Queen’s Speech

Lord Lloyd of Berwick Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I agree wholeheartedly with what the noble Lord, Lord Phillips, has said about the volume of legislation. Twenty-five years ago the Acts passed in a single year could be contained in a single handy volume, which, as I have said before, one could, if so disposed, read in bed. Today, a year’s statutes can be contained only in five massive volumes, one of which I can scarcely lift. We have come to believe that legislation will solve every problem but we are wrong about that.

I wish to touch on two separate points, the first of which has not been mentioned so far. Therefore, like the speech of the noble Lord, Lord Giddens, mine may come as something of a relief from Lords reform. I refer to intercept evidence and whether or not such evidence should be admitted in court in order to convict terrorists and others accused of serious crime. The basic facts on that issue are agreed. We are the only country in the world to exclude such evidence. I have argued that the ban should be lifted since a report I wrote on the subject of terrorism in 1996. There is little doubt in my mind that the ban would have been lifted years ago but for the resistance of MI5 and GCHQ. Their case has always been that the lifting of the ban would prejudice their main purpose in life, which is gathering intelligence. However, in 2006, the movement for reform started to gain pace. Several very powerful reports were produced in that year by Justice, the Joint Committee on Human Rights and others.

In addition, there was a debate in this House in March 2007 on a Private Member’s Bill that I had introduced. One noble Lord was kind enough to say in the course of that debate that I had “demolished” the case for maintaining the ban. The noble Lord in question was none other than the noble Lord, Lord Henley—speaking, it has to be said, at some length on behalf of the Conservative Party in reply to the debate. He was teased with having changed his mind from what he had thought before. He replied—I thought with some dignity—that it was legitimate for the Conservative Party to change its mind, and that that is what it had done. I can only hope that the Conservative Party will not change its mind back again.

As a result of increasing pressure for reform, the Government appointed a committee of privy counsellors, known as the Chilcot committee—which might perhaps be referred to as the Chilcot committee number 1, to distinguish it from the Chilcot committee number 2, which has still not reported. That was in July 2007. In January 2008, the Chilcot committee came down in favour of lifting the ban, provided that certain conditions were met. The Government accepted that report and asked the committee, in effect, to get on with it. Its favoured approach came to be known as public interest immunity-plus. This has many advantages, not least that it will be consistent with the operational requirements of MI5 and GCHQ.

Then, in 2009, there came a bolt from the blue. The preferred approach was abandoned—not because of pressure from MI5 and GCHQ but because of certain legal difficulties that had come to light. The preferred approach, it was said, was not “legally viable” because of a decision of the Fourth Section of the European Court of Human Rights in a case from Finland. Since then, we have heard nothing from the Chilcot committee. On 15 December last year, I asked what was happening, and the only explanation given, again by the noble Lord, Lord Henley, was that there had recently been changes in the membership of the committee. That was five months ago. There has still been no word from the committee.

My view, for what it is worth, is that back in 2009 the Chilcot committee took a wrong turning. It gave much too much weight to the decision in the European Court of Human Rights on the Finnish case and, in order to test the legal position and get things moving again, I hope to obtain leave next week to introduce another Private Member’s Bill along similar lines as my earlier one. I am aware that the Chilcot committee has been advised by an independent QC of great distinction. I have been allowed to see that advice but, since it is concerned largely with legal matters, I hope it might be possible—with his consent of course—that that advice be made generally available before the Second Reading of my Bill, so that we can all understand the nature of the legal difficulties that are said to have arisen, and perhaps help to resolve them.

I come now to my second point, which, needless to say, is on Lords reform. I suggest that I might have something slightly different to say on that. My views have remained the same as they were in 2011, in 2007 and, even earlier than that, I think, in 2002, when we first debated this matter. I am against a mainly elected House and the 80 per cent option, but I am equally against a wholly appointed House. I am in favour of a partially elected House, such as that which was favoured by the royal commission chaired by the noble Lord, Lord Wakeham, 12 years ago, soon after the first-stage reform was completed.

