Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill Contents

Professor Sir John Baker and David Howarth (QQ 222-249)

Examination of Witnesses

Professor Sir John Baker and Mr David Howarth [Cambridge University].

Q222    The Chairman: Gentlemen, thank you very much for coming. You know the inquiry on which we are engaged. Before we start the questioning, would you like to say something about the general scope of your views on the issue? Perhaps, Sir John, you could go first and then Mr Howarth you can go afterwards.

Sir John Baker: Thank you, Lord Chairman. The main purpose in my writing the letter, which I take it led to my being summoned before the committee, was to challenge the widespread assumption that the House of Lords must be elected as a requirement of democracy. That seems to me to be quite a serious fallacy given the unusual nature of our constitution, which has no parallel anywhere else. The reason is that introducing elections would not mean that Members of the House would be selected by the people: they would, I suspect, be chosen mostly by political parties. That is admittedly a guess, but I imagine that a candidate without substantial means, unless very well known to the public already, would not be brave enough to stand and certainly would not be elected. If that is right, Members of the House would either be very wealthy, or famous media personalities, or they would be chosen by party committees deciding on party grounds. Voting for them would therefore also be coloured by party politics. That system works perfectly well for electing to the House of Commons, because that is our way of choosing a Government under the party system, but I suggest that it would not necessarily be a suitable way of choosing a second Chamber. If the result were a House of the same party complexion as the House of Commons, then there would likely be no check at all on the Government: if they could control both Houses. I am not suggesting that that would always happen, but it could. Even if the Lords, having become elected, were of another political complexion from the Government, they might become the wrong sort of check, in the form of constant attempts to stop government proposals on party grounds and with the encouragement of an electoral mandate to do so. Perhaps that might produce desirable deadlocks on occasions, but it would divert energies from the proper role of a second Chamber. So what is that? I presume that everyone agrees that it is vital in a democracy that legislation should be scrutinised and challenged with a certain detachment, not just to improve verbal clarity but to make sure that the Government of the day do not in their enthusiasm for decisive action infringe those basic principles which in almost every other country in the world are embodied in writing and enforced by judges. The democratic mandate does not override those unwritten principles of the constitution because they were never put to the electorate. We have seen during the past 10 years how important the House of Lords has been in identifying and effectively stopping quite serious constitutional slippage, such as proposed legislation ousting the jurisdiction of the courts to review things done illegally, or giving the Government power to make any law they wish without an Act of Parliament. Select Committees are very good at keeping an eye on those things, but we saw the previous Government on several occasions reject the constitutional warnings of Select Committees, including those two examples that I mentioned, and it was the House of Lords in each case which saved the rule of law after the House of Commons had declined to do so.

I would suggest that this essential role does not require the sanction of the ballot box to give it legitimacy any more than the judicial role, because the House of Commons can insist on the last word if the Government are willing to face down the embarrassment of being seen to act unconstitutionally. It would be quite different if the Parliament Act were not in place, but the House of Lords cannot ultimately prevail if the House of Commons insists on passing bad law. I would finally suggest that, far from being inconsistent with democracy, an appointed House of Lords might, in a crisis, be the last defender of democracy. It is not unthinkable that, some time in the future, a Government might propose to extend their life indefinitely on grounds of national emergency. It would then be vital for an independent House of Lords to ensure that such a measure, even if seen to be necessary, would at least be reversible. An elected House of Lords, if it happened to support the party in power, might not be able or willing to do that. We would then have a perfectly legal dictatorship.

Q223    The Chairman: I wonder whether I could raise a general point with you just to start. There seems to be an implicit assumption on your part that the introduction of what you call "party politics" into the second Chamber is a bad thing. I do not see how you can legislate, pass laws, without having a party structure and, indeed, party politics in the second Chamber just as you have it in the first. How could you do it without having the system of party structure in the House of Lords, with Whips and all the rest of it? I do not see how you can legislate in the same way. I do not see how you can legislate at all unless it is done properly.

