Select Committee on Public Administration Minutes of Evidence

Examination of Witness (Questions 387 - 399)




  387. Lord Chancellor, we are delighted to have you amongst us.

  (Lord Irvine of Lairg) Good afternoon, I am happy to be here.

  388. We wonder if you would like to say a few words to us by way of introduction.
  (Lord Irvine of Lairg) Yes, let me say a few things. First of all, this is now a time for reflection. The White Paper was not a policy for which I could claim sole ownership. It was settled by a strong Cabinet Committee which I chaired and the terms of the White Paper were agreed by all its members, who included John Prescott, Robin Cook, Gareth Williams, Jack Straw, David Blunkett, Hilary Armstrong, Dennis Carter, Charles Clarke, Gus Macdonald and Charlie Falconer. First of all, you find me in a reflective mood because there have been two impressive debates, one in each House, and the debate in the Lords occupied two days. Responses to the consultation process continue to come in. It does not end until the 31st. As much as you might wish me to be prescriptive, I just do not feel able to be. I am sure that we can have a very productive discussion but really nothing I can say should be taken as any kind of concluded view in the current context. What we are doing is listening and reflecting. The best way I think I can assist in opening discussion is this: I would like to identify the interests that have to be protected in any reform proposal that is carried into effect: first, broadly, to preserve the existing powers and functions of the House of Lords, in the sense that the House adds real value in scrutinising and does not challenge the House of Commons as the pre-eminent Chamber; and secondly, to ensure that composition post reform does not prejudice the value of the House of Lords, as presently composed, and to prevent any politically elected element becoming so large as to threaten the continuation of either of these two interests that I have just listed. If you do not prevent that, it could challenge either of these two interests by encouraging a challenge to the current pre-eminence of the House of Commons or, as a separate point, significantly diminishing the flow into the House of Lords, as presently composed, of men and women of great expertise across a broad range of national life, the professions, business, the arts, the voluntary sector, the military, the faith communities, as well as highly experienced, former Members of the House of Commons or local authorities who make up a kind of aldermanic bench in the House of Lords. To go much above a particular percentage elected—and 20 per cent is where the White Paper arrived at—and to maintain that to go above it significantly will not over time alter the balance of power between both Houses, I would suggest is simply to be in denial. It is as if the proportion of elected is a self contained issue, a kind of bidding process where what is euphemistically called a "centre of gravity" is looked for, without the need at the same time to have any regard to the impact of the composition of the Lords on the balance or the dynamics of the relationship between both Houses, and that I think is the most important thought to have in mind. I make this comment in passing. How right we were, I would say, in the last Parliament on stage one. We were told there should be no stage one without stage two. Well, if we had waited for a consensus for a whole package we might have waited for a very long time and certainly all the hereditaries would still be there. Another way of looking at the same question, I think, is when people say it should be substantially elected, I would say why should conventions which built up because the House was unelected not be swept away? And might it not be claimed that a substantially elected House of Lords had even a superior legitimacy if it were elected by PR, that is to say those who claim a superior legitimacy for PR over first past the post. Another argument that was there, this time an argument in a different direction for the status quo, would say that the House is more independent if it is not elected and Members sit for life. There is an astonishing range of argument around. Last, and I think by no means least, we have to proceed in relation to composition in a way that does not prejudice the rights of the existing life Peers who entered Parliament and altered the course of their lives on the basis that they had a seat and a voice in Parliament for life. Finally, underlyng all this may be an issue which nobody usually cares to raise; why have a bi-cameral system at all? The answer today is very easy, whether you agree with it or not is another matter, but the answer today is very easy; the House of Lords adds distinctive value without challenging the pre-eminence of the Commons. The Lords provides what is generally regarded as a high-quality, revising and scrutinising of legislation function, in Committee, on the floor of the whole House and, unlike the Commons, not subject to any guillotine, but the more the Lords becomes elected and the greater the claims for its greater democratic legitimacy, as a result, so the question must be posed why have two elected Houses rather than one, the Commons, in which the Commons would have to make, of course, its own powers of provision of scrutiny more effective? So these seem to me to be all the distinct interests that have to be had regard to at the same time and you cannot just focus on any as if it were self-contained.

