Queen’s Speech

Baroness Symons of Vernham Dean Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Ashdown of Norton-sub-Hamdon]

My Lords, the point the noble Lord actually made, springing from that, was that we would not have a model to work from. Since when have democratic reformers in this country needed a model to work from? We have always had an unwritten constitution. Did it cause Cromwell to stop and say, “Hang on; I had better not go ahead with demanding that powers be transferred from the king because there isn’t a model anywhere else”? He was the model. Others followed him—not he followed others.

For the Great Reform Act 1832, we did not sit down and say, “Oh my goodness, we have no model to follow”. We had an unwritten constitution. We did not know how the powers would fall. We did not call for a constitutional convention to decide those powers before moving forward to reform. We made the democratic reforms and the world followed us. I am absolutely confident that, because we were ahead of the rest in 1832, the Great Reform Act saved us from the revolutions that swamped Europe in blood in 1848. Surely the noble Lord, Lord Rooker, is not one to argue that because we have an unwritten constitution we cannot have democratic reform. That is a ridiculous argument.

I say to those who say that we cannot have reform because we have an unwritten constitution, but at the same time talk about the magic of our unwritten constitution that reforms and resolves all matters, that I do not much believe in the unwritten constitution. To be honest, there is a case for a written constitution in this country. However, those who argue that the unwritten constitution resolves all, and that because it is a living constitution it can evolve and cope with these changes, cannot then say that some part of that constitution has to be written down. The proposition made by those who make that argument seems to be this: there has to be an unwritten constitution for everybody else but a written one for us—it has to be codified and we cannot otherwise move forward. You cannot make both arguments at the same time. Either you have an unwritten constitution, celebrate it and leave things to it, or you have a written constitution. However, noble Lords in this House seem to want the best of both worlds—an unwritten constitution for everybody else but a codified and written constitution for us and our relationships. The noble Lord, Lord Richard, was entirely right when he said that this should be left to the two Houses to work out. It would be better if it were.

[Baroness Symons of Vernham Dean]

My Lords, I am very interested in the last point made by the noble Lord, Lord Ashdown, because he said, in essence, that he would not be unhappy with a written constitution. To be fair to my noble friend Lord Rooker, the point I think he was making was that if you have two elected Chambers, both with representatives of the people in them, you must have a written constitution in order to resolve the relationship between the two Houses. That was his point—not that you cannot do it, but that there is an ineluctable logic to the written constitution. In that case, the proceedings of the Houses become justiciable. That is why the conventions between the two Houses are not codified. It is why they are written down as explanations, not as a code. If the noble Lord does not understand that, it is he who misunderstands our constitutional arrangements.

[Lord Ashdown of Norton-sub-Hamdon]

That was rather a long question. Let me address it straightaway. The proposition that the noble Baroness makes is that because our constitution is unwritten we cannot have democratic reform of this place.

[Baroness Symons of Vernham Dean]

No, it is not.

[Lord Ashdown of Norton-sub-Hamdon]

Allow me, my Lords; the noble Baroness’s proposition is that, if you want to have democratic reform of this place, you must first have a written constitution. If we had a Bill before us for a written constitution, I would vote for it. However, we do not; we have a Bill for democratisation of the House of Lords. Perhaps I may make this point to the noble Baroness: if the past great reformers of this country took those risks, going out and leading the world from the basis of an unwritten constitution to change the powers of the monarch of this place and of the Commons, why should it not happen again? What is the basis on which it will not happen again?

I have taken up a good deal of the House’s time—

--- Later in debate ---

[Baroness Symons of Vernham Dean]

My Lords, I am very glad to follow the noble Lord, Lord Elton. I have always regarded him as something of a senior statesman in your Lordships’ House. I agreed with much of what he said about the priority of Europe at the moment. It was a point made by my noble friend Lord Giddens today and the noble Lord, Lord Owen, last Thursday. I hope that there will be the opportunity to have a debate specifically devoted to the subject of Europe and the economic and political movement around Europe at the moment.

I should mention again that I was a member of the Joint Committee on the Draft House of Lords Reform Bill and that I was also a signatory to the alternative report. Not very surprisingly, I intend to concentrate much of what I want to say on the announcement in the gracious Speech about reform in your Lordships’ House.

