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When faced with these large issues, the smaller ones in the Bill look like window-dressing. The sideswipe against the 92 remaining hereditaries looks like a desperate attempt to achieve one last old Labour objective before new Labour runs out of steam. It breaks the undertaking that was given. The public perception of why your Lordships' House is so full is because over the past 10 years the Government have sent more people to this Chamber than other Governments in the same timeframe, unless I am much mistaken. The noises off that were made about the Act of Settlement are just that: noises off. Since the unsuccessful amendment was proposed by a Member who believes in neither God nor the monarchy, his plea for the sovereign's religious liberty rings a little hollow. Questions have also been raised about the disciplinary process for those who occupy these Benches. I assure the House that the reasons why there might be a different system for Bishops are because, technically, we are not Peers and because we have our own internal disciplinary system.
The one remaining point of great interest to many in the church concerns the possibility of alternative voting systems. Seven years ago, the General Synod of the Church of England voted by a massive majority to advocate proportional representation by single transferable vote. Many of my fellow Bishops have campaigned for this. I am myself very open to it. The discussion needs to be had. However, there is an oddity about holding a referendum on such a topic. Why will there be only two options? Will it be a first past the post referendum? If so, will those who do not like first past the post be acting against their conscience if they vote in the referendum? There is something curiously twisted and peculiar about that.
I end by re-emphasising the two basic points. First, any and all constitutional reforms should be undertaken only in the light of a full top-to-bottom constitutional review. Secondly, elected politicians are the last people who ought to be in charge of such a review, whether or not they are in washing-up mode. If there is an argument
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4.45 pm
Lord Howarth of Newport: My Lords, this grandly entitled Constitutional Reform and Governance Bill might perhaps better have been entitled the Constitutional (Miscellaneous Provisions) Bill. It deals with too many topics and has nearly doubled in size since it was introduced into the House of Commons. However, if the pudding lacks a theme we can, all the same, put in our fingers and pull out some plums. It is to the credit of the Government that, 150 years after the Northcote-Trevelyan report, they are legislating to place the Civil Service on a statutory footing. Indeed, it may make the Lord Chancellor seem to be acting in indecent haste if, as my noble friend promised, he very shortly brings forward proposals for an elected House after a mere 100 years since it was first proposed.
I trust that it is not too late to rescue the integrity of the Civil Service and the public service ethos. We have had 30 years in which Permanent Secretaries were to be "one of us"; in which Ministers were told that they should get their hands on management and delivery of policy; in which we have had wholesale marketisation of public services. We now have the antics of the Public and Commercial Services Union. And we have had the proliferation of special advisers.
A statutory code of practice for special advisers is long overdue. We can understand that a Minister might want a special adviser-someone to let his hair down with, to do the party stuff-but there are many too many of them. They get between Ministers and their civil servants; they get between Secretaries of State and their junior Ministers. They are neither elected nor appointed through a proper Civil Service process-indeed, under the legislation, they would be specifically excluded from the requirement of appointment on merit-and yet they exercise very considerable power, particularly as a cabal across Whitehall. They inject party politics and interest into too many decisions-that has been true of Governments of both parties-and they spin obsessively, intensifying the unhealthy symbiosis of Ministers and the media. We need a code of conduct, but we also need a strict limit on the numbers of special advisers. I suggest that one per department would be enough.
I support a referendum on the voting system. It is right to seek the judgment and authority of the people if the rules by which Members of Parliament are elected are to be changed. It is also right to improve the regulation of referendums. It seems reasonable to suppose that the widespread disaffection with our politics and poor turnout at elections have something to do with people's perception that their votes are wasted. Now, with campaigning increasingly targeted on a small handful of swing voters and the decline of door-to-door canvassing, I suspect that that perception is deepening. Whether or not the use of social networking techniques in the forthcoming election will change that, I do not know.
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A merit of the alternative vote system would be that if people felt that their second, third or fourth preference might affect the outcome they would be encouraged to vote. As has been noted, it also has the virtue that it keeps the single-Member constituency. I am afraid that it would not necessarily follow from that that modern Members of Parliament will remember that their first duty is as parliamentarians in the House of Commons. The single-Member constituency is a particularly important influence on Ministers, requiring them, as it does, to touch base in the lives of the people that they govern. AV avoids the anti-democratic feature of proportional representation-that it provides disproportionate power to a minority of Members of Parliament. Would it have unforeseen consequences? Almost certainly-including that voters would find themselves electing a person that none of them actually wanted. However, this is worth a proper debate and it is right to give the people the choice about it. Of course, if at the forthcoming general election we have a high turn-out and a convincing result, the people may decide to keep first past the post.
