House of Lords
Monday, 30 April 2012.
Prayers—read by the Lord Bishop of Oxford.
House of Lords: Stonework
My Lords, the Parliamentary Estates Directorate is planning to begin trials of stone-cleaning work in Chancellor’s Court and State Officers’ Court in October 2014. It is hoped that work on these courtyards will be completed by October 2015, after which work on Peers’ Court will begin in October 2015 to be completed by October 2016. I should point out that these are only estimated timings at the moment and that the programme of works may change.
My Lords, this is somewhat of an end-of-term Question but I am delighted for the Chairman of Committees to announce the plans for cleaning the seven internal courtyards of the Palace of Westminster. For 15 years, it has struck me as a great pity that, while two or three had been cleaned, the majority in the middle were a dirty mess. I would just comment that we have had announcements of cleaning, but what about tidying up?
My Lords, there are a great many other works going on in the palace—principally fire safety, mechanical engineering and cast iron roofs. All those require facilities for contractors on the estate, which on the whole means portacabins. I am afraid that they will be around for as long as is required. As for other bits of tidying up, we obviously do our best to make sure that there is not too much clutter in the courtyards but it probably is an inevitable result of the great deal of work that is going on elsewhere.
My Lords, during last week’s heavy rain, much of the new footpath across Abingdon Green was under water, as was the area in front of Old Palace Yard. Can the Chairman of Committees do something about the drainage in those areas? In the mean time, if we have any more warnings of severe rain, could those of us who do not have offices in the palace be issued with waders?
My Lords, having come from home yesterday, I can say to the noble Lord that there was a great deal of rain around there too. A lot of the roads and pavements were flooded. Until this drought is over, we may have to put up with that. As for the provision of waders to noble Lords, a few years back there was a project of issuing umbrellas. That was not a success as most of them disappeared rather quickly, largely on account of the fact that they had the House of Lords logo on them. I believe that they could be found on eBay relatively inexpensively.
I am most grateful to the noble Lord, Lord Trefgarne, and for the expression from the House. It is indeed the last time on which I shall answer a Question on these sorts of matters. But I can tell noble Lords that the issue of the works going on in the palace will go on for a lot longer and many more of my successors will be dealing with it.
My Lords, I wonder if I might return to the subject of the original Question. Will the noble Lord consider retaining one of our courtyards in an uncleaned state as a permanent reminder to all of us of the casual environmental damage we sometimes cause, which reveals itself only many years after we have caused it?
That is an interesting suggestion. I am old enough to remember the great London smogs that caused this damage to the building in the first place, and therefore on the face of it the noble Lord’s suggestion is a good one. However, I would resist it because of the damage being done to the building as of now, and therefore it is necessary to get on with cleaning and repairing it.
My Lords, we await the decision of the European Court of Human Rights on whether to accept Qatada’s referral request. We wrote to the Strasbourg court to ask that it reject this application both on the merits of the case and on the timing of his request. Qatada, meanwhile, remains in detention.
My Lords, I cannot give a precise answer on when he will be deported because that matter is in the courts. However, I do not accept what the noble Lord says about there being a shambles last week. It was quite clear from all the advice and all the precedents that the three months for making the referral expired at midnight on 16 April. My right honourable friend made her decision on that basis. We now await to see what the courts are doing.
My Lords, on 7 February, the last occasion on which the noble Lord answered Questions about Abu Qatada, he was asked whether the Government could provide a new reassurance that this sort of situation would not recur, and he referred to the fact that the Government were hoping that reform of the Strasbourg court might make it less likely. We have now had the Brighton declaration. Can the Minister tell the House whether the Government think that this is more or less likely to happen again, and if it is less likely to do so, why?
My Lords, my noble friend is a lawyer and therefore will know that we can never give an absolutely cast-iron guarantee about what the courts or lawyers might or might not do, but I can say to him that the agreement reached at the Brighton conference represents a substantial package of reforms and marks a significant step towards realising the goals that the Prime Minister set out at Strasbourg.
Will the noble Lord give the best guesstimate he can of how much, over the past decade and under both Governments, the British taxpayer has had to pay to keep this man and his family in this country by way of social security payments and legal aid? When will this end?
My Lords, I cannot give that figure to the noble Lord, much as I would like to because I think it is one that the public ought to know. If I can make some sort of guesstimate, working with my own department, the Ministry of Justice and the Department for Work and Pensions, I will certainly do so. However, I can give him an assurance that my understanding is that he is not to have his costs paid in the current matter of the referral to the European Court of Human Rights.
Has not the Minister rather overplayed the importance of this when compared with the Government’s objectives in the Brighton declaration? Will he give an assurance that we will abide totally by the Brighton declaration, that we will cease as a country to suffer the humiliation of having our Government condemn the European Court of Human Rights, and that we will regard it in the way that it always should have been regarded, as the bulwark of our civil liberties?
My Lords, I do not accept what the noble Lord says at all. All I said was that I thought that the declaration represented a substantial package of reforms. There could be many more reforms to that court. The noble Lord knows perfectly well that it very often exceeds its functions and goes beyond what was ever intended in 1950 when we signed up to the original convention on human rights.
My Lords, the procedural issues are important but so, too, is the substantive issue. With the Government having reached what they regard as an acceptable memorandum of understanding with the Jordanian Government as to the evidence that will be used in a trial in Jordan, can the Minister tell the House how that process will be monitored to ensure compliance with the memorandum of understanding?
My Lords, when I was the Security Minister I was constantly struck and somewhat surprised by how my opposite numbers in a number of European countries seemed able to return terrorists to the countries to which they belonged. Perhaps we could ask those countries how they manage to circumvent the rules and how they avoid getting into the complete muddle that we seem to have got in.
My Lords, other countries do things in other ways. The important thing to remember is that this country abides by the rule of law and listens to what the courts say, however unpalatable that might be. I think that what that court has done is unpalatable. We hope that it will see reason on this occasion and accept that his referral is out of time and that there are no merits in the case whatever.
My Lords, whatever the merits of the 24 hours that were being debated at the beginning of this matter, did my noble friend notice that the infection can spread to the Back Benches opposite? The noble Lord, Lord Foulkes, suggested in his supplementary that the dramas had happened last week when in fact they had happened the week before. Seven days is an even longer period to lose.
My Lords, the Minister has already referred to listening to the court. In terms of lost days, he will know that the Prime Minister told the BBC that his officials had checked with the European court the deadline for the appeal. Will the Minister give the House of Lords chapter and verse as to when the Home Office checked with the European court and what the court said?
My Lords, the Home Office and other parts of the Government have been in regular contact with the court ever since the judgment back on 17 January. We are absolutely clear, and both precedent and legal advice are clear, that the deadline for the referral was within—I stress “within”—three months, by midnight on 16 April, and that the judgment comes into effect after three months; that is, after midnight on 16 April. That could hardly be clearer and the precedents could hardly be clearer.
My Lords, it appears that all the discussions and advice were handled verbally. Are we to believe that that is the case? Is there nothing in writing or a paper trail to say specifically that these deadlines were properly arrived at? If not, why can that not be published?
My Lords, I can only repeat the answer that I gave to the noble Lord’s noble friend, Lord Hunt. I said that we have been in constant contact with the court, that all legal advice and legal precedents indicated that this was the case, and that the difference between the timing for the referral, which had to be within three months, and the timing for the judgment—that is, after—made it quite clear that midnight on the 16th was the moment in question.
My Lords, the Minister has not given the information on exactly when the court advised the Government that that was the date. He referred in his answer to my noble friend Lord Hunt to legal advice and general advice in correspondence with the court. What is the exact date on which the court in Strasbourg gave advice to the Government that the final date was the one which the Government used?
My Lords, the point I was making, if the noble Baroness would be fair enough to listen to me, was that we had been in regular contact with the court on these matters. It was quite clear from precedent and legal advice that the case that I have put forward is the right one. Therefore we were satisfied that we were right to consider that the last possible moment for referral was 16 April at midnight.
My Lords, this is a serious question—with respect to those opposite—and the Minister has still not answered the questions about the future. What are the Home Office’s plans for dealing with this man and when can we expect him to be deported? Please can I have an answer?
My Lords, like the noble Lord, and like the previous Government—who tried to do something about this for 10 years—I and all other noble Lords would like to see this man deported as soon as possible. He represents a very real risk to this country, and this has been going on for 10 years. However, we must abide by the rule of law and we must wait until the court makes its decision. I do not know when the European court will deal with this referral case. As far as I am concerned as a very simple lawyer, this looks like a pretty simple case that the court could deal with pretty quickly, if for no other reason than that it is obvious that he is out of time in his referral.
Police: Race Relations Policies
My Lords, the Government take recent allegations of police racism very seriously. The firm actions taken by the Commissioner of the Metropolitan Police are exactly those that we would expect other service leaders to take if faced with similar issues. We do not believe that a thematic inspection by Her Majesty's Inspectorate of Constabulary is necessary at this stage.
I thank the noble Lord for his reply. He will recall that on 29 November he assured the House that there was no racism in the police force. Circumstances have shown that he was wrong. Will he consider again encouraging the police force to begin racism awareness training among the constabulary? We need to get rid of the Aryan myth of white superiority once and for all and I believe that it is necessary that we should all understand what that is.
The Commissioner’s statements were very encouraging. Is the Minister able to arrange a meeting between those of us who are very interested in this subject and the commissioner so that we can explain to him what is really meant by institutional racism and the recommendations in Macpherson can be acted on?
My Lords, I owe the noble Baroness an apology if I suggested that there was no racism within the Metropolitan Police. It is obviously wrong to suggest that any organisation has no racism within it. What I was trying to get over on that occasion, and on the two occasions last week when I dealt with questions of this sort, was that institutional racism within the Met has largely been dealt with. It was encouraging that the most recent cases of racism were reported by the police themselves and therefore this was a strong sign that these matters were being dealt with.
I would be more than happy to assist in arranging a meeting between the noble Baroness and others and either the Commissioner or the Deputy Commissioner, whomever she considers the most appropriate person to deal with these matters. Meanwhile, as I made clear on the Question from my noble friend Lord Sheikh and the Statement that I made on another occasion when I believe the noble Baroness was present, I believe that the Met is making considerable strides in this area.
My Lords, does the noble Lord agree that the wider police service must show great vigilance and endeavour to respond well to race and diversity issues? They must not become complacent and somehow see race as yesterday's problem or yesterday’s issue. This is an ongoing challenge that the service must respond to well at all times.
My Lords, the noble Lord, Lord Condon, with his great experience, is absolutely correct to express those points. I fully agree with him. I remind him and the House that an important part of the regular reviews by HMIC—the inspectorate of the constabulary—is that any force inspections should always include some detail of an assessment of equality, diversity and those matters.
My Lords, at least 27 police officers are under investigation for racist behaviour. The noble Baroness, Lady Howells, is rightly concerned about that. She has done a tremendous amount of work following the death of Stephen Lawrence on the adversarial contact between the black community and the police. While we appreciate the action taken by the Commissioner of the Metropolitan Police, is it not right that we should have a thematic inspection of racial issue policies, particularly in relation to training, recruitment and retention, bearing in mind that the cuts to police expenditure are likely to impinge on these areas?
My Lords, I am grateful for the question from my noble friend Lord Dholakia. I stress that I did not rule out a thematic review—I just said that I did not think it necessarily appropriate at this stage. I can assure my noble friend that there have been thematic reviews in the past. If necessary, that could be looked at again. I repeat the important point in the answer I gave to the noble Lord, Lord Condon, that this is already part of any inspection of the police force. Also, on the very unfortunate recent cases that have appeared in the Met, the great thing is that such cases are at least being reported by their fellow police officers. That is a sign that something is being done. It is progress.
Does the Minister agree that, over the years, training of the police on racism has improved dramatically but there is a real problem when they then finish their training and join forces which are not representative of the diversity of this country? Should we not put all the emphasis on recruitment and retention of people from across the range so that our police forces represent this country? In that way, you would do far more to resist racism in a force than you would simply in the classroom alone.
My Lords, I fully agree with the noble Lord. Training is very important but it is also important to make sure that recruitment and retention continue so that all police forces can represent the appropriate diversity of their individual areas. That is the important thing: to make sure that they can then continue to police their area with the proper consent of those being policed.
My Lords, in the current atmosphere of Islamophobia, could we have an assurance that race includes religion? It seems to me that Muslims are becoming disproportionately targeted. They are of many races and can come in all colours and shades, but because of their religion they are being singled out.
My Lords, does the Minister agree that successive Governments, probably over the last 40 years, have found it extremely difficult to recruit the maximum number of officers from among ethnic minorities? Can he assure the House that the greatest effort will be made and the heaviest emphasis placed upon this crucial factor?
My Lords, I can say that great progress has been made over the last 40, 30, 20 and even 10 years on increasing the diversity of the police force so that it better represents the areas that it covers. That will obviously vary from Wales to the Met. I can also tell the noble Lord—and this is important—that the figures from black and ethnic minority communities on their satisfaction and confidence in our police forces seem very similar to figures from white communities.
Migration: University-sponsored Students
My Lords, the UK uses the internationally agreed definition of a migrant, which is someone coming to or leaving the United Kingdom for a period exceeding 12 months. It is right that students intending to stay for that period should be counted because during their stay they are part of the resident population and contribute to pressure on public services infrastructure. It is not appropriate to discount them from net migration statistics.
My Lords, the department makes no distinction between temporary and permanent migration. Many other countries do, and still fall within the UN definitions. That means that the Home Office is targeting net migration figures that include overseas students, which is directly contrary to the policy of the Department for Business, Innovation and Skills. Surely now that the e-Borders system will be able to track very closely non-EEA students and other citizens coming into this country, it is time to exclude those students from the net migration figures and have a unified government policy.
My Lords, I am afraid that in terms of migration my noble friend has got it right. I do not think he would want me to adjust the figures purely to achieve the ends that he suggests, as there might be complaints from the House that we were fiddling the figures, and I do not want to be accused of that. We stick by the long-standing international United Nations measure that students who come to the UK for more than a year are counted as migrants.
My Lords, I have just returned from the annual UK-India round-table meeting, and this very question was raised. Why cannot the Government exclude foreign students from the target? Foreign students bring up to £8 billion of revenue into this country. In fact, the Government should be trying to double the number of foreign students from 440,000 to 800,000, bringing in another £8 billion. Does the Minister agree—I know this from experience, as my family was educated in this country from India for three generations—that by encouraging foreign students you build generation-long links, with huge benefit to this country?
My Lords, I totally agree with the noble Lord in that I accept that students coming to universities—and I stress that the Question is purely about students coming to universities—provide very great value to this country, and we want to see their numbers increase in many areas. They have increased over the past year or so, as I understand it, but we want to get rid of some of the bogus students who come here not to study but to work—and that is what we are doing.
It is important that we stick to international UN definitions. As I said, there would be considerable criticism of me if I suggested that we should fix those figures purely for our own purposes.
My Lords, if the Government were to accept the proposal put to them by the noble Lord, Lord Clement-Jones, would they not thereby confer a great benefit on UK universities and on bona fide international university students, as well as on our international standing, and at the same time be able to hit their own immigration target figures, which they have otherwise not a hope of achieving?
The noble Lord is, yet again, another one who wants me to fix the figures. I do not want to do that. We want to do these things in a proper way, and the definition of migrants is that they are people staying for over a year. We welcome students and do what we can to get them, but we are not going to fix the figures in the manner that he suggests.
My Lords, is it not the case that the situation has been made very much worse by the numbers of students who have come here from foreign countries and not left but remained here, making great difficulties? Is not that point at the heart of this difficulty?
My noble friend is right to point out that quite a large number of students stay on, but the other point to make to her is that quite a number of people coming over in the past—not the university students that we are talking about—were coming over to colleges that did not really exist and were there purely as a scam to get around migration statistics. That is what we have been trying to deal with.
My Lords, is this policy not the result of a basic intellectual confusion that has very serious and harmful effects? First, it distorts the statistics on immigration, which causes concern. Secondly, as we have heard, it is extremely harmful to universities and deters many would-be bona fide students from overseas countries, with a great loss of revenue. Thirdly, it seriously imperils relations with Commonwealth countries such as Malaysia, Singapore and India. Should we not think again?
I think that if the noble Lord looks at the statistics he will find that there has actually been an increase in the number of students from Malaysia and Singapore. I appreciate that there has been a decline in the number from India, but there have been increases from elsewhere. Here we are talking about university students, and we have not seen an overall drop in those numbers.
Again I go back to the point that it is quite obvious that the noble Lord seeks to ask me to fiddle the figures. I do not want to do that.
My Lords, if the Government are not happy to change the system of permanent and temporary migration figures, and given that in the past they have said that they cannot always track students leaving the country, will they please consider using the HESA statistics, which record students when they leave the country—or, even better, get the border agency to ask students as they leave whether they have completed their studies rather than just where they are going?
My Lords, as a student who stayed and was educated at school and university here, I have to say that many of us do not come here just to work but to contribute. We have a lot to contribute, and the current limitations mean that students from the Middle East, particularly from countries such as Iran but also elsewhere, cannot get access any more because the limits are so tight that anyone from outside the Commonwealth has enormous difficulty getting in. Some of us do make good.
My Lords, I think the whole House is grateful that the noble Baroness came and stayed here, and for the contribution that she has made to the House, but she will also recognise that we have a duty to make sure that we have some control over our migration figures. We are trying, as I was trying to make clear earlier, to get some control over some of the more bogus applicants who claim that they were coming in to study, whereas in fact they were coming in for other purposes.
Business of the House
Motion to Agree
That Standing Order 40(1) (Arrangement of the Order Paper) be dispensed with on Tuesday 1 May to enable the resumed debate on the Motion in the name of Lord Richard http://www.parliament.uk/biographies/lords/26702 to be taken as first business, and that no Oral Questions be taken on that day.
Public Bodies (Abolition of Courts Boards) Order 2012
Motion to Approve
Trusts (Capital and Income) Bill [HL]
Bill read a second time.
Draft House of Lords Reform Bill
Motion to Take Note
My Lords, perhaps I might say right at the outset that I am glad this debate is now to extend over two days. The subject deserves proper treatment, and to have to discuss it at two or three o’clock in the morning would be unacceptable. I start by paying tribute to the Clerks of this Joint Committee. From this House we had Mr Rhodri Walters, the Reading Clerk, and from the House of Commons Mr Liam Laurence Smyth, Principal Clerk. They jointly led a group of committee clerks who were, frankly, as powerful and formidable as any group I have ever come across. We are all indebted to them for their skill, determination and commitment to the committee’s deliberations. I am extremely grateful to them and wish to acknowledge this publicly.
It is important, too, at the outset for this House to be clear as to what precisely the Joint Committee was asked to do. Our mandate, in a sentence, was to examine the draft House of Lords Bill. The committee consisted of 13 Members from each House, a total of 26, who I think were carefully chosen to represent as best they could all the views that existed in each House. For the Lords, there were four Conservative Peers—one of whom, the noble Lord, Lord Trefgarne, is an hereditary Peer—four Labour Peers, two Liberal Democrats, one Cross-Bencher and the right reverend Prelate the Bishop of Leicester. From the Commons, there were six Conservative Members, five Labour, one Liberal Democrat and one Ulster Unionist. On any view of the matter, this was a large committee. While that of course made it more difficult to achieve consensus, it nevertheless meant that almost every variety of view found expression.
We had 15 evidence sessions, stretching from October 2011 to the end of February this year. We heard evidence from 20 witnesses, including the Minister for Political and Constitutional Reform, Mr Mark Harper, who we saw no fewer than four times. The Deputy Prime Minister, Mr Nick Clegg, gave evidence to us in a lengthy session. We also took evidence via videolink from members of the Australian Senate, particularly on the issues of primacy and constituency representation. In addition to all that, we received 227 written submissions of evidence. I would not recommend that people read every word of the evidence, particularly in relation to the scope covered, unless they are extremely enthusiastic, but I urge them at least to glance at it. Taken together, the oral and written evidence represents as full and comprehensive a survey of the current position, and of possible ways of reforming the House, as it is possible to get. I cannot think of any major issue that was not covered and was not therefore firmly before the committee.
May I now say a word about the function of the committee? It was not a royal commission. Had it been, I hope it would have been smaller and its membership less political and more widely drawn, and it would certainly have been more wide-ranging in its terms of reference. We did not start by being presented with a clean sheet of paper. We were not told to produce a plan for a future House of Lords; that was not the purpose of the committee. We had a Bill to consider, which itself had specific provisions. The Bill had 68 clauses and nine schedules, and was accompanied by a detailed White Paper. That had to be our starting point. However, in looking at the Bill we had to examine virtually all the major issues around the central themes of an elected House versus an appointed House, the primacy of the House of Commons, the electoral system, the size of the House and its functions and powers.
That the committee was divided was not, perhaps, surprising. The issue has proved divisive now for well over a century. It would have been remarkable had this not been reflected in the committee itself. There were divisions within parties and within the Houses. There was no clearly visible Labour view versus a Conservative view. There was no clear Lords view versus a Commons view. Opinions inevitably differed. However, we managed to create a genuine atmosphere of what I would call rational discussion. The mood in the committee was, on the whole, equable and tolerant; I pay tribute to its members for that. Thankfully, we avoided a “Lords versus Commons” direct confrontation. Both sides and all members of the committee felt that the issue was a bit too serious for that.
I turn now to some of the specific recommendations that the committee made. First, and perhaps most importantly, it agreed by a majority that the reformed second Chamber should have an electoral mandate. That was agreed after a division in which 13 voted in favour and nine against. Of the 13 in favour, nine were MPs and four were Peers. Of the not-contents, seven were Peers, one was an MP and one was the right reverend Prelate the Bishop of Leicester. It was a clear vote and a clear majority. In relation to the alternative report, I am somewhat fortified in saying that by the remark on page 31, which says that that a vote of 13 to eight was a considerable and substantive margin.
Secondly, it was agreed that 80 per cent of Members of the reformed House should be elected and 20 per cent should be nominated. In the vote on that, there were 16 contents and six not-contents. Of the contents, nine were MPs, six were Peers and one was the right reverend Prelate the Bishop of Leicester. Of the six not-contents, two were MPs and four were Peers. Again, it was a clear vote and a clear majority.
One of the most important points that the committee discussed—and discussed, and discussed—was the primacy of the House of Commons. We unanimously agreed that Clause 2 was of little use and should be discarded. It was, in the committee’s view, declaratory only and risked becoming justiciable. Again, there was a vote on primacy of the House of Commons. This was a topic on which we spent a great deal of time. Those arguing in support of the proposition that primacy could not be safeguarded based their case primarily on the belief that once the House of Lords had an electoral mandate it would behave in an unpredictable and confrontational way and would not accept its subordination to the House of Commons. It was argued that that would apply even in the case of finance and taxation.
The other side of the argument pointed out that the Commons would continue to be the House where Governments were made and destroyed; that the Commons had the exclusive right to determine financial and taxation policy; that the House of Lords would be elected on a different electoral system; that 20 per cent of the membership would be appointed not elected; and that the Parliament Acts would continue to apply. The Government’s position was that the current relationship would evolve but that on balance Commons primacy could be maintained. In the end, the committee, by a majority of 12 to 10,
“while acknowledging that the balance of power would shift, consider that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation”.
The vote was 12 in favour and 10 against. Of the 10, one was an MP; of the 12, eight were MPs. I could not help observing at the time, and, indeed, still do, that it is passing strange that if the primacy of the House of Commons is such a burning issue to the House of Commons, only one MP voted against the proposition and eight MPs voted in favour of it. One would expect that Members of the House whose primacy is deemed to be so much under attack would be reluctant to accept that the Bill ensured its continuation, but far from it. The committee agreed with the Government’s proposal for election under the STV system, with the variation to take in the practice currently used in New South Wales, which gives voters the right to express a preference between parties as well as individuals.
The committee agreed that conventions governing the relationship between the Houses cannot be legislated for and that such conventions would evolve further once the House of Lords was reformed. We recommended that any new conventions, or modification to existing conventions, should be promulgated by the adoption of a concordat in the form of parallel identical resolutions prepared by a Joint Committee and adopted by each House. In a sense, this is the daughter of Cunningham, if I can use that phrase. It provides a framework within which the two Houses can operate, work out their relationship and within which primacy can be maintained.
On the size of the House, the committee unanimously agreed that a House of 300 Members was too small and that the size of the House should be 450. We also accepted that Members should serve a 15-year, non-renewable term. The vote on that point was somewhat interesting: the contents were 20; the not-contents were two—the two being the noble Lords, Lord Trefgarne and Lord Trimble. Every other member of the committee then present voted in favour.
One of the most important issues that we discussed was the transition from the existing House to the one proposed in the Bill. I wish to say one or two words about the transitional arrangements because I am very conscious that they are of great importance to Members of this House. Of the three transitional arrangements proposed in the White Paper, the committee agreed with that preferred by the Government and set out in the draft Bill. However, the committee also recommended an alternative option, which makes a bigger cut in the transitional membership in 2015 with no further cut until the end of transition in 2025, so that there would be one cull, so to speak, at the beginning of the process and the remainder would go at the end of it. That proposal has the following three characteristics: first, a transitional membership in 2015 would be equal to a benchmark figure derived from the total number of Members attending two-thirds or more of sitting days in the 2011-12 Session. Those transitional Members would remain in place until the final tranche of elected Members arrived in 2025—at which point all the transitional Members would leave. There would be an allocation of the transitional seats to parties and Cross-Bench Peers in proportion to the current membership. Thirdly, and perhaps most importantly, parties and Cross-Bench Peers would determine for themselves the persons to serve as transitional Members. The transitional Members would continue to receive daily allowances rather than salaries. We agreed by 13 to 7 votes that Bishops should continue to have ex-officio seats in the reformed House of Lords, and we agreed by 13 to 5 that that number should remain at 12.
In the course of our deliberations, we dealt with many other issues—all of which are set out in the report. We made recommendations, for example, on the operation of the Appointments Commission, disqualification of Members and the position of Ministers parachuted into the Lords as Ministers. However, I should like to say a word about two of the more prominent issues that troubled the committee.
