Memorandum by Viscount John Thurso MP
(LR 16)
I attach a copy of a paper which I wrote in
1999 to the Spokesman for the working group within the Liberal
Democrats in the House of Lords. Although my views in some areas
have moved on, the paper broadly details my thoughts.
One point not contained in the paper but which
I do feel is important is that there should be a minimum age limit
for entry into the House or Lords which should be something in
the order of 45 or 50 years of age. To preserve the character
of the House of Lords and the quality of debate in the chamber,
it is important that it is not available at the beginning of a
professional political career to reflect maturity amongst its
members.
December 2001
REFORM OF THE HOUSE OF LORDS
INTRODUCTION
As a hereditary radical I have long been committed
to the reform of the Constitution and in particular to both Houses
of Parliament and Westminster. Since taking my seat I have had
an opportunity to experience the House at work and therefore to
observe the practical realities rather more than the theoretical
consideration I had given to the subject previously. The thoughts
contained in this Memorandum were largely formulated during my
first two years in the House. Last year I began writing them down
largely to clarify my own thinking. Following publication of the
Government's White Paper, I have re-written this Memorandum to
take it into account and for submission to our Party Group. Although
not strictly speaking part of the terms of reference I have therefore
left in comments on the first stage of reform.
STAGE 1 REFORM
Before coming to the House I was opposed to
the concept of two stage reform principally because I believed
that following the first stage of reform, the impetus for change
would be lost and consequently that there was a strong possibility
that the second stage would not occur. I have now come to the
view that two stage reform is preferable for three main reasons;
firstly because the complexity of going for full reform in one
Bill is too great and the result would probably therefore be no
reform; secondly because the political climate has changed sufficiently
that the first stage of reform will actually increase the momentum
and likelihood of full reform; and thirdly because even if only
one stage is achieved, the House will be more legitimate and partial
reform is preferable to no reform. There remains however the possibility
that the second stage of reform may not be enacted as quickly
as is currently envisaged. Thought should therefore be given to
issues which should be included in the first stage.
First stage reform should include a clause which
would permit parliamentary Peers to resign their seat. This has
two advantages. First it addresses the age question without imposing
a mandatory retirement age. There are many Life Peers who have
put in long and loyal service and who find the burdens of regular
attendance onerous. Such a clause would permit Peers who felt
they had done their duty to resign with honour thereby allowing
younger Peers to take their place. At the same time, being voluntary,
it would put those senior Peers who feel that age is no bar and
wish to continue contributing to carry on. Secondly, it would
permit younger Peers to resign in the event that they wished to
follow a different political path and seek election to the Commons
or another parliament. It is noticeable that there have been a
number of appointments to the Labour benches in particular of
young and able people, without great previous political experience,
who may therefore be encouraged to participate more fully in elective
politics. A right of resignation would therefore enable them to
seek such election.
SECOND STAGE
REFORM
The purpose of reform is improvement. Therefore,
before considering either the functions or the composition of
a reformed House, it is helpful to analyse the strengths and weaknesses
of the existing House.
Weaknesses
— Legitimacy. Even when the House is
right the current composition ensures that it is portrayed in
the Media as being anachronistic and unrepresentative. The House
therefore lacks authority for its decisions.
— Party Bias. The House can effectively
be controlled by one Party at any time.
— Unrepresentative. This is normally
a charge laid at the doors of the Hereditaries. Although this
is true it can also be made against Life Peers. Certain sections
of society are heavily over represented amongst Life Peers whilst
others are unrepresented. The legal profession in particular,
not simply through the judiciary but also through the number of
solicitors and barristers, is heavily represented. Retired members
of the Commons also form another large block. Academia and the
Arts also receive very full representation whilst many sectors
of industry are unrepresented.
— Age. Life tenure, particularly amongst
the Life Peers, means that the average age of the House is high.
Strengths
— Quality of Debate. The quality and
maturity of debate in the House is evident. It comes from a number
of strengths identified below.
— Independence. The ability of members
to sit for their life gives an independence from Party Whip which
is an important factor in the consideration given to both legislation
and debates.