The establishment of the Independent Parliamentary Standards Authority was a terrible admission by those elected to govern us that they cannot be trusted to govern themselves. Members of Parliament were bounced into this by party leaders in a panic, and reached the conclusion that they did in a fit of guilt and depression. If ever a piece of legislation was hasty and botched, it was the Parliamentary Standards Act 2009. This legislation on the IPSA is hasty; will it be equally botched? But is it for us to save the House of Commons from themselves?
I insist that the huge majority of Members of Parliament are motivated by the public good. That, of course, is the opposite impression to that created by the media. The journalists were right to expose abuse, but they were wrong to binge on destroying respect for Members of Parliament, and they have wrought deep damage to our political culture. Both Houses should punish abusers and reform their systems, but Parliament should not lose its nerve. I very much hope that this House will have the self-respect and self-confidence to retain responsibility for its own affairs.
I support the reforms to the House of Lords proposed in the Bill, which are based on the work of the noble Lords, Lord Norton of Louth, and Lord Steel of Aikwood, and to which some of us have also made a modest contribution. In modern Britain there can be no justification for the hereditary principle for membership of the legislature. But what is proposed in the Bill is not the expulsion of the hereditaries; it is a much more civilised proposal-if the work of the grim reaper can be called civilised.
I agree with the proposals on discipline-for suspension and expulsion-and with the proposal that Members of Parliament and Peers should be deemed "ordinarily resident and domiciled" in the UK for their tax status. I agree with the noble Baroness, Lady D'Souza, that the retirement provisions are urgent. This House is bursting at the seams and it will always need to welcome new blood. I support the amendment in the name of the noble Lord, Lord Steel, regretting the omission in the Bill of a provision for a statutory appointments commission. If this House is to continue to be appointed
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These proposals for reform of your Lordships' House have been extensively debated in this House and I believe that they enjoy the support of a large majority of your Lordships. There would not be much point in introducing these measures if an ill judged and bitterly controversial proposal to create an elected second Chamber in place of your Lordships' House were to pass. However, I do not think that such a proposal, while it may or may not be a useful electioneering gesture, will stand up to scrutiny or pass in due course.
Will the provisions for audited public expenditure strengthen the Public Accounts Committee of the House of Commons? The answer is uncertain, and it is one illustration of the need for close examination of the measures in the Bill. The limitation of that admirable committee is that it looks at matters of public expenditure only after the event, after the unsatisfactory event when something has gone wrong. It is the unique responsibility of the House of Commons to grant or withhold supply. Select Committees of the House of Commons should invigilate departmental spending and performance. Will the new Select Committees in a new House of Commons, elected after a new fashion, take that responsibility more seriously? I am not confident that they will, but if better information is available through more transparent financial reporting they will have less excuse for giving the Government an easy ride.
There are good plums in the Bill. It deals with major issues, but we are, as has been said, in a dilemma. The Select Committee of your Lordships' House has provided us with a most useful history of the legislation to date and a description of the process which has been unsatisfactory in important respects. It is the duty of your Lordships' House always to be sceptical about proposals for constitutional reform-not to be prejudiced against them, but to examine them rigorously. There is an all-too-fashionable illusion that constitutional reform will cure the malaise of our politics and our governance. No mechanisms or institutional tricks will ensure a flourishing democracy. For that, we need well judged policies and courageous and inspiring leadership.
We who are parliamentarians hold the constitution in trust. It is not the plaything of think tanks or a consolation prize for Ministers who dart from one brainwave to another and one press briefing to another like March hares. Constitutional change should not be proposed casually, enthusiastically, on a basis of checklists or opportunistically. It should not be considered hastily or superficially but on the basis of thorough and impartial thought. The British constitution of course changes and develops in response to experience and to demonstrable practical need, but constitutional change needs to be absorbed and tested phase by phase.
