Select Committee on Public Administration Appendices to the Minutes of Evidence

The New Second Chamber Note from the Rt Hon the Lord Howe of Aberavon, CH QC

  1.  "For anyone afraid", says Edmund Dell "that ignorance renders him ineligible for responsibility, politics is not the right profession". (The Chancellors, Harper Collins (1997) page 259.) That is my excuse for venturing as a non-expert into this field, Four keys texts to which I make some reference are:

    —  the "informal study" by the Earl of Carnarvon and others ("CAR");

    —  Modernising Parliament, (Cm 4183 ("JAY");

    —  the Royal Commission's Consultation Paper ("WAK"); and

    —  report of Lord Mackay of Clashfern's Commission ("MAC").


  2.  The Second Chamber is an essential feature of Parliament. It needs to be acceptable as well as effective. Stage One (removal of the hereditaries) is justified by its protagonists overwhelmingly on the grounds of acceptability: in principle and because the present system sustains one-party "dominance".

  3.  Stage One (even if "Weatherill" is accepted) will have a major practical impact: a large reduction in numbers—and thus in the range and diversity of potentially available experience, expertise and independence. The method whereby and, more important, the extent to which these qualities are replaced will have a similarly far-reaching effect.

  4.  Given that our constitution—even more than most others—"is an organism rather than a machine" (CAR: paragraph 12[7]), it is of the utmost importance to assess and provide for (or against) the impact, upon a presently effective system, of this major surgical shock. A heart transplant is hazardous enough. Cardiectomy (for that is almost the effect of Stage One[8]) is much more dangerous—not least for a "mature" patient. Hyper-intensive care and far-sighted planning is urgently essential, if the acknowledged effectiveness of the existing system is not to be reduced, perhaps very seriously. Even in the cause of acceptability, the Second Chamber can ill afford any significant loss of effectiveness.

  5.  To that end, I suggest some questions that call, in some cases, for research-based consideration—and offer answers to some of them.


  6.  It is important to understand how narrowly based (though not unimportant) is the case for reform (summarised in paragraph 2 above). The case for the prosecution is summarised on one sentence (JAY, Chapter 1, page 3):

    "The present House of Lords suffers from a lack of legitimacy because of its anachronistic and unrepresentative composition".

  7.  But when one searches the rest of the indictment for any amplification of this case, one looks in vain. Thus, in JAY (Chapter 2, pages 6 and 11, paragraphs 9 and 26) it is suggested that "the work", "the functions" and "the contribution" of the House could be improved and "the problems" addressed—but only, on closer examination, by tackling the single question: "the lack of legitimacy", and "the anachronism of composition".

  8.  The development of this case, in JAY, Chapter 5, ("Why Reform is Necessary", page 27, paragraphs 3 and 4) goes no further in substance than the same headlines: "an anachronism", and "unrepresentative".

  9.  Apart from this central point, one might have expected some allegations—at least from outsiders, since none appear in the case formally presented—that the House does its present work less than well. But not so. All the suggestions for improvement (featured in abundance in WAK) do not involve doing things better—but doing more things well: surveillance of human rights or constitutional questions, scrutinising treaties or public appointments, questioning Commons ministers—even becoming "more family friendly". I have myself supported (and still do) some of these proposals; but one should at least question their urgency, at a time when the workforce, still—despite devolution—facing a heavy workload, is about to be sharply reduced.

  10.  Even in respect of relations with the House of Commons, significant complaint (except about the unrepresentative and unbalanced composition of today's Upper House) is scarcely suggested and certainly not sustained. On the contrary (see JAY, Chapter 8, page 48, paragraph 29) "extreme care would be necessary", indeed "of particular importance", to ensure that the present balance is not disturbed by the process of reform.


  11.  By contrast with the case against, the positive case in favour of present arrangements emerges very clearly from the texts. Two essential features, established by the "important reforms" made in the legislation of 1911, 1949 and 1958, are identified in JAY (Chapter 2, page 7, paragraph 11):

    —  the introduction of "able and talented people from differing backgrounds and with different skills" (1958); and

    —  ensuring that (except in respect of extending the life of Parliament) "the will of the House of Commons over primary legislation should always prevail" (1911 and 1949).

