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Lord Marsh: My Lords, I was one of the three Privy Counsellors who took part in those discussions. There were no negotiations as such, because there was no way that the three Privy Counsellors, who were all Cross-Benchers, could negotiate because they could not deliver anybody apart from the three of them. Who actually reached the agreement? It was not the three Privy Counsellors. I do not know how it could have been the Leader of the Opposition, because he was fired the same day, immediately after the press release. So who on the Conservative Benches was party to the agreement?
Lord Strathclyde: My Lords, the noble Lord has just reminded me of a rich irony. Today is precisely the fifth anniversary of my sacking as Chief Whip and installation as Leader of the Opposition. The agreement is quite clear in the words of the noble and learned Lord, Lord Irvine of Lairg. It is an agreement between the Government and Parliament. It was on that basis that the House of Lords Bill of 1999 became an Act. This proposed Bill does not take us anywhere near stage two. It does not pretend to be stage two. It could not pretend to lead to stage two. All that it does is to take us back to 1998–99, to stage one.
Do the Government have any intention of moving to stage two? The Minister mentioned it, but did not shed much light on what it meant. Can we ever know? If we are to have stage two and the stability to which the Lord Chancellor has referred in the past, even in the context
of an appointed House, questions flagged by the Royal Commission would have to be addressed, such as: the total size of the House; safeguards on political abuse; term limits or otherwise of appointed peers; a rebalancing of the House after elections; the right to reappointment or to stand for the Commons; the place of the right reverend Prelates; retirement rules; powers over secondary legislation; who appoints the appointers; and the powers of the Prime Minister to appoint Peers outside the appointments commission.Those and many other issues will all need to be resolved in an appointed House such as proposed by the Government, without even considering the issue of election—direct or indirect. Ahead of us is fire and storm shell and a very uncertain outcome. It is all so avoidable.
I believe that I speak for many Peers on all Benches with whom I have had the privilege of working over the course of the past two decades. On this Bill, as on the Supreme Court Bill, there is a far better way forward. We should return to where the Government once wisely pointed—the Joint Committee. Even in the context of this Bill, the Joint Committee could do a service. The noble Baroness admitted as much. The committee could study and advise on the matters left undecided by the Royal Commission and say how, for example, an appointments commission might work.
We hear much of pre-legislative scrutiny, though not, sadly, of either of the Bills that we are discussing today. I find that astonishing. Prime ministerial amour-propre should not rank above responsible constitutional reform. Wise governments know when and how to retreat; wise oppositions respect a government ready to think again. That is clear to all of us. In the face of all the authoritative objections raised, it would be so much wiser and would win so much more respect if the Bills were put to the Joint Committee or another parliamentary forum before any attempt to ram through unilateral change. Then, while the work of building consensus continued, Parliament could deal with what the public might think to be more pressing matters, such as mental health or the reform of charity law, Bills that will be held up while this legislation is pushed ahead.
Later tonight I will invite the House to record its distaste for the breach of the undertakings given in 1999. We must send a clear message, asking the Government politely but—to make no mistake—earnestly to think again. The noble Baroness, Lady Williams of Crosby, has tabled a separate amendment, but the Government should draw no comfort from that. All those who support either amendment are asking the Government to think again. Supporting the noble Baroness's amendment does not mean that someone cannot support mine. I hope that many will join me when I divide the House tonight.
As I listened to the gracious Speech, I felt, as other noble Lords may have done, a real sense of threat to this House. That is why I will ask the House to join me in a common resolve to urge the Government back to consultation and consensus. In the search for that, I promise, all other parties are ready to play their part.
Moved, as an amendment to the Motion for an humble Address, at the end of the Address to insert "but regrets the decision of Your Majesty's Government to abandon the search for cross-party consensus on constitutional reform and to launch unilateral proposals for changes to this House that could gravely weaken the House; and calls on Your Majesty's Government to respect the formal undertakings given to this House, to withdraw their current proposals and to undertake meaningful consultation with Parliament and the senior judiciary before proceeding with legislation.".—(Lord Strathclyde.)
3.52 p.m.
Baroness Williams of Crosby: My Lords, in following the speeches made by the Leader of the Opposition and the noble Baroness the Leader of the House, I shall make my starting point closer to the speech given by the noble Baroness the Leader of the House than to that given by the Leader of the Opposition. But I shall come back to what the noble Lord said because he identified as fundamental the deeply troubling sense that there has been a breach of trust. The Liberal Democrats, perhaps, have a different aspect on that, but I would like to put it before the House.
Before I do so, I must underline one of the most important things said by the noble Baroness the Leader of the House: our concern is, rightly, not only with the House of Lords but with the growing distrust of representative democracy in our society. We would be unwise to fail to recognise that the challenge to the Government on constitutional reform is, at this time and for this nation, very serious. As the noble Baroness said, the proportion of people who vote is falling. That is most notable among the young. The number of people joining a political party or associating themselves with one is falling. There is a wide consciousness that local government has been hollowed out and that it has little discretion and little power. There is growing awareness that, under this Government and their predecessors, the Prime Minister's office has increasingly taken over from the Cabinet direction of the policies put before Parliament and that such policies are often passed under great pressure and against what would be the conscience of Parliament.
We must be aware that we are at a profoundly critical stage in the development of this country's long-standing and powerful democracy. In 1997, we and our predecessors on these Benches believed strongly that the government that had been elected had a new vision—a vision of radical constitutional reform that would strengthen Parliament and give the country a Parliament truly capable of holding the executive to account. We were, as my noble friend Lord Maclennan of Rogart said, inspired by the concept of devolution of power to the countries and regions of the United Kingdom. We were inspired by the prospect of a serious consideration of the voting system. We were inspired by the prospect of a Parliament that, at both ends of the building, would be reformed and modernised.
Some of that has happened. Like many of my colleagues, I welcome the devolution of power to Scotland and Wales. It has led to new ideas, new vigour and, often, to extraordinary reforms that have not yet been extended to England. We welcome those things and congratulate the people of Scotland and Wales on what has been done and on what will be done. However, the great reform has come off as—I agree with the Leader of the Opposition on this—a half-baked reform. It has been stopped half way through its growth and its life.
Today, there are reforms to the judicial system—my noble friend Lord Goodhart will mention our welcome for the joint appointments committee—but we have stopped half way. There is no ministry of justice, as there is in Scotland; there is no concept that the creation and initiation of law should be in hands different from those involved in its implementation; and there is no awareness that our criminal justice system is, in many ways, anachronistic. A ministry of justice would have been a proper, substantial reform. We got a certain amount of tinkering, instead of what could have been an inspiring rebirth of the judicial system in the United Kingdom.
