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There is no doubt that if we become an elected House this will have profound implications for the powers that we exercise, even if one assumes that the powers that we have now will remain. That point was made very well by the Joint Committee on Conventions at paragraph 61, which states:
“Our conclusions apply only to present circumstances. If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question, codified or not”.
My noble friend Lord Saatchi referred to the Parliament Act 1911. My advice to my noble friend on the question of implied repeal was somewhat more nuanced than my noble friend suggested, although I yield to no one in my respect for his fertile imagination. But perhaps it is worth just looking—at the risk of imposing a degree of tedium on your Lordships—at the preamble to the Parliament Act 1911, which states:
“Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:
And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords’.
The legislative intention at that time is clear. First, it had—because it could not at that time create a popular House—to do something about the political situation it faced. Hence, the Parliament Act, which was an Act of expediency. It is absolutely clear from this preamble that if and when your Lordships’ House became a democratically elected House, the relationship between the two Houses would have to be
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My noble friend Lord St John of Fawsley quoted Bagehot, a writer with whom he owned up to having at least a passing acquaintanceship. My noble friend said that Bagehot recommended that constitutional change should be conducted carefully, slowly and by agreement. How I wish, as the noble Baroness, Lady Deech, said, that the Government had heeded that advice on previous occasions; a failure no better illustrated than with respect to House of Lords reform. To adopt an apt image conjured up by the noble and learned Lord, Lord Irvine of Lairg, the Government have embarked on a long and hazard-infested voyage, but have neglected to take with them the appropriate navigational equipment.
We understand from the noble and learned Lord the Lord Chancellor that, before any move is made towards reform of the system of selection for your Lordships’ House, there must be consensus. By that I understand that it is to be consensus not only between the political parties, but also between the Houses. The noble and learned Lord has proposed, and my noble friend Lord Strathclyde has welcomed, that the cross-party talks that have been taking place over the past few months be reconvened in the light of the debates in both Houses in order to consider what moves ought to be made next. The noble Baroness, Lady Symons, and my noble friend Lord Higgins both, rightly, pointed out that there was a degree of controversy in both Houses about the appropriate route to take and that therefore either the views of a selection of Back-Benchers should be represented at these cross-party talks or committees of both Houses should be established to advance discussions because, since we are on a free vote, clearly what each individual Peer believes is crucial to the achievement of consensus.
I want to ask the noble and learned Lord, when he replies, if he would kindly address this matter. I am not at all clear how he sees these cross-party talks developing. Quite apart from the question of the membership of this forum, what result does the noble and learned Lord expect to emerge? Does he expect, for example, to produce a new White Paper in the light of these discussions and in the light of the deliberations of the cross-party committee? I think that the noble and learned Lord has got the point and I am most grateful.
The noble Lord, Lord Williamson, rightly emphasised that the vote which took place in the other place was an indicative vote. He went on to say that we cannot predict what view Members of another place will take about the whole question of election until they are presented with a specific proposal. He said that answers to detailed questions were an essential precondition of any discussions about the merits of an elected House.
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The details are extremely challenging for your Lordships’ House and another place. Many of your Lordships spoke in much detail and with much wisdom about systems of election. In the time that I have, I cannot possibly reflect all the sophistication of the lines of argument; so I shall select a few points which I think are most germane to the question of an elected House.
It is widely accepted that any electoral system that produces a low turnout will be wholly counterproductive. That point was made particularly well by the noble Baroness, Lady Symons, but by others too. Here is a real difficulty: an election to your Lordships' House is not like an election to another place. We are not going to present the electorate with a mandate for power. When there is a general election, the parties compete, there is a competition of mandates and everybody understands that if the party they vote for wins, that mandate will be at the heart of government. In your Lordships' House, we will be asking people to vote for a House which has the power to delay legislation for one year at the most. That is not a very inspiring message to deliver to the electorate.
We have some practical experience of this, as it is one of the problems that the European Parliament has had. It does not have a mandate; the political mandate in the Community is developed by the Commission under the control of the Council of Ministers. The European Parliament is simply there to democratise the process to the extent that it can. That is also not a very inspiring message to take to the electorate. If we are to have an electoral system, it has to inspire.
I think that all your Lordships will also agree that the electoral system we choose must not be a clone of the electoral system in another place. If we simply reproduce what is in another place, we will provide no control over the Executive.
A more controversial question was whether the elected Members should also be accountable to the electorate. My noble friend Lady Shephard made this point particularly powerfully in attacking the notion that elections should be for one term of 15 years only. She is absolutely right that that system does not produce accountability. I think I am right in saying that the idea of the 15-year single mandate came from a committee chaired by my noble and learned friend Lord Mackay of Clashfern. Its purpose was to engage the public in selection to the Lords without undermining the independence of the elected Peer. My noble friend Lord Wakeham put it very well when he described it as a system of appointment but by the people, not by the Appointments Commission. In a characteristically deft aphorism, the noble Viscount, Lord Bledisloe, said that that meant that as a Member, one had nothing to hope and nothing to fear. Although I accept that accountability is absent, this system, in my submission, gets closest to providing the kind of independence that your Lordships enjoy at the moment.
