Professor Sir John Baker and David Howarth
(QQ 222-249)
Examination of Witnesses
Professor Sir John Baker
and Mr David Howarth [Cambridge University].
Q222
The Chairman:
Gentlemen, thank you very much for coming. You know the inquiry
on which we are engaged. Before we start the questioning, would
you like to say something about the general scope of your views
on the issue? Perhaps, Sir John, you could go first and then Mr
Howarth you can go afterwards.
Sir John Baker:
Thank you, Lord Chairman. The main purpose in my writing the letter,
which I take it led to my being summoned before the committee,
was to challenge the widespread assumption that the House of Lords
must be elected as a requirement of democracy. That seems to me
to be quite a serious fallacy given the unusual nature of our
constitution, which has no parallel anywhere else. The reason
is that introducing elections would not mean that Members of the
House would be selected by the people: they would, I suspect,
be chosen mostly by political parties. That is admittedly a guess,
but I imagine that a candidate without substantial means, unless
very well known to the public already, would not be brave enough
to stand and certainly would not be elected. If that is right,
Members of the House would either be very wealthy, or famous media
personalities, or they would be chosen by party committees deciding
on party grounds. Voting for them would therefore also be coloured
by party politics. That system works perfectly well for electing
to the House of Commons, because that is our way of choosing a
Government under the party system, but I suggest that it would
not necessarily be a suitable way of choosing a second Chamber.
If the result were a House of the same party complexion as the
House of Commons, then there would likely be no check at all on
the Government: if they could control both Houses. I am not suggesting
that that would always happen, but it could. Even if the Lords,
having become elected, were of another political complexion from
the Government, they might become the wrong sort of check, in
the form of constant attempts to stop government proposals on
party grounds and with the encouragement of an electoral mandate
to do so. Perhaps that might produce desirable deadlocks on occasions,
but it would divert energies from the proper role of a second
Chamber. So what is that? I presume that everyone agrees that
it is vital in a democracy that legislation should be scrutinised
and challenged with a certain detachment, not just to improve
verbal clarity but to make sure that the Government of the day
do not in their enthusiasm for decisive action infringe those
basic principles which in almost every other country in the world
are embodied in writing and enforced by judges. The democratic
mandate does not override those unwritten principles of the constitution
because they were never put to the electorate. We have seen during
the past 10 years how important the House of Lords has been in
identifying and effectively stopping quite serious constitutional
slippage, such as proposed legislation ousting the jurisdiction
of the courts to review things done illegally, or giving the Government
power to make any law they wish without an Act of Parliament.
Select Committees are very good at keeping an eye on those things,
but we saw the previous Government on several occasions reject
the constitutional warnings of Select Committees, including those
two examples that I mentioned, and it was the House of Lords in
each case which saved the rule of law after the House of Commons
had declined to do so.
I would suggest that this essential role does not
require the sanction of the ballot box to give it legitimacy any
more than the judicial role, because the House of Commons can
insist on the last word if the Government are willing to face
down the embarrassment of being seen to act unconstitutionally.
It would be quite different if the Parliament Act were not in
place, but the House of Lords cannot ultimately prevail if the
House of Commons insists on passing bad law. I would finally suggest
that, far from being inconsistent with democracy, an appointed
House of Lords might, in a crisis, be the last defender of democracy.
It is not unthinkable that, some time in the future, a Government
might propose to extend their life indefinitely on grounds of
national emergency. It would then be vital for an independent
House of Lords to ensure that such a measure, even if seen to
be necessary, would at least be reversible. An elected House of
Lords, if it happened to support the party in power, might not
be able or willing to do that. We would then have a perfectly
legal dictatorship.
Q223
The Chairman:
I wonder whether I could raise a general point with you just to
start. There seems to be an implicit assumption on your part that
the introduction of what you call "party politics" into
the second Chamber is a bad thing. I do not see how you can legislate,
pass laws, without having a party structure and, indeed, party
politics in the second Chamber just as you have it in the first.
How could you do it without having the system of party structure
in the House of Lords, with Whips and all the rest of it? I do
not see how you can legislate in the same way. I do not see how
you can legislate at all unless it is done properly.
