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Life Peerages (Appointments Commission) Bill Hl

Volume 612: debated on Friday 14 April 2000

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1.50 p.m.

My Lords, I beg to move that this Bill be now read a second time. Why do I wish to place the selection of life Peers on a statutory basis? Fundamentally, I believe that it is constitutionally undesirable for the composition of a parliamentary body to be determined by the executive. The executive is supposed to be accountable to Parliament.

In the present circumstances, that is especially true because the executive powers are to be exercised through the Royal Prerogative, unfettered by the inconvenience of parliamentary scrutiny.

Moreover, decisions about the size of your Lordships' House and its political composition remain exclusively with the executive. In that respect, I regard it as significant that the PricewaterhouseCoopers information pack, distributed by that august firm in the context of its responsibilities for selecting members of the appointments commission, states:
"The Prime Minister will decide the overall number of nominations for the Queen's awards as Peers".
No Prime Minister, who retains control over the overall size of your Lordships' House and over the political proportions within it, can claim to have given up the powers of patronage in respect of your Lordships' House.

I should add that there are no guarantees whatever for the numbers of Cross-Bench Peers. Those guarantees can only be made by statutory arrangements.

My purpose in promoting this Bill is to seek a consensus in your Lordships' House on the appropriate way forward. Until recently, consensus was the normal way in which constitutional change came about in our country. I trust that consensus will be established following discussion of appropriate amendments in Committee.

The Government are already on record as accepting the desirability of a statutory appointments commission for stage two of their proposals for reform. As the Government have said that they will certainly move to stage two soon, I cannot understand why there should be any objection to anticipating it. Indeed, that may give the nation some confidence in the Government's assertion that they want to get there.

In order to help the Government further, the text of the Bill is founded as closely as possible on the content of the Government's White Paper and the PricewaterhouseCoopers information pack.

I turn to the clauses. Clause 1(2)(a) states that the commission shall,
"be appointed in accordance with the rules of the Commissioner for Public Appointments and may seek his advice about best practice in attracting and assessing potential nominees".
That accords precisely with the riding instructions given to PricewaterhouseCoopers by the Cabinet Office.

Paragraphs (b),(c) and (d) of Clause 1(2) deal with the type of person whom the Cabinet Office and PricewaterhouseCoopers hope to attract. Clause 1(2)(b) states that the commission shall,
"operate an open and transparent nomination system for members of the House of Lords not belonging to, or recommended by, any political party".
Clause 1(2)(c) states that the commission shall,
"actively invite nominations by the general public and encourage nominations from such professional associations, charities and other public bodies as it judges appropriate".
Clause 1(2)(d) states that the commission shall,
"publish criteria under which it will determine candidate's suitability for nomination".
Those three paragraphs reflect almost precisely the statement made by the noble Baroness the Lord Privy Seal on 20th January 1999 to your Lordships' House that the commission will,
"be encouraged to seek nominations from many sources, including members of the public".—[Official Report, 20/1/99; col. 584.]
Paragraphs (e) and (f) of Clause 1(2) state that the commission shall,
"reinforce the function of the Political Honours Scrutiny Committee in vetting the suitability of all nominations for the conferment of life peerages tinder the 1958 Act by the political parties; and scrutinise all nominations for life peerages under the 1958 Act on the grounds of propriety in relation to political donations, as proposed in the 5th Report of the Committee on Standards in Public Life".
Again, the wording mirrors the tasks set out in the PricewaterhouseCoopers information pack which states:
"The Commission will vet all nominations to life peerages, including political nominations, for suitability. That will include scrutinising them on grounds of propriety in relation to political donations".
The only one, clear exception to what is reflected in Cabinet Office stipulations and the information pack seems to appear in Clause 1(3), which requires that,
"The Commission shall appoint its own Chairman".
Clearly, that is meat which proves too strong for the Cabinet Office because the Government propose a chairman appointed by the Cabinet Office.

Clause 1(4) states that the commission,
"shall, at most every 6 months, and at least every year, propose to the Prime Minister sufficient nominations as Cross Bench members at least to fill any vacancies among Cross Bench members that may occur through death, disqualification or a decision to join a political party represented in that House".
Some noble Lords may recall the debates during the passage of the House of Lords Bill, and in particular an amendment tabled by my noble friend Lord Coleraine. This clause is inspired by the consequences of that debate. Of course, in addition to the obligation to consider matters "at most every six months", there will be the normal New Year's Honours List and the Birthday Honours List appointments. I foresee that those appointments will also be taken into account by the commission. That means that non-political, Cross-Bench Peers will be appointed to your Lordships' House more frequently than in the past.

In my submission, what appears in the draft Bill reflects reasonably well what appears in the PricewaterhouseCoopers information pack, which states that the commission,
"will be likely to be called to contribute at least twice a year".
Clause 1(5) states:
"The Prime Minister may not refuse to submit to Her Majesty the names of those recommended as Cross Bench members by the Commission, and shall not seek to influence such nominations, save in exceptional circumstances, such as those endangering the security of the realm".
Again, the clause reflects, and is reflected by, similar wording in the PriceWaterhouseCoopers information pack.

Clause 1(6) states:
"In considering nominations as Cross Bench members the Commission shall not give any additional weight to recommendations from the Prime Minister or the Leaders of other political parties".
This clause, as your Lordships must have been aware at a glance, seeks to prevent the Prime Minister trying to influence the commission's recommendations. It is, in particular, intended to block pressure to put party supporters on the Cross Benches in order to frustrate the effect of Clause 1(7)(b). That subsection states that one of the criteria the commission should follow in making appointments is that,
"there is broad parity of numbers between the number of members of the House of Lords who support Her Majesty's Government and the number of those who support the main opposition party in the House of Lords".
I readily admit that such a clause would be otiose in an elected House.

Clause 1(7)(c) states that,
"the proportion of the Cross Bench members to the total number of members of the House of Lords holding life peerages under the 1958 Act remains as it was on the day before the passing of the House of Lords Act 1999".
The intention is that, when additional political appointments are made, those appointments will automatically trigger proportional increases in Cross-Bench Members. I suspect that those Cross-Bench Members who are present in your Lordships' House today are acutely aware of the deterioration in the proportion of Cross-Bench Members to political appointees since the passage of the House of Lords Bill. I believe that, at the time of its passage, the proportions were 354 out of a total of 1,211—in other words, nearly 30 per cent of your Lordships' House—whereas now, the equivalent numbers being 166 and 698, the proportion has dropped to under 24 per cent.

Clauses 1(8) and (9) seek to establish the way in which the commission is appointed. Clause 1(8) states:
"The Commission shall consist of eight members of the Privy Council, of whom four shall be appointed by a special Commission of the Prime Minister, the Speaker of the House of Commons, and the Lord Chairman of Committees of the House of Lords".
Clause 1(9) states:
"Each of the three largest parties in the House of Commons shall appoint one Commissioner on the nomination of the Leader of each such party, and one Commissioner shall be appointed from the Cross Bench members on the nomination of the Convenor of the Cross Bench peers".
The reflection of these subsections in the Cabinet brief can only be described as being a very pale one. What the Cabinet brief requires is previous experience as a spokesman in a high profile role.

There may well be arguments advanced later in the legislative stages of this Bill which convincingly demonstrate that persons other than Privy Counsellors might be appropriate to be candidates for seats on the commission. I believe that Privy Counsellors are the right persons, first, because matters of confidentiality and secrecy will be discussed concerning certain candidates and Privy Counsellors have access to information which other citizens do not; secondly, there is something to be said for the fact that, at least in political life, it is the view of some that once the rank of Privy Counsellor is obtained, most, if not all, ambition is vanquished. Therefore, there would be at least a degree of objectivity in the process of selection which might be absent in those who are simply aspirants.

However, at this stage of the Bill, I do not wish to appear dogmatic about this matter. Whoever sits on the commission can do better than what is proposed by the Government. In my view, the saddest observation of all on the Government's handling of this matter is that future selectors of Members of your Lordships' House will be directly appointed by the Cabinet Office on the recommendation of a firm of chartered accountants. Some might have thought that that was an abuse of Parliament's powers. But we have become so accustomed to the nature of constitutional change that has been made by the Government in the past two or three years that our sensibilities in this regard might now have been blunted. I commend the Bill to your Lordships' House.

Moved, That the Bill be now read a second time.—(Lord Kingsland.)

2.5 p.m.

My Lords, I start by expressing my genuine and humble apologies for the fact that I shall not be able to stay until the end of this debate, and my thanks for my consequential elevation in the list of speakers. Before this Bill was scheduled for today, I had already arranged a number of meetings in the country. I succeeded in cancelling and rearranging those which were to take place in the daytime, but I am afraid that I have an immovable obligation to preside over a meeting early this evening and therefore, with my apologies, I shall have to absent myself.

