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I have one other general point. If we are to have a hybrid House, then I believe we really must seek from the outset to ensure that all its Members, whether elected or appointed, are treated equally and regarded as equals. That point has been raised by a number of others in this debate already. There must be no question of elected sheep and appointed goats. To ensure that, I hope that the drafters of any legislation will establish that point clearly on the face of the Bill. I am sure I will be told that equality goes without saying and that this is not the sort of thing one normally puts in a Bill. But I am equally sure that if it is not said and not formally established there will be a real risk of friction and divisiveness within the House.

It would be churlish not to thank the authors of the White Paper for responding positively and for recognising the contribution that appointed independent Peers make to the work of this House. They have done so in the White Paper so cogently and fully that I see no need to go over that ground again. They have also recognised that a satisfactory number of independent Peers will simply not be achieved under a wholly elected system. So I hope that we can regard “at least 20%” of appointed independents as a given in any reform that the Government put forward after further consultation.

However, amidst all the complexities of a hybrid House, it will be extremely important to ensure the genuinely independent nature of all the Members of that particular cohort and to guard the cohort against erosion or dilution from the outside. To achieve that will require, first, a clear definition of what constitutes an independent Peer to be set out in any Bill that is brought forward. That definition will need, I suggest, to exclude any person who is a member of, supports publicly or gives money to a political party. The current members of the Cross-Benchers’ group who do not meet those criteria will of course have the opportunity to gain a seat in this House by election.

Then, it will be equally important to have an objective body to police the definition and to ensure that the independent element is not nibbled away at its edges and is at all times kept up to full strength. That task can certainly not be left to the usual channels or to any other mechanism that might suffer from a conflict of interest. I would suggest that the obvious recipient of such a mandate would be the statutory Appointments Commission itself, a body set up by and answerable to Parliament as a whole. If that is the solution chosen, then the commission’s mandate will need to be set out clearly and fully in the definition that is brought forward.

The White Paper covers a number of other issues which will affect the composition and diversity of the independent Members of the House. So far as the Lords Spiritual are concerned, it was helpful that the noble and learned Lord the Lord Chancellor, when introducing the White Paper, answered so clearly that they were entirely separate from and outside the group of “at least 20%” of independent Peers. They will not be appointed by the statutory commission, nor will they count against the 108 independent Members of a 540-Member House. Not all the calculations in the White Paper are totally consistent with the noble and learned Lord the Lord Chancellor's reply, but no doubt these inconsistencies will be remedied in due course.

Then there is the question of the retiring members of the Supreme Court and of any persons appointed for the purpose of achieving diversity and representativity as a consequence of their membership of other faiths than the Church of England. Clearly the presence in the reformed House of some retired members of the Supreme Court will be highly desirable, as will be the presence of non-Anglicans. But if there were automaticity of appointment for every retired Justice of the Supreme Court, then the representation of the law among the group of independents could over time become disproportionate. So far as others faiths are concerned, any sort of automaticity would run up against the absence of hierarchy in many of them and the difficulty of deciding which ones should and which ones should not be represented. Would it not therefore be better to leave both these matters in the hands of the statutory Appointments Commission? Then the names of those who wished to be considered for appointment could be considered, and an appropriate balance and proportion achieved.

By concentrating on the independent, appointed element of a reformed House, I am conscious of having ignored many important issues and of having sounded perhaps a bit self-serving. However, I genuinely feel that the independents make a positive and irreplaceable contribution to the work of this House, and hope that, as our work on reform moves forward, this aspect will continue to be considered in a sympathetic and constructive manner.

8.10 pm

Lord Tomlinson: My Lords, consensus is one of the most overworked words in the general debate leading up to the White Paper and in the discussion of House of Lords reform. My right honourable friend Jack Straw claimed from the beginning that he was trying to get consensus between the parties, within the parties and between the Houses. Of course, if that was one of his goals, he singularly failed. Last week we saw Labour MPs voting against their Government’s preferred option, Conservative MPs voting against their party leader’s preferred option, and I am sure that we will see disagreement in this House between ourselves and the House of Commons.

The only consensus that has been reached is that of the Joint Committee on Conventions under the chairmanship of my noble friend Lord Cunningham. I certainly agree with the proposal of the noble Lord, Lord Forsyth, that if we are going to reconvene anything, it ought to be that Joint Committee, trying to get consensus on how we go forward. However, I gather that the threat is that Jack Straw proposes to reconvene what he calls his “cross-party group”. That cross-party group is not representative of anything much. The noble Lord, Lord Strathclyde, clearly does not command overwhelming support from his noble friends.

