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I also found, as others have, in the detailed evidence, including the evidence from the Clerks of the two Houses, some extraordinarily interesting material. The then-Clerk of the House of Commons, Sir Roger Sands, in paragraph 4 of his evidence, referred to the Parliament Act 1911, which is frequently quoted on these Benches. He goes on to say,

That point was followed up in oral evidence and, in an exchange with the noble Baroness, Lady Symons, was taken up again. It is extraordinary that one of the Clerks of one of the Houses of Parliament thought that something as substantive as the Parliament Act would at least have to be looked at in a different light as a consequence of having an elected House of Lords.

It is very difficult, in spite of the discussion that we have had this afternoon, to predict the political dynamic of reform to a substantially elected House, which is something that I support. It is possible that the relatively benign example of Australia, described by Dr Meg Russell in her oral evidence, at paragraph 125, would be followed in the United Kingdom. It is, of course, worth remembering that I used the phrase “relatively benign”, because of the constitutional crisis that occurred in Australia in 1975, when the Governor-General had to move in and remove the Prime Minister because of disagreement between the two Houses. It is also worth remembering that although evidence was given about how little the Australian Senate uses its legislative powers, it was also made clear that it has financial responsibilities in the same way as the House of Commons.

I note that, in all the discussions of alternative systems, no one cited the example of Italy. That is perhaps surprising, because the Italians have something they ironically describe as “bicameralismo perfetto”, or perfect bicameralism—that is, they have two chambers with exactly identical powers. As we all know, the political history of Italy over the past 25 years has shown that that is not a satisfactory way forward. What is worse, three attempts at constitutional reform to sort out bicameralism in Italy have all failed.

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I assure my noble friend Lord McNally that I am not going to be a scaremonger this evening and suggest that there is likely to be a rapid deterioration of the situation as a consequence of a move to an elected second Chamber. There is certainly likely, as he suggested, to be a transitional period in which a hybrid House would contain a significant number of your Lordships, and it would retain the current respect for the present conventions. That would also be the initial position of the three political parties represented on the committee. However, I think the noble Lord and his committee were quite right to point out that in time an elected House, with Members responsive to the pressures from their constituents, would change the political dynamic. In particular, it would be very difficult to explain to constituents why one elected Chamber had financial privileges and the other did not.

Perhaps that dilemma makes a further argument for a proposition that has frequently been advocated from these Benches; that is, the need for a written constitution, a point hinted at by the committee itself in paragraph 56 of its report, which refers to a number of countries where the second Chamber has lower powers, but where there is a written constitution. There has been some evidence in recent months that the Chancellor of the Exchequer, Mr Gordon Brown, is in favour of a written constitution. I welcome his conversion to that position, if it has occurred, and suggest that in the medium term it would resolve some of the problems that have been raised in today’s debate.

We should adopt this Motion tonight, but we should accept that this is not the last time we will discuss this subject.

6.02 pm

Lord Craig of Radley: My Lords, I start by following the flexible and unenforceable convention of saying it is a great pleasure to follow the noble Lord, Lord Roper. Like him, I welcome the excellent report of the committee on conventions and congratulate the noble Lord, Lord Cunningham, and his committee on their work. I was pleased that it also found favour with the Government.

Much has changed over the past eight years in the way that this House performs its responsibilities for scrutinising and revising legislation. It is most helpful to have such broad agreement on the role and application of conventions of such critical importance to the relationship between this House and the other place. However, one point, referred to by many other noble Lords, on which there has not been total accord between the committee and the Government relates to the future, if or when there are further changes to this House.

The committee says unequivocally that,

The Government’s response, on the other hand, is to say that the relationship the Joint Committee describes is one that,

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That response is consistent with the line first adopted by the Government in consultation paper CP 14/03, which suggested that there was then, in September 2003, widespread agreement that the,

Like other noble Lords, I wonder whether that is not wishful thinking on the part of Government.

In their reply to the committee, the Government acknowledge that there is general agreement about the current role of the Lords. They then go on to assert that the question of composition of the second Chamber does not dictate its role. “Function does not follow form”, they say, though powers and functions,

They base that conclusion on a consideration of the relationship of second chambers in other countries with different make-up and varying degrees of power. In particular, they say:

But is not that conclusion a non sequitur? It can happen, although that is no proof that it will. It would be as reasonable to conclude the opposite from other examples: some directly elected chambers have more power than appointed ones, or have a greater say over legislation than the other chamber when their members have democratic legitimacy.

These examples serve to demonstrate a weakness in the Government’s approach. The point is surely that, if there is change in your Lordships’ House, it will be without parallel elsewhere. It will work on the basis of statute and conventions unique to this Parliament. So, like other noble Lords, I do not accept this part of the Government’s response, which seems to be a thinly disguised attempt to suggest that current conventions will be sustainable into the future, regardless of the final balance of membership in a reformed Chamber.

A fundamental question about constitutional reform is to ask, “What about the likelihood of unintended consequences?”—that is, consequences not foreseen or expected by Government. The Government and others in favour of change believe that, regardless of form, function can be set down and will not be challenged. However, all the conventions in place to uphold that belief are “unenforceable”. It is far too simplistic to hope that function will not be amended and will not ultimately depend, to a very considerable extent, on the form of composition.