I hope that, notwithstanding my premature departure, the Minister will answer at least most of the questions which I shall be posing. I have given him notice of them—albeit somewhat tardy and, indeed, scruffy notice. I venture to believe that they raise matters of concern to a number of Members of this House and, in particular, to those Members who sit on these Benches.

For two reasons, to which I shall come, I welcome this Bill and both thank and congratulate the noble Lord, Lord Kingsland, on his initiative in introducing it. My reasons for welcoming the Bill are, first, because it is high time—or, indeed, on the figures given by the noble Lord, Lord Kingsland, well past high time—that we had an appointments commission and, so far, none has been forthcoming. Secondly, when we have an appointments commission, it will be a body that has to perform a very important function and one to which, in reality, a sizeable part of the Royal prerogative is being delegated. In those circumstances, such a body should be established on a statutory basis. As the noble Lord, Lord Kingsland, said, it is wrong that a body which is in effect selecting members of the legislature should be set up by the executive act of the Prime Minister, without debate and without the authority of Parliament.

I apprehend that the noble and learned Lord may well say to the House that this Bill is unnecessary because the Government are going to set up a voluntary commission anyway. As I have said, I would regard such an answer as constitutionally inadequate. It is also somewhat unconvincing. During the passage of the House of Lords Bill, the House was frequently told that the commission would be set up almost immediately; indeed, we were told that it could have been in place by the time that the Bill was passed had it not been for the conduct of the Conservative Party in amending the Bill, or inducing the House to do so, to include a statutory commission. Whatever the constitutional validity of that may have been, it is somewhat depressing that, notwithstanding the assurances that it was; all ready to go, we are now five months from the passing of the legislation and still without any commission; and, therefore, without many Cross-Bench Peers being appointed.

To enable the House to evaluate and compare the prospect of a non-statutory commission as against the commission envisaged by this Bill, there are certain questions that I should like to put to the Minister about the Government's unofficial commission and the way in which it is intended that it will operate. I venture to suggest that these questions will raise issues of principle and importance to the effective maintenance of a genuinely independent element in this House.

I turn to my first question. Clause 1(9) provides that of the eight members of the commission, three shall be nominated by the leaders of each of the three main parties and one shall be nominated by the Convenor of the Cross Benches. As the main function of this commission is to select independent Members of this House, as opposed to merely vetting the party nominations, there would seem to be a very much stronger and more obvious justification for having a nominee of the Convenor rather than three party nominees. Can the noble and learned Lord say whether it is intended that the commission to be developed by the Government will include a nominee of the Convenor? If it will not, can he say why on earth not?

Secondly, Clause 1(7)(c) allocates to the Cross Benches a percentage quota of the membership of this House. As the noble Lord, Lord Kingsland, said, that quota is founded on the numbers and proportions that existed immediately before the enactment of the House of Lords Act. Subsection (4) of the clause requires that that quota be maintained. Under the Government's scheme, can the noble and learned Lord say whether it is intended that there shall be an express percentage quota that has to be maintained? Further, if it is so intended, will that quota be that calculated in accordance with Clause 1(7)(c); that is to say, in accordance with the proportions immediately before the coming into effect of the Act? If it is not to be that quota, can the noble and learned Lord tell us what it is be and how it will be defined and calculated?

Thirdly, I should like to know how the fulfilment of that quota is to be measured. Can the Minister say what categories of Members of this House are to be included as counting against the independent quota? In other words, are those who make up the quota to be those Peers who are genuinely independent of any political party, or can the quota be deemed to be fulfilled by counting everyone who is net currently taking a party Whip in the House?

The Government have frequently expressed their commitment to maintaining "a strong independent" element in this House. But that commitment will have very little real value if a considerable part of the quota is in fact taken up by persons who have a fin n and well-known commitment to one of the political parties, albeit that such persons are not, for the moment, taking a party Whip. I seek to indicate some of the categories of person which I have in mind.

We all know that there are persons with a firm and strong party political commitment and who have followed a party political career who, at a particular moment, occupy a non-political post, albeit everyone knows that their politics remain the same and indeed that they will return to their party, and probably to the Front Bench of their party, when they cease to hold the relevant post. Two names spring readily to mind. One is the noble Lord, Lord Robertson, who obviously cannot sit on a party Bench while he holds his present post. The other is the noble and learned Lord, Lord Mackay of Clashfern—I mention the noble and learned Lord to ensure that I am not scoring a party political point—who sat on the Conservative Front Bench as Lord Advocate, on the Cross Benches as a Law Lord, and who then returned to the Conservative Front Bench as Lord Chancellor. One ventures to believe that neither of those persons greatly changed their political views while they held non-political office.

I now turn to persons who are currently not in receipt of their party Whip. They may have had their Whip withdrawn. One can think, without doing a great deal of historical research, of one or two recent examples. However, those persons are determined to return to their party fold as soon as their party will have them back. Are they really to be treated as independent and as a partial fulfilment of the quota merely because they have been temporarily expelled for party reasons?

My next point is more serious because it concerns potentially greater numbers. Are those who voluntarily resign their party Whip and move to the Cross Benches for tactical reasons to be counted towards the quota of independents? I can say with some certainty that the officials of at least some parties are certainly not blind to the substantial numerical advantage of moving some of their supporters to a "slot" on the Cross Benches, thereby counting against the Cross-Bench quota, and thus obtaining for their own party additional appointments to their ranks.

The Bill seeks to prevent the parties achieving appointments of people who are too closely allied to them, but it says nothing about the subsequent movements of persons who are presently in the House or who come into the House under party guise. I accept that this point will arise whether we have the statutory commission in accordance with the Bill or a voluntary commission set up by the Government. However, it is an important issue if this House is to maintain a genuinely independent element. I believe that the issue has not been addressed so far, at least publicly; and it is one to which an answer is badly needed.

My final question arises out of that point. Is it intended that once some kind of commission is established all appointments to this House, other than those made on party nominations, shall be of persons who are genuinely independent and who intend to commit an appreciable amount of their time to the work of this House? Or, is it envisaged, as the noble Lord, Lord Kingsland, anticipates, that peerages will continue to be conferred honoris causa to the great and the good? Of course, it will be for the appointments commission to decide on individual nominations, but is it to select only active independent working Peers, or are peerages still to be conferred on the great and the good? If peerages are to be conferred on the great and the good, where are those persons counted if, for example, they are either well-known supporters of one party or another—albeit not actually nominated by that party—or if they have manifested, and indeed publicly stated, an intention not to play a great part in the House but merely to accept the honour?

I hope that the noble and learned Lord will be able to answer some of these questions which will enable us to evaluate whether the voluntary commission is an acceptable substitute for the statutory commission, notwithstanding its constitutional deficiencies. I reiterate my apologies to the House for my premature departure.

2.20 p.m.

My Lords, there is an honourable tradition of dealing with difficult subjects on Friday afternoons. In 1906 the government of the day successfully pressed the completion of the Committee stage of the Trade Disputes Bill in a sitting extending beyond 11 o'clock at night.Hansard records that at one point Mr Balfour said,

"I shall take no further part in these proceedings myself, and I advise my friends to follow my example".— [Official Report, Commons, 3/8/06; col. 1775.]
Hansard goes on:
"[The right hon. Gentleman then left the chamber followed by most of the Unionist Members.]" —
leaving Lord Robert Cecil to carry the torch of the last-ditchers. I am sure that there will be no exact parallels with this Bill, except perhaps that the Cecils may once again be at the cutting edge of subterranean political events.

The parallels that emerge today are more relevant to the efforts made to reform this House in 1968–69. Indeed, our discussions about the current problems of the House may be improved a little if we all read again in full the difficulties which arose at that time, when reforms which were perceived to be a threat to the House of Commons united a most remarkable group: my right honourable friend Michael Foot and Robert Sheldon on one side of the House; Mr Boyd-Carpenter and Enoch Powell on the other. They successfully stopped the reforms in their tracks, in what the noble Lord, Lord Callaghan, called "a brilliant mockery of the Bill's proposals". Under those provisions, hereditary Peers could still sit but could not speak. So far, I think we have done better by comparison. However, I do not believe that there are no such independent spirits at the other end of the corridor to take issue with some parts of the present Bill.

The Bill is concerned with the composition, the personnel, of the House—not with its powers. Anything I say about powers is not meant as a criticism of the Bill of the noble Lord, Lord Kingsland; I congratulate him on bringing it before us. After I had read it, I likened it to being not quite so difficult as the favourite question of some Oxford colleagues: "Question One. What is Question One about?" There is a list in the Bill which makes a useful agenda to confront part of the issues with which we and the Government are struggling so much.

