Draft House of Lords Reform Bill

Lord Richard Excerpts

Monday 30th April 2012 Lords Chamber

Moved By

[Lord Richard]

That this House takes note of the report from the Joint Committee on the draft House of Lords Reform Bill. (HL Paper 284)

[Lord Richard]

My Lords, perhaps I might say right at the outset that I am glad this debate is now to extend over two days. The subject deserves proper treatment, and to have to discuss it at two or three o’clock in the morning would be unacceptable. I start by paying tribute to the Clerks of this Joint Committee. From this House we had Mr Rhodri Walters, the Reading Clerk, and from the House of Commons Mr Liam Laurence Smyth, Principal Clerk. They jointly led a group of committee clerks who were, frankly, as powerful and formidable as any group I have ever come across. We are all indebted to them for their skill, determination and commitment to the committee’s deliberations. I am extremely grateful to them and wish to acknowledge this publicly.

It is important, too, at the outset for this House to be clear as to what precisely the Joint Committee was asked to do. Our mandate, in a sentence, was to examine the draft House of Lords Bill. The committee consisted of 13 Members from each House, a total of 26, who I think were carefully chosen to represent as best they could all the views that existed in each House. For the Lords, there were four Conservative Peers—one of whom, the noble Lord, Lord Trefgarne, is an hereditary Peer—four Labour Peers, two Liberal Democrats, one Cross-Bencher and the right reverend Prelate the Bishop of Leicester. From the Commons, there were six Conservative Members, five Labour, one Liberal Democrat and one Ulster Unionist. On any view of the matter, this was a large committee. While that of course made it more difficult to achieve consensus, it nevertheless meant that almost every variety of view found expression.

We had 15 evidence sessions, stretching from October 2011 to the end of February this year. We heard evidence from 20 witnesses, including the Minister for Political and Constitutional Reform, Mr Mark Harper, who we saw no fewer than four times. The Deputy Prime Minister, Mr Nick Clegg, gave evidence to us in a lengthy session. We also took evidence via videolink from members of the Australian Senate, particularly on the issues of primacy and constituency representation. In addition to all that, we received 227 written submissions of evidence. I would not recommend that people read every word of the evidence, particularly in relation to the scope covered, unless they are extremely enthusiastic, but I urge them at least to glance at it. Taken together, the oral and written evidence represents as full and comprehensive a survey of the current position, and of possible ways of reforming the House, as it is possible to get. I cannot think of any major issue that was not covered and was not therefore firmly before the committee.

May I now say a word about the function of the committee? It was not a royal commission. Had it been, I hope it would have been smaller and its membership less political and more widely drawn, and it would certainly have been more wide-ranging in its terms of reference. We did not start by being presented with a clean sheet of paper. We were not told to produce a plan for a future House of Lords; that was not the purpose of the committee. We had a Bill to consider, which itself had specific provisions. The Bill had 68 clauses and nine schedules, and was accompanied by a detailed White Paper. That had to be our starting point. However, in looking at the Bill we had to examine virtually all the major issues around the central themes of an elected House versus an appointed House, the primacy of the House of Commons, the electoral system, the size of the House and its functions and powers.

That the committee was divided was not, perhaps, surprising. The issue has proved divisive now for well over a century. It would have been remarkable had this not been reflected in the committee itself. There were divisions within parties and within the Houses. There was no clearly visible Labour view versus a Conservative view. There was no clear Lords view versus a Commons view. Opinions inevitably differed. However, we managed to create a genuine atmosphere of what I would call rational discussion. The mood in the committee was, on the whole, equable and tolerant; I pay tribute to its members for that. Thankfully, we avoided a “Lords versus Commons” direct confrontation. Both sides and all members of the committee felt that the issue was a bit too serious for that.

I turn now to some of the specific recommendations that the committee made. First, and perhaps most importantly, it agreed by a majority that the reformed second Chamber should have an electoral mandate. That was agreed after a division in which 13 voted in favour and nine against. Of the 13 in favour, nine were MPs and four were Peers. Of the not-contents, seven were Peers, one was an MP and one was the right reverend Prelate the Bishop of Leicester. It was a clear vote and a clear majority. In relation to the alternative report, I am somewhat fortified in saying that by the remark on page 31, which says that that a vote of 13 to eight was a considerable and substantive margin.

