House of Lords: Reform

Lord Marks of Henley-on-Thames Excerpts

Tuesday 21st June 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the draft Bill soon to be considered by the Joint Committee starts from the proposition that, in a parliamentary democracy, the Parliament is elected by the people. Whatever the status of this House relative to the other place, your Lordships’ House is an integral and fully functional part of our Parliament. We may be the subordinate Chamber in a bicameral legislature and our role may primarily comprise scrutiny and revision, but no one can argue that we are not a fully functioning Chamber of Parliament. To use Bagehot’s classification, we are, now at least, fundamentally an efficient rather than a dignified component of our constitution.

That being the case, fundamental democratic principle demands that this should be an elected House, whose composition is determined by the people. Yet while we argue and even fight for the principles of democracy internationally, our own out-of-date and largely haphazard composition derives from a historical mixture of political patronage, merit-based appointment, birth and office in the established church. If “democratic deficit” is the phrase for a failure to live up to the principles of democracy, our composition is paradigmatic of democratic deficit.

The weightiest argument that is said to outweigh democratic principle in this field—a matter alluded to by the noble Baroness, Lady Royall, who personally supports an elected House—is that an elected House would undermine the primacy of the House of Commons. That is the principal argument that I will seek to address, but before I do so it is worth reminding ourselves that this argument is about the primacy of the House of Commons, not about its supremacy.

The whole point of this House is to act as a legitimate check on the powers of the other place. The argument about primacy starts from the proposition that an elected House of Lords would have greater democratic legitimacy than the present House and it is said to follow that a reformed House would feel unrestrained by the conventions that limit the exercise of its powers. It goes without saying that this argument starts from the important concession that the composition of the present House indeed lacks democratic legitimacy. However, the argument about primacy does not take sufficiently into account the law governing the powers of the House of Lords, which is to remain unchanged, nor does it take into account the substantial difference in composition—

[Lord Cormack]

I am extremely grateful to the noble Lord for giving way. Does he agree with the president of the Liberal Democrats that a second Chamber elected by proportional representation would in fact be more legitimate than the present House of Commons?

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

I propose to address that argument during this speech, but I do not agree with it. I will set out my reasons for that in detail.

The primacy of the House of Commons, I suggest, is not affected by the proposals in the draft Bill for a number of reasons. The second of those reasons is that the substantial differences in composition that are proposed between the two Houses, along with the effect that those differences will have on their relative roles and importance, support the primacy of the House of Commons. Nor does the argument take into account the conventions governing the relationship between the two Houses, which, while they may develop, will set the ground rules for how the new arrangements operate if and when the draft Bill is enacted in whatever form.

As to the law, the effect of the Parliament Acts is that this House has no more than a delaying power of one year and no power at all over money Bills. As Members of this House have said many times, the Parliament Acts were all about the powers of the House of Lords in the context of a less developed democracy, where the composition of this House was not in question. However, one should not forget the political importance of the power to appoint Peers, even in that context. The 1911 Act was passed only because of the agreement of George V to create up to 400 new Liberal Peers—not a threat, I note, that the present Government have been prepared to replicate.

Yet the Parliament Acts set conclusive limits to the powers of this House. It follows that the primacy of the House of Commons is founded on the rock of statute and not, as is sometimes implied, on the shifting sands of parliamentary conventions. After all, parliamentary conventions could not and did not prevent this House from defeating the House of Commons on the Hunting Bill and then standing firm. This House maintained its determination not to pass the Bill. The House of Commons then asserted its will, and therefore its statutory primacy, by relying on the Parliament Acts.

[Lord Sewel]

Does the noble Lord accept that the whole justification and rationale for the Parliament Acts was conflict between an elected House and a non-elected House and the reluctance of the elected House to have its will frustrated by a non-elected House? That was the whole argument behind the Parliament Acts.

[Lord Marks of Henley-on-Thames]

Certainly I accept that, but I do not accept that it follows that the Parliament Acts will somehow be changed without further statute because of the passing of this draft Bill, or something like it, concerning the composition of this House. The powers of this House are determined and limited by the provisions of the Parliament Act passed, as the noble Lord suggests, in 1911 for the purpose that he sets out.

[Lord Forsyth of Drumlean]

I wonder whether the noble Lord might reflect on a more recent example, because his argument is that the powers as defined by statute will determine behaviour. I refer him to the Scotland Act, which makes it perfectly clear that the Scottish Parliament will not have the power to call a referendum on independence. Yet the Liberal Secretary of State for Scotland is telling us that we must acknowledge the reality that the SNP has won a majority in that Parliament and therefore that we ought to let it get on with it and not determine the position. Is that not an example of how political reality and lines set in statute come into conflict and that, in the end, the political reality wins?