In 24 years of attending this House, I have found, somewhat to my surprise, that I have been persuaded that my initial unicameralist views were not wholly correct. But that prompts the question: why do we need a second Chamber? In my submission—this is relevant to the Bill—it is in order to have a proper scrutiny of all important and public Bills. That raises the question: by whom?

As the noble Viscount, Lord Bledisloe, made clear, the Bill makes a special point or the Cross-Bench category. I take issue with the noble Viscount about the question of who are the Cross-Benchers. In my view, if someone with an eminent but political career says that he or she no longer holds to the Whip of a political party, he or she has a personal right to be treated as a Cross-Bencher, even though everyone knows that what he says may still be affected by his past and present beliefs. It would be quite intolerable for the Cross-Benchers to have the power to exclude anyone for reasons of that kind.

This agenda, which is admirably set in Clause 1, will not be accepted as the full agenda by large groups of people. It will not be accepted by the young—who tend to join political parties rather less than when I was young, which I regret. It will not be accepted easily in terms of a set of criteria to be proclaimed by the commission itself. Surely such criteria should be put at least to the House of Commons. The ethnic communities will not buy it; feminists are unlikely to trust it as not having a glass ceiling quota. In other words, this structure will not easily be accepted.

All manner of religious and non-religious bodies will want a special place in the sun, raising issues as to the Establishment of the Anglican Church, and the parallel case for atheists will be quite unanswerable. MI6 may buy it because, under subsection (5), it is to retain a special route to the Prime Minister, but protesters against genetically modified food and other gene manipulation will be unlikely to buy it. What I am saying is that putting eight Privy Counsellors in charge, instead of another person or another group of persons, will not buy acceptance in a very large number of areas of modern life. It might have worked once, but, unless there is a miraculous change in the composition of the Privy Council, the formula of eight Privy Counsellors is unlikely to solve the problems of which we are all aware.

One of those problems is patronage. We have to be clear that almost—

My Lords, I am very much obliged. Perhaps I may ask the noble Lord: why not: and who else?

My Lords, I understand that. It is rather like democracy. It is sometimes a very bad system but all the others are worse. That is what I take to be the point of the noble Lord's question. I am not sure. What I am saying is that Privy Counsellors, as we know them, would not command clear acceptance across a large part of the community and would not necessarily deliver what the noble Lord, Lord Kingsland, is asking for.

It will be difficult for the criteria to guarantee that the new composition will install personnel with special experience for scrutiny in the delay that is allowed in this House. Some work should be done on obtaining a group of that kind. The delay should be used less for devising awkward amendments—I remember having produced some awkward amendments—and more as a period in which special committee work is done on the structure of Bills. Perhaps I may refer to a scholarly work of as long ago as 1974. Professor John Griffith's authoritative work on parliamentary scrutiny of government Bills made a large number of suggestions of that kind, such as the use of specialist committees and cross-examination—something on which the House of Commons has built rather more than this House.

Complaints of patronage, which will be made because we cannot get rid of the ghost of Lloyd George and others, will go on, no matter what system is used. They are difficult to avoid even if one has an elected Chamber, an answer for which people reach easily as though it is a complete solution. I rather share the view that if systems of election are in any way the result of nominations by party machines they will not provide even a quarter of what the Bill seeks to have. It is about election—I appreciate that—but in fairness to the Bill one should say that many systems of election, especially closed lists and other species of proportional representation, will come in for just the same criticism. It will be another category of what on 3rd February 1969 my right honourable friend Michael Foot criticised because there were to be nominations through party machines. He said:
"Think of it! A second Chamber selected by the Whips. A seraglio of eunuchs".— [0fficial Report, Commons, 3/2/69 col. 88.]
That criticism can be made of many of the systems of election that have been proposed.

We do not like to speak much of money. But we all know that, if the Chamber were partially appointed and partially elected, horrendous problems would arise in respect of who should be paid what.

At Committee stage, there will be matters for debate almost as important as the ones I have mentioned. One example is Clause 1(5), which states that,
"The Prime Minister may not refuse to submit to Her Majesty the names of those recommended as Cross Bench members by the Commission".
"May not refuse to submit" is an odd phrase. Presumably the Prime Minister is under an obligation to submit the commission's lists. Can he just sit on his hands? What is he going to do in regard to relations with the sovereign? Will the commission become a body with absolute sovereign powers to appoint under the pretence of nomination? Is the Prime Minister to be allowed to advise Her Majesty? If he is not, the sovereign is left stranded in the middle of a political crisis without being able to obtain the advice of her or his Prime Minister. I take it to be a bedrock of our modern constitution that the position of the Crown is established, wisely, to be that which the sovereign will do on the advice of the Prime Minister— the leader of the party of democratic choice.

Questions of that kind will arise in Committee, and they will need to be debated in relation to another area of the agenda for the middle period of the reform of this House. I refer to a matter with which the Bill rightly does not deal, but which must be stated— because, even if the Bill were wholly unanswerable in its propositions, there would be a different part of the problem to confront; namely, the powers of a second House.

The powers of this House are limited primarily by the 1911 and 1949 Parliament Acts, other than in regard to Money Bills and so on. In common parlance that means a 13-month delay. The Wakeham report explains all the other details and problems very well— although it is one of the least imaginative areas of the report. It explains the powers of delay and the suspensory veto. The periods of delay, too, may need to move with the times. I take it that they should be modernised. For example, however it is composed, the second Chamber must, as the report clearly states, have only a suspensory veto; it must be cautious about obstructing the House of Commons in government business beyond a reasonable time; and it must maintain the Salisbury Convention, especially in not delaying unreasonably the manifesto commitments of the majority party.

Those of us who may be somewhat to the left of centre of the political spectrum do not usually see Cross-Benchers as favourable to their views. "Cross-Benchers" is a curious term. Most Cross-Benchers are at least to the right of the middle point of the spectrum, and one has to face the commitment that no party shall have a majority in this House in that way.

Why do I raise the question of powers? I do so because 13 months is not necessarily a reasonable period in modern conditions to apply to all government Bills. Vetoes are not sacrosanct. The period of 25 months in 1911 was changed, after relatively little debate, in 1949 because it was necessary to stop the last two years of a Labour government's power being utterly useless through inability to govern.

I suggest that the agenda will have to be widened to take in rather more matters than are dealt with in Chapter 4 of the Wakeham report. Some might be resolved more easily by a Joint Committee of the two Houses. The adoption of a Speaker's Certificate as to the nature of a Bill might be taken into account, as it is in relation to Money Bills, and a second Chamber might do better work in not delaying for as long as 13 months a Bill which is at the core of a government's manifesto commitments.

Our constitution has moved. I believe that in the middle or latter part of the term of a government, of whichever party, 13 months is an unreasonable delay. Even a big Bill of great importance could be dealt with quite satisfactorily by changes in the procedures of this House if, for example, the Committee stage was devoted more to eliciting information to be debated in the Chamber than to special political questions and amendments which could, quite properly, be dealt with on Report. One thing is clear: we have become so devoted to the issue of composition and personnel that we have not examined sufficiently the problem of the powers and duties of the new Chamber. I feel confident that the latter will, and should, dominate the agenda at some point. There is a strong case for shortening the period of 13 months to six months in relation to core manifesto Bills.

I congratulate the noble Lord, Lord Kingsland, on offering us this Bill as an agenda on composition. I look forward to his next contribution, which must surely help us to devise a proper agenda on the question of the period of delay and the powers of the second Chamber.

2.35 p.m.

My Lords, I too welcome the opportunity that this Bill gives to explore the advantages of, and arrangements for, a statutory appointments commission. The Government are finally putting in place, entirely on their own authority, the interim independent appointments commission which was outlined in the White Paper (Cmnd. 4183) well over 12 months ago. This Bill is too late to set up the interim commission and too early to be the final solution, because to seek the consensus to which the Government aspire we need to concentrate not only on this but on the many other aspects of the Royal Commission's work still to be agreed.

I hope, nevertheless, that we shall receive an indication from the Minister of the stage the interim commission has reached. Has a chairman been identified? I hope that he or she and the other independent members will have more than a superficial knowledge of this place. As the Leader of the House told me in a Written Answer, the commission will nominate all new Cross Bench Peers. Her response, however, suggested that these nominations would replace half-yearly creations associated with the New Year and Birthday Honours Lists. Perhaps the noble and learned Lord can clarify the position.

I wrote to the Prime Minister on 9th March to point out that, while the Wakeham commission and the Bill before us today envisage roles for the Convenor of the Cross Bench Peers, no arrangement has been made to involve the Convenor in the interim appointments commission. It would help to underline the Government's commitment to a strong independent element in your Lordships' House if the Convenor were involved in the work of setting up the interim commission. I await the Prime Minister's response with optimism.

