Trade Union Bill

Lord Pannick Excerpts

Tuesday 3rd May 2016 Lords Chamber

I believe strongly that we should not need to wait 20 years for the review to be implemented, and I hope the Minister will assure me that that is not the mindset of those who will be asked to undertake it. I hope they will undertake it constructively and positively, with a genuine desire to advance the agenda of electronic balloting.

[Lord Pannick (CB)]

My Lords, I agree with what the noble Lord, Lord Kerslake, has just said. The Minister has repeated today that the Government are not opposed to electronic balloting in principle; they are concerned about the technicalities. I therefore hope that the Minister can tell the House that, if the independent review produces a positive response on the technicalities and the detail, the Government will be eager to implement the findings.

[Lord Cormack (Con)]

My Lords, I thank the Minister, as I do Mr Nick Boles for the very constructive part he played in another place. I just ask my noble friend to say something about the timescale.

--- Later in debate ---

[Lord Cormack]

My Lords, I think we have to reflect, briefly, upon what has happened. We had a Motion, carried by a large majority, that the Select Committee should be established. I did not support it. I explained during the debate that I felt that the Bill was seriously impaired and that there was much unfairness in it, but I questioned whether a committee could, in the very short timescale that my noble friend Lady Neville-Rolfe has referred to today, produce a really good, definitive report. Thanks to the hard work of colleagues from all parts of the House and expert chairmanship, to which they all testified, by the noble Lord, Lord Burns, the deadline was met and a report was produced. It was signed up to by all the members of the committee—although, in the final, conclusive paragraph, there was, it was explained, a divergence of opinion.

The noble Lord, Lord Burns, decided to encapsulate that recommendation in the amendment which he moved on Report in your Lordships’ House. He moved the amendment with great skill and was supported by Members from other political parties as well as Members on the Cross Benches. My noble friend Lord Balfe and I voted enthusiastically for him. The names of a number of leading members of the Conservative Party will not be found in the Division list—I went through it carefully—because they felt that they could not oppose the amendment of the noble Lord, Lord Burns. It was carried by a large majority. The noble Lord, Lord Burns, explained that when he came to the negotiations at the beginning of last week, what was on offer not only did not meet his amendment but did not even meet the amendment to which my Conservative friends had signed up—in paragraph B, I think it was—so further negotiations were held.

What happened was very simply this. The parliamentary Session is coming to an end. The State Opening of Parliament has already been designated for 18 May—a fortnight tomorrow. So what was to happen? My noble friend Lady Neville-Rolfe and Mr Boles in another place decided that half a loaf was indeed better than no bread: that it would be far better to have a Bill that had widespread support—albeit that some of it is reluctant support. I myself do not think that this is the greatest Bill that the Government have placed before this House. Nevertheless, it is now, as far as one-nation Conservatives are concerned, a fairer, more decent and more equitable Bill, and one that has within it some recognition of the underlying dichotomy of party funding, because the Bill in its original state—and I used the words “unfairness” and “choice” many times in contributing to earlier debates—whether by accident or design, was penalising one of the great parties of state and not the others.

I believe that it is important that the second recommendation in the manifesto, which has already been alluded to two or three times in this debate, should be followed up. I hope that there will be something in the Queen’s Speech about it, because I do not like the way in which party politics is funded in this country—and I know that that view is widely shared in all parts of your Lordships’ House and in all parts of the country. But what we now have is a Bill that can go on to the statute book and which honours a number of the important pledges in last year’s manifesto. I accept that a manifesto Bill is different from another sort of Bill. Therefore, we have something in which the Government can take a degree of quiet satisfaction—and those of us who were concerned about the underlying unfairness of the original Bill can also feel that it has been improved.

I was only too glad to put my name—alongside that of my noble friend Lord Balfe—to the amendment of the noble Lord, Lord Burns. The noble Lord, Lord Tyler, also signed it. Your Lordships’ House gave that a very large majority, as I said. So the Government’s choice was a very simple one: should they go along with the will of your Lordships’ House as expressed in the Division Lobbies or should they invite further defeat, which could have jeopardised every particular of the Bill?

I think that the Government have made a wise, moderate and sensible decision. I pay unreserved tribute to the unfailing courtesy and diligence of my noble friend Lady Neville-Rolfe and to Mr Boles in another place. I hope that we can now move on. Last week, when we had the Third Reading, I said I hoped that the spirit of euphoria was not premature. I hope that it will not prove to have been premature and that we can now accept what is before us and get something on the statute book that is much more acceptable to those who have genuine concerns.

