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00:00:00] You are listening to Parliament Matters, a Hansard Society production, supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm..

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. Coming up this week.

Ruth Fox: A matter of life and death. The Assisted Dying Bill has been published. It's possibly the most important private member's bill since the 1960s. So what happens next?

Mark D'Arcy: As the bill to remove hereditary peers from the House of Lords heads for a rendezvous with their lordships, the Shadow Leader of the House warns the execution will have to be done at close quarters.

Ruth Fox: And the Government has got itself in a legislative tangle over visa fees it shouldn't have charged.[00:01:00]

Mark D'Arcy: But first, Ruth, before we get into the Assisted Dying Bill, I think I should just offer a little apology. Both of us have been slightly under the weather this week. The voices are a bit croaky, the coughs come out occasionally despite our best efforts to restrain them. So listeners, please do bear with us. It's autumn in London and the viruses are about and we've both had them, so apologies in advance.

But let's talk now about the Assisted Dying Private Members Bill that's finally been published, that will be heading for debate in a couple of weeks time in the House of Commons. It's probably the most important, biggest, most controversial Private Members Bill since really the 1960s and the heroic age of Private Members Bill legislation when homosexuality was legalised, when abortion was legalised, both huge social measures that MPs were supposed to vote on their conscience for.

But the concern this time seems increasingly to be amongst MPs that the Private Members Bill process that this bill will go through to be considered is simply too [00:02:00] narrow, too restrictive, too time constrained for an issue of this magnitude. And the danger is that they manage to run out of time or alternatively, that MPs are sort of blackmailed.

If you amend this bill in any way, it will become impossible to pass it because it's just too difficult with a private members bill process. And that's a real constraint now on the debates that are going to go ahead in the coming weeks.

Ruth Fox: Yes, I mean that seems to be what is most on MPs minds, that the whole question of whether or not they support assisted dying is one question, but then a separate question is whether the Private Members' Bill procedures are going to enable them to have the time to scrutinise what, by, Private Member's Bill standards is quite a big bill.

I mean, we're talking, it's been published, as you say, this week. Terminally Ill Adults (End of Life) Bill, as it's now properly called. 38 pages, 43 clauses. I mean, a Private Member's Bill might rarely be more than about, I don't know, a dozen pages probably or so.

Mark D'Arcy: And usually Private Members' Bills just aren't that controversial.

Some of them are, to be sure. The one on banning [00:03:00] hunting a few years back, for example, was extremely controversial, but a lot of them, are relatively narrow measures with relatively defined purposes, often handed out by the Government in the first place. So they've already been through the Government drafting system and they're considered to be relatively fireproof.

This is something of a quite different order and there's a feeling that you're almost trying to sort of force a court into a pint pot here.

Ruth Fox: Yes, and I think the concern is amongst MPs that they are facing difficult, complex issues, potentially, as we've now seen from the Bill, potentially quite important financial measures and legal measures involved here.

The government's position on it is, should we say, not entirely clear at this point, which we can perhaps dissect in a bit more detail. And there is that concern that because of the way Private Members' Bill procedures work, there is going to be the sort of the pressure on time. So MPs are going to want to scrutinise and have more time, but they're going to come under pressure to say, well, you know, if you support this bill in principle, it's going to be lost unless you just let it go through. Because it's going to run out of time and that will be it. [00:04:00] So it's almost, do you want the scrutiny time or do you want actually the bill? And you've got to choose.

Mark D'Arcy: And the problem here is that MPs are actually voting on, uh, the Bill. There is a defined piece of legislation in front of them. All sorts of safeguards around High Court judges interviewing people who might want to utilise assisted dying to decide whether they're actually sincere in it, whether they've been coerced, whether they've got mental capacity.

You've got doctors giving opinions on whether people have six months to live. There's all sorts of elaborate processes in there. that need to be looked at in detail. This isn't a backbench debate. People are not being asked to vote on a principle, are you in favour of this or against it, broadly. You've actually got to be in favour of or against this particular mechanism.

And if you are against the mechanism and you think it's so fundamentally flawed that it couldn't possibly work, even if you favour assisted dying, that might give an MP a reason to vote against it. So there's all sorts of things going on here. And what's needed is scrutiny time. Not just for the first initial debate, where you'd have, I imagine, from [00:05:00] around half past nine in the morning to about two o'clock or so in the afternoon on a Friday.

Ruth Fox: Which is normal for a second reading.

Mark D'Arcy: Which is a normal interval for a second reading of a government bill, you'd have about that many hours, perhaps. But an awful lot of people want to get in on this debate, and some of them may find themselves crowded out just at that initial stage.

Ruth Fox: Yeah, and I think one of the difficulties is that half the House is new. After the election. And this will be their first experience of Private Member's Bill Fridays, and the procedures that attach to them. And they are different to government bills, and this is one, I think, of the arguments that's quite difficult here.

The Government, and Kim Leadbeater and others are saying, look, Private Members' Bills is the right route for this kind of legislation, a free vote, a moral issue, because that's what we did, as you said, 1960s, for things like the capital punishment, the abortion bill. So, But things have changed, and government bill procedures are different now to what they were like then.

Private Members' Bill procedures are broadly the same, but the [00:06:00] difference then was that the Government did, albeit from an officially neutral position, it did intervene to create more time in the process for those bills to be considered. So this idea that the Government was entirely hands off those bills, just doesn't stack up.

There was some intervention and whilst the MPs may have then still been able to have a free vote, time was created in the process and at the moment the Government position seems to be that they don't want to set a precedent and that the Bill is just going to go through in the normal way for Private Members' Bills.

