House of Lords (Hereditary Peers) Bill

Lord Howard of Lympne Excerpts

Monday 10th March 2025 Lords Chamber

[The Earl of Kinnoull (CB)]

HOLAC is 25 years old in May and, looking at its report card, one would say that it has been a success. Of its two jobs, the production of the 76 Members that the noble Earl, Lord Devon, referred to into the Cross Bench has been a great success. I can say, as I am not one of them, that they really are among our most regular attenders and most valuable contributors. On the other side, its vetting business has also been a success, otherwise we would have noticed standards slipping in the House all round. But HOLAC is a delicate child; it was born of a White Paper and it lacks the permanence that it deserves. It is now a non-departmental government body and an advisory body only.

I suppose there are three things that one could do to HOLAC from here: first, give it the permanence that I think it deserves; secondly, broaden the scope of what it looks at; and thirdly, increase its powers—or, rather, give it powers, because it does not have any at all at the moment. In permanence terms, as I have already suggested, I feel that the time has come, after 25 years of success, to try to find a way to make HOLAC more permanent somewhere in statute, and not just have it as something which appeared in a White Paper.

On broadening HOLAC’s scope, it is clear that the exercise it undertakes when it looks at new Members includes enough data, information and deliberation for it to make a determination on not just propriety but suitability. Given that it is an advisory body, this would be interesting to me, were I Prime Minister, and it should be asked to provide that guidance to the Prime Minister. I would have that element of broadening its scope.

Where I do have a difficulty, though, is on increasing HOLAC’s powers. It would be hugely complex. We would have to sort out who is going to be a member. Today, it is quite a relaxed process—it is going on at the moment to fill two slots—but it would be extremely interesting to all sorts of people to become a member, or indeed a chair, of HOLAC. Its scrutiny, if it had real power, would be something we would have to sort out as well. That would take some time, and the timetable for this Bill would not allow that. I do not feel that this Bill could possibly be a vehicle for increasing HOLAC’s powers, but it could be a vehicle for making it permanent and giving it some breadth.

[Lord Howard of Lympne (Con)]

My Lords, I will speak briefly to Amendment 45 and the other amendments in this group that would make HOLAC a statutory body. I was a member of the commission for a number of years and, despite the fact that I hold the proposers of these amendments in very high regard, it would be a great mistake to put it on a statutory basis. I say so for the same reason as that given by the noble Lord, Lord Kakkar, a distinguished former chairman of the commission, to your Lordships on 18 November 2022.

In a nutshell, making HOLAC a statutory body would make it subject to judicial review. This would mean that someone who was unsuccessful in their application to become a Member of your Lordships’ House could challenge that decision in the courts. It would mean that an appointment that had been announced and, indeed, confirmed could be challenged in the courts. The courts would be drawn into deciding who should and should not be a Member of your Lordships’ House—a Member of this Chamber of Parliament—which is a flagrant breach of what we have always understood by the separation of powers.

It may be suggested that the legislation contemplated by these amendments to make HOLAC statutory could in some way circumscribe the power of the courts to intervene. I am afraid that history demonstrates that in a contest of that kind between the parliamentary draftsman and the courts, the courts usually win.

[Viscount Hailsham (Con)]

My Lords, my noble friend is making a very serious point. Would he perhaps consider that the power of judicial review would be reduced if HOLAC was obliged, before making a public statement, to give the person affected the opportunity to respond?

[Lord Howard of Lympne (Con)]

On the contrary, if reasons were given, those reasons could be the basis of a challenge in the courts. I fear I entirely disagree with the last point my noble friend made in his speech, when he suggested that reasons should be given. If reasons are given, they can form a stronger or a particular basis for a challenge in the courts.

I shall content myself with one example of the attitude of the courts to attempts to circumscribe their powers to intervene. When I was Home Secretary, a decision was made, though not by me, to refuse British nationality to someone whom I will not name. The relevant statute says that in such cases the Home Office is not obliged to give reasons for its decision. The High Court decided that these words meant what most people would think they meant, which was that the Home Office did not have to give any reasons. The Court of Appeal, however, decided that because the statute gave the Home Office discretion as to whether it could give reasons, it was wrong not to give the reasons. Your Lordship will see what I mean when I say that it is extremely difficult to circumscribe the determination of the courts to intervene.

I do not think that the courts should have a role in determining the membership of your Lordships’ House. That would be a consequence of these amendments. I urge your Lordships to reject them.