It was that disagreement that created the problem. Your second point was—

Oliver Dowden

It sounds like you are saying it was in relation to the convention in relation to statutory instruments rather than a convention in relation to financial privilege.

Lord Strathclyde

Yes, I think it was more about the House of Lords using its veto to block the statutory instrument in practice rather than it simply being about finance. But the whole financial question became more pertinent, and in my review I suggested some ways that the Government, in drafting legislation—in consultation with the House of Commons, the Procedure Committee and perhaps the Joint Committee on Statutory Instruments—should look again at what should be Commons-only powers in respect of financial matters.

Oliver Dowden

Do you think a Lords convention exists in relation to financial privilege vis-à-vis statutory instruments?

Lord Strathclyde

It is a very difficult question, because there is generally an understanding that goes back many years—depending on who you ask, the 17th century, the 15th century or the 14th century—about the House of Commons’ monopoly on powers over supply, which essentially means that the House of Lords should not have any say in these matters. Post-1911, when the practice continued and has become what we see today in terms of financial privilege on money Bills, that works and is understood, and financial privilege is prayed in aid on amendments made by the House of Lords. But there is no equivalent process for secondary legislation—for statutory instruments. I don’t think you want to create a new bureaucracy that then looks at each statutory instrument, whether or not it affects financial privilege. Far better in the original language for the Government to state, “We think this should be Commons-only, because it deals with vast amounts of money” and for the House of Commons to agree to that or to disagree with it.

Oliver Dowden

This should be applied prospectively; you would not seek to apply it to legislation in the past.

Lord Strathclyde

On new Bills being drafted from now on.

Chair

Lord Lisvane said that this constitutional crisis was “entirely hyperbolic”. In view of the fact that we cannot even agree on what the crisis was about—at least there is a lot of argument about it—how much would you agree with him?

Lord Strathclyde

As I said a few minutes ago, I don’t think it was a constitutional crisis, but it could have become a constitutional crisis. One way to stop it would have been the Labour Party and the House of Lords saying, “We did this, but we won’t do it again”. That would have fitted in with a defeat being once every Parliament. But they have studiously not said that, and they have waited for the results of my review. Remember, there is one thing that we should all bear in mind. The very next day after the motion on tax credits, there was another one to do with elections and the electoral register, which also had fatal motions done on it. On that occasion the Government won, but the Opposition parties were still trying very hard to defeat it. If that had been defeated then you would have seen the start of a far greater constitutional crisis than in fact was the case.

Gerald Jones

Lord Strathclyde, why do you think it was a proportionate step for the Government to task you with a review of secondary legislation in the Lords after the tax credit vote?

Lord Strathclyde

Immediately after the tax credits there was a muddle, and the muddle was: what is this convention? What are the rules that the House of Lords is going to apply to these statutory instruments? There may have been different ways of doing it, but the Government asking me to investigate it and to tell them what I thought was not a bad thing to do. Between 1994 and 2013 I was either Government Chief Whip or Leader of the House of Lords in government and in opposition, so I lived and breathed and slept these conventions over a very long period of time, and I do understand how they work. I am not entirely surprised that the Government came and asked me to do that. My report is, I hope, relatively short, fairly straightforward and very clear. I think it is that clarity about how statutory instruments work in Parliament that is important, and my solutions are pretty clear as well.

Chair

We were not surprised either.

Paul Flynn

What originally qualifies you to sit in the Lords?

Lord Strathclyde

Originally, I inherited a seat from my grandfather.

Paul Flynn

Okay, and what did your ancestors do to give them the right to have a seat in the Lords in perpetuity?

Lord Strathclyde

They were like you, they were Members of Parliament. In 1999, of course, I was then elected to sit in the House of Lords under the legislation, which you—

Paul Flynn

I am aware of this. You were elected by the unelected, though.

Lord Strathclyde

I am unelected, yes.

Paul Flynn

Yes, but you were elected by the unelected.

Lord Strathclyde

Yes, I am elected by them, but that is true of everybody in the House of Lords.

