MONDAY 24 OCTOBER 2011
Members present:
Lord Richard (Chairman)
Baroness Andrews
The Bishop of Leicester
Lord Hennessy of Nympsfield
Lord Norton of Louth
Lord Rooker
Baroness Scott of Needham Market
Baroness Symons of Vernham Dean
Lord Trefgarne
Lord Trimble
Lord Tyler
Baroness Young of Hornsey
Mr Tom Clarke MP
Ann Coffey MP
Oliver Heald MP
Tristram Hunt MP
Mrs Eleanor Laing MP
Dr Daniel Poulter MP
Laura Sandys MP
John Stevenson MP
John Thurso MP
Malcolm Wicks MP
Professor Vernon Bogdanor (QQ 89-115)
Examination of Witness
Professor Vernon Bogdanor,
King's College, London
Q89 The Chairman: Professor
Bogdanor, thank you very much for coming. We are very grateful
that you have come in order to give evidence to us this afternoon.
Perhaps I could ask a general question to start us off, so to
speak. What effect do you think that a wholly or mainly elected
House of Lords would have on the relationship between the two
Houses of Parliament and the primacy of the House of Commons?
I suppose that consequential up that is another issue that one
can discuss with it. To what extent are the Parliament Act and
the Commons control of supply sufficient of themselves to maintain
the primacy of the Commons in the event of a more assertive upper
House?
Professor Bogdanor:
Thank you for inviting me, Lord Chairman, and thank you for your
first question, which is a very wide one indeed. My answer would
be that a wholly elected or largely elected upper House would
either seek more powers or seek to use the full powers that the
present House of Lords already has but rarely uses, and I think
this would be a challenge to the supremacy of the House of Commons.
The summary of the Government's proposals in the
draft Bill suggests that no change is proposed in the constitutional
powers and privileges of the upper House, once it is reformed,
or to the fundamental relationship with the Commons, which remains
the primary House of Parliament. It suggests that primacy rests
partly in the Parliament Acts and in the financial privilege of
the House of Commons. I do not think that is quite correct because
the Parliament Acts have been very rarely used since 1911. It
seems to me the primacy of the Commons rests on the fact that
it is an elected and representative body and the Lords, as at
present constituted, is not.
But, of course, with an elected Lords the upper House
also would say it was an elected and representative body and had
a good mandate to challenge the Commons, even perhaps a better
mandate, because the upper House would be elected by a proportional
method of election and that would mean, some would say, that it
was more representative of the electors than the House of Commons,
which is elected by first past the post. I must say, as a supporter
of proportional representation, that it does seem to me peculiar
to propose that the revising Chamber be elected in that way, whereas
the Chamber that chooses the Government continues to be elected
by first pass the post. It seems another confusion in the proposal.
Q90 The Chairman: Thank
you. Could I follow that with one other question? In your paper
you make the point that the Parliament Act of 1911 was enacted
in response to the change in the composition of the House of Lords
and that once you had changed the composition you had to have
some Act that, to a certain extent at any rate, governed the relationship
between the two Houses and ensured that the Commons was the primary
House. If you could do it in 1911, why cannot you do it in 2011?
Professor Bogdanor:
I am not sure that is quite a correct interpretation of what I
said, with respect, Lord Chairman. I think the Parliament Act
of 1911 was needed because the Peers did not understand the significance
of the great Liberal election victory of 1906 and continued to
use tactics that might have been acceptable beforehand but were
not acceptable after 1906. In other words, the House of Lords
could be said to be abusing its powers. I do not think it is argued
today that the House of Lords is abusing its powers.
The 1949 Act was passed for a different reason, I
think, which was to enable the Labour Government to nationalise
the iron and steel industry, although in the end it was not needed
for that purpose. But again it is fair to say in the late 1940s
no one suggested that the House of Lords was abusing its powers
with regard to the legislation of the 1945 Labour Government.
That was the first majority Government of the left since the Liberal
victory of 1906 and, by contrast with 1906, the Lords, I think
it is fair to say, did not abuse their powers. They had learnt
the lesson of that earlier period.
Q91 The Chairman:
Yes, but what about the central point, which is that if you could
legislate to determine the relationship between the two Houses
in 1911, whatever the motivation for it, why cannot you do it
in 2011?
Professor Bogdanor:
Indeed, certainly, Lord Chairman, you could legislate to the relative
powers of the House of Lords and the House of Commons. That is
not, as I understand it, in the Government's proposal, but if
you are suggesting that this is a consequence of the Government's
proposal I would certainly agree with that. The difficulty, of
course, is that it would be illogical to suggest that an elected
Chamber should have fewer powers than the current non-elected
Chamber. I suspect there are not many in the Government who would
want to give the upper House more power than it has at present
but I think some would want to restrict the power of the House
of Lords.