Secondly, it was agreed that 80 per cent of Members of the reformed House should be elected and 20 per cent should be nominated. In the vote on that, there were 16 contents and six not-contents. Of the contents, nine were MPs, six were Peers and one was the right reverend Prelate the Bishop of Leicester. Of the six not-contents, two were MPs and four were Peers. Again, it was a clear vote and a clear majority.

One of the most important points that the committee discussed—and discussed, and discussed—was the primacy of the House of Commons. We unanimously agreed that Clause 2 was of little use and should be discarded. It was, in the committee’s view, declaratory only and risked becoming justiciable. Again, there was a vote on primacy of the House of Commons. This was a topic on which we spent a great deal of time. Those arguing in support of the proposition that primacy could not be safeguarded based their case primarily on the belief that once the House of Lords had an electoral mandate it would behave in an unpredictable and confrontational way and would not accept its subordination to the House of Commons. It was argued that that would apply even in the case of finance and taxation.

The other side of the argument pointed out that the Commons would continue to be the House where Governments were made and destroyed; that the Commons had the exclusive right to determine financial and taxation policy; that the House of Lords would be elected on a different electoral system; that 20 per cent of the membership would be appointed not elected; and that the Parliament Acts would continue to apply. The Government’s position was that the current relationship would evolve but that on balance Commons primacy could be maintained. In the end, the committee, by a majority of 12 to 10,

“while acknowledging that the balance of power would shift, consider that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation”.

The vote was 12 in favour and 10 against. Of the 10, one was an MP; of the 12, eight were MPs. I could not help observing at the time, and, indeed, still do, that it is passing strange that if the primacy of the House of Commons is such a burning issue to the House of Commons, only one MP voted against the proposition and eight MPs voted in favour of it. One would expect that Members of the House whose primacy is deemed to be so much under attack would be reluctant to accept that the Bill ensured its continuation, but far from it. The committee agreed with the Government’s proposal for election under the STV system, with the variation to take in the practice currently used in New South Wales, which gives voters the right to express a preference between parties as well as individuals.

The committee agreed that conventions governing the relationship between the Houses cannot be legislated for and that such conventions would evolve further once the House of Lords was reformed. We recommended that any new conventions, or modification to existing conventions, should be promulgated by the adoption of a concordat in the form of parallel identical resolutions prepared by a Joint Committee and adopted by each House. In a sense, this is the daughter of Cunningham, if I can use that phrase. It provides a framework within which the two Houses can operate, work out their relationship and within which primacy can be maintained.

On the size of the House, the committee unanimously agreed that a House of 300 Members was too small and that the size of the House should be 450. We also accepted that Members should serve a 15-year, non-renewable term. The vote on that point was somewhat interesting: the contents were 20; the not-contents were two—the two being the noble Lords, Lord Trefgarne and Lord Trimble. Every other member of the committee then present voted in favour.

One of the most important issues that we discussed was the transition from the existing House to the one proposed in the Bill. I wish to say one or two words about the transitional arrangements because I am very conscious that they are of great importance to Members of this House. Of the three transitional arrangements proposed in the White Paper, the committee agreed with that preferred by the Government and set out in the draft Bill. However, the committee also recommended an alternative option, which makes a bigger cut in the transitional membership in 2015 with no further cut until the end of transition in 2025, so that there would be one cull, so to speak, at the beginning of the process and the remainder would go at the end of it. That proposal has the following three characteristics: first, a transitional membership in 2015 would be equal to a benchmark figure derived from the total number of Members attending two-thirds or more of sitting days in the 2011-12 Session. Those transitional Members would remain in place until the final tranche of elected Members arrived in 2025—at which point all the transitional Members would leave. There would be an allocation of the transitional seats to parties and Cross-Bench Peers in proportion to the current membership. Thirdly, and perhaps most importantly, parties and Cross-Bench Peers would determine for themselves the persons to serve as transitional Members. The transitional Members would continue to receive daily allowances rather than salaries. We agreed by 13 to 7 votes that Bishops should continue to have ex-officio seats in the reformed House of Lords, and we agreed by 13 to 5 that that number should remain at 12.

In the course of our deliberations, we dealt with many other issues—all of which are set out in the report. We made recommendations, for example, on the operation of the Appointments Commission, disqualification of Members and the position of Ministers parachuted into the Lords as Ministers. However, I should like to say a word about two of the more prominent issues that troubled the committee.

