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Lord Cope of Berkeley
That an humble Address be presented to Her Majesty as follows:
“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.
Lord Trimble
My Lords, the Front-Bench speeches last week on behalf of the coalition added very little to the cautious reference in the gracious Speech concerning reform of this House, but that is as it should be. The noble Lord the Leader of the House said that the Government are yet to take a position on the Joint Committee’s report. I would add that they should give equal weight to the alternative report—and note that it is an alternative report, not a minority report. It was a committee of 26: there was one member from the Commons who did not attend any meetings; another member from the Commons, during the 30 meetings of the committee, popped in six times at the beginning and popped out not long afterwards. I do not recollect him saying anything while he was there, and he certainly did not vote. We had then, in effect, 24 persons who were contributing to the committee and 12 of them signed the alternative report. In the light of that, that report is entitled to equal weight in the matter.
There are some signs, I am glad to see, that the Government might think again. For example, both the Prime Minister and the Deputy Prime Minister gave nuanced reactions to the recommendation in both reports of a referendum, and last Wednesday in the other place, the Prime Minister said:
“I think it is possible, and it would be a good reform … if we had a smaller House of Lords and if it had an elected element”.—[Official Report, Commons, 9/5/12; col. 23.]
That is of course reminiscent of the Wakeham report. It may also refer to the suggestion which appeared in the Mail on Sunday on 15 January, in a column written by Mr James Forsyth. He said that a compromise was being hatched in Downing Street which would see elections take place in 2015 for 20 per cent of the places in the Lords, but that the elected element—his words—would not be increased without Parliament again being asked to give its approval. In case either of these is being considered, may I advise caution?
If there was a referendum, what advice would the Conservative Party give to the electorate? It is likely that Members of Parliament and other members of the Conservative Party might try to compel their leader to campaign for a no vote, just as they did with regard to the AV vote. As to the cunning plan which, it is said, is about to emerge from Downing Street, I would like to make two points. First, it would be unstable if future change was conditioned simply on the approval of a statutory instrument. What, I wonder, would your Lordships do if such an instrument was whipped through the other place after a short debate? Secondly, the injection of even a small elected element into this House would destabilise it. No matter how few they were, I cannot see any directly elected Member accepting that his or her electoral mandate was inferior to that of the other place. The elected Members would not follow the conventions and they would expect, and probably obtain, the support of their appointed political colleagues in doing that.
There is no escape from the reality that a House containing Members with a direct electoral mandate, whether they be few, many or all, will act differently from this place. If the other place is to retain primacy, those who sit here must not be able to assert that they have an equal or superior mandate. The Joint Committee’s report suggests this can be done by a concordat between the two Houses, but anything agreed between the two Houses will last only as long as both Houses continue to agree. When one House decides not to follow it, it will end. Ministers giving evidence to the Joint Committee said that the Parliament Acts would be a fallback for Commons primacy. I was interested to note that last week the noble and learned Lord, Lord Mackay of Clashfern, said that he “firmly agreed” with the view that had been given to the committee by the noble and learned Lord, Lord Goldsmith, and by the noble Lord, Lord Pannick, that the Parliament Acts would not apply to an elected Chamber. Proposing, as some do, that those Acts be extended to an elected Chamber ranks, to my mind, with the Labour Party’s proposal to reduce the powers of the elected Chamber—a proposal rightly derided by the noble Lord the Leader of the House as a rich absurdity.
I would suggest that the solution is to elect Members indirectly, by a formula or process related to a direct election. Indirect elections are not unusual. In her written evidence, Dr Meg Russell told us that of the 76 second Chambers then in existence, 16 were wholly indirectly elected and 18 partly indirectly elected. By way of comparison, the figures for wholly and partly directly elected Chambers were 28, while those for wholly or partly appointed were 34, so there is an interesting distribution there. It is proposed that we have a second Chamber with a majority directly elected and with some appointed members. There are five other upper Chambers around the world that are constituted in the same way and which might be regarded as comparable. These five are Zimbabwe, Burma, Bhutan—they may not be regarded as terribly good comparators for reasons of distance, cultural difference and so on, but it is the remaining two that really worry me—Italy and Belgium. Is that going to be the future of our constitutional and parliamentary arrangements? I hope not.
The simplest form of indirect election is to allocate seats in proportion to the votes obtained in a general election, so that if a party obtained 40% of the vote it could appoint 40% of the second Chamber to hold office until the next election. Nominations could be made after the election or from a list published beforehand. But that is open to the familiar criticism of closed lists: it would increase party patronage and favour those individuals who were good at schmoozing party managers or members.
I would prefer the form of direct election that this Parliament legislated for in the past. The relevant Acts that I am referring to were enacted in 1909 and 1920. The second Chambers provided for in those Acts no longer exist, but that is not the point. Here we have legislation that was enacted in the middle of the crisis that led to the Parliament Act, and it may show what the Government who were involved in that crisis thought would be the appropriate shape of a second Chamber. The first Act was the South Africa Act 1909 and the second was the Government of Ireland Act 1920. Both proposals are very similar. My noble friends to my right might like to note that the 1920 Act was the work of a coalition of Conservatives and Liberals, headed by a Liberal Prime Minister—Lloyd George—whose Budget it was that had started the crisis in the first place. This is something worth looking at.
The South Africa Act 1909 provided for eight senators to be elected by single transferable vote for a 10-year term by the legislature of each of the four colonies that became provinces of the Union of South Africa, with a further eight Members appointed by the Governor General—an 80/20 split. That is interesting. The Government of Ireland Act provided for 24 Members of the Northern Ireland Senate to be elected for an eight-year term by single transferable vote by the Northern Ireland House of Commons, half being elected every four years, with the lord mayors of Belfast and Londonderry as additional Members. I thought that this might be a pointer in view of some other aspects of the coalition’s policy, but apparently they got lost by the wayside recently. But you never know, that might come back again.
Interestingly, both Acts had exactly the same procedure written into them to resolve differences between the two Houses. In the event of a difference between them over a piece of legislation, there could be convened—it was discretionary—a joint sitting of both Houses to deliberate and vote on the disputed Bill. That deliberation and voting would then count as the passing of the Bill. This procedure also applied to the rejection of a money Bill, so the legislation contemplated that money Bills might be rejected and had a procedure for dealing with that, which underlines that the Governments at those times did not contemplate that something similar to the Parliament Act was needed or should exist with regard to these bodies.
If anything resembling the draft Bill that the Joint Committee has considered comes forward, it is clear that it will encounter serious opposition in the other place from Members who wish to retain their primacy and to avoid being challenged in their constituencies by a rival elected Member. An indirectly elected senate solves both those problems. So I urge it on those who will be involved in taking decisions on this as something to look at.
Last week the noble Lord, Lord Wakeham, said that if a reform Bill comes here,
“the responsibilities of this House are clear. We should treat the Bill like any other coming before the House”.—[Official Report, 10/5/12; col. 50.]
It might be possible to do that if the Bill comes after being properly considered in the other place, but I fear for what might happen if we get another ill-drafted Bill pushed though the other place on a guillotine with many of its provisions never debated.
I appeal to the Government: treat this bill as constitutional Bills were once treated in the past. Let it be considered without a timetable. A whip on Second Reading would be understandable, but thereafter let the debate proceed freely. A consensus reached in that way would then be respected.
Lord Grocott
My Lords, I thought that it would be helpful to today’s discussion if we cast our minds back a couple of weeks to the elections that took place across Britain. I am referring in particular to the elections regarding the 10 directly elected mayors. As the House will remember, the suggestion was that there should be 10 directly elected mayors in 10 of the great cities of Britain. This proposal was supported by the leadership of the three main political parties, which is always a rather worrying state of affairs. It was argued that it would be a far more democratic system that would provide greater accountability and represent change, and these days we are always in favour of change. I need hardly remind the House of the results of those elections by the good people of Birmingham, Coventry and sundry other cities. When presented with this proposition, roughly three-quarters of the electorate could barely stifle a yawn before they changed the subject. The quarter, roughly, who actually went to the polling station voted pretty overwhelmingly and, I am happy to say, nine out of 10 said, “No thank you very much. We don’t think our present system is broken. We will carry on as before”.
I will leave noble Lords to their own judgment as to the relevance of that to the discussion of Lords reform because so much is unknown about Lords reform, despite all the discussions we have had so far. We know that the Government will probably introduce a Bill, but we do not know whether the Bill will be largely the draft Bill or will be substantially changed in the light of the Select Committee’s report. We do not know when it will be introduced. We certainly do not know what its passage will show or whether or when it will reach this House. We do not know whether the Parliament Act will be applied, if necessary, and we do not know whether there will be a referendum at the end of everything.
There are a lot of do not knows, but I would like to put to the House something that I do know, I think. We cannot judge how the thing will end, but we can make a pretty educated guess on the direction of travel. I am sure that it is pretty much everyone’s experience, as well as mine, that the direction of travel on this debate about whether we should have an elected House has been slowly but inexorably moving towards those of us who say that an elected second Chamber would be bad for our constitution. If there is anyone around who previously thought that an appointed House along the present lines, but not quite, was a good idea, but who then read the draft Bill and thought, “Eureka! I used to favour an appointed House but, my word, this is a cracking little Bill and has certainly convinced me”—I have not met that person yet—perhaps they could drop a note to the Government because I am sure they would be very pleased to hear that.
I do not want to win this battle as, simply on the basis of procedural wrangles, it threatens to be deals between political parties or perhaps even between Front Benches. I want to win this argument because I want to see it concluded and put to bed for a very substantial period. It is very important that that happens. Perhaps I may be partisan because, obviously, the party I care about more than any other, and always have, is my dear old Labour Party. Should we win the next election, as I fervently hope, and should this attempt at Lords reform fail, I hope that we will not find ourselves mired in a commitment to introduce another Bill which will take an inordinate amount of time and trouble to no discernable benefit to the electorate. Perhaps I should remind those newer members of my party who seem to think that an elected second Chamber is in our DNA and is what the Labour Party has always believed in and campaigned for, that they do not have memories anything like as good as those of some of us on these Benches. I actually took the precaution—I never thought I would—of reading the 11 election manifestos of my dear old party since 1970. That is an arbitrary date, and was the first general election that I lost. Since 1970, there have been 11 general elections. Only twice did the Labour Party have a commitment to a directly elected second Chamber in its manifesto. Incidentally, we lost both those elections. I do not claim that there is a direct relationship between the two things but it may be worth a note of caution.
I commend to the House the reference to Lords reform in the 2005 general election manifesto. I expect the ears of my noble and learned friend Lord Falconer to prick up at this. The 2005 Labour manifesto said:
“Labour believes that a reformed Upper Chamber must be effective, legitimate and more representative without challenging the primacy of the House of Commons”.
I think that is a tremendous script and am sure my noble and learned friend Lord Falconer will also think so. We ought to; we wrote it.
Without being overconfident, I am confident about the way that things are progressing because I think we are winning the argument. I will not repeat points that have been made already but we have surely conclusively won the argument on powers. Clause 2 of the draft Bill is ridiculous. It just asserts the primacy of the House of Commons with absolutely no evidence to explain how that would be sustained. The Government have still failed to answer the question that others and I have put repeatedly in public—that is, parliamentary—and private meetings, which is simply this, on powers. If one House votes to go to war and the other House votes not to go to war, following a request from the Government for war powers, where on earth does that leave the Government?
It is no use saying that it works abroad. It is the weakest argument of the lot to say that things work in other systems overseas. For the most part, other systems overseas have written constitutions that precisely delineate the powers of the two Chambers. We are not in that position. We are in a position in which the two Chambers have pretty much the same kinds of powers, but most of the time this House simply decides not to exercise them to the full. That is why we have a good relationship between the two Chambers. Therefore, I will not trouble the House. The point about powers has been well argued already.
There has been no attempt to argue otherwise by the Government, or by the previous Government, under Jack Straw. I had the same sense of frustration arguing with Ministers then as I have now. They refused to address the problem, just saying, “Oh, we have the Parliament Act so everything will be all right”.
The other argument is more difficult but I think that those of us who are against a directly elected House have won it. It is the argument about democracy. I will not expand on this because no one could improve on the speech of the noble Lord, Lord Norton, on Thursday. He simply made the point, which I shall try to make in a sentence, that our democratic system depends on the people electing the Commons, the Commons determining the Government and the people being able to throw out the Government in a general election. To have a directly elected second Chamber would be an immediate and obvious threat to that core of the democratic legitimacy of our constitution. Therefore, I say quite confidently that a directly elected second Chamber would not enhance our democracy; it would damage it.
I put this as the final paradox. I was pleased when I realised that this was the case. The strongest—although not to me—and most frequently repeated argument that one hears from supporters of an elected House—
Lord Thomas of Gresford
The noble Lord referred to his party’s manifestos. In 1912, Keir Hardie and Arthur Henderson campaigned on the basis of the abolition of the House of Lords. The current policy, as enunciated by the noble Lord, Lord Hunt, is for 100% election. Just to clarify this, is the noble Lord saying that 1999 brought about the final apotheosis of the House of Lords and that it should remain in that form for ever?
Lord Grocott
The noble Lord tempts me down the line of being even more of a constitutional anorak than I am. I could read out for him, but I will not, the commitments of the Labour Party on Lords reform to sundry general elections over the years. There is no common pattern within it, except that quite frequently there is reference to controlling the powers of the second Chamber, but when it comes to composition, there has been absolutely no consistency. I am quite happy to put a copy of this deeply researched note in the Library should anyone wish to read it.
I come to what I think is the final paradox of where we are in Lords reform. It is interesting that I should have had an intervention from a Liberal Democrat because I have heard it said frequently that, somehow or other, an Act now on Lords reform would be the conclusion of a 100-years struggle—we have heard that previously, although I do not know who has been struggling but most of my constituents were not—started by that great Liberal Government of Asquith and Lloyd George, and that this is somehow a conclusion.
I ask the House to consider the following proposition. Were Lloyd George around today and sitting at the other end of the Chamber—we will call him Dave in order to keep it contemporary—his colleague alongside him might say, “Dave, have you seen this new Lords reform Bill?”. Lloyd George might say, “No, I haven’t seen it. What’s in it?”, and his colleague might say, “It’s a great Bill which makes the Lords more powerful and will enable them to throw out more Commons legislation. What is more, in due course it will be able to start blocking Budgets. What do you think of that?”. I do not think that David Lloyd George would be too struck with that proposition.
I say to the House that in terms of this simple proposition, which I hope does not sound too egotistical on the part of those of us who take this view, if any heirs to Lloyd George are sitting around in Parliament at the moment, they would be saying, “We are protecting the primacy of the House of Commons”. I am confident that that is what Lloyd George would want to see, were he here. It is certainly what I say and what most of my colleagues have been saying. I hope that the Government will listen to this and realise that it is not just a bad Bill, it is increasingly a friendless Bill. They would do themselves and the country a favour if they were simply to drop it.
Lord Ashdown of Norton-sub-Hamdon
My Lords, I will not claim to know what Lloyd George might or might not have said. He was a radical. It seems depressingly clear that there are very few radicals for reform on the other side of the House. I find that very sad for a Labour Party that has always stood for constitutional reform in favour of democracy and the people in this country, but its members must examine their own consciences on this.
I should begin by making an apology to the noble Lord, Lord Hunt. On Thursday, I was here for most of his speech. I regret that I had unavoidably to leave for the last couple or three sentences. I offer my apologies to him. Obviously, I read what he had to say in Hansard.
Well, so here we go again. Over the weekend, I was speaking with a friend in Somerset. I do not think that he votes Liberal Democrat—I think he is probably a Tory—but he watches these things rather carefully. He had looked at our debate on the parliament channel or had read it in Hansard and certainly knew what had gone on. I was expressing to him how depressed I was. He said, “Paddy, you may be depressed but you should not be surprised. The House of Lords is performing exactly its traditional function down the years of opposing every democratic reform”.
This is the Chamber that opposed the Great Reform Act 1832, women being elected and so many fundamental reforms. It did so à l’outrance but was finally dragged kicking and screaming to the democratic reforms that have made this a democracy to be proud of. So it shall be again. In 1911, this House opposed democratic reform—perhaps we can understand that. We were somewhat ahead of our time then but we are depressingly, disastrously behind the times now. I asked the House of Lords Library to tell me about the new constitution for Egypt, which was proposed by the Supreme Council of the Armed Forces—no lovers of democracy there—and supported by the Islamic Muslim Brotherhood. It proposed a bicameral system—a shura will be the upper House. It will be two-thirds elected and one-third appointed by the President. We are behind them.
Lord Ashdown of Norton-sub-Hamdon
I will happily give way in a moment. Are noble Lords really content that the Supreme Council of the Armed Forces of Egypt will create a constitution with better contact with democracy than we have in this place, and that most Members of this place wish to see here? It is an untenable position and sooner or later this House, in the future as in the past, will be dragged to democracy, even against its will.
Lord Foulkes of Cumnock
The weekend before last I was in Egypt and sat in the gallery of the lower House of the Egyptian Parliament. It was a lively debate, with over 400 members all present. Does the noble Lord know how many women there were? There were half a dozen. That is all. He should look around him now and see how many women we have.
Lord Ashdown of Norton-sub-Hamdon
I do not pretend that Egypt is a perfect democracy—of course I do not. But if it is prepared to elect its second Chamber, on that matter and in this instance is it not a better democracy than we are in this place, who resist that?
Lord Ashdown of Norton-sub-Hamdon
I will give way in a moment. Let me just make it clear that across the world, or at least a very great deal of it, people are on the streets demanding democracy, while here we sit huddled, determined not to even let it enter through the doors. It is an unsustainable position.
Lord Cormack
I am most grateful. A couple of weeks ago, the noble Lord, Lord Morgan, asked his noble friend Lord Thomas of Gresford why Lloyd George—the hero of the noble Lord, Lord Ashdown—did not believe in an elected second Chamber. The noble Lord, Lord Thomas, could not answer that question. Can the noble Lord, Lord Ashdown, do so?
Lord Thomas of Gresford
I did answer that question. I said that Lloyd George was for the abolition of the House of Lords. “I am a single Chamber man”, he said—and in that he was assisted by Arthur Henderson and Keir Hardie.
Lord Ashdown of Norton-sub-Hamdon
I am grateful to my noble friend, but I do not want to talk about 1911—I want to talk about today. Democracy is on the march across the world, and you cannot keep it outside that door. In the end, you will be dragged there. Let me make this proposition to noble Lords: the longer they delay it, the more ridiculous they will look. That is where we are in the eyes of many of the public, 69% of whom want to see a directly elected Chamber. [Interruption.] I am grateful for any support I can get.
I want to answer a few of the arguments that have so far been put forward to prevent this happening, to delay it, and to make sure that we hang on to our seductive comforts for as long as we may. The first is the most ridiculous, but it featured in our previous debates and there were echoes of it on Thursday—that we are not a House of Parliament but a committee. Some committee! We are told that we are a monocameral Parliament, that all we do is advise and that this is just a committee. We are invited to believe, therefore, that when we met King John on the banks of the Thames nearly 1,000 years ago we were not beginning with a Magna Carta and Parliament but creating a committee—and that when we invite Her Majesty to come here all dressed up in her finery, accompanied by a company of the guards and a clatter of the Household Cavalry, to sit on the Throne and read the parliamentary programme for the future to your Lordships, who are dressed in red dressing gowns while the other Chamber has to come and parade before us, we are no more than a committee. That is a preposterous suggestion, and those who make it, as the noble Lord, Lord Richard, said in a previous debate, simply do not understand our history or function.
The argument that is made to bolster this claim is that we do not contribute to the making of laws. You cannot make that argument on the one hand and then claim, as my noble friend Lord Phillips did, that we have done our function because we have changed and passed so many laws. The truth of the matter is that we contribute to the making of the laws in this country. In a democracy, those who do the people’s business should be the people’s representatives. We are the daily affront to that basic principle. How can we be satisfied with that? It is a desperate and ludicrous argument that gives little comfort or respect to those who continue to seek to make it.
Lord Forsyth of Drumlean
I am grateful to my noble friend for giving way. I notice that his wording has now changed to, “contribute to the making of the laws”. The Deputy Prime Minister said that those who make the law should be elected. Should we take this as an acknowledgment that the House of Commons has the final say on all laws that are made in this country?
Lord Ashdown of Norton-sub-Hamdon
Of course we should. The draft legislation that was put before us made it perfectly clear that the House of Commons should have primacy. That is not a contentious item. By the way, I said that we participated in the making of the laws. We contribute to the making of the laws. That should be done only by the power that is derived not from the Prime Minister or from patronage but through the ballot box.
My noble friends in the Conservative Party often ask, “Why should we address this constitutional issue at a time of crisis—is this not a distraction?”. Those noble friends should have a care as they, too, are interested in constitutional reform. As the noble Lord, Lord Grocott, has just said, they introduced mayoral elections. Now we must vote for police chiefs across the country, whether we like it or not. It seems to me that my noble friends are interested in every constitutional reform except the reform of this place. They want to see the election of mayors and chief constables but not of anybody in this place. I say to noble Lords who love to make that point that it is a dangerous one to make.
It is also dangerous to make that point as we are facing not just an economic crisis but a democratic crisis. We should look at what is happening on the streets of Egypt and at what has happened here. Our economy is in crisis but so is our democracy. We should look at the turnouts in the local elections last week. You cannot solve the democratic crisis unless you can create more respect for, cognisance of and at least trust in the democratic process. We need a process of democratic renewal in this country. I do not claim that the House of Lords represents all of that programme but it is certainly a crucial part of it. You cannot resolve the deep economic crisis of this country if you do not also address the democratic crisis, and that is what we seek to do.
Another point that is often made is that famously there is no public call for reform of this place—we have heard it in the Chamber today—and that campaigners have knocked on many doors but not one person has called for democratic reform of the House of Lords. But they never do. This is not the people’s business; it is our business. There was no great public call for the Great Reform Act 1832. There was a campaign up and down the country, but in the Dog and Duck and other pubs around Britain in the 1830s there was no great public call in support of that or, later, the suffragette cause. The campaigners believed deeply in that cause and they fought for it, but the public did not, being largely uninterested in it, if not opposed to it.
The noble Lord, Lord Luce, said the other day that there have been four reforms of this place—in 1911, 1949, 1963 and 1999. None of those reforms was called for by the public. We initiated them to put our House in order. This has nothing to do with the public calling for reform. It is entirely to do with the fact that we should recognise that we have grown out of touch with democracy and that we have to put our House in order—no more and no less.
Lord Elystan-Morgan
The noble Lord says that there was no great public demand prior to 1832. What does he think brought together the 100,000 people who risked life and limb at Peterloo about 10 years previously?
Lord Ashdown of Norton-sub-Hamdon
My Lords, I did not say that there was no great campaign. I made it very clear that among the ordinary people of our country there was no great public cry for this, as indeed was the case with the suffragettes. I had a look at this in the Library only the day before yesterday and I assure noble Lords that that was the case. However, if noble Lords will not accept that, and it seems that they are not inclined to do so, I repeat that on the four occasions that this House has reformed itself it did so because it needed to, not because the public demanded it. So it was then and so it is now.
Finally, I turn to the question of the written constitution, because this has come up a number of times. Let me see if I may address it directly. Perhaps I may pick up on the statement, or perhaps question, of the noble Lord, Lord Rooker, during the debate last Thursday. He is a man for whom I have a great deal of respect and admiration, but he made an odd statement. He said that if we were to be a democratically elected second Chamber we would be the only one in the world with an unwritten constitution so to do. There are only three countries with an unwritten constitution—not a huge number. There is New Zealand, Israel and Great Britain. His argument was, “How could we make such a change when there is no model for us to work from?”. I looked at his statement in Hansard and could read it out to him; I have it here.
Lord Rooker
New Zealand and Israel are unicameral, for a start. The point I made was that we would be the only country with two elected Chambers and no written constitution.
Lord Ashdown of Norton-sub-Hamdon
My Lords, the point the noble Lord actually made, springing from that, was that we would not have a model to work from. Since when have democratic reformers in this country needed a model to work from? We have always had an unwritten constitution. Did it cause Cromwell to stop and say, “Hang on; I had better not go ahead with demanding that powers be transferred from the king because there isn’t a model anywhere else”? He was the model. Others followed him—not he followed others.
For the Great Reform Act 1832, we did not sit down and say, “Oh my goodness, we have no model to follow”. We had an unwritten constitution. We did not know how the powers would fall. We did not call for a constitutional convention to decide those powers before moving forward to reform. We made the democratic reforms and the world followed us. I am absolutely confident that, because we were ahead of the rest in 1832, the Great Reform Act saved us from the revolutions that swamped Europe in blood in 1848. Surely the noble Lord, Lord Rooker, is not one to argue that because we have an unwritten constitution we cannot have democratic reform. That is a ridiculous argument.
I say to those who say that we cannot have reform because we have an unwritten constitution, but at the same time talk about the magic of our unwritten constitution that reforms and resolves all matters, that I do not much believe in the unwritten constitution. To be honest, there is a case for a written constitution in this country. However, those who argue that the unwritten constitution resolves all, and that because it is a living constitution it can evolve and cope with these changes, cannot then say that some part of that constitution has to be written down. The proposition made by those who make that argument seems to be this: there has to be an unwritten constitution for everybody else but a written one for us—it has to be codified and we cannot otherwise move forward. You cannot make both arguments at the same time. Either you have an unwritten constitution, celebrate it and leave things to it, or you have a written constitution. However, noble Lords in this House seem to want the best of both worlds—an unwritten constitution for everybody else but a codified and written constitution for us and our relationships. The noble Lord, Lord Richard, was entirely right when he said that this should be left to the two Houses to work out. It would be better if it were.
Baroness Symons of Vernham Dean
My Lords, I am very interested in the last point made by the noble Lord, Lord Ashdown, because he said, in essence, that he would not be unhappy with a written constitution. To be fair to my noble friend Lord Rooker, the point I think he was making was that if you have two elected Chambers, both with representatives of the people in them, you must have a written constitution in order to resolve the relationship between the two Houses. That was his point—not that you cannot do it, but that there is an ineluctable logic to the written constitution. In that case, the proceedings of the Houses become justiciable. That is why the conventions between the two Houses are not codified. It is why they are written down as explanations, not as a code. If the noble Lord does not understand that, it is he who misunderstands our constitutional arrangements.
Lord Ashdown of Norton-sub-Hamdon
That was rather a long question. Let me address it straightaway. The proposition that the noble Baroness makes is that because our constitution is unwritten we cannot have democratic reform of this place.
Lord Ashdown of Norton-sub-Hamdon
Allow me, my Lords; the noble Baroness’s proposition is that, if you want to have democratic reform of this place, you must first have a written constitution. If we had a Bill before us for a written constitution, I would vote for it. However, we do not; we have a Bill for democratisation of the House of Lords. Perhaps I may make this point to the noble Baroness: if the past great reformers of this country took those risks, going out and leading the world from the basis of an unwritten constitution to change the powers of the monarch of this place and of the Commons, why should it not happen again? What is the basis on which it will not happen again?
I have taken up a good deal of the House’s time—
Baroness Farrington of Ribbleton
I agree with the noble Lord, especially because of his allegiance to the principle of a bicameral system, but surely he agrees that in a bicameral system the relationship between the two Chambers needs to be understood by people if it is put to them in a referendum. The noble Lord appears to be speaking in favour not of the draft Bill but of the Bill that he wishes it were. When I spoke to people in Lancashire, they said, “If it’s to be democratic, why elect once for 15 years? I would have no control over you, Josie”. That is what people said in my locality. Why is the noble Lord not arguing for what he believes in?
