THURSDAY 24 JANUARY 2002

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Members present:

Tony Wright, in the Chair
Kevin Brennan
Annette Brooke
Mr John Lyons
Mr Gordon Prentice
Mr Anthony D Wright

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Examination of Witness

THE RT HON THE LORD IRVINE OF LAIRG, QC, a Member of the House of Lords, The Lord Chancellor, examined.

Chairman

Lord Chancellor, we are delighted to have you amongst us.

(Lord Irvine of Lairg) Good afternoon, I am happy to be here.

We wonder if you would like to say a few words to us by way of introduction.

(Lord Irvine of Lairg) Yes, let me say a few things. First of all, this is now a time for reflection. The White Paper was not a policy for which I could claim sole ownership. It was settled by a strong Cabinet Committee which I chaired and the terms of the White Paper were agreed by all its members, who included John Prescott, Robin Cook, Gareth Williams, Jack Straw, David Blunkett, Hilary Armstrong, Dennis Carter, Charles Clarke, Gus Macdonald and Charlie Falconer. First of all, you find me in a reflective mood because there have been two impressive debates, one in each House, and the debate in the Lords occupied two days. Responses to the consultation process continue to come in, it does not end until the 31st. As much as you might wish me to be prescriptive, I just do not feel able to be. I am sure that we can have a very productive discussion but really nothing I can say should be taken as any kind of concluded view in the current context. What we are doing is listening and reflecting. The best way I think I can assist in opening discussion is this: I would like to identify the interests that have to be protected in any reform proposal that is carried into effect: first, broadly, to preserve the existing powers and functions of the House of Lords, in the sense that the House adds real value in scrutinising and does not challenge the House of Commons as the pre-eminent Chamber; and secondly, to ensure that composition post reform does not prejudice the value of the House of Lords, as presently composed, and to prevent any politically elected element becoming so large as to threaten the continuation of either of these two interests that I have just listed. If you do not prevent that, it could challenge either of these two interests by encouraging a challenge to the current pre-eminence of the House of Commons or, as a separate point, significantly diminishing the flow into the House of Lords, as presently composed, of men and women of great expertise across a broad range of national life, the professions, business, the arts, the voluntary sector, the military, the faith communities, as well as highly experienced, former Members of the House of Commons or local authorities who make up a kind of aldermanic bench in the House of Lords. To go much above a particular percentage elected - and 20 per cent is where the White Paper arrived at - and to maintain that to go above it significantly will not over time alter the balance of power between both Houses, I would suggest is simply to be in denial. It is as if the proportion of elected is a self contained issue, a kind of bidding process where what is euphemistically called a "centre of gravity" is looked for, without the need at the same time to have any regard to the impact of the composition of the Lords on the balance or the dynamics of the relationship between both Houses, and that I think is the most important thought to have in mind. I make this comment in passing. How right we were, I would say, in the last Parliament on stage one. We were told there should be no stage one without stage two. Well, if we had waited for a consensus for a whole package we might have waited for a very long time and certainly all the hereditaries would still be there. Another way of looking at the same question, I think, is when people say it should be substantially elected, I would say why should conventions which built up because the House was unelected not be swept away? And might it not be claimed that a substantially elected House of Lords had even a superior legitimacy if it were elected by PR, that is to say those who claim a superior legitimacy for PR over first past the post. Another argument that was there, this time an argument in a different direction for the status quo, would say that the House is more independent if it is not elected and Members sit for life. There is an astonishing range of argument around. Last, and I think by no means least, we have to proceed in relation to composition in a way that does not prejudice the rights of the existing life Peers who enter Parliament and enter the course of their lives on the basis that they had a seat and a voice in Parliament for life. Finally, underlyng all this may be an issue which nobody usually cares to raise; why have a bi-cameral system at all? The answer today is very easy, whether you agree with it or not is another matter, but the answer today is very easy; the House of Lords adds distinctive value without challenging the pre-eminence of the Commons. The Lords provides what is generally regarded as a high-quality, revising and scrutinising of legislation function, in Committee, on the floor of the whole House and, unlike the Commons, not subject to any guillotine, but the more the Lords becomes elected and the greater the claims for its greater democratic legitimacy, as a result, so the question must be posed why have two elected Houses rather than one, the Commons, in which the Commons would have to make, of course, its own powers of provision of scrutiny more effective? So these seem to me to be all the distinct interests that have to be had regard to at the same time and you cannot just focus on any as if it were self-contained.

Thank you very much for that. If I could open up a few of these areas and then colleagues will want to come in. I was going to ask you whether you were the architect or the salesman for these proposals. I think in a way you have answered that by saying that this is a straight Cabinet decision by a Committee you chaired, with the full informate of Cabinet behind it, and you are a believer in these proposals?

(Lord Irvine of Lairg) Yes, as I said already, it was a product of a Cabinet Committee that sat in many, many meetings. We discussed it fully. The White Paper was, in the judgment of all members of the Committee, the best proposal that we could put forward for today.

We just have to try and establish where we are at in order to see where we might go. When Lord Lipsey came to see us last week he was someone who loyally defended the White Paper's proposals when they appeared and he came to tell us, in his words, that they were now "a dead duck with its feet in the air" and that we had to think now beyond them. Is that not a shrewd analysis and a fairly obvious analysis of where we are at?

(Lord Irvine of Lairg) I would say it is not obvious and it is wrong. The White Paper is not a dead duck. What is really awfully significant in this area is that there are as many opinions as people, therefore, if you are looking for a significant number of people who in turn say "this is a work of collective genius; we will sign up to it", it is not that kind of issue, I am afraid. It is an issue in which every politician has an opinion and it really is quite remarkable. If you were even to put it in this way and say to me that we cannot say yet there is a consensus round the White Paper, I would say that is probably right, but there is not a consensus around anything else either and the White Paper is still very much in contention. The proposals in the White Paper were put forward by people who knew that they were proposing a compromise and what I would say to you is we will have to wait and see how they fare in the end. Of course, I accept that this particular compromise package is in the course of being road-tested, but I make no apology for that whatsoever. We collectively agreed to put it forward as a compromise. We also well recognised, as I am sure everyone in this room does, that we are in an area of potential reform which defied the abilities of the whole of the last century to accomplish anything at all. I would remind you that we are not even yet at the end of the consultation period.

