Higher Education and Research Bill

Lord Norton of Louth Excerpts

Report stage (Hansard - continued): House of Lords
Monday 6th March 2017 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I support Amendment 57. At earlier stages of the Bill I have welcomed the provisions of Clause 13, which provide that the Office for Students can generate student protection plans. That is to be welcomed but, as the noble Lord indicated, the problem is that we do not know what form that protection will take and more needs to be set out on the face of the Bill. I moved an amendment in Committee to try to address this issue but, at that stage, the Government were not receptive. Therefore, we really need to come back to it.

As the noble Lord said, it is the Office for Students—students are meant to be at the heart of this measure, yet they will have no idea of what protection they have when they undertake a course of study. When it comes to protection, Clause 13 gives the example of a course failing to be provided. So precisely what protection is being accorded to students? They need that reassurance if they are to sign up for and pursue courses in the first place. Amendment 57 gets at this problem and I welcome the fact that we are again considering it. As I said, students deserve to have some idea of what protection they will have when they undertake a course of study.

[Baroness Wolf of Dulwich]

My Lords, I support the amendments to which I have put my name and agree with everything that both noble Lords have said so far.

When the Higher Education and Research Bill was first introduced, both Ministers pointed out that the environment in which higher education takes place has changed dramatically in recent years, and indeed it has. Very large numbers of students now take out large loans in the belief, and with the confidence, that the institutions they attend have in some sense been guaranteed by government—that what they are doing is safe in that they will be able to complete their studies. Fortunately, in most cases that is true, but of course it is not always or necessarily true. Anybody who looks at the experience in other countries will realise that institutions do fail, and indeed some of our non-degree-awarding institutions have failed in the past. The Competition and Markets Authority says cheerfully on its website that the sign of a healthy sector is that some exit occurs. Exit sounds quite cool—unless you happen to be one of the students in an exiting institution.

At the same time as this Bill is going through, the Technical and Further Education Bill is being debated, mostly in the Moses Room. As I attend the sittings of both Bills, part of the time I whinge but mostly it is a very informative exercise because we now have a tertiary sector as much as anything else. However, the protections being introduced for students in further education colleges go well beyond anything that has been specified for students in higher education, and that is highly regrettable. It is really important that in this new and changed environment, we realise that students need new and changed protection.

To give an example, for a long time the training sector has had many quite small, and sometimes quite large, rapidly changing institutions. Just before these Bills were introduced in the House, we heard the first story of a training provider that went into liquidation, leaving many people with outstanding loans and no obvious recourse. In the few weeks that both Bills have started to work their way through the House, there have been two other such failures. I shall be happy to give their names to anyone who is curious to know them, but, once again, we are left with, in this case, adult learners who have loans but no ongoing course.

When I raised this issue with the Minister and officials, I was told that the risks were lower for university students because they were more mobile and less local. However, that really is not true. It is not true of my own, but it is true of many of our university institutions that they have home students who are almost all highly local—often because they come from less advantaged families and are very unhappy about taking out major maintenance loans. So they are very local, and if their institution fails, they do not have anywhere else to go.

I hope very much that Ministers feel able, ideally, to accept Amendment 57, which seems to me the least that we can do in an environment where we are, in effect, making a promise to students. If it turns out that, for good reasons, that promise cannot be kept, they ought to be looked after.

House of Lords Reform Bill [HL]

Lord Norton of Louth Excerpts

Friday 3rd February 2017 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, my noble friend Lord Cormack had planned to speak in today’s debate, but regrets that he is not able to be here as he is indisposed. As this is a Second Reading debate, I intend to focus on the principle of the Bill. Before I do, I want to comment on the extent of the views of the public on the issue of reform. There is a general assumption that people are keen to change your Lordships’ House and I want to put that into perspective.

I would remind noble Lords of a Populus poll a decade ago which put different options on reform of the Lords. In respect of the proposition that at least half the Members of the House of Lords should be elected so that the upper Chamber of Parliament had democratic legitimacy, 72% agreed. On the proposition that the House of Lords should remain a mainly appointed House because that gave it a degree of independence from electoral politics and allowed people with a broad range of experience and expertise to be involved in the law-making process, 75% agreed in the very same poll.

Another poll a decade ago asked the public what they thought were the important factors in determining the legitimacy of the House of Lords. The most important was trust in the appointments process, with some 76% rating it as very important. The next was that this House considers legislation carefully, which 73% thought was very important. The third was that many Members are experts in their field; 54% thought that that was important. That the House acts in accordance with public opinion; 53% thought that was important. Only then do we get to some Members being elected by the public, which only half thought was important.

In other words, the public give priority to what the noble Baroness referred to in terms as “output legitimacy” rather than “input legitimacy”. They would rather retain the functions of the present second Chamber than give priority to the election of its Members—and it is that principle I will focus on because the noble Baroness quite rightly distinguished between input and output legitimacy. I want to challenge the point about input legitimacy and make the case that one can argue for the existing House based on that very legitimacy.

It is all too easy to generate a scheme for reform of this House. Plenty of people come up with a pet scheme, often thinking that they are the first to propose indirect elections through learned societies or direct elections through regional elections when in fact they are only the latest in a long line of people who have thought of such a scheme. In effect they are starting at the end, not at the beginning. They do not begin from first principles. Why do we need reform—or rather, why do we need to introduce an elected second Chamber?

The proponents tend to take the reason as being self-evident—to some extent this was apparent in the speech of the noble Baroness—and, because it is deemed to be self-evident, they focus on the detail rather than seeking to justify the principle. Election of the second Chamber is offered as the democratic option. The problem with that is that it is not self-evident at all. It is possible to argue that an elected second Chamber is not necessary for the purpose of having a democratic political system. Indeed, I shall develop the case that having an appointed second Chamber actually helps to protect the accountability at the heart of a democratic polity.

