Standards of Behaviour and Honesty in Political Life

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 23rd June 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I join in the tributes to my noble friend Lord Morse.

Plainly, the standards of behaviour and honesty in political life bear on the democratic process and a reduction in those standards weakens democracy, because reduced standards lessen public trust and confidence in our rulers and our governing institutions. As a result, people are less willing to participate in the political process, less willing to turn out to vote and then less inclined to accept and comply with the laws Parliament enacts. We surely have a perfect recent illustration of that: as a result of partygate, if there was some future pandemic and Parliament was to enact further hugely restrictive laws, it may be doubted that the public would so readily obey them. All that is pretty obvious.

I want to focus on the position arrived at here and my essential point may not be popular. While I hold absolutely no brief for our Prime Minister, I contend that his flaws, his deficiencies, are a quantum leap away from those not only of murderous autocrats such as Putin but of purported democrats such as Trump.

It is pure nonsense and an illustration of the fallacy of false equivalence to suggest that any useful comparison can be made between Trump and Johnson. Johnson is not Trump-lite, as he is sometimes described. He is not in the same league. Trump is plain wicked. It is almost impossible to exaggerate his monstrous conduct, which in numerous respects is plainly criminal. Not so Johnson’s: his fixed penalty notice was not, of course, for criminal conduct any more than a speeding fine is. His misbehaviour, which I do not understate, is political, not criminal. Those political sins were indeed catalogued by Clare Foges in her characteristically admirable piece in Monday’s Times. She demonstrated truly that our Prime Minister has belied the “good chap theory” of government from the noble Lord, Lord Hennessy: our unwritten constitution’s historical reliance on our rulers recognising where the boundaries of acceptable political conduct properly lie and, as the noble Lord, Lord Balfe, pointed out, knowing when they ought to resign.

I agree with almost all the points that Clare Foges made, but I make one important exception: the Prime Minister’s unlawful Prorogation of Parliament in 2019. There are some who go so far as to suggest that that act puts the Prime Minister on a par with Trump as an unlawful attempt to remain in power by escaping parliamentary control. I, for my part, regard that as nonsensical. Although I accept the Supreme Court’s judgment as correct on the narrow facts of the case—this is no occasion to go into all that—it is surely absurd to treat it as comparable to Trump’s attempt to force his Vice-President to refuse to recognise the United States election result. Trump, one recalls, and one sees it now in the congressional report, was advised forcefully and repeatedly that Pence had no lawful option but to certify Biden’s election victory. By contrast, Boris Johnson was not merely advised, as clearly he was, by his law officers that Prorogation in the context that it was enacted was lawful; that too was a view fully shared by a strong and unanimous Divisional Court.

In short, therefore, while recognising as I do the Prime Minister’s character flaws and his intrinsic tendency towards dishonesty, he really cannot usefully be compared with Trump. True, his principles can be regarded as somewhat fluid, flexible, elastic and perhaps rather Marxian, in the sense of Groucho rather than Karl—“These are my principles, but if you don’t like them I have others”—but the threat he poses to democracy is in no way comparable to the actual damage now being so obviously inflicted by Trump on democracy and the democratic process in the United States. One has only to watch the nightly reports on, for example, the 6 January insurrection, the storming of Capitol Hill and, before that, Trump’s attempt to suborn the returning officers in the various individual states that he narrowly lost to find him the missing votes to recognise the catastrophic impact of his stolen election lie on America’s faith in democracy. The point has already been made as to the extraordinary numbers who subscribe to the Trump approach.

I end with this: I suggest it is a mistake to say, as a recent letter to the Times did, that the United Kingdom is no longer a functioning democracy. Of course I look forward to the day when, once again, our political leaders can be seen to occupy the moral high ground that is now all too often vacated, but in the meantime it is most unwise to run ourselves down to the point where our international reputation as a sound democracy could indeed be put at risk.

Dissolution and Calling of Parliament Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Viscount Stansgate (Lab)]

My Lords, the House does not need or want a history lesson, but over hundreds of years power has been reclaimed from monarchs by Parliament and the necessary transfer of power from Prime Ministers to Parliament. There is an imbalance in the balance of power between the legislature and the Executive, but it turns out that repealing the Fixed-term Parliaments Act 2011, which I think everyone in this House agrees should go, is more difficult than was imagined. We are an unelected House, but I can think of no better use of my vote today than to vote for Amendment 1 and allow the House of Commons to consider the matter properly and to reach its view, as the noble Lord, Lord Cormack, said. People disagree as to the nature of future constitutional circumstances but I am very proud of the fact that I have a vote that can send this amendment to the House of Commons and I, for one, will be content with whatever the House of Commons decides it wishes to do.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I oppose this amendment. How beguilingly it is put. What could be more tempting than simply to say, “Vote in favour and all you are doing is giving the House of Commons another opportunity to discuss it”? We really ought to consider whether the case in favour is sufficiently powerful to take that unusual step, tempting as it may be. It is certainly not every day of the week that I find myself in agreement with the noble Lord, Lord Howard, and I agree, too, with my noble friend Lord Butler that this solution to the problems that have been identified today is not a good one.

I respectfully remind the House that although the matter took only a little time in the House of Commons, the Fixed-Term Parliaments Act Joint Committee pointed out in paragraph 86 of its careful and thorough report that there was only a minority in favour of giving the House of Commons by Motion a veto over a proposed Dissolution, as this amendment would do. It ended:

“The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”


Of course I recognise that, under this proposed amendment, a two-thirds majority would drop to 51%. However, as the noble Lords, Lord Howard and Lord Butler, pointed out, a hung Parliament could well reproduce the sort of stasis and chaos at which we arrived back in the summer of 2019.

I do not pretend to agree with the noble Lord, Lord Butler, on the next amendment, but this is a different point entirely. Given that, there should be a guardian against the sort of abuse that the noble Lord, Lord Grocott, suggested could occur in the way of the prime ministerial prerogative of Dissolution; I suggest Brenda of Bristol.

[Lord Newby (LD)]

My Lords, I am not quite sure I know how to follow that last remark. I have put my name to this amendment for the reasons so eloquently given by the noble and learned Lord, Lord Judge. Like him, I carefully read the considered and lengthy response of the noble Lord, Lord True, to the equivalent debate in Committee. The noble Lord set out to make our flesh creep about the consequences of this amendment. I shall deal with three of his arguments, one of which has already been dealt with today.