It is not so much the details that will detain us now, it is whether we get a clear sense of where the positions of principle are that we could work out details around.

(Lord Irvine of Lairg) And that is why I drew attention to these interests which I think have to be had regard to and have to be had regard to as a whole.

As you gave us your analysis I was struck by the way that it was at odds with much of the other evidence that we have been given on this ground. You were very emphatic about the central issue here being the need to do nothing to disturb the balance between a pre-eminent House of Commons, and a House of Lords. And yet we have heard compelling evidence that the real issue here is the relationship between Parliament and the Executive. Is it not the case that if you start from that position you think about this entirely differently? If you were obsessed, as I might say the White Paper seems to be obsessed, with only thinking about the pre-eminence of the House of Commons, which of course in reality falls prey to the pre-eminence of the Executive routinely rather than to Parliament in relation to the Executive as a whole?

(Lord Irvine of Lairg) I think that is another central point and if I had been taking longer than I thought was appropriate in defining the relevant interests to be observed, I would have engaged with that argument, too, but you bring me to it now, which is good. I think, truly, that there is a misconception about here so let me try to say why I say that. It is frequently said that the Executive is over-powerful in relation to the legislature. I put to one side the argument whether that is so or not because I think it is a misconception that this is an excess, if it exists, which can be corrected by House of Lords reform or, at any rate, by any House of Lords reform that would impair the stability of relations between both Houses. I think at root here there is a confusion between problem and remedy, the problem being that the Executive is too powerful at the expense of the legislature. In fact, the check and balance that the Lords does provide over the Commons is an important restraint on the Executive having its way. My own view is that that should remain where it is. It would be wrong, I think, to give greater power to the Lords than at present exists so as to cause the Commons to think again, subject to the Parliament Act, in order to operate as a greater restraint on the Executive because I think that this would simply destabilise Parliament. If the Executive has too great a power over Parliament, in my view, it ought to be addressed as a separate issue, but not one that (however interesting) is part of this specific debate. Of course, it could be argued, for example, that the Executive's power over Parliament in this country is, say, substantially attributable to the fact that - and I know there will be some denials - most Members of Parliament would like to be members of the Executive, that is to say Ministers, whereas in the United States of America the Executive is externally appointed by the President and the President has to fight for his programme through Senate and Congress. My own view is that we muddled up the debate on House of Lords reform by getting into these issues which I do not regard as issues for this debate. Some people would go even further than you, Chairman, and say you have got to sort out such issues, and the issue of a written constitution and every other kind of constitutional issue you can jolly well think of before you can reform the House of Lords and that, in fact, was what we were told in many of the part one reform debates in the Lords. In the real world I think that is an exercise in linearism that goes nowhere.

The reason I say this - and I realise it is more exciting than talking about swapping percentages and so on- is I do think this does go to the heart of the matter.

(Lord Irvine of Lairg) I do not think it is less exciting; I think it is more interesting, but I still think that it is for a different debate.

There are two of us who find it exciting but we do not come to the same conclusions and unless we see where we are differing we shall not get any further. The argument I am putting to you - and we have heard it from many authoritative voices - is that we need a more legitimate second Chamber to act as a more effective check on an Executive which in this country is too powerful. That is the analysis of the problem and that is the analysis of the solution. I want to be clear, that is something that you are rejecting, is it not?

(Lord Irvine of Lairg) What I am actually saying is that that expression that you have used contains a number of words which require further definition. A "more" legitimate second chamber supposes that the more elected, the more legitimate. I would say in answer to that implicit assumption that it depends what the powers and the functions of the House of Lords are.

Can I interrupt you just for a second because this is really so important.

(Lord Irvine of Lairg) That is why I am trying to make it clear.

The reason why it matters so much is that at the moment the Whips in the House of Commons - and I am sorry you have not been in the House of Commons -

(Lord Irvine of Lairg) --- So am I! I was doing other things.

It was a severe loss, I think, and I have to tell you about it. At the moment the Whips in the House of Commons can tell their troops to roll their tanks over the Lords and their amendments because they are not elected, they have no legitimacy at all, so unless we address that issue we are not going to get to the heart of this argument, are we?

(Lord Irvine of Lairg) I think we are at the heart of argument but I do not have to agree with you in order to say that we are at the heart of the argument. It seems to me that the House of Lords with its present powers and functions delivers an enormous amount of value and passes thousands of amendments over every conceivable Bill every year which are accepted by the House of Commons. Admittedly many of these are Government amendments but, leaving that aside, nobody who has analysed the course of any Bill at all of a contentious kind would doubt that the House of Lords has added enormous value within the context of its present powers and functions. I was at a charitable reception the other night that Shelter was giving where the Director of Shelter was singing the praises of the House of Lords in Committee on the Homelessness Bill which will pass through the House this evening. On the Counter Terrorism Bill, I think many Members of the House of Commons would be first to agree that the House of Lords did a splendid job. When you talk about the House of Commons feeling able to ride roughshod over the House of Lords because it is unelected, I do not believe that that reflects the reality. It is only twice in recent times that the Parliament Act has been used.

When I tried to explain to the Whips in my Party why I wanted to agree with the Lords on their amendment to the Terrorism Bill I was told I should not because the Lords were not elected. Is that not the argument about legitimacy?

(Lord Irvine of Lairg) That may be an argument about using the word "legitimacy" which is advanced but the Whips do not always advance good arguments in order to knock people into line.

It is the knocking into line I am interested in.

(Lord Irvine of Lairg) You could, if you chose, have voted as you wished.

And I did.

(Lord Irvine of Lairg) Congratulations.

Thank you.

(Lord Irvine of Lairg) In other words, the pressure of which you complain you resisted and so what I would regard as a thoroughly bad argument put by the Whips - you tell me and I accept it because you tell me - was not a good argument and did not prevail.

It would be easier to resist and it would be easier for colleagues to resist if the House of Lords came with more legitimacy attached to it. That is the argument, is it not?