Sir John Baker:
All I am suggesting is that that works reasonably well at the
moment. Peers who are appointed have shown a certain independence
which the Commons certainly does not. To compare the two Houses,
the Commons when warned about constitutional outrages, even if
no one speaks in favour, in the end votes in favour because most
of its members are dependent on the Government for their prospects
if not actually their employment. Whereas in the House of Lords,
no doubt most of those present have political views, but they
are not subject to the Whip in quite the same way as an elected
Member. There is a different dynamic if you are answerable to
an electorate and a party which has put you there.
Q224
The Chairman:
I am sorry, I should have asked Professor Howarth before I launched
at Sir John.
David Howarth:
I agree with your point about party politics, Lord Chairman. Thank
you for inviting me. I suppose that I am here for exactly opposite
reason to that of my learned colleague: I am here to give an equal
and opposite reaction. I can promise an opposite one, perhaps
not an equal one. Contrary to what John said, I believe that people
who take part in making new law need to be elected in some sense;
they need to have been chosen by the people, either directly or
indirectly, to gain political power. Undoubtedly, there are other
forms of authority that people can gain. John has the authority,
the magisterium, of a teacher and a scholar; I am busy trying
to regain it: Tristram has probably lost it. It is a different
sort of authority from political power. I am very sceptical about
the expertise argument on the same lines. It is a different sort
of authority. The question for me about the expertise in the Lords
is not whether they should be experts—it is a very good
thing if Members of Parliament are experts—it is which experts,
and why these experts and not other experts. There are lots of
experts in the world. The question is how some experts get to
be legislators. The answer to that at the moment is political
patronage, which is not a sufficient ground. John's main theory,
as I understand it, is that there is an analogy between the authority
of judges and the authority of the present House of Lords, and
some people do argue that. But, again, it is not the same sort
of authority. Lawyers know that judges make law, but they do so
as an accompaniment, a necessary side effect, to their primary
task, which is to decide cases and adjudicate on individual disputes.
There is nothing else that the House of Lords does. It does not
have a primary task which means that it has accidentally to make
some law on the side. Its job is to take part in the legislative
process. For that reason, I do not think that it can take up the
same sort of authority that the judges have. I support the democratisation
of the House. Lord Chairman, you asked me what my general reaction
was to the Bill. I share Lord Hennessy's view that there is a
big problem here of talking about composition without talking
about powers. Lord Hennessy said the other day that it was a historical
problem and that people who have tried to reform composition without
talking about powers have come a cropper. It is also a bit of
practical advice that, if you want to design an institution, you
should first work out what you want it to do and then decide who
should be in it. Engineers usually ask, "What's the spec?
What are we doing here? What's the problem we are trying to solve
here?" My problem at that point is: what kind of things could
a second Chamber be for and what could it be doing? The Government
seem unable to make up their minds between a number of different
theories. We know that they are against a particular theory; they
are certainly against the idea of checks and balances—you
can read that all the way through the Bill and the White Paper.
The checks-and-balances theory is rejected. But of the other two
common theories of what second Chambers are for, the revising
and scrutiny role—which, as Alan Renwick said, is a variety
of different things—and the complementary role, those are
very different roles. The Government claim in different parts
of the White Paper that they are in favour of both of those, which
seems to be incoherent. If you take the revising role at its weakest,
which is to check whether proposed legislation is drafted in line
with the policy that it purports to be furthering and whether
the policy is coherent enough to be turned into legislation, that
is a function of the Office of Parliamentary Counsel—it
is just being done in public rather than in private and it is
very technical. That kind of role, a very weak role, could easily
be performed by a council of state; it does not need a House of
Parliament to do it. As Dr Renwick said, you could add more grit
to that; you could add the delaying power of scrutiny. "Scrutiny"
has various meanings. Some of them are purely technical, but some
are about political challenge. The question is twofold. On the
one hand, political challenge is what the Commons does; that is
its main purpose in life. As for the delay, why do we want that?
What is it for? If you want the second Chamber to have a very
weak role, yes, you can say, as John said, that it need not be
elected, but you can go further and it need not exist at all.
