House of Lords Reform (No. 2) Bill

Edward Leigh Excerpts

Friday 18th October 2013 Commons Chamber

[Dan Byles]

Absolutely; in the absence of any method of leaving the other House, the leave of absence system does provide a compromise. However, it is far from a perfect compromise, because one could very well ask: how many peers do we currently have? The 43 peers currently on a permanent leave of absence have a very ambiguous status. Some of them could, in theory, continue to seek a rolling leave of absence each time for 10 or 15 years and then suddenly decide to come back and start voting again.

[Sir Edward Leigh (Gainsborough) (Con)]

Does my hon. Friend consider that the Liberal party has taken leave of absence during this debate?

[Dan Byles]

My hon. Friend tempts me down a route that I shall avoid.

What is the status of those peers who have been granted leave of absence? Is it possible to replace them? Arguably not, because we could replace 43 peers who, it appears, have now chosen to leave the Lords, but all 43 could come back in five years’ time. So it is a compromise that has gone some way towards addressing the problem, but it is not an elegant or permanent solution.

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[Dan Byles]

I am not sure whether to thank my hon. Friend for that last bit, but I am not a parliamentary draftsman and that wording was put into the Bill on the advice of the Clerks. His point is interesting, and I am not qualified to comment on it, but that wording was drafted by the system, so to speak. If we feel that it sets a dangerous precedent that might require it to be put in all future Bills, I would be more than happy to discuss that point in Committee and address it if necessary.

[Sir Edward Leigh]

I am struggling to know what difference the Bill will make, frankly. Why should anybody retire from the House of Lords when they are going to get no pension, and when they have to attend only once a Session? Would anybody ever retire from this House if there were no pension and they had to turn up only once a Session? Nobody would.

[Dan Byles]

I could turn that around and say that if my hon. Friend thinks the Bill will make no difference, he has no reason to oppose it. The Lords have asked for these provisions, and I understand that at least five or six noble Lords desperately want to leave. We have already heard that many of them—43 at one point—have requested leaves of absence. There are peers who wish to have the right to leave, and even if only one is released from what has become a life sentence rather than a great privilege, surely we should allow that. It seems a bit bizarre to keep them against their will and send them a written summons every Session whether they want it or not.

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[Greg Clark]

My hon. Friend makes an important point. The case for these changes has always been well understood. I guess one of the reflections on recent years is whether the addition of various other measures prevented these measures from being adopted. That is a debate that has passed and my hon. Friend the Member for North Warwickshire is right in seeking to concentrate the House on the particular matters in hand. If the House of Lords is willing to embrace sensible reforms, which it seems to be, and it seems quite anxious to proceed with them, we should provide the opportunity for it to do that.

The Bill allows Members of the House of Lords who are peers to resign, removes peers who do not attend the House of Lords during a Session, and removes peers and Lords Spiritual who are convicted of a serious offence and sentenced to imprisonment for more than a year. These changes would bring the membership rules in the House of Lords closer to those in this House, and in so doing would reassure members of the public that those convicted of serious wrongdoing in particular would be removed from the legislature.

I note that the Select Committee yesterday produced a helpful and timely report which supports the introduction of these three changes. It made some further recommendations, to which the Government will respond in due course in the normal way.

The Government have no desire to rerun through this Bill the debate on wider House of Lords reform. I know that some will argue that these changes are not extensive enough and that the opportunity should be taken to have a wider debate, but I was struck by the speech from my hon. Friend the Member for North Warwickshire, in which he said that that was not his intention and that he wants to keep the Bill very narrow. I know that for some people any change requires careful scrutiny and the limited nature of the Bill will afford it the possibility to have that. The Bill offers a set of proposals on which there may well be the basis of a consensus.

[Sir Edward Leigh]

We cannot let the Minister off the hook. He is speaking very early in the debate, which surprises me, and he appears to want to avoid any wider debate. We need to know from the Government something about their plans. What are their present attitudes to further reform of the House of Lords? Just to say that this is a very modest Bill and we should support it, giving the House no intimation of the Government’s wider plans, is not good enough.

[Mr Speaker]

Order. Let me say that the Minister has spoken early because he was keen to do so, and I thought there was nothing disorderly or improper about that in any way. Just in case the hon. Member for Gainsborough (Sir Edward Leigh) has any trepidation on this point, I can assure him that there will be very full opportunity for other right hon. and hon. Members who wish to speak to catch the eye of the Chair.

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[Mr Nuttall]

My hon. Friend makes an interesting point. It is entirely conceivable that there will be peers who wish to leave the other place for reasons other than retirement. They might wish to pursue another avenue.

It is often said that the other place is full of retired politicians. The last figures that I saw showed that only about a quarter of the Members of the other place had previously been Members of this House. On that basis, it would be a little unfair to describe the other place as being full of retired politicians.

[Sir Edward Leigh]

I have something of a pub quiz question. Can my hon. Friend name a single former Liberal Democrat MP who is not in the other place?

[Mr Nuttall]

I give way to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg).

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[Mr Nuttall]

No, not today. Whether one is on the Floor of the House in the other place or in the Gallery, does merely attending and watching count as attendance, or would one be expected to vote? Many of the Cross Benchers, because of the nature of their appointment to the other place, often do not wish to vote on certain issues, so we need to be careful with that provision.

Clause 2 amounts to the compulsory exclusion of a peer from the other place, and in many ways it is therefore much more controversial than clause 1. Clause 1 has its problems, but we can deal with it. Clause 2 is more controversial, because someone would risk being excluded from the other place against their will. They might not be happy about being excluded and we should be careful in our consideration of the provision. It has been suggested that we should go even further and put in a minimum attendance level and link it to the number of votes a peer takes part in. For example, as a minimum, a peer should take part in at least 10% of votes to maintain their membership of the other place.

