Photo by Deniz Fuchidzhiev on Unsplash

By Ann Higgins

Tragically, the suffering in Ukraine and of the millions of displaced Ukrainians continues but while our government says that we must “move on from the trivia of Partygate” it has not stopped its controversial legislative programme.  As mentioned in previous newsletters while the Tories’ Commons’ majority has made passage of its bills there relatively trouble free, the House of Lords (HoL) has been fighting a tremendous rearguard battle to try to preserve our rights and freedoms. This has led to a succession of Bills “ping ponging” back and forth between the two Houses, with the Lords sometimes sitting long into the night while they debate the rights and wrongs both of the detail of the Bills but also how far they should continue to defy the elected Chamber. Though on occasions they are asked to keep their speeches short unlike in the Commons, there is no “guillotine” on debates so proper debates on the detail and principle of the proposed measures actually take place, whereas in the Commons in such circumstances they simply traipse through the lobbies. Whilst the retention of an unelected chamber may be dubious in principle, in practice it is surely better able to serve the aims of democracy by having debate on our laws, rather than by curtailing it. And by using their debating powers, the Lords have stretched this Parliamentary session to breaking point: at the time of writing leaving six bills still needing to pass through all their stages in Parliament before Parliament is prorogued in time for the next Session to begin on 10 May with the opening of Parliament and the Queen’s Speech. Bills that have not received the Queen’s assent by then and are not “held over” will be lost.

Here is the current state of play:

  1. The Nationality and Borders Bill remains stuck in “ping pong” after the Lords again forced through amendments which would prevent asylum seekers being treated differently according to how they reach the UK and require all asylum seekers to be treated in accordance with international law. They also shortened the time that asylum seekers have to wait before they can seek work to six months. However, the government did succeed in removing amendments that would have imposed strict controls on “offshoring” asylum seekers and stopped plans to make knowingly arriving in the UK a crime. It now “ping pongs” back to the House of Commons (HoC) on 27 April, followed by a further sitting in the HoL that night should the HoC vote down the Lords’ amendments, as they almost certainly will. Perhaps the government is hoping that by scheduling a succession of night sittings the Lords will simply fall asleep and fail to vote.
  • Similarly, the Elections Bill remains stuck in ping pong.  Whereas the opposition in the HoL failed in its attempt to implement a law enacted in 2009 but never brought into force to prevent non-doms from donating to political parties, and to stop overseas donations, they did succeed by 265 votes to 199 (including six Tory peers voting with the opposition) in maintaining the independence of the Electoral Commission, which the government wishes to bring under the control of the government by creating a duty upon it to follow guidance from the government as to how its strategy and policies should be met. Anyone who wants to follow the debate in full can find it here, of course, but here’s a taste from Lord Cormack, a Tory peer, who sets out why this clause is so objectionable:

My Lords, it is always a great pleasure to follow the noble Baroness. I frequently do not agree with her; today, I most certainly do and I think, to use the words of the noble Lord, Lord Blunkett, this is one that we take to the wire, because this is completely unacceptable in a Bill of this nature. In no circumstances could I possibly condone the Bill if it goes forward with these clauses in it.

As I was listening this afternoon to some excellent speeches, I thought of those famous words of Acton: “Power corrupts; absolute power corrupts absolutely.” I am afraid we are in danger of our Government being corrupted. I use those words deliberately and slowly, but it is a real risk, because the arrogance that we see from this Government—my noble friend Lord Hailsham referred to this—is something that, in my 52 years in Parliament, I have not seen before. Coupled with it is a disinclination to disagree agreeably, and in a democracy it is very important to be able to do that.

For a Government to take these powers to themselves is something up with which we should not put. I referred to this in previous debates, at Second Reading and in Committee. We have here a potential seizure of power that, as my noble friend Lord Young of Cookham said, we would not have countenanced from the Labour Government, with their massive majority, 22 years ago, when he and I—he was leading—were dealing from the Front Bench with the Bill that established the Electoral Commission.

Of course, there are things wrong with the Electoral Commission. If they are so very wrong, if would not have been a dishonest thing to say that we will abolish it. I would not have favoured that, but to say that we will subvert it—that we will place ourselves in a position where we can undermine it—is an arrogance that defies belief. We just cannot have this in a Parliament, and the trouble is that if a sea change happens, it tends to stay.

One of the reasons why your Lordships’ House has such an excessive legislative burden on its shoulders is that in 1998, the then Labour Government—I was talking to the noble Lord, Lord Coaker, about this this morning —provoked by some Conservatives who kept Labour up late night after late night, decided that every Bill would be timetabled. When the Conservative spokesman said, “We, of course, will reverse this”, we all thought that that was absolutely right. And when Conservatives came into government, did they? No, because it was convenient for government. But the result of that convenience for government has created a situation where legislation is not scrutinised in the other place, hence the excessive workload in your Lordships’ House.

We should beware of going down slippery slopes. The noble and learned Lord, Lord Judge, has performed a signal service in putting down these two amendments. I believe it is our duty, it is incumbent upon us, to curb that arrogance of power and to make sure that these clauses are deleted from the Bill, or that the Bill—for all that it contains some things that are entirely acceptable —falls. That is the ultimatum we must place before the Government, and I hope they will see sense.

The Bill now goes back to the HoC which will most likely reject this amendment and send it back to the Lords. We must hope that they do not blink.

  • Unfortunately, the HoL did blink when it came to the PCSC Bill and an entirely Tory majority voted down the amendment that had previously removed the clauses banning protests that are “too noisy”, though as Lord Coaker points out in his excellent speech, without defining “noisy” and the Bill finally passed its third reading in the HoL and will therefore receive the Royal Assent before the 10 May deadline.
  • The Judicial Review and Courts Bill may yet meet a similar fate, but, as things stand, the HoC has voted against Lords’ amendments which would have provided for legal aid for relatives at inquests, allowed greater rights of appeal against Upper Tribunal decisions, and retrospective quashing orders. However, several of the Lords’ amendments were accepted by the government (e.g. payment for pro bono representation in some cases and very limited help for bereaved relatives at inquests), which showed a marked difference in approach in respect of this Bill (introduced by the Ministry of Justice) than in the Home Office Bills deal with above. Therefore it ping pongs back to the HoL for further votes in the very near future.
  • Featuring here for the first time, the Health and Care Bill was also being batted to and fro between the two Houses, but last night it finally passed through both, though not before some concessions were obtained from the government, notably in addressing the issue of modern slavery in the NHS supply chain. However, the Lords’ amendments in respect of the social care cap and workplace planning were voted down and the Bill now awaits Royal Assent. While not directly relevant to this Bill, I noticed whilst drafting this piece that the High Court has just declared the Tory government policy of discharging patients back to care homes at the start of the pandemic to be “unlawful and irrational”.
  • Last but not least of our ping-ponging Bills, we come to the Building Safety Bill, in which attempts to extend the protections the Bill gives to leaseholders were finally defeated last night but not without some concessions being made during the progress of the Bill. It too should receive Royal Assent before prorogation. Her Majesty is going to be busy. (In actual fact the signing is carried out by special clerks within Westminster, not by the Queen herself).

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