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Finally, reference has been made to Erskine May but, for all its strengths as a document and a tome on parliamentary procedure, it is not a constitutional document. It is a treatise on law, privileges, proceedings and usage of Parliament. That is made very clear in the alternative report. Ultimately, I hope that reform will not be based on the views of this House. I hope that it will come from where it should start, the Commons, and that, if the Commons makes that decision, we will give it our support.

5.15 pm

Lord Willoughby de Broke: My Lords, I am grateful to the noble Lord, Lord Richard, and members of the committee for their report, but more particularly I am grateful to the members of the committee that produced the excellent alternative report. The noble Lord, Lord Ashdown, said that democracy is in trouble or danger, I think because of the lack of power, or the weaknesses, of this House. I should like to say to him that democracy and Parliament are in trouble because, over the years, we have given away so many powers to the European Union. That is why our democracy is in danger. It is not because of any shortcomings of this House. Perhaps

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I may remind your Lordships that, over the years I have been here, we have largely neutered Parliament by giving away powers of immigration, employment, social policy, trade, agriculture, fisheries and energy-to name just the most obvious.

I recently asked a Question for Written Answer about the Budget put forward by the Government when they said that they were going to increase the price of alcohol in supermarkets. I asked,

The Written Answer given by the noble Lord, Lord Henley, was:

"The Government are currently in discussions with the EU Commission on this issue".-[Official Report, 23/4/12; col. WA 292.]

That is where we have got to. Parliament, whether it is the House of Commons or this House, cannot even decide the price of drink in this country without going to members of the Commission in Brussels to tell us what we can or cannot do.

Before putting my name down to speak, I asked myself why there is all the fuss. Arguing about the reform of the Lords sometimes seems like two bald men arguing over a comb. It is just not worth it. Then I reminded myself that, over the past two years, all recent opinion polls have shown that a great majority of the people of this country want a referendum on our membership of the European Union. I was also encouraged by a poll in the Sunthe other day that showed that UKIP has recently overtaken the Liberal Democrats as the third most popular party in the country. After people in this country have been given the right to vote in a referendum on membership of the EU, Parliament will get its powers back. Therefore, discussing the reform of the House of Lords is valuable, and I am delighted that we have the opportunity to do so today.

I am more attracted by the alternative report than by the Joint Committee's report. I do not think that the alternative report should be spoken of as a minority report. Looking at the figures, it seems that, excluding the chairman, the alternative report was produced by exactly half the members of the committee; so it has, to my mind at least, at least equal validity with that of the main committee. I am quite surprised that some of those who produced the alternative report felt able to sign the committee's report at all, given the list in the alternative report of the fundamental areas on which they differed from the committee's report.

On page 33, the report lists:

"Primacy ... Electoral mandate ... Powers ... Electoral democracy ... Constituency issues ... Funding limits ... Ministerial voting ... Transition".

On all these points the alternative report argues persuasively against the conclusions of the committee. I hope very much that we will not have to waste a lot of valuable time vetting the Deputy Prime Minister's Bill, but if we do, this House owes a vote of thanks to the members of the committee who produced the alternative report-the noble Baroness, Lady Symons, and others-who have given a lot of time to producing this valuable document. I support its conclusions and

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the recommendations for incremental reform based on the Bill of the noble Lord, Lord Steel, and for the establishment of,

In preparing for this debate, I looked back to the 1911 debate in this House on the introduction of the Parliament Act, which was held on 10 August 1911, two days before the beginning of the grouse-shooting season. My grandfather led the opposition to that Bill as leader of the so-called "die-hards" or "last ditchers". I realise of course that the noble Baroness, Lady Symons, the noble Lord, Lord Norton, and the others who produced the alternative report would baulk or recoil at the thought of being called "last ditchers" or "die-hards", but I hope the one thing they will share with my grandfather is the conviction to stand up for their beliefs. I will certainly stand with them if the battle is ever joined.

