Memorandum by Sir Michael Wheeler-Booth
(LR 48)
COMMENTS ON
THE HOUSE
OF LORDS
REFORM WHITE
PAPER, IN
THE LIGHT
OF THE
DEBATES IN
THE TWO
HOUSES ON
9-10 JANUARY
1. When the Government published its White
Paper House of Lords: Completing the Reform (Cm 5291),
you wrote to the members of the Wakeham Royal Commission asking
for our views on the proposals—to which, perhaps mistakenly,
I did not respond, because I felt that others would express their
reservations better than I, as did John Wakeham. Now, having attended
(or read) the debates in the two Houses last week (what a difference
a 10 or 15 minute time limit makes), I offer the following comments
in what is intended to be a constructive manner.
Need for reflection, and adjustment of policies
2. In the previous Lords reform attempt,
in 1968-9, the reformers were unwilling to reconsider their plans
in the light of criticisms, notably after the collapse of the
Inter-Party talks, and again after the debates in the two Houses
on the White Paper. In retrospect I think this was a mistake (although
I must take a share of the blame).
3. A second failure was not to recognise
that it was essential to have the wholehearted support of government
backbenchers in the Commons. Inter-Party consensus was thought
to be the key to a constitutional reform of the kind intended
while in fact what mattered was the support of the party in the
Commons. Historically most constitutional reforms have been carried
on a party vote eg. 1832, 1911 and then accepted by all—cases
of consensus like the recent electoral bill are the exception.
One way to achieve MPs interest would be to turn the emphasis
somewhat away from Lords Reform to "reform of Parliament"
to strengthen the role of Parliament vis a« vis the executive—and
a willingness to consider the functions and procedures of the
two Houses, and to make radical proposals for their improvement.
Review of Functions and Procedures
4. A recurring theme in both debates was
the low standing of the Commons, the need to consider its functions,
and procedures, and not to concentrate on the Lords alone, which
despite some "blips" (eg section 28 and age of consent)
was generally felt to be doing rather well with recent achievements
on Terrorism and Trial by Jury legislation. A way of answering
this criticism would be to come forward with a proposal for a
Joint Select Committee on Lords Reform but to couple it with proposals
for improvement in the functioning of the Commons. This task would
fall to the existing Modernisation Committee in the Commons, whose
record in the last Parliament was unhappy and which could thereby
redeem itself. The aim would be to make MPs feel more loved and
wanted, as Wilson and Crossman intended after 1966 when saddled
with a large majority. Many believe that the legislative process
is flawed in the Commons, and that it could be radically improved
by a single procedural change—namely by allowing Standing
Committees to specialise with an ongoing membership (in agriculture
etc) and to take evidence.
5. The Hansard report, Norton and Wakeham
all give many examples of procedural changes which might be made
eg. More pre- and post-legislative work and a Committee on Treaties,
better EU scrutiny and so on. In this way, M.P.s could be given
a more useful role. The government would have to be serious about
it, but it could do so in a measured way—ie by not losing
their capacity to get legislation onto the statute book within
a timescale. A Joint Committee would need a serious Chairman,
proper support, possible Ministerial membership (but not as chairman)
and a membership, willing to work towards consensus.
Proportion of elected to nominated Members
6. To meet majority views in the Commons,
a variation of the proportion of elected members is required upwards—possibly
to 33 per cent or even 50 per cent. But the 80 per cent proposed
by the Conservatives is too high—it would threaten the Commons'
pre-eminence—and it could imperil the meaningful retention
of an independent/expert role of the Lords, especially if the
Law Lords and bishops are retained as part of the 20 per cent.
Further, if 80 per cent of a new Senate is elected on the first
past the post system for a three-Parliament span, the inevitable
result will be that for the first one or two Parliaments after
a change of government, there will be an elected majority in the
Upper House of the other political party to that of the government.
It will also mean that minority parties will fare badly, and probably
women and ethnic minorities. For these reasons a PR system based
on open list would be preferable.
7. The Lords debate had powerful speeches
(Howe, Dahrendorf, Norton) in favour of a nominated House, which
unsurprisingly many preferred, but for reasons given in paragraph
3, it is too late to revert to that solution, though they provided
arguments against a wholly or largely elected House.
8. Jenkins, with his great knowledge, made
the case for a small elected Senate, like in the US (as did Gordon
Prentice and others) which deserves consideration, possibly coupled
with a multi-option bill. But this solution would entail a threat
to the Commons' supremacy, and a risk of "gridlock"
(though this possibility is largely fantasy as the US and Australian
experience suggests).
Appointments Commission
9. The widespread dislike of party patronage
seems to reinforce the Wakeham case of the Commission to be formally
responsible for appointments—this would allow them to make
vetting a real job and not just a charade (as the PHSC ahs so
often proved to be), but in practice the great majority of party
members would continue to be party generated.
Powers over Subordinate Legislation
10. Here the arguments are finely balanced,
but, on balance, for the reason already stated (paragraph 3) of
minding government backbencher's views—I think the argument
points to Wakeham with the important modifications that there
should be a minimum delay of say, three months and that the Commons
would have to reaffirm their previous decision in each case.
Length of Appointment
11. Short term appointments/elections were
unpopular in the debates. If the proportion of elected were put
up to 1/3, it would allow 1/3
to be elected each time (coupled with either local or EP elections,
whichever produced the best turnout).
Remuneration/Size of House
12. There was much support for a smaller
House—but the corollary of this would be paid more of less
full-time senators. More paid full—time politicians will
hardly be popular—what with Scotland and Wales and other
recent changes. Better a part-time membership paid allowances
on the basis of attendance—this permits an expert part-time
membership.
Disqualification/Expulsion
13. There is no need to keep on the old
rules of peerage law. There should be similar rules as for the
Commons—the simplest solution. The alternative would be
use the judicial expertise of the law lords in the Committee for
Privileges to deal with naughty members.
Alternative of Doing Nothing
14. This would provoke ridicule, as the
Heath Robinson arrangements for filling the 92 hereditary places
under the Weatherill amendment will continue as a running sore
and reproach to the government's commitments. It is worth recalling
that in 1968-69, the abandonment of the Parliament (No 2) bill,
was the precursor to the scuppering of the Industrial Relations
legislation of the Wilson government, and eventually the loss
of the 1970 election. Further, if the "interim" House
continued there would be nothing to prevent a future government
of another party from disowning the commitment to avoid single
party domination which this government made in their manifesto.
January 2002
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