First, the noble Lord said that, if this amendment were passed, the chance of zombie Parliaments would remain high. As we have already heard, the last Parliament was a zombie Parliament to the extent that the Fixed-Term Parliament Act requires a two-thirds majority. Without that, it would not have been. The noble Lord, Lord Howard, said, “Ah yes, but there will be other circumstances in which such a zombie Parliament could obtain”. The noble Lord, Lord Pannick, has explained the first next step if a Prime Minister were unable to win a majority. I think that the noble Lord, Lord Howard, is asking us to entertain as plausible the possibility that, if nobody could form a Government, Parliament would decide that it wished to continue in existence without there being a credible Government. This is completely implausible to me. I cannot foresee circumstances in which such a situation would obtain for more than a very short period—a day or two at most. The noble Lord did not set such circumstances out. I do not believe that this amendment makes zombie Parliaments more likely.

Secondly, the noble Lord, Lord True, said that the amendment is “dangerously silent” on the status and practice of the conventions associated with confidence. Of course it is silent on the convention because conventions are not law. In the case of a Motion of no confidence having been passed, it seems blindingly obvious that, at that very minute, there would be a vote under the Act, as it would then be, to call an election. I cannot see circumstances in which that would not happen. The fact that conventions are not mentioned in this Bill is impossible and largely irrelevant.

Thirdly—and most extraordinarily—the noble Lord, Lord True, argued that this amendment, if passed, would deny or “overturn” the votes of millions. What on earth does that possibly mean? When millions vote, they do so in the expectation that there will be a full term of Parliament. During the course of a Parliament, they may or may not at any particular time wish that there were another election. As it happens, today, I suspect that most people would be rather glad to have an election, but that is not the way the constitution works. Parliament is elected for a period. If that period is to be truncated, the authority for truncating it rests with Parliament. The people have no say in whether to have an early election under our constitution, and the Government are certainly not proposing that, so the argument that, somehow, the amendment would frustrate the votes of millions is completely misplaced.

It comes down to a simple question: where should the ultimate source of power in our constitution rest? This was the question which the noble and learned Lord, Lord Judge, posed. We contend that it should be with Parliament and not the Executive. We contend that the steady accretion of power to No. 10—which, to a limited extent, has been further added to by the decision of the Prime Minister to set up a prime ministerial department— is not good for democracy. The amendment is one small way of reversing that trend.

--- Later in debate ---

[Lord Pannick (CB)]

No, because my point is that hopeless or frivolous applications will be dealt with speedily by the courts. This was plainly an application with no merit whatever, and my noble friend’s point, as I understood him, was that the mere existence of the jurisdiction could cause delay. I am giving an example of how the courts then, and today, would deal with a frivolous application.

The judge decided, unsurprisingly, that this was not a matter for the courts and that there was no basis for the application. The general election went ahead and it was entirely untroubled by the litigation. There was no delay, expense or inconvenience. The court dismissed a hopeless application speedily and effectively, as it usually does. For all these reasons, if my noble friend Lord Butler wishes to test the opinion of the House, he will have my support.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too attempted to darn this Bill in Committee and, indeed, spoke at Second Reading, and I too am opposed to this group of amendments. My core concern here is to safeguard my successors on the Bench and to avoid the risk of constitutional crisis, which would arise were there to be some future attempted legal challenge not as frivolous as that just indicated by the noble Lord, Lord Pannick, but something dressed up as an altogether more coherent attack on a Dissolution, such as the noble Lord, Lord Pannick, himself would be adept at managing.

Unlike the noble Lord, Lord Howard, but in common with the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Beith, I do not think for an instant that the courts would ever actually reach the point of upholding such a challenge, even though, as the noble Lord, Lord Pannick, also says, things have undoubtedly moved on since the CCSU case. That, as it happens, was my very last case at the Bar, decades ago. Although it is very unlikely that such a challenge would succeed, it is very important to put in the Bill a provision that would provide the greatest possible discouragement to any mischievous person, instructing whosoever it may be, contemplating a challenge.

Clause 3 seems to me to be admirable for that purpose; it enables the courts to say, as Mr Justice Macpherson—a very old friend of mine, with whom I shared a room in chambers for decades—said in that case, “Chuck it out without more ado.” That is really the point made by the noble Lord, Lord Trevethin and Oaksey. That is the practical effect of Clause 3. It is not there, I would suggest, as revenge for Miller 2; nor does it—and this is the point made by the noble Lord, Lord Faulks—create a risk that this will be a template or precedent for the future. Its relevance here is purely in the context and to underline the fact that Dissolution is essentially a prerogative act, preserved even since CCSU. We should leave it there, discourage prospective litigants and reinforce the courts in a robust rejection of any attempt that would delay and disrupt, to some degree, a Dissolution process. Leave it there.

[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Butler of Brockwell, was kind enough to quote me from when I spoke in Committee on this. I want to underline that what I said was:

“I cannot conceive of any circumstances in which the involvement of the courts could ever be justified”.—[Official Report, 25/1/22; col. 227.]


That is the important point. What Clause 3 is trying to do is to put this question beyond doubt.

Without Clause 3, we potentially do not rule out the courts trying to get themselves involved in challenging the use of the royal prerogative, doubtless with the help of very clever lawyers such as the noble Lord, Lord Pannick. Indeed, in the noble Lord’s remarks just now, he rather wanted to keep the door open for noble Lords such as himself to encourage the courts to get involved in cases such as the use of the royal prerogative.

Our understanding before the introduction of the Fixed-term Parliaments Act was that the courts would not get involved in the use of the royal prerogative. Since then, there have been some surprising judgments—perhaps not surprising to the noble Lord, Lord Pannick—such as Miller 2, which have made many people doubtful about whether or not the settled understanding of where the courts would go was indeed that settled. That is what the noble Lord, Lord Pannick, has underlined for us today.

Dissolution and Calling of Parliament Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I do not often agree with the noble Lord, Lord Wallace of Saltaire, as he knows, but I did agree with his closing remarks on Second Reading:

“We should never take democracy for granted: it needs to be defended.”—[Official Report, 30/11/21; col. 1332.]


I absolutely agree, which is why it is important that the amendments in this group are not passed.

Sometimes, when people talk about democracy, they talk in terms of the role of Parliament or the separation of powers. But we must always remember that democracy is about the people—demos—who have power at the apex of our constitution and whom we have to defend. The most important players in our democracy are not Members of Parliament at Westminster but the voters up and down the land. The possibility of Parliament standing in the way of asking the people for their views on the way forward is fundamentally undemocratic, in my view.