I turn to reform of the House of Lords. I subscribe to the serious charge made by the Leader of the Opposition. We believed what the noble and learned Lord, Lord Irvine of Lairg, said when he was Lord Chancellor. We believed in the proposals for what was described as a more representative and more democratic House. We believed in those things; we worked on them; and we thought that, together with the representatives of Her Majesty's Government, we could deliver those things. In that context, I quote one of the Government's earlier leaders on the matter, the right honourable Robin Cook MP. As Leader of the House of Commons, he said, as late as January 2002:
- "If the second Chamber is to discharge is to discharge those functions in the public interest, it is essential that it should contain some members elected by the public".—[Official Report, Commons, 10/1/02; col. 706.]
The noble Baroness the Leader of the House spoke eloquently and persuasively about the difficulties of moving ahead. We all know that, in this House, a substantial majority was, as she said, in favour of a wholly appointed House. However, we must be precise: there were two reasons why the vote in another place for an elected or substantially elected House was lost. The first reason was tactical. The votes in the House of Commons did not put the principle of having an elected House up against the principle of having an appointed one, and the majority in the Commons in favour of an
elected House was fragmented by a set of separate Motions proposing different elected proportions. Taken together, the votes showed that the will of the other place was clear.There was a prospect that the 80 per cent option would, despite the fragmentation of support by the 60, 20 and 40 per cent options, be passed by another place. I think we all know why that option was lost by precisely four votes. It followed the direct intervention of the Prime Minister, who indicated his complete opposition to a substantially elected House. Frankly, it is no good for Her Majesty's Government to pretend that there was no such intervention, one that brought about the loss of that particular option by only four votes. So Members on these Benches do not believe that there is no way forward. We believe that there is a way and that, given the will, it would be possible to find a further route for this House.
Although it is difficult for governments to understand this, I want to say a few words about the absolute importance of having a Parliament which is respected, taken seriously and able to hold the executive to account. I say over and over again that Members on these Benches in this House have no perverse desire to toss out legislation introduced by Her Majesty's Government. We will not take part in a policy of "going slow" to frustrate the will of the Government. But we are profoundly concerned about the Government's suggestion that, somehow, it is illegitimate for an unelected House to draw the attention both of the Government and of the other place back to what we regard as serious incursions on traditional liberties and on the standing of our unwritten constitution. That I believe to be the ultimate obligation of this House and one that the public widely accept.
In the poll conducted prior to the votes taken in the other place, 83 per cent of those who took part indicated their strong support for a largely elected House. It is impossible to argue that there is public support for a wholly appointed House because there is no evidence whatever to suggest that that is true. If we are to respond to the concerns of our fellow citizens, we need to go back and consider the position before us.
Let me say finally—I do not want to detain the House for long—in a little more detail that Members on these Benches deeply regret the Government's lack of courage in breaking the link between the Peerage and the House. I cannot think why the Government have reverted to the profoundly "little c" conservative view that this House must be linked somehow with the Peerage. That is almost to say that we are not moving in a modernising direction.
I turn to the position of the hereditary Peers. In doing so I pay due respect to the fact that they are among the best attenders in the Chamber and the most hardworking of Peers. Nevertheless, since the very beginning of the Liberal Democrat Party, Members on these Benches have never accepted that heredity by itself is a proper basis for representation in either House of Parliament. We have never held to that principle and we do not hold to it now. However, we feel very strongly—we will stand by this—that to make a half-botched reform by getting rid the remaining
hereditary Peers without making any response to the other half of what we understood was the decent, honourable, upright deal and understanding between us—the noble Lord, Lord Strathclyde, pointed this out—is wrong. The abolition of the remaining hereditary Peers was to be linked to a true reform that would bring in a new influx of democratically elected Peers. What is proposed is not what we understood would happen. Members on these Benches are disappointed, some would say that we feel betrayed, because we have acted and negotiated in good faith. We have to hold to the position that, sooner or later, that good faith must be upheld.4.4 p.m.
Lord Craig of Radley: My Lords, in the 1999 White Paper, Modernising Parliament, the Government stated that they would,
- "maintain the cross-bench representation at around its present proportion of life peers".
- "appointment of non-political members of the House should average 20% of new appointments over the course of each Parliament".
From 1958 to 1999, it was customary for some life peerages to be announced in the Queen's Birthday and New Year's Honours lists. In total about 250 individuals out of well over 1,000 were honoured in this way before the present appointments commission was set up in 2000. That is equivalent to an annual average of fewer than six awards per year; a small and special category of recognition. Virtually all other life peerages have been awarded in dissolution or resignation honours lists, or to replace or strengthen political party membership—quaintly referred to as "working Peers". In 2001, the newly created appointments commission recommended 15 outstanding applicants to become independent Peers. Until then, a peerage had been regarded and treated as an honour.
Regrettably, by establishing the appointments commission, this Government have severed the link between membership of the House and the honour previously bestowed in the New Year and Birthday Honours lists. In the case of the late Lord Lewin and myself, we were named in the lists of honours awarded respectively for the Falklands conflict and Gulf War 1. We did not figure in a half-yearly honours list and we much prized this uniqueness. Speakers from the other place are also honoured with a peerage on their retirement, at the behest of the Commons. They, too, prize this. Will the Government confirm their intention specifically to allow for peerages in these two categories to continue?
However, of greater concern to me is the proposal to establish an appointments commission on a statutory basis and to give that new body significant
responsibilities, in addition to selecting individuals as new non-party Peers. I wonder if I am alone in feeling uneasy about this plan? It is seen as a means of replacing and building on the experience and responsibilities of the present commission, but the case for the present commission is based on less solid ground than when it was originally proposed and set up. At the time there was a strong presumption that, before too long, the House would have an elected element. It was argued in the 1999 White Paper that an appointments commission would relieve the Prime Minister of the function of nominating Cross Bench Peers because they would become more important,
- "with the removal of the Conservative in-built majority".
The Royal Commission recommended a statutory commission with wide-ranging powers for a partly elected House when it would be inappropriate for a Prime Minister to have a role as an appointer. It was argued that it was not in keeping with modern sensitivities for a Prime Minister to exercise patronage in appointments. Much was made at the time, and has been repeated today, of the self-denying ordinance of this Prime Minister.
But, in reality, how great is this Prime Minister's surrender of Lords' patronage? What has he given up? He has given up honouring around six new individuals per year from a field of eminent and successful people whose efforts merit the award of a peerage. But he will still be responsible for the ennoblement of every new Peer on his party's Back Benches; the Ministers that he wishes to sit in the Lords; the past holders of high office such as Archbishops, Cabinet Secretaries and Chiefs of the Defence Staff, whose appointments he was probably responsible for recommending to the Queen in the first place; and every new Peer named in his dissolution or resignation honours—I tread lightly on those two adjectives. Is that patronage surrender? No, it is just spin.