The controversies about the method of election will be endless. I shall not enter into them except to say that I was glad to hear the list system widely deplored. It is a disastrous system. Whatever other
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We had a very interesting discussion about transitional arrangements, in which my noble friend Lord Ferrers played a prominent part. A number of your Lordships mentioned various dilemmas about cash for peerages, but my noble friend concentrated on the cost of dismissing Peers rather than appointing them. The costs by his calculations were colossal. One might summarise his observations as the cost of “disappeers”.
Lord Kingsland: My Lords, I apologise for that; it is getting late.
My final observation is about a hybrid House. I share what I think is the view of the vast majority of your Lordships, that distinguishing between elected and appointed political peers will not work; but I am more optimistic about distinguishing between political Peers and Cross-Benchers. I would be very reluctant to see the Cross-Bench element in your Lordships' House go. I was particularly struck today by yet another remarkable speech by the most reverend Primate the Archbishop of York, who seems to be making a remarkable contribution to the role of the church in public life. He quite rightly reminded us that the principle of equality in our constitution is derived from Christianity and that the church had a vital role, therefore, in ensuring that democracy and freedom were upheld in our society. I would be most reluctant to support any arrangement which involved the departure of the Bishops from your Lordships' House.
What is the problem that these proposals are trying to solve? It is not a problem of legitimacy, because it is quite clear, given the existing powers, that your Lordships' House is a legitimate House. As my noble friend Lord Lawson said, elections are not a pre-condition for legitimacy. Many examples that he gave established that principle firmly. The Government provide in their White Paper a 50:50 solution which is expressly predicated on the principle that elected and appointed Peers have equal legitimacy; so the Government themselves accept that appointed Peers are legitimate, at least in the text of the White Paper. None of my noble friends and other noble Lords who had been in another place could produce any evidence that a single constituent had ever written to them complaining about the legitimacy of your Lordships' House. Your Lordships' House is legitimate because it is respected; and it is respected because of the quality of its work. That is the basis of our legitimacy.
The issue that we face tonight is complicated, or perhaps informed, by one matter that forms the basis of the speech given by my noble friend Lord Waddington. I am coming to the conclusion of my remarks. As your Lordships know, as long as the majority political party can control its Members in another place through the Whips, the Executive can
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The problem is that another place has two functions. First, it has to keep the Government in power and, secondly, it has to keep the Government under control. These two objectives are incompatible. The fact of the matter is that, almost invariably—indeed, I believe invariably—the desire to keep the Government in power always trumps the responsibility to keep the Government under control.
This is a problem that goes way beyond patronage—because at the heart of our constitution is the integration of the Executive and another place. I find it very difficult to see my way around that problem. My noble and learned friend Lord Howe said that it was the responsibility of another place to control the Executive. If my analysis of the constitution is correct, however, another place is plainly incapable of keeping the Executive under control. Of course, it can create Select Committees and do all sorts of things, but that will be nibbling at the edges of Executive control.
The consequences are quite dangerous for our constitution, as many of your Lordships have experienced who have taken an interest in recent anti-terrorist and criminal justice legislation. The control of the Executive is increasingly the responsibility of the courts; and, as a result, the judges are being drawn, whether they like it or not, into politics. Therefore, we must find some way in which to take the obligations off the shoulders of the judges—another, political, way in which to control the Executive.
That is where the future role of your Lordships' House may well lie; and that is the argument for election. However, I have absolutely no idea whether this matter is of any concern to the Government. We need to know what the Government’s constitutional objectives are before we start what will be a very steep climb to achieve a form of election that is appropriate.
Lord Tyler: My Lords, before the noble Lord sits down, will he give the House a clear indication of how he proposes to vote tomorrow and whether he proposes to vote for his party’s policy?
Lord Kingsland: My Lords, I shall vote with the noble Lord, Lord Strathclyde.
Lord Barnett: My Lords, the noble Lord makes very great speeches with which I often agree, but I find it very hard to discern what he is recommending to his own Members, let alone to the rest of us. Do I understand him to say that the Government have the cart before the horse? In that case I would very much agree with him, in the sense that they should get the objectives of a new House first before deciding on the composition. If that is what he is saying—and I appreciate that he is trying very hard not to disagree with the noble Lord, Lord Strathclyde—I would be interested to hear.
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Lord Kingsland: My Lords, I do not accept that I am disagreeing with the noble Lord, Lord Strathclyde; but the noble Lord’s analysis is correct. I think that the Government do have the cart before the horse, and they need to reverse the order.
9.44 pm
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I said in my opening remarks that this would prove to be an historic debate, and so it has proved. We have heard about 130 speakers over nearly 19 hours. I think that I am the only person who has heard all 130 speakers—with the exception of my noble friend Lord Brooke, for which I apologise.
The contributions from noble Lords on all sides of the House have been thoughtful, considered and in keeping with the importance of this issue both for Parliament and the country as a whole. As the noble Lord, Lord St John of Fawsley, said yesterday, if anyone had doubts about the value of this House, they would have been allayed by listening to this debate.