5.21 pm

Lord Cormack: My Lords, I am delighted to follow the noble Lord, Lord Willoughby de Broke, for two reasons. One is that he very properly paid a compliment to the alternative report, and-in declaring an interest as the co-chairman of the Campaign for an Effective Second Chamber, to which the noble Earl, Lord Sandwich, referred-I can say that, from moneys subscribed by Members of your Lordships' House and coming from nowhere else, we have been able to fund the publication in a permanent form of this admirable document. There are copies in the Cloakroom, the Library and all the Whips' offices, and any Member of the House who has difficulty in obtaining one has only to ask me or the noble Baroness, Lady Symons, and it will be presented to them; in her case, it will be autographed.

The other reason I am delighted to follow the noble Lord, Lord Willoughby de Broke, is this. He referred to the part his grandfather played in those momentous days in 1911. That gives me an opportunity to remind your Lordships' House that we often talk as if nothing has happened since then. How ridiculous that is. This House has altered more during the reign of Her Gracious Majesty Queen Elizabeth II than almost any other institution in this country. When the Queen came to the throne, there were no women in this House, and there were no life Peers. I remind your Lordships that it was a Conservative Government who produced the legislation which led to the advent of women Peers and life Peers.

Then we had that other momentous change at a time when I was privileged to lead on constitutional affairs in another place, when the Government of Mr Blair decided on a mass expulsion of hereditary Peers. I was unhappy about the way that was done, but it has altered your Lordships' House beyond recognition. I might say in parenthesis that if the noble Baroness, Lady Thatcher, when she was Prime Minister, had only accepted a Bill I introduced in another place in 1984 which would have cut down the number of hereditary Peers-they would have elected so many of their number at the beginning of each Parliament-we might not have had the traumas of 1997 to 1999, but that is another story.



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We are now debating the report of the noble Lord, Lord Richard, on the draft Bill that was produced by the Government almost a year ago. We all owe the noble Lord and his colleagues on the committee a great debt of gratitude. However, he very honestly said that his committee was constrained, dealing not with a clean sheet of paper but with a draft Bill. He decreed, quite rightly, that that was what they had to concentrate on, which is one reason why the noble Baroness, Lady Symons, and others decided that they wanted to produce a more far-reaching report, for which we are very much in their debt.

That the noble Lord, Lord Richard, and his committee were very constrained was underlined by my noble friend Lord Norton of Louth, who talked about going back to first principles. The committee had no opportunity to do that. It was dealing with a document and a premise that were essentially flawed-the premise that you could maintain the supremacy of the House of Commons if you had two elected Chambers. The committee of the noble Lord, Lord Richard, drove a coach and horses through Clause 2 and made it quite plain that that just was not the case.

One therefore has to face up to the question of what the relationship between the two Houses is to be. Here again was the flawed premise, because, in constitutional matters, form should follow function. That is why the noble Baroness has suggested in the report that she and her colleagues have produced that there should be a constitutional convention to look at first principles, to look at function and then to determine form. We are asked to agree to form without regard to function, which is wrong. It is illustrated particularly in that-I must choose my words with moderation and care; I would have said "fatuous"-strange proposal that there should be a hybrid House.

What happens in a hybrid House if you have 20 per cent of the Members appointed and the others elected? You have two categories, two classes, of Member. As the noble Lord, Lord Kerr, pointed out at a meeting that I attended only last week-and I made the point in my own evidence to the committee-if you have a situation where the non-elected 20 per cent carry the day, you have the makings of a constitutional crisis if the Bill is important. If you recognised the validity of that proposition and therefore had a 100 per cent elected House, you would do away at a stroke with that valuable ingredient in your Lordships' House to which the noble Baroness, Lady Knight of Collingtree, referred in her intervention: independence.

