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Lord Richard: My Lords, will the noble Lord give way?

Lord St John of Fawsley: My Lords, I believe that the noble Lord has made the point.

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Lord Richard: My Lords, the point is not whether there is a pool of people who are perfectly qualified to be nominated to come here. The complaint is that, for certainly 18 years when the noble Lord's party was in office, too many people from that pool went to that side of the House and an insufficient number from that pool came to this side of the House. It is not a reflection on the individual but on the party judgment that was made by the then Prime Minister.

Lord St John of Fawsley: My Lords, I believe that mistakes have been made in that regard. But I believe that a much bigger mistake was made by the then government in bringing in to vote on controversial issues backwoodsmen who never normally appeared here. That did more to undermine confidence in this House than anything else.

I press on. I speak of my own experience. I shall tell your Lordships briefly the history of my appointment to this House. I have no fear of breaching any confidence because the best way of keeping a secret is to insert it into a speech to your Lordships. When I decided not to stand again, as a member of the Cabinet I went to the Prime Minister to inform her that that was my intention. She did not exactly burst into tears, but expressed a seemly regret. Then she said, "Well, Norman, would you like to go to the Lords?" "Prime Minister" I said, "What a good idea. I shall be delighted". That was that. I heard nothing for a year until a brown envelope came through the letterbox. I thought, "Oh heavens! another bill". I pushed it into my pocket without looking at it. I only found it later in the day, when I discovered to my horror that it was the biglietto regarding recommendation to the Queen and ending with these sinister words: "If I hear nothing from you by Monday, I will not proceed further in this matter". I thought to myself, "Shall I commit the reply to the post?". That would be madness, so I took it around to No. 10 in person.

Did that make me Maggie's minion? She would be very surprised to hear that. My noble friend was here today. She appeared to be in wonderful form. I am delighted that she is in the best of health and spirits. I was very pleased to see her here. I was never "one of us" and I am never likely to be "one of us". I do not know whether that is grammatical, but it is the truth. I always tended to be a gang of one. The only effect of my translation here was that I thought inwardly of the noble Baroness not as the Blessed Margaret, but as Saint Margaret.

The point I am making is that I was not asked to make any promises or commitments of any kind and that was the convention which was exercised in creating the peerage. I look with grave doubts upon this appointments commission which seems to be commanding such widespread report. It was the real Cardinal Wolsey who said,


    "Put not your trust in princes",

and I would say to your Lordships, "Put not your trust in appointments commissions". As my dear mother would have said, "Who are these people?" In language

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which all your Lordships will be familiar with, "Quis custodiet ipsos custodes?" I will not insult your Lordships by translating it.

When I was chairman of the Royal Fine Arts Commission, I dealt directly with Downing Street. We never had any trouble or difficulty in getting good people. Once this ghastly appointments commission appeared, it was nothing but trouble, inefficiency, delay and getting the wrong people. Finally, when I asked Sir Len Peach who were the members advising on this exercise in transparent government, I was told that the names were confidential. Let us keep a wary eye on this and question it.

The only other comment that I wish to make is that I was delighted that the Church of England is to be represented. I am not a member of the Church of England. I find its theology a singular combination of opacity and fragmentation. It is our national church and I congratulate my noble friend Lord Wakeham on having the theological knowledge, unsuspected by me, to use as the basis for the Church of England's claim to be here the number of baptised persons, not the number of communicants. Fifty per cent of the population is baptised into the Church of England and it is that which makes for membership of the church and it is that, if I may presume to address the right reverend Prelates on their Bench, which confers legitimacy upon them. I hope the Catholic bishops will appear in some form as well as the leaders of other faiths.

We have no constitution. As Disraeli said in that great speech in the Crystal Palace, "We have institutions", and it is our duty in this House to seek to reach a consensus of all Members here on the way forward. The other consensus we must achieve is a consensus with the other place. There have been some rather unflattering remarks regarding the other place which I, as a former Leader of that place, rather resent. I can only say that you do not gain the support for a consensus by letting off peashooters to hit in painful places the people you are trying to attract towards you. Therefore, if we want the Commons to co-operate in this very great enterprise, I think a certain amount of diplomacy will not be out of place.