It became apparent that one of the issues concerning Members of the House of Commons was the relationship between an elected Member of the House of Lords elected, as he would be, by STV on a large constituency basis and an individual Member of Parliament elected by first past the post for a particular constituency. MPs were clearly worried that elected Members of the Lords would involve themselves in personal casework of the kind currently undertaken by MPs on behalf of their constituents. We therefore recommended that IPSA should make no provision for Members of a reformed House to deal with personal casework, as opposed to policy work, or to have offices in their constituencies. We did, however, consider that elected Members would inevitably be concerned and be approached about regional, local and legislative matters.
The possible use of the Parliament Acts was a subject we considered. We had evidence from the noble Lord, Lord Pannick, both written and oral, and the noble and learned Lord, Lord Goldsmith. Their evidence raised two issues. The noble Lord, Lord Pannick, told the committee that the Parliament Acts could properly be used to reform the Lords, and that the courts would uphold such a decision. As to whether the Parliament Acts would continue to apply to a reformed second Chamber, the noble and learned Lord, Lord Goldsmith, said that there was at least doubt that the Acts, or all their provisions, would apply. The noble Lord, Lord Pannick, said that the better view was that the present Acts would not apply to a reformed second Chamber. The noble and learned Lord, Lord Goldsmith, said that it would, however, be open to Parliament to legislate now—now, my Lords—to make clear that the Parliament Acts should operate in the same way in relation to an elected second Chamber, although the present clause was not acceptable for that purpose. The noble Lord, Lord Pannick, said that it was vital that the reform Bill specified clearly whether or not the Acts would continue to apply to a reformed second Chamber, and he agreed that Clause 2 did not adequately address the question. The Joint Committee therefore recommended that if the Government wished to ensure that the Parliament Acts applied to a reformed House, they should make statutory provision for it. Both Peers considered that the issue could be resolved by suitable wording in the Bill. That seemed to me to be persuasive evidence.
I should like to say something about costs. We accepted the recommendation of the Government that the salary of an elected Member should be somewhat below that of an MP but above that of a Member of a devolved Assembly. We also accepted that the sort of constituency allowances that were paid to MPs should not be available to elected Members of the House of Lords. So far as transitional Members were concerned, they should continue to receive a per diem allowance. This was also to be applicable to appointed Members—the 20 per cent. What we could not do was go into the costs of the whole exercise, very simply because although we asked the Government to produce some figures, they did not do so. I regretted that very much because, apart from anything else, it prevented us having a sensible discussion on the issue.
I am sorry to have taken up so much of the House’s time with the details of the report, but in view of some of the comments that have been made, I thought it was important that the House should get a clear picture of what we actually recommended. We undertook a thorough and detailed analysis of the proposals put forward in the Government’s draft Bill. It is now for the Government to consider our proposals before coming forward with the final Bill, which they can present to Parliament for further scrutiny.
Finally, I say one or two words about the alternative report. By the rules of the House, there could not be a minority report. There was, however, nothing to prevent members of the committee issuing their own commentary on the process, and this the alternative 12 have done. I have read the alternative report with great interest and some surprise. I see that the alternative 12 now call for reconsideration of the 15-year term. I cannot help but observe that 10 of the 12 voted for it in the committee. However, the main problem I have with the alternative report is the suggestion of a constitutional convention on further reform of the House of Lords. It would be lengthy, time-consuming, diffuse and, judging from the report, distinctly overpopulated. I will not bore the House by reading out the provision in the report which sets out the dramatis personae of those who are supposed to be eligible to take part in the constitutional convention. I recommend Members of the House to read it and observe the ominous words at the end of the list:
“This list is not exhaustive”.
More important than that is the fact that there is really nothing much left to say about this issue. We have been round this course now year after year after year for more than a century. In the 22 years since I have been in this House, it has been the subject of intense discussion in the course of which the same points are made, remade and re-remade again, again and again. I see no virtue whatever in setting up a convention to reiterate the differences which already exist and which we all know about.
The idea that somehow there is a mechanism whereby all those differences can be fused and that there will then be a general agreement about proposals to reform the House of Lords is fanciful. It is an absurdity. There are divisions in the House as to whether we want an elected House or not, whether we want people to come here as a result of a democratic election or to continue to be appointed. It is high time that people recognised that the time has come for a decision on these issues, not further discussion and then further discussion after that.
I think that the committee has produced a better Bill as a result of our deliberations. I think that that Bill is important constitutionally, indeed, it is important enough that it should be presented to the people in a referendum. That way, we will begin to make some real progress. I beg to move.
My Lords, I begin by paying tribute to the noble Lord, Lord Richard. I know that I do so on behalf of the whole House. I reiterate the Government’s thanks to him and to all noble Lords who served on the Joint Committee. Perhaps the noble Lord feels like a juror who has sat on an especially long, complex and lurid trial, and he may wish to put in a plea to be excused from any further service to the House of this nature; I am sure that we would readily accept it.
With me and a few others, he shares enormously long experience in debating these issues on the Floor of this House. He was right when he said at the end of his speech that the time has surely come for Parliament to decide once and for all what we want to do.
The Joint Committee has produced a detailed and comprehensive report which will undoubtedly leave its mark on the Government’s final proposals. The report is a milestone in a process that began in 1997, shortly after Mr Blair first described this House as an affront to democracy, and which led to the enactment of the House of Lords Bill in 1999. Since then, Labour in government sought to find a policy for the second phase of House of Lords reform, since when the future of this House has been hanging in the balance. During that period we have seen a royal commission in 2000, a first White Paper in 2001, a Joint Committee in 2002-03, a Green Paper in 2003, a second White Paper in 2007, a cross-party working group in 2007-08 and, finally, a third White Paper in July 2008, with, during that time, also votes in the House of Commons. Following the general election in 2010, this coalition Government established a further cross-party committee and went on to publish for the very first time a draft Bill alongside a White Paper in May last year, and that is the Bill which has now been subject to pre-legislative scrutiny by the Joint Committee.
That chronology alone should serve to demonstrate that the search by successive Governments for consensus on a second phase of reform of this House has been very nearly as exhaustive as the Joint Committee’s report. Although it may have proceeded in fits and starts, the broad parameters of those discussions have remained constant for some time. Indeed, the central elements of the Government’s draft Bill—the scaffolding, so to speak—are derived from the accumulated wisdom acquired through cross-party deliberations over the past 13 years. In the end, however, there is only one way to test whether consensus on the second phase of reform of this House exists or can emerge, and that is to introduce a Bill and then to allow Parliament to take a view. By publishing a draft Bill for pre-legislative scrutiny, the Government have taken the first step in that process. If a Bill to change the composition of this House is included in next week’s Queen Speech, it will be in Parliament that we establish whether the consensus which the Government believe exists can be drawn upon to take the Bill forward and on to the statute book. After all, is that not what Parliament is for?
Today is an opportunity for the Lords members of the Joint Committee to elaborate on the conclusions they reached in the course of the pre-legislative scrutiny, and for other Members of the House to comment on those conclusions with a view to informing the Government’s deliberations as we consider how best to adapt our proposals. The noble Lord, Lord Richard, has been frank that his chairmanship was a far from simple task. The issues around reform of your Lordships’ House have been vigorously contested over the years and it is no surprise that there were robust debates and differences of opinion among the members of the committee. Those culminated in an alternative report, to which no doubt some noble Lords will refer.
It is none the less the case that by a majority the Joint Committee agreed a report that lends support to many of the central elements of the Government’s initial proposals, and the Government welcome that. The noble Lord, Lord Richard, has already addressed some of those in his opening speech. Most importantly, the Joint Committee’s report concurs with the Government’s view that a reformed second Chamber should have a strong electoral mandate, that 80 per cent of Members should be elected under the STV system for 15-year non-renewable terms and that 20 per cent of Members should be appointed, with reserved places for the Lords Spiritual. Of course, the devil is in the detail—it always has been—but that is what the parliamentary process, of which the pre-legislative scrutiny is the first stage, is for.
We have a second Chamber in order to keep the Executive in check, and the Government believe that a democratic mandate obtained through direct elections would enhance the House’s ability to perform this function. If anyone has anything to fear from the proposed reforms, it should be the Executive, not least because it is likely that with elections by PR there would never be an overall majority for the Government in a strengthened upper House.
The Joint Committee shares the view that the election of 80 per cent of a reformed House will make the House more assertive. Intriguingly, however, it concludes that a more assertive House would not enhance Parliament’s overall role in relation to the activities of the Executive. I should be interested to hear from the noble Lord, Lord Richard, or from other members of the committee who are due to speak today why they reached that particular view.
The Joint Committee concurs with the Government that the reformed House should be much smaller than the current House of Lords, but recommends a House of 450 Members rather than the 300 proposed in the draft Bill. The committee appears to have been persuaded by witnesses who suggest that 300 Members might be insufficient to carry out the current functions of the House. Some of those who gave evidence also introduced a distinction between full-time and part-time Members. The Joint Committee went on to recommend that appointed Members should not have to attend as frequently as elected Members and appears to justify the 450 figure on that basis. Of course, the Government will consider carefully the committee’s recommendations on the size of a reformed House, but I invite those who served on the committee to elaborate on the arguments for the specific figure of 450, their comparison with today and the expectations that they propose in respect of attendance.
For my part, I am not clear what is meant by full and part-time membership of a reformed House. A significant proportion of Members of the House today attend almost every sitting yet the current House is rightly described as a part-time House, most obviously because the House does not sit for long periods of the year. In other areas of our political system, such as local government, individuals manage to hold down a full-time political office, such as being the leader of a council, alongside other remunerated employment. I am not clear whether the Joint Committee envisages that only appointed Members would be able to maintain professional expertise elsewhere. Elections and expertise are not in themselves incompatible, as some Members of another place continue to remind us.
The Government welcome the Joint Committee’s support for our proposals that Members of a reformed upper House should no longer serve for life but for a single 15-year non-renewable term and that elections should take place in thirds at the same time as general elections. We are also pleased that the Joint Committee endorsed our proposal for elections to be held by a single transferable vote and we will examine its argument in favour of the STV system used in New South Wales as an alternative to the STV system proposed in the draft Bill. The Government and the Joint Committee are also agreed that there should be no change to the powers and functions of the two Houses.
The Joint Committee argue that the election of 80 per cent of Members will make this House more assertive and affect the balance of power between the Houses in favour of the upper House, even if its formal powers remain the same. However, a majority of the committee considered that the existing conventions and other pillars on which Commons primacy rests would suffice to ensure its continuation, and that therefore Clause 2 of the draft Bill may be unnecessary. Clause 2 was included in the draft Bill in order to put beyond doubt our intention that the House of Commons should retain its primacy. We note the committee’s warning that Clause 2 could lay the conventions governing the relationship between the two Houses of Parliament open to judicial intervention, and its insistence that no provisions in the Bill should afford such opportunities in a manner inconsistent with Article 9 of the Bill of Rights. The Government agree with the committee that the conventions governing the relationship between the Houses cannot be legislated for and will, inevitably, continue to evolve.
I observe in passing that some Members of the House, who have been most vociferous in their concern about securing the primacy of the House of Commons, are the very same Members who have recently urged us to break with convention and challenge the financial privilege of another place.
On the Parliament Acts, which the noble Lord, Lord Richard, raised, the Joint Committee received evidence casting doubt on whether the 1911 Act would apply once the House had been reformed. The committee opted to leave that evidence from the noble Lord, Lord Pannick, and from the noble and learned Lord, Lord Goldsmith, to speak for itself. Let me be clear: we produced a draft Bill on the basis that the Parliament Acts will continue to apply to a reformed House. We believe that they are well understood and would provide the backstop guaranteeing the primacy of the House of Commons. None the less, we shall consider carefully the evidence given to the Joint Committee by two distinguished Members of this House.
The Joint Committee’s report concludes by recommending that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision to a referendum. The committee argues that otherwise there would be no opportunity for the electorate to provide a mandate for these proposals. I hope that the noble Lord, Lord Richard, when he winds up—and if not him then other members of the committee present today—will elaborate on the reasoning for this and set out why they concluded that the reforms to the composition of the House proposed in the Bill merited a referendum, bearing in mind that the 1999 reforms that produced the current composition of the House were not endorsed in that way. It is worth reminding the House that at the last general election, the manifestos from the three main parties were remarkably similar, whereas this was not true in 1997.
I also invite noble Lords to explain how the committee envisaged that a post-legislative referendum might work; what kind of question might be put to the electorate; and when it should take place. I particularly hope that the noble Baroness the Leader of the Opposition will seize the opportunity to set out her party’s approach to these matters, not least because it endorsed the principle of a referendum in its last manifesto. I should also like to hear her objections in detail to the Government’s initial proposals which, as many noble Lords pointed out, bear a passing resemblance to those drawn up by Mr Straw in 2008. To many of us, the Labour Party always appears to be in favour of reform but never quite follows through. I very much look forward to hearing the noble Baroness on this point.
The Joint Committee made valuable observations and recommendations in a number of other areas, notably in proposing an alternative transition arrangement and in recommending a per diem allowance in lieu of a salary for transitional Members, and potentially for appointed Members. I will not set out all those areas now, trusting that other noble Lords will touch on them in the course of the debate.
It will be pointed out rightly that the Joint Committee did not agree with everything that the Government proposed, and that there were considerable differences of opinion within the committee. However, it should be clear from what has been said thus far that there are very considerable areas of agreement between the Government and the majority of the committee. I noted at the outset that we had embarked on this process in order to explore whether a consensus existed on the second phase of reform of the House. The Joint Committee’s report encourages us in the view that it does.
We have not yet reached the final decisions on the Government’s proposals and will therefore consider carefully the Joint Committee’s recommendations, as well as the House’s response to the recommendations expressed in today’s debate. Although we may not in the end agree with all the answers that the Joint Committee and individual noble Lords offer, much of the value of the process will have lain in throwing up the right questions to the Government and, in the course of the debate, to the Joint Committee.
My Lords, I echo the thanks of the Leader of the House to my noble friend Lord Richard for his speech opening this important debate. I also thank my noble friend and all those who served on the Joint Committee, especially those from all sides of this House, for the enormous amount of work and effort they put into their task. The House has every reason to be grateful.
We are told that further reform of your Lordships’ House might form the centrepiece of the Government’s legislative programme for the forthcoming Session, to be set out in the gracious Speech to this House next week. Even this close to the Queen’s Speech, it seems incredible to those on these Benches—and, I believe, to the whole country—that, given the problems facing the whole country, the coalition Government think that the issue they need to focus on above all is the future reform of this House.
After the Budget there were rows over the granny tax, the pasty tax, the caravan tax, the charities tax, the conservatory tax and the churches tax—virtually every kind of tax. The Government provoked panic petrol buying, there was a cash-for-access row, the embarrassing mishandling of the Abu Qatada case, social cleansing in public housing, attacks in the most dismissive terms from their own Back-Benchers, personal abuse from MPs such as Nadine Dorries, and searching strategic criticism from MPs such as Bernard Jenkin. Then came the entanglement of Culture Secretary Jeremy Hunt. Worst of all are the Government’s economic policies: the spending cuts going too far too fast, and the absolute lack of a growth strategy tipping Britain back into recession. All of them are linked by one theme and are driven by what the Government have done. They are all self-generated and self-inflicted.
People across the country are deeply worried. They are worried about their jobs, prices, whether they can afford to put meals on the table, whether they have enough money to fill up their cars, the health service, education and crime. What is this Government’s response to their worries? It is House of Lords reform. It is no wonder that the polls are day by day a disaster for this Government. Yesterday, the Tories’ ratings were below 30 per cent for the first time for eight years. The day before, 67 per cent said they thought that the Prime Minister and the Chancellor were out of touch. Sixty-eight per cent think that the Budget shows that they can no longer even try to claim that we are all in this together. What is the Government’s answer to being thought out of touch? It is Lords reform. When the Government are described as incompetent, what is their answer? It is Lords reform.
The reform of your Lordships’ House is an important issue and one that we need to get right, but the idea that it is the most pressing issue facing the country is risible. We on these Benches will have more to say on these matters and on the Government’s priorities when we begin to debate the Government’s legislative programme next week, but we have in front of us today the report from the Joint Committee on the Government’s draft House of Lords Reform Bill, and alongside it we have the alternative report from the minority group of members of the Joint Committee. Both are important contributions to the debate on the future of your Lordships’ House.
The Joint Committee’s report makes many important points, but I particularly want to highlight just four: first, its conclusion that this House should have an electoral mandate provided it has commensurate powers; secondly, its conclusion that Clause 2 of the Government’s draft Bill, which seeks to preserve the primacy of the House of Commons simply by asserting it, is not in itself capable of preserving the Common’s primacy; thirdly, that work should begin as soon as possible on re-examining the conventions between the two Houses of Parliament as specified in an earlier report by the Joint Committee on Conventions, chaired by my noble friend Lord Cunningham of Felling, which is something that I advocated a long while ago and in doing so was accused by the Deputy Leader of this House of being a reform refusenik; and fourthly, the Joint Committee’s recommendation that,
“in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision to a referendum”.
These are important points, but I accept that they are not points on which every Member of your Lordships’ House will be able to agree. I know, for example, that some Members of this House, on all sides of the House, are not in favour of this House having an electoral mandate, although I am sure that the Joint Committee’s insertion of the important qualification that an elected House of Lords needs to have powers commensurate with that electoral mandate will interest all Members of the House.
I also know that there will be Members of your Lordships’ House who are not convinced of the need for a referendum. In this, I do not mean Members on the Liberal Democrat Benches who are following the bizarre insistence of the Deputy Prime Minister that a referendum is not necessary. No one would suggest for a moment that this opposition to a referendum is anything to do with the outcome of last year’s AV referendum, a referendum that the Deputy Prime Minister embraced with as much enthusiasm as he has in refusing to embrace a referendum on Lords reform. As an aside, I am not a betting woman—well, not often—but I just put the notion to this House that if there is a Bill on Lords reform in next week’s Queen’s Speech, at some stage during what I suspect will be a very difficult parliamentary passage without necessarily a clear conclusion in prospect, proposals for a referendum will go into the Bill.
Far be it from me to offer advice to the Government, but it would be much better for the Government, whether the Tory part or the Lib Dem part, to acknowledge what I believe is the inevitable and accept that a constitutional change of this level of importance requires a referendum. The Government should stop trying to deny the British people a voice on this issue, and that is the position of these Benches.
Labour will make it clear in its response to the Queen’s Speech that it will take a close look at whatever proposals for further Lords reform the Government bring forward. We have seen the Government’s draft Bill but, for instance, we do not believe that the Government can seriously attempt to proceed with Clause 2 of the draft Bill, mentioned by the Leader, given that, as the Joint Committee’s report makes clear, it has no support at all beyond the ministerial opinions of Mr Clegg and Mr Mark Harper.
We do not know what Bill we will get yet, but we on these Benches will test it against three criteria: a referendum, dealing properly with the issues of powers and conventions, and our policy of a fully elected House. I know that there are those around this House, including a number behind me, who would not agree with all those criteria. I acknowledge and accept those differences, which reflect views that are strongly, passionately and legitimately held. I know that we will hear those differences in the two days of debate in front of us, and they are clearly displayed in both the report of the Joint Committee and the alternative report of the minority group. However, I urge that these differences of view are respected, whether they are held by Members of your Lordships’ House or by individuals and organisations beyond. Strong argument on the issue is right and to be welcomed.
Significantly, I believe that what we see in the alternative report from the minority group of the Joint Committee is just a difference of opinion. We see clear disagreement, but I welcome the fact that the minority group has set out with equal clarity the areas and issues on which it agrees. These areas include: the functions of this House; the greater assertiveness that an elected House would unquestionably wield against the House of Commons; the role of the Bishops in your Lordships’ House, the prospect of introducing representatives of other faith groups, and the importance of diversity; the application of the Parliament Acts; and the importance of a referendum. I am sure the whole House will agree that these issues are vital.
Individual Members of your Lordships’ House will make up their own minds and come to their own conclusions on the areas in which the minority group makes clear that it does not agree with the Joint Committee—in most cases because it wanted to go further than the Joint Committee felt it was able to go, given its narrow remit of scrutinising only the Government’s draft Bill. These areas include the importance of the primacy of the House of Commons—and I note the emphasis given in the alternative report to the authoritative view of Erskine May of what the primacy of the House of Commons rests on and why—as well as issues such as accountability, constituency issues in an elected House of Lords, transitional arrangements for Members of the current House, and the cost of an elected House.
We on these Benches support the criticism made by my noble friend Lord Richard earlier today and by the minority group of the Government’s refusal to provide proper costings for an elected House, and I pay tribute to my noble friend Lord Lipsey for the work that he has done. We give notice that we will seek to hold the Government to their commitment, given just last week, that in the wake of the publication of these reports they will now provide accurate figures of what an elected House of Lords will cost so that at a time of national austerity the public can take those important views and facts into account.
The minority group makes a strong case for all these issues to be considered by a constitutional convention. The case made by the minority group is interesting. The reform of your Lordships’ House is important but it suggests that such a convention should also consider what would happen to the House of Lords, the House of Commons and Parliament as a whole, as well as to the union itself if the people of Scotland were to vote in a referendum in favour of independence. The vexed issue of the West Lothian question also remains on the table, and that should not be considered in isolation. A constitutional convention might also be suitable for considering the impact of such issues on the other devolved areas and the Assemblies of Wales and Northern Ireland.
Since 1997, we have seen a significant programme of constitutional reform, which we on this side of the House believe was well considered, well thought through and well grounded, such as devolution in Scotland, Wales and Northern Ireland. This reform was necessary and has the support of the people. However, since 2010 we have seen proposed constitutional reform that has been none of these things: for example, the political gerrymandering of what is now the Parliamentary Voting Systems and Constituencies Act; the political partiality of what is now the Fixed-term Parliaments Act; the decisive outcome of the AV referendum; and, finally, the bad Bill that is the Government’s draft legislative proposal on further House of Lords reform. These issues should have been properly thought through, and they were not. I therefore understand the argument made that the constitutional convention has merit in being a vehicle that could consider these and allied issues.
I am sure that there will be great interest in the recommendation of the consideration given to indirect elections to the House of Lords, including the idea of the secondary mandate. I welcome the proposals put forward in evidence to the Joint Committee by the former Lord Speaker, the noble Baroness, Lady Hayman, formerly of these Benches, for what she described as ground-clearing reforms. Of course, I welcome too the advance that the legislation put forward by the noble Lord, Lord Steel of Aikwood, has made and hope that it can be expedited in the coming Session.
There are many constructive proposals that would aid the reform of this House and which I believe many on all sides consider to be necessary. The Joint Committee and the alternative report have raised a plethora of vital issues that have not been properly thought through in the Government’s draft Bill, including the application or otherwise of the Parliament Act to a reformed House. We shall see what comes before us when the Government set out their legislative programme in the gracious Speech next week. The Bill on further reform of this House may be better than the draft Bill considered by the Joint Committee. I certainly hope so.
The reform of this House has a long history. In its most recent incarnation, it has been going on for the past 100 years. For some, such as the Deputy Prime Minister, it is an absolute priority. However, I am doubtful that the public, facing the problems that they are facing, would agree with that priority. Real reform of your Lordships’ House is not a matter for easy slogans. Constitutional reform is a deeply serious matter, the purpose of which cannot be to try to glue the coalition together, albeit at the top. As my right honourable friend Sadiq Khan MP, the Shadow Secretary of State for Justice, has forcefully said:
“Avoiding the promotion of political and constitutional reform on the basis of short-term expediency is imperative”.
Reform is a matter of careful consideration. I am confident that over the next two days, Members of your Lordships’ House will bring precisely that approach of careful consideration to the issues before us. I believe that both reports before us today are an important contribution to that, and I look forward to the debate ahead.
Perhaps I may ask the noble Baroness a question. The coalition agreement provided for the Deputy Prime Minister to establish an all-party group, which would come forward in a Motion, I think from memory, by December 2010. The noble Baroness served on that group. My noble friend Lord Strathclyde in his remarks implied that the draft Bill, which has been considered, was somehow connected with the deliberations of that group. Will the noble Baroness tell us what happened to the Deputy Prime Minister’s committee and how its conclusions are in any way related to this Bill?
My Lords, I was proud and privileged to be a member of that group, as the noble Lord said. However, during our deliberations, it became clear that there were various issues on which there was no meeting of minds. Towards the end of our deliberations the group stopped meeting. A draft Bill was published that, it might be fair to say, did not have the full support of all members of that committee.
My Lords, I speak as a survivor of the Joint Select Committee. In doing so, I offer my thanks to the noble Lord, Lord Richard, for his very able chairmanship. I should also like to echo his remarks about the work of the clerks and my colleagues on the committee. About a year or so ago, I would have agreed with the consensus in this House that constitutional reform of this nature should be subject to pre-legislative scrutiny. But after six months on this committee, I am much less sure.
It is certainly true that there are advantages in having a committee of both Houses and I think that we benefited from that. We have certainly produced a vast array of material for the delight and delectation of noble Lords even if they do not read every word. But there are problems with pre-legislative scrutiny on topics such as Lords reform because it is always tempting to move on to the broader constitutional questions which, although relevant, are outside the direct scope of the Bill. I would have liked to have spent some time scrutinising the current arrangements with the same rigour used to scrutinise the proposed arrangements, but I believe that the chairman was right to rein us in and to stick to the confines of the draft Bill. It would have been very odd indeed, on a piece of legislation in which one of the key issues was the ability of the Government to get their business, to have spent 18 months or two years doing pre-legislative scrutiny.
The other problem is that constitutional matters cannot really be scrutinised in quite the usual way because all members of the committee are to an extent themselves experts, and often know as much about the topic as the people from whom they are taking evidence, and of course all the members tend to come with views which are pretty well entrenched. It is also difficult in this case because there is a draft Bill that stands on the simple proposition that the second Chamber should be elected. For those who disagree with that view, scrutiny of the rest of the Bill is very difficult. We found that arguments became very circular and at times frustrating, and of course the requirement to reach enough of a consensus to produce a report runs the risk of compromising the work. Perhaps that answers the noble Lord, Lord Strathclyde, who asked in his opening remarks why we came up with some of our conclusions. So we need to think very hard about the sort of Bills that are put forward for pre-legislative scrutiny.
Two phrases are constantly used in the context of Lords reform. The first is the one about turkeys voting for Christmas. It is an expression I have come to loathe. We supporters of an elected House will have to do better than that in support of our case, and I believe that we will do so. But, equally, those who argue “If it ain’t broke, don’t fix it”, which is my second hated phrase, will also have to do better. If our system is not broken, it is certainly showing signs of wear and tear, and I do not believe that we can ignore those signs indefinitely.
