MONDAY 31 OCTOBER 2011
Members Present
Lord Richard (Chairman)
Baroness Andrews
Lord Hennessy of Nympsfield
Lord Norton of Louth
Lord Rooker
Baroness Scott of Needham Market
Baroness Shephard of Northwold
Baroness Symons of Vernham Dean
Lord Trefgarne
Lord Tyler
Baroness Young of Hornsey
Ann Coffey
Oliver Heald
Tristram Hunt
Dr William McCrea
Laura Sandys
John Stevenson
Dr Meg Russell (QQ 166-195)
Examination of Witness
Dr Meg Russell
[Constitution Unit, UCL]
Q166 The Chairman:
Dr Russell, thank you very much for coming. We are grateful to
you for giving evidence to us. I wonder before we start questions
whether you would like to make a short statement on the scope
of what you would like to tell us.
Dr Meg Russell:
Thank you very much for inviting me. Perhaps I should say something
about my background in this area. I have been working on the House
of Lords and its reform for the past 13 years at the Constitution
Unit at University College London. My first major intervention
was a book published by Oxford University Press 11 years ago,
looking at lessons from other bicameral systems for the reform
of the House of Lords. That was when the Royal Commission was
sitting, to which I acted as a consultant. Since then, I have
done a lot of research on the House of Lords as it is now, in
particular the way that it has been changed by the 1999 reform,
including the impact that it has on legislation, changes in the
party groups, the contribution of the Cross Benches and the way
that the Chamber is viewed by people both inside and outside the
House. I have surveyed Members and the public; I have studied
debates, voting records and other things. Throughout that time,
I have also contributed regularly to debates on reform, because
it has never really been off the agenda. Most recently, I have
gone back to international lessons and written two things. One
was a chapter for a pamphlet by the Constitution Society, which
focused largely on the compositional elements of the Government's
proposals. The other was the written evidence that I submitted
to you, largely on the powers aspects.
Summarising my position on the Government's proposals,
I would say three things. First, if your objective is to create
a largely or wholly elected House, the Government's proposals
are broadly sensible. They include some very important elements
such as long terms of office, non-renewability of terms, proportional
representation in the second Chamber and, crucially, the inability
for Members to immediately stand for the House of Commons. All
those things are critical.
With respect to powers, we have been engaged in a
long debate about composition of the second Chamber for the last
12 years or so. The powers of the second Chamber have been much
less discussed. There, the Government has not done its homework
quite so well on what international lessons teach us. If the House
of Lords' composition is reformed to make it an elected Chamber
and it therefore starts to make greater use of its formal powers,
my written evidence to you says that it will become one of the
more powerful second Chambers in parliamentary systems around
the world. That is not necessarily a bad thing, but we should
go into it with our eyes open.
Finally, both British history and international experience
teach us that second Chamber reform is very difficult to achieve
in practice. The Government's proposals are very full and very
ambitious, and it will be difficult to achieve agreement on them.
I am increasingly concerned that some urgent things need doing
with respect to the House of Lords which continuously get left
because we are waiting for the perfect package of reforms and
not getting on with the urgent business.
Q167 The Chairman:
What things are getting left? You said that some things were continually
being left. There is a Division in the Commons. We have an eight-minute
gap.
The meeting was suspended for
a Division in the Commons.
The Chairman:
Dr Russell, before we throw it open to the Committee for questions,
could you expand a little on the international side? There are
two issues that the Committee might be interested in. One is the
comparison as far as powers are concerned. How does the House
of Lords compare with other bicameral legislatures? Secondly,
one thing that I am certainly interested in is conflict resolution
if there is a row between the two Houses. How do you resolve a
problem which may then arise between the two? I would be grateful
if you could let us have your views on that.
Dr Meg Russell:
I went into some detail on both those issues in my written evidence
and I cannot promise to remember all of that detail. What I said
on powers was that there are quite a number of second Chambers
around the world which have absolute veto powers over all legislation
and are essentially coequal with the lower House, but most of
those are concentrated in presidential systems, not parliamentary
ones. In presidential systems, you have a greater separation between
the legislature and the Executive. The Executive do not depend
in any way on the confidence of the legislature, so a powerful
legislature is not such a threat to the Executive.
The House of Lords, of course, has an absolute veto
on the roughly one-third of Bills which start their passage there.
That puts it in an unusual category among parliamentary systems
such as ours. There are only five other parliamentary systems
where the upper Chamber has an absolute veto, and then only on
some Bills in some cases. Among that larger group of parliamentary
systems where the upper House does not have an absolute veto but
something like a delay power, again the House of Lords' powers
are relatively great compared to other second Chambers. In fact,
it is quite common in other parliamentary systems for the second
Chamber to have a delay power of only one, two or three months
and even to be able to be overridden immediately by the lower
House. That might seem quite shocking to us, as that is significantly
less power than the second Chamber has here.