Lord Graham of Edmonton: Oh yes he does!

Lord Tomlinson: My Lords, it may shock my noble and learned friend Lord Falconer to find out that he also has more people behind him who disagree with him than agree. I suppose that the noble Lord, Lord Williamson, and the right reverend Prelate will go along with this attempt to seek consensus in the hope that Jack Straw meant his 80 per cent vote, which leaves them with residual hope, rather than the 100 per cent vote which he also cast, showing his consistency of thought and commitment to principle. I can see that happening. Consensus is in danger of being my right honourable friend Jack Straw offering himself as the dog whose tail is to be wagged by the Liberal Democrats. That is not the sort of consensus that will greatly lead this House forward in the discussion that it must have.

My noble and learned friend Lord Irvine of Lairg broke the monastic silence he has suffered over recent months with a wholly admirable speech and clear conclusions about his voting intentions. I fully welcome his views and share his voting intentions. During our discussions, ever since the noble Lord, Lord Wakeham, produced his Royal Commission report, I have asked a succession of Ministers in private meetings the same question about your Lordships’ House. What added value does election bring to it? If it is high, why only 20 per cent at one time, 50 per cent at another and 80 per cent now? If it is low, why even those figures? So far, there has been a singular failure to define the perception of added value that election will bring. It tends to be summed up in a couple of words: incantations around the word “legitimacy” on the one hand and “accountability” on the other. My noble and learned friend Lord Irvine demolished the argument about legitimacy, and what sort of accountability is there in a system where you would be elected for 15 years, in which you can create any sort of mayhem anywhere in the country because you will never be allowed to seek re-election? Accountability comes through seeking re-election, and is specifically debarred in these circumstances.

We have the very antithesis of accountability. Neither legitimacy nor accountability demonstrate added value. The noble Lord, Lord Richard, was eloquent about accountability, but the accountability in the White Paper’s proposals is mythological. What on earth does this sort of structural non-accountability, accompanied by a party list system on the mysterious basis of a partially closed list, mean? We will not see the independence of an Appointments Commission, but a party fix on the ordering of places on a list. I do not know about other parties, but we saw how that worked in mine with the first operation of a closed-list system in the European Parliament elections, when it was used to cull those regarded as awkward.

I am not opposed to change, but it must be rational. There must be a clear addressing of specific problems, with a possibility of solving them and creating a better solution. We have had a White Paper in which a particular voting system for determination of the outcome was regarded as imperative, and was dropped a couple of weeks later because Jack Straw saw that he could not get it through the House of Commons. We saw a government view committed to 50:50, followed by, “Well, 80:20 might be okay, but I shall vote for 100 per cent as well”. There is no rationale in that. It addresses no problem other than change for change’s sake.

What is the problem that this sort of approach seeks to address? Before I vote for change I need to know what is the problem to be addressed. To judge the relevance of any proposed solution, and if election is part of that solution, I need to know with precision the basis of constituencies, the system of election, all the problems of the list and, above all, what the relationship will be with another place. None of those things is clear in these proposals, and that is why, like my noble and learned friend, I will be voting this week for an all-appointed House and opposing the other options.

My final word is to say to those who argue that we must take note of what was said down the other end: of course we must, but consensus does not mean that we capitulate to their point of view. We take note of it, but, if they want it to be taken seriously, it has to be much more cogently argued than it has been at present.

8.19 pm

Viscount Tenby: My Lords, it was with some diffidence that I put my name down to speak in this debate. My reasons were that all the arguments had already been aired many times before, and I would guess that all but a handful of noble Lords have long since made up their minds about how they are going to vote. In addition, the noble and learned Lords, Lord Irvine of Lairg and Lord Howe, have presented my arguments far better than I ever could.

However, two factors have overcome my reserve. First, I ought perhaps to declare a passing family interest in these matters, stretching back for nearly a century. Although my distinguished ancestor held a more jaundiced view of this place than I do, times and circumstances have changed markedly in the intervening period, a point powerfully made by the noble Lord, Lord Steel of Aikwood. The House of Lords has become more expert, more hardworking, more representative, more finely balanced and, indeed, less party political—all factors of which he would have approved.