This Prime Minister retains a major role in filling vacancies in your Lordships' House for as long as it is to remain a fully appointed House, which is his firm preference. But that role for a Prime Minister is neither reprehensible nor alien to our customs. All of Mr Blair's predecessors since the Life Peerages Act 1958 managed to select on average around six individuals a year to be honoured in the New Year and Birthday lists, to select their party's working Peers and Ministers, and all those named in their dissolution or resignation honours.
Why then should the relatively small task of selecting five or six individuals a year to be honoured be so inappropriate for the nation's Prime Minister? Instead, his appointments commission was tasked to seek applicants, not those who should be honoured with no pre-scripted obligation to participate in the work of the House as had happened previously. We are invited to legislate to remove just one small element of patronage from Mr Blair and all future Prime Ministers. Is it right to so curtail a responsibility that should go with the job?
We now have a commission the role of which, after the flush of 15 Peers to catch up with the period when there had been no new year or birthday honours, may be limited to naming five or six Peers per year in a couple of tranches once filled by the honours system. Even that number could be doubtful. Three non-party peerages have been awarded in the past year directly on the Prime Minister's authority, without recourse to the appointments commission.
Current Cross-Bench representation, excluding the Lords of Appeal in Ordinary and minor parties, is around 24 per cent. That leaves scant headroom for additions to a 20 per cent on average non-party membership.
A new statutory commission, as envisaged in the Government's consultation paper, will,
- "wield very significant powers".
- "to have in mind the non-party peers' share of the House".
The commission's significant powers are to be exercised in conformity with certain principles or guidelines—I am not sure which, and it may not be that material—but, whichever they are, they are expressed in the vaguest terms:
- "The Government of the day should not have an overall majority in the House".
- "should be guided, in its decision on the appropriate balance of new nominations between the parties, by the distribution of votes between the major parties at the previous general election".
Because of the inflexibility of life membership the Government do not propose to set out any of these "rules" in legislation,
- "beyond having regard to the general election result".
Yet the more that it is left to its own devices, the greater will be the prospect of serious disagreement on one side or another about its decisions and methods of work. With a much more limited role the present commission has not been without its critics.
The new commission is also to pay attention to representativeness and regionalism and is to have,
- "very much in mind the need to keep the House to a manageable size".
Should legislation to set up a new commission seek to be precise; to give some mathematical approach to calculating relative party strengths after a general election and eligibility criteria for becoming a Member of the House? If so, you do not need a new statutory commission. The Electoral Commission could be charged to work out the new party strengths to the agreed formulae following an election.
In sum, for a fully appointed House I have doubts about the need for a statutory commission with wide and ill-defined powers yet great authority. It may be difficult even to get its membership mix agreed. Once it is set up it will be either a continuing focus for dissent, and thus instability, or it will be so circumscribed by statute as to be an unnecessary complication in our constitution.
Let the Prime Minister of the day, still with very wide powers of patronage, continue to be responsible for honouring half-a-dozen or so individuals as independent Peers each year. If he needs help in identifying them, he can look to an informal arrangement. Future Prime Ministers should be free to undertake this task in whatever way—including, perhaps, the old way—that suits them. They should not be tied by an entrenched statute.
The nation has been well served by the appointed Members of the House who have entered it by the old routes. The goal posts of reform have moved back from election to appointment. The Royal Commission's views in favour of a statutory commission are no longer so relevant. Must we turn to an expensive, controversial statutory commission with ill-defined, extensive political powers and required to find a very few new independent Members a year for your Lordships' House? However eminent, will it serve us well? I have my doubts.
I have not yet addressed the amendment standing in the name of the noble Lord, Lord Strathclyde. He knows that I have a good deal of sympathy with what he says. I reflected similar sentiments when I said that the noble and learned Lord the Lord Chancellor's statement on 18th September contained a,
- "serious breach of faith".—[Official Report, 18/9/03; col. 1065.]
4.16 p.m.
The Lord Bishop of Portsmouth: My Lords, there is a story about a preacher who fell asleep during his own sermon. I have never suffered from that particular fate myself, but it springs to mind as I try to make some observations about the implications of the gracious Speech in relation to today's debate.
I have been in your Lordships' House for only four years, but there seems to have been more than ample opportunity to try to get at least some of these matters
settled in some kind of orderly way—Wakeham, Green Paper, parliamentary Joint Committee, to say nothing of the public debate that has been going on at the same time. I hope that what follows, offered in the spirit of a friendly critic, may in some small way help to push the debate along. If I adopt the popular preacher's practice of concentrating on three areas that begin with the same letter—process, principle and perspective—perhaps your Lordships may be allowed to conclude that the ruse is to try to keep me awake while I speak to you.First, the process has gone badly wrong in relation to the Lord Chancellorship and the reform of the House. I accept the argument offered by many that the tramlines of constitutional development might be leading us towards a separation of powers, but to do so on the hoof in a Cabinet reshuffle is not exactly the best way to go about things. It is certainly not something that I would get away with as a Bishop in a diocese along the south coast. There should have been a debate beforehand on the principles involved and these Benches look forward to contributing to the debate on the report that has recently been published.
As far as reform is concerned, I should like to register a little frustration from these Benches. We have consistently encouraged the reform process, even though, in relation to recent deliberations, we have had no representation on the Joint Committee. Over and above a desire to make the Lords Spiritual more comprehensive in composition, some of us, on a much wider front—and I am not here to speak about Bishops in the House of Lords; it is about reform that I want to speak—have repeatedly drawn attention to the need for far more work on different methods of appointment and different methods of election.
Instead of being presented with a series of mathematical options, as we were in January by the Joint Committee, we should have had the opportunity to look in far more detail at that issue first to try to widen the range of language we are accustomed to using; to get away from the at times polarised style of debate we have had in this area—where it is either "elected" or "appointed" when all the ranges of options merge in and out of each other in the middle. It is a much more complex issue than many realise.
In that connection, I have a great deal of sympathy with those who believe that, before we abolish the hereditary principle, we should have a much clearer idea about where this House is going. That has been signalled by the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams. At the risk of rushing in where angels might fear to tread—but we do that in this profession quite frequently—we could do a lot worse than to set up our own Select Committee to do that work for us, and to explore the many different possibilities for election and appointment.
That brings me to my second point, about principle. What should a second Chamber look like? Among its many ingredients, which must reflect its work as a revising Chamber, with at times a challenging and—to use theological language—prophetic role—must be the principle of what might be called "ordered
participation". Until now, we have lived with the non-separation of powers, so that the legislature, the judiciary and the executive live in some kind of creative tension, as they are in part spread over both Houses. With the removal of the judiciary, however, we shall be left with the legislature and executive in what can only be described as an ever-increasing creative tension.I am frankly not persuaded by the buffalo charge for an immediately reformed Chamber that is fully elected. More work needs to be done to ensure, by whatever methods of election, appointment, or a mix—and we have been hybrid for centuries—that sharp expertise is represented on a range of areas and interests. Although there should appropriately be a political element, I am not alone in lamenting the possibility of an over-politicised upper House.
