rose to move, That this House takes note with approval of the report of the Joint Committee on Conventions of the UK Parliament (HL Paper 265, Session 2005-06).
The noble and learned Lord said: My Lords, the critical purpose of today’s debate and resolution is to provide the opportunity for this House to express its views on the Joint Committee’s report, and if it is so minded, to note it with approval. For the Government’s part, we accept the report. The Government believe that the House should accept the report; that is the Government’s position. But today’s debate and resolution is very much a matter for this House—it is the House’s position which matters today, not the Government’s. At the end of today’s debate I will invite your Lordships’ House to take note of the report with approval. Tomorrow my right honourable friend Jack Straw, the Leader of the other place, will invite the other place to agree an identical Motion.
In its report the Joint Committee proposed that both Houses be given an opportunity to debate, and the Lords to agree, a resolution setting out the terms of what started as the Salisbury-Addison convention. The Joint Committee’s report sets out in an authoritative and, we believe, accurate way a description of the relationship between both Houses, going beyond simply the conventions. Today’s debate and resolution goes beyond the procedure suggested by the Joint Committee, and allows your Lordships’ House to express its views on the whole report.
First, I pay a heartfelt tribute to all on the Joint Committee who have produced a truly excellent report. For reasons which I will set out later I hope and believe that it will become a document of constitutional significance. My noble friend Lord Cunningham of Felling chaired the committee in a manner that produced unanimity and quality. The individual members of the committee have brought wisdom and experience to the issues. Their unanimity of view is all the more significant when the width of party and political differences on other issues is considered. Officials ably assisted the committee, and I thank them too.
It is invidious to single out any individual member of the committee beyond the chairman, but there is one who I would like to mention. The committee had the benefit of my late, lamented friend Lord Carter’s membership. That he had the respect and affection of the whole House goes without saying. But the report carries all the more authority because one of its authors had the knowledge and understanding of your Lordships’ House that he did. Many people will say that if Denis supported it, it must be right.
Today’s debate is of historic importance. The House of Lords has a long history and a proud record. We all of us have responsibilities to this House; to what it does, to how it does it, and to what it does it for. We should all be mindful of those responsibilities today. Many of the considerations of this House—the inquiries, the reviews, the reports—have been of extremely high quality and have helped shape the House as we now have it. I have no doubt that the report before the House today is set to join that group. It is a thorough report. It is an accurate report. It is an authoritative report. It will, I believe, become the standard account of the current relationship between the two Houses of Parliament, the constitutional set text on this vital issue, and the touchstone for all future considerations of the subject.
The report is authoritative on the current position for two separate reasons. First, it is thoroughly well written and researched and it is a compelling document; compelling in the sense that it accords with the views of people who understand how your Lordships’ House works and how the relationship with the Commons works. Secondly, the Joint Committee was made up of representatives from both Houses and from all the main parties, and they were unanimous on everything.
I say unequivocally on behalf of the Government that we accept the report’s description of the relationship between the two Houses. We accept its formulations of the conventions, including its description of the nature of the conventions as being flexible and unenforceable, and its descriptions of the practices and arrangements that affect the relationship between the two Houses. We support the conclusions set out in the report, subject only to whether what the report recommends be called the “government Bill convention”, should, in fact, be called the “Cunningham convention”, as we submit. That involves no difference of any substance. It is slightly more than simple flattery of my noble friend Lord Cunningham of Felling.
The Joint Committee’s report at the outset says:
“At its core, the work of this Joint Committee examines the relationship between the primacy of the House of Commons, and the role and conduct of the House of Lords, as defined by the unenforceable conventions which govern its proceedings. This reality is one of the principal consequences of an unwritten constitution”.
It describes their remit as being,
“hard for most people outside Westminster to understand, but it is very important. This is a free country, and the Westminster Parliament is one of the things which make it so. Parliament is a complex mechanism, but at its heart is a simple balance: the balance between enabling the Government to do things, and holding them to account—asking questions, proposing alternatives, forcing them to reveal information and justify their actions. This report is about the most important aspects of how this crucial balance works”.
The report formulates the conventions and sets out their context. It goes beyond the conventions into the practices and processes between the two Houses, which are a vital part of the relationship. It makes clear that the recommendations for the formulation of conventions are subject to the current understanding, which we accept, that conventions as such are flexible and unenforceable, particularly in the self-regulating environment of your Lordships’ House. It also makes clear that nothing in the formulations would prevent the Lords from rejecting, in exceptional circumstances, the Second Reading or passing of any Bill, or voting down any statutory instrument where the parent Act allows.
The report records that the Joint Committee was asked to accept the primacy of the Commons. It records that the primacy of the Commons is a current fact, which requires no codification. The primacy of the other place has been an inherent facet of the relationship between the two Houses for a considerable time. It is the other place that determines and sustains a Government, and its primacy is entrenched by the Parliament Acts and the standing orders of both Houses. The acceptance of the other place’s primacy has been the bedrock of all discussions on reform of your Lordships’ House, and no party has deviated from that acceptance.
The Government accept the Joint Committee’s view that the relationship described, depending as it does on conventions, cannot be put in legislation or codified. On page 73 of its report the committee states that,
“the word ‘codification’ is unhelpful, since to most people it implies rule-making, with definitions and enforcement mechanisms”.
The Government agree with the committee on that, and that the courts have no role in adjudicating on questions of breaches of convention.
By their nature, conventions must be able to reflect new circumstances and change with the times, as they have done throughout our history. That applies to the existing convention that your Lordships’ House considers government Bills in a reasonable amount of time. We accept the Joint Committee’s conclusions on that convention, including that there is no conventional definition of “reasonable”, and one should not be invented. We support the committee proposal of marking each Bill on the Order Paper with a sign to show when it has spent more than 80 sitting days in your Lordships’ House. The committee states that there is scope for better planning of the parliamentary year as a whole, possibly involving greater use of pre-legislative scrutiny and carry-over. We agree that all parties need to look at these issues.
I move to what began as the Salisbury/Addison convention. The Joint Committee formulates what has evolved from the Salisbury/Addison convention as follows: in the House of Lords, a manifesto Bill is accorded a Second Reading; a manifesto Bill is not subject to “wrecking amendments” that change the Government’s manifesto intention as proposed in the Bill; and a manifesto Bill is passed and sent, or returned, to the House of Commons, so that it has the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.
The Joint Committee concludes that it is now a convention that is recognised by the whole of your Lordships’ House, not just the Labour and Conservative Front Benches. It concludes that the convention applies to Bills in the manifesto, and it applies whether Bills are introduced in the other place or your Lordships’ House. The committee, rightly, did not attempt to define a manifesto Bill. It reported on page 34 that it did not,
“consider that the difficulties in identifying a manifesto Bill are so substantial that they would prevent Parliament from articulating a convention concerning the House of Lords’ practice in relation to manifesto Bills”.
We also support that approach.
The Joint Committee proposed that the Salisbury/Addison convention now be called the government Bill convention. In addition, the committee concluded there was evidence of a practice that your Lordships’ House will usually give a Second Reading to any government Bill, whether based on the manifesto or not. It did not seek to define the circumstances in which it would be appropriate for your Lordships’ House to seek to defeat the Second Reading of a government Bill, save to say that it would include free votes. We accept the existence of that additional practice.
The Government warmly welcome the clarity with which the committee has described what started as the Salisbury/Addison convention. As set out on page 10 of our response to the committee, the Government agree that the time has come to change the name of the convention to more accurately reflect our understanding of its evolved usage. We have suggested that it become known as the “Cunningham convention” rather than the “government Bill convention” for two reasons. First, the name “government Bill convention” may imply that the same conventions apply to your Lordships’ handling of non-manifesto government Bills as apply to manifesto Bills. That would be an inaccurate understanding, for the reasons I have given. The name should not restrict the meaning. Secondly, the Government believe that the significant work of this Joint Committee should continue to be recognised. In referring to the convention as the “Cunningham convention” we will continue to acknowledge the considerable work of the committee in defining it.
Turning to secondary legislation, the Joint Committee concluded that the Lords should threaten to reject statutory instruments only in exceptional circumstances. We accept that conclusion and the committee’s formulation of the conventions on statutory instruments. As long as the order has been properly made under the procedures set out, your Lordships’ House should not reject an order simply because it dislikes the policy. With regard to two of the circumstances in the committee’s list of examples relating to the rejection of statutory instruments, the Secretary of State for Northern Ireland has already agreed to consider different arrangements for scrutinising Northern Ireland orders if devolution is not restored. Furthermore, the Government have given an undertaking that Parliament will have the opportunity for pre-legislative scrutiny of Orders in Council transferring powers to the Welsh Assembly before they are laid.
The Government also accept that, should they lose a vote on a non-fatal Motion about a statutory instrument, they should respond to the House in an appropriate way. We welcome the recommendation that, should your Lordships reject a statutory instrument, which is of course a rare event, your Lordships should incorporate your reasons for disagreeing with it in the Motion or amendment.
Without further comment, I draw your Lordships’ attention to the excellent work done by the Joint Committee on ping-pong and financial privilege. We invite your Lordships’ House to note the whole report with approval. We do not seek to cherry pick. The report deals with the current arrangement. It says both in the summary and in paragraph 61:
“We have interpreted our remit as being to define the present reality, and to consider the practicality of codifying it. We do so in the chapters which follow. Our conclusions apply only to present circumstances. If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question, codified or not. Given the weight of evidence on this point, should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again. What could or should be done about this is outside our remit”.
In other words, should the composition of the Lords be changed, the role of your Lordships’ House, and its relationship with the other place, would be called into question, whether those conventions have been codified or not. The committee concludes that that re-examination is outside its remit, so approving this report today will not in any way bind a new House, or affect what the effect of changes may be. This, I say with respect, is obviously correct. The Joint Committee can only describe the current position. Were composition to change, a report describing the conventions under the current arrangements would no longer apply to the new House. This part of the report makes it clear that the Joint Committee would not regard it as applying either.
The Government would like to see the current relationship apply in any reformed House. The current relationship leads to a second Chamber that performs exceptionally well its role of revising and scrutinising legislation, without challenging the primacy of the other place. It revises effectively in the sense of making significant changes to legislation without causing undue delay or gridlock. But, equally, the Government fully accept that the report does not purport to describe the position in any new House.
The Government have always been keen that before there was a debate about composition there should be a debate about the powers and role of the second Chamber. I believe that we should seek to continue the conventions into any new House, but as the Government say in their response to the report,
“The extent to which there need to be additional steps to secure that would need to be addressed if there is any suggestion that the major parties did not support this approach in a new House”.
Your Lordships’ House does a hugely impressive job. I believe that evolution of the House from the Life Peerages Act 1958 through the 1999 Act has transformed the House over time very significantly. Your Lordships’ House revises legislation significantly. Sometimes those revisions will be agreed with the other place in whole or in part. Sometimes they will not be pressed to the point of stalemate on a Bill. Occasionally they will, and issues arise under the Parliament Acts. But in the vast majority of cases we revise Bills within well understood and accepted timeframes. Your Lordships’ House is an effective revising Chamber that adds substantial value without gridlock or significant delay. The Joint Committee’s report describes authoritatively how the relationship works to produce that result. The vast majority of those who support compositional reform beyond the removal of the remaining hereditaries do so not on the basis that this place does a bad job, or that our powers should in any way either be markedly curbed or increased, but because it is no longer sustainable for so influential a second Chamber to have no democratic element at all.
Eminent cross-party groups on the reform of this place, including the Wakeham royal commission, if I may call it that, the previous Joint Committee on House of Lords Reform, the Public Affairs Select Committee, in its report on reform of the second Chamber, and the “Breaking the Deadlock” group, all agree that any compositional change of the Lords should be based on the relationship of the two Houses continuing in a way similar to the current arrangements. Neither this House nor any political party can bind the House for the future but we can, as members of political parties and as Cross-Benchers, give clear leadership on what we consider the relationship between the two Houses should be in any newly composed second Chamber.
The debate today is not about reform of the House of Lords. That depends on issues which have not yet been resolved and it is not before this House today. What is before this House is the excellent report of the Joint Committee—a report agreed unanimously between all the elements of Parliament, between all the political parties and between those who are members of none, between both Houses, and between everyone who is directly involved in the Parliament of this nation. That, in itself, is a signal and significant achievement.
That unanimity is coupled with the report of a genuinely and uniformly high standard. Some people doubted that what this report does could ever be done. They were sceptical that the issues that it so authoritatively covers could even be adequately set down. This report shows that such doubt was misplaced.
The report provides the definitive guide—the last word—on the current relationship between our two Houses of Parliament. It will become the Bible on the key issue of that relationship. It is a significant contribution to Parliament, and it is a testament and a tribute to what Parliament and parliamentarians can achieve. I commend it to the House, and I beg to move.
Moved, That this House takes note with approval of the report of the Joint Committee on Conventions of the UK Parliament (HL Paper 265, Session 2005-06).—(Lord Falconer of Thoroton.)
My Lords, I am pleased to have this opportunity to speak on the Motion before the House as chairman of the Joint Committee. First, like my noble and learned friend, I thank all members of the committee from the various parties and from the Cross Benches. Secondly, I give the highest commendation to the clerks, who worked assiduously with my colleagues and myself throughout the sittings of the committee, giving us excellent advice and guidance. I also thank the committee staff, who were both efficient and good-natured in responding to what were no doubt at times unreasonable demands for more papers on the same day. Last but not least, I thank all those who gave evidence from the parties and from outside the House, together with the Clerk of the Parliaments and the Clerk of the House of Commons.
I am particularly grateful to my noble and learned friend for his kind words about the report of the work of the committee and myself. I agree with him wholeheartedly about the sadness of the loss of Denis Carter, whom I first met in 1997, when he joined my team in the Ministry of Agriculture. He will be sorely missed.
My noble and learned friend and I first met when we worked together at the Cabinet Office, where he was always assiduous in guarding my back and defending me against charges of staying in the wrong hotels, flying on the wrong aeroplanes or even, occasionally, drinking the wrong whisky. I am pleased to say that I gave him a better hand to play today in defending and speaking up for the report. As he said, it is the latest in a series of reports examining aspects of your Lordships’ House. Notable among them is that of the royal commission, chaired so ably by the noble Lord, Lord Wakeham, and that of an earlier Joint Committee of both Houses in 2002, of which I also had the honour to be chairman.
This focus on your Lordships’ House continues to be guided by political parties and their manifestos and, not least, by the Government themselves. Before I turn to some of the recommendations in the report, I want to make some general comments about it.
As my noble and learned friend said, there was some uncertainty or ambiguity, and even some cynicism, about the value of establishing yet another Joint Committee. There was great sensitivity, too, about some aspects of the remit that we were given and about the terms of reference. Yet, after several months of work, we produced a unanimous report, which I believe makes it all the more powerful. Obviously there were some compromises; nevertheless, given the complexity and importance of the subject and the original divergence of opinions about some of the issues, the fact that we got through all those weeks of work without a single division in the committee is a testament to how determined we all were as members to do our best in this report for both Houses of Parliament.
As I was entering the House today—coming up the stairs with the report under my arm—I met a colleague who said, “It’s amazing how little is in that report, isn’t it?”. I said that the committee was determined that it was the quality of its recommendations not the quantity that would be testament to the report. Courtesy and ignorance combined prevents me from naming the noble Lord—courtesy because I would not want to embarrass him, and ignorance because I have never seen him before in my life. It may have been the same in reverse because I am sure he was not aware that he was making his comments to the chairman of the committee.
The report is firmly based on the evidence presented to us: how this House works at present; how the conventions operate vis-à-vis the unchallenged primacy of the House of Commons; what the conventions are in current practice; evidence given by the Clerk of the Parliaments and the Clerk of the House of Commons; and not least, of course, the considered judgments of members of the committee, who are experienced parliamentarians in your Lordships’ House and the other place.
In general the report makes its recommendations and conclusions based on the present circumstances. The committee was not asked to consider changes to the composition of this House, nor did it do so. I would hazard a guess that if we had begun to do so, we would still be sitting today. An important general conclusion illustrated by the work of the committee is that in its current role as a revising Chamber and a Chamber in which significant volumes of government business begin their consideration, this House works efficiently and well. Of course, there is always room for improvement and the report has things to say about that but it is not generally the case that prevarication, obfuscation and delay are commonplace in the way in which your Lordships’ House goes about its role as a revising Chamber.
Perhaps I can refer to changing attitudes to the work of your Lordships’ House by reference to a quotation attributed to Mark Twain:
“When I was a boy of 14, my father was so ignorant I could hardly stand to have the old man around. But when I got to be 21, I was astonished at how much he had learnt in seven years”.
It is rather like that for some of our colleagues in the other place with regard to the work in this House. One of the unintended benefits of these continuing studies is that Members of the other place have learnt a great deal more than they ever knew about how your Lordships’ House does its work.
Conventions, in some cases, have evolved considerably but remain flexible and unenforceable. We conclude that the spirit in which they operate matters just as much as their definition. It is also worth noting that the House could depart from these conventions at any time and without the need for legislation to do so.
More specifically, we were asked to consider the Salisbury/Addison convention, secondary legislation, the convention on reasonable time and pingpong. In their evidence, the Government raised questions about Commons financial privilege, so we examined that issue, too. An examination of the current practice shows that the Salisbury/Addison convention, as my noble and learned friend concluded, has substantially evolved over years. It covers manifesto Bills introduced in this House as well as in the other place, and it is now accepted not simply by the Conservative and Labour Front Benches but by Cross Benches and the Liberal Democrats, too. Indeed, one could go further and say that current practice shows that this House effectively gives a Second Reading to any government Bill, whether it is in the manifesto or not. An examination of the record shows that to be the case, although, after some discussion, we did not include that in our proposed definition of the evolved—I wanted to call it “new”, but the committee did not agree—convention.
We also looked at how the House deals with secondary legislation. Only in exceptional circumstances—and not for many years—has this House rejected secondary legislation. It has retained the ability to do so in unusual circumstances, and the committee has underlined that right. On reasonable time, the Government proposed a 60-day limit. The committee examined this; we looked at the Government’s evidence and the record, and suggested an 80-day note on the Order Paper, signifying when a Bill had been before the House for approximately half an average Session.