  389. Thank you very much for that. If I could open up a few of these areas and then colleagues will want to come in. I was going to ask you whether you were the architect or the salesman for these proposals. I think in a way you have answered that by saying that this is a straight Cabinet decision by a Committee you chaired, with the full informate of Cabinet behind it, and you are a believer in these proposals?
  (Lord Irvine of Lairg) Yes, as I said already, it was a product of a Cabinet Committee that sat in many, many meetings. We discussed it fully. The White Paper was, in the judgment of all members of the Committee, the best proposal that we could put forward for today.

  390. We just have to try and establish where we are at in order to see where we might go. When Lord Lipsey came to see us last week he was someone who loyally defended the White Paper's proposals when they appeared and he came to tell us, in his words, that they were now "a dead duck with its feet in the air" and that we had to think now beyond them. Is that not a shrewd analysis and a fairly obvious analysis of where we are at?
  (Lord Irvine of Lairg) I would say it is not obvious and it is wrong. The White Paper is not a dead duck. What is really awfully significant in this area is that there are as many opinions as people, therefore, if you are looking for a significant number of people who in turn say "this is a work of collective genius; we will sign up to it", it is not that kind of issue, I am afraid. It is an issue in which every politician has an opinion and it really is quite remarkable. If you were even to put it in this way and say to me that we cannot say yet there is a consensus round the White Paper, I would say that is probably right, but there is not a consensus around anything else either and the White Paper is still very much in contention. The proposals in the White Paper were put forward by people who knew that they were proposing a compromise and what I would say to you is we will have to wait and see how they fare in the end. Of course, I accept that this particular compromise package is in the course of being road-tested, but I make no apology for that whatsoever. We collectively agreed to put it forward as a compromise. We also well recognised, as I am sure everyone in this room does, that we are in an area of potential reform which defied the abilities of the whole of the last century to accomplish anything at all. I would remind you that we are not even yet at the end of the consultation period.

  391. It is not so much the details that will detain us now, it is whether we get a clear sense of where the positions of principle are that we could work out details around.
  (Lord Irvine of Lairg) And that is why I drew attention to these interests which I think have to be had regard to and have to be had regard to as a whole.

  392. As you gave us your analysis I was struck by the way that it was at odds with much of the other evidence that we have been given on this ground. You were very emphatic about the central issue here being the need to do nothing to disturb the balance between a pre-eminent House of Commons, and a House of Lords. And yet we have heard compelling evidence that the real issue here is the relationship between Parliament and the Executive. Is it not the case that if you start from that position you think about this entirely differently? If you were obsessed, as I might say the White Paper seems to be obsessed, with only thinking about the pre-eminence of the House of Commons, which of course in reality falls prey to the pre-eminence of the Executive routinely rather than to Parliament in relation to the Executive as a whole?
  (Lord Irvine of Lairg) I think that is another central point and if I had been taking longer than I thought was appropriate in defining the relevant interests to be observed, I would have engaged with that argument, too, but you bring me to it now, which is good. I think, truly, that there is a misconception about here so let me try to say why I say that. It is frequently said that the Executive is over-powerful in relation to the legislature. I put to one side the argument whether that is so or not because I think it is a misconception that this is an excess, if it exists, which can be corrected by House of Lords reform or, at any rate, by any House of Lords reform that would impair the stability of relations between both Houses. I think at root here there is a confusion between problem and remedy, the problem being that the Executive is too powerful at the expense of the legislature. In fact, the check and balance that the Lords does provide over the Commons is an important restraint on the Executive having its way. My own view is that that should remain where it is. It would be wrong, I think, to give greater power to the Lords than at present exists so as to cause the Commons to think again, subject to the Parliament Act, in order to operate as a greater restraint on the Executive because I think that this would simply destabilise Parliament. If the Executive has too great a power over Parliament, in my view, it ought to be addressed as a separate issue, but not one that (however interesting) is part of this specific debate. Of course, it could be argued, for example, that the Executive's power over Parliament in this country is, say, substantially attributable to the fact that—and I know there will be some denials—most Members of Parliament would like to be members of the Executive, that is to say Ministers, whereas in the United States of America the Executive is externally appointed by the President and the President has to fight for his programme through Senate and Congress. My own view is that we muddle up the debate on House of Lords reform by getting into these issues which I do not regard as issues for this debate. Some people would go even further than you, Chairman, and say you have got to sort out such issues, and the issue of a written constitution and every other kind of constitutional issue you can jolly well think of before you can reform the House of Lords and that, in fact, was what we were told in many of the part one reform debates in the Lords. In the real world I think that is an exercise in nihilism that goes nowhere.

