Thomas Galloway Dunlop du Roy de Blicquy Galbraith, 2nd Baron Strathclyde is Leader of the House of Lords.  As such, he is supposed to act as Leader of the WHOLE House.  The Companion to the Standing Orders of the House of Lords is quite explicit on his role:

“The Leader of the House is appointed by the Prime Minister, is a member of the Cabinet, and is responsible for the conduct of government business in the Lords. Because the Lord Speaker has no powers to rule on matters of procedure, the Leader also advises the House on procedure and order, and has the responsibility of drawing attention to violations or abuse.”

The advice on procedure and order is supposed to be impartial and at Question Time he is expected to ensure – in the case of dispute – that supplementary questions are asked in order by the different sections of the House and that the House sticks to 7 1/2 minutes per topic.  This afternoon, however, he chose to ignore impartiality and to ignore the time limit by favouring Lord Tebbit over Labour’s Baroness Rosalie Wilkins.

The question was asking the Government what plans they have for improving the lives of carers and Lord Tebbit made several attempts to get in, including being trumped by the former Conservative Lord Chancellor, Lord Mackay of Clashfern.  After Lord Mackay’s question had been answered, it should have been a Labour Peer’s turn.  However, two Government Peers tried to get in: Lord Tebbit (for the third time) and Lord Alderdice, the Convenor of the Liberal Democrat Peers.  So too did, Rosalie Wilkins, but because she is in a wheelchair she could not rise in her place – so Lord Strathclyde ignored her.  And in the ensuing fuss, the question went over time as well.

You can watch it here.  And there was real anger in the House.

But I expect there is more to come.  Next week’s business has now been published and three consecutive days of Committee deliberations on the Government’s Academies Bill have been scheduled.  No-one I have spoken to can recall three consecutive days being scheduled like this without the agreement of the Opposition.  It is beginning to look that the normal courtesies are being abandonned and the consensual approach to managing business is being ditched by the Coalition.

The Register is reporting that GCHQ has refused to authorise the use of iPhones by Ministers and civil servants for official business, although Blackberries are permitted for material up to “Restricted” level.

I wonder how long the ban will last?

My guess is that the desire of politicians and senior mandarins to have the latest technological toy to play with and the advent of the iPhone 4G will mean that subtle pressure is applied to CESG (the part of GCHQ that decides these things) to find a way of permitting the iPhone’s use.

Mayor Boris Johnson used the opportunity of speaking to the London Congress of Borough Leaders to outline his wish-list of new powers.

The City Hall press release quotes Eric Pickles, Secretary of State for Communities and Local Government, as saying:

“I welcome this contribution from the Mayor of London. The new Government is committed to genuine decentralisation of power. In London, this means transferring power and responsibility down from Whitehall and its quangos progressively downwards to City Hall, to London boroughs and to local neighbourhoods.”

He also indicated that the Government would be publishing a Localism Bill in the autumn that would provide an opportunity to amend legislation.

So does the phrase “welcome this contribution” amount to an endorsement of the Mayoral package?

I am not sure that it does.

I raised the issue in today’s Lords Question Time (on a question about whether there would be a consultation about the role and number of elected mayors).  The exchange with the Lords’ Parliamentary Under Secretary at the Department for Communities and Local Government was as follows:

“Lord Harris of Haringey: My Lords, I add to the congratulations to the noble Baroness on her appointment. I fondly remember working opposite her on many occasions when she was a stout defender of traditional London boroughs and structures of local government. The Mayor of London today has made a power grab to take over the London region of the Homes and Communities Agency, the Olympic Park Legacy Company, the Royal Parks Agency and the Port of London Authority. It has also sought greater powers over traffic control and awarding rail franchises on routes into London and the allocation of the adult skills budget in London, and to have a greater say in health provision in the capital. Are those proposals supported by Her Majesty’s Government and, if so, will they be the powers on offer to the other prospective city mayors?

