The New Second Chamber Note from the Rt
Hon the Lord Howe of Aberavon, CH QC
1. "For anyone afraid", says Edmund
Dell "that ignorance renders him ineligible for responsibility,
politics is not the right profession". (The Chancellors,
Harper Collins (1997) page 259.) That is my excuse for venturing
as a non-expert into this field, Four keys texts to which I make
some reference are:
— the "informal study" by
the Earl of Carnarvon and others ("CAR");
— Modernising Parliament, (Cm
4183 ("JAY");
— the Royal Commission's Consultation
Paper ("WAK"); and
— report of Lord Mackay of Clashfern's
Commission ("MAC").
KEY ARGUMENT:
2. The Second Chamber is an essential feature
of Parliament. It needs to be acceptable as well as effective.
Stage One (removal of the hereditaries) is justified by its protagonists
overwhelmingly on the grounds of acceptability: in principle and
because the present system sustains one-party "dominance".
3. Stage One (even if "Weatherill"
is accepted) will have a major practical impact: a large reduction
in numbers—and thus in the range and diversity of potentially
available experience, expertise and independence. The method whereby
and, more important, the extent to which these qualities are replaced
will have a similarly far-reaching effect.
4. Given that our constitution—even
more than most others—"is an organism rather than a
machine" (CAR: paragraph 12[7]),
it is of the utmost importance to assess and provide for (or against)
the impact, upon a presently effective system, of this major surgical
shock. A heart transplant is hazardous enough. Cardiectomy (for
that is almost the effect of Stage One[8])
is much more dangerous—not least for a "mature"
patient. Hyper-intensive care and far-sighted planning is urgently
essential, if the acknowledged effectiveness of the existing system
is not to be reduced, perhaps very seriously. Even in the cause
of acceptability, the Second Chamber can ill afford any significant
loss of effectiveness.
5. To that end, I suggest some questions
that call, in some cases, for research-based consideration—and
offer answers to some of them.
HOW GREAT
IS THE
PRESENT MISCHIEF?
6. It is important to understand how narrowly
based (though not unimportant) is the case for reform (summarised
in paragraph 2 above). The case for the prosecution is summarised
on one sentence (JAY, Chapter 1, page 3):
"The present House of Lords suffers from
a lack of legitimacy because of its anachronistic and unrepresentative
composition".
7. But when one searches the rest of the
indictment for any amplification of this case, one looks in vain.
Thus, in JAY (Chapter 2, pages 6 and 11, paragraphs 9 and 26)
it is suggested that "the work", "the functions"
and "the contribution" of the House could be improved
and "the problems" addressed—but only, on closer
examination, by tackling the single question: "the lack of
legitimacy", and "the anachronism of composition".
8. The development of this case, in JAY,
Chapter 5, ("Why Reform is Necessary", page 27, paragraphs
3 and 4) goes no further in substance than the same headlines:
"an anachronism", and "unrepresentative".
9. Apart from this central point, one might
have expected some allegations—at least from outsiders,
since none appear in the case formally presented—that the
House does its present work less than well. But not so. All the
suggestions for improvement (featured in abundance in WAK) do
not involve doing things better—but doing more things well:
surveillance of human rights or constitutional questions, scrutinising
treaties or public appointments, questioning Commons ministers—even
becoming "more family friendly". I have myself supported
(and still do) some of these proposals; but one should at least
question their urgency, at a time when the workforce, still—despite
devolution—facing a heavy workload, is about to be sharply
reduced.
10. Even in respect of relations with the
House of Commons, significant complaint (except about the unrepresentative
and unbalanced composition of today's Upper House) is scarcely
suggested and certainly not sustained. On the contrary (see JAY,
Chapter 8, page 48, paragraph 29) "extreme care would be
necessary", indeed "of particular importance",
to ensure that the present balance is not disturbed by the process
of reform.
BABIES WITH
THE HEREDITARY
BATH WATER?
11. By contrast with the case against, the
positive case in favour of present arrangements emerges very clearly
from the texts. Two essential features, established by the "important
reforms" made in the legislation of 1911, 1949 and 1958,
are identified in JAY (Chapter 2, page 7, paragraph 11):
— the introduction of "able and
talented people from differing backgrounds and with different
skills" (1958); and
— ensuring that (except in respect
of extending the life of Parliament) "the will of the House
of Commons over primary legislation should always prevail"
(1911 and 1949).
