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I have one vital question to ask the noble and learned Lord the Lord Chancellor, who was in irenic mood. That is always the best mood for him, as he is at his most persuasive then. What is the position with regard to the Parliament Act? It is vital to know the answer. Until we receive a clear answer, there can be no move towards the consensus that he wants. We had the present Prime Minister’s promise that the Parliament Act would not be used in this discussion. What is the status of that? I ask the Lord Chancellor to interpret it for us. If he does not want to do it now, perhaps he will do it in his summing up? What is the value of that pledge from the Prime Minister? I think of Marlowe’s play “Edward II”:

Is that not the position of someone who is attempting to lead us forward to a major constitutional change? Without that point being adequately answered we will never get a consensus.

However, there is a way to get consensus. Paradoxically, we will get it eventually if noble Lords stick to their convictions when we vote in the Lobbies in a couple of days. If noble Lords stick to what they really believe is for the good of this House and this country, and vote against the majority of the Motions which will come before us, that will bring a consensus nearer and not drive it further away. The choice is up to us.

7.11 pm

Lord Lloyd of Berwick: My Lords, I suspect that I am not the only Member of the House to have looked up what they said when this matter was previously debated in the House in 2003. Having done so, I can say that matters appear to me now very much as they seem to have appeared to me then. I was then one of very few Members who spoke in favour of a hybrid House. Of the various options before us, I came down firmly in favour of 50:50. I remember being teased very much by the noble Lord, Lord Elton, when I expressed that view and, more particularly, my view on how they should be paid. I do not know whether now to be comforted, or perhaps gratified, to find myself on the same side as the Government in this matter.

I never have understood the objection to a hybrid House. We have the tradition of getting on with each other, as has been so well put today by the noble Lord, Lord St John of Fawsley. There has been no rancour of any kind in this debate. No one has ever argued, for example, that a hereditary vote is worth more or less than the vote of a life Peer or that the vote of a Bishop is worth more or less than the vote of a Law Lord. I cannot see why that ability to get on should change just because some of our Members are elected. So I do not accept the view of the noble Lord, Lord Cunningham, that we would become, if we had an elected element, a House divided against itself. Of course, the elected Members could claim additional legitimacy—to use that word which has been used so often—but there are other forms of legitimacy represented in this House, as was so well explained by the noble Lord, Lord Lawson.

We need an elected element. As the noble Lord, Lord Hoyle, said so convincingly, we must take account of the vote last week at the other end of the corridor. Surely, we would look somewhat foolish if after all these years of discussions we were to exclude the hereditary Peers only to exclude also members of the public from seeking election to this House. Moreover, I am uneasy about a statutory Appointments Commission appointing 100 per cent of the House. It would give the commission much too much power.

So I am in favour of an elected element. However, we should not go too fast in that direction. We do not yet know how many people will seek election. More importantly, we do not know what sort of people they will be or the sort of qualities that they may have. As a first step, we should go for a 50 per cent elected House, which we could always increase later if we thought it desirable. At the other end, the Cross-Benchers currently make up 27 per cent. I see no reason why they should not make up at least 30 per cent of the House with advantage to the House as a whole. The remaining 20 per cent could thereafter be appointed from among those who have earned their spurs in the House of Commons. Obviously, there must be room for ex-Home Secretaries and so on, who would form part of the remaining 20 per cent of those 50 per cent appointed.

The elected element would bear the heat and burden of the day putting through government legislation. Therefore, they should be paid a salary—a point very little touched on in the White Paper—which should probably not be as much as Members of the House of Commons. The appointed Members, the Cross-Benchers and the other appointed Members with a political background, should be paid as now an allowance when they turn up and contribute to the work of the House.

When I was an original member of the Boyle commission, which subsequently became the Top Salaries Review Body, I queried—it seems almost strange that I should have done—that people should not come to the House simply when they had a contribution to make and not be paid for it. Boyle said, “No. It is very important in any legislative Chamber to have bottoms on seats”. One way to secure that is to make sure that appointed Members should be paid for attendance. Elected Members should receive a salary and appointed Members should be paid as they are now.

7.17 pm

Lord Howarth of Newport: My Lords, the other place last week was not Philadelphia—the House of Commons did not vouchsafe the wisdom of the founding fathers. It had a vigorous debate for sure, but its conclusions were the result of a random collision of opinions and tactical improvisations. The Front Benches of both major parties were defeated by their own Back Benches. The other place did not find the consensus that the Prime Minister and Jack Straw have acknowledged is desirable to validate major constitutional reform.

