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
| 
