House of Lords (Hereditary Peers) Bill

Lord Garnier Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, although I am also a lawyer, I will be brief because the noble Lord, Lord Grocott, has a point. I am rather against rules that require people to be appointed to this House by virtue of offices that they have held. As a former holder of the least distinguished of the offices listed in the generous Amendments 58 and 59 of the noble Lord, Lord Parkinson, I certainly did not feel entitled to such elevation, although the work I did in that office emboldened me to try my chances with HOLAC.

The glory of the Cross Benches—if that is not too strong a word—lies in the very diverse backgrounds of those who are here. I fear that a mandatory inflow of establishment figures, rigidly predefined and appointed irrespective of any scandals that may have attended their time in office, would tend to reduce that variety, in particular by inhibiting the appointment of people’s Peers, about which I have spoken in a previous debate.

With respect to the noble Lord, Lord Parkinson, I would make an exception for the very senior judges named in the amendments of the noble Lord, Lord Wolfson, for the reason that he gave: judges at that level often have impartially to determine cases to which the Government are, and sometimes even the Prime Minister is, party. That is what distinguishes them from Chiefs of the Defence Staff, Cabinet Secretaries and so on. They have to choose, in any case, on the basis of the law, whether they are on the Government’s side or not. That is why, between judges of equal rank, the state has to be scrupulously even-handed about conferring honours or preferment.

I am sure that every Government see the priceless benefit that former Supreme Court judges bring to our deliberations, but such judges should not be appointed to this House, any more than they should be given knighthoods or damehoods, simply because the Government of the day like the cut of their jib. Something less arbitrary is required. Either all should be appointed, as proposed by the noble Lord, Lord Banner, in Amendment 68—which would be my own preference, I hope not only because, like him, I am awaiting a judgment from the Supreme Court—or, if that is thought to be too rich a diet, the honour should be rationed, as proposed by the noble Lord, Lord Wolfson, on the basis of rank. I hope Ministers might agree; I hope they might even be prepared to say so.

[Lord Garnier (Con)]

My Lords, I am very attracted to what the noble Lord, Lord Anderson, has just said. I find what my noble friend Lord Banner had to say extremely attractive, and I hope that the Government will find it their—

[Viscount Hailsham (Con)]

Wisdom?

[Lord Garnier (Con)]

Yes, wisdom—I was clutching for the word. I hope they will find it in their wisdom to reach a conclusion similar to that advanced by my noble friend.

Quickly, while the noble Lord, Lord Grocott, is still in the Chamber—

[Noble Lords]

Oh!

[Lord Garnier (Con)]

He is never far absent from it. This series of amendments does not appeal to the noble Lord because it does not deal with the hereditary peerage, but of course, right in front of us—of me—is my noble friend Lord Hailsham, the third Viscount, whose grandfather and father were both Lords Chancellor and therefore senior members of the judiciary in their day. He demonstrates the agility of the British constitution, in that, although a hereditary Peer, he sits here as a life Peer.

[Viscount Hailsham (Con)]

I cannot be culled.

[Lord Garnier (Con)]

Exactly; and we are all the better off for that. However, I think it very important to recognise that, although our constitution is odd, strange and, in many ways, not very neat, it does function all the better by having people from a variety of backgrounds in this place.

The fact that we do not any more regularly have the presence of what used to be called Law Lords, and now are justices of the Supreme Court, is a disbenefit to us. Also, I suspect that there was a time when the Law Lords gained advantage by, if not speaking and voting in the Chamber, at least being here and listening to or discerning the political mood of the moment. This is particularly so when they are dealing with cases involving public policy. I suspect that we have missed a trick by informing the Supreme Court and our being informed by it in our respective deliberations.

[Lord Bellingham (Con)]

I am very grateful to the noble and learned Lord for giving way. He will recall that, when we both became MPs a while back, we attended APPGs regularly. It was customary at those to see a number of sitting Law Lords in attendance—obviously, never making controversial points but adding a great deal of wisdom and knowledge to the work of the APPGs.

[Lord Garnier (Con)]

My noble friend was obviously a keener member of APPGs than I was, but I am sure he is entirely right.

None the less, I think it important that we in this House, and the Supreme Court, for its part, should mutually benefit from each other’s membership. I hope the Government will accede to my noble friend Lord Banner’s amendment, even if it does not go as far as my noble friend Lord Wolfson asked for in his.

I heard two particularly hurtful and outrageous suggestions this afternoon. One was from my noble friend Lord Wolfson: that he was not in the least bit bothered by the submissions from Members of his own Back Benches when he was a Minister.