However, there is another constitutional point on which I hope the Minister will comment when he winds up. That is the announcement that the Government intend to take forward reform of the rules governing succession to the Crown. The briefing notes on the gracious Speech, which I believe are available on the Cabinet Office website, make it clear that this is part of a system to do away with male primogeniture—a system under which a younger son can displace an elder daughter in the line of succession—because the current arrangements are discriminatory. Does not the same discriminatory practice pertain throughout all the succession rights in the British aristocracy except where expressly provided for with some specific titles? Surely it is no more or less discriminatory to usurp the elder daughter of a duke or an earl in favour of her younger brother than it is to usurp the elder daughter of the monarch. I hope that some thought will be given to that when we come to consider the Bill, and I would value the Minister’s comments.

But of course the flagship policy on constitutional reform in the gracious Speech is the reform of your Lordships’ House, and since we last discussed it in this Chamber, we have all heard the gracious Speech. The 15-word reference to the reform of this House sheds little light on what the Government really intend. It says quite simply:

“A Bill will be brought forward to reform the composition of the House of Lords”.

No mention is made either of elections or of functions and powers, despite the clearly emerging consensus that functions and powers are unlikely to remain unchanged if the Lords are elected. However, whatever the gracious Speech says or does not say, the briefing notes from the Cabinet Office, available on the website, make it clear that the Bill is intended to ensure that most Members of the House will be elected. The Cabinet Office paper notes that there has been, in its view, a “broad consensus” on this since 2001, which I imagine is news to a great many of us, particularly to my noble friend Lord Grocott, given what he said earlier this afternoon. The briefing notes go on to claim that the Joint Committee which considered the Bill under the chairmanship of my noble friend Lord Richard agreed that there should be, “a mainly elected chamber”. That statement is misleading and I have today written to the Cabinet Secretary asking him why the Cabinet Office briefing notes are so inaccurate.

This is a fundamental issue. Your Lordships will see on page 150 of the Joint Committee report that the original draft said that the Joint Committee agreed that,

“the reformed second chamber … should be elected”.

That is a bold statement. It was a Conservative MP, Mr Gavin Barwell, who moved an amendment so that the sentence was deleted and a new sentence inserted to read that,

“the reformed second chamber of the legislature should have an electoral mandate”.

That amendment was passed. A mandate, as the Oxford English Dictionary tells us, is the,

“authority to carry out a policy or course of action, regarded as given by the electorate to a candidate or party that is victorious in an election”.

So the decision of the Joint Committee was to give an elected House of Lords the authority of a mandate. The sentence was then further amended—without a vote as everyone agreed—with the addition of the crucial words,

“provided it has commensurate powers”.

When I asked the Leader of the House why he had chosen to leave out this vital phrase in his opening speech last Thursday, in his usual jocular way he asked me what the Joint Committee had actually meant by “commensurate powers”. I hope that this is not going to be another consensus moment for the Leader of the House. The word “commensurate” is in common usage, and again the good old Oxford English Dictionary comes to our aid by pointing out that what it actually means is, “in proportion to”, or,

“corresponding in size or degree”,

or,

“of the same size … extent”.

In this case, it means the same size and extent as the electoral mandate.

There is no ambiguity about what paragraph 23 of the report says, and I hope that, given how much time was devoted to this issue, what the report actually says will be quoted rather than what many people who do the quoting would rather it had said. It says, for the avoidance of doubt:

“The Committee, on a majority, agrees that the reformed second chamber of legislature should have an electoral mandate provided it has commensurate powers”.

That is what the Cabinet Office briefing should have said.

The Leader of the House says that the Government want to proceed on the basis of consensus. We all know that the noble Lord, Lord Forsyth, who is not in his place at the moment but who has been here a great deal, has pointed out on numerous occasions that there is no consensus on election. However, there is consensus on a great number of issues regarding the reform of this House, as the noble Lord, Lord Jenkin of Roding, pointed out in his very good speech earlier today. There is consensus that we can begin reform now, taking the Bill of the noble Lord, Lord Steel, together with some of the reforms suggested by the noble Baroness, Lady Hayman.

[Lord Campbell-Savours]

The noble Baroness has repeatedly referred to the use of “commensurate powers”. In an intervention in our debate on 30 April—I am just trying to establish exactly where she stands—she defined “commensurate powers” as,

“doing away with Commons primacy”.—[Official Report, 30/4/12; col. 1963.]

If that is the view carried by the committee in the amendment that my noble friend referred to, is she then suggesting that it was the view of the majority of the committee that they should do away with Commons primacy?

[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.

[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.