Parliamentary Constituencies Bill

(Limited Text - Ministerial Extracts only)

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 10th September 2020 Grand Committee

[Baroness Hayter of Kentish Town (Lab) [V]]

Diolch yn fawr. It is very nice to have so many Welsh people speaking in this debate. I think it would be a brave Minister who rejected the advice contained in this amendment from a former and very eminent Lord Chief Justice—and one, I might add, whose term of office coincided, I think, with that of Chris Grayling as the Secretary of State for Justice, although why I should make that particular point I cannot think at the moment .

It is clear that the noble and learned Lord, Lord Thomas of Cwmgiedd, knows a thing or two about the relationship between a Secretary of State and our independent judiciary and legal system. He has no doubt seen at close quarters how decisions are made or influenced and is able to draw on this experience in his advice to the Committee and in the amendment that he has moved today.

The amendment covers two points. First, and crucially, it effectively takes the appointment of commission members out of the hands of an elected politician—indeed, a member of the Cabinet—and places oversight in the hands of the Speaker and the Lord Chief Justice. Secondly, it makes the appointments non-renewable to ensure that Boundary Commission members can carry out their function with absolutely no glance over their shoulder at the possible renewal of their mandate. As the noble and learned Lord says, this fits in well with the Constitution Committee’s view that if we are to move to automatic implementation of Boundary Commission recommendations, this will protect against undue political influence only if the commissioners themselves are genuinely impartial and completely independent of political influence, as the noble and learned Lord, Lord Morris, also said .

In particular, the Constitution Committee recommended that commissioners should be appointed for a single, non-renewable term; the Secretary of State should appoint only from names recommended by the selection panel; and the deputy chair of each commission should sit on the selection panel.

The issue of independence was similarly stressed in a useful briefing note by Dr Alan Renwick and Professor Robert Hazell of the UCL Constitution Unit in their submission to the Commons Bill Committee, where they stressed the need to:

“Protect the Boundary Commissions from Government Interference”—


where, as they say,

“automatic implementation is clearly appropriate only if the review process itself is genuinely independent of any improper interference. If that condition is not met—if, for example, government ministers can unduly influence the appointment of Boundary Commission members or the conduct of reviews—then the independence requirement is violated again.”

The view of those two eminent academics is also that this amendment meets their benchmark for independence.

I would have hoped that we would not need to write such obvious safeguards into the law, but the recent effective removal of those whose advice does not gel with the Government gives one cause for concern. As was discussed earlier in the Chamber today, Tuesday’s news, on the very day of Sir Mark Sedwill’s departure, of the resignation of the head of the Government’s legal department, Sir Jonathan Jones, over his concerns about a threatened breach of the Northern Ireland Protocol, makes him the sixth senior Whitehall civil servant to resign this year. It sounds as if, “If you don’t say the right thing, you don’t stay.”

In a similar manner, recent appointments suggest that a certain push from No. 10 has magically seen Conservatives appointed to a range of positions: the aforementioned Chris Grayling to the National Portrait Gallery; and our own noble Baroness, Lady Harding, appointed as the effective chair of the National Institute for Health Protection, without any advertisement or selection process, and despite being neither a doctor nor a public health professional.

Angela Bray, a former Conservative MP, was suddenly appointed to VisitBritain as a board member. Sir Patrick McLoughlin, a former Conservative Party chair, is now to chair the British Tourist Authority. Nick de Bois will chair VisitEngland and David Ross, a major donor to the Conservative Party and to Boris Johnson’s leadership campaign, is now chair of the Royal Opera House. Political friends have been recently appointed to so-called independent departmental non-executive directorships.

It may well be that all these Conservatives were simply the absolute best, most experienced, most dynamic applicants for these various posts, and that such skills can never be found among Labour or Lib Dem activists, but it does feel as if appointments to important positions may be being handed out on a less than non-political basis. It is therefore crucial, if the Boundary Commission is to have the final say—unchallengeable in Parliament—that we have absolute confidence in the integrity and independence of its members and recommendations and in the appointment of those members.