Yeah, it would just proceed in the normal way and I think that's where you're starting to see quite a number of MPs both new and experienced asking serious questions about well, hang on a minute, it's not so much what happens at Second Reading, it's what happens in committee, and it's what happens at Report Stage subsequently, the next two stages that will follow.

Mark D'Arcy: The detailed consideration of the minutiae of the bill, in effect.

Ruth Fox: Yeah, and we're starting to see some MPs saying, [00:07:00] I'm undecided, I haven't made my mind up on the bill, but I am concerned there isn't going to be enough time for scrutiny, we're going to come under immense pressure at Committee Stage and Report Stage to push this through, to get it through against the clock, and then to And I'm not happy with that, I don't think that's the appropriate way to do it, we need more time, we need to ensure this is properly looked at, and therefore if I can't get that guarantee, I'm inclined to vote against it at second reading.

And this is where I feared we would end up when we first started talking about this some weeks ago after the private members bill ballot first took place and Kim Ladd better indicated she was going to bring forward a, an assisted dying bill. There may be quite a number of MPs who don't vote on the merits of the question of assisted dying, or this particular piece of legislation, they vote because of the procedural problems with Private Members' Bills.

Mark D'Arcy: There just isn't enough time to process an issue of this magnitude through this system. So let's take it almost stage by stage, if you like. First of all, you've got the second reading debate that is going to be on the 29th. And we'll be covering it on [00:08:00] this podcast with more or less immediate reaction to whatever it is that happens on that day, incidentally.

Doubtless, a number of MPs there who don't get a chance to give their views in the second reading debate, even if it's of the normal sort of length that you would get for a normal sort of bill. And that will disappoint some people, but I suppose you could say, well, hard cheese. There's always someone who doesn't manage to say their piece in any given Commons debate.

Then you move on to the Public Bill Committee. This is normally, for Private Members' Bills, a pretty perfunctory exercise, frankly. On most private members bills, a public bill committee will maybe sit once and vote its way through the contents. But again, this will need, I think, a lot more than that. So you could have a public bill committee that has to sit for really quite a while to work its way through the detail.

And one of the problems here is that the rules on Private Members' Bills are there can only be one public bill committee at a time for Private Members' Bills. So while this is going on, all the other Private Members' Bills later in the queue are sat there waiting. for this public bill committee to [00:09:00] finish.

Now, it is within the power of the Government to change that and say, OK, we'll have another bill committee opened so that all the other bills can go through that, and this one can take its time.

Ruth Fox: Yes, and I think realistically the important thing to remember about Private Members' Bills is they are not programmed in the way that government bills are, so a public bill committee for a government bill would have a deadline for completion of it, an end date, or in the trade they call it the out date, where the bill would have to finish by, even if they hadn't looked at all the clauses. That's not the case for Private Members' Bills, so in a sense it's in the committee's hands to decide how long they want to sit, how often they want to sit, how much they want to look at, but they are up against this knowledge that once they get into next year, you remember, it's only 13 sitting Fridays for consideration of Private Members' Bills at Second Reading and Report.

And once you get past the first few Fridays for the second readings, then that bill needs to be at the head of the queue to get the first date for Report Stage.

Mark D'Arcy: Yeah.

Ruth Fox: And if it's not, then you are up against that prospect of losing the [00:10:00] bill because of a lack of time. So if it is one public bill committee and it takes a long time, takes months, which it may do, then you're going to have a backlog of all these other Private Members' Bills, the other 19 behind it, so in effect it'll be a bill blocker.

The alternative is, as you say, you create a second bill committee, but if those bills which are smaller and less complicated all finish before the Assisted Dying Bill, they get ahead of it in the queue for the limited time for Report Stage. So then it could still lose out with a second bill committee because it could be behind so many of them there isn't enough time for it.

So then you're into the question, well, if there is going to be a second committee, should it be given priority as soon as it comes out of committee? Should it get priority time?

Mark D'Arcy: Should there be days set aside for it in some way or other?

Ruth Fox: And then you're into precedent setting though, that's the difficulty there.

Mark D'Arcy: And everybody immediately sort of draws their skirts about this precedent setting, oh no we can't possibly do that. I mean that's leaving aside [00:11:00] secondary issues almost, if you like, about whether or not the Public Bill Committee should hear from witnesses, should have written evidence submitted to it to be considered as well, which would happen in the Bill Committee for a general government legislation.

It doesn't normally happen in private members bills, but on an issue of this size, maybe an awful lot of people would like to weigh in on the text that's now been presented to them. Maybe the BMA will have thoughts on the role of the doctors. Maybe senior judges will have views on the role that's proposed for high court judges in this process.

So there's a lot there where there are people who could quite reasonably say, hang on, you ought to hear from us on this.

Ruth Fox: And that would require a motion from the House, that the House wants the Public Bill Committee to hear evidence. And is it written evidence only, or is it oral evidence as well? If it's oral evidence, it probably means the committee taking even longer than it might otherwise have done.

But also, if it's written evidence, as somebody who submits written evidence to select committees regularly, you know, these things take time to put together. You've got to spend time preparing it, putting it [00:12:00] together, making sure you're addressing the committee's questions.

Mark D'Arcy: And of course we've only just seen the text, so you've got to form a view on the text that's just been published.

Ruth Fox: So you need kind of a heads up that, and usually the oral evidence is taken right at the beginning of the committee. So if the committee is going to start fairly soon after second reading, let's say it starts its work in early December to try and get a few sessions in before Christmas, then that first date is going to come pretty quickly.

So the more notice that we all get in civil society, if you like, that evidence may be needed, the better. And that's why actually the former Clerk of the House of Commons, David Natzler, has written a blog post for the Constitution Unit at UCL suggesting that the government should make clear whether it thinks the committee should take evidence.

And if it should, it should say before second reading and give us all a heads up.