First, we are the creatures of patronage, either ancient or modern, and we should recognise that that is increasingly anomalous in an age where transparency and open process are the norm. People are entitled to understand how and why those who influence their laws come to arrive in this place. When I do outreach visits, I am always asked if I live in a castle. Many people believe that we are still an aristocratic House, and the titles we hold reinforce that. The real diversity that we have here is not well understood outside. As a Member of the House of Lords Appointments Commission, I know how hard we work to ensure transparency by publishing on the website the processes and our criteria for selection, but we appoint only a small percentage of the people in this House. On the majority—the political appointments—the commission has a more limited role. One of our main concerns is addressing the question of party donors, because whether we like it or not, there is a perception outside that cash for honours is widespread.
My second concern is about the increasingly political nature of this House. I have been here for 12 years and in that time I have seen the House become more confrontational and less courteous. Debate is much more partisan and the majority of votes are cast along party lines. At some point in the future, having a political house with no equivalent electoral mandate is going cause us a problem.
The third and most serious problem is the size of the House. We all believe that this House is too big. It is too big to run efficiently and so big as to risk bringing ourselves into disrepute. The experts in this House find themselves making three-minute contributions to important debates because there are so many of us. But the size of the House is inextricably linked to the power of the Prime Minister’s patronage, and it is a response to the growing politicisation of the House. People say, “Well, the Prime Minister should stop appointing people”. Let us hang on for a minute. Every Prime Minister for the past 50 years has had the right to appoint Members at a time and in the numbers of their choosing. Under the current arrangements, how on earth should we decide when Prime Ministers should stop appointing and when they can start again? We have no constitutional framework for deciding how large this House should be and what its political make-up should be. If you believe in the status quo, that is fine, but you then have to answer for the consequences of it—and the consequences are that every Prime Minister seeks to rebalance the numbers in this House.
Between the election of Margaret Thatcher in 1979 and the formation of the coalition in 2010, there was only one change of Administration, in 1997. If during that 31 years we had had a change of Government at every election, and more Peers were created to make the political balance work, we would have had to face up to this problem much earlier. If we have frequent changes of Administration in the future, this is an issue that we will have to deal with.
Of course, there are ways of addressing this problem other than through election, and I have no doubt that many of them will be put forward genuinely today. The trouble is that I see no evidence that we could ever get agreement to, for example, a single 15-year term, or a retirement age, or a cap on the size of the House. Many of the proposals put forward by the Goodlad committee have been rejected, and despite widespread support throughout this House for the proposals in the Steel Bill, it has been completely filleted.
In the final analysis, even we must rule by consent. There is a danger that if we turn our faces against all reform, those who argue that there is no need for a second Chamber will grow in number. For the opponents of change, there is a danger that we will win this battle but lose the war.
My Lords, I declare an interest as a member of the Joint Committee and as a signatory to the alternative report. Perhaps I may add my own words of thanks to the noble Lord, Lord Richard. His was not an easy task, as we slogged our way towards a total of 30 meetings—a record, I gather, for a Joint Committee. I am perhaps a touch unusual in getting seriously excited by constitutional matters, but as the tally of our sessions mounted, even I was reminded of that shrewd observer of our country, George Bernard Shaw, who said that the English invented test match cricket in order to give the British people a sense of eternity. The noble Lord, Lord Richard, got us through and on time, and I am grateful to him and to our clerks, though I should point out to the noble Lord that there were two Cross-Bench members of his committee, not one as he suggested.
Every generation or so, we take a crack at the question of Lords reform. We throw the particles in the air and hope that, this time, they will fall in a way that paves a path on the road to consensus. Once again, we have failed, as the voting figures in volume 1 of the Joint Committee’s report show, as does the existence of the alternative report. The noble Lord, Lord Strathclyde, spied the outline of a consensus. Over those 30 meetings of the Joint Committee, I have to tell the noble Lord, there was not a flicker of consensus. The noble Lord the Leader of the House is succumbing to an attractive outbreak of Pollyanna-ism, which is always pleasing but in this case is utterly misleading.
So, what next? In the coming Session of Parliament, we could immerse ourselves in the constitutional mire, dissipating copious quantities of parliamentary time and political nervous energy on the Government’s proposed Bill, probably boring the country and ourselves rigid except at moments of showdown and all with no guarantee that the statute will emerge at the end unless the coalition is prepared to reach for the Parliament Acts in what could well be the near twilight of its term. Is it wise to attempt to settle the future of the second Chamber before we know the outcome of another grade 1 listed constitutional question, Scottish independence, which is to be the subject of a referendum in autumn 2014?
There is an organic, incremental alternative to the invasive surgery proposed by the coalition for your Lordships’ House. The noble Baroness, Lady Hayman, described it with great eloquence in her oral evidence to the Joint Committee, as did Peter Riddell, director of the Institute for Government, in his. Put their thoughts together with the content of the Bill in the name of the noble Lord, Lord Steel of Aikwood, and the proposals under consideration by the usual channels from the Leader’s Group on Working Practices chaired by the noble Lord, Lord Goodlad, and you have in the making a substantial and hugely worthwhile reform which would have the additional benefit of being fuelled by a high level of genuine consensus.
The Joint Committee’s report acknowledges this in paragraph 11, which reads:
“Other approaches to reform are of course possible. A number of our witnesses advocated an incremental approach, focusing on issues on which there exists a large degree of consensus: the mode of appointment, the size of the House, retirement, disqualification and expulsion”.
The paragraph continues:
“Lord Steel of Aikwood's private member's Bill attempted to address some of these issues. The Joint Committee was established to consider the draft Bill, however, and we have kept within our remit”.
The alternative report, on pages 78 and 79, goes further and actively urges the Government to,
“consider including further proposals for immediate reform, including those put forward by Baroness Hayman, the former Lord Speaker, and those contained in the Leader’s Group report of working practices in the House of Lords, chaired by Lord Goodlad”.
Among the candidates for what the alternative report calls “immediate reform” are: reducing the size of the House to about 500, future appointments to carry a fixed term, the Appointments Commission to be made statutory, an end to the link between peerages and the honours system, a retirement scheme for Members, the matter of expulsion and exclusion and the ending of by-elections following the deaths of hereditary Peers. I know that the last will not find consensual support from several noble Lords whom I respect and admire.
In the purest sense, no, but the virtue of our system, as I have always seen it, is that the undisputed primacy of the House of Commons, if I can put it bluntly, takes care of democracy. I know that the noble Lord and I will not agree on this although we agree on so many other things.
The danger is that while anticipating the so-called big-bang answer to the question of the Lords, nothing will happen, needed reforms will be stymied and the planning blight that has afflicted your Lordships' House since the departure of the bulk of the hereditary Peers in 1999 will continue. The ingredients of a substantial reform are lying at our feet. Let us pick them up, fashion them into something coherent, something valuable, and let us implement that bundle of reforms before the next general election.
My Lords, as a member of the Joint Committee, I add my tribute to the noble Lord, Lord Richard, as chair for his skill, staying power, stamina and achievement in delivering a report on time. I recollect that the retiring most reverend Primate the Archbishop of Canterbury recommended that his successor should have the skin of a rhinoceros and the constitution of an ox, and it occurs to me that after his work on the Joint Committee, the noble Lord, Lord Richard, might consider allowing his name to go forward for that position. In speaking today, I apologise to the House that urgent business in my diocese will make it impossible for me to be in my place when this debate concludes tomorrow. I am grateful to the Leader’s office for making an exceptional concession for me on this occasion.
In the mid-summer’s day debate on the draft Bill in your Lordships' House last year, I reminded the House that on these Benches we recognise along with very many of your Lordships that some reform of this House is long overdue and that the test of any reform is that it helps to serve Parliament and the nation better, not least by resolving the problem of its ever-increasing membership. To measure that, I pointed to four tests that we might apply to any proposal to replace this House with a wholly or largely elected second Chamber. The Joint Committee’s work has in my view made it very clear—to me at least—that these tests have not been met.
The first was whether the proposals flowed from a clear enough definition of the functions of a reformed House. Because of the limits put on the Joint Committee’s work referred to by the noble Baroness, Lady Scott of Needham Market, this matter has been addressed in some detail by the alternative report, which I signed. That report makes it clear that the overwhelming mass of evidence received by the Joint Committee pointed to the difficulties that will arise between the two Houses as a result of the Government’s determination to hold to the position that the primacy of the Commons will be undisturbed by the advent of an elected House of Lords.
The second test is related and is of course about primacy. It rests on the assertion that the Bill contains nothing that will affect the conventions governing the relationship between the two Houses. The unanimity of the witnesses on this point is beyond dispute. It is manifestly unreasonable to argue that you can change one part of a delicately balanced system and leave the other parts unaffected. The noble Lord, Lord Richard, has argued that this appears not to concern Members of Parliament but he knows that at least two MPs on the Joint Committee expressed consistent and vehement concerns on this very issue.
Thirdly, I proposed a test relating to the independence of the upper House from party political control. The Joint Committee explored whether any of the available voting systems offered the possibility of electing people who would take an independent view and speak from time to time with a voice distinctive from that overwhelmingly influenced by party discipline. It is clear that a mainly elected House would become a creature of the party system, whatever mechanism for election was chosen. On this test, too, the proposals fail. I welcome the recommendation for further consideration of a nationally, indirectly elected House.
Fourthly, I sought to apply a test relating to the claims of democratic legitimacy. Would a non-renewable, 15-year term provide this House with a sense of conscious connection to, awareness of and responsiveness to the changing priorities of the electorate? I remain persuaded that this kind of democratic legitimacy is so diluted in the draft Bill as to be almost pointless. Here lies the intellectual incoherence of the draft Bill. On the one hand, the Government want a House that is accountable to the electorate but, on the other, seem to recognise that any such House might assert itself to the point where it radically disturbed the fine balance between the two Houses of Parliament.
We are left with a Bill predicated on the encouragement of greater assertiveness by an elected upper House yet one so circumscribed by the electoral proposals and so dependent on the Parliament Act that a reformed upper House would soon either find itself frustrated in its attempts to behave representatively or assert its determination to test the present conventions to breaking point. Either way, the risks are considerable. I have no doubt that this House will look carefully at those risks today and conclude that the benefits of radical reform as proposed cannot justify them.
In spite of these concerns, on this Bench we are pleased that the Joint Committee was persuaded that in a reformed House there should remain a place for the Lords spiritual. This question was not at the front or centre of the committee’s attention, but I am grateful that the committee found time to hear evidence from the most reverend Primate the Archbishop of Canterbury, who spoke tellingly about the grounded relationship between the Church of England and the communities in which our parishes and churches are set and drew the committee’s attention to the particular role of the Church of England in supporting, encouraging and convening other faith communities, especially in our great cities. His views were endorsed by significant voices from the Jewish community, the Muslim Council of Britain and others. I am pleased that the Joint Committee has pressed for the increasing presence of leaders of other denominations and faiths. A reduction in the proposed number of Bishops from 26 to 12 will be testing and challenging for the Church of England, but we will work hard to achieve a consistent presence from this Bench. We recognise that this will entail careful consideration of the processes by which members of the Bench of Bishops are selected.
It was a privilege to serve on the Joint Committee, not as a professional politician. I learnt a great deal from my colleagues and my respect for those who spend their lives living a vocation to politics has been substantially enhanced. But if I have brought a particular perspective to the discussions, it may be that I was continually asking myself how these proposals will serve the people of the diocese in which I live and work. With the passing months of the committee’s work, my puzzlement increased. At a time like this, when we need leadership that unifies our country and vision in Parliament that addresses the needs of the people, why are we embarking on proposals for reform which will be manifestly divisive? At a time of continuing recession, these proposals run the risk of setting the two Houses of Parliament against each other, dividing Parliament from the country’s evident needs and suggesting that the political leadership is out of step with the membership. That is why I felt it right to vote for a referendum.
Surely it is partly the responsibility of the Lords spiritual to raise questions about those things that can demonstrate Parliament’s capacity to respond to the mood of the day and raise our sights to the urgent need to address the common good at a time of severe economic risk. My fear is that in three years’ time we may have achieved a reformed Parliament but, in the process, have unintentionally created one that feels even less relevant and responsive to the people’s needs. I hope that the Government will heed the voice of this House today.
My Lords, as a supporter of the Government perhaps I may say how encouraging it is to note that on the definition offered by my noble friend Lord Strathclyde, so far in this Parliament the House of Commons has managed to reach a consensus on every measure brought forward by the Government. I was also interested to hear that we will not be having a referendum because all three party manifestos agree, including the Labour Party manifesto, which promised a referendum.
I too served on the Joint Committee and I too pay tribute to my fellow members. As we have heard, the committee devoted considerable time and effort to examining the draft Bill. However, it was fundamentally hampered in two respects. The first was that the Government presented us with a Bill of which we had the detail but for which we had no justification. Assessing the Bill on the Government’s own terms is not possible if the Government make no attempt to say what they are.
If one reads the White Paper, one can extract from the disparate comments two criteria, each of which is asserted rather than justified: that is, that the Bill delivers an elected House—a “fundamental democratic principle”, according to the White Paper—and that it maintains the existing relationship between the two Houses. The report of the Joint Committee demonstrates that the Bill fails by the Government’s own criteria. It may provide for election but the attempt to ring-fence the position of the House of Commons through Clause 2 is inadequate to the task. Indeed, if you read the evidence, it is fairly clear or would suggest that you can have one but not the other. The committee, as we have heard, took evidence on the Parliament Acts. As the report mentions, it would be possible to make statutory provision for them to continue in force. That, though, is to say what could be done, not what should be done. But even if the Acts were maintained, that would not be sufficient to maintain the existing relationship between the two Houses. As one reporter put it to the noble Lord, Lord Richard, at last week’s press conference, how exactly do you prevent an elected House from ignoring conventions? You cannot.
The second limitation was that of time. The committee did the best that it could with the Bill before it. It may, as the noble Lord, Lord Hennessy, said, have set a record for the number of meetings it held. Despite that, there was not time to examine the Bill in depth. Even if the Parliament Acts were maintained, they are blunt weapons for determining outcomes, and to rely on them on a regular basis would likely create significant tensions within the political process. The draft Bill provides no deliberative means for resolving disputes and, given the pressures we were under, the committee did not address how such disputes should be resolved. We dealt with it only in the negative sense of finding that Clause 2 was inadequate for maintaining the present relationship between the two Houses.
I take that as illustrative of what was not considered. The report is as important for what it omits as much as for what it includes. That is not a criticism of the committee but of the limitations under which we operated. I know the response adopted by some—we have already heard it—is that we did not need to address the fundamentals of what was proposed, and that further time was not needed, because the issue of Lords reform has been discussed for the past century. There is, in their view, little more to be said on the merits, and it is a case of agreeing the detail.
That view is not only wrong but dangerous. The case for an elected House and hence for the Bill is based on contested concepts and philosophies. We hear trotted out claims as if they are self-evidently true. There will be other opportunities to address these claims; here, I just wish to focus on the assertion that the issue has already been extensively considered over the course of a century or more.
Consideration of the future of the second Chamber, and its relationship to the first, has been sporadic and very rarely undertaken in terms of first principles. There has been little consideration of the role of Parliament in our constitutional arrangements and the place of the second Chamber within Parliament. The two principal exercises were those of the Bryce commission in 1918 and the Wakeham commission in 2000. Otherwise the debate, though extensive at times, has been at a rather superficial level, essentially of detail rather than principle. Even in 1911, the debate on the Parliament Bill was not a principled debate about the place of the second Chamber in the constitution of the United Kingdom. It was shaped by politicians’ stances on Irish home rule.
We need to address the issue from first principles. We need to consider how the second Chamber, and indeed the first, is composed once we are clear as to what we expect of Parliament. We have not really done that. There is reference to parliamentary reform at times, but that normally refers to procedural and structural change in the Commons. Lords reform usually refers to changes to the composition of this House. There have been few attempts to address change from the perspective of Parliament as Parliament.
That is why I am a signatory of the alternative report. I have previously argued the case in this House for a constitutional convention, to undertake an exercise in constitutional cartography. Significant constitutional change is difficult to reverse. It usually has significant consequences for other parts of our constitutional framework. We need to get this right. Contrary to what some have said, the place of the second Chamber has not been thoroughly thought through. The report of the Joint Committee has demonstrated what is wrong with the Government’s proposals. The report, though, should not be the end of a process of examining the place of the second Chamber, but rather an impetus to look holistically at our constitutional arrangements. We cannot afford to get it wrong.
My Lords, I, too, thank the noble Lord, Lord Richard, for his introduction to the debate and for his chairmanship of the Joint Committee. His stamina and determination were both fully tested in his chairmanship of a very diverse and opinionated group of parliamentarians. I declare an interest not only as a member of that committee but as one of the signatories to the alternative report. There were 12 of us—just one short of half the Joint Committee. Our group of 12 was also diverse, with MPs and Peers from both the Labour and Conservative Parties, and with Cross-Bench and episcopal support. Some of us supported a fully elected second Chamber; others did not.
However, the crucial and fundamental starting point on which we all agreed was that the draft Bill and White Paper offer a misleading prospectus for change. Reading them, that is apparent from the start. The introduction to the White Paper, strongly emphasised by the Deputy Prime Minister in his evidence, says that,
“it is important that those who make the laws of the land should be elected by those to whom those laws apply”.
The House of Lords is of course part of the legislative process—we scrutinise legislation and suggest amendments to the Commons—but every single decision that goes into law is ultimately a Commons decision. When I was a young civil servant, I was told that that is why the Commons votes Aye and No and we in the Lords vote only Content and Not-Content. The lawmakers—the ultimate decision takers—are the Commons, because they are elected.
Another questionable premise is set out in the summary of proposals which deals with powers. The summary says that it is proposed to elect the Lords without changes to the fundamental relationship with the Commons which, it claims, rests partly on the Parliament Acts and on Commons financial privilege. Commons primacy rests on the simple fact that the Commons is elected and we are not. Erskine May makes this absolutely plain in the section that deals with the power and jurisdiction of Parliament. On primacy, Erskine May states:
“The dominant influence enjoyed by the House of Commons within Parliament may be ascribed principally to its status as an elected assembly, the Members of which serve as the chosen representatives of the people”.
On financial privilege, it states:
“As such the House of Commons possesses the most important power vested in any branch of the legislature, the right of imposing taxes upon the people and of voting money for the public service”.
Moreover, the preamble to the Parliament Act 1911 states that the Act was necessary because the Lords was not,
“constituted on a popular … basis”.
That is, it was not elected. Once the Lords is elected, the reasons for the Parliament Act are eroded. Both Houses will be constituted on a popular basis and contain, as Erskine May says,
“the chosen representatives of the people”.
Despite these arguments, it is still possible to argue that, as part of the legislative machinery, Members of this House should indeed be elected. One can mount a logical and sustainable argument to support that. What is not logical or sustainable is to argue that Commons primacy and the current relationship between the two Houses will be unchanged. The Government were obviously aware of the problem and proposed Clause 2 of the draft Bill. We took a great deal of evidence on Clause 2. Only two supporters gave evidence in favour of it—the Deputy Prime Minister, Mr Clegg, and the Minister responsible, Mr Harper. The entire Joint Committee agreed that Clause 2 is a nonsense—unworkable and misconceived. However, many of us believe that there is more to it than that. There is a fundamental flaw in the Bill, which is the unbridgeable gap between the Government’s proposals for electing the House of Lords and the continuation of Commons primacy.
An elected House of Lords may well strengthen democracy. Having campaigned, canvassed and got support, Members would be elected on the basis of a mandate. They would represent their electors and be expected to exercise a mandate on behalf of those electors. The Government seem to think that democracy is solely about elections, but it is about the elected acting on behalf of their electorate. Why should an elected Peer subjugate the wishes of his or her electorate to those of an elected MP? What is the logic of continuing Commons primacy after the Lords is elected?
The Government have one basic answer to that question: do as much as possible to distance the elected Peer from his or her electorate. The supporters of the draft Bill claim that, if enacted, it would strengthen our democracy and the House would be more democratic and legitimate. However, at every point, the draft Bill and the White Paper seek to distance the elected Peer from their electors. They are quite open about this. The 15-year term is designed to ensure that the Commons mandate is always fresher. The non-renewable nature of the Lords’ term and the block on an elected Lord standing for the Commons have nothing to do with democracy and everything to do with protecting MPs from locally elected Peers who may become just a bit too popular.
The huge multi-constituencies of more than 500,000 people will ensure distance between the electors and the elected. These measures will not achieve their ends—that of protecting the Commons. Nor are they anything like as democratic as they should be. Elected Peers with a 15-year term, representing more than 500,000 voters, will be alongside MPs with five-year terms and constituencies of around 76,000. Will a Peer who is entrenched for 15 years, representing 500,000 and possibly elected by thousands more than the local MP, have more or less weight than the local MP?
Secondly, there is self-evidently little or no accountability in this system. At one point in the Joint Committee’s discussions, I was told that this is not about accountability. I may be wrong but I thought accountability was part and parcel of a modern democracy. The noble Baroness, Lady Scott, is quite right: of course, we need reform. I support the sort of reform put forward by the noble Lord, Lord Steel, and the noble Baroness, Lady Hayman. We could take that forward now, but then we would need to turn to the much bigger and more serious question of House of Lords elections. Electing the Lords would change the political and constitutional landscape of this country and would affect the Scottish Parliament and the Welsh and Northern Irish Assemblies. It demands serious consideration of electoral systems, including indirect elections, but above all it needs an honest and clear determination of what the new relationship between the two Houses will be. To achieve that we need to do two things. First, we need to reconvene the Joint Committee on Conventions originally chaired by my noble friend Lord Cunningham. The Deputy Prime Minister says that the conventions will evolve. We cannot run a country on a “let us see what happens” basis. That would be constitutionally disastrous and utterly irresponsible. No Government worth their salt should even contemplate doing so.
The second thing that we need to do is to set up a properly comprehensive constitutional convention to work through all the questions that need answers. I know opponents of this say that it constitutes kicking the measure into the long grass, but that is a feeble answer to such a serious question. A constitutional convention is the responsible and sensible way to resolve the huge questions that the supporters of the Bill have so conspicuously failed to answer. We did it for Scotland, Wales and Northern Ireland, so why not do it for the United Kingdom as a whole? Why should our constitutional settlement be treated with any less care and respect than those of our constituent parts? Of course, political decisions need to be taken on this matter but we need to do so much more than that. We need to hear from the people of this country what they think.
Therefore, ultimately, we need a referendum. I understand why the Liberal Democrats are so opposed to that; the AV result must have been a terrible shock to them. However, they argue, and the noble Lord the Leader of the House has argued, that there is no need for a referendum because at the 2010 election all three parties supported the election of the House of Lords. However, the noble Lord needs to remember that no one actually won the 2010 election. In fact, like us, the Liberal Democrats lost seats. The only party that won seats was his party, which said that this was a third-term issue. Real democracy means electing the Lords with commensurate powers, as the main report says—a point left out by many who have spoken on this issue this afternoon. We were agreed on the need to have commensurate powers and for the individual to have the power to act on behalf of his or her electorate as a Minister, Secretary of State, even Prime Minister, and to be part of a properly constituted democratic body.
In a speech that he made in December last year, the Deputy Prime Minister accused this House of having only a “veneer of expertise”. I put it to your Lordships that this Bill will not do because it has only a veneer of democracy.
My Lords, of course, the position of the independent Peers is very important. It is addressed in the main report. That is, of course, why so many people want to see the House being elected on a 20:80 basis, which would address the point about the Cross-Bench Peers. However, what it does not address is independence within the parties because, as we all know, the Whip would be cracked a bit more effectively over all of us than it is at the moment, and that would rob us of a degree of our independence.
My Lords, I do, if this House is to be elected with commensurate powers. That is my starting point. We did not vote simply on electing the House. The committee agreed that there should be commensurate powers. If there are commensurate powers—that is, doing away with Commons primacy and everything else to which I have just referred—yes, I do support a 100 per cent elected House on that basis, but only on that basis.
My Lords, I think it was Oscar Wilde who once said that in a democracy the minority is always right. I have to say, as a Liberal Democrat, that it is a saying that has given me much comfort over the years, and I have a suspicion that it will have to give me some comfort today. I rise, of course, to argue the case for a democratically elected second Chamber—a case made by my party for 100 years. The time was ripe for that 100 years ago. It is essential now.
I just ask my noble colleagues in this place whether they find it acceptable, at a time when people are dying for democracy, that we should have in this place somewhere that infringes the fundamental principle of a democratic state, which is that the people’s laws should be made by the people’s representatives.
They are not. We are not the people’s representatives, but we make and amend laws, and are part of the process of producing the laws of this country. We infringe that principle daily. I was sitting here and listening to the arguments made around the Chamber, many of which were, “Yes of course we are in favour of democracy, but not now, not on these proposals, but at some time in the future”. St Augustine should be living at this hour.
However, the question is this: when we frame the laws of this country—you cannot say that we do not participate in this—we do so because we carry with us a democratic mandate. That is the principle of democracy. I was imagining what kind of a debate we might be having if, instead of debating our institutions today, we were debating the institutions in Brussels. I can imagine the kind of thunderous rage that would be expressed against the fact that those undemocratic commissioners in Brussels are able to make laws imposed upon the people of Britain. But we are undemocratic—we participate in that process.
I was imagining what kind of argument might be made if we were discussing Italy. People would have said, “The present Italian Prime Minister is not directly elected, but is elected only by Parliament”. We are elected by no one. As my noble friend Lady Scott said earlier, we are placemen here—no more and no less. I thought that that went out with the Stuart kings. We are the creatures of patronage. There are only two ways to get into this place. One is because you are a friend of the Prime Minister, or at least he does not object to you, and the other is because your great-grandmother slept with the king. There is no other way of getting into this place and the votes of the people have no hand in this process whatever.
I will give way, but allow me to make a little more progress.
The truth of the matter is that this place, whether you like it or not, is a creature of the Executive. When the new Prime Minister comes in, the first thing he or she does is help themselves to a replica of what exists in the other place in order to give themselves the power to push through this place the legislation that they require. Are we really content with that?