There is a convention that ping-pong takes place, but it is not itself a convention. It is simply a series of political negotiations between the House and Ministers in government departments, or this House and the other place. There was no great sympathy for any argument in favour of codification or, going further, legislation on the conventions of the House. Everyone who gave evidence and discussed these issues was adamant that there should be no loss of flexibility in the conduct of the business of your Lordships’ House, and the committee unanimously agreed with that. It also unanimously agreed that there is absolutely no role for the courts in adjudicating in disputes between the two Houses; nor did we want to create any circumstances in which that might be the case. I hazard a guess that there are enough lawyers in Parliament already, without our fate being placed in the hands of more of them.
We looked at financial privilege because the Government had asserted in their evidence that, somehow, the activities of your Lordships’ House were infringing upon the financial privileges of the House of Commons. We found no evidence to substantiate that at all. Indeed, after careful examination of the original creation of the mechanisms here—endorsed by my noble friend the Leader of the House a few years ago—we looked at the conduct of the various committees of your Lordships’ House and found no evidence of the financial privileges of the House of Commons being under threat due to their activities.
This is not simply a report about the powers of the House of Lords, however. As my noble and learned friend has said, much attention has focused on paragraph 61 of our report, and the Government’s response in paragraphs 19 and 22 of the Command Paper. I am perhaps straying a little beyond our terms of reference in saying that, however subtly worded those paragraphs, we cannot take any conclusion from paragraph 61 of the unanimously agreed Joint Committee report other than the reality that a substantially changed House—particularly one with an electoral mandate—would, of necessity, want to re-examine its working practices. It would feel, given the backing those elections would give it, that it would have every right to do so. Speaking as a politician, I would never want to be elected to any institution, at any level, where I could not have some say in how that institution behaved and conducted its business. I do not suppose that even the ingenuity of party lists can come up with clones from all the political parties who would simply come here to accept the status quo. That is not the reality of political life. Sadly, we would also see the demise of the Cross Benches, to say nothing of the Bishops. Consideration of those powers and responsibilities would inevitably be on the agenda.
I am pleased to say that the Government, in their response, accept all the recommendations and proposals of the report. Naturally, I and, I am sure, all members of the committee are delighted that that is so. I commend the statement of my noble and learned friend that the Government have no intention of cherry picking particular recommendations of the report but accept it in its entirety. Naturally, I hope that both Houses of Parliament will do the same and will proceed to implement the report and pass the resolutions it recommends.
Finally, in case there are any lingering doubts, nothing in this report will diminish in any way the right or ability of this House to reject a Bill or statutory instrument if, in exceptional circumstances, it wishes to do so. I commend the report to the House.
My Lords, it is a privilege to speak in this debate on the conventions of Parliament. One of the most pleasant conventions is, in appropriate circumstances, congratulating the previous speaker on what he said and saying what a pleasure it is to follow him. I can think of no circumstances in which I am happier to follow that convention than on this occasion. I join the noble and learned Lord the Lord Chancellor in congratulating the noble Lord, Lord Cunningham, on the report. I am sure that I speak on behalf of all members of the committee when I thank him for the way in which he conducted the proceedings. The committee produced what the noble and learned Lord the Lord Chancellor rightly described as a remarkable report.
Indeed, the Government were so enthusiastic about it that they suggested that the Salisbury/Addison convention should in future be called the Cunningham convention. This is a point of substance because, in its report, the committee said that the convention should be renamed the government Bill convention. However, in their reply to the report, the Government rightly pointed out that that is too narrow a restriction on the House. They asked for other alternatives, and I suggest that “the manifesto Bill convention” would be closer to what is intended in the committee’s report. The suggestion made in relation to the noble Lord, Lord Cunningham, is of substance as well as being recognition of the work that he has done.
I said that it is usual to comment on the preceding speaker, and I shall speak for a moment on the speaker who is to follow me, because the noble Lord, Lord McNally, has been unwell, and this is the first occasion since the Recess when he has been able to be with us. I am glad that he is here.
In the report, we wrote a lot about codification. We did not like the idea and stressed the importance of conventions being flexible and unenforceable. The committee put forward formulations of the various conventions. There is an important point, though the noble and learned Lord the Lord Chancellor met it this afternoon. It is important that the conventions in this House should be determined by this House and that no response to this report in another place should in any way seek, in effect, to codify what it believes this House ought to do. I need to give the matter a bit more thought, but I believe that the suggestion of the noble and learned Lord the Lord Chancellor that the other place will simply take note with approval is a reasonable safeguard. It would not be appropriate for the other place to go any further as far as that is concerned.
The noble and learned Lord the Lord Chancellor and the noble Lord, Lord Cunningham, pointed out that we have clarified the situation in a number of respects, particularly in regard to the convention about reasonable time proposed by the Hunt report. On reflection, and despite the fact that it appeared in the Government’s manifesto, it is now unanimously agreed that the present definition of reasonable time is adequate and that to impose a strict time limit instead would not be to the advantage of the Government or of Parliament as a whole. In that respect, we have made significant progress. Similarly, on ping-pong and on secondary legislation the proposals are good.
I make a particular point on financial privilege, because there has been some challenge to the way in which your Lordships’ Economic Affairs Committee and its sub-committee have taken on investigation into Finance Bills. I am very glad indeed, because there is enormous expertise in financial matters in this House, that the Select Committee states clearly that it believes that the line taken by the Economic Affairs Committee is right. Again, I am glad that the Lord Chancellor has agreed with that. He has rightly stressed the weight of the unanimous opinions expressed. In that respect, there is general agreement.
In their report, the Government repeat paragraph 61 of our report, which states:
“Our conclusions apply only to present circumstances. If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question, codified or not. Given the weight of evidence on this point, should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again”.
The Government response states:
“The Government agrees with the Committee that such reform will raise the question of whether or not the current conventions should be carried forward to a differently constituted House”.
I agree very strongly with the views of the noble Lord, Lord Cunningham, on the inevitability, if there were a change in the composition of this House, of enormous pressure for increases in the powers of the House. However, as we point out in the paragraph that I just cited, that is outside our terms of reference. In paragraph 8 of their reply, the Government agree with that, but they then jump the gun and go on to set out a series of arguments why, whatever happens, the powers of this House should not be increased. In the course of or underlying their reply, there is confusion. They seem to imply all the way through that any increase in your Lordships’ powers would undermine the authority of the Commons. That is clearly not the case. It may well be that we should have greater powers on amendable statutory instruments, say, which would in no way undermine the authority of the other House. It may be that we should debate in even greater detail the provisions of the Finance Bill. Provided that the same rules concerning the ultimate power of the Commons to determine an issue exist, there is no reason why that extension of our powers should undermine the authority of the Commons.
Overall, the Government's approach in their reply is far too draconian. For paragraph after paragraph, they go on to say why the powers should not be increased. That is partly by reference to international experience, of which the committee was of course fully aware because we had all that evidence in front of us. That evidence is inconclusive and, in some respects, supports the view that there is no reason why this House should not have greater powers.
In addition, the Government set out an analysis of the previous reports on this issue. They even go so far as to quote by name some of the members on the committee of the report being debated who appeared on a previous committee. They imply, I think, that somehow those members were wrong to change their minds, which I found a rather surprising response. I see that the noble Lord, Lord Cunningham, would appear to think so too. But, as one of the sponsors of the reply is himself alleged to have changed his view on the composition issue from when he last voted, it is perhaps not terribly appropriate that the Government should pursue this line of argument. Overall, this issue is very important.
One further point is worth taking up. In the response the Government refer to a remark made by Mr Jack Straw in a previous debate—they refer to a debate on 10 May 2005, which ought to be 2006—about whether the role of this House and the other House is a zero-sum game. Mr Straw asserts rightly, in the speech to which the Government refer, that it is not a zero-sum game; this House, together with the Commons, adds value. If we were to take an even more active role than we do now, the value would be increased, so that is not a zero-sum game. In the context of this debate, what seems to be a zero-sum game is whether we have a democratic system in this country.
At the moment we have a 100 per cent democratic system. The House of Commons is elected and exercises a predominant role in the way which we have discussed. As a result of that, we have a wholly democratic system. It does not seem to me that there would be any increase in overall democracy if we were to have elected Members of this Chamber. You cannot have a system which is more than 100 per cent democratic, but you could have one where the total ability of Parliament to scrutinise and hold the Executive to account is increased.
As the noble and learned Lord the Lord Chancellor has rightly said, this is a very important report. I believe that it sets the scene for further discussions which are to take place. But, for the reasons which the noble Lord, Lord Cunningham, set out so clearly, with which I wholeheartedly agree, I do not doubt that while the conventions are as they are now but are still flexible and unenforceable, if there is any change in composition it is likely that they would have to be significantly increased, which is an important point. I can understand why the Government, or any Government, in an overall situation would find it unhelpful to have even tighter scrutiny. There may also be some tactical consideration to the effect that an elected Chamber would also change the whole balance between the two Houses. I am grateful for this opportunity to speak. I believe that it is a good report. Once again, I congratulate the noble Lord on his chairmanship.
My Lords, I thank the noble Lord, Lord Higgins, for his kind words. It was almost as reassuring as the resolution from my own Benches wishing me to get well soon. That was very reassuring, although I was worried about the narrowness of the majority. I, of course, associate myself with the words about Denis Carter. For me, the voice of John Peyton also is missing today. The last time we discussed the composition of this committee, Lord Peyton moved an amendment to strike my name from the list. We had a full and jolly debate about what the committee would do. I left and heard a plummy voice behind me saying, “Nothing personal, old boy; just a way of getting the debate”. I know we would have had his contribution today.
I am happy to be back and to speak in this debate because, as indicated by the Lord Chancellor in introducing it, this report is a piece of work that all who were associated with it can be proud of. It provides a template for relations between the two Houses of Parliament and between Parliament and the Government. That it has been both unanimous and constructive owes no small debt to the skill, patience and good humour of our chairman, the noble Lord, Lord Cunningham. I am afraid that no longer will he be known as “the enforcer”, so affable and coaxing was he in his ways. While pressing plaudits, only those who served on the committee will know what a debt we owe to the noble Lord, Lord Higgins, who was assiduous in putting forward those probing amendments that allow for very thorough debate.
I hope not to jar too much all this consensus, but it is important that we put on the record that this report is a resounding “not guilty” verdict on the criticisms made on a regular basis from the government Benches that their business in the Lords is somehow dealt with more harshly than was that of their predecessors. It is therefore important to put this report into context. The committee was established against a background of complaints that this Labour Government had been dealt with more harshly than their Conservative predecessors. As has been said, we had a report from a group of Labour Peers under the chairmanship of the noble Lord, Lord Hunt, which proposed various restrictions on the power of the Lords, and those proposals found their way into the last Labour Party manifesto. Parallel to that exercise was one of those infamous No. 10 briefings which informed us that the Prime Minister was determined to clip the wings of the House of Lords.
All this was accompanied by a renewed awareness of and fondness for the Salisbury convention, which I had not detected hitherto among Labour Ministers. Against that background, and with the support of the then Liberal Democrat leader in the Commons, Charles Kennedy, I made it clear that Members on these Benches did not feel bound by the Salisbury convention. It did not seem to me that a convention which had been arrived at 60 years ago between the Labour and Conservative parties alone, and was about how government business should be treated in a wholly hereditary House with a large built-in Conservative majority, could apply in the new circumstances of a partially reformed House where no party had an overall majority. I also made it clear that Members on these Benches were not prepared to participate in a committee looking at conventions unless and until there was parallel movement on Lords reform. I believe we were justified and vindicated in the stand we took.
Let me be frank: when the Prime Minister announced that he was asking the noble Lord, Lord Cunningham, to chair the committee on conventions and Mr Jack Straw to consult on a White Paper on Lords reform, I thought that that was like asking Burke and Hare to look after a funeral parlour, but I could not have been more wrong. I have said how constructive the noble Lord, Lord Cunningham, has been in getting this report out and I am already on record as saying that Mr Straw has brought forward the most imaginative agenda on Lords reform that we have seen since Labour came into office. I have noticed a few speakers tip-toeing into Lords reform today, but I will not do so. I am sure we will have ample opportunities to discuss it when Mr Straw publishes his Lords reform White Paper shortly. But what has come out of the report is that I agree with the Government that the outcome of our work will provide an essential point of reference in the months to come as we look at Lords reform itself.
I am sometimes asked how my acceptance of the report squares with my earlier refusal to abide by the Salisbury/Addison convention. As I have already explained, and as my noble friend Lord Wallace said in giving evidence to the committee,
“the Salisbury-Addison convention was an historical negotiation between the Labour Party in the Commons and the Conservative Party in the Lords”.
But I have never questioned the right of the House of Commons and a Government who commanded the confidence of it to have their business dealt with constructively by this House. What is and always has been important to me is to retain the right of the House of Lords to say no. That is the importance of all these conventions being flexible and unenforceable. As has been emphasised, we have got to retain that right. In extreme and exceptional circumstances, there may come a time when the House of Lords says no.
That is an important factor in a range of relationships. First, ping-pong would be meaningless if there was a system of “three strikes and you’re out”. The Government would just bide their time and then take their business. The noble Lord, Lord Stoddart, put it to me most eloquently: he said that unless we retain the right to say no we will have a decision-making body at one end and a debating Chamber at this end. Therefore it is important when reading the report to note—this is what made some of the earlier criticisms so fatuous—that there is no evidence that the Government have not had their business. Of course they complain, moan and, once in a blue moon, have an all-night sitting, but the Government get their business and this place works on a system of compromise. To have taken away from it the right to say no would be a very damaging blow to this House.
The significance of the report and the Government’s response to it is that it accepts that, in exceptional and extreme circumstances, this House can say no. Furthermore, there is to be no wing-clipping, no timetabling, no “three strikes and you’re out” and all the other merry wheezes which the Hunt report suggested to enable the Government Chief Whip to sleep easy in his bed. In my view, Government Chief Whips should never sleep easy in their beds. If they do, we are not doing our job.
We welcome the recognition by the Government in their response that this House has not abused its powers. Of course, the conventions we spell out carry great weight and should not be ignored lightly.
As has been referred to by the noble Lords, Lord Cunningham and Lord Higgins, the Government’s response goes further than the committee in one important respect: it suggests that,
“further reform should not alter the current role of the Lords as a revising chamber, and that the conventions governing its relationship with the Commons are fit for that purpose”.
I make no secret of the fact that I would have liked to have seen some such conclusion in our report. I had anticipated some objections to that. Indeed, I look forward to the contribution of the noble Baroness, Lady Symons, who has made herself a kind of Madame Defarge in reverse in defending the aristos against reform. I accept that there is a genuine difference of opinion and my noble friend Lord Roper has already indicated that he may speak on the matter. I remain convinced that this issue has been raised as an attempt to frighten the horses at the other end of the Corridor.
I think that is a misjudgment for two reasons. First, it misjudges how settled opinion in the other place now is about introducing an elected element into this House, so scaremongering will not work. Secondly, I agree with the Government that:
“There is a range of models for second chambers across the world, each constituted differently with varying degrees of powers”.
Of course, an elected element in this Chamber will bring new voices and priorities, but there is no reason why it inevitably means a clash and a demand by that reformed Chamber to challenge the supremacy of the Commons. I agree with the noble Lord, Lord Higgins, about the new Chamber as it becomes reformed. If reform proposals go ahead, it looks likely that we will accept one of the recommendations of the Wakeham report—too hastily rejected, in my opinion, including by me—which is that the glide path of the reform should be fairly gentle. We will not be rushing these reforms through. The report and the conventions it sets out give a reformed House time in which to look at those relationships. We gave an example, by the way we worked, of how those discussions could progress.
There is no evidence that such a reformed House would challenge the basic supremacy of the House of Commons over supply, or over making and unmaking Government and all the other powers that make it the supreme body. I would like to believe that even in a reformed House, others would join me, if I were still around, in defending the supremacy of the other place rather than believing that reform would inevitably produce a challenge, as has been suggested by the scaremongers.
I believe that the Cunningham conventions will greatly assist good governance and parliamentary accountability for many years to come. As well as party affiliations and Cross-Bench responsibilities, we all sit in this House as parliamentarians. As such, we should welcome an opportunity to increase the effectiveness of both Houses of Parliament. In that respect, and with all due deference, we wish the Modernisation Committee in the other place success in its work as well.
I congratulate the Government on their mature and considered response to the report. It is impossible not to see the report in the context of the next stage of reform, but I hope that the House will also judge it on its merits as an important document defining the powers and responsibilities of this House in a healthy and constructive way. In this, it should be a flexible friend for good governance.
My Lords, I, too, welcome the opportunity to debate this important issue. The conventions which regulate in some part the relations between the two Houses of the UK Parliament, if they work well, are an element of stability and mutual confidence in our parliamentary system, which is clearly very good for the nation. The fact that the Joint Committee, under the chairmanship of the noble Lord, Lord Cunningham of Felling, which the two Houses set up in May last, has now carefully examined these conventions and come to unanimous conclusions is greatly to be welcomed. Like all previous speakers, I think that that unanimity is worth an enormous amount. The committee and its chairman are to be congratulated on steering through shark-infested waters so that swimming ahead will now be very much easier.
It is clear to me, as their Convenor, that satisfaction with this report is shared by the Cross-Bench Peers, who now number more than 200, and have a significant, although non-political, role in the House and a strong interest in its effective and efficient working. I gave oral evidence to the committee, which is printed with the report—that is the heavy part of the document, but it is all there and I am grateful that I had the opportunity to do that.
It is also welcome to see that the Government’s response is quite specific; they state that they accept the Joint Committee’s analysis of the effect of all the conventions as well as its recommendations and conclusions. We really do have common ground here.
In this climate of good will, I shall none the less make some comments on the specific issues which the committee was asked to examine. The first is the Salisbury/Addison convention, which both the committee and the Government in their response recognise has changed since 1945 and particularly since 1999. Like the Liberal Democrats, the Cross-Bench Peers were not parties to the original convention, which was created by the Labour and Conservative Front Benches, but, with the passage of time, they have gone along with it. Now that we have the clear conclusions of the Joint Committee, it would seem reasonable to decide as a whole whether we are satisfied with the elements of the convention, as set out in the Joint Committee’s report, and, if so, to consider it as applying to the whole House. That is a decision that we should take. The passage of time has created it and I think that we can now decide it to be correct.
Those elements are, of course, that a manifesto Bill, in whichever House it begins its progress, is given a Second Reading, is not subject to wrecking amendments and is sent or returned to the House of Commons in reasonable time for the consideration of the Lords amendments, if any. This last point is an assurance of value to both Houses.
