House of Lords (Hereditary Peers) Bill

Lord Keen of Elie Excerpts

2nd reading
Wednesday 11th December 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I extend my welcome to my noble friend Lord Brady of Altrincham for his maiden speech. I express my thanks to the noble Baroness, Lady Quin, for her charming valedictory speech. I noticed her intention to carry on with a different form of public service after she leaves this House. I confess that my knowledge of Newcastle does not extend beyond a short stop between Waverley and King’s Cross, so I note her kind invitation to extend my knowledge beyond platform 4.

Much has been said and little requires repetition; be that as it may. We are concerned with a very specific Labour Party manifesto commitment under the express heading of “Immediate modernisation”. I remind the Leader of the House of the ordinary English usage of “immediate”: done at once, without interval of time. What was proposed to be done at once and without interval of time? It was the removal of the elected hereditary Peers, the introduction of a mandatory retirement age for those who reached the age of 80 during a parliamentary Session, the very necessary introduction of a participation requirement, and a very necessary reform of the appointment process. Taken together, these would address, to some extent, the numbers in the House, the quality of those in the House and the contribution of those appointed to the House.

Yet the only immediate action of this Government is not modernisation but an immediate departure from their manifesto commitment. In a vain effort to mitigate Labour’s departure from immediate modernisation, the Leader expressly quoted the presence of a full stop. As the noble Lord, Lord Moylan, observed, such constitutional weight has been placed upon this small dot. There we are: the disclosure, surprising to many, that the Labour manifesto was broken down into sentences. Who would have thought it? Nil desperandum.

There is a logic and coherence to the Labour Party manifesto commitment to immediate modernisation, and it is not present in the Bill. The Leader of the House spoke of the Government being able to decide whether, how or when they would implement their manifesto commitment. However, with respect, this was an expressed commitment to immediate modernisation, not an expression of separate steps hopefully heading in the direction of some modernisation at an indefinite time in the future. The Minister referred to people not being able to sit in this House because of the family they were born into. That might extend beyond the hereditary principle.

Reference has been made to the constitutional anomaly of hereditary Peers. I am inclined to the view that all Peers are, to some greater or lesser extent, a constitutional anomaly. The vast majority are appointed for life, but without any commitment or obligation to turn up and do anything. But the greatest constitutional anomaly is that the Executive, in the form of one individual, the Prime Minister, have untrammelled power to determine the membership of the legislature without any reference to quality or qualification.

Reference has been made also to the medieval overhang in this Chamber. But, as the noble Lord, Lord Birt, observed, that applies with considerable force to the presence of 26 Church of England bishops who inherit a seat in this House when appointed to their bishopric. What do we have from the Government on this point? Complete silence.

The Bill may be presented as many things by diverse interests, but the one thing it most certainly is not is the immediate modernisation of this House, much though it may be required.

House of Lords (Hereditary Peers) Bill

Lord Keen of Elie Excerpts

Committee stage
Monday 10th March 2025 Lords Chamber

[Lord Newby (LD)]

It is always very dangerous to make a general comment in your Lordships’ House. But judges have a retirement age of 75.

We know that bishops aged more than 70, and indeed judges aged more than 75, in many cases have undiminished mental powers and are able to play a very considerable part in whatever it is they continue to do. But there is a reason for retirement ages, which is that exceptions do not prove a rule. We know here that many Members of your Lordships’ House stay on well beyond a point at which it would be in their best interests to retire. We, the usual channels, have no levers in order to help them leave at a point when, objectively, it would be in their and the House’s best interest. My Chief Whip and I had a signal success last week in persuading someone in their mid-90s to retire, but it was slightly touch and go—and that, frankly, is not acceptable in my view.

If we are to have a retirement age, the question is: what should it be? The noble Lord, Lord Blencathra, said that 80 was clearly too young. He prefers 85; the noble Earl, Lord Dundee, prefers 90. We often talk about the dissonance between the ways in which the House of Lords and the outside world view things. I can think of no case where there is a greater dissonance than in the view of a reasonable retirement age.

I am afraid that I find it very difficult to accept the idea that 80 is far too young. The noble Earl, Lord Kinnoull, made a suggestion about how we might persuade Peers to retire without having a set retirement age: by having a retirement age that applies only to new Peers, in the expectation that many existing Peers who are over that age, whatever it is, would retire on the basis that that is what the judges did. In my experience, the problem is that people who most should retire are often the ones who are most reluctant to retire. I am afraid to say to the noble Earl, because it is a very attractive proposition in other ways, that I do not think that it would work, and I certainly do not think it would work to the extent that we would want it to.