To return to the Bill before us, there are a number of points which I welcome. First, implicit in the Bill is the concept of an independent appointments commission set up by statute. This would underline and enshrine, in a way that no lesser step could do, the strength of support by all political parties in both this House and another place for an independent element in the new House of Lords. I hope that today's debate will reveal a consensus for the statutory route. While so much is made of the importance of a strong independent element in your Lordships' House, it would be perverse if, when put to the test, it transpired that there was really no strong committed support for entrenching the appointing authority. I remind the House of the words of the White Paper:
"Cross-Benchers will become more important with the removal of the Conservative in-built majority".
I shall judge the strength of the commitment of the political parties to the independents in this House by their reactions to the statutory approach. But given their acceptance of it, the other side of that coin must be accepted too.

It will also entrench occasional parliamentary setbacks, government defeats in this Chamber and difficulties with the passage of legislation. A quarter, I hope, of this Chamber—it will not be supine; it will never be whipped; it will not be brigaded; and it will come and go as it wishes—will have this potential even though it will not be marshalled in any attempt to do so. One cannot but have a sneaking admiration for any executive so broad-minded as to accept such a large lump of intellectual grit in the works of their legislative programme. For my part, I think that it gives the country an assurance that the legislative programme will be well scrutinised and debated, and that the outcome will in the long run be beneficial.

On a mundane issue, I have to say that none of the political parties has shown any strong inclination to recognise an increased importance for independent Peers when it comes to addressing the stark discrepancy between the ratio of desks allocated to Cross-Bench Peers and the parties.

The second point I welcome in the Bill is the place for Privy Counsellors in the appointments commission. If the commission is to be heavyweight—and it must be, if it is a statutory body—then the standing and experience of members must be clear to all and widely acknowledged. Whether under this Bill, the Wakeham commission proposals or something akin to them, the commission will have an authoritative responsibility which must be above and beyond serious challenge. Lesser men and women will not have the respect which each and every member of the commission must enjoy to fit them for their responsibilities.

The White Paper, amazingly, has no formal provision for any member of the commission to be a Member of your Lordships' House. I hope that when it comes to party appointees, this will be corrected. The Bill before us provides for that because the Convenor is to nominate a Member of the Cross Benches to be a member of the commission.

The Bill also proposes that the commission would,
"publish criteria under which it will determine a candidate's suitability for nomination".
I shall turn to the complexities of determining the appropriate criteria in a moment, but I raise this question. Who would approve those criteria? Are the commissioners really going to be given completely free rein by this House, Parliament, the Government and the opposition parties of the day? How will all this sit with transparency and openness?

A number of Cross Benchers have been giving some thought to devising criteria for accepting nominees as independent Members of your Lordships' House. Your Lordships will recall that the noble Lord, Lord Wakeham, placed some emphasis, with which I agree entirely, on the acceptability of part-time attendance among the independent element. I hope that part-time attendance will not be a bar to selection by the appointments commission. But there are more difficult issues about selection to address, in particular as the criteria will have to be open and transparent. I am concerned that the Government's interim commission, breaking new ground on all of this, will be hard pressed to be ready to make nominations in a matter of weeks, as is expected of them.

At present there is a tendency to perceive independent Peers and Cross-Bench Peers as synonymous terms. New independent Members will have been appointed only after establishing their independence of all political parties. The independent appointments commission will devise its rules for establishing such independence, but it will have to be done by means of a number of criteria to which a candidate will have to make satisfactory responses. The guidance to public bodies produced by the Commissioner for Public Appointments, which follows the Nolan principles, may be a good starting point, but it will not produce a complete answer. Some criteria, such as current or very recent membership of a political party, would be a bar. Other criteria might require no party political activity, or donations to a party, for a period of time.

Once these new Members are introduced, they should be logged as independent Peers, thus emphasising their status of independence.

My Lords, is the noble Lord saying that the job of the commission would be to inquire, in a committee or some such body, into the subjective beliefs of a person who says that he is a Cross-Bencher and that he no longer wishes to receive a party Whip? Would that be challengeable by the commission in what one can only regard as a rather curious investigation into people's personal beliefs?

My Lords, I do not dissent from what has been said. I am only drawing on the material that has been made available at this stage, in the White Paper and in the report of the noble Lord, Lord Wakeham.

Also, from time to time, existing Members of your Lordships' House may wish to give up their party affiliations. Previously, they were free to become, and sit as, Cross Benchers. In future it would be better if such individuals were classed as "other" Cross Benchers or "others". Without this additional distinction, the percentage of genuine independents within the House could be eroded. Some seven Members of your Lordships' House are now classed as "other". There should therefore be no difficulty in adding to this number any existing Peers who, having left their party, would not be accepted as independent by the criteria devised by the appointments commission. Where they sit in the House is not an issue. Whether any of them should fall within the ambit of the Convenor—if, for example, they wish him to look out for their interests in Select Committees, give information about future business and so on—is a matter for consideration when the total number and make-up of "others" is known.

Another point in the Bill is the intention that the appointments commission shall nominate individuals under the 1958 Life Peerages Act for life. I welcome that clarity. I do not favour retrospective legislation for those who are, and will he created, life Peers under the present Life Peerages Act. The noble Baroness the Leader of the House did not adopt that position in her reply to a Written Question that I asked. I was disappointed by her response, which seemed to depart from the statement in the White Paper that new Members of the House of Lords will continue to be appointed in accordance with the Life Peerages Act 1958 and that there will be for the time being no changes to the conditions attached to life peerages.

If there were to be retrospective legislation on the 1958 Act, I also fear a re-run of last summer's arguments about hybridity, because some life Peers would he affected and others would not.

The Bill, where it mentions "broad parity" between the government supporters and those of the main opposition party, raises a number of further questions. What role should the commission have other than reporting on this matter annually? How should it define "broad parity"?

Will the new House of Lords be fixed in number or not? The Bill envisages a fixed number of Cross-Bench Peers—I would prefer them to be classed as "independents"—and expects the commission to make up the shortfall in numbers that may arise through death or disqualification, or through individuals moving to accept a party Whip. But the latter will still be Members of the House, so total membership numbers would have to be flexible to allow for that type of move and still maintain independent numbers.

As noble Lords have mentioned, there could also be realignments the other way. In that case, and in other attempts to spell out the size of the independent element of the new House, there are complexities in the Bill that will need to be resolved if there are not to be continual difficulties over the rules to be applied by an appointments commission.

I welcome the opportunity which the debate gives the House to address some of the interlocking points that will have to be considered to prepare the way for an independent appointments commission. Whatever method of appointing is ultimately agreed, devising it will not be an easy or straightforward task, especially so if, as I hope will be the case, it is to be enshrined in statute.

2.50 p.m.

My Lords, this is a debate in which I can utter with total truth a phrase that I longed to hear when I was Speaker in the other place, "The contribution I had intended to make has been much better made by others and I shall not detain the House". I apologise for doing so today. The arguments about the independence of the Cross-Bench independent Peers were well made by the noble Viscount, Lord Bledisloe, and by our noble and gallant Convenor, Lord Craig of Radley, and I shall not repeat them.

It is well known, and it is true, that the Cross-Benchers never hunt as a pack. However, on the question of our independence and numbers in your Lordships' House, now and later when we all hope the Government will legislate to implement the recommendations of the Royal Commission, we are wholly agreed and united. The amendment which I moved to the House of Lords Bill last year was always intended to be temporary.

I intervene briefly to plead for the greater independence of your Lordships' House not only on our Benches, but in the House as a whole. It is my perception that this House is held in somewhat higher regard and respect by the general public than, sadly, is the case for the other place. As a former Speaker, I say that with great sadness. I suspect that that is because we tend to reflect public opinion more accurately and to show a greater independence than does the House of Commons. In my submission, the low repute in which Parliament is held today is both serious and dangerous. It is far easier to lose our freedoms than it is to regain them and we owe all our freedoms to Parliament.

When I was in Brussels about three weeks ago, a Belgian MEP made a significant comment to me. She said that all the countries in the EU had come to their democracy through revolution or troubles of one kind or another, but that ours had always been achieved through Parliament. That is true: France, Germany, Italy, Portugal and Spain came to democracy late in the day. All our freedoms have been achieved through Parliament. The one blip (at the time of King Charles I) was Parliament taking on the executive in the person of the King.

My Lords, perhaps the noble Lord will forgive me for intervening. Did he really say that the remarkable and marvellous demonstration of the urge for responsible representative government which was shown by the British people, and which led to the Civil War, was a "blip"?