My second reason for taking part is that I was engaged in the first attempt at discussing Lords reform in what, if I may so describe it, is the current burst of activity on the subject. It was more than 11 years ago that the late Earl Carnarvon, on his own initiative, got together a small group to start a discussion on the reform of this House. Of that number, apart from myself, only the noble Earl, Lord Selborne, whom I am glad to see in the House today, and our very able Clerk, Mr Douglas Slater, remain. As an informal group we did not feel it was appropriate to make any recommendations, but merely to concentrate on the role and work of the House and to list some of the options available for its reform. In performing that self-allotted task, we were extremely grateful to have been able to obtain the views of many distinguished parliamentarians at the time.

I hope that noble Lords will not feel that I am being unduly biased when I say that, on re-reading the report, I feel it may have been a helpful contribution to early thinking on the subject. Later, as a Cross-Bencher in the office of the then Convenor, my noble friend Lord Weatherill, I had a peripheral role in the continuing negotiations on questions relating to reform. I say immediately that I share the reported early views of the Prime Minister and the Leader of the Commons; namely, that this should be an all-appointed House. I much regret their departure from that position, which is no doubt due to political, rather than rational, considerations, a change of view that is sometimes inevitable in the toing and froing of parliamentary tactics.

The Government White Paper, I think it is fair to say, has hardly been received with acclaim. In view of some of the detailed comment contained in it, however, that is a pity. Its commitment to a Statutory Appointments Committee is to be welcomed, particularly if, like me, you feel that such a committee should play a major role—the major role—in the future of this place. Further, if there is to be a hybrid House, and I fear that there is every likelihood that that may well be so, there is something to be said, despite certain views to the contrary expressed today, for basing future constituencies on the European pattern, with elections at the same time as those for the European Parliament in order to maximise voter participation. However, the White Paper does not recognise sufficiently the dangers of a “them and us” culture being created within the membership in any hybrid House, a point that has already been made this evening. It is also surely right that the House should continue to have its own Ministers. I do not, however, propose to go into detail extensively, since many speakers have already done so or will do so. I shall merely comment on various points that seem to be of the greatest importance.

Certain questions can quickly be asked. What sort of democratic legitimacy is there in partially closed list elections? Voters in various parts of the country have already experienced this so-called “benefit” with mixed feelings. As we have just heard, how much accountability can be expected from someone elected for 15 years with no possibility of standing thereafter? How can one ensure the same degree of experience and knowledge as is available in the House today from those who may have tried, and failed, to get into the Commons or European Parliament first? The noble Lord, Lord Lipsey, has already provided his own carefully crafted estimate for the additional cost that all these proposals may entail.

As a Cross-Bencher or, if I may use the more appropriate term, independent, I welcome and fully support the important points made by my noble friend the Convenor and my noble friend Lord Bledisloe. Whatever may be said, the greater the elected number in the new House, the greater the threat posed to the precious 20 per cent quota for independents. In the event of an all-elected House, it is difficult to see how any independents could survive. Indeed, with a fully elected House, in my view we might just as well have a unicameral system in this country, for diversity of opinion and independence of thought would be banished and we would be in the vice-like grip of party machines and party patronage will reach new heights. Some reform that would be, and some contribution to winning back voter disenchantment.

The White Paper acknowledges that many of those appointed to the Lords to date by the Appointments Commission have,

As a committed supporter of the appointment route to reform, I enlarge on that cautious and rather measured compliment. As a Cross-Bencher I am perhaps as well placed as any noble Lord to declare unequivocally from personal experience over many months that the quality of those coming in by this route has been quite outstanding over many different areas. I apologise for any embarrassment I may cause my noble friends by saying this but it is a relevant point that must be made in these discussions again and again. Anyone who believes that similar talent can be unearthed by, say, election from a partially open regional list system is living in cloud-cuckoo-land. This House, and more importantly this country and its future laws, would be very much the poorer for such a change.

It is surely a remarkable irony that as the percentage of votes cast in general elections continues to decline, so the clamour for increasing the number of elections held increases. There are those, of course, who would seek elections for every post, from judges to quango members, but what really matters surely is whether the people chosen are up to the mark for the job they are required to do. No one would claim that this House is perfect, far from it, but its breadth of knowledge and experience guarantees that its debates will be informative and productive and that its recommendations on legislation will, for the most part, be constructive. If we tamper thoughtlessly with this place too much in future to attain some democratic nirvana, we will inevitably end up seriously damaging Parliament itself. I accordingly invite noble Lords on Wednesday to vote for an all-appointed House.

8.27 pm

Lord Plant of Highfield: My Lords, I came into this House in 1992, having spent some two or three years prior to the election in that year working with the then right honourable Neil Kinnock, the former leader of the Labour Party, on aspects of constitutional reform. I came into this House after the election firmly convinced of the need for it to move, over time, to being a wholly elected Chamber. I still hold to that view and I shall say why.