We are privileged to be Peers for life. In the field of constitutional reform, we have a particular responsibility to lay aside all prejudices and partial affections, to safeguard the spirit of the constitution and to advise when proposals are not thought through and fail to
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4.56 pm
Lord Howe of Aberavon: My Lords, I endorse immediately the closing sentence of the noble Lord, Lord Howarth. The question of wash-up or not has come up a number of times. It is inconceivable that legislation in this state should be dealt with by wash-up.
It is ironic to reflect that the Lord Chancellor, opening the debate on the Bill in the other place, said:
"In 1997, the Government embarked upon an unprecedented programme of constitutional reform".-[Official Report, Commons, 20/10/09; col. 799.]
If ever a sentence was misleading, that was it. It suggested a calm consideration, now 12 years ago, with the agenda having been quietly laid out. One has only to put the sentence alongside a remark, already quoted, of the Constitution Committee of this House:
"This is no way to undertake the task of constitutional reform".
On that much, there must surely be total agreement. If ever there was something that did not need to be washed and that would be damaged severely if it went through the wash-up, it would be a Bill of this kind.
How should one tackle these proposals? We have heard a number of suggestions put forward by colleagues already. Nobody here so far, I think, has said, "Well, isn't it time we had a really complete examination of everything?". Some think tanks have already said that it is clear that we need a written constitution. It is presented as somewhere where we could resolve all the difficulties, knit them all together and at last solve everything with a clean, clear written constitution. I suggest that anyone advocating that course should have a quick word with the noble Lord, Lord Kerr of Kinlochard, who spent some of the best years of his life confronted by the attempt to establish a constitution of the European Union. I had a similar, but much more humble, experience together with the noble Baroness, Lady Williams. We were both on the advisory council of the Supreme Rada of Ukraine when it had disintegrated and been reborn. We were seeking to advise it on how to create its constitution. We had a free hand, because there was nothing to obstruct us. It had not had such a thing, or, if it had, we did not know anything about it. Everyone who has attempted to create a constitution in that way is faltering and barking up the wrong tree.
The question is better answered by saying that these matters must be considered step by step, although not necessarily one by one. If we look at the history of the past 20 years, we see that some of the important steps taken have created a new arrangement that has turned out to be right. They were not taken all at the same time. For example, the invention of life Peers opened a
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It is worth noticing that some of the most sensible changes-not just in this constitutional area, but elsewhere as well-have been made and can be made by convention. Sometimes we are driven to seek specific provisions to define situations precisely and closely. The Joint Committee under the chairmanship of the noble Lord, Lord Cunningham, addressed the conventions regulating relations between the two Houses in great detail and set them out in clear form. It also addressed the question of whether they should be codified and put into statutory form. That was rejected. Conventions have a value and should not be scorned.
In two areas that have been touched on, conventions have a real part to play. One is in defining the role and management of the office of Attorney-General; the other is in handling the office of Lord Chancellor. Both those institutions are best handled not by seeking to codify how they behave, either separately or in relation to each other. I will come back to that in a second.
We seem to be permanently dogged by the question of nomination or election-one or the other, or both. If one looks at the Bill as it now stands, there is a curious contrast. In the part dealing with this House, there are five separate provisions about the way in which people may leave the House but only one about their arrival in the House, which is an odd structure. What is missing is the proposal made by the noble Lord, Lord Steel. Clearly, if the House is to have any appointed Members-and that would seem to be, if not universally accepted, very widely accepted-we need an institution of that kind. The question still remains. If we accept the Steel skeleton as it is embodied in the Bill and if we include the amendment that he proposes, that is a sensible way to go. However, we are still left to look at this recurrent, emotional enthusiasm that lies behind the concept of an elected second Chamber.
The experience of the last few years shows the number of pitfalls in the management of our electoral system. The collapse of confidence in the elected House-not entirely excluding us-shows that election is not regarded by many people as the best and most secure way of creating Members of this House. It is interesting to look back at the comments made by bodies that looked at this question carefully. A number of colleagues have spoken sympathetically about the Wakeham commission report, which certainly deserves commendation and re-examination. On the election question, it made this observation. Elections, it said,
- "seldom deliver results which are gender-balanced, or provide appropriate representation for ethnic, religious or other minorities".
- "unlikely to produce members who are able to speak directly for the voluntary sector, the professions, cultural and sporting interests and a whole range of other aspects of society".