— No constituencies. Having no burden
of constituency workload members are able to devote their time
to their interests.
— Regional Balance. Members of the
House appear to be more widely spread across the country than
the Commons which, taken with the absence of constituency duties,
gives them a more regional rather than local view.
— Experience. The vast majority of
members come to the House, whether Life Peers or Hereditaries,
having had a full life in another sphere. By contrast the majority
of members of the Commons seek election at a relatively early
age and are very often career politicians without experience of
other areas.
— The Cross Benches. The genuine independence
of the Life members of the Cross Benches is an extremely valuable
part of the composition of the House.
— The Committee Process. The House
has evolved a particularly effective Committee process for examining
topics across the board rather than through the strictly departmental
lines taken in the Commons.
ROLE
Until the 1911 Parliament Act both Houses were
equal. In theory both Houses remain equal but with certain restrictions
on the House of Lords. In practice the Commons is the dominant
Chamber and the Lords as much by convention as by statute, defers
to the Commons. This situation has arisen however due to the illegitimacy
of the Lords. Any process which legitimises the Lords therefore
calls into question the relationship between the Lords and the
Commons. Whilst it is appropriate that a general election to the
Commons should determine the Government, it is also appropriate
that a legitimised House of Lords, particularly if it is largely
elected, should have the authority and will to exercise its powers
to the full. The principal defect of the Commons is that under
the "first past the post" system one party can obtain
a substantial majority without the approval of the majority of
voters. At present the Commons does not take the Lords seriously
and uses it inbuilt majority to reject many sensible amendments
to Bills. Whilst the Government should continue to have the right
to ensure that the Manifesto Bills become law, it should lose
the right to reject amendments with such ease.
Successful devolution would inevitably lead
to a reduction in representation at Westminster from devolved
countries. This is clearly correct. However the result, with more
demographically equal constituencies in the Commons, will concentrate
representation in the most highly populated areas, mainly the
Home Counties. Many Second Chambers take account of the differing
needs of geography and population by basing one Chamber on population
and the other on geography. The most notable example is probably
the Senate in the United States, with the Commons representing
the population, the Lords should represent the geographic spread
and diversity of the country.
The ability of the House to hold debates on
the floor and to produce reports from Select Committees has given
it a particular ability to raise and enquire into a wide variety
of subjects which the Commons has neither the appetite nor the
ability to do. The investigative role of the House of Lords should
therefore be at least maintained if not strengthened.
A major part of the work of the current House
of Lords is its judicial role as the Supreme Court. There is considerable
merit in the argument in favour of a separate Supreme Court and
for complete separation of the judicial process from the legislative
process. However, the complexities of reform of the judicial process
and the creation of a Supreme Court are such that it should not
be attempted as part of a second stage of reform of the House
of Lords. It is of such crucial constitutional importance that
it should be considered and debated as a separate subject and,
if thought desirable, enacted as a third stage of reform.
There are a number of other functions which
the House of Lords could usefully undertake which do not currently
form part of its role. These might include a formal process of
consideration of external treaties, formal links with the European
Parliament, or formal consideration of constitutional mattes particularly
with regard to the devolved parliaments.
POWERS OF
THE HOUSE
The Government White Paper suggests that the
current theoretical powers of the House should be reduced on the
basis that a more legitimate House will exercise its powers more
readily. In particular it suggests removal of the power of the
House to reject secondary legislation. One of the principal defects
of the current relationship between the Houses is the inability
by convention of the Lords to deal with secondary legislation.
Effectively there is no check on the dictate of the Minister given
the likelihood of an absolute majority in the Commons. Ministers
should not be protected in this way. One of the most important
elements of a reformed House should be to retain the ability to
reject secondary legislation and to exercise that power.
THE COMPOSITION
OF A
REFORMED HOUSE
The key strengths of the current House which
it would be desirable to retain in a reformed House are:
(1) the independence of members from Party
Whip;
(2) a genuine Cross Bench representation;
(3) a regional role rather than local or
constituency basis;
(4) the quality of debate;
(5) the wisdom and experience of life of
its members; and
(6) the ability of all members to engage
in debate, ask questions or take part in the business of the House
without the interference of a Speaker.
