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This House has achieved primacy over the past 250 or 300 years by controlling Supply. Indeed, that has been the case for much longer than that. King John chose to go to Runnymede to sign up to a Magna Carta that he absolutely did not agree with a word of because he needed Supply. Of course, he reneged on everything
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that he had agreed within weeks, but Magna Carta is seen, historically, although totally erroneously, as the fundamental source of all our liberties.

Although the control of Supply is one element of what gives this House its great power, the other element is the fact that, for the past 200 or 250 years—since Mr. Walpole—we have been the location of the Executive, rather than the monarch. That, in a way, determines the remit of both Houses. The Commons is the House of the Executive—of the Prime Minister, the Ministers and the Cabinet—and the other Chamber has a natural remit, not as the House of the Executive, but as the House of scrutiny.

As my hon. Friend the Member for Cannock Chase (Dr. Wright) said in a typically excellent contribution, and as other Members have said, there are many types of scrutiny that we do not do well, and there are many areas where we could do more. They include post-legislative and pre-legislative scrutiny, and scrutiny of the arm’s length agencies and quangos that increasingly work on behalf of the Government, but that are not held accountable. Ministers duck questions and pass them on to those bodies. Much scrutiny that will, I suspect, never be carried out in this Chamber could be done in the second Chamber.

Things would work much better, and it would clarify the distinction between the two Houses, if the other House had no members of the Executive—no Ministers—at all. We do not need Ministers in the other House; this is the House of the Executive and Ministers. If the second Chamber were free from Government patronage and careerism, and its Members were really free, within the bounds of parliamentary and political philosophy, to be independent, rigorous scrutineers, it would hugely improve the clarity of the distinction between the two Houses, and it would allow us to work much more complementarily. I notice that the White Paper mentions that point in passing, in almost just a line, but surely we must come back to the issue. Let us get the Executive out of the second Chamber and free that Chamber to be a rigorous House of scrutiny.

I agree with my right hon. Friend the Member for Holborn and St. Pancras that today’s debate ought to be part of a much wider political debate on reform. Hon. Members on both sides of the House are, at the moment, in a critically weak parliamentary position. The imbalance between the Executive and the legislature has become critical, and any decision made today could play a small but significant part in improving that.

My right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman) said that the debate is otiose because nothing will happen, and asked what new incoming Prime Minister would want to get bogged down in the issue. I hope that he is wrong. It is incumbent on Members on both sides of the House to ensure that, either before or after the next election, any new Prime Minister is encouraged to see, indeed is shown, how important reform is, and how popular it could be. The Prime Minister who changes the balance between the Executive and the legislature and creates a fully democratic Parliament could go down as a great reforming Prime Minister. There is an opportunity to be taken.

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We need a new settlement, a new covenant, a new Magna Carta that would clarify the democratic role of both Houses and the relationship between the Executive and the legislature. We will not have this opportunity very often; we are lucky. We may be unfortunate enough to be in a House that is decrepit, in terms of the provision of parliamentary scrutiny and the balance between the Executive and the legislature, but we are lucky to be here at a moment when we can influence it, perhaps in a way in which it has not been influenced since Wilkes. This evening will, perhaps, be a great moment. I hope that the House will have the courage to take that step, to rebalance our democracy, and to ensure that the voice of the people is heard in both Houses.

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I emphasise the advice given by the Chair on the length of speeches. If it is followed, we can try to accommodate everyone who has been in the Chamber for quite some time.

4.3 pm

Mr. William Cash (Stone) (Con): This has been a fascinating debate. It is now generally agreed by Members on both sides of the House that Parliament as a whole, and not just the House of Lords, must be reformed. I add that there should be a reduction of the overweening power of the Executive and the Whip system. That must be done on the great principles of democracy; independence of judgment; public interest; the self-government of the United Kingdom; the supremacy of our Westminster Parliament, based on the primacy of the House of Commons as the Chamber of government; legislation derived from opinions, judgment and democratic principles within the framework of the rule of law; and, above all else, the will of the electorate through general elections.