[Sir Edward Leigh]

That is quite dangerous. I can think of at least one former Prime Minister who would be disqualified from attendance of this place.

[Mr Nuttall]

I agree with my hon. Friend that it would be a dangerous precedent to adopt. We heard from the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett), who suggested that voting should be used as a method of determining whether peers are non-attenders. In a written submission to the Political and Constitutional Reform Committee, he stated that peers who have not voted in more than 10% of Divisions for three Sessions out of the last five should be removed from having “a formal role”:

“They would of course remain Peers and could be allowed access to the restaurants and bars (but not offices, research and other working facilities). This would be commercially prudent.”

That may be prudent from a commercial point of view, but it would be the worst of all worlds. We would have Members of the other place effectively treating it is a social club: not taking part in proceedings, just having a drink in the bar. If anything were to bring the other place into disrepute, it would be such a mechanism.

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[Sir Edward Leigh (Gainsborough) (Con)]

I also commend my hon. Friend the Member for North Warwickshire (Dan Byles) for promoting the Bill. I hope he did not mind my intervening on him and suggesting that it would make very little difference. His reply was interesting; he said, “It’s going to make so little difference, it’s not worth opposing,” which is an interesting constitutional innovation.

I think that my hon. Friend is going about this the right way, though. We are all familiar with the dictum that when it is not necessary to change, it is necessary not to change. I think we can add to that: when it is necessary to change, it is necessary to do so very slowly. That is a gradualist, Conservative, Tory—high Tory, if I may say so—notion of constitutional reform, and Edmund Burke would have been proud of him today. Edmund Burke, incidentally, was known as the “Dinner Bell” during his time in the Commons because his speeches were so long and so boring, but that certainly did not apply to the crisp way in which my hon. Friend introduced his Bill and replied to all our many points.

What I like about the Bill is that it establishes the notion that it is possible to reform the House of Lords gradually and to remove its greatest faults without suggesting that we need an elected House of Lords. I am personally convinced that this is the way forward. It was a very good point made earlier that it is extraordinary that those most hellbent on creating an elected House of Lords, based on proportional representation to ensure that no one party can dominate it, are the same people who, precisely because they want a radical reform, insist on killing off every single modest reform ever attempted. That is an extraordinary constitutional notion.

With this extraordinarily modest Bill, we are just trying to take one or two steps, and if it becomes law, there is no reason why we could not take two or three further steps next year. Of course, I do not think the Bill goes far enough. It does not get to the kernel of the problem, but that is not a good reason for denying my hon. Friend’s Bill progress today.

I want to make a few points about how we could solve some of the House of Lords’ major problems. If the Bill were to become law, what would it achieve? It would allow people to retire. My hon. Friend made a fair point when he asked why anyone should not be allowed to retire. No one would suggest that the provision on retirement is a wrong notion in itself. We all know, however, that it is already possible to take leave of absence. My hon. Friend the Member for Christchurch (Mr Chope) has intervened to make that entirely justifiable point. There are no incentives to retire, because there is no pension and because people can take leave of absence. Even under this Bill, Members of the House of Lords would have to turn up only once a Session to retain their membership. It is therefore hard to imagine why anyone would choose to retire. However, according to my hon. Friend the Member for North Warwickshire, there are four or five people in the other place who wish to do so. Fair enough—why should anyone stop them? The fact that only a few people want to do something is not a reason for opposing their right to do it. So I have no problem with that provision.

I do not think anyone has a problem with putting the House of Lords pretty much on a par with the House of Commons in terms of criminal convictions, although I think that too much is made of this point. Just as there are probably very few people who would choose to retire from the House of Lords, because it is unnecessary to do so, there are also very few people who have been convicted of relatively serious criminal offences.

[Dan Byles]

Three.

[Sir Edward Leigh]

Indeed. So that provision would hardly make any difference.

The main problem with the House of Lords is that there are too many people there. It is not that the Benches are overcrowded or that people have to turn up early to speak. The problem with having too many people in the House of Lords is that it gives too much power and patronage to the Government. The Bill will make absolutely no difference to that. That is not a reason to oppose it, however.

Our debating these important constitutional points today gives us an opportunity to say that the Government are in a difficult position on this matter. They introduced a massive Bill last year that would have fundamentally changed the relationship between the two Houses of Parliament. It would effectively have created an elected House of Lords and put people in there for a 15-year term. Such a dramatic, radical step would have offended many Conservative sensibilities, and the Government failed to achieve consensus on the Bill. They also tell us constantly that they are worried about the other place because there are too many people there, yet they go on stuffing it—I use the word advisedly—with more and more political placements. It has reached the stage where even someone like me could hope to go to the House of Lords.

[Jacob Rees-Mogg]

If that happy day were ever to come, would my hon. Friend be one of the 92 full-blooded hereditary peers?

[Sir Edward Leigh]

I am perhaps not quite such a reactionary as my hon. Friend. I fear that his idea of reforming the House of Lords would be to get rid of all the life peerages and to return to the hereditary principle.

I do not go along with the Groucho Marx rule that it would not be worth being a member of any institution that would have me as a member. We all know, however, that in the past the House of Lords was reserved for people who had delivered extraordinary service to the nation, for example by serving in the Cabinet. My hon. Friend the Member for Bury North (Mr Nuttall) said that only a quarter of the Members of the other place were former politicians, but when I go there these days, it is like looking at the House of Commons of 10 years ago. The same people are now there, and I believe that that gives far too much power and patronage to the Government.

