Queen’s Speech

Lord Elystan-Morgan Excerpts

Monday 14th May 2012 Lords Chamber

[Lord Ashdown of Norton-sub-Hamdon]

Of course we should. The draft legislation that was put before us made it perfectly clear that the House of Commons should have primacy. That is not a contentious item. By the way, I said that we participated in the making of the laws. We contribute to the making of the laws. That should be done only by the power that is derived not from the Prime Minister or from patronage but through the ballot box.

My noble friends in the Conservative Party often ask, “Why should we address this constitutional issue at a time of crisis—is this not a distraction?”. Those noble friends should have a care as they, too, are interested in constitutional reform. As the noble Lord, Lord Grocott, has just said, they introduced mayoral elections. Now we must vote for police chiefs across the country, whether we like it or not. It seems to me that my noble friends are interested in every constitutional reform except the reform of this place. They want to see the election of mayors and chief constables but not of anybody in this place. I say to noble Lords who love to make that point that it is a dangerous one to make.

It is also dangerous to make that point as we are facing not just an economic crisis but a democratic crisis. We should look at what is happening on the streets of Egypt and at what has happened here. Our economy is in crisis but so is our democracy. We should look at the turnouts in the local elections last week. You cannot solve the democratic crisis unless you can create more respect for, cognisance of and at least trust in the democratic process. We need a process of democratic renewal in this country. I do not claim that the House of Lords represents all of that programme but it is certainly a crucial part of it. You cannot resolve the deep economic crisis of this country if you do not also address the democratic crisis, and that is what we seek to do.

Another point that is often made is that famously there is no public call for reform of this place—we have heard it in the Chamber today—and that campaigners have knocked on many doors but not one person has called for democratic reform of the House of Lords. But they never do. This is not the people’s business; it is our business. There was no great public call for the Great Reform Act 1832. There was a campaign up and down the country, but in the Dog and Duck and other pubs around Britain in the 1830s there was no great public call in support of that or, later, the suffragette cause. The campaigners believed deeply in that cause and they fought for it, but the public did not, being largely uninterested in it, if not opposed to it.

The noble Lord, Lord Luce, said the other day that there have been four reforms of this place—in 1911, 1949, 1963 and 1999. None of those reforms was called for by the public. We initiated them to put our House in order. This has nothing to do with the public calling for reform. It is entirely to do with the fact that we should recognise that we have grown out of touch with democracy and that we have to put our House in order—no more and no less.

[Lord Elystan-Morgan]

The noble Lord says that there was no great public demand prior to 1832. What does he think brought together the 100,000 people who risked life and limb at Peterloo about 10 years previously?

[Lord Ashdown of Norton-sub-Hamdon]

My Lords, I did not say that there was no great campaign. I made it very clear that among the ordinary people of our country there was no great public cry for this, as indeed was the case with the suffragettes. I had a look at this in the Library only the day before yesterday and I assure noble Lords that that was the case. However, if noble Lords will not accept that, and it seems that they are not inclined to do so, I repeat that on the four occasions that this House has reformed itself it did so because it needed to, not because the public demanded it. So it was then and so it is now.

Finally, I turn to the question of the written constitution, because this has come up a number of times. Let me see if I may address it directly. Perhaps I may pick up on the statement, or perhaps question, of the noble Lord, Lord Rooker, during the debate last Thursday. He is a man for whom I have a great deal of respect and admiration, but he made an odd statement. He said that if we were to be a democratically elected second Chamber we would be the only one in the world with an unwritten constitution so to do. There are only three countries with an unwritten constitution—not a huge number. There is New Zealand, Israel and Great Britain. His argument was, “How could we make such a change when there is no model for us to work from?”. I looked at his statement in Hansard and could read it out to him; I have it here.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, I am sure that the noble Lord, Lord Giddens, will forgive me for not following him in his masterly tour d’horizon of many of the massive issues now confronting Her Majesty’s Government. I wish to speak on the issue of the draft Bill for the reform of this place and to ask two simple questions. First, what was the end product that the Government desired in drafting the Bill? What net result were they aiming for? Secondly, what was the principle that they sought to espouse in trying to achieve that result? Those are two simple but pertinent questions.

Concerning the first question, what was the end product contemplated? It seems that the Government have been saying quite consistently over the last few years that they wished a situation to develop whereby this House would have greater authority—greater moral authority than it has at the moment to conduct its duties, but greater authority vis-à-vis whom? Not vis-à-vis Europe; it can only be vis-à-vis Her Majesty’s Government and the House of Commons. Yet that seems a very strange proposition when one considers the way in which Her Majesty’s Government and the House of Commons have reacted in the last two years to the assertiveness of this House.

I will not go through any list in detail, but we know exactly what has happened. There has been a reaction to practically every worthwhile amendment that this House has passed, irrespective of its merits. There has been the use of the subterfuge, as I would describe it, of overemphasising the privilege which that House has in relation to financial matters. Of course it must retain that jurisdiction, but to use it even where that result is minimal in its effect upon an amendment amounts to bullying and almost to tyranny. That is one of the very great problems. Is it the case that if this Bill were to be carried, the House would adopt a different situation and, if so, on what basis? It is for the House and for the Government, in my respectful submission, to spell that out.