Surely, the only test that matters for reform of the House of Lords is that it should improve the performance of Parliament. The Government assert that there is another standard that reform must satisfy—democratic legitimacy. But democratic legitimacy is satisfied by the primacy of the elected House of Commons. That is not to say that the House of Commons as we have it is a perfect vehicle of democracy, and there are other debates that need to be had about its reform. But a Parliament in which the House of Commons is accountable to the people in regular elections, while its primacy is acknowledged axiomatically by the unelected second Chamber whose role is to advise but not to determine, satisfies the democratic principle.

There is a serious argument for a fully elected second Chamber. It is that it could hold both the Executive and the House of Commons, which is so dominated by the Executive, effectively to account. It could restrain the “elective dictatorship”. But the House of Commons is not willing to face the logic of its own vote. Supporters of a fully elected second Chamber in last week’s debate in one breath expressed the hope that its Members would be spirited and independent, and partners in invigilation, but then insisted that the primacy of the House of Commons must be upheld.

Jack Straw cites the Czech Republic, Japan and Poland as comforting examples of countries with elected second Chambers that have few powers. Those instances are irrelevant. The political institutions of a country are the product of its history and political culture. The British people demand of their elected representatives in Parliament that they should hold the Executive to account, be spirited and independent, and respond to the wishes of their constituents—whatever the failings in practice of the House of Commons. To be fair, there was much breast-beating about them in the Commons debate. If people of real ability and character are to be elected to the second Chamber, the primacy of the House of Commons will not go unchallenged. The Parliament Acts, framed to restrain the power of a non-elected House, are at least of uncertain application to an elected House. The conventions that today govern the relationship between the elected and unelected Houses will be shattered. Members of a fully elected second Chamber, elected by proportional representation and possibly elected more recently, will claim a democratic authority at least as great as that of the House of Commons. No longer will Governments be able to carry business that is complex or controversial without more searching and prolonged scrutiny and without more compromise. Some may think that a good thing.

Other consequences, however, will surely be undesirable. There will be much more contention between the two Houses at Westminster, not occasional ping-pong but routine wrestling. With two elected Chambers, one of the virtues of Parliament as we have it, that it is capable of taking clear-cut decisions in a reasonable timescale, will be lost. So too will the clarity of Parliament’s present accountability whereby voters, knowing that it is the House of Commons which must take responsibility, give their verdict on the day of the general election. The principle of the single-member constituency will be lost, and MPs will hate having another Member of Parliament, from the second Chamber, wandering around their constituencies, legitimately claiming also to represent their constituents and funded by the taxpayer to make political mischief. Coexistence between MPs and AMs and MSPs is already less than harmonious, but how much scratchier it will be if both lots are Members of the same Parliament.

Because neither the Government nor MPs actually want a vigorous and powerful elected second Chamber, they seem minded to seek to entrench limitations on its powers. They will find this technically difficult to achieve, as the report on conventions has explained. If they succeed, it will be a large step towards a written constitution and will render both elected Houses of Parliament significantly subordinate to an unelected judiciary. Here I disagree with the noble Lord, Lord Roper. Beyond that consideration, if toothlessness is to be entrenched, why should voters bother to vote in elections to such a Chamber? And what politicians worth electing would stand? All political parties have problems finding enough candidates of quality for the elections we already have. The media call us former MPs in your Lordships’ House hacks; they ain’t seen nothing yet. These people will of course require for themselves salaries, pensions, staff, offices and allowances to match those of MPs—at prodigious cost. If they are to sit for a single term of three Parliaments there will be no accountability anyway, and they will never need condescend to come among the people who elected them; quite old-fashioned, really. What a price to pay for a functionally useless extension of democracy.

The party leaders, appalled by what they have let loose, may try to slide back to the 80 per cent elected, 20 per cent appointed option. Despite the advocacy of the noble Lord, Lord Richard, that seems the least worthwhile of all the options. It would produce the problems of a hybrid House—and I put it to the noble and learned Lord, Lord Lloyd of Berwick, who says that he does not understand the problems of a hybrid House, that they are inequality between the two classes of Member and instability arising from the capacity of the unelected to combine with the elected to defeat the Government in the House of Commons—together with the minimum advantage of having appointed Members. With no more than 20 per cent appointed, there would be far less opportunity to benefit from the contribution of distinguished individuals or to progress towards a better balance of gender, region and race among appointed Members than we have now.