[Lord Pannick]

My Lords, we in this House often complain that the other place has ignored our views. It is unusual, and perhaps regrettable, that some noble Lords complained today that the other place listened attentively to the views of the committee of the noble Lord, Lord Burns, and to the vote in this House, which was supported all around the House, as the noble Lord, Lord Cormack, said, including on the government Benches. I do not know whether there was a deal, but whether or not there was, an act of political wisdom has occurred and we should welcome it.

[Lord Forsyth of Drumlean]

My Lords, I thank my noble friend not just for tabling this Motion, which I very much support, but for the way in which she has patiently conducted proceedings on the Bill and dealt with sometimes unhelpful contributions from people such as myself.

My concerns about the Bill were in relation to check-off and the proposals to change to an opting-in arrangement, which were coupled with an announcement by the Chancellor to cut Short money. It seemed to me that the Government were abusing their power in order to damage the funding of the Official Opposition. That is why I was opposed to these particular provisions of the Bill. I had a difficulty because there was a manifesto commitment in respect of the opt-in, opt-out proposals. However, as the noble Lord, Lord Tyler, and others have pointed out, that manifesto commitment was to look at the question of opting in and opting out in the context of overall party funding. I think it is wrong for a Government to use their power to dis their opponents or in a way which leaves open to question whether or not they are acting in the interests of the country as a whole or in the interests of a party. For years and years, I have made speeches attacking the Labour Party and suggesting that its dependence on trade union funds meant that policy could potentially be up for sale. Having listened patiently to the very persuasive arguments put forward by my noble friend to indicate why a change of policy should not be agreed, it was with some dismay that I heard suddenly—I believe I am not the only person who heard suddenly; I think some Front Bench people heard suddenly—that the Government’s position had changed completely.

Trade Union Bill

Lord Pannick Excerpts

Monday 25th April 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, I, too, congratulate the Government on bringing forward this amendment. However, will the Minister accept that under the new provision it would be open to the employer not to enforce the relevant payments for whatever reason if they decide not to do so in the future in any particular circumstance?

[Lord King of Bridgwater (Con)]

My Lords, I add my voice to those congratulating both Ministers on the way in which they have handled the Bill, perhaps especially the last part, which could have been quite a contentious area. It has been approached in a sensible way, and invitations might flow to my noble friend Lord Balfe and others. I certainly second his last point that it would be in trade unions’ interest—as I have always believed—to be prepared and proud to invite members of all parties to their conferences. It would be in the interest of the country for all parties to have a progressive and constructive relationship with the trade union movement and British industry.

Trade Union Bill

Lord Pannick Excerpts

Wednesday 16th March 2016 Lords Chamber

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

My Lords, in supporting this amendment I will repeat, very briefly, a point that I made in Committee. I might not have done this if the Minister had dealt with the matter in her reply. But, tantalisingly, just as she said:

“Perhaps this is the point at which I should respond to the noble and learned Lord, Lord Brown”,—[Official Report, 8/2/16; col. 2026.]

the noble Lord, Lord Mendelsohn, interrupted—perhaps I mean intervened—to raise a different question and the Minister never came back to it.

At all events, the point was simply this: while I support the turnout requirements in these clauses, it should be noted that certain bizarre consequences could, at least theoretically, follow from these provisions. Assuming a bargaining unit of 1,000 union members—the illustration used in the Explanatory Notes to the Bill—if 499 members voted in favour of industrial action and none against, a strike would be unlawful. However, if 499 voted in favour and one against, because at least 50% of those eligible would have voted, a strike would be permissible—so, too, of course if 499 voted in favour and 498 against.

Doubtless, such possible anomalies as these are inevitable in any scheme which combines, as this one does, a minimum turnout requirement with the principle of a simple majority decision. But my point is that surely this underlines the imperative need to ensure that the best and most effective way is found of achieving a maximum turnout of those eligible to vote. This amendment will surely facilitate the search for that better way, and plainly nothing can be lost by it. It prejudges nothing: if electronic balloting were to prove ineffective or insecure in addition to postal voting, it simply would not be adopted. But we should at least let such an independent review be held.