Your second point was about resolution mechanisms.
I go into that in the paper to some extent as well. There are
all sorts of mechanisms which exist. In some cases, a second Chamber
veto requires a supermajority—a two-thirds majority, for
example—in the lower House to resolve. I am not sure that
that was what you were getting at. At the end of the paper I talk
about the presence of Joint Committees to resolve disputes between
Chambers. That is a slightly different issue from the powers,
because if you have a Joint Committee which brings together Members
of both Chambers to negotiate compromise, those Committees exist
within the broader context of powers of the upper House. You can
have a Joint Committee which negotiates, but the compromise goes
back to both Chambers and the second Chamber retains a veto, or
you can have a Joint Committee in a system where the second Chamber
is weaker and where effectively the lower House can accept the
Joint Committee's proposals and override the upper House at that
point. There is a whole variety of systems, but Joint Committees
are quite common. That is one of the strong things that came across
from my paper.
Q168 The Chairman:
Can I ask you a question on the first of those points? Is there
any relationship between how long a second Chamber can delay legislation
and whether it is elected, nominated or mixed?
Dr Meg Russell:
Oh, dear. There were so many complications in writing this paper
and so many things that you could have commented on. I flag that
up in the tables on purpose. There is an early table in the paper—I
think it is Table 2. I am sorry, but I think that actually you
are taking me beyond the paper, because I focus only on the powers
of the elected Chambers. I was quite keen to narrow down my scope
in that way, but I think it is fair to say that there is a positive
relationship between greater powers and greater democratic mandates.
Those Chambers which are elected tend to have greater formal powers.
Q169
Lord Norton of Louth:
I should like to pick up on a point you touched on but did not
include in the paper which is extremely important from our point
of view, because we are concerned not just with what exists elsewhere
but with moving from one situation to another—transitions
within an existing system. Very little research has been done
on that. Do you want to expand on the point that you were making
in your opening comments about the problems of moving from one
system to another, or one second Chamber to another, within an
existing framework?
Dr Meg Russell:
One of the points that I made in my opening remarks and have made
repeatedly in writing is that second Chamber reform is very difficult
to achieve. All around the world, even where second Chambers are
elected, they tend to be controversial institutions because they
get in the way of elected lower Houses and elected Governments.
It is quite common in other places for there to be reform campaigns
to change the upper House; what is much less common is for those
reform campaigns to succeed. So in terms of transitions, there
are rather few examples to draw on. The key one that I would draw
on is this House of Lords in the last 12 years since the 1999
reform, when few people would have predicted the extent to which
the Chamber has become more confident and assertive in pressing
its concerns on Government, simply as a result of changing from
one set of unelected Members to a set of unelected Members who
are arguably more legitimate. That has had quite a fundamental
effect on the relations between the Chambers. That is probably
the best indication that, if the Chamber is considered more democratic,
it will make greater use of the powers that it has.
Q170
Lord Norton of Louth:
So your point would be that there is very little empirical material
that we can draw on in terms of lesson-drawing.
Dr Meg Russell:
As I said, the best lessons that can be drawn are from here. International
lesson-drawing is very difficult, as you know, Lord Norton, because
everywhere is so different—different political cultures,
different party systems, different histories and so on. It is
always rather dangerous to try to import lessons from other places,
but we can look back on our own recent history and see that the
House of Lords feels a lot more confident and assertive than it
used to when the majority of Members were hereditary.
Q171 Oliver Heald:
You will be aware that in the Commons particularly there is concern
about a dual mandate; that is, that a representative in the House
of Lords is elected for an area by a voting system that many consider
to be the main competitor with first past the post. Are there
any examples you can point to internationally where what is proposed
by the Government is happening and there is a second Chamber which
is 80:20, which has STV for the 80 per cent, and which is regional
and so on?
Dr Meg Russell:
Not precisely. As I said in the paper that I sent as written evidence,
there are plenty of examples around the world of mixed Chambers
where there are some elected Members and some appointed Members—some
of them quite close to home, in Ireland and Italy, for example.
There are quite a few of those. The closest comparison for this
country is the bicameral system in Australia, which, apart from
the absence of appointed Members, is very like the set of proposals
that the Government is making. Members there are elected notionally
by STV, although in its operation it is rather more like a closed
list. They represent large geographical areas. They serve two
lower-House terms. Members of the lower House meanwhile are elected
on a majoritarian system—it happens to be AV rather than
first past the post, but the result is very similar. The Chamber
is very powerful on paper and very effective in practice. Of course,
the Australian system was based on the Westminster system and
maintains some of our traditions and culture. So Australia is
a very good place to look for an example of where we might be
going.
Q172 Oliver Heald: In
terms of Europe, the best example would be Italy, would it?