(Lord Irvine of Lairg) I do not accept that the House of Lords is illegitimate because of how it is composed. I do not believe that you can direct an intellectual argument based on what the Whips chose to say to you. I think their use of the argument of illegitimacy was wrong.

I just wanted to map out some of the territory, if I may. The White Paper is called Completing the Reform

(Lord Irvine of Lairg) It is indeed.

And yet when I read your speech in this impressive debate, as you describe it -

(Lord Irvine of Lairg) I thought both debates were impressive.

Both debates were impressive and when I look at your speech in this impressive debate -

(Lord Irvine of Lairg) I agree that mine was not impressive!

Chairman: I thought it was especially impressive.

Gordon Prentice: Get to the point.

Chairman

You say, and you are talking here about the elected element, that the 120 elected is simply the maximum we can contemplate today?

(Lord Irvine of Lairg) Yes.

And then you say "after a period of years it will no doubt be right to revisit the composition issue".

(Lord Irvine of Lairg) That is exactly what I said.

I am not sure how you can complete the reform and then re-visit it.

(Lord Irvine of Lairg) That is a nice textual point. I can tell you why it was called Completing the Reform, and since nothing is ever complete and since history never ends and because we cannot bind our successors, I am ready to agree that it was not a perfect title, but what was meant by it was phase one and phase two. We have been arguing in the House of Lords it feels for an eternity, but in fact it is just about four and a bit years, about phase one and phase two, and phase one was to remove the hereditaries (and we succeeded in removing nine-tenths), and phase two was to complete reform in the current circumstances. We do not bind our successors and circumstances can change and all that, and I am happy to agree that we could have had a different title, but I do not accept that there is any incompatibility between the title and what I have just said when I explain that the history is that phase one was to be succeeded in this Parliament by phase two, and phase one plus phase two was completing the reform we had been talking about in the last Parliament. Of course, a subsequent generation can look at this. What I was basically saying to the Lords was, having regard to the rights of the existing life Peers, 120 is really the maximum that we can do today, and that is what I think. Life being what it is and since we all pass on to another place -

Where do Lord Chancellors go?

(Lord Irvine of Lairg) --- Higher even than the House of Lords, I think natural wastage will be about 18 a year and therefore there will be scope to consider greater elected, but I want to emphasise that I think that people who talk about a percentage elected as if it were a self-contained issue, as if it were an independent bidding process when anyone could have a view, are neglecting the broad ramifications of the whole issue, and I think the central one is the superiority of the House of Commons in order to avoid instability at the heart of our constitution and government. I have already made my point that I think those that believe that House of Lords reform is a suitable vehicle for weakening the power of the Executive are wrong.

I am almost done teasing out the underlying principles here. In your speech in the Lords you say election is not the only route to legitimacy in our democracy, and you have spoken about that and I understand it. Why then have an elected element at all?

(Lord Irvine of Lairg) Absolutely, that is a fact that is entertained by a heck of a lot of people and that is one of the absolutely interesting things that is coming out of the interesting debate that we are now having. Let me just quote one or two people. What about Geoffrey Howe? "... what is my position? Despite the enthusiastic advocacy of those who take the opposite view, I have not been persuaded that this Chamber should contain any elected members." ... we need to have people here who are truly independent and who are not dependent on the wishes of party masters ..." St John Stevas says: "Let us consider the question of an elected or appointed chamber. There is something to be said for an elected chamber. There is something to be said for an appointed chamber. But for a partly elected, partly appointed chamber, which carries within itself a mass of contradictions, there is nothing to be said whatsoever. It is a hyphenatedl hybrid which will not be a permanent solution to our constitutional problem, but will lay out problems for the future." Roy Jenkins -

We have read the debate. There are lots of people around who do not like the idea of an elected Chamber and they do not think it has got anything to do with democracy, but you have come forward with a proposal where you have said you do not think election is the only route to legitimacy in democracy -

(Lord Irvine of Lairg) Correct.

And then you have come forward with an elected element and I am wondering why you felt you had to do that?

(Lord Irvine of Lairg) I can tell you. If we did have a hybrid House, despite powerful objections to a hybrid House, then the position would be all that members, nominated or elected, would be legitimate; they would just represent different routes to legitimacy. The Royal Commission chaired by Lord Wakeham recommended in their option B, being the only option around with a majority consensus emerged because it was not a unanimous Royal Commission by any means,87 elected. That Royal Commission said very, very, very strongly that they did not think that a substantially elected Lords would imperil the stability of governmental arrangements. We took the view in the Committee that I described that if we were going to go, in principle, for some elected we should offer the largest number which was possible within current numbers, and that was 120, but the nominated would be as legitimate as the elected.

The argument is that democracy is one route to legitimacy, but then if I read your speech in the debate further, you say in the point about having an elected element it is "the best way of ensuring that the nations and regions feel that they are properly represented in a reformed House". It is not because it is necessary to have a democratic element for legitimacy reasons, it is because we have got to represent the nations and the regions. Why can we not represent the nations and regions through an appointed House?

(Lord Irvine of Lairg) First of all, the answer is of course you can, and that is why I have said that there is no necessity for there to be any elected, and that was why I was drawing your attention to the number of impressive people who have argued for precisely that. It is a mistake by those people who have said in their evidence to you that the elected will be there to make the House of Lords more legitimate, and they are departing, in saying that, from both the Royal Commission and from our White Paper. We made it abundantly plain that the inclusion of elected was not to make the House of Lords more legitimate. It was a convenient means of ensuring, in a rather southern dominated House of Lords, that people with regional experience would have a right via elections to be there in the numbers we proposed. Neither the Royal Commission nor the White Paper was proposing that they should be there in a representative capacity so as to be in a position to challenge MPs who represent their constituencies in the same parts of the country. The concept was not to add to the legitimacy of the House of Lords, which I would say would be of equal legitimacy were it to be fully nominated, but to ensure that there were people with real experience of the life and politics of the regions there. When you say is that absolutely necessary, could that not be achieved by an appointments system where that was a mandatory consideration for an Appointments Commission to have regard to, the answer is obviously yes.

