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Mr. Shepherd: If I heard the hon. and learned Gentleman correctly, he said that the amendment could be supported by unicameralists and those who believed in an elected House. What about the Appellate Jurisdiction Act 1876, relating to the Law Lords? What about the bishops? The amendment does not remove them, and the hon. and learned Gentleman has not commented on that aspect.

Mr. Marshall-Andrews: I can only say that, in the overall sweep of the proposed measures, I have left the bishops behind. I have discussed the Law Lords with the hon. Gentleman, and I have no quarrel with the

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concept of their sitting in a second Chamber. As for the bishops, I would be minded to accept the hon. Gentleman's amendment.

Mr. Phil Hope (Corby): The more I listen to the debate and the interventions from various parts of the Chamber, the more it seems that my hon. and learned Friend is plunging us into a debate on patronage in uncharted waters. Surely he recognises that the arrangements for a transitional House and for a royal commission that will operate according to a strict timetable and which will deal with those issues directly and comprehensively, offers a far better approach than the amendments.

Mr. Marshall-Andrews: That intervention distresses me a little. I anticipated that someone would say, "That is the business of a royal commission. Whether we will be saddled with patronage into the next millennium is a matter for a royal commission of the great and good." We have seen them and they are the great and good, I suppose. I suspect that nothing very radical will come out of the royal commission; in fact, I would wager quite a lot of money that nothing radical will come out of it. The idea that the House of Commons does not understand the elementary principle of patronage and must therefore ask a royal commission of the great and good to tell us whether we should continue with legislation that would allow a second Chamber to be appointed by the patronage of politicians is an abnegation of our responsibility.

Mr. Hope: Surely the whole point about the royal commission is that the report will come back to a Joint Committee of both Houses and will be decided on by the House of Commons. My hon. and learned Friend's argument is completely defeated by the point that he has just made.

Mr. Marshall-Andrews: There is a touching faith in royal commissions and in Joint Committees of the Houses of Parliament, but one of the problems with the royal commission is that its remit is far too wide. It has not been asked to tell us how to do something that we want to do; it has been asked what we should do.

There is no problem with the House of Commons saying to a royal commission, "You can go away and tell us by comparative studies"--and with a large and very expensive secretariat--"what the options are," but the two options that we are--

The Chairman: Order. I have allowed the hon. and learned Gentleman to embroider his arguments to make his case, but he has now embroidered far enough. This is not a general debate about patronage. It is specifically about whether patronage should be exercised in particular circumstances. He must come back to the narrow confines of his amendment.

Mr. Marshall-Andrews: I accept that stricture entirely.

I finish with a unicameralist point, which falls strictly within the ambit of patronage and raises the question of whether we should press the amendment. It is as well that we realise in the House of Commons that continually clinging to the existence of a House of Lords, whatever the means by which it is elected--whether it be through patronage, whether people are pushed or driven in from

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the streets, or whether they are appointed by lottery--is an admission that it is an alibi for our shortcomings. For that reason, I have moved the amendment and will listen with interest to what the Government have to say.

Mr. Tyrie: I have much sympathy with what I have just heard from the hon. and learned Member for Medway (Mr. Marshall-Andrews). I particularly agree that there does not seem to be any need for the royal commission to take a look at patronage. The terms of my new clauses are much narrower and more closely confined than the hon. and learned Gentleman's sweeping effort to attack patronage.

I have tabled two new clauses. The first, new clause 17, is designed to remove the direct power of patronage from the Prime Minister to appoint his people to the House of Lords. Its intention is to reduce the extent to which appointments, or the promise of appointments, to the Lords can be used as a tool of control. It is intended to increase the likelihood that appointments will be made on the ground of someone's capacity to play a constitutional role in the Lords, rather than merely as a means of bestowing an honour.

The main function of a second Chamber should not be to serve as some elaborate lollipop for superannuated commoners, or friends or cronies of the Prime Minister of the day. It should be a place that is not just capable of exercising some constitutional check on the Executive, but which is keen to do so. Therefore, new clause 17 gives absolute discretion to the Appointments Commission to make recommendations to the Prime Minister.

I may be a little optimistic, but my impression is that the White Paper half agrees with that approach. It reads on page 45:


political appointments--


    "for the Appointments Commission, if it continued to function",

that is, after the interim period.

