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The Lord Chancellor: Youthful or useful?
The Earl of Longford: Both youthful and useful, my Lords. I know that they are tolerant of senile deviations. I consider the intellectual quality of debates in this Chamber to be unrivalled, and there is a special quality of civilised decency which I have not heard of or read about as existing elsewhere. So there are great values attached to this House. Reform is bound to come. I only hope that in the new Chamber the essential values of the existing Chamber will be retained.
That said, I may be asked how I relate these high-sounding propositions to the Bill that will come before us. I suppose that the duty to vote will fall upon us every now and then during the next few months. I see that the noble and learned Lord is leaving, so I have already lost one distinguished member of my audience. I hope I have not said something shocking. I have not referred to breeches or any such indelicate subject. I am bound to relate these high-sounding remarks to actual voting intentions.
Before expanding on that, I wish to back up the remarks of the noble Baroness in denouncing an age limit. On a previous occasion, one of the most distinguished Members of this House suggested an age limit of 75, which found very few supporters at the time. I admit to bias in this regard. I confidently submit the proposition that as we get older, we get wiser--until, of course, the moment comes when we lose our marbles! But it is up to the House to say of any speaker, including myself, that that moment has arrived. On the whole, that does happen. I remember sitting on the Benches opposite, near to the Bar, and a great friend of mine, who was then rather past his intellectual prime, was sitting within a yard or two of his wife. When the matter came to a vote, he turned to me and asked (I shall not use his wife's actual name): "Can Daphne vote?". I could see that there was something wrong, and he did not reappear. So on the whole the House knows how to deal with people who have rendered great service but whose time has come.
On the whole, as we get older, we get wiser, as I feel sure the Prime Minister, whom I greatly admire, would agree when he is as old as a former Labour Prime
Minister whom I have admired for much longer; namely, the noble Lord, Lord Callaghan. I am sure the Prime Minister would agree that, 40 years from now, he will be wiser than he is today. It is an eternal proposition. Of course, we do not become more energetic. We could not compete with younger people, for instance those who work at the Bar and may sit up all night over cases, and so on. This is not intended to be a full-time Chamber. People bring valuable contributions from their work outside. Except for the leading politicians on the Front Benches, Members are not expected to attend full time. Therefore I do not think that age should enter into these calculations.Returning to my previous point, if there are to be votes in the coming months, how shall I vote?
Lord Hacking: With the Government.
The Earl of Longford: Every now and then, my Lords.
I was Leader of this House 30 years ago--I dare say before some of the younger Members were born or before they had grown up. I was here before the present Prime Minister was born. Thirty years ago I moved an amendment to a Bill introducing the "two-writ plan", under which hereditary Peers would attend and speak, but not be allowed to vote. It was accepted with firm acclamation by all the party leaders. It was sabotaged in the House of Commons by a strange combination whose Members I need not mention now. I still believe that it is the best idea, and indeed the only sensible compromise. I hope that someone of more contemporary significance than myself will reintroduce that proposal. If not, I shall have to do so myself. If it falls for lack of support, that is too bad. I shall have done my duty. Assuming that it falls by the wayside, there will no doubt be other amendments, and I might do well to keep my options open.
However, in the last resort, if my noble friend puts me to the test, I shall support the Government. I shall consider the issues. I shall feel great reluctance to take any step which would damage the real and lasting values of this House. As I think and pray about these matters, I shall remember that I had the great honour of being appointed Leader of this House by a Labour Prime Minister and was brought into the House before that by a Labour Prime Minister. Without the Labour Party I would have been and would be politically nothing.
7.20 p.m.
The Earl of Clanwilliam: My Lords, it is a daunting task to follow the noble Earl after his eloquent and charming speech. He sits as a Baron in two respects: first, as a hereditary Baron of his own creation and, secondly, as the fifth Baron created in 1821. That was the same year as the creation of the barony for which I sit. I said that I could not speak with the same charm and eloquence of the noble Earl and I am afraid I shall be more controversial. However, anything which removes the right of the noble Earl to sit and speak in this House would be to its great disadvantage.
The removal of the hereditary rights of the hereditary Peers raises the question whether it is the intention to score party political points or whether it is to weaken the power of the upper House. Neither seems to me a positive contribution to the constitutional question. It is the privilege and duty of the hereditary Peers and of all Peers to ensure that a viable alternative is secured in place of them. Without infringing the customs of the House, perhaps I may mention the maiden speeches of the noble Lords, Lord Butler of Brockwell and Lord Norton of Louth, both of whom pointed out the need to ensure that a viable alternative is secured in place of them. It does not seem to me from the proposals put forward in the gracious Speech that such a position will be secured in the course of the deliberations of the Royal Commission. As has been adequately mentioned already, it may take so long to come to a conclusion that there will have been established either a unicameral legislature or a committed quango of acquiescents.
The noble Baroness the Leader of the House pointed out that there would be a tight timetable. My noble friend Lord Cranborne asked that the subjects to be covered in the White Paper should be clearly and eloquently pointed out today. It is time to have that because without it there can be no realistic discussion of the future course to be taken.
As the noble Baroness, Lady Strange, pointed out, it was noticeable that during the gracious Speech there was a cheer--to put it politely--if not exactly barracking from some Members of the other place when the point came to mention the removal of the rights of hereditary Peers to sit and vote. It may have been bad manners, but it was also a significant precursor to the assumption that there would be no more interference with their wishes, regardless of the constitutional consequences, of which this House is the guardian.
For that reason, it is likely that there will be considerable resistance to the legislative programme until it is certain that there will be an established form of reform for both Houses. It is worth recalling that the 1911 Act, which fell by the way, insisted on,
- "a strong and effective House of Lords".
That brings me, by a somewhat circuitous route, to the second point I wish to mention: the disenfranchisement of the Irish Peers. Incidentally, they have the same rights as Scottish Peers from a treaty more recent than the Act of Union; indeed, under the auspices of Castlereagh and Pitt in 1800. This may not be the time to ask for reconsideration of their plight, but it occurs to me that this may be the last opportunity to mention the slight they feel has been put upon them. If there is to be any form of compromise, then their position should be considered within that compromise.