Lord Ashdown of Norton-sub-Hamdon
My Lords, I have been arguing for precisely what I believe in. Perhaps I may put it to the noble Baroness in this way. The draft legislation made it very clear that the Commons would have primacy, and I imagine that the legislation that will be put before us will have that phrase in it. However, if you believe in an unwritten constitution, you believe that that relationship needs to be worked out when the system has established itself. That is what an unwritten constitution does. I repeat: when they drew up the Great Reform Act, did they say, “My goodness, how will this alter things? If we were to abolish the rotten boroughs, how would this alter the constitution? We must have this codified”? Of course they did not. They went ahead and did what was necessary and our constitution responded effectively. That is the wisdom and the magic which I am told attends upon an unwritten constitution. You cannot argue that you believe in and value an unwritten constitution but where it relates solely to us it has to be written down. Either it is unwritten and works magically, as I propose it does, or it does not—full stop; end of story.
I feel that I may be trying the patience of the House as the Clock shows 20 minutes—
Lord Ashdown of Norton-sub-Hamdon
I guessed that I would be—I have never been popular in making these points, here or elsewhere—but perhaps I may come back to the central issue. The House of Lords Library tells me that there are 71 bicameral Parliaments across the world. Somebody said that it was 76 and I accept that. Leaving aside the microstates of the Caribbean, whose constitutions we wrote, only seven apart from ourselves have no contact with democracy, and they include Belarus and Yemen.
Lord Ashdown of Norton-sub-Hamdon
I am sorry; noble Lords may not like this—
Lord Norton of Louth
My Lords, I have the figures in front of me. There are 15 wholly appointed second Chambers in the world—16 if you include the United Kingdom—but they do not include the legislatures just referred to by the noble Lord.
Lord Ashdown of Norton-sub-Hamdon
I am happy to put the advice provided to me by the Library into the public domain if noble Lords wish, but I have the advice here and it is very clear. The other seven appointed bicameral Chambers include the nations that I have just talked about. If the noble Lord wishes to contend that, I shall be happy to exchange with him following the debate the Library research paper on which I base what I say.
This situation cannot be sustained. Noble Lords know that. Some people are using every argument to delay or obstruct reform and are coming forward with arguments that, frankly, do not hold water. Sooner or later, in some way, this House will have to become connected to the democracy of our country. Democracy cannot be kept out of this Chamber; it cannot be kept on the other side of those great brass doors. Sooner or later it will come here, and the longer noble Lords sustain this opposition to it, the more ridiculous this House will look. We now have an opportunity to put that right. Let us take it.
Baroness Hayman
My Lords, I was going to start my speech by saying that it was a pleasure to follow the noble Lord, Lord Ashdown. It is certainly a challenge and I shall try not to take as long. I am glad to have this opportunity not least because his support for an elected second Chamber is, as he demonstrated today, both passionate and principled and I respect that. However, I hope that he will accept and acknowledge that it is possible to have as great a respect for democracy and for a parliamentary system without agreeing with him on the virtues of an elected House. It is possible for true democrats, honourable Members and noble Lords to disagree honourably on this point.
The other reason I was pleased to follow the noble Lord, Lord Ashdown, was that I would like to echo some of the points that have been made about second Chambers across the world. I fear that in his rhetoric he employs a rather broad-brush approach and fails to do justice, as the noble Lord, Lord Norton of Louth, has pointed out, to the complexities of bicameral legislatures. Over the past five years—something of a misspent late middle age—I spent a great deal of time visiting, discussing and studying second Chambers, and speaking to their members and debating with their speakers. The position is nothing like as simple as the noble Lord, Lord Ashdown, suggests. He achieves the figure of only seven appointed Chambers by simply ignoring some countries that he decides to classify as microstates and therefore not worthy of consideration.
More importantly, if you look at the figures—whether it is 72 or 76—for me the crucial issue is that directly elected second Chambers are actually in the minority when you consider the large number of indirectly appointed second Chambers and put those together with the ones that are appointed. I say that not simply to parry debating points with the noble Lord, but to suggest that parliaments are rather like Tolstoy’s families at the beginning of Anna Karenina: lower Houses are basically all the same—representation by population—and second Chambers are all different—unhappy in their own way, as unicameralists such as the noble Lord, Lord Thomas of Gresford, would say. They tend to be the product of political history or of political geography which, of course, explains federal countries and second Chambers in federal states. Their existence, their powers, their composition are subject to recurrent debate. They are abolished, as in New Zealand, created, as in Rwanda, and revived, as is currently happening in Kenya. The holy grail of achieving a second Chamber that is viewed as legitimate by the public, that adds value to the legislative process, that plays its part in holding the executive to account and in the better governance of our country, while not being either a fractious rival or a pale replica of a lower House, is not easy to find, as the coalition is now discovering.
I return to those issues of principle that are the noble Lord’s driving force for an elected second Chamber. One is that no one should participate in the legislature, whatever the limitations of its power, without an electoral mandate. As I understand it, that is what the noble Lord delineated. The principle stands alongside the mantra that we heard in the other place that law makers should be accountable to law obeyers. However, if the two principles of election and accountability are sacrosanct, I cannot comprehend how the current proposals can in any way be judged acceptable. If no one who is not elected should be a legislator, how could one justify appointing 20% of the Members of a reformed House? I agree with noble Lords who said that such hybridity would very quickly become unsustainable. If accountability is king, how can single, non-renewable 15-year terms with no constituency responsibilities be justified?
Clause 2—legislation by assertion—maintains that the current balance between the two Houses can be maintained. How can it be when it is the product of the lack of electoral legitimacy of this House? How can one argue that it will not be fundamentally altered by giving Members of your Lordships’ House an electoral mandate? This is not an abstract issue; I speak from personal experience. I proposed an amendment on control orders in your Lordships’ House in 2005. It was supported—I see the noble and learned Lord, Lord Lloyd of Berwick, in his place. It was supported again when it had been overturned in the Commons and came back in the first round of ping-pong. However, after that round I stepped back—as did the rest of the House—because the House of Lords knows its place. It knows that its job is to revise and advise. It understands the balance of power between the two Houses. The idea that, if I had had any sort of electoral mandate at the time I would have stood back from what I considered to be an issue of principle, is ludicrous. Therefore, one cannot simply assert that the powers and the relationship would remain the same.
There were many speeches in recent debates about fundamental flaws in the proposals. I will not go through all the arguments but will simply say that the current proposals in no way provide a gain in democratic legitimacy and accountability that outweighs what would be lost in complementarity and differentiation between the Chambers and the single focus of democratic accountability that exists in the form of the House of Commons. Those who argue that the only route to legitimacy in a liberal democracy in the 21st century is election have not thought about some very powerful positions in our country for which some jurisdictions have elections. In some countries, judges are elected. I do not think that we would consider that an extension of democracy in this country. I do not believe that voting for police commissioners will be an extension of democracy. We must be prepared to take a more nuanced view on how legitimacy is gained in a liberal democracy in the 21st century. For me, involvement in the legislative process, as long as the powers exercised by such non-elected parliamentarians are commensurate—in the words of the Joint Committee—with their non-elected status, is acceptable.
I share the affection for this House that the noble Baroness, Lady Miller of Hendon, expressed in her speech; it is deep-rooted in me.
Earlier in this debate, the noble Lord, Lord Tyler, spoke of the need,
“to avoid yet more incestuous self-congratulatory introspection”.—[Official Report, 10/5/12; col. 42.]
I fear that he may have thought that my intervention on him the other day was exactly that and I will attempt not to do that today. Let me say quite explicitly that there is much that is wrong with the House as currently constituted. There is much that needs to change—as much has changed in the past. When I was taking my 11-plus, every Member of this House was an hereditary Peer, a judge or a Bishop. There was not a single woman in the place. In my adult lifetime, we have seen tremendous change, particularly in 1958 and 1999, and I believe that we need to see change on that scale now. The lack of that sort of incremental progress is a serious failing. For me, simply to defeat the current proposals would not look like success.
Several noble Lords have referred to the evidence that I gave to the Joint Committee. In that evidence, I put forward what I considered to be the problems the House faces—size, no retirement plan and the lack of terms. I put forward an agenda for change—a substantial reduction in the size of the House, agreement on the proportion of party-political to independent Members, term limits for future appointees, a statutory Appointments Commission operating under clear criteria which the public understood and which could be changed through Parliament, an end to the position that those who had committed serious criminal offences or breaches of the House’s Code of Conduct cannot be barred from the House, an end to the link between membership of the House and the honours system and an end to by-elections for hereditary Peers.
I understand that not all those proposals will be agreed by everybody, but I suspect that within them, there is a core that would amount to substantial and quite radical change around which consensus—consensus in the conventional rather than the Strathclydian definition—could be achieved. It would require leadership and compromise, but I do not believe that it would be any victory to defeat these proposals by long-drawn-out and bitter hand-to-hand parliamentary combat.
Even more of a travesty would be to confront what I suspect, as the noble Lord, Lord Grocott, suggested, would be the very small proportion of the British public who turned out to vote, with a referendum that gave a choice between a proposal as ill thought out and flawed as the one currently before us and the status quo of the House of Lords as it is today, with no progress or incremental change having been made since 1999.
Several speakers in this debate have referred to their anxieties, which I share, about the lack of respect for and trust in Parliament and politicians. We will not create that respect and trust quickly or easily and we will certainly not do it by putting two such unappetising alternatives to the public at a referendum. The key to slowly rebuilding that trust is to find reforms, as the right reverend Prelate the Bishop of Leicester has suggested, that allow us to do our job better. We can then demonstrate that to the public and show that we are representing them in the special and important way that this House does in Parliament.
I agree, if not with Nick, then with the Prime Minister. He is quite right: Parliament can do more than one thing at a time. We could both take measures to improve this House’s effectiveness and legitimacy through a Bill on which we have created widespread consensus and at the same time undertake the broader debate about the implications and desirability of an elected House in the context not only of Parliament as a whole but of the wider constitutional developments, which many have referred to, that are taking place in the United Kingdom at the moment. Or to put it in the more succinct words of the noble Baroness, Lady Shephard, we could get on and “do the work”.
At the end of a speech made in this House in 2002 about very similar proposals, the late Lord Jenkins of Hillhead argued that there was an intellectual case for either a small, regionally based equivalent of the United States Senate or for a reformed, appointed House. However, he concluded by saying:
“But I am sure that we should face the logic of one course or the other and not fish around in the ill-thought-out and muddled middle”.—[Official Report, 10/1/02; col. 702.]
A decade on, I believe that we have not only the opportunity but the obligation to do better. It will require leadership, compromise and commitment, and I hope that the Government and Parliament will rise to that challenge.
The Lord Bishop of Blackburn
My Lords, although it did not receive top billing, the reference in the humble Address to reform of the rules of royal succession are sensible and timely. I know I speak for all on these Benches when I say that we wish the Government well in their present consultations with the other Commonwealth realms. We look forward to and hope that it will then be possible for the necessary Bill to pass quickly through both Houses of Parliament.
The position of the church on the future of your Lordships’ House was set out clearly by my right reverend friend the Bishop of Leicester in his speech on the report of the Joint Committee, on which he served as a member, and by the most reverend Primate the Archbishop of Canterbury in his written and oral evidence to that committee. I commend that evidence to your Lordships and I should like to pick out three points. The first is that the proposals in the draft Bill fail to meet the test of shaping a second Chamber that will serve the people and Parliament better. We have already heard a great deal about conventions, primacy, powers and the deficiencies of Clause 2 of the draft Bill. It is obvious that any Bill to reform this House that does not adequately address those points risks being holed below the waterline before it sets sail.
The second point is to affirm and welcome the significant measure of agreement—I recognise that it is not universal, but it is significant none the less—that exists on the question of religious representation. We have long held the view that there should be a broadening of representation across the denominations and faiths— not only Bishops of the established church—and it is good to see that this is reflected in both the Government’s most recent proposals and the findings of the Joint Committee.
My third point reiterates the concerns voiced here a fortnight ago by the right reverend Prelate the Bishop of Leicester about the potential for divisiveness in pursuing the policies on reform that were set out in the draft Bill. As we have heard today, the economic and social challenges facing us are clearly great and severe. If the role of the Government in these circumstances, particularly one forged in coalition, is to place the principles of unity and consensus front and centre, it has to be asked: is this really the moment for stoking division between Houses, within government and within parties, and creating further disillusionment among a population, many of whom have urgent and pressing welfare needs that appear not to be mirrored in the concerns of their representatives in Parliament?
On that last point about welfare, I beg the indulgence of your Lordships while I stray briefly, though within the ambit of our topic of constitutional affairs. The changes made to the provision of care following devolution to Scotland, Wales and Northern Ireland are a fine example of the law of unintended consequences at work. Slightly different systems of entitlement and provision of care have emerged to a point where, frankly, we are in danger of creating something of a postcode lottery in the provision of care for some of our most disadvantaged people. I am reminded of a recent visit that I paid to Beaumont College in Lancaster. The college offers both residential and day programmes to learners aged between 18 and 25 with a broad range of physical and learning disabilities. Its aim is to empower learners to take responsibility for their own lives, offering an extended curriculum with a very strong emphasis, I am pleased to say, on creative arts, communication and self-expression. A former student of the college commented to me that, after leaving the college, they found life outside to be far harder to deal with than they had been led to expect. That is not to fault the college—which Ofsted reports as outstanding on many levels—but to make a point about the dislocating effect of moving from one regime of support to another. Let us imagine how a young person from the college would cope if, after leaving the college and settling into the English regime, they found that, perhaps for family reasons, they had to move to Wales or Scotland and then begin to make their way through a totally new system.
Lord Ashley, whose recent death was a great sadness to all his many admirers, was a tireless campaigner on behalf of those with disabilities, speaking up constantly for widows and battered wives, rape victims, the disabled and mentally ill, those with hearing loss and victims of thalidomide. His was an example of one of the great advantages of our current arrangements: the ability of this House to harness and benefit from the specialism and talents of many who might not otherwise have the chance to offer service in public life. In our approach to reform of this House, especially the reduction in space for the appointed and non-partisan, I make a plea that we build in enough flexibility to enable all the future Lord Ashleys to continue to serve the people of this country.
In a debate three years ago in your Lordships’ House, the right reverend Prelate the Bishop of Liverpool made a hopeful appeal for us to rediscover the unity of Parliament in our discussions on reform. He spoke of two Houses working in the interests of the whole, the upper deferring to the electoral legitimacy of the Commons, which in turn looked to the upper for its wisdom and experience. The right reverend Prelate described it in terms of a House of elders. That is a point worth reflecting on. As the most reverend Primate the Archbishop of Canterbury recently observed, a society that places great value on the cult of youth risks neglecting the needs of the old. This House is—and should not be ashamed of being—a necessary counterbalance to that trend. We hear often of the ageing society and the demographic change to come. Across the two Houses of Parliament, some reflection of that demographic is, on the face of it, no bad thing.
As we have heard from the noble Baroness, Lady Hayman, this House needs to reform. It has too many Members. It also lacks the means to discipline or expel its more errant Members in a way that the general public are right to expect. Like many on these Benches, I wish to see speedy action on those issues where we can all agree the need to change. My fear is that by gambling on the passage of a much more ambitious Bill, such as that staked out already by the Government, these necessary reforms will be further delayed and, in the process, the reputation of this place will be damaged. Your Lordships’ House retains the potential to remain a trustworthy and efficient service to the people of this country. Let us not put that at risk by getting bogged down in a far-reaching and contentious Bill that would distract us all from the real and pressing needs of our country.
Lord Giddens
My Lords, I feel a distinct frisson of anxiety in saying that I do not intend to talk about reform of your Lordships’ House—at least, not very much—but about much broader issues. I find it hard to credit that the Government have put forward such an anodyne legislative programme in the middle of the greatest crisis to afflict the industrial countries for the past 80 years. The recession is not just cyclical but has deep structural roots. It is essentially a crisis of competitiveness for the West, one which was building for some three decades. It has essentially been papered over by large-scale borrowing, which we know now is unsustainable. To confront that effectively will require a huge effort of the intellectual and practical imagination. I see no sign of that whatever in the most gracious Speech.
I am a believer in an elected second Chamber—apparently one of only about six or seven Peers who hold this view. I am a believer in 80:20 per cent, or what we could now call the Egyptian position. I admire the noble Lord, Lord Ashdown, for standing up so forcefully for that. Yet I cannot agree with him that reform of the Lords is of systematic importance at this juncture in relation to the overwhelming crises that we face not only in this country but also elsewhere.
At this juncture, far more pressing constitutional issues are looming, perhaps as fundamental as the economic ones. I mention three. The first has been alluded to en passant by one or two noble Lords: loss of faith in political leaders and the rise of extremism, which we find in all industrial countries at the moment—this is not just a British phenomenon. It will demand an effort of imagination, constitutionally and practically, to confront it, to hold the democratic centre of politics together in this country, as elsewhere.
Secondly, there is the potential secession of Scotland. That is not just one part of a country breaking away. Even devo-max would give an enormous impetus to English nationalism and the long-standing idea of setting up an English parliament. There would be deep constitutional and economic implications even for a referendum, which we shall see as it approaches, which need to be thought through.
Thirdly, and perhaps most importantly, there are the dramatic events in the eurozone. I was very pleased that the noble Lord, Lord Owen, who is not in his place, gave the speech that he did; in my opinion, it was very powerful. He said that he might be in a minority of one; he is not, but perhaps he is in a minority of two. I find that odd, given the huge nature of the issues that we face and the enormous implications of what is happening in the eurozone and the EU for this country. The possibility of a collapse of the eurozone and, with it, much of the European project, is all too real at the moment. Not many realise how catastrophic that would be if it happened suddenly, for this country as much as for other EU states.
That means that the future of Europe is radically different from that of even three or four years ago. There is the possibility of collapse; if that does not happen, there is essentially only one way forward, not just for the eurozone but for the wider European Union. At this point, essentially, it is federalism or bust. We do not know what kind of federalism it will be. This is a totally different situation from the past, as the noble Lord, Lord Owen, observed. For not just the eurozone but the EU to survive, there has to be much tighter fiscal integration, a further ceding of sovereignty over economic and social affairs, with the ECB in some senses the lender of last resort. We know from what is happening in Greece and elsewhere that new democratic mechanisms will have to accompany those innovations for them to succeed, and those mechanisms will have to be transnational—in other words, they will have to be European mechanisms of democratic involvement.
At the moment, the Government seem hapless in the face of those events. The semi-detached approach to the EU, based, above all, on simply supporting the single market, which all British Governments have favoured, including the previous one, can no longer be an option. The UK must take a position, as the noble Lord, Lord Owen, so forcefully said. Whenever that should happen, whenever there is a significant movement towards federalism, I agree with the noble Lord, Lord Owen, and my noble friend Lord Mandelson that there will have to be a referendum in this country on continued EU membership, which itself raises all sorts of issues and problems. I think that that point may come much earlier than my noble friend Lord Mandelson suggested in his recent lecture at Oxford, when he said that it might be in five or six years. It might come much earlier than that, because I see no other option for Europe than an acceleration of the integration process.
I would welcome the Minister’s comments on this. He is not only a Minister but a distinguished academic in the field of international relations and an expert on the European Union, and he has reached the pinnacle of academic achievement possible in this country as a professor at the LSE. I hope that he will at least address these wider issues, as surely this country and the world are at the moment on the edge of a precipice. I would like to hear his views on how the Government plan to respond.
Lord Elystan-Morgan
My Lords, I am sure that the noble Lord, Lord Giddens, will forgive me for not following him in his masterly tour d’horizon of many of the massive issues now confronting Her Majesty’s Government. I wish to speak on the issue of the draft Bill for the reform of this place and to ask two simple questions. First, what was the end product that the Government desired in drafting the Bill? What net result were they aiming for? Secondly, what was the principle that they sought to espouse in trying to achieve that result? Those are two simple but pertinent questions.
Concerning the first question, what was the end product contemplated? It seems that the Government have been saying quite consistently over the last few years that they wished a situation to develop whereby this House would have greater authority—greater moral authority than it has at the moment to conduct its duties, but greater authority vis-à-vis whom? Not vis-à-vis Europe; it can only be vis-à-vis Her Majesty’s Government and the House of Commons. Yet that seems a very strange proposition when one considers the way in which Her Majesty’s Government and the House of Commons have reacted in the last two years to the assertiveness of this House.
I will not go through any list in detail, but we know exactly what has happened. There has been a reaction to practically every worthwhile amendment that this House has passed, irrespective of its merits. There has been the use of the subterfuge, as I would describe it, of overemphasising the privilege which that House has in relation to financial matters. Of course it must retain that jurisdiction, but to use it even where that result is minimal in its effect upon an amendment amounts to bullying and almost to tyranny. That is one of the very great problems. Is it the case that if this Bill were to be carried, the House would adopt a different situation and, if so, on what basis? It is for the House and for the Government, in my respectful submission, to spell that out.
In so far as the question of the principle is concerned, probably every Member of this House present would say that there is one thing that we agree upon: that the primacy of the House of Commons should be maintained. In the course of these debates over the last few months, I have never heard anybody argue to the contrary. Very few people, however, have defined primacy. Primacy, to my mind, can mean one of three things. First, it can mean the acceptance that there is an overwhelming moral authority and sovereignty vested in the House of Commons itself. That is one possibility, but for it to succeed there has to be a common subscribing to a moral code and the willingness to abide by it, which is something rather difficult.
A second possibility is that it is a legal concept, which means that on all matters large and small where there is conflict between this House and the House of Commons, the House of Commons swiftly and peremptorily establishes that authority—and that our situation disappears, as it were, in so far as any status in that connection is concerned. The third possibility is that one does not apply such a rigorous determination as in the second instance but that nevertheless the House of Commons is entitled, in the long run and over a reasonable period of time, to have its own way. I cannot conceive of primacy that does not fit into one of those three categories.
With regard to the attempt to deal with the issue of primacy, Clause 2 of the Bill is of course a disaster. It has been savaged. I may be using a term that is too harsh to describe the efforts of the noble Lord, Lord Richard, and his Joint Committee, but the clause has certainly been heavily and fairly criticised, even more so in the alternative report. I can well understand that, because if the primacy of the House of Commons is to be maintained, and that is the wish of everyone, then there are only two ways in which that can be done. One way—a dangerous one, to my mind—would be to put the Salisbury/Addison convention on a statutory basis. That convention was developed in very different circumstances from those now prevailing, at a time when there were about 20 members of the Labour Party in this House and many hundreds of Conservatives. Then, it was necessary either to abolish this place or to have a convention of that nature. However, if you put such conventions on a statutory basis, you are in grave trouble. I know that noble and learned Lords who are in a far better position to judge than I would say that you immediately place yourself at the mercy of the courts and do the very thing that Article 9 of the Bill of Rights wished to avoid—in other words, that there should be a conflict between the jurisdiction of Parliament and that of the courts.
A convention is no more than a convention. The moment that it ceases to be a convention, it becomes a great peril. Again, noble Lords may say that we could use the Parliament Acts, but why should you use two pieces of legislation that were passed in very special circumstances to deal with a wholly new circumstance? Those Acts were passed when there was a deadly conflict between a House of aristocratic origin—an hereditary House—and an elected, democratic House. That is not the situation now, nor would it be if the Bill were to be passed. Although of course there is every justification for the broad rules regarding money Bills and taxation to be abided by, the Parliament Acts were nevertheless created in a special situation that would no longer obtain in the event of the Bill being carried.
What are we left with? A situation where the only sane, reasonable and safe choice is either A or B. A is to maintain an appointed House, possibly with many, though not all, of the reforms that were so properly advocated by the noble Baroness, Lady Hayman. B is to have an elected House, but one that operates within a written constitution. If you have an elected House without one, there is always the certainty of deadlock—although perhaps I put that too strongly. I suppose that one can be a very great optimist and say that it may be possible that two elected Houses could live in a situation of total amity and concord, but I doubt very much whether—
Lord Elystan-Morgan
I am sorry. However, it seems to me that I am surrounded by many people who subscribe to the same ideas as me. That may very well be the choice. Although the noble Lord, Lord Ashdown, and others may argue that there is no great significance in a written constitution, I believe that it makes all the difference. I would put it, very humbly, in this way: if you have a written constitution dealing with two elected Houses, it is very much like having two rail tracks running parallel with each other. With luck, no great disaster will ever occur. If you do not have a written constitution, with two elected Houses you have an open highway where each of those heavy, dangerous vehicles is competing with the other for road space and where there is, in the long term, the certainty of disaster. That is the situation.
If I am right that those are the stark choices now confronting our community, then we have gone about it the wrong way altogether. We have sought to deal with this matter in a piecemeal, tunnel-vision manner. That is a fair criticism. The 1911 and 1949 Parliament Acts dealt solely with powers. Since 1949, virtually all the discussion has been about membership. How can you possibly deal with membership save in apposition to powers or with powers save in apposition to membership? How can you possibly deal with a tripartite entity, such as parliamentary government—the House of Commons, the House of Lords and the devolved Assemblies—through totally changing the character and the constitution of one of them?
I believe that one of the most unwholesome proposals in the draft Bill is the 15-year term. I can well understand, and have sympathy with, the motives behind it. I came to this House 31 years ago, although I am sorry that I have not been here for the entire intervening time, having very improperly played truant for a period. I can well understand why a modern legislator should feel that they should have the independence to be able to deal with an issue as they see it on merit without having to look over their shoulder to the next election or to dictate into the columns of the local rag. It is a perfectly understandable and decent motivation, but I think it is a very wrong one. Democratic representation means two things: it means being elected in a democratic way and being answerable in a democratic way. It is not the fact of election that is so important but the fact of facing re-election: that is the mandate that has sovereign value, if you look in a purely tunnelled way at popular election.
I end with this: I believe that the most sensible answer to this situation has come from the alternative report. It states that, bearing in mind all these issues and more, there is only one place to start, and that is with a constitutional convention to examine all these matters in depth with maturity, common sense and statesmanship. To start anywhere else would be wholly unthinkable.
Lord Jenkin of Roding
My Lords, I was glad to hear parts of the speech of the noble Lord, Lord Elystan-Morgan. My profession at the Bar was many years ago, but I was reminded of a very distinguished silk who usually addressed the public galleries behind him rather than the judge in front of him.
The noble Lord referred to the theme that has run through much of this debate: the primacy of the House of Commons. For me, it was eloquently and convincingly spelled out in the alternative report. It rests on the fact that it is elected and we are not. That is the position from which one must start, as I do.
Earlier in this debate we listened to two dazzling speeches—from the noble Lord, Lord Grocott, and from my noble friend Lord Ashdown—both of which I enjoyed tremendously. I found very little common ground between them, but I hope that my noble friend will forgive me for saying that I found the arguments of the noble Lord, Lord Grocott, rather more persuasive.
We also listened to a remarkable and eloquent speech by the noble Baroness, Lady Hayman. I had told her that I was going to refer to her evidence to the Joint Committee, as she did herself. Many of us must surely agree with her main point that this House needs a continuing process of reform. On Thursday, my noble friend Lord Denham spelled out what has happened in the past, but it surely cannot stop now. As the noble Baroness, Lady Hayman, told the Joint Committee, if we try to do everything at once, we shall end up with,
“a messy debate that ends up with no progress whatever”.
In her eloquent speech this afternoon, she reiterated that fear, which is a fear that I share. I support the proposal which has come from many parts of the House that we concentrate first on the things on which the great majority agree. The noble Baroness spelled that out in her speech this afternoon and I perhaps do not need to repeat it all.
