Select Committee on Public Administration Appendices to the Minutes of Evidence

Memorandum by Lord Elton (LR 47)

  It is important that the two Houses shall continue to operate in reasonable harmony. In the Lords it was widely understood that the Government was committed to proceeding in this matter by means of a Joint Select Committee of both Houses. I still think that this is a necessary approach. In the mean time your Committee's efforts to establish a common view are very welcome.

  Most discussion of the Government's proposals for the reform of the Lords has centred on the method by which its members should be recruited. The question of its powers and functions, the terms of its members' tenure and the conditions under which they serve are equally important and I offer the following commentary on them.

  1.  The Government's proposals are directed as one part of Parliament without regard to its relationship to the other. They cannot be properly assessed (and in my view should not have been proposed) outside a consideration of the working of both Houses.

  2.  Parliament was invented as the agency through which individual magnates and the representatives of the most powerful land owning and commercial elements of the population could exercise some degree of control over the Crown, as Executive. The restraint was exercised by the granting or withholding of revenue and was exercised to protect their collective interests and their collective and individual rights and liberties. The protection was achieved by securing that taxes were only levied with their agreement and that legislation was only enacted in an agreed form to achieve agreed purposes. Although the institution has evolved over the centuries this remains the case today.

  3.  Initially the Crown was separate from Parliament and the polarity between the two was clear, over recent centuries the distinction between the controlled and the controlling elements has been increasingly blurred as more and more of the power and privilege of the Crown has been vested in Ministers who themselves sit, work and exercise patronage within Parliament. The character of Parliament has also been changed by representation being extended to the whole adult population and its restriction to the Commons. But it remains the only agency by which the representatives of the people can safeguard both national and sectoral interests and the rights and liberties of individual citizens from the actions of the Executive. The critical issue to be addressed in any reform of any part of Parliament is therefore not the balance of power between its two parts but the balance of power between Parliament as a whole and the Government, which now exercises virtually all the powers and privileges of the Crown.

  4.  Any adjustment of the functions, conduct, powers or composition of the Second Chamber must be directed to securing a proper degree of control over the Government by the elected representatives of the people.

  5.  The Executive always has exercised, and always will exercise patronage to maximise its influence over, and so minimise its subjection to, the House of Commons. This has traditionally been by means of its ability to appoint Ministers, Whips, advisers and PPSs and to hold out the expectation of such appointments. Appointments to an increasing number of Quangos afford an additional means of patronage. Latterly an increase in the power of the central leadership of political parties, and in particular of the Labour party, vis a vis individual members, and in particular MPs, has given added power to the party in Government, the prospect of de-selection being a powerful antidote to a wish to make trouble in the House. Taken together these factors seem to have increased the influence of Government over the Commons beyond even what the present majority of its supporters over the Opposition Parties would lead one to expect and to have given it a degree of freedom not often enjoyed by parties in power. A reformed Second Chamber should therefore be protected from undue influence by Government. This does not mean that the Government should not have any influence, but that the number of members who hold Government appointments should be limited, perhaps to 5 per cent of the total.

  6.  A Government with complete control over the House of Commons and frustrated by the attempts of a Second Chamber to compensate for this might be wish to diminish its ability to do so. For this reason the Second Chamber should have the power to veto any amendment of the Parliament Act.

  7.  Every Government is formed and conducted by a political party (or more rarely a coalition of parties). All Government of all parties think they act only in the national interest and to protect the essential liberties of the subject, and that their legislation is satisfactorily drafted. In consequence most Governments seek to make it easier for themselves to obtain parliamentary approval for their actions and legislation. A reformed Second Chamber should therefore be independently in control of its own procedures for scrutiny and legislation.

  8.  All oppositions believe that the interpretation of the National interest, and the definition of citizens' essential rights and liberties, by all Governments are seriously flawed. Sooner or later the electorate always agree with them. The central and essential features of a democratic constitution, and the only guarantee of its continuance, are that the electorate has regular and frequent opportunities to express their opinion on the subject, and that when they say that it is time for a party to relinquish government it does so. A reformed Second Chamber should therefore have the power to veto any amendment of the Septennial Act 1715 as amended by section 7 of the Parliament Act 1911, and any attempt otherwise to extend the life of a Parliament (and hence of a Government) beyond five years.

  9.  Since the early twentieth Century control of the Executive (though not the scrutiny of legislation) has been primarily the function of the elected Commons Chamber, which alone can refuse to supply the Government with funds, and which alone can force its resignation by a vote of no confidence.