We are embarked now on a great cause: to provide a second Chamber which will protect the rights and liberties of the subject and which will perform the balancing function that is essential in a true democracy. It is as great a task as has ever faced this House. It will need patience, it will need much discussion, it will need tolerance and it will need insight. Having listened to this debate, I feel we have got off to an excellent start.

7.24 p.m.

Lord Thomas of Swynnerton: My Lords, what a pleasure it is to follow the noble Lord, Lord St John of Fawsley.

The House has before it what seems to me to be an extremely well written and interesting document which faces most of the relevant problems and usually does so deftly. It is particularly good in discussing the

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matters which it was not really set up to discuss, namely the effective working of this House. Chapter 16 on procedures seemed to me a particularly good example of that--a particularly reassuring chapter, in fact. I think the report is entirely right to emphasise, by using the word several times, that the House of Lords in the future needs to be confident. It correctly records that, in recent years, one of the weaknesses of your Lordships' House was that it lacked authority and indeed confidence. I am very glad to see that, on page 30, the report reminds us that one of the essential actions of this House should be to make the Government think again, even against their will. Let us hope that all governments, including this one, will at least remember that phrase in this report.

The quotation from The Federalist Papers on page 28 warning against irregular passions seizing hold of the lower House--of course, The Federalist Papers concerned the lower house in the United States but the point was made in relation to what might happen in this country--seemed to me an appropriate quotation, though I regret that the report said the commission would not go that far.

As a very poor attender in this House and a very erratic "party man", I am very glad, despite what the noble Lord, Lord Jopling, said with such force, to see so many references to the value of part-time Members and to the idea that the influence of parties should be minimised, which is mentioned specifically on page 3 of the report. I am glad also to see that there is a reference to the desirability that those affiliated to parties should be commended if they vote on the merits of issues and exercise unfettered judgment.

Like most noble Lords, I like the idea--a very radical idea incidentally--that no one party should dominate this House. It is a very radical idea since it has never really been an aim of any government in the past. Equally, I approve the idea that everyone who is in this House should be treated equally however they have arrived here, as was always the case in the past. Hereditary Peers and life Peers all felt more or less equal when they where in this Chamber and that really should not be too difficult to arrange in future, even if there are some elected Members as well as nominated Members.

I support the commission's thinking that we ought to have a dedicated European Question Time, and I was also convinced by the commission's case against giving the House of Lords a special constitutional position. The evidence that the commission consulted other second chambers outside this country was comforting. Just as Palladio's architecture may be said to have greatly influenced the hereditary peerage in the 18th century, so it is very comforting to think that continental legislators may have helped the noble Lord, Lord Wakeham.

However, I have some minor criticisms and one or two larger ones. First, someone should point out that the photographs in the report are pointless where they are not lamentable, although perhaps the sight of

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where the Welsh Assembly meets is desirable since it is difficult to imagine an uglier legislative assembly in the world.

To place all the testimony and evidence on a CD-ROM is a step much too far towards modernisation. Why should there not be a publication at least of all the testimony and evidence put forward by Members of this House or the other place?

Naturally, as a historian, I believe that there should have been a historian on the committee. A political scientist in the shape of Professor King is not quite enough. I do not suppose that it is enough for the noble Lord, Lord St John, either. There should certainly be a historian on the appointments commission, if that is established. A historian might have avoided the commission thinking that in the past the regions of this kingdom were not properly represented. After all, what were the country MPs doing all those years ago?

I agree with my noble friend Lord Ezra that it would have been helpful if the commission had felt able, at least in passing, to touch on the possibility that in the future there may have to be some consideration of the constitutional position of the other place.

The commission applauds the Salisbury Convention but it might have stressed the reverse and pointed out that your Lordships should feel perfectly free to act as they wish if a Bill was introduced that was not anticipated in a manifesto in the previous election.

My more important complaints are that, first, the report does not dwell at all on the fact that one important role of this House which remains after the Parliament Act 1911 is a veto over any extension of the life of a Parliament proposed in another place. In my submission to the commission, I suggested that that provision should be strengthened by providing that the Law Lords must vote in favour of any such provision for it to be approved.