The arguments presented by those who are against a democratically elected House of Lords have, I fear, a resonance in the reactionary arguments that were heard in the run-up to the Reform Act 1832, the reform of the House of Commons, against the repeal of our corn laws, and again in 1867, 1874, the late 19th century, 1911 and 1926, when it was thought by some inconceivable that women should have the vote.

We must complete the democratic process after 100 years of debate. Even in the 18th century, the economic reform movement paved the way to removing the rotten boroughs, which were based on purchase by patronage and appointment by the Crown. I recall Dunning’s famous motion of 1780 that the power of the Crown has increased, is increasing and ought to be diminished.

What is wrong, some ask, with an appointed House of Lords? After all, it is true that many of them have performed and continue to perform an assiduous and distinguished role in the political life of the nation. But surely, it is argued, it is in the public interest to have experts appointed to legislate in their specialised field. Unfortunately, the appointments system does not stand scrutiny. It is based on patronage and, at its worst, is corrupted by the whiff of scandal.

As to expertise, I read, for example, that one noble Lord tells us that he would not tend to vote in areas
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where he knew nothing about the issue in question. This is one of the so-called people’s peers. I think he knows little about parliamentary ways. Legislators have an obligation to learn to participate in the process as a whole. This particular peer regards himself as an expert in matters of the European Union, but is significantly out of kilter with public opinion on the subject.

On the more general question of appointment, as I said yesterday in an intervention, in 2005-06—this is telling—170 life peers who are not Law Lords voted in less than 10 per cent. of the Divisions, and 76 of them did not take part in any Division whatsoever. That is a disgrace. They are part of the legislative process. Why are they there at all? Furthermore, from figures that I have from the Library in relation to claims for the daily allowance, the median rate of attendance based on allowance claims was 67 per cent., whereas the median participation in Divisions was half of that—a mere 36 per cent. That cannot be right.

The House of Lords is often described as a revising Chamber. That generalisation deserves proper study. In the past few years, few Bills have been rejected by the House of Lords and subjected to the Parliament Act. In respect of amendments to Bills, most amendments are made by the Government. The problem comes from the disgraceful number of Bills guillotined in this House, which must be stopped. This is not a reason in itself to glorify the House of Lords as a revising Chamber. Indeed, many amendments that are returned to the House of Commons are a product of the votes of Cross-Benchers with Liberal Democrats, with their zeal for certain types of legislation, including human rights legislation and some of the most permissive legislation that has gone through recently.

Direct elections would make the House of Lords more responsive to public opinion in respect of matters relating to both the European Union and human rights. It is noticeable that the Committees in the House of Lords are dominated by acknowledged Euro-enthusiasts. I have no objection to their views. I would defend their right to express them, but I would ask that they take a rational view of the basis on which the arguments are presented. Most are contrary to public opinion.

There is an even deeper question here. Through the European Communities Act 1972 the House of Lords and even the Law Lords are overarched in the legislative process and as a supreme court by the European treaties. The Leader of the House knows that I am right. Therefore, the House of Lords is, like the House of Commons, very much within the influence of the European Union, which is itself undemocratic and unaccountable.

I object to the proposed open-list system—we will have to sort that out when the Bill comes before the House of Commons at a later stage—and I am extremely concerned that we are not being presented with a first-past-the-post system. I am profoundly against the patronage of the party list system, which, even if independents were allowed to stand, would in practice result in excessive control by the party leadership over the judgment of those who are elected. There is a strong case for a democratically elected House to be required to prohibit whipping in the upper Chamber in respect of legislative matters after Second Reading. If that were done by Standing Orders, it
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would buttress people’s ability to make decisions based on their own judgment, not driven by the party Whips system.

As for 15 years’ tenure, I cannot understand why it should not be a mere five years. That would enable a more natural transition from the existing House and allow those of good standing to remain for the time being.