What is the point of such a thing being a House of Parliament;
it may as well be, as I believe some people have suggested in
the past, a French-style council of state. If, on the other hand,
you want it to be complementary—not to go as far as checks
and balances, but to be complementary—something has to be
done that has not been done yet. I know that this will cause some
distress among Members of the House of Commons, but in order for
the second Chamber to be complementary to the first Chamber, you
have got to say what is wrong with the first Chamber. Since no
one seems to be able to admit that there is anything wrong at
all with the first Chamber, we do not get that debate off the
ground.
Q225 The Chairman:
Oh dear. Do you want to tell us what is wrong with the first Chamber?
David Howarth:
I fear that two Members have to go at 7 pm.
The Chairman:
You have three minutes.
David Howarth:
There are two things that I would point to. The first is that,
for the reasons that Dr Renwick mentioned, it is not very good
at conferring legitimacy on legislation. Under the first past
the post electoral system, the central role of the Commons of
sustaining the Government—that is what it is for; it is
like an electoral college that carries on for five years—means
that we end up with an electoral system that produces majorities
from a minority of the vote, and the representatives in the Commons
of the majority of the voters usually end up voting against the
Bills that go through, although that is different now under the
coalition. I do not think that confers democratic legitimacy on
the legislation it passes.
The second thing that the Commons does very badly
is holding the Government to account, especially on spending.
If you look at the financial procedures of the House, they are
comical in how little discussion there is of the spending of vast
amounts of money. The Consolidated Fund (Appropriation) Bills
go through without debate; standing orders do not allow them to
be debated at all or amended, and all the stages happen at once.
If that is scrutiny and holding the Government to account, then
we need to think again.
Q226
Lord Rooker:
In some ways, it is all about the Executive getting control of
Parliament. The House that they do not control is the House of
Lords, but they do control the Commons. I declare an interest
as a Minister in both Houses, with my Secretary of State having
been saved by the Lords on more than one occasion. Both your essays
in The End of the Peer Show were my summer reading on the
beach, and I came back and said, "We ought to find out the
views of these two gentlemen, as it were". Obviously I have
since read your letter. I wanted to explore something that I explored
with one of our earlier witnesses today about conflict resolution
when it comes to the powers that the Lords have now but do not
use because we are not elected so we defer to the Commons. We
are almost a sub-committee of the Commons, in a way; it is almost
a unicameral system with a revising sub-committee that happens
to be called the House of Lords. I put to you the point that I
put earlier: if we get an elected House, notwithstanding that
a few Bills can start here, that decides that it wants to change
the conventions—this legislation clearly does not change
anything—but says, "Hang on, we're elected—we've
got a mandate, however you care to describe it", and chooses
to use the powers here to force the Government to use the Parliament
Act so legislation takes longer to get through. Under our system
where there is no written set of rules for conflict resolution
because there is no written constitution, what is to stop the
Supreme Court getting involved? Then it is a question of who gets
appointed to the Supreme Court and whether they are for or against
the Commons or the Lords, a bit like America where candidates
are asked, "Are you for or against abortion?", so the
argument will shift elsewhere. What is to stop that happening
with the Bill in its current form, saying, "We think it'll
be OK; we don't need to change the rules between the two Houses
but we want the Lords elected"?
David Howarth:
Article 9 of the Bill of Rights. That is the technical answer.
Courts are not allowed by law to question what happens here. There
are problems with recent court decisions, which I could go on
at great length about, which seem to undermine that principle
somewhat, and in the end the judges do what the judges do, but
they are not a constitutional court in the German or American
sense.
Q227
Lord Rooker:
But the hypothetical situation we are talking about is not the
same as now. We would have a second Chamber elected by popular
mandate where I am envisaging constant conflict because it wants
to get some powers from the Commons—some powers on finance,
maybe, or power of delay. It does not accept rules and conventions
here that we do not use. Why should it? It is elected. So there
is constant conflict in that sense. I am describing chaos. What
is to stop that happening? That conflict is implicit in the legislation.
In fact, in the debate we had, Paddy Ashdown—I am not misquoting
him—envisaged that it would be good to have conflict between
the two Houses. If we had constant conflict like that, are you
saying that the courts would not find a way to lever their way
into this?
David Howarth:
They did not in the constitutional crisis before the First World
War when there were similar, although not exactly the same, constitutional
struggles between the two Houses. The courts did not intervene
then, and I do not think the judges would have much of an appetite
to do that. We might disagree about the substance of whether conflict
is a good or a bad thing—I think it is a good thing; for
once, I agree with my former leader—but I do not think there
is a danger of the courts getting involved. I do not know whether
John thinks so.