We must reduce the size of this House. It has become in many respects unmanageable. I find it distasteful that there are often, but not at the moment, Members of the House sitting beyond the Bar where they are not able to take part in debates. That is simply a consequence of overcrowding, of which there are many other features. We must have a proper, transparent system of appointment, which has also been discussed at length, and we must have proper provision for retirement.
I would like to say a few words about retirement. I realise that in the draft Bill which was considered by the Joint Committee there were some quite elaborate proposals about how we might reduce the size of the House. I checked the numbers this morning and at the moment there are 797 noble Lords, excluding those on leave of absence. I support the figure of 450, or thereabouts, that the Joint Committee came out with. It is about right. That implies that a lot of us are going to have to retire in the next five or 10 years. I find it very difficult to understand the views of those who say with one breath, “Yes of course we must have a much smaller House. But I have been appointed for life and you will have to drag me kicking and screaming out of the door”. It is completely illogical. We have to face up to this. There has to be wide acceptance that retirement from this House becomes the norm. It should not be something exceptional that happens individually but should happen generally and through a process. I like the suggestion in the report by the noble Lord, Lord Hunt of Wirral, that there should be a small formality to recognise the retirement of Peers. If it is simply left to individuals to decide to retire, and to take the initiative off their own bat, it will somehow give the impression of throwing in the towel and that people are just giving up. It is not that. The House is too large and many people will have to retire.
Some people have suggested that it should be up to the party groups to decide how best to reduce their numbers so as to match what may be the overall total at any one point in the process. I do not know whether that is practical. Noble Lords may remember that that is what happened when the question arose of electing 92 Peers under the interim process. It was left to the individual groups to decide who they should be. However, I believe that this must happen.
I should like to make a point of which I have given the Minister notice. As an essential part of the process, I would encourage the proposition, originally put forward in the report by my noble friend Lord Hunt of Wirral, that there should be some financial provision. I understand that this has been discussed at some length with the authorities by my noble friend Lord Steel of Aikwood. He argued for some kind of severance payment. This cannot possibly be at the cost of the taxpayer. The financial logic is that the savings in allowances, travel costs and so on, which would be incurred by someone remaining a Member of the House, would be balanced by the amount of the severance payment so that, in the end, there would be nil extra cost. The question that I put to my noble friend is: where do we now stand on that? Could he indicate where the discussions have got to and what prospect there is of something coming from them? I come back to the point that having that sort of severance payment would substantially increase the rate of retirement.
There are other points in the Bill in the name of my noble friend Lord Steel. I do not see why a Bill along the lines that the noble Baroness, Lady Hayman, indicated, covering all the things on which we agree, some of which were in the original Bill—I stress the word “original”—of my noble friend Lord Steel, should not be a perfectly good fulfilment of the pledge in the Queen’s Speech to reform the composition of the House. It would be infinitely preferable to the draft Bill that was considered by the Joint Committee. As several speakers on Thursday and today have said, if anything like that Bill were to go forward, it would be hugely divisive, take an enormous amount of time and create enormous acrimony. I cannot see that we are in a position where we could afford that sort of thing. Therefore, we should start with the things about which most of us agree and get ahead with them. I do not see why that should not be a perfectly adequate step for the Government now to take.
I shall make my other point rather more briefly. When my right honourable friend Oliver Letwin gave evidence to the Public Administration Select Committee in the other place last February, he was asked why the Government were giving such priority to the draft Bill on House of Lords reform. I was very struck by his answer to question 262 in the report. He said:
“we think that the House of Lords is more likely to be able to hold Government properly to account and to check the power of the Executive effectively if it contains a healthy, democratic element”.
I have to say that I find that completely bizarre. Is not one of the most serious concerns for the public who follow these matters the extent to which, in the other place, Parliament appears to be subservient to the Executive? I am sure I am not the only Member who has pointed out to visitors the picture in the Lords corridor of King Charles standing by the Speaker’s Chair, demanding the surrender of the five Members of Parliament whom he had accused of plotting against him. The first thing that Parliament passed after the Restoration, and which remains true to this day, was that never again must the royal sovereign be entitled to set foot in the House of Commons. Since she became Queen, our present Queen has never been able to do that.
However, what do we have? In the other place, nearly 100 Members are members of the Administration or direct supporters of it. There is the full panoply of the Whips, who seem able always to get their own way. We have had a system of guillotines and timetables that has made this House—the House that does not have such things and is not so fiercely under the control of the Whips—far better able to hold the Government to account.
A few weeks ago I was struck by a letter to the Times from the noble Lord, Lord Walton of Detchant. Noble Lords will remember that he played a notable part in the debates on the Health and Social Care Act. His letter showed what the House of Lords had achieved. We had made what was seen at the beginning as a thoroughly dangerous Bill far more acceptable. If I may say so, my noble friend Lord Howe played a very notable part in achieving that. The sting was in the tail of the letter of the noble Lord, Lord Walton. He wrote:
“As the end of this marathon is in sight, I cannot but speculate with deep apprehension as to what fate the Bill would have suffered if, on emerging from the Commons in the form that it did, it had then been considered by a politically dominated and elected Upper Chamber”.
I think I will allow that to be the last word.
Lord Foulkes of Cumnock
My Lords, it is a great pleasure to follow the noble Lord, Lord Jenkin of Roding, who has had such a distinguished career, mostly in another place. I remember it very well. Listening to his powerful and eloquent speech today reminded me of the dilemma that I faced over the weekend. I was standing in the shower—not a pretty sight, I know—having heard many of the speeches in the debate before the Recess on the future of the Lords and having sat through a lot of last Thursday’s debate. I thought, what is there left for those of us at the tail-end of the debate to add? It is a dilemma and it will be worse for the people who follow us, as my noble friend Lord Anderson points out. It is a difficult question.
I thought in the shower of the traveller in Ireland who got lost and asked one of the locals the way to Dublin. After the local had contemplated all the options, he stroked his beard and said, “You know, if I was going to Dublin I wouldn’t start from here”. If we were setting up a legislature, we would not necessarily start from where we are now, but we do not have a clean sheet. Even those of us who like a lot of the aspects of the House would not sit down and come up with a composition such as we have at the moment, with only English Bishops, 90-odd hereditaries and those strange by-elections that take place. I do not think that we would do that or that any of us accepts that it is an ideal option.
We are not like the founding fathers in the United States who were able to start with a clean sheet. They could have the separation of powers and a bicameral legislature but with clearly different kinds of elections and powers. As we have seen, there are those who advised post-war Germany in setting up its constitution with a federal system and the Bundestag and direct elections, and the Bundesrat representing the states of Germany. In each case, they have different powers and a written constitution to deal with any problems that arise. Like the traveller in Ireland, we are where we are and we have to start from the status quo.
What are the options? One perfectly valid option that we need to consider—I think that it was one of the options proposed by the noble Lord, Lord Phillips—is abolition. For a while, I thought that that was the best option, but I will explain why I do not think that now. Why do we need a second Chamber? Some countries work pretty well with unicameral legislatures; for example, New Zealand and, I am advised by my noble friend Lady Ramsay of Cartvale who knows Scandinavia very well, all the Scandinavian countries. It has many attractions. There is no question that it would save a lot of money. The issue of primacy would not arise and there certainly would not be any gridlock.
Abolition has a superficial attraction but I have been put off by the most recent experience—the noble Lord, Lord Forsyth, will know why—at Holyrood, which reminds us of the dangers of one-party control of the Executive and the legislature without any checks and balances whatever. The electoral system in the Scottish Parliament was supposed to make sure that no party had overall control of the legislature but that has not worked. We have a unicameral system in Scotland which is becoming more and more authoritarian and creates problems. On balance, we need to look at a bicameral system, which would be better.
Lord Forsyth of Drumlean
Is the noble Lord suggesting that the Scottish Parliament should have this Chamber as a second Chamber?
Lord Foulkes of Cumnock
It has been suggested that we should set up what could be described as a “House of Lairds”, which one might consider. I am not necessarily in favour of that and I will come to what I am in favour of in a moment. The noble Lord, Lord Forsyth, is wont to lead me down the track of an interesting diversion. In relation to the second Chamber, we first need to consider its roles and functions. To have in the Queen’s Speech the wording that it is only the “composition” that will be included in a Bill is to put the cart before the horse. We need to know what it is for before we know how it should be constituted. A second Chamber elected on the same basis as the first would be a nonsense. It would be duplication. However, if its function is to act as a check on the overbearing and increasing power of the Executive, as has been said by the noble Lord, Lord Jenkin, and with the House of Commons forming the Executive, we have got that responsibility. If it is to be elected, there is an argument for the second Chamber to be elected by a different system in order to give those checks and balances. There is an argument for that.
Another argument is for a different kind of second Chamber to represent the diversity of the United Kingdom. We have devolution to Scotland, Wales and Northern Ireland. Perhaps we should have it to England. I would prefer devolution to England as a whole whereas some others would prefer it to the regions of England. But increasingly, as was said earlier, there will be more pressure to have devolution within England. We need to think ahead because, as so many people have said, our constitutional revision has been tinkering and piecemeal, and we have not thought ahead. An indirectly elected second Chamber might counterbalance the centralisation which can come from a unitary system. None of those options has been looked at by the Government or the Joint Committee. I absolve the Joint Committee of any blame because it was given a limited remit to do its work and therefore cannot be blamed.
My preference—I have said this on other occasions in previous debates and keep saying to the Liberal Democrats that they should think more about it—is for a federal United Kingdom. It is one of only three stable constitutional options for the United Kingdom of Great Britain and Northern Ireland. We used to have one of the stable options—a centralised, unitary state whereby London controlled everywhere in the United Kingdom. That has been abandoned but it was stable. The other stable option would be to let Scotland, then inevitably Wales and then inevitably Northern Ireland secede. That is not a preferred option. It is a frightening thought. The United Kingdom has been one of the most successful economic unions anywhere in the world and we should fight hard to preserve it. But separation is a stable option.
The type of devolution that we have, which is unbalanced at the moment, is not as yet a stable option, which is why it should be seen as a stepping stone towards a federal United Kingdom.
Lord Hughes of Woodside
I regret very much intervening but I am not sure that separation is a stable option for the country. That is the point.
Lord Foulkes of Cumnock
I think that that argument will come with the referendum debate. Along with my noble friend I will be strongly against it but it could be argued that there is some stability in it. The federal option has the best of all worlds and the second Chamber of a federal Parliament representing the different parts of the United Kingdom should be part of that federal solution.
However, we cannot achieve that quickly, which is why I think that now there are two ways forward—a long-term way and a short-term way. As regards the long-term way forward, the alternative report shows the way. The noble Lord, Lord Elystan-Morgan, finished his peroration strongly supporting a constitutional convention, as have many others. It would look at the Lords and the Commons—the other place needs looking at as well in terms of its functions, powers and responsibilities—in the context of devolution and in the context of the committee set up under Bill McKay to look at the West Lothian question. When I intervened in the debate the other day, the Ministers were rather taken aback. But in replying I hope that the Minister might have a more coherent answer to how that fits into the Government’s constitutional thinking. All that needs to be looked at in a constitutional convention.
Meanwhile, in the short term, as was said by the noble Lord, Lord Jenkin, and others, let us move forward on those reforms on which we can agree, including arrangements for retirement, more transparent appointments and—this might be more controversial—getting rid of the remaining hereditary Peers but making those who are making a really good contribution life Peers. Who are they? Clearly, they are all those who are here, and those who attend regularly and contribute. In other words, in the short-term we should have a beefed up Steel Bill. While the constitutional convention looks at the longer term and all its implications, the beefed up Steel Bill will deal with the immediate arrangements.
Lord Martin of Springburn
The noble Lord has mentioned the forthcoming referendum that we are going to have in Scotland. Does he agree with me that there should be one question and one question alone?
Lord Foulkes of Cumnock
Absolutely. There is no sense to having two questions. There is a suggestion that there should be for or against separation or something devo-max. Devolution, even if it is devo-max, is an entirely different concept from separation. Whatever the level of devolution, Scotland would still be part of the United Kingdom, whereas separation is irreversible. It is a completely different concept. As someone said, you cannot be partly pregnant, and you cannot be partly independent—you have to be totally independent. My noble friend is absolutely right.
The worst of all options—I have mentioned a few of them and some people will agree on some aspects and disagree with me on others—is the Clegg Bill, with the list system proposed. The noble Baroness, Lady Hayman, pulled it apart brilliantly. If the closed list is selected by the leadership of the party, what difference does that make from appointment to the House of Lords? It is exactly the same thing. Then if you are elected for 15 years and not subject to re-election, that is very similar to where we are now. So it is not really democracy at all.
Lord Ashdown of Norton-sub-Hamdon
I hear what the noble Lord says and have some sympathy with it, but is not the system that he described exactly the system brought in by the previous Government for the European election?
Lord Foulkes of Cumnock
Indeed, and I am not very comfortable with that. One thing that we ought to do is to learn from our mistakes in the past, look at the problems that have arisen from things that we have done and not do it again. That is what I am arguing very strongly. It would be an entirely nonsensical system, just as it is nonsensical to suggest that an elected Chamber would not demand extra powers. That goes against every principle of politics. Look at the devolved Parliaments—they are asking for extra powers, saying, “We are elected and we want more powers”. That is just so obvious that it should be accepted by all politicians. A hybrid House would have real problems in terms of having two classes of Members.
Lord Reid of Cardowan
I wonder whether the noble Lord has given some thought to this question, which could be part of his constitutional convention’s considerations. Given that in this country, unlike many other countries in the world, the Executive are not elected separately—the Government are the Government because they command a majority in the elected House—if there were two elected Houses, which one would determine the Government?
Lord Foulkes of Cumnock
That is a very good question, and there is no answer that I can give to it and no answer given by the proponents of the Clegg Bill. What the noble Lord, Lord Reid, says is yet another argument. Day by day, week by week and month by month, the arguments accrue in favour of a constitutional convention to look at all these things to get some coherence into our constitutional changes instead of the piecemeal changes that we have had in the past.
My fourth point about the Clegg Bill is that no account is taken of the possibility of Scottish independence or indeed of the West Lothian question and the McKay commission. So let us abandon the Clegg Bill and find another way forward—in the short term, as I have suggested, with the beefed-up Steel Bill, and the constitutional convention in the long term. It is not just the extra problems of the economy and others that are facing the Government. We could do with a little less legislation considered a little more carefully and we could spend more time dealing with legislation that really matters to our people. We could also continue to fulfil the other important role of this House, which we share with the other House, of keeping a check on the Executive—and my goodness that is needed more and more each day.
Lord Phillips of Sudbury
I will follow up the point made by the noble Lord, Lord Foulkes, before I turn to the issue of this House. The amount and complication of legislation is a far more serious long-term issue for this Parliament than we generally recognise. Although some may say that the Queen’s Speech is shorter than some, it still contains 20 pieces of legislation, several of them very major indeed. For example, we have reform of the courts and of security and intelligence services; we have a raft of complex reforms around children, families and parents; we have reforms of banking utilities; and so on. To legislate as we do, more than any other free democratic assembly in the world, is one of our besetting sins. I am sure that most noble Lords know that we put on the statute book between 12,000 and 15,000 pages of statute law a year, while repealing only 2,000 or 3,000. That is inevitably bureaucratising, centralising, complicating and demoralising. It has a great deal to do with the disaffection of politics by so many of our fellow countrymen. That disenchantment is tracked rather effectively—for those of you who do not know of it—by the Hansard Society’s Audit of Political Engagement. It has been conducted year by year for eight years, and at the start of the executive summary says:
“The growing sense of indifference to politics … appears to have hardened into something more serious this year: the trends in indicators such as interest, knowledge, certainty to vote and satisfaction with the system of governing are downward, dramatically so in some instances”.
The report says that,
“only …49% … agree that the issues debated and decided in Parliament have relevance to their own lives; only 38% agree that the government is being held to account by Parliament; and only 30% agree that Parliament encourages public involvement in politics”.
We need to pay much more serious attention to that piece of evidence—and there is much more like it—because we cannot go on as we are going. I suggest that one major cause of this tsunami of legislation is indeed the system that prevails in the other, superior, Chamber. The noble Lord, Lord Jenkin of Roding, touched on it when he spoke about the way in which that Chamber conducts its business. Some may recollect that, in the reform debate that we had last week, I referred to the degree of holding to account by the Commons. My noble friend Lord Wallace said that he would answer my questions in this debate, and I much look forward to that. I got from the helpful Library staff comparable figures for Lords and Commons over the last 10 parliamentary Sessions, from 2001 to 2012. I thank Patrick Vollmer here and Paul Lester there. In that period in the Commons there were 3,078 Divisions, of which the Government lost six—one every two years. Is that holding the Executive to account? It is a farce; it is a rubber-stamp machine down there. Whatever one says about this extraordinary place, although it certainly could not withstand scrutiny by a panel of academics drawn from across the realm, at least in 1,455 Divisions we defeated the Government 425 times, or one in every three or four votes, compared down the other end with one in 513 votes. I fear that I am out of step with the majority on these Benches, but before we take this astonishingly pregnant step of electing Members to this place, we must address what is already a fundamental defect in our parliamentary system.
We are therefore between the devil and the deep blue sea. The devil would be to go ahead with election to this House without seeking to ensure that it did not become a replica of the other place. I am afraid to say that I do not see how it could fail to become a replica of the other place. A 15-year term would not counterbalance the even greater dependence on party patronage that the regional list system would necessarily involve. Those who would effectively elect to this place would comprise a tiny caucus of party faithful—all good men and women. None the less, they would adopt those of their own kind. Once here they would be ever more grateful for the party patronage that got them here, given the system of election, given that they would have been put on the list and given that they would have been given priority in the list.
Lord Reid of Cardowan
Although the noble Lord makes the point very well, he underestimates the problem because at least under the system of election at present, although there is a party influence, there are different ideas and opinions within each party constituency, so there is a degree of separation between the patronage of the leadership and local communities. Under the list system, it is completely in the gift of the party leadership. Therefore, even before someone got in here under the list system, they would already be the creature of the ideological and political leadership of the party.
Lord Phillips of Sudbury
I am grateful to the noble Lord for that comment as it constitutes my next point.
Lord Ashdown of Norton-sub-Hamdon
Before my noble friend moves on to his next point, I hope that he will allow me to make two points. Some 60% of the Members of this place are appointed here as Members of Parliament from the other end by their party leaders. That is pure patronage, not patronage which is diluted in any way by democracy. Even though he points out flaws in the democratic system, with some of which I agree, surely a system which has some contact with democracy is better than one which has none and is based on pure patronage.
Lord Phillips of Sudbury
I genuinely admire my noble friend’s courage and sense of principle in putting forward his points with such strength. However, I remind him that he put me here.
Lord Phillips of Sudbury
Hang on, I have not finished my point. My noble friend got absolutely no encouragement from me to think that I would be a good little boy and follow my party Whip night in, night out—and I bloody well don’t. I am sorry.
Lord Ashdown of Norton-sub-Hamdon
I am grateful to my noble friend for giving way. The fact that I put him here does not make the system any better; it makes it worse because I had to put him here to enable us to fulfil our functions. Although he did not give me any undertakings, I remind him that he came here to represent a party which has had this issue in its manifesto for 100 years. He must have known what was expected of him.
Lord Phillips of Sudbury
Well, headmaster, to be honest, I did not. If my noble friend had taxed me on that point, he would have realised that I was then not certain as to what my views were on election. Having been here, I am afraid that my views are now certain: I want heavy reform of this place but not direct election. He and I will have to differ on that. Of course, the place is stuffed with party patronage but we can reform in a way that does something about that and that makes this place more representative of the nation as a whole but does not destroy its two signal virtues vis-à-vis the other place. First, there is here a depth of experience of the real world, which, sadly, Members of the other place have less and less—fine men and women though they are. Secondly, we have that level of independence that is an essential counterbalance to what goes on down there, which is one defeat of the Executive every two years. We have to exist; without us the situation would be appalling. If this place were directly elected, frankly, I would have great anxiety about the possibility of there being majorities in both places. What would happen to the volume of legislation then because the manifesto theory looms large down the other end—and reasonably so up to a point? However, when you have modern manifestos of more than 100 pages for each party, packed with 1,000 commitments to every interest group in Christendom, I fear to think what could happen if these two Chambers were aligned politically. You would see an amount of legislation—
Lord Phillips of Sudbury
Timetabled and all the rest of it. Therefore, I have to say—
Lord Campbell-Savours
The noble Lord refers to two defeats in two years. However, he is conveniently forgetting that many amendments are accepted by the Government in the other House. They do not go to a Division.
Lord Phillips of Sudbury
That is true, my Lords, but many of those concessions derive from amendments to Bills made in this place, which gives the boys and girls down there a bit of leverage over Ministers. Indeed, you hear it said that a lot of the most contentious stuff in relation to education Bills, health Bills and so on, is left for us to deal with because it is then somehow easier for them to deal with it when it goes back.
As I say, these are complex issues. I repeat that I have come to a slow but certain conviction that to elect this place directly would not even be a leap into the unknown because we know what is happening at the other end and we know that the partisanship would come up here. We also know that if you had a different majority at each end, that would constitute the deep blue sea. What would happen then? The pretence that legitimacy would be retained, as many noble Lords have said, is a total figment of the imagination because legitimacy lies not in the written word but in the hearts and minds of the people of this country. It is in the eye of the beholder. If we were elected, the man in the street would accord equal credence to us as he does to those in the other place. For those reasons if for none other, I fear that I will be a steadfast resistor of election if that time comes.
Lord Lloyd of Berwick
My Lords, I agree wholeheartedly with what the noble Lord, Lord Phillips, has said about the volume of legislation. Twenty-five years ago the Acts passed in a single year could be contained in a single handy volume, which, as I have said before, one could, if so disposed, read in bed. Today, a year’s statutes can be contained only in five massive volumes, one of which I can scarcely lift. We have come to believe that legislation will solve every problem but we are wrong about that.
I wish to touch on two separate points, the first of which has not been mentioned so far. Therefore, like the speech of the noble Lord, Lord Giddens, mine may come as something of a relief from Lords reform. I refer to intercept evidence and whether or not such evidence should be admitted in court in order to convict terrorists and others accused of serious crime. The basic facts on that issue are agreed. We are the only country in the world to exclude such evidence. I have argued that the ban should be lifted since a report I wrote on the subject of terrorism in 1996. There is little doubt in my mind that the ban would have been lifted years ago but for the resistance of MI5 and GCHQ. Their case has always been that the lifting of the ban would prejudice their main purpose in life, which is gathering intelligence. However, in 2006, the movement for reform started to gain pace. Several very powerful reports were produced in that year by Justice, the Joint Committee on Human Rights and others.
In addition, there was a debate in this House in March 2007 on a Private Member’s Bill that I had introduced. One noble Lord was kind enough to say in the course of that debate that I had “demolished” the case for maintaining the ban. The noble Lord in question was none other than the noble Lord, Lord Henley—speaking, it has to be said, at some length on behalf of the Conservative Party in reply to the debate. He was teased with having changed his mind from what he had thought before. He replied—I thought with some dignity—that it was legitimate for the Conservative Party to change its mind, and that that is what it had done. I can only hope that the Conservative Party will not change its mind back again.
As a result of increasing pressure for reform, the Government appointed a committee of privy counsellors, known as the Chilcot committee—which might perhaps be referred to as the Chilcot committee number 1, to distinguish it from the Chilcot committee number 2, which has still not reported. That was in July 2007. In January 2008, the Chilcot committee came down in favour of lifting the ban, provided that certain conditions were met. The Government accepted that report and asked the committee, in effect, to get on with it. Its favoured approach came to be known as public interest immunity-plus. This has many advantages, not least that it will be consistent with the operational requirements of MI5 and GCHQ.
Then, in 2009, there came a bolt from the blue. The preferred approach was abandoned—not because of pressure from MI5 and GCHQ but because of certain legal difficulties that had come to light. The preferred approach, it was said, was not “legally viable” because of a decision of the Fourth Section of the European Court of Human Rights in a case from Finland. Since then, we have heard nothing from the Chilcot committee. On 15 December last year, I asked what was happening, and the only explanation given, again by the noble Lord, Lord Henley, was that there had recently been changes in the membership of the committee. That was five months ago. There has still been no word from the committee.
My view, for what it is worth, is that back in 2009 the Chilcot committee took a wrong turning. It gave much too much weight to the decision in the European Court of Human Rights on the Finnish case and, in order to test the legal position and get things moving again, I hope to obtain leave next week to introduce another Private Member’s Bill along similar lines as my earlier one. I am aware that the Chilcot committee has been advised by an independent QC of great distinction. I have been allowed to see that advice but, since it is concerned largely with legal matters, I hope it might be possible—with his consent of course—that that advice be made generally available before the Second Reading of my Bill, so that we can all understand the nature of the legal difficulties that are said to have arisen, and perhaps help to resolve them.
I come now to my second point, which, needless to say, is on Lords reform. I suggest that I might have something slightly different to say on that. My views have remained the same as they were in 2011, in 2007 and, even earlier than that, I think, in 2002, when we first debated this matter. I am against a mainly elected House and the 80 per cent option, but I am equally against a wholly appointed House. I am in favour of a partially elected House, such as that which was favoured by the royal commission chaired by the noble Lord, Lord Wakeham, 12 years ago, soon after the first-stage reform was completed.
The authors of the alternative report now call for a constitutional convention; and that call has been echoed by the noble Lord, Lord Foulkes, and my noble friend Lord Elystan-Morgan. The request is that the constitutional convention should,
“consider, in depth, the issues involved in further reform of the House of Lords, and to bring forward proposals”.
However, that is exactly what the royal commission did 12 years ago. All the crucial issues that would now be considered by the constitutional convention, summarised carefully for us in paragraph 5.54 of the alternative report—including, above all, the impact of House of Lords reform on the House of Commons; in other words, the primacy question that has occupied so much of our time—were considered at length and in detail by the royal commission. It offered a solution. What purpose could then be served by having 12 years later another royal commission under a different name?
So far as I am aware, there was no reference to Wakeham in the alternative report; which is hardly surprising because there was no reference to Wakeham in the Joint Committee report—or, indeed, in the Leader’s speech when he opened this debate on Thursday. This is, of course, because the Joint Committee was asked to report on the Bill and nothing but the Bill. Thus the proceedings of the Joint Committee have, if anything, tended to polarise divergent views, as we have seen, rather than find a way through. In retrospect, it may not have been the best approach.
What, then, did the royal commission recommend? It proposed that 15% of the House should be elected by proportional representation to represent the regions. In a House of 450 Members, that would produce 65 elected Members. Alternatively, with 20% elected Members, we would have 90 such Members—by a happy coincidence, exactly the number of hereditary Peers whose presence among us is still so welcome, but is also so anomalous. Nobody, I think, would argue that the presence of 90 elected Members would present a challenge to the powers of the House of Commons—more especially given that the constituencies that they would represent would be so large that they would not have to face, like Members of the House of Commons, their constituents every weekend. The primacy of the Commons would remain as it is under the existing conventions. There would be no need for a written constitution or for a concordat between the two Houses. On that view, there is nothing wrong with Clause 2, except—this is vital—that the Government have got their numbers wrong.
Moreover, a limited influx of elected Members would actually improve the quality of our debates. Here, I know that I shall be treading on thin ice, but, at present, there are in the House too many ex-Members of Parliament. In the recent two-day debate on Lords reform at the end of April, there were 37 speakers in all, of whom 22 were ex-MPs and 11 were hereditaries. We can do better than that. I accept, of course—
Lord Grocott
Perhaps I may ask the noble and learned Lord, given that he said that there were too many ex-MPs in this House, whether he thinks there are too many lawyers.