I recall well, because I was partly involved, that in 2004 the world’s greatest Muslim democracy, Indonesia, went to the polls. The European Union issued a view, a wish—not an instruction, of course—that when those polls were finally counted there would be no placemen to alter the democratic judgment and that there would be no act of patronage to add to the legislatures people such as army officers or even bishops to alter the voice of the democracy. Yet, so we are here today.
I shall make my point and then I will happily take my noble friend’s point.
On this day, Egypt votes for a new president. The Muslim Brotherhood has recently constructed the Egyptian constitution. Imagine if it had said, “We will have a constitution in which the primary House, which we control, will give us the right to appoint who was in the second Chamber”. Would we not have declared that to be a democratic outrage? Yet we are replicating that precise position here today. I give way to my noble friend.
You are a placeman.
I am a placeman, fair enough. My noble friend said, with emphasis, that we are a creature of the Executive. I ask him then, what he makes of the following statistics. In the 13 years of the Blair Government, the Commons defeated the Executive six times. In the same 13 years, this place defeated the Government 528 times. In the coalition period, the Commons has not yet defeated the Government, except on a debate which had no legislative purport; and we have defeated the Government 48 times. It does not sound to me as if it is we who are the creatures of the Executive.
I will come on to my noble friend’s point in a moment, except to say this. The question is not what we do; the question is how we are created. We are created here with a balance in this place that reflects the balance that the Executive enjoy in the other. I will come on to my noble friend’s point, but time is relatively limited, as we were advised, so allow me to make a bit of progress.
The noble Lord made a highly offensive remark just now and I would like to challenge it. He said that some of us were here because our ancestors had slept with a queen. I am the second Lord Trefgarne; my father was the first Lord Trefgarne. He was a Liberal MP.
He came here by an act of patronage, then, which is the point I was seeking to make.
Let me cite some statistics that may illustrate the point. Despite all the arguments made about primacy, et cetera, all the arguments made that we have to work out the new relationship, here are the figures. The House of Lords Library tells me that there are 71 bicameral legislatures around the world of which, leaving aside the micro-nations in the Caribbean whose constitutions were written by us to reflect ours, only seven are not elected second Chambers, seven have no connection with democracy, and seven are appointed, as we are—leaving aside Great Britain. One of them, for reasons that utterly perplex me, is Canada. But the other six may give us cause to pause for a moment. They do not include great democracies. They are Belarus, Bahrain, Yemen, Oman, Jordan and Lesotho. That is the company we keep. Those are not great defenders of democracy. How is it that in every other legislature, all of them with elected second Chambers, issues of primacy, the issues which hold up people’s agreement with democratic reform in this place, are not great problems?
Here is the reason why it is said that we do not have to observe the principles of democracy. My noble friend alluded to it a moment ago. It is because, apparently, it works—in that curious, untidy, rather British way, nevertheless, it works. And if it ain’t broke, don’t fix it. It does not work. There are two functions of a second Chamber. The first is to revise and the second is to hold the Executive to account. The first of those we do rather well. We are graciously permitted to follow along with a gilded poop-scoop, clearing up the mess behind the elephant at the other end of the Corridor, but when it comes to stopping the elephant doing things, when it comes to turning it round, when it comes to delaying it on the really big things that matter, we do not succeed. How can we challenge the Executive on big things when we are a creature of the Executive?
I do not believe that if we had had a reformed, democratic second Chamber, we would have had the poll tax, but we did. I do not believe that we would have gone to war in Iraq either, but we did. The last time that I said that, there was much twittering saying, good heavens, should a second Chamber have the right to say whether a nation goes to war? Yes it should. I see no problem with that. There is no problem with the Senate in America. That has not stopped America going to war. There is no problem with the Senate in France, one of our closest and immediate allies in Libya and which put more troops into Bosnia than any other nation and suffered greater casualties.
I will make the point and then I will take the noble Lord’s intervention. There is one nation in Europe which may be insufficiently able to take decisions about military action when it needs to, and that is Germany. The Bundesrat, the second Chamber in Germany, has no say over going to war. However, there is no reason why a second Chamber should not be asked whether to ratify treaties or whether it is reasonable to go to war. Why is that possible everywhere else in the world but impossible here?
Of course the first Chamber is going to have primacy. That is readily established in every other bicameral system in which there is an elected second Chamber. However, on the issue of whether to go to war, in the United States the President has to get the agreement of both Houses of Congress. Has that seriously prevented the United States going to war? Quite the contrary. This is an issue on which this House, as an elected Chamber, should be able to exercise its rights.
The time has arrived to bring this place up to date. The time has arrived when we have to stop what is not only an anachronism but an undemocratic anachronism. We send our young men out to fight and die and, perhaps worse still, to kill others in the name of democracy but we do not have a democratic second Chamber in this country, as is the case with the vast majority of bicameral systems throughout the world. Why can they cope with democracy but not us? Is our democracy so ineffective and immature and are our institutions so weak that we cannot cope with what they can cope with and we have to resort to the kind of principles that operate in Bahrain and Belarus?
This place is an anachronism and an undemocratic anachronism, and I am in favour of a fully elected second Chamber. However, if the proposition put forward by the committee as a compromise is the best one that we can achieve, I shall happily vote for it. By the way, I also believe that it should be supported by a referendum. The reality is that this is a reform that can no longer wait. Our democracy is in danger. We have to start renewing the democratic structures of this country, and the reform and democratisation of the second Chamber is part of that process. We cannot keep this waiting any longer. We have a proposition; we should take it up and do the business now.
Before the noble Lord sits down, perhaps he can help me on one extremely important point. I think that he referred to the most important element or principle of democracy as the right of the people to elect those who represent them. Rather, is it not the right of the people to remove those who represent them—something for which I believe there is no provision in this Bill?
My Lords, there is a provision in the Bill, although one might argue that a 15-year term is rather long to make that as effective as it should be. I am not claiming that the Bill is perfect—of course I am not. There are things that I would wish to see that are not there, not least that it should be a fully elected second Chamber. I am simply saying that we have an opportunity to reform. You have to choose between keeping this place as it is, which in my view is totally insupportable, or moving towards democratically based reform of the sort proposed by the Bill. The second of those may be a compromise but it is one that I embrace with enthusiasm because it will at least start the process.
My Lords, I am a 1660s placeman and I am very proud to have been in this House to represent my family for such a long time. I shall try hard to keep exasperation out of my voice today but, in my view, the coalition is propelling us towards certain constitutional disaster. The draft Bill will run straight into the sand and I can find very little comfort in the Joint Committee’s report—partly because we have read it all before but also because we have seen that it is a clear expression of the spectrum of discontent and confusion about our present situation and the way forward. However, it covers new ground and I know that a lot of serious people have contributed to it.
Like the noble Baroness, Lady Symons, and the noble Lord, Lord Hennessy, I do not see elections to this House as a necessary route to legitimacy or democracy. Indeed, I am among those reformists who value and cherish the traditions of this House and the practices of our revising Chamber as they are now. They just need to be improved. An increasing number of Peers and MPs think that a Bill advocating the abolition of the present House, or even contemplation of it, is nothing less than madness and perhaps political suicide. MPs recognise that. At a recent 1922 Committee meeting, as many as 40 Back-Bench MPs are said to have opposed it; several PPSs are against elections; and perhaps as many as six Cabinet Ministers have expressed severe reservations about the Bill. Oliver Heald MP, former shadow Secretary of State for Constitutional Affairs, apparently changed his mind after listening to expert witnesses. That is what we want to hear. The Conservative manifesto speaks only of working towards building a consensus, and it is already clear that there is no consensus on this issue.
As we have heard, there are positive reforms that could be enacted at once, building on the work done by the noble Lord, Lord Steel, the noble Baroness, Lady Hayman, and others. They appear in Chapter 5 of the alternative report, on pages 78 to 79, but I have put them in my own order of priority: first, as the noble Baroness, Lady Scott, has already demonstrated, the establishment of a statutory appointments commission well away from Downing Street, which has been recommended for years but patronage still prevails; secondly, ending the hereditary by-elections, the principle having already been removed by the 1999 Act, although the public do not know that we are still electing hereditary Peers; thirdly, cutting the link between the honours system and membership of the House of Lords; fourthly, reducing the size of the House, with a moratorium on new Peers; fifthly, improving the balance of membership with more attention to diversity and the representation of other faiths; and, sixthly, provisions for the retirement and exclusion of Members of the House of Lords. I personally feel that one year’s expenses would be a reasonable offer to older Members of the House who might wish to retire voluntarily.
I do not accept schemes based on attendance because so many of our most valuable independent Peers attend only occasionally. I do not see the point of a constitutional convention proposed in the alternative report, which will only delay reform even further. It cannot be said too often that the coalition still has an opportunity to carry out these reforms now, and it is possible that during the passage of the Bill there may be openings for concessions that would lead to that situation; otherwise we will have an inevitable debacle with the present Bill, which the Joint Committee has shown to be defective, especially on primacy and powers in Clause 2.
When there are already so many urgent matters, as the noble Baroness, Lady Royall, pointed out, why are this Government so keen to squeeze all other legislation into a corner while the juggernaut of reform proceeds over the next two years, dominating time in both Houses? One can foresee colossal blockships ahead, multitudes of amendments, night after night of pure frustration on a greater scale than we have already endured with recent Bills on parliamentary reform. Long before the Parliament Act is invoked, which is still a highly contested issue, there will be havoc and destruction. Morale in this House will sink to its lowest level, as surely it must, if we are talking of the destruction of this Chamber.
Having spoken to one member of the Cabinet last week and indeed attempted to entertain him with teacakes next door, with mixed success, I have tried to read the Government’s mind and have come up with this; Lords reform is the glue that keeps the coalition going. There are enough passionate Liberals to keep it on the list, although many of them disagree. On the Tory side, as we have heard, the 1922 Committee meeting showed that much more trouble is brewing. Public opinion is claimed to be on their side but I have my doubts about that. There has been a surge of opinion in favour of the Lords after amendments to the legal aid, health and other Bills proved to the public that this House is essential to the democratic process.
Abolition would certainly not carry public support in a referendum, and many people will smell a rat if the coalition disguises it as reform. Public attitudes to this House are quite complex and contradictory, as a House of Lords’ Library note makes clear, and a referendum could be very misleading and damaging.
I freely admit that there are some in the Commons who believe that two elected Houses can work together as well as the present ones, and that the existing conventions can endure, but most MPs are thinking about the composition and not the powers of the two Houses, which are bound to collide as they do in the United States. I am not sure that the noble Lord, Lord Ashdown, was right about war-making there.
Finally, the Government understandably are avoiding the question of costs. The noble Lord, Lord Lipsey, and others demonstrated conclusively that the transition to an elected House would cost a lot. The Treasury will hardly advertise such a waste of resources now.
There is an excellent group in this House, led by the noble Lords, Lord Cormack and Lord Norton, that genuinely seeks a compromise on reform and would like us to move now towards an effective rather than an elected Chamber. I again urge the Government to listen to the group, as more and more Members of another place are doing, and to take this last opportunity to drop the Bill or to accept amendments that will lead quickly to a solution and avoid the expensive quagmire that otherwise will be inevitable.
My Lords, I was a member of the Joint Committee and I begin by echoing the compliments paid by the noble Lord, Lord Hennessy, and the noble Baroness, Lady Symons, to the chairman and the clerks. I also signed the alternative report, and I think that between that and the full committee report one finds a devastating critique of the Bill. However, I will not try to cram all my views on all aspects of the report into seven minutes; instead, I will pick one issue. It was one of the two issues that the noble Lord, Lord Richard, acknowledged as being the primary concerns of the Commons. We have concentrated quite a bit on the first question, which is that of the primacy of the Commons. The other is the way in which Members of another place are very nervous about having other elected persons tramping over their patch; they want their constituencies to remain inviolate.
I will focus on that issue because, as so often happens, when I read the report after we had finished—after it had been printed and it was too late to do anything about it—a paragraph jumped out and hit me, and I thought, “That doesn’t quite reflect the evidence we got”. I went and read the evidence and felt that my initial reaction was right. I confess that when we nodded through the paragraph I did not notice the points that I will make now; that was my error. I am referring to paragraph 213, which summarises the evidence that we received from the Australian Senators.
We made a considerable effort to take evidence from Australia because we felt that it might give us a good comparison with what might happen here if we had an elected upper House. It is a Commonwealth country, it operates within a common-law system, and it has an elected upper as well as lower House. We wanted to speak to Australian Senators to hear their views on a number of issues. That of constituencies is dealt with in paragraph 213.
The paragraph starts off properly by referring to the view of a member of the Government of Australia, Senator Stephens, who stated that the people of Australia regarded Members of the House of Representatives as their local representatives and identified very clearly with their Member. The Senator went on to say:
“I will ask Senator Rhiannon to respond to your question about constituencies. I will just explain the Government’s method of dealing with that. As a Member of the Government in the Senate, I am allocated a number of seats that are not held by the Government in the lower House in my state. I look after those constituents who do not have a government representative. Those people might come to me about issues and legislation”.
We should bear in mind the point about the way in which constituencies are allocated to Senators for them to nurse. The Senator then referred to Senator Rhiannon of the Green party, who said that the issue of working with constituents was very important and took up a lot of their time.
There was then a reference to the views of Senator Ronaldson, a member of the opposition Liberal Party, although he kept describing himself as a conservative—I feel that there must have been a simple explanation for that. The report says that he thought that elected Members of the Lords might engage in constituency-type work if in an area with other elected representatives from other parties. What he said was:
“I do not think that you can make the assumption that you will not be engaged in constituency-type work”.
That is putting things a little more strongly. This may be a nuance, but it is a significant nuance. He is quoted as saying that, in terms of elections:
“Senators do not campaign as Senators. They campaign for one of the lower House Members of their own party in a marginal seat, or … against a marginal lower House Member from another party”.
On this point, it would be good to look at Senator Ronaldson’s comment. He was asked a question by Eleanor Laing from another place:
“I think that I am right in saying, Senator Ronaldson, that you said that we should not assume that Members of the upper House will not be involved in constituency work. Does that also mean that they campaign in constituencies? Could we explore a little further what happens on the ground … Is it normal for Members of both Houses to be campaigning in a constituency all the time?”.
Senator Ronaldson replied:
“The Senators do not campaign as Senators. They campaign for one of the lower House Members of their own party in a marginal seat, or they vigorously campaign against a marginal lower House Member from another party. Senator Stephens talked about arrangements where we, as parties, will look after various seats. They are described by the Conservative Party as patron Senators. I am patron Senator for a number of seats, some of which are winnable, including one that I very much hope we will win and then become the Government. Senator Stephens will be similarly campaigning in Conservative seats to ensure the election of a new Labor Member or to support the incumbent Labor Member”.
The picture that comes from the passages that I have quoted very clearly shows that Senators are heavily involved in political work in areas. They are quite obviously put by their political party into areas where the party does not have a Member and hopes very much to get one, and they are engaged in campaigning not just during elections but all the time throughout the area. I am bringing this out so that Members of another place can get a clearer picture of what might happen when this comes. I am not sure that we should be saying that it ought not to happen.
I must say that the provisions that the report suggests for limiting the finances available to Members of the elected upper House with regard to constituency work are unfair and unworkable. They are unfair because they will mean that a rich elected Lord or Senator will be able to finance an office and have an advantage over those who cannot. A person may not have an allowance for an office, but parties will make offices available, and I am sure that political parties will make sure that newly elected Members of the upper House work just as hard as their Australian counterparts in campaigning all the time, especially to undermine opposition Members holding seats in their patch.
My Lords, I congratulate my noble friend Lord Richard and his committee on the work they have done, even if I dissent from some of their conclusions. We have already reached the point in the debate when everything has been said, but perhaps not yet by everybody.
If we had had reform in 1997 or 2001, I would have been happy to stand for election to this House. In fact, I would have preferred to be an elected Member of this House, although I think it is a privilege to be here anyway, and I appreciate it. I have always believed in an elected second Chamber. When the right reverend Prelate spoke earlier, he said that we do not have too much by way of party politics. Although the Whips may not have many sanctions, and although we have Cross-Benchers who are not subject to discipline, the fact is that we have party politics pouring out of our ears here. We get a Whip every week, we have three-line Whips and anybody who says that there are no party politics here does not understand the way this place works. Without party politics, the Government could not get their business through. So let us be clear, we are talking about a House that is political—party-political in the main—that exists to get the Government’s business through or to dissent and hold the Government in check.
I welcome the fact that the Joint Committee report supported elections. That is the fundamental point about what it did. Of course, the Bill has many flaws, and I want to deal with them in a moment or two. Clause 2 is one of them. I have also read the alternative report with interest; I spent much of yesterday doing that. While I agree with parts of it, there is a fundamental point that is inimical to the thrust of policy. It says:
“We believe there is an unbridgeable gap between an elected House of Lords and the primacy of the House of Commons”.
I contest that absolutely. I do not think there is an unbridgeable gap; I think that gap can be managed and dealt with.
Public opinion is not terribly interested in this debate, except for a small element of the public and the media who will think that we are doing ourselves and the country a disservice if we do not move forward towards reform. However, I have talked at public meetings—mainly Labour Party and Fabian meetings—all over the country over the years, and with one exception they all supported an elected House. I will be honest and admit that I went to speak to some students in Cambridge. I took a straw poll before I started and about 60 per cent wanted an appointed House. By the time I had finished, 90 per cent wanted an appointed House. Well, I did my best. However, the rest of the meetings and indeed most of the people I speak to all think it absurd that we do not have an elected House.
The key issues are clearly accountability, elections and the primacy of the Commons. Yes, I support elections, at least partly because of accountability. Of course, as the alternative report says—and the Joint Committee report disagrees—anybody elected will have to do some constituency casework. I do not see how one can apply to be selected in a local constituency and say, “I am not going to do any work for local voters”. It is untenable; it just cannot be done. None of us would be selected if we applied on that basis. Of course there has to be casework, and I am pleased that the alternative report actually says that. It says:
“Elections are, in themselves, principal methods of accountability. A candidate stands for election, and if elected, is held accountable for the platform and proposals on which they stood”.
I campaigned very hard for the Labour Party in the last elections and I was happy to support the manifesto on which I was door-knocking for Labour candidates, including our commitment to an elected second Chamber.
I am not happy about being elected once for 15 years. It seems to undermine the basic principle of accountability. Accountability is not just how one gets there in the first place; it is also being accountable for the decisions one makes, the votes one casts and the positions one takes. Quite frankly, I sometimes say to my friends and others, “I vote on issues that affect your lives and the lives of other people, yet I am not answerable to anybody”. If anybody asks me why I voted in a particular way, I do not have to justify myself; I can just say, “Because I am here”. Of course, I do not take that attitude, but that is the position we are in.
A point that has not been made so far is that having a basis in a constituency makes a politician a different sort of person. Elected politicians get their sustenance, at least in part, from engaging with their constituency, maybe doing casework, dealing with their local parties and all the other organisations that lobby an elected politician. It seems to me that being under that sort of pressure makes one a different sort of person. Quite a few Members of this House have been elected and they understand that; others have not and make a fist of it. But some do not, and I think it is an important point.
I remember that there was a by-election in south London while the House was sitting and I spent the day tramping the streets knocking on doors. I got an earful on housing, transport, social security, planning, education, the NHS, et cetera. Unless we as individuals go out and canvass in elections, we do not get that earful from voters, and there is nothing healthier in a democracy than hearing what voters have to say—even if they are saying to us, “We will vote you out if we do not like it”.
Of course I believe, as everybody else does, in the primacy of the Commons. Individually elected Members of the second Chamber would be able to assert themselves a bit more. If I were elected, I certainly would have more confidence to go to the Labour Party conference and say my piece; because I am not elected, I feel constrained from doing so.
I worry about the idea of a constitutional convention, unless there is a time limit of about a year. I fear it is a recipe for long delays and there are other ways of achieving such ends—but the point has been made already. One of the strengths of the Joint Committee’s report is the idea of a concordat between the two Houses. Work on that could start quickly. I very much welcome the detailed suggestions in the report on the idea of a concordat as regards the conventions.
I also am advised by people who know more about this than I do that the Parliament Act could be strengthened to deal with secondary legislation. It could work whether legislation starts in this House or in the Commons and would enable the Commons to retain its primacy.
Finally, reference has been made to Erskine May but, for all its strengths as a document and a tome on parliamentary procedure, it is not a constitutional document. It is a treatise on law, privileges, proceedings and usage of Parliament. That is made very clear in the alternative report. Ultimately, I hope that reform will not be based on the views of this House. I hope that it will come from where it should start, the Commons, and that, if the Commons makes that decision, we will give it our support.
My Lords, I am grateful to the noble Lord, Lord Richard, and members of the committee for their report, but more particularly I am grateful to the members of the committee that produced the excellent alternative report. The noble Lord, Lord Ashdown, said that democracy is in trouble or danger, I think because of the lack of power, or the weaknesses, of this House. I should like to say to him that democracy and Parliament are in trouble because, over the years, we have given away so many powers to the European Union. That is why our democracy is in danger. It is not because of any shortcomings of this House. Perhaps I may remind your Lordships that, over the years I have been here, we have largely neutered Parliament by giving away powers of immigration, employment, social policy, trade, agriculture, fisheries and energy—to name just the most obvious.
I recently asked a Question for Written Answer about the Budget put forward by the Government when they said that they were going to increase the price of alcohol in supermarkets. I asked,
“whether their proposal for minimum pricing on alcohol is compliant with European Union law”.
The Written Answer given by the noble Lord, Lord Henley, was:
“The Government are currently in discussions with the EU Commission on this issue”.—[Official Report, 23/4/12; col. WA 292.]
That is where we have got to. Parliament, whether it is the House of Commons or this House, cannot even decide the price of drink in this country without going to members of the Commission in Brussels to tell us what we can or cannot do.
Before putting my name down to speak, I asked myself why there is all the fuss. Arguing about the reform of the Lords sometimes seems like two bald men arguing over a comb. It is just not worth it. Then I reminded myself that, over the past two years, all recent opinion polls have shown that a great majority of the people of this country want a referendum on our membership of the European Union. I was also encouraged by a poll in the Sun the other day that showed that UKIP has recently overtaken the Liberal Democrats as the third most popular party in the country. After people in this country have been given the right to vote in a referendum on membership of the EU, Parliament will get its powers back. Therefore, discussing the reform of the House of Lords is valuable, and I am delighted that we have the opportunity to do so today.
I am more attracted by the alternative report than by the Joint Committee’s report. I do not think that the alternative report should be spoken of as a minority report. Looking at the figures, it seems that, excluding the chairman, the alternative report was produced by exactly half the members of the committee; so it has, to my mind at least, at least equal validity with that of the main committee. I am quite surprised that some of those who produced the alternative report felt able to sign the committee’s report at all, given the list in the alternative report of the fundamental areas on which they differed from the committee’s report.
On page 33, the report lists:
“Primacy … Electoral mandate … Powers … Electoral democracy … Constituency issues … Funding limits … Ministerial voting … Transition”.
On all these points the alternative report argues persuasively against the conclusions of the committee. I hope very much that we will not have to waste a lot of valuable time vetting the Deputy Prime Minister’s Bill, but if we do, this House owes a vote of thanks to the members of the committee who produced the alternative report—the noble Baroness, Lady Symons, and others—who have given a lot of time to producing this valuable document. I support its conclusions and the recommendations for incremental reform based on the Bill of the noble Lord, Lord Steel, and for the establishment of,
“a new Constitutional Convention to consider the next steps”.
In preparing for this debate, I looked back to the 1911 debate in this House on the introduction of the Parliament Act, which was held on 10 August 1911, two days before the beginning of the grouse-shooting season. My grandfather led the opposition to that Bill as leader of the so-called “die-hards” or “last ditchers”. I realise of course that the noble Baroness, Lady Symons, the noble Lord, Lord Norton, and the others who produced the alternative report would baulk or recoil at the thought of being called “last ditchers” or “die-hards”, but I hope the one thing they will share with my grandfather is the conviction to stand up for their beliefs. I will certainly stand with them if the battle is ever joined.
My Lords, I am delighted to follow the noble Lord, Lord Willoughby de Broke, for two reasons. One is that he very properly paid a compliment to the alternative report, and—in declaring an interest as the co-chairman of the Campaign for an Effective Second Chamber, to which the noble Earl, Lord Sandwich, referred—I can say that, from moneys subscribed by Members of your Lordships’ House and coming from nowhere else, we have been able to fund the publication in a permanent form of this admirable document. There are copies in the Cloakroom, the Library and all the Whips’ offices, and any Member of the House who has difficulty in obtaining one has only to ask me or the noble Baroness, Lady Symons, and it will be presented to them; in her case, it will be autographed.
The other reason I am delighted to follow the noble Lord, Lord Willoughby de Broke, is this. He referred to the part his grandfather played in those momentous days in 1911. That gives me an opportunity to remind your Lordships’ House that we often talk as if nothing has happened since then. How ridiculous that is. This House has altered more during the reign of Her Gracious Majesty Queen Elizabeth II than almost any other institution in this country. When the Queen came to the throne, there were no women in this House, and there were no life Peers. I remind your Lordships that it was a Conservative Government who produced the legislation which led to the advent of women Peers and life Peers.
Then we had that other momentous change at a time when I was privileged to lead on constitutional affairs in another place, when the Government of Mr Blair decided on a mass expulsion of hereditary Peers. I was unhappy about the way that was done, but it has altered your Lordships’ House beyond recognition. I might say in parenthesis that if the noble Baroness, Lady Thatcher, when she was Prime Minister, had only accepted a Bill I introduced in another place in 1984 which would have cut down the number of hereditary Peers—they would have elected so many of their number at the beginning of each Parliament—we might not have had the traumas of 1997 to 1999, but that is another story.
We are now debating the report of the noble Lord, Lord Richard, on the draft Bill that was produced by the Government almost a year ago. We all owe the noble Lord and his colleagues on the committee a great debt of gratitude. However, he very honestly said that his committee was constrained, dealing not with a clean sheet of paper but with a draft Bill. He decreed, quite rightly, that that was what they had to concentrate on, which is one reason why the noble Baroness, Lady Symons, and others decided that they wanted to produce a more far-reaching report, for which we are very much in their debt.
