Queen’s Speech

Lord Campbell-Savours Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Phillips of Sudbury]

Timetabled and all the rest of it. Therefore, I have to say—

[Lord Campbell-Savours]

The noble Lord refers to two defeats in two years. However, he is conveniently forgetting that many amendments are accepted by the Government in the other House. They do not go to a Division.

[Lord Phillips of Sudbury]

That is true, my Lords, but many of those concessions derive from amendments to Bills made in this place, which gives the boys and girls down there a bit of leverage over Ministers. Indeed, you hear it said that a lot of the most contentious stuff in relation to education Bills, health Bills and so on, is left for us to deal with because it is then somehow easier for them to deal with it when it goes back.

As I say, these are complex issues. I repeat that I have come to a slow but certain conviction that to elect this place directly would not even be a leap into the unknown because we know what is happening at the other end and we know that the partisanship would come up here. We also know that if you had a different majority at each end, that would constitute the deep blue sea. What would happen then? The pretence that legitimacy would be retained, as many noble Lords have said, is a total figment of the imagination because legitimacy lies not in the written word but in the hearts and minds of the people of this country. It is in the eye of the beholder. If we were elected, the man in the street would accord equal credence to us as he does to those in the other place. For those reasons if for none other, I fear that I will be a steadfast resistor of election if that time comes.

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[Lord Campbell-Savours]

My Lords, I want to follow up and embroider upon my contribution to the debate on Lords reform which took place on 30 April. I shall concentrate on issues of primacy and, in particular, gridlock, dealt with supposedly under Clause 2 of the draft Bill.

My position is clear. I support an elected House—perhaps as a compromise an indirectly elected one. I support the thrust of the Richard report and I also strongly support a referendum. However, those of us who support an elected House, hybrid or otherwise, have to address the issue of gridlock. Until we confront that, we cannot win the argument. I have sat through four days of debate, primarily on Lords reform, and there has been very little discussion on that particular subject. Personally I am not greatly troubled by it, and my reasons are simple. The first is that I believe that the conciliation procedure, which has been referred to in this debate, will grow out of gridlock. I am not convinced that you can predetermine a conciliation procedure in advance, as such a procedure will by definition need to be finely tuned and carry the nuances and ambiguities that may on occasion be essential to deal with the sensitivities that conciliation requires. Secondly, I am convinced that a constitutional crisis arising out of gridlock will abate to meet public expectation and market movements as Parliament backs off from sustained open conflict between the two Houses.

However, the questions in my mind remain. Can we avoid gridlock? Can we protect primacy of the Commons? Can we build into reform a mechanism for controlling the pace of change as the newly elected Chamber increasingly and justifiably seeks to increase its influence? Without a written constitution, what can we do? At the moment, we have two options: a system of statutory codification setting out the powers and responsibilities of both Houses, or a series of resolutions carried in both Houses, which has been described as a concordat.

On statutory codification, it is argued that a means will be found to undermine codification in the courts, despite Article 9 of the Bill of Rights and the reluctance of the judiciary to intervene. On the concordat, it is argued that such an agreement, approved in this unelected House, could find itself tested to destruction in a newly elected House where Members claim greater legitimacy. For those reasons, I proposed in the debate on Monday, the 30th, the amendment of the oath as a constitutional lock.

The oath that we all take at the commencement of each Parliament is a solemn promise made to Parliament to show allegiance to the monarch as part of our constitutional arrangement. It is the product of a constitutional settlement and it already provides a constitutional lock on allegiance to the monarch. Similarly, we need to find a mechanism for reinforcing any constitutional settlement agreed between the two Houses prior to the election of the second Chamber—effectively, a new lock. The current wording of the oath is as set out in Section 1 of the Parliamentary Oaths Act 1866, as amended by Schedules 8 and 10 to the Promissory Oaths Act 1868, with further amendment for affirmation under a consolidated Oaths Act of 1978. The oath has a long history. It has grown out of a series of revisions and amendments over the centuries from an oath of supremacy, an oath of allegiance and an oath of abjuration to today’s oath. At one stage in our history, Members took three separate oaths. Interestingly, the oath introduced in 1829, which removed restrictions on Catholics entering Parliament, imposed limitations on the actions of Members, which is what I am advocating.

So what am I advocating? I argue that the parliamentary oath should be amended to include an obligation or duty to accept the constitutional settlement between the two Houses. The settlement would be underpinned in statute. The 1866 Act, as consolidated, would be amended and the constitutional settlement, which would include limitations on the statutory and non-statutory powers as set out in paragraphs 39 and 40 of the Richard report, would, where necessary, be defined in the legislation—that is, the Bill about to be presented to Parliament. I argue that the oath could then provide us with a constitutional lock.

I am not advocating that the newly elected House could not debate for increased powers. However, I am advocating an arrangement under which the Lords would be unable to threaten to delay, or actually delay, legislation with a view to securing greater powers. Nor would the Lords be able to bring an amendment to the constitutional settlement. Under the terms of the settlement, the process of amending the settlement could be initiated only in the Commons under its primacy. The Commons, protecting its primacy, could influence the pace of change.

What about the arguments against? We are told that Parliament cannot bind its successors, but of course that would not be the case if the constitutional settlement provided for Parliament having the right to amend, which would be the case under Commons primacy. It is argued that such a proposal would breach the freedom of speech provisions in Article 9 of the Bill of Rights, which states that,

“the Freedome of Speech and Debates … in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.