Lord Lloyd of Berwick
There are always too many lawyers, but I maintain that we could do with fewer former MPs and perhaps more elected Peers in the way that the royal commission suggested.
I accept that the Wakeham proposals, which I support, rested on a compromise—of course they did—but you will never, ever reach consensus on a disputed issue unless there is compromise on both sides. Therefore, I beg the Government to think again about the Wakeham proposals before introducing a further Bill, as I hope they will do. A 20% elected House would of course fall far short of what the Deputy Prime Minister wants but it would at least represent a step in the right direction and as such should, I suggest, be accepted by the Labour Party in the House of Commons. As the noble Lord, Lord Grocott, mentioned, it would make the House of Lords more representative but without challenging the primacy of the House of Commons.
If a Bill along those lines were introduced in the House of Commons, I would expect it to get through and, if it did, I hope that it would be accepted by your Lordships in this House. Surely that would be far better than forcing the present Bill down our throats by having resort to the Parliament Acts. Let us do something now and something more than what is contained in the Bill of the noble Lord, Lord Steel. Above all, let us not defer the decision by appointing another royal commission under a different name.
Lord Norton of Louth
My Lords, the Royal Commission on the Reform of the House of Lords was precisely that—the clue is in the title. Since then, there have been significant changes to the constitution of the United Kingdom. A constitutional convention would address the constitution holistically and not one particular part looking outwards.
Lord Lloyd of Berwick
I should be grateful if the noble Lord would indicate what changes there have been since 2012. The only one that I can think of is the progress of devolution. The fundamental questions relating to primacy which we have been discussing are still exactly the same as they were.
Lord Norton of Louth
In addition to devolution, we have had the implementation of the Human Rights Act and significant changes in relation to the European Union, to name but three.
Lord Lloyd of Berwick
I am entirely unable to see how the Human Rights Act could affect the position. Surely, if anything, it favours an elected House rather than an appointed one.
Lord Campbell-Savours
My Lords, I want to follow up and embroider upon my contribution to the debate on Lords reform which took place on 30 April. I shall concentrate on issues of primacy and, in particular, gridlock, dealt with supposedly under Clause 2 of the draft Bill.
My position is clear. I support an elected House—perhaps as a compromise an indirectly elected one. I support the thrust of the Richard report and I also strongly support a referendum. However, those of us who support an elected House, hybrid or otherwise, have to address the issue of gridlock. Until we confront that, we cannot win the argument. I have sat through four days of debate, primarily on Lords reform, and there has been very little discussion on that particular subject. Personally I am not greatly troubled by it, and my reasons are simple. The first is that I believe that the conciliation procedure, which has been referred to in this debate, will grow out of gridlock. I am not convinced that you can predetermine a conciliation procedure in advance, as such a procedure will by definition need to be finely tuned and carry the nuances and ambiguities that may on occasion be essential to deal with the sensitivities that conciliation requires. Secondly, I am convinced that a constitutional crisis arising out of gridlock will abate to meet public expectation and market movements as Parliament backs off from sustained open conflict between the two Houses.
However, the questions in my mind remain. Can we avoid gridlock? Can we protect primacy of the Commons? Can we build into reform a mechanism for controlling the pace of change as the newly elected Chamber increasingly and justifiably seeks to increase its influence? Without a written constitution, what can we do? At the moment, we have two options: a system of statutory codification setting out the powers and responsibilities of both Houses, or a series of resolutions carried in both Houses, which has been described as a concordat.
On statutory codification, it is argued that a means will be found to undermine codification in the courts, despite Article 9 of the Bill of Rights and the reluctance of the judiciary to intervene. On the concordat, it is argued that such an agreement, approved in this unelected House, could find itself tested to destruction in a newly elected House where Members claim greater legitimacy. For those reasons, I proposed in the debate on Monday, the 30th, the amendment of the oath as a constitutional lock.
The oath that we all take at the commencement of each Parliament is a solemn promise made to Parliament to show allegiance to the monarch as part of our constitutional arrangement. It is the product of a constitutional settlement and it already provides a constitutional lock on allegiance to the monarch. Similarly, we need to find a mechanism for reinforcing any constitutional settlement agreed between the two Houses prior to the election of the second Chamber—effectively, a new lock. The current wording of the oath is as set out in Section 1 of the Parliamentary Oaths Act 1866, as amended by Schedules 8 and 10 to the Promissory Oaths Act 1868, with further amendment for affirmation under a consolidated Oaths Act of 1978. The oath has a long history. It has grown out of a series of revisions and amendments over the centuries from an oath of supremacy, an oath of allegiance and an oath of abjuration to today’s oath. At one stage in our history, Members took three separate oaths. Interestingly, the oath introduced in 1829, which removed restrictions on Catholics entering Parliament, imposed limitations on the actions of Members, which is what I am advocating.
So what am I advocating? I argue that the parliamentary oath should be amended to include an obligation or duty to accept the constitutional settlement between the two Houses. The settlement would be underpinned in statute. The 1866 Act, as consolidated, would be amended and the constitutional settlement, which would include limitations on the statutory and non-statutory powers as set out in paragraphs 39 and 40 of the Richard report, would, where necessary, be defined in the legislation—that is, the Bill about to be presented to Parliament. I argue that the oath could then provide us with a constitutional lock.
I am not advocating that the newly elected House could not debate for increased powers. However, I am advocating an arrangement under which the Lords would be unable to threaten to delay, or actually delay, legislation with a view to securing greater powers. Nor would the Lords be able to bring an amendment to the constitutional settlement. Under the terms of the settlement, the process of amending the settlement could be initiated only in the Commons under its primacy. The Commons, protecting its primacy, could influence the pace of change.
What about the arguments against? We are told that Parliament cannot bind its successors, but of course that would not be the case if the constitutional settlement provided for Parliament having the right to amend, which would be the case under Commons primacy. It is argued that such a proposal would breach the freedom of speech provisions in Article 9 of the Bill of Rights, which states that,
“the Freedome of Speech and Debates … in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.
My proposal is for an internal parliamentary arrangement to be made in the form of a constitutional settlement between the two Houses, establishing a process for the handling of legislation. It is an internal parliamentary arrangement. There is no question of outside interference in freedom of speech. A summary of “The Parliamentary Oath” research paper produced by the House of Commons in 2000 states that,
“even if the entire country were to vote in a general election for a party whose manifesto pledge was to remove the monarchy, it would be impossible by reason of the present oath, and current acts of parliament, for such elected MPs to take their seats in the House of Commons, or be raised to the House of Lords, without taking this Oath of Allegiance to the ruling monarch, and to her heirs, and successors. However, there would be nothing to prevent a Parliamentary majority debating a republic or from seeking to renegotiate the constitutional settlement since freedom of speech is guaranteed by article 9 of the Bill of Rights 1689”.
So, as it stands, the lock keeps out those who are not prepared to show allegiance to the Crown. In the oath we already have a constitutional lock in practice, but that raises the issue of challenges to the requirement to take the oath.
We have the Bradlaugh v Gossett case of 1884, which involved a challenge to the Parliamentary Oaths Act 1866. The court held that the matter related to the internal management of the procedure of the House of Commons and the court had no power to interfere. We have the Prebble v Television New Zealand case in 1995, in which the Privy Council ruled:
“In addition to Article 9 itself, there is a long line of authority which supports a wider principle ... that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges”.
We then have the Sinn Fein/McGuinness v United Kingdom case. In one of the cases, Mr Justice Kerr ruled:
“The control of its own internal arrangements has long been recognised as falling uniquely within parliament's domain and superintendence from which the court's intervention is excluded”.
McGuinness, defending the interests of the Sinn Fein elected MPs, went to the European Court of Human Rights. The court ruled:
“The requirement that elected representatives take an oath of allegiance to the monarch forms part of the constitutional system of the respondent State, which, it is to be observed, is based on a monarchical model of government. For the Court, the requirement that elected representatives to the House of Commons take an oath of allegiance to the reigning monarch can be reasonably viewed as an affirmation of loyalty to the constitutional principles which support, inter alia, the workings of representative democracy in the respondent State … In the Court’s view it must be open to the respondent State to attach such a condition, which is an integral part of its constitutional order, to membership of Parliament”.
McGuinness lost.
Interestingly enough, the Northern Ireland Assembly Members do not take the oath, but they have to sign the Assembly’s roll of membership and take a pledge of office which sets out in detail requirements and obligations on Members to act in good faith, to commit to democracy, to serve all communities, to commit to participate in democratic institutions, to recognise the role of Ministers and to participate in programmes of government. Their responsibilities are clearly defined. That is my proposal. The amended oath would set out an additional requirement to accept the constitutional settlement in addition to pledging allegiance to the Crown. The oath is a solemn promise made to Parliament.
Following the last debate, I encountered, quite naturally, some hostility to the proposal that I put to the House, essentially from those opposed in principle to an elected House. However, there are those in favour of an elected House who have a more open mind. I seek an objective debate on the proposition that I have put forward.
Baroness Boothroyd
My Lords, I was most interested in the deliberation of the noble Lord, Lord Campbell-Savours, particularly his reference to the oath of allegiance and to Sinn Fein taking the matter to the Court of Human Rights. I was the Speaker in the Commons who ruled against Sinn Fein coming into the Commons. They took my ruling to the High Court of Northern Ireland and to the Court of Human Rights and they failed. I hope that the noble Lord will forgive me if I do not follow his very detailed examination, as I have a very simple message to put to the House and to place on the record.
If I had any doubts about my refusal to destroy the way that this House serves Parliament, the noble Lord, Lord Strathclyde, put them to rest in his remarkable interview with the Financial Times on the eve of the gracious Speech. The Leader of this House rated the Government's chances of reforming the Lords at no more than 50:50—hardly a clarion call to set the pulses racing. But my eyes popped out when I read on. He warned that an elected second Chamber could be more aggressive than your Lordship's House; that it could frustrate key pieces of legislation; and that it would be more expensive to run. The Financial Times was so taken aback that it said that the noble Lord's comments seemed almost calculated to further incite MPs to oppose reform. I agree. His message to the Commons was clear: proceed at your peril. I applaud his frankness and I agree with him.
If the new Bill is passed, however much it is dressed up, it will destroy this House as a revising Chamber and replace it with a wrecking Chamber. From my non-partisan observations of both Houses over the past 20 years, the Government stand no chance of getting a consensus on this measure from both sides in either House, let alone within the 10-week timeframe which they seek.
Indeed the coalition shows every sign of wanting this thorn removed from its side as quietly as possible and with minimum risk to its unity. The signs of retreat are already visible. The blame game for the impending fiasco has already begun. The Prime Minister's lukewarm comments in the Commons debate on the gracious Speech underlined the weakening of the Government's resolve. Mr Cameron talked about how good it would be if there were,
“a smaller House of Lords and if it had an elected element”.—[Official Report, Commons, 9/5/12; col. 23.]
That is two “ifs” that leave many questions unanswered.
Until the fog lifts, the noble Lord, Lord Strathclyde, can be counted on to fight a rearguard action bravely and with his usual panache. If I may say so, his first shot at consensus was almost quixotic. After appealing for all-party agreement, he pitched into the Opposition, whose support he seeks. He accused the Labour Party of “conniving and collective spinelessness”. How about that? He said that he could already detect their spines quivering. I have to confess that mine quivered at his audacity. We all know where we are coming from, but what matters is where we are going.
The Government know that the country is not listening to them. The majority of ordinary people do not care about parliamentary reform and novel ideas of governance. Outside Westminster a consensus already exists about what really matters: jobs, homes, education for their kids and their quality of life. Messing about with the constitution does not bring about consensus out there.
However, the coalition ploughs on. The Liberal Democrats have 1911 written on their hearts. Never mind that voters rejected AV last year by a majority of 7 million votes; and never mind this month's overwhelming vote against directly elected mayors in nine of the 10 cities that held referendums across England. A million people voted. More than 600,000 of them said no. Ministers do not need their media contacts and special advisers to tell them what is going on.
The Westminster drama of Lords reform has been running for as long as “The Mousetrap”, but it has no relevance outside. Most people are already detached from politics. Very sadly, apathy is rife and growing. The turnout in elections is about one in three and will stay like that until the political parties reconnect with ordinary people and reflect their views and their priorities in life.
The French had an 83% turnout in their recent election because they cared about the outcome. We have not matched a figure like that in our general elections for 60 years—since 1951. After the AV referendum, the Prime Minister said that the coalition would get back to governing in the national interest. He was contrite again after the local elections about the Government’s remoteness from public opinion. He said that he had got the message. I doubt it. Still they press on with the most contentious and irrelevant legislation in the gracious Speech. The Prime Minister said that,
“it is perfectly possible for Parliament to do more than two things at the same time”.—[Official Report, Commons, 9/5/12; col. 23.]
Mr Clegg, his deputy, said:
“The historic mission of liberals is to stand up for ordinary people against vested interests”.
By that, he obviously means us.
Simon Hughes MP, who speaks for the Liberal Democrat grass roots, urged Tory MPs to support Lords reform in almost desperate terms. He acknowledged in the Commons that your Lordships’ House was a lovely place. He was kind enough to say some of us, too, were lovely. But he urged Tory doubters,
“come on, guys: we have to move on”.—[Official Report, Commons, 9/5/12; col. 48.]
And so do we, and so do the Government.
Apparently the new Bill is still being drafted, with some difficulty. The noble Lord, Lord Strathclyde, admitted that the Conservative Party was visibly split. Clearly, the Labour Party is in no mood to help out, and the Joint Committee that examined the draft Bill asked pertinent questions that can no longer be dodged. Senior Ministers in the Commons cannot escape their responsibilities by running away from the mess that they created and leaving it to Parliament to clear up.
The Chancellor of the Exchequer, Mr Osborne, had the gall to tell the BBC:
“Parliament can discuss these issues. Parliament’s very good at discussing constitutional issues”.
So we shall, but we shall not be bounced.
The coalition’s misbegotten intention remains what it was from the start—to abolish this House, jeopardise the primacy of the House of Commons and throw a spanner in the constitutional works, while the perpetrators saunter off claiming that it is not their fault.
Mr Clegg instructed us:
“Instead of getting ourselves tied up in knots in Westminster about this, we just need to get on with it”.
The Government’s draft Bill is tied up in so many knots that it would take Houdini to untangle them. Mr Cable, the Business Secretary, said that we should get on with it “quietly and quickly”.
I for one will do no such thing. I will not connive with the abolition of this House to suit the partners in a temporary coalition. I shall support sensible reform, in favour of which I have already spoken many times in this House, outside it and in the media. But I will not be a party to the wrecking of Parliament—and nor, I trust, will the House of Commons.
Baroness Knight of Collingtree
My Lords, what a privilege to follow my noble and very true friend Lady Boothroyd. She was one of the most remarkable Speakers of the House of Commons that I ever sat under. Her reputation and knowledge were so impressive, and we are all fortunate to have in the House two former lady Speakers. We heard from the noble Baroness, Lady Hayman, and now we have heard from the noble Baroness, Lady Boothroyd, with whom I share quite a past. We both trod the boards, as it were, some years ago—although not the same boards and not quite at the same time. Perhaps that always gave me great fellow feeling with the noble Baroness. I salute her and I agree very much with her position on the Bill.
I cannot for the life of me comprehend how the Lords reform Bill ever came within a country mile of the Queen’s Speech at this time. The electorate have no interest whatever in it and have never demanded it. They are shocked that parliamentary time will now be tied up for weeks and months while the country is in a financial mess and real people have real problems in their real lives. Not a scrap, jot or tittle of what is in the Bill will help a single one of them.
Unless we are stone deaf and totally blind, we cannot have missed the marches, chants and flags of demonstrators just across the road outside this building. Almost on a daily basis, and not just for the past couple of years but for many years, they have gone on telling us about their problems. Currently there are problems with the police, pensions, education and health. They are among a whole raft of matters that occupy voters’ minds at this time. Has any noble Lord seen a single banner waved or heard a whisper of a chant from Joe Public asking for Lords reform? The silence from noble Lords who have heard such things is deafening.
Apparently there can be such a thing as a supporter of the Bill who talks about his support coming from a love of democracy, and from the fact that the House is to be democratised—yet at the same time he does not seem to worry about finding out what the people want. Supporters of the Bill are very loud in their claims that they are the true democrats who seek democracy. The recent referendum was referred to, in which the voters—as the noble Baroness, Lady Boothroyd, reminded us—made it absolutely clear that they did not want any change in the system of voting. So why does the Bill, supported by all these democrats, thumb its nose at the people’s expressed wish and force them to accept it in the matter of Lords reform? A fat lot of democratic activity there is in that—or in the extraordinary belief that by some nifty rule that is not in being yet they will be able to ensure that although the Members of the Lords will have to fight and win elections to get here, they will not have the same rights over the passage of legislation as Members who are elected to the Commons. What is democratic about that?
As was said, we always yield to the will of the Commons. The people outside do not always recognise that. How can they call us undemocratic when in our work we always bow our heads to the fact that the House of Commons is an elected House?
It has fascinated many of us to see the way in which Members of the Commons have gradually changed their view on the Bill over the past few months. They did so because it dawned on them loud and clear that if the Bill goes through, they will lose their primacy; there is no question about that. It does not make sense to imagine for a moment that we would accept or that there would be even a tiny modicum of agreement about this. If, God forbid, we should ever be elected, we would have to be allowed to vote. If the electorate gave us the right to do so, why should we not?
I am concerned, too, that supporters of this Bill do not seem to have made any effort at all to find out much about this House. I asked Mr Clegg, when he came to one of our Committee Rooms to speak, if he realised the breadth and depth of the knowledge that many of the Peers here were able to bring to our deliberations because they had so much experience. Bless my soul—he assured me airily that MPs were just as clever. I have no doubt that there are lots of very clever people in the Commons, but that is not the same as having had a lifetime of experience. You can have youth and cleverness, but youth and experience cannot sit together: it is a contradiction in terms. The fact is that we are able to receive advice from people such as admirals and generals on service matters, diplomats and ambassadors on foreign affairs and top doctors and nurses on health. I could go on but I will not. You all know what I mean—that the wisdom which a lifetime of experience teaches us is available freely from this place. That is a great benefit to our country.
However, it becomes daily more apparent that such people will not stand for election. Why should they? Why take on a load of constituency duties, which as many here will know, are extremely heavy? One has to have surgeries and visit schools, hospitals and factories. You must plant trees and lay foundation stones. You must speak at meetings. The list is endless. You can forget altogether about having any free time at weekends. Why ruin a peaceful retirement to take on a life like that?
Next, I asked the Minister, Mark Harper, what cuts in expenditure and from precisely which department he was planning to obtain the very large extra amount that it would cost to pay the elected Peers. Noble Lords will not believe this, but it is true. He said that our daily allowance was about the same as the amount that MPs were paid. I dropped my jaw at that happy statement. He seemed to have absolutely no idea that we could claim only for the days when we were seen in the Chamber—even the Corridors will not do, we must be in here. That is not a rule that applies to MPs, I promise you. An MP is paid not a bad salary on the whole whether he is there or not. Mr Harper did not know that. Why was some effort not made to find out a little more about what our House is and does?
Apparently, it had not occurred to Mr Harper that with a new load of constituency work, we would have to be provided with full-time secretaries and various other help. I heard the other day that nowadays in the House of Commons, because of the e-mail system of contact for MPs, an extra PA has to be employed to make sure that the person writing to the MP is in fact a constituent. That never happened when I was in the Commons. Can you imagine how expensive that is? If you are going to saddle Peers with constituency duties, the cost of all that back-up, never mind the cost of the extra salaries, will be very heavy. Surely the elected Peers would not be the only ones to be paid. The unelected ones would have to do an awful lot of committee work to make up for the others who will be busy in their constituencies. It would be a colossal mess if it ever came to be.
I am sorry but I have something to confess. I regret to say that my noble friend Lord McNally, ever ready with a merry quip or jest, severely tested his political friendship with me when he claimed that those of us against the present Bill were just smug about the good that was done here. He seemed to be saying that we were smug lot. I can assure him that because we recognise that many Bills sent to us for scrutiny are indeed improved by our amendments, that does not brand us as smug. I wonder what he thinks of the QC who wrote recently to the Times. He said that his work often requires him to peruse Hansard when having to deal with a complicated piece of legislation. Perusing Hansard, had taught him that,
“the quality of the debates in the Lords is vastly superior to the quality of debates in the Commons”.
He went on to say that he valued the specialist knowledge of Members of the Lords because they are able to deploy that knowledge together with the absence of party politics. Is that is a smug comment? It is a very real comment.
That is one reason why I value so much, as so many of us do, the Cross-Benchers in this House. They contribute so much, not only from their knowledge and experience, but from the fact that they are Cross-Benchers. Nobody ever quite knows which way a Cross-Bencher will vote. That is what it is all about. That is a good answer. They will go because in order to get elected you have to have a powerhouse of party behind you. In all the years—it is now nearly 50—that I have been in one part or another of this House, I only ever remember two in the other place. One was a famous television reporter who wore a white suit, as I recall, and the other came about because his hospital was very much loved in his local area and he campaigned on that one issue alone. But it is true that without the power of a political party behind you, it is virtually impossible to get elected. So many of us recognise that what we gain and what our country gains from our Cross-Benchers is certainly worth saving.
I am not saying for a moment there is no need for some reform of this House, but not in the way that is before us here. Instead of pursuing the Bill as drafted, why not deal with the numbers question? We all know perfectly well that there are certainly not 800 Peers working daily here, but that is what the press print and that is what the public believe. Why not consider adopting, for instance, a policy that non-attendance for more than a set period would automatically mean retirement? We all know many Members of the House who it would be lovely to see now and then, but we never do. Why not recognise that instead of saying they are Members and that is one of the reasons why something must be done about us? If we adopted a system like that, we would be down to 300 or 400 in no time at all.
The threatened Bill before us was born out of ignorance; it has never been costed, justified, demanded or thought through. It would deprive Parliament and quite needlessly burden the taxpayer. It must not pass.
Lord Davies of Stamford
My Lords, this has been a stimulating and, from my personal point of view, instructive debate. The noble Lord, Lord Wallace, in our debate on this subject just before Prorogation, said in his rather world-weary way that he had not heard any new questions being put and implied that it was something of a failure on the part of those who have problems with the Bill to come up with serious objections to it. I think the problem is the other way around. So far, we have not had anything like enough answers. If the Government feel that some of the objections that are being raised are not valid, it is up to them explicitly to take the time to refute them, and if they cannot do so, to recognise that it is necessary to think again and come back with something better. It is only on that basis that we will make any progress on this particularly difficult issue.
I have always been a supporter of a 100% democratically elected House of Lords. I have taken that line throughout my political career. I have spoken along those lines in another place, but hitherto I have not had an opportunity to do so in this place. I voted along those lines in the House of Commons whenever I had the opportunity. I can also remember speaking along those lines to Gordon Brown both before and after he was Prime Minister, so I have a consistent record. But I could not possibly support the Bill that is now before the House. Indeed, I read it with complete astonishment as it seems to be deeply flawed. It is flawed in three places, or perhaps more, but certainly in three places it is in glaring contradiction with its own principles. That is a very serious weakness in a Bill and it would be a great mistake on our part if we put it on to the statute book. Clearly I need to justify that statement, and I intend to do so.
Let us take, first, a membership of 80% elected and 20% appointed. It is clear to me that you cannot have it both ways. Either democratic election is necessary for political legitimacy, which is the argument behind the White Paper and the Bill, or it is not. You cannot say that it is a principle that must be applied to some people but not to others, that democratic legitimacy can only be conferred on me by election, but on my noble friend Lord Campbell-Savours it does not have to be conferred by election. You cannot possibly have a so-called “universal principle” which is selectively applied. In putting forward that idea, the Bill destroys its own argument and we should not proceed on that basis. It is entirely unjustifiable.
The practical point of view—if noble Lords think that that is a theoretical point, it is actually very important to get the theoretical points right and get our thinking clear on this subject—is whether we in this place, either elected or nominated, would rival in some way members of the House of Commons in their constituency functions. Another point made the other day at some length and with a lot of quotations by the noble Lord, Lord Wallace—and there is a widespread view in this country to this effect—was that the British public have lost faith in their institutions and have lost confidence in their politicians and people in public life, and that we need to do something about it. His suggestion was that we need this Bill in order to do that. Can you imagine a situation in which you introduce a Bill to have 80% of people elected to the House of Lords for a 15-year term who then, as the Government think will happen, refuse to take up any personal or local cases brought to them by their electors? Presumably they would say to those who had elected them, “Thank you for electing me, it was very good of you. But actually I have a 15-year term and I cannot stand for re-election, so you can get lost”. If we behaved along those lines, can anyone in the House think of a way more calculated to reinforce any cynicism there may be about people in public life or encourage a greater degree of rejection of our institutions and of us individually?
The second problem I have with the Bill has already been referred to by several other speakers. Clause 2 suggests that there would be no change in the constitutional position or the powers of the House of Commons if we became an elected or a largely elected House. This is a matter of elementary logic. If you define the qualities or status of something in relation to something else and you change the something else, you change that status and those qualities. If it be the case, as Erskine May says and as the White Paper argues, that the House of Commons is special because it is democratically elected, and then if the second House in our legislature becomes democratically elected, clearly in that respect the House of Commons would no longer be special. To recognise that is a matter of simple logic and honesty, otherwise one is in the business of promulgating an intellectual dishonesty. It is just like saying that everybody can have priority; for example, that everybody in this army can be a general but we will not change the concept of a “general”, or that everybody can go first class on aircraft or in trains but we will not change the concept of “first class”. However, you would be changing the concept of first class or generalship, and it is dishonest to believe otherwise.
There is a third area in which the Government seem to be in contradiction with themselves, and that is in relation to a referendum. I cannot make out what has happened to the Liberal Democrats on this because they fought the last election, as we did, saying in their manifesto that they were in favour of a referendum on this subject. Now, as part of the coalition, apparently they are no longer in favour of a referendum on a House of Lords reform Bill, and the Deputy Prime Minister goes around saying that he does not think that one is necessary. I also have a consistent record throughout my career of not liking referenda. My very first political campaign, which I enjoyed taking part in and am very proud to have done so, was the 1975 referendum on our membership of the European Community, as it was then called. But even at the time I personally regretted that that decision was taken by a referendum and not by Parliament. However, it would be less than honest not to recognise that over the past 30 or 40 years, the constitution of this country has evolved and there is now a general acceptance that major constitutional Bills cannot simply be passed through Parliament, as has happened down the centuries, but that they require a referendum. That would be the case if we left the European Union or, I think by universal agreement, if we joined the euro. Over the past few decades it has always been the case for devolution.
Moreover, noble Lords will recall that we have had referenda on much more minor issues like whether to have elected police commissioners or mayors. We had the referendum on AV last summer. It is really quite extraordinary that we now have a proposal to make a major constitutional change without a referendum. I think that that is very suspect and curious. What is more, it comes just a few months after we voted through the Europe Bill. The noble Lord, Lord Wallace, and I spent some time debating matters on that Bill which, as I recall, provided for 39 different circumstances in which there could be a referendum in this country, some as relatively trivial as changing the rules on the appointment of the Court of Auditors at the European Commission. That Bill is now an Act—a very bad one, in my view, but I will not go into that now—that provides for the possibility of referenda on extraordinarily trivial subjects, yet we are told that we cannot have a referendum on House of Lords reform. That is an inherently incredible and unbelievable situation. It would be very suspicious and everyone in the country will ask, “Why is there this inconsistency?”.