Dr Meg Russell:
Italy in many ways is a poor example. It has a powerful second
Chamber which is elected and has a sprinkling of appointed Members,
but one of the points that I have made repeatedly in my writing
is that, when one looks at the relations between two Chambers,
it is probably more important to look at the difference in party
balance between the two Chambers than at whether the upper House
is elected or appointed. In Italy, you have a very powerful upper
House with an electoral mandate, but there is very little tension
between the two Chambers because they are elected on very similar
electoral systems with very similar results. Therefore, the partisan
friction is not there most of the time.
Q173 Oliver Heald:
One option is indirect elections, which used to happen in Northern
Ireland for the Senate. What proportion of countries has a mainly
or partly indirectly elected second Chamber?
Dr Meg Russell:
Those figures are in Table 1 of the paper.
Oliver Heald:
That seems to show 16 directly—
Dr Meg Russell:
16 wholly directly elected, two with a mix of directly and indirectly
and 11 that are largely indirectly elected and minority appointed.
So, quite a lot.
Q174 Oliver Heald:
And would they avoid the dual-mandate problem?
Dr Meg Russell:
I am not sure what you mean by the dual-mandate problem.
Oliver Heald:
You have a Member of Parliament in the House of Commons representing
an area, and side-by-side there is a Member in the House of Lords
representing the same area, one elected by, in this case, first
past the post and the other by STV.
Dr Meg Russell:
What I and most academics mean by "indirectly elected"—I
have heard it used here in a slightly different way in your previous
evidence sessions—is that those elected to the second Chamber
are elected by another group who were themselves elected. For
example, in France and Ireland you have local councillors involved
in the election of second Chamber Members. So those second Chamber
Members therefore do not have an electorate in the sense of the
citizens. They may represent an area but if they are answerable
to anybody, it is other elected members in another body. That
is quite common.
Q175 Oliver Heald: In
Northern Ireland, what used to happen was the result of the general
election would produce one House, which would then vote for the
other House in the same proportions.
Dr Meg Russell:
That sounds rather like the system that still operates in the
Republic of Ireland. I see David Trimble shaking his head. The
Members of the Dáil, if I remember rightly, are involved
along with local councillors in an electoral college that selects
the majority of Members of the upper House. But, because virtually
all those Members are elected on a party ticket, they become very
partisan elections. I come back to my point that party balance
is key to determining the relationship between the two Chambers.
In Ireland, the second Chamber is rather weak in formal terms,
as indicated in my paper, but it is also pretty weak in practice
because the Government tends to have a majority there. That is
partly because there are number of government appointees.
Q176 Oliver Heald:
If we wanted to go and see a good indirectly elected Parliament
or look into it more, what would be a good example?
Dr Meg Russell:
When I did my international study, I am not sure that the examples
of indirectly elected Chambers that I chose were particularly
good ones. South Africa is quite interesting because it has some
elements of the Westminster model. India, too, is quite interesting
for a similar reason, but I have never visited either of those
countries. Germany I count as an indirectly elected system; it
is a very effective bicameral system with a highly federal upper
House where the Members are chosen by members of state governments.
But of course that could not be replicated here because we do
not have a federal system or state governments. When it comes
to the idea of implementing indirect election in this country,
who would be the electors? We have a rather patchy system of sub-national
government—we have a Scottish Parliament, a Welsh Assembly,
a Northern Ireland Assembly and a London Assembly, but outside
those areas no regional government, only local government. To
my knowledge, the Scottish Parliament, the Welsh Assembly and
others have not expressed any interest in electing Members of
the second Chamber, and there is not a very strong rationale for
them doing so.
Q177 Oliver Heald:
So if you just wanted to reflect proportions in a general election,
rather than House of Commons Members choosing, each of the parties
could simply present a list before the general election and the
proportion of the list would then be the proportion of the popular
vote, which would be a closed-list system. Is that something that
you have come across in any country?
Dr Meg Russell:
I heard you present that model to previous witnesses. It quite
nicely illustrates one of the complexities of the questions of
second Chamber reform. At the end of the day there is something
of a blurring of the lines between election and appointment. A
system such as the one you describe, where Members of the second
Chamber are chosen based on general election votes from closed
lists predetermined by the parties before the election could be
seen as a system of closed-list election or simply as a system
of appointment. In the end, there is very little difference between
the two. The singer Billy Bragg has made a proposal similar to
that over the years, and I must say I have never liked it. The
primary reason is that if you try to present it, as he has done,
as a democratic system, an election system, and you say to people,
"You are going to the ballot box today, on general election
day, not only to pick a local MP but also to determine what the
balance in the second Chamber should be", you are not asking
them a fair question. Some people vote tactically in general elections
for local reasons, but they might not necessarily want their vote
to go to the same party in the second Chamber. It is very hard
to deny people a second ballot paper in a situation such as that,
should they wish, for example, to vote Conservative or Labour
in the local constituency but they might like their votes to go
to the Greens or UKIP for the second Chamber. That should be their
right, I would have thought.