Democracy is a contested concept, but if we take its roots, demos and kratos, we have rule of or by the people. It refers to a form of government other than that of monarchy or aristocracy. The key point is that it refers to a body that is to govern—one derived from the authority of the people. In essence, it is about how people choose to govern themselves. There are different ways in which they may choose to do that. We are too large a nation to have direct democracy, so we pursue a western model of liberal and representative democracy. In our system, people choose who is to form the Government though elections to the House of Commons. The party gaining an absolute majority of seats is invited to form a Government. The Government are then responsible for implementing their programme of public policy. Despite what some critics may say, parties in government do not have a bad track record of implementing manifesto promises. In any event, the people know that there is one body, the party in government, responsible for public policy and that the body can be held accountable for that policy. The people can reward or remove that party at the next election. We have what has been termed a system of representative and responsible government.

Our existing second Chamber, which is this House, does not challenge the core accountability that is at the heart of our political system. Ultimately, those elected by the people can get their way. In this House we focus on means, not ends. We are a complementary, not a competing, second Chamber. The United Kingdom thus get the benefits of a bicameral legislature without undermining the accountability that is at the heart of the political system. This House adds value by fulfilling functions that the other House does not have the time or the political will to fulfil, but without challenging its fundamental role in our political system.

Electing a second Chamber, far from enhancing democracy, could undermine the very accountability at the heart of the political system. It would create a Chamber that might not necessarily be equal with the first but would have the basis for demanding more powers, as well as utilising the powers of this House that are presently not used. Election would kick away the rationale for the Parliament Acts. They might remain on the statute book, but the moral basis for them would disappear. Indeed, there is no reason why the noble Baroness’s Bill should not include a clause repealing the Parliament Acts, because it removes their raison d’être.

An elected second Chamber would be in a position to challenge, and compete with rather than complement, the first Chamber, which we could no longer refer to as the elected Chamber. Conflict between the Chambers would, if experience elsewhere is a guide, have the potential to produce deals that would favour not necessarily the electors but parties or special interests, and could be agreed away from the glare of public observation. It would undermine the accountability at the heart of our political system. Electors would not know who to hold to account for outcomes of public policy. There would no longer be one body, the party in government, responsible for public policy.

I will quote my colleague Professor Colin Tyler, a specialist in democratic theory. Giving written evidence to the Joint Committee on the Draft House of Lords Reform Bill, he stated that,

“democratising one part of Parliament (the Lords) will reduce the democratic character of the whole (Parliament). And ultimately it is the democratic character of Parliament that matters, not the democratic character of its constituent parts considered in isolation from each other”.

Thus I regard the Bill as being flawed in principle—and even those who do not are likely to find it problematic. It follows the Parliament (No. 2) Bill of 1969 in creating voting and non-voting Members. The criticisms of the proposal are as germane now as they were in 1969. On that occasion, the Labour MP Willie Hamilton tabled an amendment to remove the distinction between voting and non-voting Peers. He objected to the two-tier membership, summarising his key contention in a memorable phrase:

“It seems that a voteless peer would be as impotent as a castrated tomcat”.—[Official Report, Commons, 19/2/69; col. 481.]


In his view there would be first-class and second-class Members. The noble Baroness said that we have that at the moment because there are people who attend and those who are not so regular in their attendance—but everybody is none the less equal in terms of their status in this place.

It is not clear what benefit would derive from having non-voting Peers, not least from the perspective of government. Ministers would know that they constitute no threat. We have enough difficulty as it is using the threat of voting against the Government to get a Minister to pay serious attention to proposed amendments. Having voting rights gives one a capacity for some leverage; without them, one is no threat to government. There is thus a serious debate to be had as to whether the provision for non-voting Peers should remain in the Bill. One could argue that one should either confer voting rights or remove the Members altogether from the House.

There are other provisions that clearly merit critical debate, but my detailed concerns can be pursued in Committee. My principal objection is that the Bill is built on weak foundations. Once those foundations give way, the edifice collapses.

--- Later in debate ---

[Lord Scriven (LD)]

My Lords, I am pleased to follow the noble Lord, Lord Campbell-Savours, who, in his own way, has tried to bring clarity to a very complex situation in House of Lords reform. I thank the noble Baroness, Lady Jones, for bringing this Bill forward. It is very important, and I will explain why in a moment.

I shall preface my comments by saying that noble Lords and this House do some very good work. Since I have been here—I am one of the newer Members of this House—I have often been asked how I would describe the House of Lords. I say, “A vacuum cleaner”. People look at me rather strangely, and I say, “Because it cleans up a lot of dust and dirt in the legislation that comes from the other place and passes it back much cleaner and with much more clarity”.

However, being a good vacuum cleaner is not good in terms of a modern, outward-looking, functioning democracy, and therefore I shall start where the noble Lord, Lord Norton of Louth, started. There is a matter of principle here. In a modern democracy, the people should elect those who make, reform and review their law. It is a matter of fundamental principle. I noticed that in quoting what the public want the noble Lord, Lord Norton of Louth, used statistics that are a decade old. I shall bring to his attention and that of the House the fact that there are many newer surveys. A Survation poll in 2015 showed that only 12% of those polled supported the status quo of a wholly or predominantly appointed House. Another poll done in the Midlands in 2015 showed that 52% of the electorate said that they wanted a wholly democratically elected House and only 28% said that Members should be appointed by experience or knowledge. An i-Say online poll in 2014 showed that 60% of respondents wanted a wholly democratically elected second Chamber and only 34% wanted the status quo.

[Lord Norton of Louth]

The noble Lord is quite right that if citizens are offered a dichotomous choice, that is what they come up with. That is fairly consistent. When they are given a range of options, not least between input and output legitimacy, you tend to get very different views. It all depends. My point was that it depends on how you phrase the question.

[Lord Scriven]

Indeed, the noble Lord is correct. When you give the public a loaded question, as in some of the examples that he gave, the response is the same. All I am pointing out is that using data that are 10 years out of date does not help the debate.

That comes to my other point which is about expertise. Sometimes the expertise in this House is up to date and very good, but sometimes it might not be up to date.