Generally, in my submission, I was in favour of a mixed House--some elected and some nominated--just as the commission decided. But I said in my submission--and I still stick to this idea--that the regionally elected Members should have a specific purpose; namely, to maintain the unity of the realm. Secondly, I thought that some consideration should be given to electing some Members to ensure the effective collaboration of this country with the European Union, assuming that we remain members of it.

If those purposes were laid down specifically, in a direct way, that might assist us in knowing what those new Members would be doing and might, perhaps, do something to satisfy my noble friend Lord Dahrendorf, who pointed out some of the weaknesses implicit in an election.

In my submission, I agreed that those Members might be elected at the same time as the European elections although I now think that, whatever the commission may say about the matter, it may very well be that we could reconsider some method of indirect election, as is done on many occasions on the Continent. Also, if those Members are able to find electorates ready to vote for them, I do not see why they should be limited to serving for 15 years.

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Like the noble Viscount, Lord Cranborne, I believe that half the Members--not a smaller proportion--should be elected. I really wonder whether it is right to assume so readily that a House of Lords so composed would so easily risk "gridlock". That word was used by the noble Baroness the Leader of the House and by the noble Baronesses, Lady Dean and Lady Young. The noble Lord, Lord St John, will correct me if I am wrong, but I believe that there was no consistent gridlock in the 19th century in this country when the two Chambers of Parliament were roughly equal. And there is not always gridlock in countries where there are two elected Chambers at the present time.

I turn from the elected Members to the nominated Members. How should those be properly decided? The Wakeham Commission report recommends that all such nominated Members would come here as a result of a nomination by a body of eight appointments commissioners who will choose people who are representative of the nation. That is obviously a much more complicated task than it seems when it is put as simply as that, as, indeed, the commission recognised. Yet, on page 3, it is stated that it was thought desirable to create a new category of people who would serve here. How extremely alarming that sounds. But I am not convinced that that has been thought through very carefully or whether the undesirability of that was realised.

For example, the report did not emphasise at all how much work is done in this House at present, or has always been done in this House, by people who have served in another place, either as Cabinet Ministers, junior Ministers or just as Members of Parliament. About one-quarter of the speakers here today, as your Lordships will be aware, were once Members of Parliament. In the admirable debate on foreign affairs introduced by the noble Lord, Lord Carrington, on 12th January, there were four former Foreign Secretaries and the debate included a very remarkable exchange between two of them.

Therefore, in that regard, I do not believe that the commission has thought as deeply as it might have done. I believe that the way ahead is slightly different. The commission said in one uncharacteristically ugly piece of prose that it is difficult to find a formal system of vocational or interest group representation. Yet it should not be too difficult to find a list of people who have occupied important, interesting, crucial or even just curious positions in British public life.

Of course, as the commission mentions on one or two occasions, minority ethnic or religious leaders should be welcomed much more than they have been in the past. But, all the same, it should be quite easy to work out a list of people who are not necessarily just the great and the good who would make good contributions here, as they have in the past. It is very easy to think of them--trade union leaders, vice-chancellors, headmasters, Nobel Prize winners, industrialists, leaders of small trade unions, ex-Cabinet Ministers and ex-Chiefs of Staff, without question. How many of us have not listened with

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admiration to speeches from such distinguished retired and gallant noble Lords in the past? We already have the Law Lords and the Bishops.

All that may seem to suggest a formalisation of what we already have. It might be criticised by some as being close to a corporate approach, but guidelines suggesting vocational origins would be extremely helpful. I do not see why the Prime Minister of the day should not be concerned, as are the rest of the Cabinet, with considering the guidelines. Prime Ministers have not been treated well in this debate, or indeed, in the report. But in the past they have often made interesting, unexpected and even eccentric nominations to this House. The requirement for a slice or two of eccentricity or the unexpected is something which an appointments commission, which is likely to be grave as well as good and great, might perhaps tend to overlook.

7.40 p.m.

Lord Norton of Louth: My Lords, as we have heard several times, the justification for having a second Chamber is that it contributes something to the political system. In other words, it adds value. If it replicates what the first Chamber does or fails to carry out the tasks ascribed to it, it is superfluous. If it conflicts regularly with the first Chamber, it is objectionable. What flows from that and is most appropriate to the United Kingdom is a second Chamber which is complementary to the first, fulfilling functions which are specific to or usefully filled by a second Chamber without challenging fundamentally the democratic legitimacy of the first.