The significance of these reforms is well recognised—and
they are mildly criticised, only because they "did not wholly
address the fundamental problems" (my italics): legitimacy
and method of selection (which takes us back to where we came
in: paragraphs 6 to 8 above).
12. The substantial value in constitutional
practice of these arrangements is well expanded in MAC (Chapter
2, page 11, paragraphs 10 and 11 and Chapter 3, page 17, paragraph
18). The "essential reality" is that it is not the Government
but "the House of Commons alone which disposes of power:
the House of Lords proposes how power might be better disposed,
leaving to the Commons the power of decision". The Second
Chamber's role (although, says MAC, some might see it "as
beneath the dignity of a House of Parliament") is thus rightly
defined as no more (but no less than) "advisory".
13. On this basis, it might seem strange
to over-dignify the new Second Chamber with the title of "Senate".
The British tradition of understatement and organic change suggests
that the working title of "Second Chamber" is the one
which deserves to survive and flourish. (Cf "the other place")
"MSC" and "MEP" might thus compete alongside
each other for public recognition and acceptance, leaving the
two-letter men (and women) of the "lower" House still
in the lead.
14. The other positive features of the present
House's performance do literally shine out from the case presented
for reform. All the more reason, it may be thought, for taking
the utmost care to avoid their diminution or extinction.
15. "The most valued features of the
present House" are summarised in JAY, Chapter 8, page 49,
paragraph 35 and are earlier spelt out in Chapter 7, pages 36
to 40, paragraphs 7 to 22. The epithets (not often applied to
other legislative assemblies—not even, dare it be said,
to the other place) speak for themselves: "most valuable",
"real expertise", "distinctive", "well-regarded",
"distinguished" and "particularly valuable".
I gladly add my own testimony to these tributes, based upon my
experience as a sometime Solicitor General, Leader of the Commons
and Chairman of Legislation Committee[9]—who
had to consider and make proposals for, amongst other things,
major changes in the Commons scrutiny of EC legislation and in
Private Bill procedure (in both Houses).
16. There are other functions (not, I think,
noted in the key documents) which often depend very largely upon
the Second Chamber for their fulfilment—for example, the
necessary close consideration of Consolidation and Law Commission
Bills. The same is likely to be true in practice for parliamentary
scrutiny of the bills which should begin to come forward next
year under the Tax Law[10]
Simplification Project—of which I chair the Steering Committee.
All these are fields in which the Law Lords, serving and retired,
play a role which is literally indispensable.
17. This is only one striking example of
the strengths of the existing system, which could all too easily
be lost by thoughtlessness in removal of the hereditaries.
IN THE
LONGER TERM?
18. "A House without the hereditary
peers would probably change considerably" (CAR, paragraph
132). This may well turn out to be the under-statement of this
entire debate. The unintended (or at least unforeseen) consequences
of the Life Peerages Act 1958, have been substantial—but
almost all benign. Who can claim to foresee all the consequences
even of the single change involved in the removal of the hereditaries—let
alone of a more-or-less simultaneous influx or one or more brand-new
breeds of member? Some of the possibilities are briefly discussed
in CAR paragraphs 132 to 136. It may be possible to gain useful
further evidence directly from the prospective hereditary discards
and (possible) "life" survivors of Stage One.
19. When the Ibbs reform of the Commons
were set under way (in 1989-90) early action was taken to poll
parliamentary opinion about many of the key issues. Would it not
be useful now to proceed similarly to set about trying to forecast
the possible shape and flavour of the new Second Chamber, compared
with the present:
— after Stage One, (as is)?
— after stage One, with Weatherill?
— after any proposed new structure—elected,
nominated, mixed and so on?
These different prospects could be illuminated
by asking present members (all except Law Lords and Bishops, I
suppose?) which of them in each category would be likely to offer
themselves for membership of a new Second Chamber:
— by standing for election?
— by offering their names for nomination
or selection in some other way (if such was proposed)? and
— if, in either case, they had to adopt
a party label in order to have a credible chance of success?