When we talk about that matter of principle and what the public say, it is quite important that we understand that there is a need to see what they are saying. I came here because of what happened when the coalition Government tried to reform the House of Lords. I did not want to be a Member of your Lordships’ House until then, but when I was asked by the then Deputy Prime Minister, Nick Clegg, I said yes because I genuinely believed in the concept and principle that this House should be democratically elected. I took the view that it was all right for me to be outside the House saying that, but sometimes you have to step up to the plate so that your vote counts and you can make the reform that you wish to make. I have to say that my opinion has been strengthened since I have been here, even though I do see some good work in the House.

It is quite strange that in 2017, in a modern democracy, we have a House of patronage and privilege. It is quite amazing. Our approach until now has been to tinker, and although I respect the work that the Lord Speaker’s committee is doing and the view of the House that we should reform, it is tinkering with what for me is fundamentally wrong with the House in terms of principle. It is like looking at a modern highway system, where people are talking about using electronic and driverless cars, while we are talking about which different carriage to put on the horse. It is not appropriate just to talk about reducing the numbers in the House. The Bill puts the concept of democracy and an elected House very much in the spotlight, and that is why I support it.

However, the Bill can be improved. I shall not go over arguments that have already been addressed, but I feel that having a group of Members who are not elected but can stay here causes problems, in terms of both size and logistics. That part of the Bill needs looking at again. I also want to mention the voting system itself. This is where, as a Liberal Democrat, I put my anorak on and start talking about different proportional systems. Your Lordships would expect a Liberal Democrat to do that, but I believe that the voting system in the Bill needs to be changed because, as a lot of people say, the list system gives power to the parties rather than the electorate. It is the party that decides where and how somebody goes on the list, and therefore it is more or less a party choice who gets there. I support the multi-member single transferable vote system, because that gives real power to people to have a choice—not just of one person but of a number of people who they might wish to give a preference to. They can choose between parties and between party and non-party. If someone has an expertise in or relevance to that region, people can choose them and have the power to rank them. The make-up of the House would be very different and there would be less power in the hands of the parties than if we stuck to the list system. It would allow the electorate to have a voice in giving a preference to people who were not just on the party list. I support that.

Another issue that keeps getting raised is the power of the House, and the suggestion that there will somehow be a constitutional crisis if the House is democratically elected. Let us be very clear: if the House was democratically elected, there would not be a constitutional crisis around the breakfast tables in Sheffield, Sunderland or Southend. The world would continue. The evolution of our democracy and this House would continue. That is the way that we work. This democracy and this Parliament do not sit in isolation, and there are many examples across the world of bicameral institutions where the second Chamber is elected. There is an extremely good study by UCL which looks at them. There are 58 Parliaments across the world with a second Chamber, and 24 of those are directly elected—24 out of the 58. Are we saying that across the world there are 24 Parliaments that cannot and do not function, do not have rules about checks and balances, and cannot do things? The two Parliaments that always get talked about in terms of deadlock are those of Italy and, particularly, the USA, but interestingly, those are the two Parliaments specifically where the second Chamber either has equal powers or, in the case of the US in some areas, more powers. That is what creates that deadlock. No one here is talking about significantly changing the powers of this House in terms of being a reforming and revising Chamber. I agree with the right reverend Prelate the Bishop of Norwich that we will have to look at some powers within that but I am not of the view that this creates either a deadlock or a constitutional crisis, and examples around the world prove that to be the case.

In fact, I argue that this might naturally strengthen democracy, as the democratically elected second Chamber could flex its muscles accordingly. Since I came to this House, I have been amazed by how many times this House backs away from acting on a matter of principle because it is afraid of what the other House might say. If we had a democratically elected House, with very clear powers, as I have explained exist in 24 countries around the world, that would give us the flexibility to flex our muscles appropriately and prevent a democratically elected dictatorship through the Executive being able to get their will when and how they it want in both Houses of this Parliament. I think a second elected Chamber could increase democracy, hold the Executive more to account and give the voice of the people a greater say in their democracy.

I shall come back to one other issue before I wind up. By having a second elected Chamber, we would have a whole new cadre of career politicians. As I said, with STV that would not necessarily be the case, but I would also like to look at a right of recall. I support a limit of one term; we can argue over whether it should be eight, 10 or 15 years. I support the idea that there needs to be accountability in the Bill. If there is to be just one term, there has to be some right of recall if someone does something wrong, so that even within that term the electorate can have the person they elected recalled. Their elected representatives cannot just do what they want when they want without having some accountability to the electorate that they serve.

I support the general thrust and principle of the Bill. As I have said, it could enhance the democracy of our Parliament. It could still mean that we had a different voting system and a mixture of people in this House. For me, it is a matter of principle that it is accountable, elected and answerable to the people we serve and make laws for. It could also hold the Executive more to their mandate than this House does at times because it is afraid to flex the muscles that a democratically elected second Chamber, within the powers specified, would have.

Parliamentary Proceedings: Statistics

Lord Norton of Louth Excerpts

Wednesday 18th January 2017 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I too congratulate the noble Lord, Lord Butler, on raising this important Question. I appreciate that the Question addresses quantity, in terms of the time devoted to consideration of a Bill, rather than the quality of debate, but without adequate time it is difficult if not impossible to subject a Bill to adequate scrutiny.

It is important to acknowledge that there have been improvements in the legislative process in each House. The use of pre-legislative scrutiny is a notable advance, albeit limited in terms of the number of Bills subject to such scrutiny. The use of Public Bill Committees in the Commons is an improvement on what existed before. In this House, the main advance has been in the use of ad hoc committees for post-legislative scrutiny. We should recognise that there is more we could do to improve the quality of our legislative scrutiny, not least employing evidence-taking committees.

Providing the data recommended by the noble Lord, Lord Butler, would be helpful, for the reasons he has given. As he said, they are not difficult to provide. For the Commons, the Sessional Diary provides the timings for each stage of a Bill, so it is a fairly straightforward task to reproduce the data for each Bill once it has completed its passage. I want to add to what the noble Lord, Lord Butler, has recommended. There is a case not only for publishing in the Explanatory Notes on an Act the time taken to consider the stages of the Bill, but for publishing in the Explanatory Notes to regulations the time taken for debate on those regulations.

