Queen’s Speech

Lord Cope of Berkeley Excerpts

Monday 14th May 2012 Lords Chamber

Moved on Wednesday 9 May by

[Lord Cope of Berkeley]

That an humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.

[Lord Trimble]

My Lords, the Front-Bench speeches last week on behalf of the coalition added very little to the cautious reference in the gracious Speech concerning reform of this House, but that is as it should be. The noble Lord the Leader of the House said that the Government are yet to take a position on the Joint Committee’s report. I would add that they should give equal weight to the alternative report—and note that it is an alternative report, not a minority report. It was a committee of 26: there was one member from the Commons who did not attend any meetings; another member from the Commons, during the 30 meetings of the committee, popped in six times at the beginning and popped out not long afterwards. I do not recollect him saying anything while he was there, and he certainly did not vote. We had then, in effect, 24 persons who were contributing to the committee and 12 of them signed the alternative report. In the light of that, that report is entitled to equal weight in the matter.

There are some signs, I am glad to see, that the Government might think again. For example, both the Prime Minister and the Deputy Prime Minister gave nuanced reactions to the recommendation in both reports of a referendum, and last Wednesday in the other place, the Prime Minister said:

“I think it is possible, and it would be a good reform … if we had a smaller House of Lords and if it had an elected element”.—[Official Report, Commons, 9/5/12; col. 23.]

That is of course reminiscent of the Wakeham report. It may also refer to the suggestion which appeared in the Mail on Sunday on 15 January, in a column written by Mr James Forsyth. He said that a compromise was being hatched in Downing Street which would see elections take place in 2015 for 20 per cent of the places in the Lords, but that the elected element—his words—would not be increased without Parliament again being asked to give its approval. In case either of these is being considered, may I advise caution?

If there was a referendum, what advice would the Conservative Party give to the electorate? It is likely that Members of Parliament and other members of the Conservative Party might try to compel their leader to campaign for a no vote, just as they did with regard to the AV vote. As to the cunning plan which, it is said, is about to emerge from Downing Street, I would like to make two points. First, it would be unstable if future change was conditioned simply on the approval of a statutory instrument. What, I wonder, would your Lordships do if such an instrument was whipped through the other place after a short debate? Secondly, the injection of even a small elected element into this House would destabilise it. No matter how few they were, I cannot see any directly elected Member accepting that his or her electoral mandate was inferior to that of the other place. The elected Members would not follow the conventions and they would expect, and probably obtain, the support of their appointed political colleagues in doing that.

There is no escape from the reality that a House containing Members with a direct electoral mandate, whether they be few, many or all, will act differently from this place. If the other place is to retain primacy, those who sit here must not be able to assert that they have an equal or superior mandate. The Joint Committee’s report suggests this can be done by a concordat between the two Houses, but anything agreed between the two Houses will last only as long as both Houses continue to agree. When one House decides not to follow it, it will end. Ministers giving evidence to the Joint Committee said that the Parliament Acts would be a fallback for Commons primacy. I was interested to note that last week the noble and learned Lord, Lord Mackay of Clashfern, said that he “firmly agreed” with the view that had been given to the committee by the noble and learned Lord, Lord Goldsmith, and by the noble Lord, Lord Pannick, that the Parliament Acts would not apply to an elected Chamber. Proposing, as some do, that those Acts be extended to an elected Chamber ranks, to my mind, with the Labour Party’s proposal to reduce the powers of the elected Chamber—a proposal rightly derided by the noble Lord the Leader of the House as a rich absurdity.

I would suggest that the solution is to elect Members indirectly, by a formula or process related to a direct election. Indirect elections are not unusual. In her written evidence, Dr Meg Russell told us that of the 76 second Chambers then in existence, 16 were wholly indirectly elected and 18 partly indirectly elected. By way of comparison, the figures for wholly and partly directly elected Chambers were 28, while those for wholly or partly appointed were 34, so there is an interesting distribution there. It is proposed that we have a second Chamber with a majority directly elected and with some appointed members. There are five other upper Chambers around the world that are constituted in the same way and which might be regarded as comparable. These five are Zimbabwe, Burma, Bhutan—they may not be regarded as terribly good comparators for reasons of distance, cultural difference and so on, but it is the remaining two that really worry me—Italy and Belgium. Is that going to be the future of our constitutional and parliamentary arrangements? I hope not.

The simplest form of indirect election is to allocate seats in proportion to the votes obtained in a general election, so that if a party obtained 40% of the vote it could appoint 40% of the second Chamber to hold office until the next election. Nominations could be made after the election or from a list published beforehand. But that is open to the familiar criticism of closed lists: it would increase party patronage and favour those individuals who were good at schmoozing party managers or members.

I would prefer the form of direct election that this Parliament legislated for in the past. The relevant Acts that I am referring to were enacted in 1909 and 1920. The second Chambers provided for in those Acts no longer exist, but that is not the point. Here we have legislation that was enacted in the middle of the crisis that led to the Parliament Act, and it may show what the Government who were involved in that crisis thought would be the appropriate shape of a second Chamber. The first Act was the South Africa Act 1909 and the second was the Government of Ireland Act 1920. Both proposals are very similar. My noble friends to my right might like to note that the 1920 Act was the work of a coalition of Conservatives and Liberals, headed by a Liberal Prime Minister—Lloyd George—whose Budget it was that had started the crisis in the first place. This is something worth looking at.

The South Africa Act 1909 provided for eight senators to be elected by single transferable vote for a 10-year term by the legislature of each of the four colonies that became provinces of the Union of South Africa, with a further eight Members appointed by the Governor General—an 80/20 split. That is interesting. The Government of Ireland Act provided for 24 Members of the Northern Ireland Senate to be elected for an eight-year term by single transferable vote by the Northern Ireland House of Commons, half being elected every four years, with the lord mayors of Belfast and Londonderry as additional Members. I thought that this might be a pointer in view of some other aspects of the coalition’s policy, but apparently they got lost by the wayside recently. But you never know, that might come back again.

Interestingly, both Acts had exactly the same procedure written into them to resolve differences between the two Houses. In the event of a difference between them over a piece of legislation, there could be convened—it was discretionary—a joint sitting of both Houses to deliberate and vote on the disputed Bill. That deliberation and voting would then count as the passing of the Bill. This procedure also applied to the rejection of a money Bill, so the legislation contemplated that money Bills might be rejected and had a procedure for dealing with that, which underlines that the Governments at those times did not contemplate that something similar to the Parliament Act was needed or should exist with regard to these bodies.

If anything resembling the draft Bill that the Joint Committee has considered comes forward, it is clear that it will encounter serious opposition in the other place from Members who wish to retain their primacy and to avoid being challenged in their constituencies by a rival elected Member. An indirectly elected senate solves both those problems. So I urge it on those who will be involved in taking decisions on this as something to look at.

Last week the noble Lord, Lord Wakeham, said that if a reform Bill comes here,

“the responsibilities of this House are clear. We should treat the Bill like any other coming before the House”.—[Official Report, 10/5/12; col. 50.]

It might be possible to do that if the Bill comes after being properly considered in the other place, but I fear for what might happen if we get another ill-drafted Bill pushed though the other place on a guillotine with many of its provisions never debated.

I appeal to the Government: treat this bill as constitutional Bills were once treated in the past. Let it be considered without a timetable. A whip on Second Reading would be understandable, but thereafter let the debate proceed freely. A consensus reached in that way would then be respected.