I draw an analogy with the unintended consequences of devolution in Scotland. The Government surely never contemplated when that was brought forward that it might lead to the de-unification of the United Kingdom, with Scotland going off on its own. Devolved powers do not include responsibility for foreign or defence affairs, but that would seem to be no barrier to a Scottish parliament seeking independence. This is not the moment to debate that possibility, which seems to be worrying senior members of the Government greatly at present.

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Then there is the Human Rights Act. Was it ever intended that it would prevent photos and information about escaped convicts being published by the police because it would infringe the culprits’ human rights? There are numerous other examples of unintended consequences in that Act.

Such examples serve to underline my point that whatever the good intentions of a change in the composition of this House, there is no way that its powers and responsibilities, governed by conventions, can be set in stone. Unintended consequences will arise. Nothing in the Government’s response to the excellent Joint Committee report can give any reassurance that there will not be relationship changes between the Commons, even if it retains all its current powers over this House, and a revised second Chamber. It certainly does not follow from the dubious and naive arguments of the Government. The remarks of the noble Lord, Lord Cunningham, and many other noble Lords seem fully to support my view, although I hope it will not mean that the favoured title of “Cunningham conventions” will have to be short-lived because other conventions are adopted.

As I suggested in a debate on the Queen’s Speech in November, the quality and make-up of the membership of a reformed House of Lords will greatly affect the stability or otherwise of Parliament and the way in which the two Houses work. Codification of or conventions on the responsibilities of the two Chambers can in the last resort depend only on the calibre and behaviour of their members. What we enjoy today is not a given for the future.

6.10 pm

Lady Saltoun of Abernethy: My Lords, I, too, add my congratulations to all the others that the committee has rightly been given on the report that it produced. It is not just the content that is good; it is also beautifully written and very readable, which is not always the case with reports. Back when the committee was set up, I thought that it was a waste of time, as I could not see how it would be possible to codify any of the conventions that were to be under scrutiny. I now think that it has been a very worthwhile exercise, as its conclusions should put paid to further demands for codification, for a while at least.

I agree with every one of the conclusions except one: the recommendation at the end of Chapter 3 that the name of the Salisbury/Addison convention be changed to the government Bill convention. Why do it? Yes, as the committee very clearly demonstrated, this convention has evolved over the years to have a wider application than when it was first conceived, but the principle is still the same, so why change the name? This House has changed enormously over the centuries, but it is still called the House of Lords. All of us in this House know what the Salisbury/Addison convention is. We know why it was invented and what it has evolved into. New Peers coming into this House may not, but when they hear about it they will ask what this curiously named convention is and why it is so named. Then they will learn a very interesting and important piece of the history of the House, which I do not think that they will ever do if the name is

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changed to the government Bill convention. What a dull name, too! How many of your Lordships would feel impelled to inquire into the origins of a government Bill convention? With great respect to the noble Lord, Lord Cunningham, the Government’s suggestion of “Cunningham convention” still wipes out the past, although it is much more colourful and I would therefore prefer it for that reason.

This proposal reminds me of the childish actions of dictators in some countries who, having come to power after a coup d’état, promptly caused the names of the principal streets in their principal cities and towns to be changed from what they had been—often for centuries—to either their own name or the date of the coup d’état that brought them to power. Their object was to wipe out the parts of history that they would prefer their subjects to forget, as well, of course, as to commemorate their own achievements. Some local authorities in this country have done the same thing. It is moderately effective. In most cases, the locals continue to use the old names regardless. I rather think that if the name of the Salisbury/Addison convention were changed, that is exactly what would happen in this House. We would still call it the Salisbury/Addison convention.

Of course, Soviet Russia was the star exponent of this practice, changing the names of every town or city between St Petersburg and Vladivostok. This committee does not need to obliterate history, and I hope and believe that it is big enough and grown-up enough not to need to make its mark in what seems to me rather a petty way. I implore the Procedure Committee, which will have to agree with proposals of the report, to reject this particular one.

I end by hoping that more Peers will take the trouble to learn and observe those conventions of the House that are written down in detail in the Companion to the Standing Orders, such as bowing to the Cloth of Estate, not crossing the Floor, and remaining seated when the Lord Speaker or the Lord Chairman is on his feet instead of trying to play grandmother’s footsteps at the end of Questions. Above all, I hope that they will learn to observe the correct forms of address and to stop using mobile phones in the Bishops’ Bar.

6.15 pm

Baroness Symons of Vernham Dean: My Lords, I thank my noble and learned friend Lord Falconer of Thoroton for the comprehensive way in which he opened this debate and the constructive tone that he demonstrated today. It was very refreshing to hear him.

Our discussion of the Joint Committee’s report today has been very thorough and it has echoed the remarkable degree of consensus and agreement achieved under the excellent chairmanship of my noble friend Lord Cunningham of Felling. We have all been aware, however, of the absence of an irreplaceable voice in your Lordships’ House. My late noble friend Lord Carter is, I am sure, keeping his kindly eye on us today. He was faithful to the last in giving of his time, energy, experience and very considerable wisdom to our committee. I believe that many of us here today have felt his absence very keenly.