I was one of those who in the potential re-examination of the convention seriously considered whether to define a manifesto Bill. Although the voters know, often better than the political parties, the main elements of the programmes of the political parties, they do not normally read the small print of the manifestos. This is particularly true since some manifestos have grown towards the size of an Argos catalogue.
However, I have been convinced by the conclusion of the Joint Committee, which does not recommend any attempt to define a manifesto Bill and bases that recommendation on the argument that, without such a definition, the convention or any resolution containing it would be flexible and unenforceable. As parliamentary business has benefited greatly in recent years from this flexibility, I go along with this argument. I have no difficulty with the Government’s suggestion that the convention might in future be the Cunningham convention, both because I am sitting alongside the noble Lord, Lord Cunningham, and because it would be recognition of this approach. That is what I like about it: it is recognition of this approach.
There is a convention that we in this House consider government business in reasonable time and, expressed in that form, it should be supported. The Joint Committee considers succinctly and rightly that there is no conventional definition of “reasonable” and that one should not be invented. I say “bravo” to that. Experience shows that some flexibility is valuable for a number of reasons. We have had a back-breaking succession of important Bills in recent Sessions. Some of them are long and technically complicated; for example, the Act which deals with company law reform is often quoted in that respect. None the less, the pace of progress has been good and I have not seen any evidence of ill will. Moreover, there are Bills which are truly non-political, but which, because of their importance to the public, call for particularly careful examination and possibly amendment. A good example is the Mental Health Bill, which is in Committee this week, to which, unusually, I have proposed a number of amendments—I believe that I was speaking to them at 11 pm yesterday. So we are making progress.
I have no difficulty with the suggestion that the Order Paper should indicate whether a Bill has spent 80 or more sitting days in the House—that is useful for the House to know—but such cases will be very rare. Recent changes such as more pre-legislative scrutiny and the greater use of Grand Committees in the Moses Room have clearly helped programming. It is worth recording that, as a revising Chamber, we do our job well. In a recent Session 9,437 amendments were tabled in this House and 3,257 were accepted. So it is a big business and it takes a bit of time, but I do not believe that we really breach in any way the idea of a reasonable time in which to respond to the Government’s proposals.
The two remaining points in the remit of the Joint Committee were the exchange of amendments between the two Houses—ping-pong—and the rejection of secondary legislation, which is a very rare occurrence indeed. On ping-pong, the Joint Committee rightly points out that it is not a convention but an integral part of the legislative process and a framework for negotiation between the two Houses, it being clearly understood that the House of Commons has primacy. The Government have expressed some concern that a continued increase in the amount of ping-pong could disrupt the legislative programme that is in the documentation. I do not consider the last few years typical, however, since the anti-terrorism legislation aroused very strong views on security and human rights which considerably affected the number of amendments subject to more than one round of ping-pong.
On secondary legislation, it was the Cross-Bench Peer, the late Lord Simon of Glaisdale, who most strongly asserted the right of this House to debate and, if necessary, reject secondary legislation. The conclusions of the Joint Committee on that point were right: neither House of Parliament regularly rejects secondary legislation but, in exceptional circumstances, it may be appropriate for either House to do so. The list of circumstances in which it might be right for this House to threaten to defeat a statutory instrument, set out in paragraph 17 of the summary of conclusions of the Joint Committee and repeated in the Government’s response, is very useful, as is the consideration of the Secretary of State for Northern Ireland of a different arrangement for scrutinising Northern Ireland legislation if devolution is not soon achieved.
Finally, on codification, there is common ground between the Joint Committee and the Government that the current understanding is that conventions are and should remain flexible and unenforceable. But what will be the situation if a reformed House of Lords requires an electoral mandate? It seems right, as other noble Lords have said today, that in those circumstances we may find Members of an elected House champing at the bit to see whether there are other possibilities for the use of their electoral mandate. That is quite possible. But I do not necessarily say that that would require changes in the specific conventions that we are discussing now. It is not quite the same proposition.
We should be grateful for the endorsement of our current practices in our relations with the other House. We should not speculate now whether these conventions, being flexible, will still serve well for any reformed House. My principle is that “sufficient unto the day is the good thereof”.
I have spoken a little longer than is my custom but I had to keep in mind the final 10 words of the Government’s response, in which they recognise that,
“the views of the Crossbench peers will carry great weight”.
My Lords, as someone who has not always seen fully eye to eye with my Government on some of their proposals, as they have emerged, on House of Lords reform, can I say what an enormous pleasure it is today to agree so wholeheartedly with my noble and learned friend Lord Falconer? I agree totally with what he said about the role of our chairman, who started off with a disparate group of people and, as the conductor of the orchestra, melded them into a fairly coherent group, which has produced a coherent report. His role was vital to the success of the committee. I also agree with my noble and learned friend on the debt of gratitude that we owe to the quality of the services that we got from the staff of this House and another place. Both the speed and quality of their work were quite exceptional. I agree particularly with his remarks on the very special role that was played on the committee by our late friend and colleague, Denis Carter. He played an important role, drawing on the depth of his experience, as he did so often.
I very much valued the tone of the speech of my noble and learned friend Lord Falconer. I hope that that tone will be replicated by our mutual right honourable friend Jack Straw in tomorrow’s debate. The speech corrected some of the mistakes and poor judgments contained in the text of the government response. If I may say so with all humility as a member of the committee, the government response does not match the quality of the report to which it is responding. I received a letter from my right honourable friend Mr Straw on 13 December in which he included a copy of the government response. He highlighted differences with the report right from the outset in his letter, which states:
“The Government believes however, that further reform should not alter the current role of the House of Lords as a revising and scrutinising chamber, nor should it alter the balance of the relationship between the Lords and Commons. The principles of the current conventions that the report identifies should therefore still apply in a reformed House of Lords”.
On reflection, that was ill advised because it jars somewhat with the reaction to the report, which wholeheartedly endorses it. The paeans of praise of my noble and learned friend soared to ever greater heights when he gave his reaction to the report.
As we have heard, the Joint Committee’s main conclusions were adopted unanimously and therefore demonstrate the consensus that my right honourable friend Jack Straw says that he is looking for. In his approach to House of Lords reform the buzz word has always been consensus. However, I believe that this is the first document that has produced consensus between and within the Houses and between and within parties. It is the very model of a consensual report. Therefore, it should not be treated lightly and should not have criticism lightly directed against it. Yet that is what happened in the government response. The noble Lord, Lord Higgins, referred to the way in which paragraph 8 of the government response conflicted with the tenor of the report. That applies also to paragraphs 9 and 12. My noble friend Lord Cunningham referred to paragraphs 19 and 21. So we already have five paragraphs where there is an element of conflict—certainly of attitudinal conflict—between the approach of the Joint Committee and that of the government response. But I say in all seriousness that the speech of my noble and learned friend Lord Falconer hit exactly the right note. He recognised the importance of the matter and did not try to score points for the future.
In giving evidence to the Joint Committee Mr Straw argued that,
“there is no necessary connection between the powers and the composition of second chambers … it is also accepted and laid down in those constitutions that those wholly elected second chambers are very clearly subordinate chambers and acknowledge the primacy of the first chamber”.
That may well be true, but it is barely relevant to us and our circumstances. It applies to elected Houses, in countries with written constitutions, and it has no relevance whatever to the circumstances in which we are approaching House of Lords reform.
In the cross-examination of my right honourable friend Mr Straw’s—or the Government’s—evidence before the committee, at question 35, he went on to say:
“I do not accept that and overseas evidence is on my side. I do accept, however, that the greater the proportion of elected members the greater the tendency of the House of Lords, the second chamber, to demand additional powers, and that is why essentially this Committee is sitting, so we can get clear the baseline, and then if we make decisions and have an extra election and need to give them more powers we are explicit about what those extra powers should be”.
That might be one person’s idiosyncratic view of what the committee was about. He would be hard put to find a member of the committee who would share that view; certainly I do not. I was not there to create a baseline for some future reform. The very fact that the committee produced a report to this House—a special report early on—was to lay down what it was doing and what it was not doing. The self-denying ordinances of the committee were very clear indeed.
I do not propose to go through each of the conventions, because the unanimity speaks for itself. I agree with everything that my noble and learned friend Lord Falconer and my noble friend Lord Cunningham said about the conventions. I want to concentrate for a couple of minutes on the evidence behind the conclusions. I am going to quote one of the most helpful pieces of evidence that I found, although it does not directly bear on the conventions. The part of it that I am going to quote bears on that thing that the noble Lord, Lord McNally, accused people of tip-toeing into—the future and reform— and he jumped headlong into it. In part of the report, we had very helpful evidence from the Clerk of the Parliaments. I will not embarrass him by reading large chunks of his evidence, but I commend it fully to all interested Members of the House.
I will quote from paragraphs 33 and 34, because my right honourable friend Jack Straw referred to those sections in his evidence. In referring to them, he showed that he did not fully understand the point that was being made by the Clerk of the Parliaments, who said:
“If the members of the House of Lords continue to be appointed and in a way which continues to ensure that no government of whatever political colour will enjoy a majority, the convention can be maintained because the argument of the supremacy of the popular mandate will still apply. The introduction of an elected element would undermine this as the House could begin to claim an electoral mandate. It can be argued that the greater the proportion of elected members the stronger the mandate. If the Lords were elected by a proportional system they might even claim a superior mandate”.
He goes on at paragraph 34:
“It might still be possible to claim that for the purposes of the convention it is the manifesto programme which is mandated, not the claim of legitimacy of either or both Houses to act upon it”.
We have had very clear evidence from the Clerk of the Parliaments. It will be a fundamental part of the argument if and when Mr Straw produces his White Paper which, I am told, he has promised within a few weeks.
I conclude my comments by welcoming the work done by everyone in the committee. I commend the report of the Joint Committee, which shows the only real consensus to have been created so far. I congratulate my noble friend Lord Cunningham on all his work. The conclusions on the convention are clear. The assertion of their exclusive applicability to the present is equally clear. There is no recommendation for any form of codification that would turn conventions into rules, remove flexibility or inhibit evolution in response to political circumstances. The government response is welcome, particularly as orally expressed by my noble and learned friend, and I hope that the paragraphs of it to which I have referred critically will be allowed quietly to rot somewhere and not see the light of day in future thinking.
The government response is welcome where it does all those things and seeks to draw conclusions wider than the committee did. I am grateful for the report and the Government’s support for it.
My Lords, I add my congratulations to the noble Lord, Lord Cunningham, and his colleagues on their unanimous report that we are invited to take note of with approval today. Indeed, a report that has a certain number of favourable references to me and my commission is very likely to meet with my approval. I stopped counting after I had seen my name mentioned 20 times, lest I should get inflated ideas.
It is an important report, not just because of what it says, which has turned out to be much less controversial than the committee probably thought it would when considering these matters, but because it gives a pretty good steer as to what sort of long-term reform we ought to be looking for. I agree with the conclusions of the report and, in my judgment, there is no possibility of a substantially elected House going along with the sort of restraints that are implied in the report, as a number of noble Lords have already indicated. As a revising House—yes, as a House that has a mandate from the people—forget it. In such a House there will be severe clashes and constitutional crises with the House of Commons if the Houses find themselves with different parties in the ascendancy. I agree with the noble Lord, Lord McNally, in one thing—that a Chief Whip should not sleep easy in his bed. I certainly did not when I was Chief Whip, and I had a substantial majority to play with. But I disagree with him that these sorts of conventions are possible in a totally different House.
Therefore, I hope that the lesson that will be learnt from the noble Lord’s report is the lesson I tried and perhaps failed to get across in my royal commission report—any reform must start from the here and now and changes have to be long-term and consensual. We have all heard the expression “agreement between the Houses and between the parties”; that is the right way to proceed. When people tell me that it will be impossible to get a consensus, I do not accept it. My response is that those involved will have to try harder.
I would like to add just one small point concerning the Salisbury convention. This illustrates the point that I have been making on obtaining a consensus. The report sets it out pretty well, but I would add that the 1945 agreement had great value for the Conservative Opposition, as it enabled the leadership to exercise greater control over their Back-Benchers, and that demonstrates how consensus can produce different benefits for all the parties involved.
While the noble Lord’s most excellent report focused on the somewhat narrow area of conventions, they put the entire future of Westminster democracy into proper focus. The report is wishful thinking, and, incidentally, would make the Westminster Parliament and the Government under less democratic control, not more.
I turn to a specific aspect of the report: the role of this House in financial matters, particularly taxation. The important point has still not been raised. I submitted evidence to the noble Lord’s committee after I had seen the Government’s evidence on this matter, which was wholly wrong. The nub of the matter is that—I quote from my evidence on page 145 of volume II of the noble Lord’s report—
“while there is no dispute that parliamentary bills of aids and supplies, such as Finance Bills, cannot be amended by the House of Lords, Erskine May is nonetheless clear that ‘the Lords … express their opinion upon public expenditure, and the method of taxation and public administration, both in debate and by resolution, and they have investigated these matters by their select committees’ ... Seen against this background, the prohibition which the House of Lords has placed on EAC sub-committees inquiring into Finance Bills from considering the incidence or rates of taxation can be seen as a self-imposed restriction and not, as the Leader of the House of Commons has suggested, ‘a quite deliberate claim to additional powers in respect of which this House is not supposed to have any power at all’”.
The noble Lord’s committee entirely supported the position that I had put to it and I am very grateful for that. I know that the Government now accept that they were wrong and that the position as I have set out is correct.
As I have indicated, the arrangement made for the Finance Bill sub-committee of the Economic Affairs Select Committee—of both of which I have the honour to be the chairman—was that the House entered into a self-imposed restriction for the work of this committee. I strongly approve of that. The return that we got was very helpful co-operation from the Treasury and HMRC.
However, two important points emerge from this episode. First, that it should have happened in the first place indicates a woeful ignorance within some areas of government as to just what the House of Lords is about. This ignorance can and should be remedied if we are going to make proper progress on the long-term future of the House of Lords.
Secondly, it is very important to restate the position of the House of Lords in matters of finance and taxation. We have no powers, nor should we have, to interfere with legislation, but your Lordships have the absolute right to discuss and to express their opinion on finance and taxation matters without hindrance, notwithstanding the self-imposed constraints of your Lordships' Finance Bill sub-committee or our quite proper lack of powers over supply or financial legislation. Indeed, if one stops to think for a minute, one realises that it would be extraordinary if the position were otherwise; it would be extraordinary if this sovereign House of the British Parliament were unable to discuss matters that everyone else in the Kingdom can discuss, including the valet of the noble and learned Lord the Lord Chancellor. Everybody can discuss financial matters if they want to. It is only in the work of the sub-committee that we apply a self-imposed restraint for very particular reasons.
It was important to say that, but let me conclude by saying that the report is excellent and shows a sensible way forward under the Joint Committee’s necessarily narrow terms of reference. I am grateful to the committee for its contribution.
My Lords, I, too, welcome this unanimous report, which lays to rest so many of the fears raised in the Hunt report and the 2005 Labour manifesto—although I hear around me the groans of new fears raised about what might happen in any next stage of reform. The report confirms that conventions are in their very nature impossible to codify, and that the House of Lords operates within a well understood consensus about its proper role and relationship with the House of Commons.
I am struck as I listen on many occasions to the Benches opposite that any party that is in power for more than two elections begins to take the executive point of view: to feel that the Executive is always right and that parliamentary opposition is a nuisance. I think that some on the Labour Benches still think of the Lords as a Conservative-dominated House. This House has changed fundamentally since 1999, and when, as will happen, the Labour Party finds itself again in opposition, it will find a reformed second Chamber an asset. Some Labour Members of this House need to remember that very carefully.
The Lords is now, deliberately, a Chamber without a majority for any party, and a partly elected Chamber would remain that. Other than in the exceptional circumstances of a landslide majority for a single party, polling well over 50 per cent of the vote at successive elections, the second Chamber under likely second-stage reform will continue to be without a majority for a Government of whatever complexion. The continuation of an appointed Cross-Bench element would make that more likely, as would partial elections by halves or thirds and as would proportionality.
That makes for a different style for the second Chamber, whether entirely appointed or partially or mostly elected. Here, the Government have to persuade and explain. Minds and votes are swayed by debate. In any further stage of reform of the sort which is likely to command the consent of all parties, that, I suggest to the noble Lord, Lord Tomlinson, and others, will continue to be the case. His fears are imaginary nightmares. That means that the House of Lords contributes deliberative democracy, complementary to the more combative style of the House of Commons.
There are some broader issues behind the report that I should like to touch on briefly: the relations between the two Houses; the relations between Parliament as a whole and government; and the quality of the legislative process. Of course, we are all concerned about the relationship between the two Houses, and some raise the dreadful fear that, if there were an elected element, we might wish to contest the primacy of the House of Commons. It seems to me that that is also an unreal fear.
The primacy of the House of Commons will remain uncontested for some very obvious reasons. First, there is the question of confidence and the fact that the Government’s majority and legitimacy will continue to depend on their ability to command a vote of confidence in the House of Commons. Secondly, there is the issue of supply, with the House of Commons controlling government finance and spending. Thirdly, most Ministers will continue to be drawn from that Chamber—perhaps all Ministers with a future transformed second Chamber.
If that is the case, we have to be concerned with managing a better relationship between the two Houses, recognising that we are the complementary second Chamber and that we will continue to be so. We need to manage the legislative process better. I welcome the suggestions in the report and in a number of other papers that a joint business/legislative committee would help to manage the legislative programme between the two Houses. I strongly support the argument that pre-legislative and post-legislative scrutiny should be extended, and I am concerned that the extension of pre-legislative scrutiny seems to have stumbled in the past year. We need to return to that.
Ping-pong is an untidy and sometimes unseemly affair in which the shuffling between the two Houses—sometimes at very short notice—in some ways shows Parliament in its worst light. Paragraph 189 of the report says something that the Government need to take fully on board:
“We also acknowledge the value of the convention, with which all parties agreed, that neither House will in general be asked to consider Amendments without notice. We believe that it would facilitate the exchange of Amendments between the two Houses if that convention was more rigorously observed, i.e. if reasonable notice was given of consideration of Amendments from the other House”.
That suggests that we would do better to consider a conciliation committee between the two Houses, and some form of reconciling amendments between the two Houses rather than the process from which we have suffered on a number of occasions in recent years.
