House of Lords: Reform

Lord Scott of Foscote Excerpts

Wednesday 22nd June 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, there is really very little to say that has not already been said very eloquently by those who have spoken before me. That feature of the debate that has taken place yesterday and today allows me, I hope, to be brief. I wish to associate myself particularly with the coruscating speech delivered yesterday by the noble Baroness, Lady Boothroyd, and with the speeches delivered today by the noble Lord, Lord Grenfell, and the noble and right reverend Lord, Lord Eames, and also with the many speeches delivered to your Lordships by those who have opposed the notion that election of Members of this House would be a desirable constitutional innovation.

This House has long been the subject of reforms to its membership. The reforms have always been pragmatic ones designed to make the House better able to discharge its constitutional functions. The reforms began—so far as I know; there may have been earlier ones—in 1878 when provision was made by statute for life peerages to be awarded to eminent judges or lawyers, and these became the first Law Lords. The reforms were designed to make the House better able to discharge its then constitutional role of being the final court of appeal for the kingdom. That was a wholly pragmatic response to the proposal by Prime Minister Gladstone to remove from the Lords its appellate jurisdiction. A general election brought in Disraeli as Prime Minister in place of Gladstone and the creation of Law Lords to sit on appeals to the House was the result.

The Parliament Act 1911 was a procedural reform introduced to prevent a Tory-dominated House of Lords from defeating legislation desired by the Lloyd George Liberal Government. That too was a pragmatic response to a need for the House to be in a satisfactory state. The 1958 Act extended to anybody the possibility of the grant of a life peerage and this too was a pragmatic response to the growing criticism of the hereditary character of the then membership of the House. The 1998 Act started the process of removing hereditary Peers from membership of the House but this Act, like the 1878 and 1958 Acts, owed little, if anything, to doctrine and everything to pragmatism—what would enable the House more efficiently to fulfil its constitutional role until a final decision about membership of the House could be reached. These reforms have since 1958 enabled a constitutional balance between the Commons and this House to evolve. I know of no criticism of that balance except that the Members of this House, bar the remaining hereditaries, owe their membership to appointment and not to election. Subject to that single criticism, the House has since 1958 discharged its constitutional functions without serious criticism of its membership.

Is that criticism justified? Your Lordships have heard over the past two days all sorts of criticisms of the proposed Bill and the details contained in it. Having listened carefully to those criticisms, I should have thought that the proposed Bill was a bad Bill, but that does not dispose of the underlying question of whether an elected House of Lords should be preferred to an appointed House, either wholly or in part.

A fully or mainly elected House would undermine the balance between the two Houses that has evolved since at least 1958—perhaps earlier. It would produce constitutional complications, disputes and deadlocks, the outcome of which would be difficult, perhaps impossible, to foretell. In the words of the noble Lord, Lord Butler, it would produce a “destination undefined”.

In considering the proposed reform of the House and whether an elected or an appointed House is to be preferred, there are only three relevant questions. First, what is the constitutional function of the House? Secondly, what attributes of Members of the House are needed for the discharge of those functions? The third question is whether election of Members of the House by members of the public is a necessary attribute for the discharging by Members of the House of their functions.

At present, the roles of the House are threefold. First, its reviewing and advisory role in relation to the House of Commons is applicable mainly to primary legislation but also to secondary legislation, particularly under the procedural reforms proposed in the report of my noble friend Lord Goodlad. The scrutiny of legislation is to identify whether any unintended consequences are to be discerned that might be thought to be undesirable, and whether the legislation as drafted will produce the consequences that were intended for it. Those scrutiny processes are highly desirable for the production of sound legislation and are performed by this House to a degree of satisfaction to everyone.

The second role of the House is to provide a venue for the introduction of politically non-controversial legislation. That role can be set aside for the purposes of the present argument, because an elected House would be able to discharge that role as well as would an appointed House.

However, the third role of the House is of critical importance. It is the function of holding the Government to account. That may arise in an almost infinite number of respects—some scientific, some technical, and some that are connected with the Armed Forces, legal matters, matters of medicine or other technologies. The “degree of expertise” is a phrase disliked by the noble Lord, Lord Strathclyde. I would accept “diversity of experience” as a better use of language. That diversity is of huge importance in enabling the holding to account of Ministers to be discharged to its optimum effect. The House as presently constituted contains that diversity of experience. It is by no means confined to the Cross Benches, and is to be found in all parts of the House. It must be very rare for an issue to arise that calls for discussion or debate in the House where no one in the House has experience—expertise, if one likes—of that subject. I can certainly remember no such case since I have been in the House. That informs our debate; it enables questioning of the Minister to be effective and searching.

The next question is whether elections would produce Members of the House as well able to discharge their important constitutional function of holding the Government to account as does the House as presently constituted. The expert knowledge and experience of Members is clearly of great importance, as I have said. The independence of Members is also important. Members of political parties, as well as Cross-Benchers, are independent in the sense that, once they are here, they stay here. They are not subject to discipline by government Whips if they choose to vote or speak against party policy. That independence is important and obtainable under the House as it is constituted at the moment.

I do not believe that an elected House could match the qualities I have just mentioned. The manner in which individuals are appointed is certainly open to criticism. I entirely support the introduction of a statutory Appointments Commission—

[Baroness Garden of Frognal]

I apologise for interrupting the noble Lord, but he has exceeded the guidance time.

[Lord Scott of Foscote]

I have exceeded my time by a minute and I apologise for that. I entirely support the introduction of a statutory Appointments Commission tasked to produce a balanced House. That is important, and consistent with an appointed House.