Mark D'Arcy: And that takes us on to report stage, and as you've already mentioned, there's a possibility that if things are just left as they are, the bill could emerge from its public bill committee almost too late to have a decent go at Report Stage, might be crowded out by other bills if there's a second bill [00:13:00] committee that's been diligently churning out other Private Members' Bills that would normally have priority before them.

So there's that question, and then there's the question of, is one Friday morning going to be enough? For a bill of this kind, with determined opponents. Because one of the standard strategies for killing off a Private Member's Bill, is to create a deluge of amendments at Report Stage, and there wouldn't simply be enough time to consider them all.

And at that point the Bill fails, because all the amendments haven't been considered and dealt with. And so, again, you might need to the Leader of the House to find a way to provide extra Report Stage time for this particular bill. So this bill would have to be treated favorably in comparison to lots of other Private Members' Bills to give it a chance of survival.

Ruth Fox: Yeah, because the important thing is if it doesn't complete on that first Report Stage day, it doesn't get the next day in the queue for it goes to the back of the queue behind the other bills that have reached Report Stage. So again, you're looking at this in terms of how many [00:14:00] amendments, how much time for discussion, pressure being applied to say, don't move that amendment, don't press it, we need to get this bill through.

Mark D'Arcy: And that's not something you want to happen in these circumstances. You don't want to get to the moral blackmail stage where MPs who want to improve the bill are told that if you do that you may kill the whole thing off because there just isn't time to deal with amendments properly within the process we've got.

So that's another huge problem. And I think what this boils down to is that I don't think this bill gets through without the Leader of the House, Lucy Powell, making a whole series of special arrangements at Committee Stage, at Report Stage, to ensure that there is time for the House of Commons to reach a view on this bill.

And I think that it would be really damaging to the House of Commons, if on an issue of this magnitude, and we're not talking about some arcane bill to liberalise parking rules in one particular local council or something like that, we're talking about a literal matter of life and death. If this was just [00:15:00] shelved because procedurally it ran out of time, I think that would be an awful look for the House of Commons.

I think it would be really, really damaging. And people have to remember that the public is watching Private Members' Bill processes on controversial issues, in a way it just wasn't 20 years ago. People can tune in on the television, people can watch online, and it's there. And if they see performative time wasting tactics being used to kill an issue that they care desperately about one way or another, then I think that the reputation of Parliament will take quite a lot of collateral damage.

Ruth Fox: And that is a big difference also, as you say, to the 1960s when these bills were going through, because there were all sorts of issues with those bills back then in terms of filibustering and accusations that MPs were deploying delaying tactics and we may see some of that again from opponents of the bill but that was not under the degree of public gaze that this piece of legislation will be and as you say therefore goes to the reputation of the House.

Alec Shelbrooke, the Conservative MP, asked a question of Keir Starmer at Prime Minister's Questions this week saying can we have a [00:16:00] government commitment that If needed, there will be a second day on report stage for this bill so that we can have proper consideration. And the Prime Minister's answer was, I think there's sufficient time allocated to it.

Now, you might say, well, that's just a holding answer for the moment, or He understands it, and he accepts that, you know, fine, it is what it is, and the bill won't proceed, possibly the government doesn't want to proceed the more it's dug into this. He gave a passing response to a celebrity, Esther Rantzen, that he'd promised a debate, to get out of a difficult interview.

He possibly didn't appreciate the legislative tangle that he was landing his government into. I suspect he doesn't actually have that much detailed understanding of Private Members' Bill procedures, because he's not been a parliamentarian all that long. I don't know, he's not, as far as I can recall, had a Private Member's Bill.

I suspect he's not been in the House much.

Mark D'Arcy: Or taken part in a Private Member's Bill debate, to my knowledge.

Ruth Fox: And yeah, so I suspect he doesn't have that much detailed understanding of how it all works and the complexities and the differences to government bills. The Leader of the House of Commons, as we're [00:17:00] recording, this morning on Thursday. She's been asked a question, follow up similar to that, by the new shadow leader of the House of Commons, Jessie Norman. She's given a similar answer, but we'll wait and see. I just don't think the Government's position of sort of carry on with normal procedures will hold. But I do think it raises quite an important question that we, we need an answer to at second reading about what is the government's position.

Mark D'Arcy: I mentioned they're supposedly neutral. But it's very difficult to be completely neutral when you're a government in the sense that, first of all, this is an issue that has important implications for the National Health Service, they'd have to set up a kind of thanatological department or thanatological service to facilitate assisted dying were the bill to go through.

It clearly has cost implications. You have implications for the role of high court judges in assessing individual cases, for example. There'd have to be hearings and a whole sort of stream of legal work that would have to follow.

Ruth Fox: And how much capacity has the judicial system got for this?

Mark D'Arcy: The courts are not [00:18:00] exactly awash with spare capacity.

So there's implications for at least two major government departments right there. That's before you get into social services and issues around palliative care and all the other issues that are raised by the Bill. So it's, to that extent, it's quite difficult for the government not to take a view. And bear in mind that at some point during the process, and it usually happens after a Second Reading vote, a Minister from the Treasury has to move what's called a money resolution to authorise expenditure that's required by the bill.

And in order for that to happen, the Treasury and the Government in general has to have a view on how much this is all going to cost.

Ruth Fox: Yes, and in the normal run of things, you would expect that for a Private Member's Bill, Knowing that there would be money implications and that the Government's going to have to express a view, that there would have been a process at the cabinet committee level, Parliament and Business Legislation Committee specifically, to determine what its view was.

