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

Lord Cormack and Rt Hon Paul Murphy MP (QQ 591-611)

Q591   The Chairman: Thank you very much for coming, Lord Cormack. You know what we are about. If you would like to make a brief opening statement, we would be delighted, otherwise we can launch straight into questions.

Lord Cormack: Thank you, Lord Chairman. On behalf of Mr Murphy and myself, I thank the Committee for inviting us. We would like to make a very brief opening statement and then to take any questions that you and your colleagues might have.

The Chairman: Before you do so, perhaps I may call on Lord Norton.

Lord Norton of Louth: I declare an interest as a co-chair of the Campaign for an Effective Second Chamber.

Lord Cormack: I am very glad that he has done that because I was just about to explain to the Committee that the Campaign for an Effective Second Chamber was founded by Lord Norton and me some 10 years ago. It consists of around 200 Members of both Houses drawn from all political parties and with a sizeable contingent from the Cross Benches in the House of Lords and with Bishop affiliates. We believe that we are a fairly representative group. We stand for the reform but not for the abolition of the House of Lords or for its replacement by something different. We are committed to the primacy of the Commons and to its unambiguous democratic mandate. We recognise that serious issues need to be addressed by those troubled by the dominant power of the Executive. We acknowledge that there is a strong case for a thorough review of the distribution of power in a bicameral system—which House does what and how, and how it should be composed—and for an examination of the separation of powers. However, this draft Bill does not address these issues at all. It tampers with the delicate mechanism of our unwritten constitution in potentially disastrous ways and creates an agenda for confusion.

I should like to make two specific points, if I may. If we have a 100 per cent elected second Chamber, Senate or whatever it is called, there will not be many independents in it. It will be elected mainly on party-political lines and the Cross-Bench element will virtually disappear. If, on the other hand, we have an 80 per cent elected Chamber with 20 per cent appointed, we would create a situation where the will of the elected could be frustrated by the non-elected. Last week we had a series of votes in the House of Lords which were effectively carried by the Cross-Bench votes. Had this been an elected House, there would have been the makings of some sort of constitutional crisis in that. I believe that, because of the conventions which were referred to in the previous session, we have a situation in the House of Lords where there is a recognition of the supremacy of the House of Commons.

The other point that I should like to make at this stage is that in a Bill which seeks to claim democracy as its hallmark, why is there no provision for the people to pronounce in a referendum? We are going to have a referendum in virtually every town and city in the country where there is a suggestion of an elected mayor. We are going to have a referendum if any changes are made to the European treaties. Last year we had one on AV, yet there is no provision for a referendum here.

I shall leave my opening comments at that. I know that Mr Murphy, who is a very distinguished Member of the House of Commons, has one or two points that he would like to make.

Paul Murphy: I do not want to repeat what Lord Cormack has said, but I shall raise two things for discussion. The first is that I have always been opposed to an elected House of Lords on the basis that it would be a rival to the House of which I have been a Member for a quarter of a century. I have not changed my views after what I have read of the Government's proposals. Ultimately, democratic legitimacy must lie with the lower House and the proposals set out here will threaten that.

The second point, which is more specific and was touched on in the previous evidence session, is the relationship between those who are elected to the Senate and those who are elected as Members of Parliament in the United Kingdom. I know from my experiences on two occasions as Secretary of State for Wales and as a Welsh Member of Parliament about the relationship between Assembly Members and Members of Parliament, particularly with those Members of the Assembly who have been elected by a different system. In Scotland and Wales, although I will confine my remarks to Wales, Members of the national Assemblies are elected either like we are in the House of Commons under the first past the post system or by a top-up PR system. I think that that has not worked. Having two categories of Member in the Assemblies means that they can claim different legitimacies. On the relationship between Senators and MPs, I point to the constituency aspect. From what we heard earlier, I know that the idea is that Senators will not have constituency matters to deal with and will not do the same sort of thing as Members of Parliament. Pigs will fly, because the reality is that, when they are elected, Senators will be overwhelmingly party political. They would have been selected by their parties and, as a consequence, they will be representing the people. Moreover, as far as they are concerned, they would have been returned by a different method of election which they might well regard as more legitimate. I just cannot see a situation where there are high-flying Senators without any constituency work and whose job is simply to revise legislation. That is not going to happen; they will be party politicians the same as we are. I rather suspect that that is not the idea behind this reform of the House of Lords, but it simply will not work.

The final point I want to make by way of introduction is that we are not short of democratically elected people in this country. In my own constituency I can vote for my community councillor, my borough councillor, my Assembly Member under first past the post and my Assembly Member elected under the PR system. I can vote for myself, possibly for a Senator and for the Member of the European Parliament. I cannot be persuaded that we are not democratically represented in my part of the world.