Paul Flynn

But the rights for you and your successors to sit in perpetuity is because of what? Was it royal patronage or prime ministerial patronage?

Lord Strathclyde

It was prime ministerial patronage, yes.

Paul Flynn

When was that? It was—

Lord Strathclyde

It was very firmly 20th century, in the early 1950s.

Paul Flynn

Okay. Are you proud of the fact that you have been asked to do a job to make sure that the Government can continue to pass a law that deprived 3 million poorly paid people of a part of their income, and to ensure that they could do that again?

Lord Strathclyde

I took great care not to involve myself too much in the background of the tax credits legislation, because that was an argument that was already being had within Parliament. What I was interested in was the process by which statutory instruments should be passed between the two Houses to bring greater clarity to what has become a muddle. I thought that would provide a service to both the House of Commons and the House of Lords and, therefore, to the people of this country.

Paul Flynn

We have a grossly unequal society, and it is getting worse by the year with the distribution of wealth in the country. Do you think the fact that you, with an inherited place in the Lords—you have not been elected by a popular vote—will bring the process of the Lords into disrepute, and it will eventually collapse of its own absurdity?

Lord Strathclyde

I, for one, have for many years been in favour of an elected House on the basis that political power in the 21st century should be carried by people who are directly elected by those who are governed, by the people.

Paul Flynn

Why do you continue to sit—you don’t believe in leading by example, just by exhortation?

Lord Strathclyde

What I believe is that the Clegg Act in 2012 was a way forward, but the House of Commons, having voted in overwhelming numbers to pass that at Second Reading, then could not agree between Government and Opposition on the process of going forward. All the political parties are in favour of an elected House, apart from the Scottish Nationalist Party who want to abolish it entirely. I am hopeful of it at some stage—and one of the reasons why I am in the House of Lords is to try to bring that end about.

Paul Flynn

The effect of your work has been to allow the Government to further impoverish the already poor. Is this your proudest moment?

Lord Strathclyde

I disagree with that. I think this Government is bringing greater wealth and greater prosperity.

Chair

I am going to stop you. Lord Strathclyde, I am afraid we are straying from the subject about the recommendations of your review. Mr Flynn, if you want to ask—

Paul Flynn

Can you tell us what the rationale was behind your three options? The first one is a joke. I presume you did not expect anyone to support that.

Lord Strathclyde

I thought it would be unlikely, but there were people who said we should remove the ability of the House of Lords to deal with secondary legislation in its entirety by removing it from the scope of the 1946 Act. There are a whole bunch of reasons why I don’t think that is the right thing to do, not least of all that we would not get the scrutiny that Parliament demands. But it is quite a good way of looking at one very unattractive option to see the attraction of the other two.

Paul Flynn

In your long period in the Lords, there have been very few worthwhile reforms. Do you think that reform by Government panic is an effective way of changing this ridiculous institution?

Lord Strathclyde

Are you talking about the 1999 Act?

Paul Flynn

The 1999 Act was about the only one.

Lord Strathclyde

That was an act of panic.

Paul Flynn

No, I am talking about the proposal to change the—

Lord Strathclyde

No, I don’t think this was panic at all. This was a wholly orderly examination of the process by which we pass secondary legislation. What was interesting in it was to discover how highly regarded the House of Lords is in terms of scrutiny of secondary legislation, and how many former Members of the House of Commons in the House of Lords said that scrutiny of secondary legislation in the House of Commons was a waste of time.

Paul Flynn

But the institution is widely derided because of it being unelected; it is grotesquely undemocratic; it is bloated and unworkable. With all these things in mind, of course this is an act of panic by a Government in order to save their political skin.

Lord Strathclyde

I don’t agree with any of that, any aspect. I don’t recognise the description of the House of Commons or indeed of the House of Lords.

Mr Turner

Do you think you have given service to the House of Lords?

Lord Strathclyde

It is a difficult question to answer, in some respects. I have been there a long time. I have held some very senior positions in the House of Lords and in the Government and on its Committees. I like to think that I have done some good in terms of the work that the House of Lords does, vis-à-vis the parliamentary process and the long-term governance of the country, both in opposition and in government.