Baroness Hanham: My Lords, I appreciate that the Mayor of London is looking for greater powers and devolved policies. As the noble Lord will know, we welcome the contribution that the Mayor of London makes, and the new Government have already committed to genuine decentralisation of power. That may mean transferring further powers to the mayor, but that matter is still under consideration.”

Again, “the contribution” made by the Mayor was welcomed.

But then the put-down (I’ve added the emphasis): 

“That MAY mean transferring further powers to the Mayor, but that matter is still under consideration.”

 Sounds like a touch of the long grass there …..

Ken Clarke, the Lord Chancellor and Secretary of State for Justice, has said that Bloody Sunday inquiry conducted by Lord Saville has been a “disaster in terms of time and expense” and got “ludicrously out of hand”.

I doubt whether there will be many people (apart from the many lawyers who have done extremely well out of the process) who would disagree with the sentiment that the inquiry has taken an extraordinary length of time and has therefore been monumentally expensive.

However, Ken Clarke’s timing is interesting.  His comments were made just 48 hours before the report was due to be published.  Is this part of a process of softening-up, so that, when David Cameron does introduce the report, the Coalition Government is able to distance itself from the inquiry’s twelve years of deliberations and the conclusions it has reached?

Jim Fitzpatrick MP, who chairs  Oona King’s campaign to be London Mayor, has written a strange letter to Ray Collins, General Secretary of the Labour Party.

Why is it strange?

He claims the process for selecting the London Mayor “fails the  fairness and openness tests” and then proposes tinkering with the electoral college process in ways that will make it less open and less fair – presumably believing that doing so will favour his preferred candidate.

He objects to the procedure laid down by the National Executive Committee of the Labour Party whereby there is to be an electoral college with 50% of the votes being decided by the individual votes of Party members in London and with the other 50% being determined by the votes of the members of trade unions and other organisations affiliated to the London Labour Party.

He seems to think that this process is new and untried – even though it is the same process used the last time there was a contested selection process for Labour’s Mayoral candidate in the run up to the 2004 elections.

So what is he proposing instead?

He has two options.  The first is simply to disenfranchise the members of trade unions and other affiliated organisations – even though all those members pay a political levy contribution to the Labour Party.  That is hardly very open and fair, is it?

So he offers an alternative – a “tri-partite” electoral college.

Now we had one of those before – in the selection of Labour’s candidate for the first Mayoral elections in 2000.  And that process was widely derided as being a stitch-up.  I remember it well.  The third section of  the electoral college comprised London Labour MPs and the 25 selected candidates for the London Assembly (even though some of them stood no chance of being on the Assembly unless Labour achieved 96% of the vote in the eventual elections).  I remember the embarrassment, as a London Assembly candidate, of having one of those gold-plated votes – worth the equivalent of the votes of a thousand Party members and several thousand affiliated members of the Party.  It was certainly neither open nor fair.

In so far as I understand Jim Fitzpatrick’s argument, it is that in the election of Party Leader there is a tri-partite college – with a section for MPs.  There is a good reason for that:  the House of Commons is the battleground in which the Party Leader has to operate, whether as Prime Minister or Leader of the Opposition, and Labour MPs should have a direct say in who should lead them as well as the wider Party.

So, if there were a tri-partite electoral college for the Mayoral selection, who would be in the third section?  The only logical answer would be the eight Labour members of the London Assembly.  Now they are all excellent people, but this wouldn’t just be giving them a gold-plated vote, it would be giving them a platinum-plated vote – more than 4% of the electoral college each.  And I don’t think many people would regard that as open and fair.

No doubt, Jim Fitzpatrick would like to give London MPs a platinum vote as well.  But why do they have a more legitimate remit than, say, Labour Council Leaders or indeed all Labour councillors in London.  It all begins to look like a return to the bad old days of manipulation and skullduggery.

And Jim ought to remember all that – he used to be Chair of the London Labour Party.