I am struck by these difficulties and even confusions of the argument but I just want to ask one final question. Gordon would say a final question which means he had two more, but this is a final question! You say again in your speech that the 120 elected element that you have proposed in the White Paper is "simply the maximum we can contemplate today", meaning that we might have more.

(Lord Irvine of Lairg) It means that tomorrow we could contemplate more, yes, of course it means that.

But we could not contemplate more to the point where they might imperil this delicate balance between the two Houses?

(Lord Irvine of Lairg) Absolutely not.

How would we know when we have arrived at that point?

(Lord Irvine of Lairg) That, as ever, is a question of judgment but it does seem to me that it would have to be something far short - far short - of 50 per cent because otherwise, inevitably, the authority of the House of Commons would be put at risk, I was interested to see that my colleague Robin Cook said in his evidence to you that it is not possible to strengthen the power of the House of Lords in relation to the Government without strengthening it in relation to the Commons. We must not be complacent that the House of Commons' superiority is given. The constitution will constantly shift and we need to ensure that we maintain the Commons position, we should not just assume it. I think Members of the House of Commons would want to bear that very, very carefully in mind. There is no doubt that at some point, and well beneath 50 per cent of elected, the dynamics of the relationship between the two chambers would alter.

We do not know where the balance is but we know it has to be below 50 per cent?

(Lord Irvine of Lairg) We could all trade numbers. I have not said below 50 per cent, I have said very substantially below 50 per cent.

Chairman: Thank you very much. I think we have opened up some interesting topics. John?

Mr Lyons

Good afternoon, Lord Chancellor. In your introduction you mentioned that some people were in denial. Is there not a danger that some people will think you are in denial of this centre of gravity you were talking about earlier on? What I am suggesting is that people in denial can be counselled. Is there nothing we can offer you to help you move away from 20 per cent?

(Lord Irvine of Lairg) One thing that I am certainly not in denial of is a good argument, but when I said that people are in denial I really do think that was a perfectly proper use of that expression. I get the impression in this debate that people have really fastened on the big issue - how many elected is the big issue - and then it is a kind of bidding process, and then we look for the centre of gravity so the people who contribute to the debate are self-selecting and anyone who says 100 per cent is going to count more in relation to the centre of gravity than everyone else and then of course you get to a centre of gravity and, bingo, that is where the centre of the gravity is. I think that approach is being in denial of what I call the dynamic of the relationship between the House of Commons and the House of Lords. I think with its present powers and functions the House of Lords adds value and does not prejudice the pre-eminence of the House of Commons. I say that at some point the claims for greater legitimacy, although that is not the rationale for putting the 120 elected there, will grow to the extent that the conventions which built up between the Commons and Lords attributable to the Lords being unelected will be subject to great pressure and the House of Commons and the stability of government will suffer.

You would want to be seen as a person in the know, with his finger on the pulse, able to tell people what is happening. We have heard in evidence that the majority of the Conservative Party, the majority of the Parliamentary Labour Party and the majority of the Liberal Democrats would all favour somewhere in the region of 50 per cent or beyond. Do you not accept that that is overwhelming?

(Lord Irvine of Lairg) No, I do not even believe it.

You are in denial.

(Lord Irvine of Lairg) I am not in denial. I believe that if there were a free vote of the Parliamentary Labour Party on the focus of attention, ie, whether it should be all nominated or all elected and that were the only choice, just to cut out all the cackle about a hybrid chamber, my prediction would be that - and I am willing to lose short bets - that all nominated would win because I think the more people think about this, the more they become concerned that focusing on this single elected percentage issue is really playing with some well worked out plans between the Commons and Lords and the superiority of the Commons. What an advantage it is to know that one House of Parliament will always ultimately be entitled to have its way.

I gather from that that you are willing to bet Bolton Wanderers are destined to win the League this year.

(Lord Irvine of Lairg) I thought Spurs did quite well last night!

Let me turn to something else - your disagreement about what is shown in the Parliamentary groups. If a secret ballot among these members were to produce evidence that they wanted something under 50 per cent, would you accept that?

(Lord Irvine of Lairg) I do not think I would be all that keen on a secret ballot really. If you were talking about a ballot in which how everyone voted could be seen, that might be more instructive.

Chairman

Why would you favour that method?

(Lord Irvine of Lairg) I am not favouring it as a method, I am playing around with an argument. All I am really saying is that there has been a large number of people who obviously believe in all elected who have written in to say so and, as I say, they are self-selecting. I believe that there are very, very many people in both Parties who do not begin to believe in a majority elected. Do you know that the overwhelming view of the Conservative Party in the Lords is opposed to the Government's proposals? I believe - but it is possible that you know more about this than I do - that there is an enormous opposition in the Conservative Party to Iain Duncan Smith's proposals and that they are largely seen as a tactical device to wrong-foot the Government and to embarrass the Government in this issue of elected, but I think there is quite a lot of games-playing going on.

Chairman: Thank you for that. Annette?

Annette Brooke

If I could just follow on. If we stay stuck in the groove of at the moment 20 per cent elected, perhaps we could just look at how the rest should be nominated. Certainly I have felt an overwhelming view against the idea of having such a large proportion appointed on a political basis and I think the press has made hay with the phrase "Tony's cronies". How do you feel about that in terms of legitimacy and the implication that the House of Lords is working so well?

(Lord Irvine of Lairg) First of all, is it really correct to make the point about Tony's cronies? Let me just answer the point fairly. If we are talking about a House ultimately of 600, and we are talking of 120 elected and we are talking of 120 independent, and we are talking about the balance being nominated with the numbers of seats in the Lords which go to each party being determined by the new statutory Appointments Commission in accordance with statutory criteria, what we have to realise is that such a scheme - which is the White Paper scheme - does signal a huge decrease in the Prime Minister's powers of patronage. He will lose all rights over the independent members, that is number one. He will lose all rights over the nominations of other parties. Most important of all, he will lose all power over how many nominations his party or any other party may make. Also, because of the numbers game, which I shall not bore you about but which I set out in my speech, there is precious little scope in the transition period, until you get the House down to a size of 600 - some people might think 600 is too large but until you get it down to 600 - there is precious little scope for making new Peers by any party. I really do not think the charge of Tony's cronies actually works but the short answer to your question is that the political parties would nominate in relation to the balance, also their current powers of nomination would be limited because of numbers, 240 having gone to elected and independent.