This debate has shown that there is absolutely no consensus in your Lordships’ House about what a retirement age should be. I agree with the noble Lord, Lord Hogan-Howe, who said on a previous group that this subject should not be part of the consideration of the Bill. The Government say that they will bring forward a consultation and proposals on it and I believe that it is very important that the impetus for this change, particularly the exact retirement age, should not come from your Lordships’ House. If ever there was a case of turkeys and Christmas, it is Members of the House of Lords determining when they should retire. Therefore, it is incumbent on the Government to come forward with their own proposals—I would be very happy if they were in line with their manifesto commitment—but I do not think an amendment passed by your Lordships on a Bill that is, in essence, about the hereditaries is a sensible way to deal with it.

[Lord Keen of Elie (Con)]

My Lords, first, I apologise if my voice fails—although many noble Lords may appreciate that eventuality.

I begin by addressing the amendments moved by my noble friends Lord Blencathra, Lord Hailsham, Lord Dundee, Lord Parkinson and Lord Dobbs and the noble Earl, Lord Devon. However, I divide them into two categories: the issue of a retirement age and the issue of term limits. I will not address the latter in the context of this debate, but I will address the former, because it is one of the Government’s manifesto commitments. They expressly said that.

Here we are, almost at 10 pm, debating whether it is appropriate for us to have a retirement age of 90 years, 85 years or perhaps even younger. The general public would regard such a debate as quite surreal. The question posed by my noble friend Lord Goschen is very much on point. It is incumbent on the Government now to step up and explain why they put the issue of a retirement age into their recent manifesto. It was not done on the spur of the moment; these things are thought out, debated and considered. Yet we struggle to identify the raison d’être for that manifesto commitment; it simply floats in the air.

Comments have already been made about other professions and pursuits and the issue of retirement, but, clearly, no one has ever contemplated an official retirement age of 90. That is why I wonder about the terms of this debate at all. In banking and finance, one would generally expect retirement at 55. Why? Because those organisations want to refresh themselves. In the judiciary, until recently the retirement age was 70; it is now 75. That is not because of the belief that judges who reach the age of 75 are no longer capable of interpreting and applying the law—many are, some are not and some never were.

Be that as it may, there is a further, more important issue. It is the issue of public confidence. If you walk into a court to have a serious issue determined in a court of law and discover that the judge is 92 years of age, you would rightly have reservations about his ability to determine a complex issue. It is no different for those who do not interpret and apply the law but purport to make it. The issue is not whether Lord Mackay of Clashfern was able to contribute to the proceedings of this House into his 90s, or whether the noble Lord, Lord Dubs, is still able to do so—I do not doubt that for a moment. But there is a very real issue of public confidence. That is also married to an issue about the numbers in this House, and how we deal with that issue.

House of Lords (Hereditary Peers) Bill

Lord Keen of Elie Excerpts

Committee stage
Wednesday 12th March 2025 Lords Chamber

[Lord Hacking (Lab)]

I would like to add to what the noble Lord has just said. Some 53 years ago, when I first entered the House, there was a Cross-Bencher who had been convicted and served his penal sentence. I have forgotten where it was. He was greatly respected and was treated as an expert in your Lordships’ House on penal matters.

[Lord Keen of Elie (Con)]

I am obliged to the noble Lord. I am not able to claim that same degree of expertise.

In speaking to these amendments, I fully understand what lies behind them: a desire to ensure that those who serve in this legislature exhibit the standards of integrity and character that the public would surely demand of them. My concern is that the amendments are perhaps too narrowly focused. We already have a means, since the 2015 Act, of dealing, by way of the Conduct Committee, with recommendations for expulsion or suspension. That broad remit seems to me a more equitable and sensible means of addressing these issues.

I give but a few examples. In the past few years, at least one of your Lordships was convicted of a serious offence in the United States of America. He was sentenced to three and a half years in prison. Would that sentence be attached by the proposed amendments? It would be necessary to extend the amendments to sentences imposed by courts not just within but outwith the United Kingdom. What if a noble Lord was charged with an offence in the Russian Federation on highly dubious grounds and was convicted and sentenced to a number of years in prison? How would we deal with that issue if we had extended these provisions to sentences imposed by courts outwith the United Kingdom?

