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House of Lords

Friday, 3 December 2010.

10 am

Prayers-read by the Lord Bishop of Newcastle.

Arrangement of Business

Announcement

10.06 am

Baroness Anelay of St Johns: My Lords, it is a firm convention that the House rises by about 3 pm on sitting Fridays. If Back-Bench contributions are kept within seven minutes on both of the Second Readings, the House should be able to rise shortly after 3 pm.

Re-Export Controls Bill [HL]

Bill Main Page
Copy of the Bill

Second Reading

10.06 am

Moved By Lord Alton of Liverpool

That the Bill be read a second time.

Lord Alton of Liverpool: My Lords, at the outset of my remarks, I pay tribute to Hannah Wright and Tom Donnelly of Saferworld, who have worked tirelessly to prepare background and briefing material for the Re-Export Controls Bill. Two weeks ago, they accompanied me to a meeting with the Minister-the noble Baroness, Lady Wilcox-and her officials, to whom I am grateful for their courtesy and willingness to engage in the issues raised by the Bill. We were accompanied by the right reverend Prelate the Bishop of Bath and Wells, who is a supporter of the Bill who had hoped to speak today but is a casualty of the Arctic weather conditions in Somerset.

Perhaps I should also put on the record the names of some other noble Lords who are supporters of the Bill. The list, which reveals approval from all parts of your Lordships' House, includes: my noble friend Lord Hylton; the noble Lord, Lord Judd; the noble Baronesses, Lady Kinnock and Lady Falkner; the noble Lord, Lord Chidgey; my noble friend the Earl of Sandwich; the noble Lord, Lord Steel; the right reverend Prelate the Bishop of Bath and Wells; the noble Baroness, Lady Morris of Bolton; the noble Lord, Lord Razzall; my noble friend Lady Cox; the noble Lord, Lord Selkirk; the noble Baroness, Lady Tonge; the noble Lords, Lord Morgan, Lord Lyell and Lord Bates; and, my noble friend Lord Hannay of Chiswick.

I know that the noble Baroness, Lady Wilcox, will plead that the Bill is not necessary. She will doubtless argue that the Bill would create administrative burdens, that current end-user arrangements are satisfactory and that it would not add to what the United Kingdom is doing at present. I hope in my remarks to do two things: first, to set the scene and to show why this country needs to do all that it can, within its powers, to try to end the flow of arms into areas of conflict; and, secondly, to describe the purpose of the Bill.



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Civil servants invariably prepare briefs that argue against change and for the status quo, but I hope to convince your Lordships that this Bill would not only close a legislative lacuna but enhance our authority in the international arena as more comprehensive measures on arms control are considered. All the arguments for no change that will inevitably be advanced today can be countered by one decisive point: that re-export controls are used in many other jurisdictions, including-as the Minister confirmed yesterday in Answers to Written Questions that I tabled-other European Union countries, such as France and Germany, and in the United States, China and Russia. As supporters of the Bill have recognised, if such provision was deemed necessary by legislators in all of those other jurisdictions, what evidence has led the United Kingdom to a different conclusion? Also, if those provisions have not crippled their Civil Services with extra administrative burdens, why should similar provisions have that effect here?

Private Members' Bills are promoted in the hope of securing legislative change, but they have another important function, too. They create debate, challenge attitudes and influence policy-making. The Bill needs to be set in the context of the flow of arms into areas of conflict and against the backdrop of militias, genocidaires, child soldiers, warlords and whole regions, especially in Africa, that are awash with weapons. You do not need a weapons inspectorate to know what the weapons of mass destruction are in Africa; they are the small arms that you see everywhere.

In September, I was in Southern Sudan, southern Ethiopia and the Turkana region of Kenya. In an Ethiopian village called Omorate I talked to Joseph Amukoo, who is now aged 14. He was shot on Christmas Day last year in Salan village where he was sleeping alongside three men. Joseph's father is dead and his mother and brother had encouraged him to work with the men, to earn some money to support the family, in building a house. He comes from the Merille tribe. As they slept, they were set upon by Turkana warriors, who burst in just after midnight. Joseph's companions were killed and Joseph, badly wounded with a bullet through his chest, was left for dead. The following day, he was airlifted to Kenya's Kakuma hospital. Surgeons immediately operated and removed a bullet just centimetres from the boy's heart.

Still clearly traumatised by that terrifying experience, Joseph told me, "At midnight I saw their shadows and as they entered I pretended to be asleep. After they shot me in the chest, thinking I was dead, they ran away. I was left alone. In the morning the police vehicle came and after the bodies were removed the police collected ammunition and began inquiries". I asked Joseph what happened next. He said, "They never found the men who shot me. This is normal". What was their motive? "They killed for revenge. Their family had also been killed, one month earlier in the village of Kokuro, so they came for revenge, simply revenge". Joseph described the killers as, "powerful warriors. They killed to show that they are powerful men".

Joseph's story could be replicated countless times: a decade ago, in Southern Sudan, 2 million people died during the civil war there; 200,000 people have died in Darfur; the so-called Lord's Resistance Army in northern

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Uganda was responsible for the deaths of more than 1 million people; another 1 million people died in the Rwandan genocide; and 6 million have died in the continuing conflict in the Democratic Republic of Congo. These deaths happen because weapons manufactured outside Africa are exported to the continent by unscrupulous quartermasters who care little about the suffering or misery caused by their trade.

I was struck by some words from Hillary Clinton on 16 November, when the US Secretary of State made the point that this is not a historic problem but a contemporary one, even as we meet today. She said:

"We remain deeply concerned about Darfur. Violence is intensifying, human rights violations continue, arms flow despite the embargo, journalists and activists are arrested-some merely for speaking to members of this Security Council-UN peacekeepers are kidnapped. This is all unacceptable".

Those remarks followed reports in October that more than 50,000 weapons had been shipped into north and south Kordofan, elsewhere in Sudan, to supporters of President Omar al-Bashir. Bashir has, of course, been indicted as a war criminal for genocide by the International Criminal Court, yet the flow of arms into areas immediately in advance of January's forthcoming referendum is continuing to destabilise the situation there.

These small arms-man-portable weapons such as assault rifles, mortars, and grenades-are light and cheap tools that take a fraction of a second to fire, but their effects can be felt for a lifetime within families, communities and nations. Small arms have been a staple of all recent armed conflicts. They are available in abundance; no one knows how many of these weapons are currently deployed with armies, criminals and private security forces around the world, but estimates are in the hundreds of millions. In virtually all the armed conflicts currently dealt with by the United Nations, small arms and light weapons are the primary or sole tools of violence. Analysts estimate that around 2 million small arms and light weapons are still circulating in central America, 7 million in west Africa, an estimated 10 million in Afghanistan and millions in the Great Lakes region of Africa, where in the past 12 years an estimated 7 million people have been killed in the ongoing wars and humanitarian crises.

With few exceptions, none of the countries where these weapons were used in recent armed conflicts actually manufactures them. In many cases, neither the manufacturer nor the exporter, nor even the buyer, really knows the purposes for which the weapons will be ultimately used because, unlike the trade in other categories of weapons, nearly 40 per cent of the trade in small arms is carried out through illicit means. The weaponising of communities, the growing use of children as soldiers, illicit mining and the use of rape as a weapon of war in places such as Congo, across the Great Lakes and the Horn of Africa are just a few examples of what is happening, but among other things these crises are sustained by the continued proliferation of small arms and light weapons.

In modern conflicts, more than 80 per cent of all casualties have been civilian casualties, 90 per cent of which are caused by small arms. Stories such as

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Joseph Amukoo's, which I have mentioned, and accounts of those who have witnessed or lived through these crises are shocking enough to melt a stone heart. As the former UN Secretary-General Kofi Annan said in his report on small arms,

"At least 500,000 people die every year as a result of the use of small arms and light weapons. Of the estimated 4 million war-related deaths during the 1990's, 90 per cent of those killed were civilians, and 80 per cent of those were women and children, mostly victims of the misuse of small arms and light weapons".

The 2008 report, Global Burden of Armed Violence, commissioned by the Geneva Declaration on Armed Violence and Development, says that between 1990 and 2007 $300 billion was lost by 23 African countries as a result of violent conflict. That sum is roughly equivalent to the international aid that Africa received in the same period. If that money had not been lost due to armed conflict, it could have been used to solve the problems of HIV and AIDS in Africa or to address the many needs in education, clean water and sanitation and prevent tuberculosis and malaria. On average, armed conflict shrinks an African economy by 15 per cent, but that is probably a conservative estimate.

A crucial point in the report is that around 95 per cent of the weapons used in those conflicts came from outside Africa. Although those were not all from re-exporting countries, or indeed from the UK, that figure highlights the fact that getting a handle on the irresponsible, illicit transfer of arms more broadly is essential. The same report says that more than 740,000 people die around the world each year as a result of armed violence. According to the World Health Organisation, as many as 10 times more people are injured. That includes an average of 52,000 violent deaths per year in armed conflicts and 200,000 a year who have died in conflict zones from non-violent causes such as malnutrition, dysentery or other easily preventable diseases that resulted from the effects of war on populations.

Words cannot do justice to the detrimental effects that small arms and light weapons have on fragile and unstable societies. They have ruptured social cohesion; they divide families and people; they corrupt institutions and destabilise and eventually destroy societies and Governments. In doing so, small arms undermine the very social and economic fabric of our societies as well as damage the democratic functioning and constitutional arrangements of those places.

I am of course not suggesting that all such arms originate in this country; equally, though, Britain's trade in arms is truly global in scope and impact. Analysts claim that Britain and the other four permanent members of the UNSC, along with Germany and Italy, accounted for around 85 per cent of the arms sold between 2002 and 2009. This is roughly a $45 billion to $60 billion business. As a huge and major producer of arms, we have a special responsibility to do everything that we possibly can to regulate and control the flow of arms.

Over a decade ago, Madeleine Albright, the former US Secretary of State, said:

"All of us whose nations sell such weapons, or through whose nations the traffic flows, bear some responsibility for turning a blind eye to the destruction they cause. And all of us have it in our power to do something in response".



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The Bill is an opportunity to do something in response and is our opportunity to build on what has been done so far, to fill the current gaps and to match our well thought-out intentions with practical mechanisms that match our words. We are all acutely aware-let no one doubt-that through circuitous routes, and after changing hands many times, sometimes in collusion with traders in other contraband goods, small arms have been used in places far removed from their original places of regular supply.

What would the Bill do? In many respects, I happily concede that the UK arms transfer control regime is among the most sophisticated in the world and that, as a country, we have led the international community in its progress towards establishing a global set of norms on the responsible transfer of military equipment. The Export Control Act 2002 and the subsequent Export Control Order 2008 were both significant steps in controlling the way in which our defence exports are controlled. Detailed risk assessments are undertaken for every licensing application to ensure compliance with the EU common position and the consolidated criteria. The Department for Business, Innovation and Skills publishes quarterly and annual reports on strategic export controls. I also welcome the publication of a new searchable database on UK arms licensing decisions.

The UK is clearly among the leaders on transparency in arms transfers. The committee on export controls does an excellent job of scrutinising the Government's decisions, but the one area in which the UK falls behind the other major arms exporters is the controls that we place on the re-export of our defence equipment. When countries decide to upgrade their defence systems and make major new purchases, they are faced with the question of what to do with their old equipment. Not surprisingly, one obvious option is to re-export those arms on to another buyer. The buyer is unlikely to be any of the world's great military powers, or those who seek to maintain a technological advantage by buying the newest, cutting-edge equipment or technology. Frequently, the prospective customers will be looking for relatively cheap equipment. Virtually by definition, they are in the market for second-hand goods.

The US, France, China and Russia-all of the other permanent members of the Security Council-require any state that purchases their defence exports to seek permission from them before re-exporting those goods; that is what the Bill seeks to do for the UK as well. Including such a clause in export licences is a simple but effective way of reducing the risk of arms exports ending up in the wrong hands. The purpose of the Bill is to amend the Export Control Act 2002 to introduce such a requirement, which would bring the UK into line with all other major arms exporters on this issue. The Bill would insert a clause into UK export licences stating that the buyer of UK arms will not re-export them to any third party without seeking prior permission from the UK Government.

The Government already place limited controls on the re-export of UK arms. The end-use declarations that buyers of our defence exports are required to sign include a clause that requires the buyer not to re-export to any state that is under embargo. This is clearly

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welcome, but altogether far too limited. There are many states that are not under embargo that the UK would have serious concerns about the re-export of arms to. Under the UK's consolidated criteria, licences may be refused for many reasons: because the arms may provoke or prolong armed conflict; because they may be used for torture or other human rights abuses; or because they may threaten regional peace and stability, undermine development or threaten our national security. There is a long list of countries to which the UK has refused to license defence exports. In the last period for which licensing decisions have been published-April to June 2010-the UK refused licences for exports to, for example, Bangladesh, Chad, Indonesia, Israel, Nepal and Pakistan, none of which is under embargo. Indeed, licences were refused for exports to 41 different countries, of which only five are subject to either EU or UN embargo.

Surely if we accept the principle, as the Government do, that the Government have good reason to forbid the re-export of arms to destinations of concern, we should apply that in all cases and not just some. In fact, a "no re-export" clause is all the more important where no embargo is in place. Where there is an embargo, states are already obliged under international law not to re-export. If states are willing to export despite an embargo being in place, it would seem highly unlikely that UK re-export provisions would constrain them. However, where no embargo is in place, the "no re-export" clause could make a real difference.

I am aware that the coalition Government have made a commitment to promote UK defence exports as a key priority, so I want to make it absolutely clear that the Bill is not designed to restrict the UK's ability to export. The Bill is concerned purely with the re-export of UK arms from which the UK receives no remuneration and no economic advantage. Therefore, I know of no reason why the Bill should pose a threat to British business. In fact, in the long run, having more robust measures to ensure that our exports do not end up in the wrong hands would help strengthen UK exporters' reputation as responsible sources of military equipment. Nor would the Bill introduce any extra red tape for UK firms, as foreign buyers would come directly to the Government for permission to re-export. When the Government received such a request, they would need to assess the risk that re-export would pose. Although that would involve additional licensing activity, I understand from non-governmental organisations that have had discussions with officials in other European Union states-I have recently raised this issue with the noble Baroness-that the number of requests received is relatively few and the additional administrative burden therefore low, although those Governments have greatly appreciated having control over those that they have received.