That the noble Lord, Lord Richard, and his committee were very constrained was underlined by my noble friend Lord Norton of Louth, who talked about going back to first principles. The committee had no opportunity to do that. It was dealing with a document and a premise that were essentially flawed—the premise that you could maintain the supremacy of the House of Commons if you had two elected Chambers. The committee of the noble Lord, Lord Richard, drove a coach and horses through Clause 2 and made it quite plain that that just was not the case.
One therefore has to face up to the question of what the relationship between the two Houses is to be. Here again was the flawed premise, because, in constitutional matters, form should follow function. That is why the noble Baroness has suggested in the report that she and her colleagues have produced that there should be a constitutional convention to look at first principles, to look at function and then to determine form. We are asked to agree to form without regard to function, which is wrong. It is illustrated particularly in that—I must choose my words with moderation and care; I would have said “fatuous”—strange proposal that there should be a hybrid House.
What happens in a hybrid House if you have 20 per cent of the Members appointed and the others elected? You have two categories, two classes, of Member. As the noble Lord, Lord Kerr, pointed out at a meeting that I attended only last week—and I made the point in my own evidence to the committee—if you have a situation where the non-elected 20 per cent carry the day, you have the makings of a constitutional crisis if the Bill is important. If you recognised the validity of that proposition and therefore had a 100 per cent elected House, you would do away at a stroke with that valuable ingredient in your Lordships’ House to which the noble Baroness, Lady Knight of Collingtree, referred in her intervention: independence.
I sat at the other end of the corridor for 40 years. During the whole of that time, we had virtually no independent Members elected to the House of Commons. There were those who bore the label, but it was either because there had been some constituency spat—sometimes within the political party concerned, as in one of the Welsh seats; I think that it was Ebbw Vale—or because there had been a local issue such as Wyre Forest and the Kidderminster hospital, but there was no phalanx of independent Members. So even if those who are here because of their illustrious careers in the Foreign Service, the Civil Service and all the rest of it sought to stand for election, which many of them would believe was not the right and proper thing to do in a political contest, they would not get here anyhow.
What if one values a House with an independent group of experts? As I speak now, I look across and see the noble and learned Lord, Lord Morris—our experts do not all sit on the Cross Benches. The noble Lord, Lord Winston, informs every debate in which he takes part in this House with his superb knowledge. I may not always agree with what he says, but, by Jove, he enriches the place by his presence. You would not get that in the sort of assembly that would result from a cobbled-together Bill such as we are now threatened with, and I hope that it will not come to pass.
In her speech, the noble Baroness, Lady Scott of Needham Market, said that we were suffering from wear and tear—some of us more than others perhaps. But she is completely right. This House needs reform. However, as others have pointed out, there is a Bill, the so-called Steel Bill, which addresses most if not all of these issues and on which I believe that it would be possible to have consensus. We could reform this House in a way that would be acceptable and much less expensive than the elected House with which we are now threatened. I urge the Government to consider it very carefully and consider the convention suggested by the noble Baroness, Lady Symons. It merits serious and sympathetic consideration.
We are talking about the British constitution. We are not talking about something that should be the plaything of any particular political personality or something that should be regarded, as someone said, as the glue that holds the coalition together. We are talking about the future of our country and there are other things that could be done in the future. The noble Lord, Lord Low of Dalston, who will address us shortly, has an idea for electoral colleges, which he will explain, which has some merit and is worth serious consideration and debate.
I end on this note. I have two points. When he gave evidence to the Joint Committee, the Clerk of the House of Commons said that at the moment the House of Commons and the House of Lords are complementary to each other. If we had two elected Chambers, they would be in competition with each other. If we are to move to that undesirable state, surely the people must have the ultimate decision. How fatuous to wave the flag of democracy but say, “You can’t have a vote on it”. That is the ultimate insult to the British people, and up with that we should not put.
My Lords, it is a pleasure to follow the noble Lord, Lord Cormack. The congruence of our views on Lords reform are long-standing and determined—and as a long-standing and determined opponent of an elected second Chamber, I have difficulty with many of the conclusions and recommendations in this report. However, that in no way diminishes my admiration for the extraordinary achievement of the Joint Committee and its chairman, my noble friend Lord Richard. The fruits of nine months’ hard work are impressive. As a piece of pre-legislative scrutiny, it fulfils the requirements of rigour, comprehensiveness, focus, careful argument and a clarity that contrasts starkly with the draft Bill and the White Paper into which it inquired. I would not be surprised if the two hefty volumes of oral and written evidence stand for a long time as the best repository of informed opinion on this hugely important constitutional issue.
The immediate conclusion that I draw from reading the report is that the draft Bill as a vehicle for reforming your Lordships' House is not fit for purpose. As the emergence of a well-reasoned alternative report confirms, the conclusions and the recommendations reached by a bare majority of the committee members reflect a glaring lack of consensus. In short, the draft Bill will just not do. It is obvious from the start, as many have pointed out, that it is fatally flawed. The absurdity of the assertions made in Clause 2 relating to the preservation of the primacy of the House of Commons undermines the very premise on which the drafters of this Bill sought to build their case for an all or partially elected Chamber.
To me, the logic is that, in the face of this total lack of consensus on how to proceed, we should not proceed on the basis of the draft Bill, the White Paper or the recommendations of the report before us. Has not the Prime Minister told us more than once that reform of this House must be achieved by consensus? Or has he changed his mind? Am I naive in suggesting that the Government’s threat to use the Parliament Act makes an utter nonsense of his call to reform by consensus? Or—as the noble Lord the Leader of the House intimated earlier—does he intend to exclude the opinion of your Lordships' House from such a consensus? To my mind, that would be outrageous. That said, I could scarcely blame the Prime Minister if he has changed his mind, since it must now be blindingly obvious even to him that consensus is unreachable on any reform remotely resembling that so dear to the heart of his Deputy Prime Minister. He has only to listen to a substantial bloc of his own Commons Back-Benchers to recognise that.
In preparing a necessarily short speech I had difficulty in deciding on which of the report’s many arguments, conclusions, options and recommendations I might focus. So, mindful that there are more debates to come in the new Session, I decided to focus on the overall message that I received from a first reading of this report. I recognise that others will have received a different message, but the message to me is that if the coalition is still hell-bent on abolishing this House and replacing it with an all or partially elected Senate, it will have to go back to the drawing board.
But not just any drawing board. Because the Joint Committee, by its mandate, was restricted to the examination of those subjects covered by the draft Bill and the White Paper, it had insufficient scope for the kind of broad consideration of the functions and powers of both Houses, without which the contribution of a reform of the Lords to the enhancement of government simply cannot be devised. The authors of the alternative report state that while they agree with the findings of the Joint Committee's report as a whole, the content and constitutional significance of the draft Bill needs consideration in a much broader context. That, they claim, is best achieved through a constitutional convention, which would consider the next steps on further Lords reform and any consequential impact on the Commons and on Parliament as a whole. That surely is the right way to go, and I warmly support it.
Of course defenders of the draft Bill, or of a hastily amended version of it, will cry, “Delaying tactics!”. So be it. The Government have had their chance and have blown it with this deeply flawed draft Bill. They now have no right to impede the efforts of those committed to finding, through a truly fit-for-purpose mechanism, a more comprehensive and workable solution.
I end with three short points. First, I deplore the petty-mindedness of the Government in their attitude to the Bill brought forward by the noble Lord, Lord Steel of Aikwood. They cry, “There is really nothing in it”, as if it was not on the Conservative Benches here that the evisceration of the Bill was plotted. How cynical can you get? I hope that rumours that there may be some second thinking on that are well-founded.
My penultimate point: whatever the method used in a further attempt at consensus—through a constitutional convention, as I would plead; or without one, which I would strongly warn against—the resulting agreement, if any, must, imperatively, be put to the people for approval through a referendum. It is far too significant a constitutional matter to be decided otherwise. Let me be blunt about this. The Government are opposing a referendum for short-term political advantage, not for the long-term betterment of government, which is what the people deserve and on which their voice should be heard.
My third and final point: how on earth could the coalition Government get the ordering of their priorities so wrong? Is it not absurd that the Prime Minister should bow to his deputy's insistence that Parliament invite upon itself a lengthy and acrimonious period of legislation on an issue that strikes no chord with a public who are rightly demanding that the Government and Parliament focus urgently on the double-dip recession, on unemployment, on housing, on schools, on health, on welfare, on pensions, on the Scottish question and a host of other life-changing concerns? It is our duty to make the Government think again.
My Lords, it is a privilege to follow such a weighty and impressive speech. First, I congratulate the noble Lord, Lord Richard, and his committee on having produced a comprehensive analysis of the issues and arguments in, all things considered, a remarkably short space of time given the amount of work undertaken. It will be an invaluable resource in the debates to come. I also congratulate the authors of the alternative report on having produced a trenchant critique and a number of valuable ideas that represent a constructive contribution to taking the debate forward.
I will make two points. The issues need to be divided into two: elections and the rest. My contention—I think many would agree with it—is that progress on the rest has been hamstrung by the absence of any agreement about elections and the desire in some quarters to get agreement to a comprehensive package that contained them. Indeed, some insist that there cannot be a package that does not contain them. I want to suggest a way forward around which a consensus might be built. As I say, for this to happen, the issues must be divided in two.
First, there is already a lot of consensus around a number of changes that need to be made—short of elections. We have heard about them in a number of speeches this afternoon: reduction in the size of the House, the need for a cost-neutral retirement scheme, an end to hereditary by-elections and a proper statutory basis for the Appointments Commission, as well as the reforms contained in the Bill of the noble Lord, Lord Steel of Aikwood. That has already passed this House and simply awaits the imprimatur of the Commons. A package of reforms could be put together around these changes in this Parliament which would attract widespread support. Even if nothing more were done, that would constitute a legacy of House of Lords reform that the coalition could point to as a substantial achievement. I am pleased to see that the alternative report agrees with this. It is only the vain quest for the holy grail of a final solution which has prevented agreement on such a package in the past 10 years. Up to this point, I am on all fours with the remarks of the noble Lord, Lord Hennessy.
Secondly, more can be done with a much broader base of support than can be mobilised for elections as currently proposed. That may take a little longer. As regards the final solution, I do not believe that this can be arrived at until the shape of the United Kingdom has been decided. I am against elections, at least of the kind currently proposed. I will not rehearse the arguments. Your Lordships have heard them far too often to make that necessary. Suffice it to say, I am in accord with Professor Sir John Baker, who is cited by the Joint Committee as saying that the House’s essential scrutiny role,
“does not require the sanction of the ballot box to give it legitimacy any more than the judicial role, because the House of Commons can insist on the last word”.
In other words, he drew attention to the House’s complementary but different role as a revising Chamber.
Of course, if you do not have elections there is still the question of patronage to deal with, as the noble Baroness, Lady Scott, reminded us. With acknowledgement to the noble Lord, Lord Cormack, for the trailer, I favour a system of appointments by an Appointments Commission as at present, but greatly strengthened by supporting it with a system of nominations from a series of electoral colleges representing the different branches of civil society. In other words, it would be a form of indirect election. I was pleased to see that both the Joint Committee and the alternative report called for further work to be done on this.
The noble Lord, Lord Ashdown, said that only seven countries do not elect their second Chambers. According to the Joint Committee, 34 second Chambers are indirectly elected and 16 of them wholly so. This would not be election as conceived of by those who favour elections, but it would represent a significant democratisation of the appointments process. It would retain the emphasis on expertise, experience and distinction in their field by which those who do not favour elections set such store.
Of course, indirect election can take a number of forms. Oliver Heald MP, a member of the Joint Committee and chairman of the Society of Conservative Lawyers, issued a pamphlet through that society to coincide with the publication of the Joint Committee’s report. In that, he proposed a secondary mandate system in which each party would publish a list of its candidates and gain seats in the House of Lords in exact proportion to the share of the electorate’s support won in the general election. There were at least four submissions to the Joint Committee proposing a system of indirect election or something like that. I say nothing of my own humble contribution. Dr Alex Reid of Cambridge proposed a system in which the 80 per cent elected element of the House would be indirectly elected via political parties. John Smith of Stamford, Lincolnshire, submitted a well worked out scheme of indirect election from constituencies of expertise with a general college for those not affiliated to any particular constituency and a parliamentary college for politicians. Finally, Mr Martin Wright would have the colleges that represent constituencies of expertise make the nominations but elections would be by members of the general public. They would vote in the college of their choice for the candidates of their choice on the basis of statements or CVs circulated for the purpose.
It seems that there is much merit in the alternative report’s suggestion of a constitutional convention to go into more detail than the Joint Committee possibly could on these different proposals, as well as the multitude of other issues identified by the alternative report. I was sorry that the noble Lord, Lord Richard, poured such scorn on the idea of a constitutional convention. I thought that the alternative report made the case quite well that a good deal more work needed to be done to bottom these issues out.
My Lords, I apologise in advance for lowering the very high tone set just now by the noble Lord, Lord Low, and the speakers who preceded him. I will stick to my special subject, as the House’s resident geek—namely, the cost of what is proposed. Some noble Lords might not think that that is the kind of thing we should debate this afternoon but I can assure the House that it matters a good deal to the people out there who have to bear the cost.
The Joint Committee puts no cost on its proposals, although my noble friend Lord Richard said in presenting them that we will not get a second Chamber for free. That is one thing that he said that we can certainly all agree with. However, the alternative report produced a costing—mine. This is the cost of the Government’s original proposals drawn from my evidence to the Joint Committee, although the alternative report omits the six footnotes and 13 detailed references attached to that evidence which set out the assumptions that underlie it. The headline numbers are that the extra costs of the reforms will be, in year 1, £177 million, and over the five-year Parliament of 2015-20, £433 million. To put that in a more down-to-earth way, it is the equivalent of 80,000 hip replacements—a comparison that should appeal to Members of your Lordships’ House—or a year’s salary for 13,000 nurses.
There has been some confusion over these costings in the press. They are what they were billed to be or what it says on the tin: costings of the Government’s original proposals, given by me in evidence to my noble friend Lord Richard. They are not and could not be costings of my noble friend’s proposals, simply because that report only became available last Monday. As the committee failed to give costings—because the Government failed to give them—someone has to fill the gap, and I will have a go. I am working with the assistance of the Library to do a costing of the Joint Committee’s proposals.
I say two things about that. First, it is likely to come out a little lower than the costings I have already done of the Government’s proposals. Secondly, it will come out lower because some of the Joint Committee’s recommendations seem to be wholly unrealistic. Under them, you would have one lot of new Peers with salaries and support allowances and another lot—the transitional Peers—who would just get our current allowances. Whatever happened to the rate for the job? If you take out that assumption, the Joint Committee proposals will cost more than the Government’s proposals, simply because it proposes more elected and new appointed Peers.
Mark Harper, the constitutional affairs Minister, described my costings as “speculative”. In one sense, Mr Harper is right, as they depend on assumptions about what precisely will be in the Bill when it eventually appears and, indeed, on assumptions as to how the Bill’s proceedings will be implemented in practice. To that extent, the costings are speculative, as indeed will be the Government’s own costings, which he has promised to publish, belatedly, if and when the Government publish a Bill. The costings of every single policy adopted by this House and Parliament are speculative, in the sense that you cannot know exactly what will happen until it has happened. What a convenient brush-off the word “speculative” represents. Anyone who knows the first thing about government will know that cost estimates would have had to be given to the ministerial committee considering the White Paper, to the Deputy Prime Minister and the Prime Minister. Why should we not see them too, as those who have to legislate about those proposals?
Here is a thought for your Lordships. Let us suppose that the costings given to the ministerial committee, the Deputy Prime Minister and the Prime Minister had shown that the new House would cost not more, as it will, but less. Does anyone seriously suppose that that would not have been broadcast from the rooftops, with the Government showing how marvellously they were economising with our politics with their proposal? Of course they would. They have decided not to tell us the cost for one reason and one reason only. The cost of these proposals is an Exocet heading straight for the engine room of their ship. So they hope to manoeuvre, zig and zag, this way and that to avoid the impact, at least until their ship is a bit nearer port than it is today. That is of course why they resist a referendum, as recommended by the Richard committee, as they know that the chances of the public voting yes to reform will melt like a snowball in the midsummer sun once people understand the bill that they will have to pay for this folly. In this age of austerity, does anyone seriously believe that the public will agree to hand huge chunks of their hard-earned money to a whole new gang of second-rate elected politicians?
Let me issue this challenge to the Minister. I have published my costings—let us have yours. Opinion is free, but facts are sacred and, in this day and age, ought to be freely available for all of us to debate. Unless the Minister, in answering this debate, agrees to this, he will confirm what the whole House in its heart knows: this is a cover-up, which disgraces those who have perpetrated it.
My Lords, I, too, was a member of the Joint Select Committee and I, too, pay tribute to the noble Lord, Lord Richard, for his chairmanship. As is self-evident from the report, his task was a difficult one, which he fulfilled with skill, courtesy and balance. I pay tribute, too, to the clerks who served our committee, who had an enormously difficult and voluminous task; a huge volume of work was theirs, and they discharged it with skill and efficiency.
Very few members of the Joint Select Committee agreed with everything in the report. Indeed, a number of us, including me, agreed to an alternative report—but, again, views were not unanimous. May I say, in parenthesis, that your Lordships may wish to consider the arrangements for widely held dissident views on a Select Committee to be more easily expressed than is at present the case? But let that be a matter for another day.
I turn to the substance of the issues before your Lordships as considered and reported on. The essential proposition set out in the draft Bill, supported by the White Paper and by the right honourable gentleman, the Deputy Prime Minister, when he gave evidence, is that there should be a fundamental change to how Members of the upper Chamber are selected while the powers and role remain unchanged. The introduction of a process of election is said to be required to meet a perceived democratic deficit. As I shall say later, I do not necessarily disagree with the concept of a properly elected Senate, but I most strongly disagree that that can and should be achieved while the role and powers remain unaltered.
I believe with complete conviction that if we move to a wholly or largely elected second Chamber, the new House will straightaway use its existing powers more aggressively and very soon be agitating for more. The Parliament Act 1949, which reduced allowable delay from two years to one, as originally proposed in 1911, will no doubt be an early target. Indeed, the 1911 Act itself, according to some authorities, may well become inapplicable, given its preamble, with which your Lordships will be familiar, on the temporary nature of its provisions pending a properly elected House of Lords.
Furthermore, the conventions, which are not part of statute law but which form such an important part of the present relationship between our two Houses, are likewise very soon to come under pressure. I see the Salisbury convention, for example, being the first of these to be questioned and, perhaps, abandoned. So I have to say to my noble friend and your Lordships that with the Bill as drafted primacy will move measurably away from the House of Commons to the new Senate, notwithstanding the aspirations of Clause 2 which, in the committee’s view, would be quite ineffective.
I turn to the intervention of the new Senators—the most likely title for these people, it would seem—in constituency affairs. It will be difficult if not impossible to prevent Senators taking up local issues brought to their attention if they so choose. Frankly, it would be wrong to attempt to do so. Perhaps some modus operandi can be found, but this matter will need to be resolved if friction is not to ensue.
Noble Lords will have observed that both the draft Bill and the Joint Select Committee report anticipate that the new Senate will be chosen by PR, probably some variation of STV. Whatever may be the merits of PR—and the British people were pretty unconvinced when they were asked about this issue last year—it will surely mean that one or more of the smaller parties, such as the Lib Dems, the Greens or even UKIP, or maybe a cocktail of all three, will hold the balance of power in the new House. No doubt that is why my right honourable friend Mr Clegg is so keen on the proposals. Other party leaders, not to mention the electorate, may be less sanguine.
I have previously taken the liberty of detaining your Lordships on the question of the 92 hereditary Peers. My position on that remains unchanged. I agree that if this Bill, for all its shortcomings, were to become law, that would mean the end of the by-elections and eventually the departure of the 92 hereditaries along with the life Peers. However, if the proposed Bill does not reach the statute book and some more limited interim measure is proposed, I would wish to reserve judgment for the present of what my view might be with regard to the by-elections.
I was also an adherent to the alternative report now before your Lordships. I do not agree with all of it, but I agree that the constitutional forum that the alternative report proposes would go a long way to meet the undertaking in the Conservative manifesto that we should seek a consensus. That is surely the right way forward, and a referendum would clearly complete that process, and it is supported by the Joint Select Committee and myself.
I dare say that I am seen as some kind of hereditary dinosaur opposed to all change, but that is not so. I am in favour of what I see as proper reform—namely, a fully elected Senate with full powers perhaps along US lines. This Bill seems to be the worst of all possible worlds, and I hope that it will not reach the statute book.
My Lords, I declare an interest as a supporter of the Campaign for a Democratic Upper House, and as a long-standing member of the Labour Party—a party which, within its DNA, has sought to reform the House of Lords and to move towards an elected second Chamber in this country. That is not to say that I am in agreement with everything that the Campaign for a Democratic Upper House has been saying in this context over the past few weeks and in its submissions, any more than it means that I supported the Government’s White Paper and draft Bill when it first came out. Indeed, when it did I was quite critical in a number of respects, particularly in regard to Clause 2. I was unhappy about the 15-year term and the absence of accountability which I believe this House needs to have introduced.
I have been in this House since 1997, and when I first came in I believed that the House should be reformed. Much as I have come to love the place and the people in it, and to respect the very significant contribution that it makes to society through its work, knowledge and expertise, I have over the years felt the embrace of the House on me to shift my position. The noble Lord, Lord Steel of Aikwood, has left the Chamber, but I have been almost seduced to switch my position by the efforts that he has made with his several Bills. However, I have not shifted it. In that respect, I thank the noble Lord, Lord Richard, and his committee for reaffirming my position.
I want first to say that over the past months I have watched people trooping through the Lobbies who for many years were opposed to what they were voting for in regard to health and social care—and that is what the public see, too. They were people who for many years had fought for benefits, particularly for the disabled, but who were voting in a manner quite contrary to anything I had previously seen. I am thus reaffirmed in the view that the public are entitled to have a say on who is in this House.
I express my gratitude to the noble Lord, Lord Richard, and all the members of his committee for the report which has been produced for us. It has not been an easy task, as we all recognise, but they have moved us forward. This momentum has been under way since the 1990s, and it will not stop. In particular, I am pleased that a majority of them embraced the circumstances in which we, as representatives, cannot resolve this issue and find a consensual approach, and have recommended that the people should decide what should be done with the second Chamber. On that there was, fortunately, a very substantial majority in the committee.
I am pleased that my leader in this House has reaffirmed in the Lords today the Labour Party’s position in favour of a referendum. We indicated that in our manifesto. However, I was disappointed earlier to hear the Leader of the House, when speaking on behalf of the coalition, say that the Government saw no case for it. I hope that the Government are going to reflect on that and change their minds, that that will not become a point of dissent between and within the two Chambers, and that we can move forward and let the people have their say. When they have had their say, it should rest with a House of Commons, whose primacy we want to see maintained, to take a decision on the composition and powers of the House of Lords. That was a big change and is a big step forward, and I thank the committee for it very much indeed. In a sense, if the proposal goes through, the committee will have taken it away from the warring factions, which have so far been unable to move forward on it.
Finally, I want to say something on Clause 2, which I have been very unhappy about. I have long been an advocate of the Government working on codifying our conventions. They have resisted doing that so far, and I have looked at the arguments that they have advanced when they have gone before the committee, but I still believe that those issues need addressing—as do other topics that are still left over. We need a dispute resolution procedure beyond that which has been presented by the Government, and further work on codification or addressing the conventions of the House. When we examine the report which the noble Lord has produced, we see that within it there is an answer to most of the problems which have been presented hitherto by those who are opposed to us shifting on this ground: that the primacy of the Commons would be challenged.
I urge noble Lords to re-read the report because it provides us with a foundation on which we can build in moving forward. It also provides for those, perhaps particularly on the Cross Benches, who are fearful about the possible attack on that primacy from the Lords if we had elections. There is a scheme within it to cover that. I suspect that the minority on the Joint Committee have realised that there is quite a lot in this report, sufficient to have moved them to provide an alternative. The noble Lord, Lord Cormack, has done his best today to make sure that everybody reads it. Again, I urge people to read it fully, because it is a very useful document, although in some areas it does not quite represent the full position.
In conclusion, I will pick up a point from the alternative report. In its executive summary it says that the Government’s Bill “purports” to set out a system of an elected second Chamber that will not challenge the primacy of the Commons, but it fails to do so. I asked noble Lords to ask themselves: why should a Government—indeed, why should the previous Labour Government—whose power depends upon their position in the House of Commons set out to do any such thing to undermine their power and primacy? Why should they do it? Nobody has looked at or answered that question. The simple fact is that the Commons will continue to have their power there. Governments will want that, whether they be Labour, Lib Dem, Conservative or coalition. That is the way they will want it, and they will make sure that the laws of the land are structured so that that primacy is retained, even if they have to change it en route.
I look forward with great interest to seeing where we end up with the Bill, when it comes to us. I look forward, too, to the people taking a decision on this. I will be one of those canvassing and fighting hard to make sure that those people who have the right to make the law are there through the votes cast by people who have to live under those laws. We will then see where we end on the primacy issue. If the Commons come out with a majority in favour of change, as seems likely from the way that the voting has gone within the Joint Committee, this House should be willing to accept it.
My Lords, for those who have the earlier version of the speakers list, perhaps I could explain why I am speaking now. I put my name in last week but, by mistake, it was left out and there is a new version. The noble Lord, Lord Richard, had a difficult task and he has my sympathy. I understand and can see that he approached his chairmanship with thoroughness and sympathy, and he approached it well, but at the end of the day this was clearly a divided committee. As the noble Lords, Lord Willoughby de Broke and Lord Grenfell, pointed out, it is 13 to 12 because one member of the committee, as I understand it, attended hardly any of its sessions. There are therefore almost two versions of the report. I strongly support the alternative report. I commend members of the committee on their impeccable logic, the cogency of their analysis and the conclusions of their report. We have had excellent and convincing speeches today from some of its signatories. I shall make just four points in the time available. Inevitably, I will be somewhat repetitive but there is nothing wrong with that as this debate needs to reflect the overall response of the House.
First, on Clause 2, the committee was unanimous. Indeed, the overwhelming evidence that it received from nearly all the witnesses meant that it could hardly have concluded otherwise. It is pretty devastating. The committee was,
“firmly of the opinion that a wholly or largely elected reformed House will seek to use its powers more assertively, to an extent which cannot be predicted with certainty now”.