This is the moment when one is right to remember the famous question put by Lenin. I emphasise that I am not a Marxist-Leninist. Indeed, unlike my noble friend Lord Grocott or a number of other people in this House, I cannot say that I have always been in the same party, but I have never been in a Marxist-Leninist party. Lenin had a point when he said the key question to ask about any proposal was, “Who, whom?”— “Kto kogo?” Who benefits and at whose expense? I think that people up and down the country, given this extraordinary dog’s breakfast of a Bill, with its mass of self-contradictions and breach of its own principles, will naturally ask that question. They will ask who had the incentive to bring forward this extraordinary legislation at the present time. The answer to that is quite obvious: it is the Liberal Democrats. We all know that the Liberal Democrats have dreamt for decades of introducing proportional representation for House of Commons elections, which would give them the balance of power in the House of Commons for the rest of time and therefore leverage and lien over, and probably membership of, every Government for the rest of time. It is clear that they have now despaired of introducing PR nationally; after the AV referendum, they despaired even of getting something in the direction of PR nationally; so this is now the next great agenda. The idea is that, since they cannot do it with the Commons, they should improve the standing of the Lords vis-à-vis the Commons by making the Lords directly elected, as will inevitably happen, and making sure that, through PR, they get their permanent blocking minority in the House of Lords for the rest of time. It is a very simple agenda, and I can see that it is very alluring for the Liberal Democrats. They see it as much more important than any individual piece of legislation that might go through in this Parliament; this is the long-term, historic prize; this is the great existential change for the Lib Dems if they can achieve it—and what a wonderful opportunity, being in coalition with the Conservative Party which is dependent on them for survival, to get this through. I think that that is really what it comes down to. I cannot believe that, without such an agenda, anybody would have come forward with such a self-contradictory and messy Bill.
I am worried that, if we proceed on this basis, there will be exactly what the noble Lord, Lord Wallace, predicts; that is, increasing cynicism on the part of the electorate about our priorities, the way we do things and how we cook up initiatives. It will be widely seen that this fundamental change in the constitution, accompanied by all these anomalies, is going through because it meets a party-political agenda. That will be seen as extremely squalid and, I fear, contribute to exactly the disease which the noble Lord, Lord Wallace, described the other day.
Lord Rennard
My Lords, in the debate on the gracious Speech two years ago, I made the mistake of beginning by discussing the fixed-term Parliaments proposals, only to find to my great surprise that a principle that had been in the Labour Party manifesto had suddenly become the subject of such passionate opposition from the Labour Front Bench that I was intervened on some six or seven times in as many minutes. I may be about to repeat that mistake by attempting to respond to some of the points made in this debate about the future of your Lordships’ House. I hope then to make a few remarks about electoral registration.
There has been much debate about the future of this House since the much quoted Parliament Act 1911, which followed the controversy over this House blocking what became known as the “People’s Budget” when a Liberal Government, with Lloyd George as Chancellor, first introduced the old-age pension in the face of great opposition from the largely Conservative hereditary Peers who were of course Members of the House at that time. It has been said many times in this House that the House of Lords merely revises legislation and invites the other place to think again. Many of those most opposed to reform frequently say that this House does not block the will of the elected House. However, in many ways, the current controversy about the future of this House goes back all that time to the attempts to block the introduction of national insurance and the old-age pension. These came not long after Gladstone’s attempts to introduce home rule for Ireland.
Lord Rennard
I defer to the perhaps greater knowledge in this respect of the noble Lord, Lord Norton of Louth. However, I recall seeing the paintings of the debates in 1893 that hang outside the Bishops’ Bar. I thought that it was at that point that the House of Lords was blocking home rule for Ireland.
Lord Norton of Louth
The first home rule Bill was blocked in the House of Commons, not the House of Lords. The House of Lords under the Liberal Government had let through such matters as old-age pensions. Those matters which were clearly popular outside, it let through.
Lord Rennard
I think that Lloyd George in his many arguments against the hereditary basis of the House of Lords felt otherwise as he tried to introduce radical legislation.
Turning to more recent times, I would dare to suggest that opposition to the Government’s legislative programme in the past two years has often gone well beyond polite exhortations to the Commons to reconsider. This House has real purpose and real power, even if limited today to the significant power to delay non-financial matters. The power to delay can in practice often be the power to prevent.
The issue of legitimacy for this House to exercise its powers has been debated for more than 100 years. It is frequently suggested that we may now be moving too rapidly to conclude that debate. As I have said previously, it is probably only in this place that a Government intent on proceeding with a principle contained in all major party manifestos and introducing a phased programme of democratic reform over about 15 years could be accused of acting with “undue haste” with only a mere century of deliberation so far.
Proposals for reform appear to have shocked many noble friends to my left in this Chamber—I do not mean to my political left, of course—as well as a few around me. Some of those around me should recall that we have two words in our party title. The first word is “Liberal”, which takes us back to the party of Lloyd George and Asquith and that fight to end the hereditary principle and, at least in Asquith’s case, to replace it with the popular principle for membership of the House.
Lord Cormack
My noble friend will of course remember that both Lloyd George and Asquith accepted hereditary peerages.
Lord Rennard
Indeed they did, and some of us accepted life peerages. Some of us who I know were strong supporters of the principle of democracy and elections to this place accepted peerages because it was the only way in which we might have a voice in these debates and eventually a vote to support those principles.
For Members around me perhaps looking for a little further guidance as to where our party should be on this issue, I suggest that there is a clue in the second word of our party name, “Democrat”. I take a simple view about the nature of representative democracy: I strongly believe that those who approve the laws should be elected by those who have to obey them.
As for noble Lords who take a more Conservative position, I understand that it took a long time for their predecessors to accept such principles as the universal franchise, the secret ballot and the abolition of rotten boroughs, but I might remind them of what their party has said in more recent times. Under the leadership of Mr William Hague in 2001, the Conservative Party manifesto stated:
“We would like to see a stronger House of Lords in the future, including a substantial elected element”.
Under the leadership of the noble Lord, Lord Howard of Lympne, in 2005, the Conservative Party manifesto said that,
“proper reform of the House of Lords has been repeatedly promised but never delivered … We will seek cross-party consensus for a substantially elected House of Lords”.
In 2010, the manifesto on which 307 Conservative MPs were elected stated:
“We will work to build a consensus for a mainly-elected second chamber to replace the current House of Lords”.
Lord Cormack
I know that my noble friend likes to be accurate, so would he acknowledge that in 2007, when another place voted on these proposals, more Conservative Members voted against the party’s official policy of 100% elected than for it? That policy, enunciated in manifestos, has been repeatedly repudiated by the majority of Members of the Conservative Party.
Lord Rennard
Indeed, but the question must be put as to why the party stood on that manifesto in 2010 as clearly and unequivocally as it did. The Conservatives stood on that basis over 10 years, with three manifestos— whether there would be a substantially or predominantly elected element or changes to the House of Lords. It was on that basis that they were elected. That is a matter for others to judge them on.
It will be to the relief of the House that I will not quote every Labour manifesto on the subject of House of Lords reform. The noble Lord, Lord Grocott, tried to refer to 11 of them in brief. I will quote just one, which happens to be the one on which the last Labour Government were elected. I am sorry that the noble Lord, Lord Grocott, is not in his place. He suggested that whenever the Labour Party advocated Lords reform, it lost. I seem to recall that the Labour Party won the 1997 general election, and did so decisively with a majority of 179.
Lord Falconer of Thoroton
My recollection is that we also won in 2001 and 2005. I think the noble Lord said that it was the last time that we won.
Lord Rennard
It was the beginning of the last Labour Government. The manifesto said in 1997 that,
“the House of Lords must be reformed ... to make the House of Lords more democratic and representative”.
In particular, the 1997 Labour manifesto said that,
“the legislative powers of the House of Lords will remain unaltered”.
Lord Davies of Stamford
I am grateful to the noble Lord for giving way. I have noticed—as has the whole House—that he has not attempted at all in his remarks to contest my hypothesis that the Lib Dem party is, in this matter, pursuing an entirely selfish party-political agenda. While we are quoting manifestos, can the noble Lord explain to the House why the Lib Dem party appears to have abandoned its commitment in favour of a referendum on this issue, which was certainly in its most recent general election manifesto in 2010?
Lord Rennard
With the greatest respect to the noble Lord, there was absolutely no promise of a referendum on the issue of Lords reform in the Liberal Democrat manifesto in 2010. I believe in representative democracy. I think there are many problems with referendums, as I shall elaborate. The Liberal Democrats did not promise any such thing in 2010.
In answer to the noble Lord’s basic premise that the Liberal Democrats are acting out of pure self-interest in this matter, I point out the major flaw in his argument. In common consensus around the Chamber tonight, we have talked about there being perhaps 400 or 450 Members of this House who are particularly active. I draw noble Lords’ attention to the fact that there are now 90 Liberal Democrat Peers. That is not far off some 23% of the active membership of this House. I also point out to noble Lords that many people who talk about the effectiveness and work of this House have said that it is effective because no one party has an overall majority. No one party has an overall majority if you have a system of proportional representation.
Lord Rennard
I will give way to the noble Lord in a moment. It is not inconsistent for the Liberal Democrats to argue that there should be a system of proportional representation for electing Members of your Lordships’ House to prevent there being a majority for one party in both Houses at any one time.
Lord Norton of Louth
I am sorry to interrupt my noble friend again but, on a point of detail, there is a system of proportional representation in Scotland and Scotland now has a majority Government.
Lord Rennard
Indeed it has. That is because the Scottish National Party secured almost a majority of the votes. My noble friend serves also to remind me of the other flaw in the argument advanced by some noble Lords during this debate that proportional representation would mean that the Liberal Democrats were permanently in government. That was suggested a few moments ago. As the noble Lord, Lord Norton, said, we have PR in Scotland and Wales and the Liberal Democrats are not in government there. That does not follow.
Lord Norton of Louth
It does if you look at the proportion of votes that the party gets in the whole of the United Kingdom, focusing on England.
Lord Rennard
I simply think that PR is a matter of democracy and we need democracy within this House.
Given the Labour Party’s recent history on House of Lords reform, I am surprised by this new-found enthusiasm for a referendum on the issue. I note that that was in the Labour Party’s manifesto in 2010 but not previously. In the 1996-97 period, leading Liberal Democrats such as my noble friend Lord Maclennan of Rogart, together with the late Robin Cook and other noble Lords and Baronesses—some of them present in the House tonight—agreed a fundamental reform of the House of Lords in the event of the Conservatives losing the 1997 general election. There was no suggestion that there should be a referendum on the proposals. It seems that if there is to be a referendum on the issue it would be because parliamentarians in the other place have failed to do the job that they were elected to do.
I would like to refer briefly back to the report on referendums—
Lord Cormack
How does my noble friend square his championing of the referendums for electing mayors of our cities and for AV with resolutely being against a referendum for the biggest constitutional change in the composition of our Parliament that we will have seen for over a century?
Lord Rennard
My noble friend and other noble Lords will never have heard me argue the case for referendums for mayors. Noble Lords present during the debates last year on the Localism Bill will have heard me express strong reservations about referendums. There are often major problems with the conduct of referendums. The only exception I have thought of to my general belief in representative democracy above referendums is that the system by which Members are chosen in the place that has primacy should be chosen not by those Members themselves but by the voters.
A number of noble Lords have suggested this evening that electors a year ago chose first past the post and rejected proportional representation—that was the implication of a number of arguments. I remind noble Lords that the option of proportional representation was never offered to the voters last year because noble Lords from other parties and Members of another place were too fearful that people might decide to have that system rather than first past the post.
Lord Campbell-Savours
Is not one of the advantages of a referendum on House of Lords reform that, if the vote is won in favour of reform, Parliament is then locked into that decision? Parliament would find it very difficult to say no when the people have said yes.
Lord Rennard
I agree that it would be difficult for Parliament to say no in that event. I do not totally rule out the idea.
Let me first refer the noble Lord back to the report on referendums by your Lordships’ Constitution Committee. In the debate in this House on that report, it appeared to be generally agreed by almost all noble Lords present that referendums should be rare and that there were significant problems with holding them—not least the propensity of the electorate to vote in response to a different question from that which appeared on the ballot paper. However, the report concluded that it would be appropriate to hold a referendum if abolition of either House of Parliament was considered. It is probably on that basis that some noble Lords consider the justification for a referendum. Yet when we look back to the 1911, 1949, 1958 and 1999 Acts, they were never considered to be Acts of abolition, even though they significantly changed both the powers and the composition of the House.
Gradually reforming composition does not amount to abolition. The draft Bill and the proposals of the Joint Committee suggest a transitional period that would not be complete before 2025—some 114 years after the 1911 Act and 15 years after all main parties promised in their manifestos to work for such an outcome. Ending the hereditary principle, removing patronage from party leaders and allowing people to choose their legislators do not amount to abolition of this House, so I do not see any case for a referendum before 2015. In the mean time, I believe that in 2015 we should begin the first phase of real reform by electing a small proportion of the membership of your Lordships’ House and finally ending completely the hereditary basis for membership. There may be more of a case for a referendum later, on proceeding to the second or final stages of reform.
I also want to address briefly another important constitutional issue in the gracious Speech—
Lord Hunt of Kings Heath
Can the noble Lord clarify that? Earlier in our debate, the proposition was made that the coalition is now considering a new option, which is essentially to go for a small number of elected people in 2015—rather following the Wakeham and Irvine proposals at the beginning of the previous decade—and then pausing to ponder whether we move on from that position, perhaps by referendum. If the noble Lord is saying that, it is important, given that he speaks with a great deal of authority on those Benches.
Lord Rennard
My Lords, I hope to speak with authority, but I have to say that I speak for myself on this issue. It is logical that if we were to consider a reform which meant that 92 hereditary Peers were no longer Members of your Lordships’ House—which was of course the aim of the 1999 legislation—and if, for the sake of argument, we were to elect 120 Peers in 2015, that would not be a great change. It would not be revolutionary and it would not justify a referendum. We might consider it at some point in the following Parliament—perhaps on the same day as the country was voting in the European elections in 2019, to minimise the cost of a referendum. Then, when people saw the House working effectively without an hereditary element—although I have great respect for many hereditary Members of this House—with a small elected element of, say, 120 Members, that would not be dissimilar to the initial proposals of the commission of the noble Lord, Lord Wakeham. We could then say, “That is how it is working. Do you want to proceed with the remaining life Peers going in phases and a wholly elected House?”. We could vote on that at some point. Complete change is abolition of this House. I suggest that if we were proceeding along that way by 2015, there would be no need for a referendum before then.
I have spoken a number of times about the important issue of individual voter registration. I would like to say little about that as it was also referred to in the gracious Speech, but I will be brief. It is of considerable importance in all elections that we have a complete and accurate electoral register.
Lord De Mauley
My Lords, despite the fact that my noble friend has been intervened on several times, I hope that he has his eye firmly on the clock.
Lord Rennard
I have indeed. I have lost about 30 seconds, but I will not worry too much about that. I simply want to say that I welcome the change in approach by the Government since the publication of the White Paper, which originally proposed treating the list of people entitled to vote as little more than an optional mailing list to which people could subscribe if they could be bothered. The principle that it should be a legal requirement to be on that register, subject to a fine if you do not comply with a registration officer’s request to be on the electoral register, is long established, going back to 1918. Labour and Conservative Governments have subsequently significantly increased the fines for not complying with the registration process. Relatively recently, we have had the implementation of individual electoral registration in Northern Ireland maintaining the principle of a fine of up to £1,000 if you do not comply. I simply draw the attention of the Minister to my view that we would need to see the detail and secondary legislation of exactly how new civil penalties might be applied in the registration process before we can say that we support the principle of the Bill. Finally, I believe that that Bill may also be an opportunity to have a proper debate about how we can increase turnout, make it easier for people of working age to vote, and reduce inconvenience for schools and families by properly considering weekend voting.
Lord Armstrong of Ilminster
My Lords, I am not proposing in this debate to rehearse yet again my proposals for the reform of the composition of this House. On two previous occasions in this Chamber I have set out ideas for the composition of a reformed House. Those ideas were also set out in a memorandum of evidence which the right honourable Frank Field MP and I submitted to the Richard committee, the Joint Committee, and which is published in the appendix to that committee's report.
My concern today is with questions of procedure and process. The Government’s draft Bill seems to be founded on a syllogism: parliamentary law-making bodies should be elected by universal suffrage; the House of Lords is a parliamentary law-making body; therefore, the House of Lords should be elected by universal suffrage. That syllogism has a beautiful simplicity, but it does not stand up to the complexities and challenges of real life as it is lived.
What is deficient about that syllogism? First, there are numerous examples in other countries of parliamentary systems which work satisfactorily with second Chambers whose Members are not elected by universal suffrage. Secondly, in our system it is questionable whether the House of Lords is rightly to be regarded as a law-making body for these purposes. In this House we can propose laws and we can propose to revise laws; but under present arrangements at the end of the day we can be overridden by the other place. We cannot by ourselves make laws. We can propose, but the House of Commons has primacy and can dispose. Laws can be made only by and with the consent of the House of Commons, which is of course elected by a process of universal suffrage. As I read somewhere recently: “The Lords isn’t really a legislature, so why don't we cease fretting about its composition?”. I do not go quite as far as that.
Thirdly, even the Government’s draft Bill responds to the widespread view that there is merit in retaining an element of appointed and non-elected independent Members in the second Chamber. Only the Opposition can now claim the purity of calling for 100% directly elected Members.
Mr Tony Blair, who accepted in principle the need for House of Lords reform, was wont to say that it should depend on achieving consensus. There have been statements from government sources in recent days which have stressed that progress depends on consensus. The Prime Minister himself said last Wednesday,
“this is only going to proceed if the political parties will agree to work together and take a responsible attitude towards this reform”.
He then said:
“If we are going to achieve this reform, we will have to work together across the parties to try to deliver what I think will be progress for our constitution”.—[Official Report, Commons, 9/5/12; col. 23-4.]
That could perhaps be described as enthusiasm tempered with statesmanlike moderation and caution.
If discussions in both Houses of Parliament in recent weeks have made anything clear, it is that the prospects of meaningful parliamentary consensus on the proposals in the Government's draft Bill are not 50:50, they are infinitesimally small. The heart sinks at the thought of the hours, days and weeks that will be spent, first in the other place and then, if the Bill survives there, in this House, debating the details of the Bill, as the noble Baroness, Lady Hayman and the noble Lord, Lord Jenkin, said, generating much political sound and fury but getting nowhere in achieving meaningful consensus.
Some of the participants will no doubt enjoy the fun; but the public, whose reaction to the subject of Lords reform can be summed up as an uninterested and uncomprehending yawn, will wonder why their representatives are not using the time for measures which address the problems which matter to them.
As the noble Lord, Lord Foulkes, pointed out, the reference in the gracious Speech to this proposed legislation gives the game away. The Bill to be brought forward is,
“to reform the composition of the House of Lords”.
There is nothing there about the role and functions of the House of Lords. And yet, as many other noble Lords have said, how can we hope to achieve consensus on whether the composition is fit for purpose unless we have first achieved consensus on the purpose which the House is to serve?
The assumption behind the Government's Bill is presumably that the role and functions of the House of Lords will remain as they are, but, if the House becomes a wholly or largely elected body, its role and functions will not remain as they are. If Members of this House were to be elected by a process of universal suffrage, they would not for long accept the continued primacy of the House of Commons. If they were elected for geographical constituencies, even if those were not coterminous with existing parliamentary constituencies, Members of Parliament—MPs—would be likely to find themselves in competition in their constituencies with Lords of Parliament—LPs, or whatever they are to be called.
There is also the question of costs. The noble Lord, Lord Lipsey, has produced figures showing that a directly elected and salaried House of Lords would cost the taxpayer a great deal more than the present House does. No doubt any reform will cost some extra money but we should, in thinking about reform, have regard not only to fitness for purpose but also to value for money. We need first to achieve and articulate consensus on what we want the reformed House of Lords to be and to do—in other words, on its role and functions—then, having first done that, to achieve consensus on who we should like to carry out that role and those functions—in other words, on its composition.
When I was a private secretary in 10 Downing Street there was, hanging on the wall of the private office above my desk, a piece of paper, mounted and framed, on which Mr Harold Macmillan had written in his own hand:
“Quiet calm deliberation disentangles every knot”.
I remember looking up at that piece of paper during the last weeks of 1973, at the time of the three-day week, and saying to myself: “Well, Uncle Harold, I hope you’re right”. At that time there was lots of deliberation, but not all of it was either quiet or calm. I believe that House of Lords reform is a knot that should and can be disentangled by quiet calm deliberation.
My proposal today—indeed, my plea to the Government—is that they should defer bringing forward a Bill for the reform of the composition of the House of Lords until there has been a serious attempt to arrive by quiet and calm deliberation at proposals on what should be the purposes, role and functions of the House of Lords and then at proposals on its composition, designed to make it fit for those purposes. This task could be entrusted to a body created and designed for the purpose, which should not be a purely parliamentary committee. It should of course include Members of both Houses, from all the main political parties and from the independent Cross-Benchers in the House of Lords, but not be confined to parliamentarians. It should include non-parliamentarians with suitable qualifications and experience, and be chaired by a non-parliamentarian. It could be a royal commission, a constitutional convention—as the alternative report has suggested—or a committee of privy counsellors. Whatever it is, it should be as small as possible: certainly, smaller than the Joint Committee chaired by the noble Lord, Lord Richard. It should be equipped with a strong but small team of expert advisers, including constitutional experts such as Professor Vernon Bogdanor, Professor Robert Hazell and people with relevant experience such as former Clerks of this House.
Lord Lloyd of Berwick
I wonder whether the noble Lord would explain how the group he envisages would differ in any way from the royal commission which sat in 2000. I have a list of the people who were in that royal commission; they exactly comply with what he wants.
Lord Armstrong of Ilminster
I do not know that it would differ in essentials but, as other noble Lords have pointed out, since the royal commission chaired by the noble Lord, Lord Wakeham, history and life have moved on. There is a new set of circumstances and new considerations to be taken into account.
The expert team would be responsible for producing papers analysing the issues and making recommendations for consideration by the main body. That body should first consider and make recommendations on the role and functions of a reformed House, and its report on those matters would be published and considered by both Houses of Parliament. It could be laid down as a given that the role and functions of a reformed House of Lords should respect and be compliant with the primacy of the House of Commons. Once there was broad consensus on role and functions, the expert advisers could analyse and make recommendations on the composition of the House of Lords. They could be asked to consider whether, and if so how best, to provide for an element of representativeness—possibly, but not necessarily, by direct election—and an element of independence. They would need to make recommendations on the role and functions of a commission or committee on the appointment of Members of the House of Lords and to consider and make recommendations on the terms of service of those Members, the optimum size of the House—and how to keep its numbers within that—and how to maintain an acceptable balance between the various parties.
The conclusions and recommendations of the expert advisers would once again be considered by the main body, and that body’s conclusions and recommendations would be reported to Parliament and the public. This process could be undertaken with urgency. Even so, it would be bound to take some time but, as the Prime Minister has said,
“reforming the House of Lords is not the most important priority”.—[Official Report, Commons, 9/5/12; col. 22.]
However difficult it may be to justify the House of Lords as it is, it is not working too badly. We can afford to do the job of deciding about reform properly and sensibly, and get it right. It is worth taking the time required for thorough analysis and serious discussion. This would, as I believe, provide the foundation for achieving broad consensus on how best to go forward with reform of the House of Lords and thus for bringing forward a Bill which, unlike the present draft Bill or a revised Bill on similar lines, could command a wide measure of support on all sides in Parliament and would not need to disrupt the flow of more urgent parliamentary business, which bears on the pressing problems of the times in which we live.
Lord Stoddart of Swindon
My Lords, after I had listened to the Queen’s Speech I listened to the BBC interviewing a Scottish nationalist about it. The Scot nat referred to, “this awful conservative Queen’s Speech”. I thought, “He must have been listening to a different speech from the one I was listening to”, because I could not discern anything particularly conservative in the speech at all. Indeed the speech, if one is to be kind, can only be described as drab. It had no real content that would excite the people of this country.
I also thought, “Well, we have just had local elections where the ruling parties suffered very serious losses”. I thought that they would want to take notice of what the people were saying—that they were not satisfied with the progress of the coalition. I thought I would perhaps hear that the Government were considering the fact that an extra 1 million people—lower management sort of people—were to be put into the 40% income tax band. There was nothing about that. There was no move, as far as I could see, to restore child benefit to those same hard-working people. There was nothing about that in there at all, or about dropping the granny—or perhaps it should be grandfather—tax. There was something about paternity leave, but nothing about providing more work. I should have thought that the Government would want to provide work rather than persuade people not to go to work, which of course paternity leave is all about.
On Europe, I had expected that we would hear something from the Government that was going to prevent us being sucked further into the European construct and, in particular, into the eurozone. But what do we see? There is a Bill in the Queen’s Speech to ratify the European stability mechanism, and I understand that it is to be started in this House on 23 May. Perhaps I have not got things right, but I believe that there is going to be a referendum in Ireland—but not until 31 May. I also understand that the Germans have decided to defer the matter until the autumn. So why the rush to bring forward this Bill, and why on earth is it going to start in this House instead of the Commons? Again, I cannot see anything conservative about that proposal.
Not only that; we are also apparently to have a Bill to ratify the accession of Croatia to the European Union—yet another eastern European state to be added to the EU, all of whose people will of course have the right of admission to this country. That will lead on eventually to the admission of Turkey, with 90 million people all having admission to this country. As I say, I can see nothing conservative in this Speech.
The Government claim that their priority is getting the economy right, yet reform of the composition of the Lords is to be part of their centrepiece. They hope to get consensus for reform, although any hope of that has not only been dispatched in this House but been dashed in the other place as well. There is no sign of any consensus and, frankly, we are wasting our time in discussing it. I suppose that we have to, though, to show the Government just how opposed Parliament is as a whole to what they are proposing.
If the second Chamber is to be fully accountable, it has to be wholly elected. There is no way that you can get away from that; if it is to be fully accountable, any second Chamber has to be fully elected. You cannot have first-class and second-class Members; that will not work, as anyone knows who has sat on a local authority with an aldermanic bench. Furthermore, the idea that the primacy of the House of Commons can be maintained with an elected second Chamber is simply preposterous. Where are the people who say otherwise? Do they not realise that every body that becomes elected, and this includes the European Parliament, wants power? Not only do they want power, they want more power. Believe me, if this Chamber becomes elected, it will demand power and it will deserve it. If it does not get it then the people who elected it will have been cheated, and that is not what democracy is all about. In the long term, that would be completely unsustainable.
At present we have a unicameral system that is posing as a bicameral one. The House of Lords does not make laws and the House of Commons is thus sovereign. Anything that we do here can be overturned by the Commons, and the Government are responsible to the Commons alone. There is no doubt in anyone’s minds, either in this House or in the country, that the House of Commons is supreme under the present situation. We have an almost perfect system where one House is sovereign but the other—that is us—can give powerful advice and guidance, and that is exactly what we do.
The House of Lords is a cheap second Chamber, if I may put it that way. If it becomes elected, make no mistake: the costs will go up. I think that the Deputy Prime Minister imagines that Members of the new House of Lords would get a salary of £60,000 and no more. Believe me, though, elected Lords will demand expenses because they will have constituents and will want to do the job of holding the Government to account. It is not going to be a cheap alternative, and people should understand that when they talk about an elected second Chamber.
If we are going to have reform, let us have a proper reform in which one House shares power with the other. As the noble Lord, Lord Rooker, and others have pointed out, however, that would require the powers to be written down and set in stone in a written constitution. Indeed, the four days of debate in this House and the erudite reports that we have received show that the question of reform is not the simple matter that the Deputy Prime Minister appears to think it is.