The authors of the alternative report now call for a constitutional convention; and that call has been echoed by the noble Lord, Lord Foulkes, and my noble friend Lord Elystan-Morgan. The request is that the constitutional convention should,

“consider, in depth, the issues involved in further reform of the House of Lords, and to bring forward proposals”.

However, that is exactly what the royal commission did 12 years ago. All the crucial issues that would now be considered by the constitutional convention, summarised carefully for us in paragraph 5.54 of the alternative report—including, above all, the impact of House of Lords reform on the House of Commons; in other words, the primacy question that has occupied so much of our time—were considered at length and in detail by the royal commission. It offered a solution. What purpose could then be served by having 12 years later another royal commission under a different name?

So far as I am aware, there was no reference to Wakeham in the alternative report; which is hardly surprising because there was no reference to Wakeham in the Joint Committee report—or, indeed, in the Leader’s speech when he opened this debate on Thursday. This is, of course, because the Joint Committee was asked to report on the Bill and nothing but the Bill. Thus the proceedings of the Joint Committee have, if anything, tended to polarise divergent views, as we have seen, rather than find a way through. In retrospect, it may not have been the best approach.

What, then, did the royal commission recommend? It proposed that 15% of the House should be elected by proportional representation to represent the regions. In a House of 450 Members, that would produce 65 elected Members. Alternatively, with 20% elected Members, we would have 90 such Members—by a happy coincidence, exactly the number of hereditary Peers whose presence among us is still so welcome, but is also so anomalous. Nobody, I think, would argue that the presence of 90 elected Members would present a challenge to the powers of the House of Commons—more especially given that the constituencies that they would represent would be so large that they would not have to face, like Members of the House of Commons, their constituents every weekend. The primacy of the Commons would remain as it is under the existing conventions. There would be no need for a written constitution or for a concordat between the two Houses. On that view, there is nothing wrong with Clause 2, except—this is vital—that the Government have got their numbers wrong.

Moreover, a limited influx of elected Members would actually improve the quality of our debates. Here, I know that I shall be treading on thin ice, but, at present, there are in the House too many ex-Members of Parliament. In the recent two-day debate on Lords reform at the end of April, there were 37 speakers in all, of whom 22 were ex-MPs and 11 were hereditaries. We can do better than that. I accept, of course—

[Lord Grocott]

Perhaps I may ask the noble and learned Lord, given that he said that there were too many ex-MPs in this House, whether he thinks there are too many lawyers.

[Lord Lloyd of Berwick]

There are always too many lawyers, but I maintain that we could do with fewer former MPs and perhaps more elected Peers in the way that the royal commission suggested.

I accept that the Wakeham proposals, which I support, rested on a compromise—of course they did—but you will never, ever reach consensus on a disputed issue unless there is compromise on both sides. Therefore, I beg the Government to think again about the Wakeham proposals before introducing a further Bill, as I hope they will do. A 20% elected House would of course fall far short of what the Deputy Prime Minister wants but it would at least represent a step in the right direction and as such should, I suggest, be accepted by the Labour Party in the House of Commons. As the noble Lord, Lord Grocott, mentioned, it would make the House of Lords more representative but without challenging the primacy of the House of Commons.

If a Bill along those lines were introduced in the House of Commons, I would expect it to get through and, if it did, I hope that it would be accepted by your Lordships in this House. Surely that would be far better than forcing the present Bill down our throats by having resort to the Parliament Acts. Let us do something now and something more than what is contained in the Bill of the noble Lord, Lord Steel. Above all, let us not defer the decision by appointing another royal commission under a different name.

[Lord Norton of Louth]

My Lords, the Royal Commission on the Reform of the House of Lords was precisely that—the clue is in the title. Since then, there have been significant changes to the constitution of the United Kingdom. A constitutional convention would address the constitution holistically and not one particular part looking outwards.

