House of Lords: Size
Lord Norton of Louth Excerpts(8 years ago)
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Lord Norton of Louth (Con)
My Lords, this has been a very good debate, and an important one. It is not an exercise in navel-gazing; it matters because this House matters. Addressing size is only part, but a necessary one, of what needs to be done to protect and enhance the role of this House as a valuable—and, I would argue, invaluable—second Chamber. This House adds value and, contrary to what some have said, is justifiable in democratic terms. Democracy—demos kratia—is about how people choose to govern themselves. In a representative democracy, the choice of who is to govern is fundamental. In the United Kingdom, we choose a Government through elections to the House of Commons, a Government who are responsible for a programme of public policy and accountable for that policy to the electors at the next election. There is core accountability. We have the benefit of a second Chamber that fulfils tasks that add value to the political process without challenging that core accountability. As my colleague Professor Colin Tyler, a specialist in democratic theory, put it in evidence to the Joint Committee on the Draft House of Lords Reform Bill, if you “divide sovereignty within Parliament”, you undermine the capacity of Parliament to give effect to the will of the people.
We have a Chamber that draws on experience and expertise to complement the work of the elected House. By general consent, this House does a good job. Debate about Lords reform focuses primarily on composition, not on functions—there is a general agreement about the functions of a complementary second Chamber. The House of Lords Reform Bill in 2012 was premised on the House continuing to do its existing job. But of course composition and functions are intrinsically linked; who is in the House determines how effectively the functions are fulfilled. We are a legitimate Chamber, but whereas the Commons takes its legitimacy for granted through election, our legitimacy has to be earned through the work that we do. We therefore need to ensure that we are working effectively and efficiently; we need to ensure that the quality of what we do is maintained.
We know from the Ipsos MORI poll of 2007 that electors considered the two most important factors in determining the legitimacy of this House to be trust in the appointments process and in considering legislation carefully and in detail. Seventy-six per cent considered trust in the appointments process to be very important, while 73% thought the same for considering legislation carefully and in detail. Some element of election came way below.
It is three years almost to the day since I initiated a debate on the size of the House. It was clear then that there was a problem; the problem is even greater now. As we have heard, of legislative chambers that meet regularly throughout the year, we are the largest. It is true that the Chinese National People’s Congress has more Members, but it meets for only about two weeks each year. It is true that we have a smaller membership than existed prior to the 1999 Act; the difference is in terms of activity and perception. There is a justified expectation now that those created as Peers should contribute to the work of the House. The level of activity places a burden on the resources of the House, and on the public purse. Any inactivity reflects badly on the House, since we appear to be carrying passengers. So either way there is a problem.
We need to address size, which necessarily entails not only reducing numbers but also, as we have heard, controlling future appointments. That is where public perception becomes important. Some noble Lords appear to say that this is not too important: it is only perception. We do not exist in a vacuum. The more we grow in number, the more the media draw attention to our size, whatever good work we do. Indeed, as we have heard, that coverage masks the work of this House: that is the reality. New creations will be pored over by the media to see if someone has been a party donor. It only takes one for the media to generalise about the whole. Whatever we say, that will remain the case. We therefore need to move from deprecating such activity—or simply ignoring it—to doing something practical about it, hence this Motion and the recognition that action needs to be taken.
It is quite clear from this debate what that action needs to be. We need to establish a Select Committee to address the various options for reducing the size of the House. As has been stressed, we cannot resolve what the precise action is in a single debate such as this. The noble Lord, Lord Anderson, seemed to think that the committee may not reach agreement and that was, therefore, an argument for not having a committee. If there is going to be a committee with a majority and minority view, I would rather have that than no committee at all. It can come forward with recommendations. The sooner we get under way and the sooner the committee reports, the better. It need not be a lengthy exercise. It may not succeed, but it is an essential start. I am delighted that my noble friend the Leader of the House is to reply. I trust that she will acknowledge that this is not a parochial issue. It is about ensuring that this nation’s constitutional arrangements benefit it. I end as I began: addressing size is only part of what needs to be done, but it is a necessary part. Let us get on with it and then address what else needs to be done.