I say again that I regret that we feel the need to legislate for this. I would have thought that our way of doing government would normally not need this to be written into legislation, but I believe we have to do it. I look forward, therefore, to the Minister’s response to this particular suggestion, and I hope very much that the Government will adopt the amendment and put it forward themselves on Report.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I start by thanking the noble and learned Lord, Lord Thomas of Cwmgiedd, for the detailed thought that he has put into drafting his amendment and to the fact that he has drawn the Committee’s attention to this very important topic. I am also grateful to him for the time that he gave to have a private conversation on this matter. I am certainly open to have further conversations with him in the days and weeks ahead. I am grateful to all those who have spoken on this topic today.

I must in preface take up what I thought was a very strikingly polemical political utterance from the noble Baroness, Lady Hayter, in which she purported to impugn the overall integrity of the public appointments system—an implication which was also left in a much more acceptable but similar fashion by the noble Lord, Lord Janvrin. I will come back to that, because I believe that the integrity of the public appointments system is absolutely fundamental and I am concerned that these kinds of generalised political charges should surface in the manner that we heard from the noble Baroness. I will not trade time in your Lordships’ Committee or at a later stage on Report by listing the names of other people of other parties who have taken up political and public appointments.

For my own part, I do not believe that the desire to give public service as a Member of Parliament or as a humble leaflet deliverer for any political party which is represented in Parliament means that that person should be automatically excluded or regarded as suspect if they are appointed to a public body. I believe that the course of politics—the vocation of politics—and public service through politics are honourable vocations, and that ought to be borne in mind as we address this subject.

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[Baroness Hayter of Kentish Town (Lab) [V]]

The Minister and I obviously have our political differences, but he probably knows that I would very rarely make a claim that was not accurate. I was speaking quite quickly, so he probably did not quite catch what I said, because my quote from the report of the Constitution Committee, which I have in front of me, was absolutely accurate. What I said was—and this was my opinion—that the amendment fits well the Constitution Committee’s view, which I quoted, that

“automatic implementation … will only protect against undue political influence if they are themselves genuinely independent.”

I then quoted the committee’s recommendation that

“the Commissioners should be appointed for a single, non-renewable term … the appointing minister should be required to appoint only from the names recommended by the selection panel; and … the deputy chair of each commission should sit on the selection panel.”

I was not claiming that the Constitution Committee endorsed the whole of this; my quote was absolutely from the Constitution Committee, and it was on those lines. I realise that I may have been gabbling and the Minister may not have heard me accurately, because I am sure that he would not have made the error otherwise.

[Lord True (Con)]

My Lords, perhaps I might be permitted to reply to that. I always try to be gracious and I enjoy the challenge that comes from the noble Baroness. The cut and thrust of politics makes it worth while being a Member of your Lordships’ House, and let us have more of it. I accept what the noble Baroness says: that she was simply referring to paragraph 6 of the report, which I also have before me. I accept that she was not saying that those were specific recommendations by the Constitution Committee. I hope that she and I, and the whole Committee, will agree that we should consider, as we are doing “what safeguards are required”—which was the recommendation—

“to ensure the independence and impartiality of the Boundary Commissions.”

The noble and learned Lord, Lord Thomas, has put forward some proposals. I have argued that the system currently satisfies that objective. But, as I have said, I am open to having further discussions on this matter.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank all noble Lords who have spoken in favour of the amendment. Perhaps I might briefly reply to the points made by the Minister. First, as to the position in respect of the appointment of a judicial member, this is now plainly anomalous. I simply cannot understand why the Government seek to have this particular aspect of a judge’s deployment within the control and decision of a political Minister. Ministers are not allowed to appoint judges to particular cases. If as a result of a Boundary Commission it was felt that the commission had unduly favoured one party, it would be very damaging to the independence, and the perception of independence, of the judiciary if someone was able to say, “Well, that judge who is the deputy chairman was appointed by a politician.”

Further, there seems to be absolutely no reason why the position of those in England and Wales should not brought in line with those in Scotland and Northern Ireland, bearing in mind the logic of the position: namely, that at the time this was done, the Lord Chancellor was a judge. The Lord Chancellor is no such thing these days; he is a political Minister.