[Lord Lloyd of Berwick]

I should be grateful if the noble Lord would indicate what changes there have been since 2012. The only one that I can think of is the progress of devolution. The fundamental questions relating to primacy which we have been discussing are still exactly the same as they were.

[Lord Norton of Louth]

In addition to devolution, we have had the implementation of the Human Rights Act and significant changes in relation to the European Union, to name but three.

[Lord Lloyd of Berwick]

I am entirely unable to see how the Human Rights Act could affect the position. Surely, if anything, it favours an elected House rather than an appointed one.

--- Later in debate ---

[Lord Armstrong of Ilminster]

My Lords, I am not proposing in this debate to rehearse yet again my proposals for the reform of the composition of this House. On two previous occasions in this Chamber I have set out ideas for the composition of a reformed House. Those ideas were also set out in a memorandum of evidence which the right honourable Frank Field MP and I submitted to the Richard committee, the Joint Committee, and which is published in the appendix to that committee's report.

My concern today is with questions of procedure and process. The Government’s draft Bill seems to be founded on a syllogism: parliamentary law-making bodies should be elected by universal suffrage; the House of Lords is a parliamentary law-making body; therefore, the House of Lords should be elected by universal suffrage. That syllogism has a beautiful simplicity, but it does not stand up to the complexities and challenges of real life as it is lived.

What is deficient about that syllogism? First, there are numerous examples in other countries of parliamentary systems which work satisfactorily with second Chambers whose Members are not elected by universal suffrage. Secondly, in our system it is questionable whether the House of Lords is rightly to be regarded as a law-making body for these purposes. In this House we can propose laws and we can propose to revise laws; but under present arrangements at the end of the day we can be overridden by the other place. We cannot by ourselves make laws. We can propose, but the House of Commons has primacy and can dispose. Laws can be made only by and with the consent of the House of Commons, which is of course elected by a process of universal suffrage. As I read somewhere recently: “The Lords isn’t really a legislature, so why don't we cease fretting about its composition?”. I do not go quite as far as that.

Thirdly, even the Government’s draft Bill responds to the widespread view that there is merit in retaining an element of appointed and non-elected independent Members in the second Chamber. Only the Opposition can now claim the purity of calling for 100% directly elected Members.

Mr Tony Blair, who accepted in principle the need for House of Lords reform, was wont to say that it should depend on achieving consensus. There have been statements from government sources in recent days which have stressed that progress depends on consensus. The Prime Minister himself said last Wednesday,

“this is only going to proceed if the political parties will agree to work together and take a responsible attitude towards this reform”.

He then said:

“If we are going to achieve this reform, we will have to work together across the parties to try to deliver what I think will be progress for our constitution”.—[Official Report, Commons, 9/5/12; col. 23-4.]

That could perhaps be described as enthusiasm tempered with statesmanlike moderation and caution.

If discussions in both Houses of Parliament in recent weeks have made anything clear, it is that the prospects of meaningful parliamentary consensus on the proposals in the Government's draft Bill are not 50:50, they are infinitesimally small. The heart sinks at the thought of the hours, days and weeks that will be spent, first in the other place and then, if the Bill survives there, in this House, debating the details of the Bill, as the noble Baroness, Lady Hayman and the noble Lord, Lord Jenkin, said, generating much political sound and fury but getting nowhere in achieving meaningful consensus.

Some of the participants will no doubt enjoy the fun; but the public, whose reaction to the subject of Lords reform can be summed up as an uninterested and uncomprehending yawn, will wonder why their representatives are not using the time for measures which address the problems which matter to them.

As the noble Lord, Lord Foulkes, pointed out, the reference in the gracious Speech to this proposed legislation gives the game away. The Bill to be brought forward is,

“to reform the composition of the House of Lords”.