These amendments are capable of depriving the people of their say in the future of the country. Furthermore, they could do harm at the very time that the views of the people, as expressed at the ballot box, are most needed and could have the greatest impact. Of course, if the Government of the day have a whopping majority, whether or not they have to pass a resolution in the other place will make very little difference to the outcome. It might perhaps add a few days of delay to the timing of a general election, but it would otherwise simply be a tiresome detail. But the amendment will make life difficult for minority Governments or Governments with small majorities, if they feel that they need to call an election.

At Second Reading, I spoke about the events of 2019 being one of my key reasons for supporting the Bill. It was plain that Parliament was dysfunctional. The Government could not get their chosen policies through the House due to a combination of the actions of the opposition parties and of some of our own Back-Benchers. A majority in the other place and indeed in your Lordships’ House—although that is not relevant to this amendment—was set upon frustrating the Government’s Brexit policies, but the Government could not call an election to settle that issue because they could not meet the two-thirds threshold of the Fixed-term Parliaments Act.

Of course, the Government eventually got their Early Parliamentary General Election Act through and, by then, the Labour Party had decided to support it. But we will never know whether it would have been possible for the Government to have reached the simple majorities required in these amendments at an earlier stage—but it is entirely possible that they would not have done so. A number of my party’s MPs had lost the Conservative Whip during those unhappy days and would not, therefore, have been able to stand as Conservative candidates if an election had been called. Would the turkeys really have voted for Christmas? I think not.

Many noble Lords in this House might choose to forget the result of the 2019 election because it was not to their taste, but I remind them that it was a resounding thumbs up for the Government’s Brexit policies, which Parliament was seeking to harass and destroy at the time. These amendments could well have prevented that decisive view of the country from being expressed at the time, and we would have been the poorer for it.

Minority Governments with small majorities but fractious Back-Benchers capable of frustrating a vote on a general election are not figments of my imagination; they are a real part of our political system. I say this especially to the Benches opposite because, if they have any hopes of again forming a Government, they need to reflect on whether a zombie Parliament could affect them as well. They might also reflect on whether the minority Wilson Government in 1974, which the noble Lord, Lord Beith, referred to in the debate on the earlier group of amendments, would also have resulted in an election. Is it absolutely clear that the Wilson minority Government could have called the second election in that year if he had had to cope with what this amendment would have landed him with? These amendments could be a very dangerous part of our constitutional arrangements and should be rejected.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I feel part of an endangered species: a Cross-Bencher who fully supports this government Bill. I would also like to go back to where we were before the ill-starred and ill-judged Fixed-term Parliaments Act.

I am against giving the Commons a veto, as proposed in Amendment 3 by my noble and learned friend Lord Judge, who is normally so sagacious but who is wrong on this occasion. This could lead to the same chaos, stasis and problem of September 2019, which the noble Baroness, Lady Noakes, has just outlined, when we subjected our Prime Minister—whatever you thought of him then or think of him now—to the humiliation of having to go cap in hand to Brussels to plead for an extension of time to achieve a policy flatly contrary to the one that he wished to put to the country. He could not get a two-thirds majority, and one seriously doubts whether he would have got a simple majority.

The Joint Committee that examined this legislation and reported in March 2021 made plain that, although a minority supported the view outlined by my noble and learned friend Lord Judge and the noble Lords, Lord Lansley and Lord Beith, the majority recognised the danger, which we should avoid at all costs, I respectfully contend.

As to the prerogative power, one can hardly overstress the difference between Prorogation and Dissolution. Prorogation—let one remind oneself—affects the cessation of Parliament and is anti-democratic in the sense that it thwarts the power of Parliament. Our governing, imperative, fundamental constitutional principle is the sovereignty of Parliament; Prorogation thwarts it and leaves the Executive for the duration in uncontrolled power. Dissolution—at the opposite end of the spectrum—is explicitly designed to give the electorate the opportunity to decide who should control our Executive. My noble and learned friend Lord Judge speaks of Dissolution eradicating the decision of the electorate last time around, ditching the democratic vote. Well, of course, in one sense you are getting rid of an existing Parliament, but you are inviting more up-to-date views on what the public—who, as the noble Baroness, Lady Noakes, said, really should be controlling all our processes—want and whether they approve the particular policies in the particular circumstances in which Dissolution is sought.

Of course, if you put the Commons in control, although you run into the sort of difficulties that the noble Baroness, Lady Noakes, rightly identified, you get rid of the problems that others seem to suggest arise under Clause 3 here. There is no question then, obviously, of the courts’ supervisory jurisdiction. But—and we will come to this point of debate later—I suggest you really do not need to introduce the chaos of a Commons vote in support of Dissolution in order to avoid the risk of introducing the courts into the whole business.

[Lord Grocott (Lab)]

My Lords, before I comment specifically on the amendment in the name of the noble and learned Lord, Lord Judge, I think that both the noble Baroness, Lady Noakes, and the noble and learned Lord, Lord Brown, have misread what happened in 2019. What happened then would have happened had this amendment been passed, which was that a clear majority in Parliament voted for a general election—fact. On three occasions, they voted for a general election. A general election would have occurred under the terms of this amendment.

If I may say so, the politics of it are fairly obvious. If a Motion comes from a Prime Minister that there should be a general election, which is what this amendment suggests, the Government may not even have a majority, as the noble Baroness, Lady Noakes, suggested; there may be people opposed to the Government’s policies generally on their own Benches, and they may not get a majority of their own people, necessarily. But it is almost impossible for an Opposition to vote against a general election. It kills the whole point of being an Opposition. What is an Opposition for if not for saying, “We’ve got a rotten Government, and it is time the people turned them out”? The Labour Opposition at that time sat on its hands, but politically, though I cannot go into all the legal ramifications, it is impossible to imagine a Prime Minister with a majority in Parliament—and he or she would not be the Prime Minister if that were not the case—calling for a simple parliamentary majority, which is all that is required, in order to hold a general election and Parliament throwing it out. That is for the birds; it really is. It would be politics turned upside down.

I think the amendment from the noble and learned Lord, Lord Judge, just nails it. I agree with it absolutely, partly because, when in doubt, you should opt for the simple solution, and there is nothing simpler than a simple majority. We get into all sorts of trouble, as other Members have said, when we require a two-thirds majority or an artificial majority. The public know what a majority is and, let us face it, the real fact of life is that a majority in Parliament—this is as close to Dicey as anyone could be—is power in the land, apart from on the day the general election is held. If Parliament tries to do things that do not have majority support, the majority has all sorts of ways of asserting its support.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, with a Supreme Court judge, the chairman of the most recent inquiry into the workings of judicial review—he did an extremely good piece of work on that—and a former Cabinet Secretary presenting views that differ in more than nuanced ways, the House will have to resolve this issue. Those of us who are deeply concerned about this clause cannot be accused of wanting to drag the judges into decisions about whether elections are being held. In my case, and in some of the other cases, we have offered two mechanisms that clearly make that very unlikely.