Secondly, on the issue of public appointments, I hope that the Minister will reflect further on the unique nature of the decision-making of the commission. It is not a body whose decision can in effect be challenged; it is an independent decision. Therefore, a special process much more akin to that of the judiciary is required. Appointability should not be the criterion.

On renewable terms, it is clear that the Cabinet Office accepts, as Parliament has accepted, that there are certain positions where it is essential that the term of appointment be non-renewable, to remove pressure. The Minister said—I think I heard him correctly, but one is always cautious when hearing matters over a remote link—that someone is reappointed subject to a satisfactory appraisal, but that really has no place in the process of appointing someone who is meant to be independent and who may be expected to make decisions of which Ministers do not approve.

I therefore would very much like to take up the opportunity of discussing this further with the Minister and others because I believe that we should be able to put this matter into a situation where everyone can have confidence, and the perception of confidence, so that the judgment of the commission is never capable of being called into question on the basis that politicians have been involved in its appointment. On those terms I beg leave to withdraw the amendment.

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If our numbers continue to increase as we do our work, the resources to allow that will be stretched too far to be adequate. There is a clear sense that the House of Commons has a greater justification for larger numbers than we do. Whether we support the amendment of the noble Lord, Lord Norton, is almost irrelevant. I suspect that he does not, but has put it forward so that we can have a debate. I would not support an increase to 800, but there is a strong case for this House to be smaller in number than the other place. That would allow us to be more effective in the work that we do.

[Lord True (Con)]

I thank noble Lords, including my noble friends Lord Norton of Louth and Lord Hayward, and all others who spoke. I particularly thank my noble friend Lord Norton for his typical ingenuity in transforming a Bill on parliamentary constituencies, referring to the House of Commons, into a House of Lords Bill 2020. I will address the points that he put, even though the purpose of Clause 5 is narrowly defined and keeps the House of Commons at 650. The Bill really is not a legislative vehicle for considering the size and membership of this place. But here we are in Committee in the wonderful, free House of Lords, whose revising greatness, historically, rests a great deal on the freedom of noble Lords to put forward amendments for discussion—a freedom that I personally greatly value.

I will come to the point about the size of the House of Commons, which can be dealt with fairly quickly. My noble friend was really asking about the size of this House and said, “What is the difference between the House of Lords and the House of Commons?”. We heard a number of the differences explained in the excellent speech by the noble Baroness the Leader of the Opposition. The roles of the two Houses are fundamentally different. Beyond that, this is—or has been, historically—a part-time House of expertise, with a broader pool of expertise. I cavil at using the term “part-time” because it implies that I think Members of your Lordships’ House, as in the nonsense said about them, turn up and do not do the work. This is an extremely hard-working House. Perhaps I should have said that it is not a full-time, professional political House in the sense that the House of Commons is.

A House that is a revising House benefits from a wide pool of expertise and, rightly or wrongly, historically, the House of Lords has worked in that way. When I first had the honour of serving your Lordships’ House as private secretary to the Leader of the Opposition in 1997, yes, there were Members who came very rarely in those days. Some spoke perhaps two or three times a year. But some of those individuals—and we all know some who are with us today—came with extraordinary expertise, from which the House benefited and which it listened to. I am not necessarily happy with the argument that the House of Lords must become more and more like the House of Commons—full of professional people who are here all the time. It has a different role. Historically, that has been the reason for a larger number in the House of Lords. The prescriptive history of the House and the process of creations was obviously also the historic reason.

There have been some criticisms of my right honourable friend the Prime Minister for creating new Peers. I am not going to irritate the Committee because I am in an emollient mood, particularly as I am about to try to persuade my noble friend to withdraw his amendment. However, it is the case that Mr Tony Blair created 354 Peers. The noble Baroness, Lady Smith of Basildon, reasonably said that Mr David Cameron created a very large number of Peers, including the Member of the House speaking at the moment. So clearly he was not absolutely accurate in his sense of everybody whom he should appoint, since he dumped me on your Lordships. But the point is that those very large numbers of creations had led to a great bump in the size of the House. To become displeased when a new Prime Minister wishes to make appointments is just a smidgen unreasonable.