Q592    The Chairman: Thank you. I should like to ask a fairly basic question. Do you think that an increasingly assertive House of Lords is a good thing or a bad thing? I wonder whether you agree with the proposition that at least part of the argument that you are putting forward, as I understand it, is that if it is elected it will become more assertive rather than less so.

Lord Cormack: That has been made quite plain in what the Leader of the House has said on the Floor of the House in answer to Questions: an elected House would indeed become more assertive. While I think it is right that our present House should use its powers to advise, to caution and to send things back and say "Think again", I believe that, in the end, in all but supreme constitutional matters, which are of course excluded from the Parliament Act, it should not have the power to override the House of Commons. If you had an elected Second Chamber, it would flex its muscles in a very real way and you would have the seeds for all manner of constitutional problems. Although the previous witness talked about codifying conventions and having laws, the fact is that no Parliament can bind its successor. Indeed, as a number of the questioners pointed out, this would be an agreement concocted between the present two Houses and it could not be binding on a Chamber that has not yet been elected.

Q593    The Chairman: That may be, but I am asking a question about assertiveness. As I understand it, you are saying that, if it is unelected, it is good if it is assertive but, if it is elected, it is dangerous if it becomes assertive. I do not understand the distinction because it seems to me that, if you have a more assertive House of Lords, you will then have a more restive House of Commons. The chances are that that would make it more difficult for the Government and in a sense that would be good for Parliament, not bad for it.

Lord Cormack: There are more forms of assertion than this world dreams of. The fact is that you can have assertion which ultimately leads to a constitutional stalemate because the House continues to send things back. You can have the sort of assertion that we are used to in the present House where the Members say "Think again" and perhaps "Think a second time" and maybe even a third time. But at the end of the day, the will of the elected House on matters such as welfare reform and health does prevail.

Paul Murphy: I suppose what would influence me as a Member of Parliament in the lower House in terms of changing my mind, if I am going to take part in a debate and vote as a result of amendments coming from the House of Lords or a Senate, I rather suspect that amendments sent back to the House of Commons which have been agreed by the sort of people who are currently in the House of Lords will have more weight on my decision-making than if they are sent back by a mirror image of the House of Commons simply because it happens to be elected.

Q594    Baroness Shephard of Northwold: I should like to refer to a point made by Mr Murphy. He said that an elected House would be a rival to the House of Commons. Our last witnesses and indeed other witnesses have asserted that there would be no rivalry between the two Houses on the basis of the proposals in the Bill. That is because if people were elected to the House of Lords, they would serve for 15 years and would have been elected under a different electoral system. I shall quote the last witness; he said that the public would come to understand that elected Senators basically can do nothing for them. I do not want to misinterpret the last witness and I am possibly out of order, but given that both Lord Cormack and Mr Murphy have been elected, as have a lot of people in the House of Lords, I would like to hear Mr Murphy's comments on the proposition that the Bill should suggest that there are two sorts of elected Members but that they would deal with the same issues. Therefore the European Parliament analogy, which is often made, does not apply. Does Mr Murphy or Lord Cormack think that the public would come to understand that it was worth voting for someone who said that he could not do anything for you?

Paul Murphy: Not at all. However, first I shall deal with the 15-year term. If it ended now, it would have taken us back to 1996 or 1995. Huge political changes have taken place over that period, and it would mean that people in the Senate, not necessarily from the same party but from totally different parties, at the end of the day would be party people. The general public—if they think about these things at all, and I have to say that in 25 years in the House of Commons I have not had one letter or e-mail about the House of Lords; no doubt others have, but I have not—will want to go back to the fundamental reasons of why there is a second Chamber. I taught government and politics for a long time before I came into the House of Commons. I said that the second Chamber was deliberative, constitutional and a revising body—in those days it was judicial as well. Those functions are best performed by people with wisdom and experience, and who in my view are not elected, but nevertheless could have an influence on an elected Chamber by virtue of who they are. I rather suspect that people outside would actually welcome the idea that there is a careful, close and in some senses—not always, but then it should not always be—non-political look at legislation. But if a House of Lords or a Senate was overwhelmingly elected, it is almost inevitable that it would look at issues from a party-political point of view. What is the point of having 300 extra politicians doing the same thing as the 600 in the House of Commons? I think that most people would agree with that.

Lord Cormack: The argument is absolutely right. You would have people who had been elected for 15 years who were not eligible to stand again. Where does the accountability go and how could they answer to their constituents? What mischief could they make in the individual Member of Parliament's patch if they chose to do so? Just think of the changes that have taken place if a group of Senators had been elected in 1992. There was a change of government and of ethos. This really is an extremely rash proposal, and one that should not see the light of parliamentary day.

Q595   Baroness Young of Hornsey: You argue in your written submission that democracy is not only manifested through elections and I think that that is right. My first question is this. Can you clarify whether the issue of legitimacy is better achieved through appointment or election? My second question is this. In the House as it is currently constituted, and as far as I can see in some of the suggestions that have been made for reform, do you agree that there is a strong bias in favour of older people in the House? That comes out through people having to be at the top of their profession and to be seen as eminent and as having achieved a certain amount. Do you think that is desirable and, if you do not, do you have any remedies for achieving a better age balance in the Chamber?