Whatever the means whereby we arrive at that result, let me draw attention to the kind of animal who sits on these Benches. We are, in practice, elected by a Crown Appointments Commission, whose membership is elected from other bodies. The four from the dioceses who are elected by the Vacancy-in-See Committee have, in practice, a veto over every other member of that commission—but perhaps that should not be repeated outside this Chamber. We are Members of the House of Lords, not Peers. We bring with us a geographical area—I am the only person in your Lordships' House from south-east Hampshire and the Isle of Wight. We rotate and we retire, thus ensuring active experience, as well as bringing here a whole range of conversations with many people in our communities. Leaving aside the question of the Lords Spiritual, such a model has something to commend it among the range of options that might be under consideration.
That brings me to my third point, which relates to perspective. In debates about all our institutions, another convenient and facile polarisation emerges, between so-called traditionalists and so-called modernisers, which seldom does much justice to the complexity of the issue or to the personalities involved. As an historian, my profoundest frustration about reform is that more often than not it comes across as if we at this end of the corridor are a problem that somehow has to be solved. It is as if we were a little like a slightly out-of-hand border terrier that needs to be neutered. As the owner of two seven year-old neutered border terriers, I speak with some experience.
Parliamentary reform should be about the whole of Parliament. As experiments are made with devolution and, more modestly in this place, with appointments commissions and different forms of election that may be tried from time to time—carrying on the hybrid nature that this House has had for many centuries—the national finger will begin to point more and more at the rest of the parliamentary scene. The sooner that that is realised, the better.
As the noble Baroness the Leader of the House warned earlier, participation in modern democracy is a precious flower that cannot be taken for granted, when it is as low as it is now in terms of voting, particularly among the young.
I wish to quote from the most reverend and right honourable Prelate—I am glad that I got that mouthful out—at the time that he was a most reverend Prelate because he was still Archbishop of Wales, but not quite right honourable because he was not yet elected formally as Archbishop of Canterbury. In last year's Dimbleby lecture, Dr Williams spoke about the increasing erosion of the voluntary base. He said:
- "It isn't surprising, then, if the unspoken model of political expectation now is increasingly the consumerist one: the individual confronts the state, asking for what is promised—maximal choice, purchasing power to determine a lifestyle. It isn't surprising if the attitude of many to national and local elections is apathy, with a disturbingly high percentage of younger people failing to vote".
That means looking at the structures that we have—and at all the structures, not just this House. I know that we have to start somewhere. However, unlike the problems in higher education, which will be debated on Thursday and which go back over 20 years, the particular matters under consideration today are, largely, the responsibility of the present Government. I urge them, in the spirit of critical friendship, to think more widely and deeply than they have so far.
4.26 p.m.
Lord Mackay of Clashfern: My Lords, the gracious Speech proposes legislation, as we have heard again today, for the abolition of the current office of the Lord Chancellor, for the setting up of a new supreme court and for a new way in which to appoint judges in England and Wales. That the Prime Minister had decided on those matters was intimated by a press release from No. 10 Downing Street as part of the announcement of a ministerial reshuffle, as a result of which the noble and learned Lord, Lord Irvine of Lairg, left the Government.
I have the impression that there was no prior consultation with the Scottish Executive, nor with the judiciary here in England and Wales, in Scotland or in Northern Ireland, although the Lord Chancellor is the Lord High Chancellor of Great Britain, and the supreme court is proposed as the supreme court for the United Kingdom. As one who felt highly honoured to hold the office of Lord Chancellor from 1987 to 1997, I feel sad that the abolition of that post was announced in such a fashion.
Is the office still important? Those presently serving as Lords of Appeal in Ordinary do not always agree on everything. However, they have agreed in stating:
- "We are, however, very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected. In the past the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced".
My understanding is that the proposed replacement in respect of that matter is to be a statutory obligation on the Secretary of State for Constitutional Affairs to safeguard the independence of the judiciary. What is this statutory obligation to require? What could the Secretary of State for Constitutional Affairs do to subvert the independence of the judiciary if he did not have this statutory obligation? On the other hand, what can he do to safeguard the independence of the judiciary? What specific powers will he have to carry out this particular obligation? I refrain from giving examples of difficulties that he might face, but I am sure that they will come to mind very readily for many of your Lordships.
The doctrine of the independence of the judiciary is not for the benefit of the judiciary. It is the fundamental protection for every citizen that when a citizen goes before a judge, that citizen will receive a judgment that is to the best of the judge's ability,
- "according to the laws and usages of this realm without fear or favour, affection or ill will".
What of the supreme court? We are told that it is to have the same judicial powers as this House presently has, with the added power to hear appeals in devolved issues that by deliberate decision in the Scotland Act were conferred on the Judicial Committee of the Privy Council. The reason for that, as I understand it, was that hitherto there had been no power or jurisdiction in the House of Lords to hear criminal appeals from Scotland. In the nature of things, some of these devolved issues were likely to involve, as indeed it has turned out, matters of criminal law. Therefore, it was appropriate that these appeals should go, as other appeals from Scotland would do, to the Judicial Committee of the Privy Council.
The statement as to the jurisdiction of the House of Lords in relation to Scotland means that criminal appeals to the new supreme court generally will still not be available from Scotland. In what sense is it the supreme court of the United Kingdom if it has no jurisdiction whatever in criminal matters from Scotland, which is still, notwithstanding the devolution settlement, part of the United Kingdom?
Of course, there is already a supreme court in England and Wales—the Court of Appeal, the High Court and the Crown Courts are together the supreme court—and there are supreme courts in Scotland with a distinguished body of solicitors with a long history, based in Edinburgh, known as Solicitors to the Supreme Court. The father of the noble and learned Lord the Lord Chancellor practised alongside those although he was a member of what was thought to be the somewhat more elite body of Writers to Her Majesty's Signet.
At present, the Lord Chancellor is by statute President of the Supreme Court of England and Wales and President of the Chancery Division. In my view that makes it suitable for the Lord Chancellor to provide the administration of the supreme court. Who is now to be the President of the Supreme Court of England and Wales? We are told in one of the consultation papers that the Lord Chancellor is in consultation with the senior judiciary about that. But
surely this is a matter for us all. It is not a private matter between the Lord Chancellor and the senior judiciary; it is a matter in which all of us have an interest. So far as I have been able to see, and I am very subject to correction, there is absolutely nothing about that in any of the consultation papers that the Lord Chancellor has put out, except to say that he is in consultation with the senior judiciary about it.I doubt whether it is appropriate for the administration of the courts, including as it does matters such as listing and other judicial functions, to be under the control of a Secretary of State who is neither a judge nor constrained by a judicial oath.