The Peers of Ireland owed the creation of their peerages to English sovereignty. From the 13th century to 1800 the two Houses in Ireland and England developed along broadly parallel lines. Under the terms of the Act of Union of Great Britain and Ireland in 1800, the Irish Peers consented to the elimination of their 150-seat assembly in Dublin in return for 28 seats in the more powerful House of Lords at Westminster, to be filled by an election among themselves.
The Act set out in considerable detail the manner in which,
- "the twenty eight lords temporal to represent the peerage of Ireland in the peerage of the United Kingdom",
It is not that they purport to represent the people of Ireland but that they are the inheritors of a personal right secured to them by law. In my submission, it is proper that the matter should be raised at this time and appear on the records of the House. There is much additional detail which I shall refrain from extrapolating as the matter has already been before all-party committees, especially in one instance the Committee of Privileges in its report of 5th July 1966 when the noble and learned Lord, Lord Wilberforce, dissented. I see that the noble and learned Lord is in his place. He kindly agreed to allow me to use his name.
It came up again in 1971. The Joint Committee on Consolidation Bills voted only by a majority to deprive the Irish Peers of their rights. The father of my noble friend Lord Massereene--my noble friend is not in his place--and the noble Lord, Lord Rees, dissented from the findings of the committee. I submit therefore that this is not an open and shut case. There has been dissent.
7.27 p.m.
Viscount Mountgarret: My Lords, I expect your Lordships will be pleased to know that the majority of the speech I wished to make has been torn up, not least as some of the points I wanted to make have been clearly outlined this afternoon. That was done notably by the noble Earl, Lord Clanwilliam. I was interested in his comments on the Irish Peers; we are both members of the Irish Peers Association. That line might commend itself for recommendation by the proposed Royal Commission.
Like one or two previous speakers, notably the noble Lords, Lord Vivian and Lord Harmsworth, I regret that I was unable to attend the magnificent debate that your Lordships had last month, simply because I could not be here for the two days. I could do one but not the other. It only goes to show that there being about 130 speakers plus another 35 this afternoon on the one subject seems to demonstrate the enormity of the subject put before us by the Government.
One constructive point which came out of the first debate was that, I think I am right in saying, the Government then realised that the matter should be considered in depth by a Royal Commission. We heard in the gracious Speech that a White Paper would be published. That is a tremendous step forward.
I support reform of your Lordships' House, as I believe do most people on all sides of the House, but completely to abolish something that has worked, is working and will go on working is very regrettable, to put it mildly.
I have a good deal of sympathy with the Leader of the House and the noble Lord, Lord Ponsonby, who referred to the in-built Conservative majority and how unfair it was given the perceived allegiance of hereditary Peers to that particular cause. It cannot be much fun always going in to bat knowing that one faces the best bowler in the world and one will be out without scoring a single run. I believe that this is the root cause of why this matter is being discussed. If one had the privilege of being able to issue strong Whips to enable legislation to be frustrated or pushed through, depending on which side of the argument lay the Conservative Party, we would not be in this position and the Government would find the situation tolerably acceptable. They would not care to admit it but I believe that they could live with it. That would be a tremendous step forward in making this House more publicly acceptable in areas where many people probably find it unacceptable.
One must remember that the ultimate role of your Lordships' House is to prevent the Government from prolonging their life and, in the end, to act as the guardian of the constitution. It stops any government--I do not mean this particular one--with a large majority from undermining the constitution. That was ably demonstrated last week. Although a rather unedifying spectacle took place which I do not believe enhanced British politics very much, we were absolutely right to do what we did. That shows the definite need for a Chamber such as this in a modified form. But to try to consider all of the various options open to us--everyone has excellent ideas, all of which deserve recognition and consideration--is perhaps too much for a debating Chamber in one debate, two debates or what you will and to get the answer right.
I am extremely grateful that the Government have agreed to set up a Royal Commission. They are to publish a White Paper setting out their ideas which are to be worked upon. Surely, the Royal Commission should operate from scratch and should not try to come up with something that we have already debated and that may be part of an approach that it may or may not recommend. We cannot legislate on something until we are aware in depth of the arguments and the reason why this, that or the other idea is acceptable.
I urge the Government to think about this very carefully. In any organisation it must be wrong for management to do away with something before it has the slightest idea of what to put in its place. I do not share the perceived fears that the Government may get rid of hereditary Peers and then sit back and do nothing. That would reflect lack of faith and trust, and I do not
believe that the Government could conceivably behave like that. That fear should be treated with caution. But we must have the results of the Royal Commission, it having listened to the many arguments advanced by noble Lords the other day and today. We should be able to attend the commission and put forward our points. Let the commission consider the matter and come up with an answer. If the answer took a slightly different route from that which I would like--the noble Earl, Lord Clanwilliam, has hit the nail on the head--I would accept it. I would feel on that basis that it had been properly considered. But I cannot accept, and I hope that this House will not accept, that there should be any change of this House in any shape or form unless and until we have heard the recommendations of the Royal Commission about what should happen having heard all the arguments.Perhaps the Government should also bear in mind that with this House they are onto a very good thing. After all, we conduct ourselves reasonably well. There are only a very few occasions on which we find it absolutely necessary to put our foot down and frustrate government business. If the hereditary Peers were not here and the House were composed of life Peers the whole concept of the Salisbury convention would be ignored. There would be no reason for it; it would be far more democratic and therefore the convention would not apply. What would happen then? The other place would have far greater trouble with a House made up of life Peers and nominated Peers. To a great extent the hereditary Peers would be of great use to the other place. A good number of people may not agree with that but I am sure that that is so.
If power, which is finite, is transferred by one means or another to this House--that will happen inevitably if the hereditary element disappears--it will reduce the powers of the other place. I have never heard of anyone who wants to give up power. What about the farmer? Has one ever heard of a farmer who voluntarily gives up one square yard of land, let alone anything else? By the same token, I do not believe that the other place would be very happy to wake up one morning to find that some of the powers that it presently enjoys have been slightly eroded.