Perhaps I might say that I once asked a former Lord
Chancellor whether the previous Government, the Labour Government,
in its proposals for reform wanted a stronger House of Lords or
a weaker House of Lords and he replied that the Government wanted
a more effective House of Lords, which I think perhaps avoided
the question. But it would, it seems to me, be illogical to have
an elected Chamber with fewer powers than the current non-elected
Chamber.
Q92 Ann Coffey:
It was very interesting in the paper the point that you were making
about the elections to the Lords being on a more proportional
system and therefore, people would believe, a better system of
election. That, to some extent, is not tested out with the British
people because in a recent referendum they clearly did not believe
that the alternative vote, which was seen as being a more progressive
system, was better than first past the post, so they settled for
first past the post as the system they preferred. So that assertion
to some extent is untested, I think, in it being a better system,
because by whom is it perceived to be a better system?
I thought it was very interesting
in your paper when you were talking about other Assemblies that
had two Houses and how they resolved their difficulties. There
is plenty of concern by people that in fact the House of Lords
will become stronger, will look to its elected mandate and will
be more challenging for the House of Commons. Do you think that,
in case that happened, it would be better to write into this Bill
some kind of procedure for resolutions that does not just depend
on conventions from the past and the belief that it will not happen?
Professor Bogdanor:
Yes, I think that would be needed. I think otherwise the danger
would be of gridlock in government. It might be worth looking
perhaps at some of the provisions of the Australian constitution.
The Australian upper House, a directly elected upper House, does
have powers over finance. Differences are settled by joint sittings
in Australia but the Australians have the advantage from that
point of view, which we lack, that they can dissolve the upper
House. In Britain the only way of overcoming the opposition of
the upper House, other than the Parliament Act, is a mass creation
of Peers, and I think that is an important difference. But I very
strongly agree with what you say, that you will need some institutional
mechanism to resolve differences between the two Chambers.
Q93 Lord Trefgarne:
If, despite your misgivings and maybe ours too, this Bill became
enacted roughly as now before us—anyway these provisions—would
it be possible, do you think, for a Government to secure the passage
of its programme simply by relying upon the Parliament Acts and
the financial privilege restrictions as necessary?
Professor Bogdanor:
An elected House of Lords, determined to use its powers, could
clearly ruin a Government's programme in the last year of a Parliament
and if it used its powers over secondary legislation could make
it, at the very least, extremely difficult for a Government to
carry out its programme, because my understanding is that the
upper House retains an absolute veto over secondary legislation.
That was not dealt with in the Parliament Acts. I would not like
to be a Minister in charge of getting legislation through Parliament
with an elected Chamber determined to use all the powers that
the House of Lords currently has.
Q94 Lord Trefgarne:
Presumably some more effective dispute resolution mechanism could
be invented, for example as they have in the United States.
Professor Bogdanor:
Indeed, but I think one of the difficulties with dispute mechanisms,
some sort of joint sittings, is that it becomes very difficult
for the ordinary citizen to know who is responsible for decisions,
because they are taken, in effect, in a third Chamber that is
not directly accountable to the public. People may berate their
MPs for decisions that are made, but the MPs will then say, "It
was not our fault, it was made in a joint sitting," and similarly—
Ann Coffey: A bit like
a coalition Government.
Professor Bogdanor:
Well, possibly. You may berate your elected Members of the House
of Lords, but they would say, "Well, it was not us, it was
in the joint sitting." There is great scope for buck-passing
and lack of accountability in those mechanisms. Of course, that
is true in Congress. It is also true in Australia, I believe,
and in Denmark.
The Chairman:
Better than ping-pong or not?
Professor Bogdanor:
Well, yes. In the last resort currently the House of Lords gives
way and everybody today knows that MPs are accountable to their
constituents for legislation that occurs. The Lords at present
acts as a revising Chamber, asks the Government to think again,
and if in the last resort the Government does not think again
and are not willing to think again the Lords give way, but with
an elected upper House the Lords becomes not a revising Chamber
but an opposing Chamber.