Sir John Baker:
Not at present, certainly, although judges have certainly hinted
in the recent past that they may well set aside the concept of
parliamentary sovereignty if necessary, so in a different context
they might start reviewing legislation if unconstitutional legislation
is passed.
David Howarth:
In fact, the danger there is if you have the two Houses always
agreeing and threatening to take away fundamental legal protections,
like the protection of judicial review. It is at that point that
the courts start thinking, "Well, we might turn everything
on its head". I think that would be a bad thing, though.
What we need are judges who understand democracy as well as politicians
who understand the rule of law.
Q228
Baroness Scott of Needham
Market: I want to ask
a different question of each witness. I want to ask Professor
Sir John Baker what his evidence is for the political independence
of the House of Lords. As someone who spends most of my time here,
most Divisions simply take place with people voting along political
lines—there are very few occasions when people do not. I
am wondering what I have missed about this mythical independence
that I have not seen in 11 years.
I wanted to ask David Howarth a different question.
We do not really know how the relationship between the two Houses
will change, although we can consider different options. I wonder
whether one of the results might be that the Government might
legislate less.
Sir John Baker:
I am not suggesting that the House of Lords is or should be politically
independent in the sense of being able to frustrate the policies
of an elected Commons. I am talking about cases where a perhaps
overconfident Government do not pause to think whether the way
in which they are carrying out their policies might infringe principles
that would be included in a written constitution if we had one.
I can give two examples if you wish. The first is quite famous:
Clause 11 of the Asylum and Immigration Bill 2003, which provided
that there should be no appeal or judicial review in respect of
decisions by the new tribunal whether for want of jurisdiction,
error of law or breach of natural justice. That clause was opposed
by Lord Irvine as being contrary to the rule of law; it was subject
to strong attacks from Professor Bogdanor and others; Lord Woolf,
the serving Lord Chief Justice, said that it was fundamentally
in conflict with the rule of law; Lord Mackay opposed it as obnoxious;
and it was condemned by the Constitutional Affairs Committee of
the House of Commons as unprecedented. None of that had any effect.
There was a spirited debate in which no one spoke in favour of
the Bill except one junior Minister who had been sent along to
do so, and 35 Labour MPs voted against—but the Commons voted
for it, even with is as much opposition as you could possibly
have. I am not sure that it went to a vote in the Lords but it
was widely understood that Lord Irvine intended to speak against
it there and it would almost certainly have been defeated, and
it was withdrawn. It was the Lords that secured that, not the
Commons.
The other example is the Legislative and Regulatory
Reform Bill 2006, which would have given the Government the power
to amend, repeal or replace any Act of Parliament simply by making
an order. That was said to be potentially helpful in reducing
red tape. The press were taken in by that and the Opposition were
taken in by that—they did not notice the small print—until
the sheer enormity of it was drawn to public attention, I am proud
to say, by six silly professors, as we were called by a Member
of the Lords. The defenders of the Government argued that this
was just overzealous draftsmanship and it really was intended
to reduce red tape, but it was nothing of the kind. As I am sure
my fellow witness can affirm, because he was much involved in
trying to make amendments to it, the Government fought hard to
preserve the clause and would not accept amendments, for instance,
to preserve fundamental liberties. The House of Lords Constitution
Committee woke up to what was happening and said that this would
markedly alter the balance between Minister and Parliament, but
even then the Government wanted to push ahead. They said that
of course they would not abuse the new power, it would just be
useful to have it: that is when people outside Parliament start
to worry. It was the House of Lords that saved the day, not the
House of Commons. The Government had rejected the advice of the
Select Committee while the Commons played no role at all.
So the two Houses function very differently. Even
though the House of Lords has a great many politicians in it—please
do not think I am against politicians—the ethos is different.