The reasonable time issue has also been settled. There is no evidence that this House behaves unreasonably in any sense. In checking through the progress of a number of Bills, I noted that in the Charities Bill, for example, the loss of time was between the Lords completing it and it being started in the House of Commons rather than anything to do with the remarkably thorough way in which this Chamber coped with scrutinising a very detailed Bill. It helps if we take more Committee stages off the Floor of the House, as we have now begun to do, which enables us to move with all deliberate speed. There are exceptional circumstances, and we need to ensure that where there are Bills of constitutional significance and where issues of civil and political liberties are at stake, this House can, where necessary, disagree with a Government-dominated Commons.
I move on rapidly to relations between Government and Parliament. I welcome the statement in the Government’s response at paragraph 23 that,
“a healthy tension between Government and Parliament”
is desirable in a democracy.
We ought to hear that phrase much more often from Ministers when they are subject to aggressive scrutiny from the Commons. It is a structural weakness in the British political system that the Executive is so dominant over both Houses of Parliament. Ministers insist on pressing legislation through as fast as possible. The phrase, “The Government are entitled to get their business through” is misused by Ministers sometimes to insist that government proposals should get through virtually unamended.
The doctrine of the manifesto is also one that the Government wish to use more than today’s lengthy manifestos will stand, as the noble Lord, Lord Williamson, said. When I gave evidence to the Committee, I contrasted the 1945 manifesto with the manifestos of 1997 and 2001. The Labour Party manifesto in 1945 was short and clear. Indeed, it had a list of proposed Bills. It reflected debates within the mass Labour movement and discussions within the party’s national executive, and it was the considered and hard-fought proposals put forward by the Labour movement. Now manifestos, which are written by small groups of young men attached to party leaders and put out with lots of photographs, are very unclear about what is being proposed. The two clearest commitments in the 1997 Labour manifesto were to have a referendum on the euro and to introduce some reform of the voting system—neither of which has been implemented.
Many Bills do not arise from the manifesto. It is hard to find city academies in the Labour manifesto, for example, but nevertheless they have been pushed through. Fast government is intrinsically undesirable. Ministers now wish to respond to 24-hour media by promising an initiative, which then becomes a Bill and gets a good headline, and then they want to deliver it through Parliament as rapidly as possible. Fast legislation is like fast food. They are both bad for citizens’ health. I note in Appendix 5 to the report a quotation from Peter Hain when he was Leader of the House of Commons. In another context, he said:
“Increased speed inevitably carries the risk of misunderstanding or error”.
Deliberate speed and due consideration of government proposals by Parliament is what a healthy democracy needs. From this Government and their predecessor, there has been too much legislation which has been too hastily prepared and poorly drafted, and justifiably and necessarily heavily amended as it was scrutinised.
Briefly, the quality of the legislative process will be improved by more pre- and post-legislative scrutiny and more Joint Committees between the two Houses. I also welcome the report’s proposals that it ought to be possible to amend Standing Orders and statutory instruments in particular cases. Conventions evolve; they can strain behaviour while allowing for exceptional circumstances. In a partly elected House, conventions would no doubt evolve further. The two Houses will find different ways of working together—more constructive ways, I hope—but our overall aim must be a stronger Parliament for both Houses, better able to scrutinise the quality of legislation and hold our executive Government to account.
My Lords, I join the long list of speakers who welcome this report and congratulate the committee and the noble Lord, Lord Cunningham, on producing it. In a highly disciplined way, it has offered us some real steps forward in the conduct of our parliamentary life in the United Kingdom.
We in Parliament must continually renew our commitment to see power as a trust held on behalf of the people and, I would say from these Benches, under God. In the face of declining public confidence in political life today, we might be tempted to think that we are living through a crisis. We are not. There is little or no energy among the wider public for major constitutional reform. The public want to see our democracy working better than it is, and the quality of governance strengthened and improved. The people are not, however, marching on our streets for the radical reform of Parliament.
This remains the people’s Parliament. It is for us, as their servants, to ensure that it works well for them and builds confidence in our democratic traditions. The report is a welcome, clear and profound statement of how things are between our Houses and what we must agree to ensure an effective relationship between them.
I welcome three crucial features of this report. First, picking up from the comments of the noble Lord, Lord Tomlinson, it clearly understands that we inherit an unwritten constitution: it is interested in flexible ways of working, without boxing us in to rigid procedures of our work. Secondly, it recognises our history and the unique history of democracy in these islands, bringing together the many faces of our common life in one Parliament; holding within one place the tasks of calling the Government to account, legislating and remaining, in extremis, the high court of the land. We hold to a unitary structure. Thirdly, and crucially, following in the great tradition of Edmund Burke, it seeks amendment of our constitution by evolutionary rather than revolutionary processes. That ensures that the future builds on the past, and that a proper sense of history always informs what we do.
It has been commented on right around the House that the Government have picked up on the central issue of this report in their response: its meaning for the reform of this House. While that is not the subject of our debate today, it nevertheless appears both in the report and the Government’s response. As others have said—notably the noble Lord, Lord Higgins—having established the principle of the primacy of the House of Commons, the report goes on to point out in paragraph 61 that a shift in the structure of this House is bound to lead to a fresh examination of these issues. In their response, the Government said:
“The Government believes that whatever further reform of the Lords takes place, that role”—
our present situation—
“is the right one. The question of composition of the House of Lords does not dictate its role. Function does not follow form”.
That would be the first time that had happened in British history. Function and form are inevitably intertwined; we cannot escape that.
We must talk about this a lot more in the coming days. That is not to say that, on the basis of the present balance of powers, no further reform on the Lords is possible. If we want to maintain the basic balance of powers between the Chambers, however, that will influence how we think about reform. I did not find the Government’s references to Canada, Austria and Germany convincing. We have an unwritten constitution, and shifts of power are going on the whole time. Things are never rigid. That seems to me to underlie this report.
We can consider crisis moments. For example, let us suppose that we had a wholly or mainly elected second Chamber of 500 or more Members elected by what the people thought to be a fairer system of election, that an election took place at a time of great political crisis and that there was a large turn-out. Would that not introduce some element of conflict between the two Houses? We have to think those things through.
I prefer the words of the report to the Government’s written response, but I was greatly comforted by the speech of the noble and learned Lord the Lord Chancellor. It seemed to give us more flexibility in that matter. Although the principle of the primacy of the House of Commons is important and entirely right, we need to be reminded that the fundamental principle we are dealing with is the sovereignty of Parliament. That means that Parliament must always be free to act as it believes right for the needs of the United Kingdom. From the statements in the report about having flexible and unenforceable conventions, it seems that the committee understands the principle that Parliament as a whole has to be free to act. That is the principle of our democracy. It is at the heart of our constitution, and I believe that we have a common duty to protect and maintain it. I am hugely grateful to this report for making a significant and long-term contribution in that direction.
My Lords, I am delighted to support the Motion proposed by my noble and learned friend the Lord Chancellor. I am glad that he did not ask us to support his written response to the report because I certainly could not have supported that. As my noble friend Lord Tomlinson and other noble Lords have said, the written response is very different from the noble and learned Lord’s speech. I welcome his speech. I liked it very much, but I do not approve of parts of his written response. I shall make clear to my noble and learned friend what I have in mind.
First, like many other noble Lords, I congratulate the committee chaired by my noble friend Lord Cunningham. It is not surprising that it is an excellent report. The Government could not have found a better man to come up with a unanimous report that decided that we should retain the status quo. On top of that, it unanimously pointed out that we should effectively throw the whole thing away if we ever had an elected House, whether it be a hybrid House, which the Government seem to want, or any other type. I should make clear to my noble friend that I am not treating the excellent report lightheartedly. He and his committee have done a great job, and I welcome the report.
The report raises many important issues with which I wholeheartedly agree. The central issue is the primacy of the other place, which I strongly support. In one sense, it is not an issue because the Government told the Joint Committee to accept primacy. It not only accepted it, but went on to give good reasons why the primacy should prevail. The major issue is that the role of this place—whatever changes in its competition take place—should be as a revising Chamber that provides effective and robust scrutiny of the legislation that comes to us. That is right, and I accept it. That should be our main role. Indeed, we do it much better than they do in another place—if I may say so, having spent a fair amount of time there myself. Most of our debates on legislation take place without party-political content and they are much the better for it. It is when party-political elements are brought into our debates on legislation that we tend to be as bad at scrutiny as the other place but, on the whole, we do not.
One area in which we consider legislation coming from the other place has been referred to by the noble Lord, Lord Wakeham, and others; I should like to say a word about it. We are better than the other place at scrutinising legislation of all kinds, but especially Finance Bills. I am not talking about taking powers to amend them, because the committee rightly says that we should not take those powers and would be wrong to do so. That is covered very well in paragraphs 243 and 244 of the report and again in the conclusion in recommendation 21.
However, as the noble Lord, Lord Wakeham, rightly said, the Economic Affairs Committee under his excellent chairmanship in no way seeks to infringe that financial privilege of the Commons. Indeed, as he said, a self-denying ordinance is in effect taken by the sub-committee that we should not do that. We could go much further, as is clearly indicated in appendix 6 to the report. Indeed, I hope that the committee will but, at the moment, it does not and, as a member of the sub-committee under the noble Lord, Lord Wakeham, I am glad to be able to confirm exactly what he said.
Finance Bills, which, sadly, we are unable to consider in detail, get larger every year. The reason for that is precisely because the other place does not properly scrutinise them. Whoever is in opposition—I plead guilty, having been both in government and in opposition—tend to pick out and look at primarily what may be called the sexy political issues. The rest of the Finance Bills are hardly considered at all. Consequently, the next Finance Bill gets larger because it has to amend the badly drafted previous Finance Bill. They get larger every year, as we see today.
Although, as I say, the sub-committee of the Economic Affairs Committee does a good job, it would be better to have a separate committee considering Finance Bills. That would not be to amend them—I am not asking for those powers—but we should be able to give advice and help to the Chancellor and Treasury Ministers. I assume that the written response was drafted by the Treasury, rather than by my noble and learned friend Lord Falconer. As a former Treasury Minister, I have only to read it to know that I would have drafted in that way too, because the Treasury does not want anything to be done.
The written response states that the matter should be reviewed and that what the sub-committee does will be kept under review. There is no need to keep it under review. As the noble Lord, Lord Wakeham, said, the sub-committee does that for itself. In no way does it seek to interfere with the fiscal privilege of another place. So there is no need for that review and I am very sorry that the response is drafted in that way. I note that my noble and learned friend Lord Falconer did not refer to that in his verbal response today, so I am hoping that he did not really mean it or that he did not agree with his colleagues in the Treasury who wrote it.
The response is interesting because almost every paragraph refers to composition, which the Joint Committee was not supposed to look at. I went through the response and only one or two paragraphs did not refer to composition. The right reverend Prelate the Bishop of Chelmsford also referred to it when he quoted from paragraph 12 of the Government’s response:
“The question of the composition of the House of Lords does not dictate its role”.
Paragraph 10 states that changes to the composition will make the Lords “more assertive”—I repeat, “more assertive”. I have always been astonished that the other place has not been as concerned as I am, and not just about this place being more assertive. It is bound to do that. That is an understatement of how an elected or hybrid-elected House would react. It would be much more than assertive in looking at its powers. Even if there was only one elected Member, the idea that it would restrain itself against the other appointed Members is the reason why—whatever leaders of political parties in this or the other place may say—I do not believe for a minute that in this House there would be agreement on a hybrid House, whether it be 20, 30, 40, 50 or 80 per cent, as apparently some leaders want. It would not happen without the use of the Parliament Act.
Speeches in political party meetings are not supposed to be made public for us to consider. But there was a report that the Prime Minister—which my noble and learned friend would not discuss of course because it is private—indicated that the Government would not have in mind to use the Parliament Act on such a major constitutional matter as changing the composition of your Lordships’ House. I see the noble Lord, Lord Strathclyde, nodding. I hope that he feels the same and I look forward to his speech.
I do not ask my noble and learned friend to confirm what the Prime Minister has said, or whether he agrees, because he will not be here for much longer. I am not referring to my noble and learned friend—I am sure that he will be here for a long time. Perhaps he would confirm, deny or refute the idea that major constitutional changes of the composition of your Lordships’ House would be done by default because they would not get through this House.
My Lords, it is always a pleasure to follow the noble Lord, Lord Barnett. But as I now look at him across this House, I am reminded that some years ago we were both, to our astonishment, appointed by the relevant trade association as “Tie Men of the Year”. We have always had that kind of warm relationship with each other. I join him and everyone else who has spoken in paying tribute to the work of the committee and, in particular, to the leadership of the noble Lord, Lord Cunningham of Felling. I had the privilege of serving under his less than horrendous lash on the previous Joint Committee, and I have witnessed his skill at first hand. He has done a formidable job and so have his colleagues.
In a way, the most important conclusions are summed up on page 4:
“We do not recommend legislation, or any other form of codification which would turn conventions into rules, remove flexibility, exclude exceptions and inhibit evolution in response to political circumstances. And, however the conventions may be formulated, the spirit in which they are operated will continue to matter at least as much as any form of words”.
It is that spirit which is of such enormous importance.
Surely we have had enough evidence already of the damage that can be done by codification, as it becomes necessary either inadvertently or advertently. A modest example, entirely benign in its intention, has been the consequences of the Nolan committee, chaired by our colleague the noble and learned Lord, Lord Nolan. He did a formidable job in a way, but let us look at the work now being done by the Committee on Standards in Public Life. Its last report discussed the formulation and reformulation of further codes and sub-codes of practice in eight or nine different areas. That goes on and on indefinitely as one code breeds another, and God knows where we are.
Perhaps I may say something less respectful to the noble and learned Lord, Lord Falconer, than most of the other things that have been said. His brainchild—if that is what it was—the Constitutional Reform Act 2005 tackled the question of codifying the relationship between the Lord Chancellor and the Lord Chief Justice. That had been entirely a matter of convention for centuries, but in that Act there are no fewer than 250 statutory provisions providing for that. And even with all his diligence, last year it was necessary to introduce two statutory instruments to deal with 50 other relationships that needed codification but which had been overlooked. So I wholly endorse the proposition: God save us from codification.
It is vital to understand, and not just in this context, the importance of unwritten rules and conventions. I have quoted in this House before a speech by the American judge Learned Hand in Central Park, New York, in 1944, defining some of the propositions which they were defending. He said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes. A society that needs a court to save it, no court can save”. That is a profound proposition and echoes something that was said some years before by Lord Moulton, a one-time Liberal MP but then a Lord of Appeal:
“There are three great domains of human conduct. The first is where our actions are limited or forbidden by law. Then there is the domain of free personal choice. But between these two is a third domain, that in which there is neither law nor unfettered freedom. This is the domain of ‘obedience to the unenforceable’, where people do right although there is no one and nothing to make them do right but themselves”.
There are offices in this country today where that is of formidable importance; that of the Lord Chancellor was one of them—today the Attorney-General’s is another—where compliance with unwritten laws that are difficult to apply but very important is fundamental. That is the spirit of conventional government, which I am glad to say runs through this report.
One aspect of the flexibility that is desired has been touched on by my noble friends Lord Higgins and Lord Wakeham, and finally by the noble Lord, Lord Barnett. The scope for flexibility should allow a development of the work being done by the Economic Affairs Sub-Committee on our fiscal legislation. As noble Lords probably know, until recently I presided over the steering committee of the Tax Law Rewrite Project. That has functioned with the assistance of a joint committee of both Houses, scrutinising the Bills produced by the tax law rewrite committee. Since it has been operating, work has also been taken forward on the case for having a similar structure, that of a joint committee of both Houses to look not just at the language of the law but at its substance as well—subject as always to the reservations emphasised by the noble Lord, Lord Barnett, and my noble friend Lord Wakeham.
The truth is that one should look at a report published a couple of years ago by the Institute for Fiscal Studies under the chairmanship of Sir Alan Budd, which stated:
“The truth of the matter is that the House of Commons has neither the time nor the expertise nor, apparently, the inclination to undertake any systematic or effective examination of whatever tax rules the Government of the day places before it for its approval. The irony of the Commons’ failure is that, because current constitutional arrangements allow the House of Lords no participatory role in the scrutiny of tax legislation, taxation legislation receives less Parliamentary scrutiny than other legislation”.
The conclusions are quite clear. We surely should be willing to enjoy the flexibility that we have—with, of course, the consent of the other place and within the limits of the established constraints—that would enable this House to address tax legislation in that way.
Beyond that, the thing that strikes one so powerfully about this debate and the report is the remarkable consensus, so far, about the qualities of this House and the way it works. I therefore beg the forgiveness of the House if I say a word or two about the implications of that for the substance of the structure of this House and of possible change in composition. The Committee’s central message is one that I have probably uttered far too often already: if it is not broken, do not fix it. This ruthless, detailed examination of existing conventions in face of the specific proposals in the Government’s manifesto came to the conclusion that they did not need to be fixed; that they are remarkable in the way in which they function. That is the approach which one should surely adopt towards the future composition of this Chamber.
In their response to the committee’s report, the Government have two things to say about that. In paragraph 8 they identify the necessity, in their view, of further change in the composition of this House and of offering Parliament the chance to decide on whether there should be further changes to make the Lords more effective, legitimate and representative.
As to representativeness, the diversity of expertise and experience in this House far exceeds that in the other place. As the committee of the noble Lord, Lord Wakeham, pointed out, selection and appointment is far more likely to produce a pattern of representative diversity, even regionally, ethnically and in terms of sexual discrimination, than the process of election. So representativeness is not doing too badly.
Legitimacy is a topic on which a number of noble Lords have already spoken. The noble Lord, Lord Wallace, pointed out the significance of the disappearance for ever of the built-in Tory hereditary majority and the increasing role played by life Peers. We now have a House in which neither major party has more than 30 per cent of the seats and that equation—give or take, no doubt, some variations—has itself become something like a convention of the House. As the noble Lord, Lord Wallace, pointed out, it is certainly unlikely that we will see any elective system which gives the Government or the Opposition of the day an overall majority.
One has to address this 40 per cent of notable creatures who sit on the Cross Benches and notable—but perhaps less notable—creatures who sit on the Liberal Democratic Benches. I do not mean to be unkind or impolite. That 40 per cent of the House is the jury we have to convince. It is a formidable system of working. Its effectiveness has produced a transformation in what happens. In the six years from 1999 to 2005, this House secured almost 300 victories against the Government which were sent back to the Commons. That sounds terrible until you realise that 40 per cent of those “defeats” were accepted by the Government and the Commons. That shows that we have, perhaps, grown in confidence, as the noble Baroness, Lady Jay, predicted long ago when the proposals were still going through. It also shows that we have maintained a degree of self-restraint; and the acceptance of our proposals on that scale establishes also that we have grown in legitimacy, if that is not too crude a boast for us to make in this place.