Oliver Heald:
That has its own difficulties, obviously.
Q178
Lord Rooker:
Dr Russell, can I take you back to one of the points you started
with, on the issue of the Bills that start in the Lords, meaning
that the Lords' powers are different, and then bring you right
up front to the very point that the Chairman raised about conflict
resolution? You are right, one-third of the Bills start here and
they are pretty low-key. I can recall some important Bills starting
here: the Climate Change Bill, Police Reform Bill of 2001 and
of course the Public Bodies Bill, which is fairly controversial,
started here this year. If the draft Bill we are looking at does
not alter the relationship—Clause 2 says that it has to
stay the same—and we end up with an either 100 per cent
or 80 per cent elected second Chamber inheriting those powers
but the Members do not like the arrangement, what is there, in
the way that you have looked at the two Houses, to stop the Members
of the second Chamber blocking every Bill from the Lower House
to force the use of the Parliament Act every time and slowing
down the Bills that start in this place in order to achieve a
negotiated settlement with the other Chamber to reform the Parliament
Act to give them the powers? Is there anything to stop them doing
that? To follow up the Lord Chairman's question, are any of the
countries that you have mentioned like the UK, without a written
constitution? The conflict resolution is there and the Houses'
Joint Committees are there, but most countries have a written
constitution with a set of rules that stops the Supreme Court
getting involved. In the scenario that I have raised, what is
then to stop our Supreme Court getting involved in conflict resolution
when we do not have a written constitution? Sorry to put it that
way, but I see the two things as directly connected.
Dr Meg Russell:
On the second point, I am sure that you know that we are very
unusual in the world in not having a written constitution. Most
countries do, and indeed that is where I researched my paper from,
being able to read those constitutions in order to work out what
the formal balance of powers was between the Houses. What it is
in practice may be quite different, as I said in respect of Italy;
if they are controlled by the same party, you can have all the
powers in the world but that may not make the second Chamber a
powerful one. So on your second point, we are very unusual.
On your first point, I suppose that one could ask
what stops the House of Lords doing that now. This has come up
in previous evidence sessions. In truth, what limits the House
of Lords' de facto powers is not the Parliament Acts but convention,
culture and, in particular, the views about the legitimacy of
the present membership of the House of Lords, which can be thrown
back in the faces of House of Lords Members every time by Members
of the House of Commons claiming that the elected House must get
its way. If you had an elected second Chamber, those arguments
would not hold in the same way. But one of the things that I have
learnt in my study of other countries, and Australia is a pertinent
example here, is that the House of Lords and the Australian Senate
show that it is not as simple as unelected, illegitimate and powerless
on the one hand and elected, legitimate and powerful on the other.
The House of Lords has gone from one unelected House to another
unelected House, and has become more powerful in the process.
In Australia, and the same would apply in some other countries,
they have an elected House, elected on the same universal franchise
as the lower House, but the lower House still has primacy, not
because the upper House cannot block Bills—it can—but
largely because of legitimacy arguments. Members of the second
Chamber in Australia are argued not to be as legitimate as Members
of the first Chamber because they serve longer terms of office
and represent enormous geographical areas. There is also a large
degree of disproportionality in that representation, in that states
that have very small populations have the same number of representatives
as states that have large populations. Hence that classic term,
used by an Australian Prime Minister, that Members of the Senate
were "unrepresentative swill". Members of the lower
House there do their best to argue that the primary House is the
more legitimate one in Australia, despite the fact that both Chambers
are elected. There are a number of things in the Government's
proposals that seek to create that kind of situation—the
long terms of office, the non-renewability of terms, the renewal
in parts and so on—and those aspects of the proposals are
very important.
Q179 The Chairman:
Are they elected on the same day in Australia?
Dr Meg Russell:
They are usually elected on the same day, but only half the upper
House at once. They then have this unusual conflict resolution
mechanism whereby if everything cannot be resolved amicably a
general election is called, the entire Senate is elected on the
same day as the lower House and all of them begin with a fresh
mandate.
Q180
The Chairman:
Has that ever happened?
Dr Meg Russell:
Yes, it has happened several times—six or eight times in
the last 100 years.
Q181
Baroness Andrews:
You have shown in your paper how diverse and complicated other
Chambers are. In the final sentence of your article, you say:
"What this article has demonstrated is that a reformed House
of Lords left with its existing powers, if it chose to use these
more freely, would be one of the most powerful such chambers amongst
parliamentary democracies. For examples of how this could change
British politics reformers might look to countries such as Australia,
Germany, Italy, India, Japan, Switzerland and Thailand".
Is it possible to summarise what they would find?