Of course, the key point is not how much time is devoted to discussing regulations but rather the fact that most statutory instruments are not accorded any parliamentary time. In terms of consideration, as opposed to debate, the contrast between the two Chambers is notable, given that we have the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee to examine the input and output side of statutory instruments, and the other place has no equivalent bodies.

On the rare occasions that SIs are debated, little time is taken. In the other place in the previous Session, just over seven hours were devoted in the Chamber to the consideration of statutory instruments subject to the affirmative resolution procedure and a grand total of 22 minutes to statutory instruments subject to the negative resolution procedure. The normal practice is to refer SIs to a Delegated Legislation Committee, but it is rare for a Committee to sit for more than 30 minutes. I noticed that one in the previous Session sat for a grand total of 11 minutes. Ruth Fox of the Hansard Society has drawn attention to the fact that prayers against SIs tabled by the leader of the Opposition or a Front-Bencher are not automatically debated in the House; in the previous Session only five out of 19 were debated. In this House we spent a total of 67 hours on secondary legislation, either in the Chamber or in Grand Committee, but that figure is notably lower than in preceding Sessions.

The Question of the noble Lord, Lord Butler, provides a useful nudge, emphasising the lack of attention given to ensuring full and adequate scrutiny. It highlights a problem rather than tackling it, but it reminds us of the need to tackle it.

House of Lords Act 1999 (Amendment) Bill [HL]

Lord Norton of Louth Excerpts

Friday 9th September 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I commend the noble Lord, Lord Grocott, for introducing this Bill. It is a short Bill and, as I shall argue, a fairly modest one in terms of what we need to do to address the membership of this House, not least in terms of how Members leave and, most importantly of all, how they are appointed to this House.

I have previously spoken in support of what this Bill seeks to achieve. It comprises one part of the original House of Lords Reform Bill, introduced by the noble Lord, Lord Steel of Aikwood. That is a relevant point to which I shall return.

The case for closing off the by-election option for hereditary Peers has been made by the noble Lord, Lord Grocott. It is difficult to defend the process, although not impossible, in that it is a process independent of party leaders. It brings in some able and independent-minded people. The hereditary Peers who are in the House are able, hard-working and effective Members. However, that has to be offset by how the process of them becoming Members is seen. As the noble Lord, Lord Grocott, said, it is essentially past its sell-by date in terms of public acceptance.

I have argued the case before that closing off the by-election option does not prevent able hereditary Peers being appointed to this House. Following the enactment of the House of Lords Act 1999, more Labour hereditary Peers were brought back as life Peers than were returned as elected hereditary Peers. However, the procedure creates problems on this side of the House. I have previously made the point that for Conservative hereditary Peers the by-election is as much a block as it is an opportunity, since in practice it prevents able Peers coming in until such time as there is a death or retirement. They are not considered for life peerages but, instead, are left to take their chances when a by-election occurs.

I think therefore that some of the worries expressed about this Bill are misplaced. I would, though, have liked to have seen the Bill as part of a wider reform Bill. That was the point of the Steel Bill. There was a linkage between the provisions. Putting the independent Appointments Commission on a statutory basis would enable its independence to be protected. There is a route by which Peers can be brought into the House independent of party patronage—through the Appointments Commission—but that route needs some statutory underpinnings.

I also see the Bill as part of a wider process of addressing not just the size of the House but the process of appointment. The Bill covers both elements in that it closes off one method of joining the House and, in time, will result in a reduction in the number of hereditary Peers in the House, indeed logically and ultimately leaving only two—the two who are Members ex officio.

I would like us to go further and address not just hereditary Peers but life Peers joining the House. An Ipsos MORI poll in 2007 asked people what factors were most important in determining the legitimacy of the House of Lords. Having some Members elected by the public came some way down the list, at five out of seven. At the top of the list was “trust in the appointments process”. Excluding don’t knows, 76% of respondents rated that as very important and 19% as fairly important. Second on the list was that,

“the House considers legislation carefully and in detail”.

Therefore, we need to address the input side of membership. We have already achieved the enactment of a Private Member’s measure, the House of Lords Reform Act 2014, to enable Peers to retire—more than 50 have now done so—but, as Peers retire, new ones are created. We need not only to reduce numbers but to ensure a more rigorous appointments process, giving the Appointments Commission the power to vet all nominees for suitability—ensuring that they meet a high-quality threshold, as well as reflecting the diversity of the United Kingdom.

This Bill therefore is not the answer but, rather, part of the answer. I hope that the House will agree to its Second Reading and indeed its other stages, and that the Government will recognise its merits and seek to facilitate its passage.

--- Later in debate ---

[The Earl of Erroll (CB)]

My Lords, I rise in the gap to make a couple of quick points because I remember the entire debate around the passing of the 1999 Bill very well. In fact, I sat on the Cross-Bench group which produced some thoughts in response to the legislation. It could not be a representative Cross-Bench group but a significant number of us thought that it produced some useful contribution to the debate.

The major point that I remember from the 1998 debate was about further democratic reform of the House of Lords. Those key words—further democratic reform—form what we were left here to ensure. It was constantly referred to then because it soon became apparent that there was an argument between the democrats, who believed that the House of Lords should be elected, and the Commons supremacists, who were terrified of losing the greater power of the House of Commons. It is interesting that five ex-MPs have spoken today in this debate, if not all speaking the same way. I have the honour to serve as one of the hereditary Peers who were elected to stay here and ensure that further democratic reform. That is my basic position, which is why I cannot possibly support the Bill.

There is almost a touching naiveté about the second Chamber group believing that, if we have this incremental reform, there will be an incentive for proper reform in the future. All it will do is to erode slowly bits and pieces of the powers of this House. We will lose our effectiveness to challenge the Executive and Government of the day, as we have to do. We saw this in the rows about secondary legislation the other day, where it was suggested that the House of Lords should have its power to do anything about that removed, so there is this gradual erosion.