Q95 Tristram Hunt:
Professor Bogdanor, when we put exactly those series of points
to the Minister, he said two things. He said, first of all, that
we have the Parliament Act, which is, as it were, the nuclear
option; that provides the context within which decisions will
be made and, even if it is not utilised, the fact that it exists
sort of defines the parameters for the interrelationship between
the Houses. Secondly, he said that the interrelationship between
the Houses, during the course of the 20th century, went through
a number of different periods and there was a bit of tussle and
a bit of to and fro and then they sort of settled down and we
were all happy. Do you have faith in those sorts of options for
the future of the interrelationship of the Houses, or does this
mark such a seismic change that such faith would no longer hold
such credence?
Professor Bogdanor:
I think those elected to the upper House will want to use their
powers and to use their powers to the full. This would mean that
much legislation would be delayed for a year and, if the powers
remain the same, some secondary legislation will be vetoed. It
is now very rare indeed for any secondary legislation to be rejected
by the House of Lords. It happens in a few pathological cases,
but it could become quite regular with Members who are elected.
Under proportional representation it would be unlikely for the
Government to have a majority in the upper House and therefore
Members would be elected to oppose the Government.
If you take, for example, a general election like
1997, which Labour won by a landslide on 42 per cent of the vote,
in an election to the Lords, presumably, nearly 60 per cent of
the Peers would be Conservatives or Liberal Democrats opposed
to the Government, so the Lords would become an opposing Chamber
and I think those elected would want to show that they were opposing
the Government. There may be an analogy with the European Parliament
after 1979, after it was directly elected, which immediately began
to use the powers that had hitherto been dormant and later managed
to obtain very considerable extra powers for itself. It now has,
in effect, powers of co-decision with the other bodies in the
European Union. I think that is an interesting analogy perhaps
worth pursuing.
Q96 Lord Hennessy of Nympsfield:
We have had the final version of the Cabinet manual today, part
of which you had a hand in framing, and it has an interesting
passage on the existing constitution, as the Cabinet Office and
the Government understand it, in terms of Lords/Commons powers.
It says, if I can read it, Chairman, "The House of Commons
has primacy over the House of Lords. It is the democratically
elected institution of the United Kingdom and the Government derives
its democratic mandate from its command of the competence of the
Commons. The two Houses of Parliament acknowledge various conventions
governing the relationship between them including, in relation
to the primacy of the House of Commons, financial privilege and
the operation of the Salisbury-Addison Convention." The footnote
they have to source Salisbury-Addison refers to the 2006 Joint
Committee of both Houses on the conventions and that very document
said explicitly, if I remember, that if there were to be a wholly
or partially elected House the conventions would have to be revisited.
Do you not think that is rather an odd way of putting it for Her
Majesty's Government? I am asking you not because you are a surrogate
for the Minister but because you know about these things.
Professor Bogdanor:
You rightly mention the Joint Committee on Conventions, which
I think I quoted in my evidence. It said exactly as you suggest,
that if the Lords acquired an electoral mandate then its role
as a revising Chamber would be called into question and, should
further proposals come forward to change the composition of the
Lords, the conventions between the Houses would have to be examined
again. The Salisbury convention, of course, rests on the fact
that the Lords should not thwart the will of the elected Chamber,
but if the Lords is also an elected Chamber what happens to that
convention? I think you are absolutely right in drawing attention
to that proposal.
Q97 The Chairman:
Sorry to interrupt. I am never quite sure what the role of the
Chairman is in this sort of situation but if there is a point
that I feel intensely anxious to raise, if you do not mind, I
will. You just said the conventions would have to be revisited;
of course they would. Could it not be statutorily enacted that
the Lords do not oppose Bills at Second Reading?
Professor Bogdanor:
Yes, Lord Chairman. One could, of course, statutorily alter the
relationships between the two Houses and possibly put the Salisbury
convention into statute. But that, as I said earlier, would commit
the illogicality of saying that an elected Chamber should have
fewer powers than a non-elected Chamber and the fewer powers that
it has the more difficult it would be to get people of ability
to stand for it. There is a great deal of talk these days about
it being difficult to get candidates for local government because,
so it is suggested, local authority has been denuded of important
powers. I think the same would apply to an upper House that has
been denuded of power and influence. Although I think it would
be possible to impose further statutory limitations on the powers
of the Lords, the greater the degree of limitation the less likely
it is that people of ability would wish to stand for such a Chamber.
It would be very difficult in any case, I think, for independents
or Cross-Benchers. They might stand for election but under our
particular electoral party system they are very unlikely to be
elected. I think you would find that people of first-rate ability
might not be willing to stand for the upper House.
Q98 Oliver Heald:
We have tended to have debates in this country about electoral
systems in the context of the House of Commons and finding a way
of producing a Government and so we argue for first past the post
on the basis that it produces a clear result mostly. We argue
for proportional representation on the basis that it would more
adequately reflect the will of the people as regards its Government.