I am grateful to the House for the manner in which the debate has been conducted. It has been, and will be seen as, a testament to the best qualities of this House; qualities on which any reform package would seek to build. We will remember this debate, for example, for the return and speech of my noble and learned friend Lord Irvine, the speech of my noble friend Lord Richard, the speech of the noble Baroness, Lady Boothroyd, and the speech of my noble friend Lady Symons.
In a debate with so many interesting and well informed speakers, it would be impossible to list them all or to respond to all the points raised, but noble Lords should be reassured that we have listened to all sides of the debate and will reflect carefully on what has been said here over the past two days. There have been considerable disagreements, but also an encouraging amount of agreement between the speakers on many of the key issues surrounding this difficult matter. There was, most notably, broad agreement for a statutory Appointments Commission, which almost all those in favour of either an all-appointed or hybrid House supported. There was also broad, if not unanimous, agreement that the work that this House does currently is good and adds value to the legislative process.
My noble friend Lord Elder and the noble Lord, Lord Wedderburn of Charlton, were rare voices in calling for a unicameral Parliament. There was general, although not universal, recognition that the remaining retained places for hereditary Peers should cease, many arguing for it to be done by stopping the system of by-elections. The noble Duke, the Duke of Montrose, the noble Lady, Lady Saltoun of Abernethy, the noble Earl, Lord Ferrers, the noble Lord, Lord Palmer, and the noble Viscount, Lord Trenchard, were notable exceptions to this aspect of the consensus. The noble Lord, Lord Trefgarne, reminded us that we agreed to the keeping of the hereditaries until stage 2 was in place. We agreed that in the White Paper and stand by it.
There was also agreement that the reforms of 1999 have made this House more effective. When I hear,
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Our debate over the past two days has seen a large number of different points. Perhaps I can best respond by trying to group them into a number of important areas. First, many noble Lords discussed the effect on the debate of the votes in the House of Commons for an 80 and 100 per cent elected House. The noble Lord, Lord McNally, described it as “the thunder of reform”. The noble Lord, Lord Wallace of Saltaire, said, “the game has changed”. The noble Viscount, Lord Bledisloe, suggested a vote here for 50:50 might be a signal to the other place that there could be common ground between the two Houses. The noble Lord, Lord Roper, said that the vote might have made the White Paper a little less white. The noble Lord, Lord Hoyle, said that we cannot ignore it.
The noble Lord, Lord Trimble, said that the vote in the Commons did not decide anything. He is correct. No decision has yet been made on the composition of this House, not least because this House has not yet had its say. The votes in the Commons should affect neither our views being expressed nor how we vote. The effect of the Commons votes, however, means that after we have debated the issue we must decide whether there is enough common ground to seek, in discussion, a way forward. We must also consider how we can do that, and remember that the process must involve mutual respect for both Houses’ views.
Much of the debate over the past two days considered the role of this House. Again, there was broad, if not universal, agreement, that this House should be a revising Chamber, helping the Commons to hold the Executive to account, and asking the Executive to think again on some issues from time to time. Much praise was rightly given to the excellent report of the Joint Committee chaired by my noble friend Lord Cunningham. Many, like my noble friend Lord Tomlinson, felt that the Joint Committee’s report sets the current benchmark for how the powers of the current House should be exercised in relation to the Commons. The noble and learned Lord, Lord Howe, said that the current House performs its vital role “impeccably”. The noble Lord, Lord Brooke of Alverthorpe—I apologise again to him for not being in the Chamber when he made his remarks—said that the Lords have both power and influence.
This House does a good job, one that has been praised here and in the other place. I thought at the beginning of this debate, and I still do, that the current role of this House is the right one, and that the current conventions underpinning the relationship between the two Houses are the right ones. I sensed broad support for that approach across the House. If we can agree on that, and I believe that this debate has shown that there is broad consensus here, it cannot be beyond our abilities to conceive of a system, if reform takes place, where the current relationship between the two Houses is broadly maintained and the current
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There were some telling interventions by the noble Lord, Lord Fowler, and the noble and learned Lord, Lord Howe. The noble and learned Lord told us that when he was the Leader of the other place he treated his opposite number in this House with, in his own words, “the utmost condescension”. I wondered whether things had changed at all with his relationship with the current Leader of the Conservative Party.
That brings me on to my third point about the effect of the changes in composition on the relationship between the two Houses. It has been suggested by many speakers, probably the majority, that introducing an elected element would automatically lead to this House seeking more power, gaining more power or exercising its current powers more assertively. The noble Lords, Lord Waddington, Lord Armstrong of Ilminster, Lord Trefgarne, Lord Watson of Richmond and Lord Fowler, the noble Earl, Lord Ferrers, and my noble friend Lord Lea of Crondall all made that point. The noble Lord, Lord Strathclyde, said that an elected senate would use its powers more, which he thought would be a good thing, enabling the House to make a more effective contribution to the work of Parliament. The noble Lord, Lord Williamson, speaking from the Cross Benches, thought that “power would accrue” to a reformed House.
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