For what it is worth, I would reform the House of Lords by going a lot further than the Bill and getting rid of the fundamental iniquity whereby the Government can go on appointing more and more people to it. I would set an upper limit on the number of its Members. It would be reasonable to set a maximum size of 650, the same as the House of Commons. That would concentrate minds and ensure that only the most distinguished people, such as former Deputy Speakers of the House of Commons, could end up there. We should aim for that level of distinction, Madam Deputy Speaker. My serious point is that setting an upper limit would concentrate minds. It would also prevent Governments from threatening to create extra peers if they could not get their way in relation to a particular Bill.

I cannot believe that there cannot be a mechanism for retirement. I am not talking about a voluntary mechanism. After all, if cardinals have to retire at the age of 80, why should not Members of the House of Lords do so?

[Jacob Rees-Mogg]

My hon. Friend knows that cardinals do not retire at the age of 80, and that they are merely excluded from the conclave that votes for a new papacy.

[Sir Edward Leigh]

I did know that. I share with my hon. Friend a certain interest in those matters. It would be perfectly possible to allow Members of the other place who were over 80 to attend and go on using the facilities, but not to vote. That would put them on a par with the cardinals. I believe that setting a sensible retirement age and placing a limit on the number of peers would solve many of the problems.

The importance of this very small Bill in terms of constitutional change is that, if by some miracle it gets through its Second Reading by 2.30—I hope that it does, and there is no reason why it should not—and if it proceeds through the House of Lords in the ordinary way, we will have established the principle that it is possible to make these small, incremental changes.

We have been talking about these matters for a very long time. We started with the Parliament Act 1911, after which came the Bryce commission, which was set up by Lloyd George following the interregnum of the first world war. The commission failed to agree on any proposals. It is interesting to note that most people then favoured a House of Lords with 246 Members, chosen by MPs, from different geographical regions. I have said that there is something wrong with the size of the House of Lords, but there is also something wrong with the geographical spread of its membership.

About 22% of Members of the House of Lords come from London, and 18% come from elsewhere in the south-east. Only 2.94% come from my region, the east midlands, and 2.2% come from the north-east. That geographical concentration on London is a problem, and the House of Lords has become the home of the metropolitan liberal elite. I am sure that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) would agree that it is a sad fact that there are probably now more social conservatives in the House of Commons than in the House of Lords. Without wishing to get into the whole subject of gay marriage, we saw that, when that legislation was passed. The membership of the House of Lords is not spread widely enough, geographically. If it had more Members from the midlands and the north of England, we might get a more representative debate.

I have mentioned the initial reforms that attempted to achieve such a geographical spread, and the Bryce commission, which proposed those ideas in 1922. At that time, people were still talking about limiting membership of the House of Lords to hereditary peers, albeit with some kind of election by the House of Commons. All along, however, and even in those early days, and there was a determination not to upset parliamentary conventions, as does this Bill, which I like, so there was no power to amend or reject money Bills and the Parliament Act would not apply. The gradualist notion that my hon. Friend the Member for North Warwickshire is talking about is important because it means that the fundamental conventions, which primarily ensure the supremacy of the elected House of Commons, are not affected. All those who take part in these debates must constantly repeat the point that no Bill should so radically alter the House of Lords or make it democratically justifiable in some shape or form that the supremacy of this House of Commons, which has been supreme now for over 100 years, would in any way be questioned.

The Marquess of Salisbury proposed a scheme based on the Bryce idea and that received a Second Reading in 1934, but again no progress was made. An inter-party conference on Lords reforms in the late 1940s agreed on nine principles, and I do not think any of them would be affected by this Bill, and none of them would fall foul of the notion of gradualism. They included the principle that no party should have overall control of the reformed House, that life peerages would be created, that women would be allowed to be Members and that allowances would be introduced. They at least had the right idea, therefore, which was that they should reform gradually.

The Life Peerages Act 1958 brought in life peerages, while the Peerage Act 1963 allowed all Scottish hereditary peers, previously subject to election as representative peers, as well as peeresses, to sit in the Lords in their own right, and we all know about the innovation of disclaiming a hereditary peerage, à la Tony Benn.

The Parliament (No. 2) Bill 1968 would have introduced various changes so that primary legislation was subject to shorter delays and so that the Commons had the power to override a Lords veto of statutory instruments. Harold Wilson dropped the Bill in order to allow time for more pressing Government business.

We are all familiar with what happened in 1999, so we do not need to rehearse it. That reform produced roughly the House of Lords we have today. What is interesting is the sheer number of reports that have followed it: the Wakeham commission of 2000, the White Paper, “Completing the Reform”, of 2001; the first and second reports of the Joint Committee on House of Lords Reform of 2002; the Government consultation paper, “Constitutional Reform: next steps for the House of Lords” of 2003; the Labour White Paper, “The House of Lords: reform” of February 2007; and its Green Paper, “The Governance of Britain” of July 2007.

These involved a wide variety of plans for mostly, or completely, elected Chambers. The point is that no consensus was ever found, and it is my contention that no consensus will ever be found, so let’s get over it. Perhaps we should send buses around London bearing billboards saying, “The House of Lords will not be elected: get over it,” because that is the reality. No consensus will ever be found in the House of Commons to create any kind of elected House of Lords, and that is why the approach we are trying to follow today is right and important.

The addition of any element of a reformed Chamber that includes directly elected Lords threatens the whole raft of conventions that have been carefully built up over 100 years, and which determine the relationship between the Commons and the Lords. These conventions are important and bear repeating: the Salisbury convention regarding Bills implementing manifesto commitments; the convention that the Lords do not usually object to secondary legislation; the convention that the Government should be able to get their business done in reasonable time; the financial privilege of the House of Commons; and the convention on the exchange of amendments between the Houses. These conventions are not unimportant. They are central to our constitution and I believe they have to be preserved because they conserve the supremacy of the elected House of Commons.