  10.  The existence of these "nuclear" options ensures that the Commons ultimately have the final say; it underwrites the more practical "sub-nuclear" ways in which they can exercise control. However the steady concentration of executive power and patronage in the Commons has reduced their ability, (some would even say their desire), to exercise it. Recent changes in the way in which the Commons conduct their business appear to have reduced further their effectiveness in this regard. The rational way to address this problem would be by reform of the Commons. Although the Government is proposing further changes at the present time the expectation is that these, also, will be directed at making it easier for it to do as it wishes, rather than to increasing the scrutiny and control to which it is subject. A reformed Second Chamber should therefore have enhanced powers of scrutiny and enhanced "sub-nuclear" means of drawing the results of that scrutiny to the attention of the Commons.

  11.  Most recently, and most worryingly, the Government has contrived to divert public (ie the electorate's) attention away from parliamentary comment on their policy and performance, and focus it on their own views. This has very largely been done by announcing almost all new policy initiatives and reviews to the media shortly before they are released in Parliament. As a result political commentators are already preparing their presentations when MP's react to the announcement, and the parliamentary reaction goes largely unreported. The cumulative effect of this is not merely to secure friendly reporting of Government policy and performance but to diminish public interest in the house of Commons, and elections to it, to a level that is democratically dangerous.

  12.  Although it goes beyond the terms of your Committee's Enquiry I would suggest that if the Speaker were to have—and to use—extended powers to grant an emergency debate when this occurred the practice could be curtailed, to the great benefit of both Parliament and the Public. As, however, it seems certain to continue the Second Chamber should itself have the right to be informed ahead of anyone else, other than the Commons, of major Government policy initiatives and reviews, and the power to summon Ministers to defend their actions (if they are members of the Commons at the Bar of the House, or at least to be heard by a Select Committee empowered to report to both Houses) whenever this right was denied.

  13.  There has been a notable decline in the standard of drafting of both primary and secondary legislation over recent years. The increasing, and now enormous, number of amendments made to primary legislation in the Lords bears testimony to the former, the experience of the Joint Select Committee of Both Houses witnesses the latter. No reform should be countenanced that diminishes the rigour of scrutiny of primary legislation by the Second Chamber.

  14.  The increasing, and now huge, volume of secondary legislation makes an increase in the power of the Second Chamber to scrutinise and, if necessary, amend it a matter of great importance. One major consideration in consigning legislation to secondary status is to save Parliamentary time; no significant proportion of such legislation could be considered on the floor without obstructing the progress of primary legislation. The reformed chamber should therefore establish a Committee or Committees specifically for this work, with power to amend Statutory Instruments. The power of the whole chamber would still be only to accept or reject the Instruments, but it would be applied to them as reported from the Committee.

  15.  The work of the present Second Chamber in revising primary legislation to reduce ambiguity and achieve greater clarity, accuracy and effectiveness results in a great number of technical amendments that are generally welcome; this seems to be broadly satisfactory. The present means of achieving technical amendments of primary legislation do not need alteration.

  16.  However, it frequently happens that a Bill reaches the House of Lords from the Commons with large parts of it not having been discussed there at all. This results from the use of a time table motion in the Commons. The Second Chamber is then the only body providing the oversight (and occasionally control) of Government which Parliament was invented for. Use of a similar procedure in the Second Chamber could result in significant amounts of legislation being enacted without any parliamentary scrutiny what ever. It is imperative that no procedure shall be permitted in the Second Chamber that will prevent it from scrutinising and amending the whole of any primary legislation sent to it from the Commons.

  17.  Interwoven with the process of technical amendment is that of relating and adapting the legislation to the practical circumstances under which it will be implemented, and the consequences that will flow from it. The greater width of experience available in the larger—and older—House is useful for this, but sometimes contributes to a difference of view resulting in amendments of substance with which the Government may invite the Commons to disagree.

  18.  The process by which that disagreement is sought and obtained appear from the outside—and from the written record—to be pretty perfunctory. The making of an amendment in the Second Chamber is an invitation to the Commons to consider seriously the case put for it. If the functions of both Houses were under review this is a matter that would bear close consideration. It is for consideration whether the present power of Lords to delay legislation pending agreement on proposed amendments would be sufficient to enable a new or reformed Second Chamber to secure proper consideration of its proposed amendments.