I am not very moved by the perceived idea that because this is an unelected Chamber it has no right to act according to the dictates of conscience and what it believes to be correct. I do not believe that it is possible to have it both ways. In Brussels the European Commissioners, who are responsible to no one, spend a good deal of time dictating to this country what it can and cannot do. Conservative governments, Labour governments and Liberal Democrat governments--if they are ever in power--have to go along with those instructions that come from an unelected body. They are not patriots and they are not British. Why is the country prepared to accept that but not the contributions and suggestions made by an unelected House, which at least is made up of patriotic British people? That is a point of view.
Many points can be made but I believe that they are better made to a Royal Commission. I echo the comments of the noble and learned Lord, Lord
Wilberforce. Please let the commission consider the matter and then take action. Please do not take action first.7.39 p.m.
Viscount Brentford: My Lords, subject to one question on a related matter, I do not propose to follow the noble Viscount down the path of discussing the future of this House. Primarily I wish to make a few comments on the legal issues raised in the gracious Speech.
First, the gracious Speech refers to modernising legal aid. I have no problems about a reformed legal aid system. But I should like to make sure that any reform means that the legal aid system will be cost efficient, competent and give choice to the consumer. When the Legal Aid Board considers the awarding of contracts I hope that it will make sure that the whole country is covered and that there are no gaps. The right to choose a solicitor is surely a basic human right for a member of the public. While I fully endorse the plea that any change should ensure the highest professional standards, I hope that the Government will encourage all firms that reach those standards to apply for a franchise to give the maximum choice to the consumer.
Secondly, I fully endorse the modernising of the youth courts and the power to refer young offenders to a special panel with the possibility, if they are prepared to plead guilty and admit the offence, of an apology to the victim and perhaps community service as punishment. In your Lordships' House I have fully endorsed some pilot schemes along those lines. I believe that it is extremely valuable to bring the offender face to face with the victim. That will be of real psychological help for the rehabilitation of the offender and in giving support to the victim. I appreciate that it will not always work, but I strongly support the move to allocate the young offender to a special panel which can make a judgment.
The gracious Speech refers to the protection of vulnerable witnesses. From some of the stories that I have heard, and while going round the courts and prisons in my county of Sussex, I have appreciated the need for that. From information that I have gathered, many judges do not treat witnesses the same, even in the same legal area. There is a case for uniformity. I have spoken to some judges who seek to bring uniformity at least to their own area. We need steps to protect vulnerable witnesses. I am glad to see that aspect referred to in the gracious Speech.
I hope that the noble and learned Lord the Lord Chancellor will consider one small matter in his review of crime. It relates to the state of mind and health report, about which the noble and learned Lord the Lord Chancellor will know, although non-lawyers in your Lordships' House may not. When a person who has psychiatric problems commits a couple of offences, let us say within a fortnight, he is entitled on each occasion to demand a state of mind and health report. If it is made twice within a fortnight, the report will be exactly the same. It is a great waste of time and expenditure. The
Government can economise on their expenditure by changing the rules so that it is not binding on a court to award a right to such a report to an offender.The noble Baroness, Lady Jay, spoke about human rights. There are references to human rights in the gracious Speech. I understand that at present the United Nations is considering a human responsibilities charter. I believe that that would be a potent balance to our emphasis on human rights. I welcome the move by the United Nations. I hope that the Government will give consideration to incorporating a human responsibilities charter into our law as they have done the human rights charter. I believe that that is needed to balance the present system.
I have one question on constitutional matters. It does not relate directly to the future of this House. In his admirable address yesterday, the noble Lord, Lord Clinton-Davis, spoke of the manifesto commitment to make Parliament more democratic. If I understood the noble Baroness, Lady Jay, correctly, she said that the Royal Commission will consider the role, function and composition of the House of Lords. My question to the Government is this. At the same time, could not the Royal Commission also consider the same qualities for another place? If we are to have the great procedure of a Royal Commission, could it not endorse the argument put forward by the noble Lord, Lord Clinton-Davis, to make Parliament more democratic? In his admirable philosophical discourse on democracy today, I wondered whether the noble Lord, Lord Judd, would make the same point: that we need to look at another place as much as at this place. For instance, is the balance of power between the Executive and the legislature in another place correct for the 21st century? I question that.
Members of the general public frequently refer to the use of the guillotine in another place. I know that governments of every colour enjoy the use of the guillotine, but members of the electorate are appalled that another place can be stopped from discussing and considering legislation by the Executive use of the guillotine. I should like a Royal Commission to consider such questions along with issues relating to the role, functions and composition of your Lordships' House. That would be valuable in promoting democracy which, as I understand it, is what this Government wish to do.
There are many valuable issues in the gracious Speech. I do not agree with them all, but I support the legislation that I believe is beneficial to this country.
7.48 p.m.
The Earl of Listowel: My Lords, in the past hours I have been experiencing the terror of someone who realises that the speech he has prepared does not meet the high quality exhibited by his elder Peers. I therefore say that I have learned much and look forward to reading Hansard tomorrow.
I make one request. Could the Government please commission a business consultancy to produce a report on the contribution that active hereditary Peers make in this House; and the likely consequences of their removal?
7.50 p.m.
Baroness Wilcox: My Lords, as your Lordships know by now, I have a particular interest in consumer issues. I listened carefully to the gracious Speech to hear what good improvements the Government will be making for consumers. I know that there are Members of your Lordships' House who detest the word "consumer". Earlier tonight I had it explained to me over two sherries in the bar, so once again I shall define a consumer. A consumer is each man, woman and child in this country--your Lordships and me--when at some time during each day we use or buy goods or services, whether publicly or privately provided. It is not a citizen's issue; it is a consumer issue. I hope that your Lordships will bear with me and accept the use of the word which some of you find so difficult.