One is that the courts would be very unlikely to question or interfere in any way with the personal prerogative power, which we all agreed earlier is the nature of, if not the wording of the Bill, then of the re-establishment of the status quo ante. The second is that a significant number of us argued that a vote in the House of Commons is a desirable process. Were it there—were it a condition—it would entirely obviate any fear that the courts would become involved, because the courts would recognise the Bill of Rights’ prohibition on questioning the decision made in Parliament. We are not people seeking to drag the judges into this process.

The Government’s belief that they have to build a bulwark of some kind against judges becoming involved, all based on a particular recent experience that was about not Dissolution but Prorogation, has, I think, drawn them into doing something that, if we do it, we will come to regret very much in years to come. The phraseology of the clause should remind us of that: it is the

“purported exercise of the powers”

or the “purported decision”. What does that take us to? It takes us to the point where the Government are trying to ensure that the courts do not question whether the Prime Minister had the power to act in that way, or, if he had the power, that he is acting in ways covered by the legislation. I find it very hard to conceive of a case that could be made, if the processes of this legislation are followed, in which that could reasonably be advanced in front of or taken seriously by any court. What I see is an ouster clause that we will not see the last of and that we will see again in other legislation. Then it will be said that it is a perfectly acceptable ouster clause, as Parliament allowed it in legislation that repealed the Fixed-term Parliaments Act; that it is just a straightforward way of making it clear that this is an area in which we do not want the courts involved.

The power of judicial review, which was carefully analysed by the noble Lord, Lord Faulks, and the team he led, is an essential way in which the citizen is protected from the abuse of power by the Executive. There are many kinds of Executive, not just the national Government we are thinking of today; local authorities and private sector organisations have powers of various kinds. If they act beyond those powers, the courts are the proper place to challenge that misuse of power. Once we give currency to the idea that a Minister can say in relation to a purported action or purported decision that they have decided they have the power to do this and may not be challenged, that is a reversal of the entire system of judicial review.

The process described in Clause 3 will never be engaged in relation to what we are talking about—the calling of a general election. There are so many barriers against it—not least, of course, the desire of the judges not to get into that political process at all—but once we have got this on to the statute book, we will not have seen the last of it. I think we have created a highly dangerous model for ouster clauses. I am disappointed, in a way: I think the noble Lord, Lord Faulks, resisted pressures to come up with foolish decisions in his review, and I would welcome him being on my side on the issue, which is about the longer-term importance of judicial review for the purpose for which it was intended. One can raise questions about some ways in which it has been used in the past. One can raise questions about whether there are some limitations, such as the Cart issues raised by the review by the noble Lord, Lord Faulks. It is vital in the protection of our citizens and I see it threatened by the existence of this clause.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my core concern regarding this group of amendments is for the future generation of judges—not just in the Supreme Court, but judges who, I suggest, must inevitably be troubled at first instance and so forth before things get to the Supreme Court—if there is there is the slightest glimmer of a prospect of anybody legally challenging any decision with regard to Dissolution. I find myself in total agreement with all that my noble friend Lord Faulks said and the legal analysis here. The courts have striven mightily to remove any possibility of ouster clauses having effect. With that, in most contexts, I totally agree, but this is in the context of Dissolution and of trying, with the utmost clarity, to return as whence we were, where there was no possibility of the courts entertaining a challenge.

To my mind, the courts would be grossly embarrassed and, of course, singularly unlikely to intervene. The noble Lord, Lord Beith is absolutely right: it is the last thing they would want to do because it would be so embarrassing and destructive of the current constitutional position of judges to allow themselves to be drawn into this field. However, the temptation for others to try to involve them must be removed. I suggest that this clause, as is, tries to dot every I and cross every T.

Legislation: Skeleton Bills and Delegated Powers

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I shall focus on a single provision, Section 10 of the Human Rights Act 1998, a classic Henry VIII provision. In essence, it provides that by ministerial order you can amend legislation found incompatible with our convention obligations. Last year, this House in fact sanctioned a remedial order amending Section 9 of the Human Rights Act by allowing extended circumstances in which damages can be awarded in respect of a judicial act.

A Policy Exchange paper at the time questioned both the vires of the order and, more forcefully and persuasively perhaps, its propriety. More recently, in a much more comprehensive report addressing a whole range of suggested amendments to the Human Rights Act, Policy Exchange returned to Section 10, advocating that future legislative change should be secured by primary legislation and certainly that Section 10 should not be used to amend the Human Rights Act itself.

Section 10 has also been the subject of consideration by the Gross committee in its recent independent review of the entire Human Rights Act, and on this issue, its report recommended, first, amending Section 10 to clarify that remedial orders cannot be used to amend the Act itself and, secondly,

“potentially better use of the JCHR powers of scrutiny”

of the remedial order-making power. I should just note that the JCHR, for which in other important respects, the Gross committee also recommends an enhanced safeguarding role under the Human Rights Act, at the time of the 2020 amendment to Section 9, failed not merely to address the vires argument but even to draw the ministerial order to the special attention of the House on the basis, as heralded in its 2001 statement of principle, that

“it appears to make unusual or unexpected use”

of powers conferred by the statute under which it is made.

Coming, finally, to the MoJ consultation paper just issued on the reform of the Human Rights Act, one is heartened to note passages which, as the paper itself notes, go further even than the Gross committee. It says this:

“There is a case for retaining remedial orders under the urgent procedure only, as a means of addressing urgent (and compelling) cases where leaving the law unamended, even for a short period, could be damaging.”


And then there are these important words:

“This must be weighed, however, against the constitutional arguments against executive legislation, which may suggest removing the power entirely.”


How good it is to see in a government document—issued, no doubt, under the aegis of Mr Raab—so plain a recognition of the constitutional argument against executive legislation. We should focus on that.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Friday 3rd December 2021 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I start by saying, as I have said in past such debates and others have said today, that I am one of those who greatly admire our existing hereditaries. Man for man—that is the comparison today, now that the Countess of Mar has left us—they bear ample comparison. They contribute at least as much as appointees such as myself. Indeed, understandably, a higher proportion of them than of the appointees contribute more extensively. After all, they have sought to come here for that specific purpose and already have their titles, whereas, by contrast, some appointees—and this should be corrected in other proceedings—are appointed in order simply to honour them, and thereafter some of them contribute, alas, very little.