I am not in favour of these conventions being codified, because the lack of codification gives them a flexibility whereby they can adapt and change slowly over time. That is what we are doing with this Bill: we are slowly changing things over time. This adaptability and the ability to bend is a strength of the British parliamentary system and of our common law: it bends rather than breaks.

[Mr Chope]

My hon. Friend is making an excellent point about convention. Does he accept that one of the problems with the Government bringing forward large numbers of new peers based on the vote at the previous general election is that that undermines the convention of give and take with the House of Lords, and that it would be much better if the Government just forgot about what had happened at the last general election and looked at what was best for the House of Lords?

[Sir Edward Leigh]

Yes, I think one of the key elements of traditional Conservative thinking is that we do not necessarily think that in order to be representative and to feel justified we have to have some direct relationship with what happens in a general election, particularly one based on proportional representation.

I therefore think that the Government should get all the extraneous and radical thoughts out of their mind. I know my right hon. Friend the Minister is a great thinker on these matters and he would much rather have extended his speech to include some of his thoughts on these wider constitutional conventions and ideas. I suspect he felt rather constrained—but that, of course, is in the nature of being a Minister.

Although the House of Lords is fundamentally irrational in many ways, it fulfils its central purposes. That is the point my hon. Friend the Member for North Warwickshire was making. When we talk about House of Lords reforms, we focus far too much on structures. We should be focusing instead on this question: does it work? Does it do its job as a revising Chamber? The answer, surely, in terms of both quality of debate and its general ethos is that it does. That point was made by my hon. Friend the Member for North East Somerset. It does not matter if somebody speaks in the House of Lords only once every year—or, I have to say to my hon. Friend the Member for Suffolk Coastal (Dr Coffey), if they only speak once over 10 years—if they speak with sufficient knowledge from personal experience. That is what they are there to do. We are here in the House of Commons not to speak as experts; we are generalists. We are here to represent public opinion as we see it. Of course our own prejudices occasionally come into play, but we do attempt to reflect public opinion. The House of Lords is not there for that purpose. It is a Chamber of experts, and it does its job in those terms in an excellent fashion.

People should not criticise my hon. Friend the Member for North Warwickshire by saying, “He’s had the opportunity of a whole day for his private Member’s Bill and he could have done something far more radical.” I am sure he could intervene on me to give me a dozen ideas of how he would wish to improve the House of Lords further. Perhaps, like me, he thinks that there should be some sort of retirement age and limitation on numbers, but he knows that if he takes one step too many—if he takes four or five steps, rather than one or two—those who are determined to kill off anything but the most modest of reforms would ensure that this Bill never made any more progress. So he has conducted himself wisely on constitutional reform.

[Dr Julian Lewis (New Forest East) (Con)]

Before my hon. Friend leaves the question of how well the House of Lords does its job, will he cast his mind back to 1984, when he had been in this House for a year and sought to move a sensible amendment to bring in postal ballots for trade union elections? That amendment could get nowhere because it was heavily whipped against, and it was defeated. But in the other place, where people listened to reason, that amendment went through, and so when the legislation came back here, the Government had to listen and take some parts of it on board, which they did, with very beneficial effects over the years that followed.

[Sir Edward Leigh]

I agree with that point, and I think the House of Lords performs that function excellently. Those who believe that the House of Lords can have legitimacy only if it is elected forget what the result of an elected House of Lords would be: it would filled with elected politicians. We are called “politicians” because we are elected and too many of us believe that we can feel justification in our life only if we become Ministers. That is why on dozens of occasions, including the one to which my hon. Friend the Member for New Forest East (Dr Lewis) alluded, reason has come to see light in the House of Lords, whereas in this place it is almost impossible to defeat the power of the whipping system, because most politicians are naturally ambitious. So let us not focus on the structures or on creating an elected House of Lords; let us focus on the small and necessary steps that this Bill can take, and which a Bill next year might take one step further forward.

As I was saying, the major strength of the British parliamentary system not just in the past century, but over 200 years, is that it bends rather than breaks. It does move very slowly, and people often criticise us for the slowness of our constitutional change, but its very slowness is its major strength. If we were to enact legislation to codify a convention—if my hon. Friend the Member for North Warwickshire were to say that, as we have excellent conventions regulating the relationship between the two Houses, we should codify them—we would, in essence, kill it. We do not know how any of the proposals for House of Lords reform will upset the conventions, which time, tradition and compromise have erected. Time, tradition and compromise are the essential agreements of any successful constitutional change. That is a conservative principle—a Burkean principle—and it lies behind what my hon. Friend is doing, and it is on those terms that I wish the Bill well in its passage.

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[Dr Coffey]

I understand what my hon. Friend says, and I am not suggesting that I expect everyone who has the privilege of being a Member of the Lords to be there every day, but they should be there to help by using their general expertise, which is often what they were appointed for. I disagree with the concept that just because someone served in a particular post, they should automatically become a Member of the Lords. That tradition has recently been broken, because the Metropolitan Police Commissioner has always become a peer until recently. That is welcome, because we should not assume that one aspect of noble service automatically leads to another. That has also been the case with Cabinet Ministers, not all of whom have been raised to the peerage.

[Sir Edward Leigh]

My hon. Friend is making a profoundly utilitarian point, with which I disagree. I think it was rather beautiful that there was a convention that former Prime Ministers used to get earldoms. Why not? I think it is rather lovely that we may have in our legislature Earl Lloyd-George or another great name from the past. What is wrong with that? What harm does it do?