Lord Cormack: To answer your first question, we have an entirely legitimate system. In this country we have a constitutional monarchy where the head of state is not elected and we have an independent judiciary where the judges are not elected—we refer to both of these points in our paper. We have a House of Commons which has what I have called the unambiguous democratic mandate and we have an assembly of those who, for all manner of reasons—their various degrees of expertise and experience and from a whole range of walks of life—represent many interests that are not always represented in the House of Commons. I think that we have a better ethnic mix in the upper House. Although what you say about the older Members has a degree of truth in it, you yourself, Baroness Young, are an example of the younger Members.

Baroness Young of Hornsey: It is a little bit sad if I am seen as an example of the younger Members, but thank you for the compliment. I am a pensioner.

Lord Cormack: As we all know, we have people in the House of Lords who are there for all manner of reasons and they are not all in their dotage. It is entirely proper to look at how one appoints people to the House of Lords. The Campaign for an Effective Second Chamber has always said that and has always stood for reform. It recognises that we have to face up to issues such as whether there should be a retirement age and what it should be. It recognises that we have to look at all these issues because if we are going to maintain, as I hope we will, an appointed second Chamber and continue to call it the House of Lords, it is important that there should be an even better recognition of the various elements in our society than there is at the moment. I believe that it is not too bad at the moment, but of course it is capable of considerable improvement.

Q596   Dr Poulter: I want to pick up on the point that you made about the politicising of potential Lords or Senators in the regions. That seems to be a very difficult argument to make since the regions involved would be extremely large and there would be very few representatives. Baroness Shephard said that this could not be equated to the role of MEPs, but as Members of Parliament we rarely see any activity on the part of our European representatives at the constituency level because they have such big regions to represent. I fail to see the logic in the proposal that Senators are in any way going to take on a constituency role, because they would have to represent massive regions, often comprising 50 or 60 constituencies.

Lord Cormack: Perhaps I could try to answer that question. First, the remit of a European Member is wholly different from the remit of a Member of Parliament. Secondly, a Senator would be a Member of the United Kingdom Parliament and would be dealing with precisely the same legislation and precisely the same things as the Member of Parliament. You have been a Member of Parliament for not too long, Dr Poulter, and I hope that you will be here for many years. I was in the other place for 40 years and Mr Murphy has been there for 25 years, and we know that it is impossible to please every constituent or deal with every issue to the satisfaction of constituents all the time. There would be an inevitable tendency to turn to the Senator and there would be an inevitable temptation, so far as the Senator was concerned, to get involved and put his or her name on the issue. I am sure that Mr Murphy would be happy to amplify that.

Paul Murphy: The Senators are going to be elected on a party-political platform. As soon as you have an elected body of any sort, whether it is the Welsh Assembly, the House of Commons or an elected Senate here in Parliament, the candidates will be selected by the political parties and they will be elected on a party platform. Presumably they will then work, as the Assembly Members in Wales work with us as Members of Parliament, in a party-political way. I am not saying that that is bad because I belong to a political party; I am simply saying that the difference in an elected Senate would be that the platform on which they would stand would be virtually identical to that of Members of the House of Commons.

Q597   Dr Poulter: I should like to make two points on that because there are clear distinctions. First, I think that you are slightly at odds with each other. At the moment, many Members of Parliament do not have an effective working relationship with MEPs because they represent such large regions. If Senators are going to represent the same regions, why would it be the case that we would have a working relationship with them? The second point is that it is a difficult case to argue. If you define clearly what someone is standing for the Lords for as opposed to what a Member of Parliament is standing for, it is clear that the more scrutiny-based role of a Member of the House of Lords would mean that they would not have a constituency-based role in the same way as a Member of Parliament. That would be accepted when they stood for election.

Lord Cormack: Well, Dr Poulter, you and the Senator for, say, Suffolk would be occupying the same building. You would be dealing with the same pieces of legislation. You would be representing to a degree the same people. He may represent all the people of Suffolk and you would represent just one constituency in that county. But it is inevitable that there would be a degree of tension between you. I am absolutely certain that that would happen. In the early days, before they moved on to the list system, MEPs had constituencies. I happened to be a Member of Parliament in Staffordshire and the MEP represented most of Staffordshire and Shropshire. Although we were dealing with different Parliaments and different issues, there were clashes, some of which were well documented. But I believe that that would be as nothing to what would happen if we had two elected bodies in this building.

Q598   Dr Poulter: Is there not a clear distinction in that in those days Members of the European Parliament represented perhaps only eight constituencies, but here we will have regions of constituencies where a Senator from one party would potentially have to represent 60 constituencies. Unlike a Member of Parliament, that would be an impossible job to do on a constituency basis. We are talking about someone representing many millions of people.