Lord Wakeham when he gave evidence to us actually said that he thought that was one of the worst proposals in the White Paper in terms of where it differed from the Royal Commission. Can you comment on why you moved such a way away from the Royal Commission?

(Lord Irvine of Lairg) Yes, I certainly can. What Lord Wakeham and his Royal Commission felt was that the Appointments Commission should select the party nominees. Now we took the view, and I think all parties actually would agree with this, that an Appointments Commission should no more decide who should represent a party in the Houses of Parliament, should no more decide that than an appointments committee should decide who wins in the short list for a constituency selection for membership of the House of Commons. We thought that was not one of the most politically switched on suggestions of the Wakeham Commission. I do completely recognise that party patronage is something which upsets people and, therefore, there are ways of looking at this. It would be possible to explore ways round this. One way round it might for example be - and this is just playing with numbers out of the air - suppose, for example that the Liberal Democrat party was entitled in a particular round let us say to five, then the leader of the Liberal Democrats could put forward ten in his order of priority on the basis, of course, that all who are being nominated would be acceptable as members of the House of Lords to the Liberal Democrat party and the Appointments Commission could make its own selection. In other words it could reorder the priorities, I think it would be pretty loathe to do so really, to substitute its judgment for the political party's judgment but that might give greater public confidence. You could have the proposition also that if somebody was being unfairly excluded from a particular list because his face did not fit at any particular time with the party - and we can all think of examples in the history of all political parties where people who have made a significant contribution to parliamentary life answer that description - you might give the Appointments Commission a power to add to the list. Then it would be a matter for the political party whether it gave that individual the whip but you could live with that and it would be pretty rare, but it would happen, but it would be perhaps reassuring to the public. I do have an open mind on that but I think really essentially the selection of people to represent a party in the Houses of Parliament must be made by the party in just the same way as the party must make the selection from a selection conference which will select someone who, if the electorate, agrees becomes an MP.

I accept that your views are very immovable this afternoon.

(Lord Irvine of Lairg) I am not immovable on anything. I am just telling you at present how it seems to me.

Right. I have to say it seems to me, and to the general public, that when we look at these great nominations that it seems absolutely bizarre in this century to be talking about finding members for the second chamber in this way. You do not think that the more mechanical and contrived it becomes to nominate --- and we heard quite a lot from Lord Stevenson earlier on which perhaps did not give great confidence in some respects.

(Lord Irvine of Lairg) Sorry, I am not familiar with his evidence, you will forgive me.

Sorry about that. You do not think that just talking about the deals and so on is actually going to push the general public much more to a view towards a higher proportion of elected members in the second chamber if it is going to have legitimacy?

(Lord Irvine of Lairg) No, I do not see that and in fact when you look at some of the opinion polls it is very striking that it depends what question you ask people. Looking at some of them together they support the proposition that the House of Lords should be much more elected and at the same time it should be less party political. Well, of course, there is nothing more political than a chamber which is 100 per cent elected. It is really quite extraordinary. Just as political parties select who stands for parliament and - unless there is a fantastic shift - certainly in safe seats it is known that when a political party selects it is selecting the next MP, I do not see any difference in that between the political party selecting who it wants to put forward to be a member of the Lords. If these procedures are to be improved I think actually it is a domestic matter for the political parties. The political parties could have different methods of selecting those who the party wants to go forward in the next list of nominations for membership of the Lords. It is almost a matter of domestic government for parties rather than anything else, as it seems to me.

Annette Brooke: I think I will pass the bat.

Mr Prentice

Lord Weatherill told us about 45 minutes ago that the Government's proposals, or we are, are collectively in a mess. You do not agree with him?

(Lord Irvine of Lairg) That is like the prosecuting counsel who starts off by saying "you are guilty, are you not"?

Mr Prentice: I put it to you ----

Chairman: M'lud.

Mr Prentice

---- that we are in a mess.

(Lord Irvine of Lairg) Not guilty, gov.

It was a straightforward question.

(Lord Irvine of Lairg) And it is a very straightforward answer.

I do not know whether to call you Lord Chancellor or Derry, but ----

(Lord Irvine of Lairg) I am perfectly easy with either.

But you are a product of patronage yourself, are you not?

(Lord Irvine of Lairg) In what sense?

You sit on the woolsack because of a decision by a certain TB, I suppose.

(Lord Irvine of Lairg) And everyone who is a minister of the Government in the Lords is equally a product of the Prime Minister's decision who shall be a minister in his Government. The only difference between ministers who are in the Lords and ministers who are in the Commons, and there have to be a certain number of ministers in the Lords, is that they are chosen by the Prime Minister and the only difference is that MPs are elected and Peers are not, so the proposition is really a bit of a truism because you are just saying that Peers are not elected and MPs are elected and the Prime Minister chooses his Government.

So no Appointments Commission to select future Lord Chancellors?

(Lord Irvine of Lairg) I do not think that is part of the current debate.

Chairman

And there is no difference in legitimacy between ministers who are elected by an electorate and those who are appointed by a Prime Minister?

(Lord Irvine of Lairg) If you accept, as I think is accepted, that the House of Lords as presently constituted is perfectly legitimate then equally every minister in the Lords, and not merely me, the Leader in the Lords and every Minister of State and junior minister in the Lords, is entirely legitimate. When you say should the Lord Chancellor be appointed by an Appointments Commission, that question has as much validity as the question would have should the Cabinet be chosen by an Appointments Commission or should all ministers be chosen by an Appointments Commission and that is not real world politics, frankly.

Mr Prentice

You spoke earlier about periods of reflection and Robin when he came before the Committee last week -----

(Lord Irvine of Lairg) Robin who?

Robin Cook. He said that the Government was going to continue its search for a consensus and the centre of gravity. Given that you do not think we are in a mess and given your answers to questions that have been posed just reinforce the idea that you do not need to give at all, ----

(Lord Irvine of Lairg) I have not said that at all. I have not said that at all.

Let me come to the point.