David Howarth:
I was intimately involved in the Leg and Reg Bill. In fact, I
was the Member of Parliament of the six silly professors. John's
account of it is accurate to some degree, but my memory is rather
different—that we did destroy the Bill in the Commons. We
argued and argued. The committee was a delight; for the first
and last time, all the sketch writers turned up to the Bill Committee
and wrote unfriendly profiles of Jim Murphy. By the time that
the Bill got back to the House on Report we had already destroyed
it, and the Lords just came in and gave it the final blow. It
helped—it must have been Richard Holme who chaired the Constitution
Committee—that the two Houses were working together; that
helps in these situations. The important fact about the House
of Lords that was useful in all the negotiations was the one that
Meg Russell kept referring to and that we have to bear in mind:
who has the votes? That was purely it. In theory, the Government
could have used the Parliament Act to get the Leg and Reg Bill
through, but we had won the debate. There were also all sorts
of problems within Government; there was a missing Secretary of
State so junior Ministers who were technically referring directly
to the Prime Minister were having to take decisions and were slightly
paralysed in their ability to do so. Because of those conditions,
that Bill was never a candidate to be Parliament-Acted through.
To answer Baroness Scott's question, I hope that
one effect will be that there is less legislation. One of the
best ways to stop legislation is to have no majority in both Houses.
Q229 Ann Coffey:
I agree. One of the irritations for Back-Bench Members of the
House of Commons is when they can see, as a Bill going through
Committee, that it is just not going to go anywhere, but the Government
refuse to make the amendments that they need to in the Commons
and take those amendments in the Lords, which gives the House
of Lords attributes that it does not necessarily have and undermines
the Commons' legitimacy. That is a very irritating thing to watch;
I have watched it several times over the years. Bearing in mind
that we are looking at a draft Bill, what do you think should
be changed to achieve the Bill's outcome, regardless of what you
think about whether we should have elected, appointed or whatever?
What do you think the Government may have got a little bit wrong,
and what could be done to improve part of the Bill?
David Howarth:
My main problem with the Bill is that I do not know what the Government
want to achieve. They keep giving mixed signals about the purpose
of it—there will be no change at all, or we might be moving
backwards towards an even more feeble version of a revising Chamber.
For once I agree with Vernon rather than May on this; it would
be ridiculous to introduce a democratised element in the House
of Lords for the purpose of reducing its powers. That does not
make any sense at all. It is possible to do it but it is a silly
idea. I do not know what the Government want to do. The main purpose
of the Bill appears to be to get it through both Houses without
telling people what it is for. You need to be careful about what
you say as a Government; if you say that this is going to be a
big reform, the Commons start to complain that its primacy—
Ann Coffey: I
understand that, but—
David Howarth:
If I were doing this Bill, I certainly would not have Clause 2.
I am in a group of anti-Clause 2 people; the clause is just silly.
Q230 Ann Coffey:
Why?
David Howarth:
Because it cannot change the world. If you have elected people
in the Lords, they will start to feel more legitimate in many
respects than the existing Members and will start to do stuff.
All Clause 2 says is that nothing in the Bill changes the situation,
but that does not mean that the world does not change. The world
will change.
The second thing is that if you were doing this seriously,
you would think about the Parliament Act. I do not think that
you would change Section 1 of the Parliament Act, which is about
money—the big thing that the Government control in the Commons—but
you might want to think again about the extent of the delaying
power and about what kinds of Bill might be blocked.
I would have 100 per cent elected membership, and
I would certainly not have any bishops, for reasons previously
discussed. I am fine with STV; it is a great system. I would either
put a limit in the Bill on the number of Ministers—certainly
not leave it to the Prime Minister's "do by order",
which seems a very strange thing to do—or take away their
votes. I have no problem with taking away the votes of Ministers
who are Members.
I think I am with Lord Tyler on the issue of how
many Members and whether they should be part-time or full-time.
Because of the events of 2009, we in this country have become
obsessed with the idea that everyone paid to be involved with
politics has to be full-time. In the long term, that is very destructive.
We need a bigger House and we need to assume that people are going
to do it part-time. Frankly, I would pay them less and expect
them to do less.
Sir John Baker:
For what it is worth, I agree entirely with David about his first
two points and his point about full-time membership.
Q231 Dr McCrea:
Should the Members of the second Chamber be elected to have themselves
in place before the people and therefore have personal legitimacy,
or is it the popular mandate of the party? If it is the latter,
they as individuals now have the mandate of the individual. How
are we going to change the situation? The popular mandate of the
party would be from the two main parties. How should it suggest
to them that if there is a problem in the Commons, the Whips have
the final say in the Commons because they will do as their party
Whips tell them? That is what they are going to do in the House
of Lords. How will that situation be better than the present situation?