It went on:
“We concur with the overwhelming view expressed to us in oral and written evidence that Clause 2 of the draft Bill is not capable in itself of preserving the primacy of the House of Commons”.
It also stated that the possibility of judicial review was “profoundly undesirable” and said:
“The Government’s approach in Clause 2(1)(c) of the Bill … risks judicial intervention”—
“would be a constitutional disaster”.
Those are pretty strong words. Given the unanimous opinion of the Joint Committee, the opinion of most Members of both Houses and all the expert opinion outside Parliament, I cannot see how the Government can bring forward a Bill without a wholesale reconstruction of Clause 2. It would be a travesty of consultation and almost an insult to the parliamentary process to do otherwise. That covers the problem of conflict between the two Houses.
Secondly, I turn to the problem of conflict in the constituencies. Some people have suggested that this would not happen. Here again, the alternative report, half the signatories to which have long experience of elections and being elected, got it right. It says:
“We believe that this is a wholly misplaced notion of the reality of practical politics”.
My noble friend Lord Trimble went into some detail on that today. It is pretty obvious that there will be conflict at the constituency level, not least because in today’s world of the internet and e-mail anyone can put their views forward very quickly, either to their elected MP from the other place or to anyone else that they wish. I simply do not believe that elected Members of this House would not be subjected to large numbers of such e-mails and correspondence.
At the regional level that they will represent—the wider constituency level—there will be many issues that are not related to individual constituency cases but are of great concern to all the constituents, over which there will, frankly, be rivalry between the Members of this House and those of the other House, particularly if they represent different parties. It is obvious that there will be constant conflict then. The Government have attempted to solve this with 15-year terms and no re-election. I cannot emphasise strongly enough that this completely destroys the democratic accountability case on which the Deputy Prime Minister hangs his whole argument. I agree very strongly with the right reverend Prelate the Bishop of Leicester on this point.
I now turn quickly to two points that have not been covered so far. The first concerns who will stand. I find it very difficult to work out who will stand for the alternative House that is being proposed. It certainly will not be those who wish to seek a proper political career. In the other place, one can be re-elected every five years and, if not re-elected for one constituency, can stand in another. Members thus have the opportunity of a long-term political career. At the age of 37, someone who wants a political career will not be very happy to come to this House for 15 years, with no possibility of being re-elected to the other House. Also, if they have proper ministerial ambitions and want to play a part in the policies of the Government to which they hope to belong, those ministerial ambitions will be best satisfied in the other place. Of course, if they stand for this House in the hope that it will lead to a career in the other House, under the proposals they will be prevented by the case that has been put forward. Therefore, I cannot see why people who want a full political career will wish to stand under the present proposals.
Nor can I see those in other professions and occupations—who it is apparently hoped will bring the expertise and specific experiences that many of the Cross-Benchers here now offer—wishing to stand for this place in mid-career. Neither the salaries offered nor the career prospects are very great. If you are 37 or 40 and thinking of coming to this place for 15 years, taking a complete break from your career, what chance will you have of going back to that career after 15 years?
Therefore, it would tend to be rather an elderly House. Most probably, those who do not have political ambitions would think of standing for this House in the late stages of their other careers. They would seek a further few salaried years and perhaps find them interesting. That would be like the Cross-Bench Peers in the present House. However, it would be a House that challenged the primacy of the House of Commons, which the other place strongly opposes, and at much greater cost than the present House, as the noble Lord, Lord Lipsey, pointed out. The electorate will almost certainly dislike that, to put it mildly. I am deeply worried by the thought that this would be an attractive career opportunity for many, and I doubt that any reform would bring the expertise and experience of this House as it stands.
Having listened to the speakers before me, I probably carry most Members with me so far, but in my final point I may have a little more difficulty. While I strongly support the proposals in the Bill of the noble Lord, Lord Steel, and have always done so, and strongly support the additional points made so properly by the noble Baroness, Lady Hayman, which are appropriate for the reform of this House, there is one issue on which I urge a word of caution. I do not think that we have properly addressed it yet. It concerns our most vulnerable point: the size of the House. We have recently adopted proposals for voluntary retirement, which have had a puny—almost minimal—response and will obviously not solve the problem. We need to go further. I do not find at all attractive the suggestion of appointing no more new Members until the grim reaper has played his part and the numbers have come down. It is important that this House is constantly refreshed with new people, new experiences and new expertise. Therefore, we have two options, which we will have to address—that is, retirement on the grounds of either length of service or age, which happens in pretty well every other profession and occupation, including for judges. I believe that we will have to include this in the Steel-Hayman reforms and it is something that we have still to address.
That does not detract at all from my overwhelming view that this House is right to say that the alternative report is the right one, addressing the right issues and making the right point, and that the Government’s proposals therefore remain deeply flawed.
My Lords, I suppose that, like the noble Lord, Lord Brooke of Alverthorpe, I must declare an interest, as I am the newly elected president of the Lloyd George Society. Your Lordships may recall that Lloyd George did not have much of an opinion of this place. Indeed, he said that it was 500 ordinary men, chosen accidentally from among the unemployed. Your Lordships will gather from that that we do not do deference very well in north Wales. It is part of my DNA; I can tell the noble Lord, Lord Brooke, that.
It will not surprise your Lordships to know that in my first election, in West Flintshire in 1964, I campaigned on three principles. The first was a Parliament for Wales; the second was proportional representation; and the third was abolition of the House of Lords. I found a fellow toiler in my friend, colleague and adversary, the late Lord Williams of Mostyn, who came from 20 or 30 miles from my home town and was educated similarly to me. Although we were in different parties, we shared the same values. On past occasions when we debated House of Lords reform, he and I walked almost alone, together, through the “100 per cent elected second Chamber” Lobby. We continued to do so over all that time.
Some three weeks ago I was invited to speak at a dinner of Flintshire County Council, at which I was told not to be too political. You are not allowed to be political at these events where there are lots of people in chains from all the county councils and local councils around. I indulged in a little fantasy. Since the House of Lords is so perfect in many people’s eyes, what would Flintshire County Council look like if it were composed in the same way? Ten of the councillors would be hereditary. Some of my Liberal friends on that county council have admirable sons and grandsons who could inherit their seats. Some 50 would be appointed for life by the local constituency parties. I am sure that they would be very glad to be relieved of the sort of things they are doing at the moment, such as knocking on doors, giving out leaflets and canvassing. Then we would have to think of the others—perhaps the Bishop of St Asaph; the former commanding officer of the Royal Welsh Fusiliers TA; the former commodore of HMS “Rhyl”, and various other people of a similar variety. The suggestion that drew the sharpest intake of breath was that former chief executives of local authorities should be appointed to this body for life.
It is absurd, is it not? I am entirely with the noble Lord, Lord Dubs, on elections. There is nothing wrong with knocking on doors, meeting people and talking to them about their problems or pushing leaflets through doors, as I have said. We on the Liberal Benches are not “too posh to push”. We would welcome elections if they came along.
It is said that this place works, but only because the other place fails. Noble Lords who were present during the final moments of the passage of the legal aid Bill, as I was, will recall that many on the opposition and Cross Benches complained about the lack of time that had been given to that Bill due to the guillotine and programme Motions that had been applied in the other place, which meant that the issues that we discussed at length had not been taken up in the House of Commons at all. This place works only because there is a void that we have to fill. We are the people who are lobbied and have to make changes to hastily introduced legislation.
What we are facing here in opposition to the Bill are the forces of inertia, however it is described. Lloyd George understood and even sympathised with this notion. After all, he had spent six years in coalition with the Tories. He was the Nick Clegg of his day, you might say. He had the Nick Clegg experience. Speaking at the National Liberal Club in 1924, Lloyd George said:
“Toryism undoubtedly makes an appeal to one essential mood of human nature—that of fundamental inertia; and that is sometimes a real human need … every man tends to become a Tory himself when tired, disinclined for exertion, wishing to be left alone, cross with anyone who proposes new efforts, and, may I add, tempted to view the drink traffic with an unusually friendly eye. Toryism makes an inherent and instinctive appeal to very prevalent moods in human nature—contentment with your own lot; indifference to the lot of others, often through ignorance of the conditions or the imagination to realise them; rooted habits and prejudices”.
However, Toryism, as Lloyd George defined it, is just as active on the opposition Benches as it is on these Benches. “Not now”, says the noble Baroness the former Leader of the House, “Not like this”. “Give us a constitutional convention”, others cry—anything except action. Toryism on all sides of the House, said Lloyd George, would, if left alone, do nothing. Liberals would break the soil with the plough.
My Lords, Lloyd George came here. Perhaps the noble Lord does not know that. Anyway, that is by the by.
The so-called reform of the House of Lords—I use “reform” with a degree of irony—has been an intractable question bedevilling those interested in the constitution for more than 100 years. Despite the distinguished membership of the Joint Committee, I have to say with the greatest of respect that the report does not carry the issue any further forward. The problem that the committee had to face was that its terms of reference did not permit it to reach the conclusion—the only conclusion at this time in my opinion—that doing nothing, or practically nothing, was an option.
It is clear from the majority report and the persuasive alternative report that the committee was divided across the parties, within the parties, and between the Houses. In one case, however, the committee’s report is unanimous. It states that,
“a wholly or largely elected reformed House will seek to use its powers more assertively”,
“a more assertive House would not enhance Parliament’s overall role in relation to the … executive”.
Is it likely that the Members of the Commons will meekly vote for losing their acknowledged primacy? The report makes it clear that Clause 2 of the draft Bill is defective and fails to preserve the primacy of the Commons, and insists that it will be impossible to legislate to that effect. If we are to have a major constitutional change, it must be by Act of Parliament and not by the nods and winks of an unwritten convention. The committee was unable to agree on such vital issues as the composition and powers of a changed House—I decline, even here, to say “reformed House”—the method of election, the term of office, the running cost of the House, how the Members should be remunerated, whether they should be Peers, and so on. In fact, we are still where we were a century ago.
In the end, the committee abdicated the need for a firm conclusion by proposing a referendum—a classic case of kicking the issues into the long grass. This is not Switzerland. We do not govern by referenda. We expect our legislators to take on the responsibility of making difficult decisions. A referendum is not an exercise in democracy but a way of passing the buck, which this report proposes to do. My final word on referenda is that no matter how many people vote for a bad idea, it is still a bad idea. The alternative report, acknowledging the committee’s failure to provide a conclusive answer, has suggested the setting up of a constitutional convention. How many have there been in the past on the same topic? However, it must be a properly constituted commission with impartial, non-political, non-party members, with expertise in history and constitutional law who must also have knowledge of the workings of other legislatures. Its members must have ample time to take and consider evidence and not be constrained by the social engineering ambitions of professional politicians who are only too well aware of the transient nature of their individual influence, which is subject to the whim of the electorate.
In all the contradictory thinking displayed by the two reports, one thing is clear. This Parliament, with just three years to run at most, has absolutely no authority, despite the coalition agreement, even to attempt to impose a permanent change to our constitution for generations to come. I await to see whether the Government will be rash enough to introduce the defective House of Lords Reform Bill, which has received absolutely no unequivocal support from the committee set up to consider it—nor, it should be said, from most of the media, from many politicians of all parties, and in particular from the public. I predict an exceedingly rough ride in both Houses and outside Parliament if they do so. I was going to say “if they are stupid enough to do so” but I had better not use that word, especially as Members of the House of Commons are present.
My Lords, the answer to my noble friend’s question to the noble Lord, Lord Thomas of Gresford, as to why Lloyd George did not support an elected House is very simple. At that time, the unionist opposition was proposing an elected element for the House of Lords precisely to make it more powerful. One thing that Lloyd George did not want was a House of Lords more legitimate and powerful than he already had facing him, which is why the 1911 Act carefully avoided going down the elected path. All the themes that we have discussed—an elected House, the way to reconcile a quarrelling House of Commons, joint sessions and referenda—were rehearsed way back before the Parliament Act 1911 was passed. You have only to read Roy Jenkins’s book, Mr Balfour’s Poodle, to find that out. Again, given where we are, do we want to make the House of Lords more powerful than it is?
I compliment my noble friend Lord Richard on the excellent report of his Joint Committee, but I should say that one of the central contradictions is that the Government have proposed a draft Bill but have been somewhat timid with their reforms. Had they been really bold, they would have said, “We want an elected House of Lords, but it would be difficult to retain the primacy of the House of Commons unless some drastic things are done along with the Bill”. Everyone has agreed—including the Joint Committee’s report, the alternative report and many of the witnesses—that Clause 2 will not do because it will not resolve the issue of the primacy of the House of Commons. The question would then be: is the primacy of the House of Commons there not because it is elected but because we are unelected? If we get elected, will the primacy of the House of Commons make sense any more? That is the question that people ought to pose. The financial privileges of the House of Commons derive from way back in the 17th century, before it was elected in anything like its present form. That had to be reaffirmed and established in statute in the 1911 Act because those privileges were not guaranteed by the conventions of that time. If we are again to assert the primacy of the House of Commons, we have to establish that in statute—perhaps as a separate Parliament Act, not mixed up with the House of Lords Reform Bill. If you do not do that you cannot rely on conventions because, as the balance of power changes, conventions will change—and previous conventions will, no doubt, be challenged. One of the things we therefore have to do is make quite sure that if the two Houses of Parliament want to preserve the primacy of the House of Commons we must spell out what that primacy consists of and establish it by statute, because nothing can be taken for granted in an unwritten constitution whereby one Parliament can change what another Parliament does.
The nub of the problem is the nature of the elections to the House of Lords, which a lot of noble Lords have spoken about. It is clear that if we have elections on whatever territorial basis—either singly or as a group, as we do for the European Parliament—the House of Lords will replicate the House of Commons. If the Lords is elected by PR, that would in at least some people’s eyes be more legitimate than first past the post; and a House of Lords elected on the same territorial basis as the House of Commons, by what some may think is a better method, will no doubt challenge the legitimacy of the House of Commons. One should not be surprised by that. One ought to look at that issue in advance and do something about it.
What I proposed in my submission to the committee somewhat overlaps with what the noble Lord, Lord Low, said earlier. It was that we should have elections to the House of Lords for 80 per cent of its Members—I would prefer 100 per cent, but I pass on that—but the elections should be on a regional basis. Of course, we are not a federation and it is difficult to justify a second Chamber if the country is not a federation, as many experts told the Joint Committee. We already have three devolved Parliaments, and England is supposed to have 10 regions. I know that the regions do not actually want autonomy, but we shall have to impose some autonomy on them. If we elect an equal number of MPs from the 13 regions—quick arithmetic tells me that if we have 20 from each region we would have 260 elected Lords in a House of 300; and the number could be adjusted to 450—and the list is regional and not attached to any constituency, the Members elected will in some sense be representative but will not be rivals to the way that the House of Commons derives its legitimacy.
There is another advantage—a House of Lords elected by regional lists will fill the one big gap in our system. Your Lordships’ House is at present always accused of being too London-biased and that a regional dimension is missing from our Parliament. If we could get a regional dimension into Parliament through elections, either directly or indirectly, it would provide for an elected element to the House of Lords that would not challenge the legitimacy of the House of Commons, which is based on an entirely separate constituency system.
That is one way of reconciling two difficult problems. As for the 20 per cent who would be appointed, I entirely agree with the suggestion of the noble Lord, Lord Low. We have many electoral colleges, including the Royal Society, the BMA and the Law Society. Each could elect one representative, and the appointed element would also have some legitimacy. These sorts of schemes have been proposed for the British constitution over the past 100 years; there is nothing new about that. In that way, we will have an elected element in your Lordships’ House, it will not threaten the legitimacy of the House of Commons, and we will definitely have a better House than at present.
I shall say just one more thing. It is a fallacy to think that elected people do not have expertise. You have only to go to the House of Commons, which over many years has included professors, lawyers and scientists. I recall Dr Jeremy Bray, whom I used to know well; he was a distinguished scientist and a very good MP. Elected people can have expertise. You do not need to be unelected to be an expert.
My Lords, as has been pointed out, the noble Lord, Lord Richard, said that the committee did not have a blank sheet. That is fair enough, but it is worth bearing in mind that the draft Bill that the committee looked at is called the House of Lords Reform Bill. It is not called the “Composition of the House of Lords Reform Bill”—important though that area of reform will of course be.
In that spirit, I want to use my intervention to hold a magnifying glass over a specific topic of House of Lords reform that has not yet been mentioned and was not in the report but that would be a significant and timely measure for reasons of transparency, public confidence and modernity. My topic is the official recording of abstentions. This issue also throws up interesting questions about underlying attitudes that reform should address and challenge.
While this matter is not exclusive to the reform of the second House, our continuing refusal to record abstentions in either House is emblematic of the continuing emphasis in Parliament as a whole on a rigid two-party parliamentary system, despite the current reality that we have a coalition as well as renewed public interest in the notion of party politically independent candidates. It is a style that remains primarily confrontational, the very thing that the public do not like and are reacting against, and a style that, it has to be said, was reaffirmed by the decision to keep the first-past-the-post system for election to the Commons. Although tempered in the Lords, this system is nevertheless the foundation on which both Houses are currently built.
This system is of course reflected and reinforced by the very geography of both parliamentary Chambers, where Dispatch Boxes and rows of Benches are set up in opposition to each other. We are not of course the only Parliament in the world to use this layout, but it is a geography that, in relation to other more modern Parliaments that use a more open and often semicircular layout for their Members, can appear inward-looking and hermetic.
In an exchange in the Commons on 3 February last year, Caroline Lucas, on the subject of abstentions, said that people had told her, “If you can’t make up your mind, you shouldn’t be in politics”. That is clearly a view that people still hold. What occasioned that exchange was six Lib Dems voting the previous evening in both Lobbies on the forestry debate. It is possible to vote in both Lobbies in the Commons but not in this House. The Deputy Speaker reiterated that voting twice in the Commons was “unparliamentary”. I agree, and I am sure that if the public were to be asked, they would heartily disapprove of that practice. It is also obviously an inelegant and cumbersome solution if one takes abstention seriously.
A more sophisticated and sensitive system and a more sensitive Parliament would appreciate that there are often shades of opinion on, for example, amendments to Bills. An amendment can sometimes carry within it two principles which Members of the House may feel are both valid but are in conflict. Indeed, there was a prime example of such a case in this House just last week during the Protection of Freedoms Bill when, as noble Lords will recall, the noble Lord, Lord Rosser, in his speech from the opposition Front Bench, asked all opposition Members to abstain on the amendment of the noble Lord, Lord Marlesford, on entry to premises, on the basis that protecting the privacy of occupants and the protection of consumers’ rights were equally important.
The fact is that abstentions happen and will certainly happen even more, with or without recording, particularly if we are to continue to have coalition Governments. Disagreements between partners ought to be acknowledged as a fact of coalition life and are not necessarily something that Parliament needs to be embarrassed about. Hardly a vote has gone by when there have not been abstentions on some of the very complicated Bills that we have discussed recently.
If we introduced recorded abstentions, we would simply be getting up to speed with the more modern, and in my view more progressive, systems of many, if not all, European countries, including Denmark, Sweden, Belgium and Germany—and locally now including the Scottish Parliament and the Welsh Assembly.
The main argument is that we need a more transparent Parliament. This is a time when many are concerned about bringing a truer picture of Parliament to the public. If you are in this Chamber at the time of a Division, you know full well who has abstained. Members will often make it very clear when they sit down to be counted—to coin a phrase—often in no uncertain terms, that they are abstaining. That is a significant aspect of the business of this place and could make the difference between whether a vote is won or lost. It is insulting to the public that that information is in effect kept secret and not made available. It might not be the wilful neglect of the public, but it is wrong. That goes hand in hand with the scornful attitude in some quarters to websites such as TheyWorkForYou and the Public Whip, which number-crunch the votes and are all part and parcel of the larger public interest in Parliament.
The possibility of recording abstentions was last considered in 1998, when the Select Committee on Modernisation of the House of Commons produced a consultation paper on voting methods, finding that a majority—slim, but a majority nevertheless—of 54 per cent of Members were in favour of introducing that measure. It is high time, 15 years on, that that was looked at again. My understanding from research by the House of Lords Library, for which I am grateful, is that it might be possible to introduce that through a Standing Order, as another measure considered by the same committee, the practice of deferred Divisions, was introduced in that way in 2004—although an amendment might also be brought to the House of Lords Bill. The measure might well be trialled in the Lords as part of current reform.
I do not think that we should wait for the introduction of electronic voting systems, which is something of an excuse not to introduce this measure. There is no reason why abstentions could not be recorded with the clerk in the Chamber itself. Neither is it a measure that depends on the final composition of this House. It would be a significant improvement in the democratic workings of Parliament as a whole, not only for itself but as a sign of greater transparency and accountability.
My Lords, Parliament has never before faced a situation in which a draft Bill sent for consideration by a Joint Committee has been totally demolished by the members of that committee. That is the effect of the two reports produced by its members—the Joint Committee report agreed by all and the alternative report signed by 12—which have to be taken together. They create a balance of opinion more significant than the individual votes—on which the noble Lord, Lord Richard, laid much emphasis—a balance of opinion vividly and wonderfully described in a tremendous speech by the right reverend Prelate the Bishop of Leicester.
Clause 2, the keystone of the Bill, supposed to hold up and guarantee the continuing primacy of the House of Commons, was pulled out and discarded as worthless by the whole committee, and the alternative report argued that,
“the proposals represent an unbridgeable gap between the election of the House of Lords and the primacy of the House of Commons”.
It is now clear that what is involved is not just the introduction of elected Members to the Lords but a titanic upheaval with massive implications for the Commons. If the Bill is introduced, Parliament is then confronted with the necessity of trying to bridge the unbridgeable by making fundamental changes that seem bound to include amending the Parliament Acts, a review of codification of conventions by a Joint Committee and the examination of a plethora of vital issues that have not been thought through, to cite the noble Baroness the Leader of the Opposition. They include the future of Scotland and the devolved Administrations, among others.
The report identified other consequences that are almost equally damaging, among them the very large cost of introducing an additional 450 paid politicians to Parliament, 360 elected by a system of PR likely to ensure that a minority party always holds the balance of power. I say to my friends on the Liberal Democrat Benches that they should not optimistically assume that they will be that minority party. They may find that others of whom they strongly disapprove hold the balance in that situation. There is the lack of accountability of those politicians elected for a 15-year term and unable to seek the endorsement of the electors for a second term. There is the absurdity of the proposition that, having been elected, they should not take up constituency issues, with restrictions placed on expenses provided to enable them to do so. The case for the necessity for a referendum has been compellingly made and the arguments against exposed as shallow and unsustainable.
It is abundantly clear that there is now no consensus about the way to reform this House. To cite the noble Lord, Lord Richard, chairman of the Joint Committee, there is division within the parties and within the Houses. I disagree very strongly with his view, supported by my noble friend Lord Strathclyde, that we should just press on ahead with what has been presented to us so far. In this situation, it would be political madness and deeply unsound constitutional practice were the Government, after only the briefest consideration, to commit themselves in the Queen’s Speech to the introduction of the same Bill or one closely similar. For Parliament to attempt on the Floor of both Houses to reconstruct and make sound a Bill that has been so comprehensively demolished is likely to wreck parliamentary business for the whole Session, threaten and perhaps destroy the coalition Government—goodness knows, they are facing enough troubles as it is at present—and produce a deeply flawed and unsustainable reform. To use the Parliament Act to force through a Bill in those circumstances would be a constitutional outrage.
The manifesto commitment of the Conservative Party was to,
“work to build a consensus for a mainly-elected second chamber to replace the current House of Lords”.
The Prime Minister repeatedly made it clear to members of his party that it was not a priority or a task likely to be attempted until after a subsequent election. Now that it is abundantly clear that the work to build a consensus has failed, I hope that he will have the courage and good sense to insist that adequate time is taken carefully to consider the proposals made in the alternative report and the ideas for incremental reform that have been advanced by the noble Lord, Lord Steel, and others.
If Ministers simply press on and attempt to force through Parliament a Bill similar to the draft, I will base my actions on the firm belief that, confronted with a choice between supporting a legislative programme that includes a deeply flawed reform Bill or defending fundamental constitutional principles and an effective Parliament, my clear duty lies with the constitution and Parliament. I will make my speeches and cast my votes accordingly. I am optimistic that I will be just one of a very large number of Members of both Houses who will act in the same way.
My Lords, there has been debate over whether this is a decision that should be made now or in the future. Many want to see it made in the future but I suggest that we have been waiting a very long time for this reform—since 1912—and it is time that it was acted upon. We cannot continue to pretend that this issue does not exist, and pretending that we have a democratic constitution is absolutely ridiculous. Looking back at Labour Party manifestos from 1997 onwards, I see that we called for House of Lords reform in all of them. We were very specific in the last Labour Party manifesto, when we said:
“Further democratic reform to create a fully elected Second Chamber will then be achieved in stages. At the end of the next Parliament one third of the House of Lords will be elected; a further one third of members will be elected at the general election after that. Until the final stage, the representation of all groups should be maintained in equal proportions to now. We will consult widely on these proposals, and on an open-list proportional representation electoral system for the Second Chamber, before putting them to the people in a referendum”.
It has been interesting to hear the views expressed today. Some have been in favour of reform, and I think that I speak for the minority when I say that I am very much in favour, although I would prefer to see a 100 per cent elected House. However, I can see the argument that has been made for 80 per cent of Members to be elected, with 20 per cent being appointed. We have had a long debate about the primacy of the House of Commons and the Bill will be going to the Commons. As my noble friend Lord Richard made clear, of the MPs on the committee, only one opposed the proposition. Therefore, primacy will be an issue and it will be discussed, but I do not believe that it is an obstacle that cannot be overcome. As I said, after the Bill has been considered, we shall make a decision on that matter and it will evolve as time goes on. Both Houses, as well the people, will have a say on how it comes about.
The other point I should like to make is that about 400 people, give or take a few, regularly sit in this House. It is not always the same 400 people, so I think it is right that the number of Members envisaged in the Bill is increased to about 450.
Of course, people have been talking about this matter for a long time. When proposals for reform have been put before us in the past, they have failed because there has not been time to carry them out. However, that will not be the case if such a Bill is put forward in the Queen’s Speech. It can be delayed but at the end of the day there are going to be changes, and this House should address itself to the kind of change that it wants to see. It is no longer good enough to say that staying as we are will do for the future. The question may be asked—it has been asked today—whether this is a measure that should be raised. That sort of question is always asked. The big thing at the moment is obviously the economic situation, but nobody is suggesting that only the economic situation should be dealt with; other things should be looked at as well.