(Lord Irvine of Lairg) All I am saying is that in the current state of debate when you have had these very, very interesting debates in both Houses when an absolute multiplicity of inconsistent views have been expressed, and the consultation period is not at an end, I think it is far too early to start declaring that there is a mess. There are certain issues in political life about which everyone has an opinion ----

Can I come in there?

(Lord Irvine of Lairg) And every man's opinion and woman's opinion is as good as any other. This is actually a one-off.

Chairman: Thank you. Let us just hear the question.

Mr Prentice

This is walking through treacle. Given that we have had two excellent debates and there has been a huge amount of press comment on this, eminent academics, anyone with a view has expressed a view about the shape of the second chamber, and we have had very eminent people come before us on this Committee, and you will have read their evidence ----

(Lord Irvine of Lairg) I have not actually. I have read some. I will in the fullness of time read it all.

I was going to ask you if having read all the evidence ----

(Lord Irvine of Lairg) Well, I have not read it.

What is the point? This is very hypothetical now. I was going to ask you, having listened to the national debate, whether your views had changed materially at all as a result of what people have said?

(Lord Irvine of Lairg) I have certainly paid very, very close attention to what everyone has said. I think that there is the possibility of some flexibility in relation to the percentage elected but I do not think that it is very great precisely for the reasons that I have given and is not worthy of attention.

Okay.

(Lord Irvine of Lairg) A lot of people have spoken out in relation to elected, and of course one has to respect that, and I do, but it is the job of Government not to govern in relation to issues by opinion poll but to come to the view that it thinks is correct.

On that point, you told us earlier that the Government's collective fingerprints are all over this proposal, it is not the Lord Chancellor's proposal.

(Lord Irvine of Lairg) Well, everybody knows that. Everybody knows that White Papers are settled by Cabinet Committee.

My question was how is it that all those people, Charles Clarke, John Prescott, so seriously misjudged the mood and the feelings, the opinions, of their colleagues in Parliament and outside?

(Lord Irvine of Lairg) I am not going to say anything more intriguing than I think that you should call John Prescott along and ask him because I think he would give you quite a trenchant answer to that. I am not going to speak for him.

You did earlier, you mentioned his name, that is why I brought it up. If you had not mentioned his name I would not have asked you the question. Let me, if I may, just return to this question about the size of the second chamber. You told us earlier that we must not prejudice the position of life Peers because when they were ennobled they were told they would be Peers until they dropped and Andrew Tyrie, when he was here an hour or so ago, said that the proposal to buy off Peers was cash for no questions. In your contribution to the debate on 9 January you said that the Government, "we are canvassing opinions on a voluntary retirement scheme..."

(Lord Irvine of Lairg) Absolutely.

"...because attrition of itself will not do the job". You told us that 18 Peers on average die every year.

(Lord Irvine of Lairg) I actually think that attrition----

My question, because I am quoting back to you your words, "we are canvassing opinions on a voluntary retirement scheme", is I am intrigued as to what kind of response you got from Peers about a voluntary retirement scheme?

(Lord Irvine of Lairg) So the question is what response have we had to proposals for a voluntary retirement scheme?

And give us the details of the voluntary retirement scheme.

(Lord Irvine of Lairg) First of all, there are no details to give. Certainly when the analysis of all the responses to the consultation come in we will see if anyone has focused on that. Basically there is a strong argument, I think, in favour of having some kind of pension for Peers who retire which will be taxable. It might reflect the number of years' service in the House of Parliament. Consideration could also be given to a lump sum resettlement figure. None of these ideas seem to me to be objectionable. It could be accompanied by a condition that it would have to be applied for within a period of years, a reasonable period of years, otherwise it could not be obtained, so as to be an obvious incentive for the older Peers to take it up. I think that these are all respectable ideas in any event. None of this flexibility bears on the central question that everybody has to consider what proportion of elected can safely be allowed without prejudicing the pre-eminence of the House of Commons.

I understand that. I have only got a couple of questions left. Would this army of Peers that take voluntary retirement have club rights in the House of Lords? Lord Weatherill spoke to us earlier about Peers who had left the House of Lords, they were no longer voting members but they had club rights.

(Lord Irvine of Lairg) No, there are no club rights.

There are no club rights?

(Lord Irvine of Lairg) There are no club rights for the hereditaries who have gone.

Chairman: There is talk of having them.

Mr Prentice

I misunderstood.

(Lord Irvine of Lairg) I think probably what Bernard Weatherill was saying is that club rights are an incentive to people who are minded to go to go. The grant of club rights is a matter for the House not really for the legislature, that is the historic view. The outgoing hereditaries were not given club rights. You talk about an army of Peers, that is your expression not mine, I am not persuaded that there would be an army of Peers who would take up the offer. I think it is a justifiable scheme and certainly there would be some takers which would make greater flexibility in numbers.

Okay. My final question is this, if I may. It was the Government's objective way back in the early days, to make the second chamber more representative of British society, something like that, I am quoting from memory. I know the changes, the hereditaries have gone.

(Lord Irvine of Lairg) Well, 92 remain, as you know.

Yes, only 92. Do you think that the second chamber is representative of British society and if it is not, what kind of changes would you like to see made to ensure that it could be made more representative?

(Lord Irvine of Lairg) Nothing is a perfect microcosm of society as a whole. The House of Lords is, however, quite significantly representative because of the large number for example of former MPs who are there, who are in themselves representative of society, members of local government and then various, if you like, functional "constituencies" in the country are represented, not as such but in substance, the professions, as I said, the arts, the voluntary sector. There is a huge range of interest groups, shall we call them, which are represented by persons who come from these interest groups in the House of Lords. That is what adds to the informed quality of debate, particularly in specialist subjects, and informed appraisal of legislation by the House in committee when the people who tend to take part actively in the committee are doing so from a position of expertise derived, usually, from the occupations that they formally had. I am not saying it is a microcosm of a community, I think it is a microcosm of a very, very broad range of interests in the community.

Chairman: I would be grateful for some fairly crisp questioning and perhaps even, Lord Chancellor, for some fairly crisp answers. Brian White.