Even if it wants to be neutral on the bill, it still has to take a collective decision that it wants to be [00:19:00] neutral, but it also has to take a decision about whether it will put the money motion forward. It would be a resolution if the House agrees it. And it's not clear to me whether that's taken place because, I mean, the interview that Wes Streeting, the Health Secretary, gave this week, he was raising concerns about the financial implications, suggesting that if you

Mark D'Arcy: Well, he said he personally would vote against it.

Ruth Fox: Yeah, but he was also saying yes, this has financial implications and we have to incur these additional costs to the budget, then that means something else isn't funded. And he talked about this sort of special service that would be needed to support the legislation's implementation. And one of the things was that he was suggesting that he was going to task his officials with coming up with an assessment of what the costs would be.

Now, surely that had to have been done beforehand, as part of the Parliamentary Business and Legislation Committee's consideration of the bill, to determine whether there should be a money resolution. Because if they don't know now, they're going to need to know by the 29th.

Mark D'Arcy: They need an answer pretty rapidly. Also there's the spectacle of the Health Secretary being quite [00:20:00] so out there on a Bill where the government is officially neutral. And you wonder what other ministers think of that. I mean, is the Justice Secretary going to start weighing in on, well, this is going to be a problem for putting additional workload on the courts, for example.

So you can see that the original cabinet position, which is set out in a letter by Simon Case, the Cabinet Secretary, that they're all supposed to be neutral, is kind of eroding before our very eyes.

Ruth Fox: Well, I think we said when we first came across that a few weeks ago, we said, well, we didn't think that would hold.

And it hasn't. West Streeting's blown a very big hole in it. And clearly some other ministers in his department are obviously more supportive of the assisted dying bill than he is, but they've been kept quiet. As you say, the justice secretary has indicated she's not supportive of it for religious reasons, but we haven't got her view particularly on what the department's thoughts are in terms of the capacity of the courts.

But other ministers have towed the line, as it were.

Mark D'Arcy: But they'll all be getting constituency correspondence on this. This is an issue that every constituency is going to have people with very strong views on either way.

Ruth Fox: [00:21:00] It's not just the money, there's also some quite important powers in the bill that delegate obligations to ministers.

For example, the Health Secretary would have to bring in regulations to determine which drug would be used to basically enable somebody to commit suicide. We don't know the Government's view on those powers. We haven't got a delegated powers memorandum, which you'd normally have. We haven't got an impact assessment, which you'd normally have for a government bill.

Not always, admittedly, but we ought to have. Are they coming? Have they been produced by the Government as part of its consideration of the bill and the position the Government will take on things like the money resolution? Are they going to be published before the 29th? If so, when? MPs need to know. And at the moment we haven't got clarity and the other thing I'd like to see is Kim Leadbeater be very upfront in that Second Reading debate, if not before, as to what extent government have provided support to her.

Has there been drafting support from the Office of Parliamentary Counsel the official Government drafters, for the bill. Has she had support from civil servants to draft the explanatory [00:22:00] notes? Those are quite important in terms of transparency, and that doesn't mean that the Government's rolling in behind it.

It's not unusual for Government to support Private Members Bills with some drafting, because they've got an obligation to the quality of the statute book, if nothing else, that if a bill's going to get through, it needs to be good quality in terms of the drafting.\

Mark D'Arcy: But I think we ought to know. Yeah, and what we're working round to here is the point with for it to get through Parliament and be passed into law this legislation has to be almost a quasi government bill, if not an actual government bill.

It has to have a level of support to ensure that it's well drafted and the systems it proposed actually work, all that kind of stuff. And if it doesn't have that, and if it doesn't have the support in terms of getting through the parliamentary process, the time allocation needed to get debates done, then it doesn't get through at all.

And I suspect that if the government isn't going to move to provide more time for this bill, frankly it's doomed.

Ruth Fox: Yes, I don't disagree with that. And that would be, I think, the worst of all worlds, where we end up in a situation where MPs [00:23:00] vote against the bill, not because they necessarily object to assisted dying, not because they're necessarily not assured by the safeguards, but because they just think, on matters of procedure, that there isn't enough time for them to properly consider it.

If they want to vote for it, or if they want to vote against it, they should be able to do it on the merits and their own particular beliefs, not coerced by inadequate procedures, and I think that would be really quite damning, frankly, of the House of Commons.

Mark D'Arcy: Yeah, the reputational risk here, and then the Speaker in particular, but also the Leader of the House, Lucy Powell, really have to keep that in mind.

The Commons will look ridiculous if this issue, which so many people are so engaged in, is not decided on an actual vote on its merits. But just because we can't vote for this, the rules are too inadequate for us to give it proper consideration. That would be a ludicrous position to end up in.

Ruth Fox: Absolutely.

So we'll have to see what happens, but at the moment the Government's not giving an indication of more time or more support. And can you imagine the circumstances if it doesn't bring forward [00:24:00] a money, a money resolution? It would be horrendous.

Mark D'Arcy: Perish the thought. Well Ruth, I think with that we probably need to take a break, but just before we go there is a way that our listeners can find out a bit more about this whole issue.

Ruth Fox: Yes, so um, we've been contacted by a lot of people, particularly new MPs about these procedures. So on the Tuesday the 26th of November, just a few days before the second reading, we're going to hold an online webinar on Zoom for people to tune in. I'll be chairing it, but the experts will be the former Clerk of the House of Commons, Sir David Natzler, former Constitutional Advisor to the Speaker, who's got experience, obviously, of the legislative process in depth from behind the scenes, and Dr Daniel Gover of Queen Mary University of London, who was on the podcast with us a few weeks ago. So we'll be basically trawling through all this, the updated situation that final week before the bill, but we'll be looking at these in even more detail. Techie procedural detail.

Mark D'Arcy: And our axe will be warm.