[Dr Coffey]

rose—

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[Jacob Rees-Mogg]

But the Bill does not say that. If it is a matter for the Standing Orders of the House, that is a completely different kettle of fish.

The Bill is clear that peers must attend the House unless they have leave of absence, and it has to be assumed that leave of absence must be applied for and is not arbitrary, but there might be circumstances in which peers cannot apply for leave of absence. It is possible to envisage circumstances in which they might not wish to apply for leave of absence but, for sensible political motives, do not want to attend the House. For example, if a Government obtained a majority in this House on a very small minority of votes in a general election, which is not impossible, and then used the Parliament Act aggressively to overrule the House of Lords, a peer or group of peers might say that democracy had been abused and that they would not attend until after another general election. Would they then be excluded for making what might be a perfectly valid political point?

In this House we have the Sinn Fein Members, as my hon. Friend the Member for Worthing West (Sir Peter Bottomley) mentioned earlier. It is hard to see them accepting peerages in the first place, but let us imagine that as a result of the peace process a member of Sinn Fein accepted a peerage. If they then decided that the peace process were not going the way they wanted and that they had gone too far and had to withdraw from the House, would we then take the constitutional step of expelling them, or would we say that it would be better for them to remain? The difficulty with that, and the reason I am not in favour of the clause, goes back to the point my hon. Friend the Member for North Warwickshire made about that being done through the Standing Orders of the House. Attendance or non-attendance is a matter for each House to decide for itself; it should not be determined in legislation.

[Sir Edward Leigh]

Apparently in 1917 the House of Lords expelled two of its Members for being enemies of the King, so presumably there is a procedure whereby the House can expel its Members and it does not require legislation. Is that right?

[Jacob Rees-Mogg]

I will come later to the Titles Deprivation Act 1917, which is how those enemies of the King were expelled—I believe that they were a couple of royal dukes and one other rather more obscure peer who had got caught up with the Austrian army.

The House of Lords does not have the right to expel its Members, unlike the House of Commons, and for good reason. The House of Commons has that power, and always used to use it in relation to those who went to prison, but Members who are expelled can immediately stand for re-election, so the expulsion can be tested by the electorate. That seems to me to be an important safeguard.

The relatively modern Representation of the People Act 1981, which allows for the automatic expulsion of MPs imprisoned for more than a year, was intended to deal with an immediate political problem relating to the hunger strikers. As Members will remember, Bobby Sands was elected while on hunger strike in prison. It was enormously politically awkward for the Government that Members of Parliament were dying on hunger strike, so a law was rushed through to debar automatically people from standing for election to this House if they were in prison. That undermined the right of this House to regulate its own business. It was a bad emergency Act carried out for a political purpose, rather than a high constitutional one.

The House of Lords has never been able to expel Members, although it can suspend them and still retains a vestigial right to imprison them during the course of a Session. The reason is that it was always thought that it would enhance the powers of the Crown too greatly if it, by using a majority that it could cobble together through its patronage in the House, could remove obstreperous Members. The only way to remove peers was by a specific Act of attainder—as Members will recall, such Acts were used against people such as Stafford, who was expelled from the House and his titles struck down—or by bringing an action against a Member for treason. His titles would technically cease just before his execution; they would go with the Act of Parliament or the impeachment for treason. So there is a process to expel peers, but the reason it is very long and difficult is the fear that the prerogative power and the patronage of the Crown would be used to determine the membership of an upper House.

That is the historical context on why peers can only be suspended and not expelled. The Lords does have that power to suspend, in accordance with its Standing Orders. Much preferable to the clause on removal for non-attendance would be entirely to delegate that to the Standing Orders of the House of Lords, whereby a peer who was absent for a certain period would have to make a submission to return, would have to explain the reason for the absence, and would be suspended for the rest of the Parliament if those explanations were not satisfactory to the Lords. That would allow for the flexibility that would be needed in the case of a prisoner of war, somebody who was kidnapped, or somebody who was imprisoned in a foreign country. One can envisage that, say, in the case of a peer who had been involved with the Greenpeace demonstration in Russia, found guilty of piracy and sentenced to 15 years in prison, the House of Lords might want to waive proceedings on the absence ground even if it had already done so on the criminality ground.

[Jacob Rees-Mogg]

I am grateful to my hon. Friend for his intervention. It is conceivable that the peer in prison would be able to apply for leave of absence, but it is also possible that such facilities would not be made available. It would depend on the country in which he was imprisoned. The absence and attendance point is really a matter for the House of Lords under its Standing Orders. The Lords can deal with it perfectly adequately, and there are disadvantages to legislation.

The main disadvantage to legislation on the internal workings of either House is that it brings in the courts, contrary to the Bill of Rights, which is absolutely clear that no court is allowed to second-guess any decision or activity of the proceedings of either House. What is not clear is what counts as a proceeding. That has been discussed in the courts, leading to the Act of Parliament in the middle of the 19th century that allowed parliamentary publications to be covered by the exemption because there was a doubt as to whether privilege extended to what was in Hansard and therefore whether we might be free to say things in this Chamber but nobody was then free to report what we had said. That was clarified by an Act of Parliament to make it clear that even if Hansard is not a proceeding in this House, it is still covered by privilege. The courts are entitled to investigate areas that may not be proceedings or to determine whether something is a proceeding.