  19.  Members of the House of Commons, who were for long unpaid, now receive an income sufficient to maintain a reasonable standard of living; the result is that a diminishing number of them seek to earn additional income by working outside Parliament. An increasing number of them come into the House with no previous experience outside politics. The further the Commons are removed from earning their daily bread amongst the rest of the population the more important it is that members of the Second Chamber should be under the necessity of doing so. There is also a tendency to increase payments to elected members of Local Authorities for their services; this means that we are beginning to develop a political class, removed from the experience of the rest of the country, and increasingly mistrusted by them. Ensuring that at least one House remains in direct touch with the economic and social realities perceived by the rest of our country will help to maintain such confidence as the public still has in Parliament. Members of the Second Chamber should, therefore, receive neither a salary nor allowances sufficient to substitute for one.

  20.  For similar reasons neither the House nor its Committees should sit at times that would prevent Members taking up gainful part time employment. In practice this means that they must sit, as at present, during half the normal working day, making up extra time after normal business hours.

  21.  This regime would mean (as it does now) that the earning power of members of the Second Chamber will be less than it would be if they were full time employed. As part time employment is not pensionable they would also incur (as all but Law Lords and Bishops already do) a disproportionately large reduction in income on retirement. Compensation for these penalties should be provided to members of the Second Chamber in the form of enhanced pension rates payable at, or by agreement, later than, pensionable age.

  22.  The optimum size of a Second Chamber should be determined by its function, composition and the terms and conditions under which its members are required to work. The Second Chamber should continue to provide access to a wider range of experience and expertise than is available in the Commons. One advantage of a part time Chamber is that it requires more members, and can therefore provide a wider spectrum of expertise, than a full time chamber doing the same volume of work. (If the Second Chamber were to be elected a direct comparison with the Commons would be possible, as members of both would have constituency work in addition to their work in Parliament, but I do not suggest this.) I surmise that the present volume of work done by the Lords is probably done by not more than 600 Peers of whom must have other significant commitments of working time. Increasing scrutiny, particularly of secondary legislation, could increase the work load significantly so that the optimum number could be nearer 650. The actual maximum number will depend on methods of recruitment and retirement adopted.

  23.  I have already suggested that the Second Chamber should be as far as possible protected from influence by the party of Government, and some procedural ways in which this might be achieved. Whether they are elected or appointed, if they are to serve for a specified term and to be free from improper pressure members of the Second Chamber should not be eligible for re-election or re-appointment. (The availability of de-selection as a means of influencing those intending to stand for re-election will make this provision doubly important if recruitment is to be by election).

  23(a)  The prospect of preferment after the completion of a period of Membership of the Second Chamber could also be used by a Government as an inducement to support its policies, or at least to refrain from opposing them during that membership. Members of the Second Chamber should therefore be barred both from standing for a seat in the Commons and from appointment to any position in the gift of the Government, or any of its agencies, for a period of not less than five years from the termination of that membership for any reason.

  24.  To ensure the development of a sufficient pool of parliamentary experience, and a sufficient corps of senior members, election or appointment should therefore be either for life or for a period of at least 15 years.

  25.  Experience has shown that age is no guide to ability (when I was taking the Police and Criminal Evidence (PACE) Bill through the House the most effective contributor to discussion was Lord Denning, then in his eighties). An upper age limit is not therefore appropriate. However, members should not be forced to serve, or to maintain the effective vacancy of a seat, if they become incapacitated. Members should therefore have the right to resign.

  26.  The Crown remains an essential part of our constitution. Whilst most of its prerogatives are exercised by the Government they have been received by delegation which, though irrevocable, is real. The Sovereign in person remains the symbolic Head of State and validator of honours and no Statute can be enacted except by "the Crown and the Lords and Commons in Parliament assembled". It is unnecessary, and would be unwise, to interfere with this balance whilst readjusting the machinery of Parliament. Any members appointed to a reformed Second Chamber should sit by right of a writ granted by Her Majesty. No member, whether elected or appointed, should be allowed to sit until after swearing or affirming allegiance to Her Majesty.

  27.  Much has already been written and said about the means by which members should be recruited to the Second Chamber. All the above suggestions apply to any future Second Chamber, regardless of whether it is elected, appointed or hybrid and, collectively, are at least as important as the method of recruitment adopted.

  28.  Finally, it is proposed that the new Second Chamber should be divorced from the Peerage. The title of Lord derives from the Peerage and is indicative of a demonstrable relationship to it. To call the chamber "The House of Lords" when Lords were no longer permitted to sit in it would be misleading, pretentious and silly. While it is for consideration what the chamber should be called it could not any longer be called the House of Lords.

January 2002

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