No case has been made that either a wholly or a partly elected second Chamber would improve the performance of Parliament, a point argued very powerfully by the noble and learned Lord, Lord Howe. It seems far more likely that, in terms of quality of scrutiny and debate, capacity to reach decisions and accountability, Parliament would be damaged.

I hope that the Government and MPs will, after all, look carefully at the case for a reformed but wholly appointed second Chamber. It would not challenge the primacy of the elected Chamber and would continue to offer considered advice from its Members, people eminent in many walks of life as well as people with much political experience but no longer in thrall to ambition and tribalism. We need a reformed appointments commission, statutory, its membership approved by the House of Commons and charged by it to bring into being an appointed second Chamber that will indeed be,

a House whose strengths complement those of the elected House.

For all the historic and present contribution of hereditary Peers, I do not see that in the future there can be a place in Parliament for anyone by virtue of heredity. I hope that those who wish to do so will continue to serve by appointment.

We cannot accept that Parliament should be so damaged in consequence of a spasm of embarrassment over party funding, misplaced democratic sentiment, a glib compulsion to modernise, a spurious equation between legitimacy and election, and confused tactical voting. Unelected though we are in this House, our responsibility is to improve our parliamentary democracy, not collude in its harming.

7.25 pm

Lord Forsyth of Drumlean: My Lords, it is a great pleasure to follow the noble Lord, Lord Howarth. We used to be colleagues. I do not mean to embarrass him, but we both used to be members of the No Turning Back Group. It is a long time since I have been able to say that I agree with every word he said, and he has shown his characteristic intellect and analysis in addressing this problem.

The Companion suggests that we should not repeat arguments that have already been used in the debate, so perhaps I may point to a couple of speeches which seem to be signals for the House of Commons. The speech made by the former Speaker, the noble Baroness, Lady Boothroyd, was absolutely stunning in its passion and analysis, while the speech of the noble and learned Lord, Lord Irvine of Lairg, set out the arguments convincingly and persuasively. He is a former Speaker and a former Lord Chancellor. I read the debates held in the House of Commons. There were a number of good speeches. I think I have seen two Members of the House of Commons come up to listen to our debate. No doubt they will read our speeches carefully when they are published in the days to come. They should do so because what is so striking—I hope this does not seem patronising in any way to the House of Commons—is that people who have had real experience in the front line of our democratic system are passionate about the importance of not upsetting the balance between the House of Commons and the House of Lords.

Sometimes we are presented as “last ditchers”, as those who are not prepared to change or envisage reform. What is notable about all the speeches today is the willingness to see change and to embrace reform, but on the basis that that reform is definitely going to improve the House or Commons or the House of Lords. I accept that there is a case for reform: the turnout at elections; the contempt in which politicians appear to be held by the electorate; the failure of scrutiny by the House of Commons, where we are left with the tidying up at the end of the day; the use of the Executive of this Chamber in order to implement last-minute second thoughts for ill-considered legislation; the over-mighty Executive; the development of presidential government; and the complete emasculation of the Cabinet, which no longer seems to count for very much at all in our system. These are all important issues which need to be addressed. I refer also to the rise of the special advisers, many of whom no doubt would be candidates for an elected House of Lords, and the undermining of the Civil Service. There is a deep need for reform and for strengthening the role of the House of Commons in particular.

So far as the White Paper is concerned, I agree with the objectives. Mr Straw says he wants an upper House which is independent, which has outside expertise, where people are not under the whip from party managers, and one which cannot challenge the House of Commons. What I cannot get my head around is the fact that this is what we have now, and the proposals for change would undermine it. The debates in the other place referred to powers and how it would be possible to set out in the statute the powers of this House. A point made regularly by the late and much-missed Lord Carter is that it is perfectly apparent that the powers of this House are extraordinary. If this House wanted to, it could destroy a Government. This House could bring a Government’s legislative programme to a halt. We do not do so because we are not elected, because we do not have the legitimacy of election.

I understand that in the end a Member of the House of Commons is able to claim the legitimacy of a democratic mandate, but if I am asked to stand for this House as an elected person, then I will claim the same mandate. And I am being asked to be elected at a different time, so attitudes may be different. Would I stand on a manifesto if it was an elected House? What would be in my manifesto? Would it be the manifesto on which I was elected on a 15-year term 15 years ago that would count, or the one at the last election? On that basis, all kinds of difficulties would arise for parties which have changed their policies, which includes mine on a number of matters. If the powers of the House were to be defined and enshrined in statute, we would be into the business of a written constitution.