  The significance of these reforms is well recognised—and they are mildly criticised, only because they "did not wholly address the fundamental problems" (my italics): legitimacy and method of selection (which takes us back to where we came in: paragraphs 6 to 8 above).

  12.  The substantial value in constitutional practice of these arrangements is well expanded in MAC (Chapter 2, page 11, paragraphs 10 and 11 and Chapter 3, page 17, paragraph 18). The "essential reality" is that it is not the Government but "the House of Commons alone which disposes of power: the House of Lords proposes how power might be better disposed, leaving to the Commons the power of decision". The Second Chamber's role (although, says MAC, some might see it "as beneath the dignity of a House of Parliament") is thus rightly defined as no more (but no less than) "advisory".

  13.  On this basis, it might seem strange to over-dignify the new Second Chamber with the title of "Senate". The British tradition of understatement and organic change suggests that the working title of "Second Chamber" is the one which deserves to survive and flourish. (Cf "the other place") "MSC" and "MEP" might thus compete alongside each other for public recognition and acceptance, leaving the two-letter men (and women) of the "lower" House still in the lead.

  14.  The other positive features of the present House's performance do literally shine out from the case presented for reform. All the more reason, it may be thought, for taking the utmost care to avoid their diminution or extinction.

  15.  "The most valued features of the present House" are summarised in JAY, Chapter 8, page 49, paragraph 35 and are earlier spelt out in Chapter 7, pages 36 to 40, paragraphs 7 to 22. The epithets (not often applied to other legislative assemblies—not even, dare it be said, to the other place) speak for themselves: "most valuable", "real expertise", "distinctive", "well-regarded", "distinguished" and "particularly valuable". I gladly add my own testimony to these tributes, based upon my experience as a sometime Solicitor General, Leader of the Commons and Chairman of Legislation Committee[9]—who had to consider and make proposals for, amongst other things, major changes in the Commons scrutiny of EC legislation and in Private Bill procedure (in both Houses).

  16.  There are other functions (not, I think, noted in the key documents) which often depend very largely upon the Second Chamber for their fulfilment—for example, the necessary close consideration of Consolidation and Law Commission Bills. The same is likely to be true in practice for parliamentary scrutiny of the bills which should begin to come forward next year under the Tax Law[10] Simplification Project—of which I chair the Steering Committee. All these are fields in which the Law Lords, serving and retired, play a role which is literally indispensable.

  17.  This is only one striking example of the strengths of the existing system, which could all too easily be lost by thoughtlessness in removal of the hereditaries.


  18.  "A House without the hereditary peers would probably change considerably" (CAR, paragraph 132). This may well turn out to be the under-statement of this entire debate. The unintended (or at least unforeseen) consequences of the Life Peerages Act 1958, have been substantial—but almost all benign. Who can claim to foresee all the consequences even of the single change involved in the removal of the hereditaries—let alone of a more-or-less simultaneous influx or one or more brand-new breeds of member? Some of the possibilities are briefly discussed in CAR paragraphs 132 to 136. It may be possible to gain useful further evidence directly from the prospective hereditary discards and (possible) "life" survivors of Stage One.

  19.  When the Ibbs reform of the Commons were set under way (in 1989-90) early action was taken to poll parliamentary opinion about many of the key issues. Would it not be useful now to proceed similarly to set about trying to forecast the possible shape and flavour of the new Second Chamber, compared with the present:

    —  after Stage One, (as is)?

    —  after stage One, with Weatherill?

    —  after any proposed new structure—elected, nominated, mixed and so on?

  These different prospects could be illuminated by asking present members (all except Law Lords and Bishops, I suppose?) which of them in each category would be likely to offer themselves for membership of a new Second Chamber:

    —  by standing for election?

    —  by offering their names for nomination or selection in some other way (if such was proposed)? and

    —  if, in either case, they had to adopt a party label in order to have a credible chance of success?