The truth of that is scarcely arguable; it comes from a detached and objective scrutiny body. Alongside that, however, the Public Administration Committee of the
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- "to ensure that the dominance of Parliament by the Executive, including the political Party machines, is reduced and not increased".
That is objective 1-reduction, not increase, of the dominance of Parliament by the party machine. Secondly, the second Chamber must be,
and, therefore, as different as possible. Those two propositions come not from this House but from the other place, describing how this House should be composed. One can start from that premise and seek one way or another. It may take some time to find agreement on this crucial issue. We have been able in a number of contexts to find agreement, but this is a fundamental that needs to be addressed again. Certainly, we need to have the additional provision put forward by the noble Lord, Lord Steel.
What about some of the other provisions, which have not really been addressed so far, on the offices of Lord Chancellor and Attorney-General? Both of those have a most important part to play on the line between law and politics and on the maintenance of mutual confidence between the two. Their existence is not incompatible with the separation of powers and their relationship is shaped by convention. The Attorney-General's office has been considered in the procedures that have taken place so far without any conclusions having yet been reached. I still have some modest memory of my two years as Solicitor-General, serving with the late Peter Rawlinson as Attorney-General, who had a clear insight into the nature of the office.
It is clear that the office of Attorney-General requires to earn the respect of professional and legal institutions and the respect and understanding of the parliamentary institutions. Therefore, that office should go to someone holding merits in both those categories and, ideally, serving in the other place. He or she should certainly be of Cabinet rank, although certainly not-and nobody argues with this-a member of the Cabinet. There has been some collapse in the convention about whether he or she should attend Cabinet. The convention was that he did not go to the Cabinet as a matter of course but went on invitation to discuss particular issues. I occasionally had to argue with some difficulty with the Lord Chancellor, who often had a view of his own. Nevertheless, the Attorney-General was the man of authority invited to present his conclusions on those issues. That is the position that should be maintained. In the past year, we have had the pattern of the Attorney-General sitting in regularly in the Cabinet, which has not been a satisfactory state of affairs. It is the kind of thing that can be resolved by looking at, establishing and maintaining a convention. If we should try to spell that out in statute, taking account of all the nuances, who knows where parliamentary counsel might take us?
The other issue is with the Lord Chancellorship. The disappearance of that office in the form that we knew it has been one of the most serious mistakes made in the progress of rather reckless constitutional amendment. The noble Lord pointed out that the
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For that office to have been altered by the removal of the obligation to sit upon the Chair in this House, I can well understand. That worked quite well while it was there, but it was not necessary. For the Lord Chancellor to be in a position to preside over the Supreme Court also was open to criticism, even if he did not consider cases that involved the Government in any way at all. It was an institution that worked in that way and played a crucial part in managing potential conflicts between the Executive and the judiciary.
The relationship between the Lord Chancellor and the Lord Chief Justice was well understood and regulated by convention. As soon as that relationship was removed, the poor Lord Chief Justice had immediately to expand his office and the situation changed fundamentally. I would argue that those sorts of institutions could be well governed by reference to convention, along the lines that I have suggested, and that we need to come back, not in a desperate search to cram it all into this dish just waiting to go into the dishwashing machine, but thinking carefully about the way forward. We have not made significant changes, in many respects. Most of the changes in the so-called Steel Bill and many of the changes in the Bill before us need to be considered in an orderly and well considered fashion.
I shall close by referring, although not out of any sense of frivolity, to one curious feature. The legal committee of the Council of Europe addressed itself at some length some years ago to the legitimacy of our constitution-both of the Lord Chancellorship and of the marriage between the Supreme Court and the legislature. It concluded that they were not compatible with the separation of the three principles on the Montesquieu line. It is rather interesting to see the way in which the committee expressed its conclusion. It said that the unusual aspect of the Lord Chancellor's position,
- "is due to the specific conditions of the United Kingdom constitutional system, which has evolved over centuries without the beneficial modernisation introduced by the French Revolution, the effects of which were disseminated in the rest of Europe by Enlightenment thinking and the conquests of Napoleon".
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One can hardly contemplate a less respectable source of enthusiasm for changing the office of the Lord Chancellor than a reference to Enlightenment thinking and the conquests of Napoleon. Any attempt to remove the office that was motivated by that would be profoundly misguided.
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