Sir John Baker: All I am suggesting is that that works reasonably well at the moment. Peers who are appointed have shown a certain independence which the Commons certainly does not. To compare the two Houses, the Commons when warned about constitutional outrages, even if no one speaks in favour, in the end votes in favour because most of its members are dependent on the Government for their prospects if not actually their employment. Whereas in the House of Lords, no doubt most of those present have political views, but they are not subject to the Whip in quite the same way as an elected Member. There is a different dynamic if you are answerable to an electorate and a party which has put you there.

Q224    The Chairman: I am sorry, I should have asked Professor Howarth before I launched at Sir John.

David Howarth: I agree with your point about party politics, Lord Chairman. Thank you for inviting me. I suppose that I am here for exactly opposite reason to that of my learned colleague: I am here to give an equal and opposite reaction. I can promise an opposite one, perhaps not an equal one. Contrary to what John said, I believe that people who take part in making new law need to be elected in some sense; they need to have been chosen by the people, either directly or indirectly, to gain political power. Undoubtedly, there are other forms of authority that people can gain. John has the authority, the magisterium, of a teacher and a scholar; I am busy trying to regain it: Tristram has probably lost it. It is a different sort of authority from political power. I am very sceptical about the expertise argument on the same lines. It is a different sort of authority. The question for me about the expertise in the Lords is not whether they should be experts—it is a very good thing if Members of Parliament are experts—it is which experts, and why these experts and not other experts. There are lots of experts in the world. The question is how some experts get to be legislators. The answer to that at the moment is political patronage, which is not a sufficient ground. John's main theory, as I understand it, is that there is an analogy between the authority of judges and the authority of the present House of Lords, and some people do argue that. But, again, it is not the same sort of authority. Lawyers know that judges make law, but they do so as an accompaniment, a necessary side effect, to their primary task, which is to decide cases and adjudicate on individual disputes. There is nothing else that the House of Lords does. It does not have a primary task which means that it has accidentally to make some law on the side. Its job is to take part in the legislative process. For that reason, I do not think that it can take up the same sort of authority that the judges have. I support the democratisation of the House. Lord Chairman, you asked me what my general reaction was to the Bill. I share Lord Hennessy's view that there is a big problem here of talking about composition without talking about powers. Lord Hennessy said the other day that it was a historical problem and that people who have tried to reform composition without talking about powers have come a cropper. It is also a bit of practical advice that, if you want to design an institution, you should first work out what you want it to do and then decide who should be in it. Engineers usually ask, "What's the spec? What are we doing here? What's the problem we are trying to solve here?" My problem at that point is: what kind of things could a second Chamber be for and what could it be doing? The Government seem unable to make up their minds between a number of different theories. We know that they are against a particular theory; they are certainly against the idea of checks and balances—you can read that all the way through the Bill and the White Paper. The checks-and-balances theory is rejected. But of the other two common theories of what second Chambers are for, the revising and scrutiny role—which, as Alan Renwick said, is a variety of different things—and the complementary role, those are very different roles. The Government claim in different parts of the White Paper that they are in favour of both of those, which seems to be incoherent. If you take the revising role at its weakest, which is to check whether proposed legislation is drafted in line with the policy that it purports to be furthering and whether the policy is coherent enough to be turned into legislation, that is a function of the Office of Parliamentary Counsel—it is just being done in public rather than in private and it is very technical. That kind of role, a very weak role, could easily be performed by a council of state; it does not need a House of Parliament to do it. As Dr Renwick said, you could add more grit to that; you could add the delaying power of scrutiny. "Scrutiny" has various meanings. Some of them are purely technical, but some are about political challenge. The question is twofold. On the one hand, political challenge is what the Commons does; that is its main purpose in life. As for the delay, why do we want that? What is it for? If you want the second Chamber to have a very weak role, yes, you can say, as John said, that it need not be elected, but you can go further and it need not exist at all. What is the point of such a thing being a House of Parliament; it may as well be, as I believe some people have suggested in the past, a French-style council of state. If, on the other hand, you want it to be complementary—not to go as far as checks and balances, but to be complementary—something has to be done that has not been done yet. I know that this will cause some distress among Members of the House of Commons, but in order for the second Chamber to be complementary to the first Chamber, you have got to say what is wrong with the first Chamber. Since no one seems to be able to admit that there is anything wrong at all with the first Chamber, we do not get that debate off the ground.