The courts intervening in the legislature involves a fundamental constitutional principle. We have always tried to avoid it, because it delegates ultimate control of the political nation to an unelected judiciary away from the democratic arms of the state that are here in Parliament assembled. I accept that the House of Lords is not democratically elected, but it comes with the certificate, in effect, of the House of Commons and is controlled through the Parliament Acts, whereas the judges are not. It also used to be the case that if either Chamber were interfered with by the courts, the ultimate arbiter of the proceedings in either House would be the House of Lords, which was the highest court.

[Sir Edward Leigh]

Those who were arrested and charged with offences during the expenses scandal tried to use this argument and the judges struck it down. Were they right to do so?

[Jacob Rees-Mogg]

My hon. Friend makes a helpful point. That is the nub of the matter: the courts can determine what is a proceeding in Parliament, and although proceedings in Parliament are exempt it is arguable that a certificate issued by the Lord Speaker is not a proceeding in Parliament and that it is, therefore, challengeable in spite of the wording of the Bill, which was questioned earlier, that the certificate

“shall not be questioned in a court of law.”

That has been tried before. I remember the then Home Secretary, now Lord Howard, introducing a Bill that said that a certain something could not be reviewed by the courts, but the courts did so and said that it was unconstitutional. We now have great difficulties in passing laws that deny the European Court of Human Rights and our own domestic courts access to determining things. Even if legislation says something, an appeal to a European court may overrule it. That is why it is important to try to keep as much as possible within the proceedings of the House, because those clearly and definitively cannot be challenged.

As I have said, the absence issue is ancient. Lots of people, when appointed or elected to Parliament, end up not wanting to come, and that has been true for centuries. They would rather stay in their constituencies. As has already been asked, where is everybody today? This House has procedures and mechanisms that we could use—they are ancient and, because of the whipping system, have tended to be allowed to lie waste in recent centuries—if we wanted to enforce attendance, which, in previous times, prior to the whipping system, we were much stricter about.

The House of Lords, of course, has a much weaker whipping system as well as Cross Benchers, who, inevitably, are particularly likely not to turn up on every occasion, because they are not payroll politicians. They are not there to provide a majority for either side or to try to disrupt business as Opposition peers; they are there to contribute what they know. Cross Benchers, modest Lords and Ladies that they are, realise that they do not know everything about everything, unlike Members of this House, who, I am glad to say, do know everything about everything, at least most of the time. Therefore, maintaining flexibility and trying to solve a long-standing historical problem that does not have much of a solution would be best left to their lordships.

[Jacob Rees-Mogg]

Absolutely. My hon. Friend is right. Given the looser whipping system, Cross Benchers do not necessarily know when the votes will take place. I have heard from some Cross Benchers that they feel that the votes are often deliberately scheduled for the point at which most of them will have gone home, because the party Whips prefer to keep the votes mainly among themselves, rather than have too many pesky Cross Benchers interfering, but that is anecdotal and may not represent the situation fairly. Others may want to dispute it. I agree that the position of Cross Benchers is particular and that voting certainly does not mean attendance. It is a different requirement. Indeed, activity in the Lords can mean different things: it can take place in general discussion, in Committee or on the Floor. I think that that is a matter for the Lords to determine for themselves internally, not for legislation, because legislation is ultimately justiciable, and then the courts get involved.

On the retirement or resignation issue, I raised one of my concerns in an intervention on my hon. Friend the Member for North Warwickshire, namely the ping-ponging of people from this House to the House of Lords and back again. I can foresee a circumstance in which a body of entirely professional politicians—people who have never done any work outside the political arena—stand for Parliament in a marginal seat and win one election but lose the next, upon which the party bosses put them in the House of Lords and then the week before the next election they stand down in order to stand for election in their former constituency.

That would be disadvantageous for a number of reasons. First, it would increase the patronage of the party leaders because they would be able to provide a steady stream of income for loyalists. Members of this House who are in marginal seats would be under great pressure always to vote along party lines, because they would see that they were at risk of losing their seat, but that there was a nice billet on the red Benches if they behaved themselves.

[Sir Edward Leigh]

Don’t Members think that already?

[Jacob Rees-Mogg]

I am not entirely sure that they do. Many Members of Parliament think that it is much better to be in this place and that the baubles of the other place—the strawberry leaves that one might get on one’s coronet if one wandered into the other place—are not sufficient compensation for moving on from this Chamber. I sympathise with that view. Strawberry leaves are wonderful, but better to be here without them than to be on the red Benches with them.

If it were possible to lose an election, be selected immediately for the constituency that one had just vacated, fight the campaign for five years as a peer of the realm, with all the advantages of expenses, envelopes and stamps, resign the week before nominations and then get back in again, that would be deeply unsatisfactory. It would be an improper way of using the constitution.

If people are to retire from the House of Lords, they should retire from politics. They ought not to be allowed back into the House of Commons. If they were allowed to come back, there should be an extended period of quarantine before they could do so. We should bring back the rabies rules: if somebody has been in the House of Lords, they should be kept safely out of the House of Commons for several years before we risk being bitten by them on their return.

It is important to consider what peers have committed themselves to. They know, when they are raised to the peerage, that it is an honour for life, but that that honour comes with certain disadvantages. The major two disadvantages are that they cannot vote in general elections and they cannot stand for Parliament. People do not have to accept a peerage. The Queen does not go around commandeering people and saying, “You’re going to the Lords, whether you like it or no!” They have agree to it, they have to go and see Garter, they have to discuss their title, and they have to pay for their letters patent to be drawn up so that they may be called “most trusty and well-beloved” subjects of Her Majesty and all those sorts of glorious things that we all like to be called. When they accept that honour, they ought to recognise that they have committed to give that service for the rest of their life. If ill health, old age or infirmity means that they are not able to attend, they still cannot take back the benefits that they sacrificed to take on the honour.