[Lord Pannick (CB)]

My Lords, I support this amendment for all the reasons given by the noble Lord, Lord Kerslake, and for one further reason, which I mentioned in Committee: promoting electronic voting will make it much less likely that any legal challenge to the new thresholds would succeed if such a challenge were brought in Strasbourg. It is very simple: the less balanced the provisions in the Bill, the greater the danger that the Government will not secure their objectives, and I support their objectives in relation to the ballot thresholds. The Minister mentioned a few moments ago that the Bill is concerned to strike a fair balance. So is this amendment.

[Lord Callanan (Con)]

My Lords, I will raise one or two drawbacks to the course of action outlined by the noble Lord, Lord Kerslake, and others. I have no objection whatever to the cause of e-balloting in principle. But, as I understand it, if the Government are satisfied that it represents a secure, stable and hacking-free way forward, the power to make regulations on e-balloting already exists. For the same reason that we do not allow electronic balloting in general and other elections, the same concerns should exist for trade union ballots as well. It involves considerable challenges, and we all know about the problems on the internet of hacking, stealing ballots, intimidation et cetera. The noble Lord, Lord Kerslake, has attempted to answer some of those problems, but they exist and we should bear them in mind.

There have been allegations of ballot rigging in trade union elections before. There were allegations of rigging in elections to the national executive of the Transport and General Workers’ Union a few years ago. For the public to have faith in the process, it is important that the integrity of the process is recognised and that people believe that, when a ballot takes place, it is fair to all concerned. For that reason, I oppose the amendment.

Bank of England and Financial Services Bill [HL]

Lord Pannick Excerpts

Tuesday 15th December 2015 Lords Chamber

[Lord Brennan (Lab)]

My Lords, I support the amendment for three reasons, which I shall shortly state. First, there is a genuine and important public interest in the existing statutory system. Two years ago, this House enacted this system. It did so as the result of a government amendment, which was not opposed but agreed unanimously. The Minister speaking to the amendment, the noble Lord, Lord Newby, said that,

“the Government believe that it is in the long-term interest not only of bank customers but of the City of London that the highest possible standards are followed”.

He said that the system he was introducing,

“ensures that individuals are held to account when things go wrong”.—[Official Report, 15/10/13; col. 405.]

That is the genuine public interest that the present system protects.

Secondly, the reversal of the burden of proof is a well-recognised feature of our legal framework. It is subject to safeguards and appropriate standards, but it exists and has done for a long time. For example, the Health and Safety at Work Act covers employers large and small—a point was made about the size of credit unions—across the whole country. They have a duty to protect their workers. In fulfilling that duty they are required to show that they did all that was reasonably practicable to satisfy that duty. It is a statute that can send people, after a court hearing, to prison. That is for a crime punishable by jail; this is not that—this deals with misconduct and disciplinary proceedings. The people involved should know the system they are trying to justify and explain. The regulator is entitled to be able to run a sensible regime which does not subject his organisation and his staff to undue pressure. That is what the public want. I would ask the House this: are we seriously suggesting that that which we demand of employers for our citizens is too much to ask of bankers; namely, to protect their customers?

I turn to the third reason. Why make this change? Why have the Government, a different Government but with the same Treasury officials, committed a complete volte-face within two years and without any plausible justification, as the noble Lord, Lord Sharkey, pointed out? I suggest that, there being no plausible reason, the first thoughts of the House were the right ones and are what the public expect. We should do our best, on this kind of embarrassing occasion for the Treasury and the Government, to protect them from this intellectual disarray and to make sure that the House itself does not fall into the legislative embarrassment of telling the nation one year, “This is how we will protect you”, and two years later saying exactly the opposite. For these three reasons, this amendment should be carried.

[Lord Pannick (CB)]

My Lords, I think we all agree that to impose a reverse burden of proof on a person to establish their innocence of a disciplinary offence requires a strong justification. It is required not only by elementary fairness; it is also required by law, as the noble and learned Lord, Lord Brown, indicated. This is a criminal matter for Article 6 purposes because a disciplinary offence is regarded, by our courts and by Strasbourg, as a criminal matter if sanctions are imposed. So the question is this: what is the justification?