With all that said, I strongly support the Bill. As has been pointed out, our excellent hereditaries are not threatened by it. The practice of continuing to replace hereditaries through these by-elections is surely fundamentally objectionable. To provide hereditaries alone with what in the past I have called—and I think someone else did before me—an assisted places scheme is simply wrong and absurd. Why should hereditary Peers as a class be favoured candidates for these occasional vacancies? If there are to be elections, then why not innumerable others who are equally able to provide good candidates? We could have engineers, economists or, indeed, as the noble Lord, Lord Grocott, suggests, the eldest sons of railwayman. Much the best of all, the general public could provide the pool of prospective best candidates if there were to be any elections to this House. Often the existing position is criticised on the basis that it is manifestly racist or indeed sexist. Indeed it is, but surely in relative terms these are lesser criticisms; they are subsumed in the wider objection that it is not just women and minority communities who are excluded from the chance of filling these vacancies but literally everyone except the hereditaries.

The only suggested rationale that I have ever heard or understood for keeping this system, and I rather think it was given something of an airing today by the noble Lord, Lord Mancroft, the noble Viscount, Lord Trenchard, and perhaps the noble Lord, Lord Trefgarne—certainly by him on an earlier occasion —is that it ensures that we are not a wholly elected House, a House ultimately in the control of the Prime Minister, and that the result of this existing hereditary election scheme is that we have some democratic legitimacy and, indeed, some independence from the Prime Minister. I say to that, with the best will in the world: tell it to the birds. Those who want an elected House are hardly going to be satisfied when it is pointed out to them that we are not a wholly appointed House because we have 90 elected hereditaries. They are not going to say, “Well, now you’ve reminded us of that, obviously it’s an entirely sound and sensible system.”

I suggest that the Bill once again provides us with the real chance of attempting self-reform in order to improve our image and reputation in the wider world. Of course, not everyone outside this House is totally obsessed with its constitution but an awful lot are, including an awful lot of opinion-formers, and we are subject to a great deal of criticism when we stay with this system. If we are still thwarted in this aim—now that the current is, on the face of it, moving so obviously in our direction—the people will know who is responsible. Indeed, responsible journalists ought to be loudly proclaiming where the blame will then lie: with the Government, not with us. I suggest that the Bill must not only be given a Second Reading but then proceed with celerity and no inhibition through the rest of its stages.

--- Later in debate ---

[Baroness Meacher (CB)]

My Lords, I understand the point that the public are not terrifically aware of the composition of the House and so on, but the journalists are and they are ruthless about this House. They ignore us and are rude about us; that is the reality.

[Lord Brown of Eaton-under-Heywood (CB)]

And they influence the wider public.

[Baroness Meacher (CB)]

They influence the wider public but they also influence MPs and Parliament. It makes it very difficult for this House to be as effective as we should be, bearing in mind the quality of the people in the House of Lords.

Dissolution and Calling of Parliament Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support the Bill. While it appears that no one really wants to keep the Fixed-term Parliaments Act, there are obviously differing views about what should replace it. There seem to me to be three basic suggestions: first, that the Commons should have a vote; secondly, that the Prime Minister should decide, subject to the courts’ supervisory jurisdiction; and, thirdly, that the Prime Minister should decide but do so under a non-reviewable prerogative, which is what the Bill proposes. As I said, I favour the latter.

To clear the ground—the noble Lord, Lord Newby, has just done this—obviously, the three alternatives, if you can have three, are mutually exclusive. If the Commons has a vote, that decision is plainly unreviewable: Article 9 of the Bill of Rights plainly puts that out of court. It should further be noted that there is disagreement among lawyers as to whether, given that the FTPA earlier replaced the prerogative, the prerogative—certainly in an unreviewable form—can now be restored. My own clear view is that it can, and that is certainly the view of Lord Sumption and Mark Elliott, the leading Cambridge professor of public law, who advises the Constitution Committee and who supported the decision in Miller II.

With Clause 3 in the Bill, I simply cannot see any court, and certainly not the Supreme Court—now under new management, with a new president—contemplating reviewing the prerogative of the Prime Minister. Indeed, even without Clause 3, I do not think that it would have done so, but it is there for the avoidance of doubt. Indeed, one reason for having it there is to relieve the court of the embarrassment of being drawn reluctantly—believe me—into this rather sensitive area.

Let me explain now why I see no basic objection to an unreviewable prerogative here—it is, or would be, exercisable by Her Majesty not on the advice but at the request of the Prime Minister—and then I must explain why I do not think that the House of Commons should have a vote. As to an unreviewable prerogative power, I gather that there are those who worry that that could place Her Majesty in an invidious position if, for example, the Prime Minister did not like the result of a general election and thought he could get a better majority with an immediate further election. That sort of thing, besides being flatly contrary to the conventions set out and agreed on all sides, is really a purely theoretical risk. Any Prime Minister has to have regard to the obvious general good sense of the electorate, and we all know that electorates can see through that sort of thing extremely readily. Certainly, it does not to my mind suggest for a moment that the Prime Minister could be mad enough to reach a decision that would actually embarrass Her Majesty.

As to the Commons having a vote, I object to that because it would leave wide open the possibility that we could return to the selfsame intolerable position that arose under the Fixed-term Parliaments Act back in the late summer of 2019. Paragraph 86 of the report of March this year from the Joint Committee on that Act said:

“It would be possible to replace the Fixed-term Parliaments Act with a provision requiring a vote in the Commons before Parliament was dissolved. A minority of the Committee argues this would be the simplest and most obvious way of protecting the Monarch from being dragged into party political debate. The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”


In a letter dated 12 August, the Minister gave a well-judged response to the suggestion from the Public Administration and Constitutional Affairs Committee for a convention that there should be a Commons vote. The letter said:

“To establish a convention that a resolution of the House must proceed an early dissolution would not be compatible with a return to the tried and tested arrangements for calling an election. Indeed, to create such an expectation would potentially only lead to a repeat of the circumstances of 2019 which this Bill seeks to avoid in repealing the 2011 Act and reviving the dissolution prerogative.”