Lord Cormack: Until you have finished with this Bill, we do not know precisely what their responsibilities would be. However, what we do know is that there are parts of the country now where the MEPs divide the territory up between them. I had one MEP who saw himself as looking after the interests of South Staffordshire when I was the Member of Parliament there. We had one very big clash over whether an airport should be built. I did not want it and he did. Just imagine how that could be writ large if, as I say, both of the elected people are in this building and both are claiming a mandate—and perhaps, as Mr Murphy has said, with the Senators claiming a more legitimate PR mandate. Mr Farron, the President of the Liberal Democrats at the time of the AV vote, made a public statement to the effect that he was desperately sad that it had gone down the spout. Of course he was, and it could well be that the most legitimate body—I quote him more or less verbatim—would be an elected second Chamber. Given where he was coming from, it was an entirely legitimate comment, but it makes one think.

Paul Murphy: I think that in some ways there would be a certain remoteness about a Senator. I shall take my own country of Wales where we would be likely to have 10 or a dozen Senators. I do not know how they would be regionally distributed, but what is absolutely clear is that the political parties in Wales, whichever one it might be, would ensure that the Members of Parliament and Senators were elected on the same basis. They would be the same sort of people and would be selected from the same sort of selectorate. There is nothing wrong with any of that, but it is not necessarily what a second Chamber is all about. In my view, that is the difference.

Q599   Baroness Symons of Vernham Dean: Lord Cormack, you said in your introductory remarks that you were committed to the primacy of the Commons. This is the fundamental issue that we are struggling with. Were there to be an elected second Chamber, can you think of any way that you would regard as legitimate of safeguarding the primacy of the House of Commons?

Lord Cormack: No. I cannot think of any way you can guarantee that. The campaign to which I have referred, and which has now been meeting for 10 years, has often wrestled with this very issue. We do not believe that it is possible to ring-fence the primacy of the House of Commons if you have an elected second Chamber.

Q600   Lord Trefgarne: Would you not agree that primacy is a moveable feast? For example, even today there is equal primacy over secondary legislation, in that the House of Lords can reject statutory instruments in the same way as the House of Commons. If the House of Lords in its new senatorial guise became largely or wholly elected, it would certainly seek, and no doubt progressively achieve, more primacy or less subservience.

Lord Cormack: I am sure that it would. Indeed, you make my case for me when you talk about secondary legislation, on which at the moment the House of Lords generally practises a self-denying ordinance—although there was a case three years ago, before I entered the House, when a measure on casinos was rejected by the House of Lords. A few weeks ago there was a suggestion that a Motion moved by Baroness O'Cathain might result in a similar defeat, but she did not press her Motion to a vote because it was clear that the general opinion of the House was that she should not do so. However, if you had an elected second Chamber with the same powers as the present second Chamber, there would be a very real temptation on the part of elected Senators to fight such legislation, particularly if they felt that an issue was not going to play well in their own territories—be those counties or regions or whatever. You would have an adjustment of the relationship between the Houses. As I said in my opening statement, there is a case for looking at all these things in the round, but you should first decide what each Chamber is going to do. You have to get form and function in the right order, as we point out in our paper. That is not the case with this Bill, which takes certain things for granted. Baroness Andrews asked about Clause 2, which states the matter as if it would be absolutely fine and dandy. However, I honestly do not think that it would be. Another point is that one of the Bill's more bizarre proposals is that the ministerial Members, whom the Prime Minister of the day would have the opportunity to appoint to the House of Lords or Senate, would be in the second Chamber for just as long as they were in office. You put them in and, when he sacks them or they resign, out they will go. There is no quantifying of how many of those people there will be. It really is not very well thought out. Even if one wants, as some do, to have an elected second Chamber—and I respect that view—this Bill is not the vehicle for achieving an efficient one.

Lord Trefgarne: If you have an elected, or largely elected, second Chamber, will it not consider itself more legitimate and exercise its existing powers to the limit and soon be campaigning for more?

Lord Cormack: Indeed.

Q601   Gavin Barwell: I thank Lord Cormack for putting the case against reform in perhaps its purest form. For me, regarding the suggestion that the current House is entirely legitimate and that party leaders should be able to put those who fund their political parties into Parliament or bump an MP up into the House of Lords so that they can put one of their apparatchiks into that constituency, personally I do not consider that entirely legitimate. However, I am grateful for the note that you submitted to the Committee, which challenges the underlying thinking behind the Government's proposals.