As I mentioned earlier, the UK has a thorough risk assessment process for such export licensing decisions. Among other things, the process includes an assessment of whether the buyer is likely to re-export the goods to a third party. Although that may suffice for detecting any immediate risk of re-export, in actual fact the buyer may not decide to re-export until years or even decades later, by which time circumstances may have

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changed in ways that could not have been anticipated at the time that the risk assessment was carried out-that is, before the items were originally exported. I gave the noble Baroness the example of four BN-2 Islander maritime surveillance aircraft that were exported from the UK to India in the 1970s. It was not until 2006 that the Indian Government decided to re-export the aircraft to Burma, an act which could not possibly have been predicted 30 years earlier. When the UK Government requested that India not proceed with the re-export, India felt able to ignore the UK request precisely because there was no contractual restriction on re-export. According to Sandeep Dikshit, writing in the highly regarded Indian broadsheet newspaper the Hindu on 4 February 2006, a senior Indian naval official was reported as saying:

"We should tell them where to get off".

This demonstrates two points. First, the possibility of future re-export cannot always be foreseen when a pre-licensing risk assessment is carried out. Secondly, if buyers have not signed a contract agreeing to seek UK permission before re-exporting, they have no reason to consider doing so.

The other issue, of course, is enforcement. I understand that the Government's primary reservation about introducing re-export controls has been that they are difficult to enforce. Indeed, if a state decided that it was determined to re-export UK arms against the UK's wishes, there would be little that we could do to put a stop to it. However, re-export controls are not about forcing the bad guys to submit to British will but about working with legitimate, reasonable importers. I assume that importers of military equipment from the UK want to be seen not as irresponsible trading partners but as people who keep to the terms of their agreements. If they do not, one would hope that we would not export arms to them in the first place. Having said that re-export controls are not about enforcement, I should say that, if recipients decided to re-export against the wishes of, or without alerting, the UK Government, we would have many partners with whom we could share that information and who could subsequently factor that illegitimate behaviour into future licence decision-making processes.

To sum up, there is a developing international norm supporting re-export controls as an important component of arms transfer control. Bringing the United Kingdom into line with that norm would strengthen the United Kingdom's legitimacy in persuading states with weak transfer controls to improve their regimes. It would be unfortunate-indeed, verging on the inexplicable-if the United Kingdom, which has so often led the way on arms transfer controls, were to stand against this wholly favourable tide. The Bill enjoys widespread support in your Lordships' House and in another place, right across the political divide. I ask the House to give the Bill a Second Reading. I beg to move.

10.29 am

Lord Lyell: My Lords, it is a pleasure and an honour to follow the noble Lord. I call him the marathon man because he had an enormous responsibility yesterday, when he also led the debate. He has made a masterly

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speech today. I thank and congratulate him on behalf of all of us who are going to speak in the debate. He has given us a top-class presentation. It was detailed and competent, and I hope he will forgive me for calling it passionate. In line with the motto of the great city that he lived in and with which I have some connection, I say nil satis nisi optimum-only the best will do. That is what the noble Lord is driving at.

I warned my noble friend Lady Wilcox that in as august a list of speakers as there is today, I am very much the mouse that roared. We have an instruction that it will help if speeches are short, so I hope I will help the debate and those who follow me since my remarks will only support, in the strongest possible terms, what the noble Lord, Lord Alton, is trying to do.

I read the Bill with great care. The licensing and transparency aspects certainly seem particularly important. Could the noble Lord and your Lordships just glance at new Clause 1A(3)(b) and (4)? These provisions seem to encapsulate everything, including all the difficulties that the noble Lord set out in his speech. It was implementation of these two particularly small points in new Clause 1A that caused me to take considerable interest in what the noble Lord pointed out today. In the back-up notes that he has so kindly given us, and as he has pointed out, the European Union code-which is, I think, known as the common position-was United Kingdom-led. What the noble Lord proposes in the Bill will encourage the United Kingdom Government to continue in that leading position.

However, proper and full implementation of these codes of conduct and a way of controlling re-export and re-re-export of arms could be appallingly difficult. The noble Lord has pointed out in his briefing that there was some concern over the United States, which tries to comply and is very helpful in the lead on this aspect. It exported some goods to Israel, which found their way on to China. Quite how one can make the provisions in the Bill bite worldwide is a difficult matter. In most cases, one will find that nations tend to comply with the rules, regulations and demands. However, it certainly worries me considerably that honest efforts could be made but-to put it tactfully-bullying by other nations or combinations of nations could follow. That is something that I hope the Bill will look at.

The most important point is to enlist the diplomatic world in what the noble Lord seeks to do. It is fine for us in your Lordships' House or elsewhere in the United Kingdom to say, "This should be done". Unless we have friends in the diplomatic world who can bring this policy and the wishes of the noble Lord to fruition, we will not get very far. However, what the noble Lord has presented to us this morning is worthy of enormous support. From the Back Benches, I am delighted to support the excellent Bill of-I was going to say "my noble friend", thanks to the Liverpool aspect-the noble Lord, Lord Alton, on which I congratulate him.

10.34 am

Baroness Kinnock of Holyhead: My Lords, I also pay tribute to the work of the noble Lord, Lord Alton, on the Bill, which has the potential to bring the UK's

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export controls into line with those of all the other major arms exporters in the world. Clearly, that should be a priority for all of us.

Some years ago in Kisangani, Amnesty found ammunition cartridges from North Korea, Chinese and Russian heavy machine guns, Russian revolvers, Chinese anti-aircraft weapons and Russian, Bulgarian and Slovak automatic launchers-this when the Democratic Republic of Congo was subject to an EU and United Nations embargo. The prevention of illicit and destabilising arms transfers requires urgent and active engagement. Action on landmines and cluster munitions has proved that if the political will is there, we can ensure that we have international systems capable of making peace and security efforts work effectively. We need rigorously enforced measures and efforts to close loopholes such as those we are discussing today.

Many of us here today have worked, and will continue to work, for an end to irresponsible arms trading, for the establishment of systems that are likely and able to end illicit international transfers, and to ensure maximum respect for the highest international standards. There is clearly a need for global co-operation by manufacturers, brokers and buyers, working with Governments. Another key element will be new or amended national legislation. Already, more than 90 countries have domestic laws in place governing the illicit manufacture and possession of, and trade in, weapons. Also, the UN has reported that an estimated half of the total of more than 4 million weapons collected and disposed of during the past 10 years have been taken over the past two years. There is reason for us to be encouraged but more needs to be done, certainly-as far as the UK is concerned-on post-export transfers.

Let us agree that there is no time for protracted diplomatic processes and that the UK must continue to offer clear leadership, in both the European Union and the United Nations. The very first member of the United Nations Security Council to support the arms trade treaty was the United Kingdom. We need reassurance today that the same commitment and enthusiasm exists, especially as a draft text on that treaty is being prepared. This week the UK Working Group on Arms expressed concerns that at the July Prep Comm in New York there was a clear perception that the UK was not providing the leadership that, in the past, has been so constructive. It has claimed that the United States, France and Australia took the baton. I ask the Minister: will the UK continue to argue for a comprehensive text? Will the UK engage with states likely to present opposition? Will the Government accept that licensing should carry an export contract that specifically prevents the re-export of arms, as the noble Lord, Lord Alton, said, to a country subject to arms embargo?

The Government should go further and ensure that the UK is in line with others who refuse to re-export without prior authorisation. This occurs in Belgium, for instance, while in Germany a clause on non-export without the agreement of the German Government is imposed in an end-user certificate. In principle, a country that breaches a no re-export clause or fails to ensure that the clause was respected would be denied

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future exports. Similarly, France requires certification that goods will not be re-exported without the consent of the French Government. While acknowledging that a no-export clause in an end-use certification is not a guarantee, it without doubt puts additional contractual obligations on the intended recipient. A state supplying these measures also has the potential to apply sanctions to prevent the diversion of goods.

Many countries that lack a modern defence industry such as ours can still act as sources of surplus or second-hand goods, such as small arms and light weapons, as the noble Lord, Lord Alton, said. Does the Minister agree that if the UK implemented a no re-export clause, it would surely increase the likelihood that the UK will achieve EU harmonisation on this issue?

NGOs also strongly support the need for controls, including re-export controls. They challenge the Government's claims that checks before export are able to deal with the dangers posed by the situation. European Union officials from member states that use re-export clauses will argue strongly that the UK should also be in favour of them. Even if the arms trade treaty provides for an appropriate standard of control, it will take until 2012 for it to be put in place. Even then it will need to be ratified and come into force. Of course, some states may choose to remain outside the agreement. They will, in all probability, be the very same states that will need to have those post-export controls. In the mean time, why does the UK not tighten up its own export controls in this way? We could then strengthen the argument that the UK will need to make as part of a stronger European Union and UN lobby.

Every step of the way of improving arms trade controls has met with a repetition of the same old arguments: "It will cost too much"; "It cannot be enforced"; "Existing controls are enough"; "It is happening anyway"; and so on. Disappointingly, as I have said, on post-export controls the UK trails behind other major arms-exporting states. I trust that today we shall see a willingness to adapt the current UK position. That is surely justified because controls on arms trading contribute to cutting that umbilical link between conflict and systemic insecurity and poverty.

10.40 am

Baroness Falkner of Margravine: My Lords, I congratulate the noble Lord, Lord Alton, on bringing forward this Bill and on making such a compelling case for why its time has now come.

We know that the arms export business is one of the least transparent and most globalised businesses around. It is replete with brokers, middlemen, cover companies and offshore financial dealings. The line between it and the security services or military in many countries is extremely blurred. Above all, its business is death, injury and torture. Of the many millions who have died in armed conflict, many have died from the use of arms and related products that were not intended to be used in that manner or against those people.

We in the UK have much to be proud of. We have developed one of the most rigorous regimes for the export of arms and related weapons and goods since

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Sir Richard Scott's report on the arms to Iraq inquiry of 1996. We have built on the Export Control Act 2002 and we have had the legally binding EU Code of Conduct for Arms Exports since 2008. Yet, and despite a rigorous regime, we have story after story of how the controls have proved ineffective in preventing misuse of the exports or, even worse, we appear to have colluded in side-stepping our own controls, as this week's leaks have shown in the case of cluster munitions.

Another example of misuse was seen in the Committees on Arms Export Controls report of March this year, which found that British arms exports to Israel were almost certainly used in Operation Cast Lead-the attack on Gaza. Its report states:

"This is in direct contravention to the UK government's policy that UK arms exports to Israel should not be used in the occupied territories".

CAEC went on to say that export licences to Sri Lanka were revoked after the arms delivered were used by the Sri Lankan military against the Tamil Tigers. These may have been used in some of the many thousands of deaths that occurred among the civilian population. I cite this just to illustrate that things can slip through even a relatively good export control regime.

But let me turn to the examples of where re-export controls would have had an effect. In 2009, we had the investigation ordered by the then Foreign Secretary when it became apparent that UK arms dealers had been buying Soviet weapons, including AK-47s, in Ukraine and then selling them to countries which are on the banned list. These arms were re-exported to Equatorial Guinea. That country regularly suppresses its population and has one of the worst human rights records in west Africa.

We know that the previous Government were reluctant, despite significant evidence, to introduce re-export controls. It is a modest step in the right direction if this Government go down this road. We know that they wish to increase arms sales as part of their strategy to increase the UK's overall trade balance. While I broadly agree that we cannot prevent the arms trade unilaterally, as other countries would simply step in, I believe that we can improve the existing regime by unilaterally tightening our own rules. This Bill is not about tightening controls on where and when we export; it is about making sure that our arms exports do not end up in places where we do not want them to, where they may inflame conflict or even be used against our own troops abroad.

One of the arguments that has been made against introducing re-export controls is that it would be inappropriate for the United Kingdom to impose these restrictions on other countries, which the United Kingdom would not accept if they were imposed on us. However, this should not be seen as an imposition of our will on other countries; a licensing agreement is a contract which is entered into voluntarily. Furthermore, the UK already restricts what buyers are able to do with our exports once they have bought them by including a "no re-export to embargoed states" clause in end-user agreements. Therefore, the Government have already implicitly acknowledged that it is legitimate to use such controls.



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It has also been argued that introducing re-export controls would create extra bureaucracy for government at a time when there is a move towards reducing bureaucracy. In order to reduce the amount of bureaucracy created for the Government in processing requests for permission to re-export, they could draw up a list of so-called safe countries. For example, a rule could be instituted whereby permission to re-export to other EU countries, plus selected other "safe" destinations, is granted without carrying out a risk assessment. This list would, of course, need to be kept under review and updated according to any relevant changes in circumstances . However, we do so in any event, in the case of embargoed countries, through the consolidated list. I hope that the Minister will be able to deal with this point when she sums up.

There is real concern internationally about what happens to old equipment once a state no longer needs it. There is also international and EU concern that when Governments upgrade their defence systems they may sell their old equipment to countries where it might be used to fuel conflict and undermine peace and stability. Germany is so concerned about this that, since 2003, it has instituted a policy of requiring states which import new small and light weapons from Germany to destroy or put beyond use an equivalent amount of their old equipment. This is not only to prevent re-export per se, as the Germans are asking for old stock to be destroyed regardless of whether it was originally supplied by Germany or any other country, or even domestically manufactured. However, it illustrates the seriousness with which other states regard the threat posed by arms which are no longer wanted being sold on to countries of concern.

In the brief time allocated to me, I conclude by noting that the noble Lord, Lord Alton, talked about the emerging international norm of moving towards re-export controls. It would be unworthy of this Government to resist this small step towards entrenching that norm. I sincerely hope that they will move positively in this direction.

10.48 am

Lord Bates: My Lords, I support this modest Bill introduced by the noble Lord, Lord Alton. When he first sent me a copy of it, my immediate reaction was to ask myself why we would not want to know when arms are re-exported somewhere else. From a security and intelligence point of view, I should have thought it would make absolute sense to say that permission needs to be sought to do this so that we know what is going on. That seems to me entirely consistent with the national security policy embodied in the security and defence review. Of course, we need to know about this matter. We need to have as much information as possible about where these arms are ending up in case they fuel conflict. When they introduced the Export Control Bill in 2002, I am amazed that the previous Government did not include such a provision in that worthy piece of legislation. Therefore, this Bill constitutes a necessary tidying-up.

