Queen’s Speech

Baroness Hayman Excerpts

Monday 14th May 2012 Lords Chamber

[Baroness Hayman]

My Lords, I was going to start my speech by saying that it was a pleasure to follow the noble Lord, Lord Ashdown. It is certainly a challenge and I shall try not to take as long. I am glad to have this opportunity not least because his support for an elected second Chamber is, as he demonstrated today, both passionate and principled and I respect that. However, I hope that he will accept and acknowledge that it is possible to have as great a respect for democracy and for a parliamentary system without agreeing with him on the virtues of an elected House. It is possible for true democrats, honourable Members and noble Lords to disagree honourably on this point.

The other reason I was pleased to follow the noble Lord, Lord Ashdown, was that I would like to echo some of the points that have been made about second Chambers across the world. I fear that in his rhetoric he employs a rather broad-brush approach and fails to do justice, as the noble Lord, Lord Norton of Louth, has pointed out, to the complexities of bicameral legislatures. Over the past five years—something of a misspent late middle age—I spent a great deal of time visiting, discussing and studying second Chambers, and speaking to their members and debating with their speakers. The position is nothing like as simple as the noble Lord, Lord Ashdown, suggests. He achieves the figure of only seven appointed Chambers by simply ignoring some countries that he decides to classify as microstates and therefore not worthy of consideration.

More importantly, if you look at the figures—whether it is 72 or 76—for me the crucial issue is that directly elected second Chambers are actually in the minority when you consider the large number of indirectly appointed second Chambers and put those together with the ones that are appointed. I say that not simply to parry debating points with the noble Lord, but to suggest that parliaments are rather like Tolstoy’s families at the beginning of Anna Karenina: lower Houses are basically all the same—representation by population—and second Chambers are all different—unhappy in their own way, as unicameralists such as the noble Lord, Lord Thomas of Gresford, would say. They tend to be the product of political history or of political geography which, of course, explains federal countries and second Chambers in federal states. Their existence, their powers, their composition are subject to recurrent debate. They are abolished, as in New Zealand, created, as in Rwanda, and revived, as is currently happening in Kenya. The holy grail of achieving a second Chamber that is viewed as legitimate by the public, that adds value to the legislative process, that plays its part in holding the executive to account and in the better governance of our country, while not being either a fractious rival or a pale replica of a lower House, is not easy to find, as the coalition is now discovering.

I return to those issues of principle that are the noble Lord’s driving force for an elected second Chamber. One is that no one should participate in the legislature, whatever the limitations of its power, without an electoral mandate. As I understand it, that is what the noble Lord delineated. The principle stands alongside the mantra that we heard in the other place that law makers should be accountable to law obeyers. However, if the two principles of election and accountability are sacrosanct, I cannot comprehend how the current proposals can in any way be judged acceptable. If no one who is not elected should be a legislator, how could one justify appointing 20% of the Members of a reformed House? I agree with noble Lords who said that such hybridity would very quickly become unsustainable. If accountability is king, how can single, non-renewable 15-year terms with no constituency responsibilities be justified?

Clause 2—legislation by assertion—maintains that the current balance between the two Houses can be maintained. How can it be when it is the product of the lack of electoral legitimacy of this House? How can one argue that it will not be fundamentally altered by giving Members of your Lordships’ House an electoral mandate? This is not an abstract issue; I speak from personal experience. I proposed an amendment on control orders in your Lordships’ House in 2005. It was supported—I see the noble and learned Lord, Lord Lloyd of Berwick, in his place. It was supported again when it had been overturned in the Commons and came back in the first round of ping-pong. However, after that round I stepped back—as did the rest of the House—because the House of Lords knows its place. It knows that its job is to revise and advise. It understands the balance of power between the two Houses. The idea that, if I had had any sort of electoral mandate at the time I would have stood back from what I considered to be an issue of principle, is ludicrous. Therefore, one cannot simply assert that the powers and the relationship would remain the same.

There were many speeches in recent debates about fundamental flaws in the proposals. I will not go through all the arguments but will simply say that the current proposals in no way provide a gain in democratic legitimacy and accountability that outweighs what would be lost in complementarity and differentiation between the Chambers and the single focus of democratic accountability that exists in the form of the House of Commons. Those who argue that the only route to legitimacy in a liberal democracy in the 21st century is election have not thought about some very powerful positions in our country for which some jurisdictions have elections. In some countries, judges are elected. I do not think that we would consider that an extension of democracy in this country. I do not believe that voting for police commissioners will be an extension of democracy. We must be prepared to take a more nuanced view on how legitimacy is gained in a liberal democracy in the 21st century. For me, involvement in the legislative process, as long as the powers exercised by such non-elected parliamentarians are commensurate—in the words of the Joint Committee—with their non-elected status, is acceptable.