Q225   The Chairman: Oh dear. Do you want to tell us what is wrong with the first Chamber?

David Howarth: I fear that two Members have to go at 7 pm.

The Chairman: You have three minutes.

David Howarth: There are two things that I would point to. The first is that, for the reasons that Dr Renwick mentioned, it is not very good at conferring legitimacy on legislation. Under the first past the post electoral system, the central role of the Commons of sustaining the Government—that is what it is for; it is like an electoral college that carries on for five years—means that we end up with an electoral system that produces majorities from a minority of the vote, and the representatives in the Commons of the majority of the voters usually end up voting against the Bills that go through, although that is different now under the coalition. I do not think that confers democratic legitimacy on the legislation it passes.

The second thing that the Commons does very badly is holding the Government to account, especially on spending. If you look at the financial procedures of the House, they are comical in how little discussion there is of the spending of vast amounts of money. The Consolidated Fund (Appropriation) Bills go through without debate; standing orders do not allow them to be debated at all or amended, and all the stages happen at once. If that is scrutiny and holding the Government to account, then we need to think again.

Q226    Lord Rooker: In some ways, it is all about the Executive getting control of Parliament. The House that they do not control is the House of Lords, but they do control the Commons. I declare an interest as a Minister in both Houses, with my Secretary of State having been saved by the Lords on more than one occasion. Both your essays in The End of the Peer Show were my summer reading on the beach, and I came back and said, "We ought to find out the views of these two gentlemen, as it were". Obviously I have since read your letter. I wanted to explore something that I explored with one of our earlier witnesses today about conflict resolution when it comes to the powers that the Lords have now but do not use because we are not elected so we defer to the Commons. We are almost a sub-committee of the Commons, in a way; it is almost a unicameral system with a revising sub-committee that happens to be called the House of Lords. I put to you the point that I put earlier: if we get an elected House, notwithstanding that a few Bills can start here, that decides that it wants to change the conventions—this legislation clearly does not change anything—but says, "Hang on, we're elected—we've got a mandate, however you care to describe it", and chooses to use the powers here to force the Government to use the Parliament Act so legislation takes longer to get through. Under our system where there is no written set of rules for conflict resolution because there is no written constitution, what is to stop the Supreme Court getting involved? Then it is a question of who gets appointed to the Supreme Court and whether they are for or against the Commons or the Lords, a bit like America where candidates are asked, "Are you for or against abortion?", so the argument will shift elsewhere. What is to stop that happening with the Bill in its current form, saying, "We think it'll be OK; we don't need to change the rules between the two Houses but we want the Lords elected"?

David Howarth: Article 9 of the Bill of Rights. That is the technical answer. Courts are not allowed by law to question what happens here. There are problems with recent court decisions, which I could go on at great length about, which seem to undermine that principle somewhat, and in the end the judges do what the judges do, but they are not a constitutional court in the German or American sense.

Q227    Lord Rooker: But the hypothetical situation we are talking about is not the same as now. We would have a second Chamber elected by popular mandate where I am envisaging constant conflict because it wants to get some powers from the Commons—some powers on finance, maybe, or power of delay. It does not accept rules and conventions here that we do not use. Why should it? It is elected. So there is constant conflict in that sense. I am describing chaos. What is to stop that happening? That conflict is implicit in the legislation. In fact, in the debate we had, Paddy Ashdown—I am not misquoting him—envisaged that it would be good to have conflict between the two Houses. If we had constant conflict like that, are you saying that the courts would not find a way to lever their way into this?

David Howarth: They did not in the constitutional crisis before the First World War when there were similar, although not exactly the same, constitutional struggles between the two Houses. The courts did not intervene then, and I do not think the judges would have much of an appetite to do that. We might disagree about the substance of whether conflict is a good or a bad thing—I think it is a good thing; for once, I agree with my former leader—but I do not think there is a danger of the courts getting involved. I do not know whether John thinks so.