Brian White

First of all an apology for coming in late but I was on the Standing Committee of the Ofcom Bill. You mentioned 600 Peers as the objective, is that because you believe in part-time representation in the House of Lords or could you not have a smaller House with full-time representation?

(Lord Irvine of Lairg) The short answer to that question is you could have smaller if it was full-time. It is predicated upon part-time, therefore you need more to have a complement at any time. The virtue of it being part-time is that it draws from the range of experiences that I have described.

Why did you not choose to reduce the number of life Peers, and I am not normally in favour of compulsory redundancies, but the Weatherill amendment reduced hereditary Peers, why not reduce the life Peers on the same basis that they vote who remains?

(Lord Irvine of Lairg) Again, nobody raised that as a possibility. I may be historically wrong about that because maybe some Conservatives who were resisting the removal of the hereditaries may have raised it, I cannot precisely remember. I think the point is that the Labour Government came to power on a manifesto which assumed that whatever is legitimate, hereditary Peers were illegitimate and we have a clear mandate to remove hereditary Peers. Life Peers were not illegitimate, they were appointed under the Life Peerages Act, and the terms under which they were appointed gave them a right to a seat and a voice in Parliament for life. Of course Parliament can change that but it did not seem to us at the time to be fair.

Do you accept that the debate over the House of Lords is actually tied up with the whole debate on the disillusionment that the general public has with politics and the turn out at the last General Election of 59 per cent and the cynicism that is out there? Do you accept that the proposals as put forward have contributed to that cynicism and to the real anger amongst particularly Labour party members who feel let down by the Government proposals which they do not see as radical enough?

(Lord Irvine of Lairg) Well, that, obviously, if it is widely felt in the constituency parties, it really gives cause. I do say that very often the House of Lords gets a very good billing when broad opinion is consulted. It is perceived as less political than the House of Commons, and probably rightly, it is not a political hot house. I think that there is disillusionment with the parliamentary process generally but not least, I must say, with the House of Commons. I think that the most interesting observation that appeared to me, at any rate, was that the people want the House of Lords to be less party political. I think there is a little bit of confusion around in thinking that if you make it wholly elected it will become less party political and more likeable to the general public.

What do you say to the charge that this proposal is brought forward in order to stop any reform because you have generated so many different views about what the reform is that you keep the status quo as it is now and that is the whole purpose of the White Paper?

(Lord Irvine of Lairg) I can tell you with my hand on my heart that it was not the purpose of the White Paper and the purpose of the White Paper and the purpose of all of us who contributed to that White Paper was that it would be a basis around which consensus could be achieved. Any conspiracy theory that it was intended to achieve no further progress is not true. Now, it is the fact that the status quo is an option. The status quo always is an option. The status quo was the option which prevailed for the last hundred years but we are, of course, committed to removing the 92 hereditaries.

You can avoid all this argument, of course, if you abolish the House of Lords full stop and have a bicameral system.

(Lord Irvine of Lairg) I did say that in my opening remarks but I think that you were busy elsewhere.

Kevin Brennan

It strikes me, Lord Irvine, that the time when you became most animated and excited in giving your evidence was when people said there was the possibility of having nobody elected at all to the second chamber. You said "There is a heck a lot of people..." and then you went on to name some of the usual suspects from the House of Lords "... who would favour that". Would that personally be your position that you would rather not have any elected element to the second chamber?

(Lord Irvine of Lairg) First of all, I have not been conscious of any sense - and this is not in the least offensive to the Committee I hope - of animation or excitement throughout the whole of our discussions. I have been extremely interested and I have enjoyed them all. Whereas there are very powerful arguments for no elected at all and whereas I respect the opinions of those who regard hybridity as very difficult because it creates two different classes of Members of the one House ----

But you sincerely do believe ----

(Lord Irvine of Lairg) Let me finish.

I do not want to prolong this. You do believe that there is a place for a small proportion that is elected?

(Lord Irvine of Lairg) Yes.

Have you had any sense at all of surrealism about this because I have in all of these discussions? We have had a number of ornithological references throughout the afternoon and throughout the evidence. We have heard of Robin, we have heard of turkeys voting for Christmas with Cranborne sauce, we have heard of dead ducks and, indeed, we heard of a dead parrot earlier on. Have you had any sense that you are the man trying to sell the dead parrot as far as your proposal is concerned when it is a dead proposal and there is no support for it out there at all? You said earlier on that it has been road tested, you said that you seriously believe it is still in contention. Do you honestly believe that anything resembling the proposals that are in the White Paper could command anywhere close to a majority in the House of Commons?

(Lord Irvine of Lairg) Yes.

And on what evidence do you support that contention?

(Lord Irvine of Lairg) First of all, I am not honestly impressed by epithets like Cranborne sauce or anything else. They add to the gaiety of nations but they do not progress the argument. I do think when people take time to reflect and consider the very central point that I have tried to make that the superiority of the House of Commons is at the heart of the stability of our Government and that it will be prejudiced by an excessive elected element, I think that as people really think very hard about that central proposition minds are likely to change. If I am wrong, I am wrong, it is not the end of the world. As you and I know there are bread and butter issues that affect the British people of inordinately more importance than House of Lords reform. One of the things that has actually amazed me is how animated and excited Members of the House of Commons have become about this issue when there are so many other issues to be really much more animated and excited about. I do not really think actually that Constituency Labour Parties do so vastly care about this issue, but you represent a constituency, I do not, you have got a better feel for that than I about it. If this is a bird that does not fly in this plumage or somewhat different plumage it is not the end of the world, we get on with life.

Kevin Brennan: I suspect it is nailed to the perch.

Mr Wright

Can I just apologise, I, like Brian White, was on a Standing Committee as well. Very quickly, in regard to what you have just said about you oppose an excessive elected element in the second chamber, that seems to be out of kilter with what we hear the Prime Minister is actually moving towards now, that he does not accept that the White Paper as it is is going to go through, probably more like 40 to 60 per cent.

(Lord Irvine of Lairg) I do not know where you got that from.

That is the view that seems to be coming forward, whether it is true or not remains to be seen. Would you find it extremely difficult to support anything over the 20 per cent elected representatives within the House of Lords or could you accept that, if that was the overriding view coming forward from the House of Commons, if you could see that was the only way forward?

