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As I understand it, my noble and learned friend’s argument is to say, “By all means, if there are elections for the House of Lords, let us examine these issues again”. But, as my noble friend Lord Tomlinson pointed out, the subtext is more clearly spelt out in the letter of 13 December from the Leader of another place to my noble friend Lord Cunningham, in which he said:

If the relationship needs to be considered again, it will not be a matter for the Government or the parties; it will be a matter for Parliament and, particularly, a matter for your Lordships’ consideration.

I wonder whether, in winding up this excellent debate, my noble and learned friend will tell us how he thinks the examination of these issues should be conducted. Of course, he has accepted the unanimous view of both Houses that this would have to be done if,

The word “proposals” is crucial and was well chosen. The committee said unanimously that not decisions but firm proposals would trigger the re-examination. As the noble Lord, Lord McNally, pointed out in his colourful intervention, the Leader of the House in another place has said that there will be a White Paper on this issue within a matter of weeks. So firm proposals are to be published, and soon. In accepting our report, the Government have accepted that it will trigger a further examination of these conventions. Can my noble and learned friend assure us that Parliament—both Houses—will be the body to decide any new relationship in the same open and transparent way in which the committee of my noble friend Lord Cunningham has already operated so effectively over the past few months?

I am very happy to support my noble and learned friend’s Motion in the terms in which he moved it today. I look forward eagerly to his response to the questions that I raised, particularly about revisiting

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these issues when the firm proposals on the form that this House may take in the future are published in the White Paper.

6.27 pm

Lord Trefgarne: My Lords, like almost every noble Lord who has spoken this afternoon, I welcome the report of the noble Lord, Lord Cunningham, and his colleagues, and I agree with the broad thrust of what he has concluded. However, I want to touch on two matters. One arises directly from his report but the other only tangentially so.

I refer, first, to the Salisbury/Addison convention and the noble Lord’s comments on that in the report—a matter that has been mentioned by almost every noble Lord so far. I see the Salisbury/Addison convention in the nature of a constitutional settlement of the time. It was conceived in the aftermath of the general election of 1945, when, as everyone knows, a huge Labour majority was elected to the House of Commons and there was seen to be a huge Conservative majority in your Lordships’ House, consisting almost entirely in those days of hereditary Peers, save for the Bishops and the Law Lords.

That agreement was entered into voluntarily by both parties. The Government were not obliged to accept it—the Parliament Act 1911 was in force at that time. Indeed, a few years later, the Government invoked the provisions of the 1911 Act to secure the passage of the Parliament Act 1949, which reduced the time that it took to get a Bill through by means of that measure. The agreement—on behalf of the House of Lords, at any event—was not to disrupt the legislation proposed by the Government and referred to in their manifesto. For their part, the Government undertook not to disrupt the composition arrangements of the House of Lords, which were almost wholly hereditary at that time.

The 1999 Act changed all that. The Government unilaterally decided to abandon one of the legs on which the Salisbury convention was constructed and to destroy support for that convention. The Government may say that they got that Bill through by agreement, which is true. Indeed, I was the beneficiary of one of the changes made to the Bill to ensure that it passed. I have no doubt—and no other noble Lord has any doubt—and the Government do not deny that had agreement not been possible to secure the passage of the 1999 Act, they would have taken it through under the provisions of the Parliament Act which were then in force. Evidence of that may be recalled in the venomous remarks made by Ministers at the time with regard to hereditary Peers, some of which some of us will not forgive or forget.

The 1999 Act was a unilateral departure from the constitutional settlement of 1946. Accordingly, the Salisbury convention must be revisited. By revisited, I do not mean that it should be extended to cover all government Bills willy-nilly. Less still, some have said, that it should include secondary legislation. Nor do I have difficulty in seeking or thinking of a definition of what constitutes a manifesto Bill. I do not think the

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Government think that there is any difficulty either. Some have suggested that because of the difficulty of defining a manifesto commitment, we should depart from that definition. Either it is in the manifesto or it is not. I was interested to hear the remarks of the noble Baroness, Lady Symons, reporting what the right honourable Member Mr Straw said in that regard.

