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.
THE LINK
BETWEEN ROLE/FUNCTIONS
AND COMPOSITION
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.
IMPLICATIONS OF
WRONG DECISIONS
ABOUT COMPOSITION
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.
DISQUALIFICATION
FROM MEMBERSHIP
OF THE
COMMONS
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.
APPOINTED MEMBERS
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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