I sat at the other end of the corridor for 40 years. During the whole of that time, we had virtually no independent Members elected to the House of Commons. There were those who bore the label, but it was either because there had been some constituency spat-sometimes within the political party concerned, as in one of the Welsh seats; I think that it was Ebbw Vale-or because there had been a local issue such as Wyre Forest and the Kidderminster hospital, but there was no phalanx of independent Members. So even if those who are here because of their illustrious careers in the Foreign Service, the Civil Service and all the rest of it sought to stand for election, which many of them would believe was not the right and proper thing to do in a political contest, they would not get here anyhow.



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What if one values a House with an independent group of experts? As I speak now, I look across and see the noble and learned Lord, Lord Morris-our experts do not all sit on the Cross Benches. The noble Lord, Lord Winston, informs every debate in which he takes part in this House with his superb knowledge. I may not always agree with what he says, but, by Jove, he enriches the place by his presence. You would not get that in the sort of assembly that would result from a cobbled-together Bill such as we are now threatened with, and I hope that it will not come to pass.

In her speech, the noble Baroness, Lady Scott of Needham Market, said that we were suffering from wear and tear-some of us more than others perhaps. But she is completely right. This House needs reform. However, as others have pointed out, there is a Bill, the so-called Steel Bill, which addresses most if not all of these issues and on which I believe that it would be possible to have consensus. We could reform this House in a way that would be acceptable and much less expensive than the elected House with which we are now threatened. I urge the Government to consider it very carefully and consider the convention suggested by the noble Baroness, Lady Symons. It merits serious and sympathetic consideration.

We are talking about the British constitution. We are not talking about something that should be the plaything of any particular political personality or something that should be regarded, as someone said, as the glue that holds the coalition together. We are talking about the future of our country and there are other things that could be done in the future. The noble Lord, Lord Low of Dalston, who will address us shortly, has an idea for electoral colleges, which he will explain, which has some merit and is worth serious consideration and debate.

I end on this note. I have two points. When he gave evidence to the Joint Committee, the Clerk of the House of Commons said that at the moment the House of Commons and the House of Lords are complementary to each other. If we had two elected Chambers, they would be in competition with each other. If we are to move to that undesirable state, surely the people must have the ultimate decision. How fatuous to wave the flag of democracy but say, "You can't have a vote on it". That is the ultimate insult to the British people, and up with that we should not put.

5.32 pm

Lord Grenfell: My Lords, it is a pleasure to follow the noble Lord, Lord Cormack. The congruence of our views on Lords reform are long-standing and determined-and as a long-standing and determined opponent of an elected second Chamber, I have difficulty with many of the conclusions and recommendations in this report. However, that in no way diminishes my admiration for the extraordinary achievement of the Joint Committee and its chairman, my noble friend Lord Richard. The fruits of nine months' hard work are impressive. As a piece of pre-legislative scrutiny, it fulfils the requirements of rigour, comprehensiveness, focus, careful argument and a clarity that contrasts

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starkly with the draft Bill and the White Paper into which it inquired. I would not be surprised if the two hefty volumes of oral and written evidence stand for a long time as the best repository of informed opinion on this hugely important constitutional issue.

The immediate conclusion that I draw from reading the report is that the draft Bill as a vehicle for reforming your Lordships' House is not fit for purpose. As the emergence of a well-reasoned alternative report confirms, the conclusions and the recommendations reached by a bare majority of the committee members reflect a glaring lack of consensus. In short, the draft Bill will just not do. It is obvious from the start, as many have pointed out, that it is fatally flawed. The absurdity of the assertions made in Clause 2 relating to the preservation of the primacy of the House of Commons undermines the very premise on which the drafters of this Bill sought to build their case for an all or partially elected Chamber.

To me, the logic is that, in the face of this total lack of consensus on how to proceed, we should not proceed on the basis of the draft Bill, the White Paper or the recommendations of the report before us. Has not the Prime Minister told us more than once that reform of this House must be achieved by consensus? Or has he changed his mind? Am I naive in suggesting that the Government's threat to use the Parliament Act makes an utter nonsense of his call to reform by consensus? Or-as the noble Lord the Leader of the House intimated earlier-does he intend to exclude the opinion of your Lordships' House from such a consensus? To my mind, that would be outrageous. That said, I could scarcely blame the Prime Minister if he has changed his mind, since it must now be blindingly obvious even to him that consensus is unreachable on any reform remotely resembling that so dear to the heart of his Deputy Prime Minister. He has only to listen to a substantial bloc of his own Commons Back-Benchers to recognise that.