As I said, the need for us to look at this matter is long overdue and I look forward very much to the Bill being introduced. I hope that account will be taken of the report of the committee led by my noble friend before the final Bill is put before us. It will be very sensible to look at the views expressed in the committee. However, one thing that we should realise is that the current composition of this Chamber cannot remain in the future. The future lies with a predominantly elected Chamber. As I said, I should like to see 100 per cent of its Members elected.
I have no doubt that we shall return to this matter time and again before legislation is passed, but I wish to put myself firmly on the side of reform and an elected House. My noble friend Lord Dubs said very eloquently that he would feel far happier speaking as an elected Member of a second Chamber. He said that he had found universal support from all sections of the Labour Party wherever he had been, apart from Cambridge University, where unfortunately I do not think they listened carefully enough to the eloquence with which he expressed his views.
I am conscious that many other noble Lords wish to speak, so I shall not go on any longer other than to say that not only is this decision due now but it is long overdue. It is a decision that this House will have to face up to. Whatever the method of election, we have to face up to the fact that the second Chamber of this country will be largely elected in the future.
My Lords, I join other Members in thanking the noble Lord, Lord Richard, and the Joint Committee for their report. It seems to deal well with the issues directly covered in the draft Bill, as was the role of the committee, and to avoid becoming too deeply enmeshed in questions that are not covered in the Bill and which are clearly not subject to any consensus. I also thank the members of the committee who have made their alternative report available.
However, it is our duty to look a little beyond the terms of the draft Bill when we consider that some of the consequences that would follow from a move to a largely elected second Chamber are not dealt with, or are dealt with only cursorily, in the draft Bill. That is particularly true in relation to the future powers of the proposed largely elected second Chamber and the likely effect on the operation of Parliament as a whole—that is, a new sharing of power between the two Houses. These matters are dealt with in recommendations 2 to 16 of the conclusions and recommendations of the Joint Committee. They are also dealt with more trenchantly in points one and two of the executive summary in the alternative report.
There are hundreds of points in the draft Bill that will need discussion, and there are 87 conclusions and recommendations in the Joint Committee’s report, but the House will be glad to know that I shall not deal with them all today. There will no doubt be opportunities to do so in the weeks, months, probably years and possibly decades ahead. Today, I shall deal only with the question of the powers of the two Houses if there were a largely elected second Chamber.
I start with the simple proposition that the draft Bill would have one tremendously important consequence: it would bring to an end the House of Commons’ monopoly in democratic legitimacy. That is just about the most fundamental change that could happen to the first Chamber of a Parliament. It is difficult to detect in the draft Bill a full comprehension of the consequences of that change for Parliament as a whole. However, the Joint Committee has understood it and I would like to pick out and approve what it says on a number of points. First, the Joint Committee imposes an important condition where it records that a majority of its members consider that a reformed second Chamber should have an electoral mandate, and that condition is,
“provided it has commensurate powers”.
Of course, an electoral mandate is not an abstract concept; it is thousands of citizens trooping into a polling station and electing their Member of the second Chamber and, as a direct consequence, looking to him or her to respond to their wishes and deliver the goods. I am absolutely certain that a reformed House in respect of its elected Members would have a representative function, because the electors would demand it and the second Chamber would evidently be more assertive, not to say aggressive, in using its powers.
The events of last week on the Legal Aid, Sentencing and Punishment of Offenders Bill provided a good example of what happens now and what would be likely to happen if Parliament were to consist not of one but of two democratically elected Chambers. Representative organisations and many members of the public already recognise that in draft legislation the House of Lords is now the principal revising Chamber. I had 256 e-mails last week from such organisations and others mostly recommending or pressing for specific changes in draft legislation—and I have not even been elected yet. I am amazed that a press that reports on the House of Commons gives little or no publicity to the fact that important parts of draft legislation are not discussed or debated in the House of Commons or are dealt with only cursorily in a very short time because a guillotine is almost universally applied.
Currently, the House of Lords scrutinises thoroughly and proposes amendments, where appropriate, but we are quite reticent about pressing them if the House of Commons cursorily rejects them. Evidently, that situation would not prevail between two democratically elected Houses. Some mechanism for conciliation between the two Houses in such cases would be needed. I do not think that it would have to be statutory because we would run into judicial interference, some sort of mechanism for conciliation would be an inevitable consequence of two democratically elected Houses.
Secondly, there is the specific question of the conventions between the two Houses. Clearly, those would need to be reviewed, and where necessary changed, to reflect the role of the two democratically elected Houses. I strongly agree with the Joint Committee that the current text of the Bill in Clause 2 risks making judicial intervention possible, contrary to Article 9 of the Bill of Rights, and is to be rejected. The conventions themselves will almost certainly need to be redefined, and that could be done in a concordat between the two Houses.
In my view, that should apply to all legislation, including secondary legislation, which has hardly been mentioned today. The House of Lords has shown almost complete restraint in dealing with secondary legislation, despite the fact that 10,662 pages of almost wholly home-grown—not Brussels—secondary legislation went through this House in a recent year. In the new circumstances, the second Chamber would clearly be more ready to strike off secondary legislation of which it disapproved.
Thirdly, and finally, like many other Members I shall say a word about the primacy of the House of Commons, which is central to the Bill, although the Bill does not deal with it adequately. The Joint Committee points out that Clause 2 is not capable of preserving the primacy of the House of Commons, so if it comes forward in that or a similar form, I am sure we shall have serious problems when the Bill itself comes before us.
I believe that the issue of financial privilege is more complicated than it has appeared to be in the discussion today, because we cannot have a situation in which we have two completely free tax-raising Chambers of Parliament. On the other hand, a democratically elected second Chamber would need a way of dealing with issues that are important but that had some financial consequences. I saw the south-west news at the weekend, which showed many people holding up banners that said, “The pasty tax is a nasty tax”. I am sure that that would be thought about by a Senator who came from Cornwall if we had change in the structure of this House.
I also believe that we need to maintain the structure under which there is a weapon of last resort, which is currently the Parliament Acts. I have noted the views of the noble and learned Lord, Lord Goldsmith, and of the noble Lord, Lord Pannick, in the report, but if the new circumstances come about it would be necessary to make statutory provision for some form of last resort—yes, more time and perhaps more controversy.
News Corporation: Conduct of Secretary of State for Culture, Media and Sport
My Lords, perhaps this is an appropriate time to take a short break from the debate on the report of the committee chaired by the noble Lord, Lord Richard. With the leave of the House, I shall repeat in the form of a Statement the Answer given by my right honourable friend the Prime Minister earlier this afternoon in response to an Urgent Question from the Leader of the Opposition. The Statement is as follows:
“Last Wednesday I answered questions on this issue at PMQs and the Culture Secretary made a full statement. But let me set out the position again. I set up the Leveson inquiry last summer to investigate the culture, ethics and practices of the media and the relations between the media and the police, and the media and politicians. It is a full judge-led inquiry, with evidence given under oath and full access to papers and records. No Government before have ever taken such comprehensive action. It is this Government who are putting these issues properly on the table and getting them dealt with. Let me deal with the three issues in this question: the conduct of the Secretary of State for Culture, Media and Sport; the nature of the inquiry needed to get to the bottom of these issues; and the wider issues over the relationship between politicians and the media.
First, on the Culture Secretary, as was made clear in his Statement last Wednesday, in every respect with regard to the News Corporation bid, the Culture Secretary asked for independent advice and acted on it. He was not required to ask or to follow such advice, but he did so. He acted fairly and impartially and in line with the advice of his Permanent Secretary. Indeed, as he set out in his Statement to this House last Wednesday, he acted against the interests of News Corporation on four key decisions: on being minded to refer the bid to the Competition Commission; on refusing to accept News Corporation’s undertakings without advice first from the OFT and Ofcom; on extending the consultation; and on going back to Ofcom for further advice about the impact of phone hacking. I have seen no evidence to suggest that in handling this issue the Secretary of State acted at any stage in a way that was contrary to the Ministerial Code.
In terms of the Secretary of State’s responsibilities towards his department let me say this. The Permanent Secretary of the department approved the approach his department took to the quasi-judicial process, which included a small number of people acting as contact points with News Corporation, as is required and normal in such a process; and the Permanent Secretary of the department has stated that he was ‘aware’ and ‘content’ for contact to be made between the Culture Secretary’s special adviser and News Corporation. However, it is quite clear that this contact became improper and inappropriate and went beyond the requirements set out by the Secretary of State or the Permanent Secretary. That is why the special adviser resigned and he was right to do so.
There are correct procedures to follow in this regard and they need to be followed scrupulously. That is why last week I asked the Cabinet Secretary, Sir Jeremy Heywood, and the head of the Civil Service, Sir Bob Kerslake, to write to all departments clarifying the rigorous procedures that they should have in place for handling cases of this nature.
This leads to the second issue: the nature of the inquiry or inquiries best suited to get to the bottom of this issue. I consulted the Cabinet Secretary and decided it was right to allow Lord Justice Leveson to conduct his inquiry and not to commission a parallel process to establish the facts. Let me repeat; what we have is a judge-led inquiry, with witnesses required to give evidence under oath, full access to papers and records, and cross-examination by barristers—all live on television. There is nothing this tough or rigorous that the Civil Service or independent adviser could provide.
Of course, it is not for Lord Justice Leveson to determine whether a Minister has broken the Ministerial Code. That is an issue for me and I will deal with it properly. I will not wait until the end of the Leveson inquiry to take action if action is needed. If new evidence emerges from the Leveson inquiry that the Ministerial Code has been broken, I will either seek the advice of Sir Alex Allan or take action directly. But the key point is this: in order to do this, it is neither necessary nor right to have a parallel investigation that could duplicate, cut across or possibly pre-empt what Lord Justice Leveson is doing. Lord Justice Leveson offered his own view on Wednesday when he said that,
‘although I have seen requests for other inquiries and other investigations … it seems to me that the better course is to allow this inquiry to proceed’.
I agree with him entirely.
Let me briefly turn to the bigger picture. I am and always will be a fierce defender of the freedom of the press in this country; it is one of the central pillars of our democracy. But the relationship between politicians and the media has been too close for decades. The Leveson inquiry—which this Government set up—gives Parliament and politicians of all parties the opportunity to get this right for the future. Already we have introduced transparency about the meetings we have with the media. Everyone can see which proprietors or editors I meet, whether publicly or privately.
Let me just say this: like other party leaders in our country for decades, I have tried to convince media outlets to support the policies of my party and now my Government. But let me be clear: there was not and never has been a grand bargain between the Conservative Party and Rupert Murdoch or James Murdoch. Indeed, look for one moment at the number of meetings that Tony Blair and Gordon Brown had with Rupert Murdoch when they were Prime Minister. Blair had seven, Brown had 13 and I have had four. The idea that there was some agreement that in return for their support we would somehow allow this merger to go through is simply not true. I have to say if that was the case, and while I respect him deeply, what on earth was I doing making the right honourable Member for Twickenham the Business Secretary responsible for this? The proprietors of News Corporation have denied under oath at the Leveson inquiry any type of deal, and I will do the same.
Let me just make this last point. Unlike the party opposite, we were not trying to convince a centre-right proprietor of a set of newspapers with solidly centre-right views to change the position of a lifetime. We were arguing a simple proposition: that the last Government were irresponsible, exhausted and bad for our country, and that they ought to go.
While I have said that the relationship between politicians and the media has been too close, I note that none of the people opposite has disclosed any of the meetings they had with News International or other newspaper executives while they were in office. Instead of endlessly trying to use the Leveson inquiry for party-political purposes, is it not time that they were honest about what they did in government? While the country wants to hear about jobs, investment, living standards and the great challenges we face—such as debt—they just play one-sided party politics. Instead of endlessly trying to use the Leveson inquiry for party-political purposes, is it not time that they were honest about what they did in government—and face up to the real mess that they left this country in?”.
My Lords, that concludes the Statement of the Prime Minister, which we will now deal with in the usual way.
My Lords, I thank the Leader of the House for repeating as a Statement in your Lordships’ House the remarks made by the Prime Minister earlier today in the other place in relation to the position of the Secretary of State for Culture, Media and Sport, and to his, his office’s and his department’s connections with News Corporation over its failed bid last year to take over BSkyB.
When the allegations against the Secretary of State for Culture, Media and Sport, Jeremy Hunt MP, emerged last week, arising from material released by the inquiry into relations between the press, politicians and the police, headed by Lord Justice Leveson, my party called for the Secretary of State to resign or be sacked. We do not as a party make such calls lightly. We have a right to do so; the Secretary of State should have resigned then. Having failed to do so, he should resign now.
The release by the Leveson inquiry of material relating to the Secretary of State and to News Corporation’s bid led directly to two events: first, the resignation of Mr Hunt’s special adviser, Mr Adam Smith, over the e-mails and other communications that he had with News Corporation in connection with its BSkyB bid; and secondly, in the wake and as a result of that resignation, calls for the Secretary of State to be investigated for potential breaches of the Ministerial Code, the Cabinet Office rules that govern the conduct and behaviour of government Ministers.
The Government, led by the Prime Minister, sought to avoid such an investigation, arguing that the correct procedure for inquiring into these matters is the already extant inquiry led by Mr Justice Leveson, and that a second, parallel inquiry would be confusing and inappropriate. The Prime Minister and the Government also sought to insist that in their view the Secretary of State had not breached the Ministerial Code. That was the burden of the Statement by the Prime Minister that the Leader of the House of Lords repeated today.
This simply will not do. Judges tend not to welcome what they regard as interference by politicians. Judicial independence is a central element in the justice system and the constitution of our country. Rightly, therefore, Lord Justice Leveson both rejected the misguided attempt by the Secretary of State to use the inquiry for his own personal and political ends by seeking to reschedule his appearance before it, and made it clear that the inquiry was not the correct or appropriate mechanism to resolve matters relating to the Ministerial Code.
I looked again today at the terms of reference for the Leveson inquiry. It is transparently clear that there is nothing in the terms of reference that could possibly give it any locus in matters relating to issues covered by the Ministerial Code. For the Prime Minister or other Ministers, including the Secretary of State, to do so was wrong. The Prime Minister told the BBC yesterday that he would investigate the Secretary of State under the Ministerial Code if there were evidence of wrongdoing, or if any material came from the Leveson inquiry that warranted such an investigation.
The purpose of such an investigation under the Ministerial Code is to determine whether there has been any breach of the code, not to mount an inquiry after the fact of the wrongdoing has become clear. The e-mails and other matter released by the Leveson inquiry last week precisely constitute, under the code, material that warrants further investigation. The code is clear and explicit on the point. Paragraph 1.3 sets out the matter. After stating that it is not the role of the Cabinet Secretary or other officials to enforce the code, it states:
“If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, he will refer the matter to the independent adviser on Ministers’ interests”.
Let us look more closely at that paragraph. It specifies an allegation. Is there an allegation in this case? There is indeed: a serious allegation that the Secretary of State kept informed one of the parties to a bid that he was considering in a quasi-judicial manner of the progress of that bid in a way that was wholly inappropriate to that role; an allegation that the Secretary of State was in breach of paragraph 1 of the Ministerial Code, which requires Ministers to act in a way that upholds the highest standards of propriety; a serious allegation that as part of the information that was incorrectly and inappropriately supplied, details of the announcements to be made to Parliament and to the Stock Exchange were made to the bidder in the case, days before such announcements were made public; an allegation that the Secretary of State was in breach of paragraph 9.1 of the code, which stipulates that announcements by Ministers must be made in the first instance to Parliament; and an allegation that the Secretary of State is currently in breach of paragraph 3.3 of the code, which focuses on the activities and operations of special advisers, and the responsibilities of both special advisers and the Ministers for whom they work. Again, the code is clear, stating:
“The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment”.
In this case, that is clearly the Secretary of State for Culture, Media and Sport.
“Individual Ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers”,
says the code, and clearly, in this case, it is the Secretary of State for Culture, Media and Sport. The role of the Minister is clear.
In this case, the conduct of the special adviser, Mr Adam Smith, was such as to warrant his resignation from his post within government the day after the Leveson inquiry released the material last week. Mr Smith took responsibility for his actions, but the code makes it quite clear that the Minister is ultimately responsible for the actions and conduct of his special adviser. If in this case Mr Smith believed that his actions warranted his resignation and that in this case, as in all others, the Minister is responsible and accountable for the actions and conduct of his special adviser, then it clearly follows that it is for the Secretary of State or, if he will not do so, the Prime Minister on his behalf, to act in the way that the special adviser has done. That is why we call for his resignation. We believe that it is transparently clear that the Secretary of State is in breach of the Ministerial Code and that, like his special adviser, he should go.
There are clear, specific allegations. Paragraph 1.3 of the code, on investigations under the code, stipulates that the Prime Minister must consult the Cabinet Secretary on any allegations. Has the Prime Minister consulted the Cabinet Secretary, Sir Jeremy Heywood? We are told that he has. We do not, of course, know the nature of any such consultations between the Prime Minister and his Cabinet Secretary, who is an official of high ability, high repute and high integrity. Having consulted, does the Prime Minister feel that the matter warrants further investigation? Clearly, from his public statements, and from the Statement repeated today by the Leader of the House, he does not. We on these Benches argue that he is wrong in that opinion. The matter clearly warrants further investigation.
Support for this position has come from a number of sources, but among the most notable have been three former Cabinet Secretaries, all Members of your Lordships’ House: the noble Lords, Lord Armstrong of Ilminster, Lord Butler of Brockwell and Lord Turnbull. All three noble Lords were men standing in precisely the position of the current Cabinet Secretary. With slightly differing emphases, all three believe that there has indeed been a breach of the Ministerial Code in this case. Accordingly, we on these Benches believe that the Prime Minister should refer the matter to Sir Alex Allan, the current independent adviser.
Do the Government accept that there has been in this case an allegation—indeed, a number of allegations—about the conduct of the Secretary of State? Do the Government accept that the resignation of the special adviser to the Secretary of State supports irrefutably that there are such allegations? Do the Government accept in the light of the opinion expressed by MPs, Peers, academics, commentators and, indeed, three former Cabinet Secretaries, all distinguished and senior Members of your Lordships’ House, that the allegations warrant investigation under the terms of the Ministerial Code? Do the Government therefore accept that the Prime Minister accordingly must refer the matter to the independent adviser on Ministers’ interests for investigation? If the Government do not accept these questions, will the Leader of the House set out, bearing in mind the entirely appropriate insistence by Lord Justice Leveson that his inquiry is not the correct method of examining these matters, on what possible basis the Government do not accept them?
A Minister’s actions, a Minister’s integrity and a Minister’s career are not matters to be considered lightly, let alone dismissed lightly. We on these Benches do not do so, but even if it is not accepted that there is wrong here—and we believe there is wrong here—it must be accepted that there are serious matters here that warrant proper investigation. We believe that the Government should act, and act today.
My Lords, I do not say this very often, but I think there are very few times when a prime ministerial Statement is more suited to the House of Commons than it is here, and I think this is one of those occasions. Notwithstanding that, the noble Baroness the Leader of the Opposition says that my right honourable friend the Secretary of State should resign at once, yet she admits that she has not heard all the facts of the case. That is what she started off with. In fact, that repeats something that Harriet Harman said. Within 23 minutes of the evidence being made clear, she called for the resignation of my right honourable friend. That is a ridiculous way to go about business. My right honourable friend is entirely entitled to give his evidence in the same way as those who have accused him of wrongdoing, and that is what he is going to do.
There is no point praying in aid all these former great Cabinet Secretaries who distinguish themselves in this House. The former Cabinet Secretary the noble Lord, Lord Turnbull, made it clear that following the process that the Prime Minister has chosen:
“Much more will be made public than if it is done by a nominated retired civil servant”.
The noble Lord is someone of tremendous eminence.
What is going on here, and what is going on with Labour’s position? The people opposite are those who defended Charlie Whelan and Damian McBride who, I gather, were special advisers in the previous Government. Did any Ministers resign as a result of their appalling wrongdoing?
The noble Baroness said that the Secretary of State should be investigated for breaking the Ministerial Code. The Prime Minister has never said that he will not launch an investigation into whether the Ministerial Code has been broken. All he has said is that there should be a proper process and that it should start when the Secretary of State gives his evidence to the Leveson inquiry. Lord Justice Leveson himself has accepted and agreed that there should not be a parallel process so, as far as I can see, it is all about timing.
What about the specific allegations? Did the Culture Secretary mislead Parliament by saying he was publishing all the exchanges between his department and News Corporation? He certainly did not mislead Parliament. He has laid out clearly in the House of Commons what he is going to do, and he will do it. He has said that he will make available all relevant communications, including texts and e-mails, to the Leveson inquiry and, at that stage, he will be judged upon them.
Was the Ministerial Code breached when the special adviser Adam Smith leaked the content of a Written Ministerial Statement to News Corp the day before it was given to the House? We have to turn to the words of Adam Smith himself in his resignation letter. He said that the extent and nature of the contact between himself and News Corporation was not authorised or known about by either the Culture Secretary or the Permanent Secretary. I think that absolves the Secretary of State, but I am not going to rush to judgment in the way that the noble Baroness has done, although I am sure that he behaved impeccably in everything that he did. There is a process led by Lord Justice Leveson and at that stage I think it is up to the Prime Minister to make up his mind what he wishes to do.
My Lords, surely it would be absurd to have two inquiries going on at the same time. The order that the Prime Minister has announced seems entirely sensible, given that the parliamentary inquiry can then follow the evidence that is given to Leveson. However, is there not a wider issue here? Does the Leader of the House recall that last week, when we debated this issue, the Minister who replied, who is now sitting next to him, said that there was all-party consensus on my proposal that politicians of any party should be taken out of the role of deciding on media bids? Then on the “Today” programme on Tuesday morning, the leader of the Opposition specifically rejected that proposal and said that he intended to continue with the discredited system. Can we urge Mr Miliband to think again on this issue, for is it not the case that there will always be a suspicion of conflict of interest if politicians take decisions about media companies which they—we—have done so much to woo? It is a clear conflict of interest, and it should be stopped.
My Lords, I thank my noble friend for very much supporting the position of the Prime Minister. Many others have taken on this question of having two parallel inquiries going on at the same time. Like him, I am convinced that we have made the right decision.
As for his specific question, the House will know that my noble friend Lord Fowler is pretty much pre-eminent in this House and elsewhere with his expert knowledge on this subject. I cannot speak for the Leader of the Opposition, but my advice to the noble Baroness is that she ought to bring to his attention the words of my noble friend Lord Fowler, and he might change his mind.
My Lords, perhaps the Leader of the House can help me. I do not understand the Statement that he has just made. He says that there is a process and the process should be followed. What is the process? The process is that evidence was given to Lord Justice Leveson; Lord Justice Leveson has said he is not going to decide the issue as far as Mr Hunt is concerned. It is astonishing for the Leader of the House to say that it should go in front of Lord Justice Leveson when Lord Justice Leveson has just said that he does not want it to come in front of him.
What is the object of the exercise? Is it that Mr Hunt should give his evidence to Lord Justice Leveson, and the Prime Minister should look at it and say, “I am satisfied with that so we will not do anything else”, or alternatively say, “Something may be wrong here”, and then perhaps he will refer it to somebody else? The fact of the matter is that Lord Justice Leveson cannot resolve the issue. For the noble Lord to come here and say, “There is a proper process and the process is Leveson”—as indeed the Prime Minister did in the House of Commons—is wrong. There is a process and the process is to use Sir Alex Allan: that is what he is there for; that is what he is set up to try to do. With great respect to the Leader of the House, I do not understand what the Government are playing at.
My Lords, the noble Lord, Lord Richard, is quite deliberately misunderstanding the position and misunderstanding what the Prime Minister has said. An allegation was made at the Leveson inquiry. It is entirely right and proper that the Secretary of State should be able to go and give evidence on the same terms and by the same method as those who have accused him of wrongdoing.
Incidentally, the decision on whether to refer the case to Sir Alex Allan is a decision for the Prime Minister. He can make that decision whenever he wants. He has suggested that he will make that decision—or take action, if he believes there was any wrongdoing—following the evidence being made public in the Leveson inquiry. The Leveson inquiry is a proper inquiry where, as I pointed out, evidence will be taken under oath and there will be cross-examination of the witnesses by barristers; in other words, the evidence that has been given already will be properly tested. That is entirely appropriate and there is no confusion at all between the two issues.
My Lords, the Prime Minister has said that he will await the evidence given by Mr Secretary Hunt to the Leveson inquiry. That may or may not be a rational stance to take. I take very much on board what the noble Lord, Lord Richard, says. It is outside the remit of the Leveson inquiry to adjudicate upon that matter. Putting that aside, perhaps I may ask this pertinent question of the Leader of the House. When the time comes for the Prime Minister to decide whether or not to refer this matter to Sir Alex Allan as a matter of ministerial discipline, will the Prime Minister be acting in a political capacity or a quasi-judicial capacity? If I may be allowed the luxury of a supplementary question, will the Prime Minister be regarding himself as acting in a judicial or a political capacity?
My Lords, is it not clear from the Prime Minister’s Statement that the Government have now abandoned the Secretary of State’s claim that the Permanent Secretary authorised what was going on? The word “authorised” did not appear once in the Prime Minister’s Statement—and I was listening very carefully. The Leader of the House cannot hope to slither away and say, “What is the difference because the Permanent Secretary is supposed to have said that he was content?”. There is a difference between authorising something and being content with it. Authorising has to do with things ex ante; content has to do with things ex post. When was the Permanent Secretary first made aware of these activities?
My second question is about Sir Alex Allan, who seems to have one of the best sinecures going—in fact, I might put in for it myself. Has it ever occurred to this Government to ask Sir Alex Allan whether he considered it appropriate for him to consider this matter and, if so, what response did they get?
My Lords, on the latter part of that question, I am not aware of any conversations having taken place. Incidentally, there is no way that I could slither away from anything in this House, particularly when asked by the noble Lord, Lord Gilbert. The Permanent Secretary has said that the content and extent of Adam Smith’s contact with News Corp were,
“without authorisation, and were contrary to the clear requirements set out”,
by both himself and the Secretary of State. He has said that he was “aware” of and “content” with the arrangements that were made initially.
