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.