House of Lords (Hereditary Peers) Bill

Lord Keen of Elie Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Newby (LD)]

I say that much as I respect the noble Lord, Lord Birt. That just demonstrates the problem of specifying individual placeholders who should get a place in this Chamber.

Thirdly, the noble Lord, Lord Wolfson, made a valiant attempt to explain why he did not think the separation of powers mattered. The only thing I will say is that the separation of powers was legislated for by Gladstone in the Judicature Act 1873, a provision that was not implemented when Disraeli became Prime Minister the following year. As in many other things, I prefer Gladstone to Disraeli. This may or may not have been Liberal policy for 152 years—it actually beats our commitment to having a directly elected House of Lords as the longest commitment continuously held by a political party before it was implemented— and I see no reason why we should change from that position now.

[Lord Keen of Elie (Con)]

My Lords, the first life peerages were conferred under the Appellate Jurisdiction Act 1876, which remained in force until the impact of the Constitutional Reform Act 2005. It is perhaps notable that the first three appointments as Lords of Appeal in Ordinary were Scottish lawyers. It is also notable that the next three appointments as Lords of Appeal in Ordinary were Irish lawyers. However, 15 years later, a suitable English lawyer was identified and appointed.

Against that background, I turn first to Amendments 56 and 57, in the name of my noble friend Lord Wolfson, to which I have added my name. I must note two points. First, I express a degree of surprise about the advice he received from the Cabinet Office upon his appointment to the Government. There is a long and perhaps dishonourable tradition of Attorneys-General, Solicitors-General and Lord Advocates assuming high judicial office after their service in government. Indeed, in the case of the Lord Advocate, it was invariably the practice into the 1960s that he would appoint himself to the most senior judicial office available, there being no conflict of interest. However, there are very good reasons why it is of benefit to this House, as a political House, to have the benefit of those who have served in high judicial office, whether they do so following their retirement or at an earlier stage.

It was a point made by my noble and learned friend Lord Garnier and touched on by the noble and learned Lord, Lord Hope, that, while Lords of Appeal in Ordinary sat in this House, they would do so with a self-denying ordinance. They would not engage in matters that were potentially controversial from the perspective of their judicial office; for example, you would not have seen them engage in debates with regard to the Human Rights Act and other similar matters. However, as my noble and learned friend pointed out, it gave those in high judicial office some impression of the political mood so far as legislation was concerned, and that would have an impact on them when they came, in due course, to address what were potentially politically controversial issues that were raised to a point of law. I suggest that there was always a significant benefit in having such qualified persons in this House, albeit that it may be appropriate that they should be here after the judicial retirement age of 75 and up to the Government’s intended retirement age of 80—I see some of the government Back-Benchers wincing at that, but I understand that that is the intention.

I support the points made by my noble friend Lord Wolfson. I do not go so far as the amendment proposed by my noble friends Lord Banner and Lord Murray, and I do not take the point made by the noble Lord, Lord Grocott, that we are dealing here with protected places. We are dealing here with those who are not executive appointments to this House, of which a greater proportion are going to emerge as a result of this legislation.

In these circumstances, it appears to me that there are two elements. There is the element of an honour conferred on those who are granted high judicial office, and that is already reflected in the fact that the present President of the United Kingdom Supreme Court had a peerage conferred on him upon his appointment and the fact that the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, had such an honour bestowed upon him as well. Frankly, I would be confident that those who have held high judicial office and have been public servants for so long a part of their career will, as a matter of course, become engaged in the proceedings of this House if that opportunity is presented to them.

I do not agree with the noble Lord, Lord Newby, that there should be no link between the peerage and a distinguished office which has been held. I do not believe we have to go down a slippery slope. However, I acknowledge that the separation of powers has to be noted and acknowledged, albeit Montesquieu was talking about the United States’ system and not our own—and even there, there are changes afoot.

I invite the Government to consider very seriously Amendments 56 and 57, and to comment on the other attendant amendments which would bring those who have held high public office and been distinguished public servants into this House, almost invariably on to the Cross Benches.

[Lord Hermer (Lab)]

I am grateful to all noble Lords for their contributions, which in this group concern the appointment of specific public servants to your Lordships’ House. I will start, if I may, with the amendments that concern the conferral of peerages on serving members of the senior judiciary, tabled by the noble Lords, Lord Wolfson and Lord Banner, and the noble and learned Lord, Lord Wallace of Tankerness.