Ruth Fox: They will. So look out for it. It'll [00:25:00] be on our, advertised on our website imminently. And, uh, we'll put, uh, details in the show notes when they're available.

Mark D'Arcy: Let's take that break.

Ruth Fox: Well, we're back and, Mark, the tumbrils are rolling. The House of Commons has passed the Hereditary Peers Bill and it has now headed off to their lordships for consideration. There was also a separate debate yesterday in the House of Lords itself on future House of Lords reform. So what did you make of it all?

Mark D'Arcy: Well, it was a debate, I think, in both Houses, in which nobody said anything particularly unpredictable. No. The 92 hereditary peers who sit in the House of Lords will be removed under this Bill. They're mostly, but not exclusively, Conservatives. There are a few Labour hereditary peers, there are a few Lib Dem hereditary peers, there are a few cross branch hereditary peers.

But they would all be removed under this Bill. And it's a pretty clear commitment that Labour made in its election manifesto. So the normal convention of these things is the peers shouldn't [00:26:00] interfere with it. They shouldn't, as it were, interfere with the intention endorsed by the electorate of this bill.

And essentially the hereditaries should just go quietly. But as Lord True, the Conservative Shadow Leader of the Lords, remarked in the debate, the execution would be up close and personal. And what he meant by that was that peers would be going through the lobbies alongside the hereditary peers that they were going to get rid of.

So it would be a very personal, and probably rather unpleasant, little interlude in the history of the Upper House.

Ruth Fox: Yeah, my impression from the Lords debate, which was not specifically on this bill, was on wider laws reform.

Mark D'Arcy: It kind of inevitably was quite a lot of it about this.

Ruth Fox: Yes, quite a few hereditaries took part. Was while a number of the hereditaries expressed, in quite sad terms I think, the prospect that they would be heading out of the House. I think there was an acknowledgement on the part of all of them.

They recognised this was a manifesto commitment, it was going to be you know, had been supported in the Commons by big majorities. And that was that, that was sort of democracy in action. But [00:27:00] nonetheless, it'll be interesting to see what kind of amendments, if any, their Lordships try to make to the Bill.

And if I was to bet, I'd say that there could well be an amendment that might succeed, which is to say that the Hereditary Peers should not leave the House mid parliament at the end of this session when the Bill passes and gets royal assent, which is the current plan, but that they should be able to see out the entire parliament and go at the time where those peers who reach 80, which is another of the government's plans, not yet legislated for, but this idea of an early retirement plan that you'd see quite a number of peers leaving at the end of this Parliament, perhaps the hereditaries should go with them at that point. So I think there may be some support for that.

Mark D'Arcy: And I suppose that could be interpreted as not contravening the commitment that Labour made to the electorate in their manifesto, so wouldn't quite fall foul of the Salisbury Addison Convention, the convention that governs all these things.

But there will be some peers, I suspect, who will not go quietly into that good night. I've covered a number of [00:28:00] occasions, various bills to exclude the hereditaries before that have been considered in the House of Lords. In particular, Bruce Grocott, the Labour peer, who was Tony Blair's Parliamentary Private Secretary back in the day, has several goes at trying to end the by elections for hereditary peers, so that eventually the hereditary peers would die out, in effect. And what happened with those bills was that they were extensively filibustered by two Conservative peers, Lord Trefgarne and Lord Caithness, and each time they managed to fight that bill to a standstill, so there are people out there who may be very determined that this doesn't happen and will do their damnedest to stop it. And it only takes a couple of Peers who are sufficiently determined to cause quite a fight on this. So watch that particular space. And the other point about this is that there are people out there who say that this should only be done as part of a much wider Lords reform package, the mythical reform of the House of Lords into a, some kind of elected Senate that's been promised since Herbert Henry [00:29:00] Asquith.

Ruth Fox: Yes, I mean Angela Smith, the Leader of the House of Lords now, she made a point in the debate in saying, with no common consensus or agreement on what everything means, we've ended up doing nothing.

And that's essentially the problem and that's why the Government's pursuing this more incremental approach. But it was interesting she had scheduled this debate on Lords reform. It was her initiative. She wanted to hear on behalf of the Government what the views of members of the House were about various possibilities for next stage Lords reform and how things might be done in terms of the retirement age and what's the purpose of the House and therefore how that should affect things like how they enter and how they exit the House.

And what was pretty clear is there's a wide range of views and not a lot of, well, consensus on, we should have fewer peers, although some peers thought that this was

Mark D'Arcy: But I shouldn't be one of the ones who's expelled.

Ruth Fox: Yeah, there's sort of consensus on that, consensus that probably the House of Lords Appointment Commission should have a stronger role, but the concerns [00:30:00] that actually, if you're getting rid of all these peers that are hereditaries, if you're getting rid of all these peers once they hit 80, however you feel about the sort of undemocratic nature of the House, what you're effectively replacing it with is prime ministerial patronage.

Mark D'Arcy: Yes.

Ruth Fox: And absent, any plan for next stage reform and any clear steer from the government about what it sees as that next stage, then you're in the realm of prime ministerial patronage and that is really not much better.

Mark D'Arcy: Yeah, I mean that is a very real point and the easy answer to it in a way is to give the House of Lords Appointments Commission, HOLAC, a much more powerful role.

So that they could say that such and such a person didn't have the requisite experience or standing to become a lifelong legislator. Or such and such a person is so ethically compromised they shouldn't be allowed within a mile of the red benches. And so they could fill it out, some of the worst appointments that have been made by recent prime ministers.

But the one thing I really won't do by is the accusation that this amounts to gerrymandering of the House of Lords. It doesn't alter the balance of the House very [00:31:00] much, although the Conservatives are probably the largest chunk of the hereditaries. The Conservatives are still, by some distance, the largest party in the House of Lords.