In preparing a necessarily short speech I had difficulty in deciding on which of the report's many arguments, conclusions, options and recommendations I might focus. So, mindful that there are more debates to come in the new Session, I decided to focus on the overall message that I received from a first reading of this report. I recognise that others will have received a different message, but the message to me is that if the coalition is still hell-bent on abolishing this House and replacing it with an all or partially elected Senate, it will have to go back to the drawing board.

But not just any drawing board. Because the Joint Committee, by its mandate, was restricted to the examination of those subjects covered by the draft Bill and the White Paper, it had insufficient scope for the kind of broad consideration of the functions and powers of bothHouses, without which the contribution of a reform of the Lords to the enhancement of government simply cannot be devised. The authors of the alternative report state that while they agree with the findings of the Joint Committee's report as a whole, the content and constitutional significance of the draft Bill needs consideration in a much broader context. That, they claim, is best achieved through a constitutional convention, which would consider the

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next steps on further Lords reform and any consequential impact on the Commons and on Parliament as a whole. That surely is the right way to go, and I warmly support it.

Of course defenders of the draft Bill, or of a hastily amended version of it, will cry, "Delaying tactics!". So be it. The Government have had their chance and have blown it with this deeply flawed draft Bill. They now have no right to impede the efforts of those committed to finding, through a truly fit-for-purpose mechanism, a more comprehensive and workable solution.

I end with three short points. First, I deplore the petty-mindedness of the Government in their attitude to the Bill brought forward by the noble Lord, Lord Steel of Aikwood. They cry, "There is really nothing in it", as if it was not on the Conservative Benches here that the evisceration of the Bill was plotted. How cynical can you get? I hope that rumours that there may be some second thinking on that are well-founded.

My penultimate point: whatever the method used in a further attempt at consensus-through a constitutional convention, as I would plead; or without one, which I would strongly warn against-the resulting agreement, if any, must, imperatively, be put to the people for approval through a referendum. It is far too significant a constitutional matter to be decided otherwise. Let me be blunt about this. The Government are opposing a referendum for short-term political advantage, not for the long-term betterment of government, which is what the people deserve and on which their voice should be heard.

My third and final point: how on earth could the coalition Government get the ordering of their priorities so wrong? Is it not absurd that the Prime Minister should bow to his deputy's insistence that Parliament invite upon itself a lengthy and acrimonious period of legislation on an issue that strikes no chord with a public who are rightly demanding that the Government and Parliament focus urgently on the double-dip recession, on unemployment, on housing, on schools, on health, on welfare, on pensions, on the Scottish question and a host of other life-changing concerns? It is our duty to make the Government think again.

5.39 pm

Lord Low of Dalston: My Lords, it is a privilege to follow such a weighty and impressive speech. First, I congratulate the noble Lord, Lord Richard, and his committee on having produced a comprehensive analysis of the issues and arguments in, all things considered, a remarkably short space of time given the amount of work undertaken. It will be an invaluable resource in the debates to come. I also congratulate the authors of the alternative report on having produced a trenchant critique and a number of valuable ideas that represent a constructive contribution to taking the debate forward.

I will make two points. The issues need to be divided into two: elections and the rest. My contention-I think many would agree with it-is that progress on the rest has been hamstrung by the absence of any agreement about elections and the desire in some quarters to get agreement to a comprehensive package that contained them. Indeed, some insist that there cannot be a package that does not contain them. I

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want to suggest a way forward around which a consensus might be built. As I say, for this to happen, the issues must be divided in two.