20. The results should, of course, be broken
down by age, sex, party affiliation (if any), occupation, qualification
or other experience. It would be particularly useful, in CAR's
words (paragraph 126) to know whether the new Chamber would contain
only "Presidents of the Royal Colleges or the General Medical
Council . . . [but] no ordinary doctors or dentists"—let
alone butchers, bakers or candlestick makers. Other informative
Questions and Answers opportunities would doubtless emerge.
21. All this should help one to assess the
likely future presence of those qualities which are seen as central
to the value of the present chamber: expertise, experience, diversity,
independence—and availability. The last of these has been
greatly under-appreciated. The ability to rely upon a wide field
of people, available by self-selection for different topics often
at quite short notice, is very important—and leads naturally
to my next topic.
HOW MANY?
HOW MUCH?
22. Before considering what might be called
the numbers/remuneration equation, I note with satisfaction the
near-universal recognition of the case for the existing ex
officio membership of Law Lords (past and present) and Bishops.
I have in the past advocated an extension of this category to
the office-holders. On fuller examination, it has not been easy
to identify many categories who hold office for long enough (and
have enough "leisure" while in office) to enable them
to fill such a role. Representative office-holders in the Church
of Scotland (and, hopefully of other religious faiths) should
be able to qualify. Beyond that the Royal Commission should certainly
be willing to consider other suggestions sympathetically.
23. On numbers, the most important point
has already been noted. "Many peers", says MAC (Chapter
4, page 25, paragraph 20), "choose only to come to they House
when they feel they can make a particular contribution. To maintain
this sort of wide skills base" (of experience and expertise)
"requires a large House". Upon the implementation of
Stage One, something between 50 and 60 per cent (dependent upon
Weatherill) of the membership of the Second Chamber will have
been removed—and its diversity much more than correspondingly
reduced. It would in my judgment be most unwise to accompany that
far-reaching change with any further deliberate reduction in numbers—and
thus in diversity, expertise, independence and availability. On
the contrary indeed.
24. Only one factor argues in favour of
a reduction. That is the perceived need (if need it be) to provide
for a ceiling on total membership, as a more-or-less essential
accompaniment to the (by definition) necessary limit on the number
of elected members (if such there are to be). This need seems
to be driven above all by the presumption that elected members
will "need" (or expect?) to be paid a pensionable salary
and (the choice of verb is revealing) to "enjoy" allowances
(including for research) "in line with the arrangements enjoyed
by MPs" (MAC, Chapter 4, page 30, paragraphs 53 to 54).
25. MAC notes that these recommendations
will increase the cost of the new Second Chamber. This they "do
not regard as desirable in itself—rather the opposite—but
as inevitable. We believe", they continue (MAC loc cit,
paragraph 55), "that it provides a compelling case
for keeping the reformed chamber as small as possible"
(my italics).
26. Thus the case for economy—coupled
with what is seen as an unbreakable link between election and
pay, pension and allowances to match—is judged to be a "compelling"
constraint on the size of the new Chamber. Yet a Chamber of suitably
diversified experience and expertise (see paragraph 23 above)
"requires a large House" (my italics). The main
reason (noted by MAC, loc cit, paragraph 20) for this linkage
is that in a House where "members receive only expenses,
too much emphasis [need] not be placed on irregular attendance".
In other words, the availability of a sufficiently large self-selecting
pool of diverse expertise is, on the basis of this reasoning,
much more likely to be achieved in a Chamber without elected members.
27. This is a profoundly uncomfortable conclusion.
The acceptance of an entirely nominated Chamber would require
people to have a great deal of confidence (more than many can
feel today) in the integrity of the nominating process. Moreover,
a predominantly nominated Chamber might in the end be credited
with no more legitimacy than the existing House, So one asks,
would not the presence of a substantial elected element endow
the new Second Chamber with enhanced public respect, and confidence
in itself, thus empowering it to offer a more effective challenge
to an overweening House of Commons?
28. But if the link between election and
Commons-type pay and perks is now seen as virtually unquestionable,
then the case for an elected element becomes a good deal less
attractive. The importance of this link is presented by JAY (Chapter
8, page 48, paragraph 48) as follows: "It would be made clear
that membership of the second chamber was a job with specific
and important duties attached." One can almost hear a future
Chief Whip's voice intoning these words. They carry with them
the treat of increasing party discipline and thus politicisation
of the new Second Chamber. Such possibly adverse charges were
foreshadowed in CAR (page 29, paragraphs 134 to 135) and they
are potentially far-reaching. Independence as well as diversity
of available talent could indeed be sharply curtailed, if election
was to have this kind of result.