I looked at the gracious Speech to see what good work we could welcome. Some of the work that has been done by our new Government is very good indeed. We have on the statute book a reformed competition policy and we on these Benches have supported it. I was grateful for some of the amendments which were made. We have had White Papers on freedom of information and the Food Standards Agency and utility regulation reform. Therefore, together with many others, in particular the National Federation of Consumer Groups and the National Consumer Council, I am very disappointed that a freedom of information Bill will not be reaching the statute book this Session. I had hoped that this Government would build on the efforts of successive governments who paved the way for a freedom of information Bill this coming year.
The first significant move was in 1977. Then, under the government of the noble Lord, Lord Callaghan, the Croham Directive was issued by the Head of the Home Civil Service. It created a government policy to publish as much as possible of the analytical material used as the background to major policy studies. While chairman of the National Consumer Council, appointed by the Conservative government, I was free to lobby for more openness from that government--successfully.
The next important development towards freedom of information came during the previous Conservative government. The Prime Minister, John Major, introduced an open government code which came into effect in April 1994. The code set out circumstances in which the government would volunteer information and those in which it would produce information on request to individuals and organisations. People who were refused information under the code could appeal to the Parliamentary Ombudsman and ultimately to his Select Committee. The code was an important step towards opening up government to the scrutiny of the governed. But it operated at the discretion of the government department concerned, and then ultimately at the discretion of the ombudsman. Under this system, which 18 months on still operates, the Government still hold the cards because of its voluntary nature and because the ombudsman has no power to force the Government to provide information.
The White Paper, Your Right to Know, published at the end of last year, proposed significant improvements. It would give people a statutory right of access to all
information held by government and their agents unless there was a compelling reason not to disclose it; for instance, in respect of the defence of the realm. This would enshrine an individual's right to information in law. The proposed freedom of information commissioner would have the right to order disclosure and impose penalties for non-compliance.I wish to give the reason why I, a Conservative, believe that freedom of information legislation is so important for everyone. I will use the example of medicines. In the United Kingdom, the decision about whether a drug should be available is taken by the Committee on the Safety of Medicines. Suppose that I am suffering from a condition for which a new drug is on the market. How do I decide whether to take it? What information will I have available to me on which to base my decision?
My doctor will receive a brief data sheet basically saying who the new drug is intended to help, who should not take it and how it should be used. If I am lucky, I might have a glimpse of that data sheet, but normally I will have instead a patient information sheet with general information about taking drugs and some very basic information about taking this one. Neither I nor my doctor will ever see any information about the trials of the drug or the thinking behind the decision to licence it, including what negative results have been disregarded and why. And, perhaps more importantly, those publications such as Health Which? or the Drugs and Therapeutic Bulletin, which could be providing information to help me decide, have access only to what the doctor receives.
By contrast, in the United States, which already has a Freedom of Information Act, anyone who requests it can get much of the information used by the regulator when deciding whether or not to licence the drug for use. And the regulator will also supply a justification for the licensing decision. While I myself may not want to plough through the hundreds of pages of the licensing information, I would know that the American equivalent of Health Which? or the Drugs and Therapeutic Bulletin had access to the information and would publish it in a way that I can understand. When in this country a drug which I have been taking for perhaps the past 10 years is withdrawn I cannot know or be told why I cannot use it any more. I may be very afraid of what has happened to me in the past 10 years, but ridiculously I can fax to the United States and within seconds receive across the airwaves that information--and that is not from my own country but from a foreign land.
Back in the UK, the regulator will tell me if the drug is safe for me. That has two implications. First, I believe that I have a right to be reassured that the regulator has taken decisions wisely. I can only really have that confidence if the information on which the decisions are based is publicly available. Secondly, once that decision has been made and the medicine which can help my condition is on the market, I need the fullest possible information about all the potential consequences of taking it. Only then can I take an informed decision. I am then "empowered"--something for which the noble Lord, Lord Judd, pleaded in a democracy.
Your Lordships may ask what is wrong with the ombudsman taking the decision. Who better than a regulator to decide what is safe? But medicine is not an exact science. There is no absolute safety. A decision to license a drug for use is not based on whether it is absolutely safe but on whether it is safe enough. It is often a political judgment as well as a scientific decision. In relation to drugs, decisions are often based on the absence of evidence that the drug is harmful rather than on the presence of guarantees that it is safe. The people of America can freely know that information, but in the United Kingdom--in my country--I cannot.
The uncertainty for the consumers about whose interests are given priority is compounded by the fact that the Committee on the Safety of Medicines does not contain one consumer representative, although I understand that from next year there are to be two out of a total membership of 34. That is a very closed shop!
A good freedom of information Act would make regulators and government much more accountable to the people on whose behalf they regulate. It would allow us to see the process of regulation, warts and all. If we had a better appreciation of that imperfect science, perhaps we would be more careful and perhaps we would read more carefully the instructions we are given and work in tandem with regulators in order to minimise the risks.
I am sorry that the Government appear to have lost their appetite for freedom of information. If they bottle out by giving our people a weaker Act than the White Paper promised, or if they let freedom of information quietly slip off the legislative agenda, we will all be the poorer in two ways. First, consumers will not have access to vital information to help them make proper decisions about important aspects of their lives. Secondly, the myth will be perpetuated that regulators, being all knowing and all powerful, can be left to make important decisions for the people of Britain while we sit back, childlike in our innocence.
In a world of ever-higher technology, rapid growth in our medical capabilities, vast multi-national enterprises, mass consumption on an even bigger scale and increasingly complicated investment opportunities, that myth cannot be maintained for much longer.
Over several decades, but notably more in opposition than in government, the party opposite has spoken with a great passion about the need for open government. But rather like an unfortunate groom, just as this Government's enthusiasm for the consummation of a partnership with the consumer is reaching its peak, their passion appears to be deserting them. I warned that the result is likely to be deep disappointment for the bewildered bride. For the sake of all Britain's consumers, I hope that the Government rediscover their ardour--and soon.
8 p.m.
The Earl of Halsbury: My Lords, in addressing the House, I remind your Lordships that I have no interest to declare. If I am abolished tomorrow, well and good. If I am not, nature will do it in any event.