Do you think that that is the right frame of mind to look at the
best way of producing a group of people to revise and fulfil the
functions of the House of Lords? In other words, are we allowing
a discussion, which we have had in the context of the House of
Commons, to infect a rather different proposition and issue?
Professor Bogdanor:
I think it depends what one means by revision. If you mean by
revision simply asking the Government to think again, then it
may be argued that the current House of Lords performs that function
very well. If you mean more than that by revision—if you
mean the chance to alter the nature of an elected Government's
proposals—then some form of election may be needed. As I
said earlier, it does seem peculiar that the Chamber that chooses
the Government should be less representative than the Chamber
that is set up, as it were, to oppose the Government. It just
seems very peculiar.
Q99 Oliver Heald:
I remember that in 2007, having been on the working party with
Jack Straw and Lord Falconer, we went to the Commons Chamber to
argue about various options. There was a strong feeling in the
Commons that it was wrong to set up a dual mandate—in other
words, to have a person elected to represent an area with a representative
role—and that if you did that you would be setting up a
second Chamber which had much more authority and arguably, if
proportional representation were used, which was elected by what
many people would see as a better system; not me, but you, for
example. What is your view of that?
Professor Bogdanor:
It seems to me that to have an effective elected second Chamber
you need some basis of representation for it that is different
from that of the first Chamber. That is moderately easy to achieve
in a federal system, in principle at least, but not so easy to
achieve in a system that is non-federal like our own. A further
worry I have about the reform is that it will introduce the West
Lothian question into the upper House, because people will ask
why Scottish-elected Peers should have votes on matters to do
with English education and health when English-elected Peers cannot
vote on Scottish education and health. So it implies a federal
system, in a sense, when we are very far from having a federal
system. We have an asymmetrical system of devolution. That is
why I find it very difficult to think of a good answer as to how
an elected upper House should be chosen.
Q100 Oliver Heald:
A lot of people are quite complimentary about the current House
of Lords. They say that it works well, that is has quite a good
mix in terms of the various communities in our country, sex, race
and so on, and that it does the revising function well. Is there
something that could be accommodated by introducing a little bit
of the disinfectant of democracy through, say, an indirect electoral
system, where perhaps the proportions who vote in a general election
could be represented from lists in the upper House?
Professor Bogdanor:
It seems to me the great advantage of the Lords, as at present
constituted, is that it evades the dilemma that I mentioned in
my previous answer of finding some alternative principle of representation.
It seems to me that a good deal of the work the Lords does, particularly
in Select Committees, is not the sort of work that would naturally
appeal to people who stand for election. I am thinking of work
of, for example, the Select Committee on Science and Technology,
the work on the European Union, which the House of Commons, I
believe, does less effectively than the House of Lords, and the
work on delegated legislation that is highly technical. You have
the advantage of people with great expertise in these areas, which
you might not get with an elected Chamber. So there is a sense
in which the current composition of the Lords evades the dilemma
that faces all democracies about how to choose an effective second
Chamber and acts, in a sense, as an adjunct to good government
by providing expertise on some very complex and perhaps unglamorous
matters that need to be dealt with.
Q101 Oliver Heald:
If one was to find a system that involved indirect election but
would allow similar people to those who are currently in the House
of Lords to continue to do their work as satisfactorily as they
do at present, might that be a happy solution?
Professor Bogdanor:
I find it difficult to think of a system of indirect election
that would achieve that happy outcome.
Oliver Heald:
Let me give you a possible idea of this. Before the general election,
the parties publish lists of good people whom they would like
to see in the second Chamber, and this might be done by thirds,
as suggested by the Government. Then the general election happens
and 45 per cent vote Conservative, some lesser proportion for
the other parties, and 45 per cent of the Conservative list is
then appointed for the next period to the House of Lords and you
do that by thirds at general elections. You would not have those
individuals elected for an area. It would be a national list.
It would be the same sort of people, but of course if somebody
who was dodgy or in any way wrong was on your list as a party
it would affect the general election. So it is likely that there
would not be any problems with the candidates on the list. I am
thinking of something like that.
Professor Bogdanor:
Would that system have any advantage over the current method by
which the party leaders choose working Peers for their parties?
Would such people have any more legitimacy than the current working
Peers? It seems to me a roundabout way possibly of achieving the
same result, but I do not think the electorate would say, "We
now feel represented in the Lords because of this."
Q102 Oliver Heald:
No. Well, that is what we are trying to avoid, isn't it?