  20.  The results should, of course, be broken down by age, sex, party affiliation (if any), occupation, qualification or other experience. It would be particularly useful, in CAR's words (paragraph 126) to know whether the new Chamber would contain only "Presidents of the Royal Colleges or the General Medical Council . . . [but] no ordinary doctors or dentists"—let alone butchers, bakers or candlestick makers. Other informative Questions and Answers opportunities would doubtless emerge.

  21.  All this should help one to assess the likely future presence of those qualities which are seen as central to the value of the present chamber: expertise, experience, diversity, independence—and availability. The last of these has been greatly under-appreciated. The ability to rely upon a wide field of people, available by self-selection for different topics often at quite short notice, is very important—and leads naturally to my next topic.


  22.  Before considering what might be called the numbers/remuneration equation, I note with satisfaction the near-universal recognition of the case for the existing ex officio membership of Law Lords (past and present) and Bishops. I have in the past advocated an extension of this category to the office-holders. On fuller examination, it has not been easy to identify many categories who hold office for long enough (and have enough "leisure" while in office) to enable them to fill such a role. Representative office-holders in the Church of Scotland (and, hopefully of other religious faiths) should be able to qualify. Beyond that the Royal Commission should certainly be willing to consider other suggestions sympathetically.

  23.  On numbers, the most important point has already been noted. "Many peers", says MAC (Chapter 4, page 25, paragraph 20), "choose only to come to they House when they feel they can make a particular contribution. To maintain this sort of wide skills base" (of experience and expertise) "requires a large House". Upon the implementation of Stage One, something between 50 and 60 per cent (dependent upon Weatherill) of the membership of the Second Chamber will have been removed—and its diversity much more than correspondingly reduced. It would in my judgment be most unwise to accompany that far-reaching change with any further deliberate reduction in numbers—and thus in diversity, expertise, independence and availability. On the contrary indeed.

  24.  Only one factor argues in favour of a reduction. That is the perceived need (if need it be) to provide for a ceiling on total membership, as a more-or-less essential accompaniment to the (by definition) necessary limit on the number of elected members (if such there are to be). This need seems to be driven above all by the presumption that elected members will "need" (or expect?) to be paid a pensionable salary and (the choice of verb is revealing) to "enjoy" allowances (including for research) "in line with the arrangements enjoyed by MPs" (MAC, Chapter 4, page 30, paragraphs 53 to 54).

  25.  MAC notes that these recommendations will increase the cost of the new Second Chamber. This they "do not regard as desirable in itself—rather the opposite—but as inevitable. We believe", they continue (MAC loc cit, paragraph 55), "that it provides a compelling case for keeping the reformed chamber as small as possible" (my italics).

  26.  Thus the case for economy—coupled with what is seen as an unbreakable link between election and pay, pension and allowances to match—is judged to be a "compelling" constraint on the size of the new Chamber. Yet a Chamber of suitably diversified experience and expertise (see paragraph 23 above) "requires a large House" (my italics). The main reason (noted by MAC, loc cit, paragraph 20) for this linkage is that in a House where "members receive only expenses, too much emphasis [need] not be placed on irregular attendance". In other words, the availability of a sufficiently large self-selecting pool of diverse expertise is, on the basis of this reasoning, much more likely to be achieved in a Chamber without elected members.

  27.  This is a profoundly uncomfortable conclusion. The acceptance of an entirely nominated Chamber would require people to have a great deal of confidence (more than many can feel today) in the integrity of the nominating process. Moreover, a predominantly nominated Chamber might in the end be credited with no more legitimacy than the existing House, So one asks, would not the presence of a substantial elected element endow the new Second Chamber with enhanced public respect, and confidence in itself, thus empowering it to offer a more effective challenge to an overweening House of Commons?

  28.  But if the link between election and Commons-type pay and perks is now seen as virtually unquestionable, then the case for an elected element becomes a good deal less attractive. The importance of this link is presented by JAY (Chapter 8, page 48, paragraph 48) as follows: "It would be made clear that membership of the second chamber was a job with specific and important duties attached." One can almost hear a future Chief Whip's voice intoning these words. They carry with them the treat of increasing party discipline and thus politicisation of the new Second Chamber. Such possibly adverse charges were foreshadowed in CAR (page 29, paragraphs 134 to 135) and they are potentially far-reaching. Independence as well as diversity of available talent could indeed be sharply curtailed, if election was to have this kind of result.