Sir John Baker: Not at present, certainly, although judges have certainly hinted in the recent past that they may well set aside the concept of parliamentary sovereignty if necessary, so in a different context they might start reviewing legislation if unconstitutional legislation is passed.

David Howarth: In fact, the danger there is if you have the two Houses always agreeing and threatening to take away fundamental legal protections, like the protection of judicial review. It is at that point that the courts start thinking, "Well, we might turn everything on its head". I think that would be a bad thing, though. What we need are judges who understand democracy as well as politicians who understand the rule of law.

Q228    Baroness Scott of Needham Market: I want to ask a different question of each witness. I want to ask Professor Sir John Baker what his evidence is for the political independence of the House of Lords. As someone who spends most of my time here, most Divisions simply take place with people voting along political lines—there are very few occasions when people do not. I am wondering what I have missed about this mythical independence that I have not seen in 11 years.

I wanted to ask David Howarth a different question. We do not really know how the relationship between the two Houses will change, although we can consider different options. I wonder whether one of the results might be that the Government might legislate less.

Sir John Baker: I am not suggesting that the House of Lords is or should be politically independent in the sense of being able to frustrate the policies of an elected Commons. I am talking about cases where a perhaps overconfident Government do not pause to think whether the way in which they are carrying out their policies might infringe principles that would be included in a written constitution if we had one. I can give two examples if you wish. The first is quite famous: Clause 11 of the Asylum and Immigration Bill 2003, which provided that there should be no appeal or judicial review in respect of decisions by the new tribunal whether for want of jurisdiction, error of law or breach of natural justice. That clause was opposed by Lord Irvine as being contrary to the rule of law; it was subject to strong attacks from Professor Bogdanor and others; Lord Woolf, the serving Lord Chief Justice, said that it was fundamentally in conflict with the rule of law; Lord Mackay opposed it as obnoxious; and it was condemned by the Constitutional Affairs Committee of the House of Commons as unprecedented. None of that had any effect. There was a spirited debate in which no one spoke in favour of the Bill except one junior Minister who had been sent along to do so, and 35 Labour MPs voted against—but the Commons voted for it, even with is as much opposition as you could possibly have. I am not sure that it went to a vote in the Lords but it was widely understood that Lord Irvine intended to speak against it there and it would almost certainly have been defeated, and it was withdrawn. It was the Lords that secured that, not the Commons.

The other example is the Legislative and Regulatory Reform Bill 2006, which would have given the Government the power to amend, repeal or replace any Act of Parliament simply by making an order. That was said to be potentially helpful in reducing red tape. The press were taken in by that and the Opposition were taken in by that—they did not notice the small print—until the sheer enormity of it was drawn to public attention, I am proud to say, by six silly professors, as we were called by a Member of the Lords. The defenders of the Government argued that this was just overzealous draftsmanship and it really was intended to reduce red tape, but it was nothing of the kind. As I am sure my fellow witness can affirm, because he was much involved in trying to make amendments to it, the Government fought hard to preserve the clause and would not accept amendments, for instance, to preserve fundamental liberties. The House of Lords Constitution Committee woke up to what was happening and said that this would markedly alter the balance between Minister and Parliament, but even then the Government wanted to push ahead. They said that of course they would not abuse the new power, it would just be useful to have it: that is when people outside Parliament start to worry. It was the House of Lords that saved the day, not the House of Commons. The Government had rejected the advice of the Select Committee while the Commons played no role at all.

So the two Houses function very differently. Even though the House of Lords has a great many politicians in it—please do not think I am against politicians—the ethos is different.