(Lord Irvine of Lairg) Of course you pay the highest importance, obviously, to what would get through the Commons and you give the highest weight to the collective view of the PLP if you can ascertain it. At the end of the day the Government has to decide what it thinks is proper to bring forward. If the predominant view of my colleagues was for a larger percentage than 20, a significantly larger percentage than 20, I would not stand in its way. The only consensus within Government at that moment was to put forward the 20 per cent proposition which the White Paper put forward. As I said at the outset when you were not here, we do read, we do listen, we do know what is going on in the PLP. We learn from the debates, we learn from the consultation exercise and we will have to think again, and I have said that we will.

Earlier on we had Lord Stevenson here and he answered a host of questions regarding the Commission, the problems that we perceive with the selection of what we term now as the People's Peers, or as was at that time.

(Lord Irvine of Lairg) In fairness to Lord Stevenson, I do not think that was an expression that he chose.

I am not saying it was by any stretch of the imagination, it is an expression that seems to have been adopted certainly by the ordinary public outside which obviously was concerned. Do you not think that has done some damage to the perception that the Commission actually select ordinary people to represent them?

(Lord Irvine of Lairg) Because the idea got round that the independent Peers were People's Peers, then obviously when it turned out that these 15 Peers were all eminent in one way or another in their public lives that to an extent got this interim Appointments Commission a bad name. I think it was a bit hard on them actually because typically in relation to independent Peers what you are looking for are people who bring an independent mind and great experience of some area of life into the House of Lords. If actually you are looking for People's Peers in the sense of people who are closer to the coalface of life rather than very eminent people like the Stevenson Peers, then the most natural way for them to go forward is via the political parties. I do not want to get into the question of whether they should be elected or whether they should be nominated but either way you get People's Peers by that route. The independent Peers are typically thought of as people who will bring to the legislative process great experience of other walks of life. This is actually what makes the House of Lords different from the House of Commons. Although Members of the House of Commons bring great experience also to public life, it is from a different source usually and these people - let us take some of them: Chan on medical teaching and research, Condon, the police, Greenfield, medical teaching and the chap who was the Chief Executive of Centrepoint, Adebowale - are all people who bring particular experience to the House of Lords and very relevant experience to all the legislation that goes through, but of course you cannot describe them as People's Peers. My point is that you should look for People's Peers from the political route.

Chairman

Thank you for that. We are rounding off now. I am sorry for detaining you for so long.

(Lord Irvine of Lairg) It has been an hour and a half but I have enjoyed every minute of it.

Do not get too excited. We are almost there. If I could just ask a couple of things very quickly and if you could give very quick answers, even though they are very large questions. There are those who would put a fundamental objection to your whole approach, and your approach is one that says "we cannot do anything that would imperil the balance between these two Houses and any substantial elected element would do that". The evidence that we have heard from many sources says that is a completely misconceived position because if you have a second chamber with quite different powers, elected quite differently, different terms, staggered elections, so it is a completely different institution, there is no question of it being a threat, it is just entirely different, it will become complementary, so why is that not the answer to your central worry?

(Lord Irvine of Lairg) Because I think you are completely wrong. I think a substantial elected House of Lords elected by a different method of election, PR, which would be claimed to be superior would inevitably upset the conventions which caused the House of Commons to be accepted as superior, conventions which were premised upon the House of Lords being unelected which in practice would prove to be swept away over time if we had a substantially elected House of Lords. It is a question of judgment. It is not actually a question of evidence or how many people say it. What you have to do in this area is not number of opinion, you have to respect the number of people who have an opinion in a similar sense but you actually weigh them, you do not number them, it is a question of judgment. I may be right, I may be wrong.

I am following you. Secondly, in your contribution to the Lords, you go through the figures in the Lords at the moment and you come up with 120 elected. You say "What these figures show is there is no scope at present for more than 120 elected" that is to say people might want it but the figures just do not allow it to happen.

(Lord Irvine of Lairg) Yes. I was really saying therefore in the real world there is an argument for tomorrow.

Yes.

(Lord Irvine of Lairg) We cannot bind our successors. Why not get rid of the 92 hereditaries, let us go ahead with the 120 elected and then let the future take care of itself at the same time as the Grim Reaper plus the pension will be laying scope for a different view being taken by our successors. What is wrong with that?

No, no, the Grim Reaper has featured largely in our discussions today and I do not want to revisit him or her.

(Lord Irvine of Lairg) Well, why not end on a morbid note?

Because I am not quite ended and I am chairing this. What I want to know from you is whether this is a technical problem you have got or whether it is a problem of principle?

(Lord Irvine of Lairg) The latter.

So even if we could come up -

(Lord Irvine of Lairg) Look, I have made it clear, have I not? There is a technical problem today because the scope for more than 120 is not there. There is also a question of principle as to what percentage level of elected you can safely go to without reaching what is my datum line, I do not know if it is your datum line, I do not ask you questions, you ask me which is fair enough.

That is the arrangement.

(Lord Irvine of Lairg) But without prejudice to the datum line which for me is the pre-eminence of the House of Commons is essential to the stability of British Government. That is a question of judgment, it seems to me, and a question of principle but there is a technical problem as well, the numbers, which is a problem for the press.

We are very grateful for hearing that judgment in the way you have described it to us. I am sorry that we have not been able to provide you with animation and excitement.

(Lord Irvine of Lairg) You have indeed but I just conceal it.

I think we would certainly put on record our animation and excitement at the proceedings. We must get our thrills in different ways.

(Lord Irvine of Lairg) I think you should have a further inquiry into that.

I must say, to end, we were particularly excited when you seemed to offer some kind of bet on the outcome any kind of survey of opinion would produce because we are conducting a survey of opinion at the moment so we may want to meet again to discuss the results.

(Lord Irvine of Lairg) I am perfectly willing to come along and say that I was wrong. You will be publishing how everybody voted?

Yes.

(Lord Irvine of Lairg) The choice will be all nominated or all elected.

I has been very kind of you to come along.

(Lord Irvine of Lairg) I notice I did not get an assent.

Chairman: We value your time and your contribution. Thank you.