I argue that supporting this measure would go with the grain of the coalition Government's declared "foreign policy with a conscience" that we debated yesterday. I want to use some quotes in support of that proposition.

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Most obviously, the national security strategy states that the number two priority is tackling the root causes of instability. Indeed, my right honourable friend the Prime Minister said in another place on 19 October, when presenting the strategic defence review,

That is entirely consistent with what has been put forward here. The strategic defence and security review repeats that exact sentiment. The re-exporting of small arms to fragile states is certainly one of those causes of instability that we should track down.

Moreover, my right honourable friend Andrew Mitchell, the Secretary of State at the Department for International Development, said in an excellent speech to the Royal College of Defence Studies on 16 September:

"Britain has a proud tradition of standing up for a more equal world where people live in dignity and where they are protected from those who would harm them. As the Foreign Secretary said some time ago: 'it is not in our character to have a foreign policy without a conscience: to be idle or uninterested while others starve or murder each other'".

Those are profound statements.

This leads me on to another point and one of the reasons why all Governments often get in a tangle over defence exports, because responsibility for defence exports lies within the Department for Business, Innovation and Skills. There is a significant departmental team numbering approximately 180-larger than all the other departments put together in terms of export sales. They promote British exports, and we are all in favour of that. I am concerned that that effort should be joined up with other departments which have an interest in this matter-the Foreign Office, the Ministry of Defence and the Department for International Development. A lot of good work has been done by this coalition Government in trying to increase the level of co-ordination. I am very proud of that.

When one looks at the way in which money in the strategic defence review has been diverted from defence into a pool shared between DfID and the Ministry of Defence to deal with conflict prevention, and the sums increased from £210 million to £300 million, that is a clear statement that resources are being put behind the effort to tackle the causes of instability. I return to my first point. Why would we not want to know where weapons go which may be used to fuel a conflict and cause instability, when it is our national security policy to prevent that? Why would we not want to deal with it?

In conclusion, I shall refer to an excellent and helpful report, House of Commons Paper 178. It was a joint report by the Business and Enterprise, Defence, Foreign Affairs and International Development Committees, Scrutiny of Arms Export Controls (2009). It was a very good and well researched document. A chairman of one of those Select Committees, Peter Luff, is now an excellent Minister at the Ministry of Defence. The report came to some interesting conclusions regarding re-exports. It states on page 4, paragraph 9:

"We conclude that, despite the Government's view"-



3 Dec 2010 : Column 1680

the then Government's view-

That was in 2009. The report continues in paragraph 10:

"We conclude that we do not agree with the Government's decision not to enhance controls on the exports of UK controlled goods produced under licence overseas and we recommend that the Government should explain in its Response why it came to this decision and whether it will reconsider its policy".

I looked further through the report in vain for such a response. There was none then, and I guess that it is because the case is unanswerable.

My noble friend Lord Lyell, in his excellent contribution, described himself as the mouse that roared-and we all enjoyed that. The time has come for the Government to demonstrate that they are not the lion that squeaked.

Lord Rowlands: The noble Lord has been quoting from what is known as a quadripartite report. I was the founder chairman of that committee some years ago. The other important point about such a report, which is curious from a House of Commons point of view, is that it has to be unanimous, because it is the combination of four Select Committees.

Lord Bates: I am very grateful.

10.56 am

Lord Young of Norwood Green: My Lords, after those contributions-I do not know about the mouse-I am trying to think of the right metaphor. Certainly, as someone who is new to this subject, my first observation is that while everyone can support the objectives, how to achieve them in a highly competitive global marketplace is a complex challenge. However, I congratulate the noble Lord, Lord Alton, on the Bill and on the tour de force and tour d'horizon of his contribution. We can see from this debate that there is unanimous support for what the noble Lord, Lord Bates, described as a modest proposal.

We have to recognise that we have a highly developed defence and armaments industry which makes a significant contribution to our manufacturing industry and to the economy as a whole. It was the noble Lord, Lord Alton, who demonstrated what could be achieved if we could turn all those swords into ploughshares. We recognise that that will not happen in the current environment. His speech reminded us of how much of the world's economy goes into armaments.

I would defend the record of the previous Government because they played a significant role in developing international and national policy on this issue, arising from our manifesto commitment in 1997, which stated:

"Labour will not permit the sale of arms to regimes that might use them for internal repression or internal aggression. We will increase the transparency and accountability of decisions on export licences for arms. And we will support an EU code of conduct governing arms sales".



3 Dec 2010 : Column 1681

That was a positive and constructive commitment and we honoured it. It culminated in the Export Control Act 2002. In 2007, we conducted a review of that Act to examine the effectiveness of the controls introduced under the Act, particularly with respect to brokering, trafficking and licensed production, and determine whether further changes needed to be made to the legislation without imposing a disproportionate burden on business. The review led to a series of changes to the UK's legal and regulatory framework for arms exports. The extra-territorial provisions of export control legislation were extended by the introduction of a new three-tier system of trade controls.

Following requests from the Committee on Arms Export Controls in 2009, the previous Government commissioned an independent survey of compliance levels in the dual-use sector. The survey concluded that levels of non-compliance were low. However, it is interesting to note that NGO and industry stakeholders questioned aspects of the survey, including its main conclusion.

When researching for this debate, I looked at the scale of the problem, examined in a report, Biting the Bullet. It says:

"In most countries, substantial quantities of SALW"-

small arms and light weapons-

We have heard a number of examples today of the terrible effects of such diversions. The report continues:

"Moreover, of the estimated 600 million SALW in global circulation approximately two-thirds are held by civilians. Firearms and ammunition held by individual citizens are mostly stored at home, often with minimal security and large numbers of firearms are stolen from homes each year. Most countries' systems for licensing and controlling firearms possessions by individual civilians have major weaknesses that can be exploited by irresponsible or criminal gun-shops or individual licence-holders".

Therefore, there is a huge problem around the world.

The noble Lord, Lord Alton, has already talked about the size of the market but it is a point that bears repetition. I quote from a paper on recent trends in the arms trade:

"One of the most marked aspects of major arms transfers over time is the stable composition of the list of the five biggest suppliers, with only slight changes in the ordering. For the period 1980-1984, when global arms transfers were at the highest, the Soviet Union, the United States, France, the United Kingdom and Germany accounted for 84 per cent of all exports. The five largest suppliers of major conventional weapons for the period 2004-2008 were the USA, Russia, Germany, France and the UK. Those suppliers accounted for 78 per cent of world exports for this period, compared with 81 per cent for the period 1999-2003".

Therefore, as we can see, this is a huge global industry in which we play a significant part, and I think that at this point it is legitimate to question whether, although the controls have been improved, we have made sufficient progress.



3 Dec 2010 : Column 1682

As a number of speakers have said, we have been at the forefront of conventional arms transfer controls internationally. However, in one area-re-export controls-it is fair to say that we are now seen as lagging behind. As has already been noted, the UK Government have so far been reluctant to apply re-export controls as a matter of routine. However, as a number of contributors to the debate have said, this is not about tightening controls on where and when the UK is willing to export; it is about making sure that UK arms exports do not end up in places where the UK Government do not want them to be-where they may inflame a conflict or even be used against UK troops abroad.

The UK Government have acknowledged the principle of controlling re-exports by introducing a clause on end-use declarations, stating that the buyer will not re-export to any destination which is under embargo. As has been noted by a number of speakers today, that is a significant step in the right direction. However, there are states which are not under embargo but to which the UK would have serious concerns about its arms being re-exported. We feel that the Bill is a timely initiative that would extend the application of re-export controls and provide legislative protection. That is why we feel it is worthy of consideration. I certainly agree with the noble Lord, Lord Alton, that the Bill is an attempt not to limit exports but to ensure that in the re-export market exports do not end up in destinations that would damage the interests of this country. There is of course a balance to be struck. I noticed that the Government have issued a further set of guidance to exporters, and another speaker has referred to the searchable database and other aspects that are of use to exporters.

I suppose that the question being posed here is: have we gone far enough? My noble friend Lady Kinnock pointed out that, in going down this road, we would align ourselves with other countries-not insignificantly, the US, Russia, Belgium, France and Germany. Although we are supporters of the potential arms trade treaty, it is, as has been pointed out, still in gestation and will not totally solve the problem. There was also a candid recognition that, whatever legislation is passed, there will be limitations to its enforcement. However, such legislation does position the United Kingdom in the right place in this industry, and the noble Lord, Lord Bates, made the important comment that the Bill is a modest measure entirely consistent with national security policy.

I was interested to hear the noble Lord, Lord Bates, quote Peter Luff. Mr Luff also said that the new coalition Government have signalled that promoting arms exports will be a high priority. He said in June:

"There will be a very, very, very"-

he obviously likes emphasis-

I do not think that anyone in this House was seeking to embarrass the Government; they were simply trying to ensure that we have a consistent policy-one that is in our own interests and in the interests of our national security.



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Baroness Falkner of Margravine: Does the noble Lord accept that there is nothing inconsistent in the views of Mr Peter Luff in the report quoted by the noble Lord, Lord Bates, and this Government's desire to balance and improve their record on exports? I think we have to be realistic and accept that increasing trade is a strategic objective that we sign up to, yet we might wish to improve the controls.

Lord Young of Norwood Green: I thank the noble Baroness. I was pointing out the two sides of his statement. On the one hand, we have the quotation from the noble Lord, Lord Bates, and, on the other hand, this one. I recognise, as did the previous Government, that the defence and armaments industry is a key part of our manufacturing base. Will this Bill make a reasonable contribution to our national security and ensure that the re-exported arms and weapons do not end up in the hands of those who would use them in a way that would harm the interests of this country? Will it introduce a regime which does not bring in further red tape and which can be managed in a way that certainly does not damage exports?

We are prepared to support the Bill and I look forward to the Minister's response.

11.10 am

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): I thank the noble Lord, Lord Alton of Liverpool, for bringing this matter to the attention of the House today. The current situation is as follows. Goods controlled for strategic reasons require a licence for export from the UK. We do not currently operate re-export controls which would require overseas entities to seek permission from us to re-export items that have already been exported from the United Kingdom, no matter how long ago.

The Government are not convinced that introducing controls of this kind is either necessary or feasible. Such a system could be onerous to operate and would be extremely difficult to enforce outside the UK's legal jurisdiction. Once a good has left the UK, it is, in practice, under the jurisdiction of the destination country. We would, in effect, be claiming that UK export controls applied, whereas in reality we would have no powers to enforce them.

The noble Lord's Bill is presumably driven by a concern to prevent UK goods, once exported from being re-exported for undesirable uses. We already tackle this issue through our existing export licensing system, which the noble Lord has rightly praised as being among the most thorough in the world. Furthermore, we already take account of the risk of diversion-in other words, the re-exporting of goods to undesirable end-users-in our risk assessment of the licence application. No licence would be issued unless it was consistent with the consolidated criteria. Where licences have already been issued and information subsequently comes to light of an undesirable re-export, we have a power to revoke the licence in our secondary legislation. The impact of doing so would obviously be limited if the goods had already been re-exported, but we would always factor that information into subsequent licensing decisions. Even if we had full

3 Dec 2010 : Column 1684

re-export controls in place, it would be unlikely that we would know that a re-export had occurred because we could not force a foreign entity to provide that information. In all likelihood we would only find out after the fact, by which point it would be too late to try to take any meaningful action. If an undesirable export had taken place, that would form part of our assessment of future export licence applications, but we do that now so there appears to be no additional practical benefit from the noble Lord's proposals.

The majority of re-exports would not be of concern to us. The reality is that arms are a small proportion of the UK's defence exports, a significant proportion of which are of low-level components being exported as part of a global supply chain. The equipment that these components go into is most often destined for our allies and partners, who have similar and equally robust export controls of their own. There are significantly more destinations of no concern than destinations of high concern. In response to the noble Lord, Lord Young, regarding other countries of concern, we agree that it is undesirable for UK-origin goods to be re-exported to destinations or end-users of concern. That is why the risk of undesirable re-export is embedded in our assessment of licence applications. If the risk of re-export is sufficiently high an export licence would not be granted. It is an issue of proportionality, and as I said, there are significantly more destinations of no concern than of high concern, which is why we judge that the current scope of the re-export clause is appropriate, as it covers the most sensitive destinations.

The noble Lord, Lord Alton, and the noble Baroness, Lady Falkner, spoke of other states. It is true that other states have reintroduced re-export controls, as acknowledged in a briefing produced by Safer World which said that states were reluctant to go on record regarding specific instances where re-export controls have been applied as that tends to involve confidential discussions with the original recipient. Aside from the United States, which is open and in some cases forceful in pursuing a re-export control policy, the evidence on the effectiveness of the arrangements in other states is unclear. The United Kingdom has one of the most robust strategic export licensing systems in the world, as I have already said, and I do not believe that the introduction of re-export controls would make it more so.

The noble Lord, Lord Alton, referred to administrative burdens. There could be significant practical problems and resource implications for government and possibly for industry in dealing with re-export control provisions. The export group for aerospace and defence-EGAD-said in a memo, which I shared with the noble Lord, that there could be low administrative burdens for the UK industry. As I said, we would need to conduct a full consultation to establish the scale of the administrative burdens that would be created for both government and industry. I should add, in response to the noble Baroness, Lady Falkner, that even if we apply re-export controls only to a limited set of countries there would still be a burden that we would need to assess.

The noble Lord, Lord Bates, rightly raised the issue of the re-export clause recommended by the parliamentary committee on arms exports. It is important to recognise that the end-user undertaking is a commitment made

3 Dec 2010 : Column 1685

in good faith on the part of the recipient of the goods exported under the standard or open individual export licence. It has no force in law and cannot be used to prevent the re-export of goods. We require this commitment from the end-user in recognition of the serious threat posed by the proliferation of WMD and multilateral commitments that we have entered into. In recognition of the concerns on this issue and in response to calls from the Committee on Arms Export Controls, we amended the end-user undertaking for standard licences in July this year to make it clear that an export licence does not authorise re-export and that risk of unauthorised re-export is a factor in our licensing decisions. We deliberately limited it to embargo destinations which we consider to be the most sensitive transfers because, as I have already said, the majority of the exports are not problematic. That amendment was welcomed by the Committee on Arms Export Controls, which reflected that this new measure should be allowed time and that successor committees may wish to monitor its effectiveness to review whether a wider re-export clause remains desirable. I agree with that view and await the outcome of the new committee's assessment with interest.