David Howarth: I was intimately involved in the Leg and Reg Bill. In fact, I was the Member of Parliament of the six silly professors. John's account of it is accurate to some degree, but my memory is rather different—that we did destroy the Bill in the Commons. We argued and argued. The committee was a delight; for the first and last time, all the sketch writers turned up to the Bill Committee and wrote unfriendly profiles of Jim Murphy. By the time that the Bill got back to the House on Report we had already destroyed it, and the Lords just came in and gave it the final blow. It helped—it must have been Richard Holme who chaired the Constitution Committee—that the two Houses were working together; that helps in these situations. The important fact about the House of Lords that was useful in all the negotiations was the one that Meg Russell kept referring to and that we have to bear in mind: who has the votes? That was purely it. In theory, the Government could have used the Parliament Act to get the Leg and Reg Bill through, but we had won the debate. There were also all sorts of problems within Government; there was a missing Secretary of State so junior Ministers who were technically referring directly to the Prime Minister were having to take decisions and were slightly paralysed in their ability to do so. Because of those conditions, that Bill was never a candidate to be Parliament-Acted through.

To answer Baroness Scott's question, I hope that one effect will be that there is less legislation. One of the best ways to stop legislation is to have no majority in both Houses.

Q229   Ann Coffey: I agree. One of the irritations for Back-Bench Members of the House of Commons is when they can see, as a Bill going through Committee, that it is just not going to go anywhere, but the Government refuse to make the amendments that they need to in the Commons and take those amendments in the Lords, which gives the House of Lords attributes that it does not necessarily have and undermines the Commons' legitimacy. That is a very irritating thing to watch; I have watched it several times over the years. Bearing in mind that we are looking at a draft Bill, what do you think should be changed to achieve the Bill's outcome, regardless of what you think about whether we should have elected, appointed or whatever? What do you think the Government may have got a little bit wrong, and what could be done to improve part of the Bill?

David Howarth: My main problem with the Bill is that I do not know what the Government want to achieve. They keep giving mixed signals about the purpose of it—there will be no change at all, or we might be moving backwards towards an even more feeble version of a revising Chamber. For once I agree with Vernon rather than May on this; it would be ridiculous to introduce a democratised element in the House of Lords for the purpose of reducing its powers. That does not make any sense at all. It is possible to do it but it is a silly idea. I do not know what the Government want to do. The main purpose of the Bill appears to be to get it through both Houses without telling people what it is for. You need to be careful about what you say as a Government; if you say that this is going to be a big reform, the Commons start to complain that its primacy—

Ann Coffey: I understand that, but—

David Howarth: If I were doing this Bill, I certainly would not have Clause 2. I am in a group of anti-Clause 2 people; the clause is just silly.

Q230   Ann Coffey: Why?

David Howarth: Because it cannot change the world. If you have elected people in the Lords, they will start to feel more legitimate in many respects than the existing Members and will start to do stuff. All Clause 2 says is that nothing in the Bill changes the situation, but that does not mean that the world does not change. The world will change.

The second thing is that if you were doing this seriously, you would think about the Parliament Act. I do not think that you would change Section 1 of the Parliament Act, which is about money—the big thing that the Government control in the Commons—but you might want to think again about the extent of the delaying power and about what kinds of Bill might be blocked.

I would have 100 per cent elected membership, and I would certainly not have any bishops, for reasons previously discussed. I am fine with STV; it is a great system. I would either put a limit in the Bill on the number of Ministers—certainly not leave it to the Prime Minister's "do by order", which seems a very strange thing to do—or take away their votes. I have no problem with taking away the votes of Ministers who are Members.

I think I am with Lord Tyler on the issue of how many Members and whether they should be part-time or full-time. Because of the events of 2009, we in this country have become obsessed with the idea that everyone paid to be involved with politics has to be full-time. In the long term, that is very destructive. We need a bigger House and we need to assume that people are going to do it part-time. Frankly, I would pay them less and expect them to do less.

Sir John Baker: For what it is worth, I agree entirely with David about his first two points and his point about full-time membership.

Q231   Dr McCrea: Should the Members of the second Chamber be elected to have themselves in place before the people and therefore have personal legitimacy, or is it the popular mandate of the party? If it is the latter, they as individuals now have the mandate of the individual. How are we going to change the situation? The popular mandate of the party would be from the two main parties. How should it suggest to them that if there is a problem in the Commons, the Whips have the final say in the Commons because they will do as their party Whips tell them? That is what they are going to do in the House of Lords. How will that situation be better than the present situation? As a matter of fact, I have seen more revolts in the House of Lords than I have seen in the House of Commons.