Professor Bogdanor:
I think that all the time one is trying to resolve two contradictory
propositions. The first is that there should be a Chamber that
is somehow elected and has a mandate. The second is that it should
be so qualified that it does not in fact have a mandate. That
seems to me contradictory.
Oliver Heald: Thank you.
Sorry I went on so long.
Lord Trimble:
Let me take you back to the Australian example that you mentioned
and which you discuss in paragraph 26 of your paper. I am referring
here now to the issue of dispute-solving mechanisms. You criticise
that, saying: "Decisions would be reached through negotiation
between representatives of the two Chambers in a forum remote
from public scrutiny". That would be true where you had delegations
from the two Chambers but it would not be true of joint sittings
of the two Chambers because they would be sittings with all the
Members of the lower House and all the Members of the upper House
entitled to be there, with things done on the record and then
voted on. Does that not indicate that having joint sittings of
the two Chambers is an effective dispute-resolution mechanism?
Professor Bogdanor:
The Australian legislature, of course, is smaller than ours, but
you could, in theory, have joint sittings of the 300 Members of
the new upper House and the 600 Members of the House of Commons
and they could reach decisions. Yes, if you did not have a delegation,
that would avoid the problem of buck-passing and lack of accountability
and you would then achieve some outcome through a public vote.
Lord Trimble: Yes. It
might interest you to know that that was the proposal—
The Chairman: Sorry, a
Division has been called. I think that we will have to vote. I
will adjourn for eight or nine minutes and let us hope that we
can get back by then.
The Committee was suspended
for a Division in the House of Lords.
On resuming—
Lord Trimble:
I was just going to say that the provision for joint sittings
of the upper and the lower House did not apply just simply to
Australia. It also applied between 1922 and 1972 between the Senate
and the House of Commons in Northern Ireland and you may be interested
to know that the Senate was indirectly elected on a mechanism
not that different from the one mentioned.
Q103 Laura Sandys:
One of the things that is interesting about this debate is that
some people—not you, Professor, but others—always
look at it as if we have a perfect system in place today. If we
are looking at reform and we are looking at obviously setting
up two Chambers, both elected but with clarity of primacy of one,
is it not possible to develop a system, whether it be through
convention or protocol, that established that primacy? May I make
one other point? If we had a reformed House of Lords that was
elected, do you not see the possibility of Parliament itself increasing
its capacity rather than just moving power from one Chamber to
another? It often seems to me that it is always regarded as being
the deficit of one Chamber for the benefit of another. It strikes
me, as a new person to this place, that there is a lot more that
Parliament could do and possibly should do that would be very
rewarding for somebody who is elected.
Professor Bogdanor:
Yes, indeed. Thank you very much. I think the first question to
be asked would be what powers you want the reformed upper House
to have. I think it would be very difficult to have those powers
regulated by convention, because they take time to become effective.
So I think you would have to have some form of statutory provision
and, as I said earlier, the probability or possibility is that
the statutory provision would be such as to make the upper House
have fewer powers than it has at present.
Q104 Laura Sandys:
Can I just pick up on this? The point is that you are still maybe
looking at the fact that Parliament only uses the powers that
it currently has. When you start to look at other opportunities—scrutiny,
being active in relation to the Executive—do you not see
that this is an opportunity for Parliament as a whole to increase
its powers?
Professor Bogdanor:
Yes, indeed. There might be further scrutiny but I think there
would probably be less technical scrutiny of the kind that the
present House gives to European legislation, delegated legislation
and subjects such as science and technology, and perhaps more
of what one might call political scrutiny—in other words,
more opposition to the Government. It seems to me that the consequence
would be that it would be more difficult for Government to get
legislation through, which some people may think a good thing
and some people may think a bad thing. Sometimes it depends on
whether you support the Government or do not support the Government.
My own personal view, for what it is worth, is that it would mean
that we had worse government rather than better government. There
would be a danger of gridlock. It would be difficult to make rapid
decisions, which are especially needed in the world of globalisation,
and it would give us worse government. But I completely understand
that there is an alternative point of view.
Q105 Bishop of Leicester:
I wonder if I could tease out a little bit more with you how you
understand the correlation, if any, between electoral legitimacy
and the likelihood of extra powers being claimed by a reformed
upper House. Do you think, for example, that there might be a
relationship between the extent to which the upper House would
claim powers and the proportion of the upper House that is appointed
rather than elected? If, for example, you adjust those proportions,
say to 50:50, do you get something that moderates itself in a
different kind of way?