I shall finish with a couple of quick points. I think that the noble Lord, Lord Norton, said that an heir cannot be appointed to the House of Lords as a life Peer. They can; I do not think that there is any bar on an eldest son or daughter being appointed.

[Lord Norton of Louth]

No.

[The Earl of Erroll]

If there is not, that is good. I thought that there was not.

It amused me that the noble Lord, Lord Rennard, referred to the election of the hereditary Peers not meeting a democratic standard. I am pleased that he approves of democratic standards and will therefore approve of only further democratic reform of the House of Lords, not an appointed House. I also noticed that the noble Lord, Lord Anderson, suggested that if we were to go down the route of getting to the House of Lords that many other people use, you basically have to be useful to a Prime Minister. I am not sure whether that is the right way to get here. However, I was glad to hear that the noble Lord, Lord Haskel, approves of an elected House.

The point of all this comes down to what the noble Lord, Lord Elton, said, which was absolutely key: that we are watching control of the legislature by the Executive gradually creeping in. He may not have used those exact words but that is what it is. We watch this whenever Ministers in the House of Commons, who are heads of executive departments, think that they are more powerful and important as that than as Members of Parliament, controlling themselves as members of the legislature. We forget that at our peril. The real problem with an appointed House is: who will control and appoint the Appointments Commission? That is the key to the problem because if the Executive get control of it, they will have control of both Houses.

Lobbying (Transparency) Bill [HL]

Lord Norton of Louth Excerpts

Friday 9th September 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I congratulate the noble Lord, Lord Brooke of Alverthorpe, on bringing this Bill before the House. It addresses the glaring and predictable deficiencies in Part 1 of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act. Indeed, the Bill would be worth enacting even if it were confined to Clause 11.

As I said in a debate in Grand Committee yesterday, if the short title of an Act was subject to the Trade Descriptions Act, the Government would not have a defence in respect of the title of the 2014 Act. The Act, as I pointed out when we debated the Bill, does not provide for transparency of lobbying. It deals with the person: the lobbyist, not the activity of lobbying. It is not geared to enhancing transparency. If anything, it provides less transparency than the self-regulating system that preceded it. A more accurate title for the first part of the Act would be “The registration of some lobbyists”. That would be it. Even the Long Title qualifies the scope. It is so narrowly drawn that most of those who engage professionally in lobbying do not fall within its scope.

The 2014 Act does not deliver on what my noble friend Lord Lansley said was the purpose of the Bill when he introduced it on Second Reading in the other place. It does not give effect to the principle that he enunciated,

“that the public should be able to see how third parties seek to influence the political system”.—[Official Report, Commons, 3/9/13; col. 169.]

It covers only some third parties and does not deal with the how, only the who. What has the Act done to make lobbying more transparent? We know the number of lobbyists who have registered under the Act; it is far less than the Government predicted. But even if the number had been in line with Government predictions, there is still the question: so what? I return to the question: what has it done to make lobbying—the activity—more transparent?

If we really want to make lobbying more transparent, then the answer lies with the amendment to the Bill which I proposed on Report. It stipulated that:

“A Minister of the Crown, at the time of making a statement relating to any of the matters referred to in section 2(3)(a) to (d), shall publish details of any oral or written communication received in respect of that matter by the Minister of the Crown, or civil servants within the Minister’s Department, or a special adviser”.

That amendment was designed to link lobbying to the policies produced by government. One could link the lobbying with the outcomes. That was clearly a step too far for the Government, who resisted the amendment in the Division Lobby. The Minister, the noble and learned Lord, Lord Wallace of Tankerness, did so essentially on the grounds that it was too much trouble—never mind the principle, feel the workload.

The Bill of the noble Lord, Lord Brooke, does not go quite as far as my amendment but it certainly goes in the right direction. It not only widens the scope for registration but addresses activity. In this regard, Clause 5(2)(f), and Clause 6 are especially welcome. The former requires the subject of lobbying to be reported, so we would start to learn not only who is lobbying but on what Bill or policy. Clause 6 provides for the information to be supplied at quarterly intervals, so we would start to get some dynamic of the activity. That is completely lacking in the existing legislation.

The Bill before us addresses those who engage in professional lobbying. I seem to be reading a different Bill to that read by my noble friend Lord Lansley and the noble Lord, Lord Beith. We have a definition of lobbying in Clause 2 but they, particularly the noble Lord, Lord Beith, seemed to omit to say that it is then qualified by Clause 4(3). As I read it, virtually all the people mentioned by the noble Lord, Lord Beith, would not be caught by the need to register. It is more limited than has been suggested. It would require registration by those who are professional lobbyists and paid at a certain level. The point has been made that the demands might be quite onerous but I do not think they are too onerous. Clause 6(3) tempers Clause 6(2), so that one would get some idea of the sums spent on lobbying but not in the sort of detail that is unduly burdensome.

If I were to quibble about the provisions, my concern would be about the commencement in Clause 12. I am not sure I would leave it to Ministers to determine when to bring the provisions into effect. There are too many provisions of Acts passed in recent years that have still not been commenced. I would have been inclined to provide that Sections 1 to 11 come into force on a specified day, say six months after the day on which the Act is passed.

The existing Act has not really achieved anything. Perhaps my noble friend Lady Chisholm, in replying, can tell us the cost to the public purse to date of the Act and what assessment the Government have made of its effect. Do the Government judge that the 2014 Act has delivered value for money and, if so, how? If not, what do they plan to do? If the Act is having no appreciable effect on public awareness of lobbying of government, if it is not providing the sort of limited but very important effects that the noble Lord, Lord Bew, identified as being delivered by transparency, what possible justification is there for maintaining the register? I know it has not been in existence for that long, but it has been in existence long enough to determine that it is not achieving, and is not likely to achieve, any discernible public benefit. Maintaining the register as it stands serves no clear purpose. One can either scrap it—just take Clause 11 of the Bill—or one can, in effect, replace it with a Bill that is designed to deliver some transparency in lobbying. If the Bill before us is not that Bill, the onus is on the Government to produce a better Bill.

