Queen’s Speech

Lord Mackay of Clashfern Excerpts

Thursday 10th May 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the Queen’s Speech contains a number of important constitutional matters. The matter of the royal succession is important and requires to be carefully negotiated with all members of the Commonwealth so that the unity of the Commonwealth, which has been so conspicuous under Her Majesty’s reign, may continue. There are also the proposals on electoral registration. I am disturbed by any suggestion that that should be motivated otherwise than by trying to achieve the fullest possible registration of voters in a proper way. I hope that that would be the motivation of any reform that is put forward. We are faced also with a major constitutional matter in relation to the independence of Scotland and possibly of other parts of the United Kingdom if that should occur. We need to consider those matters with great care.

However, I intend to restrict my remarks specifically to the House of Lords proposals and the proposal to deal with its composition. When William Hague was leader of the Conservative Party, he invited my noble friend Lord Hurd of Westwell and me to consider options for reform of the House of Lords with a view to achieving some kind of consensus. That is now rather a long time ago. I invited, as I was empowered to do, the noble Lord, Lord Richard, and the late Lord Russell to join us, but neither felt able to do so, with Lord Russell explaining that the leadership of his party at the time felt that it might not be desirable. I can well understand those responses because we had been appointed by the leader of the Conservative Party, which had recently suffered a rather severe defeat in the general election. But my noble friend and myself, with the help of Douglas Slater, a clerk here with great experience, considered the various options. The report has been published for a long time and was available to the Government and the Joint Committee, and was no doubt carefully considered.

My central point relates to the relationship between the two Houses. I have no doubt whatever that the primacy of the House of Commons, recognised in taxation particularly since 1671 or so, is founded on the fact that the House of Commons has over the years been elected—no doubt with a rather restricted electorate to start with, but gradually evolving into a general electorate over the whole country. That has given the House of Commons the responsibility, in accordance with the maxim that there can be no taxation without representation, for full control of taxation matters.

Since 1911 and 1949, the House of Commons has also achieved a primary position on general legislation. The true position now is that the elected House can prevent anything going on the statute book with which it does not agree and, after a reasonably short delay, can put on the statute book anything that it steadfastly believes should be there. Sometimes, as we know, as a result of consultations and consideration in this House, it wisely decides not to proceed further, as happened in relation to the process whereby people were detained without any particular procedure being followed. That process was eventually abandoned. However, generally speaking, the House of Commons—the elected House—gets its own way on posited legislation and prevents the enactment of any measure that it does not want. Therefore, I do not see that the undeniable governance difficulties in our country have anything to do with the democratic deficit, as it is sometimes called, whereby ordinary people cannot exert influence through their representatives on the laws which govern them.

The proposal for a fully elected second Chamber requires that the second Chamber, being fully elected, should have democratic accountability and democratic legitimacy. Therefore, I do not see why it should not be given the same authority as the other House, which is directly elected. That seems to me a fundamental point, which is well made by the Joint Committee. I say to the noble Lord, Lord Richard, who is now in his place, that I very much appreciate the clarity of the Joint Committee’s report, which constitutes an important development. The same sentiments apply to the alternative report, which was compiled by members of the same committee. It is not possible to print it as a government paper because of the desire for unanimity by the House of Lords, if possible. However, it was printed using government resources and is available in the Library. It seems somewhat unnecessary to make a distinction in this regard. Indeed, my remarks about the clarity and utility of the main report apply also to the alternative report. We are all extremely grateful to the members of the committee for giving a great deal of their time, effort and expertise to frame the report.

The report records the opinion of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, that the Parliament Acts would not affect the situation if the House of Lords—the second Chamber—became a fully elected Chamber. I firmly agree with that opinion as you have only to read the preamble to the 1911 Act to appreciate that the House of Lords did not operate on a popular basis at that time. I have no doubt that if it were fully elected it would operate on a popular basis, and we would have two fully elected Houses with full democratic mandates, given that we have universal suffrage throughout the nation. The Joint Committee recommended that if this were to happen it would be right to introduce legislation to distinguish clearly between the powers of the two Houses. I entirely agree with that but legislation needs to be based on reason. I see no reason for legislating to restrict the democratic authority of the second House, if it has a full democratic mandate, but to leave untouched the democratic authority of the first House.

[Lord Hunt of Kings Heath]

I am most grateful to the noble and learned Lord for giving way. If you accept the primacy of the Commons as the first base of the constitutional arrangement, it would still be possible to have two elected Houses provided you were able to set out their respective powers. However, inevitably, despite the universal mandate that would arise from the fact that people can vote for the second Chamber, it would none the less still be secondary to the primary Chamber, if it were so ordained through legislation.

[Lord Mackay of Clashfern]

I am saying that the legislation needs to have a reason behind it. It is all very well to legislate, and I know that from time to time we see legislation which some of us think does not have much reason behind it, but on the whole we regard it as rather important that legislation which reaches our statute book should be grounded in reason. If the democratic mandate is the same for both Houses, it is difficult to see a reason for distinguishing between their democratic authority.

[Lord Wills]

I am grateful to the noble and learned Lord for giving way. Is it not possible to conceive of a democratic mandate for a revising and scrutinising Chamber? That is precisely the reason for it. It is not necessarily an inferior role, just a different role. That is what needs to be placed in the legislation. I think that most noble Lords who have spoken so far agree with that.

[Lord Mackay of Clashfern]

That is tantamount to asking that the second Chamber be elected not to exercise full democratic authority but to have the authority only to do certain restricted things. That is not exactly an issue although it is certainly a possibility. I have never stood for election on the basis that we are discussing so I do not speak from great experience. However, I think that it must be a little difficult to stand for election if your election would result in your having very restricted authority. One could say, “My policies will not matter tuppence because the policies will be determined by the other electorate”. Such an outcome is possible in theory but would be difficult in practice. This issue has to be faced at some point and dealt with either by restricting the authority of those elected to the second Chamber in some way or by some other method. The other method one could use is that of introducing arbitration between the two Chambers, which has been hinted at in previous speeches. This is the absolutely fundamental and central point and has to be dealt with before we seek consensus when we are not sure what the consensus is supposed to be about.