The Royal Commission has done an invaluable job in identifying the functions of a second Chamber. Those functions build on the existing functions of this House, which is entirely appropriate and justifiable. Your Lordships' House adds value to the political process. It carries out functions which complement the first Chamber. Those roles are fulfilled well. In some respects they could be fulfilled better and there is a case, as the Royal Commission recognises, for expanding the House's roles.

For the moment, however, the important point is that the present second Chamber adds value to the political process. That can be demonstrated empirically, not least in terms of the legislative revision undertaken by your Lordships' House. It can be shown that this House is able to engage in dialogue--more often than not, constructive dialogue--with government. The value added by this House can be attributed in large measure to the nature of its composition and procedures. It derives from its recognised political inferiority to the elected Chamber; the experience and expertise of its life membership; its self-regulating procedure; the absence of a salary; and, equally importantly, the absence of a membership ambitious for government office.

This House adds value in a way which maintains the fundamental accountability of the political process. Elections to the House of Commons determine which party is to form the government. There is then one

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body--the party in government--responsible for public policy and one body answerable to the electors at the next election. Election day, in the words of Sir Karl Popper, constitutes Judgment Day. Once there is an elected second Chamber, the fundamental accountability of the political system is immediately or eventually destroyed. An elected second Chamber is unlikely to rest content with limited powers. Even if it has restricted powers, supporters of the decisions it takes will claim a legitimacy for it equal to that of the first Chamber.

Opponents of my argument, including the speaker who is to follow me, claim that an elected second Chamber is justified because it will be democratic. That does not follow. It follows only if one defines democracy solely in terms of process; that is, election. However, if democracy is defined as the translation of electors' wishes into legislative output, an elected second Chamber is not democratic. Indeed, one can envisage a situation in which it would be profoundly undemocratic, facilitating a stalemate preventing the popular will from being enacted. On that definition, the present arrangements provide for a democratic political system with the will of the electors being channelled clearly and unambiguously through a single elected Chamber.

We should, therefore, be working towards a second Chamber which builds on the strength of this House. That is the basic strength of the Royal Commission's report. I welcome the vast majority of its recommendations. I endorse wholeheartedly its proposals to extend the committee work of the House. That allows the House to play to its strengths.

I differ with the report principally in two respects. First, like many noble Lords, I do not accept the case for a part-elected element. In a part-elected Chamber, one would be creating in one House the relationship that presently exists between the two Houses; that is, an elected and politically superior Chamber and a non-elected and hence politically inferior Chamber. It is a recipe for instability, with votes being analysed in terms of who made the difference to the outcome: the elected or the non-elected Members? That situation will apply regardless of the size of the elected element. If one has a part-elected Chamber, then one is conceding a certain legitimacy to the part that is not elected; otherwise one would opt for a wholly elected chamber. So why have any elected element? Election of some Members would not only generate two tiers of Members, it would also generate pressures, not least for salaried full-time politicians, that would challenge some of the elements that contribute towards the present value of the second Chamber.

The claim that partial election would add some element of democratic authority to the Chamber is not sustainable when pitted alongside the disadvantages of partial election. Regional elections strike me as disasters waiting to happen. It is not so much a question of the candidates who would be drawn to them as the problem in terms of electors. What on earth would draw electors to the polls? For what would they be voting? I cannot see what incentive there is for

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electors to go to the polls to elect such people on a regional basis. Coming from Lincolnshire, I cannot see what incentive there would be to vote for people who would claim to be representing the East Midlands, a territory with which one feels no affinity at all.

I differ also from the report in its recommendations for an appointments commission. Under the report's recommendations, the appointments commission will be an extraordinarily powerful body--arguably too powerful. In my submission to the commission, I advocated instead the creation of two statutory appointments commissions. I believe that to do so would deal with the point raised by the noble Lord, Lord Ezra. One commission would deal with political nominees, allowing the parties to put forward their candidates for lists of working Peers. The other commission would comprise independent members and would be proactive in seeking nominations and putting forward names to the Crown. It would seek out those, in many walks of life, who have contributed to the life of the nation and who could contribute something to the work of this House.