I have listened carefully to the debate to try to understand the justification being put forward, and it appears to amount to this. It will be difficult to prove a failure to comply with the new duty to take reasonable steps. That is the concern, but I do not understand it. The regulator has considerable investigative powers which enable it to obtain all the relevant evidence on whether a senior manager has complied with the new duty to take reasonable steps. If there is no document trail, which is the concern mentioned by the noble Lord, Lord Sharkey, in his contribution, the regulator will rely precisely on that in establishing a failure to take reasonable steps. The banker, even if he has the assistance of the noble Lord, Lord Grabiner, acting for him, will be found guilty of the disciplinary offence of failing to take reasonable steps, and rightly so. That is the appropriate way to change a culture—a matter to which the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Kramer, rightly referred. You change a culture by ensuring that the regulator brings a proper disciplinary charge; you do not change a culture by introducing an unfair regime.

The noble Lord, Lord Sharkey, said that the battle between the FCA and the bankers is unequal. This is a problem across the legal field in relation to prosecution authorities, but the answer is to ensure that the FCA has adequate resources; the answer is not to introduce an unfair regime. I do not think that the case for a reverse burden has come close to being made out. The strong justification has simply not been established.

Succession to Peerages Bill [HL]

Lord Pannick Excerpts

Friday 11th September 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, I congratulate the noble Lord, Lord Trefgarne, on bringing this Bill before the House and on doing so in such economical terms.

No one could suggest that a Bill on this subject is premature. The Sex Disqualification (Removal) Act 1919 removed sex discrimination in relation to the exercise of public functions, or the holding of any civil or judicial office or post, or from entering or carrying on any civil profession or vocation. Yet here we are, nearly 100 years later, debating a Bill that will remove some of the inequality—although, as the noble Lord said, only some of it—in relation to succession to peerages. This is a quite remarkable situation.

Women were given the same voting rights as men in 1925. The Equal Pay Act 1970 and the Sex Discrimination Act 1975 addressed sex discrimination in employment, education and in the provision of goods, facilities and services. Even the Church of England, not known for being in the advance of social progress, has now provided for women bishops, and Parliament has provided recently that succession to the Crown no longer depends at all on a person’s gender—see Section 1 of the Succession to the Crown Act 2013—and rightly so. The only area of public life that I am aware of that retains institutional discrimination against women is the hereditary peerage.

I can think of only one argument in favour of such prejudice: that the hereditary peerage is so absurd and anachronistic an institution—why on earth should a person’s status depend on that of his or her father—that we cannot expect to apply basic principles of fairness in that context. But that will not do. The peerage is not a private club. Indeed, 92 hereditary Peers, of whom the noble Lord, Lord Trefgarne, is a distinguished example, sit in this House helping to make the laws of the land. The peerage cannot claim to be exempt from the basic principles of fairness that govern the rest of our society.

In this context, as in others, discrimination against women is simply objectionable. It is entirely without justification and we have tolerated it in relation to the peerage for far too long. I therefore welcome the Bill because it puts this issue on the parliamentary agenda.

But the Bill, as drafted, is patently inadequate. It will need substantial amendment in Committee. Clause 2(3) would allow a woman to succeed to a title if she has no male siblings. If she has younger male siblings, they will have precedence over her. The noble Lord, Lord Trefgarne, said in a quite remarkable statement that his Bill aims to bring succession to the peerage into the 21st century—really? He said that his proposal is modest, but it will perpetuate sex discrimination and for that reason it needs to be amended.

If the oldest child of the monarch now succeeds to the Throne, whether they are male or female, how can it possibly be defensible to retain a position that the oldest male child of a Peer will succeed to the title? If this Bill were to be enacted, then in the magnificent creation of the noble Lord, Lord Fellowes, “Downton Abbey”, as I understand it the Earl of Grantham would now be succeeded by his eldest daughter, but only because he had no sons. However, a younger son would retain precedence over an older daughter. That is quite indefensible.

In his play, “A Woman of No Importance”, Oscar Wilde wrote:

“You should study the Peerage, Gerald … it is the best thing in fiction the English have ever done”.

It is time that we brought the peerage into the real world. The peerage has hitherto treated women as being of no importance. This Bill, which is a modest improvement, would treat women as being of very limited importance. The peerage needs to do better than that. I congratulate the noble Lord, Lord Trefgarne, on introducing the Bill and I look forward to noble Lords improving it in Committee.