My Lords, it was hardly a blip; I used an inappropriate phrase. The greatest enemy of freedom is apathy and I fear that we have it today in terms of our parliamentary system. When I entered the House of Commons in 1964, to be a Member of Parliament was different from what it is today. It was prestigious to be called a "Member of Parliament" and we had a red badge on our cars to proclaim the fact.

In those days, the House of Commons was stuffed full of very independent people. I must say to the noble Lord, Lord Kingsland, that that was especially true of the Privy Counsellors. Not many of the awkward squad are left there today. We need more people of that calibre. I refer, for example, to Tam Dalyell and to the honourable Member for Bolsover. Noble Lords who believe that the honourable Member for Bolsover is a bit of a nuisance should know that Colonel Sir Walter Henry Bromley-Davenport was one of the greatest disrupters of Parliament that I have ever heard. The honourable Member for Bolsover would not hold a candle to him these days.

In those days, the awkward squad was reluctant to take "no" for an answer and was pretty doubtful about "yes". In those days, too, the influence of the Whips was heavily constrained. I should know because at that time I was a Whip and for six years it was my duty to represent the views of the awkward squad.

I believe that it was famously said of Mr Campbell-Bannerman:
"I am their leader. I think I must follow them".
That was true. In those days, party leaders could not force through measures which did not have the support of their Back-Benchers. It is sometimes forgotten that the noble Baroness, Lady Thatcher, had a nickname. She was called "Milk Snatcher". Noble Lords may remember that the government of the day, in which I believe she was Secretary of State for Education, had stopped free school milk. That was said to ruin children's teeth. When Tony Barber (now the noble Lord, Lord Barber) as Chancellor of the Exchequer was going to put value added tax on children's shoes, I, as the Whip, had to tell him that he would have to think again because the party would not follow him. We had ruined their teeth and we were proceeding to ruin their feet as well. He said that it would ruin party strategy. I had to tell him that the party would not agree with him; that there was no point in proceeding because the measure would be voted down in Committee.

I pray that this House will retain its reputation for independence and, in days to come, will not be a pale reflection of the other place. It is our undoubted duty to examine and improve legislation and to ask governments to think again. I agree wholly with the noble Lord, Lord Wedderburn of Charlton, regarding what he said about the importance of a second Chamber. Governments should accept and welcome independent points of view. I pray that the Whips in your Lordships' House will not look with disfavour on those who speak or vote against the party line on either side of the House or, indeed, on the Cross Benches. I believe that our reputation will be enhanced if we have a reputation for independence.

A few weeks ago, I attended the memorial service for the late Sir Robert Rhodes James. Some of your Lordships may also have been present. He was the distinguished and independent-minded Member of Parliament for Cambridge. On the service sheet were printed the words from a speech that he had made in the House of Commons in 1990:
"The growing belief that any opposition is treachery and a course towards disaster is itself a disaster because this House is based on debate and discussion, and on agreement and on disagreement.
Once that is destroyed, the heart and soul of this House is destroyed and, with it, the heart and soul of British democracy".
Those are wise words, and pertinent to this debate and to the future of your Lordships' House.

I suspect that the noble Viscount, Lord Bledisloe, was right when he said that the Government will say that this Bill is unnecessary because they intend to put into practice the commitment that they made to set up an independent commission. However, if they succeed in expediting that commitment, they have my support.

3 p.m.

My Lords, I do not intend to delay your Lordships for very long. In the past hour or so I have had a distinct sense of déjàvu. After all, this Bill is a revised version of amendments which were moved and debated at some length during the passage of the House of Lords Bill through your Lordships' House last year. We did not support those amendments on that occasion. That was partly because we wished to see the Bill enacted as cleanly and simply as possible and in the belief that the Bill should concern itself with no more than the removal of the hereditary Peers from this House. To a large extent that has now been achieved and so that situation no longer applies. However, while I do not believe that it would be fair to say that my party looks on this Bill with hostility, we look on it with a distinct lack of enthusiasm.

I certainly agree that when we reach stage two the independent appointments commission should be a statutory body. T believe that setting up such a commission now would send the wrong signals because it would show that we in this House believe that the interim House will continue for a very considerable time. It seems to me that the present form of the independent appointments commission, as proposed by the Government, is acceptable on the footing that it is a short-term interim arrangement.

My Lords, perhaps I may gain some clarification from the noble Lord. Am I not right in believing that the position of the Liberal Democrats is that there should be a wholly elected House at stage two and therefore that there will be no need for an appointments commission, statutory or otherwise? We are dealing with the current House. Therefore, does not the noble Lord believe that it should be backed by law rather than by the whim of the Prime Minister?

My Lords, perhaps I should have made it clearer that if there is to be a continued appointed element in the House at stage two, then there should be a statutory independent appointments commission to appoint it because at that stage it would be clear that it will continue in existence for some time. We do not believe it appropriate to include it at this stage because it writes something into statute which is likely to have effect only for a short, interim period.

In saying that I am not indicating in any way any failure to recognise the important contribution that Cross-Benchers make to this House. It is certainly our very firm wish that as long as the interim House continues there should be measures that ensure that an adequate number of Cross-Benchers are appointed by an appropriate system. However, for the moment we believe that the system proposed by the Government is adequate. I believe that our views would change if the present government were to be re-elected and did not show a wish to proceed immediately to stage two.

We on these Benches wish to press on as soon as possible to stage two, although if the Wakeham commission proposals, or anything significantly like them, are accepted that would have to be described as stage one-and-a-half rather than stage two.

Looking in more detail at the Bill, I note that there are two specific defects. First, subsection (7) broadly repeats the government proposals in the White Paper. However, it omits one element which, not surprisingly, we on these Benches regard as crucial; that is, a reference to proportionality of representation for other parties in your Lordships' House. As your Lordships will know, that has been the subject of some controversy recently between my party and the Government.

Secondly, subsection (8) requires the members of the commission to be members of the Privy Council. That is something which has been proposed by the noble Lord, Lord Kingsland, and approved by the noble and gallant Lord, Lord Craig of Radley. But the Privy Council seems to me to be a most inappropriate body to make such a selection.

The members of the Privy Council are, to a very large extent indeed, senior politicians or judges, either from this country or from a number of member states of the Commonwealth. Those who are judges or politicians from the Commonwealth are not likely to be involved in the selection process. Clearly, that would be inappropriate. But a body which consists almost entirely of senior politicians and judges, which contains very few women—a quick glance through the list of Privy Counsellors shows that the number of women is in the low 20s—and which contains, so far as I can make out, no members of an ethnic minority in this country is plainly not an appropriate body.

The noble Lord, Lord Kingsland, said that there are two grounds for believing that the Privy Council is the correct body. First, there would be matters of confidentiality; and secondly, ambition would be vanquished. But that is not exclusive to Privy Counsellors. I should say that it has been announced that my party's nominee to the proposed interim appointments commission is my noble friend Lord Dholakia. He is a person who is, I believe, of unchallenged integrity, would make a wholly appropriate member of that commission, but is not a member of the Privy Council.

Those particular defects—that is, the exclusion of proportionality for other parties and the restriction on membership of the commission to Privy Counsellors—could be corrected by amendments in Committee. But I cannot hold out any real hope to the noble Lord, Lord Kingsland, that that would be enough to persuade us to take an interest which would become positive support for the Bill.

3.8 p.m.

My Lords, I am grateful to my noble friend Lord Kingsland for keeping this issue before the House. I congratulate my noble friend both on his initiative and on the way in which he introduced what I believe to be an extremely important Bill. I pay tribute to all noble Lords who have spoken in the debate. It has been particularly good to have so many distinguished contributions from the Cross Benches.

There has been something a little unseemly in the way in which the Government's plans in relation to an appointments commission have been advanced without consulting the Cross Benches and without giving this House an opportunity to debate the matter. I need not add to the complaints which your Lordships had to learn from a Cabinet Office press release on 18th January of the appointment of head-hunters to appoint a non-statutory appointments commission to appoint Members of this House. This House should be informed properly of developments which affect it or its Members. At least now, with this Bill, we have the opportunity to debate those important issues.

Several undeniable facts underlie the debate. First, as my noble friend Lord Kingsland pointed out, the House of Lords Act has doubled the proportion of life Peers under the 1958 Act within the total membership of the House from some 40 per cent last November to almost 80 per cent once the latest introductions have themselves been introduced. Secondly, in our recent debate on the Wakeham report, the noble Baroness the Leader of the House implied that she would accept no more than 87 elected Peers in a House of 500 or 550. That would mean about three-quarters of the Government's favoured long-term model for the House being made up of appointed Peers. Thirdly, the present Prime Minister has been dubbed, "the uncrowned King of Ermine". In less than three years he has created as many life Peers as my noble friend Lady Thatcher created in 11 years. Fourthly, there is a growing public sense that the life peerage has moved—as I forecast that it would in our proceedings on the House of Lords Act—to the frontier of what is acceptable in a modern Parliament.