On possible conflicts between the Houses, I have argued for more than a decade that it is easy to avoid that by having different electoral cycles and different constituencies, and a hybrid House of 80:20 or 60:40. However, if Lords elections and boundaries were coterminous with European elections and boundaries, I fear that that would lead to the former being dominated by European issues, which would be absurd. As my amendment shows, I would have preferred that the Chamber’s functions be determined before its composition, but we are where we are. There must be drawn up in the Bill a schedule of important but restricted functions for a democratically elected House of Lords, with primacy clearly founded in statute to ensure that the House of Commons is the democratically elected Chamber of Government, with financial matters clearly reserved to it. I am afraid that I do not agree with my right hon. Friend the Member for West Dorset (Mr. Letwin) that people are not concerned about primacy; I believe that they are. Because primacy and functions are inseparable, we must not merely rely on the conventions, but insist on statute to bring into effect a directly elected Chamber, in order to ensure that this House remains the Chamber of Government and determines questions of taxation and public expenditure.

I have argued for more than a decade for a directly elected House of Lords, and it is time for us to make certain that that takes place.

4.13 pm

Mr. Robert Marshall-Andrews (Medway) (Lab): I start in a spirit of repentance, as foreshadowed by the hon. Member for Buckingham (John Bercow). In the 1999 debate on this subject, I strongly supported and spoke in favour of the unicameral option. In the 2003 debate, I strongly supported and spoke in favour of a substantially elected second Chamber—“substantially” then being the mot juste. Tonight, I will support the status quo. It will be immediately obvious that I have had a double apostasy, which has been a remarkably painless process. All those who undergo life-changing operations want to speak about it, so that is what I want to do.

Let me offer a mea culpa and explain why I have arrived at this position having traversed the whole breadth of the options that are available to us. When I strongly supported a unicameral Chamber, it was for the simple reason that I believed that the House of Commons should take responsibility for its own actions and its own votes. I was reinforced in that by the fact that immediately beforehand I had been trying to persuade some of my hon. Friends to vote against the Government. Unlike my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman), I cannot boast of 37 years of never voting against the party Whip—nor 10 years, for that matter,
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nor even six months. On that occasion, I was hoping to persuade many of my colleagues to vote against the first Criminal Justice (Mode of Trial) Bill, which my right hon. Friend the Leader of the House may remember very well. A surprisingly large number of them told me that they were entirely in agreement with my view and were entirely against the Government’s attack on this aspect of civil liberty, but that they would none the less vote with the Government because they knew full well that in due course the House of Lords would do its duty, which it did.

It seemed to me that that in itself was an abnegation of the responsibilities of this House. It also seemed to me at the time that a unicameralist position would do much to reverse that. I have observed what subsequently happened and what has happened to other Bills that have passed into the House of Lords. I am grateful to the hon. Member for Aldershot (Mr. Howarth) for pointing out that on 400 occasions the House of Lords has reversed serious parts of Government legislation, the majority of which have affected civil liberties in one way or another. On most occasions, the other place sought to affect the civil liberties aspects of Bills that the Government had passed. It is worth reflecting that this Government have passed more Bills affecting civil liberties than were passed in the whole of the 19th and the first part of the 20th century. Such Bills can be passed in this House by a majority of one vote. Bills on constitutional matters can be passed without a two-thirds majority.

As I grew up, I suppose, it seemed to me that the essence of the House of Lords was indeed to object to that type of attack on constitutional issues, so I changed my mind and voted for a largely or substantially elected upper House. The reason I did so was on account of the belief that I have always had that the true curse of the British political system is patronage—patronage in whatever aegis or whatever system it comes. I am talking about patronage in appointments to ministerial office and patronage in appointments to the House of Lords. Because I believed that so strongly, I voted for a wholly or substantially elected second Chamber.

That patronage, however, has been immeasurably increased in the short time that I have been here by the growth of the professional politician. There is nothing wrong with the professional politician. It is an honourable vocation: despite the predations of the fourth estate, we have an honourable vocation. However, it is unanswerable that those who come into politics as their only profession—wishing, of course, to succeed in their only profession—are vulnerable to the powers of patronage to a far greater extent than others. As a result of the catalyst of those two things, patronage has increased immeasurably.