In so far as the question of the principle is concerned, probably every Member of this House present would say that there is one thing that we agree upon: that the primacy of the House of Commons should be maintained. In the course of these debates over the last few months, I have never heard anybody argue to the contrary. Very few people, however, have defined primacy. Primacy, to my mind, can mean one of three things. First, it can mean the acceptance that there is an overwhelming moral authority and sovereignty vested in the House of Commons itself. That is one possibility, but for it to succeed there has to be a common subscribing to a moral code and the willingness to abide by it, which is something rather difficult.

A second possibility is that it is a legal concept, which means that on all matters large and small where there is conflict between this House and the House of Commons, the House of Commons swiftly and peremptorily establishes that authority—and that our situation disappears, as it were, in so far as any status in that connection is concerned. The third possibility is that one does not apply such a rigorous determination as in the second instance but that nevertheless the House of Commons is entitled, in the long run and over a reasonable period of time, to have its own way. I cannot conceive of primacy that does not fit into one of those three categories.

With regard to the attempt to deal with the issue of primacy, Clause 2 of the Bill is of course a disaster. It has been savaged. I may be using a term that is too harsh to describe the efforts of the noble Lord, Lord Richard, and his Joint Committee, but the clause has certainly been heavily and fairly criticised, even more so in the alternative report. I can well understand that, because if the primacy of the House of Commons is to be maintained, and that is the wish of everyone, then there are only two ways in which that can be done. One way—a dangerous one, to my mind—would be to put the Salisbury/Addison convention on a statutory basis. That convention was developed in very different circumstances from those now prevailing, at a time when there were about 20 members of the Labour Party in this House and many hundreds of Conservatives. Then, it was necessary either to abolish this place or to have a convention of that nature. However, if you put such conventions on a statutory basis, you are in grave trouble. I know that noble and learned Lords who are in a far better position to judge than I would say that you immediately place yourself at the mercy of the courts and do the very thing that Article 9 of the Bill of Rights wished to avoid—in other words, that there should be a conflict between the jurisdiction of Parliament and that of the courts.

A convention is no more than a convention. The moment that it ceases to be a convention, it becomes a great peril. Again, noble Lords may say that we could use the Parliament Acts, but why should you use two pieces of legislation that were passed in very special circumstances to deal with a wholly new circumstance? Those Acts were passed when there was a deadly conflict between a House of aristocratic origin—an hereditary House—and an elected, democratic House. That is not the situation now, nor would it be if the Bill were to be passed. Although of course there is every justification for the broad rules regarding money Bills and taxation to be abided by, the Parliament Acts were nevertheless created in a special situation that would no longer obtain in the event of the Bill being carried.

What are we left with? A situation where the only sane, reasonable and safe choice is either A or B. A is to maintain an appointed House, possibly with many, though not all, of the reforms that were so properly advocated by the noble Baroness, Lady Hayman. B is to have an elected House, but one that operates within a written constitution. If you have an elected House without one, there is always the certainty of deadlock—although perhaps I put that too strongly. I suppose that one can be a very great optimist and say that it may be possible that two elected Houses could live in a situation of total amity and concord, but I doubt very much whether—

[Noble Lords]

Order!

[Lord Lamont of Lerwick]

Some of the jury is on this side of the House.

[Lord Elystan-Morgan]

I am sorry. However, it seems to me that I am surrounded by many people who subscribe to the same ideas as me. That may very well be the choice. Although the noble Lord, Lord Ashdown, and others may argue that there is no great significance in a written constitution, I believe that it makes all the difference. I would put it, very humbly, in this way: if you have a written constitution dealing with two elected Houses, it is very much like having two rail tracks running parallel with each other. With luck, no great disaster will ever occur. If you do not have a written constitution, with two elected Houses you have an open highway where each of those heavy, dangerous vehicles is competing with the other for road space and where there is, in the long term, the certainty of disaster. That is the situation.

If I am right that those are the stark choices now confronting our community, then we have gone about it the wrong way altogether. We have sought to deal with this matter in a piecemeal, tunnel-vision manner. That is a fair criticism. The 1911 and 1949 Parliament Acts dealt solely with powers. Since 1949, virtually all the discussion has been about membership. How can you possibly deal with membership save in apposition to powers or with powers save in apposition to membership? How can you possibly deal with a tripartite entity, such as parliamentary government—the House of Commons, the House of Lords and the devolved Assemblies—through totally changing the character and the constitution of one of them?

I believe that one of the most unwholesome proposals in the draft Bill is the 15-year term. I can well understand, and have sympathy with, the motives behind it. I came to this House 31 years ago, although I am sorry that I have not been here for the entire intervening time, having very improperly played truant for a period. I can well understand why a modern legislator should feel that they should have the independence to be able to deal with an issue as they see it on merit without having to look over their shoulder to the next election or to dictate into the columns of the local rag. It is a perfectly understandable and decent motivation, but I think it is a very wrong one. Democratic representation means two things: it means being elected in a democratic way and being answerable in a democratic way. It is not the fact of election that is so important but the fact of facing re-election: that is the mandate that has sovereign value, if you look in a purely tunnelled way at popular election.

I end with this: I believe that the most sensible answer to this situation has come from the alternative report. It states that, bearing in mind all these issues and more, there is only one place to start, and that is with a constitutional convention to examine all these matters in depth with maturity, common sense and statesmanship. To start anywhere else would be wholly unthinkable.