There is nothing there about the role and functions of the House of Lords. And yet, as many other noble Lords have said, how can we hope to achieve consensus on whether the composition is fit for purpose unless we have first achieved consensus on the purpose which the House is to serve?

The assumption behind the Government's Bill is presumably that the role and functions of the House of Lords will remain as they are, but, if the House becomes a wholly or largely elected body, its role and functions will not remain as they are. If Members of this House were to be elected by a process of universal suffrage, they would not for long accept the continued primacy of the House of Commons. If they were elected for geographical constituencies, even if those were not coterminous with existing parliamentary constituencies, Members of Parliament—MPs—would be likely to find themselves in competition in their constituencies with Lords of Parliament—LPs, or whatever they are to be called.

There is also the question of costs. The noble Lord, Lord Lipsey, has produced figures showing that a directly elected and salaried House of Lords would cost the taxpayer a great deal more than the present House does. No doubt any reform will cost some extra money but we should, in thinking about reform, have regard not only to fitness for purpose but also to value for money. We need first to achieve and articulate consensus on what we want the reformed House of Lords to be and to do—in other words, on its role and functions—then, having first done that, to achieve consensus on who we should like to carry out that role and those functions—in other words, on its composition.

When I was a private secretary in 10 Downing Street there was, hanging on the wall of the private office above my desk, a piece of paper, mounted and framed, on which Mr Harold Macmillan had written in his own hand:

“Quiet calm deliberation disentangles every knot”.

I remember looking up at that piece of paper during the last weeks of 1973, at the time of the three-day week, and saying to myself: “Well, Uncle Harold, I hope you’re right”. At that time there was lots of deliberation, but not all of it was either quiet or calm. I believe that House of Lords reform is a knot that should and can be disentangled by quiet calm deliberation.

My proposal today—indeed, my plea to the Government—is that they should defer bringing forward a Bill for the reform of the composition of the House of Lords until there has been a serious attempt to arrive by quiet and calm deliberation at proposals on what should be the purposes, role and functions of the House of Lords and then at proposals on its composition, designed to make it fit for those purposes. This task could be entrusted to a body created and designed for the purpose, which should not be a purely parliamentary committee. It should of course include Members of both Houses, from all the main political parties and from the independent Cross-Benchers in the House of Lords, but not be confined to parliamentarians. It should include non-parliamentarians with suitable qualifications and experience, and be chaired by a non-parliamentarian. It could be a royal commission, a constitutional convention—as the alternative report has suggested—or a committee of privy counsellors. Whatever it is, it should be as small as possible: certainly, smaller than the Joint Committee chaired by the noble Lord, Lord Richard. It should be equipped with a strong but small team of expert advisers, including constitutional experts such as Professor Vernon Bogdanor, Professor Robert Hazell and people with relevant experience such as former Clerks of this House.

[Lord Lloyd of Berwick]

I wonder whether the noble Lord would explain how the group he envisages would differ in any way from the royal commission which sat in 2000. I have a list of the people who were in that royal commission; they exactly comply with what he wants.

[Lord Armstrong of Ilminster]

I do not know that it would differ in essentials but, as other noble Lords have pointed out, since the royal commission chaired by the noble Lord, Lord Wakeham, history and life have moved on. There is a new set of circumstances and new considerations to be taken into account.

The expert team would be responsible for producing papers analysing the issues and making recommendations for consideration by the main body. That body should first consider and make recommendations on the role and functions of a reformed House, and its report on those matters would be published and considered by both Houses of Parliament. It could be laid down as a given that the role and functions of a reformed House of Lords should respect and be compliant with the primacy of the House of Commons. Once there was broad consensus on role and functions, the expert advisers could analyse and make recommendations on the composition of the House of Lords. They could be asked to consider whether, and if so how best, to provide for an element of representativeness—possibly, but not necessarily, by direct election—and an element of independence. They would need to make recommendations on the role and functions of a commission or committee on the appointment of Members of the House of Lords and to consider and make recommendations on the terms of service of those Members, the optimum size of the House—and how to keep its numbers within that—and how to maintain an acceptable balance between the various parties.