It is not only Parliament that makes laws. The judiciary makes laws—they make the common law, which are often serious laws indeed—so should they be elected? I very much doubt whether supporters of Lords reform would agree to that. Quangos also make laws. Do we elect the quango boards? People would get fed up with all these elections. You cannot say that the House of Lords must be elected because it has to be accountable but all these other people should not be accountable.
Does the present situation work? Yes, and it does so very well. Is there a demand out in the country for Lords reform? We know that there is not. It should not be a priority because there is no demand for it. It would be far better if the Government listened to all the voices, including that of the noble Lord, Lord Armstrong, who spoke before me, and scrapped this piece of legislation and got on with dealing with the desperate financial and economic crisis. Any House of Lords reform under these circumstances should be put off until the next Parliament and not dealt with in this one at all, and, when it arises, it should be subject to the will of the people.
Lord Thomas of Swynnerton
My Lords, it is a pleasure to speak after the noble Lord, Lord Stoddart of Swindon. He may remember that we first collaborated some 30 years ago in an attempt to oppose the idea of televising Parliament. We put up a gallant fight, but we were defeated. We were defeated but, as Lord Avon—Nicholas Eden, the son of the great Prime Minister—told us, we would have won if it had not been for the payroll vote. Perhaps that gives an indication of what we may have to do in future in this House and perhaps in other Houses, as indicated by the noble Lord, Lord Jenkin. In this debate, I must first apologise for not being present at the opening on Thursday. I am afraid that I misunderstood our timetable and supposed that this debate would begin after lunch, not after breakfast.
I wish to propose a compromise: we all are aware of the feeling among the Liberal Democrats, in the Labour Party and, indeed, in some parts of the Conservative Party in favour of a democratically elected House of Lords, but we are also all aware that there is doubt in all parts of our House and in the other place about the consequence for our House and for Parliament as a whole if there is a directly elected House. There does not seem to have been a very sophisticated discussion about what kind of elections would be best fitted for a future House of Lords, although the noble Lord, Lord Trimble, touched on that matter in an interesting and promising way. The question is therefore: what should be done now? I once thought that the only solution would be to have two Houses of Lords, one for elected Members and one for nominated Members, but I was talked out of that, as it was too radical, even too frivolous, a suggestion for our times.
We should certainly recognise the achievements of this House over the 54 years of the life peerage system. I am fortunate in that I can recall, in the 30 years for which, to my astonishment, I have been here, a number of remarkable events, not just reviewing legislation and correcting badly phrased documents coming from the House of Commons, but hearing marvellous speeches made by noble Lords on a diversity of matters. A few recollections may help noble Lords making up their mind about whether the House of Lords has been a worthy undertaking.
I remember, for example, the admirable contributions of Lord Stewart—Michael Stewart, an ex-Foreign Secretary—in challenging the Soviet Union and supporting the western nuclear deterrent. No one did it better than he. Noble Lords will not be surprised to know that I remember some extraordinary speeches by Lord George-Brown. I can remember hearing Lord Stockton berating the noble Baroness, Lady Thatcher, for selling off the family silver, by which I think he meant the coal industry. I did not agree with him, but I admired his oratory, which was especially impressive since he had become blind. I can remember Lord Thorneycroft’s speech in the Maastricht debate—his last public utterance, I think. He leant against the barrier, because he was lame, and defended his support for Europe in the 1950s. In the same debate there was a remarkable speech by Lord Sherfield, in which he accepted that when he was a government official he had been wrong to oppose British membership of the Common Market. I recall a speech—it was on a different level, but nevertheless I recall it well—by the unjustly forgotten Lord Kennet, who thought that NATO should have been abolished with the end of the Soviet threat. He was the only Member of either House of Parliament who argued so.
More recently, I can remember the speech by the noble and gallant Lord, Lord Bramall, opposing a new generation of nuclear weapons. Many of us will remember the eloquent wit and style of Lord Russell, who spoke as if he were still in the 19th century. I also recall the fine speech of Lord Callaghan against the War Crimes Bill and the many remarkable speeches by my then colleague Lord Beloff about Russia. How splendid was the last speech by Lord Annan, in which he compared the noble Marquess, Lord Salisbury, to Comus, who noble Lords may recall was presented by Milton as a pagan god who waylaid travellers and turned their faces into the faces of wild beasts. I am sure that that is an inappropriate moral for the surviving hereditary Peers.
I remember with affection Lord Whitelaw, who told us that although he had become a viscount there was no chance that he could be succeeded by any of his daughters. The eloquent wit of the noble Earl, Lord Ferrers, will be long remembered. There is no need to be too maudlin about that. I remember that the speeches of the noble Lord, Lord Skidelsky, against the Iraq war were splendid and those of another great friend of mine, the noble Lord, Lord Weidenfeld, from an opposed point of view, were also most worth while. I will not forget Lord Jenkins of Hillhead telling us that the decision on whether to support the Gulf War was the most difficult in his long career. I have heard many admirable speeches by the noble Lord, Lord Carrington, who was in his place for a short time this afternoon, and several by Lord Home. The speeches by ex-Foreign Secretaries, such as the noble Lord, Lord Owen, have often been remarkable. We have had debates in which three ex-Foreign Secretaries took part. Is there any other country in the world where such a thing would be possible—ex-Foreign Ministers meeting in a debating Chamber, tranquilly discussing the problems of the time, after their time?
All these occasions—there have been many more—were major creative undertakings by gifted people who, had it not been for the House of Lords, would not have had a chance to express themselves in an appropriate setting. As a rule, they were not reported in the press, since our newspapers—trying hard, as they have for many years, to be the second, not the fourth, estate—have long preferred not to speak of the good things that happen in Parliament. Should we legislate away even the chances of such oratory, through a Bill such as the one proposed?
We can enjoy the best of both worlds—an elected House and a House of achievement—if we adopt a radical and original suggestion. I should like to see what might be called a corporate approach to any elections in our House. This was touched on by my noble friend Lord Low in a speech in this House on 30 April but only, I think, for 20% of any new House. I thought that the noble Lord, Lord Armstrong, was going to speak similarly. I suggest that in future we should have not party lists for election to this House but lists of doctors, soldiers, teachers, ex-Members of the other place, ex-Cabinet Ministers, writers, bankers, trade unionists, certainly historians and—why not?—poets and musicians. The poet Auden supported the idea that a Government should be elected and supported by lot—a very good reason for having poets in our House.
We could do worse than start from where we are now. Every existing Lord might declare that he is from a certain profession. As the present House functions happily, a new list of Peers could reflect present origins. For example, I could insist that I speak for the historical profession. My noble and learned friend Lord Lloyd of Berwick would represent the judiciary. Of course we should have Bishops and leaders of other faiths, including Catholicism. However, to be logical, the Bishops should be retired as generals are, and not people en poste. I leave that matter open for the moment.
If we need to, we can consult on exactly who we are by reading the excellent study from March 2010 by Meg Russell and Meghan Benton of the Constitution Unit of University College London, which can easily be brought up to date. Something like that could be the best way ahead.
As noble Lords will recall, the religious settlements of the 16th and 17th centuries were built on compromise. The Anglican compromise of the 1560s under Queen Elizabeth I led to the Church of England. Let our future legislative system be based partly on a similar method of election and selection. In that way, we will fulfil the demands of all parties, and do so in a way that resolves any difficulties that might otherwise deflect us by making us think of the difficulties of the transitional arrangements.
Lord Anderson of Swansea
My Lords, I have a possible compromise suggestion. If there were to be functional constituencies, as in Hong Kong, I suspect that the noble Lord, Lord Thomas, would be head of the historians’ functional constituency. Indeed, I am sad that there were not more historians or people with a historical background among those who drafted the Bill. It would have come out very differently. We have clearly come to the time in the debate when everything that can be said has been said, but I have not yet said it so I will have a go.
As a Welsh nonconformist, I always like to base a speech on a text. The text that I have chosen comes from a traffic sign that we all know. It says this, which may be one of the high points of political wisdom: “Do not enter the box unless your exit is clear”. Certainly, the coalition partners entered the box in 2010 when they went through a form of marriage in the gardens of No. 10. Indeed, they reaffirmed their vows in an Essex factory last week. One reflection might be: unhappy are the couple who deem it necessary to reaffirm their vows after a mere two years of marriage.
I think that there may be an exit from this commitment in sight. Is abandonment politically feasible? Is it already in sight? Is it when, for example, the guillotine Motion, the timetable Motion, fails in the House of Commons, or when even a consensus, as defined by the noble Lord, Lord Strathclyde, is not obtained and trench warfare of Passchendaele proportions arises? Will the Liberal Democrats eventually be bought off by stopping the constituencies Bill, which threatens to decimate their numbers?
Pace the three manifestos, no one really is happy with all the provisions of this Bill. Yet the Liberal Democrats appear, alas, committed to the elections. It is a curious obsession on their part as regards constitutional structures. They are not great negotiators. In other countries, in Germany for example, the federal democrats emerged with a key department. There is a Foreign Minister. The Liberal Democrats did not emerge with any such departmental position. They yielded to the Conservative agenda on legal aid, welfare cuts and the NHS, so long as the cherished package of constitutional reform was achieved. But it may be that, ultimately, all that they have gained will crumble to dust. At the end of the day, they may have nothing to show for that curious obsession, which is so far from the priorities of the public.
I would normally intervene in matters of international affairs but there is very little of that in the Queen’s Speech. Even for the Commonwealth, so beloved by the other side, there is no mention, save in the succession to the Crown.
There are one or two other important matters, including, obviously, electoral registration. But there is nothing in relation to Northern Ireland, Scotland or Wales or any attempt to meet the problem of what might happen if the Scottish referendum in a couple of years opts for independence. Clearly, that would have the most profound implications for any change in the House of Lords.
The Queen’s Speech states:
“The composition of the House of Lords will be changed”.
There is no mention of powers or functions, as if they are wholly unrelated to the composition of this place. The Queen’s Speech is very short. What would happen if the House of Lords Bill were to be abandoned during the course of the year? There would be an enormous hole in the legislative programme. It would be rather like the problems we had in this House in February and March of this year as regards the poor management.
The background is that we had the Joint Committee proposals, the alternative report and the high-quality, one-and-a-half-day debate. Since then, as they say in another place, an amendment has been moved. That amendment was the verdict of the people in the local elections. I would not be so adventurous as to claim that there was a direct relationship between the way in which the people of this country voted in the local elections and their views on House of Lords reform. But surely there is an indirect effect in that they were protesting, in part, against the way in which this Government were unwilling to listen to their views and had got totally out of touch with public opinion. Who in the broad public, apart from the UK equivalent of the belt around Washington, is seriously interested in reform of this place?
The illusions of the Government have surely been shattered. Clause 2(1)(b) on the primacy of the House of Commons, as if by a simple declaration, is sufficient to ensure that that is so. The assertion that this will be more democratic is absurd. Anyone who has been in the other place, as I had the privilege to be for 30 years, knows that the democratic responsibility of a Member of Parliament arises from direct contact regularly—a point well made by the noble Baroness, Lady Knight—with members of their constituency in order to be as a bridge to relay their views to the Executive and to relay back, as appropriate, the views of the Executive. If one is elected for 15 years, non-renewable, and if one manages to find one’s way on to a party list, how in any way is that likely to be more democratic?
I suspect that if we ask who is likely to be elected, many will see this place as a springboard for getting to the House of Commons and will resign under Clause 57 of the Bill. And is it not likely that those who put themselves forward will be those who are already in the party structures and were perhaps unsuccessful for selections for the other place? There will be no generals and no senior lawyers, because the question will be, “Have you laboured in the vineyard—what have you done for us?”. Alas, senior lawyers and generals will say, “I was doing something else at the time—I fear I wasn’t able to knock at the doors and distribute leaflets at the relevant time”. “Ah, you are not a man for us”, they will say.
The other problem is that the House of Lords as presently constituted is composed of those who are beyond ambition. I wonder if that will continue if people are elected and may well seek to find their way into another place. It is clearly also likely that this place will be far less expert, as I notice that according to the Bill the Cross Benches will be reduced in 2015 to a mere 20. I would not like to have the job of working out who those 20 lucky people will be. Perhaps there will be a lottery.
So those illusions are shattered. But equally worrying is the manner in which this Government do constitutional change. There seems to be an unwillingness to have a sense of history or politics—although the noble Lord, Lord Norton, would no doubt correct me on this. We do things in this country in a different way; I do not demand reverence for our constitution, but surely we should have a certain respect for our constitution. Traditionally in the UK we make our constitutional change after a non-partisan debate and on the basis of consensus, not the consensus as defined by the noble Lord, Lord Strathclyde, as what the Chief Whip in the other place happens to decide at any one time. That is not real consensus. We move from precedent to precedent in an incremental way, as was shown extremely well in the speech of the noble Baroness, Lady Hayman. The Bill smacks of a political fix and glue and an unwillingness to consider the wider ramifications and the effect on the other place or on the devolved Assemblies. In short, there is case for a convention. I shall not proceed with this argument, although I could speak at great length, but are we moving inexorably along the road to a quasi-federal system, and an unwillingness to look at comparative legislature.
One part that I enjoyed very much in the speech given by the noble Lord, Lord Norton, was his reference to the article by Meg Russell in the January edition of Political Quarterly, which surely exploded much of what the noble Lord, Lord Ashdown, and others claimed in seeking to bring forward evidence for their own views. Even now, in a spirit of incrementalism and the true spirit of constitutional change, the Government can obtain on the basis of consensus a substantial part of what is wanted—by looking at the Steel Bill and the original Bill in which proposals were set out so well by the noble Baroness, Lady Hayman. They could show some good will by yielding gracefully on the referendum issue. On that one recognises that the rules of the game have been changed, even more so than on the AV matter. But no—for partisan reasons and as a result of a deal they are determined to sleepwalk in what is clearly a constitutional minefield. We will look only at the composition of the House of Lords until, probably, they will be forced to seek an exit strategy from the box in which they have impaled themselves.
Surely at a time of austerity, as the noble Lord, Lord Stoddart, said, this Government are presented with a golden opportunity to make the kindest and least controversial cut of all—that cut being to abandon this Bill.
Lord Kakkar
My Lords, I fear that, once again, I have to start by putting a question to Her Majesty’s Government which I have put on a number of previous occasions when speaking on this important issue of reform of your Lordships’ House—that is, exactly what is the purpose of the reform Bill? Have the Government concluded that your Lordships’ House has failed, and continues to fail, the people of our country because it is unable to undertake scrutiny and revision of legislation, as I think all noble Lords understand its purpose to be; or is the Bill an attempt to overcome the accusation that your Lordships’ House is an affront to democracy? If it is the latter, the proposal to elect 80% of this Chamber for a fixed term of 15 years with no recourse to the electorate, and most interestingly no opportunity for these elected representatives, paid for by the taxpayer, to undertake any work on behalf of constituents, does not add up to democratic accountability. It is vital that the Government are able to understand clearly, and answer, that important question. There is no purpose at all in throwing this Parliament into turmoil by formally introducing this Bill for consideration in the other place, and ultimately in your Lordships’ House, unless its purpose is clearly understood.
During this debate a consensus has arisen on three important concerns which must be addressed. First, we must try to understand the constitutional ramifications of the Bill. These were well identified in the Joint Committee report and the alternative report. Secondly, we must try to identify actions that might be taken to mitigate those serious constitutional ramifications. The interesting contribution of my noble friend Lord Laming focused on the standing of Parliament and the view of our fellow citizens with regard to how we spend our time and use the resources that they as taxpayers make available to us. The third concern is that both Houses of Parliament should be able to communicate the fact that they work justly and fairly in the interests of the people of our country.
Much has been made of the fact that there are 77 parliaments in the world that are bicameral in nature. In the debate that took place on 1 May, following the publication of the Joint Committee’s report, I asked three questions: how many of those bicameral parliaments have no written constitution; how many of them have no definition of the powers of the two elected Chambers; and how many of them fail to provide a protocol to resolve disputes between the two elected Chambers? I have checked the latest available information on an Inter-Parliamentary Union database, and it indicates that 77 parliaments in the world are bicameral in nature. We have heard from the noble Lord, Lord Norton, that 21 of them are wholly elected, 17 are indirectly elected, 15 are wholly appointed and the remainder are a mixture of appointment and election. However, only three countries in the world do not have a written constitution: Israel, New Zealand and this country. This means that only one bicameral system has no written constitution. We have dealt with this in a very elegant fashion by writing and defining conventions that are respected by the two Chambers in this great Parliament. It is a well recognised and accepted convention that the other place has primacy because it is the elected Chamber; it is fully democratic, and therefore our Parliament is fully democratic. Only one Chamber enjoys the democratic mandate and has primacy; so if a leader of a political party wishes to form a Government, that leader must enjoy the confidence of the House of Commons—not the confidence of your Lordships’ House. There is no confusion in that regard. Ultimately, when an election is called, Members of the House of Commons have to offer themselves back to the electorate. The electorate—our fellow citizens—decide whom they wish to be our representatives in the elected Chamber of Parliament, and it is that Chamber that determines who will govern our country.
If we are to dispose of the conventions, we must be sensitive to the wise advice provided in the preamble to the Parliament Act 1911. It states with absolute clarity that Parliament will have to make provision for limiting and defining the powers of a second Chamber elected with a popular mandate. It is not possible to ignore what was said in that preamble. So much of everything else regarding the relationships between the two Chambers—the conventions built from the 1911 Act—is fundamental to the way in which this Parliament conducts itself. It would be rather foolish, and lacking in decency and honesty, to disregard that important advice.
It has been said by Members of the other place who are particularly interested in this legislation that we should just get on with it. My noble friend Lady Boothroyd commented on what Vince Cable said with regard to getting on “quickly and quietly” with House of Lords reform. However, those who propose that that should be the disposition of this particular legislation—quiet acquiescence delivered quickly—fail to recognise what they are asking for, which is that we should commence to write the most important elements of our country’s constitution in the Chambers of the House of Commons and your Lordships’ House. What should we do when we come across serious and complicated issues that discussion, even in these two great Chambers of this great Parliament, cannot resolve? Would it be wrong to deliver those parts of a Bill to a special Select Committee? Would those taking that responsible decision be accused of wasting time and trying to undermine the passage of the Bill?
Surely it is much more sensible to proceed in a reasoned fashion, as suggested in the alternative report, through the creation of a constitutional convention that would allow all the issues that have been identified so far—as well as many of the other issues that have not been addressed—to be addressed fully and properly. One interesting issue raised by the noble Lord, Lord Reid, concerned how a Government should be formed when we have two elected Chambers. How would our fellow citizens—the taxpayers—view the situation where no party leader in the elected House of Commons after a general election was able to command the confidence of that Chamber, but where a leader in an elected House of Lords was perfectly able to command the confidence of the elected second Chamber? Why should not that party leader be provided with the opportunity to form a Government rather than the whole country be thrown into turmoil and another general election be forced at considerable cost and in which the outcome may again be uncertain? That question needs to be addressed. As I see it, the draft Bill makes no provision for ensuring that that may never happen.
Other important constitutional issues currently confront our country. The question of independence, or potential greater devolution, in Scotland will have an important impact on the future of an elected second Chamber. If the Scottish people elect for independence, the people of Wales and Northern Ireland will rightfully be concerned about their constitutional position in a Parliament dominated by the country of England. If the Scottish people—not that I am suggesting that there should be two questions in the referendum in Scotland—moved to the devo-max solution, there would be important questions about whether we were moving to a more federal nation and whether an elected second Chamber should reflect that. These matters are not currently considered.
Interestingly, the question of asking the people of our country whether they support the proposals has been put only in terms of a post-legislative referendum. However, this fails to pay any attention to the 2011 referendum on voting systems for the other place. The people of our country rejected the AV system. What implications does that have for selecting the voting system for an elected second Chamber? Should we interpret the results of that referendum as the people of our country telling this Parliament that their preferred method of election is first past the post or should we have two questions in any future referendum related to the introduction of an elected second Chamber, the second question putting to the people of our country a choice of voting system for elections to that Chamber?
My noble friend Lord Laming raised the issue of the standing of politics, and here I think there is a vital question. Are the people of our country likely to hold in contempt politicians who single-mindedly push forward constitutional reform such as reform of your Lordships’ House, having initiated a period of debate and scrutiny on their proposed Bill over a year earlier and that scrutiny having told us that the Bill is wanting in many ways, is fraught with constitutional hazard and probably should not proceed as currently proposed; or are they more likely to hold in contempt political leaders who say, “We have offered this Bill for early scrutiny to our Parliament. Parliament has decided that the Bill is wanting in many ways and is fraught and dangerous, and it is inappropriate to proceed at this time. We are therefore going to proceed with a Bill that will deal with many of the anomalies relating to membership of the House of Lords in terms of expulsion, retirement, resignation, term of office and so on”? I suspect that the people of our country will be much more impressed if our political leaders are able to take the latter course, accept that what they have proposed will not work and does not enjoy support or consensus, and do what enjoys consensus and will be warmly received in both Chambers of this Parliament.
We currently ask many of our citizens to make great sacrifices for our country. We ask our brave servicemen potentially to sacrifice their lives in the longer-term interests and security of our nation. We are asking the people of our country to accept and experience austerity so that the national debt can be resolved and our nation can once again be put on a firm footing. We are asking our public servants, for instance, to have the terms and conditions of their service and pensions changed so that, once again, our country can enjoy secure finances. It is only right that the people of our country are able to ask their political leaders and those who represent them in this Parliament to focus on the interests, needs and anxieties that the people are facing at the moment, and that our politicians and Members of both Houses in this Parliament give their undivided attention to dealing with issues such as job creation, growth, living standards and reducing the debt—all issues that the Prime Minister has himself identified as key priorities.
It is interesting to speculate on how debate on the future of the House of Lords may distort priorities during this Session of Parliament. You have only to look at the allocation of time for debates following the humble Address. Two days have been devoted to constitutional affairs, with 54 speakers contributing principally on the question of reform of your Lordships’ House. Tomorrow we have a day devoted to education, culture, home affairs, health, law and justice and welfare, a single day of debate during which 69 noble Lords will try to make their contributions. Members of both Houses in this great Parliament need to be sensitive to the feelings, anxieties and needs of the people of our country at this time. This Bill as currently presented does not enjoy consensus and it would be wise to withdraw it.
Lord Elton
My Lords, I do not know whether I was more surprised by the Queen’s Speech or by the debate that has so far followed it. Perhaps I can resort to metaphor. Your Lordships’ House is used to thinking of the constitution as being the house in which we live, where we are kept warm and dry and safe from our foes. It seems to me that both the Government and most of your Lordships’ House have spent their time in the sitting room, arranging how it should look so that it is a bit more efficient, without looking out of the window and discovering that we are no longer in a mansion standing in its own grounds. We are not even in a semi-detached; we are incorporated in a vast condominium which, in part, overlaps the structure in which we are living and the roof of which hovers over our heads as I speak. I was astonished to find that out of the 48 people who have so far spoken in this debate, only two have regarded Europe as significant to our constitution. But Europe is almost in flames. The wing at the other end of this row of apartments has serious subsidence and, very shortly, may burst into flames and disappear. It is the same structure. We cannot start rejigging the sitting room until we know whether we can keep the building in which we are used to living intact and efficient.
Why is there a rush to do this? We are deeply affected by what is going on. We said at the beginning that, if there is a currency union and if it is to work, you have to have a fiscal union. That has been proved. The structure will either disintegrate or there will be fiscal union in Europe in the next month or two, or certainly in the next year or so. To make matters worse, there will be a political structure; we are within sight of a federal Europe. Do we want to be Switzerland? Do we perhaps want to be Hong Kong? Or do we want to be part of Europe? It is a frightening choice. Many of us have dithered—some of us have dithered right through this debate—about what we want and about whether we want to be in or out. At a time when the nation needs leadership, I could see no mention in the Queen’s Speech of where the Government are heading. Where will we follow? Will they lead us anywhere? A host of questions arise.
In order to get out of this mess and structure a new Europe, there will have to be a treaty, or maybe several treaties, and under the present system treaties cannot be made without the signatures of all the members. That puts us on an equal bargaining basis with every other country in Europe. As the situation is desperate, there will be very serious negotiations ahead. I would like to know, as I think your Lordships would like to know, what the Government’s aims are. What powers, if any, do we intend to repatriate? What part of our sovereignty do we regard as inalienable? What formula do we propose to limit the net amount of money that we pay to our neighbours next door? How will we define, or redefine, those things that are our concern only and not the concern of bureaucrats in Brussels? How will we engage those bureaucrats with some of the realities of the things that they are regulating so that fewer absurdities come from there?
All that is trivial compared with the question of fiscal union and federalism, both of which will necessarily, and the latter essentially, affect our constitutional position. I do not know how the present Bill can be drafted to take that on board when the ball has not yet hit the pitch in front of the crease. I do not wish to mix my metaphors. I was warned a moment ago when the noble Lord, Lord Anderson, suggested that the Government should look for an exit from the box on which they had impaled themselves. I am still trying to work out how one can impale oneself on a box, unless it is a very odd shape—so I will drop my metaphor before I get into similar trouble.
I remind noble Lords that Europe and Britain are entirely different creatures. Europe has a revolutionary history and constitution; ours are evolutionary. Europe has a secular constitution; our constitution embodies—usually more visibly than it does now—the Church of England. Europe’s courts are based on Roman law, ours on common law. We are a monarchy. Europe—I must not say “they” because I would pre-empt my position—is a republic with a number of monarchical enclaves, including ourselves. European countries are recent; Germany was not 60 years old when I was born. Incidentally, unification started with a customs union, which is exactly what started the European process. That is why a few of us historians said at the time that this would be where it all finished. However, I had no idea that it would be such a mess.
We the Government have a duty to lead the British people, who are not awake to the precipice on the edge of which Europe is standing—as the noble Lord, Lord Giddens, accurately described it—to a safer place. If we do not do it, we shall be blamed. Elected or not, we shall be answerable—and the Government will be particularly answerable.
I have asked questions and pointed out dangers. Now I will add, in case my UKIP friends begin to scent a convert, that there is a deep motive for preserving Europe. I will illustrate it briefly and dramatically by reminding noble Lords that it all began with the European Coal and Steel Community, which was invented simply to tie Germany and France so closely together that they could never fight again. My father fought in the First World War, and lost two-thirds of his male friends. He was the only survivor of the sixth form of Rugby School, of which he was head boy in his final year. We do not want to risk anything like that happening again—not only now but perhaps after an awful, shambolic slide into chaos over 20 years. Who knows what will happen? We need a strong Europe.
That is the premise for what I will say briefly about the constitutional house that is at present in danger. I cannot help repeating myself in one or two particulars. I remind noble Lords that Parliament was invented to control government, and for no other reason. I remind them that in 2005 the then Government proposed to lock up British citizens on the say-so of one Secretary of State and the advice of one chief police officer. We can imagine the power that that would have given a corrupt Government—and it would have applied to all Governments still to come. The measure was taken repeatedly through the House of Commons and rejected repeatedly by this House—although it was anathema to noble Lords in the party opposite.
How was it that the Government got it through the Commons and could not get it through here? What was the difference? It was that Members of the other place not only had a great interest, because of their terms and conditions of employment, in maintaining their places there, but could only maintain them if they were not deselected. In other words, Members of the House of Commons do not have secure tenure and we do. I do not want to denigrate anybody, but I can see the power that a Chief Whip would have if I had a mortgage and children and no other profession to which to turn if I lost my job. That is the situation there.