Mr Turner

And on this particular issue?

Lord Strathclyde

Yes. If you read the debate, I have lost count of the number of peers who spoke who praised the report. They did not necessarily agree with every aspect of it, but they were certainly grateful to receive it. They got it before Christmas and they were able to spend some time reading it before we had our debate. We debated it for seven hours in the House of Lords.

Mr David Jones

Your report recommended a review of the circumstances in which SI powers should be subject to Commons-only procedures. In what circumstances would you envisage an expansion of Commons-only stages for statutory instruments?

Lord Strathclyde

There needs to be a discussion between the Government and the House of Commons, with the Procedure Committee but also the Joint Committee on Statutory Instruments, to see where Commons-only procedures could be used where there are substantial amounts of money being spent, which would include some proposals on welfare, which would have included the matter of tax credits. There are very few people who would disagree that the issue underlying tax credits, as Mr Flynn has pointed out, was large amounts of taxpayers’ money being spent through tax credits and whether or not that should be changed. That might have been something in 2002 that could usefully have been reserved purely for the House of Commons.

Mr David Jones

What safeguards would you say would be needed to ensure that the use of Commons-only procedures was tightly prescribed and not exploited?

Lord Strathclyde

Already for money Bills there are clear provisions for Commons-only statutory instruments. There is no reason why you shouldn’t follow that model to see where the boundary between financial and non-financial matters has become sufficiently blurred, so that more statutory instruments are dealt with by both Houses rather than one only. But the way I would begin is to take a Bill, perhaps a welfare Bill where there are large amounts of money being spent, and agree with the House of Commons that this is a way forward. It may be that the House of Commons rejects that and suggests that the current way forward is the right one, particularly if both Houses accept my option 3, which ultimately gives the House of Commons a final say.

Mr David Jones

Your review also recommended that Government should rely less on statutory instruments and put more detail on the face of the Bill. We have heard from Professor Russell that that might be rather a tall order, as it could clog up the processes in both Houses of Parliament.

Lord Strathclyde

In the House of Lords last Wednesday there were several important speeches, one from Lord Judge, the former Lord Chief Justice, about the growth in the importance of statutory instruments. The other was from Michael Jopling, a former Member of the House of Commons, who said that he had seen, many times, Ministers coming to various legislative committees and saying, “We will deal with the details later on in statutory instruments”. Both Houses of Parliament should beware of that approach. We should demand more detail on the Bill where that is possible and feasible—I am not opposed to the use of statutory instruments, far from it— and also, where possible, ask for and see draft regulations during the passage of the primary legislation. I see no reason why Ministers who have thought through the policy should not be able to provide that, but also understanding that, as the years unfold, they need the powers to change details on them.

Mr David Jones

Is it not perhaps the case that your proposals in option 3 could in fact encourage the Government to do precisely the opposite—to rely even more heavily on statutory instruments?

Lord Strathclyde

That would have been the case on option 1. Option 1 is a clear indication for the Government to pass more and more by secondary legislation. I don’t think that is true in option 3, because the opportunity for the House of Lords to send something back to the House of Commons and for there to be a debate and a vote, which I am in favour of, is quite a powerful disincentive on something that is politically controversial, within the party of government as well as within the Opposition, and I think is quite a big deal. Used well, this is a substantial new power in exchange for an old power that is rarely used.

Mr David Jones

In fact, the tax credits issue might be a prime example of—

Lord Strathclyde

Exactly. Imagine if my option 3 had been in existence, and the House of Lords had rejected it and sent it back to the House of Commons. We know what happened, but that might have been quite a difficult debate for the Government.

Chair

Two brief supplementaries. What about the Henry VIII clauses? If the House of Commons had simple primacy and could overturn a rejection of a statutory instrument on the same day as the Lords rejected it, could the House of Lords possibly allow through Henry VIII clauses that allow amendment of primary legislation by secondary legislation in future?