And actually Jim, the London Labour Party has now grown out of all that.

Lord Strathclyde is Leader of the House of Lords and a member of the Cabinet.  He is paid £101,038.  Two of the Prime Minister’s Special Advisors (Andy Coulson and Edward Llewellyn) are paid more than he is (they get £140,000 and £125,000 respectively).

Lord McNally is Deputy Leader of the House of Lords, Leader of the Liberal Democrats in the House of Lords and Minister of State in the Ministry of Justice.  He is paid £78,891.  No less than nine of the Prime Minister’s Special Advisors are paid more than he is and – particularly humiliating – three of the Deputy Prime Minister’s Special Advisors are paid more as well.

The other Lords’ Ministers – or at least those that are paid and not donating their services for free – are also receiving less than twelve of the  Special Advisors in the offices of the Prime Minister and Deputy Prime Minister.  And most of them are paid less than four other Departmental Special Advisors.

They must feel really valued compared with the cronies/Special Advisors (who – unlike Ministers – aren’t actually responsible for anything and don’t actually make decisions just provide political advice or act as spin doctors for their masters).

Of course, David Cameron is the first Prime Minister ever to have worked as a Special Advisor before they became an MP.

Ministerial pay rates are here and Special Advisor’s pay rates are here.

I have never taken an interest in the constitution of the Liberal Democrats – and in case anyone’s concerned about me I don’t want to start doing so now.

However, I am intrigued (admittedly only slightly so) by the news that Simon Hughes has been elected as Deputy Leader of the Liberal Democrats by the Party’s MPs.

Given that the Liberal Democrats in 2008 conducted a Party-wide ballot to select their nominees to be appointed to the House of Lords – a full eighteen months before the Coalition agreement to creating a gerrymander list of Coalition peers was even thought of, it is surprising that they permitted their MPs to go about the business of choosing the Party’s Deputy Leader all on their own.

There is a risk of course that someone who is immersed in the minutiae of the rules of the Liberal Democrat may tell me the reason – in detail.  However, I will be quite happy to continue in ignorance – albeit momentarily puzzled.

Over the last few months, I have been doing some work on the danger of nuclear materials falling into the hands of terrorists and had the opportunity to raise the issue during Lords Question Time this afternoon.

Baroness Miller of Chilthorne Domer had tabled the following question:

“To ask Her Majesty’s Government what contribution they will make to the work required to achieve progress on the Treaty on the Non-Proliferation of Nuclear Weapons following the resolution passed at the review conference in May.”

Lord Howell of Guildford, the Minister of State at the Foreign and Commonwealth Office, answered as follows:

“My Lords, as we promised on taking office, we pushed hard for agreement of a final document at the Nuclear Non-Proliferation Treaty Review Conference. We will give the highest priority to reversing the spread of nuclear weapons, keeping them out of the hands of terrorists and cutting their numbers worldwide, and we will work with partners to translate those commitments into action.”

I came in with the following supplementary:

“My Lords, the IAEA’s illicit trafficking database has recorded 336 incidents involving unauthorised possession of nuclear materials and associated criminal acts in the past 15 years. There have also been incidents of terror teams carrying out reconnaissance of nuclear weapon trains in Russia. Can the noble Lord tell us, first, whether Her Majesty’s Government are satisfied with the security arrangements around the nuclear facilities in this country and what steps they are taking to protect them? Secondly, what steps are they taking to ensure that security arrangements around both civil and military nuclear facilities elsewhere are being properly maintained?”

And this elicited the following response:

“I thank the noble Lord for his question. We are satisfied, but we are always on guard and always watchful for any need for improvement. The international security of nuclear materials was discussed, analysed and strengthened at the Washington conference in April that preceded the nuclear NPT review conference. A whole series of measures was put forward there and agreed. In so far as one can, one can say that these measures are a step forward in what is undoubtedly, as the noble Lord fully realises, a very dangerous situation.”