Now the proposal is that we should have an elected House. At present it is proposed that the term of election should be 15 years. I would prefer it to be 20. Also, for the reasons that I have made clear, if anyone retired early they should be debarred from any government appointment, government employment or employment in any organisation receiving government funds until the expiry of the term that they had been elected for, and thereafter there should be a moratorium of another five years. The noble and learned Lord looks extremely surprised, but I hope that he is encouraged. What I am talking about is incredibly important. Parliament took power from government in the 13th century and government has been taking it back ever since. The only turn of the ratchet in the other direction in my lifetime was when Norman St John-Stevas, as he then was, got departmental Select Committees in under the wire before Margaret Thatcher—the noble Baroness, Lady Thatcher—got the disease that all Governments get and thought that what we needed was more power to run the country.
I could go on at great length, but I beg your Lordships to realise that what we are talking about are two important things. One is the future of this country in relation to Europe—we really have to get that sorted in the next 18 months at the latest. The other is that we are preserving the electorate from a Government who would overrule the people who elected them. That is why I stayed in 1999. I admit I enjoyed the place tremendously; I would probably have stayed anyway, but my justification and main motivation was that I reckoned that this was coming. There would be a day when we had to recognise that there was nothing substantial between the domination of politics by a single party for the whole term of a Parliament and quite possibly beyond if it had absolute control.
We are planning not for the reasonable people we see around us—most of us are very reasonable—or for the reasonable and honourable people in another place. We are planning for how things may turn out in 10 or 15 years after the control and the safety lock have gone. To have a power such as the derogated detention powers as they were originally sent to us from the House of Commons in the Government’s hands would lead to the most terrible pressure on individual liberty. It is a fascist provision. That is what we are here for, that is why I stayed, and I hope that your Lordships will bear that in mind in the months to come.
Baroness Symons of Vernham Dean
My Lords, I am very glad to follow the noble Lord, Lord Elton. I have always regarded him as something of a senior statesman in your Lordships’ House. I agreed with much of what he said about the priority of Europe at the moment. It was a point made by my noble friend Lord Giddens today and the noble Lord, Lord Owen, last Thursday. I hope that there will be the opportunity to have a debate specifically devoted to the subject of Europe and the economic and political movement around Europe at the moment.
I should mention again that I was a member of the Joint Committee on the Draft House of Lords Reform Bill and that I was also a signatory to the alternative report. Not very surprisingly, I intend to concentrate much of what I want to say on the announcement in the gracious Speech about reform in your Lordships’ House.
However, there is another constitutional point on which I hope the Minister will comment when he winds up. That is the announcement that the Government intend to take forward reform of the rules governing succession to the Crown. The briefing notes on the gracious Speech, which I believe are available on the Cabinet Office website, make it clear that this is part of a system to do away with male primogeniture—a system under which a younger son can displace an elder daughter in the line of succession—because the current arrangements are discriminatory. Does not the same discriminatory practice pertain throughout all the succession rights in the British aristocracy except where expressly provided for with some specific titles? Surely it is no more or less discriminatory to usurp the elder daughter of a duke or an earl in favour of her younger brother than it is to usurp the elder daughter of the monarch. I hope that some thought will be given to that when we come to consider the Bill, and I would value the Minister’s comments.
But of course the flagship policy on constitutional reform in the gracious Speech is the reform of your Lordships’ House, and since we last discussed it in this Chamber, we have all heard the gracious Speech. The 15-word reference to the reform of this House sheds little light on what the Government really intend. It says quite simply:
“A Bill will be brought forward to reform the composition of the House of Lords”.
No mention is made either of elections or of functions and powers, despite the clearly emerging consensus that functions and powers are unlikely to remain unchanged if the Lords are elected. However, whatever the gracious Speech says or does not say, the briefing notes from the Cabinet Office, available on the website, make it clear that the Bill is intended to ensure that most Members of the House will be elected. The Cabinet Office paper notes that there has been, in its view, a “broad consensus” on this since 2001, which I imagine is news to a great many of us, particularly to my noble friend Lord Grocott, given what he said earlier this afternoon. The briefing notes go on to claim that the Joint Committee which considered the Bill under the chairmanship of my noble friend Lord Richard agreed that there should be, “a mainly elected chamber”. That statement is misleading and I have today written to the Cabinet Secretary asking him why the Cabinet Office briefing notes are so inaccurate.
This is a fundamental issue. Your Lordships will see on page 150 of the Joint Committee report that the original draft said that the Joint Committee agreed that,
“the reformed second chamber … should be elected”.
That is a bold statement. It was a Conservative MP, Mr Gavin Barwell, who moved an amendment so that the sentence was deleted and a new sentence inserted to read that,
“the reformed second chamber of the legislature should have an electoral mandate”.
That amendment was passed. A mandate, as the Oxford English Dictionary tells us, is the,
“authority to carry out a policy or course of action, regarded as given by the electorate to a candidate or party that is victorious in an election”.
So the decision of the Joint Committee was to give an elected House of Lords the authority of a mandate. The sentence was then further amended—without a vote as everyone agreed—with the addition of the crucial words,
“provided it has commensurate powers”.
When I asked the Leader of the House why he had chosen to leave out this vital phrase in his opening speech last Thursday, in his usual jocular way he asked me what the Joint Committee had actually meant by “commensurate powers”. I hope that this is not going to be another consensus moment for the Leader of the House. The word “commensurate” is in common usage, and again the good old Oxford English Dictionary comes to our aid by pointing out that what it actually means is, “in proportion to”, or,
“corresponding in size or degree”,
or,
“of the same size … extent”.
In this case, it means the same size and extent as the electoral mandate.
There is no ambiguity about what paragraph 23 of the report says, and I hope that, given how much time was devoted to this issue, what the report actually says will be quoted rather than what many people who do the quoting would rather it had said. It says, for the avoidance of doubt:
“The Committee, on a majority, agrees that the reformed second chamber of legislature should have an electoral mandate provided it has commensurate powers”.
That is what the Cabinet Office briefing should have said.
The Leader of the House says that the Government want to proceed on the basis of consensus. We all know that the noble Lord, Lord Forsyth, who is not in his place at the moment but who has been here a great deal, has pointed out on numerous occasions that there is no consensus on election. However, there is consensus on a great number of issues regarding the reform of this House, as the noble Lord, Lord Jenkin of Roding, pointed out in his very good speech earlier today. There is consensus that we can begin reform now, taking the Bill of the noble Lord, Lord Steel, together with some of the reforms suggested by the noble Baroness, Lady Hayman.
Lord Campbell-Savours
The noble Baroness has repeatedly referred to the use of “commensurate powers”. In an intervention in our debate on 30 April—I am just trying to establish exactly where she stands—she defined “commensurate powers” as,
“doing away with Commons primacy”.—[Official Report, 30/4/12; col. 1963.]
If that is the view carried by the committee in the amendment that my noble friend referred to, is she then suggesting that it was the view of the majority of the committee that they should do away with Commons primacy?
Baroness Symons of Vernham Dean
No, my Lords, I am not suggesting that; I am suggesting that “commensurate powers” means what it says, particularly when it comes in a sentence that refers to an electoral mandate. The current settlement between the two Houses on the constitutional position and the conventions must change in favour of the House of Lords if it is elected.
We could have consensus not only on the Bill of the noble Lord, Lord Steel, but on the reforms suggested by the noble Baroness, Lady Hayman, in her excellent speech earlier today. Such reforms would fulfil the undertaking given in the gracious Speech to,
“reform the composition of the House of Lords”.
The Government would be doing exactly what is laid out in the gracious Speech. There is consensus in the Joint Committee report that giving an electoral mandate to the Lords means that the elected Lords has powers commensurate with that mandate. That after all lies at the heart of democracy. Elections mandate the elected, and those elected become accountable to their electorates.
There is further consensus that Clause 2 of the Bill is completely unfit for purpose; it has no friends other than the Deputy Prime Minister and the Minister responsible for the Bill. Moreover, there is consensus that if there is a parliamentary decision to elect the Lords, the people should be consulted in a referendum. Even the noble Lord, Lord Tyler, agreed on this point earlier in our exchanges on this issue. I do not know whether the rest of the Liberal Democrats agree with him, but I rather gathered from the remarks of the noble Lord, Lord Rennard, that some of them would take issue with him over that.
The noble Lord, Lord Tyler, and I exchanged views on what we voted on. For the avoidance of doubt, we voted on a proposal which was agreed. It was:
“The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision”—
not the proposal—
“to a referendum”.
There were no “ifs” or “buts”; the Joint Committee agreed, as more and more commentators are agreeing, that a decision to elect the House of Lords should be subject to a referendum of the people of this country.
I think that a further consensus has started to emerge: that there will be no consensus around this totally inadequate Bill unless it is a consensus that it does not work. It falls short at virtually every point, from the Parliament Acts, through Clause 2, to primacy, and from the almost Byzantine arrangements for elections on a proportional representative system—a form of which the people of this country have already decisively rejected—to the non-renewable terms of office. The noble Lord, Lord Ashdown, said that we fell short of even the standards of Egypt in this respect. I discussed non-renewable terms of office recently with some Egyptian visitors to this country. They wanted to be MPs in the Egyptian Parliament. They said something to me that made me think they were talking about non-renewable terms. I said, “Is it non-renewable terms to which you are referring?”. They said, “Oh, no, of course not. We know there is no accountability with non-renewable terms. We would not dream of using them”. They understood that point very clearly.
The Government are obviously in trouble over this Bill. They know that it cannot work but they have all promised each other to give it a jolly good try to get it through. The noble Baroness, Lady Boothroyd, put her finger on it precisely. Ministers are now falling over each other to say what has been pretty obvious to all of us for some time now: this Bill is not a priority. If it fails, as I hope it will, we will be back where we started, waiting for another try perhaps in 2015, 2020 or 2025. I strongly agree with the noble Baroness, Lady Hayman, that we should act on the consensus that we have. As suggested in the alternative report, there is consensus on the Steel Bill, some of the noble Baroness’s own proposals and some of the Goodlad proposals. I believe that we should set up a constitutional convention as laid out in the alternative report to consider whether and how we could eventually elect the House of Lords. That should consider inter alia how the elections would affect the Commons and the devolved Parliament and Assemblies. It should consider the composition of religious representation in your Lordships’ House, the role of government in the Lords and the crucial question of the effect of the possible independence of Scotland. Above all, a convention should consider the powers and functions of the Lords and Commons, and deal with the fact that we would have two elected Chambers comprising what Erskine May describes as “representatives of the people”. There would be two such Chambers but with no written constitution to work out which Chamber would prevail in the event of a dispute—a point made so eloquently by the noble Lord, Lord Kakkar.
The noble Lord, Lord Ashdown, thinks that it will all work itself out, as he claims that it has in the past—a prospect of, “Well, let us see what happens”. That is an irresponsible attitude and one that no sensible Government should proceed on. The noble Lord did not answer the point about a written constitution leading to the possibility of the courts having a direct role in the conduct of Parliament. Perhaps the Minister would like to give that one a shot when he replies to the debate.
I make no apology for emphasising that before we get this Bill—if we do—we need some proper costings, with options properly, openly and transparently done to see what the price of 300 of 450 additional, salaried politicians would be. Or we could try the other way, as described in the alternative report. Constitutional conventions are a sensible way to find answers to complex questions—ones not answered in the Bill or White Paper, or by the Joint Committee. So far, nothing has produced a consensus on what should happen if there is an elected House. I ask the Minister to give this suggestion some serious thought, not simply to shrug his political shoulders and say that it is not something that he is prepared to consider. It will take time and effort but it could produce results, although not quickly. It may produce something far more durable and workable than the current Bill.
The noble and learned Lord, Lord Lloyd of Berwick, said that the alternative report made no mention of the Wakeham commission. It does. It does so twice in warm terms. If the noble and learned Lord reads paragraph 5.8, he will see that the royal commission is referred to as having been chaired by the former Leader of both the House of Commons and the House of Lords, the noble Lord, Lord Wakeham, and as having given the fullest recent consideration to a range of proposals on further reform of the House. It is further referred to at paragraph 5.2. If the noble and learned Lord would like to reread the alternative report, I have one or two spare copies.
Baroness Symons of Vernham Dean
If I may, I shall just finish my point and then of course I shall give way.
Each generation has to look at this again. It has been 12 years. A lot has happened in the past 12 years. This generation of politicians has to look again at the issues to try to find answers for the 21st century.
Lord Lloyd of Berwick
I thank the noble Baroness for giving way. Of course I accept that there were passing references to the Wakeham commission, but the question is: why does the alternative report not accept the conclusions of that royal commission?
Baroness Symons of Vernham Dean
My Lords, I hope that I have answered that. I do not think that they are passing references. I think that the noble and learned Lord does scant justice to the fact that both references to the commission are warm. I hope that I have answered his point: why not just accept it? Because every generation of politicians has to reach its own view, consensus and compromise. That is what is necessary now.
A constitutional settlement is needed between the two Houses and between the constituent parts of the United Kingdom. A settlement of two elected Chambers with commensurate powers may well emerge. On the other hand, something very different may emerge. What cannot emerge is this totally inadequate Bill on Lords reform. The Bill is fundamentally flawed, and we should not waste further time discussing it. Rather, we should concentrate on where we can get consensus, and we should do that as soon as possible.
Lord Bichard
My Lords, it is always tempting to believe that simple changes will solve complex problems. Indeed, many of us have reached these giddy heights because we have convinced others that we have a simple solution to their complex problem. Too often, our simple solution has involved changing the composition or structure of our national institutions, which is why so many of them have changed so rapidly over the past decade or more.
The reality, of course, is that changing the composition or structure of an institution rarely improves its performance. To do that, you have to look beyond the structure and examine how it operates and how the systems work or do not work. In the context of reform of this House, the lesson of experience is that changing the composition of the House will achieve little. Actually, that is not quite true: it will undermine the primacy of the other place; it will add yet further elections to our increasingly confused democratic landscape; and it will probably increase, rather than reduce, political patronage.
The sadness is that reform is needed; indeed reform is overdue. The noble Baroness, Lady Hayman, and the noble Lord, Lord Steel, have pointed us in the direction of reforms with which we would probably all be able to agree, here and in the other place. Our reforms should also address the current shortcomings of Parliament, not just of this House. Regrettably, those shortcomings are not difficult to find. I say that so as not to be accused by the noble Lord, Lord McNally, of being smug. For a start, as other noble Lords have said, we simply have too much poor quality legislation. As the noble Lord, Lord Butler, found out by asking a Question for Written Answer in January, significant parts or all of 77 Acts from 15 departments passed between 2005 and 2010 have never even been brought into force. I am not entirely surprised about this because I remember how departments, Ministers and senior civil servants saw legislation as a way of demonstrating their importance, so they fought hard for their place in the gracious Speech. I have to say that it was also a very convenient way of occupying the excessive number of Ministers that most departments have.
If we are to balance this continuous pressure for more legislation, we urgently need a process for ensuring that the Government have to explain the purpose and the necessity of any new Bill. They have to set out for examination the likely benefits, as well as the costs and risks, and indicate whether real, reasonable consultation has taken place with those who are affected. As yet, we have no such system. We have committees to scrutinise statutory instruments but we have no similar scrutiny of primary legislation before it reaches the Floor of this House. That is why one of the key recommendations of the Leader’s Group on working practices was to establish a legislative standards committee. We have not yet implemented that, which I assume means that we are relaxed about spending huge amounts of our time debating legislation which will not even be implemented.
We seem similarly relaxed about the impact of legislation which has been implemented, because Parliament has little effective post-legislative scrutiny in place. In the other place, departmental Select Committees rarely, in all honesty, find time for rigorous post-legislative scrutiny, while in this House, although we have recently agreed to carry out one post-legislative review in this Session—of course, I welcome that—this again falls some way short of the recommendations of the Leader’s review and hardly represents a firm commitment to the rigorous scrutiny we need if we are to learn the lessons of success and failure.
The problems do not end there. As other noble Lords have said, in this House we often—even in my time—have had cause to express disappointment at the quality of legislative scrutiny in the other place. The noble Lord, Lord Phillips, remarked on this earlier. Programming arrangements mean that the Executive are often not held adequately to account, which means that draft legislation reaches this House in poor order. I have been shocked at the quality of some Bills which have come to this House during the past two years. Of course we take pride—justifiably, I think—in the quality of scrutiny in this House and many Bills have certainly been significantly improved as a result, but we also saw in the previous Session many examples of how reasoned amendments made in this House received very scant attention when referred back to the other place. The fact is that the balance of power has shifted away from Parliament and towards the Executive, in a way that is not healthy for parliamentary democracy and should now be addressed. Surely there can be no more urgent or important issue than that in a parliamentary democracy.
I could cite other issues which should give us cause for concern. For example, there is the continued relative lack of pre-legislative scrutiny. I welcome the increased number of draft Bills in this Session, for whatever reason, but pre-legislative scrutiny is not something to which we generally feel committed. There is the failure properly to engage interest groups and expertise beyond Parliament. I might even refer to the complete failure to codify, or even describe, the key constitutional relationship between central and local government.
Yet, in the face of these shortcomings, we prefer to debate at great length whether we should change the composition of the House. As has been said already, the public have shown themselves to have little interest in that. If we look, as the noble Lord, Lord Phillips, did earlier, at the latest audit of political engagement from the Hansard Society, we see the consequences of our failure to address the other issues that I have referred to. I make no apology for touching on those findings again. Less than one-quarter of the public thinks that the system of governing works reasonably well in this country. Only 49% agree that the issues that are debated and decided in Parliament have relevance to their lives. Only 38% agree that the Government are held to account by Parliament, and only 30% agree that Parliament does enough to encourage public interest and involvement in politics. Those results are devastating, and in the face of those devastating results we might just ask ourselves whether further lengthy debates about the future composition of this House will reverse those trends better than us showing signs that we are committed to genuine and radical reform of the way in which we and the whole of Parliament operate.
My view is that further debate will do further damage to the reputation of this House and of Parliament, but I am convinced that it will also further delay the necessary reforms that I and other noble Lords have referred to. Surely this is the time to withdraw this unwelcome Bill and commit ourselves to reforming Parliament in a way that the public will understand and recognise.
Lord Pannick
My Lords, this Government have a poor record on constitutional reform. The observations of your Lordships’ Constitution Committee, of which I am a member, on the Fixed-term Parliaments Bill may perhaps be applied more generally. The Government’s legislative proposals have owed more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand.
The Fixed-term Parliaments Act was no doubt a political necessity for this coalition but I know that I am not the only noble Lord who thinks that its constitutional merits are far less obvious. The Parliamentary Voting System and Constituencies Act introduced a rigid formula for constituency boundaries. Your Lordships will recall that this was the high price paid by the Liberal Democrats—one which their candidates will be paying at the next general election—for a referendum on a system of electoral reform, AV, which even the Liberal Democrats believed to be unsatisfactory.
I hope that in this Session of Parliament, as we debate the constitutional Bills to be brought forward, the Government might be more willing to listen to constructive criticism from this House on their proposals. The noble Lord, Lord Bichard, mentioned the problems that we have had in the past two years.
This fascinating debate has focused, predictably and understandably, on reform of this House, but there are at least five constitutional measures in the gracious Speech. The first is the very welcome measure to reform the rules governing succession to the Crown so that the oldest child of the late monarch will succeed, not the oldest son, and to remove the unjustifiable bar on the monarch marrying a member of the Catholic faith.
The second constitutional measure is the Electoral Registration and Administration Bill, which the noble Lord, Lord Rennard, spoke about earlier. I am disappointed that the Bill published does not seek to implement the recommendation made by your Lordships’ Constitution Committee in its report dated 25 January 2012 that anyone on the electoral roll who is in the queue to vote at the polling station at 10 pm should be allowed to vote. The present system, as seen at the previous general election, prevents people voting even though they turn up at the polling station before 10 pm and if there is a failure, beyond their control, by the returning officer to ensure that an adequate number of staff is on duty to meet the demand. This is a matter of real constitutional importance. We are all concerned about the low turnout in elections. It is surely desirable to accommodate those who make the effort to turn out to vote and who arrive at the polling station before it closes at 10 pm.
The third constitutional measure is contained in Schedule 12 to the Crime and Courts Bill that your Lordships’ House will soon be considering. I welcome the provisions contained therein to promote judicial diversity. The measures are very similar to those recommended by your Lordships’ Constitution Committee in its report published in March.
The fourth constitutional measure is that the gracious Speech mentions a Bill to allow courts to hold closed proceedings in cases that have national security implications. Your Lordships’ House will want to scrutinise most carefully any such provision to ensure that limitations on open justice are approved only to the extent strictly necessary.
The fifth constitutional measure is, of course, the Bill to reform or, as some noble Lords have suggested in this debate, destroy this House. Your Lordships have heard some exceptional speeches on both sides of the argument. I am, I think, in a very small minority of your Lordships on this issue. I can see the strength of some of the arguments on both sides. That may help to explain why I earn my living as an advocate, not as a judge.
It is very clear that there is a very strong argument that this House as presently composed performs well its limited role, but vital function, of scrutinising legislative proposals. There is a very strong case that an elected House would not be prepared to defer to the House of Commons and so would threaten the primacy of the other place, but surely we also have to recognise that there is a very strong argument that membership of a legislative Chamber, even one with limited powers, most of whose Members answer to a political Whip, cannot continue to depend on patronage. It should be based directly or indirectly on the will of the electorate or be amended in some other fundamental manner.
There are strong arguments on both sides. Noble Lords should not be surprised that there are strong arguments on both sides of the case. It is precisely because of the strength of the competing arguments and the impossibility of reconciling them that this issue has festered and has not been resolved for over 100 years.
It is plain from the speeches in this debate, the Joint Committee reports and the debate on those reports that we had a couple of weeks ago that one of the central questions for the Government, which they have not yet answered, is: what measures will be included in the Bill, when it is brought forward, to preserve the primacy of the other place? As I understand it, that objective is shared by the proponents and opponents of the Bill. Indeed, in his speech on 1 May, the noble Lord, Lord Hunt of Kings Heath, said from the opposition Front Bench that this,
“is perhaps the most crucial point of all”.—[Official Report, 1/5/12; col. 2102.]
I respectfully agree with him. That question has always been at the heart of the debate about the future of this place.
Noble Lords will know that in his stimulating book about the Parliament Acts, Mr Balfour’s Poodle, written in 1954, Roy Jenkins—Lord Jenkins of Hillhead—said that reform of the composition of the House of Lords had been so long delayed because what he called “the left” in politics was,
“interested above all in the supremacy of the Commons”,
and so,
“sees the relationship between the two Houses, rather than the composition of the second, as the dominant issue”.
In my evidence to the Joint Committee, I addressed one vital aspect of the primacy of the Commons. I suggested that, as a matter of law, the Parliament Acts would not continue to apply if a House of Lords reform Bill were to be enacted so that the upper House had an 80% or 100% elected membership. The simple reason for that is that the Parliament Acts were expressly concerned with the interim period prior to reform of this place. The noble and learned Lord, Lord Goldsmith, gave evidence to like effect, and I am pleased that the noble and learned Lord, Lord Mackay of Clashfern, said in this debate last Thursday that he took the same view of this matter.
I suggested in my evidence to the Joint Committee that any Bill brought forward by the Government should contain express provisions that addressed whether and to what extent the Parliament Acts would continue to apply. I did so because the inevitable and wholly undesirable alternative is that this fundamental matter would be left open to doubt and would eventually be resolved by the courts, rather than by Parliament. The Joint Committee concluded in paragraph 368:
“If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision”,
in the Bill. The committee agreed with the evidence that was given by me and the noble and learned Lord, Lord Goldsmith. The Minister and the Leader of the House have been very reluctant to express the Government’s view on this vital question. In responding to this debate, will the Minister now please answer this point and tell the House what the Government’s position on this matter is?
Finally, on the more general question of reform of this House, I ask the enthusiastic supporters of the reform Bill to recognise that many noble Lords, of whom I am one, who are concerned about the implications of the Bill, particularly for the relationship between the two Houses, are as committed to democratic principles as they are. There is no monopoly of concern about democratic principles on one side of this argument. The noble Baroness, Lady Hayman, made that point most eloquently today.
A consensus exists on the way forward on these difficult issues where there is a battle between right and right. The consensus would involve as a vital and much-needed next step in House of Lords reform measures that would include a reduction in the size of this House, an end to by-elections for hereditary Peers, the exclusion of noble Lords whose ignoble conduct makes it wholly inappropriate for them to remain Members of a legislative Chamber and, I would suggest, the removal of the Prime Minister’s powers of patronage and their replacement by a statutory appointments commission. I very much hope that the Government will recognise that such measures of reform would be a substantial, worthy and realisable achievement.
I look forward, as I am sure do other noble Lords, to contributing to the vital scrutiny by this House of the constitutional measures to which the gracious Speech refers.
Lord Falconer of Thoroton
My Lords, I apologise to the Leader of the House, my noble friends Lord Hunt of Kings Heath and Lord Wills, the noble Lords, Lord Tyler and Lord Wakeham, and the noble Lord, Lord Maclennan, who, sadly, is not here to receive my apologies, for being absent when they made their speeches. I have read them in Hansard and I shall return to them in my winding-up remarks. I also apologise to the noble Lords, Lord Stoddart of Swindon and Lord Thomas of Swynnerton, because I was having my supper at the time that they made their speeches. My noble friend Lord Hunt of Kings Heath has told me all about their speeches and has spoken about them in the warmest possible terms.
Over two days, we have debated the constitutional aspects of the gracious Speech. We have devoted the vast majority of that debate to the proposals for reform of your Lordships’ House. I anticipate that in this Session of Parliament, this House will do very important things about constitutional reform and that that will have nothing to do with Lords reform.
Before I turn to wind up the debate from our side of the House on Lords reform, I wish to comment on the particularly important things that the Government will do. First, the royal succession is important and we support the proposals being made by the Government to do away with male primogeniture. We will do everything in our power to help those proposals go ahead. We agree that these must be done in such a way as to preserve our relationship with the Commonwealth. We believe that there is a degree of urgency in relation to those proposals.
Electoral registration is the second important constitutional issue that will be faced by this House in this Session. I agree with what the noble Lord, Lord Pannick, says but there is a more important point in relation to that as well. However much we debate the importance of the House of Lords in our constitution, the one thing on which no one disagrees is that the Commons is where the pivot of our democracy takes place.
As my noble friend Lord Wills mentioned in his excellent speech on electoral registration, the Electoral Commission has said that if the Government’s proposed reforms go forward in their current form—introducing individual registration without tying it to a comprehensive improvement in the amount of registration—it is possible that the number of people who are registered could go down from 90 per cent to 60 per cent. We have focused very much on Lords reform and not on that issue, which has an immediate and definite effect on our democracy.
I ask the noble Lord, Lord Wallace of Saltaire, who I understand will be winding up on behalf of the Government, what their response is to what the Electoral Commission says on the effect of individual registration. What steps are the Government taking and what expenditure are they making to ensure that electoral registration does not go down significantly as a result of proposals that are being made? It is important to emphasise that the people who are most affected by a lack of registration are the poor, the disabled, the young and those from the black and minority ethnic communities among us. So it is an important issue for the Government to address.
The next issue on constitutional reform that I believe to be important is judicial diversity. It is of immense importance as far as the country is concerned that we have a judiciary that reflects our society. There is no doubt that our judiciary, which is excellent in very many respects, does not reflect in its gender and racial balance the country that it judges. We would be very keen to see detailed measures and, in particular, those that move away from the situation in which the person at the top of the class gets appointed to judge, to one which looks at merit in a much wider context, as we believe it should be. That is the basis on which the Constitution Committee of this House addressed the issue, and we strongly support that approach. Could the Minister tell us when we can expect a Bill to deal with that?