It seems to me a fundamental democratic principle that power should be exercised only with the consent of those over whom it is exercised. That would be an argument in favour of some kind of electoral basis for this House, although obviously it could be elaborated a lot more. The counter-argument, very powerfully put by my great friend Sir Patrick Cormack in the debates on the reforms proposed by the late Robin Cook, was that that was an irrelevant argument, because the House of Lords did not have any power. That is a mistake. Power is exercised when people are compelled to do things that they would not otherwise do or when they are compelled not to do what they would otherwise do.

In the case of the House of Lords vis- -vis the House of Commons or vis- -vis the Government, the House of Lords does exercise power in that way. There are endless examples of government legislation that has been modified to accommodate the Lords. Usually the Government have not made those modifications because they are convinced by the intellectual case deployed on the Floor of the House; they have usually been convinced because they have lost the vote in the Division Lobbies. Compared with how often they give in over Divisions, how often have the Government said that they will do such and such because they believe that the House of Lords has figured out an argument that they had not fully accepted previously? I do not think that the score would be all that high compared with how they react to losing in the Division Lobbies.

When I was a Front-Bench spokesman in the early 1990s, Baroness Blatch, who was the junior education Minister, introduced a large Bill—I cannot remember its name—containing a lot of clauses about university student unions that, given the hostility of this House, were jettisoned. That is power; it may not be fantastically great power, but it is power. It should be subject to consent, which seems to me to be a basic democratic principle.

People will say that expertise itself confers authority, and that legitimacy or authority can come through the exercise of expertise and is not just given by consent. Despite being an argument that goes back to Plato, it is a mistake. To be an authority or an expert on something does not put you in authority in relation to anything without someone consenting to it. My cardiologist is an expert, but he is only in authority, so far as he is, over my life because I want to get my heart fixed. I choose to endow him with authority relating to his expertise. Consent is ubiquitous. I consent to the exercise of the authority. Authority and expertise are important, but expertise does not create authority in the sense of being in authority; being an authority does not make you in authority over anything without the consent of those over whom the authority is exercised.

Nevertheless, if we move towards an elected House, which would have to happen over quite a long period, there are issues that the Government will have to take very seriously. First, there is the relationship between the two Houses. When I was working on the material for Neil Kinnock, the committee that I chaired took the view that the relationship between an elected House of Lords and an elected House of Commons would have to be based on statute. If it is based on statute, that would have to embody precisely defined accounts of the various powers of the two Houses and, when push comes to shove, as it undoubtedly would, it would have to be interpreted by a judge. I am in favour of that and of a more codified constitution than we have, but it would be entirely fanciful to think that an elected House of Lords would stick with the powers that it has. We would have to have a statutory relationship between both Houses. Eventually that would mean judicial interpretation of the meaning of that statute. I suspect that many of those who voted for 100 per cent election last week did not contemplate that, but it is an inevitable consequence.

I echo my noble friend Lady Quin about engaging experts in other aspects of the legislative process—in committee work and in pre-legislative scrutiny. You do not need permanent experts with seats in the House. You can engage current and diverse expertise in much more creative ways through, for example, committee mechanisms and pre-legislative scrutiny.

As my noble friend Lord Tomlinson said, there are big questions to be asked about the length of time that elected Members would serve. It does not seem all that plausible to think that it should be 15 years, partly for the reasons that he mentioned. There is a very good article in the London Review of Books by Bruce Ackerman, the American philosopher, about why accountability has to do with getting rid of people as well as electing people. On the proposed basis, they would not be got rid of, because they would have tenure for 15 years and go at that point without the possibility of re-election. That is a serious point.

There is another point. The House would be elected by a form of PR, which means that members of small parties would get elected, which is a jolly good thing. However, small parties are extremely vulnerable financially, as we discovered in the case of UKIP and Veritas, if it still exists at all. People could be elected for a 15-year period, yet within nine months or so the party that they represented could have imploded, because its financial basis was tenuous. That would be a serious problem. Also, to pick up a point made by the noble Lord, Lord Forsyth of Drumlean, small parties can be vulnerable to ideological change and takeover, because they do not have many members and the leader or whoever could push the party in one way or another. Again, one could be elected for 15 years on one platform, while the party could represent something different after a very few years.

So there could be major problems, both with the relationship between the two Houses and the length of time to be served by elected Members. Nevertheless, I remain convinced that the only way forward is that of elections to this House, although we must be open-eyed about the fact that that will require a much more codified constitution.

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