Without my new clause, most patronage powers will still be in the hands of the Prime Minister, even after the Bill is passed. With it, at least some of those powers with respect to the Lords will be at one remove. He will, of course, appoint the appointees, which is why I have tabled new clause 20.

7.15 pm

New clause 20 takes the powers of new clause 17 further. It limits the number of appointments that can be made in absolute terms in any one year. Even if a Prime Minister succeeds in exercising disproportionate influence over the Appointments Commission, the new clause will still restrict his power of patronage. It should eliminate the process of packing the Lords.

Dr. Phyllis Starkey (Milton Keynes, South-West): Will the hon. Gentleman give way?

Mr. Tyrie: I will in a moment.

The numbers set out in new clause 20 may look odd at first, but they are straightforward. Subsection (2) limits the overall number of appointments in any one year to 22. That figure is the average annual number of appointments

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to the House of Lords since 1958, when life peerages were introduced. Under subsection (3), only 17 of those would be permitted to be explicitly party political appointments.

At the moment, 25 per cent. of surviving peers created since 1958 are Cross Benchers and 75 per cent. have stated party political affiliations. I have applied the same 75:25 ratio in a rough and ready way to the figure 22 to arrive at 17. It comes out at 16.5; rounded up, it is 17. That is where the figures 22 and 17 come from.

Under subsection (3), political appointments would have to be made in proportion to the votes cast for each party at the last general election.

Dr. Starkey rose--

Mr. Linton rose--

Mr. Tyrie: I will give way to the hon. Member for Milton Keynes, South-West (Dr. Starkey) first.

Dr. Starkey: It was precisely that point that I wanted to take up. Has the hon. Gentleman done a mathematical model of how his proposals would work out? I confess that I have not, but it seems that, with the creation of 17 life peerages a year, it would take an unconscionable time for us to achieve anything near parity between the Labour party and the Conservative party. Has he been so good as to create the background computer model so that we know how many years the process will take?

Mr. Tyrie: I do not agree that that is the right approach to achieve proportionality. My new clause is not targeted at achieving that objective, but may I suggest another way to achieve proportionality, if that is what the hon. Lady so desires? We might, for example, introduce a retirement age at 75. A disproportionate number of elderly life peers are Conservative. I think that she will find, if she looks, that a retirement age of 75 would deliver exact proportionality between Labour and Conservative life peers.

Addressing that issue is not the purpose of the new clause; indeed, I would be straying from my intention if I did so. The purpose of the new clause is broadly the same as that of the amendment tabled by the hon. and learned Member for Medway.

Mr. Linton: Will the hon. Gentleman give way?

Mr. Tyrie: I will, but then I must get on.

Mr. Linton: I am glad to hear that the hon. Gentleman's sights are set on the target of patronage, but would not the consequence of the new clause be to retain for ever the Conservative party's stranglehold on the House of Lords?

Mr. Tyrie: I have just tried to answer that point by pointing out that it will do no such thing. That is contingent on whatever other changes are desired. That is not the purpose of the new clause. I have already suggested one alternative route that I considered taking, which I have discussed with the Clerks; I may yet table an amendment as a means of moving in that direction.

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Subsection (3) of new clause 20 would provide that political appointments should be roughly proportional to the votes cast at the previous general election. Applying that principle--bearing in mind the run of Conservative victories--should imply not a House of exact proportionality but one that would inevitably, because of the time lags involved, leave rather more Conservative peers in the upper House than the number of Labour peers there are now. If Labour succeeded in winning a string of general elections, the position would be reversed. Appointment by strict proportionality does not imply a House that is always in exact balance.

On that I pray in aid of my subsection the Labour party manifesto, which reads:


Therefore, by implication, Labour is accepting the principle that numbers in the upper House should not always--because of the possibility of a string of general election victories by one party--be exactly even.

I shall not deal with the details of subsection (4) save to say that it would exclude bishops and judges from the provisions of the new clause.

I think that the practicality of my new clauses deserves a moment or two of consideration. The Registration of Political Parties Act 1998 gives us some hope that the new clauses could be practical amendments and provides, for the first time, clear definitions of what constitutes party political affiliation. All parties are currently in the process of creating formal registration systems. Although I did not consider it worth adding to the new clauses to deal with the matter, I think that a sensible approach to it would be that, when an applicant is being considered for a peerage by the Appointments Commission, he or she should be required to sign a declaration stating whether he or she had any party political affiliation.