If I may refer to that cliché which is endlessly used, the House of Lords is not broken—72 per cent of the public think that it does a good job. As my noble and learned friend Lord Howe of Aberavon keeps asking, how would having an elected composition enable us to do a better job?

I am a democrat. I accept that the House of Commons has voted, pretty overwhelmingly, for a fully elected House of Lords, and we need to take that seriously. But we also need to look at the arguments and the reasons that have been given. For example, Mr John Bercow asked whether there was a single Member who would argue that an elected House should have control of taxation or expenditure. Well, yes, there is. If I am elected Member of a second Chamber, then I want to address what the Institute for Fiscal Studies tax law review committee said about the quality of scrutiny of tax legislation in the House of Commons. It said:

In the 2005 Finance Bill, less than 5 per cent of the clauses and three out of 165 pages were discussed—only three pages. Indeed, the biggest measure—the imposition of £1 billion in tax on oil companies—was not debated at all. The notion that the House of Commons is doing this perfect job and that there is no need for reform is clearly misplaced. But if reform is needed, it is needed for Parliament as a whole. It is impossible to look at the role of this Chamber and at reform without doing both together.

Similarly, Andrew Tyrie and Theresa May, both members of my party, were arguing for greater powers for the House of Lords and for an elected House of Lords. Andrew Tyrie argued that the House of Lords had not done its job in stopping the poll tax. Theresa May argued that the House of Lords would not take greater powers if it were elected. There seems to be confusion in the arguments being advanced.

What do we do now? At the very least, we need to reconvene the Joint Committee of both Houses. We need to look at the arguments for a fully elected House of Lords, as the House of Commons has advocated. We need to look at the implications for the House of Commons. We need to be certain that the pre-eminent Chamber—the House of Commons—understands fully the implications of what it is suggesting and that the matter is properly considered. The nature of the list system, for example, would give enormous power to the political parties. All these things need to be considered. I believe that if the House of Commons understands the implications, it may very well think again. As the saying goes, “Be careful what you wish for”.

7.34 pm

Lord Steel of Aikwood: My Lords, the noble Lord, Lord Forsyth, is in for a second shock, because I agree with him, too. That is most unusual.

To some extent, we have only ourselves to blame for last week’s substantial vote in the other place. We all know that there are things in this House that require reform, yet we have done very little about it. Let me mention three things. First, there is no doubt in my mind that the cash-for-peerages issue, however it turns out, has done great damage to the body politic as a whole and, in passing, to this House. There is a growing consensus in all parts of the House in favour of a statutory appointments commission, but we have not advanced it.

Secondly, we could dispose of the last of the hereditary element simply by ending the by-elections for hereditary Peers, thus at a stroke turning the existing hereditary Peers into de facto life Peers. These by-elections are particularly ridiculous on the Labour and Liberal Democrat Benches, where there have been more candidates than voters. It is impossible to defend that system.

Thirdly, as my noble friend Lord Mackie pointed out, we have 740 Members of this place; about a third hardly ever turn up, largely because of reasons of increasing age and infirmity. We ought by now to have had some decent arrangement in place for some 200 or so to be able to leave with dignity.

If we pressed ahead with these three reforms, we would be in a better position to argue for the continuation of the House of Lords rather than its abolition and replacement by an elected Chamber. For a House with very limited powers, these three reforms would make it more acceptable and popular in the country than it already is.

Since so many Members have harked back to Mr Asquith, I would like to quote from the preamble to the Parliament Act 1911, which said that,

As my noble friend Lord Rodgers pointed out, the House of Lords has changed substantially—out of all recognition—since that commitment was made. It is no longer anything like the House that Mr Asquith faced. But it is not even the same House that existed when I was Leader of the Liberal Party. In response to my leader, who had some gentle fun at my expense, during the 12 years in which I led the party, I did regard myself as the hereditary keeper of the Asquith promise. The Ark of the Covenant was safe in my hands, you could be assured of that.

What has changed, then? The simple answer is that the House of Lords has changed. The hereditaries have all but gone and could easily go completely. The primacy of the House of Commons has been accepted in a way that was not accepted even in my time as leader of the Liberal Party. We had an inbuilt majority of one party in the House of Lords. More importantly, the lack of clearly defined primacy was evident in the fact that during my time as a Member of Parliament, a Foreign Secretary, a Defence Secretary and two Secretaries of State for Trade and Industry sat in the House of Lords. I do not believe that any Government would do that today. The primacy of the House of Commons has been accepted fully.


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