The second largest group in the House of Lords is, in fact, the Crossbenchers, who are not a party at all, who are independently appointed. And then Labour comes a somewhat distant third. 2010, when Labour left office, there was rough parity between the Conservatives and Labour. And over the years, the Conservatives have appointed more and more Conservative peers, partly because they've been having such difficulty in the House of Lords, with legislation being amended constantly.

But it was getting to the point where every 20 something who'd done a bit of photocopying in Downing Street was being offered an ermine robe and sent to the the red benches, and that was becoming absurd. Yeah. So I don't think, frankly, the Conservative Party is in a position to deliver papal encyclicals on stuffing the House of Lords, because they spent more than a decade doing just that.

Ruth Fox: Yeah, and that was in slightly politer terms, the point that was made by Angela Smith to her opposite number on the Conservative benches, particularly in relation to the [00:32:00] hereditaries. She basically said, look, we warned you this would happen if you kept standing in the way of reform on this issue, standing in the way of the Grocott Bill, we warned this would happen and here we are.

So, you know, basically suck it up. Um, but I do think there is a risk to the cross benches, balancing the house in terms of the numbers and the parties, because it's clearly unbalanced when you have a government majority on this scale, and yet you've got far more Conservative peers than Labour peers in the House.

That is problematic. Although, of course, in terms of conventions and so on, deals can be reached on legislation. But nonetheless, it doesn't feel balanced. But I do think there's a risk around the crossbenchers, because I do think they're going to be heavily hit by the loss of the hereditaries combined with the 80.

Mark D'Arcy: The very crossbenchers in this instance.

Ruth Fox: Yes, and you know, there's a potential here for quite a significant loss of their numbers, and they are important. You know, they do provide that independent scrutiny. They do provide a lot of the expertise. They're not party political appointments. [00:33:00] And as a consequence, I think if we start to see in an unelected house, their numbers reduced, then you are into the realm where Prime Ministerial patronage to the political benches is more difficult.

Mark D'Arcy: You could imagine some kind of side deal where the Government starts handing out life peerages to some of the hereditaries to allow them to stay, particularly on the cross benches perhaps where there are people with valuable expertise whose role could then be continued by another route.

Ruth Fox: Yeah, and I'm almost certain that's what will happen in some cases. How many? I mean, it's like 90 odd hereditary peers still actually in the house. Of that, how many will get life peerages. Some of them have already got them, actually. They sort of double up. Interestingly, Earl Attlee, who is the, I think, the grandson of Clement Attlee, so a Labour Prime Minister, but he actually sits on the Conservative benches.

He announced to the House that he's actually considering standing down, retiring this coming spring, basically, I think, because he's had enough. His motivation, he said, to undertake a role of the peer [00:34:00] and a member of the house has been steadily corroded away by what he perceived as a constant stream of unfair comments about the work and role of the House, and membership of the House generally.

And he said that quite a number of people had said to him, oh, well, you know, you'll surely get a life peerage. And he said, I think the chances of that happening to me are inversely proportional to the size of my independent streak and my lack of admiration of post 2016 Conservative administrations, even though I think I am a proper Tory.

So, you know, again, yes, there may be life peerages on offer, but they'll have to be nominated by the party, so who will get them?

Mark D'Arcy: Yeah. Well, that will be quite an interesting debate when the Bill actually reaches their lordships and as yet we don't have a date for it getting its second reading debate.

It may or may not be before Christmas. You'd have thought they'd want to get it before Christmas, but it might somewhat dampen the festivities in the upper house when they do. But one thing that won't be in that bill was the attempt made by, amongst others, the Conservative former Chief Whip, Gavin [00:35:00] Williamson, to add to it, the removal of the Church of England bishops, the 26 Church of England bishops who sit out of right in the House of Lords.

That was fairly soundly defeated, but there is a sort of current of opinion that says, well, why not get rid of the bishop's bench? And certainly recent events, shall we say, have not exactly bolstered the position of the bishops. Well, I mean, the demise of Justin Welby.

Ruth Fox: There was pronounced silence from the bishops on this, uh, this issue, the proposed abolition of themselves this week because I think most of them probably were keeping their heads down and keep staying away from the media.

Mark D'Arcy: It's certainly not a convenient controversy to have blow up just when the bishop's role in the upper house is being considered. It's not in the bill at the moment. Someone might attempt to add it at some stage in the House of Lords while looking daggers at the bishop's bench itself and the right reverend prelates sitting on it, but I'm also rather saddened, I suppose, by the resignation of Justin Welby a few years back, I made a Radio Four profile of him, [00:36:00] and I actually thought he was quite an impressive figure, but he's he's another of the long list of people who've been hit by longstanding scandals that they are seen to have failed to tackle and that's a very dangerous thing that I think now for anyone in coming into a position of authority in a church, in a post office, in a local council, I think almost your first move now really ought to be to just check on the kind of back catalogue of scandals and outstanding complaints and have another look at them just to make sure that the institution hasn't been ignoring some long standing injustice.

And also to make sure frankly that your own hands are clean, that you've taken a look and made sure.

Ruth Fox: Yeah, and not just taken the word of your officials for it, but actually dug down.

Mark D'Arcy: As several generations of ministers for the Post Office have done, for example. Yeah, yeah.

Ruth Fox: Yeah. Well this is, I suppose, the next question is that he's, he's standing as down as Archbishop of Canterbury.

I don't think, Mark, I quite share your positive impression of him, but I'm something rather more negative about him, both [00:37:00] as a church leader and as a parliamentarian. But some of his predecessors, not all of them certainly, but some of them have had life peerages. So again, you know, would he get one? And I think in these circumstances, you have to say, probably not, probably not.