Lord Newby (LD)
My Lords, I have no difficulty in agreeing with the Motion before your Lordships’ House. I am therefore extremely tempted to follow the advice of the noble Lord, Lord Forsyth, to the noble and learned Lord, Lord Hope, and sit down now. Sadly for him, and for the House, he is not going to be so lucky.
I start with an admission. In a previous incarnation I was responsible, albeit to a modest extent, for increasing the size of your Lordships’ House. When I was chief of staff to Charles Kennedy, we got a proposal from the then Prime Minister, Tony Blair, about a very modest increase in the number of Liberal Democrat Peers. We objected to it, on the grounds that it was modest, and we would rather like a few more. We tried to find out what the other parties were getting but were told that that was completely improper and we could not be told. We said that unless we got a few more we were not going to agree to anything. There was a great deal of huffing and puffing but, to cut a long story short, we ended up with 60% more than had been on the original note. This was haggling about the composition of a legislature in one of the world’s largest countries. This process was, and remains, ridiculous and unsustainable in the long term.
As my noble friends Lord Tyler and Lord Rennard have set out, my party has had a long-standing policy to elect people to your Lordships’ House and, in the process, reduce the number of Members. We believe that in a democracy legitimate power and political authority ultimately derive from the people. In the 21st century, and in a modern innovative country such as ours, it is simply wrong that the public never have the opportunity to vote for Members of this House or to hold us to account on our record. Members of this House are, individually and collectively, legislators. It is straightforward that we should be accountable, through elections, to those whom we expect to follow the laws which we enact. A number of noble Lords, including the noble Lord, Lord Foulkes, and the noble Earl, Lord Caithness, have made a point about regional representation in your Lordships’ House which strengthens this argument. As long as we have the current system there will be a predominance of people from London and the south-east in your Lordships’ House. There is a lot of talk about rebalancing the economy and the northern powerhouse, but the northern regions are not fully represented in your Lordships’ House. Until they are, any sense of political rebalancing in terms of the balance of arguments in Parliament simply will not happen. Regional elections would help to redress that balance.
It is also worth pointing out that every other second Chamber in the world, I think, except possibly the Council of Elders in Papua New Guinea, is elected. Although they may all be wrong, and we may be—
Lord Newby
I stand corrected. I had better be careful because the noble Lord will correct what I am about to say, but I believe that many countries have more than one Chamber and that a minority, at best, have a non-elected second Chamber.
Lord Norton of Louth
That is true of wholly elected Chambers; they are in a minority as well. No one model is in an absolute majority.
Government and Parliament
Lord Norton of Louth Excerpts(8 years, 6 months ago)
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Lord Norton of Louth (Con)
My Lords, like other noble Lords, I welcome this timely debate initiated by the noble Baroness, Lady Smith of Basildon. There is much that needs to be done to strengthen Parliament in scrutinising the Executive and their legislation. However, before addressing what is wrong with the process, I will just say a few words about what is right with it.
Parliament is now arguably at its strongest in modern political history in scrutinising the Executive. MPs are much more independent in their voting behaviour. Both Houses are much more specialised, utilising investigative Select Committees, and better informed as well as more open. Government no longer has a stranglehold on the timetable in the Commons. The House has acquired the Backbench Business Committee and a Petitions Committee. The Whips in the Commons have lost their patronage in terms of the chairs and members of Select Committees. The prerogative power in committing forces abroad is now constrained by the need for Commons approval.
In terms of legislative scrutiny, the Commons, as Louise Thompson’s research has shown, has far more impact than is reflected in the small number of non-government amendments accepted. The Commons has introduced Public Bill Committees, and in this House we now utilise ad hoc committees for important post-legislative scrutiny, a development that plays very much to our strengths. This House is to the fore in scrutiny of secondary legislation. The Constitution Committee does excellent work in reporting on Bills of constitutional significance.