Dr Meg Russell:
Yes, that statement was a bit of a hostage to fortune: I realised
that when I was writing it. I have to say that some of those systems
I know very little about. I know next to nothing about Thailand.
I know much less than I should do about India, Switzerland and
Japan. I gave the example earlier in the paper of Japan and the
extent to which there has been government instability as a result
of vetoes by the second Chamber there. That is because of their
peculiar resolution mechanism that requires a two-thirds lower
House majority to override the upper House. It creates an enormous
problem for Governments who do not have a two-thirds lower-House
majority—which is the case most of the time. That is not
something that I would recommend, and I do not think that it is
something we are contemplating. As I mentioned, Germany has a
powerful, strongly bicameral system that is also strongly federal
and therefore not very comparable to ours. As I mentioned, the
Italian system is not to be recommended because the two Chambers
are too similar, but it is a nice illustration of the fact that
you can have strong powers on paper that are not used in practice
due to party balance. I have already spoken about Australia, so
that is probably as much as I can I tell you. But I invite you
to get people to do research on the other countries if you want
to know more.
Q182
Baroness Andrews:
There is one thing that I would like to know. When you have a
powerful second Chamber, more similar to ours, are the powers
created with the creation of that second Chamber or are they acquired?
Is there an accrual of powers and greater contestability as the
Chamber has evolved?
Dr Meg Russell:
That is an interesting question and I am afraid that I do not
really know the answer. I would say that in most cases they were
created as part of a constitutional settlement. Clearly, a lot
of European constitutions are post-war constitutions that set
down the membership and powers of the Chambers at the same time.
It is probably more common to have membership reform than to have
powers reform, but I cannot be absolutely certain of that because
I have not done the research.
Q183
Baroness Andrews:
Is that because it is the easy option?
Dr Meg Russell:
Yes, probably. Of course, we have a flexible constitution in this
country. House of Lords reform is not easy by any means, as everybody
around this table knows, but none the less constitutional reform
is easier in this country than it is in many others, where there
are all sorts of special mechanisms to change the constitution.
Sometimes you can get membership reform without having to make
constitutional changes, whereas powers reform requires constitutional
change.
Q184 Baroness
Andrews: Does that lead
you to think that if the Bill were pursued, we would need to codify
the conventions?
Dr Meg Russell:
The formal powers are codified in the Parliament Acts. They are
governed more by conventions but also by the membership of the
House rather than necessarily by the Salisbury convention. That
is the main constraint on the use of powers at the moment.
Q185
Lord Hennessy of Nympsfield:
You mentioned more than once the difficulty of reforming second
Chambers across the international picture, but particularly here.
As you know better than anybody, here it seems to produce an instant
combination of paralysis and anguish whenever we are faced with
it. That does not quite describe this Committee, but you know
what I mean. Your experience includes being a special adviser
to Robin Cook when he was Leader of the House and going round
the houses with him on all this. If Nick Clegg took you on one
side and said, "Look, you've got a lot of background here.
I am faced with a House of Lords of 870 people, or whatever it
is, with 800 years of practice at creating a resistance movement.
What ingredients can I drop into that dark pool of resistance
that might unfreeze this and produce fluidity?", what would
you tell him? Would you tell him to forget all about it because
it is not that easy and simply cannot be done just like that?
Or have you got a cunning plan lurking in your head that this
time would give it a chance of happening?
Dr Meg Russell:
One thing that I would tell him is that he is mistaken if he thinks
that the House of Lords is the main block to reform. The House
of Commons has been the block to reform in the past, as it was
in 1968. It is too easy to think that the people who are going
to stand in the way of this reform happening are Members of the
upper House rather than Members of the lower House. There is also
public opinion, which is terribly split and complicated on these
issues. You might want to ask me about that, although I have written
about it and you have probably seen what I said.
My advice would be that, as I have already said,
international experience and history teach us that big bang reform
does not happen. Reforms that have happened in this country in
the last 100 years are small, piecemeal reforms that have dealt
with the most obvious, urgent questions on which the broadest
consensus can be gathered. There are good reasons for proceeding
in a gradualist fashion. One is the purely pragmatic argument
about big bang reform: the bigger the package, the more things
there are in the package for people to oppose, and the more ways
in which it can be unravelled in amendments and so on. Also, the
bigger the change the more unpredictable the result. As I said,
the change to the House of Lords in 1999 had a bigger effect than
perhaps we might have predicted. My advice would be to proceed
in small steps, one at a time, and to stop and look at the effects
of each reform as it happens—for pragmatic and also serious
political reasons.
Q186
Lord Hennessy of Nympsfield:
Give us the first steps, please.