The growing place of patronage in this House, the growing—indeed, unprecedented—use of patronage and the growing sense among the public that that system is out of keeping in a modern Britain all point to the fact that we need some new system for supervising and safeguarding the creation of the dominant element in this House. It will be remembered that the hereditary peerage did not owe its place to anyone living. The appointed peerage, by contrast, by definition does. Without any offence to the many distinguished figures who are here as a result of it, it is that process which must be put beyond question. We cannot go on with a Prime Minister creating a Peer, on average, every five days or so and not expect people to ask some questions.

An independent appointments commission is essential for so long as the appointed peerage dominates three-quarters to four-fifths of one House of our Parliament. That is incontestable. I fully expect the noble and learned Lord, Lord Falconer of Thoroton, whom I am delighted to see is replying to the debate, to set out in detail today the personnel identified by his head-hunters to serve on the Government's quango commission. Perhaps he will set out their terms of reference, the number of Peers they are to appoint, and the limits the Prime Minister will accept on the size of the House, if any. After all, he and the rest of the Government have had three years to think about the matter and, 200 Peers later, it is time for an answer.

I was amused to see the Prime Minister saying in a recent interview in the Observer:
"I am the first Prime Minister to give up patronage".
You could have fooled me. Is it not odd how after three years in office, the view looking out from the balcony of No. 10 is so different from the view of the outside world looking in? Whatever else may be said of the Prime Minister in the "Dog and Duck", that he has given up patronage is not the first thing that would spring to mind.

I must say also to the noble and learned Lord, Lord Falconer, that to announce the la test news on his quango commission will not be enough. I hope that he will tell us when we can expect to know more on the details of the new commission; when it will be set up; and when the details will be announced of the chairman and the other personnel who will be involved. I and many other noble Lords were struck by the terms in which the noble Baroness the Leader of the House accepted the Wakeham commission's recommendation— in line with what we have been saying for the past three years— that any appointments commission must be statutory. She said "Yeees", in principle, in due course. We then had a classic paragraph of Cabinet Office prose on all the difficulties that would then ensue.

Of course, there are difficulties with the details of the proposals of my noble friend Lord Wakeham. The noble Lord, Lord Wedderburn of Charlton, mentioned some of them, as did other noble Lords. Those are, of course, precisely the kinds of area where I hope that my noble friend Lord Kingsland will invite the House to propose amendments when we reach Committee stage. But the possible existence— this year: next year; sometime; never—of a stage two is no reason not to bring in safeguards on the use of patronage now. Those safeguards should include independence rooted in law for the appointments commission. They should include an independent chairman chosen by the commission itself, and not by the Cabinet Office. I cannot understand why the Government have decided that they must appoint the chairman and that he or she should not come from members of their commission. They should include checks on the Prime Minister's power to control the overall number of Members of this House and the relative strength of the main parties and of the Cross Benches. They should underpin and strengthen the Cross-Bench role in this interim House.

My Lords, is the noble Lord suggesting that there is any system at all that will be found not to include a large clement of patronage in relation to membership of this House? The noble Lord quotes the Prime Minister's appointments. Over the years there have been many objections to "patronage", as it is called; I am not sure that a system of necrophilic patronage is better than a living one.

My Lords, on the hereditary peerage, my point is that it owed no duty to anybody living. There is a doubt as to whether that is true of the current system.

The point that we make from these Benches is a broader one. At the moment, the only way into this House is if the Prime Minister ticks your name. He decides not only who will be a Member here, but also the political balance and the overall number of Members. I hope that the noble and learned Lord, Lord Falconer, will put me right if I am wrong in saying that. All we propose today is that some of that patronage should be taken away from one person— the head of the executive, the Prime Minister—and be put into the hands of a commission. We have attempted to introduce an element of independence.

Of course, the Government have accepted that argument because they propose their own appointments commission. The difference between our commission and theirs is that ours is backed by law. As I said a moment ago to the noble Lord, Lord Goodhart, theirs has been produced a t the whim of the Prime Minister. The Prime Minister could wake up tomorrow and decide that he will not do it. Under this system, it can be changed only by the will of Parliament. That is why it is so much more important.

This Bill provides for all the matters that I have mentioned and all those that my noble friend has mentioned. Perhaps I can also tease one other point from the noble and learned Lord. Your Lordships will know my strongly held view, and that of my party, that we should now proceed to the creation of a Joint Committee of both Houses to consider proposals for stage two. There is no reason why that commission should not be set up. This House and another place expect and deserve no less. As Mr Tony Wright, the chairman of the Select Committee on the constitution said recently in another place, it is wrong for the Government to exclude Parliament from this discussion just as it was wrong to exclude the Cross Benches from discussion on the interim appointments commission.

I hope that my noble friend's Bill and this debate will provide a basis for discussion of the stable and long-term statutory commission that is widely demanded inside and outside the House. I confirm what my noble friend has said: for our part, we are ready to consider amendments from all sides of the House in order to get it right. In fact, we offer the Bill to the Government as a vehicle by which we may achieve a statutory appointments commission.

My noble friend has shown that his proposals differ from the Government's only in the sense that they entrench independence further and limit the Prime Minister's power of patronage. It is right to err on that side. I hope that we can find a way, with the good will shown by most speakers so far—

My Lords, as I understand the principled position taken up by the noble Leader of the Opposition in this House, he accepts that the appointments commission will reduce the Prime Minister's power of patronage, but his point is that it should be a statutory appointments commission. Therefore, I assume that, apart from that point, he is content with the arrangements in relation to the appointments commission proposed by the Government.

My Lords, not entirely. I shall tell the noble and learned Lord why. I agree with his point about it being statutory and hope that he agrees with my view on that. But it is difficult to take part in this discussion because we do not know enough about the appointments commission currently being proposed and cooked up in the Cabinet Office by the Government. I understand that the Prime Minister will still decide the political balance in this House and will still decide the overall numbers. If I am wrong, perhaps the noble and learned Lord will put me right.

My Lords, the noble Lord, Lord Kingsland, fairly pointed out that what he sought to do was to reflect in his Bill the Government's proposals. I am entirely unclear now as to what the Opposition's position is.

This Bill is being presented by the noble Lord, Lord Kingsland, as a reflection of the Government's position. It is being put forward on the basis that the only two differences are the Privy Counsellor point and the selection of the chairman by the body itself. Apart from that, no other changes have been made. I take it, therefore, that the Opposition are content that that is a suitable discharge of the power of patronage, apart from the point, fairly made by the noble Lord, that it is statutory rather than non-statutory.

My Lords, if it was a fairly made point, I hope that the noble and learned Lord will accept the principles underlying this Bill and give his support to getting it through Parliament; in which case, I shall continue to support him.

There is one other difference. The Bill entrenches the point on the proportionality of the House, which is why the commission needs to be statutory.

My Lords, I apologise for continually interrupting. Perhaps the noble Lord will stop me if it causes difficulties. The noble Lord, Lord Kingsland, took the proportionality point from the White Paper. We accept that the proportionality which he seeks to reflect—I am not taking any drafting points here—broadly reflects the point for proportionality that we have always put forward for the transitional House.

My Lords, that takes us back to the point on which the noble and learned Lord and I agree—it is good that we agree because we bring this Bill to the House in a spirit of consensus—that is, that the commission should have a statutory basis. If we do not disagree about the details, then when he rises in around 30 seconds the noble and learned Lord must be going to tell us the reason why the commission cannot be statutory.

The Bill before us will strengthen the life peerage; it will strengthen this House; it will strengthen the political process itself. On that basis, we should seek to be equal to the challenge that my noble friend Lord Kingsland has set us this afternoon.

3.22 p.m.

My Lords, the exchange I have just had with the Leader of the Opposition is significant. As I understand it, it has been the position of the Opposition in this House that the Prime Minister has not adequately shed his powers of patronage. As I understood the effect of our exchange, apart from the issue of whether or not the commission should be statutory, the Leader of the Opposition would be content with the arrangements advanced by his noble friend in this Bill.

The only difference between the proposals advanced in the Government's White Paper and this Bill are in effect points of detail rather than points of substance, such as how the chairman is appointed and the Privy Counsellor point. That is how the noble Lord, Lord Kingsland, introduced his Bill. At the moment, therefore, I am quite unable to understand how the noble Lord, Lord Strathclyde, can continue to make what appear to me to be thoroughly bad points about the Prime Minister not having given up his power of patronage.