There is thus good news. What, then, is the problem? The primary problem is the sheer volume of legislation. The growth in the volume, both of Acts and statutory instruments, dates from the 1990s, with the greatest increase taking place in the number of pages of statutory instruments—it is not numbers, it is length. There were two step changes, first in the 1990s and then from 2005 onwards. The problem is qualitative as well as quantitative: it is not just the length, but also the complexity and scope. The noble and learned Lord, Lord Judge, has called attention to the growth of Henry VIII provisions. Governments are trying to do too much and seek to manipulate the legislative process to achieve their goals.
The Constitution Committee, in its 2004 report Parliament and the Legislative Process, looked at the legislative process holistically. It made the case for pre-legislative scrutiny to be the norm, which fits very much with the wording of today’s Motion. There was a notable increase in the number of Bills submitted for pre-legislative scrutiny in the last Parliament, but the number has varied over time and remains reliant on the Government to determine which of their own Bills merit such scrutiny.
The committee also made other recommendations of relevance to the Motion today. It recommended that all Bills should be subject at some point to detailed examination by a parliamentary committee empowered to take evidence. Government Bills starting life in the Commons now go to evidence-taking Public Bill Committees, although Bills introduced in this House do not get sent to an evidence-taking committee, either here or in the other place. The Committee also recommended that Explanatory Notes should set out clearly the purpose of the Bill and how it should be judged in future to have achieved its purpose. That would be very good discipline on government. Linked to that, as the noble Lord, Lord Butler, has said, there is a case for a legislative standards committee to ensure that Bills brought forward by a Government meet set standards and that the check is undertaken in Parliament and not solely by government.
The problem, however, is writ large with secondary legislation. As the Hansard Society observed in its report on Parliament and delegated legislation:
“the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail”.
That is why secondary legislation is presently on the political agenda, but it is important to understand the cause of the mischief. The report of my noble friend Lord Strathclyde addressed the symptom and not the cause, and in any event was based on a false premise. Indeed, it opened by defining the convention and then proceeded to ignore it. It is not clear why this House should be penalised for the Government using secondary legislation for purposes for which it was not intended. The Government are in effect saying, “We wanted to use secondary legislation to achieve policy goals without sustained parliamentary scrutiny, and we intend to legislate to try to restrict the House of Lords in order that we can do so in future without challenge”.
The noble Lord, Lord Cunningham, has already quoted the Public Administration and Constitutional Affairs Committee in the other place, which concluded:
“Such legislation would be an overreaction and entirely disproportionate to the House of Lords’ legitimate exercise of a power that even Lord Strathclyde has admitted is rarely used”.
The Government should be reviewing their own procedures. Can my noble friend the Leader of the House tell us what the Government are doing to ensure that departments do not misuse delegated legislation and what constraints they plan to introduce to ensure statutory instruments do not drift into areas of principle and policy? Those are the questions we should be addressing. We should not be distracted by the Government’s attempts to blame this House for their own failings.
There is a lot that we need to do. We should acknowledge what has already been achieved—we are much stronger than many realise—but we need to build on that and ensure that Parliament is truly effective in calling government to account. The bottle of parliamentary scrutiny may be filling up, but there is still an awful long way to go.
Strathclyde Review
Lord Norton of Louth Excerpts(8 years, 11 months ago)
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Lord Norton of Louth (Con)
My Lords, the review undertaken by my noble friend Lord Strathclyde may be pointing us in a direction that is worth pursuing, but for very different reasons from those advanced by my noble friend and not in the way recommended in his report. Our debate, following my noble friend’s report, has tended to focus on whether the House, by its vote on 26 October, broke a convention of the constitution. We are in danger of getting into a muddle. There has been no attempt to define what we mean by “convention”. The Joint Committee on Conventions did not offer a definition. My noble friend in his report offers a definition that is not incorrect, but it is incomplete.