Professor Bogdanor:
I think that someone who is directly elected would claim a different
sort of legitimacy from someone who is not and would wish to use
powers that may have hitherto remained dormant. I think the role
of the non-elected Members would change because I think any vote
carried by the non-elected Members would be regarded as less legitimate
than a vote carried by the elected Members. On matters of serious
party-political controversy, there might be pressure on the non-elected
Members not to vote or not to disturb the proportion to the elected
Members. I think the role of the non-elected Members—the
appointed Members—would not remain the same in such a Chamber.
Q106 Bishop of Leicester:
How would you see that working out during the period of transition
when, under what is proposed by the Government, those proportions
would change over time?
Professor Bogdanor:
At some point, when the elected Members became the preponderant
numbers in this House, I think the role of the non-elected Members
would begin to change. There would be pressure on them not to
upset the political vote, as it were.
Q107 John Stevenson:
To follow on that theme slightly, a specific aspect of the Bill
relates to the appointment of Ministers by the Prime Minister.
At present there is no limit on the numbers that could be appointed.
There is no reference to the possibility of shadow Ministers being
appointed by the Leader of the Opposition. Those who are actually
elected or appointed could become Ministers and at present it
would appear that Ministers who are appointed by the Prime Minister
can vote. I would be interested in your observations and comments
on that in relation to how the Chamber would work.
Professor Bogdanor:
Presumably in an elected Chamber more Ministers could be appointed
from that Chamber, although the Government would still be primarily
responsible obviously to the House of Commons. But there would
be no objection, I take it, to more Ministers being appointed
from the upper House, and no doubt provision would be made for
Ministers in the upper House to answer questions in the lower
House. There would be no insuperable objection to that. From that
point of view, from what you are suggesting, you would have a
wider talent pool, possibly, from which to choose Ministers.
John Stevenson:
Do you think it would be a good idea that those Ministers who
are appointed by the Prime Minister, who are not elected or otherwise
appointed, should have the vote? Should Ministers who are appointed
by the Prime Minister, but who are not necessarily elected to
the Chamber and have not come through the Appointments Commission,
have the vote?
Professor Bogdanor:
I see. Should they have a vote in the upper House?
John Stevenson:
Yes.
Professor Bogdanor:
I think I would require notice of that question.
The Chairman:
I think you can have eight minutes now.
The Committee was suspended
for a Division in the House of Lords.
On resuming—
Q108 Baroness Young of
Hornsey: We have talked
a lot obviously about the technical aspects and the legal aspects
of this Bill and the issues behind it. I am also interested in
the electorate. In your written evidence you say that personal
contact between voter and Member will be minimal. I guess that
is mainly because of the size of the constituency, but I wondered
whether you thought there were any other factors that might come
into play in that relationship as well. Perhaps you could expand
on that a little bit. Also, could you say whether you think it
is important and/or necessary for the electorate to have a full
understanding of what the different roles of the different Chambers
are?
Professor Bogdanor:
Thank you very much. I think size is a crucial factor and that
with a constituency of 500,000 it is difficult for people to get
to know their representatives. I think that is true for representatives
of the European Parliament. I think I would find it difficult
to name my MEPs, and perhaps some others would as well. Of course
this would have the advantage that you have a system of choice
with a single transferable vote, which enables you to preferentially
list candidates. I suppose it will not matter too much if people
are not aware what the function of the upper House is, and if
you are having the election the same day as the general election
turnout will be higher, obviously, than it would be if you were
having it at some intermediate point. Some people may be confused
and some people may say, as I suggested earlier, that a House
that is elected proportionally is more legitimate than a House
that is not. A supporter of proportional representation might
say that if you have an upper House elected 100 per cent by proportional
representation you could then abolish the House of Commons. So
I think there would be a problem about legitimacy.
Q109
Baroness Young of Hornsey:
You say that it does not matter to a great extent whether or not
the electorate know who does what, but in terms of whom you want
to speak to about a particular issue or particular problem surely
there should be some sort of knowledge.
Professor Bogdanor:
I imagine that electors would have no trouble in continuing to
consult their constituency MP over problems they might have with
housing, education or whatever. I do not expect that would cause
difficulties. I imagine that representatives elected to the upper
House would not be constituency representatives or seek to trespass
on the functions of Members of the lower House.
Baroness Young of Hornsey:
So there would not be much trouble then by—
Professor Bogdanor:
I would hope that would not cause a difficulty.
Q110
Baroness Symons of
Vernham Dean: At the
beginning of your evidence you said that primacy was because of
the democratic mandate and not because of the Parliament Acts,
and you said a moment or two ago that if the upper House were
elected 100 per cent by PR you could abolish the House of Commons.