[Lord Wolfson of Tredegar (Con)]

When I said, “the Opposition”, I meant the Opposition as then constituted; anything that came from our own side was obviously of the highest quality.

[Lord Garnier (Con)]

I was fishing for that compliment —and it does take a lot of effort. Anyhow, the other outrageous thing was my noble friend Lord Parkinson claiming that exceptionalism from lawyers was something to be criticised; I find that very distressing.

I will finish on this point. I cannot compete with my noble friends Lord Wolfson and Lord Banner, or indeed the noble Lord, Lord Anderson, on the number of times I have appeared in the Supreme Court, and I am certainly not awaiting a judgment now, but the last time I appeared there was in 2019, when I had the joy and honour of being against my noble and learned friend Lord Keen of Elie. He was acting for the Government and I was not. I had the advantage of being able to describe his client, the Prime Minister, very frequently as “the defendant”.

[Lord Hope of Craighead (CB)]

My Lords, I hope the noble Lord, Lord Grocott, will forgive me for intervening. I certainly do not wish to prolong these proceedings, and I agree with a great deal of what he said about their irrelevance to the Bill, but I should say a word because, as it happens, I am a former holder of two of the offices referred to in these amendments—first as Lord President of the Court of Session, later as a Law Lord, and later still as a Justice of the Supreme Court—so I can say a little bit about what these amendments might mean for them and for the House.

As far as the Lord President is concerned, I think the noble Lords, Lord Wolfson and Lord Anderson, will be alarmed to know that I received a peerage not when I was appointed as Lord President but after I had been serving as Lord President for about five years. It came to me as an honour in the New Year Honours List, for which I was, of course, extremely grateful.

A few years later, I became a Lord of Appeal in Ordinary, but I was already a Peer, so I did not have to become another form of Law Lord—that is, a Law Lord Lord—as I was already a life Peer. I thought that would see me through until retirement, but in 2003, when I was travelling home to Edinburgh and was in the lounge at Heathrow Airport, I was greeted by an announcement on the television set that the body to which I belonged—the Law Lords—was being abolished and that a new Supreme Court was to be created. So it was that, when the Constitutional Reform Act 2005 was enacted, I became disqualified as a result of Section 137. I never came here during that time, except possibly once to sit on the steps of the Throne to see what was going on. It was only after I retired that I was able to come back here because the disqualification was lifted.

I do not remember there being an agreement, as it were, that at some stage the Justices of the Supreme Court would be granted peerages. Certainly in 2003, when the whole issue blew up, there was very strong resistance to the judges being in the Lords at any time, whether serving or retired. The noble and learned Lord, Lord Falconer of Thoroton, knows where the bodies are buried, not I, but there certainly was that resistance. I do not recall any undertaking and nor was it buried under the sofa, because it was quite a strong feeling at the time. There it is—that is what the position was at that time.

So far as the amendments are concerned, I will say a word about the Lord President. The Lord President’s place of work is as a judge in Edinburgh. I found it an extremely demanding and time-consuming job. I came here to take the oath after I received my peerage and I came later on, for one day, to make my maiden speech, but I cannot remember coming at any other stage as Lord President. My predecessor, Lord Emsley, was in much the same position. He received a peerage after he had been serving as Lord President but he very rarely, if ever, came to speak.

Those were pre-devolution days. Now, the situation has changed markedly. The system over which the Lord President presides is devolved, and much of the law that he and his colleagues in the court look at is devolved, so the occasions for the Lord President feeling justified in taking time to come to London to sit and speak in the House of Lords will be very few and far between. The same would be true, with respect to the noble and learned Lord, Lord Wallace, of the Lord Chief Justice of Northern Ireland. It is a different matter after retirement, of course, but as serving judges their place here would be difficult to justify.

So far as the Supreme Court is concerned, of course, its place of work is not here—it is just across Parliament Square—but I can say, having worked there for four years, that it seems a very long way from this House. In the summer months you have to fight your way through the crowds to get here from there, and, of course, there are all the problems of finding a place and finding an occasion to speak. One thing we have lost, inevitably, is the connection with the House, which I felt very strongly as a serving Law Lord: I used to come here, not to take part very much but to listen to debates and understand what was going on. That connection and the wish to participate has been lost.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, I have taken a certain interest in this issue because a Peer who was extremely kind to my wife and me when we were young academics, and was himself then a senior diplomat, was the case in point.