The creation of two commissions is linked to a proposal that would prevent cronyism and do so without injecting an element of election. Under my proposal, there would be a link between the two appointment processes: for every nomination under the political route, there would be two under the independent, or non-political, route. That would prevent the Prime Minister of the day packing the second Chamber and, indeed, would constitute something of a deterrent to creating large numbers of Peers.

For reasons of time, I do not propose to develop the other points I made in my submission. Suffice it to say that I welcome the report of the Royal Commission. It has got it about right in 90 per cent of its analysis and recommendations. I differ from it principally, but not exclusively, in respect of the two points I have outlined. The fact that I have concentrated on those two points should not detract from the fact that the report is an excellent, thorough and, in most respects, compelling document.

I conclude by addressing the position of the Government. My own argument derives from an essentially Tory view of the British constitution. The second Chamber which I advocate fits squarely with the accountability fundamental to the Westminster system of government. I recognise that many who advocate an elected second Chamber do so on the basis of a liberal approach to the constitution. I do not endorse that approach, but I acknowledge that it is intellectually coherent. I can engage in debate with those who embrace that approach. However, it has been difficult to engage in debate with the Government because we have not known what approach they favour. We knew what they were against, but we did not know what they were for. Ministers regularly avoided answering my questions on what intellectually coherent approach to constitutional change they favoured.

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Today, the Leader of the House has revealed the stance taken by the Government which, in broad terms, is the report of the Royal Commission. In some respects, it appears that the Royal Commission may have done the Government's thinking for them. How does that fit with the Government's approach to constitutional change? The noble Baroness spoke of an evolutionary approach. As a Conservative I am perfectly happy with an evolutionary approach, but the Government's approach to other constitutional changes is not evolutionary. The Government have treated changes in a discrete manner, each unrelated to the other changes that they have introduced. That is a stance that is intellectually unacceptable and constitutionally dangerous.

Given that, I invite the noble and learned Lord the Attorney-General, in his reply, to explain how the Government's broad acceptance of the report of the Royal Commission fits in with their conception of constitutional change. What type of constitution do the Government want in place in, say, five or 10 years' time? The noble and learned Lord will respond to particular points, but I invite him to address the wider picture and tell us not only what the Government will do but also where they believe they are going.

7.51 p.m.

Lord Richard: My Lords, it is always a great pleasure to listen to the noble Lord, Lord Norton of Louth. Sometimes I understand him and I am happy to say that tonight is a good night. I followed most of his argument although he lost me a little on the democratic point. It seemed to emerge that, on his analysis, nominations are democratic and elections are not. That is not a proposition that we on the liberal wing of this argument would necessarily share.

I thank the noble Lord, Lord Wakeham, for the report that he and the Royal Commission have produced. They accomplished the task quickly and, within their terms of reference, they were thorough. It is a good and detailed analysis of the issues involved. Having said that, most noble Lords have gone on to express their reservations on parts of the report. Before I do that, I shall say one or two words about the parts of the report that I like.

First, I was pleased to see that there was a total rejection of indirect elections and of functional constituencies, a point made earlier by the noble Lord, Lord Hurd. Secondly, I was pleased that there was an acceptance of at least the principle of direct elections, so that some part of this second Chamber will be directly elected. In a sense, that was a slightly rudimentary proposal. I admire the skill of the noble Lord, Lord Wakeham, in achieving a unanimous report. One way of achieving that is not to ask for a decision or a conclusion but to express three options on the type of democratic result sought. One was for 65 elected Members; the second was for 87; the third was for 195; and then the noble Lord said that the majority of the Royal Commission seemed to favour 87, so the Royal Commission was not totally unanimous on that part of the exercise.

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I welcome also what the report said about the proposed extensions of the role of your Lordships' House, of the constitutional committee, the human rights committee and the treaties committee. Those proposals all seem sensible. I also believe that the proposal made in the report with regard to delegated legislation is one that deserves serious consideration. I have certain problems with the way in which it is proposed that this House would deal with delegated legislation, but I am coming to accept the principle that there may be a case for letting the other place reconsider statutory instruments.