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The terms of reference for a committee such as ours are always very tricky. I go back to them because, during our discussions, my noble friend Lord Cunningham had cause to remind the committee at least once, and very often more than once, each session of exactly what our remit was. He did so particularly in relation to two issues. The first was that the committee’s work took place on the basis of accepting the primacy of the House of Commons. The second was that our remit did not extend to consideration of the reform of the House of Lords in terms of its membership. These two points demonstrated, I think, a conviction that functions needed to be considered before form. It is a simple enough proposal. What are the relationship and the powers of the House of Lords in relation to another place now, and what should the form of the House of Lords be to discharge that relationship and those powers properly?

Of course, it really is not quite that simple, because this is politics. We are not talking about setting up a committee or a new institution to consider a particular issue or to discharge a particular responsibility. We are dealing with Parliament and government, which in this country is not just the relationship between two Houses of Parliament. It is the relationship between Parliament and the Executive and, most important, the relationship that Parliament has with the public or the electorate who put it into office. That really is the bedrock of the issue. These themes emerged several times during our discussions, but they were rightly never explored. It was right because they were completely outside our remit. I believe, however, that in casting a vote in a democracy, a citizen has a right to expect those elected to assert their electoral authority on behalf of those who have put them into office.

Most of the issues that our committee discussed have been dealt with very well and very comprehensively this afternoon. Although we argued vigorously on a number of points, the committee agreed our report unanimously and across both Houses. Members of all political parties and none, the elected and the non-elected, came together in a unanimous view. It was an important and very welcome achievement, and I thank our chairman for his great leadership in allowing us to secure that objective.

Today the Government have approved our report in generous and unequivocal terms, as exemplified by my noble and learned friend in his opening remarks. His has been a sensible, pragmatic response from the Government, which I have been very happy to hear. Like others, I could not help reflecting that my noble and learned friend’s remarks were somewhat different, in tone at least, from the Government’s written response—a point made markedly by the noble Lords, Lord Roper, Lord Maclennan of Rogart, and many others, too.

The Government have accepted our conclusions on the issue of reasonable time, which was at variance with their own manifesto commitment to subject most legislation to a time limit of 60 days. Interestingly, the Leader of another place told the committee:

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That was an arresting remark given the subject matter of the binding nature of government manifesto commitments in other circumstances. My noble and learned friend was of course more subtle in his approach when he told the committee that,

The committee made it clear, at paragraph 283(a) of the report, that we accepted the primacy of another place, and, indeed, we were instructed so to do. The Government welcomed our acceptance of our instruction. No witness questioned it and nor did we. It is demonstrably and rightly the current position of a non-elected House in relation to an elected House in a democracy. But, as has been said, we went on to make it clear at paragraph 61 of our report, which seems to have caused a great deal of excitement:

That is a straightforward, and even a rather mundane, point. We said that if your Lordships’ House acquired an electoral mandate, in our view, your Lordships’ role as a revising Chamber and our relationship with the Commons would inevitably be called into question. The committee said:

and there was a great deal of evidence—

That wording was not an accident. The amendment was thought through, discussed at length and agreed, and it has become the most discussed paragraph in the report.

The Government devoted much of their response to that paragraph. They pointed out that the 2005 manifesto commitment to remove the hereditary Peers and to offer Parliament the chance to decide whether there should be more changes to make the House of Lords more effective, more legitimate and more representative was the important point. Now is not the time to discuss whether elections really would make this House more effective, more legitimate or more representative, although, as we all know, the ballot box is no guarantee of any of those attributes—a point made very well this afternoon by the noble and learned Lord, Lord Howe of Aberavon.

Unlike the noble Lord, Lord Williamson of Horton, the Government’s response to our recommendations went way beyond the terms of reference of our committee by saying unequivocally that further reform should not alter the current role of this House as a revising Chamber. The Government say that our description of the relationship as it is now should be the relationship, irrespective of any democratic legitimacy applied to this House. They have, as the noble Lord, Lord Higgins, put it, at least jumped the gun, but perhaps, more importantly, they have ignored the very restrictions on comment on this issue which the committee felt bound to observe. The committee kept the rules.

Let us be clear: the committee did not say that the relationship would change. We could not do so; such a conclusion would have been outside our terms of reference. The Government have not been so disciplined

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in their response. They have responded outside the terms of reference. The fact is that, within accepting the primacy of the House of Commons, the balance of the relationship between the two Houses may well change if the Lords becomes partly or wholly elected. That seems to me to be plain common sense.

If, in 1999, my noble friend Lady Jay of Paddington could assert on behalf of the Government that the politically reformed House would have more legitimacy and more authority in its relationship with the Commons, why should the authority conferred by an electoral mandate be of no significance in that relationship? Democracy is the authority of the electorate and, in seeking to dismiss the idea that an election empowers the elected, the Government are on very tricky ground. It is not an argument that I would have expected from those to whom a democratic mandate for themselves is the basis—indeed, the bedrock—of their own authority and legitimacy.

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