So the only question that remains is: what can be done by changing the composition of this House to improve the effectiveness of the place? On that, I delight in being able to say not three cheers but hundreds of cheers for the noble and learned Lord, Lord Falconer. In his speech only hours ago, his description of this place, which apparently some people seek to reform fundamentally, was that it performs “exceptionally well”; that it does a “hugely impressive job”; that it has been “transformed”; that it is an “effective revising Chamber, which adds substantial value”. Not many institutions in this country deserve school reports of that kind. When they come from someone as noble and learned as the noble and learned Lord, Lord Falconer, himself, we are surely entitled to take account of them.
And he, I hope, is entitled to take account of this, my Lords. His view, as is apparent from the speeches, is likely to be reflected in any views expressed by this House on the prospect of changes to its composition. They have already been reflected in Divisions on previous occasions. It is clear that a substantial majority here is resistant to the arrival of an elected element of any size. Most if not all of us worry about the impact of that, whether it is incremental or dramatic.
The manifesto on which the Government were elected said, rather delphically, that they intend to allow,
“a free vote on the composition of the House”.
That is very odd—a free vote of the House. Surely there must be a free vote in this House, which is the House to be dismantled or rearranged, and the value of that free vote must be as substantial as that of any comparable vote in the other place.
On 5 December 2006, my noble friend Lord Strathclyde endeavoured to cross-examine the noble and learned Lord, Lord Falconer, about this, with some success. My noble friend asked the noble and learned Lord to clarify whether it is a requirement, as the noble and learned Lord had said,
“that there would need to be a consensus not just between the parties but between the Houses as well”.
The noble and learned Lord replied, with his customary candour:
“I do recall saying that. It is my position and it remains my position; we need to work for consensus”.—[Official Report, 5/12/06; col. 1056.]
Striking a slightly different note, predictably, the noble Lord, Lord Goodhart, suggested that,
“while consensus may be desirable, it is not essential”,
to which the noble and learned Lord replied:
“I think that for the reform of this House, at this time, consensus is necessary”.—[Official Report, 5/12/06; col. 1058.]
We are entitled to ask, even if not to secure an answer, whether the consequence of that friendly dialogue between the leaders on the Front Benches, both apparently endorsing the need for consensus between the two Houses, is as we would understand it to be. I hope strongly—I cannot say that I believe—that at the end of today’s debate, we shall have it clearly declared from both Front Benches that the expression of opinion in this House will have exactly the same weight as that in the other place, and that great attention will be paid to it, because it should be.
My Lords, it is a privilege to follow the noble and learned Lord, Lord Howe. It is particularly satisfying to be able to agree with his observation that this debate and this important report enjoy remarkable parliamentary consensus. Great credit is due to the chairman of the committee, the noble Lord, Lord Cunningham, for having wrought this subtle and intelligent report. It comes as no surprise from him; it is a remarkably precise and accurate description of the best of what we observe in the relationship of the two Houses of Parliament to each other.
It is perhaps also appropriate to recall that when this subject was first mooted for discussion and consideration, there was no expectation that this would be the outcome. There was considerable anxiety in some quarters that the opportunity would be taken by the Government to seek to constrain through the codification the very flexibility which may be equated to the concept of the sovereignty of Parliament. That that danger has been avoided is a matter of very great satisfaction. I say that as someone who has for a long time believed that fundamental and radical reform of the House of Lords and its relationship with the House of Commons is important not only for discussion but ultimately for decision, since our constitutional arrangements seem to me and, I think, to many observers to give too great authority to the Executive. Enhancing the power of Parliament to check the Executive properly means enhancing the authority of the House of Lords as well as of the House of Commons.
However, a number of speakers in this debate have made it clear that the thrust of this report is not the future composition or powers; it is about preserving the best of what we have. Had that been all there was to discuss I would have been reluctant to intervene at all, certainly by this time in the debate, but the Government have chosen to reply to the report not only in the eloquent speech of the Lord Chancellor, which evoked almost total agreement from me—that is not surprising, for I have found myself on many occasions on the same side as him on matters of constitutional reform—but in the prior issuance of a response from the Leader of the House of Commons, Mr Jack Straw, which was far from being as felicitous, subtle or intelligent as the response of our noble and learned colleague.
The great mistake of the Leader of the House of Commons was to advance this report as though it were something other than it is—namely, a description of the best of what we have—and to suggest that it ought to be the basis on which any reform of the House of Lords might be founded. In that, I have to say, he is entirely wrong. The committee made it abundantly clear in paragraph 61 of its report that it was not mandated to consider the future structure or powers of the House; indeed, it indicated at the very beginning of its summary that it was “instructed” to accept the primacy of the House of Commons. That was an entirely rational observation of the status quo. That situation would not be changed by the introduction into our Parliament of an elected element in this House.
It is important to make this distinction. An electoral mandate, which the House of Commons enjoys, would not flow to this House if there were an elected element in it. That will come about only if there is an elected upper House. If that were to come about, the situation would of course be entirely different. As a number of Members have indicated, notably the noble Lord, Lord Tomlinson, earlier in the debate, if members of the public were standing for election in that situation, they would not consider it appropriate to have their mandate restricted by any such rules or codifications of the conventions of the House as have been threatened in the past. Certainly, if we had a written constitution that defined the relationships of the two Houses, that would be an entirely different matter, but I have not heard many people call for that in this debate, or many members of the Government suggesting that they understand the case for that wider definition.
Suffice it to say that the committee was wise in sticking to the limited mandate and remit that it was given and the Government were unwise in trying to build a new constitutional structure on that limited base. The possibility of an upper House, all elected with an electoral mandate, challenging the House of Commons is at this time quite remote and it is starting at shadows for the Leader of the House of Commons, Mr Jack Straw, to suggest otherwise.
My Lords, I am speaking because I thought that I was the only Cross-Bench member of the committee who was able to be here today. I understood that the noble Lord, Lord Wright of Richmond, was engaged elsewhere; I have to confess the longer that he remained in his place the more I kicked myself for being conned by a professional diplomat into taking the role of speaking rather than leaving it to him. But I was keen it should be plain that silence on our part did not convey any suggestion that he or I were in any way opposed to the report or to the Government’s reaction to it. Far from it, we strongly support the report and the Government’s response.
I have only very little to say and I shall avoid the temptation, to which most of my immediate predecessors in the list have succumbed, of speaking about the future reform of the House rather than limiting myself to the topic of the Motion before us. I join in giving hearty thanks to our chairman, who was so ably supported by the two clerks and exercised great skill in leading us to a unanimous conclusion. He deserves our praise and thanks for so doing. I should like also to join those who have mentioned Lord Carter. I sat on a number of committees with him and became increasingly impressed by his almost unique understanding of the ways in which the House worked and his enormously perceptive analysis of the interesting facets of the House. The committee and the whole House owe a great debt of gratitude to him.
The paeans of praise that have been heaped on this report should not lead us to think that there is anything very novel or startling in it. It sets out what was there to be known before, but it has synthesised it extremely well. What is new and a real step forward is that, assuming that today’s Motion is carried, it will no longer be open to any Member of the House to say that the conventions in it do not apply to them. Let me briefly look at one of those conventions.
Whatever it is in future called, the Salisbury/Addison convention will now no longer be a deal between two party leaders binding only on their parties or only those on the Front Benches of those parties. Henceforward it will apply to us all equally. We will of course be free to depart from it and take a conscious decision to do so, but if we do that we will have to acknowledge precisely what we are doing and not say that it does not apply to us because it was just some Tory and Labour leader doing a party deal.
The other thing which I hope the report and its acceptance by the Government and, I hope, the whole House, will achieve, is to make clear the extent and limitations of each convention. Again, I refer to the Salisbury/Addison convention. All too often one hears Members of the House invoking the Salisbury/Addison convention as if it was some sort of magic spell that ruled out any amendment to any Bill whose topic matter had a passing mention in the Government’s manifesto. If the report is read carefully, it can be seen that the convention does no such thing. A Bill is a manifesto Bill only if its core proposals have been,
“definitely put before the electorate”.
That is a quote from both the then noble Viscount, Lord Cranborne, and the noble Baroness, Lady Jay, so I am taking no particular side.
If all the manifesto says is that the party in question will bring forward proposals on national health, let us say, no particular health Bill can on that be given the protection of the convention. The manifesto must spell out what it is going to do, and only something that contravenes that manifesto is a breach of the convention. As this House now very seldom rejects entire government Bills, the real issue is whether a specific amendment to a manifesto Bill is a wrecking amendment. If it is, it contravenes the convention—and the test for that is whether the Bill, if amended in the way proposed, would still be a measure that answered the description in the manifesto. If it would no longer be, as so amended, a Bill that was the measure described in the manifesto promise, then but only then is that a wrecking amendment. You have to be able to say, “If you do that, the measure no longer corresponds to the one in the manifesto”. I hope that henceforward those who wish to invoke the mantra of the Salisbury/Addison convention, or whatever it is hereafter called, will recognise that the onus lies on them to demonstrate that the amendment comes within that category, and that only then will they invoke the convention.
On another issue, I deprecate the attempts of those who seek to find a conflict between the report and the Government’s response on the effect of an alteration to the composition of the House. I do not believe that conflict exists. The report says that it will be open for reconsideration if the composition of the House is changed. The Government accept that, but then go on to express their own view that after consideration it will be found that no change is needed. That is not going against the report but merely saying what their personal conclusion is as to the effects of the reconsideration.
In my personal view, the Government’s view is perfectly acceptable. Others may not agree, but that does not mean that the Government and the report are in conflict. I personally tend to think that the House does not lack powers. What it has perhaps lacked in the past is the confidence and will to exercise those powers.
My Lords, at this stage in the debate there is a certain temptation merely to say, “Line me up with the noble Lords, Lord Higgins, Lord Tomlinson, Lord Wakeham and Lord Barnett, and the noble and learned Lord, Lord Howe” and sit down. However, I am afraid that I shall resist that temptation this evening. Many of the contributors so far have given the report complete praise and endorsement. However, on the Government response, many would say to the Government, “Take it back. You could do better. In fact, you must do better”.
I welcome the report and congratulate my noble friend Lord Cunningham and his colleagues on it. It is a model of what a report on this subject should be. It is exceptionally well structured. The structure of the report is important as it helps to develop the argument. The report’s real power lies in the fact that it recognises the interaction between role, powers and composition and puts conventions in that context, recognising that they are dynamic, that they will change and that they have to be flexible. The whole business of role, powers and composition will have an inevitable bearing on how conventions change.
That was spelt out most clearly in paragraph 61, which states:
“Our conclusions apply only to present circumstances. If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question”.
Others have identified that paragraph. It is one of the most central and important paragraphs in the whole report.
The difficulty is that the Government effectively reject that argument in paragraph 9 of their response, which states that,
“further reform should not alter the current role of the Lords as a revising chamber, and that the conventions governing its relationship with the Commons are fit for that purpose. We believe the relationship the Joint Committee describes is one which should apply to any differently composed chamber”.
Quite honestly, that is pie in the sky. It is unrealistic. Advocates of a partly or wholly elected chamber—I notice that the noble Lord, Lord Maclennan of Rogart, nods—recognise that the conventions will change if you get an elected element and if you change the relationship with the House of Commons. There is an inevitable interaction there.
The Government’s proposition in paragraph 9 flies in the face of British constitutional history, which is primarily about a struggle for power, initially between the Monarchy and Parliament, then during the latter part of the 19th century and virtually the whole of the 20th century, between the Commons and the Lords. The inevitable outcome of that was the primacy of the Commons. The basic underpinning argument and claim for that primacy is the elected nature of the House of Commons. Disturb that, remove that element and you do not open up completely the issue of primacy, but you change the relationship between the two Houses.
The Government’s response refers to the example of the Canadian Senate at paragraph 14, which states that,
“the Canadian Senate is wholly appointed but has extensive powers in relation to legislation. Although, as the Clerk of the Canadian Senate pointed out to the Joint Committee, conventions have emerged there which have served to restrain the use of those powers”.
That is very good but the Government ought to have looked at the conclusion of the evidence from the Clerk of the Canadian Senate, who stated at evidence 161:
“If the Senate were to be reformed and, among other possibilities, elected, it is far from certain that the restraint that currently guides the Senate’s deliberations would hold. … As long as the Senate remains a wholly appointed body, this restraint will likely continue to be a defining feature”.
The Government should reflect upon those words as they look forward to the reform of this House.
Finally, the noble Lord, Lord Wallace of Saltaire, talked about the continuation of the primacy of the House of Commons in the context of reform. He said that that primacy was built basically on three pillars: the fact that the House of Commons decided the issue of confidence; that it had control over supply; and that the vast majority of Ministers were in the House of Commons. He identified those three elements. That is quite right. Even if there is reform on an elected element, primacy in those terms would remain, but there would still be a change in the relationship between the two Houses. You can have primacy but you will fundamentally change the relationship. This lot would become much more awkward, basically. In those circumstances I am afraid that the conventions will not and cannot hold.
My Lords, it is a great pleasure to pay tribute to the noble Lord, Lord Cunningham, and his committee. The noble Lord and I served together at the other end of the Corridor. I regard the report as brilliant and—it is not always the case with reports—a joy to read.
I hope that I shall not embarrass the noble Lord if I quote two sentences from the report’s summary, which states:
“We do not recommend legislation, or any other form of codification which would turn conventions into rules, remove flexibility, exclude exceptions and inhibit evolution in response to political circumstances. And, however the conventions may be formulated, the spirit in which they are operated will continue to matter at least as much as any form of words”.
In my view that is a classic definition of our parliamentary constitution. It rates along with Dicey, Bagehot and Erskine May. Long may it remain.
The conventions report has a full chapter on secondary legislation. We do not often discuss that; it usually empties the House, but it seems to me a good opportunity to consider it and the importance that the committee clearly attaches to it. Until recently Parliament has not caught up with the volume and importance of secondary legislation. We are now making rapid progress. In 1992, the Delegated Powers and Regulatory Reform Committee was set up. It examined all government Bills and, where appropriate, suggested that delegated legislation should be not quite as the Government of the day hoped. Normally, the Government of both colours accepted the recommendations. That was a good example of this House accepting more responsibility for delegated legislation. I had the great privilege to serve on that committee for some time, so I saw at first hand the value of the work that it did.
An important step forward has been the setting up of the Merits of Statutory Instruments Committee in 2003. It was charged with a duty to consider the merits as distinct from the vires of statutory instruments. It produced a very valuable report, The Management of Secondary Legislation, which was published last March. The most important of its recommendations are really a criticism of the management—or mismanagement—of the preparation of secondary legislation in Whitehall. Something that we in Parliament all know about became very clear to me; if Governments are to be held effectively to account, Whitehall and Westminster must work effectively together.
Where do we go from here? Now that we have a committee looking at merits, why not look at demerits? Perhaps we should consider the possibility of some members of that committee in particular, or the House as a whole, looking rather more carefully at what comes out of secondary legislation. There may be a few more occasions when orders might be prayed against. Dare I suggest the possibility of this House being able to amend secondary legislation? We have the power at the moment to refuse secondary legislation, but we very rarely do it. It is a blunt instrument, and it is against our conventions. Is there a possibility that, on suitable occasions, with the enormous experience we have in your Lordships’ House, one might suggest to the Government of the day a better way of dealing with a given situation? I suggest nothing more than that. There may be occasions, particularly with many of the distinguished lawyers in your Lordships’ House, when we might detect that something is not quite in accordance with the original Act. There may be occasions when there is just a possibility that your Lordships’ House may be able to improve its scrutiny of legislation.
I never speak for more than a short time, as your Lordships know. Although we are under rumours about the House being reformed and all that sort of thing, it is clear from the way in which your Lordships’ House functions at the moment that we have lost no zest for the scrutiny of legislation and for keeping the Government to account.
My Lords, like everyone else who has spoken, I begin by congratulating the noble Lord, Lord Cunningham, and those who helped him prepare this excellent report. I agree very much with it, and I am extremely glad that there was unanimity within the committee and that there was consensus. Rather like the noble Lord, Lord Dean, I believe that this document will be of great value for the future editors of Erskine May. I suspect that it will be quoted a great deal. As others have said, this is obviously an occasion when we very much miss Denis Carter. I learnt a great deal from him about the conventions when I worked with him on the usual channels.
I have very considerable respect for the noble Lord, Lord Hunt. I was therefore very surprised when a report came out before the last election including a number of suggestions about things that were not working particularly well in your Lordships’ House. One of the very helpful things that this report has been able to do has been to examine some of those possible questions, put them into context, and to come to a consensual response to them. That is a very great advantage.
Like very many who have already spoken—and I am afraid that I am going to quote the same paragraphs—I was far less happy with the written response from the Lord Privy Seal than I was with the report of the committee. I share the argument of the committee, which has been quoted by a number of noble Lords already, at paragraph 61:
“If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question, codified or not”.
The Lord Privy Seal made clear at paragraphs 8 and 9, and then at paragraphs 19 to 21, that this view was not shared by the Government. I was therefore, like many others, happier to find the formulations used by the noble and learned Lord the Lord Chancellor this afternoon, who suggested that perhaps there was a wider consensus. In the written response from the Government that point was very disappointing.
I also found, as others have, in the detailed evidence, including the evidence from the Clerks of the two Houses, some extraordinarily interesting material. The then-Clerk of the House of Commons, Sir Roger Sands, in paragraph 4 of his evidence, referred to the Parliament Act 1911, which is frequently quoted on these Benches. He goes on to say,
“as the Preamble to the Act makes clear, it was envisaged at the time that those arrangements were only being put in place until such time as the House of Lords was reformed and ‘constituted on a popular instead of a hereditary basis’. In other words, the arrangements were predicated on an unreformed House of Lords and were not necessarily thought to be appropriate to a different constitutional situation, that is to say one in which that House was differently constituted”.
That point was followed up in oral evidence and, in an exchange with the noble Baroness, Lady Symons, was taken up again. It is extraordinary that one of the Clerks of one of the Houses of Parliament thought that something as substantive as the Parliament Act would at least have to be looked at in a different light as a consequence of having an elected House of Lords.