Dr Meg Russell:
There are a number of urgent things that need doing with the House
of Lords. The most obvious problem is that the Prime Minister
formally retains absolute patronage powers over the Chamber in
terms of how many people enter, when they enter and what the party
balance is between them. That is quite indefensible in the modern
age. The size of the Chamber is also a major problem; it is in
danger of spiralling out of control. Those things are problems
for how the House of Lords functions and for its relationship
with the House of Commons, but they are also problems for the
image of the House of Lords and therefore for the image of the
British Parliament as a whole. I do not think that unlimited patronage
powers and an ever-growing membership do either Chamber of Parliament
any good.
Q187 Baroness Symons
of Vernham Dean: When
you mentioned the urgent things in your opening statement, I thought
you were going to expand into some of the issues covered by the
Steel Bill. One of the arguments we have had around the Table
is exactly the one you cited at the beginning—that there
is a worry that by making some reforms you put off the big reform.
What are your thoughts on the Steel Bill and the issues dealt
with there? They cover in part some of the things you have just
mentioned but they go a little further than that.
Dr Meg Russell:
My immediate proposals would be slightly different from the proposals
in the Steel Bill. I would like to see a cap on the membership
of the House with no appointments being made until vacancies occur
beneath that cap. Appointments could be regularised to maybe once
every year or once every couple of years to fill a batch of vacancies.
It should be quite clear how the division is made between the
parties. The most defensible division among a batch of appointments
is to say that 20 per cent will be independent and the rest will
be between the parties on the balance of general election vote
shares at the last election. One of the problems with the system
that we have at the moment is that the coalition has this commitment
to make the balance in the House proportional to general election
vote shares at the last election. As I have shown in another paper,
House Full, that is completely impossible. You need to
have 350 more appointments to achieve the 2010 balance. You will
probably get there, with a House of 1,200 Members, just in time
for the next general election, when it will need to change again.
So balance is needed among each batch of appointees. Then there
are other things such as introducing retirements, breaking the
link with the peerage and perhaps even, after all that has happened,
introducing a first batch of elected Members. But there are plenty
of things you can do before that which are in line with the Government's
proposals, perhaps even introducing fixed terms for appointments.
I am sorry; I think I may have strayed a bit from your question.
One of the things that I have been saying repeatedly
for years ad nauseam is that some of the things that need doing
to the House of Lords in my view can be done without any Bill
at all. The Appointments Commission, which I think most people
accept is doing a reasonably good and professional job of picking
independent Members, is, of course, completely non-statutory.
The Prime Minister could give more of his patronage powers to
the Appointments Commission at any point simply by writing it
a letter.
Q188
Baroness Symons of
Vernham Dean: Can I
take you back to the point that the Lord Chairman made at the
beginning—again, some of my colleagues have picked this
up—about resolution procedures when two Houses are in disagreement?
In your very interesting table one cannot help noticing that a
lot of these are fairly new democracies. Can I ask you about the
United States, which I suppose is the one that most of us would
recognise as being the most formalised and in some senses most
powerful? Can you give us any indication of how many times that
formal reconciliation procedure is invoked? Obviously, I do not
know whether it is twice a year or whether it is in constant session,
trying to regulate between the two Houses in the United States.
What happens when they do not finally reach agreement? How does
that get resolved?
Dr Meg Russell:
First, I have to apologise, because I am no expert at all on the
United States, but I am sure that that information will be readily
available.
Q189
Baroness Symons of
Vernham Dean: It is
the one that captures most people's imagination and possibly makes
people most anxious about what we are talking about because a
lot of our colleagues are extremely worried about the whole idea
of a very powerful Senate.
Dr Meg Russell:
As I said before, there are two things. There is the existence
of a Joint Committee and then there is the framework of powers
within which that Joint Committee exists and you cannot separate
the two entirely. Clearly, in the United States, they have a Joint
Committee mechanism, but at the end of the day nothing will pass
unless it has been approved in identical terms by the House of
Representatives and the Senate. In some other systems you have
a Joint Committee which makes recommendations. For example, in
France, as I say in the paper, there is very little incentive—again,
not a system that I would recommend—for Members of the lower
House to compromise because if the Joint Committee fails to reach
agreement, the lower House can just pass the Bill on its own.
So, it is not just a case of the presence of the Joint Committee;
it is the framework of powers within which it operates.
I think that Professor Bogdanor raised a fair point
when he gave evidence to you last week about one of the problems
with these Joint Committee mechanisms. In many ways they are very
sensible and pragmatic in that they take things off the Floor
of the House and get people round a table where they can have
a conversation, but in some places—I think the US is one
of them—those Committees get accused of being a third Chamber
of Parliament and, of course, it is a less transparent way of
reaching agreement. I have to go through Hansard and try
to understand what is going on when there is ping-pong. It is
not an easy business but at least it is on the record. When you
have a smaller group of people behind the scenes doing the fix,
it is arguably less accountable and less transparent. That is
the downside to that kind of arrangement, although it has practical
advantages.