Another issue to affect the constitution is the defamation Bill. The noble Lord, Lord Mawhinney, was right that it will have a significant impact on freedom of speech. The committee that the noble Lord, Lord Mawhinney, chaired was an important one, and we should try to give effect to the proposals that it made.
The final constitutional issue, before I come to Lords reform, is that of Europe, which is not referred to in the gracious Speech, save in the mention of proposals to be put before the House to admit Croatia as part of the European Union. The noble Lord, Lord Elton, and the noble Lord, Lord Owen, in what was an exceptional speech, and my noble friend Lord Giddens are right to say that there are things happening in Europe that are of greater importance than many of the other things that we have to debate. What do the Government say is the UK’s position on the change in arrangements and structure of Europe that is being proposed in some quarters and which will inevitably have to be given effect to deal with the eurozone crisis?
Those are the issues that we will be dealing with in the course of the next year, the issues that will affect our constitution, and the issues on which I hope we will have a role and voice in this House. They affect our country much more than Lords reform.
Where are we on Lords reform? Although I missed all the speeches that I indicated, I had the pleasure of listening to the other 46 speeches during the course of the Thursday and Monday. It is true to say that there were some very exceptional and penetrating speeches in relation to the issue. Without being invidious, I wish to single out the speech of the noble and learned Lord, Lord Mackay of Clashfern, which completely encapsulated the relationship between electoral mandate and the powers of the House. I refer also to the speech of the noble Lord, Lord Norton of Louth, who expressed very clearly that our electoral system is based on the fact that we have a Government in the Commons, and if you do not like that Government you throw it out by election. The effect of changing that is that you fragment—to use his word—accountability.
Then there was the speech from the noble Baroness, Lady Shephard, who completely got right the fact that it is obvious that the work has not been done on this Bill. She did not say it in capital letters, but I felt that it was in capital letters, and her message to the Government was, “Do the work”. That is obviously right. The Leader of the House said, “Well, hold on, it is proposals from the noble and learned Lord, Lord Falconer, and Jack Straw, on which we are building”. We both put forward proposals which foundered on the fact that we could not deal with the powers and electoral accountability issue. We learnt from that. We thought that if the Leader of the House was going to come forward with proposals, he would have a solution to that problem. I waited in anxious hope for such an answer to come. Unfortunately, although I was not present when the noble Lord delivered his speech, all that I got from it was effectively abuse of the Labour Party. As I understand it, he said that if we did not support his proposals—the noble Baroness, Lady Boothroyd, floated this—the failure to get reform would be,
“entirely due to Labour’s conniving and collective spinelessness”.—[Official Report, 10/5/12; col. 31.]
I was very surprised to read that. If I were trying to build consensus, I asked myself whether the way to do so would be to abuse the noble and learned Lord, Lord Falconer of Thoroton, and all his colleagues. No, so I wondered what the noble Lord’s motivation was for abusing me. Then I reached for the previous Saturday’s Financial Times and read that the noble Lord the Leader of the House had wagged his finger at the Commons, saying that the moment we had an elected element we would be much more assertive against the Commons.
I completely agree with what the noble Baroness, Lady Boothroyd, said. Was the noble Lord trying to encourage dissent in the Commons? He points at himself and shakes his head in his inscrutable way. The most telling aspect of the whole story is this: if he really wanted consensus, would he not resort to his normal oleaginous charm? Would he not talk to us in that deferential way that we have come to love in the House of Lords? We know that he does not believe in almost everything he says, but at least he tries to persuade us. However, that is not the case on this occasion; he has switched to a completely new mode.
Where are we then on Lords reform? I cannot hope to match the quality of some of the speeches that have been made but I shall seek to analyse where we have got to. Everybody, including the proponents of the Bill, now agree that it is unlikely that the relationship between the two Houses would remain the same if we kept everything the same, except for making all or the majority of the Members of this House, elected. The Joint Committee said unanimously—this is not the alternative report; every single person on the Joint Committee said this—that,
“following election the increased assertiveness of a reformed second chamber will affect the balance of power between the two chambers in favour of the House of Lords”.
The alternative report expressly agreed with that position. If we have had the opportunity to read the Financial Times of two Saturdays ago, we will know that the Leader of the House of Lords also agrees with that proposal.
The Government’s proposals were advanced on the proposition that we do a good job in the House of Lords and that everything should remain the same except the method of entry. In the light of the unanimous view that election will affect the balance of power between the two Houses, it is plain that the aim and stated purpose of the reform—namely, to leave everything the same except method of entry—has not been achieved. The approach of the noble Baroness, Lady Shephard, with which everybody agrees, is that more work needs to be done to address the question of powers. According to the noble Lord the Leader of the House, the Conservative Party is divided on whether there should be Lords reform and, if so, what the form of that reform should be. My party is not committed to supporting the current proposals. It believes, as do many people, that the problem of powers is unresolved and that a hybrid House of the sort proposed would reduce the validity of non-elected Peers, who would tend to give way to the elected Peers. We are committed to there being a referendum before any significant proposals for Lords reform can proceed.
Lord Ashdown of Norton-sub-Hamdon
I wonder if the noble and learned Lord could be clearer than was his noble friend, the noble Lord, Lord Hunt, in our debate last Thursday, in which he seemed unclear as to whether or not, if this Bill were presented to this House absent of a clear codification on the issue of powers, the Labour Party would vote in favour of it. Can the noble and learned Lord enlighten us? If the Bill comes in that form, without a clear codification, will the Labour Party vote in favour of it, or will it not? Yes or no.
Lord Falconer of Thoroton
My noble friend Lord Hunt was absolutely clear. We will not vote for a Bill that does not solve the problem of the powers. We do not believe that the draft Bill does that. As my noble friend made clear, we will have to wait and see what is then produced. There was absolutely no lack of clarity in what my noble friend Lord Hunt of Kings Heath said in relation to that issue.
Our position is clear. The Conservatives’ position is clear. I should also make it clear that I thought that two of the parties were divided internally as to what to do—the Conservatives and Labour—and that the Liberal Democrats were united. Imagine our surprise when we saw them today. First, we had the greatest exponent of Lords reform, the noble Lord, Lord Tyler, who, to his great credit, did not even mention Lords reform. We heard the excellent noble Lord, Lord Phillips, give an inspirational speech on how well the Lords performs now; we had the noble Lord, Lord Maclennan, saying that more thought was required; and the two proponents of Lords reform were the noble Lords, Lord Ashdown and Lord Rennard.
The passion of the noble Lord, Lord Ashdown, for reform was so great that he did not allow history to get in his way; he did not allow foreign comparisons to be drawn accurately; and he was, on two separate occasions, corrected on the facts in relation to his speech. Nobody, particularly those in the Egyptian Parliament, could have doubted his enthusiasm for Lords reform. I wonder whether enthusiasm is enough. Surely it would be much more sensible if we got down to the arguments in relation to it.
I continue on the propositions: there is no doubt that the Joint Committee was divided on the way forward. The Lords is, by a very substantial majority, I would opine, opposed to the Government’s reforms. The Liberal Democrats, however, are, by a majority, in favour of reform but appear to have nothing to say on the detail. The current position is obviously a very bad basis for reform. I am very sympathetic to the position of the Leader of your Lordships’ House, who everybody admires and likes. Like him, I embarked on proposals for reform—but they foundered. The right thing for the noble Lord to do is to come forward with proposals that have some prospect of success.
We know that we all agree on certain things. The speech of the noble Baroness, Lady Hayman, went much further than the Steel Bill, and we can implement those proposals as quickly as possible. The answer for us, in terms of ensuring that we retain our effectiveness and status, is to come forward with detailed proposals that would be attractive to people. It is ultimately not enough to have the excellent passion of the noble Lord, Lord Ashdown, and the position of the noble Lord, Lord Strathclyde—
Lord Maclennan of Rogart
I am most grateful to the noble and learned Lord for giving way, but does he not agree that we cannot move on this subject in a sensible way until we know whether the constitution of the United Kingdom will remain one, or whether Scotland falls out—in which case, a completely different House of Lords or second Chamber would be required?
Lord Falconer of Thoroton
I think that we could move on some proposals for reform—for example, the ability of Peers to retire, the ability to expel particular sorts of Members to deal with the hereditary Peers, and various other proposals made by the noble Baroness, Lady Hayman. If there were a consensus and a genuine feeling that the Commons desperately wanted a democratic House of Lords, we should probably move on that basis, but that is obviously not the position. That being so, I completely agree that we need to consider what may happen in relation to Scotland before any final conclusions are made. However, the ball is very much in the Government’s court.
I want to comment on the way that the Government are behaving in relation to this issue at the moment. I particularly have in mind the remarks made at the beginning of this debate by the noble Lord, Lord Strathclyde, who is preparing to lay the blame for the failure of these Lords reform proposals. If one starts to prepare the way for failure and to wonder where the blame lies, then we are really wasting our time looking at these proposals. Let us give up now if there is no commitment from the person who is supposed to be leading the process of reform on behalf of the Government. There could not be a clearer signal that the Government are wasting the time of this House and the other place and bringing the whole of Parliament into disrepute than that they should try and fail to amend the arrangements for the constitution.
I should be very interested to hear from the Minister when we can see a Bill on this issue. The noble Lord, Lord Strathclyde, made it clear that we have not yet seen the Bill that the House will consider when it comes from the Commons. I should be interested to hear whether the Government intend to impose a timetable Motion in relation to the Commons’ consideration of this constitutional Bill. My third question relates to the extent to which the door is closed on a referendum. If the door is closed and we are not going to have a vote on whether the second Chamber should now be elected, why did we have a vote on whether admirable places such as Doncaster should retain their mayors? Can the Minister explain the Government’s position on this?
I regarded myself as one of the greatest enthusiasts for the topic of Lords reform. However, having listened to 46 speeches stretching from Thursday to Monday, I have to say that my enthusiasm has waned a little. If the enthusiasm of an anorak such as myself has waned, imagine how the country will view the issue.
Lord Wallace of Saltaire
My Lords, we have spent some considerable time on this debate with the agreement of all the usual channels, and I sometimes fear that the House of Lords loves nothing better than to talk about itself at considerable length. We have heard a full array of opinions, with the debate ranging very widely over constitutional theory and the principles of democracy, but that makes it impossible for me to answer all the points made, for which I must apologise. Some interesting and novel ideas were expressed. Among them I particularly noted the fascinating ideas of the noble Lord, Lord Campbell-Savours, on reshaping the parliamentary oath, and I think that they deserve fuller consideration before any of us respond.
I start by referring, as have many noble Lords, to the wider context of political disillusionment and the coalition Government’s response to it. I know that it concerns a great many of us and it ought to concern us all. Reform of this place and the opening up of Westminster is part of the response but the Government are very clear that the localism agenda, bringing power back down again to local communities and local authorities, is a necessary part of re-establishing public trust in what to many of them seems remote government. Professor Sir John Baker, in his evidence to the Joint Committee, listed the balance between central and local government as one of the constitutional issues that ought to be dealt with by a special procedure.
Over the past 40 years the balance between central and local government has shifted quite radically under successive Governments, through the process of legislation and statutory instruments, without considering whether it was fully constitutional. This Government are now trying to shift that balance back.
A number of noble Lords—the noble Baroness, Lady Armstrong, the noble Lord, Lord Grocott, and others—held that the key to British democracy is the direct link between the local voter, their MP in the Commons and the ability of Members of Parliament to challenge the Prime Minister on that voter’s behalf. With respect, I suggest that the declining turnouts in general elections indicates that a rising number of voters do not feel that that single link carries the full weight of their confidence or trust. It is too distant and too remote, which is something that we all need to think about as we try to rebuild trust.
We also had a number of arguments from former Members of the other place about the threat of competition in democratic representation. There was a theory, which I understand, that there can be only one territorial representative. That is what I think of as an MP’s freehold, or at least an MP’s leasehold for five years, and is not unlike a parson's freehold. I am not sure how the public respond to that argument either. I should perhaps add that between 1997 and 2005 the then Labour MP for my constituency in Yorkshire, Shipley, delighted in putting on his website that the village of Saltaire included a whole raft of representatives: a Member of the European Parliament who lived there; a Member of the House of Lords—me—two local councillors and the MP himself. In fact, we campaigned together on local issues. Although we represented three different parties, we did not fall over each other. I doubt whether the greater empowerment of local councillors will threaten MPs.
The noble Lord, Lord Wills, and others raised the question of the individual electoral registration Bill, which has now been published and will shortly be introduced. We have put a number of extra safeguards into that Bill, such as using data matching to confirm the majority of existing electors and automatically retaining them on the register, which we are confident will ensure the completeness of the register during the transition. However, we look forward to detailed scrutiny of the Bill when it comes to the House.
Lord Wills
As this is so important—I know that it is very late—I would be grateful if the Minister would say what gives him such confidence that the register will be so comprehensive. It is not comprehensive now. Every independent expert thinks that the way in which the Government are introducing individual registration will make it even more flawed. When I was the Minister and brought in most of the measures that the Government now think will make the register comprehensive, I was not confident that they would make it comprehensive. It was because I was not so confident that we tied the introduction of individual registration to the comprehensive nature of the register. Why is the Minister now so confident that there will be a comprehensive register in the next two years?
Lord Wallace of Saltaire
The Bill has just been published and we shall be discussing this in some detail. I am not entirely confident that any means can achieve a totally comprehensive, accurate and complete register. I spent two weekends working in the Bradford West by-election, going along roads where the houses had several names on the bell-pushes but no one on the register. That demonstrated to me that, in a number of places, the register is already quite inaccurate. The Friday that I spent with a community association in south Bradford, where I discovered a large number of people who positively do not wish to be on the register, also demonstrated the sort of problems that we are up against. We shall discuss this further, and the Government are very well aware of the concerns that we all have.
Let me just mention the issue of judicial diversity. On 28 May we shall have the Second Reading of the Crime and Courts Bill in this House, and judicial diversity is one of the issues that will come up then.
A number of Peers have mentioned the royal succession. I am glad that that has received a welcome. The noble Baroness, Lady Symons, suggested that we should move on to primogeniture in hereditary titles. I have to say, individually, that I look forward enormously to the Private Member's Bill which I suggest she might like to introduce on that subject.
I move on to the question of Lords reform, which most Peers have been discussing in this constitutional affairs debate. It was suggested that the Government and Parliament were not capable of handling Lords reform and a range of other issues at the same time. Given that during the final three years of World War II we fought the war and introduced a number of radical social and educational reforms, that assertion seems a little strong.
The noble and learned Lord, Lord Falconer, asked when we would see the Bill—to which I of course answer, with immense confidence: “Soon”. However, we are still considering the conclusions of the Richard committee and the alternative report that were published only recently. Those considerations and related discussions will feed into the final shape of the Bill.
Baroness Royall of Blaisdon
Perhaps I may return to the statement of the Minister that of course it is possible for the Government to deal with House of Lords reform alongside all the other things that they wish to discuss. Why therefore are they proposing that perhaps five of the most important Bills outlined in the Queen’s Speech, on such matters as energy and banking, may well be carried over into the next Session? Why are they considering that?
Lord Wallace of Saltaire
My Lords, this will be a shorter Session than the last one, as I am sure all noble Lords have noted. We will see what progress we can make. The speed with which progress will be made on the Lords reform Bill and on other Bills will depend on the reasonableness with which they are met in each of the two Chambers.
I move on to the question that a number of Peers raised about the rationale for the Bill. There are three important points. The first is that we are a transitional House. The noble and learned Lord, Lord Irvine, said:
“The transitional House which will be created as a result of the Bill will be exactly that: transitional and not permanent”.—[Official Report, 11/5/99; col. 1092.]
The Labour Government promised on more than one occasion to take the next step. In this Chamber on 20 July 2007 the noble Lord, Lord Hunt, then a Minister, declared:
“We have the prospect of agreement between the parties on the way forward”.—[Official Report, 20/7/07; col. 535.]
He stated that this was for the House to be “substantially or wholly elected”. We are moving on to the next stage now because the previous Labour Government failed to do so—and we are closely following the model that they intended to put forward.
Since 1999, we had a royal commission chaired by the noble Lord, Lord Wakeham; a first White Paper from the then Labour Government; a Joint Committee; a Green Paper; a second White Paper; a cross-party working group; and, finally, a third White Paper and two reports that we have debated over the past 10 days. In May last year, the Government published a draft Bill—and now is the time to move forward.
The issue of composition arises because we are a patronage House, and the patronage that leads us all here is something that we think is not sustainable. The third is that we are talking about evolutionary reform: the next stage in a pattern of Lords reform.
Lord Cormack
As one who has heard every single speech in the debate, and who did not leave the Chamber on any occasion, might I ask my noble friend to be a little more receptive to the consensus that has emerged in this House during the debate—namely, in the words of the noble Baroness, Lady Hayman, that there would be a very large measure of agreement around a Steel-type reform, but that there is genuine, deep and bitter concern about the proposal to drive forward with elections for which certainly there is no consensus? Will he not at least report that to the Deputy Prime Minister before the Bill is finally drafted?
Lord Wallace of Saltaire
My Lords, I recognise the noble Lord’s concerns and I compliment him on the speed with which he has moved from being—as he described himself—a House of Commons man to being very clearly a House of Lords man. Of course I will report back to the Deputy Prime Minister, and the Cabinet Office Bill team had read Thursday’s debate when I discussed it with them this morning. We are listening, but we have not only the opinion of this House to take into account as we move forward.
I move on to the question of a constitutional convention, which appears in the alternative report as a strongly proposed idea and has met with a lot of sympathy around this House. The noble Lord, Lord Norton, went further and suggested that we should approach constitutional reform “from first principles”. The only time that I can recall that the English were tempted to rethink our constitution from first principles was between 1647 and 1650. It was a revolutionary period when the king was beheaded, the Putney debates discussed fundamental principles of authority and democracy and some of the parliamentary army mutinied. Since then, the British have prided ourselves on our unwritten constitution, which changes through evolution rather than revolution. Indeed, the noble Lord, Lord Norton, entitled the chapter in one of his books “Our Uncodified Constitution”.
The alternative report says that constitutional conventions are a well known process in other countries and cites France’s National Convention of 1792 and the American conventions of 1786 and 1787 as appropriate examples. But in France and in the USA these followed revolutions. They beheaded the king in France too.
Alfred Dicey stated in his introduction to Law of the Constitution that it rests on two pillars: parliamentary sovereignty and the rule of law. The noble Lord, Lord Hennessy, in his book, The Hidden Wiring, quotes the first Lord Esher summing up that the underlying principles,
“of our written constitution rest on precedent and reasonableness”.
Reasonableness or restraint expressed through conventions has, in our constitution, moderated the primacy of the Executive and their use of the doctrine of the primacy of the Commons.
Some of those who support the arguments of the alternative report are in effect highly radical, wanting to shift the United Kingdom towards a written constitution. The Americans, mistrustful by far of any Executive, produced from their convention a written constitution designed on the principle of mistrust and unreasonable behaviour. It was designed therefore to lead to deadlock on occasions between Congress and the President and between the two Houses of Congress, as we see now. None of us wants a constitution like that.
The question of costs has been raised. The Government have not yet been able to produce their estimates of costs partly because of the size of the House. The Government’s draft Bill proposed 300 Members and the Richard committee proposed 450. Of course, that makes a difference. If we have 450 part-time Members, it might cost little more than 300 full-time Members. The costs of a constitutional convention proposed by the alternative report would themselves be very considerable. The noble Lord, Lord Jenkin, asked about the Government’s thinking on severance payments for retiring Peers. I am not aware of any discussions within the Government or any proposals on that basis, but that raises questions of costs as well.
The question of how we search for consensus is rather like hunting for the Snark. The noble and learned Lord, Lord Lloyd of Berwick, reminded us all of the immensely constructive work of the Wakeham commission 10 years ago. I found the contribution of the noble Lord, Lord Wakeham, to this debate constructive and wise. He reminded us that his report was received with much hostility at the time. More than 10 years later, it seems more acceptable because it is less radical than the draft Bill, just as the Steel Bill which was so strongly opposed in this House when it was previously presented, has now become much more popular now that it appears to be the lesser evil.
The noble Lord, Lord Wakeham, said that the Labour Party,
“has to think again about the idea that it can have 100% elected membership. It is quite simply unrealistic. A consensus outcome will not produce that”.—[Official Report, 10/5/12; col. 49.]
Perhaps I may quote one more remark made by the noble Lord, which I think all noble Lords would do well to consider. He said:
“I suggest that we use with some humility the position that we are somehow superior in public perceptions and in our judgment of the public good”.—[Official Report, 10/5/12; col. 50.]
We have to remember that the way this Chamber handles proposals for its further reform will reflect on its reputation outside. We have to understand the likelihood that at some point the sketch writers and tabloid columnists will look to see how they can make fun of this House as well. I would suggest to the noble Baroness, Lady Knight of Collingtree, that it is unwise to describe membership of the Lords, as I think I heard her say, as “peaceful retirement”. If the image of the Lords becomes that of a retirement home for former MPs, and that were to catch the attention of the popular press, the prestige of this Chamber would not be raised.
Lord Falconer of Thoroton
My Lords, one of the ways in which this House has gained a reputation is because there is proper debate about the issues. Many noble Lords have asked the Government to give their answer to the issue about the change in the powers and assertiveness of this House. From the Dispatch Box, the Minister has given absolutely no reply. He appears not to be willing to address what anyone who has been in this Chamber for the past two days would have regarded as the central issue. That is disappointing and it demeans the standard of the House.
Lord Wallace of Saltaire
My Lords, I was just coming to the issue of Commons primacy. The issue of primacy is partly a matter of whether one wishes to have a written constitution or one operates on the conventions of an unwritten constitution through restraint and reasonable behaviour. Of course we acknowledge the view of the committee that Clause 2 is not capable in itself of preserving the primacy of the House of Commons, which a number of noble Lords have cited, but we should listen to the committee in full when it said:
“A majority, while acknowledging that the balance of power would shift, consider that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation”.
The primacy of the Commons rests on many pillars. These include the conventions governing the relationship between the two Houses, the Parliament Acts of 1911 and 1949, and the fact that the Prime Minister and most of the Government of the day are drawn from the House of Commons. The whole of the House of Commons will be renewed at each election, and that will clearly be the election in which the Government are chosen. The second Chamber will have, as the noble Baroness, Lady O’Neill, termed it in her interesting speech, a “different sort of legitimacy” as the second Chamber. The relationship between the two Houses is not a zero-sum game.
Lord Davies of Stamford
My Lords, I am most grateful to the noble Lord for giving way. How can the Parliament Acts possibly be a defence for the primacy of the House of Commons when all the legal advice that the House has heard on the subject makes it quite clear that the Parliament Acts would cease to apply if the House of Lords became an elected House?
Lord Wallace of Saltaire
My Lords, there is room for a discussion and a concordat between the two Houses. We have also seen in the evidence that there is some resistance to putting into statute a further codification of the relationship between the two Houses because, as I have heard many noble Lords say, the jurisdiction of the courts and litigation would not necessarily be desirable. The Government did notice and will consider the recommendations of the Joint Committee with regard to initiating preliminary work on a concordat between the two Houses, but such work ultimately would be the responsibility of the two Houses rather than of the Government, as it would be concerned with constitutional conventions.
I want to make one other brief point. I was puzzled to hear a number of noble Lords say that this Chamber is not part of the legislature. Erskine May has been quoted on several occasions. On the first page, chapter 1, page 1, paragraph 1 states:
“Parliament is composed of the Sovereign, the House of Lords and the House of Commons. Collectively they form the legislature”.
Lord Norton of Louth
I think that my noble friend is confusing a point. People are not saying that the House of Lords is not a part of the legislature; they are saying that it is not a legislature.
Lord Wallace of Saltaire
I will return to those speeches that I have read. I admit that I have never taken the MA in legislative studies at the University of Hull, but I referred back to my views. This House is clearly part of the legislature; this is a two-Chamber legislature.
Lord Soley
Really, the Minister cannot get away with that. The issue is that we cannot legislate because the House of Commons can always overthrow what we do. The Minister spoke about the Queen in Parliament. He should remember that she, as part of it, also cannot legislate. The House of Commons overrides at the end of the day and decides what the law is. We can advise; we can recommend; we can revise; but we cannot legislate in a direct sense.
Lord Wallace of Saltaire
In which event, the primacy of the House of Commons is in very safe hands.
Baroness Hayman
The reason that the House of Commons is in very safe hands is that there is no elective mandate in this House. Election, to coin a phrase from a popular song, changes everything. Fundamentally, if legitimacy changes, so does the balance of power. The Minister has to accept that, for some people, that is fine—a rethinking of the powers between the two Houses, a concordat of how you resolve differences or a written constitution are prices worth paying for electoral legitimacy—but to suggest that we can continue as we are with just election is simply not realistic.
Lord Wallace of Saltaire
My Lords, I do not want to keep the House too long or too late this evening, but the relationship between the two Houses is not a zero-sum game. A stronger legislature which is able to hold the Executive more clearly to account, between the two Houses and within both Houses, will provide more effective pre-legislative and post-legislative scrutiny. It will be a positive gain. If we do not wish to make the radical move to a written constitution, I am confident, and the Government are confident, that the conventions between the Houses will evolve. We are not an American Congress; we have not been created and an elected House would not be created to stand in opposition to the Commons. We would continue to be the second Chamber.
Lord Foulkes of Cumnock
Is the Minister now able to answer my question that the Leader of the House was unable to answer on Thursday? It was about the commission chaired by Bill McKay, looking at the West Lothian question and whether Scottish, Welsh and Northern Irish Members should be permitted in the House of Commons to vote on matters that are designated as purely English. This issue relates directly to the legislation that might be brought forward, yet there is no indication as to whether any consideration has been given to whether the commission’s recommendations will be taken account of in it. The Minister had notice of this question when I raised it last Thursday. What is the answer?
Lord Wallace of Saltaire
My Lords, I believe that the noble Lord is referring to Sir William McKay—I noted that because my choirmaster when I was a small child was Sir William McKay, so the name sticks in my mind strongly. We are following the work of that commission and discussing what the implications of his recommendations might be.
Lord Foulkes of Cumnock
With respect, if the Members of the House of Commons are to be divided into sheep and goats—those who can vote on some legislation and those who can vote on all legislation—what will happen to the elected Members of the House of Lords? Are they to be divided in the same sort of way?
Lord Wallace of Saltaire
My Lords, looking across at the noble Lord, I hesitate to say whether I regard him as a sheep or a goat. We are waiting for the McKay commission. When it reports, we will all consider that. We have to operate. We cannot stop all constitutional change to wait for the outcome of the Scottish referendum.
I cannot touch at the moment on the interesting, broader points raised by the noble Lords, Lord Elton, Lord Giddens and Lord Owen, which I suggest will be considered further in Thursday’s Queen’s Speech debate, when we move on to international events. I am happy to talk to the noble Lord, Lord Giddens, and others about this important issue which of course overlaps on to the British constitution.
The composition of this House is not sustainable in the long run in its current form. The Government recognise that there is a widespread sentiment in this House that we like things as they are and that most Members resist change but this is a transitional House under an interim reform carefully crafted in 1999. Our numbers have risen since then and continue to grow. There has been a long series of studies, reports, debates and manifesto commitments since then. There has been a long period of careful deliberation, much of it neither quiet nor calm. The issues have been well set out by Wakeham, Straw and now by Richard. The time is ripe, not, as many noble Lords would wish to argue, still unripe. The Government will continue to work to build consensus but they will press forward with legislative proposals for further reform.