I will be returning to the issue later in the Session.

Thr first Lords drama of the new Parliament took place this afternoon.  And I missed it as I was chairing a seminar away from the House (no expense allowance for me today, then!).

The issue was whether the Coalition Government’s Local Government Bill should be referred to the Examiners of Petitions for Private Bills and the Government lost the vote by 154 to 150.  As a result, the Bill did not have its planned Second Reading today.

The Bill itself is a spiteful measure designed to prevent Exeter and Norwich from becoming unitary local authorities as agreed by the last Parliament.  The Coalition is determined to do this despite unitary status being the wish of the overwhelming majority of the residents of the two cities concerned and regardless of the extra costs associated with stopping the reorganisation in mid-flow.

The motion was moved by Lord Alan Howarth and the reason it was successful was that many Crossbench peers accepted his argument that because the Bill singles out Exeter and Norwich the Bill should follow the (more convoluted) procedure that governs any legislation that appears to apply to one group of individuals differently from other similar individuals.

These are complex arguments that Lord Alan Howarth summarised as follows:

“My Lords, I declare an interest as a resident of Norwich. I want to put it to the House that there is a strong prima facie case that the Local Government Bill is hybrid, and that it should therefore be referred to the Examiners to determine whether that is so. As soon as they saw it, a number of experienced colleagues said surely this Bill is hybrid.

The noble Lord the Leader of the House just told us the definition of hybrid Bills in the Companion , but perhaps it would help the House if I quoted the words again. The definition states that they are,

“public bills which are considered to affect specific private or local interests, in a manner different from the private or local interests of other persons or bodies of the same class, thus attracting the provisions of the Standing Orders applicable to private business”.

In the next paragraph, the Companion goes on to say:

“It is open to any member who considers that a public bill may be hybrid … to move that the bill be referred to the Examiners. Such a motion is usually moved immediately before second reading”.

These semi-mythological creatures, the Examiners, are the Clerks of Private Bills in both Houses.

I recognise that hybridity is not for amateurs. These are deep waters and a prudent politician does not even get into his bathing trunks, let alone plunge in. But I fear that, unlike my right honourable friend the former Prime Minister, prudence has never sufficiently been my watchword.

I regret that I was unable to give the House more notice of this Motion. The difficulty has been that the Government have advanced this Bill with extraordinary speed. We saw the Bill only on the eve of the long bank holiday weekend. That was followed by a day when the House was not sitting, so I was not able to consult the Clerk of Public and Private Bills until the following day, last Wednesday. I then had to discuss with Norwich and Exeter City Councils whether they wished to seek the advice of parliamentary agents and counsel. The lawyers then worked at top speed, with e-mails flying around all over the weekend and late at night. Counsel’s formal opinion and a letter of advice from parliamentary agents were delivered yesterday, and in the light of them I tabled the Motion on the Order Paper for today. We could not have got to this point more quickly, and I have had no desire to wrong-foot the House.

In any case, while the concept of hybridity may be obscure and elusive, the issue before us now is simple. Do we consider that there are sufficient reasonable arguments that the Bill is hybrid to warrant referring it to the Examiners?

Plainly, the Government have sought to draft this Bill so that it is not hybrid. However, they are navigating tricky waters, and the House ought to satisfy itself on this point, since there are major implications for how we proceed depending on it. If the Bill were judged by the Examiners to be hybrid, after Second Reading, as I understand it, the Bill would go to a Select Committee which would receive and examine petitions and question witnesses and then report to the House before following the usual course of a Public Bill.