I wish to refer to two politicians whose speeches I have studied: Robert Walpole and Edmund Burke. They gave much attention to the representation of interests but they did not give any sort of exhaustive analysis of the ambiguity in both those words.
First, I take the word "representation". We say that a sample represents the bulk from which it is drawn. That is a short-term affair because the bulk from which it is drawn in nature will be changing the whole time. Your Lordships are well aware of the results of opinion samples in newspapers. From time to time, there is a surprise because public opinion has changed completely from what it was on the last occasion.
Then there is the other sense of the word "representation" where a barrister represents his client in court. That is a totally different meaning from the sampling of a procedure. That is a professional meaning of the word "representation".
As regards interests, there are two kinds of interests--short-term interests, which is what people want, and long-term interests which is what they need. An alcoholic wants a drink. That is a short-term want that can be serviced by the nearest bartender. What he needs is drying out. That is a long-term professional business.
If we then combine the two, we have a model for the House of Commons and the House of Lords with the House of Commons tending to people's short-term wants and the House of Lords tending to their long-term needs. One must note that people are frequently reluctant to take good advice when it is given. Therefore, the House of Commons would have the last word when wants and needs conflict.
How can we avoid the nomination to this House falling into the hands of one person? We can do that if, following the abolition of the hereditary peerage, we start to build a House from the professions.
I have found some figures. I must confess that they are about two years old, so they are probably out of date. However, 225 hereditary Peers were members of one of the chartered professional institutes out of a total membership of 527. Therefore, approximately 50 per cent. of the membership of this House has a professional standing and half of that comprises hereditary Peers. Their average attendances compare favourably with party attendances in the House. My statistics show that 34 is the average attendance of a professional man in this House. That compares with 30 for the Conservatives, 41 for Labour, 37 for the Liberal Democrats and 27 for the Cross Benches. In the future, we may turn the House of Lords into a senate of the professional classes, thus giving the patronage such a wide distribution--there are more than 91 chartered institutes--that it can never get into one pair of hands and end up virtually a unicameral legislature because, of course, that would be on the way to dictatorship. I agree very much with the picture painted by the noble Lord, Lord Waddington, about the dangers of that. We must avoid it at all costs.
So the model I have given is a model for the eventual Royal Commission to study and to fill in the details which I have only sketched for your Lordships' House.
In the meantime, I must deal with things as they are. One of the works I commend to your Lordships for study is a book by a German sociologist, one Helmut Schoek. It is an extremely large, fat and expensive book which I bought and gave to the Library. At least one person has borrowed it because I cannot get it back again to check the quotation for the time being. But Schoek has a very high reputation and his generalisation at the end of his study on envy is that equalitarian societies are envy-ridden societies. That is something from which we must suffer. That is why the hereditary House of Lords has become a target for envy, much more than it was in the past. Exactly how we are to cure that manifestation, I do not know.
In conclusion, I was rather struck by what seemed a complete irrelevance in the speech of the noble Baroness, Lady Jay, in the last Session of Parliament when we had the two-day debate on the constitutional future of the House of Lords. She suddenly threw in, as though it were a criticism of the hereditary Peers, that 45 per cent. of them had been at Eton. Exactly what was the relevance of that I cannot imagine. However, out of curiosity, I started to check on the statistics of Prime Ministers from Robert Walpole to Harold Macmillan. I found that 41 per cent. of them had been at Eton which compares favourably with the 45 per cent. quoted by the noble Baroness. I do not know what inspired her to that quotation and I am sorry that she is not here to answer for herself. She has a copy of the statistics. I have given them also to all leaders of parties in both Houses and to my friends. Having said that, the time has come to sit down and just hope that things come out all right in the wash.
8.7 p.m.
Lord Harding of Petherton: My Lords, due to other commitments, I too was unable to speak in the two-day debate on the reform of this House which took place in the last Session. Therefore, I am afraid that I shall talk about reform of this House and I hope that I shall not bore your Lordships in so doing.
As an hereditary Peer, I recognise that it is time that we departed as legislators. Indeed, as was stated implicitly in the Parliament Act 1911, that has been so for the past 87 years. It is not the fault of hereditary Peers that they have remained in Parliament for so long. If blame should be apportioned, the fault is with the governments and MPs over those years.
The difficulty has always been to devise a membership of the second Chamber so that it has legitimacy and yet does not take away the overriding power of the House of Commons. Many believed that by instituting life Peers, the problem was solved. Some still believe that. I am afraid that I do not share that belief.
This House as at present constituted is very good at revising legislation. Not all government amendments are as a result of the second thoughts of Ministers and civil servants. Academics speaking about this House often do not know what they are talking about and they get it wrong. Many amendments are as a result of Peers from the other two parties and the Cross-Benches forcing the
government of the day to produce their own amendments. That is particularly so when the government have a small majority in the other place, which happened before the last election. Government Ministers and their civil servants are loath to accept amendments other than their own. However, when it comes to contentious legislation, because of the large hereditary element in this place, the House of Lords cannot do its job properly. That has become glaringly obvious in recent weeks over the closed list system in the European Parliamentary Elections Bill. Because of its make-up, large numbers of the general public and respected political journalists such as Mr. Peter Riddell (who talks a great deal of sense), believed that the House of Lords had no right to hold up that Bill, even though they may not like the closed list system; even though it is quite legitimate--as other noble Lords have said much better than I--under our constitution that the House of Lords can only hold it up for a year. It was seen as an outrage.We must have an upper House that is perceived as legitimate enough to be able to insist on amendments and, if necessary, to hold up a Bill for a year. Whatever the composition of this House, there will always be governments and their supporters--in the Commons and outside--who will be outraged at the Commons being defied and having legislation held up. However, the general public will not be concerned if the House of Lords is looked upon as a legitimate check on the government of the day.
Obviously, a reformed House should not do that too often. As presently constituted, this House has rarely sent back amendments or held up Bills such as the War Crimes Bill and, more recently, the European Parliamentary Elections Bill. The amendments insisted upon must have wide support with respected opinion in the country. As the Leader of the House said, if not today during earlier exchanges, why have not the Conservatives (my party) done this before? I would have supported my party leadership if they had. But that is easier said than done. As the Labour Party is aware, it must carry its supporters with it. At the moment the Labour Party seems to have solved that problem and is managing to do it with a small leadership. But for how long? In the end the party's supporters must be brought along.