My proposal is for an internal parliamentary arrangement to be made in the form of a constitutional settlement between the two Houses, establishing a process for the handling of legislation. It is an internal parliamentary arrangement. There is no question of outside interference in freedom of speech. A summary of “The Parliamentary Oath” research paper produced by the House of Commons in 2000 states that,

“even if the entire country were to vote in a general election for a party whose manifesto pledge was to remove the monarchy, it would be impossible by reason of the present oath, and current acts of parliament, for such elected MPs to take their seats in the House of Commons, or be raised to the House of Lords, without taking this Oath of Allegiance to the ruling monarch, and to her heirs, and successors. However, there would be nothing to prevent a Parliamentary majority debating a republic or from seeking to renegotiate the constitutional settlement since freedom of speech is guaranteed by article 9 of the Bill of Rights 1689”.

So, as it stands, the lock keeps out those who are not prepared to show allegiance to the Crown. In the oath we already have a constitutional lock in practice, but that raises the issue of challenges to the requirement to take the oath.

We have the Bradlaugh v Gossett case of 1884, which involved a challenge to the Parliamentary Oaths Act 1866. The court held that the matter related to the internal management of the procedure of the House of Commons and the court had no power to interfere. We have the Prebble v Television New Zealand case in 1995, in which the Privy Council ruled:

“In addition to Article 9 itself, there is a long line of authority which supports a wider principle ... that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges”.

We then have the Sinn Fein/McGuinness v United Kingdom case. In one of the cases, Mr Justice Kerr ruled:

“The control of its own internal arrangements has long been recognised as falling uniquely within parliament's domain and superintendence from which the court's intervention is excluded”.

McGuinness, defending the interests of the Sinn Fein elected MPs, went to the European Court of Human Rights. The court ruled:

“The requirement that elected representatives take an oath of allegiance to the monarch forms part of the constitutional system of the respondent State, which, it is to be observed, is based on a monarchical model of government. For the Court, the requirement that elected representatives to the House of Commons take an oath of allegiance to the reigning monarch can be reasonably viewed as an affirmation of loyalty to the constitutional principles which support, inter alia, the workings of representative democracy in the respondent State … In the Court’s view it must be open to the respondent State to attach such a condition, which is an integral part of its constitutional order, to membership of Parliament”.

McGuinness lost.

Interestingly enough, the Northern Ireland Assembly Members do not take the oath, but they have to sign the Assembly’s roll of membership and take a pledge of office which sets out in detail requirements and obligations on Members to act in good faith, to commit to democracy, to serve all communities, to commit to participate in democratic institutions, to recognise the role of Ministers and to participate in programmes of government. Their responsibilities are clearly defined. That is my proposal. The amended oath would set out an additional requirement to accept the constitutional settlement in addition to pledging allegiance to the Crown. The oath is a solemn promise made to Parliament.

Following the last debate, I encountered, quite naturally, some hostility to the proposal that I put to the House, essentially from those opposed in principle to an elected House. However, there are those in favour of an elected House who have a more open mind. I seek an objective debate on the proposition that I have put forward.

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[Lord Rennard]

My noble friend and other noble Lords will never have heard me argue the case for referendums for mayors. Noble Lords present during the debates last year on the Localism Bill will have heard me express strong reservations about referendums. There are often major problems with the conduct of referendums. The only exception I have thought of to my general belief in representative democracy above referendums is that the system by which Members are chosen in the place that has primacy should be chosen not by those Members themselves but by the voters.

A number of noble Lords have suggested this evening that electors a year ago chose first past the post and rejected proportional representation—that was the implication of a number of arguments. I remind noble Lords that the option of proportional representation was never offered to the voters last year because noble Lords from other parties and Members of another place were too fearful that people might decide to have that system rather than first past the post.

[Lord Campbell-Savours]

Is not one of the advantages of a referendum on House of Lords reform that, if the vote is won in favour of reform, Parliament is then locked into that decision? Parliament would find it very difficult to say no when the people have said yes.

[Lord Rennard]

I agree that it would be difficult for Parliament to say no in that event. I do not totally rule out the idea.

Let me first refer the noble Lord back to the report on referendums by your Lordships’ Constitution Committee. In the debate in this House on that report, it appeared to be generally agreed by almost all noble Lords present that referendums should be rare and that there were significant problems with holding them—not least the propensity of the electorate to vote in response to a different question from that which appeared on the ballot paper. However, the report concluded that it would be appropriate to hold a referendum if abolition of either House of Parliament was considered. It is probably on that basis that some noble Lords consider the justification for a referendum. Yet when we look back to the 1911, 1949, 1958 and 1999 Acts, they were never considered to be Acts of abolition, even though they significantly changed both the powers and the composition of the House.

Gradually reforming composition does not amount to abolition. The draft Bill and the proposals of the Joint Committee suggest a transitional period that would not be complete before 2025—some 114 years after the 1911 Act and 15 years after all main parties promised in their manifestos to work for such an outcome. Ending the hereditary principle, removing patronage from party leaders and allowing people to choose their legislators do not amount to abolition of this House, so I do not see any case for a referendum before 2015. In the mean time, I believe that in 2015 we should begin the first phase of real reform by electing a small proportion of the membership of your Lordships’ House and finally ending completely the hereditary basis for membership. There may be more of a case for a referendum later, on proceeding to the second or final stages of reform.

I also want to address briefly another important constitutional issue in the gracious Speech—

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[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.