Lord Strathclyde

I think the one weakness in my option 3 is that by removing by law the fall-back position of ultimate rejection, you could envisage a Government doing something by secondary legislation that it knew it would have. But I find it very hard to think what this truly appalling and irreversible thing could be; the slaughter of the firstborn perhaps.

Chair

Or the abolition of tax credits.

Lord Strathclyde

No, I don’t think the abolition of tax credits would fall into that at all. The whole tax credits regulation was part of the ebb and flow of Government. Before 2002, these things did not exist and they were entirely reversible. After the next election, if the Labour Party were in Government, they could reverse all of this. That is why I think that the House of Lords got it wrong on tax credits. It should not have used its practical veto powers in the way that it did.

Chair

How much is this all about that—that the Government thought the House of Lords got it wrong on tax credits, and that is why we have this review?

Lord Strathclyde

We have this review because the Government thought that the House of Lords got it wrong on tax credits, there is no doubt about that. If they had been passed there would not have been a review; that is utterly clear to me.

Chair

How do you respond to the argument recently made by Professor Mark Elliott that your proposals amount to “a triple-whammy that would permit the Government, just as it can at present, to shield parts of its legislative proposals from the full scrutiny that primary legislation attracts; it would substantially undermine the already lesser scrutiny to which statutory instruments are subject; and it would incentivise greater reliance upon statutory instruments as distinct from primary legislation in order to exploit the significantly weaker scrutiny regime applicable to the former”?

Lord Strathclyde

I can imagine that that is exactly the sort of speech that the crusty old peers made in 1909 and 1910 with the introduction of the Parliament Act, and again on the extension of the Parliament Act in 1949. They would say, “Life will never be the same again. The prerogatives of the House of Lords will no longer be there, the great safeguards” and so on. People argued in 1911 that the Parliament Act would be used far more, but in fact it has not been. I see no reason, under my option 3, why scrutiny of secondary legislation could not be improved, both in the House of Commons and in the House of Lords, by the House of Lords asking the House of Commons to think again or, as Professor Russell put it rather neatly, saying to the House of Commons, “Are you sure?” This is an important new power and a new influence on the House of Commons and on the Government that would be worth having.

Ronnie Cowan

You took a little over a month to complete this work. Is that a timescale put on you by the Government or one of your own choosing?

Lord Strathclyde

No, it is one of my own choosing. The Government suggested that I could report in the new year, but I saw no reason why I shouldn’t deliver this before Christmas, which is what I did. The issues are relatively well understood. In the last 15 years there has been a Royal Commission under Lord Wakeham in 2001; there was the Committee on Conventions of Jack Cunningham; there was a report by Lord Goodlad on these things. There was not a great deal new to understand. The main thing was to try to see as many people as possible in the House of Commons and the House of Lords. That was the time factor.

Ronnie Cowan

As you say, there have been reports. We keep on doing this, we keep on reviewing and keep on reporting and keep on doing very little. Would it not have been better to have a longer, more thorough examination of the expanding size of the House of Lords?

Lord Strathclyde

Yes; I was not asked to do that and I would not volunteer to do that. I have spent a lot of the time on reform of the House of Lords and trying to create an elected House. As you heard from Professor Russell, there are lots of different ways of creating an appointed House, and of dealing with the House that we currently have and the different formula that you could use if you had an appointed House, which is why it was confirmed to me again today that the best way is to let people choose their representatives rather than politicians.

Ronnie Cowan

How would you have an elected second Chamber?

Lord Strathclyde

The basic model outlined in the Bill in 2012 is the right approach, to have 80% elected among larger constituencies—I am broadly in favour of single Member constituencies, such as the old European constituencies—and for the 20% to be appointed by an appointments commission for independent Cross Benchers; the politicians elected and the Cross Benchers appointed.

Ronnie Cowan

What is your response to Professor Meg Russell’s claim that an opportunity exists for a deal to be struck between the Government and the Lords on a balanced package, strengthening the use of the Lords’ powers in return for restraint in appointments?