In response to the noble Baroness, Lady Kinnock, I say that since not all countries operate effective export control systems the Government are fully committed to agreeing a strong and comprehensive arms trade treaty at the United Nations. Such a treaty would be expected to raise global export control standards. As a result, transfers of concern would be less likely to happen because state signatories would have regard to the same principles when deciding whether to permit the export. As noble Lords will know, preparations are continuing towards the diplomatic conference in 2012. I would like to see the outcome of that process before committing to take action on this issue.

The noble Lord, Lord Young, asked about illicit trade in small arms by criminal gangs. He said that the majority of arms are held in private hands which may fall into criminal hands through theft. While I understand the problems that that causes, I cannot see how re-export controls would prevent that criminal activity. In summary, we prefer to base our approach on thorough pre-licensing assessment, which takes into account the risk of diversion or re-export to undesirable end-users at the application stage. We believe that our current system is robust. Re-export controls would not make it more so.

Lord Mackay of Clashfern: Will my noble friend explain further why there is a jurisdictional problem in relation to this proposal, which apparently does not exist in relation to the existing arrangements under which re-export to an embargoed country is forbidden? The same point arises in relation to enforcement. Again, enforcement must depend on information from overseas which would be applicable in this case. Apparently the Government object to this case but not to the export to embargoed countries.

Baroness Wilcox: My Lords, I thank the noble and learned Lord, Lord Mackay, for his intervention. It is important to recognise that the end-user undertaking is a commitment made in good faith on the part of the

3 Dec 2010 : Column 1686

recipients of the goods exported under a standard or open individual export licence. This has no force in law and cannot be used to prevent the re-export of goods.

11.19 am

Lord Alton of Liverpool: My Lords, I am indebted to everyone who has taken part in our short debate this morning. The intervention of the noble and learned Lord, Lord Mackay of Clashfern, illustrates how much common ground there could be among us and shows that many of the problems that the Minister has raised are not insuperable. If there is not a problem with end-user exports and if other countries do not have a problem in placing re-export provisions into their domestic law, it is difficult to see why there should be such problems for us in the United Kingdom.

I am particularly pleased by the support given to the Bill from the opposition Front Bench by the noble Lord, Lord Young of Norwood Green, who talked about the importance of aligning ourselves to others. The noble Baroness, Lady Falkner of Margravine, speaking for the Liberal Democrats, made a similar point. She said that, although the integrity of our country has to come first, that is not incompatible with achieving trade objectives.

We were rightly reminded by the Minister and others of what has already been achieved. However, as the noble Baroness, Lady Kinnock, said so eloquently, we need to cut the umbilical cord that links conflict and poverty. She also said that we need to give clear leadership as this issue comes to be debated at the United Nations in 2012. Those objectives are not incompatible. Putting this modest measure on to the statute book would show that we wish to be in line with all the other nations on the Security Council and with many of our European Union allies.

I am grateful to the noble Lord, Lord Lyell, who rightly pointed out the importance of aligning ourselves with other nations in achieving these objectives. To have any degree of enforceability and any assurance that such controls will become normative throughout the world, we will have to use all our diplomatic skills to draw others alongside us.

The noble Lord, Lord Bates, asked a key question in his interesting, helpful and welcome speech. Why would we not want to know where arms or equipment manufactured in our country end up? Why would we not want to know their destination and use? As he said, it is crucial to our own defence and security to know the answer. He quoted the Development Secretary, Andrew Mitchell, who has also said that our objective is to ensure,

of development aid. He is absolutely right, and I know that many noble Lords share that view. However, where there is untold conflict in a country, that jeopardises development. Unless we get conflict right, much of the resource that we put in to try to tackle health and education issues ends up being wasted.

There has been considerable agreement among us today, but the Minister raised three specific objections. She said that buyers are put off by the bureaucracy involved in the USA's ITAR-international traffic in arms-controls, on which she mentioned that she had

3 Dec 2010 : Column 1687

shared with me the Export Group for Aerospace and Defence letter that was sent to her. However, that is rather like Don Quixote being invited to tilt at imaginary windmills, because my Bill does not propose the American system or a system linked to ITAR. Plenty of other states apply re-export controls in a far less intrusive way and we should look to them as models. In Sweden, for example, a threshold is applied so that, when Swedish companies export relatively insignificant components for integration and onward export, re-export controls do not apply. Although buyers might be put off by the US ITAR controls, I know of no evidence that they are put off by less intrusive bureaucratic systems. Indeed, if they are put off, that would suggest that the United Kingdom is currently winning from competitors that apply re-export controls the business of buyers who have ambitions to re-export. Perhaps the Minister could write to tell me whether she is aware of any such cases. If there are such cases, I think that that reinforces the need for us to act.

The Minister also talked about inconsistency. EGAD's argument is that introducing re-export controls would be inconsistent with ongoing European Union intra-Community transfers initiatives, which, it says, require European Union members to remove transfer restrictions wherever possible. That overstates the case. The ICT initiatives explicitly provide that states can apply re-export conditions. In any event, it is not clear why national re-export controls cannot be organised in a way that is consistent with the requirements of the ICT measures. Many of the states that negotiated those initiatives already applied re-export controls, so presumably they had to take that issue into account during the process. Again, I would be most grateful to the noble Baroness, Lady Wilcox, if she could address that issue when she responds in writing after the debate.

Finally, the perfectly legitimate question of enforcement was raised during the debate-indeed, I raised it myself. One of the arguments against introducing re-export controls is that the United Kingdom cannot prosecute foreign Governments for exporting UK arms against our wishes, as there is no court with the legal jurisdiction to enforce that. No one is suggesting that the UK should prosecute a foreign Government. Nor should the UK look to prosecute or punish the original UK suppliers, which could not and should not be expected to enforce the contract. To see this as a struggle between opposing forces or as a matter of legal enforcement is to miss the point. The countries that regularly buy UK arms exports are responsible trading partners-or at least one hopes so-and one assumes that the licensing procedures ensure that those to whom we export will honour their obligations. In the unlikely event that they decided to re-export without our permission, that information could then be shared with other arms-exporting states and be factored into future licensing procedures. That would reinforce what this country already does and would place us in line with other nations that have introduced these provisions.

I am extremely grateful to all noble Lords who have contributed to the debate and I thank them for their support. I now ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.



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House of Lords Reform Bill [HL]

Bill Main Page
Copy of the Bill

Second Reading

11.27 am

Moved By Lord Steel of Aikwood

Baroness Anelay of St Johns: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the House of Lords Reform Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

11.28 am

Lord Steel of Aikwood: My Lords, I beg to move that this Bill be now read a second time. The rules of the House require me to begin in that way, but it might be more accurate if I were to move that the Bill be now read for the umpteenth time. In fact, this will be the fourth debate that we have had on this, as the Bill is substantially the same as the one that I first introduced way back in July 2007.

I know that this debate has been eagerly anticipated. My noble friend Lord Strathclyde, the Leader of the House, said the other day that the House was looking forward to this debate with "inestimable pleasure". The mind boggles to think what alternative attractions have kept him away on this occasion. On the opposition Benches, the noble Lord, Lord Hunt of Kings Heath, also said that he looked forward to the debate. I have been wondering about this eager anticipation. I worked out that it is rather like booking to go to a concert where a particularly favourite symphony is to be played. Looking forward to it gives you a pleasurable glow of anticipation at revisiting a favourite work.

However, there is a difference today, as some new Members of your Lordships' House are participating. We look forward in particular to the maiden speech of the noble Lord, Lord Hennessy, who is a practitioner in these matters. Also, it is a particular pleasure for me to welcome my noble friend Lord Lothian, who is a former constituent of mine, although I do not think that I ever persuaded him to vote for me when he had the capacity to do so. I look forward to hearing what he has to say.

We shall also have the pleasure of hearing from a former Speaker of the House of Commons, the noble Baroness, Lady Boothroyd, and from a former Deputy Prime Minister, my noble and learned friend Lord Howe. Without in any way being disloyal, I hope that the current Deputy Prime Minister will read carefully what he has to say. The noble Lord, Lord Hunt of Kings Heath, will of course recognise that a symphony is a work of four movements. The Bill that I have introduced consists of four movements-three of which his colleagues, shamelessly and without attribution, adapted in their own way in the constitutional reform Bill introduced by the previous Government. These three proposals were lost in the wash-up.



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I begin by saying that this debate is not about whether in future we will have an elected or non-elected House. When I heard the decision of the coalition Government to create an all-party committee to work on a Bill, my original inclination was to say, "Let's drop the Bill and wait for the Government to come forward with their own proposals". We were promised them by Christmas, then January, then February. The latest promise is "early in the new year"-but which year is not specified. I was prevailed on by Members in all parts of the House to proceed with my Bill on the basis that we are getting a little impatient, and that even if the coalition Government's proposals in draft form were to proceed smoothly and to timetable, the earliest moment at which the House could begin to enact them would be late in 2012. In the mean time, Members are increasingly concerned that the House goes unreformed.

It is important that we relay to Members in the other place that, contrary to the conventional wisdom, we are not sticks-in-the-mud who are saying that this House is perfect. We are willing to embrace sensible reforms and we are anxious to proceed with them. I was interested the other day to hear one of the new Members opposite, the noble Lord, Lord McAvoy, who has a distinguished record of service in the other place, say this:

"When I came to the other place, quite a long time ago, I did not have much time for this place and did not understand it. I thought that this place was undemocratic, illogical, irrational and all the rest of it. That was quite a naive attitude to take and was based on a lack of knowledge of this place".-[Official Report, 16/11/10; col. 740.]

That is quite common in the other place-and I speak from personal experience. Although I led the Liberal Party for 12 years, and therefore had a close association with my opposite number in this place, at the end of that time I still did not understand how the House of Lords worked, even though I was responsible for nominating new Members to it. That is the problem: we have not got across to the other place how we operate. I hope that, by embracing this Bill, we will signal to Members there that we are keen to press on with updating our procedures and composition.

A moment ago, I said that the Bill consisted of four movements. This metaphor has outlived its usefulness, so let us say four substantial sections. The first is the one that the previous Government dropped, which deals with the statutory Appointments Commission. It was not in the Labour Government's Bill, primarily because the phrase "wholly or mainly elected" still applied and they had not made up their minds-any more than the present Government have-whether a future Chamber should be wholly or mainly elected. Of course, were it to be wholly elected, there would be no need for an Appointments Commission. That was the argument of the previous Government. However, I still believe that if we move in future to a mainly elected House, a statutory Appointments Commission will still be required. In the mean time, it will be required until we get to that point. Therefore, my Bill sets out both the composition of the commission, the principles under which it operates, and in particular the important one that the Government of the day,

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whether they be a single party or a coalition, should not have a majority in this place. That would set it in statute for the first time.

The noble Lord, Lord Jay, who is not with us today but who has spoken on previous occasions, is the chairman of the present Appointments Commission. He supports strongly the idea that the commission should have a statutory basis. One obvious reason for this is provided by the case of Lord Laidlaw, who promised the commission that he would give up his tax exile status if given a peerage, but went back on that. The commission had no power to do anything about it. The case for making the Appointments Commission statutory is strong: that is the first section of my Bill.

The second section brings to an end the by-elections for hereditary peers. These were introduced as a temporary measure in 1997 and were to last for "a couple of years"-that is the phrase that appeared in Hansard. The system has now lasted for nearly a decade and a half. Clearly, it is completely out of date, and while the election of hereditary peers passes muster-just-in the Conservative Party and on the Cross-Benches, the Labour Party and the Liberal Democrats view it as a farce. One has perhaps three or four electors and 10 candidates. A Member can be elected to Parliament by something like two votes to one, which makes Old Sarum look like a model of democracy. It is time that this came to an end.

The third section of the Bill deals with the vexed question of whether we should provide for leave of absence or remove those Members who never attend. I will quote from the report of the committee chaired by the noble Lord, Lord Hunt of Wirral, which states:

"The House currently has before it relevant legislative proposals in the shape of Part 3 of the House of Lords Reform Bill ... introduced by Lord Steel of Aikwood and awaiting Second Reading. Clause 11 of the bill would allow members to apply for permanent leave of absence; clause 12 provides that a member who fails to attend the House during the course of a session should be deemed to have taken permanent leave of absence; clause 13 provides that a person granted permanent leave of absence shall no longer be a member of the House of Lords. A number of members who responded to our consultation reiterated their support-previously expressed in debate on comparable bills introduced by Lord Steel of Aikwood in previous sessions-for the provisions contained in the current Bill".

The committee came to the astonishing conclusion that, in order to deal with the excess numbers in the House, one would need primary legislation. This is the primary legislation: it is here and available, and we would be sensible to adopt it.

The committee does not specify how the proposals would be introduced. It refers to the fact that the House of Lords, by standing order, would have the ability to introduce a scheme, but that it would be up to the Government to devise the equivalent of a silver handshake. In our debate on the proposals of the noble Lord, Lord Hunt, my noble friend Lord Kirkwood of Kirkhope rightly pointed out that any actuary could provide a simple method of calculating redundancy pay that would benefit the taxpayer and not be an excess burden on them. As far as concerns removing non-attenders, even though they do not occupy space on these Benches, they receive all the papers, some of them have desks and lockers in your Lordships' House,

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and there is no case for retaining their services. Therefore, the third section of the Bill provides for the first time the capacity for Members to leave this place with dignity and honour after they have given a reasonable amount of service, or after they have reached a certain age.

The fourth and last section is the simplest. It would bring the House of Lords into line with the other place by removing those convicted of offences that carry a sentence of more than one year in prison.

These are the four provisions of the Bill, with which the House is now probably painfully familiar. I will conclude by quoting the noble Lord, Lord Norton of Louth, who spoke in a previous debate. He was responsible for the drafting of this Bill, which has been expertly done. He said that there would be those in the House who regarded the Bill as necessary but entirely insufficient, and others who regarded it as necessary and wholly sufficient. He said that noble Lords could disagree on that, but that the one thing on which they should agree was that it was necessary.