The imperative, in my respectful suggestion, is to avoid any risk of returning to the position that arose then. In speaking in a debate on 5 September of that year, 2019, I deplored the situation brought about by the Kinnock Bill, an Opposition Bill to ensure that Boris Johnson could not pursue his essential policy of securing Brexit, even if necessary on a no-deal basis. Although I was certainly no supporter of the Prime Minister or of Brexit, and still less of a no-deal Brexit, I suggested that the Bill compelled the Prime Minister to go to Brussels cap in hand, not merely to seek but to obtain a further extension to that process. A little later, I said that

“those promoting this Bill are at one and the same time intent on compelling the deep abasement of our sitting Prime Minister and yet refusing the Government the opportunity by general election to reinforce its right to govern, which we generally take for granted.”—[Official Report, 5/9/19; col. 1177.]

The imperative of this Bill is that we do not allow that to recur. Let us return to the safe and sound position we used to have—let us pass this Bill.

Extension of Franchise (House of Lords) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support this Bill just as I supported the same Bill when the noble Lord, Lord Dubs, was promoting it six years ago, in June 2013. I have reread the Second Reading debate of his Bill then and noted rather to my surprise that I managed to speak for eight minutes; I am not sure I shall manage that today.

I recognise, of course, that this is perhaps not the most burning political issue of the day. But it has for some time been, and remains, an issue worth raising and one which should finally be resolved—in its favour, I suggest—and put to bed. I invite your Lordships to look at it this way: suppose that our present bicameral system was being devised and established for the first time today, long after the passage of the Parliament Acts of 1911 and 1949, with an elected House of Commons being rightly accorded the primacy it is recognised to have; it alone having the power to impose taxes and deal realistically with money Bills; it alone having the right by convention to implement its policies, particularly its manifesto promises; it alone having the power to bring down government; and so on. Suppose all that, and that those setting up the system of government then asked themselves—after looking around the world at other bicameral nations where the second Chamber invariably has the vote—should the Members of the upper House have a vote in deciding who should be the Members of the House of Commons? I suggest that one cannot seriously doubt that the answers would be: of course they should; why on earth not?

It is quite wrong to suppose that the mere fact that we have a limited say in scrutinising and refining Bills from the House of Commons, and occasionally promote Bills ourselves, should disqualify us from voting in parliamentary elections. One point I made in the debate brought by the noble Lord, Lord Dubs, is that the 11 of us who in October 2009 ceased to be Law Lords here and were recreated as Justices of the new Supreme Court became at that point totally disfranchised. For so long as we remained Supreme Court Justices, we ceased to have any vote or voice whatever in national political life. We were disqualified from speaking or voting here in the Lords, yet as Members of the House of Lords we had no vote either in parliamentary elections. Still now, 10 years on, there remain in the Supreme Court two such Justices, the noble and learned Baroness, Lady Hale, the President of the Supreme Court; and the noble and learned Lord, Lord Kerr of Tonaghmore. There are, I think, two Scottish law officers similarly placed.

This does not apply to Peers who retire, nor indeed any Peer who may be expelled from the House under the provisions of the House of Lords (Expulsion and Suspension) Act 2015, although no doubt it applies to other Peers statutorily disqualified from active membership. Should we simply write off those cases as mere oversights or regrettable anomalies in an otherwise sensible, logical voting system? I suggest not. It seems to me rather that, as a matter of principle, we should finally end the wider anomaly, which consists in the disqualification of all Members of this House from voting in Commons elections. The right to a parliamentary vote should be regarded as a basic fundamental right that should be denied to citizens only for compelling reasons. It is no longer denied to mental patients. It is, as we all know, still denied to all convicted prisoners. Personally, I regret that, but I suggest that today is not the occasion to debate again its pros and cons. No more is it, pace the noble Lord, Lord Rennard, the occasion to debate the Liberal Democrats’ cause of a wholly elected House of Lords or indeed the question of votes for 16 year-olds.

I accept that there is a stronger case against prisoners voting than there is against Members of this House having the vote, but I suggest that there really is no coherent case for denying us the vote simply because we have a limited—though, I recognise, valuable—role in the overall legislative process. It is not a sufficient role to justify our being denied any say in those who have primacy in legislation, the Members of the House of Commons.

The vote is a symbol of a healthy democracy whose value should be recognised. The Bill would assist in that recognition, and I wish it well.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, I beg to differ with the noble and learned Lord, Lord Judge: I think these are riveting matters. This debate has shown exactly why that is so, because they are not easy. I am very glad that he has in effect gone back to what some of us said right at the beginning of Second Reading: that the importance is not what is in the Bill but what is on the form that results from this piece of legislation. That is what we have been driving at, not only in the debates in your Lordships’ House, but also in the discussions we have had with civil servants from different parts of government and from people within the community, over a number of very interesting and informative sessions.

I say to the noble and learned Lord, Lord Mackay, regarding his problems with the DVLA, welcome to the world of some of the minority groups in this country, who are faced with forms that they wish to answer truthfully but find doing so extremely difficult. It is always a joy to listen to the noble Baroness, Lady O’Neill. I wish she could have been present for some of the discussions that we had with the community groups, the ONS and the civil servants, who are in the middle of extensive testing, not just of the understanding of people who are in these groups and who are familiar with these terms, but with people who are not.

This is something which by its nature evolves over time, and the language within it changes over time; I guess that every 10 years there is something new. We should not be critical of that, but simply do our job in Parliament, which is to oversee those changes and make them as good as we possibly can. I have said this before and think it is worth saying again: the taking of a census is an important moment in our civic life. I know there are those who wish to dispense with it, who make an argument that we can get much of the information in other ways. I understand that to an extent, but nevertheless this is one time when the Government engage with all citizens and ask them questions about themselves. I understand that it is flawed—I suspect that it always will be—but the noble and learned Lord, Lord Judge, has got us to the point we said we wanted to be at, where we will get the most data in the easiest and most efficient way from the greatest number of people. If we send the Bill to the Commons in this state, we will have done a good job.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I came here this afternoon intending to support my noble and learned friend Lord Judge. However, something said by the noble and learned Lord, Lord Mackay of Clashfern—who also had the sagacity to promote me—has given me a slight worry. I was going to support my noble and learned friend Lord Judge on the basis that clarity is all important, but I now wonder whether his amendments are sufficiently clear.

It is made plain you do not have to answer the question, but what if you answer it untruthfully? I confess that I have not sufficiently explored the overall legislative context in which this happens, but the noble and learned Lord, Lord Mackay, says that it is made plain elsewhere that not only do you not have to answer a question but also, if it is one of those questions that you do not have to answer, whatever answer you give, however misleading or absurd, will not expose you to prosecution. However, the formulation in Amendment 1, and equally in Amendment 2, begs rather than answers the question: if you choose to answer, must it be a truthful answer? That itself could give rise to a difficulty which may not exist absent these amendments.

