Select Committee on Public Administration Appendices to the Minutes of Evidence

Consultation on the Government White Paper entitled "The House of Lords. Completing the Reform" (Cm 5291)

  I write as a member of the Royal Commission on the Reform of the House of Lords, in response to the recently published White Paper (Cm 5291) with my principal responses to the government's proposal.

  I attended most of the debate in the House of Lords and parts of the House of Commons debate in January. Many of the points that concern me were raised in those debates and I do not propose to reiterate them.


  There appears to be broad consensus that the role and functions identified by the Royal Commission are the appropriate ones. It seems to me that the House of Commons cannot be expected to perform those functions. That is the justification for a second chamber.

  However, very few people take the link between the role and functions and the composition issue seriously. Many commentators are only interested in composition. One approach to reform might well be to determine composition first and then wonder what the House could do. The Royal Commission rightly rejected that approach.

  It would be a great mistake to assume that the role and functions of the second chamber will be performed well by whatever collection of members emerges from any arrangement on composition. A second chamber in which, say, 80 per cent of the member were elected could not perform the functions of the chamber on which there is supposed to be consensus. They would lack the independence and non-partisan approach required for scrutiny of legislation and of government policy. They would be most unlikely to have between them the range of experience and expertise that are required for the activities of, for instance, the European Union Committee, the Delegated Powers etc Committee, and for the revision of bills and the scrutiny of statutory instruments, often in highly technical areas. We can all think of members of the present second chamber who make an outstanding contribution to its work, but who would not have become members by election nor by some of the other routes that are now put forward.


  My concern is that if the next stage of reform produces a second chamber that cannot perform the functions expected of it, Parliament as a whole will fall into disrepute, and two developments will then take place.

    —  Judicial review will increase. More badly drafted Acts and statutory instruments will come on to the statute book. The courts will be pressed to take on an increased role in the post-legislative scrutiny of legislation and bit by bit they will do so. Judicial review of government policy decisions will increase. A few years ago judges were suggesting in extra-judicial lectures that it would be legitimate for the courts to strike down highly undemocratic legislation. That line of argument has not penetrated judicial decisions, but it is obvious to me that it would be more likely to do so if the reformed second chamber did not do the job of scrutiny as well as it is done now.

    Such an increase in judicial review would be inconsistent with our constitutional tradition, which relies on the political processes in the two Houses of Parliament to secure that our laws are well thought out and drafted, that we comply with our international obligations etc. But Governments need to be checked. The ideal is that Parliament exercises these checking functions effectively, but if Parliament cannot or will not do this, the courts may well be justified, in my view, in extending their jurisdiction. There could well be strong public support for judicial review of ill-considered legislation and governmental decisions.

    —  Independent extra-parliamentary scrutiny mechanisms of legislation will be needed. Public pressure for extra-parliamentary scrutiny will grow as the public comes to realise the deficiencies in parliamentary processes. The Conseil d'Etat or the Conseil Constitutionel in France might provide models. Ministers and civil servants might be required to present draft Bills or statutory instruments to an independent body for justification and scrutiny in a non-partisan spirit for their technical workability, compliance with human rights and treaty obligation etc. This kind of scrutiny is part of what the present second chamber does well, and it is agreed that it should continue to do. But if the reformed second chamber does not have members able to perform it the function will have to be performed elsewhere. Such a development would again, however, be contrary to our constitutional tradition of reliance on effective parliamentary scrutiny of government policy and legislation.

  Turning to some of the specific recommendations in the White Paper, although a number of the recommendations of the Royal Commission have been accepted by the government, I note with great concern that a number of these recommendations have been rejected. I deal here only with selected issues which have not attracted much comment but which are important.


  I note that the government rejects the Royal Commission's proposals on the disqualification for a period of years from membership of the House of Commons of those who had served their term in the reformed Second Chamber. It was fundamental to our proposals that there should be such disqualification, in order to secure that the Second Chamber did not become a highly politicised House. The government's position on this, along with other ways in which the White Paper diverges from our recommendations, will contribute to making the reformed second chamber unfit for its functions, with the implications noted above for judicial review and independent pre—legislative scrutiny.


  My main concern is about the appointment of members. This is not something that has attracted the attention it deserves, as commentators have been more concerned with election than the details of arrangements for appointment.