It is very difficult, in spite of the discussion that we have had this afternoon, to predict the political dynamic of reform to a substantially elected House, which is something that I support. It is possible that the relatively benign example of Australia, described by Dr Meg Russell in her oral evidence, at paragraph 125, would be followed in the United Kingdom. It is, of course, worth remembering that I used the phrase “relatively benign”, because of the constitutional crisis that occurred in Australia in 1975, when the Governor-General had to move in and remove the Prime Minister because of disagreement between the two Houses. It is also worth remembering that although evidence was given about how little the Australian Senate uses its legislative powers, it was also made clear that it has financial responsibilities in the same way as the House of Commons.
I note that, in all the discussions of alternative systems, no one cited the example of Italy. That is perhaps surprising, because the Italians have something they ironically describe as “bicameralismo perfetto”, or perfect bicameralism—that is, they have two chambers with exactly identical powers. As we all know, the political history of Italy over the past 25 years has shown that that is not a satisfactory way forward. What is worse, three attempts at constitutional reform to sort out bicameralism in Italy have all failed.
I assure my noble friend Lord McNally that I am not going to be a scaremonger this evening and suggest that there is likely to be a rapid deterioration of the situation as a consequence of a move to an elected second Chamber. There is certainly likely, as he suggested, to be a transitional period in which a hybrid House would contain a significant number of your Lordships, and it would retain the current respect for the present conventions. That would also be the initial position of the three political parties represented on the committee. However, I think the noble Lord and his committee were quite right to point out that in time an elected House, with Members responsive to the pressures from their constituents, would change the political dynamic. In particular, it would be very difficult to explain to constituents why one elected Chamber had financial privileges and the other did not.
Perhaps that dilemma makes a further argument for a proposition that has frequently been advocated from these Benches; that is, the need for a written constitution, a point hinted at by the committee itself in paragraph 56 of its report, which refers to a number of countries where the second Chamber has lower powers, but where there is a written constitution. There has been some evidence in recent months that the Chancellor of the Exchequer, Mr Gordon Brown, is in favour of a written constitution. I welcome his conversion to that position, if it has occurred, and suggest that in the medium term it would resolve some of the problems that have been raised in today’s debate.
We should adopt this Motion tonight, but we should accept that this is not the last time we will discuss this subject.
My Lords, I start by following the flexible and unenforceable convention of saying it is a great pleasure to follow the noble Lord, Lord Roper. Like him, I welcome the excellent report of the committee on conventions and congratulate the noble Lord, Lord Cunningham, and his committee on their work. I was pleased that it also found favour with the Government.
Much has changed over the past eight years in the way that this House performs its responsibilities for scrutinising and revising legislation. It is most helpful to have such broad agreement on the role and application of conventions of such critical importance to the relationship between this House and the other place. However, one point, referred to by many other noble Lords, on which there has not been total accord between the committee and the Government relates to the future, if or when there are further changes to this House.
The committee says unequivocally that,
“should any firm proposals come forward to change the composition of the House of Lords, the conventions between the two Houses would have to be examined again”.
The Government’s response, on the other hand, is to say that the relationship the Joint Committee describes is one that,
“should apply to any differently composed chamber”.
That response is consistent with the line first adopted by the Government in consultation paper CP 14/03, which suggested that there was then, in September 2003, widespread agreement that the,
“present constitutional conventions which govern how the Lords conducts its business and behaves towards the Commons should remain basically unchanged”.
Like other noble Lords, I wonder whether that is not wishful thinking on the part of Government.
In their reply to the committee, the Government acknowledge that there is general agreement about the current role of the Lords. They then go on to assert that the question of composition of the second Chamber does not dictate its role. “Function does not follow form”, they say, though powers and functions,
“certainly impact on each other but are separate”.
They base that conclusion on a consideration of the relationship of second chambers in other countries with different make-up and varying degrees of power. In particular, they say:
“It does not follow … that directly elected chambers necessarily have more power than appointed chambers, or that because their members have democratic legitimacy, they have a greater say over legislation”.
But is not that conclusion a non sequitur? It can happen, although that is no proof that it will. It would be as reasonable to conclude the opposite from other examples: some directly elected chambers have more power than appointed ones, or have a greater say over legislation than the other chamber when their members have democratic legitimacy.
These examples serve to demonstrate a weakness in the Government’s approach. The point is surely that, if there is change in your Lordships’ House, it will be without parallel elsewhere. It will work on the basis of statute and conventions unique to this Parliament. So, like other noble Lords, I do not accept this part of the Government’s response, which seems to be a thinly disguised attempt to suggest that current conventions will be sustainable into the future, regardless of the final balance of membership in a reformed Chamber.
A fundamental question about constitutional reform is to ask, “What about the likelihood of unintended consequences?”—that is, consequences not foreseen or expected by Government. The Government and others in favour of change believe that, regardless of form, function can be set down and will not be challenged. However, all the conventions in place to uphold that belief are “unenforceable”. It is far too simplistic to hope that function will not be amended and will not ultimately depend, to a very considerable extent, on the form of composition.
I draw an analogy with the unintended consequences of devolution in Scotland. The Government surely never contemplated when that was brought forward that it might lead to the de-unification of the United Kingdom, with Scotland going off on its own. Devolved powers do not include responsibility for foreign or defence affairs, but that would seem to be no barrier to a Scottish parliament seeking independence. This is not the moment to debate that possibility, which seems to be worrying senior members of the Government greatly at present.
Then there is the Human Rights Act. Was it ever intended that it would prevent photos and information about escaped convicts being published by the police because it would infringe the culprits’ human rights? There are numerous other examples of unintended consequences in that Act.
Such examples serve to underline my point that whatever the good intentions of a change in the composition of this House, there is no way that its powers and responsibilities, governed by conventions, can be set in stone. Unintended consequences will arise. Nothing in the Government’s response to the excellent Joint Committee report can give any reassurance that there will not be relationship changes between the Commons, even if it retains all its current powers over this House, and a revised second Chamber. It certainly does not follow from the dubious and naive arguments of the Government. The remarks of the noble Lord, Lord Cunningham, and many other noble Lords seem fully to support my view, although I hope it will not mean that the favoured title of “Cunningham conventions” will have to be short-lived because other conventions are adopted.
As I suggested in a debate on the Queen’s Speech in November, the quality and make-up of the membership of a reformed House of Lords will greatly affect the stability or otherwise of Parliament and the way in which the two Houses work. Codification of or conventions on the responsibilities of the two Chambers can in the last resort depend only on the calibre and behaviour of their members. What we enjoy today is not a given for the future.
My Lords, I, too, add my congratulations to all the others that the committee has rightly been given on the report that it produced. It is not just the content that is good; it is also beautifully written and very readable, which is not always the case with reports. Back when the committee was set up, I thought that it was a waste of time, as I could not see how it would be possible to codify any of the conventions that were to be under scrutiny. I now think that it has been a very worthwhile exercise, as its conclusions should put paid to further demands for codification, for a while at least.
I agree with every one of the conclusions except one: the recommendation at the end of Chapter 3 that the name of the Salisbury/Addison convention be changed to the government Bill convention. Why do it? Yes, as the committee very clearly demonstrated, this convention has evolved over the years to have a wider application than when it was first conceived, but the principle is still the same, so why change the name? This House has changed enormously over the centuries, but it is still called the House of Lords. All of us in this House know what the Salisbury/Addison convention is. We know why it was invented and what it has evolved into. New Peers coming into this House may not, but when they hear about it they will ask what this curiously named convention is and why it is so named. Then they will learn a very interesting and important piece of the history of the House, which I do not think that they will ever do if the name is changed to the government Bill convention. What a dull name, too! How many of your Lordships would feel impelled to inquire into the origins of a government Bill convention? With great respect to the noble Lord, Lord Cunningham, the Government’s suggestion of “Cunningham convention” still wipes out the past, although it is much more colourful and I would therefore prefer it for that reason.
This proposal reminds me of the childish actions of dictators in some countries who, having come to power after a coup d’état, promptly caused the names of the principal streets in their principal cities and towns to be changed from what they had been—often for centuries—to either their own name or the date of the coup d’état that brought them to power. Their object was to wipe out the parts of history that they would prefer their subjects to forget, as well, of course, as to commemorate their own achievements. Some local authorities in this country have done the same thing. It is moderately effective. In most cases, the locals continue to use the old names regardless. I rather think that if the name of the Salisbury/Addison convention were changed, that is exactly what would happen in this House. We would still call it the Salisbury/Addison convention.
Of course, Soviet Russia was the star exponent of this practice, changing the names of every town or city between St Petersburg and Vladivostok. This committee does not need to obliterate history, and I hope and believe that it is big enough and grown-up enough not to need to make its mark in what seems to me rather a petty way. I implore the Procedure Committee, which will have to agree with proposals of the report, to reject this particular one.
I end by hoping that more Peers will take the trouble to learn and observe those conventions of the House that are written down in detail in the Companion to the Standing Orders, such as bowing to the Cloth of Estate, not crossing the Floor, and remaining seated when the Lord Speaker or the Lord Chairman is on his feet instead of trying to play grandmother’s footsteps at the end of Questions. Above all, I hope that they will learn to observe the correct forms of address and to stop using mobile phones in the Bishops’ Bar.
My Lords, I thank my noble and learned friend Lord Falconer of Thoroton for the comprehensive way in which he opened this debate and the constructive tone that he demonstrated today. It was very refreshing to hear him.
Our discussion of the Joint Committee’s report today has been very thorough and it has echoed the remarkable degree of consensus and agreement achieved under the excellent chairmanship of my noble friend Lord Cunningham of Felling. We have all been aware, however, of the absence of an irreplaceable voice in your Lordships’ House. My late noble friend Lord Carter is, I am sure, keeping his kindly eye on us today. He was faithful to the last in giving of his time, energy, experience and very considerable wisdom to our committee. I believe that many of us here today have felt his absence very keenly.
The terms of reference for a committee such as ours are always very tricky. I go back to them because, during our discussions, my noble friend Lord Cunningham had cause to remind the committee at least once, and very often more than once, each session of exactly what our remit was. He did so particularly in relation to two issues. The first was that the committee’s work took place on the basis of accepting the primacy of the House of Commons. The second was that our remit did not extend to consideration of the reform of the House of Lords in terms of its membership. These two points demonstrated, I think, a conviction that functions needed to be considered before form. It is a simple enough proposal. What are the relationship and the powers of the House of Lords in relation to another place now, and what should the form of the House of Lords be to discharge that relationship and those powers properly?
Of course, it really is not quite that simple, because this is politics. We are not talking about setting up a committee or a new institution to consider a particular issue or to discharge a particular responsibility. We are dealing with Parliament and government, which in this country is not just the relationship between two Houses of Parliament. It is the relationship between Parliament and the Executive and, most important, the relationship that Parliament has with the public or the electorate who put it into office. That really is the bedrock of the issue. These themes emerged several times during our discussions, but they were rightly never explored. It was right because they were completely outside our remit. I believe, however, that in casting a vote in a democracy, a citizen has a right to expect those elected to assert their electoral authority on behalf of those who have put them into office.
Most of the issues that our committee discussed have been dealt with very well and very comprehensively this afternoon. Although we argued vigorously on a number of points, the committee agreed our report unanimously and across both Houses. Members of all political parties and none, the elected and the non-elected, came together in a unanimous view. It was an important and very welcome achievement, and I thank our chairman for his great leadership in allowing us to secure that objective.
Today the Government have approved our report in generous and unequivocal terms, as exemplified by my noble and learned friend in his opening remarks. His has been a sensible, pragmatic response from the Government, which I have been very happy to hear. Like others, I could not help reflecting that my noble and learned friend’s remarks were somewhat different, in tone at least, from the Government’s written response—a point made markedly by the noble Lords, Lord Roper, Lord Maclennan of Rogart, and many others, too.
The Government have accepted our conclusions on the issue of reasonable time, which was at variance with their own manifesto commitment to subject most legislation to a time limit of 60 days. Interestingly, the Leader of another place told the committee:
“We are not necessarily committed to the methods specified in the manifesto”.
That was an arresting remark given the subject matter of the binding nature of government manifesto commitments in other circumstances. My noble and learned friend was of course more subtle in his approach when he told the committee that,
“it needs to be a general sensible reading both of what is in the manifesto and broadly what the government stands for in determining what is covered by it”.
The committee made it clear, at paragraph 283(a) of the report, that we accepted the primacy of another place, and, indeed, we were instructed so to do. The Government welcomed our acceptance of our instruction. No witness questioned it and nor did we. It is demonstrably and rightly the current position of a non-elected House in relation to an elected House in a democracy. But, as has been said, we went on to make it clear at paragraph 61 of our report, which seems to have caused a great deal of excitement:
“Our conclusions apply only to present circumstances”.
That is a straightforward, and even a rather mundane, point. We said that if your Lordships’ House acquired an electoral mandate, in our view, your Lordships’ role as a revising Chamber and our relationship with the Commons would inevitably be called into question. The committee said:
“Given the weight of evidence on this point”—
and there was a great deal of evidence—
“should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again”.
That wording was not an accident. The amendment was thought through, discussed at length and agreed, and it has become the most discussed paragraph in the report.
The Government devoted much of their response to that paragraph. They pointed out that the 2005 manifesto commitment to remove the hereditary Peers and to offer Parliament the chance to decide whether there should be more changes to make the House of Lords more effective, more legitimate and more representative was the important point. Now is not the time to discuss whether elections really would make this House more effective, more legitimate or more representative, although, as we all know, the ballot box is no guarantee of any of those attributes—a point made very well this afternoon by the noble and learned Lord, Lord Howe of Aberavon.
Unlike the noble Lord, Lord Williamson of Horton, the Government’s response to our recommendations went way beyond the terms of reference of our committee by saying unequivocally that further reform should not alter the current role of this House as a revising Chamber. The Government say that our description of the relationship as it is now should be the relationship, irrespective of any democratic legitimacy applied to this House. They have, as the noble Lord, Lord Higgins, put it, at least jumped the gun, but perhaps, more importantly, they have ignored the very restrictions on comment on this issue which the committee felt bound to observe. The committee kept the rules.
Let us be clear: the committee did not say that the relationship would change. We could not do so; such a conclusion would have been outside our terms of reference. The Government have not been so disciplined in their response. They have responded outside the terms of reference. The fact is that, within accepting the primacy of the House of Commons, the balance of the relationship between the two Houses may well change if the Lords becomes partly or wholly elected. That seems to me to be plain common sense.
If, in 1999, my noble friend Lady Jay of Paddington could assert on behalf of the Government that the politically reformed House would have more legitimacy and more authority in its relationship with the Commons, why should the authority conferred by an electoral mandate be of no significance in that relationship? Democracy is the authority of the electorate and, in seeking to dismiss the idea that an election empowers the elected, the Government are on very tricky ground. It is not an argument that I would have expected from those to whom a democratic mandate for themselves is the basis—indeed, the bedrock—of their own authority and legitimacy.
As I understand it, my noble and learned friend’s argument is to say, “By all means, if there are elections for the House of Lords, let us examine these issues again”. But, as my noble friend Lord Tomlinson pointed out, the subtext is more clearly spelt out in the letter of 13 December from the Leader of another place to my noble friend Lord Cunningham, in which he said:
“The Government believes however, that further reform should not alter the current role of the House of Lords as a revising and scrutinising chamber, nor should it alter the balance of the relationship between the Lords and Commons. The principles of the current conventions that the report identifies should therefore still apply in a reformed House of Lords”.
If the relationship needs to be considered again, it will not be a matter for the Government or the parties; it will be a matter for Parliament and, particularly, a matter for your Lordships’ consideration.
I wonder whether, in winding up this excellent debate, my noble and learned friend will tell us how he thinks the examination of these issues should be conducted. Of course, he has accepted the unanimous view of both Houses that this would have to be done if,
“any firm proposals come forward to change the composition of the House of Lords”.
The word “proposals” is crucial and was well chosen. The committee said unanimously that not decisions but firm proposals would trigger the re-examination. As the noble Lord, Lord McNally, pointed out in his colourful intervention, the Leader of the House in another place has said that there will be a White Paper on this issue within a matter of weeks. So firm proposals are to be published, and soon. In accepting our report, the Government have accepted that it will trigger a further examination of these conventions. Can my noble and learned friend assure us that Parliament—both Houses—will be the body to decide any new relationship in the same open and transparent way in which the committee of my noble friend Lord Cunningham has already operated so effectively over the past few months?
I am very happy to support my noble and learned friend’s Motion in the terms in which he moved it today. I look forward eagerly to his response to the questions that I raised, particularly about revisiting these issues when the firm proposals on the form that this House may take in the future are published in the White Paper.
My Lords, like almost every noble Lord who has spoken this afternoon, I welcome the report of the noble Lord, Lord Cunningham, and his colleagues, and I agree with the broad thrust of what he has concluded. However, I want to touch on two matters. One arises directly from his report but the other only tangentially so.
I refer, first, to the Salisbury/Addison convention and the noble Lord’s comments on that in the report—a matter that has been mentioned by almost every noble Lord so far. I see the Salisbury/Addison convention in the nature of a constitutional settlement of the time. It was conceived in the aftermath of the general election of 1945, when, as everyone knows, a huge Labour majority was elected to the House of Commons and there was seen to be a huge Conservative majority in your Lordships’ House, consisting almost entirely in those days of hereditary Peers, save for the Bishops and the Law Lords.
That agreement was entered into voluntarily by both parties. The Government were not obliged to accept it—the Parliament Act 1911 was in force at that time. Indeed, a few years later, the Government invoked the provisions of the 1911 Act to secure the passage of the Parliament Act 1949, which reduced the time that it took to get a Bill through by means of that measure. The agreement—on behalf of the House of Lords, at any event—was not to disrupt the legislation proposed by the Government and referred to in their manifesto. For their part, the Government undertook not to disrupt the composition arrangements of the House of Lords, which were almost wholly hereditary at that time.
The 1999 Act changed all that. The Government unilaterally decided to abandon one of the legs on which the Salisbury convention was constructed and to destroy support for that convention. The Government may say that they got that Bill through by agreement, which is true. Indeed, I was the beneficiary of one of the changes made to the Bill to ensure that it passed. I have no doubt—and no other noble Lord has any doubt—and the Government do not deny that had agreement not been possible to secure the passage of the 1999 Act, they would have taken it through under the provisions of the Parliament Act which were then in force. Evidence of that may be recalled in the venomous remarks made by Ministers at the time with regard to hereditary Peers, some of which some of us will not forgive or forget.