I would like to pick up on point 3 in your note, where you say that one of the premises on which the Bill is based is that "That those who make the law should be elected". You then draw the perfectly reasonable distinction between a Member of the House of Commons, which ultimately makes the law, and Members of the second Chamber. However, you sort of suggest that Members of the second Chamber are really only equivalent to civil servants and parliamentary draftsmen. Obviously, those people draft legislation at the instruction of Ministers, whereas there is a big difference, I hope you would agree, between a Member of the second Chamber and a parliamentary draftsman—

Lord Cormack: Yes, but I think—

Gavin Barwell: Let me just very quickly finish the question. It seems to me that one of the principles of democracy is that people should have an equal say on the laws of the land, and that is why we are against things like rotten boroughs. Would you not agree that someone who is appointed to the second Chamber has a much bigger say in the laws of this country than the average constituent who voted for me?

Lord Cormack: Of course Members of the second Chamber have more say than the average constituent—that is self-evident—but that paragraph does not seek to equate them with civil servants, advisers and lobby groups or anything else. All that it says is that there are many people who take part in the lawmaking process and the House of Lords of itself does not have the power to initiate and enact law. Again, that is self-evident. With great respect, I do not think there is anything misleading in that paragraph.

Regarding your other comments with which you introduced your question, I agree with you on many of those points. Of course neither I nor the Campaign for an Effective Second Chamber is seeking to suggest that all is for the best in the best of all possible worlds. Of course we believe that reforms are necessary. Of course we believe that it is necessary to look at methods of appointment. If I may voice a particular personal view, I agree with you very much that somebody should not be in the House of Lords—if this has happened—purely on the basis of giving donations to a political party, although of course it is perfectly possible for somebody to be both an innovator or thinker and also a donor. Those things are not mutually incompatible.

Q602   Mr Clarke: I welcome this discussion, and I believe that Lord Cormack and Paul Murphy have given us some very interesting insights into the kinds of things that we are expected to decide on. I hope that they will forgive me if I say that I know what they are against but I am not terribly sure what they are for. Do you think that the situation as it exists at the moment should stay? Are you really arguing for the status quo?

Lord Cormack: No, we are not, and I am sorry if that has not come across sufficiently. In the paper that we submitted, we talk about the attributes of the present House of Lords and about the things that can be reformed and improved—I referred in one of my earlier answers to such things as retirement ages and the number of Members. I cannot answer for the group by saying that the House of Lords should have 300, 400 or 500 Members. I believe that 300 is far too small, and I believe that the argument in the paper that on average 388 Members turn up per day is a fallacious argument, because the same people do not turn up every day—some people come for certain things, and some for others. However, I believe that one should, over a period, aim for a defined number. The group does not have a view on that, but my personal view is that the total should be somewhere between 450 and 600—probably nearer the smaller number than the larger one—but that should be achieved over a period. After all, even with this Bill, we are talking of a period between now and 2025. It should be very possible, with proper restraint and sensitivity, having regard for people's contributions and all the rest of it, to reach a situation whereby by that time you have a defined number, you have a retirement age and so on.

There are many things that can and should be done but, if I may say so, there are also many things that can, should and indeed must be done in the House of Commons to balance the position vis-à-vis the Executive. There is a real case for a Joint Committee of both Houses to look at the balance within our constitution. This piecemeal approach is not really in the interests of the House of Commons or in the interests of the country. At the end of the day, you are dealing with an extremely delicate mechanism with the British constitution. When you start taking this bit out—as with taking out a piece of a well-constructed watch or clock—all sorts of unforeseen consequences can follow. The one law that we have been repeatedly successful in passing in this country is the law of unintended consequences.

Paul Murphy: I agree with that. I particularly agree with the proposal that Lord Steel has consistently put forward in the House of Lords for major changes to the way in which the House operates.

Lord Cormack: And I would say that the Steel Bill, as Lord Steel would readily attest, came out of discussions in the Campaign for an Effective Second Chamber.

Q603   Lord Tyler: Lord Cormack, is an example of one of the reforms that you would support a retirement provision? Given that the Library of the House of Lords said that, at the last count, four Members were under the age of 40 and 19 Members were over the age of 90, exactly how do you think that reform should be implemented?

Lord Cormack: With determination and sensitivity. One has to recognise—you know these people as colleagues, as I do—that there are people in the House of Lords who are fairly well advanced in years but who make an outstanding contribution to our deliberations. There are some in your party, some in mine, some in the Labour Party and some on the Cross Benches. We both know who they are and I am not going to mention names any more than you would, but we know they are there. That is why I said that one thing we could accept in this Bill is the timescale of 2025 and work towards a situation where you would indeed have a defined number—the number you have been trailing in your recent interviews, or maybe not. We also have a retirement age, which might be 80 or 85, I do not know. People are living longer and people are making contributions. We also have rules about people appearing in the House of Lords and being able to discharge their parliamentary functions. All these things are entirely legitimate for us to discuss and we should be seeking to move towards that situation, as I said earlier, with determination and sensitivity.