  The government rejects the Royal Commission recommended that an Appointments Commission should be responsible for all appointments to the reformed Second Chamber. Instead it proposes that the Appointments Commission should have responsibility for the appointment of cross-benchers and for determining the party balance in the second chamber, but that the choice and nomination of those members of the Second Chamber who would be politically aligned members should be in the hands of the parties, subject only to the vetting for propriety by the Appointments Commission. This runs completely against the recommendations of the Royal Commission.

  I would not have signed the Royal Commission's report if it had recommended such arrangements.

  The following points about appointed members need to be made.

    —  It is of the greatest importance that all appointments to the Second Chamber should be made on merit, if the Chamber is to command the authority and support of the people. Under the government's proposals the parties and the Prime Minister will be vulnerable to accusations of patronage and cronyism. The electorate will not have any confidence in the quality and independence of members who are so appointed. It will be in everyone's mind that minimalist scrutiny on "fit and proper person" criteria has not been sufficient to secure the quality of members recently. I have been impressed by concerns expressed from various quarters that the House would fill up with hacks — albeit possibly representative or reflective hacks — if the parties had this patronage. A chamber of hacks would not be able to fulfil the functions expected of it. The Appointments Commission would be concerned that people of eminence who can contribute well to the House's activities would be appointed.

    —  The government makes no proposal for the regulation of the ways in which nominations would come forward from parties. There is no requirement that the positions be advertised, nor that the parties' criteria for selection should be subject to public scrutiny, nor even that they should be published. The "Nolan" principles are not even considered. And yet it is agreed that membership of the House will not be an honour but an office or job.

    —  The White Paper in paragraph 67 says "parties of whatever persuasion must be able to decide who will serve on their behalf". It is erroneous to state that the members will be serving on behalf of their parties. The whole idea is that the members should be independent, even though the parties will have a proportionate number of supporters within the Second Chamber. It is true that the parties decide who should take their whip, but not taking the whip does not preclude members from broadly supporting a party, and taking the whip does not, in the second chamber, impose a strong obligation to follow the party line. The Appointments Commission should be charged with appointing due proportions of members who indicate a willingness to take a particular party whip or general support for a party. It is worth remembering that for hundreds of years the party leaders in the Second Chamber took pot luck with who supported them from among the hereditary peers and were no doubt pleased to have the votes and support of peers who did not take the party whip. It is certainly not the case that the parties should dictate who can support them in the House.

    —  It would of course be possible under the Royal Commission's proposals for the political parties to put forward nominations for appointment to the Appointments Commission, with supporting reasons related to, for instance, the needs of the party for particular expertise or experience, securing a gender or ethnic balance and so on. The normal expectation would be that these nominations would be accepted as long as they met the needs of the House and the merit criteria formulated by the Appointments Commission. The government accepts that the party aligned members should meet the needs of the House.

    —  I thought Lord Wakeham made a good point in the debate when he suggested that party leaders might well welcome the fact that they could not exercise independent patronage in making these appointments and would be able to remind any persons pressing for appointment of the need to submit nominations to an independent Appointments Commission.

    —  The government's proposal is that each party which surmounts the threshold before a party can qualify for a proportionate share of the seats in the reformed Second Chamber will be entitled to a due proportion of those seats. I would have no difficulty with this proposition if the appointments were made by an independent Appointments Commission, which would no doubt receive nominations for the parties. But on the government's proposals this would mean that a party which had secured a certain share of the vote but which did not have any representatives in the House of Commons would be entitled to nominate members of the Second Chamber. I consider this, too, to be a completely unacceptable form of patronage.

  I therefore stand by the recommendation of the Royal Commission that all appointments to the Second Chamber should be made by the Appointments Commission. All appointments should be on merit, and the Appointments Commission should work within statutory and other published criteria as to the needs of the House and the country as far as expertise, enabling "voices" to be heard and so on are concerned.

  I do not propose to comment on other ways in which the Government's proposals depart from the Royal Commission's proposals save that elections should not be by closed list, five years is too short a period of service, and elections of some of the members for each regional "constituency" should take place at every election. It would not be acceptable if elections were to take place only every 10 or 15 years.

January 2002

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