My Lords, whatever the outcome of the present episode, does my noble friend the Leader agree that in future it must be absolutely clear that when a Secretary of State and his department are considering such a bid, all contact between the department and an interested party must first be through permanent civil servants; secondly, it must be properly authorised; thirdly, it must be properly recorded; and fourthly, it must be of a formal nature only? Does he also agree that it must be clear that political advisers should not be involved in such contacts in any circumstances, nor should such contacts be marked by the informality and appearance of partiality that marked the e-mails that have recently been released, and that guidance to that effect should be issued formally as quickly as possible?
My Lords, my noble friend makes a very helpful intervention. Of course, we can all use the benefit of hindsight and see that things were not done in an appropriate way. That is why the Prime Minister, as early as last week, asked the Cabinet Secretary, Sir Jeremy Heywood, and the Head of the Civil Service, Sir Bob Kerslake, to write to all departments and Ministers,
“clarifying the rigorous procedures that departments should have in place for handling cases of this nature”,
so that suspicion does not fall on departments, Ministers and their special advisers.
My Lords, when the Leader of the House was replying to my noble friend Lady Royall, he kept asking—I have to say, in a slightly excitable way—“What is going on? What is going on?”. It is very simple. It is the enforcement of the Ministerial Code. That is what we on this side of the House—and, I think, many Cross-Benchers—are very concerned about. The fact is that the Prime Minister tried to refer this to Lord Leveson. Does the Leader of the House agree with Lord Leveson that it was inappropriate for the Prime Minister to try to refer this matter of ministerial discipline and the Ministerial Code to Lord Leveson, which is not within his remit, as the original Statement clearly showed? That is the first point.
The second point is that the special adviser says that the Secretary of State knew nothing about his contacts. That may be so and no doubt an investigation will show whether or not that is correct. Notwithstanding that, paragraph 3.3 of the Ministerial Code—which is what we are talking about—is clear. It states:
“The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment”.
Mr Hunt made the appointment. The special adviser’s contraventions were so serious that he has had to resign. Should the Secretary of State not have had mechanisms in place for discharging his very specific responsibility for the “management and conduct” of his special adviser and, if he did, what were they?
I will tell the noble Baroness exactly what is going on here. These are the cheapest and most vulgar political attacks on my right honourable friend the Secretary of State, whose evidence has not been heard at all. The noble Baroness asked about Lord Leveson’s statement. What did Lord Leveson say? He said:
“I have seen requests for other inquiries and investigations and, of course, I do not seek to constrain Parliament, it seems to me that the better course is to allow this Inquiry”—
that is, his inquiry—“to proceed”. That was done, and the Secretary of State will be able to give evidence to that inquiry in due course. When we have all heard the evidence, it may be that many noble Lords who have spoken today will be eating their words. As to the possible lack of oversight of the special adviser, the special adviser has resigned, having made a fulsome apology and explaining that the action that he took was way beyond the authority given to him by the Secretary of State.
My Lords, the Prime Minister has used this rather particular phrase, that there has been no “grand bargain”, twice now—once at the weekend in his press comments and once in the Statement. Will my noble friend assure us that when the Prime Minister says that there has been no grand bargain, he includes that there have been no small bargains either?
My Lords, as the Leader of the Opposition has referred to what I said about this matter, I should like to clarify that if I may, and ask the Leader of the House whether he agrees with it. I have said that the Prime Minister is responsible for decisions about ministerial conduct and for deciding whether a Minister has or has not breached the code. If he has, or thinks he has, sufficient evidence to justify a decision not to refer the matter to Sir Alex Allan, or to confirm the Minister in his position, he is entitled to do that. If he has doubt, he can ask Sir Alex Allan for advice. He is not obliged to take that advice, but clearly the advice will be very important.
In this case, as I understand it, the Prime Minister takes the view that the evidence that comes before Lord Justice Leveson will be more pervasive, extensive and comprehensive than anything that Sir Alex Allan could get. Lord Justice Leveson is not being asked to take the decision about the Ministerial Code. As I understand it, it is being suggested that the evidence given to his inquiry, elicited by questions from counsel and by all the other procedures, is likely to be more comprehensive and more reliable, since it will be evidence taken on oath, than anything that Sir Alex could achieve. However, Lord Justice Leveson is quite right in saying that he cannot take the decision or give advice about the Ministerial Code. The only person who can take a decision is the Prime Minister, and if he wants advice, he will have to ask Sir Alex Allan.
My Lords, it is good to hear the noble Lord, Lord Armstrong of Ilminster, put his question, and the tone in which he did so will no doubt calm the atmosphere of the House. He described the situation entirely correctly. This is a decision for the Prime Minister. When it comes to disciplining Ministers, the Prime Minister is entitled to make that decision in any way that he wants. Equally, the decision that he has taken, as the noble Lord has laid out, is that the evidence laid before Leveson—in the manner and way in which it will be laid—will be more authoritative and ultimately gain more public acceptance if it is done publicly at the Leveson inquiry rather than secretly by Sir Alex Allan, although I have no doubt that he would do it extremely well. Finally, I agree that Lord Justice Leveson himself cannot make the decision under the Ministerial Code; he has no locus to do so. The Prime Minister will no doubt be able to make a decision once the evidence has been given, and that decision is entirely up to him.
My Lords, following the very helpful intervention by the noble Lord, Lord Armstrong, is it not the case that there is no way—as and when the Minister makes his appearance at Lord Justice Leveson’s inquiry—that the Prime Minister can ensure that the questioning by counsel will bring out all the vital matters that relate specifically to the question of whether the Ministerial Code has been broken? The Leveson inquiry is a general inquiry into the relationship between the media, politicians, the police and so on and does not specifically address the question of whether the Ministerial Code has been broken. Are the Government therefore not relying on the matter coming out incidentally at the inquiry? The Prime Minister is not even prepared to wait until Lord Justice Leveson gives his report. Like the rest of us, he is simply going to watch what is said on television and so on, which may or may not reveal very much. What is really needed is a specific inquiry on whether the Ministerial Code has been broken.
I reiterate that Lord Justice Leveson is not being asked to take a view on whether the Ministerial Code has been broken. We started all this because allegations have been made in the Leveson inquiry. Surely it is only right and proper for my right honourable friend the Secretary of State to be given the opportunity to deal with those allegations by providing whatever evidence he wants. He has laid out the kind of evidence that he will provide, and I believe that it will entirely restore his reputation. During the course of that evidence-taking—and let us remember that this is all about the relationship between politicians and the media—the Prime Minister can take a decision on whether he believes that the Ministerial Code has been broken, and whether to instruct or invite Sir Alex Allan to look into it, or whether to believe that no further action needs to take place. I very much hope that it will be the latter.
My Lords, if the leader of the Opposition was playing party politics with his question, what on earth was the Prime Minister doing with his Statement? I have three questions for the noble Lord. First, how does he reconcile what he said about the Leveson inquiry with Lord Justice Leveson’s refusal to get drawn into the Hunt affair? Is it not the case that the Statement that the noble Lord has quoted came at a rather earlier stage of the proceedings? Secondly, the noble Lord has said that the Secretary of State took independent advice when he did not need to, and acted upon it. However, is it not the case that Ofcom advised him to refer the matter to the Competition Commission, which he did not do? Finally, the noble Lord has said that the Permanent Secretary approved the special adviser’s role as a conduit between the Secretary of State and the Murdoch organisation. However, he was decidedly shifty about this when questioned on it by the Public Accounts Committee. The noble Lord said that the Permanent Secretary was aware of the special adviser’s role and was content. Does the noble Lord agree that that is not the same as giving approval?
My Lords, the Prime Minister was invited to make a Statement by the leader of the Opposition, who was clearly trying to play politics. I do not want to offend the noble Lord, who is a distinguished Cross Bencher, but those of us better versed in the means of politics can see what is going on utterly clearly; it is as clear as daylight. I am under the impression that everything the Secretary of State was required to do during the bid process, he did. He accepted an offer of undertakings by BSkyB, but he referred them as well; and of course when the undertakings were themselves withdrawn, the full referral then took place. As for the role of the Permanent Secretary, I think that I have said everything I can possibly say about that.
Draft House of Lords Reform Bill
Motion to Take Note (Continued)
My Lords, your Lordships can now return to an equally controversial matter, on which I think the camera has somehow got too close to the subject. I know that there is a general impression outside this House, although probably not inside it, that we are observing the early to middle stages of a power struggle between the two Houses, whereas we are actually in the closing stages of a power struggle between the Crown and Parliament.
The Crown and Parliament are the protagonists on whom we should keep our eye. By “the Crown”, I would have said “the Government”, but when one talks about the Government, one tends to think of what is only a thin veneer of ambitious politicians laid over a vast machine with a collective memory that goes back for centuries and which understandably regards Parliament as something of an obstacle to its objectives. As a Minister, one can detect this in individual civil servants, although I should say at this stage that I am commenting not on individuals but on human nature. However, you find that there is surprise and resentment that some proposal that appears to be eminently sensible to people who are not in touch with the mood of public, which as a Minister one has to be, can be obstructed by the parliamentary machine. The combined apparatus of ambitious politicians and career civil servants has a momentum of its own. The Crown as such has been trying to retrieve the power that it lost to Parliament in the 13th century, and it has retrieved a great deal of it.
One cannot survey the history in seven minutes, but I can give a good illustration of the state of play in more or less contemporary times by asking noble Lords to look at the year of 2005, and in particular to what happened between noon on Thursday 10 March of that year and 7.31 pm on the following Friday evening, which if I have calculated the period correctly is a total of 31 hours. Many noble Lords who took part will remember that the then Government had brought in a Bill with a clause that would have empowered the Home Secretary—in the legislation I think it is the “Secretary of State”—having consulted a single senior police officer, to sign a bit of paper that would consign a British citizen to what was called “derogated detention” for up to 90 days without the intervention of any legal force whatever.
Anything less consonant with British liberty or standards of democracy is difficult to imagine. It was got through the House with a government majority of 131 and was carried by a majority of only 14. We removed the clause and sent it back. Commons messages arrived and then we started on a round of ping-pong. As a result, that draconian measure was subject to very thorough judicial supervision and did not resemble what had been sent to us to start with.
Why was the House of Commons not able to control the Government? I remind noble Lords that Parliament was invented to control the Government. What was the difference between that House and this place? There are four differences. The first is that Members of the other place receive a substantial salary and are in what we would regard as career jobs. As has been alluded to, if you lose your seat you can move on to another, but if you lose your seat you lose your job and your salary. It is certainly true that the Whips have the power to deselect a Member so that he actually loses his job and perhaps cannot pay his mortgage, the school fees and so on. That is it, really. Members of Parliament have to be re-elected to hold on to their jobs, so they have to toe the party line; and if a Government have a substantial majority they actually hold those jobs and livelihoods in their hands. In this House, we are not elected and we do not have a salary. Although I benefit from it, I regret the fact that we now have a certain incentive and an interest that we ought to declare in this debate: if we claim it, we are in receipt of £300 a day for attendance. To that extent our continuance in office is a matter of personal concern, but of course we cannot be turned out, as the others can.
The present Government proposal entails the introduction of a majority of elected people who inevitably will have to be paid large sums of money in the form of salaries, and in effect those salaries will be in the gift of the Whips, if they have to be elected Parliament by Parliament. If we are going to move to something along the lines of what is being suggested, it is essential that the term of office, the tenure, should be for at least 15 years, although I would rather see it set at 20 years.
Perhaps your Lordships would pause to reflect for a moment that it was actually the undemocratically produced House that in March 2005 defended the electorate from a democratically elected Government when the elected House was unable to do so. Therefore, I see no need for election. Further, on appointing Members, I would remind noble Lords that more than 50 per cent of this House was appointed during the prime ministership of the then Prime Minister, and I believe I am right in saying that the Government suffered the largest defeat of any Government since the war. So I am here merely to say: please remember that we are trying to preserve the power of Parliament in the face of the Government, and to do that you need at least one House of Parliament with what the Americans call “tenure”. As it is not available in the other place, we ought to have it here.
My Lords, this issue has engaged me since the launch back in the 1980s of Charter 88, which called for House of Lords reform as part of a serious rethink of our constitutional architecture. I chaired Charter 88 from 1992 to 1997 and played a role in putting constitutional reform on the Labour Party manifesto prior to the 1997 election.
More recently, I chaired with the Conservative politician, Ferdinand Mount, the Power inquiry, which also recommended the reform of this Chamber. However, I reinforce the point that those recommendations for a change to this House were set against a backdrop of holistic constitutional reform, a recognition that if you want to reform this House that reform will have knock-on effects and therefore should be seen in the wider context of the checks and balances that are needed to make our system work well. You have to ask questions: what is the second Chamber for, and what are its powers?
For that reason, Charter 88 in its manifestation argued for a written constitution, something that I still believe is necessary, particularly as we become a more mature and sophisticated democracy. We continued to argue in the Power inquiry report that there had to be a written declaration of what the powers of this House would be in relation to the House of Commons. If the primacy of the House of Commons was to be maintained, there would have to be some kind of statutory document or concordat setting down the nature of the respective powers.
We also suggested that there should be a regional basis on which this House might be elected. Parliament is at the heart of our democracy and it is vital that it has the confidence of the people. When the Power inquiry went around the country and asked the public what they felt about the House of Lords, they said that they wanted it to be elected. Interestingly, when the follow-up questions were asked as to what kind of membership they wanted, they said that they wanted it to be expert; they wanted Members to have a hinterland and to have experience in many different walks of life; and they wanted to see independence. They wanted in a strange way to square a very difficult circle, because finding an electoral system to produce that is the real challenge. I am not satisfied that the recommendations in the recent reports meet the requirement.
People repeatedly told us that they wanted independence of mind and a distance from party diktat. They were very clear that they did not want any extension of dominance and control by the main political parties. They did not want any reform that brought an increase in the writ and power of the Executive—that is, Downing Street— whichever party was in power. This was not in relation to any specific distrust of any particular political party. They liked the idea that people had a lifetime’s experience in different walks of life and that that would provide a different kind of Chamber from the other. It is here that I take issue with the noble Lord, Lord MacGregor, who asked what kind of person would want to be in this new Chamber if they could not see a progression in their career. What people really like about this Chamber is that it is filled with people who are not professional politicians as we see in the other House.
What people did not want—we should concentrate a little on what is not liked about this House as we congratulate ourselves on our successes—is for the Lords to be used to reward party donations or as payback for services rendered to a political party or Prime Minister in some form or other or as a place of refuge for persons being removed from the House of Commons. They did not want it to be seen as a place to bump someone into to provide a safe seat for a party favourite. I am afraid that those suspicions are regularly reiterated by critics of this House.
There is wide agreement, therefore, about the need for reform. We are too large, and it is clear that there has to be a review of our size and our purpose, but we have to reflect for a moment on how you achieve that. It really is not becoming for us to congratulate ourselves on how terrific we are and on the quality of our debates. It is for others to say whether that is what they think. It is not enough for us to say that we should be allowed to stay here for ever. It is for others to decide on that. We cannot therefore talk about reforming this House without giving the public their say in how it should be done. It is for that reason that I urge that we consider taking a step similar that to that being recommended by the alternative report, which is that there should be some kind of constitutional convention but not in the form that is being suggested, with the great and the grand and the academic researcher being put on it.
The people doing that should come from among the general public. This is not something that has not been considered in other nations. Recently Canada, which looked at whether it should renew its electoral system and change it from first past the post to a proportional system, created a convention made up of a cross-section of its public. There is a clear methodology for doing that. It had proper and full debates, with evidence gathered from a properly drawn cross-section of the public, who in fact all decided that they preferred first past the post to the proportional representation that had been proposed. It is the public who should decide on this and not parliamentarians, who may have vested interests.
The person to whom we should turn is a very distinguished professor of political science at Stanford University, James Fishkin, who with a whole team of people there has developed this deliberative polling system. He has done it for Canada, and he has done it for other parts of the world when presented with constitutional issues of importance. I would advise this House to embark on having his team conduct such a thing here over the next period and advise our political leaders.
The complementary relationship between the two Houses should be at the forefront of our minds, but it is not acceptable in the 21st century for this House to be created through patronage. Power has to be given to the people. We have been enriched, no doubt, by the many people on the Cross Benches who have come here independently and not as part of the party system, but that could still be done under an electoral system. I am happy for it to be 80:20 per cent hybrid House if that is the consensus, but it is the public who should decide and not us.
My Lords, it is always a pleasure to follow the noble Baroness in debate, especially on constitutional matters, where she has such expertise and knowledge. I want to begin with a personal apology to the noble Lord, Lord Richard. Due to transport problems from Scotland today, I am afraid that I caught only the tail end of his speech, which I very much regret, because I say genuinely that the report that he and his colleagues have produced is a most valuable document for the House, as indeed was the alternative report.
In my seven minutes, I want to say just three things. The first is about what was my own Private Member’s Bill. I say “was”, because once it had been passed by this House, I regarded it as a House of Lords measure, which unfortunately lay unattended in the other place for some seven weeks. However, having registered my fury and the disappointment of the House, I am happy to report that sweetness and light have broken out and that it has been agreed that if a Bill identical to the one that left this House is reintroduced early in the new Session, it will be proposed to be put through the House by expedited procedure so that we do not have to go through all the stages again. When it is sent to the other place, it will be given a fair wind by the Government. I am very pleased to report that. It is important to disentangle that from the wider issues from the wider issues of reform, because it is a measure that we all want now, this year, and not between 2015 and 2025. I look forward to progress on that issue.
My second point is on the Leader of the House’s suggestion that the manifestos of the three parties were remarkably similar at the last election. Well, up to a point, yes; they were also remarkably dissimilar. Of the three, I have to say that I prefer the Liberal Democrat one, because it was unambiguous in saying that we should have a fully elected Chamber. The words “fully elected” are very important because I keep pointing out, especially to my colleagues, that Mr Asquith and the preamble to the 1911 Act never used the words “universal suffrage” or “elected”; they talked about replacing the hereditary House by one based on a popular mandate. I believe that that could be achieved through the alternative report’s suggestion of a constitutional convention and the fact that the committee’s report and the alternative report both gave a nod in the direction of an indirectly elected Chamber merits further consideration.
I have read with interest the pamphlet of the Society of Conservative Lawyers, by Oliver Heald. It does not feature among my regular reading, I must admit, but I thought that it was a very good report. I understand that similar evidence was given to the committee by Mr Billy Bragg, who I think would claim to be on the left of the Labour Party.
I am all for digging up older conventions in order for them to be considered by the new one.
I was going on to say that I have looked further at the work of the Cambridge Liberal Democrat, Dr Alex Reid, whom the noble Lord, Lord Low, mentioned, who also came to this conclusion. There is a measure of support across parties for looking again at the possibility of indirect elections. Dr Meg Russell, in her evidence to the noble Lord’s committee, pointed out that 34 countries used this as their method of obtaining a second Chamber. What I did not know until recently was that there is a precedent for that in the United Kingdom. Precedent is terribly important in this House, I know that, and the precedent existed in Stormont. In the old Stormont, the Senate was elected by the lower House, so there is a precedent for doing that here.
There are certain advantages of the indirect election system as against universal suffrage. First, there is a good chance that if the electorate were existing MPs, MEPs and Members of the devolved Parliaments—a confined electorate—we would retain some of the expertise that appointments brings which we are afraid of losing. It would prevent conflict between the two Houses because the upper House would not be elected by universal suffrage. There would be no territorial conflict between senators and MPs because there would be no territorial definitions. The costs would be much less, both of the election and of running the House. Most important of all, the fundamental difference is that it would be possible, if such an election were held every five years after a general election, for the House to be adjusted proportionately without increasing the numbers, which is the way it is already constantly adjusted.
The last thing I want to say is that I disagree with the main report in its recommendation that there should be a referendum. Here I rather agree with what the Leader of the House was saying. To coin a phrase that has not been heard much recently, I agree with Nick. The question of a referendum is dangerous. We have to remind ourselves that the coalition came together for the specific purpose of putting right the nation's finances—full stop. We have not yet succeeded in doing that. We may not have succeeded in doing that by 2014-15 if the present economic situation continues. If we go to the electorate and say, “Okay we have not quite succeeded in putting the country right as we had hoped to do but would you mind voting for a more expensive new upper Chamber?”, they will say to us, “But you've already asked us about a slightly obscure form of proportional representation. You've already messed about with constituency boundaries and tinkered with the National Health Service. You’ve spent months in both Houses reforming the House of Lords and what we want is to get the nation's finances back on a proper footing”. They might say no. They are very likely to say no.
I end with the recollection that I was involved in the referendum in 1979 in Scotland. The late John Smith was a very good personal friend of mine from student debating days, despite our political differences. I remember that the one time we fell out was during that referendum because I said, “You’re daft to have pictures of Jim Callaghan, after the winter of discontent, on posters with the word ‘yes’ underneath. The public are minded to say no to the Government whatever the question”. I that fear the same will happen again and we could end up with nothing at all.
My Lords, I join the many, blessedly without even attempting to repeat the views of the many, who have grave misgivings about the draft Bill and would favour only modest, provenly necessary, incremental reform of the kind that the noble Lord, Lord Steel, introduced in his Bill, which we are glad to know is back on course.
Of course, everyone here has benefited from reading the report of the noble Lord, Lord Richard. I was for example reinforced in my support for our bicameral Parliament that we have enjoyed for so long, at least until such time that the House of Commons can be trusted to scrutinise the Bills that it passes upwards. I welcome the idea of reducing the size of the House of Lords to something under 500. I welcome bringing in a term limit, and 15 years sounds just about right to me although I would prefer this to be done in three five-year bites, which could be manipulated to give the Appointments Commission a bit more room for manoeuvre. I share the strong feelings over Clause 2, as one who welcomes and would go on supporting the primacy of the House of Commons. I note with alarm the words in House of Lords Reform: An Alternative Way Forward that the draft Bill reveals an,
“unbridgeable gap between the election of the House of Lords and the primacy of the House of Commons”.
What I miss in the report is any convincing argument that the proposed massive change would mean that a new second Chamber would be any better than our present Chamber at what the present Chamber does best, which is revising and advising. Just think of the legislation that has passed through this House this year on health, welfare and legal aid. Bills were not only in need of root and branch revision, but they got it and, let us be fair, they got it above all through the intervention of the Cross-Benchers.
Obviously I would say that. I grant that not all the House’s expertise, for which we are famed up and down the land, resides on these Cross Benches. But most of it does. I am astonished at the way in which we have come to expect something like a reduction to 20 per cent of a reduced total House as sufficient to get the kind of expertise that we have at the moment. The hybrid House that we are threatened with would be a very poor exchange for an alternatively revised House in which the independents in fact would form the core, serving and served by a political architecture like at present but smaller, representing the structures of government and opposition. My sense of the national mood is that our people would happily settle for such a House of Lords. I do not think that the people at large are so enamoured of what they currently get in the House of Commons as the result of their democratic vote as to be anything other than perfectly happy to forego the privilege of something similar but of paler complexion in the House of Lords.
My Lords, when the House debated its proposed reform on 21 June last year, I commented on a single issue: the Parliament Acts. I will do the same today. There are now two issues. The first is whether the Parliament Acts can be used to drive through a House of Lords reform Bill without its consent—the antithesis of a consensual approach. Secondly, there is whether the Parliament Acts will continue to be effective once the second Chamber has an elected element in it.
I proposed to the House and later suggested to the committee that the Attorney-General’s advice be sought. The Attorney-General declined, in the main on the grounds that it would not be,
“appropriate for the Law Officers to advise Parliament on issues relating to the Government’s legislative programme”.
The Attorney-General was not asked to advise on the programme but on a particular draft Bill. I would have thought it highly desirable for the law officers, who can call on the widest possible resources upon which to formulate their views, to assist Parliament as requested. The committee quite bluntly states that it,
“regrets that the Attorney General felt unable to assist the Committee to understand his reasoning in respect of such an important matter”.
If I was Attorney-General, I would be very unhappy to have such a weighty Joint Committee of both Houses pass such strictures. Perhaps the Attorney-General would think again if a specific Bill were brought to his attention. His interpretation, in addition to the weighty legal opinions that he points out exist within this House, would be extremely beneficial to our proceedings.
I set out in my earlier speech the caveats entered into in the opinions of Law Lords in the fox-hunter case, Jackson v Attorney-General, on possible limitations to the use of the Parliament Acts. Despite the caveats, I concluded that,
“the weight of opinion … may well lead towards recognising a considerable supremacy for Parliament”.—[Official Report, 21/6/11; col. 1188].
By “Parliament”, I mean the House of Commons. This preliminary view is reinforced by the more deeply researched and persuasive views of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Goldsmith.
That aspect in itself was not my main concern, as I said in my letter to the committee. Since the issue is justiciable, courts at different levels have been known to disagree with each other and, in the words of the noble and learned Lord, Lord Steyn,
“the courts have a part to play in defining the limits of Parliament's legislative sovereignty”,
does Parliament wish to run the risk in such litigation of the possibility of at least the perception of politicising the courts? I leave it at that.
The second issue, which is more germane, is whether there is any reason why the Parliament Acts could not be used if we had an elected House of Lords. Both the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, commented on that and raised their concerns, to put it mildly. The noble Lord, Lord Pannick, said in his evidence that,
“the better view is that the 1911 Act would not apply in the event that the upper Chamber were wholly or mainly elected”.
As the noble and learned Lord, Lord Goldsmith, says,
“the vague and general provisions of the proposed Section 2 … do not seem … adequate for that purpose”.
The committee, having considered the matter, concludes:
“If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision for it”.
The alternative report reaches a similar conclusion, and I agree with it. The Joint Committee reports that,
“the Government … placed great reliance on the fact that the Acts will continue in force, and may be used with more frequency, even after the reform is in place”.
This is one of the important building bricks to underpin the thesis that, despite this House being elected, the primacy of the Commons will prevail. If so, why on earth are the Acts not referred to in the draft Bill? This is a startling omission and either the Government do not mean what they claim as regards primacy or it is sheer incompetence. I strongly suspect that the Attorney-General was not consulted on this. I commend the overwhelming view that the Bill should be specific and state that the Acts will continue to play their part as the committee maintains if the reforms proposed ever come about.