The conclusions and recommendations of the expert advisers would once again be considered by the main body, and that body’s conclusions and recommendations would be reported to Parliament and the public. This process could be undertaken with urgency. Even so, it would be bound to take some time but, as the Prime Minister has said,

“reforming the House of Lords is not the most important priority”.—[Official Report, Commons, 9/5/12; col. 22.]

However difficult it may be to justify the House of Lords as it is, it is not working too badly. We can afford to do the job of deciding about reform properly and sensibly, and get it right. It is worth taking the time required for thorough analysis and serious discussion. This would, as I believe, provide the foundation for achieving broad consensus on how best to go forward with reform of the House of Lords and thus for bringing forward a Bill which, unlike the present draft Bill or a revised Bill on similar lines, could command a wide measure of support on all sides in Parliament and would not need to disrupt the flow of more urgent parliamentary business, which bears on the pressing problems of the times in which we live.

--- Later in debate ---

[Baroness Symons of Vernham Dean]

No, my Lords, I am not suggesting that; I am suggesting that “commensurate powers” means what it says, particularly when it comes in a sentence that refers to an electoral mandate. The current settlement between the two Houses on the constitutional position and the conventions must change in favour of the House of Lords if it is elected.

We could have consensus not only on the Bill of the noble Lord, Lord Steel, but on the reforms suggested by the noble Baroness, Lady Hayman, in her excellent speech earlier today. Such reforms would fulfil the undertaking given in the gracious Speech to,

“reform the composition of the House of Lords”.

The Government would be doing exactly what is laid out in the gracious Speech. There is consensus in the Joint Committee report that giving an electoral mandate to the Lords means that the elected Lords has powers commensurate with that mandate. That after all lies at the heart of democracy. Elections mandate the elected, and those elected become accountable to their electorates.

There is further consensus that Clause 2 of the Bill is completely unfit for purpose; it has no friends other than the Deputy Prime Minister and the Minister responsible for the Bill. Moreover, there is consensus that if there is a parliamentary decision to elect the Lords, the people should be consulted in a referendum. Even the noble Lord, Lord Tyler, agreed on this point earlier in our exchanges on this issue. I do not know whether the rest of the Liberal Democrats agree with him, but I rather gathered from the remarks of the noble Lord, Lord Rennard, that some of them would take issue with him over that.

The noble Lord, Lord Tyler, and I exchanged views on what we voted on. For the avoidance of doubt, we voted on a proposal which was agreed. It was:

“The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision”—

not the proposal—

“to a referendum”.

There were no “ifs” or “buts”; the Joint Committee agreed, as more and more commentators are agreeing, that a decision to elect the House of Lords should be subject to a referendum of the people of this country.

I think that a further consensus has started to emerge: that there will be no consensus around this totally inadequate Bill unless it is a consensus that it does not work. It falls short at virtually every point, from the Parliament Acts, through Clause 2, to primacy, and from the almost Byzantine arrangements for elections on a proportional representative system—a form of which the people of this country have already decisively rejected—to the non-renewable terms of office. The noble Lord, Lord Ashdown, said that we fell short of even the standards of Egypt in this respect. I discussed non-renewable terms of office recently with some Egyptian visitors to this country. They wanted to be MPs in the Egyptian Parliament. They said something to me that made me think they were talking about non-renewable terms. I said, “Is it non-renewable terms to which you are referring?”. They said, “Oh, no, of course not. We know there is no accountability with non-renewable terms. We would not dream of using them”. They understood that point very clearly.