Finding fault with the Bill before us and doing nothing else will not be acceptable. If the Government do not move in the direction of accepting this Bill, I may be minded to bring one forward to give effect to the amendment I moved at Report stage of the Government’s Bill. I trust that that may help concentrate the mind of my noble friend the Minister, for whom I have the highest regard. If the Government believe in transparency in lobbying, now is the time to show it.

Queen’s Speech

Lord Norton of Louth Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I wish to address constitutional issues. The gracious Speech makes reference to several. In the time available, I wish to comment on what is in the speech and, more importantly, what is not, although the various references lead to my concern with what is missing.

The references to constitutional issues in the speech are several, but they are rather disparate, both in what they cover and where they are to be found. In the Explanatory Memorandum accompanying the speech we find a section headed “Constitutional Affairs”. It contains no reference to the proposal for a British Bill of Rights; that is to be found in the section entitled “Strengthening our National Security”.

The Speech includes the statement:

“My Government will hold a referendum on membership of the European Union”.

That statement is not included in the Explanatory Memorandum. More worryingly to my mind, which will lead to my general observation, is the language in which it is couched. Governments have no intrinsic power to hold referendums. They can propose referendums, they can initiate legislation to provide for a referendum, but it is Parliament that provides the authority for the holding of a referendum.

That may seem a pedantic point, but it leads to the wider problem that I wish to identify. In their approach to constitutional issues, the Government are following in the footsteps of their predecessors: the Labour Government returned in 1997 and the coalition Government. That is, they are bringing forward measures of constitutional reform but without any clear intellectual approach to constitutional change. The Labour Government implemented major reforms, but the reforms were justified on their individual merits. There was no intellectually coherent view, no overarching theory, that determined the type of constitution they were seeking for the United Kingdom. The then Lord Chancellor, the noble and learned Lord, Lord Irving of Lairg, admitted in terms in a debate in December 2002 that there was no all-embracing theory. The coalition Government clearly had no coherent approach, given that the coalition was formed by two parties that took diametrically opposed views to constitutional change. The constitutional measures that were introduced were the result of concessions or compromise.

With the return of a Conservative Government last year, one may be forgiven for thinking that we would see a Conservative approach to constitutional change. There is a Conservative view of the constitution and, indeed, of the purpose of law. However, what has been brought forward to date, and what is proposed in the gracious Speech, has comprised disparate and discrete measures, exhibiting a somewhat cavalier approach to the constitution and the understandings that underpin that constitution. It is important to stress that the constitution is greater than the Government of the day, and not the other way round.

The Scotland Act, enacted at the close of the last Session, illustrates the problem. Sections 1 and 2 of the Act not only fly in the face of the Cabinet Office’s own guidance on drafting legislation but are at complete variance with what Conservatives view as to the purpose of law. The problem is illustrated more broadly, and more worryingly, in terms of the relationship of devolution and the decentralisation of power to different parts of England. Little connection is made between the various changes. We have a patchwork quilt of responses to differing pressures. There is an absence of a clear, coherent, Conservative stance. We are playing catch-up rather than embracing a clear view of what form our constitution should take.

I therefore have just two questions that I wish to put to my noble friend Lord Bridges. I do not ask him to justify each of the measures of constitutional change that are embodied in the gracious Speech; we will get the justification for each when the relevant Bill is brought forward. What I would like my noble friend to do, and this is clearly the occasion on which to do it, is, first, to put on record the intellectually coherent approach taken by the Government to constitutional change, and, secondly, to detail the mechanism within government for ensuring that it is delivered.

There is a Political and Constitutional Reform Committee of Cabinet, chaired by Oliver Letwin. However, in evidence to the Constitution Committee last year, Mr Letwin said that in practice it is concerned with devolution, not the constitution qua constitution. Issues of the rule of law, he made clear, were not for that committee. Can the Minister confirm that that remains the case and, if so, explain how the Government intend to ensure that constitutional change is put within a clear framework of Conservative thought? We have a Conservative Government, and I look forward to hearing from my noble friend how they plan to live up to their name.

--- Later in debate ---

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, I am very honoured to wind up this debate on the gracious Speech. It is my first time of doing so. I am very grateful to all those who have contributed and made such magnificent speeches. I include in that the noble and learned Lord, Lord Falconer, despite his jibes about blue on blue attacks. Indeed, I remember very well—far too well—the period when I worked for John Major in Downing Street from 1994 to 1997. Having seen a few leadership plots in my time, I say gently to the noble and learned Lord that people in glass houses should not throw stones.

I will endeavour to respond to as many points as possible. I hope that noble Lords will forgive me if I do not respond to all of them. I will endeavour to make sure that either my department or the relevant department responds in writing. The noble Baroness, Lady Hayter, made some extremely incisive points about the need for joined-up government. Of course, I would be delighted to meet her to discuss those points. She is always brimming with good ideas.

On the Bill of Rights, the noble and learned Lord, Lord Falconer, and the noble Lords, Lord Pannick and Lord Thomas, referred to the delay in publishing the detail of our proposals. As they say in advertising, good things come to those who wait. The Government agree with those noble Lords who believe that reform of the UK human rights framework must involve careful consideration. Our proposals will be published for consultation in due course. However, I can guarantee that there will be significantly more consultation on, and scrutiny of, the Bill of Rights than there was of the Human Rights Act, which was introduced without, I understand, formal consultation and within just six months of the 1997 general election. Our plans involve a Bill of Rights based on convention rights, but which takes into account our common law tradition and makes clear where the balance should lie between Strasbourg and the UK courts.

A number of noble Lords argued that any action might mean that protection of human rights is lessened. The Government argue that it simply is not the case that rights and liberties are guaranteed only because of the Human Rights Act. They were protected before 1998 and will continue to be in the future. The Bill of Rights will continue to protect fundamental human rights. It will also restore some credibility to human rights by better protecting the system from abuse.