If the present composition of the House of Lords is to broadly remain, for the time being at least, we need a new look at the Salisbury convention, having regard to the post-1999 situation and the substantial, if not complete, removal of hereditary Peers, which followed from that Act.

I turn briefly to another related matter. Many of our procedures in the past 10 years or so have, with Opposition agreement, been changed. We have been changing the procedures little by little in your Lordships’ House over the past 10 years. It may be earlier than that—I do not wish to put a political flavour on this. I could produce a list of 20 or more areas where the procedures of the House of Lords have slightly changed in that period. Individually those changes are not very important, but taken together they have seriously undermined the ability of Back-Benchers in your Lordships’ House to hold Ministers to account. That is a crucial role for your Lordships’ House. Of course, I accept that we do it in a different way from the House of Commons. I accept that our way is gentler than in another place. None the less, we are honour and duty bound to hold Ministers to account just as they do in the other place.

I see that the noble and learned Lord the Lord Chancellor is still in his place. He will recall the classic example of that requirement when he was Minister in charge of the Dome. Every day there were questions about its management, and he dutifully answered them day after day, week after week, being held to account on the matter for which he was responsible. That is a proper role for your Lordships’ House and for the other place.

In the course of making all these small changes to our procedures, we have been too easily persuaded by the procedures involved. For example, I refer to leaders’ groups—I forget how many there have been. My noble friend Lord Strathclyde has taken part in them. I believe that he has been too easily persuaded to do so. They do not involve any Members on the Back Benches and are the worst function of the usual channels. They have produced conclusions that may benefit the Front Benches; they may even benefit my noble friend when he takes his place as Leader of the House in due course, as I hope and believe he will. In the mean time, I stress that they do not contribute to the ability of your Lordships to hold Ministers to account in the way that I believe to be so essential.

I acknowledge and congratulate the noble Lord, Lord Cunningham, on his report. I broadly concur with his proposal, but I hope that the question of the Salisbury convention will remain a matter still to be resolved.

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6.36 pm

Lord Beaumont of Whitley: My Lords, I put my name down to take part in this debate for two reasons. First, I have been in this House as a life Peer longer than any other life Peer who still attends—possibly as long as any other Peer in this House, and I have seen changes happen over a long period.

Secondly, it is a matter in which I was interested very early on. My grandfather felt passionately about the matter, and fought the 1906 election as a Liberal for Eastbourne, which was then a very unlikely seat, but which he won. He won it on the pledge to do his best to try to abolish the House of Lords. It was 1906, which I remind noble Lords was before the House of Lords had done anything very nasty to the Government of the day, or showed any signs of starting a constitutional row.

I am now coming up to the 40th anniversary of my appearance in your Lordships’ House, and although I regard myself as on the left of politics, I am totally convinced that your Lordships’ House is a very good thing. The primacy of the Commons is now totally accepted. We are a revising Chamber and a very good one. In continuing to be a very good revising Chamber, we must be as expert as possible.

I made my maiden speech, against the advice of my Leader and Chief Whip, on an Unstarred Question. They thought it an unsuitable occasion. But the question was about primary schools in Hong Kong. Since I reckoned that I was the only Peer who had been chairman of the governors of a primary school in Hong Kong, I thought it was up to me to keep up the tradition that there is no subject so recondite that one cannot find a Peer with expert knowledge on it.

We keep up that tradition these days on a rather more exalted plane. I listened the other day, as did other noble Lords, to an unfortunate defence Minister treed by a covey of field and air marshals. He was very much on the defensive. At a time when the Prime Minister treats Parliament with contempt, a House of experts, as opposed to generalists, where everyone knows what he or she is talking about, is doubly valuable.

I think that all talk of democracy and elections, such as, I regret to say, my party indulges in, is out of place in a House with no Executive power. But a House of experts is invaluable. It is perfectly feasible to devise a system of appointing Members that will avoid nepotism and which, with the conventions that we have, will work as effectively for the common good as any parliamentary Chamber in the world.