The 1999 Act was a unilateral departure from the constitutional settlement of 1946. Accordingly, the Salisbury convention must be revisited. By revisited, I do not mean that it should be extended to cover all government Bills willy-nilly. Less still, some have said, that it should include secondary legislation. Nor do I have difficulty in seeking or thinking of a definition of what constitutes a manifesto Bill. I do not think the Government think that there is any difficulty either. Some have suggested that because of the difficulty of defining a manifesto commitment, we should depart from that definition. Either it is in the manifesto or it is not. I was interested to hear the remarks of the noble Baroness, Lady Symons, reporting what the right honourable Member Mr Straw said in that regard.
If the present composition of the House of Lords is to broadly remain, for the time being at least, we need a new look at the Salisbury convention, having regard to the post-1999 situation and the substantial, if not complete, removal of hereditary Peers, which followed from that Act.
I turn briefly to another related matter. Many of our procedures in the past 10 years or so have, with Opposition agreement, been changed. We have been changing the procedures little by little in your Lordships’ House over the past 10 years. It may be earlier than that—I do not wish to put a political flavour on this. I could produce a list of 20 or more areas where the procedures of the House of Lords have slightly changed in that period. Individually those changes are not very important, but taken together they have seriously undermined the ability of Back-Benchers in your Lordships’ House to hold Ministers to account. That is a crucial role for your Lordships’ House. Of course, I accept that we do it in a different way from the House of Commons. I accept that our way is gentler than in another place. None the less, we are honour and duty bound to hold Ministers to account just as they do in the other place.
I see that the noble and learned Lord the Lord Chancellor is still in his place. He will recall the classic example of that requirement when he was Minister in charge of the Dome. Every day there were questions about its management, and he dutifully answered them day after day, week after week, being held to account on the matter for which he was responsible. That is a proper role for your Lordships’ House and for the other place.
In the course of making all these small changes to our procedures, we have been too easily persuaded by the procedures involved. For example, I refer to leaders’ groups—I forget how many there have been. My noble friend Lord Strathclyde has taken part in them. I believe that he has been too easily persuaded to do so. They do not involve any Members on the Back Benches and are the worst function of the usual channels. They have produced conclusions that may benefit the Front Benches; they may even benefit my noble friend when he takes his place as Leader of the House in due course, as I hope and believe he will. In the mean time, I stress that they do not contribute to the ability of your Lordships to hold Ministers to account in the way that I believe to be so essential.
I acknowledge and congratulate the noble Lord, Lord Cunningham, on his report. I broadly concur with his proposal, but I hope that the question of the Salisbury convention will remain a matter still to be resolved.
My Lords, I put my name down to take part in this debate for two reasons. First, I have been in this House as a life Peer longer than any other life Peer who still attends—possibly as long as any other Peer in this House, and I have seen changes happen over a long period.
Secondly, it is a matter in which I was interested very early on. My grandfather felt passionately about the matter, and fought the 1906 election as a Liberal for Eastbourne, which was then a very unlikely seat, but which he won. He won it on the pledge to do his best to try to abolish the House of Lords. It was 1906, which I remind noble Lords was before the House of Lords had done anything very nasty to the Government of the day, or showed any signs of starting a constitutional row.
I am now coming up to the 40th anniversary of my appearance in your Lordships’ House, and although I regard myself as on the left of politics, I am totally convinced that your Lordships’ House is a very good thing. The primacy of the Commons is now totally accepted. We are a revising Chamber and a very good one. In continuing to be a very good revising Chamber, we must be as expert as possible.
I made my maiden speech, against the advice of my Leader and Chief Whip, on an Unstarred Question. They thought it an unsuitable occasion. But the question was about primary schools in Hong Kong. Since I reckoned that I was the only Peer who had been chairman of the governors of a primary school in Hong Kong, I thought it was up to me to keep up the tradition that there is no subject so recondite that one cannot find a Peer with expert knowledge on it.
We keep up that tradition these days on a rather more exalted plane. I listened the other day, as did other noble Lords, to an unfortunate defence Minister treed by a covey of field and air marshals. He was very much on the defensive. At a time when the Prime Minister treats Parliament with contempt, a House of experts, as opposed to generalists, where everyone knows what he or she is talking about, is doubly valuable.
I think that all talk of democracy and elections, such as, I regret to say, my party indulges in, is out of place in a House with no Executive power. But a House of experts is invaluable. It is perfectly feasible to devise a system of appointing Members that will avoid nepotism and which, with the conventions that we have, will work as effectively for the common good as any parliamentary Chamber in the world.
My Lords, I join others in congratulating the noble Lord, Lord Cunningham, and the other members of the Joint Committee on producing an excellent report. It is difficult to fault it. Given that, I very much welcome the terms in which the Motion is drawn.
The Joint Committee’s report deals well and sensibly with the different issues before it. I concur with its findings and recommendations. I was going to devote time to considering the concept of conventions in developing points that I made in my evidence, not least on secondary legislation. However, I am conscious of the time that we have taken in the debate, so I propose to cut to the principal points that I want to make.
There has been considerable discussion already on the contradictory nature of the Government’s response. The Government accept the conclusions of the report, but then reach an entirely different conclusion about the position of conventions in a reformed House. The Joint Committee contends that the conventions will be called into question if the composition of the Lords is changed. The Government are saying that they will not. The noble Viscount, Lord Bledisloe, does not quite read it that way, but I think that everyone else who has addressed the issue does.
In their response, the Government attempt to justify their position. The response, as has been mentioned, does so by referring to other reports and practice elsewhere. In so doing, it misses fundamental points about the impact that election, or partial election, of a second chamber would have. Various examples are given of where second chambers, including some that have an electoral mandate, accept the primacy of the first chamber, or where the first chamber gets its own way in certain circumstances.
The discussion fails to grasp two points that are crucial to any consideration of reform of this House. First, reference to the practice of other systems tells us nothing about the efficacy of those systems. Many of those who advocate election or part-election of the second chamber point out that a number of second chambers are elected or partially elected. The fact that they exist tells us nothing about the contribution they make to the political process and whether they add value to that process. In terms of existence, one could just as well call in aid the number of second chambers that are appointed; there are far more than advocates of reform appear to acknowledge. However, the essential point is qualitative, not quantitative. Will the noble and learned Lord the Lord Chancellor tell us how many of the second chambers listed in the Government’s response add value to the political process to the extent that this House adds value to the political process in this country?
Secondly, the discussion about the powers of second chambers misunderstands the claims made about the powers that would be claimed by an elected second chamber in this country. As has already been mentioned, the Government point out that some elected second chambers are not coequal with the first. Indeed, they devote a considerable amount of space to doing so. The discussion misses the point that advocates of an appointed chamber are not arguing that an elected or part-elected second chamber would seek powers that would render it coequal with the elected first chamber. We are saying, certainly I am saying, that an elected second chamber would demand more powers than those held by the existing chamber. In other words, the relevant comparison is not with other second chambers but with the Chamber as presently constituted. The noble Lords, Lord Tomlinson and Lord Sewel, have already developed that point powerfully.
Election would give Members a claim to greater powers than those held by Members of the current House. The present House is constrained by statute and by convention. The convention derives from the electoral mandate held by the other place, and from the absence of such a mandate for this House. If this House acquires an electoral mandate, to whatever extent, the grounds underpinning the convention—the Salisbury convention—disappear. Why should elected Members of one House concede that the mandate of elected Members of another House is so superior that they should refrain from voting against the Second Reading of a Bill? What if they were elected on a platform opposed to the proposals embodied in the Bill?
In short, the Salisbury convention would simply not be sustainable in those circumstances. The issue is not whether the convention is sustainable in those circumstances—it clearly would not be—but whether the Parliament Acts would be sustainable in those circumstances. There may be a case for the elected first chamber ultimately to get its way, as in some other legislatures, but should it be able to do so under the terms of the Parliament Act 1949, or even of the 1911 Act? Conditions have changed significantly. They have not changed to the extent that those Acts should be challenged, but if this House was to be elected, wholly or in part, there would be a case for revisiting those Acts. The issue would be whether existing statutory limitations could survive, not whether conventions could survive. The Joint Committee uses diplomatic language in paragraph 61 in explaining the position of conventions in the circumstances of election. The reality is that the rationale for them would have gone.
Why should a Member with an electoral mandate refrain from voting against a government Bill? Reflecting on these questions will, I trust, lead the noble and learned Lord the Lord Chancellor to the conclusion that the Joint Committee has got it precisely right. He seemed to be moving in that direction in moving the Motion this afternoon. Perhaps in closing he will reach the same conclusion that most speakers have already reached.
I turn to a different point about current practice, which has not been referred to this afternoon. Here I have a suggestion to make about our own procedure. In discussing the section of the Joint Committee’s report on a reasonable amount of time for considering government Bills, the Government accept that an arbitrary time limit should not be imposed. How long a Bill needs in this House will differ from Bill to Bill. It will be affected by complexity as well as sometimes by length. It may also be affected by procedure. I put before the House a proposal that means it would be affected by procedure. The Government’s response at paragraph 34 draws attention quite reasonably to the recommendations made by the Select Committee on Modernisation of the House of Commons and to the acceptance of those recommendations on 1 November by the other place.
The most important of those recommendations was that a Bill would normally be referred to what is now termed a Public Bill Committee, previously called a Standing Committee, and that that committee would have power to take evidence. I very much welcome this. I have been arguing for years, including before the Rippon Commission in 1992, that Bills should normally be referred to Special Standing Committees; that is, to evidence-taking committees. If Public Bill Committees use their power constructively, this reform may be one of the most important of the past half-century. However, this new procedure will apply only to programmed Bills introduced in the other place. Bills introduced in this House will not be subject to that procedure. This, I think, places the onus on us to consider what we should do. The Government’s response at paragraph 34 says:
“The Government will wish to look at the impact of these and other factors over time, in both Houses, before deciding whether further steps need to be taken in this area”.
I appreciate that this is meant as a constructive observation, but I think that we in this House need to address the matter as soon as possible. The House of Lords Constitution Committee’s 2004 report on the legislative process recommended that every Bill should at some stage in its passage be considered by an evidence-taking committee. We need to consider whether Bills introduced in your Lordships’ House should be referred to evidence-taking committees. We have the procedure in place for doing so, and we should consider referring Bills to such committees as a matter of course. Given the nature of government Bills that normally start life in this House, there is a powerful argument for ensuring that they are subject to such consideration. Given the time we devote to legislative scrutiny, and given the expertise we have in this House, we should consider this as a matter of urgency. Clearly if such a procedure is adopted, it has implications, as in the Commons, for how long it will take a Bill to be considered. We have to retain some flexibility.
To conclude, I very much welcome the Joint Committee’s report. It is persuasive and, has been said, authoritative. The committee has done an excellent job in a relatively short space of time. The Motion before us deserves our full support.
My Lords, I join others in the House in thanking and congratulating the noble Lord, Lord Cunningham of Felling, on a remarkable achievement. I was proud to serve on this Joint Committee and, indeed, on a previous Joint Committee that he chaired. I only hope, and I expect he shares my hope, that the result of this work will be more productive and positive.
I have always believed in giving credit where credit is due. That perhaps is unfashionable at the other end of the building, but I hope it is more fashionable here. Therefore I really do think that we should salute a very sensible response from the Government to the Joint Committee, and pay tribute to the role of the current Leader of the Commons, Jack Straw, and indeed to that of the noble and learned Lord the Lord Chancellor, in achieving this. Several speakers this afternoon have not recalled how we got into this situation and how this committee was set up. What was the origin of this exercise? Less than a year ago, before the Joint Committee was constituted, the then Leader of the Commons set out the Government’s intentions in an article in the Independent. After quoting Tom Paine, who said that the idea of hereditary legislators is as inconsistent as that of hereditary judges and hereditary juries, he went to state:
“The debate on powers could be resolved by making established conventions, such as the Salisbury Convention, legally binding to ensure the primacy of the Commons. This would have to be done by statute, and would be a complex process, but would assist in encouraging support in the Commons for changing the composition of the Lords. One thing is quite clear from the perspective of Members of the House of Commons. We must clarify and circumscribe the powers of the Second Chamber before deciding its composition”.
That was the Hoon doctrine.
I must emphasise at the outset that the Joint Committee—which had members from both Houses, all three parties and the Cross Benches—unanimously disagreed with that approach. As my noble friend Lord McNally said, we resisted any suggestion that your Lordships’ House should have its wings clipped by the Government. If we are to have a second Chamber in a bicameral system doing its job properly, there can surely be no question of its role being further circumscribed. Members of the Joint Committee, MPs and Peers alike, comprehensively rejected the doctrine put forward by Mr Geoffrey Hoon. What is more, Jack Straw, the Cabinet Minister charged with steering these reforms through, has now wholeheartedly endorsed the approach of the Joint Committee.
I take a more optimistic and charitable view of the letter from Mr Straw to members of the committee than other Members of your Lordships’ House. He wrote:
“The Government believes however, that further reform should not alter the current role of the House of Lords as a revising and scrutinising chamber, nor should it alter the balance of the relationship between the Lords and Commons. The principle of the current conventions that the report identifies should therefore still apply in a reformed House of Lords”.
We have got to start somewhere. My contention, and that of my colleagues, is to assume that as soon as any reform package is put before either House, any Government—this Government or any other Government—would immediately be able to tear up the very important report from the committee chaired by the noble Lord, Lord Cunningham. It seems a ludicrous suggestion. That letter also disposes of the cynical idea that somehow it would make it necessary and would pre-empt any attempt to insist that there was no change at all. There has to be some change, but what sort of change would that be?
If and when the situation arises, there can surely be no question that all the bets are off and suddenly we have nothing in front of either House about the relationship and respective powers of the two Houses. What we have is the report of the Joint Committee and, I hope, the support of both Houses for its principles. This report and its reception by the Government puts paid to the idea that the arrival of an elected element in the second Chamber could or should necessitate a diminution of the role and powers of your Lordships’ House. It would surely be ridiculous if we accepted greater legitimacy at the risk of greater impotency. That is not a proper outcome.
In the longer run, our unwritten constitution—to which reference has been made—may evolve dynamically as it has in the past. That is how our constitution has always proceeded. A more democratic, legitimate second Chamber may be even more effective in working with the Commons to hold the Executive of the day to account, but I do not believe that it will be necessary radically to rewrite the principles set out in the report of the Joint Committee. We all accept that no Parliament can bind its successor, so it would be folly for us to assume that everything is there for ever and a day.
I turn to the Salisbury/Addison convention. As a number of noble Lords have already said, the committee, and now the Government, accept that the convention has evolved, that it will almost certainly evolve still further and that it must remain flexible and unenforceable. It cannot therefore be rigorously defined, let alone legally codified. Transposition of this most loose of conventions into justiciable legislation would not just be complex, it would be impossible. The House will be relieved that Mr Hoon’s successor as Leader of the Commons, Mr Straw, saw sense on this issue and said from the outset,
“it would be a grave error to put any description of the convention into legislation”.—[Official Report, Commons, 10/5/06; col. 444.]
Furthermore, the report makes abundantly clear that the concept of a manifesto Bill is fraught with inconsistency, lack of precise definition and lack of consensus. It would be very difficult to codify it, and I am glad to see that the Government now accept that conclusion. I am sure that all Members of your Lordships’ House welcome that outcome.
I shall make one personal suggestion. The Government reject the redefinition of the Salisbury/Addison convention as a government Bill convention, and they have suggested that, now it is updated, it might be renamed to acknowledge the role of a contemporary parliamentarian in achieving consensus on these issues. I wonder whether we could pay tribute to our late, much lamented and much missed colleague by rechristening it the Carter convention. I know from my experience in both Houses how much he did to give service to Parliament as a whole by his conscientious, consistent and always carefully argued insistence on the proper relationship between the two Houses and between government and opposition parties. As has already been referred to, he served on both Joint Committees examining these issues and right up to the last few weeks of his life he was working to get this right. The noble and learned Lord the Lord Chancellor, the noble Lord, Lord Tomlinson, the noble Viscount, Lord Bledisloe, my noble friend Lord Roper and the noble Baroness, Lady Symons, all referred to the role that Lord Carter played in these matters. Perhaps that suggestion might commend itself, and it might be something that the noble Lord, Lord Cunningham of Felling, might agree with.
I shall turn briefly to the specifics in the report. I feel sure that the recommendation of the Joint Committee about reasonable time and the Government’s acceptance of it will find favour in your Lordships’ House. The previous idea of a 60-day guillotine, which appeared in the Labour manifesto of 2005, no longer has the support even of its original promoters. On the subject of ping-pong, the Joint Committee concluded that the arrangements for negotiation between the two Houses were not subject to any convention and could not be codified, so I detect some disappointment in the Government’s response, but I see that they are being realistic in accepting that view.
On secondary legislation, the committee revealed frustration from Peers and MPs that amendments to SIs are so rigorously circumscribed that the nuclear option of rejection is the only way in which either House can do its scrutiny job properly. Incorporating mechanisms by which either House could improve an SI is obviously preferable, and changing that was unfortunately outwith the committee’s remit. I note that Mr Straw’s response concludes:
“The Government will consider carefully whether any legislative changes in relation to secondary legislation are necessary, but hopes that they are not”.
So that remains unfinished business.
Meanwhile, we on these Benches wholeheartedly endorse the view set out by the noble Lord, Lord Norton of Louth, in evidence to the committee. He said that any notion that statutory instruments are simply measures made by Ministers and are therefore a matter only for the Commons is absolutely atrocious, and he mentioned Sir Humphrey in “Yes, Prime Minister”. I believe that secondary legislation is just that: legislation. It needs the assent, or at least the absence of resistance, from both Houses, just as any statute does.
Finally, I turn to the primacy of the Commons—which has been a thread running right through today’s debate, and rightly so—the opening section of the report and the Government’s response to it. The Joint Committee’s first and crucial conclusion at paragraph 57 is:
“We were instructed to accept the primacy of the House of Commons. None of our witnesses has questioned it, and neither do we. It is crucially underpinned by the Parliament Acts, which we have taken as given for the purposes of this inquiry”.