Q604    Lord Tyler: I think that you have illustrated how invidious a piecemeal approach is. Perhaps I may ask another question, which both of you might like to answer. You have both put great emphasis on the importance of preserving the primacy of the House of Commons and, as a former Member of the Commons, I accept and endorse that. What exactly do you anticipate if, in the 2012-13 Session, the Government come forward with an improved Bill as a result of our efforts around this table? Would your advice to your colleagues be that they should recognise the primacy of the Commons, should the Commons support that Bill, and that they should accept it at Second Reading, seek to improve it and not vote against it at Third Reading?

Lord Cormack: I shall be very interested to hear what Mr Murphy has to say in response, and he has a little time to think about his reply. I will be very clear on this. I made the point earlier that on matters of supreme constitutional importance the situation is rather different. I do not believe that the Parliament Acts would be able to apply, as they do at the moment, to an elected House of Commons and an elected Senate. That is because the Parliament Acts came into being to regulate the position between the two Houses that we have—the House of Commons and the House of Lords. It would be entirely legitimate for the House of Lords to challenge a Bill if it did not feel that the constitutional integrity of our system was being upheld. But you are tempting me into the hypothetical because it is clear that no one can make a definitive statement on this without knowing what is before us. In certain circumstances it would be entirely legitimate to resist, but in other circumstances it would not. However, we need to know what we are dealing with. Your Committee will no doubt be telling us in due course, but we also need to be assured of the unanimity of your Committee, because that, too, has to be taken into account. If your Committee comes up with an absolutely unanimous recommendation, that is one thing, but I think it might not. We will see.

Paul Murphy: My fear is that, whatever emerges in legislation, if in the end there is a majority elected House of Lords, it is inevitable that it will challenge the supremacy and the primacy of the House of Commons. My experience tells me that new democratically elected bodies almost inevitably want to increase their powers. It has happened in Wales and I agreed with that proposal; indeed, the Lord Chairman of this Committee had a lot to do with it. It is happening in front of our eyes in Scotland, where there is a huge debate on independence. I have not the slightest doubt that, if we had a majority elected Senate, eventually the Senators would want to flex their muscles. They would argue that their legitimacy was greater. If there were different parties in the different Houses, there would be enormous difficulties. Those are the problems that I think we will face. What I will say, though, is that whatever happens during the passage of any Bill through both Houses, it would have to have the legitimacy of public agreement through a referendum.

Lord Cormack: That is something on which Mr Murphy and I are absolutely at one. It is clearly the case that you cannot argue that there is a constitutional case for a referendum on Much-Binding-in-the-Marsh having an elected mayor but no case for the people of this country deciding whether their second Chamber should be elected or not. So if a set of proposals finally emerges, the ultimate sell should be with those who used to elect Lord Tyler and me and who currently elect Mr Murphy.

Paul Murphy: And then the debate should go to the country.

Q605    Lord Tyler: Can I ask one supplementary question of Mr Murphy? Did you in any of the elections since 1997, but more specifically in 2010, tell your electors that you did not agree with your party's policy on the reform of the House of Lords?

Paul Murphy: The party's policy changed during the course of those years and it is quite difficult to remember what the policy was as the years went by. But I have to say that not a word was said by me or to me about the House of Lords. It simply was not an issue. That is the point of a referendum, of course. If we feel that this is a hugely important issue for the people and if Parliament decides accordingly, there will be an opportunity for everybody to air their views and then eventually, just as we have had extra powers granted in Wales by referendum, that could happen so far as the powers of the House of Lords are concerned. But you would not see it in my manifesto.

Lord Cormack: And of course in any referendum it is important that people are told about the cost of the new Chamber.

Q606   Ann Coffey: Members of the House of Commons are under intense scrutiny by the press, while the House of Lords is less so. Perhaps the reason for that is that the House of Lords is not seen as central to making law in the same way as the House of Commons is. One of the good consequences of that kind of close scrutiny by the press is accountability and things being transparent. Do you not think that a good outcome of having a wholly or partially elected House of Lords would be the scrutiny of the press that would accompany that development? Do you agree that that would be helpful to the overall democratic process?

Lord Cormack: I think that your question is based, if I may say so, on a false premise. The House of Lords has indeed been scrutinised by the press over the past couple of years. I do not know whether they are still there or not but, much to my sadness and that of others, some Members of the House of Lords have been sentenced to terms in jail—

Ann Coffey: I was not talking about them.

Lord Cormack: They have been given as much publicity as any of the expenses scandals in the Commons. I believe that the House of Lords is just as open and subject to press examination, but the fact that the press do not always choose to report it as extensively is, I think, the public's misfortune. I say that because the quality of debate in the House of Lords is often extremely high. That is one of the reasons why I am absolutely persuaded that it would be sad if we got rid of an institution that, by accident of history and a degree of incremental reform in 1958, 1999 and so on, has resulted in a House where no party has an overall majority, where there is more accumulated wisdom and experience than in any other second Chamber anywhere in the world and where the quality of the debate, whatever the subject, is exceptionally high. It is a pity that the press do not look at the House of Lords a little more closely; I wish that they would.