The qualities absent from the current House
which need to be injected are:
(1) legitimacy and the consequent authority
that devolves from it;
(2) clearly different role to that of the
Commons; and
(3) a clear definition of its function.
SUGGESTED COMPOSITION
OF A
REVISED HOUSE
Three-quarters of the House should be elected
with one quarter appointed.
Appointed Peers
It is not practically possible to provide for
the Cross Benches by any form of a direct election, although it
might be possible to consider giving certain electoral colleges
an ability to nominate Peers for appointment to represent those
particular interests. However, on balance, given the requirement
for Cross Benchers to be truly independent, and knowing that many
such people would never seek election, it is on balance preferable
that the Cross Benchers be by appointment. The Cross Bench number
would as now contain Law Lords.
Elected Peers
Elected Peers would almost certainly take a
Party Whip. Peers would be elected by PR on a list system representing
large regional constituencies. There might be 11 constituencies
from the United Kingdom, seven for England, three for Scotland
and one for Wales.
Term of Office
All Peers whether elected or appointed would
sit for 12 years and would not be eligible for re-election or
reappointment. Appointed Peers would be appointed during the Summer
Recess prior to the following Queen's Speech and would take their
seat from the Queen's Speech. At the end of their term they would
cease to sit immediately prior to the Queen's Speech.
Elected Peers would be elected on the basis
of one third of the House retiring every four years. Election
would take place in the summer and Peers would take their seat
at the Queen's Speech following. On completion of 12 years service,
Peers would cease to sit immediately prior to the Queen's Speech
following the election of their replacement.
Suggested Numbers
On the basis of 11 constituencies, each constituency
might have nine members so that 99 new Peers would be elected
every four years. On the basis of three-quarters elected and one
quarter appointed, the Cross Benches would also number 99, giving
a total composition of the House of 397.
In view of the requirement to have certain members
of the Government present in the House of Lords, most notably
the Lord Chancellor, a further few places might be reserved for
a political appointment by the Prime Minister to sit in the House
for the same duration as a commons parliament. Such by Appointees
would enter the House by appointment by the Prime Minister immediately
following a general election to the Commons and would leave the
House either when the Government failed to be re-elected or asked
to resign their office by the Prime Minister.
Comments on the above Model
The objective in having a fixed term of 12 years
is primarily to preserve the independence of members from the
Party Whip. The term is long enough for them to make a valuable
contribution but not so long as to be life tenure. It has the
subsidiary benefit of making it unlikely as a starting point for
a career in politics leading to Government and more likely to
continue to attract members who have experienced life in another
sphere prior to coming to the House.
The appointment of Cross Benchers and the use
of PR means that it would be unlikely that any Party would be
able to dominate the House. The more consensual nature of the
Lords as opposed to the Commons would therefore be maintained.
It is of paramount importance that the elected
section of the Second Chamber be by direct election by the people.
Numerous suggestions for electoral colleges have been made with
particular reference to the German system where the Landers elect
members to the Bundesrat. Given the United Kingdom is not a truly
federal system, such representation by the devolved parliaments
would be bound to detract from the quality of the House of Lords
and to impair the relationship between the devolved parliaments
and Westminster. Other electoral colleges are superficially attractive
but ultimately there is no substitute for democracy and for placing
ones trust in an electoral system which truly represents the wishes
of the electorate. Of all parties the Liberal Democrats must not
fight shy of trusting the people.
Three Year Rolling Election of One Third
The elected section means that at any one time,
only one quarter of the House will be newly elected. This will
undoubtedly help to preserve the continuity and smooth running
of the House.
CONCLUSION
It is said that if 10 people are placed in a
room, they will produce 14 solutions for reform of the House of
Lords. The above may be the fifteenth. Although much work would
require to be done on the detail, I believe that the broad principles
outlined above would lead to a Second Chamber composed of the
right people, properly elected to fulfil a genuinely complementary
role to the House of Commons.
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