Is it important for the Commons to maintain their primacy if there
is a means of resolution of disagreement between the two Houses?
Are we just chasing something that really does not matter in terms
of democracy?
Professor Bogdanor:
We are talking about a value judgment here. It is perfectly possible
to have a democracy with two Chambers that are co-equal or nearly
co-equal, or at least with an upper House much stronger than the
present one, and the consequence of that, you may say, is that
legislation will get more scrutiny—not so much, as I said
earlier, the technical scrutiny that the Lords gives it, but political
scrutiny. There will be more political discussion and debate,
with more delay in passing legislation, and it is a value judgment
of which of those systems you prefer. The danger of the one system
is the famous comment of Lord Hailsham—"elective dictatorship".
The danger of the other system is gridlock and worse government.
It is worth pointing out, perhaps, that those who
in 1911 and 1949 favoured a reform of the composition did so because
they were broadly against reforming Governments and because they
wanted to delay change. I was asked earlier whether we could not
reform our system satisfactorily. Of course we can, but people
who sought social and economic reform in 1911 and 1949 did not
want to reform the composition of the Lords because they did not
want to rationalise it. Those who wanted to rationalise it did
so primarily because they wanted to prevent change, or what they
saw as too rapid change. So in the end one has to make a value
judgment that is correct. I would only suggest that reformers
have to face up to the fact that the primacy of the Commons would
be in danger if you had a wholly or partially elected upper House.
The Chairman:
I have four Members who wish to ask questions: Lord Tyler, Mr
Thurso, Malcolm Wicks and Ann Coffey. Perhaps you can do so very
quickly. I want to hear Professor Bogdanor say something about
the size of the House, too, and I think we will have to finish
this session by 10 past, so we have about eight minutes.
Q111 Lord Tyler:
You have made a number of references to the electoral mandate
that a reformed House would have, and in passing you also said
that in 1997 60 per cent of those elected would have been Conservatives
and Liberal Democrats and therefore would have been a challenge
to the Commons. I think you would accept that that is most misleading
in terms of both the Bill and all the other proposals that have
ever come forward because, first, there would never have been
all elections at once. It always would have been in tranches.
Secondly, under the Bill at least, it would only be 80 per cent—80
per cent elected—so a tranche of one-third of the House
would be no way 60 per cent of the reformed House. Do you accept
that the various safeguards that have been built into the Bill,
which replicate those that were in the Straw White Paper, will
never, under these proposals, provide a direct challenge to the
primacy of the House of Commons?
Professor Bogdanor:
No, I do not accept that because although, as you say, under the
proposals in the Bill in 1997 one-third of the elected tranche
would have been elected, namely 80 Members, the strength of the
opposition parties—the Liberal Democrats and Conservatives—in
that election would embolden them, together with the other Liberal
Democrats and Conservatives already there in the upper House,
to overrule the Labour representatives in that House. If the non-elected
Members—the appointed Members—tried to stop that,
they would be accused of acting illegitimately and of overriding
the wishes of elected Members. So, as I said earlier, the role
of the non-elected, appointed Members would change and presumably
in those circumstances the Liberal Democrats and Conservatives
would have a majority in the House.
Lord Tyler:
But you will have seen all the work that was done for the Straw
White Paper.
The Chairman:
You have four minutes.
Q112 John Thurso:
May I ask for a very short answer to this question, so that I
may ask a quick supplementary? Is the summary of your evidence
in paragraph 29 that broadly the status quo is as good as it gets?
Professor Bogdanor:
That would be a reasonably fair summary of my position. I am very
sympathetic to the proposals in Lord Steel's Bill.
John Thurso:
Why, therefore, going back to the question that Laura Sandys put,
should we be so concerned about the primacy of the Commons and
so disregard the primacy of Parliament?
Professor Bogdanor:
Because there is an argument for saying that people, when they
elect a Government, seek to secure certain ends through government
and that a Government that is too weak to achieve much is as great
a danger to democracy as a Government that rides roughshod over
people's feelings. If you look at very extreme examples—and
I hasten to add that I am not implying any analogy with this country—such
as the Government in the Great Depression in the interwar years
or the Fourth Republic Government in France, they collapsed because
they were too weak, not because they were too strong. So I think
one has to be very careful to secure a balance between electing
a Government that can achieve something and electing a Government
that is properly accountable.
Laura Sandys:
Do people not elect parties not Governments, technically?
Professor Bogdanor:
In theory we elect constituency MPs but in practice we normally
elect a Government; 2010 was very much an exception under our
present system.