11.40 am

Lord Howe of Aberavon: My Lords, the House has had the privilege of hearing my noble friend Lord Steel proposing, supporting and explaining this Bill on a number of occasions. On each occasion, the case becomes clearer. I pay tribute, as I am sure many colleagues do, to the energy, intelligence, integrity and determination with which he has continued to present this case. It has formidable support in this House, which should be taken fully into account by Members of the Government. I do not propose to add anything to what he has said in support of the propositions contained in his Bill because they are all now clearly understood and it is hard to see that any of them are challenged. There has been a curious inertia and unwillingness on the part of both Governments to whom he has presented the case, and it is time that it was accepted.

I therefore propose to address my short remarks to one issue that he did not discuss; namely, the case for or against the arrival of elected Members in this House. The existence of two Houses of Parliament goes way back into history, and it is not quite clear which was on top when, but it is clear that the democratic House that emerged in the late 18th or early 19th century has grown in strength and legitimacy, and nobody now challenges the right of the lower House to override anything that is done in this House.

This House has changed significantly as that has gone on. This House has had the benefit of two steps that increased its legitimacy-if that is not the wrong word. The first was the invention by Harold Macmillan, the distinguished predecessor of the present Prime Minister, of the nominated Peer, which injected stimulating yeast into the existing organisation. The second step was taken by the Government recently in power under the leadership of Prime Minister Blair: the removal, subject to an intelligently struck deal, of the great bulk of the hereditary Peers. Against that background, we now have to proceed as quickly as possible with the implementation of this Bill and finally address whether there should be elected Members. That is why I propose to take a minute or two to talk about that.



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One does so on the foundation of the commendation of this House as it presently exists and the identification of the cause for concern about it. The basic proposition is endorsed by the fifth report of the Wright committee in the other place, which I have quoted many times. It is an enthusiastic endorsement of the quality and importance of this House and a warning that it is all too easy to see qualities of that kind disappearing if fashion changes. It is in that context that I quote the current Leader of the House Sir George Young MP when he said that,

That insight was subsequently endorsed by the Wright committee in its fifth report. The presumption that sits uneasily alongside the Wright committee's thinking is that,

That is the consequence of the link between the Executive and that House through the democratic system. That is what we are dismayed and disturbed about.

If we have both Houses increasingly looking like each other with a large or substantial or growing percentage of elected Members in this House, the difference between them would be destroyed, the superiority of the Commons would increasingly be involved in conflict with this House because the Houses would be growing in strength alongside each other and no good purpose would be served that would enhance the effectiveness and efficiency of this House. That is why the Wright committee, whose report I quoted last time I spoke about this subject, said that there is a need,

That is essential if we are to get the benefits of the proposals contained in my noble friend's Bill. The second point that the Committee made is:

"The Second Chamber must be 'neither rival nor replica, but genuinely complementary to the Commons' and, therefore, 'as different as possible'".

It is fundamental to the beneficial prospect of what my noble friend is proposing for us to stand firmly upon those propositions. It is not that I have any hostility towards election or democracy. Like many Members of this House, I respect the importance of the other place, but the importance of the other place needs to be liberated from the dominance of the Executive, and one of the agencies through which that can be assisted is the continued independence and difference of this House. It surely cannot make sense for the most fundamental change proposed to the second Chamber-the introduction of elected Members -to be the one most likely to extend the influence of the elected dictatorship that so manifestly provokes disenchantment with the present elected House.

I have dealt only with that one issue. It is not irrelevant to the Bill proposed by my noble friend but is an important foundation for securing its benefits. I enthusiastically endorse the work that my noble friend has done and invite the House to accept the other premise on which that work will be allowed to flourish.



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11.47 pm

Baroness Royall of Blaisdon: My Lords, another year, another Steel Bill. We should all be grateful to the noble Lord, Lord Steel of Aikwood, for his dogged persistence in trying to secure some much needed incremental changes along the road to Lords reform. As ever, it is a well drafted and commendably short Bill, a perfect symphony in four movements, as he said.

The previous time that this Bill had its Second Reading, the noble Lord, Lord Steel, said that it was,

There was much frustration at that time, and in the following months, because it was felt that the then Government, the Labour Government, were ignoring the important issues raised in debate on the Bill. I pay tribute to my noble friend, Lord Hunt of Kings Heath, for a well honed balancing act in response to the debates.

We well understood the critical need for Parts 2, 3 and 4 of the Bill, and the noble Lord was right to say that we did not include a statutory appointments commission because of the ongoing discussion about whether there should be a wholly or partly elected House. Subsequently, these parts were included in key clauses of our Constitutional Reform and Governance Bill. I can already hear the echoes round the Chamber of "too little, too late", but the fact is that those important clauses were part of a Bill that was eventually given Royal Assent. Sadly, the clauses relating to the House of Lords were washed out in the wash-up. We all agree that the wash-up is a complex, untransparent and unsatisfactory process that needs to be examined, but the fact is that if those clauses had survived, we would be in a better place on the issue of further reform of your Lordships' House. The parts of the Steel Bill that we included in our Bill but which were removed on the insistence of the party opposite would, for example, have given us a means of addressing the growing size of the House. Indeed, perhaps the Leader of the House, the noble Lord, Lord Strathclyde, would not have had to set up the retirement group under the chairmanship of the noble Lord, Lord Hunt of Wirral. I am sure that whatever views noble Lords might hold about radical reform, there are few among us who are in favour of a House of more than 800 Members, and I believe that shortly we will have 836 Members.

When answering a supplementary question on Wednesday, the noble Lord, Lord McNally, implied that during his period as Prime Minister Tony Blair had added more than 300 Peers to the Labour Benches. It is the case that during his time as Prime Minister Mr Blair created 375 Peers, but fewer than half were Labour Peers. Indeed, as Prime Minister, Mrs Thatcher created a higher proportion of Conservative Peers than Labour. I would ask the Minister to confirm that my figures are correct.

The noble Lord, Lord McNally, said on Wednesday:

"The new appointments since the general election are entirely consistent with the coalition's programme for government, which set out the objective of creating a second Chamber that is

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reflective of the share of the vote secured by the political parties at the last general election".-[Official Report, 1/12/10; col. 1473.]

Following the noble Lord's worrying comment, can the Minister tell us how many new Peers will be appointed in the future?

The burgeoning size of the House presents us with logistical challenges. For some, it also damages our reputation and opens us to ridicule. Most importantly, it disturbs the balance that has benefited both this House and politics more broadly where no single party has had an overall majority. In the new year, the coalition Government will have a political majority of 72, which means that the role of this House as a revising Chamber is changing profoundly to that of a rubber stamp for policies from the coalition Government, which were not even voted for by the people of this country.

It is no secret that I am currently a member of the Clegg committee that is charged with producing a draft Bill on Lords reform. I have no doubt that this Bill will be published in the spring and it will then go into a joint pre-legislative scrutiny committee, which is the correct way for Bills of constitutional importance to be considered. It is indeed precisely the way in which the Parliamentary Voting Systems and Constituencies Bill should have been considered, and likewise the Fixed-Term Parliaments Bill. I have to say, however, that pre-legislative scrutiny of the Bill on Lords reform is likely to take some time. That is not because most people will wish to employ delaying tactics, although some might, but because the issues that have to be addressed are complex and of crucial importance to the governance of this country. An example is the issue of powers and the relationship between the two Houses of Parliament. In looking at these issues, the Joint Committee on Conventions, chaired by my noble friend Lord Cunningham of Felling and approved by all parties in both Houses, rightly concluded:

"Should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again".

I entirely agree with that conclusion, not as a reform refusenik but as someone who wants reform and wants it to work.

I realise that noble Lords, especially those on the Benches opposite, are anxious for reform and would like a Bill to whizz through in 2011 to mark the anniversary of the first Parliament Act. But proper consideration of these complex issues takes time. Hundreds of hours must be spent in discussion in Cabinets, Cabinet committees and working groups trying to find solutions to problems which on the face of it are simple, but as soon as you drill down become seemingly intractable. That is not an excuse for delay; it is the reality. Perhaps that is the attraction of the noble Lord's Bill. It is not just for those who want to retain an appointed but reformed House, but for those who want radical reform and see the provisions in the Bill as an incremental step. Again, I look forward to hearing the views of the Government.

It is, of course, difficult to place a timescale on Lords reform. As I say, we will shortly have a tangible draft Bill, but perhaps some incremental legislation will be necessary in the mean time. For example, as the

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noble Lord himself suggested, the House of Lords retirement group will conclude that a legislative means is necessary to reduce numbers in this House. In the debate held during the wash-up on the Constitutional Reform and Governance Bill, when many noble Lords were frustrated because the clauses on our House had been cut, the noble Lord, Lord Strathclyde, said of the clauses on the expulsion and suspension of Members that:

"If we are the next Government, we will certainly wish to find an early opportunity to put this right".-[Official Report, 7/4/10; col. 1610.]

I would be grateful if the Minister could tell us when that early opportunity might be, and in what legislative vehicle.

Sometimes in debates on House of Lords reform there is a perceived tension between those who want radical reform and those who merely want the current House to work better. For instance, the noble Lord, Lord Norton of Louth, suggested in a radio programme on Sunday evening that those of us who want an elected or mainly elected House might not wish to support, for example, an improved committee system in the House because it would weaken the arguments in favour of radical reform. I take this opportunity to say that although I want an elected or partially elected House, I think that this House does a terrific job, but with improved procedures it could do even better. I want us to excel at what we do. That would be good for the Lords, good for Parliament, good for governance and good for democracy.

Naturally I look forward to the maiden speeches of the two noble Lords that we shall hear later in the debate, and I am sure that we will benefit from their wisdom and experience both today and in the future.

11.54 am

Lord Rennard: My Lords, for my noble friend Lord Steel of Aikwood and perhaps a number of other noble Lords present, this really must feel like "Groundhog Day". With his usual eloquence and good humour, my noble friend has today moved the Second Reading of more or less the same Bill for the fourth time since July 2007, or what he says feel like, "for the umpteenth time". We must all admire his persistence in promoting some good principles in relation to reform of this place, while many of us also hope for the promises made by people in all parties in relation to other reforms of your Lordships' House to be delivered sooner rather than later. We hear a lot in politics about pledges. Today, we should remind ourselves of Mr Asquith's pledge in 1910 to abolish the hereditary principle for membership of this House. One hundred years later, this Bill offers us a further small step towards the eventual implementation of that pledge.

Like many noble lords, I take great pleasure in occasionally being able to show visitors around this place. Sometimes they are parliamentarians from other countries. Often they ask, "How do you become a Lord?". When you begin by explaining that perhaps your ancestors fought with the king in battle hundreds of years ago, or perhaps that they were what have been called "special friends" of the King, these visitors look at you in amazement. Then I find that they ask, "How

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did you come to be here?". I have to explain that I was appointed on the recommendation of my noble friend Lord Ashdown of Norton-sub-Hamdon. I have to explain that his motive was to keep me working for the election of candidates from my party to the other place and that he did not want me to pursue my ambition to enter what must be called the other place, because that would have prevented me doing my job of electing people from my party to the other place. I tell them that there are three ways in which he could legally have prevented me from standing for election to the other place. I could have been declared insane, I could have been sent to prison, or I could become a Member of your Lordships' House. So I say that I was quite lucky, really, with the route that he pursued.

But visitors to what many consider to be the mother of parliaments simply cannot understand that we either inherit our titles or we are appointed mostly by party leaders. Sometimes I illustrate the progress of reform when I meet visitors in the cloakroom. I can tell them that when I first came here in 1999, there were more than 1,400 Peers and that it was one coat peg between two. With the removal of all but 92 of the hereditary Peers, I can proudly show them that we now have our own coat pegs. But I think that they expect rather more in the way of reform.

This Bill takes some very modest steps towards reform that I believe should command the greatest degree of consensus. There is possibly nobody in this country who has loved by-elections more than I have over the past 30 years. But the farcical process we have in this House of holding by-elections to elect hereditary Peers brings the House into disrepute. These by-elections have little more resemblance to democracy than the campaign run by Lord Blackadder when he ran the by-election campaign to elect Baldrick in the rotten borough of Dunny-on-the-Wold, where Blackadder was the only elector.

In the new year of 2011 we will see a draft Bill for fundamental reform of your Lordships' House, and I believe that we will see a Bill for reform of this House included in the Queens Speech in May 2012. Then we will see the first Members elected to it by 2015. If a new House becomes fully elected, then, as my noble friend Lord Steel of Aikwood, said, there will be no need for an appointments commission along the lines put forward in this Bill. But if there is a non-elected element, I believe that this proposal has much to commend it, and I hope in particular that such a commission would help to ensure that there is proper regard to the need for diversity in any new House. The proposal to end the by-elections for hereditary Peers may make us a little less subject to ridicule in future. This proposal was, of course, in the Constitutional Reform and Governance Bill of the previous Parliament.

Those in your Lordships' House who have become my noble friends as a result of the coalition may care to explain today why this sensible measure and other measures were blocked in the rather absurd process of the so-called "wash-up" of legislation at the end of the previous Parliament. As the noble Baroness, Lady Royall of Blaisdon, said, it could and should have been agreed at that point.



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Provision to exclude Members who never attend is simply common sense. There is provision for members of local authorities to be excluded from membership of them if they fail to attend council meetings, without good reason, for six months. If Members of your Lordships' House break the law in serious ways, then, just as for Members of the other place, they should cease in future to be law makers.

The provisions in the Bill should have been passed some years ago. However, much more substantial reform must follow if we are to be able to say to visitors in future that we have a democratic system in this country of which we can all be proud.

12.01 pm

Baroness Boothroyd: My Lords, I congratulate the noble Lord, Lord Steel, on his tenacious efforts to reform this House. His Bill does so in a way that would improve our role as a revising Chamber without tearing up the constitution and turning us into a second rate version of the House of Commons. Unfortunately, the noble Lord's party leader, the Deputy Prime Minister, favours the destruction of this House and his Cabinet remit includes the complex subject of constitutional change.