But there are certainly some former Archbishops of Canterbury who have maintained a seat in the, in the Lords. But then the question will be, who gets the Archbishop's role going forward, and, uh,

Mark D'Arcy: And that could take months to decide, because there's a whole sort of network of intricate committees that deal with this, and the Prime Minister then has to propose them to the Sovereign, who is after all head of the Church of England, and it all has to work its way through the system at some glacial pace, and in the meantime Justin Welby theoretically is in place, although I suspect he won't be all that visible a presence on the benches of the House of Lords.

Ruth Fox: Well, Mark, you're not a football fan, so you won't get this analogy. But my question is, who's going to be the Lee Carsley of the Church of England? So he's the replacement, the temporary replacement for Gareth Southgate as England football manager. Whilst we wait the appointment of his successor. Will there be a temporary charge?

I don't think so, but I think Justin Welby [00:38:00] will carry on. But as you say, I rather doubt that he's going to play much of a prominent role in the remaining.

Mark D'Arcy: And he has been an unusually active parliamentarian for an Archbishop of Canterbury. He started a tradition of having, I don't know if he started it, maybe it had been going on before, but I hadn't noticed it.

He had a series of debates on a Friday, annually, on issues that he wanted to raise. He was proposing amendments to things like the Illegal Migration Bill in the last Parliament. He was, of course, and we talked about this on the pod before, a member of the banking Commission that looked into ethics in banking after the interest rate fixing scandal during the David Cameron years and served for quite some time on on that special parliamentary commission.

Indeed at one point this is almost the transition between him being the Bishop of Durham and becoming the Archbishop of Canterbury, he was briefly not eligible technically to serve on a parliamentary committee and they bent the rules to allow him to continue while he was doing that. So he's had all sorts of roles.

And actually you haven't been impressed, but he certainly has a number of fans. The late Nigel Lawson thought [00:39:00] very highly of him as his contribution on the Banking Commission, for example. And he has been a visible presence for quite a long time in the House of Lords. Possibly made the bishops into slightly more influential faction than they've been for a while.

So, there is a role there that someone else will now have to step into, and whether they decide that they're going to spend less time in Parliament and more time, I don't know, with the Synod and out in the country.

Ruth Fox: Shall we leave it there, Mark, and take another short break? And listeners, just something to think about, if you want to keep up with what's happening in Westminster each week, in both Houses, we've now got a Bulletin, the Parliament Matters Bulletin, which comes out every weekend.

You can either look at it on our website, or you can get it online. direct to your inbox by signing up to our newsletter. Go to hansardsociety.org.Uk, sign up to the newsletter there, you'll get it in your inbox every weekend and it'll give you chapter and verse on what's happening in Parliament. And particularly useful I think if you are working in public affairs, indeed new MPs and their staff are [00:40:00] finding it quite useful, to understand the Order Paper and to find your way to various sort of documents that support your understanding of what's actually happening with parliamentary business.

Mark D'Arcy: And as we'll be discovering after the break, it's a Bulletin that's flagged up some very interesting things that are going on rather under the rest of Parliament's radar.

Ruth Fox: See you in a minute.

Mark D'Arcy: And we're back. And Ruth, readers of the Hansard Society's regular parliamentary bulletin may already be aware of this issue, but practically nobody else is, even in Parliament.

There's a set of regulations, what's known in the trade as a Statutory Instrument, that's just gone through a debate in the House of Lords, that really is quite a good example of some of the problems Governments can get themselves into. This is a really tricky one, but, um, I'll leave it to you to talk us through exactly what's going on here.

Ruth Fox: Thank you for that. Um, hospital pass. Yes, so this is the, Immigration and Nationality Fees Amendment Order 2024.

Mark D'Arcy: Sounds innocuous enough, you don't [00:41:00] think?

Ruth Fox: Yes, well, but it's quite controversial.

So, basically, the Order rectifies what is described as a legislative anomaly whereby the Home Office has been charging fees in relation to immigration to visas without the legal authority to do so.

So basically unlawfully.

Mark D'Arcy: For how long?

Ruth Fox: This is the question, it's not entirely clear. The Secondary Legislation Scrutiny Committee has been looking at this. This is the dedicated House of Lords committee that looks at all statutory instruments that are laid before the House of Lords. Remember the House of Commons does not have an equivalent committee, so.

Mark D'Arcy: Which is quite a gap in its structure.

Ruth Fox: Yeah, so the Commons is also looking at this. But it won't have the benefit of its own committee's consideration. I would hope that some MPs have picked it up from the Lord's reports. But the Secondary Legislation Scrutiny Committee has been quite damning, frankly, of what's happened.

It found that the explanatory notes that the Government produced for the order were inadequate. In fact, so inadequate, it asked the Home Office to [00:42:00] withdraw it, revise it, and resubmit it, and the Home Office has refused. Basically what's happened is the immigration rules require visa applicants to demonstrate proficiency in English, and in some cases they've got to get verification of their qualifications.

And over the years, that verification has been done by an authorised third party supplier, which has charged the applicants for the fee. And the Home Office has identified, at some point, in recent months that the verification service and the fees charged are mandatory, but they haven't got in law, in immigration regulations, the necessary statutory authority, the legal authority, to charge fees for that mandatory service.

So in effect, people have been charged. We don't know quite how many. We don't know how far back, but it suggested that, you know, the Secondary Legislation Scrutiny Committee has had exchanges with Home Office ministers and officials, and it suggested this could go back, I think, as far as 2008, and therefore question is, what happens?

Now, the Home Office, I think [00:43:00] it's fair to say, has tried to gloss over this. They don't really want to admit liability.

Mark D'Arcy: I love the antiseptic term legislative anomaly here. Basically, someone forgot to put this in the rules at the start of all this, but they charged the money anyway. And actually, those charges were, I don't know, illegal, extra legal?