Another important question which I should like to mention in the minute left to me is that of rights of audience. When I was responsible for these matters the senior judiciary were fully involved in decisions on rights of audience by express provision of the statute. That has since been modified to give the responsibility to the Lord Chancellor only, I think with the consent of the senior judiciary. Is it appropriate that that function should be discharged by a Secretary of State who is neither a judge nor constrained by a judicial oath, important as the rights of audience are to the conduct of the courts?
There are many matters in these proposals that are of great consequence. If the new system proposed by the Government is to work as well as the Government admit the system that they are trying to replace is working, then a great deal needs to be done about the detail. I humbly submit that they are more likely to be successful if that is done with deliberation and caution.
4.34 p.m.
Lord Howe of Aberavon: My Lords, it is a privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, who closes his distinguished speech on precisely the note on which I had planned to open mine. It is a happy coincidence but it is true. The fact is that in the years when this topic has been before Parliament we have seen a recurrent contrast between impulsive, reckless proposals, almost vandalistic in their quality, and periods of collective, calm reflection when the matters are referred either to Parliament, to committees or to Royal Commissions.
If one is looking for an example of impulsive vandalism, nothing could be clearer than the way in which the office of Lord Chancellor has been handled by this Government. The handling of it almost defies belief because it fails to take account of a most fundamental feature of our constitution which in a way is represented by the physical presence here of the noble and learned Lord, Lord Mackay. The looming presence at the end of the Cabinet table of the Lord Chancellor—a manifestly different creature; judicial background, judicial oath, legal training—is formidable and is the most effective guarantee of the independence of the judiciary that I can think of. The noble and learned Lord, Lord Mackay, has quite a looming presence and discharged that duty effectively. He will forgive me if I say that he did not loom anything like as much as Lord Hailsham used to do. That is intended as a compliment to both of them.
That is brought out very clearly in the supplementary memorandum on the future of the appeal committee from the noble and learned Lord, Lord Hobhouse of Woodborough. He says that the Government's thinking confuses the need for the independence of the judiciary with what he calls,
- "a doctrine based on a mistaken analysis of the British constitution developed by French thinkers in the 18th century";
- "The cornerstone of that protection"—
- "is (paradoxically) the role of the Lord Chancellor as head of the judiciary",
This may well be an anomaly. However, as Professor Ash Wheatcroft—professor of tax law, rather remarkably—once said, a tax system breathes through its loopholes. In my judgment, a delicate unwritten constitution such as our own breathes through its anomalies. We at our peril allow reckless modernisers to sweep aside conventions of which they are ignorant or which they do not understand. That is what is so destructive about that approach to the office of Lord Chancellor.
We have seen a similar variation—evolution is too dignified a word—in the Government's approach to the broader question of the future of this House. At the outset, ebullient with their enormous majority, their commitment was to sweep away all our hereditary colleagues at a very early stage—"out with the lot", and no matter what comes thereafter. Gradually that simple proposition has been eroded and diminished by a succession of concerted activity—including the Wakeham commission, the 1999 legislation and above all the embodiment in that Act of the Weatherill agreement, and by the House of Commons Public Administration Committee and the Joint Committee. Much of the controversy has been gradually diminished. Moreover, a great deal of common ground has emerged on almost all of what one might call the second-order questions, and that is rehearsed in the latest documents. So far, so good. Yet now, at the beginning of this Parliament, the Government return to the charge with their impulsive decision once again to break their promise, as has been so clearly pointed out by both the Front Bench speakers, and to proceed with the elimination of the surviving hereditary Peers.
If one examines the consultative document, one sees clearly that at the outset the Government intended to bind themselves to their honourable commitment. They said that the removal of hereditary Peers "remains the Government's policy", but that,
- "For the time being, the Government will concentrate on making the House of Lords work as effectively as possible in fulfilment of its important role".
What about the rest of the agenda and the Appointments Commission? That is something which the Joint Committee has tended to look at with some sympathy. However, having listened to the speech of the noble and gallant Lord, Lord Craig, I can see why there is much more thinking to be done on that, particularly when one looks at the criteria for the size of the House, which has shifted rapidly before our eyes.
However, there is one matter that still needs to be addressed, and that is the question of the composition of this House. That, too, needs to be addressed with less absolutism than is sometimes the case on the part of speakers on all sides of the House. The noble Baroness, Lady Williams, spoke movingly and effectively, as always, about the decline in respect for Parliament. She also spoke about the need for substantial democratic change in this House. I wish that one could be as enthusiastic about that as one would like to be in principle when one hears the same speakers, including the noble Baroness, talk about the decline in turnout at elections and the diminishing respect for elections as a process for choosing people. Elections are no longer the hallmark of legitimacy that they used to be in this or any other society. That is why I hope that the whole approach to the elected or nominated membership of this House will be considered much more carefully.
One cannot brush aside the fact that a very large majority of the Members of this House does not welcome the idea of an elected membership. However much Members of the Commons may have been bullied by the Prime Minister, they failed to agree on any one of the options laid before them. One cannot distil from that an overwhelming enthusiasm for filling this place with elected Members. That matter deserves to be re-examined by all of us and by all parties. I hope that my noble friend Lord Strathclyde will be prepared to recognise that the same goes for the proposals for this House, to which he still adheres, of a senate of 300 people with 60 nominated Members. In all the documents that have so far been prepared it is common ground that the future size of this House should be in the region of 600 to 650. However, my noble friend and one or two other enthusiasts still propose that the House should suddenly be reduced to half its present size with only 60 nominated Members. If he protests at the cull of the surviving 100 hereditary Peers in the present House, how much more should he be inclined to protest at the proposed cull of some 600 Peers and the formation of a senate half the size of the present House with 10 per cent of us left? I cherish the belief that my noble friend's attachment to that idea will diminish as the days, weeks and months go by.
I make a final point by way of concession to my noble friend. I understand the argument that election is perceived to confer legitimacy even in these days, but why do we have to accept this proposition in such large doses? If the proposition is to become effective at all, why cannot there be a rebirth of the modesty with which Macmillan first introduced the idea of life Peers? At first they constituted a mere drip, a handful. Now, as the noble and gallant Lord, Lord Craig, pointed out, there have been, over the years, 1,000 of them, and we are very lucky to have them. Similarly, is there not a case for a much more modest and less vandalistic approach to the democratisation of this House, however worthy it may seem on the face of it? Let not the reshaping of this House follow the pattern of the destructive reshaping of the office of Lord Chancellor.
4.45 p.m.