On taking office, Mr Clegg expressed his irritation at our continued existence. Indeed, he admitted his impatience at his first appearance as a coalition Minister at the Dispatch Box in June. He said then that Lords reform was more than,

and that,

He went on to say:

"The time for talk is over".-[Official Report, Commons, 7/6/10; col. 48.]

I do not wish to be uncharitable. Mr Clegg has heavy responsibilities and was propelled into high office, in unusual circumstances, at a time of economic crisis. Even so, he should know better than to declare that time is up on Lords reform before we have seen a word of the draft legislation to replace this House from the cross-party committee that he chairs.

In June, he promised we would see the committee's proposals by the end of the year; now we hear we must wait until the spring. Until then, Parliament is denied access to his committee's agenda and minutes and we on the Cross Benches, those on the Back Benches of the three main parties and the bishops are excluded from its deliberations. As far as I am concerned, it is a cabal. So let us hear no more about the Government's determination to "push through" the reform of this House. "Push through" are Mr Clegg's words, not mine; they come from his statement in June. He may push as hard as he likes but there are many in your Lordships' House who will not be pushed into submission.

The Deputy Prime Minister talks as if this House has been set in aspic since Mr Asquith was Prime Minister. Does he not realise that it has been in a state of continual change for many decades, as we have already heard? Also, does he not understand that we

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are eager to accept further changes provided they make sense, as the noble Lord, Lord Steel, and many of your Lordships throughout these debates have made clear? This Bill offers an excellent way forward; an elected Chamber rivalling the Commons does not. The longer the debate about our future continues, the stronger our case becomes.

This weekend, the Parliament Channel will broadcast a televised debate on Lords reform, which I and many of your Lordships attended. To my delight, Shami Chakrabarti, the director of the human rights body Liberty, gave us a ringing endorsement. She said that the Government should not tinker with part of the constitution without regard to what happens to the rest of it. Those are wise words. She believes that the courts would become more powerful without us, and I agree. We already have a Supreme Court across the way; if we want an American-style Supreme Court, the Government are going the right way about it. Mrs Chakrabarti also praised this House for protecting vulnerable minorities and fundamental rights and freedoms. Britain, she said, would be "a lot less free today" without us. Does Mr Clegg seriously dispute it? Does the Prime Minister not understand the damage that the destruction of this House would cause under the spurious guise of greater democracy?

The Americans have an apt phrase for my advice to the Government: they should "get real" about this place. We do not live in another world as our blinkered critics would have us believe; we do not hanker for the faded aristocratic glories of past centuries-when I leave here, I get the No. 11 bus home. Mr Clegg, not us, is out of date when he talks about 1911. It is a smokescreen for packing this House with new Peers on a scale never before known.

Let us consider the recent intakes that have been referred to. The three main parties have gained 105 new Peers in the past six months, with the coalition taking the lion's share. It will not stop there unless better counsels prevail. Meg Russell of the UCL's constitution unit reckons that the Conservatives need another 86 new Peers and the Liberal Democrats another 99 before this House fully reflects the way people voted in the last election-and that is conditional on Labour's strength being frozen for the remainder of this Parliament.

The scale of what is happening is astonishing. When the latest intake has taken the oath, this House will have more than 800 Members-assuming that those of us who are already here survive this winter. That is our biggest membership since hereditary Peers lost their right to sit here 11 years ago. It is already an absurd number. Meg Russell estimates that the Government will need to increase our numbers to nearly 1,000 if they want to get control of this place before the next election. It will be unmanageable. It will cost more and we shall lose the country's respect. When families in our country are called upon to make sacrifices to pay off the national debt, surely the last thing we need is a Chamber of 1,000 Peers or anywhere near that number.

I urge the Government to think again. Forget party dogmas. Britain's freedoms are at stake. I warmly support the Bill as a more responsible way forward for us all.



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12.08 pm

The Marquess of Lothian: My Lords, it is with a certain trepidation that I rise today to address your Lordships' House for the first time. After 36 years, on and off, in the other place, I have come to know and respect the great fount of wisdom and experience that resides within this Chamber. I am therefore hesitant to trespass upon it, and today I will not do so for long.

I have been very touched by the welcome that I have received in this House since my introduction. I find myself here in somewhat unusual circumstances. Following the House of Lords Act 1999, I was the second hereditary Peer to be able on his father's death to continue to hold a seat in the other place without renouncing my peerage. Thus, I think that I am the first hereditary Peer from the other place to be created a life Peer in this House. This is a strange, and certainly unintended, anomaly arising from that legislation.

I was first elected to Parliament in February 1974, since when I have represented seats in Scotland and Wiltshire. I was lucky to hold ministerial office in the Administrations of both the noble Baroness, Lady Thatcher, and Sir John Major, latterly at the heart of the peace process negotiations in Northern Ireland. Subsequently, I was the chairman of my party, shadow Foreign Secretary and deputy leader of the Opposition in what I affectionately call the midnight watches of my party's recent history.

I realise that I must not be controversial today. Luckily, we are debating the principle rather than the substance of this interesting Bill introduced by the noble Lord, Lord Steel of Aikwood, so I can avoid becoming embroiled at this stage in its details. I have long been involved in debates on the future of this House. I have generally resisted change but not because change was not needed; it is in the nature of the development of human institutions that change is not only necessary but inevitable. My objections have usually been to the reasons for change, which have too often been advanced not out of necessity but from political ideology or partisan expedience. I note what the noble Lord, Lord Steel, said about the necessity of the Bill.

I wish today to set out what I believe should be the basic criteria against which any proposals for reform of this House should be judged. First, reform should never challenge the democratically mandated authority of the other place. While that is not an issue in this Bill, it could be significant in any future legislation that seeks democratically to elect either in whole or in part your Lordships' House.

Secondly, reform should always seek to enhance rather than diminish the ability of this House to hold the Government of the day to account. It is hard for the other place ever effectively to do so, because, by definition, the Government have the support of the majority in the other place and only in exceptional circumstances can the Government fail to have their way. That is why the inherent and indisputable value of your Lordships' House is that it can, and does, both hold the Executive to account and suggest to it in the most courteous way to go away and think again.



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Accountability is a key element in any healthy democratic system, and in ours it is this House that can truly provide that. Any reform that weakens that role does our democratic system no favours. Equally, any reform that seeks to create of this House a political echo of the other place, with a loyal and in-built government majority, not only dilutes the ability of this House to deliver accountability but reduces, if not eliminates, its ability to ask the Executive of the day to think again. In securing reform, it is vital that nothing is done that would reduce the breadth and depth of experience and expertise that epitomise this House.

However, the greatest strength of this House in my political lifetime has been the indefinable spirit of independence which, whatever its political make-up, has allowed the House to challenge the presumption of the Government of the day. In my experience, government reactions have usually been of irritation, but they are often followed by a realisation that something outside what the late Lord Hailsham of Saint Marylebone called "the elective dictatorship" has spoken in the best interests of the nation. In my humble view, reform of your Lordships' House should always seek to enhance rather than diminish that spirit.

I finish by reiterating the belief, which I expressed in my valedictory speech in the other place, that the greatest obligation of public service is stewardship: namely, to leave to those who come after us that which we received from those who went before us in as good a state, if not better, than we received it. I reflected ruefully on that occasion that in my political lifetime our score in this regard was not impressive. Within that concept of stewardship, reforms should address not so much how they will affect us today but what improvements they will bring for those who come after us. Stewardship must apply not only in what we do to our environment, our economy and our society but in what we do to our constitution.

12.14 pm

Lord Bilimoria: My Lords, it is a great privilege and an honour to follow the maiden speech of the noble Marquess, Lord Lothian. As expected, it was superb. This House is renowned for having distinguished individuals who are the best of the best in their fields, with oceans of experience. In Michael Ancram, we are truly fortunate to have a distinguished lawyer, a Queen's Counsel and, as he has told us, a former chairman of the Conservative Party, a former shadow Secretary of State for Defence and a former shadow Foreign Secretary. He was also a Minister. He fought, lost and won parliamentary seats on many occasions. In fact, he first tried for West Lothian and did not succeed, but he won East Lothian. Then, he may not quite have become Prime Minister himself, but he defeated the future Prime Minister Gordon Brown to win Edinburgh South. He is a true politician's politician, who has bounced back time and again and never given up, and always with a smile. As Nelson Mandela said,

"The greatest glory in living lies not in never falling, but in rising every time we fall".

Many of us know that the noble Marquess is an accomplished musician who has often played his guitar in front of thousands at Conservative Party conferences. I am afraid that we could not break with 800 years of

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tradition and allow him to use a guitar to accompany his maiden speech, but he will certainly be music to our ears over the coming years.

Next year, we celebrate the centenary of the Parliament Act 1911. A hundred years ago, it was decided firmly to establish the supremacy of the House of Commons. Since then, as the noble Baroness, Lady Boothroyd, said, we have had evolution, not revolution. Arguably, the House of Lords operates more effectively today than it has ever done. Whenever we debate the reform of the House of Lords, we tend to focus on its legislative role, but our role is much wider. The House of Lords is defined on our parliamentary website as:

"A forum of expertise, making laws and providing scrutiny of Government".

We are a check and balance on the other place. There is no question that, during the past 100 years, there has been evolution in the other place as well, but that has unfortunately created a House of Commons where career politicians predominate, many of whom have had no careers outside politics.

It is amazing that the breadth and depth of expertise of Members of this House, particularly, I am proud to say, among the Cross-Benchers, give this House the ability and the capacity authoritatively to scrutinise legislation every day and challenge the Government of the day, whether that be in our debates, our daily Questions, our Statements or our hugely respected committees. That is the guardianship role of the House of Lords, and it is done at a quarter of the cost of the other place.

There is no question about the fact that many accuse our democracy and our elections of creating, as we have heard from our maiden speaker, elected dictatorships. Many feel that the Government have become too powerful. Many feel that the Government of the day, though the whipping system, can always have their own way due to the majority that they hold in the House of Commons, as the noble Marquess, Lord Lothian, has pointed out. I remember from my days in the Cambridge Union the classic motion that we debated at least once a year: "That this house has no confidence in Her Majesty's Government". In the real world, how often do the Government lose a vote of confidence? You can count the number of times that it has happened. Who is there credibly to challenge the power of government? The role of the House of Lords is to do that in a way that is independent and with an objective frame of mind.

I admire the noble Lord, Lord Steel, for persevering with this Bill-this may be the nth time lucky. The reforms that he suggests are certainly worthy of consideration, in particular the proposal to make the House of Lords Appointments Commission statutory. However, most important, this Bill is about evolution, not revolution.

As your Lordships know, a debate was arranged last week by the independent Cross-Bench Peers-I thank our Convenor, the noble Baroness, Lady D' Souza, and her team for that-at the Royal Opera House with Intelligence Squared. At the beginning of what was a public debate, the chairman, Nik Gowing, took a show of hands on the audience's views on the motion,

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"That an elected House of Lords will be bad for British democracy". The show of hands at the beginning could be divided roughly into thirds-for, against and undecided-although there may have been a little bias towards those in favour of the motion. At the end of the debate, after several speakers and questions, the chair's conclusion was that the show of hands had moved towards the motion. Time and again, whenever I have conducted my own straw polls of members of the public, I have found that they initially say that they prefer an elected House of Lords, because it feels and sounds more democratic, but when you explain the role, function and composition of the House, they invariably change their minds and prefer for it to stay appointed. That is exactly what happened in the Royal Opera House debate last week, in spite of superb contributions from the noble Lord, Lord Adonis, who surprisingly said that the House of Lords was toothless. If we are toothless, why are 40 per cent of our amendments accepted by the House of Commons?

It is clear that we have not thought through clearly the aftermath of a decision to have an elected or partially elected House of Lords. There is no question that there would be needless duplication, as the noble and learned Lord, Lord Howe, said. There would be conflict with the Commons and there might even be, as was pointed out by Professor Vernon Bogdanor at the Royal Opera House debate, deadlock and gridlock between the two Houses, as has happened in Australia. There is no way that the House of Lords, if elected, would settle for less power than the House of Commons. If an elected second Chamber were to materialise, we would almost definitely end up with a written constitution and an appointed Supreme Court. We already have such a court, but as in the United States the Supreme Court would then have strike-down powers. In such an instance, what would we clamour for next? Elected judges in the Supreme Court? What is more, do we want to vanish into anonymity via the route of proportional representation, as has been suggested, in the European mould? As I have said before, how many members of the public know their MEPs? The MEPs are out of touch with their constituencies and their constituents. This is a road to ruin, not the road to reform. Do we really want to become House of Commons-lite?

This country is unique in not having a written constitution, but our democracy has evolved over centuries. We are regarded as the mother of Parliaments around the world and, regardless of all the scandals, we are still one of the most respected Parliaments in the world. We do not have to copy anyone. Let us not throw the baby out with the bath water; let us, as the Bill suggests, strengthen our appointments system, our independence, our expertise and our ability fearlessly and unwaveringly to question, challenge and hold to account the Government of the day every day.

To conclude, I am really proud to serve as a Member of this House. It brings out the best in Britain, and this House is the best for Britain. We are in many ways the guardian of the nation. This unelected Chamber is, ironically, the cornerstone of our democracy. Only through evolution, not revolution, will we able to continue to protect the fairness, justice, freedom and liberty of our great nation.



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12.22 pm

Lord Brooke of Alverthorpe: I am grateful to the noble Lord, Lord Steel of Aikwood, for the way in which he moved his Bill again. I get closer and closer to some of his arguments. As I look down the speakers list, I see that out of the 25 speakers probably six or seven of us believe that the Bill is insufficient. I have spoken from that position on previous occasions when we have had the Bill before us, and I continue to do so, but I shall try to be positive to a degree because I recognise that there is much in the Bill that needs to be addressed by the Government if they intend to move forward with proposals that would remedy the deficiency in the Bill as I see it.

I make the point for the record, so that nobody says that noble Lords have not spoken for an elected Chamber, that some of us still believe in standing by party-political manifestos. I know that that may not be particularly fashionable in some quarters these days, but I believe in that. All the parties went to the British electorate at the last election with the very clear mandate that they wanted to reform the House of Lords and, in so doing, wanted to move towards a more democratic and accountable House than we have at the moment. I stand by that. I believe that if we are to build and restore trust with the public, there are a number of areas in which we can do that-and one in particular is by standing by manifesto commitments. Those who do not will suffer in due course, I believe. I wrote my notes at midnight last night and wrote some rather harsh things about some of our friends on the Lib Dem Benches which I shall not repeat today. But I believe that it is an important factor in the nature of the relationship between Parliament and the public.