  29.  Have we perhaps been too ready to conclude that election along the same lines as to the Commons will necessarily be acclaimed as acceptable and "legitimate"? And too ready also to assume that those elected to the Second Chamber should be so salaried and "perked", that the outmoded unrepresentative rulers of the past would be replaced, almost without our thinking it through, by another batch of "professional politicians", the potential declassés of tomorrow? But what if one questions the inevitability of the salaried link? What if it is the full-time professionalisation of politics that has been a principal cause of decline in respect for elected representatives? Have we here a pointer towards an acceptable basis for extended membership of the new Second Chamber (elected as well as nominated)?

  30.  The House of Lords has thus far been relatively, indeed remarkably, free of the kind of "fat cat" denunciation that almost every elected/salaried body has come to take for granted. Is there not something to be said, after all, for continuing (for all members of the new Second Chamber—elected as well as nominated) something like the present system of expenses, properly controlled? If so, then other changes could well be made—for example, by paying a modest attendance allowance, perhaps variable by reference to frequency of attendance, distance from home, even to age or (more accurately and more appropriately) to youth?

  31.  One conclusion in my view follows from this analysis: that the potential role of the Second Chamber is too important—or certainly could be so at constitutionally critical moments—for it to be entrusted either to an exclusively nominated Chamber or to one which is dominated by clones of the professional politicians, whose performances the Second Chamber is meant to challenge. There is, therefore, good reason to avoid any further reduction in membership of the new Chamber, beyond that involved in removal of the hereditaries. The argument indeed goes further than that. For, on the contrary, the introduction of a substantial elected element, for which there is much to be said, should be taken as an opportunity not to politicise the Chamber but to replenish its stock of non-professional independence. A large Chamber, with a substantial proportion of elected members would be just as practically manageable as the House at its present size, provided only that—for both classes of member—levels of "reward" and expectations of "regularity" in attendance were modest (or almost so), and as self-adjustable, as in the present House.


  32.  Important decisions remain to be taken, of course, about the detail of methods for choosing or identifying new members of the Second Chamber. Places would remain (see paragraphs 16 and 22 above) for ex-officio members—such as the Law Lords, some Bishops, other religious leaders and hopefully others. Some other places would also be available for "nominated" (or more accurately, indirectly elected) representatives of other parliaments or similar assemblies (see paragraph 38 below). Two further categories still need to be provided for: the elected and the nominated.

  33.  Elected members: If these are to be as independent and as unlike a carbon copy of the House of Commons as many would wish, then there should be no question of party lists, with orders of preference (express or implied). The remoteness of nationally endorsed lists should certainly be avoided. "Constituencies" could, however, be aligned with the regions now in place for elections to the European Parliament. So too could the choice of polling days, already fixed at five-yearly intervals. This would go some way towards keeping elections to the two Houses at Westminster "out of synch" with each other, in itself desirable. But the coincidence of two elections (Strasbourg and Second Chamber) on the same day would be a useful counter to the very real (and growing?) risk of "voter fatigue".

  34.  As already indicated, I should myself oppose the payment of salaries, the provision of research assistants and other perks for members (of all kinds) of the new Second Chamber. They should be entitled, of course, to expense payments along the present lines. A modest attendance allowance—particularly for those below a certain age—might be considered. If and insofar as members of the Second Chamber need improved access to research facilities, there is no reason why this should not be provided through enhancement of existing arrangements.

  35.  But elected members far from being expected to be full-time—should be encouraged to maintain their present occupations. This would help to maintain their diversity and independence. But it would not diminish their availability for occasions when their expertise might be valuable. And, most important of all, their authority would be available en masse on any occasion when the Commons was seen to have provoked a democratically legitimate challenge from the Second Chamber. Tomorrow's "backwoodsmen" could thus be seen not as relics from an aristocratic past but as democracy's strategic reserve. Far from being just another tranche of professional politicians they would indeed truly be acting as the "people's peers".