29. Have we perhaps been too ready to conclude
that election along the same lines as to the Commons will necessarily
be acclaimed as acceptable and "legitimate"? And too
ready also to assume that those elected to the Second Chamber
should be so salaried and "perked", that the outmoded
unrepresentative rulers of the past would be replaced, almost
without our thinking it through, by another batch of "professional
politicians", the potential declassés of tomorrow?
But what if one questions the inevitability of the salaried link?
What if it is the full-time professionalisation of politics that
has been a principal cause of decline in respect for elected representatives?
Have we here a pointer towards an acceptable basis for extended
membership of the new Second Chamber (elected as well as nominated)?
30. The House of Lords has thus far been
relatively, indeed remarkably, free of the kind of "fat cat"
denunciation that almost every elected/salaried body has come
to take for granted. Is there not something to be said, after
all, for continuing (for all members of the new Second Chamber—elected
as well as nominated) something like the present system of expenses,
properly controlled? If so, then other changes could well be made—for
example, by paying a modest attendance allowance, perhaps variable
by reference to frequency of attendance, distance from home, even
to age or (more accurately and more appropriately) to youth?
31. One conclusion in my view follows from
this analysis: that the potential role of the Second Chamber is
too important—or certainly could be so at constitutionally
critical moments—for it to be entrusted either to an exclusively
nominated Chamber or to one which is dominated by clones of the
professional politicians, whose performances the Second Chamber
is meant to challenge. There is, therefore, good reason to avoid
any further reduction in membership of the new Chamber, beyond
that involved in removal of the hereditaries. The argument indeed
goes further than that. For, on the contrary, the introduction
of a substantial elected element, for which there is much to be
said, should be taken as an opportunity not to politicise the
Chamber but to replenish its stock of non-professional independence.
A large Chamber, with a substantial proportion of elected members
would be just as practically manageable as the House at its present
size, provided only that—for both classes of member—levels
of "reward" and expectations of "regularity"
in attendance were modest (or almost so), and as self-adjustable,
as in the present House.
AND HOW
32. Important decisions remain to be taken,
of course, about the detail of methods for choosing or identifying
new members of the Second Chamber. Places would remain (see paragraphs
16 and 22 above) for ex-officio members—such as the
Law Lords, some Bishops, other religious leaders and hopefully
others. Some other places would also be available for "nominated"
(or more accurately, indirectly elected) representatives of other
parliaments or similar assemblies (see paragraph 38 below). Two
further categories still need to be provided for: the elected
and the nominated.
33. Elected members: If these are
to be as independent and as unlike a carbon copy of the House
of Commons as many would wish, then there should be no question
of party lists, with orders of preference (express or implied).
The remoteness of nationally endorsed lists should certainly be
avoided. "Constituencies" could, however, be aligned
with the regions now in place for elections to the European Parliament.
So too could the choice of polling days, already fixed at five-yearly
intervals. This would go some way towards keeping elections to
the two Houses at Westminster "out of synch" with each
other, in itself desirable. But the coincidence of two elections
(Strasbourg and Second Chamber) on the same day would be a useful
counter to the very real (and growing?) risk of "voter fatigue".
34. As already indicated, I should myself
oppose the payment of salaries, the provision of research assistants
and other perks for members (of all kinds) of the new Second Chamber.
They should be entitled, of course, to expense payments along
the present lines. A modest attendance allowance—particularly
for those below a certain age—might be considered. If and
insofar as members of the Second Chamber need improved access
to research facilities, there is no reason why this should not
be provided through enhancement of existing arrangements.
35. But elected members far from being expected
to be full-time—should be encouraged to maintain their present
occupations. This would help to maintain their diversity and independence.
But it would not diminish their availability for occasions when
their expertise might be valuable. And, most important of all,
their authority would be available en masse on any occasion
when the Commons was seen to have provoked a democratically legitimate
challenge from the Second Chamber. Tomorrow's "backwoodsmen"
could thus be seen not as relics from an aristocratic past but
as democracy's strategic reserve. Far from being just another
tranche of professional politicians they would indeed truly be
acting as the "people's peers".