6.39 pm

Lord Norton of Louth: My Lords, I join others in congratulating the noble Lord, Lord Cunningham, and the other members of the Joint Committee on producing an excellent report. It is difficult to fault it. Given that, I very much welcome the terms in which the Motion is drawn.

The Joint Committee’s report deals well and sensibly with the different issues before it. I concur with its findings and recommendations. I was going to devote time to considering the concept of conventions in

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developing points that I made in my evidence, not least on secondary legislation. However, I am conscious of the time that we have taken in the debate, so I propose to cut to the principal points that I want to make.

There has been considerable discussion already on the contradictory nature of the Government’s response. The Government accept the conclusions of the report, but then reach an entirely different conclusion about the position of conventions in a reformed House. The Joint Committee contends that the conventions will be called into question if the composition of the Lords is changed. The Government are saying that they will not. The noble Viscount, Lord Bledisloe, does not quite read it that way, but I think that everyone else who has addressed the issue does.

In their response, the Government attempt to justify their position. The response, as has been mentioned, does so by referring to other reports and practice elsewhere. In so doing, it misses fundamental points about the impact that election, or partial election, of a second chamber would have. Various examples are given of where second chambers, including some that have an electoral mandate, accept the primacy of the first chamber, or where the first chamber gets its own way in certain circumstances.

The discussion fails to grasp two points that are crucial to any consideration of reform of this House. First, reference to the practice of other systems tells us nothing about the efficacy of those systems. Many of those who advocate election or part-election of the second chamber point out that a number of second chambers are elected or partially elected. The fact that they exist tells us nothing about the contribution they make to the political process and whether they add value to that process. In terms of existence, one could just as well call in aid the number of second chambers that are appointed; there are far more than advocates of reform appear to acknowledge. However, the essential point is qualitative, not quantitative. Will the noble and learned Lord the Lord Chancellor tell us how many of the second chambers listed in the Government’s response add value to the political process to the extent that this House adds value to the political process in this country?

Secondly, the discussion about the powers of second chambers misunderstands the claims made about the powers that would be claimed by an elected second chamber in this country. As has already been mentioned, the Government point out that some elected second chambers are not coequal with the first. Indeed, they devote a considerable amount of space to doing so. The discussion misses the point that advocates of an appointed chamber are not arguing that an elected or part-elected second chamber would seek powers that would render it coequal with the elected first chamber. We are saying, certainly I am saying, that an elected second chamber would demand more powers than those held by the existing chamber. In other words, the relevant comparison is not with other second chambers but with the Chamber as presently constituted. The noble Lords, Lord Tomlinson and Lord Sewel, have already developed that point powerfully.

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Election would give Members a claim to greater powers than those held by Members of the current House. The present House is constrained by statute and by convention. The convention derives from the electoral mandate held by the other place, and from the absence of such a mandate for this House. If this House acquires an electoral mandate, to whatever extent, the grounds underpinning the convention—the Salisbury convention—disappear. Why should elected Members of one House concede that the mandate of elected Members of another House is so superior that they should refrain from voting against the Second Reading of a Bill? What if they were elected on a platform opposed to the proposals embodied in the Bill?

In short, the Salisbury convention would simply not be sustainable in those circumstances. The issue is not whether the convention is sustainable in those circumstances—it clearly would not be—but whether the Parliament Acts would be sustainable in those circumstances. There may be a case for the elected first chamber ultimately to get its way, as in some other legislatures, but should it be able to do so under the terms of the Parliament Act 1949, or even of the 1911 Act? Conditions have changed significantly. They have not changed to the extent that those Acts should be challenged, but if this House was to be elected, wholly or in part, there would be a case for revisiting those Acts. The issue would be whether existing statutory limitations could survive, not whether conventions could survive. The Joint Committee uses diplomatic language in paragraph 61 in explaining the position of conventions in the circumstances of election. The reality is that the rationale for them would have gone.

Why should a Member with an electoral mandate refrain from voting against a government Bill? Reflecting on these questions will, I trust, lead the noble and learned Lord the Lord Chancellor to the conclusion that the Joint Committee has got it precisely right. He seemed to be moving in that direction in moving the Motion this afternoon. Perhaps in closing he will reach the same conclusion that most speakers have already reached.