Ann Coffey: If you will excuse me, I was not actually talking about the expenses scandal by way of example. I was talking about normal reporting and the close scrutiny of what people say and who the people are who are saying it.

Lord Cormack: That is what I just said

Ann Coffey: Yes. You said that it is a pity that the press do not report the House of Lords. I wanted to suggest that an elected or partially elected House of Lords would be seen by the press as important to the legislative process and would bring about those things that you yourself desire.

Lord Cormack: May I answer that? In an elected second Chamber, what the press would not see in a health debate is some of the most eminent physicians and surgeons in the country taking part in it. In an elected second Chamber, what the press would not report about a debate on defence would be the fact that former Chiefs of the General Staff and so on were able to take part.

Q607    The Chairman: Only in a wholly elected House would they not be able to see that. I am sorry, I do not want to join in the argument too much, but you have provoked me on this one. I find the idea that the 20 per cent of Cross-Bench Members proposed by the Bill are going to sit there supine, not taking part in debates on subjects of which they have intense and detailed knowledge, extraordinary. Of course they will take part. If the doctors are sitting on the Cross Benches and the rest of the House is elected, of course they will participate, and so will the generals.

Lord Cormack: Lord Chairman, I think that you have jumped in a little too quickly. In a 100 per cent elected House, what I have said is absolutely right, but in an 80 per cent elected House, you have the disadvantage—this is a point that I made earlier—that the 20 per cent appointed element would be regarded as second-class Members. They would have the right to vote but they would not have been elected. I believe that a hybrid House, with all the possibilities of Governments being defeated by non-elected Members, would be constitutionally extremely dangerous.

Q608   Oliver Heald: You have raised the concern about regional Senators interfering in particular House of Commons parliamentary constituencies. This is something that was referred to when we had our video link with Australia, where the Senators who are elected for the state apparently have allocated to them a number of Representatives' constituencies, where they actively take part with political purposes. This is something that Paul Murphy suggested might have happened in Wales with the list Members interfering or doing work in constituencies of Assembly Members who were elected for those particular constituencies. A way of tackling this, which has been suggested to us by the Campaign for a Democratic Upper House—the previous witnesses—is to do three things. The first is to have a clear statement of the roles and functions of the two House backed up by agreed resolutions in each House; secondly, not to give the Senators any money for doing constituency work, so no allowances; and, thirdly, to have a job description for Members of the second Chamber saying that they are not allowed to do constituency work, or words to that effect. I just wondered whether you felt that that would work.

Paul Murphy: No, I think that it is a load of nonsense. It does not reflect the real world in any respect. When I say "constituency work", I am not necessarily talking about taking up Mrs Jones's back kitchen, although that sometimes happened with MEPs taking up individual issues like that. I am talking more about the politics of the region or area and the issues of the day. That is fine, but it is presumably not the role of an elected Senator. The role of an elected Senator is to revise, deliberate and do all the things that the House of Lords now does. I cannot see this working. It is different in Australia, where there is still a problem, but you can understand how it works in a federal system, where the Senators have a specific role to represent their states or provinces in a federal Parliament. Our Parliament is a unitary one, although I personally think that there is a case for somehow dealing with Scotland, Wales and Northern Ireland within the House of Lords, but that is another issue. Elected, party-political Senators in any part of our country will be party politicians. That is what they are there for. The idea that they will keep their noses out of this or that issue is just absolute tripe.

Lord Cormack: I could not put it more strongly. The only other point that I would make, Mr Heald—and Mr Murphy is completely correct—is the one that I made earlier. No Parliament can bind its successor, so I do not think that whatever cosy agreement was arrived at would stand the test of time.

Q609    Lord Hennessy of Nympsfield: Do you think that a referendum is the only way to solve—"solve" is probably the wrong verb—or settle the question of the Lords for a couple of generations? If there is consensus in the country, it may well be that we cannot go on like this. It has absorbed a phenomenal amount of energy and time since 1911 and, although it is a tremendous diversion for constitutional buffs like me and my great friend Lord Norton, it surely cannot go on like this. Do you think that a referendum is a desirable way to do it?

Lord Cormack: If any Bill emerges from this Committee that commands great support and goes through both Houses, I think that there has to be a referendum. My own view is that at the end of the day that probably is the best way of solving it, but it is difficult to say much at the moment in that context, because it is a hypothetical situation. Your Committee has not made a report to either House yet and we do not know how the Houses will react to whatever report you make. But at the end of the day I think that, yes, probably a referendum is necessary.