David Howarth: It will be better in the sense that it will encourage people to use the powers that they have, to go back to the previous conversation. It depends whether you think it is a good thing that the Lords use the powers that they presently have even under the Government's rather stay-at-home version of change. When it comes to the party against the individual, there is always a balance between whether it is the party or the individual being elected in particular constituencies at particular times. A good thing about STV is that it makes it easier for independents and party dissidents to get elected, and if dissidents get elected they might think it is their job to defy the Whips. I suppose that it will remain the case in the Lords, if you have this very long term and no re-election, that Lords whipping will stay much the same as it is now. A friend of mine—I will not say which party he is from—is now a Lords Whip. He said to me the other day, "Whipping in the Lords is a bit like John Le Mesurier playing Sergeant Wilson in Dad's Army; instead of ordering people about, he would say, 'Would you mind awfully stepping over here?'". There is that sort of tone to it.

Q232    The Chairman: Sir John?

Sir John Baker: I thought the question was aimed at David.

The Chairman: It was principally aimed at both of you.

Sir John Baker: I do not think the situation would be better.

Q233    Lord Hennessy of Nympsfield: Just to follow up a point of Jeff Rooker's on the Supreme Court, I may be entirely wrong about this but I think it will break though the crust of getting involved in politics, if you look, for example, at Lord Steyn's opinion on the Hunting Bill and the application of the Parliament Act. He indicated, did he not, that if it was a question of abolishing the Lords he thought it would not wash. Also, it has the job, as the Judicial Committee of the Privy Council, which has now gone into the Supreme Court, of having to adjudicate on the concordats of devolution, which will become intensely political. I understand about the Bill of Rights and all that, but that was just a comment.

I was going to ask Sir John where his extremely interesting and alarming sense of peril about the position of the British constitution comes from, but by and large he has covered that ground. I have a question for you, David: the thrust of your paper is that we Brits are not very good at seeing these things as a system; we take this bit but never think about the knock-on effects of the rest and that is terrifying, looking at Parliament as a whole. I think that you think we should get through that, and I think we should too. So how do we do it? Where do we start? Give us the blueprint for a systems approach in which we can locate this relatively minor matter of what happens to the future House of Lords?

David Howarth: The first thing we have to do is divine what is wrong with the Commons. The Commons has to be honest with itself about its defects. As soon as you do that, you break through the mental barrier that there is in this area of reform. Beyond that, it is a question of taking seriously the idea of being complementary. I am a checks and balances person myself, but if you are going to take the idea of being complementary seriously, you have to think of it as a system between the two Houses. It is what the two Houses do together that constitutes the political system and the Parliament. We must not just think about one by itself.

Q234    Lord Hennessy of Nympsfield: A bit more, perhaps? A bit of a roadmap?

David Howarth: I do not do roadmaps. If you are asking me to put on my Jonathan Powell wig and give you tactical advice for your reform, I could do that.

Q235   Lord Hennessy of Nympsfield: I want a grand scheme.

David Howarth: That would be advice of a rather different kind. What would Jonathan Powell do? I suppose that the answer is to keep this thing bubbling under, cause a crisis in which the Lords are on the wrong side of public opinion and ram the reform through very quickly at that point.

The Chairman: A bit of political engineering.

Baroness Shephard of Northwold: I thought they did that with hunting.

David Howarth: Absolutely. I hope this sounds familiar to some people.

Q236    Baroness Shephard of Northwold: I have a question for Sir John. It relates to his article in this publication. On page 97, he says: "In the case of Lords reform … there is … no indication whatever of public opinion". Apparently there had been some polls in the Times based on two questions posed by Peter Riddell. I think that political parties will claim, because they had all suggested reform of the House of Lords in their manifestos, that the issue has been put before the public. I would like your comments on that.