[Lord Young of Cookham (Con)]

My Lords, I thank the noble and learned Lord, Lord Judge, for tabling his amendments, and thank all those who have taken part in this debate. I agree with the noble Baroness, Lady Barker, that the census is an important civic event; we should all discharge our responsibilities and complete it. I will try and deal with the various issues that have been raised during the debate.

We had a useful and informed debate on this in Committee, when the noble and learned Lord did not press his amendments which sought to clarify whether removing the penalty also removed the offence. He did that after an offer to have further discussions before Report to see if there was a way through. I am very grateful to him, and to my noble and learned friend Lord Mackay of Clashfern, who I saw having a discussion outside the Bishops’ Bar last week; I realised that if I joined it I would not understand a word that was exchanged, but I noticed that a cloud of white smoke emerged. They subsequently agreed to come to a meeting with Ministers and officials last week, where I hope we found a way through which satisfied all concerned. I hope that this afternoon we can validate this great meeting of minds.

In Committee, the noble and learned Lord, Lord Judge, raised an important issue on ensuring that there is no ambiguity as to the voluntary nature of certain census questions in the minds of those who will answer them. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. I agree with him that from the point of view of the respondent—the most important person—this must be clear. So far as the guidance on the front of the form is concerned, we have no issue with his proposal. I can confirm that the Office for National Statistics is committed to the inclusion of wording on the front page of the census for England and Wales, as proposed in the amendment. This will make it clear that the census is compulsory, that some questions are voluntary and that not answering these voluntary questions is not an offence. I hope this commitment will meet the shared objective of the noble and learned Lord and others, and of the Government, on ensuring clarity for the public.

I also confirm that the voluntary questions in the form will be clearly marked as “voluntary”, as the amendments would require. This has been the case for the voluntary question on religion since its introduction in the 2001 census for England and Wales, and it has been effective. In each of the last two censuses, 4 million people in England and Wales—over 7% of the population—have chosen not to answer the religion question. This suggests that the public clearly understand this question to be voluntary.

To best fulfil the intent of the noble and learned Lord’s amendments, the wording on the form should be tested with the public to ensure that the messaging is as clear as possible, ahead of finalising the census questions. Stating the precise wording in the Bill would mean that it could not be amended in the light of that testing. The ONS is committed to carrying out this testing, following which the census forms for England and Wales will be put before Parliament and the Welsh Assembly, respectively, in census regulations. While the regulations are not amendable the ONS will engage with interested parties, including noble Lords, as it finalises the form and guidance.

The census is a devolved matter. Decisions on the questions, questionnaire and guidance to be issued in the 2021 censuses in Scotland and Northern Ireland are for the relevant authorities in those Administrations, through a similar secondary legislation process. I hope your Lordships agree that it would be inappropriate to make a decision for Northern Ireland, although we will of course make that Administration aware of the changes we propose for England and Wales through the ONS.

The secondary legislation for the 2021 census in England and Wales will begin to be brought forward later this year. As my noble and learned friend Lord Mackay said, an Order in Council will set out the detail of the questions to be asked in the England and Wales census. That order is in part subject to the unusual amendable affirmative procedure before both Houses. It will be laid in the autumn and the regulations, to which I have already referred, will follow in 2020.

I will try to deal with some of the questions raised during the debate. The noble and learned Lord, Lord Brown, asked about the questions being voluntary and whether the penalty for a false response should be removed. The answer is no: Parliament rejected an amendment to this effect in 2000 and it was right to do so. Not wishing to provide a response and wilfully providing a false response are different issues. Removing the penalty for providing a false response would pose a risk to the quality of census data in a way that allowing people not to provide an answer does not.

The noble Baroness, Lady Hayter, asked about military service—as she said, I wrote to her on it. The Armed Forces question is there to help public services serve those who have served their country and is underpinned by the Armed Forces covenant. No one in the household will know whether an individual fills in their own return; it will overwrite the household return. She was concerned about a lodger who might not wish to disclose their previous service to their landlord or landlady. The landlord would fill in the form for the household, but the lodger could apply for their own census form and fill it in without the knowledge of the householder. That would override the household return. No alternative data source fully meets the data that we need.

I think that I have answered all the questions that were asked. I recognise the concerns expressed by the noble Baroness, Lady O’Neill, and remind all noble Lords that we are happy to do a drop-in session to explore these points in more detail. Finally, I repeat my gratitude to the noble and learned Lord for his help in this matter and express the hope that, as a result of the commitments that I have given, he will not press his amendments.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Friday 15th March 2019 Lords Chamber

[Baroness Hooper (Con)]

My Lords, I declare my interest as a life Peer who has sat in your Lordships’ House for 35 years and served the House from the Front Bench, the Back Bench and the Woolsack, and behind the scenes in committees and all-party groups. I also was here for the passage of the reform Bill, which sadly was handled very badly. Although the core purpose of that Bill was to lead to a more “democratic” House of Lords, it did not do so. I cannot say that the fully appointed House of Lords is worse than the mixed House in which I sat for 15 years, which had a mixture of almost equal numbers of life Peers and hereditary Peers. But it is not a democratic House.

I support my noble friend Lord Strathclyde’s amendments. I do not need to go into detail, because he and the noble Earl, Lord Erroll, have explained the situation very clearly. Indeed, it was very helpful to have the intervention from the Minister. It is important to remember that the purpose of the so-called reform Bill was not just to get rid of hereditary Peers, as was said at the time, but to lead to elections of a second Chamber. I have voted in favour of an elected second Chamber in your Lordships’ voting lobbies.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I strongly support this Bill. It is for that reason that I oppose this amendment, not because I do not see powerful arguments for a statutory HOLAC but because they clearly will not prevail in the context of this Bill; as has already been amply pointed out, they can only destroy the limited but important effect of the Bill as proposed.

I have said in the past that I am a huge admirer of the contributions made by hereditaries, but I fundamentally object to the notion that they should be followed by other hereditaries through an assisted-places scheme. That is what it is, and we have called it so in the past. It is of course right to say that the present scheme is also gender and racially biased, but those considerations fall into insignificance compared to that fundamental objection: that it provides for a well-born group of people to be necessarily the only candidates to fill 90 slots. That is just not appropriate. For the reputation of the House, I urge that this Bill be not hampered by the accretion of a statutory HOLAC, but be accelerated through. The fact that this House is trying to modernise and promote its reputation should be foremost in all our minds.

The thought that, as the Burns report progresses and we diminish in numbers, an ever-larger proportion will be hereditaries is absurd. Besides the Prime Minister’s commitment to her reticence and the fact that we are now diminishing in number, the one response of relevance to the Burns report is that in future there is to be,

“no automatic entitlement to a peerage for any holder of high office in public life”.