I share the affection for this House that the noble Baroness, Lady Miller of Hendon, expressed in her speech; it is deep-rooted in me.

Earlier in this debate, the noble Lord, Lord Tyler, spoke of the need,

“to avoid yet more incestuous self-congratulatory introspection”.—[Official Report, 10/5/12; col. 42.]

I fear that he may have thought that my intervention on him the other day was exactly that and I will attempt not to do that today. Let me say quite explicitly that there is much that is wrong with the House as currently constituted. There is much that needs to change—as much has changed in the past. When I was taking my 11-plus, every Member of this House was an hereditary Peer, a judge or a Bishop. There was not a single woman in the place. In my adult lifetime, we have seen tremendous change, particularly in 1958 and 1999, and I believe that we need to see change on that scale now. The lack of that sort of incremental progress is a serious failing. For me, simply to defeat the current proposals would not look like success.

Several noble Lords have referred to the evidence that I gave to the Joint Committee. In that evidence, I put forward what I considered to be the problems the House faces—size, no retirement plan and the lack of terms. I put forward an agenda for change—a substantial reduction in the size of the House, agreement on the proportion of party-political to independent Members, term limits for future appointees, a statutory Appointments Commission operating under clear criteria which the public understood and which could be changed through Parliament, an end to the position that those who had committed serious criminal offences or breaches of the House’s Code of Conduct cannot be barred from the House, an end to the link between membership of the House and the honours system and an end to by-elections for hereditary Peers.

I understand that not all those proposals will be agreed by everybody, but I suspect that within them, there is a core that would amount to substantial and quite radical change around which consensus—consensus in the conventional rather than the Strathclydian definition—could be achieved. It would require leadership and compromise, but I do not believe that it would be any victory to defeat these proposals by long-drawn-out and bitter hand-to-hand parliamentary combat.

Even more of a travesty would be to confront what I suspect, as the noble Lord, Lord Grocott, suggested, would be the very small proportion of the British public who turned out to vote, with a referendum that gave a choice between a proposal as ill thought out and flawed as the one currently before us and the status quo of the House of Lords as it is today, with no progress or incremental change having been made since 1999.

Several speakers in this debate have referred to their anxieties, which I share, about the lack of respect for and trust in Parliament and politicians. We will not create that respect and trust quickly or easily and we will certainly not do it by putting two such unappetising alternatives to the public at a referendum. The key to slowly rebuilding that trust is to find reforms, as the right reverend Prelate the Bishop of Leicester has suggested, that allow us to do our job better. We can then demonstrate that to the public and show that we are representing them in the special and important way that this House does in Parliament.

I agree, if not with Nick, then with the Prime Minister. He is quite right: Parliament can do more than one thing at a time. We could both take measures to improve this House’s effectiveness and legitimacy through a Bill on which we have created widespread consensus and at the same time undertake the broader debate about the implications and desirability of an elected House in the context not only of Parliament as a whole but of the wider constitutional developments, which many have referred to, that are taking place in the United Kingdom at the moment. Or to put it in the more succinct words of the noble Baroness, Lady Shephard, we could get on and “do the work”.

At the end of a speech made in this House in 2002 about very similar proposals, the late Lord Jenkins of Hillhead argued that there was an intellectual case for either a small, regionally based equivalent of the United States Senate or for a reformed, appointed House. However, he concluded by saying:

“But I am sure that we should face the logic of one course or the other and not fish around in the ill-thought-out and muddled middle”.—[Official Report, 10/1/02; col. 702.]

A decade on, I believe that we have not only the opportunity but the obligation to do better. It will require leadership, compromise and commitment, and I hope that the Government and Parliament will rise to that challenge.

--- Later in debate ---

[Lord Wallace of Saltaire]

In which event, the primacy of the House of Commons is in very safe hands.

[Baroness Hayman]

The reason that the House of Commons is in very safe hands is that there is no elective mandate in this House. Election, to coin a phrase from a popular song, changes everything. Fundamentally, if legitimacy changes, so does the balance of power. The Minister has to accept that, for some people, that is fine—a rethinking of the powers between the two Houses, a concordat of how you resolve differences or a written constitution are prices worth paying for electoral legitimacy—but to suggest that we can continue as we are with just election is simply not realistic.

[Lord Wallace of Saltaire]

My Lords, I do not want to keep the House too long or too late this evening, but the relationship between the two Houses is not a zero-sum game. A stronger legislature which is able to hold the Executive more clearly to account, between the two Houses and within both Houses, will provide more effective pre-legislative and post-legislative scrutiny. It will be a positive gain. If we do not wish to make the radical move to a written constitution, I am confident, and the Government are confident, that the conventions between the Houses will evolve. We are not an American Congress; we have not been created and an elected House would not be created to stand in opposition to the Commons. We would continue to be the second Chamber.