Ruth Fox: Not lawful.

Mark D'Arcy: I don't know quite what the term would be. So an awful lot of people, presumably, might feel that they can claim their money back.

Ruth Fox: Yes, and presumably, you know, the fees aren't high in each individual case, but presumably there are thousands of them, and therefore it would be an administrative nightmare to refund them.

And interestingly, and this is something the Secondary Legislation Scrutiny Committee was particularly exercised about, the Home Office, having discovered this anomaly, is still continuing to charge the fees on the basis that they're trying to ensure, quote, consistency with past practice, which is the

Mark D'Arcy: We've always charged it, so we're always going to.

Ruth Fox: Yeah, the committee pointed out you're ensuring consistency with unlawful [00:44:00] practice over recent years. So that itself has caused some problems. So they've been very critical of the Government about the lack of clarity from ministers about how the oversight happened, about the steps that have been taken to remedy it, about the compensation, if any, that may be owed, the timeline for reviewing this, and putting in place some remedies. The committee says the sums of public money at stake appear to be large, and apparently we may be talking hundreds of millions, so not, you know, there have been bigger crises and bigger mistakes in government, but nonetheless, a few hundred million is not an insignificant figure.

But we've ended up in a situation where despite these concerns, ministers have essentially glossed over it a bit. Current ministers in the Home Office have said, well, it was a problem in the Conservative years and we're just rectifying the mistakes of the past administration. Not entirely clear whether ministers today have got quite all the background information and papers and understanding of what happened in the past.

It's all lost a little bit in the mists of time.

Mark D'Arcy: But [00:45:00] you'd have thought that the full majesty of parliamentary scrutiny ought to have picked up that this was an issue some time before, and it doesn't seem to have been the case.

Ruth Fox: No, well, I suppose that's the Well, I suppose it's one of the things that possibly escaped at a time either the initial governing law, the parental law was passed, or when regulations linked to it were brought forward, it wasn't picked up, wasn't picked up within the Home Office.

It's obviously been years and years since the original problem happened, but now it's been picked up. But I think it's fair to say, despite, you know, what is a pretty extraordinary situation, the noise in Parliament is a big sort of meh.

Mark D'Arcy: There was barely any attendance in the Lords debate where this was dealt with a grand committee.

Ruth Fox: No, I mean the Minister spoke and a couple of backbench peers. spoke Baroness Brinton, I think on behalf of the Liberal Democrats in the House of Lords, particularly exercised about it. I think she's very concerned about a number of Home Office regulations at the moment. She expressed concern about it, as did another peer, but otherwise, I mean, it went through as we'd expect because the [00:46:00] peers don't reject statutory instruments any more than the House of Commons does.

So unsurprisingly that that's the outcome. But at the end of the day, these are still quite significant problems. And I think it's fairly damning of the system that The Secondary Legislation Scrutiny Committee can raise these concerns and the Home Office can basically say, tough.

Mark D'Arcy: Yeah, shrug it off and move on and hope that this piece of effectively retrospective legislation to sort of authorize after the event what they've been doing for years just sails through with the minimum possible notice.

Ruth Fox: Yes and one can understand the government wanting to be quite careful about not leaving itself open to court cases and not wanting to openly admit liability and so on. I'm afraid that's just the way of things these days but it does open a sort of an interesting debate about the nature of legal risk and how ministers are advised on these issues in future.

But also how they then inform the material that they present to Parliament when they bring forward statutory instruments like this, if they, shall we say, are not giving fulsome [00:47:00] answers to the questions that parliamentary committees are asking.

Mark D'Arcy: And there we go, another example of the full majesty of parliamentary secondary legislation in action.

Ruth Fox: And why it needs to be reformed

Mark D'Arcy: And why it needs to be reformed indeed. Well Ruth, I think that's pretty much all we've got time for this week. I think it's just worth flagging up that next week the commons. Will be debating SLAPPs, strategic litigation against public participation, the practice of usually very rich individuals using lawsuits to shut up their critics. You may remember we talked to Wayne David, the Labour MP who was trying to bring in a Private Members Bill in the last Parliament to clamp down on that practice. This looks like an attempt to revive this issue and possibly trigger the Government into bringing in its own legislation on it.

But we can only wait and see what happens in that debate next week.

Ruth Fox: Yep, so we can talk about that next week's podcast. So our voices have just about held out. I think mine's on the cusp of going.

Mark D'Arcy: I'm off to gargle some lemsip.

Ruth Fox: So, with that, I think we should draw things to a close, Mark, for this week. And, uh, just a word to listeners, [00:48:00] if you are enjoying the podcast, please do review it on your favourite podcast app.

It helps other listeners find us.

Mark D'Arcy: We'll be back next week, so join us then. Goodbye.

Ruth Fox: See you then. Bye.

Well, that's all from us for this week's episode of Parliament Matters. Please hit the follow or subscribe button in your podcast app to get the next episode as soon as it lands.

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Ruth Fox: And Mark, tell us more about the algorithm.

Mark D'Arcy: Well, what do I know about algorithms? You know, I write my scripts with a quill pen on vellum and then send it in by carrier pigeon.

Ruth Fox: Well, before we go, a quick reminder also that you can send us your questions on all things Parliament by visiting hansardsociety.org.uk/pmuq.

Mark D'Arcy: We'll be discussing them in future episodes, including our special Urgent Questions editions dedicated to what you want to know about Parliament.

Ruth Fox: And you can find us across social media [00:49:00] at Hansard Society to get more content related to the show and the wider work of the Hansard Society.

Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information visit hansardsociety.org.uk/pm or find us on social media at Hansard Society.