So far I have little quarrel with the report, but we must start by asking ourselves what is the aim of the whole exercise. What are we trying to create? Surely we are trying to create an effective second Chamber. For a second Chamber to be effective it seems to me that, first, it must be composed differently from the first Chamber; secondly, it must enjoy sufficient powers to require a government to think again; and, thirdly, and crucially, it must have sufficient legitimacy in the eyes of the public so that it can use those powers.

I believe most people would agree that the House of Lords must be different from the House of Commons. I entirely agree that it should have different powers and a different composition. I agree that it must have clearly defined and sufficient powers in order to carry out its job. I also agree that it must have public legitimacy, but how does one obtain that public legitimacy?

On that point, it seems to me that there are two alternatives. Members are either elected or appointed. Either way one runs into great problems. If the House were to be wholly elected, we should lose the independence and expertise of the Cross-Benchers and we should risk future problems with the other place. If the Members are appointed, the legitimacy of the House will be considerably weakened and it will continue to be questioned. The obvious answer is a combination of the two: a percentage that is elected and a percentage that is nominated. By a somewhat tortuous route, that was the conclusion reached by the Royal Commission.

The House will know that I favour a two-thirds: one-third split: two-thirds of the House being directly elected and one-third being nominated, with the nominated portion being the Cross-Benchers. I believe that the noble Lord, Lord Thomas of Swynnerton, read out a list of the types of people who may be available to become Members of the second Chamber. In my view, most of those should be nominated and most should sit on the Cross Benches. I believe that one of the distinguishing features of the reformed House, and one that would distinguish it from the other place, is the fact that one-third of its Members would be nominated and genuinely independent, unlike the mock independence that was sometimes claimed for the previous Chamber. They would be genuinely distinguished and therefore genuinely able to bring their expertise and distinction to bear.

It is quite clear that the Royal Commission was conscious of not upsetting the House of Commons. Therefore, it would not support a majority elected

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House. It is equally clear that it did not want a House that was predominantly nominated by the Prime Minister. So there are two alternatives, neither of which the Royal Commission seems to find acceptable.

To fill that gap, the Royal Commission proposed an appointments commission that would remove the power of nomination from the Prime Minister and from the political parties. That independent commission would, as I understand it, appoint for a 15-year term those Members whose terms could be renewable by the appointments commission itself. Existing life Peers would remain, but they would be reminded, as the report delicately puts it, of their right not to attend. To me that is a slightly fanciful proposition. Most life Peers have visions of trotting in to the House of Lords in their mid-80s with their zimmerframes in order to participate in the affairs of the nation. It may be that some would like to be reminded of their right not to attend, but I suspect that they would be a minority.

The flaw in the proposition of an appointments commission is that it is highly unlikely, to put it at its lowest, that any government would accept an independent appointments commission of such comprehensiveness and independence. That would involve a renunciation of patronage by the government of the day and the acceptance by that government that, however popular they may be in the country, they can no longer control the composition of the second Chamber in the way in which they could previously.

It is all very well to have guidelines, and I am all in favour of them. It is said that 20 per cent of the Members should be Cross-Benchers. I do not feel that that is enough. It is said that at least 30 per cent should be women and 30 per cent should be men. Somebody said to me when that was said, "What about the other 40 per cent?". Then the guidelines in the report say,


    "The Appointments Commission would be required to secure an overall political balance matching the political opinion of the country as a whole, as expressed in votes cast at the most recent general election",

no party to have an overall majority.

What does that mean and what is it asking governments to accept? First, it is asking governments to accept that an independent commission should be responsible for securing an overall political balance. That is an extremely doubtful proposition. Secondly, it is accepting a mechanism whereby when governments change, there will be an almost automatic ratchet effect. The Royal Commission obviously thought of that because the one thing that is missing in its report is any cap on the size of the second Chamber. If we had a succession of general elections at which there were changes at fairly short intervals, the ratchet effect on the membership of this House would mean that it would be far too over-populated and far too unwieldy.

The Royal Commission dealt with the problem of lack of legitimacy by seeking to use the independence of the appointments commission as justifying a system of appointment and not election. It is a very British approach in which we say, "Do not bother too much

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about this. Trust the appointments commission to do democracy's job for it". That is really not very good. I see the noble Lord, Lord Hurd, getting restless.


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