As a matter of fact, I have seen more revolts in the House of
Lords than I have seen in the House of Commons.
David Howarth:
It will be better in the sense that it will encourage people to
use the powers that they have, to go back to the previous conversation.
It depends whether you think it is a good thing that the Lords
use the powers that they presently have even under the Government's
rather stay-at-home version of change. When it comes to the party
against the individual, there is always a balance between whether
it is the party or the individual being elected in particular
constituencies at particular times. A good thing about STV is
that it makes it easier for independents and party dissidents
to get elected, and if dissidents get elected they might think
it is their job to defy the Whips. I suppose that it will remain
the case in the Lords, if you have this very long term and no
re-election, that Lords whipping will stay much the same as it
is now. A friend of mine—I will not say which party he is
from—is now a Lords Whip. He said to me the other day, "Whipping
in the Lords is a bit like John Le Mesurier playing Sergeant Wilson
in Dad's Army; instead of ordering people about, he would say,
'Would you mind awfully stepping over here?'". There is that
sort of tone to it.
Q232
The Chairman:
Sir John?
Sir John Baker:
I thought the question was aimed at David.
The Chairman:
It was principally aimed at both of you.
Sir John Baker:
I do not think the situation would be better.
Q233
Lord Hennessy of Nympsfield:
Just to follow up a point of Jeff Rooker's on the Supreme Court,
I may be entirely wrong about this but I think it will break though
the crust of getting involved in politics, if you look, for example,
at Lord Steyn's opinion on the Hunting Bill and the application
of the Parliament Act. He indicated, did he not, that if it was
a question of abolishing the Lords he thought it would not wash.
Also, it has the job, as the Judicial Committee of the Privy Council,
which has now gone into the Supreme Court, of having to adjudicate
on the concordats of devolution, which will become intensely political.
I understand about the Bill of Rights and all that, but that was
just a comment.
I was going to ask Sir John where his extremely interesting
and alarming sense of peril about the position of the British
constitution comes from, but by and large he has covered that
ground. I have a question for you, David: the thrust of your paper
is that we Brits are not very good at seeing these things as a
system; we take this bit but never think about the knock-on effects
of the rest and that is terrifying, looking at Parliament as a
whole. I think that you think we should get through that, and
I think we should too. So how do we do it? Where do we start?
Give us the blueprint for a systems approach in which we can locate
this relatively minor matter of what happens to the future House
of Lords?
David Howarth:
The first thing we have to do is divine what is wrong with the
Commons. The Commons has to be honest with itself about its defects.
As soon as you do that, you break through the mental barrier that
there is in this area of reform. Beyond that, it is a question
of taking seriously the idea of being complementary. I am a checks
and balances person myself, but if you are going to take the idea
of being complementary seriously, you have to think of it as a
system between the two Houses. It is what the two Houses do together
that constitutes the political system and the Parliament. We must
not just think about one by itself.
Q234
Lord Hennessy of Nympsfield:
A bit more, perhaps? A bit of a roadmap?
David Howarth:
I do not do roadmaps. If you are asking me to put on my Jonathan
Powell wig and give you tactical advice for your reform, I could
do that.
Q235 Lord Hennessy of
Nympsfield: I want a
grand scheme.
David Howarth:
That would be advice of a rather different kind. What would Jonathan
Powell do? I suppose that the answer is to keep this thing bubbling
under, cause a crisis in which the Lords are on the wrong side
of public opinion and ram the reform through very quickly at that
point.
The Chairman:
A bit of political engineering.
Baroness Shephard of Northwold:
I thought they did that with hunting.
David Howarth:
Absolutely. I hope this sounds familiar to some people.
Q236
Baroness Shephard of
Northwold: I have a
question for Sir John. It relates to his article in this publication.
On page 97, he says: "In the case of Lords reform …
there is … no indication whatever of public opinion".
Apparently there had been some polls in the Times based on two
questions posed by Peter Riddell. I think that political parties
will claim, because they had all suggested reform of the House
of Lords in their manifestos, that the issue has been put before
the public. I would like your comments on that.