First, there is already a lot of consensus around a number of changes that need to be made-short of elections. We have heard about them in a number of speeches this afternoon: reduction in the size of the House, the need for a cost-neutral retirement scheme, an end to hereditary by-elections and a proper statutory basis for the Appointments Commission, as well as the reforms contained in the Bill of the noble Lord, Lord Steel of Aikwood. That has already passed this House and simply awaits the imprimatur of the Commons. A package of reforms could be put together around these changes in this Parliament which would attract widespread support. Even if nothing more were done, that would constitute a legacy of House of Lords reform that the coalition could point to as a substantial achievement. I am pleased to see that the alternative report agrees with this. It is only the vain quest for the holy grail of a final solution which has prevented agreement on such a package in the past 10 years. Up to this point, I am on all fours with the remarks of the noble Lord, Lord Hennessy.

Secondly, more can be done with a much broader base of support than can be mobilised for elections as currently proposed. That may take a little longer. As regards the final solution, I do not believe that this can be arrived at until the shape of the United Kingdom has been decided. I am against elections, at least of the kind currently proposed. I will not rehearse the arguments. Your Lordships have heard them far too often to make that necessary. Suffice it to say, I am in accord with Professor Sir John Baker, who is cited by the Joint Committee as saying that the House's essential scrutiny role,

In other words, he drew attention to the House's complementary but different role as a revising Chamber.

Of course, if you do not have elections there is still the question of patronage to deal with, as the noble Baroness, Lady Scott, reminded us. With acknowledgement to the noble Lord, Lord Cormack, for the trailer, I favour a system of appointments by an Appointments Commission as at present, but greatly strengthened by supporting it with a system of nominations from a series of electoral colleges representing the different branches of civil society. In other words, it would be a form of indirect election. I was pleased to see that both the Joint Committee and the alternative report called for further work to be done on this.

The noble Lord, Lord Ashdown, said that only seven countries do not elect their second Chambers. According to the Joint Committee, 34 second Chambers are indirectly elected and 16 of them wholly so. This would not be election as conceived of by those who favour elections, but it would represent a significant democratisation of the appointments process. It would retain the emphasis on expertise, experience and distinction in their field by which those who do not favour elections set such store.



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Of course, indirect election can take a number of forms. Oliver Heald MP, a member of the Joint Committee and chairman of the Society of Conservative Lawyers, issued a pamphlet through that society to coincide with the publication of the Joint Committee's report. In that, he proposed a secondary mandate system in which each party would publish a list of its candidates and gain seats in the House of Lords in exact proportion to the share of the electorate's support won in the general election. There were at least four submissions to the Joint Committee proposing a system of indirect election or something like that. I say nothing of my own humble contribution. Dr Alex Reid of Cambridge proposed a system in which the 80 per cent elected element of the House would be indirectly elected via political parties. John Smith of Stamford, Lincolnshire, submitted a well worked out scheme of indirect election from constituencies of expertise with a general college for those not affiliated to any particular constituency and a parliamentary college for politicians. Finally, Mr Martin Wright would have the colleges that represent constituencies of expertise make the nominations but elections would be by members of the general public. They would vote in the college of their choice for the candidates of their choice on the basis of statements or CVs circulated for the purpose.

It seems that there is much merit in the alternative report's suggestion of a constitutional convention to go into more detail than the Joint Committee possibly could on these different proposals, as well as the multitude of other issues identified by the alternative report. I was sorry that the noble Lord, Lord Richard, poured such scorn on the idea of a constitutional convention. I thought that the alternative report made the case quite well that a good deal more work needed to be done to bottom these issues out.

5.47 pm

Lord Lipsey: My Lords, I apologise in advance for lowering the very high tone set just now by the noble Lord, Lord Low, and the speakers who preceded him. I will stick to my special subject, as the House's resident geek-namely, the cost of what is proposed. Some noble Lords might not think that that is the kind of thing we should debate this afternoon but I can assure the House that it matters a good deal to the people out there who have to bear the cost.