Lord Morgan: My Lords, as A J P Taylor used to say, it is "a curious twist" that the most controversial aspect of the Address should be a debate on constitutional matters. In the past they were regarded as an elite subject that caused people to leave the House in large numbers. However, they constitute perhaps the most radical change that the Government have introduced. In his presence I pay very great tribute to my noble and learned friend Lord Irvine who was an extraordinary reformer—the greatest reforming Lord Chancellor ever; he was not perhaps so much Thomas Wolsey as Thomas Cromwell in terms of the agent of a revolution in government.
We now have a further move after a lull—the Department for Constitutional Affairs, the Supreme Court, the ending of hereditary Peers. As the first Back-Bench Labour spear carrier to speak, I should like to say that I strongly support them all. I do not take some of the opposition too seriously. It comes from people who have opposed all reforms. With regard to Scotland and Wales, they have ended up, like Gemini in the "Eurovision Song Contest", with nul points.
It is sometimes said that the Government do not have a master plan, and there is much to be said for the criticism that some of it is incoherent. However, I believe that they have master principles, particularly regarding local accountability, the emphasis on rights, a move towards a written constitution and a more positive view of citizenship which I hope will be extended elsewhere, including to the monarchy, which we never discuss on these occasions.
I should like to allude briefly to three areas. No one has mentioned devolution. That constitutes an enormous radical change for which my noble and learned friend Lord Irvine was very much responsible. The Secretaries of State for Scotland and Wales are now largely redundant. They have—particularly in Scotland—a somewhat shadowy role. Welsh devolution needs a substantial overhaul. In the summer the Richard Commission heard powerful theoretical and empirical argument in favour of change. The Welsh devolution settlement is unstable and does not lead to a proper process of legislation. The only answer is primary powers in due course for Wales as for Scotland.
I mention regionalism briefly. It would be highly desirable if such moves as there are towards regional government were attached to the Department for Constitutional Affairs and not to Mr Prescott's department. The matter should be viewed laterally and not vertically.
The Government have introduced perhaps their most radical changes in the area of human rights. They have transformed the relationships between the legislature and the judiciary. It is absolutely right that the total independence of the judiciary should be emphasised in those changes. We are moving rightly towards a more formal separation of powers. We have an entrenched independent judiciary not depending simply on convention or on culture, which I welcome. It seems to me that the creation of an independent Supreme Court is the logical extension of that. Incidentally, we are told that the Law Lords add greatly to our enlightenment and wisdom but there has also been reference to Hitler and to judges being executed in the 17th century. We were not told by whom those references were made but they slightly argue against the proposition.
The culture of human rights is very important and should be observed by the Government. It concerns me that alongside these valuable constitutional changes there are proposals in the asylum Bill that would clearly challenge or undermine the human rights of detainees. The proposed civil contingencies Bill would in key respects challenge or suspend human rights and erode parliamentary and/or legal protection. It is sometimes said that we need something beyond the Emergency Powers Act 1920. I am afraid that I have destroyed a few rain forests writing about that Act. I say to comrades and Peers on these Benches that that was a strike-breaking measure to attack the trade unions and send troops with fixed bayonets to the mining valleys of south Wales. Let us not assume that it was, as it were, a woolly-minded Guardian-reader reform that now has to be extended.
The Department for Constitutional Affairs is a quite admirable innovation. It seems to me that it creates joined-up government. I welcome particularly the creation of the Constitution Directorate. Since the Constitution Unit was wound up in 2001, we have needed something to bring the various agencies together. When the noble and learned Lord, Lord Falconer, addressed the Constitution Committee, I made the point that it should be a proactive department, not simply a technical, nuts-and-bolts department. It should cast its eye boldly over the whole range of constitutional change, and energise and take the whole process forward.
As the noble Baroness, Lady Williams, and others have said, the main problem with the constitution is clearly Parliament. Both Houses of Parliament are the black hole in the Government's programme of constitutional change. The noble Lord, Lord Norton, who is present in a sense, has wisely and correctly written in Parliamentary Affairs about the demise, as he calls it, of parliaments and the parliamentary model. One could argue whether it is demise or decline, but we need to reform the Lords extensively. Of course we should get rid of the hereditary Peers. It is absurd to
have hereditary legislators, any more than hereditary vice-chancellors or hereditary plumbers. There is no logic or reason in it, and I welcome that change.Lords reform should also welcome other principles. What should it reflect? I voted for only one of the eight options; namely, an all-elected House. The Liberal Democrats, admirable in many areas, are timid in wanting a 60 per cent elected House. The Conservatives go for 80 per cent. The only possible policy for a social democrat is an all-elected and democratically elected House, reflecting the people, not patronage and enclosed systems. However, I shall vote with the Government for the reason that Orator Hunt voted for the Reform Act 1832—it is a start. Orator Hunt voted for the rotten Reform Act 1832 because, if it disfranchised only one rotten borough, it would be desirable. If the measure gets rid of the hereditary Peers as a constitutional anomaly, I shall vote for it.
The problem is not only the institutions of Parliament, but the operation of Parliament. Next month, we shall look at the Hutton inquiry. Now is not the time to examine the disgraceful and illegal aspects of our foreign policy that the Hutton inquiry will reveal, but it will most certainly show the evidence and everyone with a computer will be able to read it. We shall see the damage that has been done through the intrusion of the organs of central government into the Civil Service, sectioning off parts of the Civil Service, if not bypassing entire departments.
I hope that the Government will attend to those matters, and I expect confidently that they will, because they have been innovative, dynamic and radical elsewhere. I am very proud to support them on those matters. They need to reform both Houses of Parliament and address the anomaly that, at a time of great decentralisation and devolution, we actually have greater centralisation of the governmental machine. New Labour will not give us socialism in our time, but it may give us democracy in our time, and I hope that it will take that process forward.
4.54 p.m.
Lord Smith of Clifton: My Lords, it is a pleasure to follow my friend, the noble Lord, Lord Morgan, who speaks with his usual measure of intellect and verve.
When they came to power in 1997, the Government energetically set about major structural reform that included devolution in Scotland and Wales, the Human Rights Act, an elected Mayor for London and the first stage of Lords reform, all of which were long overdue and welcome. After that first wave of bold changes, the Government's resolution seemed to flag. Then, last summer, the Government suddenly regained their reforming zeal and announced their intention to create a Supreme Court, a Department for Constitutional Affairs, and the abolition of the residual hereditary Peers.
Between the first and second waves of major reforms, little real consideration was given to constitutional matters at least as pressing as those addressed at the outset of this Government. As a number of noble Lords have touched on, there is the
whole question of reform of the legislature and, in particular, reform of the House of Commons. It needs to be reformed in a major way. Hopes were raised while Mr Robin Cook was Leader of the Commons, but seemingly little can be expected now to improve substantially the power of the Commons to hold the Government accountable.Increasing Back-Bench revolts in the Parliamentary Labour Party may well force change in government policies, but that is no substitute for fundamental reform of the role of the House of Commons. That remains a priority if our democracy is to be adequately modernised. Creating alternative parliamentary careers by offering the prospect of higher salaries to those who chair Select Committees is a minor reform. Similarly, twice-yearly meetings between the Commons' Liaison Committee and the Prime Minister have proved not to be a significant investigatory device.