It seems clear to me that the Bill is hybrid on this ground most obviously, although there are others. Norwich and Exeter are treated differently from other local authorities under this legislation for the following reason. Since the Bill, significantly, does not repeal Section 1 of the Local Government and Public Involvement in Health Act 2007—the Act that permits the Secretary of State to invite a local authority to make a proposal for reorganisation into single-tier government—the Bill contemplates that authorities will in the future, after the Bill has become law, have the opportunity to make such proposals. However, the Bill specifies that Norwich and Exeter—just those two named authorities—are not to become unitary authorities. It seems plain as a pikestaff that the local interests of Norwich and Exeter are especially prejudiced for the future. In the language of the Companion , Norwich and Exeter are affected,

“in a manner different from the … local interests of other … bodies of the same class”—

other councils that may wish to propose unitary reorganisations.

However, I speak merely as a politician and not as a lawyer. Far more significant are the views of learned counsel. I will not attempt to paraphrase either the lengthy opinion of Mr Peter Oldham QC or the shorter but densely argued advice of Mr Alastair Lewis of Sharpe Pritchard, parliamentary agents. Both those documents came in after the Clerk of Public and Private Bills had given his opinion that this particular Bill was not hybrid. I will just say that Mr Oldham concludes his opinion with the words:

“In my view, there are proper and reasonable arguments that this Bill is hybrid”.

Mr Lewis says he believes that a further line of argument that he has put forward,

“represents a strong argument in favour of saying that the Bill is hybrid”.

What I am not proposing to the House in this Motion is that the House should decide here and now that the Bill is hybrid. Nor is this a debate about the rights and wrongs of the Government’s policy on Norwich and Exeter—that is for Second Reading. What I am proposing is that the House should recognise that there are various views about whether this Bill is hybrid, all put forward in good faith by serious people—professionals who are competent to make such a case—and agree that all these arguments should be considered carefully and expertly by the Examiners so that they can determine whether the Bill is hybrid in accordance with the procedure that Parliament has provided.

It has long been established that there should not be a high hurdle for referral to the Examiners. Mr Lewis notes that the Companion says at paragraph 8.214 that the threshold for the hybridity test is whether there is a prima facie case. That means, as he puts it, that,

“if there is any doubt, the Bill should be referred to the Examiners”.

In that, he is following rulings of the Speaker in another place. The Speaker ruled on the Local Government Bill in the 1962-63 Session, at HC (1962-63) 669 col. 45:

“I accept the true position to be this, that if it be possible for the view to be taken that this Bill is a Hybrid Bill, it ought to go to the examiners. There must not be a doubt about it”.—[Official Report, Commons, 10/12/62, col. 45.]

Again, in the 1966-67 Session, the Speaker, at HC (1966-67) 732 col. 1221, referred to the “duty” to refer a Bill to the Examiners when the Bill was prima facie hybrid. The House will, I hope, acknowledge that, given the advice that I have quoted from two eminent experts, the threshold for referral has beyond doubt been crossed.

I hope that the Government will not oppose this Motion for political reasons. I hope that they will not seek to take advantage of the new-found situation in this House, since the formation of the coalition, in which they can use their majority simply to crush propositions that are inconvenient to them, rather than, in the tradition that makes this House so valuable, respect the arguments and respect the rights of minorities. Your Lordships’ House is not a House where machine politics should operate. It would reflect poorly on us and it would certainly cause bad feeling outside if the House were to dismiss without fair and proper consideration the arguments put forward in these opinions.

In the matter that we are dealing with now, the responsibilities of us all are as parliamentarians. We are dealing not with the merits of the Government’s policy but with the status of the Bill and with the responsibility of Parliament to ensure that it is scrutinised according to the correct procedure. It may be that the Examiners will, after due consideration, endorse the Government’s view of the Bill’s status, but we owe it to those whose lives and fortunes will be affected by the Bill to ensure that we do indeed follow the correct procedure. I beg to move.”

Had I been there the Government would have been defeated by five.

Baroness Jan Royall has been re-elected unopposed as Leader of the Labour Peers (and therefore has been confirmed as Leader of the Opposition in the House of Lords).

Lord Philip Hunt has been re-elected unopposed as Deputy leader.

There is to be a ballot amongst Labour Peers for the position of Labour Chief Whip in the House of Lords.