Paul Murphy: There is no question about that. In my view, certainly since the late 1990s, all the major constitutional questions have been resolved by a referendum—obviously Northern Ireland, Scotland, the recent increased powers in Wales and, of course, the alternative vote. It seems to me that if those things can have a referendum, surely the way in which our Parliament is organised should also be subject to a referendum. To be perfectly honest, I see great benefit in the public debate that will be held about it. You can have as many opinion polls as you want; it depends on the questions that are asked and all the rest of it and there is no debate. A referendum would generate a proper debate and people in the country could make their minds up. It would also obviously give legitimacy to the solution.

Lord Cormack: This is an issue that the Campaign for an Effective Second Chamber is addressing. We have not produced a paper on a referendum but I think that we may well do so at some stage, although I am speaking very much personally in answering your questions.

Lord Hennessy of Nympsfield: Do you think that it would be wise to wait until the Scottish question has been settled? It is a first-order question—a constitutional question with bells on.

Lord Cormack: Absolutely, yes. I think that that would be extremely sensible. To gum up the machine with two major constitutional issues, for one of which there is great public demand and interest and for the other there is no public appetite or demand, would be injudicious, to put it mildly.

Q610   John Stevenson: The White Paper and draft Bill from the Government are about composition, not about powers. Effectively, it could be argued that the Government are saying, "We accept that the new House of Lords will only have the powers that already exist, which are very extensive. We also accept that an elected House of Lords is likely to be more assertive and to use those powers." Would you not agree that that would be a good thing for parliamentary democracy? It is a good thing to challenge the Executive more and we should move away from being an elected dictatorship towards being far more of a parliamentary democracy. At the end of the day, if there is a conflict between the two Chambers, as a matter of law the 1911 Parliament Act gives primacy to the House of Commons.

Lord Cormack: It may give primacy to the House of Commons at the moment, because it deals with the House of Commons and the House of Lords as they currently exist and as they have evolved, but there are legal minds far more eminent than mine who say that they do not think that the Parliament Act would apply to a wholly different second Chamber.

John Stevenson: May I just interrupt on that? When the 1911 Act was passed, women did not have the vote and not all men had the vote, so, if you were to take your point of view, you could argue that the Parliament Act would not apply now.

Lord Cormack: No, but the Parliament Act of 1911 was of course superseded by the Parliament Act of 1949, which is the one that we are really dealing with. That is the one that reduced the power of delay to one year, as you well know. There are those who argue, and this is a legal matter, that the Parliament Act could not and should not apply to two wholly different assemblies from those for which it was designed. The very important question that you asked at the beginning is the one that we all, wherever we sit in either House, should be addressing: given that we do not have a separation of powers in this country, how do you maintain a system where the Executive is drawn from the legislature and at the same time adequately hold within the elected Chamber the Government to account? I think that you would only be muddying the waters if you had a second Chamber also elected with an attempt to curb its powers in the way that this Bill suggests. That is an issue that you and your colleagues on the Committee will obviously be wrestling with as you come to your conclusions.

Paul Murphy: Incidentally, when the Chamber is as it is, although we both agree and the campaign agrees that it should be changed, agreements, conventions and even laws certainly would be followed, but the whole situation changes when people are elected to it. You can have all the agreements and conventions in the world, but realpolitik takes over.

Q611   Bishop of Leicester: We can deal with this very briefly. I wonder whether I could invite you, with your combined 65 years in the House of Commons, to speculate as to whether there might be a comprehension deficit among some MPs about the functioning of the House of Lords and, if so, whether that matters. Also, what could be done about it?

Lord Cormack: That is an extremely good and pertinent question. I am very conscious of the fact that, although I had been a regular visitor to the House of Lords and had many friends in the House, and I knew it pretty well, I have inevitably got to know it a great deal better over this last year or more that I have been here. I have been become increasingly conscious when I talk to friends in the House of Commons—not just those who have been recently elected—that there is not enough interchange between the two Houses. There is not a sufficient appreciation by each of the other. That is why I have always been an advocate of Joint Committees. I sat on one or two myself during my time in the House of Commons and I am glad that this is a Joint Committee looking at these extremely important issues. We ought to find more ways of working together as parliamentarians at the two ends of the Corridor. There is indeed a lack of appreciation and understanding, although that is not exclusively the preserve of one House or the other. I would like to see much more interchange.

Paul Murphy: I agree entirely with that. I endorse the point that Lord Cormack made about Joint Committees. I sit on one or two and I think that they perform a remarkably good function. I also think that there is a role for Ministers in the Government, too, in dealing with the House of Lords in an improved way. I certainly made it my business when I was a Cabinet Minister to ensure that I talked with many Members of the House of Lords who had an interest in the subject for which I had responsibility. I am not quite convinced that that is done enough. The more interchange there is either between Ministers and Lords or between MPs and Lords, the better.

The Chairman: Thank you very much indeed. I thank you both for coming. It has been a helpful and revealing session and we are grateful to you. Thank you.

Lord Cormack: Thank you very much indeed.

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Prepared 23 April 2012