Sir John Baker:
That is rather illogical, isn't it? If every party puts the same
policy in their manifesto, how can one vote against it?
Q237 Baroness Shephard
of Northwold: You certainly
make that point, but you go on to say: "Constitutional reform
should not be a matter of brute force, because the constitution
does not belong to the government but to the people". Would
you like to expand on that?
Sir John Baker:
As I said earlier, in almost every country in the world there
are written constitutions that lay down certain basic principles
that no Government should be allowed to override—for instance,
the rights of minorities and the rule of law. We do not have a
written constitution, but it would be a shame if we could not
say that there were nevertheless certain fundamental principles
in this country that ought to be observed. That was the sense
in which I meant that it is not for the Government, simply because
they have been elected to power, to say, "We can ride roughshod
over all these traditions of the past". It is wrong to say
that they have been elected to do so because the electorate were
never asked that question.
Q238
Baroness Shephard of
Northwold: If you were
a Government and you wished to pursue the issue of Lords reform,
how then would you gauge public opinion?
Sir John Baker:
It would be good if there were more discussion in public, certainly.
The press have been very negligent in all matters of constitutional
reform, so I am not sure how much knowledge there really is among
the public at large. I have given the occasional public lecture
on these topics and I have been stunned by people coming up and
saying they had no idea that these things were happening.
Q239
Lord Trefgarne:
Not a referendum?
Sir John Baker:
I do not believe in referendums because you can never frame a
question in a way that is not slanted. Whenever you are faced
with a single question in a referendum, you immediately want to
say, "Well, yes if this, but no if that". I am not sure
how you could frame the question.
Q240 Baroness Shephard
of Northwold: Would
you think it more legitimate if one party said it was in favour
of Lords reform among the rest of its manifesto commitments and
another did not?
Sir John Baker:
I think my general point about the importance of the constitution
is such that perhaps the mandate argument should never be used
to support a change in the constitution simply as an act of power—simply
because you have a majority of one, or even a larger majority.
It is a problem though—how do we entrench or preserve those
constitutional principles when we have no machinery for doing
so? The courts might step in and do it. Personally, I think it
would be far more satisfactory if Parliament could do its utmost
to minimise that possibility by getting legislation right in the
first place; it is terribly expensive to launch judicial review
proceedings, and until you do you do not know what the law is.
Q241 Baroness Symons
of Vernham Dean: David
Howarth, when you were talking earlier, you said that the House
of Lords was now appointed on the basis of political patronage,
which you described as not sufficient grounds. You then went on
to applaud the method of indirect elections, which, when that
was examined a bit more, sounded tremendously like a marginally
more sophisticated version of political patronage. I wondered
why you thought one was more acceptable than the other when it
is arguable that one is just a sophisticated form of political
patronage but actually it is not more democratic.
David Howarth:
I should be clear that I am in favour of direct election—100
per cent directly elected. It is just that the only other system
that has ever tempted me along its road is the French Senate,
a superb institution, which consists of people elected by people
who are elected. The most sophisticated electorate in the world
is not the Labour Party conference; it is the electorate to the
French Senate. If you are going to have a different sort of politician,
that might be a way of doing it, but my own first preference is
for direct election.
Q242
Baroness Symons of
Vernham Dean: Thank
you. Sir John, to take up Lady Shephard's point, it was actually
impossible to participate in the last general election without
voting for a party that wanted Lords reform. Surely that is the
long and the short of it—if you did not want Lords reform
but still wanted to vote, you had to give assent, albeit tacit
and unwilling. You had no choice.
Sir John Baker:
That is my point, yes. There is no mandate.
Q243 John Stevenson::
My question is particularly directed at you, David, particularly
as you have been a Member of Parliament before. The Government
could have looked at composition and powers but have decided to
look purely at constitution and effectively ignore powers excepting
the existing powers. I suspect that that will lead to a more assertive
House of Lords. It will probably lead to a better organised House
of Commons; indeed, the Government might get their legislation
better organised and better drafted. I suspect that there will
be greater use of the Parliament Act as well. In time it will
probably settle down regarding conventions and so on, but undoubtedly
there will be unexpected consequences—things we have not
thought of. I have already been thinking about one or two. For
example, you might see increased representation of other parties
in the second Chamber. Are there any things that you think could
emerge from this legislation?