Retirement is a dubious principle at best, because people know what they are accepting. I also worry that it is ageist. I know that I do not often speak about equalities in this House—that is done by others more eloquently than I can do it. However, I believe that age discrimination is something about which this society should be increasingly concerned. That is partly because we have an ageing society, mixed with a peculiar cult of youth. I have never really subscribed to the cult of youth personally, as hon. Members will well understand. However, there has been a tendency in recent years to have younger political leaders and for older people to retire from the House of Commons at relatively young ages.

The last political area in this nation where age is really represented is the House of Lords. The bishops retire at 70 in the Anglican Church and at 75 if they are Catholics. Judges retire at 70. We are not quite being run by schoolchildren, but the youth of today are taking over. Where are the octogenarians and nonagenarians? They are in the House of Lords. That is a good thing because they represent many people in this nation. I know that it amuses hon. Members when I talk about nonagenarians, but we have a large number of them in society and many of them make a significant contribution to society and are actively involved in their communities and families. I am not sure that many nonagenarians are still working, but certainly many octogenarians are, and surely they should be represented. If there is one place where we can keep them, it is the House of Lords because there is no retirement age.

[Sir Edward Leigh]

My hon. Friend makes a good point about nonagenarians. The editor of the New Milton Advertiser is, I think, 92.

[Jacob Rees-Mogg]

I send my greetings and felicitations to that splendid gentleman and I hope that he continues for another eight years, so that he may reach his century. It proves my point: across society people are working to older ages, but legislation in the 1960s, 1970s, 1980s and 1990s has tended to impose tighter retirement ages, except in the House of Lords. I would not like the Bill to be used as a back-door way of introducing a retirement age. I accept that my hon. Friend the Member for North Warwickshire is sensible of that point, and that the Bill provides for retirement or resignation.

I dislike resignation, because if people sign up to a duty, they should not just walk away from it. That is lightweight and improper, and I find it hard to believe that any peer of the realm who has taken on that grave responsibility and high honour should then think that it is right to swan off and leave the House of Lords. They have taken their honour from their sovereign.

--- Later in debate ---

[Jacob Rees-Mogg]

I am grateful to my hon. Friend. I would say it was analogous to an election court, where, if election fraud or misbehaviour during a general election was shown, a court would determine whether the seat had been won in a valid manner, because it is a second degree from the court’s action. The court’s action, or the Judicial Committee of the Privy Council’s action, would be to remove the title, and it would follow from that that there would a removal from the House of Lords. I feel it would also allow a proper flexibility to consider the circumstances and would not, as was brought up by another hon. Member, mean that a judge, in passing sentence, would know that a 365-day sentence disbarred and a 364-day sentence did not, and that this must add to the weight of sentence. What if the situation were that a judge, in handing down a sentence, said, “If you were Joe Bloggs, I would give you a year in prison, but because you are Lord Bloggs you will receive an additional punishment on top of a year in prison. Therefore, I am going to remit part of the sentence.” What then? How would the Act apply to that? It would have been a year, but it is discounted. There are issues relating to suspended sentences.

We ought to be careful about unintended consequences. I am particularly concerned about the ability of foreign courts’ judgments to be recognised and to disbar people from peerages. I assume this is done in relation to Lord Black of Crossharbour and that his conviction in the United States is viewed as having tainted him in such a way that his peerage should be removed. I have great doubts about the judicial process used against Lord Black of Crossharbour, whom it is not my intention to defend particularly. Somebody he worked with was threatened with judicial, criminal action that would, if he had been found guilty, have led to an exceptionally long sentence, but which, if he turned evidence against Lord Black, would give him three weeks in a country club; and he took the latter option, as we might all have done.

That is how American justice and plea bargaining works. Even if they think they are innocent, people are under such pressure to accept the low sentence they would get with a plea bargain and the consequences of protesting their innocence are so great, that they find there is an injustice against them automatically. Worse than that, the prosecutors use them effectively to bribe witnesses into saying that the other chap, who is not co-operating, did it. By protesting their innocence, the other chap—Lord Black, in this case—risks a very long sentence that we should not take any notice of in this country. Indeed, I think it is restrained of him not to use his vote in the House of Lords. I would not think it improper of him, because he has not been found guilty of any offence in this country.

Hon. Members might think that view is very little Englander, but I happen to believe that the standards of justice in the United Kingdom are higher than those in other countries. That does not mean to say that all other countries are unjust, but other countries’ systems have injustices within them, and this issue of plea bargaining in the United States is one that is particularly egregious. But it is not just the United States, which is a close ally and has a common-law system, a system that we understand; the system on the continent is not one that we understand or are used to as Britons. It has the Napoleonic code. As Geoffrey Boycott so memorably said when he was in front of a French court, it is all in French—of all the audacities! They have different sentencing processes as well, so a crime that in this country might be viewed as a relatively modest offence could be seen as a very serious one in a foreign country or could relate to things that in this country are entirely legal. For example, in some countries, homosexuality is still illegal and is persecuted strongly. Are we to say that a peer caught out in those circumstances should be disbarred from the House?

I accept that there is the exceptionalism, but that is the wrong way around. If somebody has been through a British court and had judgment against them, that is a perfectly rational basis for determining their membership of a British Parliament, but if some foreign court has found against them, it does not seem to me to raise the same issues. Some foreign courts are willing to try people in absentia; others—the Italian courts come to mind—are extraordinarily political in how they approach prosecutions and sentencing. In that respect, I have some sympathy with Mr Berlusconi, whom I think was persecuted by extremely left-wing judges who wanted to use a legal mechanism to get him out of office, which they succeeded in doing. I will not stand up for his moral conduct, however; that is a different matter entirely, and a direction in which we do not want to go.