If Cabinet Secretaries, CGSs, Chief Metropolitan Police Commissioners, Lord Chief Justices and the like will not be able to count on appointment in future, why on earth should future hereditaries?

[Lord Jones of Birmingham (CB)]

My Lords, I do not think I need to remind noble Lords that, at this moment, all over the nation, the political class is seen to have failed the country. If ever there was a time when noble Lords could make a stand for connecting more with the people, it is now. I assure noble Lords that, in pubs from Cradley Heath to West Bromwich, to Kings Heath in my home town, they talk of nothing but reform of the hereditary peerage system.

I fully support the noble Lord, Lord Grocott, in what he is trying to achieve. The time has come when, if we truly believe in making the political class that which I know this talented nation can provide for its people, this House must set an example. These amendments—every one of them—should be withdrawn, and after five days of debate over 240 words, we should push this through and stop the farce. We can then get on with not only running the country but reconnecting the political class with the people who have trusted us to look after them.

--- Later in debate ---

[The Earl of Caithness]

My Lords, the noble Lord, Lord Grocott, prompted me to rise when I was not going to speak on this amendment. He quoted again the odds of becoming a Member of the House of Lords and said that the balance is tilted in favour of the hereditary Peers. Does he agree that once hereditary Peers are removed, the quickest and easiest way to get into this House is to become an MP? A third of the House are ex-MPs and that proportion will go up. Does he agree that that is an equally unjust way to fill the House of Lords, and that the right way is to hold elections?

[Lord Brown of Eaton-under-Heywood]

My Lords, I suggest that a feature of this group of amendments—indeed, of all the others too with the single exception of Amendment 2A, moved by the noble Lord, Lord Strathclyde—is the destruction of the Bill’s essential purpose: to abolish hereditary Peers for the future but keep our present invaluable 90, or 92. The original proposal of the noble Lord, Lord Strathclyde, was at least consistent with the Bill in the sense that he was prepared, as he said, to accept the abolition of future elections provided that we introduce a statutory HOLAC but that is not true of the rest of these amendments.

[Lord Snape]

My Lords, I did not intend to speak on this group of amendments but I was provoked to do so by the intervention from the noble Lord, Lord Strathclyde. He was around in 1999; indeed, I am pretty sure that he played a major role in what took place then. It is all very well for the likes of the noble Viscount, Lord Trenchard, to pray in aid the agreement that came about then and use it as an excuse to say that it was a solemn and binding—he did not use that particular phrase—way to reform the House, that it was at only an initial stage and that he intended to continue that reform later, but the noble Lord, Lord Strathclyde, knows full well how the 1999 agreement came about. It was accepted by the Labour Government because the Conservative majority in the House of Lords at the time was enormous. Despite the equally enormous Labour majority down the corridor as a result of the 1997 election, that Conservative majority, in which the noble Lord, Lord Strathclyde, played a major role, made it quite plain that it was either this particular deal or no reform of the House of Lords at all. So let us not have any nonsense that this was merely stage one and talk of solemn and binding promises.

Indeed, that agreement came about without the knowledge and permission of the leader of the Conservative Party in the House of Commons. The leader of the Labour Peers in the House of Lords lost his job as a result of the agreement. He was a descendant of Lord Salisbury. I would have thought that it takes a lot to shift a Salisbury from your Lordships’ House, but that is exactly what happened. The noble Lord, Lord Strathclyde, knows not only where the bodies are buried but I suspect wielded a shovel himself.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Blunkett (Lab)]

My Lords, to address the issue that has been put before us and to avoid prevarication, there is a new phase 2: it is Burns. There may be a phase 3—who knows? If a Jeremy Corbyn-led Government were elected, there would a phase 3 which might disturb the Benches opposite slightly more than not having by-elections for hereditary Peers. Burns is a phase 2, and it has consequences. Unless the issue of hereditary Peers and by-elections is addressed in the way that my noble friend Lord Grocott proposes, it is not my party or the broader opposition who will find themselves in difficulty, it will be the Conservative Benches. I would like them to reflect on what would happen if we implemented Burns and this House were decanted in six years’ time, with the two things coming together, and the Conservatives were faced with hanging on to their hereditary Peers while losing their life Peers.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am a great admirer of our hereditaries. Man for man, pace my noble friend Lady Mar, they are at least a match for those like me who have been appointed here. They are a match in their commitment, their contributions to the House, their expertise and, as the noble Lord, Lord Mancroft, pointed out at Second Reading, their independence of mind and spirit.

Like many others here, I would welcome wider improvements in our appointments system, with a larger role not least for the noble Lord, Lord Kakkar, and his excellent Lords Appointments Commission. In the meantime, I strongly support this Bill, which would go some considerable distance to enhancing the reputation and image of this House.

Therefore, far from supporting the amendment in the name of the noble Lord, Lord Trefgarne, I see positive merit in this reform being achieved by way of a Private Member’s Bill rather than by government. It demonstrates our own desire and commitment to achieving reforms for ourselves. Consistently with that goes the report of my noble friend Lord Burns, which again is our own attempt to modernise and reform this House. I cannot resist harking back to the words of the noble Lord, Lord Grocott, in closing the Second Reading debate. He asked why hereditaries should,

“have an assisted places scheme to get into the House of Lords?”—[Official Report, 8/9/17; col. 2186.]

There has been much criticism throughout these debates of hereditaries being, virtually without exception, male and white. As the noble Baroness, Lady Berridge, put it at Second Reading, the existing system is, “gender and racially biased”. Surely altogether more fundamentally objectionable even than those criticisms is the fact that this system favours a very tiny, and—I suppose I had better put this in quotes—“well born” number within a wider population of millions. A number of those millions may have even more to contribute to our House than the hereditaries—the few future hereditaries who, if the Bill passes, will not join us. In short, why should they have assisted places? Should we not modernise and reform?

[Lord Wakeham (Con)]

My Lords, I shall say just a few words at this stage. First, I must declare an interest: I was chairman of a royal commission some years ago that produced a number of proposals for reform of the House of Lords, and I have to say to the noble Lord, Lord Grocott, that it did not include by-elections for Peers. I am sympathetic to what he wants to do; my concern is about the timing. Since that report, we have had a Bill from the Labour Government, from Jack Straw, which failed to get through. We had a Bill from the coalition parties which failed to get through. Some of us felt that there was very little likelihood of any Government bringing forward another Bill to reform the House of Lords.