On the rationale for the Bill of Rights, the Human Rights Act needs to be looked at to ensure that it is giving proper emphasis to public safety, as there have been too many instances recently of real evidence that something was going wrong. We are all agreed on the need for liberty and the right to life and privacy. The problem is not one of subscribing to those rights but of how the system operates in practice. I am sure that the noble and learned Lord, Lord Falconer, agrees with that because those were his own words in 2006.

On the issue of human rights and the Armed Forces, raised by the noble and gallant Lord, Lord Craig of Radley, the Government are acutely aware of the issues raised and are actively considering the best way forward. Several noble Lords mentioned the UK’s international obligations. As my noble friend Lord Faulks set out, our reforms focus on staying within the European Convention on Human Rights but ensuring a more balanced application of human rights that restores some common sense. That said, we rule nothing out in the long term. The noble Baroness, Lady Hamwee, mentioned prisoner voting. This is a matter for Parliament to determine. We do not seek confrontation with the Council of Europe and we are committed to a process of dialogue to find a mutually agreed way forward on this issue. The noble Lord, Lord Thomas of Gresford, asked whether our intention was to allow other member states of the Council of Europe to decide the interpretation of the convention. It is important to remember that almost every major western democracy has its own distinctive way of protecting core rights. No one wishes to see countries—in the west or otherwise—flouting basic rights and freedoms, but the UK has led the way in pushing for greater recognition by the Strasbourg court of the principle of subsidiarity. Among other things, this allows member states a margin of appreciation in how they interpret the rights in the convention.

The noble Baroness, Lady Kennedy, pointed to the European Union Committee’s report on the Bill of Rights, which was a thoughtful contribution to this important debate. It highlights the complex legal area of the interaction between the European Charter of Fundamental Rights, the European Convention on Human Rights and domestic law. I welcome the noble Baroness’s acknowledgment of the Government taking a lead on human rights in the Modern Slavery Act, and her observation that our courts were protecting human rights before 1998. We will consider their Lordships’ report and respond in due course.

Today’s debate covered the topic of devolution, which the noble Lord, Lord Thomas, and the noble Baroness, Lady Kennedy, mentioned in the context of human rights reforms. I reassure noble Lords that we will of course fully engage with the devolved Administrations and fulfil our mandate in a way that reflects the interests of all parts of the UK. Our focus will be on building consensus around sensible, necessary reforms across the UK. For example, your Lordships will know that the protection of human rights is a key part of the Belfast agreement, and our Bill of Rights will continue to protect the rights set out in the European Convention on Human Rights. We take our responsibilities under the Belfast agreement very seriously; we will not do anything to undermine it and we will work with parties to that end.

A number of noble Lords raised the issue of the Strathclyde review and the Government’s response to it. I do not wish to sound unduly opaque or obtuse, but I clearly cannot say, here and now, what the Government will do. That will be set out in our response, which will be published in due course. I gently point out that there is considerable confusion and misunderstanding about the conventions governing the relationship between the two Houses regarding statutory instruments. We do indeed need clarity and certainty. The noble Lord, Lord Richard, and my noble friend Lord Cormack argued for a committee of both Houses to consider the Government’s proposals. At this juncture, noting that the Government’s response has not been published, I say gently that three committees in this House, and one in the other place, have already considered the issue.

My noble friend Lord Cormack, the noble Lord, Lord Richard, and the noble and learned Lord, Lord Judge—who gave an excellent and very interesting speech at King’s College on this issue last month—have argued that the Government are using SIs inappropriately, that the powers being taken are too wide and the amount of secondary legislation is increasing. Although his speech was excellent, I do not want, at the late hour of 10.10 pm, to enter into a long-winded battle of statistics on the use of SIs. All I will say is that there has been no increase in the number of SIs laid before Parliament in the last 20 years. The total number made peaked in 2001, and more were laid before Parliament in the 1997-1998 and 2005-2006 Sessions than in any Session since, including between 2010 and 2012.

[Lord Norton of Louth]

Will my noble friend tell the House how many pages these statutory instruments comprised?

Constitutional Convention Bill [HL]

Lord Norton of Louth Excerpts

Friday 17th July 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I, too, congratulate the noble Lord, Lord Purvis of Tweed, on bringing forward this Bill. However, like my noble friend Lord Forsyth, I have various difficulties with it. Constitutional change has occurred in recent years on an extensive scale and continues to take place. There are three distinct directions in which we can go in terms of such change. These can be subsumed under the headings of “incoherent”, “measured” and “new”. We have had major changes in recent decades under successive Governments, but each change has been justified on its own terms. There has been no serious attempt to look at the constitution as a constitution and consider what type of constitution we wish to achieve. There has been an intellectual discourse on different approaches to constitutional change but the measures pursued by government have not adhered to any one approach. There has been no intellectually coherent approach adopted by government. As a consequence, our constitution will be the sum of a range of disparate and discrete measures imposed on our existing constitutional arrangements. Without taking action, we will continue on what is an uncharted and potentially dangerous path.

I move from the incoherent to the measured. This is where there is some consideration of how changes fit within our constitutional arrangements. This entails reflection and dialogue, and seeing how existing and proposed changes impact not only on the constitutional framework of the United Kingdom but on how they relate to one another. No reform is exclusive to itself. Hence, my argument, which I have previously developed, for a constitutional convocation, a body that can make sense of where we are and provide some coherent framework for understanding how further changes relate to existing arrangements and to one another. It would provide some shape but without committing us prematurely to some new constitutional settlement.

This brings me to the third direction. This is where we move to a new paradigm, in effect a new constitutional settlement, which may mean a codified constitution. The vehicle that has been variously recommended for delivering this is a constitutional convention, which, to quote Black’s Law Dictionary, is:

“A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising or amending its constitution”.