I turn to a different point about current practice, which has not been referred to this afternoon. Here I have a suggestion to make about our own procedure. In discussing the section of the Joint Committee’s report on a reasonable amount of time for considering government Bills, the Government accept that an arbitrary time limit should not be imposed. How long a Bill needs in this House will differ from Bill to Bill. It will be affected by complexity as well as sometimes by length. It may also be affected by procedure. I put before the House a proposal that means it would be affected by procedure. The Government’s response at paragraph 34 draws attention quite reasonably to the recommendations made by the Select Committee on Modernisation of the House of Commons and to the acceptance of those recommendations on 1 November by the other place.

The most important of those recommendations was that a Bill would normally be referred to what is now termed a Public Bill Committee, previously called

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a Standing Committee, and that that committee would have power to take evidence. I very much welcome this. I have been arguing for years, including before the Rippon Commission in 1992, that Bills should normally be referred to Special Standing Committees; that is, to evidence-taking committees. If Public Bill Committees use their power constructively, this reform may be one of the most important of the past half-century. However, this new procedure will apply only to programmed Bills introduced in the other place. Bills introduced in this House will not be subject to that procedure. This, I think, places the onus on us to consider what we should do. The Government’s response at paragraph 34 says:

I appreciate that this is meant as a constructive observation, but I think that we in this House need to address the matter as soon as possible. The House of Lords Constitution Committee’s 2004 report on the legislative process recommended that every Bill should at some stage in its passage be considered by an evidence-taking committee. We need to consider whether Bills introduced in your Lordships’ House should be referred to evidence-taking committees. We have the procedure in place for doing so, and we should consider referring Bills to such committees as a matter of course. Given the nature of government Bills that normally start life in this House, there is a powerful argument for ensuring that they are subject to such consideration. Given the time we devote to legislative scrutiny, and given the expertise we have in this House, we should consider this as a matter of urgency. Clearly if such a procedure is adopted, it has implications, as in the Commons, for how long it will take a Bill to be considered. We have to retain some flexibility.

To conclude, I very much welcome the Joint Committee’s report. It is persuasive and, has been said, authoritative. The committee has done an excellent job in a relatively short space of time. The Motion before us deserves our full support.

6.48 pm

Lord Tyler: My Lords, I join others in the House in thanking and congratulating the noble Lord, Lord Cunningham of Felling, on a remarkable achievement. I was proud to serve on this Joint Committee and, indeed, on a previous Joint Committee that he chaired. I only hope, and I expect he shares my hope, that the result of this work will be more productive and positive.

I have always believed in giving credit where credit is due. That perhaps is unfashionable at the other end of the building, but I hope it is more fashionable here. Therefore I really do think that we should salute a very sensible response from the Government to the Joint Committee, and pay tribute to the role of the current Leader of the Commons, Jack Straw, and indeed to that of the noble and learned Lord the Lord Chancellor, in achieving this. Several speakers this afternoon have not recalled how we got into this situation and how this committee was set up. What was the origin of this exercise? Less than a year ago,

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before the Joint Committee was constituted, the then Leader of the Commons set out the Government’s intentions in an article in the Independent. After quoting Tom Paine, who said that the idea of hereditary legislators is as inconsistent as that of hereditary judges and hereditary juries, he went to state:

That was the Hoon doctrine.

I must emphasise at the outset that the Joint Committee—which had members from both Houses, all three parties and the Cross Benches—unanimously disagreed with that approach. As my noble friend Lord McNally said, we resisted any suggestion that your Lordships’ House should have its wings clipped by the Government. If we are to have a second Chamber in a bicameral system doing its job properly, there can surely be no question of its role being further circumscribed. Members of the Joint Committee, MPs and Peers alike, comprehensively rejected the doctrine put forward by Mr Geoffrey Hoon. What is more, Jack Straw, the Cabinet Minister charged with steering these reforms through, has now wholeheartedly endorsed the approach of the Joint Committee.

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