Conservatives--with both a big "C" and a little "c"--have great affection for the House of Lords as it is presently constituted. I spoke to a Conservative audience three-and-a-half years ago in Dorset and said to them that hereditary Peers should go and the House of Lords should be reformed. It did not go down at all well. If I had been well known or a thrusting ambitious young Turk, my line of argument might have produced results. However, as a Back-Bench Peer it did not seem to me that I would do any good trying to change traditional attitudes.
That is why my party leadership has not wanted to tackle the problem in recent years. I would have liked my right honourable friend John Major, when he was Prime Minister, to have done so, but he would have had to carry Conservative opinion in the country with him. The easy part would have been to carry both life and
hereditary Peers and MPs; the difficult part is to carry Conservative voters and conservative thinkers. I have talked to many people about the reform of the House of Lords and was often told, "We like this place". They did not necessarily vote Conservative in the last election. They like the House as it is. Opinion polls show that many people throughout the country--perhaps even those who vote Labour--may not like what the House of Lords does, but have affection for it.I have great sympathy with those who say, "If it works, don't fix it" and "No change for change's sake". But the present arrangements do not work and it is important that they are fixed. I may be accused of hypocrisy in holding those views. But I have been interested in politics since I was a boy and have therefore been extremely lucky to be able to come here regularly over the past seven-and-a-half years. As my noble friend Lady Strange said, to me it is a perfect place; it has a marvellous atmosphere; but as a hereditary Peer I recognise that it is an anachronism, and has been for a long time.
The Prime Minister said that he will divest his office of most of the appointments of life Peers to the House of Lords. That is welcome. We will take him at his word, though we must also see that it is laid down by statute. In my opinion, that is still not good enough. The upper Chamber must have a substantial elected element. As my noble friend Lord Dixon-Smith said this afternoon, it may be that a wholly-elected second Chamber is the only real answer in the end. However, that is not realistic in the foreseeable future. Hereditary Peers may go with regret and resignation; I cannot see life Peers leaving so easily.
I would favour a partly-elected upper House as an interim measure. Although I am totally against proportional representation for election to the House of Commons, I do not see why it should not be applicable for Members of the upper House--but no closed lists. The Government say that they are determined to reform the House of Lords in two stages. That was stated in the gracious Speech. I urge the Government to be wary of doing that and to think again even at this late stage. Reform should be undertaken in one go. I will support my noble friend Lord Cranborne in any parliamentary action he takes and advises us on these Benches to take to force the Government to change their mind. However, I am not in favour of the proposal of my noble friend Lord Onslow to act as hooligans. That is not the way that Members of your Lordships' House should act and I am sure that my noble friend Lord Cranborne will not be doing that. I shall trust his judgment.
With the election of the Labour Government with a large majority and a mandate to do away with hereditary Peers, we on these Benches must face reality. However, as far as we are able, we must insist that proper reform takes place which preserves this House as a revising Chamber with a legitimacy recognised by the majority of the electorate. I look forward to the Government's White Paper and the setting up of the Royal Commission.
8.17 p.m.
Lord Phillips of Sudbury: My Lords, I wish to speak on the legal affairs aspect of this debate which has so far not attracted a great deal of comment. Yesterday in the gracious Speech there appeared the commitment:
- "My Government will introduce legislation to modernise legal aid to make the system fairer and more cost effective; to provide for a community legal service; and to make other changes to overhaul the justice system".
- "citizens [will have] better access to justice in our courts".
As a still practising solicitor after 34 years' qualification, who spent five years in a general country practice before setting up my own firm in London, I am grateful for the opportunity to speak on what seems to me a crucial underlying issue vis-a-vis justice; namely, access. My preoccupation goes back a long way. I seem to recollect that the Lord Chancellor and I were in attendance at a conference in Oxford in 1967 or 1968 which preceded the launch of that seminal Fabian pamphlet, Justice for All. Whatever I may say by way of criticism, I do not doubt the just and good intent of the proposals which the Government have put forward. Afterwards I was the first chairman of the Legal Action Group.
I make two things clear. The first is that, showing proper concern for the cost of legal aid to the taxpayer and with the ballooning complexity of ordinary citizens' legal lives, there are no easy answers to legal aid improvements, especially if there is no extra money. In the present year the net cost of all legal aid will be £1.6 billion, split roughly one-third each in respect of crime, family and civil legal aid. In fact last year legal aid expenditure was less than budget, and in three years' time the Government estimate that it will have dropped to £1.55 billion. Given that this sum is not inflation adjusted and that the cost of running legal services, as with health, tends to run ahead of inflation, that represents a significant real decline in solicitors' income.
If calls on the system go on rising--and last year they were three per cent. up at 2.3 million cases--the shoe, already pinching, will pinch even more for the hard-pressed legal aid solicitor. Rates of reward for legal aid work have fallen further and further behind inflation, and even more behind remuneration for private practice, particularly for commercial firms. For example, the hourly rates for giving advice under what is called green form legal aid work is rather less than the typical central city firm will charge for the time of a trainee solicitor. By and large, legal aid work is hard, intensely pressurised and attracts little public notice, thanks or esteem.
Many are giving up, heading for easier pastures, and I predict that many more will do so if these reforms come to pass unaltered. The thrust of the Government's proposals is to seek to control legal aid, both as to cost and quality, principally by means of what is called
exclusive contracting. Over five years ago the previous government introduced franchising of legal aid, giving firms which took out a franchise--and there was no exclusivity, importantly--some modest advantages over those who simply did legal aid work on a case-by-case basis, particularly in terms of more regular payment.The Government wish to take this process a crucial stage further and over time propose to confine legal aid work to those firms which comply with the whole range of Legal Aid Board criteria and tender for the work covered by exclusive contracts at a price which the board is willing to accept. The overwhelming effect of the exclusive contracting proposals will be an unprecedented and dramatic reduction in the number of solicitors and firms doing legal aid. Whereas at present there are no fewer than 11,000 solicitors' offices undertaking some legal aid work, the Legal Aid Board proposes that only 2,000 to 3,000 exclusive contracts will be awarded to solicitors in the family case category, and a mere 100 to 200 contracts to cover other areas of civil work.