The noble Lord, Lord Kingsland, looks pregnant with excitement, as though he wishes to rise and interrupt me. If he does, then I shall immediately give way.

My Lords, I am relieved to say that, in my case, pregnancy is quite impossible!

I should like to assist the noble and learned Lord, Lord Falconer, though I suspect he is not in the mood to be assisted this afternoon. If the noble and learned Lord would be kind enough to cast his mind back to the beginning of my speech—though I accept that that may, perhaps, be too distressing an experience for him—he will recall that I said that my fundamental objection to the route that had been chosen by the Government was the fact that the executive, through the exercise of the Royal prerogative, would be determining part of the composition of Parliament. That seems to me at any rate to be the reverse of how a good constitution should work. A good constitution requires the executive to be chosen by Parliament.

If the selection process is statutorily based, which is what I seek, we will have a commission that is independent of the Royal prerogative determining the composition of your Lordships' House. That would satisfy the constitutional criterion that I laid down at the beginning of my speech. In my submission, that is the fundamental objection to what the Government are seeking to do at the moment.

My Lords, as I understand it, the Conservatives would be content with the following arrangements in the interim House—I make no claims for what their position would be in relation to a final House. First, they would be content with the Prime Minister nominating the Labour Peers; with the leader of the Conservatives nominating the Conservative Peers; and with the leader of the Liberal Democrats nominating their Peers. Secondly, they believe that the makeup should be broad parity between the two main parties; that the Cross-Benchers should equal as a proportion of the whole House the proportion that they broadly represent now; and that the Cross-Benchers or "independents", as some noble Lords wish them to be called, should be nominated not by the Prime Minister but by the appointments commission.

I do not want to go into any further detail, but, as I understand it, the Conservatives would be happy with such an arrangement and would regard it as being satisfactory. The only difference is that, instead of the appointments commission being established under arrangements that the Government presently propose, they believe that it should be established under arrangements contained in a statute. I see that noble Lords opposite are nodding their heads. That is what the position will be, except for the statutory point. Therefore, I imagine that the noble Lord, Lord Strathclyde, will now no longer complain about patronage—

My Lords, has not the noble and learned Lord said something quite significant? Does he not feel ashamed of himself and of his government? The first time that we in this House have heard what it is that the Government propose in their interim commission is when they have been dragged to this Chamber on a Friday afternoon by a Bill tabled by the shadow Lord Chancellor. They sneaked out the announcement in a press release and in a Written Answer about the setting up of an appointments commission that disposes of seats in Parliament. This is the first time that this House has had the opportunity to debate the matter.

My Lords, what an utterly bogus point made completely mischievously by the noble Lord, Lord Strathclyde. If the noble Lord, Lord Strathclyde, did not know that those were the provisions, how was it that his noble friend Lord Kingsland knew that that was the position? Indeed, that is what he said as he introduced the Bill. What a hopeless and completely mischievous response by someone who, until he made such a response, I would have thought knew a lot better.

As the noble Lord, Lord Goodhart, said in his speech, there is a tremendous sense of déj àvu about this debate. The arguments deployed in favour of this Bill by the noble Lord, Lord Kingsland, have not changed in the intervening five months since we first heard them during the course of the passage of the Act—

My Lords, I am at least grateful for having been exhibited as a man of principle.

My Lords, that is what I would expect of the noble Lord, Lord Kingsland.

This is the Second Reading of the Bill and therefore it is not for us to go into detailed textual criticisms of the measure. However, there are some flaws that are so fundamental that I believe they should influence our views even at this stage.

We had three main reasons for rejecting these measures when they came before us last time, and none of those has changed, except to become stronger and more relevant. First, and most importantly, they are unnecessary. Secondly, the proposals are not in a number of details—I have referred to these—the same as those of the Government. Thirdly, they do not begin to address the real complexities of what they are trying to achieve.

I hope that I may once again set out the background of the Government's commitments—which have been made repeatedly and publicly—against which this Bill should be judged. They are the commitments which we are already fulfilling. First, there are our commitments about the overall shape and structure of this House over the lifetime of the transitional House. We have pledged not to seek more than broad parity with the main Opposition party. We still have 34 fewer Peers than they do. We have pledged that there shall be creations for other parties proportionate to their share of the vote at the previous general election. All of that has been made clear and the only person who appears to have missed those commitments is the noble Lord, Lord Strathclyde. Therefore, in the previous round, the Liberal Democrats were offered more than twice as many new creations as the Conservatives and a 17 per cent increase in their membership compared with an 11 per cent increase in the Government's. We have pledged not to interfere in the recommendations of the other political parties except on the grounds of national security. Your Lordships have a 11 recently seen the effect of that pledge in action.

Most significantly for the purposes of this debate, we have pledged to set up an appointments commission to take on the job of producing names for non-political Peers, and to vet all peerages for propriety. We undertook that this body would be established in accordance with the rules of the Commissioner for Public Appointments; that means through an open recruitment process. Again, all of that has been made clear and has been made public in an entirely appropriate way.

My Lords, it was in a White Paper. I understand that the point that is now being made by the noble Lord, Lord Strathclyde, from a sedentary position, supported by the noble Baroness, Lady Blatch, is not that he did not know about the relevant matters but that they were not made in a statement to Parliament.

The Government are proceeding with the appointment of a non-statutory commission. Noble Lords will be aware of the extensive public exercise which we undertook in order to identify and invite a wide range of names for consideration as members of the commission. We recruited in January a specialist recruitment agency to help with the process. This has been criticised. The Government think that that is money well spent to ensure that the widest possible field of candidates is considered. It demonstrates our commitment to the process of open recruitment. We advertised publicly in the national, regional and ethnic press last February. A distinguished panel of people, including a Member of your Lordships' House, is sitting with the Cabinet Secretary to identify names for the Prime Minister's consideration. The appointments process is making good progress. The Prime Minister will announce his decision on the membership of the commission when he is ready to do so. He still hopes that this will be around Easter, as planned; but the important thing is to get the right people for the job. I think we would all agree on that.

The noble Viscount, Lord Bledisloe, who, sadly, has had to leave, asked me a number of specific questions about the work of the Government's appointments commission of which he was good enough to give me notice in a letter of 12th April. Many of these questions were echoed by the noble and gallant Lord, Lord Craig of Radley. As I have already said, I confirm that it is the Government's intention that during the lifetime of the transitional House the non-political Peers will form a fairly constant percentage of the House. That percentage is around its present level. Effectively, therefore, the quota, as the noble and gallant Lord put it, has already been fixed and there is no need for either the Government or anyone else to do so in the future.

Most of the noble Viscount's other questions—and those of the noble and gallant Lord, Lord Craig of Radley—were directed to the appointments commission itself. He asked whether there would continue to be any purely honorary life peerages in the future. The Government have said that once the appointments commission is up and running all nonpolitical peerages will in future be recommended by the appointments commission. It will be up to that body whether, in any particular round, it wishes to recommend someone who traditionally might have hoped for a peerage by virtue of his or her professional position. The existence of such candidates is, by their nature, likely to be known well in advance. Some people may, of course, decide to make a contribution to the work of the House which would qualify them anyway for the definition of a "working Peer". The distinction is not necessarily clear cut. I believe that that was recognised in the speech of the noble and gallant Lord, Lord Craig of Radley.

The same applies to those who may covertly have marked political sympathies. It will be up to the commission to decide how it wants to probe such questions and what notice to take of them. The Prime Minister will continue to determine the number of nominations he will seek from the commission, but in the context of the proportions that I have indicated.

Finally, the noble Lord and the noble and gallant Lord asked why the Convenor of the Cross-Bench Peers was not being asked to nominate a member of the appointments commission. The Government decided that the independent interest would best be represented by those recruited directly by open competition. Political interests, of course, can only be represented by those nominated by their parties.

As I have said, the Bill is unnecessary, irrelevant and a complication. By the time that this Bill could complete its passage, even through your Lordships' House, the appointments commission will be well established. This Bill would add nothing to the situation. Instead, if it ever became law, it would be an unnecessary complication. It would mean inflexibility, confusion and would add no practical strength to the commission's status.

It is claimed that these are the Government's own proposals and therefore we should have no objection to legislating for them. That is what the noble Lord, Lord Kingsland, said. There is a world of difference between the language that is suitable for a White Paper—which is where the noble Lord, Lord Kingsland, has mostly quarried for his Bill—and that which is needed for a Bill. The White Paper proposals are not drawn up as a statutory blueprint; they cannot just be lifted verbatim and put into statute. Legislation needs to cater for all foreseeable circumstances. A non-statutory arrangement can lay out broad principles. If specific circumstances arise which have not obviously been catered for, it is probably possible to devise a satisfactory solution from those broad principles. That cannot be done with legislation. In many respects, that is the way in which our constitution has always advanced in the past.

