Memorandum by the Lord Elton TD
My purpose in writing to you is to bring again
before the Committee the effect that this proposed separation
will have upon Parliament if it is carried out as at present proposed.
This important aspect of what is proposed received scant attention
at second reading.
The Parliamentary functions to be principally
affected are those of the House of Lords, to consider, modify
and, occasionally, refuse legislation proposed by the executive;
and to monitor, comment upon and, occasionally, restrain its political
initiatives.
This House, being unelected, is quite properly
the less powerful House. But the fact that it is not elected gives
it a different perspective on public policy and, in particular,
a sometimes longer view on the effects of that policy upon the
national interest. As Peers are under no electoral necessity they
are also exempt from the controls which that necessity enables
party whips to exercise over members of the Commons.
Both these factors mean that the advice which
the House can give to Government, either collectively or informally,
can differ sharply from that available from the Commons. The more
complete a Government's control of the Commons, the less likely
it is to receive necessary but unwelcome views from that quarter,
and the more valuable to it the opinions of the Lords may consequently
become. Unwelcome views are often those most necessary for the
formulation of effective policy.
The effect of this divergence of the views of
the Lords from those of the Commons is made plain and public in
the legislative process. It also contributes to the development
of policy in less obvious ways. The House of Lords has, by convention,
a direct line into the Cabinet in the persons of the Leader of
the House and the Lord Chancellor. Without some other, compensating
step, the abolition of the office of Lord Chancellor would leave
it with only a single voice in Cabinet secured to it by convention.
A single voice expressing unwelcome views is at best half as effective
as two, particularly when they originate from an institution little
understood or regarded by the hearers; and, of course, it can
be heard in fewer committees and on fewer occasions. The influence
of the House would thus be significantly diminished in a forum
where it is of value.
To avoid this it would be possible to leave
the Lord Chancellor's office in place, whilst alienating most
of its powers and responsibilities. I have small experience of
Cabinet Committees, and the only meeting of the full Cabinet I
have attended was adjourned early, following the explosion of
an IRA bomb in Hyde Park. But it is a condition almost of nature
that the weight carried in such a group by any member of it depends
in large part on the extent of his, or her, powers and responsibilities.
A Lord Chancellor with vestigial powers could expect to have vestigial
influence in Cabinet.
It is convention alone that secures a seat in
Cabinet to the Lord Chancellor. If the greater part of the non
judicial powers and responsibilities attached to the post were
simply transferred to the Secretary of State for Constitutional
Affairs (SoSCA) a new convention could be established that the
holder of that office should sit both in Cabinet and in the Lords.
It would require substantial undertakings to reassure the House
of this intention; but it would not require primary legislation
to carry it out. (The question would then arise as to why it was
necessary to invent a new name for the Minister carrying out these
duties. If they were sufficient to warrant a seat in Cabinet they
would warrant retention of an institution a good deal older than
Parliament.)
Though it has very occasionally been broken,
the convention that the Lord Chancellor sits, speaks and votes
in the House of Lords is very ancient and should continue as long
as does the office itself. But if the powers and responsibilities
remaining with this office are to be vestigial, it will be possible
for the holder of another to discharge them. The holder of the
office of SoSCA suggests itself; but it would not be necessary
so to restrict the choice of Prime Ministers in forming their
Cabinets. It would suffice if the post was held by any of the
half dozen most powerful Secretaries of State. Such a convention
would suffice to maintain the influence, and usefulness, of this
House on central policy formation. Again, it would not need primary
legislation to bring this about.
By one or other of these routes it should be
possible both to maintain communication between our House of Parliament
and the central organ of Government at its present level of effectiveness
and to avoid the abolition of an office of great antiquity and
some symbolic importance.
The quality of the work of the House will also
be affected by this proposed legislation (as, in proportion, will
that of the representations of its Cabinet members). The Law Lords
now play an occasional but invaluable part in our proceedings.
As they are required to interpret the laws it is not surprising
that they should have relevant and constructive views on how they
should be framed. Membership of the House should therefore be
conferred on Judges on retirement from the new Supreme Court.
This would normally be done as a matter of convention, but as
the current preferment would be removed by the Statute it would
be as well if it was the Statute that preserved it.
It is not only after retirement that Law Lords
make their most useful contributions. Until recently, serving
Law Lords have also made a unique contribution to legislation.
Lord Scarman' s numerous, well informed and effective interventions
in the Police and Criminal Evidence Bill (which I took through
this House) were made in 1984, following his Report on the Brixton
Riots. They were immediately beneficial, and continue to minimise
the aggravating effect of police procedures upon ethnic minority
communities to this day. The Bill was enacted two years before
his retirement. Since then I understand the Law Lords have withdrawn
themselves from legislation. If the Bill were to provide an opportunity
for them to consider a return, perhaps within carefully prescribed
limits, considerable benefit might be gained.
In another area the damage that may be done
by the Bill is perhaps more easily remediable. Lord Woolf's Report
on the Prison Service has given him enormous authority on the
subject, and that authority remains available to the House. If
a means could be found, of preserving, possibly by selective preferment,
the opportunity for contributions of this sort by serving Law
Lords, and for them to continue to be available to the House after
their contributions have been made, considerable harm to this
House, and to the body politic, could be avoided, otherwise their
loss will be a part of the price we must pay for separation of
the powers.
10 May 2004
| 