It is unfortunate that Commons reform, which would help to restore public interest in politics, was not mentioned in the gracious Speech. The neglect of that fundamental reform in the legislative branch of government has been paralleled by a mushrooming development in the executive branch. I refer to the remorseless growth of what I have previously termed the political demi-monde. That comprises the various policy tsars, task forces, regulators, executive agencies, and the outsourcing of services, including the ever-burgeoning number of PFI/PPP schemes. Those central government manifestations of the demi-monde are greatly multiplied at the levels of local and regional government. It is difficult to obtain reliable statistics but, as I have cited in your Lordships' House before, the metropolitan district of Calderdale last April recorded 107 partnerships and programmes stemming from central government.
Two major questions arise out of the development of the demi-monde. Although there is doubtless some rationale behind the creation of every one of those innovations, it is the aggregate of them that is the cause of concern and that, it appears, has never been addressed. The operations of the demi-monde in all its aspects could be wholly conducive to the good ordering of the body politic. The point is that no one can know, either inside or outside government. Its rapid and haphazard development precludes critical scrutiny. It remains outside any constitutional or effective management control. There is no management chart, let alone any formal codification. The situation defies human invigilation, particularly in the localities. I ask the noble and learned Lord the Secretary of State for Constitutional Affairs whether the demi-monde has impinged on the collective consciousness of his newly-created department.
There are signs that the Government are at last starting to appreciate the down side of what they have spawned. Only last week, The Times reported that a review of 31 central health bodies and watchdogs, which have more than doubled since 1997, is to be undertaken with a view to them being "axed, merged
or privatised". They represent but a microcosm of the bureaucratic quagmire that has been replicated throughout the executive arm of UK government.Evidence—still slight, but welcome nevertheless—that a change of mind may be in the offing is to be seen in the growing interest in decentralisation. Whitehall departments have been asked to examine which of their activities could be physically moved away from London, although so far that has not met with a hugely positive response. The Home Secretary is playing with the idea of elected sheriffs to head up constabularies, while foundation hospitals were advanced as giving a larger degree of autonomy to locally elected health trusts.
My own party has further contributed to the theme of greater localism by proposing local income taxes, to replace the highly regressive council tax. I suspect that other parties are closely looking at the feasibility of that proposal, in the light of growing unrest with the council tax. Such an innovation would be of considerable constitutional advantage by helping to revive local democracy.
On the vexed question of Lords reform, on which many noble Lords are focusing today, the situation has deteriorated into a stand-off between the parties and there is no consensus on how to proceed. Opinion has also divided within the Labour Party. That the problem has developed as it has is due mainly to the Government.
The resulting impasse has been served up as an excuse for abolishing the hereditary residue without making any provision for an elected element. I say in response to the noble Lord, Lord Morgan, that we on these Benches would want a 100 per cent elected House.
As other noble Lords have noted, the Government have reneged twice on their manifesto commitments and on their word solemnly given during the so-called "Weatherill amendment" negotiations. Reneging on those undertakings is quite unacceptable and the explanation proffered by the noble Baroness the Lord President was most unconvincing. Reform of the second Chamber has ceased to be treated by the Government as an issue of constitutional importance and relegated to one of political convenience. We shall end up being the biggest quango of them all.
This thinking on the part of the Government is all of a piece with their approach to constitutional reform, which is quite exasperating. Successive Lord Chancellors have openly admitted that they disdain having any overall view on constitutional matters. They seek, most unconvincingly, to say that the Government initiate reform as and when it is perceived to be necessary. The lack of a coherent constitutional road map—to use the current jargon—creates many problems not least for the Government themselves. This is well illustrated by the sudden announcement about creating a Supreme Court and a Department for Constitutional Affairs. Both are commendable reforms. The problem is that they are seen as yet another act of "ad hockery" as they were not presented as part of an overall plan in which various reforms are seen to be related to one another in a coherent and meaningful way.
This gives some advantage to the "forces of conservatism", as the Prime Minister puts it, who oppose the proposals, which include a majority of the Law Lords. Next week, the Secretary of State is due to give a lecture to the Constitution Unit on the Government's philosophy of constitutional reform. It would be good if he were to give us a rehearsal today.
It is to be hoped that by the next Queen's Speech the Department for Constitutional Affairs will be up and running, taking on the need for a more comprehensive view of our constitutional arrangements and living up to its name. Joined-up government pre-supposes a joined-up constitution.
5.2 p.m.
Lord Ackner: My Lords, just before becoming Prime Minister in 1997, Tony Blair said:
- "Labour's goal of improving access to justice is an essential part of our commitment to social justice".
The Asylum and Immigration (Treatment of Claimants, etc.) Bill provides at least four serious examples of restriction on access to justice. First, there is a restriction on the higher courts to exercise by judicial review their normal supervisory jurisdiction over tribunals. What is proposed would be that if a tribunal, in determining an application, made an error of law or failed to give proper consideration to relevant facts, the only redress would be to ask the tribunal to review its own decision. This would be only through written submissions. No matter how erroneous the decision, the applicant would have no means of challenging the tribunal's ruling.
Secondly, changes in the appeal structure by providing for a single tier of appeal will conflict with the interests of justice. The poor quality of the initial decisions means that the hearing carried out before a special adjudicator is often the first proper factual assessment of the case.
Thirdly, undocumented passengers are to be subject to sanctions. This will lead to a breach of Article 31 of the Refugee Convention 1951, acknowledged in domestic law by Section 31 of the Immigration and Asylum Act 1999. The article provides:
- "The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who come directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry".
Fourthly, there is to be limitation on legal aid advice. It is proposed to limit initial advice to three hours for immigration and five hours for asylum work. This has led to widespread criticism. Indeed, the United Nations High Commissioner for Refugees has written to the Lord Chancellor warning him that the proposal will lead to vulnerable refugees being deported unnecessarily.
It is apparent that the Home Secretary dislikes not only judges but also the judicial process. It is becoming more and more obvious that he does not meet the job specification! Thank heavens the judiciary is in no way involved in the highly controversial proposal for identity cards.
On crime, it is proposed in a publication from the Lord Chancellor's department, entitled Delivering Value for Money in the Criminal Defence Service, to downgrade the fees in the "very high-cost cases". That totally overlooks that law firms use the few remaining complex and better-paid cases to cross-subsidise lower-scale work. Driving down fees on complex work would drive out a business of criminal firms already struggling to keep afloat and affect access to criminal justice.