On top of that, 200 to 300 contracts are expected to be awarded to charity providers of legal services--and I wholly applaud that--the majority of them in the field of death and welfare benefits. The Prime Minister was certainly right when he said legal aid would be radically transformed. Who could have believed that it would be at the expense--not just the choice--in a minority of cases of any practical access to lawyers at all?
Yet geographical access, I need hardly say, is vital. The issues we are dealing with here have some similarity to the plight of the general store in villages or country towns without the countervailing benefit of big firms panting to snaffle their business at cheaper rates. The reality here is the very reverse. The larger firms of solicitors have much bigger fish to fry at far, far higher fees. When Sir Hartley Shawcross, as he then was, moved the Second Reading of the Legal Aid and Advice Bill in 1948, he said that the Bill was,
- "the charter of the little man to the British courts of justice."
In response, the Legal Aid Board will say, as reported to the Lord Chancellor last month, that access is really not a problem. What it calls "outreach work", particularly via telephone services, is to be the substitute. The board claim that,
- "these outreach services may provide us with a means of ensuring access in certain rural areas and for specific client groups."
Secondly, the researchers were not asked to look at the results of the advice by telephone from the client's viewpoint, nor at the objective quality of the advice given. In short, they did not look at actual cases but at systems. The whole tendency of the proposed exclusive contracting reforms and, to be fair, some which have preceded them, will be to create a two-tier and ultimately two-class profession--something which the original architects of the legal aid scheme strove mightily to prevent.
Already many firms which undertake a significant amount of legal aid work are asking: is it worth it? Even if they are able to meet the new criteria for exclusive contracts, the bureaucracy, the inflexibility and the demands of the new legal aid regime are increasingly being seen as too onerous. Perhaps I may read briefly from a letter I received only today from a practitioner in Gravesend, Richard Miller, chairman of the Legal Aid Practitioners Group, which comprises 600 firms, and who therefore knows what he is talking about:
- "This firm is a typical High Street practice. We have one office, four partners, 10 other fee earning staff and around 20 support staff. We are the only firm in this town which holds a welfare benefits franchise which means that we have demonstrated quality standards in the advice we give in this complex area. At any one time, we are handling between 60 and 80 welfare benefits matters of varying degrees of complexity. We probably handle at least 200-300 cases in the course of a year. Under the new scheme being proposed for next year, there is a requirement that the person in charge of the welfare benefits department should personally carry out at least 350 hours of work on welfare benefits matters. Because the rates of pay for this work are so low, the only economic way to do it is to delegate the more mundane aspects of the work to more junior staff. The new scheme prevents this from being done. The result of this is that when exclusive contracting is brought in, my firm will probably not be able to apply for a contract and this firm's years of experience in dealing with welfare benefits matters will be lost to the local community."
That is a pretty sobering and depressing letter. What one is seeing, I believe, is that the firms currently doing legal aid, which are supported by more profitable work, will no longer be able to rely on that as the scheme develops and the effects of it have their impact. They will fall further and further behind the profitability of private client practitioners, and the chances of this or any other government devoting significantly more funds to the legal aid scheme, particularly to improve the remuneration rates for the lawyers involved, can be more or less written off. This is all too likely to lead to demoralisation and a decline in standards, quite apart from reduced geographical access. No amount of externally applied quality assurance standards will be able to remedy that.
The belief of those on these Benches and my own conclusion, based on a great deal of knowledge and discussion I have had with other members of my profession in legal aid practices, is that the total impact of exclusive franchising will be to produce a dramatic reduction in access. I put it to the noble and learned Lord the Lord Chancellor that to reduce the number of solicitors' firms available for legal aid from the current
11,000 to a mere 3,000 has obvious consequences. I very sincerely hope that even at this stage there will be a serious review of that central proposal and its effects.I, and I am sure many in the House, will be wholly behind the Government's aspirations vis-a-vis a community legal service. It has been argued for by Liberal Democrats and lawyers for a very long time. We shall do everything possible to make it an effective reality. But on the issue of access there seems to be absolutely no doubt but that the consequences will be a disaster for the most vulnerable sections of our community and in time will lead to a two-class solicitors' practice and profession with predictable consequences for those who most need those services. It is a dry subject. I remind the House that behind legal aid stands a concept built into the very bones of this place; namely, the notion that, as Magna Carta decreed,
- "to no one will we sell, deny, or delay right or justice".
8.32 p.m.
Lord Marlesford: My Lords, in his opening speech my noble friend Lord Cranborne drew attention to the number of times that the word "modernise" was used in the gracious Speech. There is a danger that if the Government go on using that word as a cloak for unsound policies it will become like the word "peace" in the early days of the Cold War. They will discredit the word and discredit an admirable purpose.
It seems that the Government are seeking to race forward at such a pace and on such a wide spectrum in changing our constitution that there is a real danger that our very fragile and complicated constitution could be reduced to a shambles. That would destroy one of our historic strengths. For centuries the British constitution, from Westminster to judicial review, has been most effective in protecting us from tyranny and in protecting the individual from ill-treatment by the Executive. If it were harmed that would diminish our influence abroad. I remind the Government--although I am sure they are fully aware of it--that British influence on the world scene is now far greater than our economic weight alone would justify, and long may it be so.
As regards House of Lords reform, I myself start from five propositions. First, a second chamber is essential. Secondly, the present House of Lords does a pretty good job in practice. Thirdly, we should not expect an elected chamber to do a better job. Indeed, I contend that it is likely to do a less good job. That would apply even more to a partly elected House. Fourthly, to distinguish between the legitimacy of hereditary and life Peers is wholly spurious. Fifthly, we should recognise that the Government are quite determined to seek to end the right of hereditary Peers to sit and vote in the House of Lords.