This is something which needs sorting. It can be sorted by either a change in Standing Orders or an Order in Council. If that is not allowed, it needs legislation. We have just passed a short Bill through this House, the Church of Scotland (Lord High Commissioner) Bill, which covered one extremely small element that was forgotten or not allowed by the Church of Scotland in the Roman Catholic Relief Act 1829. If we can do that, then we can add, if necessary, a short amendment to this Bill to have that effect.

As I walked through the Lobby the other day, another Peer, who happens to be a relative of the Peer in question, said to me, “This is not just a single case. Until we have agreed a retirement age, we are likely to be facing this again and again with others”. We all know that there have been cases of Peers who have continued to come here as they begin to lose their mental capacity.

I have another reason for intervening on this. I recall my mother, aged 93, trying to sign a power of attorney for me to act on her behalf. Her paralysis had reached a point where she was unable to sign and thus not able to confer the power of attorney, despite being completely in her right mind.

This can be done. We are entitled to ask the Government that, by Report, we have clear advice on whether it has to be done by legislation or can be done by an Order in Council or a change in Standing Orders. I know that there is conflicting advice on this, because I have taken some interest in the case.

I know that the Government’s preferred outcome is that there should be no amendments to this Bill. However, this is a Bill about some further reform of the Lords, and we are unlikely to see another one for some time. Therefore, this House is entitled to say, as it goes through, that we are interested in some further reforms and that some further limited reforms might appropriately be attached to this Bill. That is what we are now discussing.

I look forward to the Government making an announcement at the start of Report on what further changes in the structures, Standing Orders and procedures of this House they propose, what further consultation on legislative changes they have in mind and when they propose to complete them, so as to help the passage of this Bill through the House. I strongly support this amendment. I do not mind whether the changes are made in one form or another, but they are simple to make, and it should be done.

[Lord Garnier (Con)]

My Lords, as a signatory of the amendment, perhaps I may make one or two points in support of my noble friend Lord Ashton.

A lasting power of attorney gives the attorney a power to make decisions about two sets of things—health and welfare, and property and financial affairs. Under health and welfare, the attorney can deal with your daily routine—washing, dressing and eating. They can make arrangements for your medical care, for moving into a care home and for life-sustaining treatment. They can make use of that power when you are unable to make your own decisions.

A property and financial affairs lasting power of attorney can be used as soon as it is registered and with your permission. That allows the attorney to manage a bank or building society account to pay bills, to collect benefits or a pension, and, as my noble friend Lord Ashton mentioned, to sell your home. These are big decisions in both types of power of attorney. However, as he pointed out, what they cannot do is enable you to retire from this House when you have lost your faculties.

I am particularly interested in this amendment because, having been on the Conduct Committee for the last three years—I came off it in January—it appeared to me and perhaps to other members of the committee that loss of mental capacity is something that this House will have to deal with in a humane but none the less determined fashion. Had the noble Lord, Lord Harris of Haringey, been making that point about this being out of scope of this Bill in a court, I would have said it was a mere pleading point and, “Shall we just get to the substance?” The substance is that this is an issue—the noble Lord, Lord Wallace, was right to address it—that has to be dealt with, if not within this Bill then in some other way by the House, because we are facing a growing and difficult problem of people who are beginning to fail to understand that they should no longer be here. It may be cruel to expel people, but if they could make up their own mind, they would do so. We need to cater for those who have lost the ability and the capacity to make that decision.

I urge the House, if it does not accept the amendment in its current terms, to understand that this is a problem that faces us, and we must deal with it as a House.

[Lord Taylor of Holbeach (Con)]

Perhaps I may say a few words as the predecessor of my noble friend Lord Ashton of Hyde as Chief Whip for the Government in this House. When I was serving under the noble Baroness, Lady May, she was very keen to make sure that the numbers in this House did not increase exponentially. We have the noble Lord, Lord Burns, in his place today, to thank for a very good report on not increasing the numbers in this place.

I spent a lot of time, along with my noble friend, trying to urge people to retire when they could no longer participate in this House or do anything to add to our deliberations in any way. I felt that we needed to do something about this. So when this amendment was pointed out to me, I did not take the view of the noble Lord, Lord Harris of Haringey, although I totally agree with his analysis that it is not covered by the Short Title of the Bill, except for the reference to “hereditary Peers”. This should apply to all Members of the House, and I urge the Government, when they come across this issue on Report, to propose their own amendment to address it on behalf of the whole House, or to suggest ways in which we can do so with the support of all Benches. The need to achieve this objective has been very well explained.