Palestine: Recognition

Lord Pannick Excerpts

Thursday 29th January 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, there is of course another side to this debate. The United Kingdom is in good company in not recognising a state of Palestine. Australia, Canada, New Zealand, the United States, Germany, the Netherlands, Italy, Denmark and many other European nations have not yet recognised a state of Palestine—and for good reason. Sympathetic though we all are to the sufferings of the unfortunate Palestinian people, recognising a state of Palestine at this time would hinder rather than promote a peace settlement. It would hinder a peace settlement because what is needed on both sides is to focus attention on the painful compromises that have to be made in bilateral negotiations. Yes; painful compromises are required from the Israeli side, and I know how difficult they will find it—I have an Israeli wife.

On the Palestinian side, which of course we are debating today, instead of the distraction of grandstanding international gestures, Palestinians need unequivocally to accept that the State of Israel is here to stay. They must give up the notion of a right to live in Haifa or Be’er Sheva. They need to throw away the schoolbooks that demonise Jews and deny that the Holocaust occurred, and unequivocally to condemn the attacks from Gaza and the suicide bombers, who are responsible for the blighting of the lives of other Palestinians, which we have heard about today.

Perhaps most of all, they need to recognise that Israel, for all its faults—and which society does not have faults?—has much to teach Palestinians, if only they would listen, about how a society born out of tragedy can promote free speech, democracy, the rule of law, scientific and literary achievements and, yes, prosperity for its people, with standards achieved in very few other places in the world, and of course none in the Middle East, all in the 66 years since its creation—a quite astonishing achievement in the most difficult of circumstances, surrounded by people who wish to destroy you.

Last week, a Palestinian man from the West Bank stabbed 10 people in an unprovoked attack on a bus in Tel Aviv. The New York Times reported that the assailant told police he was hoping to reach paradise—I assume he had not intended Tel Aviv to be his final destination. The London Times reported the response from Hamas. It was, it said, a “heroic and daring operation”. I will tell the House what would truly be heroic: for the Palestinian leadership to abandon gesture politics in the United Nations and take the hard and painful decisions that are necessary to secure peace in the only place it can be achieved—at the negotiating table.

Electoral Registration and Administration Bill

Lord Pannick Excerpts

Wednesday 23rd January 2013 Lords Chamber

Moved by

[Lord Pannick]

11: After Clause 18, insert the following new Clause—
“Voting procedure
(1) Schedule 1 to the Representation of the People Act 1983 (parliamentary elections rules) is amended as follows.
(2) In paragraph 37 (voting procedure) after sub-paragraph (6) insert—
“(7) A voter who is in the polling station or in a queue outside the polling station for the purpose of voting at the time specified for the close of poll shall be entitled to apply for a ballot paper under sub-paragraph (1) above and a ballot paper shall be delivered and the voter entitled to vote in accordance with this paragraph.””

[Lord Pannick]

My Lords, this amendment stands in my name and in the names of three other members of your Lordships’ Constitution Committee—the noble Baroness, Lady Jay of Paddington, chairman of the committee, and the noble Lords, Lord Lexden and Lord Lang of Monkton. As I explained in Committee, the amendment seeks to address a problem which occurred at the 2010 general election and which may recur at the 2015 general election unless we address it now. The mischief is that voters who arrive at the polling station before 10 pm but are not issued with a ballot paper before 10 pm are unable to vote.

Your Lordships’ Constitution Committee and the Electoral Commission have considered this problem. They have both arrived at the clear conclusion that if an eligible voter arrives at the polling station and presents himself before it closes at 10 pm, he should not be denied a vote because of circumstances beyond his control which mean that he does not receive a ballot paper before 10 pm. This amendment would address that problem. The Electoral Commission has communicated to your Lordships that:

“We strongly support this amendment”.

It has advised that the wording of the amendment is appropriate and correct.

Last week, the noble Baroness, Lady Jay, and I had a very useful meeting with the Minister in the other place, Chloe Smith, and I am very grateful to her and to members of the Bill team for the care, attention and time that they have given to this issue both last week and during the course of this week. I understand that the Government now accept the principle of the amendment and that the Minister will tell the House that he proposes to table an amendment for Third Reading later today.

In the light of that, I will say nothing more at this stage, save that I beg to move.

Amendment 12 (to Amendment 11)

Moved by

--- Later in debate ---

Amendment 12 (to Amendment 11) withdrawn.