  393. The reason I say this—and I realise it is more exciting than talking about swapping percentages and so on- is I do think this does go to the heart of the matter.
  (Lord Irvine of Lairg) I do not think it is less exciting; I think it is more interesting, but I still think that it is for a different debate.

  394. There are two of us who find it exciting but we do not come to the same conclusions and unless we see where we are differing we shall not get any further. The argument I am putting to you—and we have heard it from many authoritative voices—is that we need a more legitimate second Chamber to act as a more effective check on an Executive which in this country is too powerful. That is the analysis of the problem and that is the analysis of the solution. I want to be clear, that is something that you are rejecting, is it not?
  (Lord Irvine of Lairg) What I am actually saying is that that expression that you have used contains a number of words which require further definition. A "more" legitimate second chamber supposes that the more elected, the more legitimate. I would say in answer to that implicit assumption that it depends what the powers and the functions of the House of Lords are.

  395. Can I interrupt you just for a second because this is really so important.
  (Lord Irvine of Lairg) That is why I am trying to make it clear.

  396. The reason why it matters so much is that at the moment the Whips in the House of Commons—and I am sorry you have not been in the House of Commons—
  (Lord Irvine of Lairg)—So am I! I was doing other things.

  397. It was a severe loss, I think, and I have to tell you about it. At the moment the Whips in the House of Commons can tell their troops to roll their tanks over the Lords and their amendments because they are not elected, they have no legitimacy at all, so unless we address that issue we are not going to get to the heart of this argument, are we?
  (Lord Irvine of Lairg) I think we are at the heart of argument but I do not have to agree with you in order to say that we are at the heart of the argument. It seems to me that the House of Lords with its present powers and functions delivers an enormous amount of value and passes thousands of amendments over every conceivable Bill every year which are accepted by the House of Commons. Admittedly many of these are Government amendments but, leaving that aside, nobody who has analysed the course of any Bill at all of a contentious kind would doubt that the House of Lords has added enormous value within the context of its present powers and functions. I was at a charitable reception the other night that Shelter was giving where the Director of Shelter was singing the praises of the House of Lords in Committee on the Homelessness Bill which will pass through the House this evening. On the Counter Terrorism Bill, I think many Members of the House of Commons would be first to agree that the House of Lords did a splendid job. When you talk about the House of Commons feeling able to ride roughshod over the House of Lords because it is unelected, I do not believe that that reflects the reality. It is only twice in recent times that the Parliament Act has been used.

  398. When I tried to explain to the Whips in my Party why I wanted to agree with the Lords on their amendment to the Terrorism Bill I was told I should not because the Lords were not elected. Is that not the argument about legitimacy?
  (Lord Irvine of Lairg) That may be an argument about using the word "legitimacy" which is advanced but the Whips do not always advance good arguments in order to knock people into line.

  399. It is the knocking into line I am interested in.
  (Lord Irvine of Lairg) You could, if you chose, have voted as you wished.

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