The noble and learned Lord, Lord Howe of Aberavon, went through the history of how the House has changed. It is worth recalling that there has been a considerable change in attitude in the House of Commons to its relationship with this House since the 1990s. We have seen a whole series of attempts to affect change, but among the major changes that have taken place in the other place has been a move towards a majority in favour of an elected Chamber, although I am not certain whether it is wholly elected or partially elected. But that is a big change. If we believe in the supremacy in the Commons, we should take note of it-but, more particularly, we should take note of the votes that have been taken there, because never has there been anything like a majority vote in favour of a wholly appointed House. There is no indication at all that there is any support for that.

I move to one question that I need resolving fairly soon from the Government. Are we going to have a wholly elected House in the draft Bill that will come before us, or will we have a partially elected House with 20 per cent coming in by appointment and perhaps to the Cross Benches? If we are, that would answer many of the arguments that have been advanced so far against the way in which the quality of the House will be undermined if we move towards elections. I should like to have a response on that.

There is much merit in the major points made in the Bill. Yes, we need to have a change on hereditary Peers, and I believe that a majority here are in favour of that. Yes, we need a change on the leave of absence

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or retirement policy. Then there is what we do with people who commit certain acts and may be sent to prison. Yes, we need a change on that front.

Then we come to the major issue-the statutory appointments committee. I share the view that we need to move toward one, particularly if we have the 20 per cent appointed under the arrangements that may come this way. Does the noble Lord, Lord Steel, believe that what he has proposed so far is sufficiently open and transparent on the basis of the commission that he has advanced to date? We are now seeing the Commons call into account some of the appointments made to public bodies by the Government of the day. I think that we will find ourselves in a very strange position. We see a change recently by the Chancellor of the Exchequer, who is now saying of the committee of which the noble Lord, Lord Butler, was chair that in future the House of Commons will have a right to veto who is appointed to the committee that will deal with budgetary control. It would be strange if we moved to set up a statutory committee to make appointments in this House that was done like the Star Chamber-in secret, with no access. We made the point about Lord Laidlaw, who made promises. Promises of that nature, when a committee requires people to give commitments, should be made in the public domain and be accessible by the public and be open to question by the public, rather than being done in secret, with debates afterwards about the nature of the exchanges that have taken place between people seeking to come into the House under this commission. Would the noble Lord, Lord Steel, consider the possibility that we might move more towards the kind of arrangements that they have in the United States, where congressional sessions are able to address in the public domain candidates for a particular post? They can see precisely where they stand and what they are prepared to do in future. That would be an important point worth considering and, one would hope, acceptable to most of the people interested in this. That is a positive change that we could look to in future.

I come back to the work that is being done. The noble Lord, Lord Wills, will speak later. He missed the brief Question that we had earlier this week-the discussion on the Lords-when we talked about how the conventions will be addressed. I have been pressing this for quite some time, but I have been told that I must wait. Had I had the opportunity of coming in earlier in the week, I would have asked the noble Lord, Lord Taylor of Holbeach, why if the previous Government under the Prime Ministership of Gordon Brown were able to set up a committee to do work on the conventions that was disbanded only when we came to the general election, and why if the Members of this Government saw the need for that work to be undertaken, are they now arguing that it does not need to be done until we have the draft Bill before us? The noble Lord, Lord Wills, asked that question, and as yet we have not had an answer, so I would be grateful if the Minister could give a response today.

12.29 pm

Lord Trefgarne: My Lords, I begin my remarks by saying how much I welcome the maiden speech of my noble friend Lord Lothian, who spoke to us a few

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moments ago. I had the privilege of serving with the noble Marquess in the Administration of the then Mrs Thatcher. I also had the privilege of serving in your Lordships' House when his father was a Member here a number of years ago, and I very much welcome his arrival here now.

This is the fourth time-is it?-that my noble friend Lord Steel has introduced a Bill along these lines, but I am sorry to say that his Bill is no more timely now than it was on the previous occasions. That said, I do not necessarily quarrel profoundly with some of its provisions, although I have some detailed points to make. I am not against reform of your Lordships' House per se and I am looking forward to the government Bill coming forward in draft, as we now hear that it will next year. However, why are some of your Lordships, such as my noble and learned friend Lord Howe and the noble Baroness, Lady Boothroyd, so opposed to the concept of an elected House? While I recognise the potential difficulties, which have been described, they seem to me to have been overcome with considerable success in the United States, for example. I will not dwell on the differences now, but that model is one which I must confess that I am attracted to.

I shall now refer briefly to some of the provisions in my noble friend's Bill which may need further clarification, amplification or even revision. The noble Lord refers to a new Appointments Commission; of course we already have an informal Appointments Commission appointing the so-called people's Peers. It seems to have worked comparatively well. It leaves the Prime Minister able to make his own appointments, if he so chooses, while allowing the appointment of people whom we very much welcome in your Lordships' House: for example, the retired Chief of the Defence Staff, who generally comes here as a matter of course. That is not part of any formal commission, which I suppose would be the case if these provisions became law.

I shall also refer to the question of the hereditary Peer by-elections, as your Lordships would no doubt expect. I need to remind your Lordships that the 1999 Act was passed with the concurrence of the then hereditary Peers in this House, who had a majority and who could have opposed the Bill and prevented it from passing at that time. No doubt it could then have been passed by the Parliament Act, had that been thought necessary, but it was definitely thought that that was too difficult and that a deal therefore had to be struck. A deal was struck that allowed the 92 hereditary Peers to remain, including the by-elections, until House of Lords reform was complete. I am happy to accept that undertaking, which was given at the time and which has been repeated by the noble Lord, Lord Hunt, on at least one occasion and, indeed, by my noble friend Lord Strathclyde.

I put it to your Lordships that the by-elections should remain as part of the deal-the undertaking that was given to secure the passage of the 1999 Act-and that when House of Lords reform is complete, the by-elections will cease. That is well understood. Incidentally, I am looking forward to hearing about the grandfather arrangements that my noble friend Lord Strathclyde has referred to. However, I dare say

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that they will not include by-elections and I shall not be insisting that they do. Sooner or later, the hereditary Peers will, I fear, be on their way but not, I suggest, under the provisions proposed by the noble Lord, Lord Steel.

The noble Lord proposes in his Bill some statutory arrangements for leave of absence. I am not in favour of those but I would not oppose some more rigorous arrangements of an informal kind for leave of absence. For example, Peers could automatically be considered to have taken leave of absence if they did not appear for an extended period of, perhaps, six months or a year, or it may be that the Clerk should write to them at the end of the year, asking, "You have not been for a whole year. Would you like leave of absence?" or something of that nature. However, I am not in favour of statutory arrangements.

Lord Steel of Aikwood: The problem with what my noble friend proposes is that, if he reads the report of our noble friend Lord Hunt of Wirral, he will see at the back that there is a memo from the Clerk of the Parliaments indicating that that cannot be done. It requires a statutory provision, I am afraid.

Lord Trefgarne: I understand what my noble friend is saying. I am thinking-I confess that I need to apply more thought to it-of some more informal arrangement where Peers could be persuaded to take leave of absence as a matter of course if they did not appear for an extended period.

I did have a problem with one aspect to which the noble Lord referred. I think that he mentioned some silver handshake arrangements. That will cause me very considerable difficulty because, in 1999, there were no silver handshakes and 600 Members of your Lordships' House went without as much as a penny. It would therefore be very difficult to introduce a new silver handshake arrangement if that was what was now proposed. The noble Lord also referred to arrangements for Peers to be removed or disqualified for serious misbehaviour. It is very difficult for anybody to quarrel with such arrangements or provisions although I point out that recently, when there were some serious allegations against certain noble Lords, the matter was dealt with very effectively without any new legislation. I hope that that, too, can be borne in mind.

I make the general point that a Private Member's Bill-no matter how distinguished the proposal, if I may say so-is not really the way to introduce major reforms of a constitutional kind. I am therefore, as I say, looking forward to the Government's Bill coming forward. It will, of course, receive our very close attention. We will be moving into a Committee stage soon and I dare say that I shall have some suggestions to make to this Bill when that time comes. In the mean time, I can do no more than say how much I am looking forward to the maiden speech of the noble Lord, Lord Hennessy.

12.37 pm

Lord Hennessy of Nympsfield: My Lords, it is a pleasure and an honour to join your Lordships' House. It is a pleasure because of the immense kindness

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already shown to me in abundance by all who legislate and work here, and it is an honour to be able to work here with so many of your Lordships whom I have greatly admired, first, as a journalist writing about government and, later, as an outside observer of the British constitution from my academic home in the school of history at Queen Mary, University of London.

I have long had a fascination for the hidden wiring and the moving parts of our constitution, and now I find myself a small new particle of a very big and significant part of the British constitution-your Lordships' House. The fascination began almost 44 years ago on an autumn evening in the library of St John's College, Cambridge, where I spent my undergraduate years. What triggered it? My first reading of Walter Bagehot's 1867 classic, The English Constitution, a magnificent work, brimming with brio and insight into this most ethereal of governing phenomena. Finding the British constitution has been, in one professional guise or another, an elusive quest for me ever since that evening in Cambridge-a fascination, I have to confess, that has not always been fully understood by less than empathetic colleagues and friends, who tend to see in it a dash of the young trainspotter that I was in the glorious days of steam.

In the context of today's debate, it is intriguing and, I think, useful to plunder Bagehot's chapter on the House of Lords, even though it was written in the mid-19th century, and I shall come to that in a moment. On the theme of utility, it is sometimes only in long historical perspectives that we can discern the retrospective work of your Lordships' House. For example, it turned out to be the prefect receptacle when our country mercifully shed its habit of executing those it had come to regard as failed politicians. I made this point a couple of weeks ago to the noble Lord, Lord Robertson of Port Ellen, when we were companions on a journey returning from the University of Aberystwyth. We partly filled the long slog home across mid-Wales by contemplating the value of your Lordships' House and what might await in future. The noble Lord responded to my historical depiction of the House of Lords as an alternative to execution, and I have his kind permission to relay our conversation, by saying that he had made a similar point to the Russians while on a visit in his capacity as Secretary-General of NATO a decade or so after the Cold War had ended. He told his hosts that what communist Russia had lacked was a House of Lords of its own into which it could have decanted the likes of Leonid Brezhnev. "If you had possessed such an institution," the noble Lord told the Russians, "you might still have a Soviet Union".

Back to the real thing, though: your Lordships' House. In 1867, Bagehot saw it as a Chamber of,

of draft legislation. It was imperative, he wrote, that the House should contain a "class of respected revisers". He regretted that Lord Palmerston's proposal for the appointment of life Peers had been rejected, and warned that without such an infusion of persons with professional knowledge and experience, the House of Lords could find itself in peril. He wrote:

"Its danger is not in assassination, but atrophy; not abolition, but decline".



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It took another 91 years before Bagehot's prescription was fulfilled with the passage of the Life Peerages Act 1958, almost certainly the most transforming incremental reform of your Lordships' House in its long history, with a powerful and cumulative effect that has made it what it is today-Bagehot's House of respected revisers. That, in my judgment, is the crucial test to be applied to any of the new configurations of your Lordships' House that may be proposed: could the Members of a reformed Chamber still be seen as respected revisers?

I was once in favour of an elected Chamber-a British senate of 100 legislators, elected on the basis of proportional representation by huge constituencies that embraced city, town and countryside, with one-third up for election or re-election every five years. I have changed my mind; indeed, it would have been improper to have applied for appointment to the Cross Benches of your Lordships' House if I had not. There are two chief reasons why I have changed my mind. First, there is the high and continuing utility of having a group of people somewhere in the legislative process who are sensitive to politics and government but are not themselves partisan in a party-political sense. Secondly, in most trades, crafts, professions and walks of life, we are ever keener to widen the confluence of backgrounds, knowledge and experience when recruiting. In my judgment, appointment rather than election will remain the best and primary instrument for achieving this if it is a goal that we share.

Quite apart from election, which would create the danger of a replica Chamber that, by its very existence, would promptly inspire a tussle in terms of relative power with the other place, it is very difficult to imagine that elections would sustain the flow of experience and knowledge that the appointments system provides for your Lordships' House, especially regarding those with a background in science and technology, business and industry. To rise in the other place, you need first to make your way there in your 30s or early 40s. With the best will in the world, that is usually too soon and too young to have acquired fully professional depth in the laboratory or the boardroom.

I know that undue controversy has no place in a maiden speech, and horizon-scanning is a perilous craft. I hope, however, that your Lordships will allow me a concluding thought on the Bill before us. Once we have seen a debate on the coalition Government's proposals on reform of your Lordships' House and they contain, as we expect, a dominant element of election in them, if the two Houses of Parliament find that they cannot reach a consensus on a new DNA for the revising Chamber, and if in the approaching twilight of their term the coalition Government are unwilling to reach for the Parliament Act, we have in the House of Lords Reform Bill in the name of the noble Lord, Lord Steel of Aikwood, a rational, valuable and relatively readily implementable alternative for worthwhile improvement that cuts with the grain of past changes-a means, in short, of effecting organic reforms as an alternative surgery.

Much of the British constitution remains unwritten, though a good deal of it, since I first read Bagehot in 1966, has moved from the back of an envelope to the front of a code and then to the face of an Act of

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Parliament. I have in mind particularly the Civil Service element in the Constitutional Reform and Governance Act 2010. Yet much remains as magical and mysterious as when Bagehot picked up his pen to describe what he saw.

Constitutional statutes, when they are drafted and brought forward, are, in effect, the Companies Acts of the British way of government. They are often what Bagehot called the "latent part of legislation", laden with unanticipated implications for other parts of the British constitution and dripping with the possibility of unintended consequences. Their scrutiny calls for the most special care.

12.45 pm

Lord Faulkner of Worcester: My Lords, it is not very often that I get the privilege of following a maiden speaker in your Lordships' House and to be given the opportunity to pay a tribute to him. It is even rarer to follow a new Member of such exceptional talent and distinction as the noble Lord, Lord Hennessy of Nympsfield.