The Government are obviously in trouble over this Bill. They know that it cannot work but they have all promised each other to give it a jolly good try to get it through. The noble Baroness, Lady Boothroyd, put her finger on it precisely. Ministers are now falling over each other to say what has been pretty obvious to all of us for some time now: this Bill is not a priority. If it fails, as I hope it will, we will be back where we started, waiting for another try perhaps in 2015, 2020 or 2025. I strongly agree with the noble Baroness, Lady Hayman, that we should act on the consensus that we have. As suggested in the alternative report, there is consensus on the Steel Bill, some of the noble Baroness’s own proposals and some of the Goodlad proposals. I believe that we should set up a constitutional convention as laid out in the alternative report to consider whether and how we could eventually elect the House of Lords. That should consider inter alia how the elections would affect the Commons and the devolved Parliament and Assemblies. It should consider the composition of religious representation in your Lordships’ House, the role of government in the Lords and the crucial question of the effect of the possible independence of Scotland. Above all, a convention should consider the powers and functions of the Lords and Commons, and deal with the fact that we would have two elected Chambers comprising what Erskine May describes as “representatives of the people”. There would be two such Chambers but with no written constitution to work out which Chamber would prevail in the event of a dispute—a point made so eloquently by the noble Lord, Lord Kakkar.

The noble Lord, Lord Ashdown, thinks that it will all work itself out, as he claims that it has in the past—a prospect of, “Well, let us see what happens”. That is an irresponsible attitude and one that no sensible Government should proceed on. The noble Lord did not answer the point about a written constitution leading to the possibility of the courts having a direct role in the conduct of Parliament. Perhaps the Minister would like to give that one a shot when he replies to the debate.

I make no apology for emphasising that before we get this Bill—if we do—we need some proper costings, with options properly, openly and transparently done to see what the price of 300 of 450 additional, salaried politicians would be. Or we could try the other way, as described in the alternative report. Constitutional conventions are a sensible way to find answers to complex questions—ones not answered in the Bill or White Paper, or by the Joint Committee. So far, nothing has produced a consensus on what should happen if there is an elected House. I ask the Minister to give this suggestion some serious thought, not simply to shrug his political shoulders and say that it is not something that he is prepared to consider. It will take time and effort but it could produce results, although not quickly. It may produce something far more durable and workable than the current Bill.

The noble and learned Lord, Lord Lloyd of Berwick, said that the alternative report made no mention of the Wakeham commission. It does. It does so twice in warm terms. If the noble and learned Lord reads paragraph 5.8, he will see that the royal commission is referred to as having been chaired by the former Leader of both the House of Commons and the House of Lords, the noble Lord, Lord Wakeham, and as having given the fullest recent consideration to a range of proposals on further reform of the House. It is further referred to at paragraph 5.2. If the noble and learned Lord would like to reread the alternative report, I have one or two spare copies.

[Lord Lloyd of Berwick]

My Lords—

[Baroness Symons of Vernham Dean]

If I may, I shall just finish my point and then of course I shall give way.

Each generation has to look at this again. It has been 12 years. A lot has happened in the past 12 years. This generation of politicians has to look again at the issues to try to find answers for the 21st century.

--- Later in debate ---

[Lord Lloyd of Berwick]

I thank the noble Baroness for giving way. Of course I accept that there were passing references to the Wakeham commission, but the question is: why does the alternative report not accept the conclusions of that royal commission?

[Baroness Symons of Vernham Dean]

My Lords, I hope that I have answered that. I do not think that they are passing references. I think that the noble and learned Lord does scant justice to the fact that both references to the commission are warm. I hope that I have answered his point: why not just accept it? Because every generation of politicians has to reach its own view, consensus and compromise. That is what is necessary now.

A constitutional settlement is needed between the two Houses and between the constituent parts of the United Kingdom. A settlement of two elected Chambers with commensurate powers may well emerge. On the other hand, something very different may emerge. What cannot emerge is this totally inadequate Bill on Lords reform. The Bill is fundamentally flawed, and we should not waste further time discussing it. Rather, we should concentrate on where we can get consensus, and we should do that as soon as possible.