Russia has arrested these Greenpeace protesters for piracy, and piracy is an extremely serious crime. I understand that it carries a 15-year prison sentence. It is highly unlikely that the UK would have treated those people in that way. Now, I cannot imagine that peers would go hurling themselves about in boats in that fashion; it is far too energetic and not a sufficiently noble activity, and the ermine might get in the way—not to mention that their coronets would be falling into the sea as they climbed up the oil rig—but it is not inconceivable that a peer might be caught out in such circumstances.

On a further point, we are seeing in the affair over European opt-ins and opt-outs the EU’s increasing efforts to create a body of criminal law across the EU. I must confess that I would oppose the Bill even more strongly if I thought that the EU would be able to determine the membership of either Chamber. Part of the expression of our nation’s liberty is our free ability to decide who rules us, and that free ability comes through these two Houses of Parliament, in which no foreign court should ever be given an automatic say. It would be different if someone were found guilty of an offence here but, as I have said, the Titles Deprivation Act 1917 provides a clearer, more suitable model that does not risk bringing the proceedings of the House under the eyes of the courts, because it would be the title of the peerage itself—the honour—that was in question, not the proceedings.

That leads me to my last point, which relates to clause 5. Subsection (2) states:

“A certificate may be issued on the Lord Speaker’s own initiative.”

We should be very careful about this, on two grounds. As I understand it—I am sure hon. Members will correct me if I am wrong—there are two instances in which the Speaker of the House of Commons may issue certificates. The first is under the terms of the Parliament Act 1911, to enable a Bill to be passed without the assent of the House of Lords. The second is under the terms of the Fixed-term Parliaments Act 2011, following the passing of a vote of no confidence in the Government to enable an election to be held.

Proposals to involve Speakers in tendentious political matters should always be a matter of concern to us. Speakers in the Commons have a long-established history of being independent arbiters of the businesses of this House. Actually, it is not that long. They have been independent for only about 150 years; before that, they were much more party political. The Lord Speaker is an innovation, a post created to replace that of the Lord Chancellor, and it is a very different role from that of the Speaker here. It does not involve keeping order or calling speakers. The Lord Speaker is a more ceremonial post, created to ensure that the House may legitimately sit. The Lord Speaker does not order the business. The House of Lords is self-regulating, rather than regulated by a Speaker.

When the post was introduced, the Lords were extremely concerned that the Lord Speaker might model him or herself—it has been “herself” so far—entirely on the Speaker of the House of Commons and might interfere in a way that is necessary only in a lower and less orderly Chamber. Of course, such interference is unnecessary when you are in the Chair, Mr Deputy Speaker, when we are all beautifully behaved, particularly on Fridays when everyone arrives with their shoes nicely polished. The better-behaved House of Lords resented the idea that it would need a Speaker of that kind, and I would be concerned about raising the profile of the Lord Speaker, contrary to what was promised when the lord speakership was introduced. I would also be concerned about the risk of bringing the Lord Speaker into the political arena and giving them a role that might not be purely administrative.

It is interesting to note that in the House of Lords Act 1999, the responsibility for issuing certificates was given to the Clerk of the Parliaments. That indicated that it was a purely administrative activity, but the power given to the Lord Speaker in this Bill would appear to involve judgment. Judgment begets politicisation, and it also begets challenge in the courts. I repeat what I said earlier about the risk of legislating in a way that would bring the right of the House to govern its own affairs into conflict with the courts. We do not want to get into that position, because the ability of either House to operate independently is essential to the free flowing of our democracy. Once the House of Lords’ procedures had been intervened on by the courts, it would not be long before the same happened to our procedures. A precedent would have been set. The more we use the ancient right of either House to regulate itself, and the less we legislate and involve the courts, the better it will be.

The Bill is genuinely good in parts, and I am very sympathetic to the idea of excluding criminals from Parliament. I am not unsympathetic to imposing some kind of sanction on people who do not turn up. I am, however, against the bits on retirement and resignation. One of the bits that I am in favour of ought to be achieved through the procedures of the House; the other bit ought to be done through a different form of legislation.

I shall conclude where I began by being strongly critical of the Government’s treatment of this first-class constitutional Bill.

[Sir Edward Leigh]

Does my hon. Friend think this should actually be a Government Bill? Were he to push for a Division on the basis of his notion that it should be a Government Bill and be taken on the Floor of the House, my hon. Friend the Member for North Warwickshire (Dan Byles) would have to ensure there were 35 Members voting. That underlines the fragility of private Members’ Bills.

[Jacob Rees-Mogg]

I think constitutional Bills ought to be given the proper time and that requires them to be Government Bills, because Government controls the timetable in the House. It seems to me that the only reason why this is not a Government Bill and has not therefore been thought through more carefully is to save the blushes of the Lord President of the Council, who said he would not support a future House of Lords reform Bill after not getting his way last year. I think we will see from the Division Lobbies when we put the motion to have a Committee of the whole House where the Government’s heart is in this.

I think the Government ought to be clear about their view and intentions. If they support this Bill, it deserves a Committee of the whole House. It deserves to be debated thoroughly and properly clause by clause. It deserves to be considered by the many constitutional experts this House has—who are not here on a quiet Friday—so they have full time to table amendments and to ensure it is scrutinised thoroughly and the best Bill is passed.

I will greatly regret it if the Government do not allow that to happen because there are good parts of this Bill on which everybody could agree. Presuming you allow the Division I shall ask for, Mr Deputy Speaker, ere long we will see whether the Government will allow a Committee of the whole House.