The Government have acknowledged that the size of the House of Lords needs addressing but, given retirements and other departures, some new Members are required to keep the expertise and outlook of this place fresh and relevant. A number of ideas have been put forward. The Burns committee has put forward proposals and other statutory ideas have been put forward. The position of the Government is that any reform needs careful consideration and should not be brought forward piecemeal.

The previous attempt to reform your Lordships’ House, which did not find favour either in this House or in the other place, would have introduced an elected Chamber. Some of us are not exactly opposed to that; I have not always made myself popular on this subject with some of my colleagues. That would have achieved two things: a limit to the size of the House, and a House whose membership would have been refreshed by Dissolution. This would have addressed some of the problems that have been described. But that is water under the bridge; it is done and just a historical reflection. It is not to be taken as any kind of intimation of the policy of Her Majesty’s Government.

What I would reject—and this certainly would be the position of Her Majesty’s Government—is the idea put forward by my noble friend that the number in an appointed House should be fixed in statute and could not be increased. The noble Baroness the Leader of the Opposition rightly said that in some circumstances, that could not happen. If an unelected Chamber is in conflict with an elected Chamber, while the House of Lords is now unique, history and the past experience of other countries suggests that a Government must have the ability to make new creations. It was useful to the Liberals to threaten that in 1910 and useful to the Labour Party to threaten it in the 1940s and 1990s. The threat was not really necessary in the 1990s, but it was there.

The arguments for having a fixed number for an appointed House were had at some length on the peerage Bill in the early 18th century. The House of Commons took the view then, rightly, that it could not accept that the numbers of the House of Lords should be limited. So the idea of a cap—not allowing a Prime Minister of whatever party to make appointments beyond a certain number—is not something that could fly.

Although the noble Baroness, Lady Deech, supported the amendment, she referred to—this illustrates my point—the challenge, to use the word used by the Leader of the Opposition, that the House of Lords presented to the other place last year over Brexit. If there were a cap on this House and the House of Commons, with the support of the British people, resolved to go in one direction and the House of Lords, in its wisdom—as it saw it—took a line in the other direction, that would be a recipe for constitutional mayhem of a high order.

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[Baroness Smith of Basildon (Lab)]

My Lords, I will speak briefly. First, I make a plea to the Minister never to refer to this House as a part-time House. He half-corrected himself but this House often sits longer and later than the House of Commons. We are a full-time House. The only difference is that not all Members are full-time Members of your Lordships’ House; they have other interests and activities. We are a full-time House but not all our Members are full-time.

I want to make a couple of points. The Minister said that reform cannot be piecemeal because it must be considered. Reform can be both considered and piecemeal. Most reforms in British constitutional history have been quite gradual. That does not mean that they have not been considered; they have just taken a step-by-step approach, not the big bang approach. The Minister harked back to ducks and tabby cats; I would liken the House of Lords more to a tabby cat than to a duck.

The night in question, when the Minister and I had many discussions late into the night, went later than either of us wanted to be here in Parliament, but potentially the point the Minister is missing is that, after the conflicts that he referred to, both the 1911 and the 1949 Parliament Acts constrained how the House of Lords works. It is quite clear that we have an advisory role and that the House of Commons has primacy. We do not block legislation, we have no intention of blocking legislation and we have no remit or legitimacy to block legislation, but we have an opportunity and an obligation to advise the House of Commons on the basis of the information that we have.

On the Minister’s point about a Prime Minister needing to be able to appoint lots of Peers to get their legislation through, I am not aware of anything that Boris Johnson would have more difficulty with in the House of Commons than in the House of Lords. Even on the rule of law, I suspect that his colleagues in the House of Commons are not terribly happy with him, but that is not why he has appointed these 36 new Peers. It is nothing at all to do with legislation; it is a Prime Ministerial whim and a numbers game.

I am grateful for the Minister’s comments on the size of the House of Commons being 650 Members. There is something that we can agree entirely on.