  36.  Nominated members: The case appears to have been well made out for nomination, recommendation or selection to be made by means of and under the oversight of an Appointments Commission on the lines of that being established for the transitional House. This should probably extend to political as well as to non-political appointments, as recommended by JAY (Chapter 8, pages 44 to 45, paragraphs 8 to 13).

  37.  Like every other possible process (election in Ireland, nomination in Canada) this too could lend itself to party political domination. Practise in recent years is seen by many to have demonstrated the danger of that. But that is by no means inevitable. At a much more modest level, we have for years entrusted the selection of magistrates (with substantial power over our lives and liberties) to a not dissimilar system—and successive reforms (from the Report of the Royal Commission on Justices of the Peace (1946-48), Cmd 7463, to the initiatives of the late Lord Denning, when chairman of the Inner London Selection Committee in the 1960s) have been effective in making this system practically non-partisan. Nolanisation may be seen to have taken us still further along this particular learning curve.

  38.  As already indicated, other groups or institutions could well be allowed to propose candidates for membership in this way—and some should have the right to make nominations direct. For this I have in mind, for example, the UK membership of the European Parliament, the Scottish Parliament and the Welsh and Ulster Assemblies. The term of office for such nominations could well be fairly flexible, as has always been the case for Westminster members chosen to serve in Council of Europe, North Atlantic of WEU Parliamentary Assemblies.


  39.  There remains the intractable problem of age—for there is no doubt that "youth" is and always has been insufficiently represented in the elected, nominated or consultative organs of government. To some extent this is virtually unavoidable. I was never able to come close to solving the problem, for example, when I was responsible, as our first Minister for Consumer Affairs, for selecting members of the host of Consumer Councils.

  40.  I do not believe, after some thought, that it is possible to identify or to create any framework from which young people could be directly elected. But I may just possibly be wrong about that. It should be a little easier, however, to identify bodies which could put forward nominations for consideration by the Appointments Commission. Possibilities could range between the larger and more popular NGO's and sporting or cultural organisations, even broadcast listeners' clubs; the universities and other youth organisations might also play a part. This is a field in which the Royal Commission could usefully initiate specific discussion and research with representative younger people, whether organised or not.

  41.  I hope I may be forgiven (see Macmillan, Roll, Shinwell, Longford and the rest) a developing lack of enthusiasm for any fixed retiring age?


  42.  Election should have an important role to play in the new Second Chamber. But it is not the only acceptable alternative to inheritance, as a qualification for service. When the present Earl Howe visited Lord Howe Island in 1988, the inhabitants gave a party for him—quite rightly, since it was named after his most famous ancestor. Less understandably when I visited them some seven years later, they gave a party (quite properly a smaller one) for me. And when, in my thank-you speech, I pointed out that I was "only a bogus Lord Howe", a smart Aussie shouted: "But at least you earned yours, mate!" So there may yet be some hope for us lifers.

  43.  It will be seen that the membership of the end structure that I have suggested is likely closely to resemble the existing Chamber "in the range and diversity of potentially available experience, expertise and independence" (see paragraph 3 above). And that is not by accident. The Commission will, in my view, have done well if it succeeds in re-creating an institution which, once cleared of anachronism and illegitimacy, is in most respects a close reproduction of the original, which we have today.

  44.  The wheel having been destroyed, it must be re-invented—just so long as it doesn't look like a wheel. Additional functions may then be added to its work.

7   Churchill commented (to Robert Boothby in 1949) even on the new-born Council of Europe, that: "We are not making a machine, we are growing a living plant". Back

8   "A fundamental transformation of a key part of the central democratic institution of Parliament" (JAY, Chapter 2, page 7, paragraph 13). Back

9   Those who may wish to learn more about the lessons of my experience in those jobs may refer to my article on "Managing the Statute Book" in Statute Law Review (1992), Volume 13, page 165. Back

10   Critics of the management and performance of Finance Bill Standing Committees in the Commons often yearn for the opportunity to see Finance Bills being subjected to legislative scrutiny (perhaps more expert and more measured) in the House of Lords. Back

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