36. Nominated members: The case appears
to have been well made out for nomination, recommendation or selection
to be made by means of and under the oversight of an Appointments
Commission on the lines of that being established for the transitional
House. This should probably extend to political as well as to
non-political appointments, as recommended by JAY (Chapter 8,
pages 44 to 45, paragraphs 8 to 13).
37. Like every other possible process (election
in Ireland, nomination in Canada) this too could lend itself to
party political domination. Practise in recent years is seen by
many to have demonstrated the danger of that. But that is by no
means inevitable. At a much more modest level, we have for years
entrusted the selection of magistrates (with substantial power
over our lives and liberties) to a not dissimilar system—and
successive reforms (from the Report of the Royal Commission on
Justices of the Peace (1946-48), Cmd 7463, to the initiatives
of the late Lord Denning, when chairman of the Inner London Selection
Committee in the 1960s) have been effective in making this system
practically non-partisan. Nolanisation may be seen to have taken
us still further along this particular learning curve.
38. As already indicated, other groups or
institutions could well be allowed to propose candidates for membership
in this way—and some should have the right to make nominations
direct. For this I have in mind, for example, the UK membership
of the European Parliament, the Scottish Parliament and the Welsh
and Ulster Assemblies. The term of office for such nominations
could well be fairly flexible, as has always been the case for
Westminster members chosen to serve in Council of Europe, North
Atlantic of WEU Parliamentary Assemblies.
AGE
39. There remains the intractable problem
of age—for there is no doubt that "youth" is and
always has been insufficiently represented in the elected, nominated
or consultative organs of government. To some extent this is virtually
unavoidable. I was never able to come close to solving the problem,
for example, when I was responsible, as our first Minister for
Consumer Affairs, for selecting members of the host of Consumer
Councils.
40. I do not believe, after some thought,
that it is possible to identify or to create any framework from
which young people could be directly elected. But I may just possibly
be wrong about that. It should be a little easier, however, to
identify bodies which could put forward nominations for consideration
by the Appointments Commission. Possibilities could range between
the larger and more popular NGO's and sporting or cultural organisations,
even broadcast listeners' clubs; the universities and other youth
organisations might also play a part. This is a field in which
the Royal Commission could usefully initiate specific discussion
and research with representative younger people, whether organised
or not.
41. I hope I may be forgiven (see Macmillan,
Roll, Shinwell, Longford and the rest) a developing lack of enthusiasm
for any fixed retiring age?
ENVOI
42. Election should have an important role
to play in the new Second Chamber. But it is not the only acceptable
alternative to inheritance, as a qualification for service. When
the present Earl Howe visited Lord Howe Island in 1988, the inhabitants
gave a party for him—quite rightly, since it was named after
his most famous ancestor. Less understandably when I visited them
some seven years later, they gave a party (quite properly a smaller
one) for me. And when, in my thank-you speech, I pointed out that
I was "only a bogus Lord Howe", a smart Aussie shouted:
"But at least you earned yours, mate!" So there may
yet be some hope for us lifers.
43. It will be seen that the membership
of the end structure that I have suggested is likely closely to
resemble the existing Chamber "in the range and diversity
of potentially available experience, expertise and independence"
(see paragraph 3 above). And that is not by accident. The Commission
will, in my view, have done well if it succeeds in re-creating
an institution which, once cleared of anachronism and illegitimacy,
is in most respects a close reproduction of the original, which
we have today.
44. The wheel having been destroyed, it
must be re-invented—just so long as it doesn't look like
a wheel. Additional functions may then be added to its work.
7 Churchill commented (to Robert Boothby in 1949)
even on the new-born Council of Europe, that: "We are not
making a machine, we are growing a living plant". Back
8
"A fundamental transformation of a key part of the central
democratic institution of Parliament" (JAY, Chapter 2, page
7, paragraph 13). Back
9
Those who may wish to learn more about the lessons of my experience
in those jobs may refer to my article on "Managing the Statute
Book" in Statute Law Review (1992), Volume 13, page
165. Back
10
Critics of the management and performance of Finance Bill Standing
Committees in the Commons often yearn for the opportunity to see
Finance Bills being subjected to legislative scrutiny (perhaps
more expert and more measured) in the House of Lords. Back
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