Q113 Malcolm Wicks:
This is a subject, as we are learning, which has at least 100
years of history, a number of committees of inquiry, many voices
over those years, inevitably much precedent convention and much
complexity, leading many people to basically argue it is all too
difficult. Many experts will tell us why we cannot make progress.
You are telling us that probably this is as good as it gets. If
one looked at this from the outside, could one not say, "Yes,
there are complexities but basically some of it is quite simple"?
We have to make up our minds about the respective roles of the
two Chambers. We have to make up our minds whether we think, as
most of us would, that the Commons should have primacy. We then
need to draft a statement about what that means. Yes, there are
some complexities there. It will keep a few lawyers busy and experts
busy for a while but we can draft a statement. If in 10 or 15
years the statement is outmoded, as with other legislation we
can re-legislate. We should probably then put the statement in
statute so it is absolutely clear that, however the second Chamber
is elected, the House of Commons—not least because the people
of Britain have rejected AV, much to my disappointment—has
primacy. Can we not sweep aside some of the complexity and history
and just have some clarity?
Professor Bogdanor:
Yes. My argument has been not that this is an extremely complex
matter such that great constitutional brains are needed to resolve
it, but that it is illogical to propose a second Chamber in a
non-federal state when you have no alternative principle of representation
on which it is based. It is not that it is an extremely difficult
problem to solve. It is that the problem cannot be solved in the
terms in which it is put unless you first turn Britain into a
federal state, when there is an answer, as the Australians and
Germans and other federal states have found. The reason why no
reform has been achieved in 100 years is not that it is a very
difficult issue; the reason is inherent in the nature of the issue,
in my opinion.
Q114 Ann Coffey:
Do you not think it illogical to have a non-elected House of Lords
and do you not think the public would think that that is not sustainable
in the 21st century, and therefore that is something that we have
to grapple with and find a way of overcoming? What your evidence
has convinced me of, more than anything, is that we certainly
need to put into statute, in any Bill, the relationship between
the House of Lords and the House of Commons. If there was a referendum
and it was referendum day today, on whether people want an elected
House of Lords, I think there would be overwhelming support in
the country for it. It is interesting that we have not mentioned
the public—nor indeed have you mentioned the public in the
evidence you have given.
Professor Bogdanor:
Let me say that I think a referendum would be the right way forward
on this issue because all three parties, as I understand it, proposed
an elected Lords in their election manifestos in 2010, so there
was no way for the voter to indicate his or her opinion. I think
it would be right to hold a referendum on this issue, which I
think is a greater change than the alternative vote system that
has been rejected. On the other part of your question, I think
there would be a contradiction if an unelected Chamber sought
to exercise major legislative powers, as the House of Lords did
before 1911. But given the restraint that the House of Lords normally
exercises, I think that theoretical contradiction is not met with
in practice. As I said earlier, I think the work of the Lords
enables it to evade the problem of devising an effective second
Chamber in a non-federal state.
Ann Coffey:
One of the consequences, which is why I feel quite strongly about
it, is that one of the statutory instruments that the House of
Lords vetoed was to do with a local matter, which was to do with
casinos in Manchester.
Professor Bogdanor:
It is very rare for the Lords to veto secondary legislation and
before 1999 I think it could have been said that there was a convention
that the Lords did not reject secondary legislation. I do not
know whether that still is a convention but I think the fact that
this is an issue, and the fact the Salisbury convention has come
under question, is an illustration that even from the comparatively
limited reform of 1999 a reformed Lords would seek to exercise
more power and would have more authority, as the post-1999 Lords
has more authority, I think, than the pre-1999 Lords. It is a
question of how much authority you wish the second Chamber to
have.
Q115 The Chairman:
Thank you very much. One minute on this. How big do you think
the House of Lords should be? The Government proposes 300. Do
you think one can run the House of Lords on as little as that?
Professor Bogdanor:
I think that if it was reformed 300 is not a bad number, but it
seems to me fair to say that in the House of Lords as at present
constituted there may be people who contribute a great deal to
it without being able to attend very frequently and therefore
there is a case for a larger Chamber. For example, and this is
a purely hypothetical example, if the President of the Royal Society
happens to be a Peer he may have many other things to do that
prevent him from coming very frequently, but when he does come
his contributions seem to me to be very important and no doubt
would be preserved in a reformed Lords. Otherwise I think 300
is not a bad number were a reformed Chamber to come about.
The Chairman:
Thank you very much indeed. Thank you for having come and having
been generous with your time. I am afraid that we have messed
it up a bit at this end, but if votes are called we have to vote.
Thank you very much indeed.
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