Lord Strathclyde

I doubt very much that that is going to happen. I think it is muddling two issues of powers and composition.

Ronnie Cowan

What would you rather do?

Lord Strathclyde

I don’t think there is any great incentive for Government or Opposition to create a deal of that nature. If the House of Lords wants to go down a consensus road and rebuild a convention, which is my option 2, then it would be open for them to do so. But Governments can’t impose conventions, any more than I can or anybody else; they have to come as an agreement between Opposition and Government. But if my option 3 laid the grounds for what a convention could look like without the statutory backing, then I think that that would be an important way forward.

Chair

I do recall somebody saying that it is very difficult to discuss the powers of the House of Lords without discussing its composition, and I think it may have been you. How much did you discuss this matter with the Prime Minister when he asked you to undertake this task?

Lord Strathclyde

I don’t think I discussed this with the Prime Minister at all in terms of my options. I did see him when I was appointed. I had not yet done the work to see which way I would go. That quotation may have been the other way around—you shouldn’t discuss composition without looking at the powers—but, equally, it may have been as you said it. What is interesting is that over the last 20 years, as Professor Russell said, we have spent a great deal of time talking about composition; we have not talked about powers. The House of Lords has great powers that it does not use or uses very rarely. In the debate that we had on composition, there was no parallel debate on how you might want to circumscribe some of these. I thought it was interesting, as I did the work in my review, that this was the first time that we could realistically look at the powers of the House of Lords. Some have argued that this is a substantial reduction in the powers of the House of Lords. I don’t think it is. I think it is an exchange of one power for another power. Although it stops this once-a-decade use of the veto since the Second World War, it does provide for something else that I think would be of practical use to Government, to the Commons and to the House of Lords.

Chair

Just returning to the Henry VIII question, in clause 68 of the Scotland Bill there is a Henry VIII clause, a power to make regulations under that Bill that could amend or repeal or revoke or otherwise modify any enactment relating to the powers of the Scottish Parliament. Should that be subject to no restraint at all by the House of Lords, just a gesture?

Lord Strathclyde

I don’t think that asking the House of Commons to think again and to check whether they are absolutely certain is a loss of a check.

Chair

We used to say that constitutional Bills—and that would be the equivalent of a constitutional Bill—should be debated on the Floor of the House, including the Committee stage, and then debated on the Floor of your House, including the Committee stage. Are we now reduced to changing the constitution by statutory instrument without any power of veto in the House of Lords whatsoever?

Lord Strathclyde

Yes, but it is a power of veto that has been so rarely used that it is not a practical power, in a way. That is my point. Remember, between 1968 and 2000 the powers—

Chair

If they had used it a bit more often it might be more difficult to abolish.

Lord Strathclyde

Yes, but it was a power that was never used. In fact, between the Second World War and 2000 it was only used once, which was on those very—

Chair

How much are you saying that if they had used it more often, it would be more difficult to abolish?

Lord Strathclyde

It is too hypothetical. If the House of Lords had used those powers more often, the House of Commons would have lost patience with it a long time ago and we would have dealt with these issues. Perhaps that is what they were expecting in 1968 when they made the original convention. They perhaps assumed that at some stage the House of Commons would want to regularise the use of these powers, particularly given that the Parliament Acts were used for primary legislation. This was a remnant power, a veto power that had been largely unused.

Chair

Lord Strathclyde, thank you very much indeed for undertaking the review and being so open in your answers with us. We are very grateful to you. I dare say you will hear more from our Committee on this subject.

Lord Strathclyde

Thank you very much indeed, first of all, for taking an interest in all of this. I do feel, and quite rightly, that I was a savoury dish after the main course of Professor Russell. It was an outstanding and very interesting discussion that you had with her, much of which I agree with. But I do think that statutory instruments are an important part of what we do, and it is equally important that both Houses of Parliament understand their respective powers.

Chair

Between the two of you, our appetite has certainly been sated. Thank you very much. Oral evidence: Strathclyde Review, HC 752 28