Draft House of Lords Reform Bill - Joint Committee on the Draft House of Lords Reform Bill Contents


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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