[Lord Pannick]

I am very grateful indeed to the Minister and to the Minister in another place, Chloe Smith. I am also very grateful to the Bill team for the considerable efforts that they have shown in addressing the substance of this amendment. I entirely accept that the amendment as put forward at this Report stage could be improved; I entirely accept that it is necessary to deal with Northern Ireland; I entirely accept that it is necessary to say expressly in the amendment that close of poll is still at 10 pm, with the consequence that that has for the publication of exit polls thereafter; and I entirely accept that it is appropriate for Ministers to have a power on commencement to introduce consequential amendments. Again, I am very grateful for the care and attention that the Government have given this matter. There is widespread agreement around the House that the principle of the amendment is correct. On that basis, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Queen’s Speech

Lord Pannick Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Pannick]

My Lords, this Government have a poor record on constitutional reform. The observations of your Lordships’ Constitution Committee, of which I am a member, on the Fixed-term Parliaments Bill may perhaps be applied more generally. The Government’s legislative proposals have owed more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand.

The Fixed-term Parliaments Act was no doubt a political necessity for this coalition but I know that I am not the only noble Lord who thinks that its constitutional merits are far less obvious. The Parliamentary Voting System and Constituencies Act introduced a rigid formula for constituency boundaries. Your Lordships will recall that this was the high price paid by the Liberal Democrats—one which their candidates will be paying at the next general election—for a referendum on a system of electoral reform, AV, which even the Liberal Democrats believed to be unsatisfactory.

I hope that in this Session of Parliament, as we debate the constitutional Bills to be brought forward, the Government might be more willing to listen to constructive criticism from this House on their proposals. The noble Lord, Lord Bichard, mentioned the problems that we have had in the past two years.

This fascinating debate has focused, predictably and understandably, on reform of this House, but there are at least five constitutional measures in the gracious Speech. The first is the very welcome measure to reform the rules governing succession to the Crown so that the oldest child of the late monarch will succeed, not the oldest son, and to remove the unjustifiable bar on the monarch marrying a member of the Catholic faith.

The second constitutional measure is the Electoral Registration and Administration Bill, which the noble Lord, Lord Rennard, spoke about earlier. I am disappointed that the Bill published does not seek to implement the recommendation made by your Lordships’ Constitution Committee in its report dated 25 January 2012 that anyone on the electoral roll who is in the queue to vote at the polling station at 10 pm should be allowed to vote. The present system, as seen at the previous general election, prevents people voting even though they turn up at the polling station before 10 pm and if there is a failure, beyond their control, by the returning officer to ensure that an adequate number of staff is on duty to meet the demand. This is a matter of real constitutional importance. We are all concerned about the low turnout in elections. It is surely desirable to accommodate those who make the effort to turn out to vote and who arrive at the polling station before it closes at 10 pm.

The third constitutional measure is contained in Schedule 12 to the Crime and Courts Bill that your Lordships’ House will soon be considering. I welcome the provisions contained therein to promote judicial diversity. The measures are very similar to those recommended by your Lordships’ Constitution Committee in its report published in March.

The fourth constitutional measure is that the gracious Speech mentions a Bill to allow courts to hold closed proceedings in cases that have national security implications. Your Lordships’ House will want to scrutinise most carefully any such provision to ensure that limitations on open justice are approved only to the extent strictly necessary.

The fifth constitutional measure is, of course, the Bill to reform or, as some noble Lords have suggested in this debate, destroy this House. Your Lordships have heard some exceptional speeches on both sides of the argument. I am, I think, in a very small minority of your Lordships on this issue. I can see the strength of some of the arguments on both sides. That may help to explain why I earn my living as an advocate, not as a judge.

It is very clear that there is a very strong argument that this House as presently composed performs well its limited role, but vital function, of scrutinising legislative proposals. There is a very strong case that an elected House would not be prepared to defer to the House of Commons and so would threaten the primacy of the other place, but surely we also have to recognise that there is a very strong argument that membership of a legislative Chamber, even one with limited powers, most of whose Members answer to a political Whip, cannot continue to depend on patronage. It should be based directly or indirectly on the will of the electorate or be amended in some other fundamental manner.

There are strong arguments on both sides. Noble Lords should not be surprised that there are strong arguments on both sides of the case. It is precisely because of the strength of the competing arguments and the impossibility of reconciling them that this issue has festered and has not been resolved for over 100 years.