For that reason, I find myself—paradoxically and perversely, in many ways—changing again. I am always encouraged by the expression on the face of the hon. Member for Buckingham when I get into this kind of strife. I changed again for a reason that can be seen in the White Paper, particularly in relation to the form of election in the second Chamber. The postulation of that election is that it should be by closed or semi-closed or open list—

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Mr. Straw rose—

Mark Fisher: It is up to us. We can decide that.

Mr. Marshall-Andrews: We can revise it, but I am under instruction not to give way under any circumstances. However, as I am going to finish very soon, a short intervention by the Leader of the House may be possible.

Mr. Straw: I would like to say to my hon. and learned Friend, as I made clear in my opening speech, that the proposal in the White Paper is only a proposal at the moment. All that we are voting on tonight are the words on the Order Paper and I have already given an undertaking that, if we get to a point where we have agreed to have an elected element, I will then sit down with other parties to discuss how the election process should take place.

Mr. Marshall-Andrews: I am grateful to my right hon. Friend and of course I accept that. I acknowledge that this is simply a paper and that it will require endorsement as legislation later. Of course that is the case, but at the moment, it is the Government’s proposal and I will not align myself with bringing into effect a wholly or partly elected House, while it is still a possibility. If we had held a vote in the House and had, before now, set our faces against a closed or partly closed list system for electing Members of the House of Lords, my position would be different. However, a closed list is effectively a biometric passport for the professional politician into the House of Lords for 15 years.

I asked myself if, in the past 15 years, professional politicians, especially from the Labour and Conservative parties, had been elected to the second Chamber on a list system, the House of Lords would have set its face against the Criminal Justice (Mode of Trial) Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill, and whether it would have opposed the removal of the right to elect for trial by jury. My view is that it would not have done so. For that reason, at this stage, I will support the status quo.

I am somewhat alarmed by arriving at a position that the Prime Minister supported in previous votes. However, I take comfort from the fact that, while I have been travelling in one direction, he has been travelling in the other. I am grateful to have been called to speak.

4.21 pm

Mr. Owen Paterson (North Shropshire) (Con): It is always a pleasure to follow the hon. and learned Member for Medway (Mr. Marshall-Andrews). He is good value. I do not agree with him on this occasion but it is interesting that he has been to Damascus. However, I have not.

We are tackling the problem backwards. We have heard much in the past few days about the primacy of this House, but the problem is the overweening power of the Executive. Fifty Home Office Bills have been introduced since 1997 and we have experienced the nonsense of clauses in some measures being overtaken by succeeding Bills. As the hon. Member for Cannock Chase (Dr. Wright) said, we have quangos. We also have European legislation. I served on the European Scrutiny
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Committee and, one day, we met at 4 o’clock and adjourned two minutes later, having passed 78 documents. This House is not restraining the Executive or scrutinising legislation effectively and my constituents continually complain about over-regulation.

We should establish the function of the House of Lords first, but that is not the point of the debate. I would welcome a stronger House of Lords that made life more difficult for the Executive and galvanised the House of Commons into doing its job better.

The experience of the United States Senate does not bear out the alarm of those who fear an elected House of Lords. It was originally appointed by various mechanisms. An age threshold of 30 was set and the Senate was excluded from issues of Supply—raising and spending money. It was intended to be the junior House, with the House of Representatives being the proportionate House. Now that the Senate is elected, it has inevitably increased its power. It is inevitable that any elected element will give a new House authority. However, mechanisms have been devised, such as the Conference Committee, to resolve deadlock. I do not fear deadlock. We have too much law and some parliamentary setbacks might have a beneficial effect on an overbearing Executive. I would welcome some tension.

The US Senate’s most brilliant innovation was to allocate two Senators per state, regardless of population. That was originally intended to ensure that the thinly populated rural states were not overwhelmed in the legislature by the populous states that were dominated by the commercial interest. That was a clever rationalisation of the geographical distribution that the hereditary peerage provided in Great Britain.

I have asked the Prime Minister a series of parliamentary questions, the answer to which shows a spectacular disfranchisement of the United Kingdom outside London and the south-east. I asked the Prime Minister on 14 September 2004, 24 March 2005 and 6 March 2007—I thank his office for replying this morning—

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