Q190 Baroness
Symons of Vernham Dean:
They can compromise, though. They do not have to go all with one
House or all with the other House. It is a bit like ping-pong
where we can try to find a middle ground as we go through it.
Dr Meg Russell:
As I say in the paper, the devil is in the detail of how these
Joint Committee systems work. They vary quite a lot. For example,
in some systems they can come to any deal they want on the entire
Bill, which means that where there has been a disagreement on
the Floor, they can trade with something in a different part of
the Bill. In other systems, they are confined to dealing only
with the clauses where there is disagreement. You can design a
system to suit your purposes. You could have a Committee inquiry
entirely on the pros and cons of different Joint Committee arrangements.
Q191 Ann Coffey:
Initially, you said that there was part of this Bill that you
thought was quite positive and quite good. Bearing in mind that
we are looking at the draft Bill, what do you think needs to be
done to it that has not been particularly well thought out, or
needs to be added to make its objective work? Secondly, I was
going to ask you about your unanswered question on public opinion.
What do you think the public consider as being involved in reform
of the House of Lords?
Dr Meg Russell:
I will have to remember to come to that at the end because they
are two quite separate questions.
Q192 Ann Coffey:
That is why I thought I would get them in both at once. The third
question is: do you think that the powers that each House has
should be put into some sort of statute? Do you think that would
be the start of a written constitution and that that might also
meet with some resistance from the Commons?
Dr Meg Russell:
I am sorry, I think that I may have overlooked that question when
somebody asked it earlier. In terms of what is right and wrong
with the Government's proposals, I have indicated some things
that I think are right in terms of composition. Some of those
things are quite controversial, which is why I am saying it is
important that you know that people who have thought long and
hard about these kinds of things think that they are right; for
example, long terms of office, non-renewable, a chamber renewed
in part, that members cannot stand for the House of Commons for
a long time.
In terms of what is wrong with the Government's proposals,
I think there are various levels at which you can approach that
question. One thing which we have already gone into and has come
out strongly in previous evidence sessions is that I think they
are not being realistic about the extent to which changing the
composition of the House will alter the balance between the two
Chambers and encourage it to make greater use of its powers. Clause
2 of the Bill is a fiction; it is pretty meaningless. That is
one thing. In terms of composition, where I think they have broadly
got it right, I have a few concerns. In line with Lord Tyler,
I am a bit concerned that 300 would not be an adequate number
to do the work of the House as now. It is questionable whether
you want all Members to be full time. I am a bit concerned that
the four-year quarantine period—as some people have called
it—before standing for the House of Commons is not long
enough. The Royal Commission proposed 10 years. In the paper that
I wrote for the Constitution Society, which I see some of you
have in front of you, I gave some horror stories from Canada of
people who have hopped between the two Chambers. There are similar
horror stories in Ireland. In thinking about—
Q193
Lord Trefgarne:
Why is that a horror story?
Dr Meg Russell:
In Ireland the Second Chamber has become a launch pad for political
careers for ambitious young politicians who try to make a name
before—
Lord
Trefgarne: Senate.
Dr Meg Russell:
The term "senate" is what most Second Chambers are called.
Whether they are called "Senate" or not, this is part
of the thinking with respect to Second Chambers in most countries
of the world. The name comes from the term "age" or
"wisdom". I think that the benefit of most Second Chambers
is that they have a more mature, reflective, longer-term approach.
Lord Trefgarne:
Thank you very much.
Dr Meg Russell:
It also weakens the integrity of the two separate Houses if people
are jumping between them. One thing that happens in Ireland is
that people will be in the Senate and they will at the same time
be nursing a constituency in the lower House in order to prepare
to run for lower House election afterwards. With the four years,
if you think about the fact that political parties pick their
candidates often several years before the forthcoming general
election, you could potentially be an upper House Member nursing
a constituency in your region. This is what happens in Australia
and it is rather similar to what happens in Scotland and Wales
with the list members, who tend to focus their attentions on marginal
seats within their region. They go for publicity, set up offices
and get coverage in the local press in order to benefit their
party—it is not necessarily because they are going to run;
it may be that somebody else from their party is going to run.
If they spend a term doing that and then stand down from the upper
House and can be selected a year later for the next general election,
I do not think that is healthy. I am sorry, I am digressing rather.
You have touched on the membership issues and what
could be improved in previous evidence sessions. I am concerned
that the power of the Prime Minister to appoint Ministers directly
to the reformed House is ill defined. Despite what Mark Harper
said when he spoke to you, all the good intentions may be there
but if the numbers are tight between the parties in the upper
House, any Prime Minister is going to be very tempted to use that
power to stack the numbers for his party. That is a worry to me.
I am not sure that the transition is carefully enough
thought through. I was very concerned by the scenario that Lord
Trimble gave when you questioned the Minister about the possibility
of the active House becoming bigger in the short term rather than
smaller. I am not sure that the Government have thought that through.