It is plain from the speeches in this debate, the Joint Committee reports and the debate on those reports that we had a couple of weeks ago that one of the central questions for the Government, which they have not yet answered, is: what measures will be included in the Bill, when it is brought forward, to preserve the primacy of the other place? As I understand it, that objective is shared by the proponents and opponents of the Bill. Indeed, in his speech on 1 May, the noble Lord, Lord Hunt of Kings Heath, said from the opposition Front Bench that this,

“is perhaps the most crucial point of all”.—[Official Report, 1/5/12; col. 2102.]

I respectfully agree with him. That question has always been at the heart of the debate about the future of this place.

Noble Lords will know that in his stimulating book about the Parliament Acts, Mr Balfour’s Poodle, written in 1954, Roy Jenkins—Lord Jenkins of Hillhead—said that reform of the composition of the House of Lords had been so long delayed because what he called “the left” in politics was,

“interested above all in the supremacy of the Commons”,

and so,

“sees the relationship between the two Houses, rather than the composition of the second, as the dominant issue”.

In my evidence to the Joint Committee, I addressed one vital aspect of the primacy of the Commons. I suggested that, as a matter of law, the Parliament Acts would not continue to apply if a House of Lords reform Bill were to be enacted so that the upper House had an 80% or 100% elected membership. The simple reason for that is that the Parliament Acts were expressly concerned with the interim period prior to reform of this place. The noble and learned Lord, Lord Goldsmith, gave evidence to like effect, and I am pleased that the noble and learned Lord, Lord Mackay of Clashfern, said in this debate last Thursday that he took the same view of this matter.

I suggested in my evidence to the Joint Committee that any Bill brought forward by the Government should contain express provisions that addressed whether and to what extent the Parliament Acts would continue to apply. I did so because the inevitable and wholly undesirable alternative is that this fundamental matter would be left open to doubt and would eventually be resolved by the courts, rather than by Parliament. The Joint Committee concluded in paragraph 368:

“If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision”,

in the Bill. The committee agreed with the evidence that was given by me and the noble and learned Lord, Lord Goldsmith. The Minister and the Leader of the House have been very reluctant to express the Government’s view on this vital question. In responding to this debate, will the Minister now please answer this point and tell the House what the Government’s position on this matter is?

Finally, on the more general question of reform of this House, I ask the enthusiastic supporters of the reform Bill to recognise that many noble Lords, of whom I am one, who are concerned about the implications of the Bill, particularly for the relationship between the two Houses, are as committed to democratic principles as they are. There is no monopoly of concern about democratic principles on one side of this argument. The noble Baroness, Lady Hayman, made that point most eloquently today.

A consensus exists on the way forward on these difficult issues where there is a battle between right and right. The consensus would involve as a vital and much-needed next step in House of Lords reform measures that would include a reduction in the size of this House, an end to by-elections for hereditary Peers, the exclusion of noble Lords whose ignoble conduct makes it wholly inappropriate for them to remain Members of a legislative Chamber and, I would suggest, the removal of the Prime Minister’s powers of patronage and their replacement by a statutory appointments commission. I very much hope that the Government will recognise that such measures of reform would be a substantial, worthy and realisable achievement.

I look forward, as I am sure do other noble Lords, to contributing to the vital scrutiny by this House of the constitutional measures to which the gracious Speech refers.

Gaza

Lord Pannick Excerpts

Wednesday 8th February 2012 Lords Chamber

[Lord Pannick]

My Lords, people outside this House may be puzzled at the fact that, as the latest example of appalling state violence in the Arab world continues in Syria, noble Lords are yet again debating criticisms of Israel. We do this with astonishing regularity; we do it even though Israel is one of the few countries in the world, and certainly the only country in the Middle East, which protects freedom of expression, freedom of religion, the rule of law and democracy for all its citizens.

These criticisms are made, as we have heard today from many noble Lords, simply without any recognition that Israel is a country whose enemies are seeking to bomb its civilians into oblivion. Such a country is entitled to defend itself by seeking to prevent, as Israel does, the transport of weapons.

A more relevant Question, if I may respectfully say so, than that posed by the noble Lord, Lord Warner, would be to ask the Minister whether he will make representations not to the Government of Israel but to the leaders of the unfortunate Palestinian people living in Gaza. Will the Minister say to those leaders that it is time for them to abandon the futile attempts to secure the destruction of Israel? Will he say to those leaders that it is time for them to focus on improving the education, the health and the prosperity of their people? Will he tell them that it is not Israel which is the obstacle to improving the living conditions of the people of Gaza?