I, and my colleagues on these Benches, totally accept that fundamental premise, as was made clear by my noble friends Lord McNally and Lord Wallace. The noble and learned Lord the Lord Chancellor described it as the bedrock of our parliamentary balance of power, and the noble Lord, Lord Cunningham of Felling, said that the unchallenged primacy of the Commons is critical to our discussion of these issues.
In his response, I hope the noble and learned Lord the Lord Chancellor will confirm that the Government believe that to be absolutely true and critical to the whole discussion. If so, there can surely be no question that if the Commons agrees a package of proposals for the composition of a reformed second chamber, this unreformed House could wield a permanent veto over that Bill. That would be to tear up the Parliament Acts. I have been intrigued and bemused that so many speakers today have on the one hand enthusiastically endorsed the primacy of the House of Commons—some of them very experienced Members of both Houses—and yet denied the right of the Government to use the Parliament Acts as a last resort—the long stop—if consensus cannot be agreed between the two Houses on Lords reform.
There has been some sloppy thinking over the proper use of the Parliament Acts in such circumstances. The Government must make it absolutely clear this evening that they accept the full recommendations of the Joint Committee; that they reiterate the primacy of the Commons; and that they accept the implications for the use of the Parliament Acts in this as in other contexts.
My Lords, this has been an outstanding and important debate; one that I have much enjoyed, not least for the reappearance of the noble Lord, Lord McNally. It was a pleasure to hear from him this afternoon. This is the first in a series of debates that will take us through the next few weeks and months as we discuss the future of this House. Today we have been in general warm approval and agreement with the committee. That may not be the case the next time when we discuss the White Paper, and not 24 speakers but probably 124 speakers will have a view on that.
The Motion before us addresses the excellent report of the Joint Committee, on which I can share the general approval without endorsing each and every specific provision in the report, which I do not. However, sometimes it appeared that noble Lords were referring to another, as yet unpublished, report, which is in all our minds and where many in this House would hope for the same no change conclusion of the Joint Committee. That report is the imminent White Paper from the Leader of the House of Commons, Mr Shaw, and the noble and learned Lord the Lord Chancellor on further reform of your Lordships’ House.
Like the noble Lord, Lord McNally, I have been part of Mr Straw’s “study group”, for want of a better expression. It has been an interesting process. I suspect that all of us have learnt a great deal, but there are still many details to be discussed. We are told that the White Paper will be published early next month. We are also told in press briefings that there will be a degree of unanimity about it across the parties involved. I am less positive about that than the noble Lord, Lord McNally, not least on a proposal to have proportional representation to elect Members of this House. I, for one, would find it very hard to support that. But we have participated in good faith in these discussions, and will continue to do so. We have only one purpose in doing so. That is to defend Parliament and to strengthen this House. Anything that does that we should consider; anything that fails that test we should not go along with.
Of course we must await the publication of the Government’s proposal and then allow the time for reflection and discussion on the right way forward. Goodness knows that with the chaos we see all around in hospitals, schools, criminal justice, foreign policy and the political management of our Armed Forces, hasty change in your Lordships’ House is not the first political priority facing us.
One of the strengths of the Joint Committee was not to be bounced by anyone’s short-term political agenda but to look at the objective reality. One objective reality recognised by the Joint Committee, but absurdly rejected by the Government in their response, was that were there ever to be an elected House, it would certainly take a different view of the conventions; and those conventions would have to be re-examined in those fresh circumstances. It defies logic, even for the noble and learned Lord the Lord Chancellor, who is much skilled in these matters, to argue otherwise.
If there were common threads in the reaction to the report, two have been pre-eminent. The first was that the committee did an outstanding job and the whole House is grateful to those who took part, and, indeed, who have given us the benefit of their expertise. Today, I pay particular tribute to the chairman, the noble Lord, Lord Cunningham of Felling. The second involved relief, but not surprise, that the committee gave a clean bill of health to this House—a verdict of not guilty was what the noble Lord, Lord McNally, called it, and I agree. The committee found what most of us know: that this House is working well. The Government gets their business in reasonable time. The House does not hold up, and never has held up, the business of any Government in modern times, and has no intention to do so. Its reiterative scrutiny procedures, including ping-pong, contribute to the effective improvement of legislation.
In short, as with much else affecting this House, I ask again: “What on Earth is the problem the Government are trying to solve that they are constantly messing about with this House?”. I wait in vain for the noble and learned Lord the Lord Chancellor to answer that basic question.
When we look at the conventions of the House, I strongly believe that flexibility, reasonableness and sound sense behind our procedures are its greatest strength. We should defend that, and I am enormously encouraged by the report in that aim.
Against that background, let me consider the four areas to which the committee says it gave most study. First, I deal with the Salisbury convention. I can sense that this will become controversial, but I think that it should remain the Salisbury convention. It seems to me strange to argue that the name should change when the convention itself is well understood and the substance of it has not changed. I know that the Liberal Democrats have come on board and that the noble Viscount, Lord Bledisloe, argued that now we would all be bound by it, while the Conservative Party and the Labour Party both agreed it. Effectively it always has bound the House.
I am not a supporter of the phrase “government Bills”. There is no firm convention that a government non-manifesto Bill should not be rejected at Second Reading. Some have read that into paragraph 100 of the report, but that is not what it says, nor would it be desirable. Rejection of a non-manifesto Bill will be rare, but if it were forbidden the House would not have been able to refuse a Second Reading to a Bill to restrict trial by jury that was not in the preceding manifesto.
What matters is that the Salisbury convention has been scrupulously observed and will continue to be scrupulously observed by this side of the House, as it was by the party opposite, and, I have no doubt, it would be by the Labour Party again after the next general election. The convention works well and is broadly understood. While it is reasonably defined by the committee, I do not favour the idea of embracing it into a formal resolution, and certainly not one that would be submitted to another place. The other place has no role in deciding the internal usages of this House. If it had, this House would be relegated to being a mere Grand Committee of another place. None of us wants that. Subject to those points, I very much welcome the views of the committee.
Turning to secondary legislation, although many have argued, as my noble friend Lord Wakeham did in his royal commission report, that a power to reject might be replaced by a power to delay, or even a power to amend, the practical difficulties are great. I should acknowledge that my noble friend Lord Dean of Harptree has fought a long campaign on this. Instead, I think that we need three things: more legislative restraint by government with fewer skeleton Bills backed by reams of regulation, and more provisions in fewer Bills overall; better drafted legislation by departments, with Bills presented after, not before, the regulatory framework has been thought through—perhaps the Home Office could enter a period of silent reflection on that; and more use of sunset periods for regulation as well as for Bills.
Sometimes, as the committee acknowledged, rejection may be needed—very rarely—but the circumstances must be exceptional and extremely rare; and, as the committee also points out, pressure to use power to reject would be less if all Governments took notice of the passage of non-fatal Motions.
Thirdly, on ping-pong, again the Joint Committee found that there was nothing seriously wrong with the present system. Ping-pong, properly operated, requires both Houses to seek a compromise, which is a good British approach. If there has been a fault in recent years, I suggest that it has not been on the side of this House. The introduction in the other place of the system of packaging unrelated amendments, which continues to rankle greatly with many on this side, means that Governments now do not have to make the same effort to compromise. Your Lordships' amendments are not given sufficient attention or consideration. As the committee rightly points out, amendments are too often batted back and forth too quickly, which does not allow time for compromise or discussion. The ping-pong on detention without trial was a classic case. I hope that the Government will listen carefully on this. If they do not, we would want to look at it in the context of reform of an institution that certainly needs reform; that is, another place.
Finally, on reasonable time, the noble and learned Lord the Lord Chancellor gave us some typically panglossian remarks telling us how absolutely, warmly and incredibly delighted the Government were with the outcome of the Joint Committee. If the Government are so pleased with a “no change” outcome, can the noble and learned Lord say why their manifesto proposed change in the first place? Why did they put codification of the conventions of your Lordships’ House in their manifesto, which the committee has concluded, quite rightly, is neither practical nor desirable? If they now so approve of the report, why did they put in their manifesto the idea of introducing a guillotine for the first time ever into your Lordships’ House? The 60-day guillotine was never justified or needed, so I very much welcome the committee's rejection of the statutory guillotine and I trust that that pernicious idea will not again see the light of day.
The Joint Committee suggested that a new symbol might go by the name of any Bill on the list that has lasted more than 80 days, which, no doubt, the Procedure Committee could look at. During the previous Session we would have marked the Fraud Bill—122 days; the Commissioner for Older People (Wales) Bill—99 days; the Company Law Reform Bill—100 days; the Consumer Credit Bill—89 days; and so on. None of them was held up by your Lordships’ House. Most of them were held up for business management reasons by the Government. Would the Government have sped up with an 80-day signal? Or might it have worked the other way with the Government trying to curtail discussion on, for instance, the massive Companies Bill? This is not a hugely controversial issue, but Parliament should be very wary of giving the Government a stick with which to beat this House, however light.
The problem is that, happy though the noble and learned Lord the Lord Chancellor says he is with this report, some of us suspect, unworthy as we are, that the Government did not set up the Joint Committee expecting to be delighted by the outcome. They expected to be delighted by quite another outcome, but they did not reckon with the independence and the wisdom of the noble Lord, Lord Cunningham, and his committee. The Government planned to limit the role of this House, and this report has prevented them. It is good to see Parliament becoming more jealous of its own powers and doing so on a partisan basis. I am sure that it will be just as cautious in signing up for the next set of proposals for change from the noble and learned Lord the Lord Chancellor. I think that we can all agree that we have interesting times ahead. So long as we look to uphold the independence and authority of this great House, as has the Joint Committee, we will not go far wrong.
My Lords, I agree with everyone who has said that this has been a significant and important debate. Listening to the debate, I do not think that anyone disagreed with the conclusions of the report of the noble Lord, Lord Cunningham of Felling. I thought that the noble Lord, Lord Trefgarne, was doing so when he said that he thought that the Salisbury/Addison convention should be revisited, which is what I thought that the committee chaired by the noble Lord, Lord Cunningham of Felling, had done. I took comfort from the noble Lord, Lord Beaumont of Whitley, who said that everyone in this House knows what they are talking about. The noble Lord, Lord Trefgarne, went on to say that he broadly endorsed the conclusions of the report, so I take him as endorsing the conclusions.
I thought that the noble Lord, Lord Strathclyde, was disagreeing with some bits of the report but, again, I listened closely and he appeared to be endorsing it as well. We should not underestimate the achievement of the committee chaired by the noble Lord, Lord Cunningham of Felling. I have been in this House for 10 years and there have always been disagreements precisely about its conventions and practices. It is a remarkable feat, first, that they were put down in a document and, secondly, that everyone has agreed. Every speaker in this debate has gone short on the maximum length of time, which is a very strong indication that we as a House are completely agreed on the conventions of this House.
The noble Lord, Lord Strathclyde, sought to tease me and say, “You must be disappointed in the report that you have”. We most certainly are not disappointed. In my view—which is the view that the House has given in this debate—we have got an authoritative view of the conventions and practices of this House, which is what we always wanted. We completely agree with what the noble and learned Lord, Lord Howe of Aberavon, said, because the noble Lord, Lord Cunningham of Felling, suggested it. We should not seek to codify, legislate or write down in an overlegalistic way. I believe that the conclusion to be drawn from this debate is that the House is very pleased with the report. The House chimes in well with what the noble Lord, Lord Cunningham of Felling, has said, and we should accept it and adopt it. There was not one dissenting voice. We should not underestimate the historic importance of this.
I should say to the noble Lady, Lady Saltoun of Abernethy, that it is not the suggestion of the noble Lord, Lord Cunningham of Felling, that the convention should be called the Cunningham convention. My knowledge of him makes it clear to me that he has no Pinochet ambitions of any sort. It is the proposal of the Government. It is not with a view to rewriting history, but recognising what the committee is saying when it says that we have moved on from Salisbury/Addison.
My Lords, I did not suggest that the report said that it should be called the Cunningham convention. I suggested that the report said what it said, which I did not like very much. It is a great pity to do away with the old name, which is the history of the convention.
My Lords, the committee proposes a new name. We suggest that it should be a different name. This does not go to the substance. It is very important that as time goes on we agree on what we call it, but that may not be as important as what it is, on which we agree. I shall deal with a few detailed points and then turn to the only area of disagreement. First, the noble Lord, Lord Wallace of Saltaire, suggested that the report said that there should be a business committee. It referred to that as part of the evidence, but it was not part of the proposal.
Secondly, it was suggested that the report had rejected the idea that the House had previously defeated Labour Governments more than it had defeated Conservative Governments. The evidence is overwhelming, to which I shall refer noble Lords. For example, between 1975 and 1979, the Labour Government were defeated 240 times. Between 1979 and 1983, the Conservative Government were defeated 46 times. That is an indication of there being a bit of a different approach. I fully accept, as does everyone in this House, that things have changed in this House because there is no longer a built-in Conservative majority. It may be that in going forward things will change. But the suggestion that this House in the 1970s was just as charitable to the Labour Government as it was to the Conservative Government in the 1980s is completely without foundation.
I am simply picking up on these points of detail before I turn to the main point of contention. Thirdly, the noble and gallant Lord, Lord Craig of Radley, peddled the myth that the Human Rights Act prevents the police publishing pictures of convicted criminals who have absconded from prison. It has nothing to do with the debate, but every time I get an opportunity to scotch these myths, I will.
Fourthly, I completely agree with the noble and learned Lord, Lord Howe of Aberavon, that codification is completely inappropriate. Perhaps I may draw your Lordships’ attention to the fact that the noble and learned Lord has had a distinguished part of his career promoting the codification of the tax statutes. I draw your Lordships’ attention to that simply to make the point that codification in some cases is sensible, as for example in tax statutes and, as I submitted at the time, in the Constitutional Reform Act. But I completely agree with him that it is not sensible in relation to this area.
My Lords, does the noble and learned Lord recognise that codification in the tax field is simply an endeavour to transform a jungle of unintelligibility into an area of comparative lucidity without making changes, whereas the codification of conventions in fact has the opposite effect?
My Lords, codification is sometimes a very good thing and at other times it is not.
Perhaps we may we go to the point of disagreement because there appeared to be no disagreement about the report, and in approving it we are approving of paragraph 61. It states that if there is compositional change in the House, the convention will have to be re-examined. That is plainly right and there is absolutely no dispute between anyone in the debate that what the Joint Committee has described is what the conventions are in the current House, and if the House changes, the description it gives will no longer apply. The Government have made it clear that they accept that but it is their contention that a new House of a different composition should behave broadly in the same way as this House now does.
The noble and learned Lord, Lord Howe of Aberavon, rightly said that the House does well at the moment and performs its role extremely effectively. I agree, but the question that is posed—one which is not for answer today—is whether it is possible to have a House that performs the complementary function that this House does, as defined in the report of my noble friend Lord Cunningham of Felling, if there was an elected element. There are noble Lords who say that that is impossible—someone used the words “pie in the sky”—and that once there is an elected element in the context of the relationship between the Commons and the Lords, you can never have the relationship that currently exists. That is the issue. It is not resolved by the Joint Committee. It will have to be resolved when the debate takes place on the free vote.
However, the suggestion that my right honourable friend Mr Jack Straw and I are in any disagreement on this is completely wrong. I had assumed that so joined in consensus on this issue are we that, in order to get up an unnecessary row, it was necessary to try to create a row between myself and him. There is no dispute between the Government and this House over what the effect of the report would mean. The noble Viscount, Lord Bledisloe, was absolutely right to say that there is no dispute in relation to it.
My noble friend Lady Symons of Vernham Dean asked when the re-examination is to take place. The Government will put forward their case on the role and powers of the future House when the free vote takes place, and it will be for this House and the other place to decide whether such a House is deliverable at the time the free vote on composition occurs. That is the crucial time when the issue will be joined, but it is not today because what we are debating today is the current relationship between the Commons and the Lords.
My Lords, I thank my noble and learned friend for the clarification he is seeking to give, but perhaps I may put this to him. The point I made was that that is not the point of decision—he has said that the point of decision would be after a free vote in both Houses; that would be the decision and he has just explained that he would accept it—but rather, as the report says, should any firm proposals come forward to change the composition of the House, the conventions would have to be re-examined. So I sought to say that the point at which the White Paper is published is the point at which firm proposals would have come forward, and it is at that point that the conventions need to be discussed, otherwise we would have a discussion about the future role of the House of Lords without knowing what the powers of this House would be.
My Lords, that is right, and there would be a discussion at that point. But there cannot be final conclusions like those reached in the committee report of my noble friend Lord Cunningham. It will be a judgment for each House as to what will happen because, as every noble Lord who has debated the issue today has said, what may happen when the new House is set up is not predictable. That discussion can be held only at the time of decision. There is no alternative, given how the position has been put.
My noble friend Lord Sewel went through the list of noble Lords—himself, my noble friend Lord Barnett, the noble Lord, Lord Higgins, and others who I cannot remember—
Most of us!
The view of what I would call, without any disrespect, “that lot” is that you could never have a House of this effectiveness as a revising Chamber and have an elected element. That, it seems to me, is the issue which needs to be addressed by both Houses when they come to consider whether or not they want compositional changes.
My Lords, perhaps I may say again to the noble and learned Lord that the objection here is that he has jumped the gun. He is saying that this is something to be discussed later, but in the Government’s written response to the report, they seek to pre-empt that by setting out their arguments in advance. They have not waited until the later stage; they have done it now, and that is what we object to.
My Lords, some of us who in the course of the debate did draw attention to the difference between Mr Jack Straw’s paper and the Lord Chancellor’s introduction will have taken comfort from the words the noble and learned Lord has used to associate himself with Mr Jack Straw in his reply. That is because he spoke clearly of a situation in which there was an elected element, whereas Mr Jack Straw has spoken of his belief that the relationship described by the Joint Committee is one,
“that should apply to any differently composed Chamber”.
That must appear to most fair readers to be a nonsensical proposition, because an all-elected upper House would never accept conventions of the kind we regard as appropriate today.
My Lords, I referred to the elected element because that is the lead-in to paragraph 61. This debate, enjoyable as it is and however much pleasure it gives noble Lords, should not distract us from what we have achieved this afternoon. Should the House now approve the report, we will have provided ourselves and equipped Parliament with what I described in my opening remarks as a bible setting out the relationship between the two Houses. I do not dissent from what was said by the noble Lord, Lord Dean of Harptree, which was that the report is brilliant, a joy to read, and is a very significant constitutional document. I commend it to the House.
On Question, Motion agreed to.
House adjourned at 7.29 pm.