More generally, as I have already said, the package of reforms
is very ambitious and it might be more sensible to go for a step-by-step
reform.
On your question on public opinion and what the public
want, this is very complicated. Peter Riddell said this to you
when he gave evidence. There was a very interesting Times
poll—I suspect he wrote the question—several years
ago where members of the public were asked whether they wanted
a largely appointed second Chamber in order to maintain independence
from the parties et cetera. Two-thirds of people say yes, they
want that. You then ask them whether they want a largely elected
Second Chamber in order to have democratic legitimacy and, within
five minutes, two-thirds of the same people say yes. So I think
that the public are very split on this because it is a complicated
question.
One of the tricky issues facing you is that there
is a good pragmatic reason for not tinkering with the powers of
the House of Lords in this reform, because, as I said, the bigger
the reform gets, the more difficult it is to agree. But also,
the idea of changing the composition without changing the powers
worries a lot of people. I do not agree with what Vernon Bogdanor
said when he spoke to you, that you cannot make it at once more
democratic and weaker in formal terms. I do not think that there
is a contradiction there. I think that you could reduce the powers
to a blanket delay of six months or a year on everything; I think
that the powers are rather messy at the moment. The question would
be political, which is: are the public prepared to see a weakening
of the powers of Parliament in exchange for the introduction of
elected Members? I am not sure that they are, because they have
complex views on this issue. I think that I have answered your
question about powers.
The Chairman:
I have two people left on the list and we are way out of time.
If there is an overriding necessity for Lady Scott and Mr Hunt
to ask their questions, we will have them, but two minutes each.
Q194
Baroness Scott of Needham
Market: I have a quick
question about hybridity. With your experience of the Lords, how
do you think a hybrid House would work in practical terms? Do
you think that those appointed Members and Bishops would be seen
as lesser mortals in a reformed House?
Dr Meg Russell:
This is another interesting question which I have heard at previous
sessions. At one level, who knows? A lot of this is utterly unpredictable.
A lot of it has to do with particular events that might happen,
and particular storms that might blow up in the media or between
the parties. But I do not see any necessity for there to be a
problem of the appointed Members being held up to be less legitimate.
You might have expected that, in the last 12 years, we would have
heard a lot about how the hereditary Peers have been the ones
to swing the balance of votes. I have heard nothing about that,
and I watch the House of Lords quite closely. On top of which,
I am not sure—again because public opinion is complex and
conflicted—that members of the public would necessarily
disagree with the appointed Members being the arbiters. Legitimacy
comes with election, but legitimacy can come also with being an
independent expert. One of the things which people value, and
the polls show this, with the current House of Lords is the presence
of independents and the presence of experts. I am not sure, in
an argument between the elected partisans and the appointed independent
experts, who the public would think was the more legitimate. It
is quite unpredictable.
Q195 Tristram Hunt:
Dr Russell, you have mentioned culture shift, how the interrelationship
between the Houses is closely related to culture and the fact
that the Parliament Act is not called upon except as a last resort.
Do you think that the Government's policy takes any account of
the change in the culture of politics which we are seeing on both
sides of the Atlantic, whereby that journey towards consensus
is no longer there because of the nature of political parties
and the growing antagonism between them—leaving aside the
coalition? The American model, based on gentlemen in the late
18th century agreeing things, is not there in a modern political
system. The British model, of gentlemen in the mid-20th century
agreeing things and playing by the rules, will not necessarily
be there in a future model. So this nice notion from the Minister
of everyone stepping back and taking a deep breath is politics
moving in a different direction from where the legislative framework
for the interrelationship between the Houses might be.
Dr Meg Russell:
I have said over and over again that the key thing is party balance.
In most, if not all, developed democracies that have bicameral
systems, it is that which fundamentally determines the relationship
between the two Houses. Does the Government have the numbers in
the upper House? These are the terms in which they talk in places
such as Australia and Japan. When it comes down to it, it is a
battle between parties. In terms of the way that politics is moving,
and connected to the previous point—this may seem an absurd
thing to say—there is a way in which the House of Lords
could be viewed as curiously modern, because in the drift in politics
in recent years we have seen an effort to get things out of the
hands of elected politicians and into those of independent experts.
I have said in the past that one of the big things that hold the
House of Lords back—a lot of people would think that this
was trivial—is the wearing of ermine and robes at the Queen's
Speech. If you were to do away with that, this place would seem
peculiarly modern in some respects.
The Chairman: Thank you
very much indeed. That was a fascinating piece of evidence. We
are very grateful to you.
Dr Meg Russell:
Thank you for inviting me. I am sorry for taking up so much of
your time.
The Chairman:
I think that you underestimate the value of the smoke-filled room
when it comes to ping-pong, if I may say so. But thank you very
much; it has been very helpful. We have learnt a lot.
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