There are gaps in these provisions. For example, they contain no commencement date or transitional provisions. Yet, by the time the proposals made in the Bill of the noble Lord, Lord Kingsland, could become law, the interim appointments commission will be well established. What is to happen to it? The Bill would require it to be disbanded and the commission envisaged by the Bill put in its place. This is likely to be a mess, to put it mildly, and a waste of resources. The whole recruitment exercise would have to be done again. Meanwhile, for a period of perhaps three months, there would be no commission at all—no means of vetting political Peers and no means of nominating Cross-Bench Peers. The knock-on effects, as the new commission settles down, could last longer.

So the consequences of the Bill proposed by the noble Lord, Lord Kingsland, would not be to strengthen the position of the present appointments commission but to undermine it. If it looked as though it was going to be replaced shortly, no one would take it seriously. It might he argued that, in practice, the existing commission would continue seamlessly into the statutory one, with the simple addition of a Cross-Bench nominee, but no one can possibly guarantee that.

The Bill requires the Speaker of the other place and the Chairman of Committees to join the Prime Minister in choosing the members. I am somewhat surprised that your Lordships are prepared to contemplate the idea that the Speaker of the other place should have a role, albeit at second hand, in selecting the Members of this House.

My Lords, I am sorry. I thought I heard the noble Lord, Lord Strathclyde, say something from a sedentary position.

My Lords, I said, sotto voce, "Better than the Prime Minister at first hand".

My Lords, I thought that we had established that that was not the noble Lord's complaint. I thought his complaint was about whether or not it was statutory. I am not quite clear where the Opposition now stand on this issue.

How can we possibly say at this stage that they will endorse his choices? But what is the point of treating them as a simple rubber stamp? What about the position of the chairman, separately recruited but now to be subject to the election of his or her fellow members? Would a seamless transition in any case be consistent with the requirements of the proposed subsection (2)(a)?

What about one of the further embellishments of the requirements—which is not taken from the Government's own proposals—that all members of the commission should be "members of the Privy Council"? When pressed as to why that was, even the noble Lord, Lord Kingsland, put his arguments with his tongue in his cheek. To say that they are the only people in the world for whom ambition is vanquished seemed, if I may say so, somewhat humorous. The noble Lord, Lord Goodhart, clearly demonstrated—perhaps "fatuity" is an unfair word—that it was not a sensible suggestion.

My Lords, if the noble and learned Lord takes the trouble to read Hansard—he may or may not—he will see that I did not put it quite like that.

But almost.

The natural reading of that is that they, the members of the commission, must be members of the Privy Council before appointment. How would that be factored into a situation where existing members of the commission may not be Privy Counsellors? Further, what would be the consequences of a failure by the commission to make the appointments required by subsection (4)? What happens if the Prime Minister breaches the requirements of subsection (5)? Or what happens if any of the people who are to make appointments under subsections (8) and (9) fail to do so? Can the commission not be established at all? Where are the teeth in the Bill? How can it be enforced?

The answer is that it cannot be, as it stands, and it is inherently difficult to see how it ever, could be. We cannot prevent the Prime Minister advising the Queen, since she must seek the advice of her Ministers. We cannot force him to advise her in a particular way. The Prime Minister's commitments in this area do all that is necessary. To the extent that the objective of this Bill, as it was the objective of the amendment to the House of Lords Act, is to ensure that the Government do establish an appointments commission, then it is completely redundant.

Some noble Lords—indeed, it would appear to be the only point being made by the noble Lord, Lord Strathclyde—have spoken in support of the Bill on the grounds that provision of this kind ought to be statutory. That brings me to the argument that the provision is unnecessary on legal grounds. As we have explained many times before, it is quite normal to set up this kind of body as a non-departmental public body without statutory backing. That does not affect either its standing or its effectiveness and it provides that degree of flexibility which is appropriate for the beginning of such a body.

Nor, I would submit, would it affect the commission's continued existence. A body such as we are setting up will rapidly become an accepted part of the political landscape. Look at the Committee on Standards in Public Life. It is a body which the noble Lord, Lord Strathclyde, obviously does not like. I do not know why. It is impossible to imagine our public life without it, yet its only right to existence is the statement in another place of the then Prime Minister, the right honourable Member for Huntingdon, that he proposed to appoint it. It would be impossible for any Prime Minister now to disband that committee without replacing it with something stronger. The same will rapidly become true of the House of Lords appointments commission. It does not need statutory backing to secure its continued existence.

Many of those who have pressed the case for a statutory commission seem to have been motivated by the desire to take the Prime Minister out of the process. That appeared to be, in one or other moments of the noble Lord's speech, his point. The two things are, of course, quite separate. It is quite possible to have a statutory process which accords a central place to the Prime Minister. Conversely, the Government's own proposals already take the Prime Minister out of the process so far as it is proper to do so without a complete change in the relationship between membership of this House and the monarchy. The latter, I admit, would require statutory provision, and provision which the Bill before us does not adequately make.

At the end of the day, it is the sovereign who awards peerages. Generally, legislation does not trespass into the delicate area of relations between the sovereign and her Ministers. This is not an issue which can be addressed simply by the introduction of amendments to the Bill presently before us. The Bill would almost certainly require to be completely rewritten. The implications of statutory provision in this area are such that it should not be embarked on as a by-product of a provision which is only temporary, as this one would be. Is a statutory commission to be answerable to anyone for its recommendations for the award of honours? By convention, the Prime Minister is not.

Your Lordships might argue that all these points could be addressed once the Bill went into Committee. I am suggesting that there are too many of them for it to be worth while even embarking on the exercise. What is the point of going to all that trouble to make statutory provision for an arrangement that will be only temporary—which, as I have said, is not necessary in order to see an appointments commission established and which would interrupt the work of the appointments commission that the Government are already setting up. Even if they were addressed, the shadow that would be cast over the existing commission would continue to exist.

Moreover, if the Bill were to reach the other place, and if it were to find time there, we should be advising our honourable and right honourable friends to vote against it. Your Lordships therefore risk wasting a great deal of time for no purpose. As we have established in lively debate, all that the noble Lord is asking for is statutory backing. I hope that I have satisfied your Lordships that there is no need for statutory backing to achieve precisely the purposes that the noble Lord requires. I earnestly suggest that, as a man of principle, the noble Lord, Lord Kingsland, will think that this is not a sensible way to spend the time of the House; namely, going through a Bill that achieves next to nothing and simply detains the House.

My Lords, before the noble and learned Lord sits down, as a Cross-Bencher who has not taken part in the debate perhaps I may ask him a question. He dismissed in a few words the idea that the noble and gallant Lord the Convenor of the Cross-Benches should play a part. Cross-Benchers find that somewhat hard to understand when the parties are to be represented. As the noble and learned Lord spoke so briefly on the subject, will he give a reason?

My Lords, I apologise for perhaps not going into the matter enough. The political parties have a role in the process because they are in effect directly nominating people to be Members of this House. The Cross-Benchers are not nominating people to be Members of the House; it is for the appointments commission to do that under the new arrangements. The independent element on the appointments commission is not to come from the Cross-Benches in this House. It is to come from the members of the commission, appointed on an independent basis. On that basis, it seems much more appropriate that it is the members of the commission, appointed as independent members, who should sit on the commission rather than someone appointed by the Convenor of the Cross-Benches. That is the thinking behind not having the Convenor of the Cross-Benches as someone who nominates a member of the appointments commission. He is in a different position from the members of the main parties, who would send people directly, subject of course to their being vetted for propriety by the appointments commission.

My Lords, I apologise to the House for intervening again; it is Friday afternoon and it is getting late. But Cross-Benchers are feeling a little sensitive at this juncture that others are to have a go at deciding who joins our Benches, whereas those others are able to take care of themselves. I cannot see the great harm that would arise from either the Convenor or his representative being part of this process.

My lords, ten minutes to four on a Friday afternoon is not the time to deal with this matter. We have both put our points of view clearly.

3.48 p.m.

My Lords, I have listened with great interest to the noble and learned Lord's speech, as he would have expected. Having heard his reasons, which were legion, for rejecting a statutory appointments commission at the transitional stage, I look forward eagerly to hearing his reasons for appointing a statutory appointments commission at stage two.

I have been asked many questions during the debate and I am keen to give all of them a detailed reply. However, since I hope your Lordships will give the Bill a Second Reading, the opportunity to do so will wait, I trust, until the Committee stage.

On Question, Bill read a second time, and committed to a Committee of the Whole House.