[Lord Marks of Henley-on-Thames]

My Lords, what happens about any referendum in Scotland is a matter for the future. I have no doubt that the noble Lord will be taking a great part in the argument in relation to Scotland. However, the Parliament Acts are statutes passed by Parliament and they set a clear limit to the power of this House. It is within that framework that this draft Bill will need to be considered.

It is not only statute that would continue to guarantee the primacy of the House of Commons. The structure of the two Houses envisaged in the Bill will do much to reinforce that guarantee. First, the new House would be elected—or elected and appointed—in thirds, which would ensure that only the House of Commons represented the will of the people most recently expressed in a general election. That is because only one-third of the House, or slightly less, would be subject to election or appointment at the time of each general election.

Secondly, following a general election, the new Government would take office on the basis of results of elections to the House of Commons. It follows that Ministers in the Commons and in the Lords would be appointed on the strength of those results. The House of Commons will therefore control the composition of the Executive. Furthermore, the legislative programme will be the Government’s legislative programme and, therefore, dependent on the elections to the House of Commons.

Thirdly—this is particularly the case on the basis of the continuing presence of the Cross-Benchers, if we were to go for an 80 per cent elected House—it is most unlikely, although not impossible, that any Government would have an overall majority in the House of Lords. The likelihood of such a majority is further reduced by a proportional system for the election of Members. A number of noble Lords, often those strongly opposed to proportional representation—the question asked by my noble friend Lord Cormack is perhaps apposite to this point—have argued that election by proportional representation will give this House a democratic legitimacy that the House of Commons lacks. However, as a democrat, I accept the people’s verdict. It appears that the AV referendum result—

[Lord Campbell of Alloway]

My Lords, perhaps the noble Lord will forgive me, but this is the 20th time that he has referred to his concept of democracy. Quite frankly, does he not realise that the people do not understand the Lib Dem concept of democracy?

[Lord Marks of Henley-on-Thames]

My Lords, if I believed that the people did not understand the Liberal Democrat concept of democracy, or our national concept of democracy, I would not be here or arguing here at all. I believe that democracy is about elections and the expression of the popular will; it is about determining the composition of Parliament in a representative democracy on the basis of the popular will. It is as simple as that.

I accept the people’s verdict on the AV referendum, which has ensured that first past the post elections to the House of Commons will be a feature of our democracy for a while yet. I also accept that the electorate regard that as a legitimate system for electing MPs. It is therefore likely that we will have two different systems for election to the two Houses. Of itself, that will not undermine the primacy of the Commons; rather, it is likely to safeguard it. It is also significant, I suggest, that the link between individual Members of Parliament and their constituencies, which lies so much at the heart of our unique representative system, is a factor that will tend to sustain that primacy, because the link between elected Members of this House and their multi-Member constituencies, will, inevitably, be that much weaker.

The final point in this area is that MPs will be able to point to the fact that they are accountable to their personal electorates in having to face re-election. Elected Members of this House, elected for a 15-year single term, will have no such direct, personal accountability. They will still have, as the Leader of the House pointed out, the independence inherent in that system; it is not the same independence that they enjoy on appointment for life, but it is substantial independence none the less. I suggest that that independence is a good thing for the job that this House does.

[Lord Elton]

I know that the noble Lord has taken some injury time for interruptions, but he is now 50 per cent beyond the recommended time. I wonder whether he could draw his remarks to a conclusion so that others can have a fair crack at the whip.

[Lord Marks of Henley-on-Thames]

My Lords, I am terribly sorry, but I have taken a number of interruptions and I have had to answer them. I propose to go on, although I will attempt to draw my remarks to a close when I think that a close is called for.

[Lord Selsdon]

The noble Lord has only recently joined the House—

[Lord Shutt of Greetland]

My Lords, I suggest to my noble friend that the feeling of the House is that he should conclude. I have every sympathy with him in view of the interruptions that he has had to take, but I feel that it is now time for him to conclude, because he has had 13 minutes.

[Lord Marks of Henley-on-Thames]

So be it. Perhaps I may make one more point concerning the conventions of the House. If a future Parliament were of the view that the conventions needed explicitly codifying in order to protect their efficacy, legislation could be brought forward to bring that about, as was proposed in the 2005 Labour manifesto. I suggest that the primacy of the House of Commons is not threatened.