David Howarth:
Ah, now you really do want tactical advice. If the Lords were
to start thinking about its powers and the Government lost procedural
control of it, all sorts of things might happen. The most radical
would be refusing to allow government Bills to start in the Lords.
Why should that not happen? Why should the Government get the
benefit of that? The control of time is the big battle in Parliament,
all the way through. so you could think about that. Or, as the
elected Members grew in number, people might start to think about
conventions about who votes on what and try to meet the objection
about legitimacy by saying, "Only elected people vote on
that one". All sorts of things might start to happen in five,
10 or 15 years' time.
Q244 Oliver Heald:
I would like to ask Sir John Baker a question. In looking at the
proposition for grand reform of the sort that the Government are
suggesting, Dr Russell said that she was a bit nervous about this
and felt that there was a case for a series of smaller steps that
would improve the way in which the current system works before
countenancing anything more major. She talked about things like
appointing at regular intervals, selecting even the political
nominees using the Appointments Commission to ensure that the
people concerned had particular qualities and, perhaps, introducing
a retirement age. That would be a slower and more modest approach
but one that she felt had a better chance of happening. What is
your view about that balance between a grand reform and a more
gradualist approach?
Sir John Baker:
As you might guess, I am deeply concerned about what is essentially
gambling with the constitution, because it is irreversible. We
can all speculate about things that might happen in 10 years'
time. Constitutions are for the long term. All sorts of things
might happen, such as different sorts of election landslides that
might occur 15 years from now. We not know, and it is a terrible
risk to take if we do not know, especially if we have not thought
about the relationship between this reform and other aspects of
the constitution. So I would very much be in favour of the measures
that you have outlined.
Q245 Oliver Heald:
So more of a "modest steps" approach?
Sir John Baker:
Yes.
Q246 Oliver Heald:
And when you think about the history of this country and the way
in which it has developed—you are a great expert on the
English legal system and a great admirer of the way in which English
common law has evolved over time—do you have any views about
the overall constitutional approach that the country has taken
over many centuries? Is there something that you would like to
say about the British way of doing things—or the English
way, even?
Sir John Baker:
We have not really had a system for doing it, have we? That is
part of the problem that we face at the moment. It is easy to
say, as I do, that we should think about the constitution as a
whole, but as to how one does that—there was talk some years
ago of a constitutional convention, but the mind boggles at how
it would work. There would be so many different views that it
would be difficult to know how to resolve them. We have just allowed
things to evolve, and one can take a view that that works.
Q247 Oliver Heald:
I think you are diametrically opposed to David, aren't you? David
is very much for the Big Bang gradual reform and you are not.
Sir John Baker:
That is quite correct.
Q248 Oliver Heald:
But he is right about the Legislative and Regulatory Reform Bill?
David Howarth:
You and I were on the Committee.
Oliver Heald:
Yes, we were on the Committee together.
Q249
Baroness Andrews:
On the question of the whole-Parliament approach that Peter raised,
you seem to be in agreement that the main problem lies with the
Commons. Sir John, you made this rather startling statement in
your written piece: "Although the Commons has the undoubted
primacy in most ordinary affairs, it cannot be the business of
the Commons to tamper with the only effective check on their power—that
is, on the otherwise absolute power of the Government which they
support". I would like to know whether David agrees with
you, but I am also wondering what the implications are of what
you are saying. Should they tamper? Were they to do so, what would
be the only controls that you could see on that?
Sir John Baker:
That was really a reaction to the remark made by Mr Straw under
the previous Administration, referring to the difference between
the two Houses on what should be done about Lords reform, that
in a democracy it is for the Commons to push through its view
and never mind the Lords' view. That seems to be quite wrong on
a matter of such constitutional importance as this question, simply
because the Commons by its very nature is working hand in hand
with the Government. That is the way our constitution works. If
there is to be any check on Government—if one assumes there
should be some sort of check—it cannot be just the Commons.
If the Commons is allowed to remove such checks as there are,
we do not have a constitution at all in that sense.
The Chairman:
For once, the Division is fortuitous.
David Howarth:
Saved by the bell.
The Chairman:
Thank you very much, gentlemen. I am bound to say I thought that
was a stimulating subject, and I thoroughly enjoyed it.
| 