I start from a happy place of consensus, set out so eloquently by the noble Lords, Lord Wolfson, Lord Banner and Lord Anderson, and the noble and learned Lords, Lord Garnier and Lord Keen. There can be no doubt as to the enormous benefit that your Lordships’ House gains from the presence and participation of former members of the senior judiciary. That benefit is not limited to the contribution of judges. As all the noble Lords I have just listed demonstrate, the contribution of eminent practitioners in the law adds to your Lordships’ House. If I may say so, there was no finer reflection of the contribution made to your Lordships’ House and its importance than the contribution made by the noble and learned Lord, Lord Hope of Craighead.

Before it is thought that I am in competition with the noble Lord, Lord Wolfson, and others for a Private Eye award, there are three reasons why we cannot agree to these amendments. The first is that the Government’s intention is that this is and will remain a single-purpose Bill, to give effect to our manifesto commitment to remove hereditary Peers from participation in your Lordships’ House. I am not going to labour that point because it has been made in respect of so many amendments and was reiterated by the contribution from my noble friend Lord Grocott. We do not consider it appropriate or desirable to seek to piggyback quite separate proposals for reform on to the Bill.

That merges into my second reason. The future composition of your Lordships’ House beyond the proposal in this Bill is a matter best considered in the round. The Government have committed to consult on an alternative second Chamber—and before that, on further reforms—in due course. One can anticipate that it is highly likely that Prime Ministers of all parties will wish to continue to appoint retired senior judges to your Lordships’ House, but, before more comprehensive reform, we consider it appropriate that appointments remain for now at the discretion of the Prime Minister. Of course, if there are to be changes, we entirely accept the point made by the noble and learned Lord, Lord Wallace, that logic dictates that, in respect of judges, it should be extended to Northern Ireland if it is extended to Scotland, England and Wales.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I have my name on Amendment 60. It seems to me that the proposal of the noble Lord, Lord Wolfson, in this regard—the Lord Chancellor having by law to be a Member of your Lordships’ House—is sensible. My noble friend Lord Hailsham’s point is easy to answer. Part of the constitutional pottage made by the Blair Government when they passed the Constitutional Reform Act 2005 was the creation of the Ministry of Justice, with its Orwellian-sounding name. It has not been a happy experience melding the operation of the prison system with the court system, and I suggest that the answer is that that is broken up and the Prison Service returned to the Home Office. Accordingly, there would be no need for a separate Secretary of State for Justice, thus answering my noble friend Lord Hailsham’s point, and the Lord Chancellor could therefore return to this House and protect the interests of the judiciary in the Cabinet. He could indeed also return to being Speaker of this House, which would further guarantee his independence from the Government of the day. That, of course, is for another day, but, at the moment, I strongly support the amendment of the noble Lord, Lord Wolfson.

[Lord Keen of Elie (Con)]

My Lords, I too support the amendment proposed by the noble Lord, Lord Wolfson, with regard to the future position of the Lord Chancellor. Of course, that will not involve the Lord Chancellor sitting as a judge in the future, and I question whether it would involve him sitting as Speaker in this House. However, he clearly does have a role, but one that he can perform effectively only if, as the noble Lord, Lord Wolfson, observed, the office is seen as one of the great offices of state, as it once was; if it is acknowledged as “a destination job”, as he described it, the final step in a distinguished political career. By that means, he could also be appointed Secretary of State for Constitutional Affairs, something that is sorely lacking at the present time. Because responsibility for the constitution is somewhat nebulous within government, and I acknowledge that that has been the case since 2005.

The responsibility is devolved to the Cabinet Office to some extent and to the Ministry of Justice in other respects, and there is a clear case for identifying someone who is in a position to discharge the role of Secretary of State for Constitutional Affairs. A suitable person appointed to such an office would also resume the position that great Lord Chancellors occupied in the past. He would be not only the adviser to government on matters of constitutional nicety, but the moral conscience of the Government as well.

That role is difficult to define until it is absent, and it is a role that a suitable Lord Chancellor sitting in this House would be able to perform, with the strength to speak truth to power—something that has sometimes been absent in executive government in this country, as we have faced various constitutional challenges. I heartily endorse the amendment proposed by my noble friend.