The case for addressing the patronage issue has already been made eloquently today. However, I should like to address the issue in a different--perhaps less emotional, or less trenchant--manner than that of the hon. and learned Member for Medway.

Patronage has been a problem in Lords reform for very many years--going back well before the Life Peerages Act 1958. Many of those who considered the issues concluded that the power of patronage is a severe drawback, if not a complete bar, to the likelihood of ever enabling a fully appointed upper House to work effectively.

It is important to bear in mind that the Lords will become a fully appointed House, unless the Weatherill amendment is passed. It is worth recalling the conclusions of several of those who have given thought to the issue in the past. Winston Churchill, for example, in a 1925 memorandum to a Cabinet Committee--which, as it happens, was a Conservative one which was working up proposals for a partly elected upper House--wrote:


of peers--


    " . . . will be a trumpery foundation. The nominated senators, or whatever they were called, would owe their position solely to the favour of a party leader."

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Although that was Churchill's view with a Conservative hat on, that was also his view when he was a Liberal. As early as 1907, in a political journal, he argued:


    "Abruptly we may dismiss all those ingenious plans . . . for creating an august senate of unrepresentative persons."

As it happens, for most of the interwar period, Churchill wanted an elected upper House. As he said:


    "If we are to leave the venerable if somewhat crumbled rock on which the House of Lords now stands there is no safe foothold until we come to an elected chamber."

I think that the reform that we are considering will find itself moving inexorably and inevitably in that direction.

Concern about the power of patronage in an appointed House was one of the reasons why Churchill concluded that an elected Chamber would eventually be the end point of any reform, and why he ended up supporting one.

Worries about the power of patronage have, of course, pursued more recent reformers. The original reform proposals thought up in 1958, which led to life peerages, were much more sophisticated than the ones that finally ended up on the statute book. The Conservative committee that was thinking through those proposals originally argued that, in the long run, there should be a ceiling on the number of peers serving in the upper House. Any ceiling inevitably means that the annual number of appointments becomes limited to vacancies by death.

Richard Crossman was one of the very few serious Labour thinkers on those issues--the right hon. Member for Chesterfield (Mr. Benn) also is a distinguished member of that group. Richard Crossman's 1968 proposals also contained a de facto limit on patronage. I shall not describe all the details of those proposals, as I am sure that the Committee would find it incredibly boring if I were to do so.

The Home report, which was produced by the Conservative party in the 1970s, also proposed capping the size of the House of Lords, at about 400. That would have limited patronage in much the same way as the 1958 proposals.

I quite deeply regret that a belt-and-braces approach--such as I am proposing--to the restriction of patronage is required. However, clearly, the worst fears of some of those who had concerns earlier in the century about the relationship between an entirely appointed House and patronage are now being realised.

No one would suggest that, over the years, all the abuses have been on one side. Historically, perhaps Liberal abuses of the power of patronage towards the beginning of the century are the most salient and the most memorable. But the problem has recently turned into a crisis, as every conceivable convention on the appointment of peers is being overridden by the current, Labour Government. I shall confine myself to only two such breaches of precedent.

The first is that the current Prime Minister is appointing a higher proportion of Labour peers, as against other parties, than ever before. More than 50 per cent. of his appointees take the Labour Whip. By convention, since 1958, the percentage has never risen above 50 per cent. Since 1958, Callaghan, Wilson and my right hon. Friend the Member for Old Bexley and Sidcup (Sir E. Heath)--all Prime Ministers--kept the percentage below 50 per cent.; not once has it risen above 50 per cent. Now, under the current Prime Minister, it is rising above 50 per cent.

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The second precedent--and its breach is more serious--goes back hundreds of years. Packing the Lords has always been regarded as unconstitutional. On all previous occasions when swamping or packing was considered, it was justified on only one ground: the need to avoid gridlock between the two Houses. That held true in the very first case that I know of--in 1713, to pass the treaty of Utrecht--as it did during passage of the great Reform Act 1832, when, rather as with the treaty of Utrecht, the threat was to create a dozen or 15 peers. In 1911, the threat was to create about 100 peers, or possibly even 200 peers, to pass the Parliament Act 1911 and to end the gridlock.

The 1911 Act--with its limitation on the power of delay, followed by the further limitation, in 1949--removed the justification of packing the upper House to deal with gridlock, as it removed that gridlock.

The plain fact is that--right now--the Prime Minister is packing the Lords, in breach of a centuries-old parliamentary convention.


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