There is much misunderstanding of what we mean by constitutional convention. Conventions are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour. Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, “right behaviour”. Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998. They are not created, but develop. A convention exists once there is an invariable practice. Kenneth Wheare distinguished between conventions and usage—in effect, a distinction between invariable and usual practice. The Cranborne doctrine of 1945 developed into the Salisbury convention. The statement of Lord Sewel developed into a convention named after him, even though the convention is such only by departing from the words that he used. It is a convention because seeking a legislative consent Motion is an invariable practice.
It is our usual practice not to withhold agreement to statutory instruments, but it is not our invariable practice. As we have heard, the House has asserted its right to reject statutory instruments and has on occasion exercised it. This House therefore does not regard itself as bound, and has not been bound, by a moral imperative that we should not reject statutory instruments. So long as that is the case, there is no convention. The Joint Committee got itself into something of a confusion on this issue, partly because of a failure to define conventions, but it recognised that no convention was breached if the House defeated a statutory instrument. As it reported at paragraph 228:
“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree”.
The fact that there is no convention is borne out by the words of my noble friend in the course of asserting that there is. My noble friend’s report states on page 15:
“The convention that the House of Lords should not, or should not regularly, reject SIs is longstanding but has been interpreted in different ways, has not been understood by all, and has never been accepted by some members of the House”.
The very wording draws attention to the absence of any agreement on what this supposed convention constitutes. Some Members, like my noble friend, may believe that there is a convention but, for it to be one, Members generally have to consider themselves bound not to vote down SIs. There is no such acceptance by the House. There was thus no breach of convention in respect of how this House deals with statutory instruments. That was not the problem. The problem derives from the fact that we exercised our power in respect of a statutory instrument that engaged the financial privilege of the Commons. The key section of my noble friend’s report is to be found on pages 21 and 22. That should have been the focus of his report. As my noble friend recognises, there is nothing to stop us developing procedures particular to delegated legislation that cover financial privilege.
I am not against reviewing our powers in respect of statutory instruments, but I take the view that if our powers in respect of delegated legislation are to be restricted, the powers should at least be analogous to those provided in the Parliament Acts in respect of primary legislation. My noble friend’s recommendation in favour of option 3 claims on page 18 that it is, but then admits, on page 20, that it is not, since there would be no suspensory veto. If we are to go down the route recommended by my noble friend, there needs to be something else built into the procedure to ensure that the reasons for objecting to an SI are taken seriously. I therefore endorse what several others noble Lords have argued—in other words, what may be termed option 3 plus.
In short, while I think that my noble friend’s report has come up with some stimulating proposals, it derives from a false premise and comes up with recommendations not geared to the mischief that prompted my noble friend’s inquiry. In the short term, there is a case for acting in respect of SIs that engage the Commons supremacy in respect of tax and spending. In the longer term, as several noble Lords have said today, there is a case for a substantial review of how we deal with statutory instruments. We have had recommendations from the Wakeham commission and the Goodlad committee. There is also a report on the subject produced by the Hansard Society, which has made the case for revisiting how Parliament as a whole deals with secondary legislation, recognising the limitations of the other place. Rather than a rushed quick fix, a more holistic approach is the way forward.
House of Lords Reform
Lord Norton of Louth Excerpts(9 years, 3 months ago)
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Lord Norton of Louth (Con)
My Lords, I wish to address three points based on the four Motions before us. The first is on the purpose of reform. I very much welcome the Motion moved by my noble friend the Leader of the House. She quite rightly stresses the importance of incremental reform. There is general acceptance in the House that we should undertake such reform to address the size of the House. The acceptance is, in many respects, a starting point in our consideration. We accept the need for it but are in danger of avoiding the reasoning behind it. Why do we undertake reform? We need to have a clear understanding of the qualitatively distinctive role of the House and the justification for it; only then can we establish what needs to be done to ensure that we are doing our job as effectively as we can. The House of Commons indulges in the politics of assertion. This House engages in the politics of justification. We need to protect that. Our work rests, as with much of the British constitution, on a series of understandings. We could begin by recognising what they are and drawing them together. That would in essence establish the foundations of this House’s role in the political system.