But an accused person is also entitled to a just sentencing system. Your Lordships have been addressed at some length by me and others on the ministerial decree which resulted from the Home Secretary producing Schedule 19 to go into the Criminal Justice Act which added at least 50 per cent to the agreed sentencing guidelines provided the previous year. Those guidelines were the result of consultation between the Court of Appeal, or the Lord Chief Justice, and the sentencing panel. The guidelines subsequently received the concurrence of the Home Secretary and the noble and learned Lords the Lord Chancellor and the Attorney-General. The Government have totally overlooked that, by adding more than 50 per cent to the guidelines relative to murder cases, all other serious offences also have to go up proportionately. The distortion that will result, together with the increase in the prison population, is beyond dispute.
I come next to the question of civil claims. When the Labour Government came into power, there was already in existence speculative litigation, which previous generations had condemned as being contrary to public policy. There existed agreements known as "conditional fee agreements", or CFAs. Those operated on the principle of no win, no pay. Thus, the lawyers' remuneration, which was to be 100 per cent on the ordinary fee, was contingent on the action succeeding. Therefore, the lawyers had a stake in the litigation, with the result that there were bound to be occasions when their interest conflicted with that of their clients—in particular, when a settlement was being negotiated.
The previous government had stated firmly that the new freedom to litigate on that basis was not intended to replace the grant of legal aid. I believe that a provision in the initial legislation provided that check. It was the noble Lord, Lord Mishcon, with his acuity and perception, who sought from the then government such an assurance.
However, when the new Labour Government, by legislation in 2000, decreed that there should no longer be legal aid for personal injury claims, apart from clinical negligence, then problems arose. The personal injury claims were to be funded entirely on the contingent-fee basis. That was, in fact, unnecessary. The high frequency of success, either by litigation or
compromise in this field of work, resulted in the legal aid fund recovering its costs. In addition, the Government were reimbursed with social security payments to the injured plaintiff. That meant that civil legal aid in this field involved the Government in little, if any, payment out. However, since it is an accepted principle of English law that "costs follow the event", it soon became essential for the plaintiff to insure himself against the liability to pay the defendant's costs in the event of his claim failing. That insurance is known as "after the event" insurance.The CFAs brought into play a number of undesirable participants—usually not lawyers—such as Claims Direct. Such participants met well the description of "ambulance chasers". They brought the system into discredit and fuelled the perception of a compensation culture. Such undesirable organisations are not regulated and they cream off profits at the expense of claimants. A number of claims with little merit were initiated in the hope of obtaining from the defendants' insurers at least their nuisance value. However, having failed in their purpose, they left the "after event" insurers holding a sizeable baby. As a result, a number of insurers, including the major player MIG Skandia, have withdrawn from this market and it is becoming very difficult, if not impossible, to obtain after-event insurance or insurance where the premium is not excessive. In the result, there is, in practice, no access to justice in personal injury cases.
I come lastly to the rapidly diminishing ability to obtain advice. One organisation which is likely to feel the immediate impact of the public's inability to obtain basic legal advice, formerly provided under the legal aid system by solicitors, is the National Association of Citizens Advice Bureaux. When it offers criticism, that cannot be met by the rejoinder that it is arguing from a standpoint of self-interest, as is often said of the Bar or the Law Society.
In a press release in September headed:
- "Community Legal Service is unfair, unjust and inexcusable in the way it is operated",
I shall not develop this theme further as I could do because of the time restrictions which impliedly impose themselves on me. I end merely in this way. In the glossy Command Paper of July 2002 entitled Justice for All, the foreword bears the signatures of the then noble and learned Lord the Lord Chancellor, Lord Irvine of Lairg, the Home Secretary and the noble and learned Lord the Attorney-General. It states:
- "we are determined to ensure that justice is done and is seen to be done".
5.17 p.m.
Lord Gordon of Strathblane: My Lords, I shall confine my remarks to the single issue of an appeal to both Front Benches and the usual channels to make further efforts to reach consensus on the matter of House of Lords reform. If, after all, we could, and did, achieve consensus on the far more difficult issue of the first stage of reform, it should not be beyond the wit of the Members of this House to find a solution that is fair and equitable to the problems of the 92 existing hereditary Peers as part of the second stage of reform.
For that reason, with the greatest respect, I deplore the apparent intention of the noble Lord, Lord Strathclyde, to divide the House tonight, somewhat unusually, half way through a debate. After all, as I understand it, this is only the third day of our debate on the gracious Speech. I believe that it would be unnecessarily confrontational and could well be counter-productive.
I believe that a pragmatic solution needs to be found. This is not a matter of principle. There is consensus that the hereditary principle is no longer valid as the basis for membership of the legislature. That is common ground. No political party wishes to introduce it, so let us not pretend that it will survive for very long.
We also agree—in this House, at least—that we want an all-appointed House. I fully respect the opinions of the Liberal Democrats and, in particular, those expressed in the opening speech of the noble Baroness, Lady Williams of Crosby. However, it is also a fundamental principle of democracy that one accepts the will of the majority. The overwhelming majority in this House, by more than three to one, are in favour of an appointed House. That may be a matter of regret to some people. I know that it is a matter of regret to some on these Benches and certainly to the Liberal Democrats, but let us recognise that that is the will of this House.
This House, at least, should be rejoicing in what the Government have put forward because they have favoured our option. They will have far more difficulty at the other end of the building because the House of Commons took a different view. I freely concede that the House of Commons rejected the idea of an all-appointed House. But the Government should be commended rather than ridiculed in this House for their bravery in putting forward that proposal. It may be quite difficult for the proposal to be approved by the House of Commons, but it should not be difficult for it to be approved by this House.
We should also recognise that we have an appointments commission. People are beginning to take that in their stride, forgetting that it is the biggest single act of abdication of patronage by any Prime Minister in history. The Prime Minister is willingly forgoing his right to appoint Peers and to decide the number of Peers. That has been handed over to the appointments commission. He deserves at least some credit for that, but so far in the debate I do not believe that that has been adequately recognised.
I shall now make some points that are mildly critical of the Government. I believe that the Government have been over-apologetic in their approach. They have stressed the obvious difficulties of finding an agreed way forward. I regard this as a genuine second-stage reform, as do the majority of Peers in this House. We voted overwhelmingly, by three to one, for an appointed House and the Government are giving us that, saying that that is the second stage of reform, and yet we are saying, "Oh, no, we don't like it".
Let us be quite clear. I am very nervous that somehow the status quo will survive; a combination of Back-Bench disquiet in the Labour Party and doing something dramatic with the House of Lords as a lightning conductor. There are the principled, but I believe misguided, objections of the Liberal Democrats in both Houses to any form of appointed House and the unprincipled, opportunistic moves by the Conservative Party, which is in favour of elections but only as a means of retaining hereditary Peers—that is somewhat illogical.
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