It became apparent that one of the issues concerning Members of the House of Commons was the relationship between an elected Member of the House of Lords elected, as he would be, by STV on a large constituency basis and an individual Member of Parliament elected by first past the post for a particular constituency. MPs were clearly worried that elected Members of the Lords would involve themselves in personal casework of the kind currently undertaken by MPs on behalf of their constituents. We therefore recommended that IPSA should make no provision for Members of a reformed House to deal with personal casework, as opposed to policy work, or to have offices in their constituencies. We did, however, consider that elected Members would inevitably be concerned and be approached about regional, local and legislative matters.

The possible use of the Parliament Acts was a subject we considered. We had evidence from the noble Lord, Lord Pannick, both written and oral, and the noble and learned Lord, Lord Goldsmith. Their evidence raised two issues. The noble Lord, Lord Pannick, told the committee that the Parliament Acts could properly be used to reform the Lords, and that the courts would uphold such a decision. As to whether the Parliament Acts would continue to apply to a reformed second Chamber, the noble and learned Lord, Lord Goldsmith, said that there was at least doubt that the Acts, or all their provisions, would apply. The noble Lord, Lord Pannick, said that the better view was that the present Acts would not apply to a reformed second Chamber. The noble and learned Lord, Lord Goldsmith, said that it would, however, be open to Parliament to legislate now—now, my Lords—to make clear that the Parliament Acts should operate in the same way in relation to an elected second Chamber, although the present clause was not acceptable for that purpose. The noble Lord, Lord Pannick, said that it was vital that the reform Bill specified clearly whether or not the Acts would continue to apply to a reformed second Chamber, and he agreed that Clause 2 did not adequately address the question. The Joint Committee therefore recommended that if the Government wished to ensure that the Parliament Acts applied to a reformed House, they should make statutory provision for it. Both Peers considered that the issue could be resolved by suitable wording in the Bill. That seemed to me to be persuasive evidence.

I should like to say something about costs. We accepted the recommendation of the Government that the salary of an elected Member should be somewhat below that of an MP but above that of a Member of a devolved Assembly. We also accepted that the sort of constituency allowances that were paid to MPs should not be available to elected Members of the House of Lords. So far as transitional Members were concerned, they should continue to receive a per diem allowance. This was also to be applicable to appointed Members—the 20 per cent. What we could not do was go into the costs of the whole exercise, very simply because although we asked the Government to produce some figures, they did not do so. I regretted that very much because, apart from anything else, it prevented us having a sensible discussion on the issue.

I am sorry to have taken up so much of the House’s time with the details of the report, but in view of some of the comments that have been made, I thought it was important that the House should get a clear picture of what we actually recommended. We undertook a thorough and detailed analysis of the proposals put forward in the Government’s draft Bill. It is now for the Government to consider our proposals before coming forward with the final Bill, which they can present to Parliament for further scrutiny.

Finally, I say one or two words about the alternative report. By the rules of the House, there could not be a minority report. There was, however, nothing to prevent members of the committee issuing their own commentary on the process, and this the alternative 12 have done. I have read the alternative report with great interest and some surprise. I see that the alternative 12 now call for reconsideration of the 15-year term. I cannot help but observe that 10 of the 12 voted for it in the committee. However, the main problem I have with the alternative report is the suggestion of a constitutional convention on further reform of the House of Lords. It would be lengthy, time-consuming, diffuse and, judging from the report, distinctly overpopulated. I will not bore the House by reading out the provision in the report which sets out the dramatis personae of those who are supposed to be eligible to take part in the constitutional convention. I recommend Members of the House to read it and observe the ominous words at the end of the list:

“This list is not exhaustive”.

More important than that is the fact that there is really nothing much left to say about this issue. We have been round this course now year after year after year for more than a century. In the 22 years since I have been in this House, it has been the subject of intense discussion in the course of which the same points are made, remade and re-remade again, again and again. I see no virtue whatever in setting up a convention to reiterate the differences which already exist and which we all know about.

The idea that somehow there is a mechanism whereby all those differences can be fused and that there will then be a general agreement about proposals to reform the House of Lords is fanciful. It is an absurdity. There are divisions in the House as to whether we want an elected House or not, whether we want people to come here as a result of a democratic election or to continue to be appointed. It is high time that people recognised that the time has come for a decision on these issues, not further discussion and then further discussion after that.

I think that the committee has produced a better Bill as a result of our deliberations. I think that that Bill is important constitutionally, indeed, it is important enough that it should be presented to the people in a referendum. That way, we will begin to make some real progress. I beg to move.