The size of the House can be located within this wider context. Having a larger membership creates problems for the efficient functioning of the House and in how it is perceived by the media and the public. It is necessary that we address it and I initiated a debate on it last year. However, we must not lose sight of the fact that while such reform is necessary it is not sufficient. A smaller House may increase our efficiency, but we need to look not just at the size of the House but also at the process by which Members are appointed.
My second point relates very much to the Motion tabled by the noble Lord, Lord Lea of Crondall. There is public disquiet at the size of the House, but the legitimacy of the House in the eyes of the public rests as much on the process of appointment as it does on how many Peers sit in the House. The 2007 Ipsos MORI poll of public attitudes to this House found that the factor deemed most important in determining the legitimacy of the House was trust in the appointments process. Some 25% of those questioned deemed it important; 70% deemed it very important. Next in ranking was the process of detailed legislative scrutiny. We need to look therefore at the appointments process, implementing the provisions of the Steel Bill by putting the Appointments Commission on a statutory basis, raising the threshold for appointment and making the whole process more transparent.
My third point relates to the other two Motions before us in the names of the noble Lords, Lord Steel of Aikwood and Lord Pearson of Rannoch. As we have heard this afternoon there are various proposals for reducing the size of the House. The point to stress, and it has come over in a number of speeches, is that they are not mutually exclusive. One could have an age limit, as we have heard, but one may need to think about other reforms as well. Indeed, I argue that we have to. An age limit is effective but, as we have heard, it is arbitrary and does not deal with the party-political conundrum highlighted by the Motion of the noble Lord, Lord Pearson. As we have heard, one can get fluctuations in party support, sometimes quite significant ones as we saw in May’s general election. One may get alternation of parties in office, with each incoming Government wanting to boost their numbers. We may need therefore to consider a more subtle means of adjusting numbers than is possible through an age limit. One possibility is to consider a formula whereby following an election each party is allocated a number of Members based on the party’s support in the election, be it in terms of votes or seats or arguably, following the line of my noble friend Lord Jopling, a combination of the two, with say 90% of the Members being elected by the party group in the House and the remaining 10% in the gift of the party leader. That is one possibility, but it is to be considered alongside and not necessarily instead of the others put forward.
We have a track record of achieving change. The obstacle to achieving legislative reform has not been this House, but rather successive Governments, who have had to be pressed to agree to the reforms we favour getting on to the statute book. Major reform has failed not in this House, but in the Commons. We have the political will to achieve change. We should articulate our role and the understandings that sustain it and then agree on what needs to be done to ensure that we are as effective as we can be. We cannot afford to miss the opportunity, but let us make sure we do not fixate on just one part of what needs to be done. Our starting point should be not size, but purpose.
English Votes for English Laws
Lord Norton of Louth Excerpts(9 years, 5 months ago)
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Lord Norton of Louth (Con)
My Lords, I commend the noble Lord, Lord Butler, for initiating this debate. Seeking answers to what we now call the West Lothian question is nothing new. The Government of Ireland Bill of 1893, the so-called “In and Out Bill”, provided that Irish MPs would vote only on “imperial” legislation. The Speaker’s Conference on Devolution in 1919 proposed that grand councils of MPs from England, Scotland and Wales should consider Bills that affected their particular part of the United Kingdom. Harold Wilson in 1964 raised the issue in respect of Northern Ireland. He queried the logic of Northern Irish MPs voting on legislation where Stormont held concurrent powers; and he asked the Attorney-General, Sir Frederick Elwyn Jones, to devise an “in and out” solution.
The attempts normally flounder when it comes to devising an effective means of implementation. There are problems of definition and process. I make two points. First, the Government’s proposals do not provide for English votes for English laws. As the noble Lord, Lord Butler, said, they provide for an English veto of English laws. Secondly, context is important. Given other constitutional changes, implemented or proposed, there may be a case for looking at the proposals as part of a constitutional convention—I would argue for a convocation—looking at, and ensuring that they fit with, what is happening to other parts of the constitution.