[Lord True (Con)]

First, as I hope I indicated in my remarks, I accept the strictures of the noble Baroness on the phrase “part-time House”. It is a House whose expertise derives in part from the presence of people who are here part-time and bring us their expertise, which is a slightly long-winded way of saying the same thing. I think I said specifically that I would not want anyone to run away with that remark and say that that is what I think of your Lordships’ House. I revere it.

With that correction, I will not detain noble Lords further but I will bank the statement by the Leader of the Opposition that this House’s role is not to block legislation. We shall test those words in the coming weeks and months.

[Lord Norton of Louth (Con)]

My Lords, I am grateful to all those who spoke. The noble Baroness, Lady Smith, just made two of the points that I was going to make but that will not stop me making them anyway.

The noble Baroness, Lady Deech, supported my case by speaking against the amendment; the noble and learned Lord, Lord Morris of Aberavon, supported my case by speaking for it. I am not whether that means that I am more skilled or abysmal at drafting amendments than I thought.

That leads me to the point made by the noble Baroness, Lady Smith. She argued the case for a formula linking the size of the House of Lords to the membership of the House of Commons. I agree; indeed, I tried to devise an amendment on that very point but getting it within the scope of the Bill was problematic, which is why I moved the amendment I did. The noble Baroness and other noble Lords will appreciate that sometimes one must go through some contortions to produce an amendment that will trigger a debate. I speak as someone who, a few years back, moved an amendment to the Psychoactive Substances Bill that would have had the effect of banning the manufacture and sale of alcohol. I realise that it was not going to go anywhere—it was not designed to—but it drew attention to a problem in that Bill.

I have four points to make, two of which the noble Baroness just made in response to my noble friend Lord True. One of her points was that the two Houses have different functions. Of course they do; that was precisely my point. Deriving from that is the case for the House of Lords to be smaller than the House of Commons, given the functions that it fulfils. We are a reflective House. We do not have an outward-facing role in the same way that the Commons does, with Members having to deal with constituencies in relation to their role and in relation to the Executive. The functions are very different. We fulfil different roles, and we add value to the political process by fulfilling that reflective role. Deriving from that, we do not need to be quite so big or, indeed, as big as the House of Commons.

Secondly, as was just touched on and as the noble Baroness stressed, this is not a part-time House. It is very much a full-time House, with some Members who work part-time, if you like, because they do their day jobs then come in to provide their expertise. It did a very good job in 1999 when we had more or less the same number of Members as the House of Commons, so unless my noble friend the Minister is going to argue that it was doing a worse job than now, again, there is no case for the arguments that he has advanced in terms of size.

My next point—again one that the noble Baroness touched upon—relates to my noble friend saying that reform should not be piecemeal. Well, the reform that has been achieved has been piecemeal; it has been the grand schemes brought forward by government that have got nowhere. Those piecemeal changes have I think been well considered—I speak as someone who drafted one of the Bills—and have achieved a great deal. Had we not achieved the House of Lords Reform Act 2014, just think what the size of the House would now be. We would be moving in the direction of the size of the House when we had the hereditary Peers and all the problems that derived from that.

Finally, while I am not saying that we should have a statutory number, there is a case for considering it. My noble friend did not really make an argument against that and I draw attention to the fact that it is not at all unusual for nations to have a set number of Members of their second Chambers. There is not really a clear argument against that. I am not necessarily beating the drum for it; I just say that there is no strong argument against it.

So I am not persuaded by any of the points that my noble friend made—he will not be surprised to hear that. I wanted to tease out the stance of the Government and allow us to continue to make the case—as the House has agreed, without a vote—that we are too large and that steps should be taken to reduce the size of the House. We can move towards that; the Burns recommendations create the means for achieving that. We can have a smaller House that fulfils its key functions and adds value. This House fulfils a very important role that is demonstrably different from that of the Commons. That is why it adds value, and that is why we should serve to uphold it. That would, I think, be facilitated by having a smaller, not a larger, House. We should follow Burns and try to reverse the direction of travel when it comes to the size of the House.

So I am, as I have said, grateful to all those who have spoken. I have made all the points that I think are important in this context, and I am extremely grateful for the support I have received from other Members. I am sure that this is something we will continue to pursue but, in the meantime, I beg leave to withdraw the amendment.