Sir John Baker: That is rather illogical, isn't it? If every party puts the same policy in their manifesto, how can one vote against it?

Q237   Baroness Shephard of Northwold: You certainly make that point, but you go on to say: "Constitutional reform should not be a matter of brute force, because the constitution does not belong to the government but to the people". Would you like to expand on that?

Sir John Baker: As I said earlier, in almost every country in the world there are written constitutions that lay down certain basic principles that no Government should be allowed to override—for instance, the rights of minorities and the rule of law. We do not have a written constitution, but it would be a shame if we could not say that there were nevertheless certain fundamental principles in this country that ought to be observed. That was the sense in which I meant that it is not for the Government, simply because they have been elected to power, to say, "We can ride roughshod over all these traditions of the past". It is wrong to say that they have been elected to do so because the electorate were never asked that question.

Q238    Baroness Shephard of Northwold: If you were a Government and you wished to pursue the issue of Lords reform, how then would you gauge public opinion?

Sir John Baker: It would be good if there were more discussion in public, certainly. The press have been very negligent in all matters of constitutional reform, so I am not sure how much knowledge there really is among the public at large. I have given the occasional public lecture on these topics and I have been stunned by people coming up and saying they had no idea that these things were happening.

Q239    Lord Trefgarne: Not a referendum?

Sir John Baker: I do not believe in referendums because you can never frame a question in a way that is not slanted. Whenever you are faced with a single question in a referendum, you immediately want to say, "Well, yes if this, but no if that". I am not sure how you could frame the question.

Q240   Baroness Shephard of Northwold: Would you think it more legitimate if one party said it was in favour of Lords reform among the rest of its manifesto commitments and another did not?

Sir John Baker: I think my general point about the importance of the constitution is such that perhaps the mandate argument should never be used to support a change in the constitution simply as an act of power—simply because you have a majority of one, or even a larger majority. It is a problem though—how do we entrench or preserve those constitutional principles when we have no machinery for doing so? The courts might step in and do it. Personally, I think it would be far more satisfactory if Parliament could do its utmost to minimise that possibility by getting legislation right in the first place; it is terribly expensive to launch judicial review proceedings, and until you do you do not know what the law is.

Q241   Baroness Symons of Vernham Dean: David Howarth, when you were talking earlier, you said that the House of Lords was now appointed on the basis of political patronage, which you described as not sufficient grounds. You then went on to applaud the method of indirect elections, which, when that was examined a bit more, sounded tremendously like a marginally more sophisticated version of political patronage. I wondered why you thought one was more acceptable than the other when it is arguable that one is just a sophisticated form of political patronage but actually it is not more democratic.

David Howarth: I should be clear that I am in favour of direct election—100 per cent directly elected. It is just that the only other system that has ever tempted me along its road is the French Senate, a superb institution, which consists of people elected by people who are elected. The most sophisticated electorate in the world is not the Labour Party conference; it is the electorate to the French Senate. If you are going to have a different sort of politician, that might be a way of doing it, but my own first preference is for direct election.

Q242    Baroness Symons of Vernham Dean: Thank you. Sir John, to take up Lady Shephard's point, it was actually impossible to participate in the last general election without voting for a party that wanted Lords reform. Surely that is the long and the short of it—if you did not want Lords reform but still wanted to vote, you had to give assent, albeit tacit and unwilling. You had no choice.

Sir John Baker: That is my point, yes. There is no mandate.

Q243   John Stevenson:: My question is particularly directed at you, David, particularly as you have been a Member of Parliament before. The Government could have looked at composition and powers but have decided to look purely at constitution and effectively ignore powers excepting the existing powers. I suspect that that will lead to a more assertive House of Lords. It will probably lead to a better organised House of Commons; indeed, the Government might get their legislation better organised and better drafted. I suspect that there will be greater use of the Parliament Act as well. In time it will probably settle down regarding conventions and so on, but undoubtedly there will be unexpected consequences—things we have not thought of. I have already been thinking about one or two. For example, you might see increased representation of other parties in the second Chamber. Are there any things that you think could emerge from this legislation?