The noble Lord, Lord Hennessy, is known to all of us as a broadcaster and writer; and, in the case of my noble friend Lady Hayter, as her PhD supervisor. For 20 years he was a journalist, working as a leader writer and Whitehall correspondent on the Times, and lobby correspondent on the Financial Times. We listened to him as the presenter of the "Analysis" programme on Radio 4.

In 1992 he joined the department of history at Queen Mary in the University of London and, since 2001, has been the Attlee Professor of Contemporary British History. In 2008 he won the Times Higher Education's lifetime achievement award, when he was described by the acting principal as,

The Guardian, in a leader column in 2007, said:

"Prof Hennessy is not like anybody else ... He is simultaneously both scholar and journalist, traditionalist and radical, conservative and liberal, patriot and subversive".

We have just listened to a brilliant maiden speech full of humour. I am sure that I speak for the whole House when I say that we look forward to hearing from him many, many times in the future, especially when we are debating constitutional issues. The noble Lord, Lord Hennessy, will be a huge asset to your Lordships' House, and I congratulate the Appointments Commission on making such an inspired choice.

Noble Lords: Hear, hear.

Lord Faulkner of Worcester: My Lords, that leads me neatly into expressing my complete support for the Bill again introduced so ably by the noble Lord, Lord Steel of Aikwood. I congratulate him on his patience and perseverance.

I reread the Hansard report of the debate on the Bill of the noble Lord, Lord Steel, on 27 February 2009. The arguments that he used then in support of it-and

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those made by the overwhelming number of noble Lords who also spoke in favour, including myself-seem incontrovertible nearly two years on. Indeed, they were so convincing that the previous Labour Administration adopted most of the Bill's provisions in their Constitutional Reform and Governance Bill, as my noble friend Lady Royall of Blaisdon reminded us in her speech earlier.

Many noble Lords warned in February 2009 that if there were no provision for retirement, a change of Government would trigger the appointment of large numbers of new Peers, making the membership of the House intolerably large. That is exactly what is happening. Frankly I doubt whether many of your Lordships were reassured by the answers given by the noble Lord, Lord McNally, in response to my noble friend Lord Dubs's Question on Wednesday. Perhaps the most extraordinary statement made by the Minister in those exchanges was that the "dilemma"-his word-of too many Members in your Lordships' House has been created by the House itself. I was under the impression that it was not this House which put forward recommendations for peerages, but the leaders of the political parties, plus, in the case of a handful of Cross-Benchers each year, the Appointments Commission.

At the very least, I hope that the party leaders will accept the advice offered by Dr Meg Russell of the UCL Constitution Unit in her paper of 22 November, to which the noble Baroness, Lady Boothroyd, referred in her speech, entitled Time for a Moratorium on Lords Appointments. She takes head-on the argument that the composition of this House should reflect the share of the vote secured by the political parties at the last general election. If we follow that route we will have an intolerably large House with, as the noble Baroness, Lady Boothroyd, says, almost 1,000 Members. We are already at the point where the Chamber is seriously overcrowded for Questions. We have had to commandeer the use of the Below Bar visitors' seats. This is before the first of the 54 new Peers joins us. I suspect we shall be taking over the spouses' seats next. The pressure on facilities if we get bigger and bigger will also become increasingly intolerable. I have a final comment from Dr Russell:

"For as long as the system of appointment for life continues, the proportionality goal must therefore simply be forgotten, before serious damage is done".

That is a compelling reason for the retirement provisions in the Bill of the noble Lord, Lord Steel.

What is of paramount importance in any discussion of how we change the House is that we do not diminish its effectiveness in holding the Government to account, scrutinising and revising legislation, and drawing on the experience and knowledge of its Members to investigate subjects of national concern through our Select Committee system. Completely absent from the debate about election or appointment is any evidence that an elected House would do that job better. The legitimacy of an assembly can be achieved in several ways. Elections are certainly one route but they are not the only one. That would certainly not be the case if we became just a second-rate shadow of the other place, consisting of a bunch of placemen and placewomen who had got here through being placed high up on a party list.



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I would have much more faith in a statutory appointments commission being able to produce a Chamber in which ethnic minorities, people with disabilities, representatives of the regions and nations of the United Kingdom, as well as outstanding leaders of the professions, such as academics, senior police and service chiefs, and all the other distinguished people who make up the Cross Benches were to have a place. That is why I cannot believe that it would be right to go down the 100 per cent elected route. Central to the future of this House and its effectiveness is the continued presence of independently minded Cross-Benchers, such as the noble Lord whose maiden speech we heard just a moment ago.

12.52 pm

Lord Higgins: My Lords, it is a pleasure to follow the noble Lord, Lord Faulkner, not least because I think I agree with every single word he said. I am therefore able to restrict my own remarks to a rather shorter length. In particular, I am happy to agree with him on how fortunate it is that the noble Lord, Lord Hennessy, has joined us. The noble Lord, Lord Faulkner, mentioned several of his previous roles. He may suddenly find himself in the role of politician. None the less, it is fortunate that we have his advice and wisdom at this stage. We are debating a considerable number of constitutional matters at present. It would not be a great exaggeration to say that we are in considerable danger as far as constitutional matters are concerned.

I will make only one or two brief points on the overall question of reform of your Lordships' House. I was very surprised when a colleague of mine on these Benches, in a discussion that we had on this issue a little while ago, said, "It's really very difficult to explain to people because, as Mr Clegg says, changing to an elected system would make it more democratic". I replied, "I think that is profoundly wrong". What is proposed by way of election to this House will in no way increase democracy, which already exists, 100 per cent, in the House of Commons. What it will do is divide the operation of democracy and make it less effective. I see no reason at all why one should go along with the views expressed by Mr Clegg and reinforced repeatedly by the noble Lord, Lord McNally.

I am also particularly concerned about the way in which the arrangements for the coalition give a preponderance of emphasis to views supported by Mr Clegg and my noble friend Lord McNally. One has only to look at the events of the past week to realise what this danger is-that we may, as a result of trying to hold the coalition together, go down extremely dangerous paths. Earlier this week, the coalition Government put forward a proposal not simply for a referendum-during my 33 years in the House of Commons I always found such proposals very dangerous-but a mandatory referendum. The other night, your Lordships agreed to a mandatory referendum. This strikes at the heart of one's feelings about the issue. Edmund Burke must be rotating in his grave at a very rapid rate. We have a representative system of democracy and Members of the House of Commons are representatives, not delegates. We cannot have mandatory referendums as the dangers of doing so are very great. To start with, pressure would soon be

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applied to hold a mandatory referendum on capital punishment. I have no great doubts that such a referendum would result in a far bigger majority than is likely in a referendum on the alternative vote. The coalition agreement has set a major constitutional precedent, which is dangerous, and the same is true as far as your Lordships' House is concerned.

I am very glad that my noble friend has reintroduced his Bill and I hope very much that attitudes towards it will change. The composition of your Lordships' House is dynamic and changing, particularly with regard to the number of noble Lords. As several speakers have pointed out, the large number of Peers is creating serious problems. Indeed, I think that the noble Baroness, Lady Royall, said that we were in danger of being held up to ridicule. I do not know whether this is a conspiracy but it is certainly the effect of having an increased number of Peers. My noble friend's Bill is even more timely than it would have been previously as it helps in two respects. First, it suggests that there should be a statutory commission rather than the existing arrangement, which has presided over the enormous number of new Members. Perhaps the quickest way to solve this dilemma is to abolish the present commission and delay the introduction of a new one. My own view is that we should have a moratorium on the introduction of new Peers until such time as the noble Lord, Lord Hunt, who has produced an excellent preliminary report, has reconciled these matters.

There is a serious lack of data on how many Members might take advantage of the proposal in my noble friend's Bill to retire from the House. The noble Lord, Lord Hunt, has already concluded that we need primary legislation and, as my noble friend has just pointed out, this matter constitutes an excellent example of where that is needed. There is no need to wreck the Government's programme; we can simply go along with my noble friend's arrangement. The Bill also provides for a statutory appointments commission, which could take into account the constitutional position. It is very strange that we have never had a limit on the size of your Lordships' House, and it is high time that we did. The statutory appointments commission could take that matter into account and enable noble Lords who wish to leave to do so. If the arrangements made in that regard were cost neutral, it would not be unreasonable for compensation to be paid to those who leave the House. I think that would be a saleable product. It may not be very easy to gain acceptance for it, given the attitude of the press generally, but it could mean that we get a significant increase in Members retiring. However, we do not know to what extent that may happen. We look forward to the report of the noble Lord, Lord Hunt, which I gather is making rapid progress. In the mean time, for the reasons that I and other noble Lords have given, we should proceed urgently with my noble friend's Bill and get it on the statute book as soon as possible.

12.59 pm

Lord Grenfell: My Lords, we have heard two remarkable maiden speeches from Peers who will clearly be enormous assets to this House. I wonder whether we would have had that benefit if this had been an all-elected House. I rather doubt it. This is one of the great strengths of

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the House we have. If I may say so, the news of the conversion of the noble Lord, Lord Hennessy, was not just music to my ears but a veritable ode to joy.

I have sometimes been tempted to think of the noble Lord, Lord Steel, as Sisyphus rolling his stone up the hill, only to see it falling back again, down the hill. Of course, Sisyphus was not at all a nice man. The noble Lord, Lord Steel, on the other hand, is an extremely nice man and he will be following Sisyphus not into Hades, but into that pantheon of politicians who never give up on a good cause.

There is a principle which we ignore at our peril, which is that one should not tear down and replace an institution unless one is sure that the defects in the existing institution rendering it insufficiently fit for purpose cannot be corrected. If you believe, as I do, that the creation of a fully or mostly elected second Chamber presumes the abolition of the present institution, in order to create a wholly different one, you will understand why I support the Bill. It seeks to put right some obvious defects and introduce some real improvements, and the means proposed and the ends desired are eminently sensible and achievable. What is more, they can be put in place without prejudice to the discussion we absolutely must have about the purposes of a second Chamber before we tackle the divisive question of its composition.

There is already broad support in this House for most of the measures proposed in the Bill. I know that there is unhappiness in some quarters over the proposed ending of by-elections to fill hereditary vacancies, because of the solemn undertaking given in 1999-of which the noble Lord, Lord Trefgarne, reminded us. As a hereditary Peer fortunate enough to have been given a life peerage, I share the discomfort of those who feel that a promise made to them risks being broken. On the other hand, it was never foreseen that a second stage of reform would still not have been reached 11 years later.

Our hereditaries make a contribution to the work of this House out of all proportion to their numbers. They contribute individually as Ministers, shadow Ministers, Deputy Chairmen and Deputy Speakers, committee activists, and Front-Bench and Back-Bench experts in many fields of human endeavour. I do not wish to see them go, but in an already inflated House an occasional reduction in their number through natural causes does not seem to be unreasonable. Those remaining should be allowed to serve on as Peers for life, and their continuing contribution should be welcomed on all sides of the House.

As to the Bill's other proposals, their objectives seem to be subjects of a growing consensus among your Lordships. The case for a statutory appointments commission has been made time and time again and I have no wish to weary the House with further rehearsal of its obvious merits. The case for a permanent leave of absence, one of the options currently under consideration in the group of the noble Lord, Lord Hunt of Wirral, is likewise familiar to the House and I need to make no further comment on that. The provisions in Part 4 for cases of conviction of a serious criminal offence seem to be proportionate, fair and sensible, and I believe that I am far from alone in that view.



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So what should we be asking the coalition Government to do? The noble Lord, Lord Steel, was surely correct in suggesting some time ago that these are issues not normally considered to be suitable for a Private Member's Bill, but it is absolutely right that we now carry it forward as a means of making the Government aware of the strength of feeling in many parts of this House that certain measures of reform should not be delayed further. The Minister will doubtless urge us to wait patiently for the delayed draft Bill now promised for early in the new year. Is that a guarantee that the modest reforms proposed in today's Bill will reappear in some similar form in the later Bill, and, if they do, will we then have to wait years for them to be implemented?

I entirely share the doubts expressed by the noble Lord, Lord Steel, that enactment of any Bill based on the coalition's awaited draft will have to wait until some time in 2012, and yet we are called upon to be patient. Perhaps I should remind the House, as the poet Dryden wrote:

"Beware the fury of a patient man".

If the coalition does not agree with the aims of these proposals, it must say so, and, if it does, it must assure us that it will not seek to delay or obstruct their implementation. As I said at the outset, they do not prejudice the outcome of the future debate on the purposes of this House and the composition that will enable us to fulfil those purposes. We are simply trying to ensure that, unless and until this House is, God forbid, abolished and replaced, we have a scrutinising and revising second Chamber even better equipped to do the excellent job that it currently does.

I wish the Bill of the noble Lord, Lord Steel, a fair wind and I hope that his stone will remain at the top of the hill.

1.06 pm

The Earl of Erroll: My Lords, I suppose that I should thank the noble Lord, Lord Steel, for the opportunity to put one's thoughts on the record. I am sorry not to have done so before now but I always felt that there were quite enough people on the list to speak in these debates. I am not sure why we are discussing this Bill when the three parties with a democratic mandate are going to put forward their ideas in the near future. Perhaps it is so that, long into the future when everything has gone wrong, some researcher will be able to look at your Lordships' comments and say, "What wise words of wisdom were uttered by that noble Lord".

The trouble with the Bill is that it attempts to preserve the appointed life Peers through a pre-emptive strike, but that is not what Parliament intended. It removes several incentives for change. I am one of the hereditary Peers who was elected to stay here, and I accepted that because the purpose was to make sure that proper reform would take place in the future. The hereditary element left was the incentive for change. The trouble is that, when you remove the incentives, people stop moving in the direction in which you want them to go. If we allow the hereditary Peers to die out, steadily and slowly the whole House will become under the control of unaccountable people who appoint those who come here-a theme that has cropped up throughout these debates.



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Perhaps we could look, first, at the future of an appointed House. As I said, people are driven by incentives. We also know the mantra that, if you have no democratic authority, all power will be removed, and therefore there will be no purpose in people coming to sit in this House. If people sit and debate in this House without the power to affect legislation, they will simply stop bothering to come, and this place will just be a club for those who like waffling on. The wise people will walk away and that will be sad, because we will not get the sort of people who are being appointed at the moment.


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