In the short time I have at this late hour, I shall focus on the third, fourth and fifth of those propositions. With regard to an elected second chamber, I have a real worry about the legislative quality of the House of Commons. In the time I have observed it, it has deteriorated and it is continuing to deteriorate. That deterioration can be measured in two ways. First, there is the decreasing independence of view and action; and, secondly, the
falling level of expertise and experience from outside. Partly that is the unavoidable consequence of large majorities, which applies to any government. More seriously, it is the product of the overkill of the early Nolan philosophy, the apparent assumption, certainly by the media and to a most regrettable extent by the Nolan Committee, of the infinite corruptibility of MPs. That has already introduced conditions of membership which are making many who would previously have contemplated a parliamentary career unwilling to do so. A distinguished Member of this House, a Cross-Bencher, said to me yesterday, "Treat MPs like pygmies and you get pygmies". I hope that the new Neill Committee will be less reactive to tabloid pressure.The concept of legitimacy put forward so frequently by government Ministers is clearly flawed. Hereditary Peers are constitutionally every bit as legitimate as life Peers. Frankly, in terms of democracy, it is hard to see more than a shade of difference. Certainly, I have never seen myself as a jot more legitimate in purely democratic terms than my hereditary colleagues. Until there is a legislative change, hereditary Peers are legitimate and should be treated as such. I echo the argument used by the noble Lord, Lord Shore, last week and so powerfully reinforced by the noble and learned Lord, Lord Ackner, this afternoon. Therefore, I ask that from now on we hear from Ministers no more of the legitimacy argument about hereditary and life Peers.
However, I am prepared to accept that the right of hereditary Peers to sit and vote in the House of Lords should be removed. Therefore, I support those words in both the Labour manifesto and the gracious Speech. The reasons I am prepared to go that far are: first, the theoretical membership of the House of Lords, at 1,300, is far too large, and, at 750, there are too many hereditary Peers. Many do not attend at all. In the 1995-96 Session, which lasted 136 days, 165 Peers never came to the House. In the 1996-97 Session, which was a short Session of 79 days, 181 Peers never attended. Therefore, in practice those particular hereditary Peers are not legislators.
Some attend infrequently. We must admit that in the past they have come to muster support for the Tory Party. If we consider those who attend, but for less than one day in four, in the 1995 Session there were a further 240 Peers. In 1996-97, 209 Peers attended for less than one day in four. I can understand why the Labour Party sees the arrival of backwoodsmen as an objectionable practice. Thus one can probably say that of the 750 hereditary Peers some 400 are in a sense "out of the frame". Some of those who attend regularly appear to make little contribution. I emphasise that that applies just as much to life Peers who attend quite frequently. There are a very few--they get plenty of media coverage--who, it is generally accepted, are not appropriate candidates as legislators.
I understand that regular attenders are classified as those who attend more than one day in three. Over the two most recent Sessions that covers about 210 hereditary Peers and 230 life Peers. If we are a little more rigorous and suggest that attendance on half the
days that Parliament sits makes for regular attendance, then for those two Sessions the figure is 160 hereditaries and about 180 life Peers.So I start from full agreement with the Government's fundamental position. But then we come to the crucial question of how to achieve that, and of course then we are back to the old argument about babies and bath water. I have been a Member of this House for seven years and I have been immensely struck by the hard, effective, unpaid work which our hereditary colleagues perform. We have in this country a tremendous tradition of voluntary service, at every level of government, from the grass roots of the parish council to the House of Lords--and, indeed, at every level of charitable body. It would appear that the Government are proposing, at one legislative stroke, to eliminate this in one of its most distinguished forms. This I totally reject.
The figures I quoted earlier suggest that, very roughly, the work of the House of Lords is divided fairly evenly between hereditary and life Peers. Just to illustrate that--admittedly, arbitrarily and subjectively--some of the hereditaries we would lose from the clean sweep approach would include: on the Labour Benches, the noble Lords, Lord Strabolgi, Lord Genfell and Lord Berkeley; on the Liberal Benches, the noble Lord, Lord Avebury; on my own Benches, the distinguished scientific experience of the noble Earls, Lord Selborne and Lord Cranbrook; and on the Cross-Benches, the noble Lord, Lord Northbourne, the noble Countess, Lady Mar, and my noble kinswoman, the noble Baroness, Lady Darcy de Knayth.
How, therefore, can the Labour manifesto commitment be implemented while, at the same time, ensuring that hereditary Peers continue to make their contribution within the parliamentary framework?
I, for one, would find it quite unacceptable if behind closed doors deals were made between the two opposition parties and the Cross-Benches for a certain limited number of their flocks to be made life Peers. That would be a malignant combination of patronage and cronyism. It would be as bad as the closed list for the European Parliament, eliminating the awkward squad, leaving only the safe supporters--the poodles, not the rottweilers. I do not believe that individual hereditaries should depend on the usual channels for their lifeboat. What a lesson we have to learn from the noble Lord, Lord Butler of Brockwell, who, in his maiden speech, made a fascinating reference to what Edward Gibbon said on this subject.
How, therefore, do we achieve the result that we all want and accommodate the Labour manifesto? First, let us consider Privy Counsellors. Membership of the Privy Council reflects one of the highest tributes to eminence in public life. Being a Privy Counsellor is probably much better than being a Knight and so on. There are 192 Privy Counsellors in your Lordships' House. Of those, 30 are hereditary Peers. I would hope that all of those would be allowed to stay.
In addition, I believe that there should be an electoral college formed from the 500 hereditary Peers who have been the most active attenders in the last two Sessions, and that they should be empowered to elect 100 of their
number for a Parliament. Such a scheme would conveniently mean that the size of this House would be reduced to approximately the same size as the House of Commons. It could be seen as an interim stage, to continue until the Royal Commission had completed its work. I have some confidence that it would form a very satisfactory long-term framework for the House of Lords.
I have declared myself to be sympathetic to the stated objective of the Government. However, I would oppose with all my vigour a clean sweep of all the hereditaries. The status quo would be much better than that.
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