The Bill is designed to formulate a new constitutional settlement, or at least a part settlement, for the United Kingdom. The sheer scale of change we have witnessed constitutes an argument against establishing a body that would craft a new constitution before we have had time to understand the consequences of those changes already undertaken or to which the Government are already committed. I want us to make sense of where we are, to understand what principles underpin, or have underpinned, the changes of recent years.

We are frequently reminded of the saying, “If I was going there, I wouldn’t start from here”. My point is that not only have we not determined where we are going, we have not even determined exactly where we are. My argument is that we need a much clearer sense of where we are constitutionally, of how the parts of the constitution as it now is hold together, if they do, before attempting to create a new constitutional architecture.

I turn to problems with the Bill on its own terms. The noble Lord, Lord Purvis, rather skated over the provisions of the measure. It prescribes a limited number of subjects to be considered initially by the convention. I can understand the reasons for that but the parts of the constitution adumbrated in Clause 2 impact not only on one another but on other parts of the constitution not specified in the clause. It does not provide for an extensive examination of one part of the constitution but neither does it provide for looking at the constitution as a whole.

The provisions for a convention are too imprecise in form. Too much is left to the Secretary of State. The intention of utilising a convention, with at least half not drawn from politics, is presumably to establish some degree of public trust but it is not clear how that will be achieved. How many people will be chosen? How will they be chosen? What qualifications, if any, will they be expected to have? Do we go for ordinary members of the public? If so, will they be chosen by election, by lot or by nomination? Election may be preferable for the purpose of trust but, given that a proportion must not be politicians, on what basis will electors be making a choice? I agree with my noble friend Lord Forsyth and others who have spoken in the debate that the convention is given an essentially impossible timetable. If one is going to take seriously the task of examining thoroughly all the subjects specified in Clause 2, it will not be possible to do it within 12 months.

The Bill shows the problems with trying to create a constitutional convention when one is dealing with an extant constitution. We are not in the situation in which conventions normally find themselves. We have nothing approaching a clean slate or even a moderately clean one. Ours bears the markings of centuries, as well as the rushed and extensive writings of recent years. Trying to make sense of that and where we go imposes a particular burden that cannot be borne lightly or undertaken in haste.

Constitution: Gracious Speech

Lord Norton of Louth Excerpts

Thursday 25th June 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I, too, congratulate the noble Lord, Lord Wills, on initiating the debate. The Motion addresses the implications of constitutional changes. I propose to focus on the constitutional implications of those changes.

Robert Stevens, in his book The English Judges, published in 2002, makes the point that the nation witnessed massive constitutional change in the period from 1640 to 1720. He notes that there were major constitutional developments in later years, such as the Reform Acts, but these were essentially,

“independent acts rather than part of a dramatic period of constitutional restructuring”.

He then—this is my key point—says:

“For lawyers and courts, however, the period from 1970 to 2000 provided a practical and psychological transformation comparable with the earlier constitutional revolution”.

The Labour Government returned in 1997 introduced a whole raft of constitutional measures. Anyone expecting a period of quiet after 2010 was to be disappointed. The coalition agreement heralded concessions and compromises on a number of measures of constitutional reform. The current Government are committed to several major constitutional measures, not least—as we heard—in relation to devolution and the European Union. The sheer scale means that we are not looking at independent Acts—that is, piecemeal changes that have time to bed in before other changes are made. We are looking at a whole gamut of changes to our constitutional arrangements, changes that are significant quantitatively and qualitatively.

During the 1980s and 1990s, several coherent approaches to constitutional change developed, each stipulating a particular constitutional structure deemed most appropriate to the United Kingdom. The problem with the constitutional reforms implemented by the Blair Government was that they bore no clear relation to any approach. When I asked Ministers what was the intellectually coherent approach to constitutional change being taken by the Government, I received no answer. In 2002, I initiated a debate on the constitution. In replying, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, admitted that there was no such approach. Rather, he said, the Government proceeded,

“by way of pragmatism based on principle, without the need for an all-embracing theory”.—[Official Report, 18/12/2002; col. 691.]

The principles that he enunciated were not necessarily compatible with one another, as they appeared to embrace power residing at the centre and power not residing at the centre.

The coalition Government fared no better in that they were formed by parties which adopted approaches that were almost diametrically opposed to one another. The Liberal Democrats adhere to the liberal approach to constitutional change and the Conservatives to the traditional, or Westminster, approach—approaches that are at different ends of the spectrum of negative and positive constitutionalism, of what one sees a constitution as being for.

The result is that we are seeing, and pursuing, major changes to our constitution without having a clear appreciation of the implications for the constitution as a constitution. What is the principled approach to constitutional change? What type of constitution are we trying to craft for the United Kingdom? As things stand, we are in danger of ending up with a constitution that is the sum of a raft of disparate constitutional changes, rather than a coherent framework that we have set out to create.

In the debate on the gracious Address, I made the case for a constitutional convocation, not to draft a new constitution, but rather to make sense of where we are. We need an exercise in constitutional cartography. My purpose today is not to repeat what I said then, but rather to put specific questions to my noble friend Lord Bridges about the Government’s approach to constitutional change—not to specific proposals, not to the implications of particular measures to be introduced, but rather to constitutional change as such.

First, what is the Government’s intellectually coherent approach to constitutional change? How do they see the constitution as a constitution? Are they wedded to maintaining the Westminster model and the attributes ascribed to it? Secondly, what are the mechanisms within government to ensure that it engages in joined-up thinking on constitutional measures? Who is in charge of constitutional issues, not least in terms of ensuring a coherent approach to constitutional change? This is a question not about, or not just about, co-ordination, but about leadership. It would be helpful to know from my noble friend how government is now structured in order to consider constitutional issues as constitutional issues.

My key point in this debate is to stress that in looking at the implications of constitutional change, we should not confine ourselves—indeed, must not confine ourselves—to looking solely at the implications of this Bill or that Bill. We must look at the implications for the constitution as a whole. To do that, we need to be clear as to what type of constitution we have, and want, for the United Kingdom.