David Howarth: Ah, now you really do want tactical advice. If the Lords were to start thinking about its powers and the Government lost procedural control of it, all sorts of things might happen. The most radical would be refusing to allow government Bills to start in the Lords. Why should that not happen? Why should the Government get the benefit of that? The control of time is the big battle in Parliament, all the way through. so you could think about that. Or, as the elected Members grew in number, people might start to think about conventions about who votes on what and try to meet the objection about legitimacy by saying, "Only elected people vote on that one". All sorts of things might start to happen in five, 10 or 15 years' time.

Q244   Oliver Heald: I would like to ask Sir John Baker a question. In looking at the proposition for grand reform of the sort that the Government are suggesting, Dr Russell said that she was a bit nervous about this and felt that there was a case for a series of smaller steps that would improve the way in which the current system works before countenancing anything more major. She talked about things like appointing at regular intervals, selecting even the political nominees using the Appointments Commission to ensure that the people concerned had particular qualities and, perhaps, introducing a retirement age. That would be a slower and more modest approach but one that she felt had a better chance of happening. What is your view about that balance between a grand reform and a more gradualist approach?

Sir John Baker: As you might guess, I am deeply concerned about what is essentially gambling with the constitution, because it is irreversible. We can all speculate about things that might happen in 10 years' time. Constitutions are for the long term. All sorts of things might happen, such as different sorts of election landslides that might occur 15 years from now. We not know, and it is a terrible risk to take if we do not know, especially if we have not thought about the relationship between this reform and other aspects of the constitution. So I would very much be in favour of the measures that you have outlined.

Q245   Oliver Heald: So more of a "modest steps" approach?

Sir John Baker: Yes.

Q246   Oliver Heald: And when you think about the history of this country and the way in which it has developed—you are a great expert on the English legal system and a great admirer of the way in which English common law has evolved over time—do you have any views about the overall constitutional approach that the country has taken over many centuries? Is there something that you would like to say about the British way of doing things—or the English way, even?

Sir John Baker: We have not really had a system for doing it, have we? That is part of the problem that we face at the moment. It is easy to say, as I do, that we should think about the constitution as a whole, but as to how one does that—there was talk some years ago of a constitutional convention, but the mind boggles at how it would work. There would be so many different views that it would be difficult to know how to resolve them. We have just allowed things to evolve, and one can take a view that that works.

Q247   Oliver Heald: I think you are diametrically opposed to David, aren't you? David is very much for the Big Bang gradual reform and you are not.

Sir John Baker: That is quite correct.

Q248   Oliver Heald: But he is right about the Legislative and Regulatory Reform Bill?

David Howarth: You and I were on the Committee.

Oliver Heald: Yes, we were on the Committee together.

Q249    Baroness Andrews: On the question of the whole-Parliament approach that Peter raised, you seem to be in agreement that the main problem lies with the Commons. Sir John, you made this rather startling statement in your written piece: "Although the Commons has the undoubted primacy in most ordinary affairs, it cannot be the business of the Commons to tamper with the only effective check on their power—that is, on the otherwise absolute power of the Government which they support". I would like to know whether David agrees with you, but I am also wondering what the implications are of what you are saying. Should they tamper? Were they to do so, what would be the only controls that you could see on that?

Sir John Baker: That was really a reaction to the remark made by Mr Straw under the previous Administration, referring to the difference between the two Houses on what should be done about Lords reform, that in a democracy it is for the Commons to push through its view and never mind the Lords' view. That seems to be quite wrong on a matter of such constitutional importance as this question, simply because the Commons by its very nature is working hand in hand with the Government. That is the way our constitution works. If there is to be any check on Government—if one assumes there should be some sort of check—it cannot be just the Commons. If the Commons is allowed to remove such checks as there are, we do not have a constitution at all in that sense.

The Chairman: For once, the Division is fortuitous.

David Howarth: Saved by the bell.

The Chairman: Thank you very much, gentlemen. I am bound to say I thought that was a stimulating subject, and I thoroughly enjoyed it.

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