Draft House of Lords Reform Bill

Lord Whitty Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Whitty]

My Lords, I have not come with a text this evening. I think we owe the noble Lord, Lord Richard, and his crew—if I can put it that way—a great debt of gratitude for clarifying the issues. However, I am rather afraid that the debate tonight has shown that, as a whole, this House is no further forward. Veterans of this debate will know that I am a pretty unreconstructed supporter of the democratisation of this House and of the process of election to it, and I am so for the reasons expounded by my noble friend Lady Morgan just now, although she alarmed me somewhat by reminding me that I am nearly the average age of the House now; earlier by the noble Lord, Lord Ashdown, and the noble Baroness, Lady Scott; and by colleagues on these Benches.

At the beginning of this debate, the noble Lord, Lord Hennessy, who is still in his place, said that not a flicker of consensus was revealed by the Joint Committee report and the alternative report. The debate tonight shows that there is not even an empty matchbox of consensus here. We are where we have been for many years: gridlocked on the options. The majority opinion in this House is obviously against democratisation. Some of it is now being justified on the grounds that we should legislate for function before form, and to some extent I agree. Perhaps slightly strangely, I find myself agreeing with the noble Lord, Lord Norton of Louth, to some extent, although he starts from a different position and comes to a different conclusion.

Almost all the arguments seem to be about the relationship between this House and another place, and the composition of this place, when the real constitutional issue ought to be about the relations between the legislature and the Executive. This gets confused partly because in the media people often talk about the House of Commons when they actually mean the Government. Within the clear roles of legislature and Executive, there needs to be some differentiation between the roles of these two Chambers.

As far as the relationship with the Executive is concerned, I am a strong believer in a strong state—unlike some members of the coalition—but a strong state requires an ability to deliver effective, high-quality legislation, good administration and general good governance. To do that, I am afraid that it needs a stronger legislature to challenge it than we have had in recent years. I have been here under four Prime Ministers and the same applies in all cases.

If we are moving to election for this House, there is a very clear and differentiated role for this House compared with the House of Commons. An elected House of Lords that is engaged in heavy scrutiny and that has a revising role and the general ability to hold the Government to account—through, I hope, more powerful Select Committees—performs a different role from the House of Commons, which provides the Government and decides on the broad structure of policy. Of course, an elected House of Lords would not have power over financial matters. Here I disagree with the noble Lord, Lord Ashdown; I do not think it would have a veto over a declaration of war, for example. However, it is possible to define what powers this elected House would have, and its role and function, and to differentiate those from the role of the House of Commons.

I think we all agree that, frankly, the Government have their head in the sand if they deny that election of this House will not change the nature of the relationship between this House and another place. It is also a gross exaggeration to say that the primacy of the House of Commons is not compatible with an elected House of Lords. This is not an unbridgeable conflict. A clear and new definition of relations between the Houses, once both are elected, is vital. I accept that it is difficult, but it is hardly impossible. After all, over two-thirds of all other bicameral jurisdictions find a way of doing it, although not all in the same way and not without periodic difficulties, and have done so for many decades and, in some cases, centuries.

I think we are also all agreed that the attempt in Clause 2 to redefine this relationship is completely insufficient and rather pathetic. Relations at present are defined in statute—to a limited extent, in relation to the Parliament Act—in conventions, in understandings, in procedural mysteries via the usual channels, and in various other ways that are pretty much unknown to the general public. Codifying the Cunningham conventions and cross-referring to them in statute is not a solution; nor is it a concordat, which is itself only a codified convention.

We have to define the different roles and functions here in primary legislation. At present the Parliament Acts statutorily define and limit the Lords’ powers, and they need to be explicitly reiterated in this Act or modified to meet the new situation—I agree with my noble and learned friend Lord Morris of Aberavon on that. Even the financial privilege is not reflected in those Acts and by statute. In view of recent events, that would require further definition as well. Removing the inhibition of the House of Lords because of its non-elected status would indeed make us a more assertive Chamber, but only in the areas that the statute would then define as us being responsible for.

The argument against putting all that in the statute book is limited. It seems that if you did so it would be justiciable—in other words, judges could challenge the operation under that part—but that is also true if you cross-refer to conventions and concordats in primary legislation. In any case, we are not in the United States. We would not have a Supreme Court that struck out actions by the Government or that struck out legislation on the grounds that they are unjustifiable. I know that even the present statutory base is challengeable in court; I, after all, had a major role in the Hunting Act, and the use of the Parliament Act in that respect was challenged by several people. Luckily, the judges saw sense in that respect, although others may disagree. Nevertheless, in general the judges would not override the clear will of the House of Commons and the House of Lords. We would also need to set out a clearer pattern of dispute resolution. Again, institutionalising ping-pong is not impossible.

I have other concerns about what is in the Bill and the report. I have concerns about the electoral system and the length and non-renewable nature of the proposed term, as well as concerns about the means of culling—I apologise, I mean the running down of—the current membership of this House. I have opinions about the survival of the Lords spiritual, which I will not go into because they have all disappeared tonight.

My central point, and the central point about how we proceed from here, must be that, as far as the public are concerned, a lot of these esoteric arguments about the role of the House of Lords and the House of Commons are not relevant. From change, the public want to see improvement in government. If they do not, or they are not convinced that the change that we have proposed will bring about improvement in government, we will not get a vote for it in a referendum. Inevitably, whether we want it or not, we will go for a referendum. Whatever we do with this Bill when it emerges after the Queen’s Speech, we must ensure that the final outcome is better governance and that we are not quite so esoteric and inward-looking within this Palace of Westminster.