The Joint Committee puts no cost on its proposals, although my noble friend Lord Richard said in presenting them that we will not get a second Chamber for free. That is one thing that he said that we can certainly all agree with. However, the alternative report produced a costing-mine. This is the cost of the Government's original proposals drawn from my evidence to the Joint Committee, although the alternative report omits the six footnotes and 13 detailed references attached to that evidence which set out the assumptions that underlie it. The headline numbers are that the extra costs of the reforms will be, in year 1, £177 million, and over the five-year Parliament of 2015-20, £433 million. To put that in a more down-to-earth way, it is the equivalent of 80,000 hip replacements-a comparison that should appeal to Members of your Lordships' House-or a year's salary for 13,000 nurses.



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There has been some confusion over these costings in the press. They are what they were billed to be or what it says on the tin: costings of the Government's original proposals, given by me in evidence to my noble friend Lord Richard. They are not and could not be costings of my noble friend's proposals, simply because that report only became available last Monday. As the committee failed to give costings-because the Government failed to give them-someone has to fill the gap, and I will have a go. I am working with the assistance of the Library to do a costing of the Joint Committee's proposals.

I say two things about that. First, it is likely to come out a little lower than the costings I have already done of the Government's proposals. Secondly, it will come out lower because some of the Joint Committee's recommendations seem to be wholly unrealistic. Under them, you would have one lot of new Peers with salaries and support allowances and another lot-the transitional Peers-who would just get our current allowances. Whatever happened to the rate for the job? If you take out that assumption, the Joint Committee proposals will cost more than the Government's proposals, simply because it proposes more elected and new appointed Peers.

Mark Harper, the constitutional affairs Minister, described my costings as "speculative". In one sense, Mr Harper is right, as they depend on assumptions about what precisely will be in the Bill when it eventually appears and, indeed, on assumptions as to how the Bill's proceedings will be implemented in practice. To that extent, the costings are speculative, as indeed will be the Government's own costings, which he has promised to publish, belatedly, if and when the Government publish a Bill. The costings of every single policy adopted by this House and Parliament are speculative, in the sense that you cannot know exactly what will happen until it has happened. What a convenient brush-off the word "speculative" represents. Anyone who knows the first thing about government will know that cost estimates would have had to be given to the ministerial committee considering the White Paper, to the Deputy Prime Minister and the Prime Minister. Why should we not see them too, as those who have to legislate about those proposals?

Here is a thought for your Lordships. Let us suppose that the costings given to the ministerial committee, the Deputy Prime Minister and the Prime Minister had shown that the new House would cost not more, as it will, but less. Does anyone seriously suppose that that would not have been broadcast from the rooftops, with the Government showing how marvellously they were economising with our politics with their proposal? Of course they would. They have decided not to tell us the cost for one reason and one reason only. The cost of these proposals is an Exocet heading straight for the engine room of their ship. So they hope to manoeuvre, zig and zag, this way and that to avoid the impact, at least until their ship is a bit nearer port than it is today. That is of course why they resist a referendum, as recommended by the Richard committee, as they know that the chances of the public voting yes to reform will melt like a snowball in the midsummer sun once people understand the bill that they will have to pay for this folly. In this age of austerity, does anyone

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seriously believe that the public will agree to hand huge chunks of their hard-earned money to a whole new gang of second-rate elected politicians?

Let me issue this challenge to the Minister. I have published my costings-let us have yours. Opinion is free, but facts are sacred and, in this day and age, ought to be freely available for all of us to debate. Unless the Minister, in answering this debate, agrees to this, he will confirm what the whole House in its heart knows: this is a cover-up, which disgraces those who have perpetrated it.

5.53 pm

Lord Trefgarne: My Lords, I, too, was a member of the Joint Select Committee and I, too, pay tribute to the noble Lord, Lord Richard, for his chairmanship. As is self-evident from the report, his task was a difficult one, which he fulfilled with skill, courtesy and balance. I pay tribute, too, to the clerks who served our committee, who had an enormously difficult and voluminous task; a huge volume of work was theirs, and they discharged it with skill and efficiency.

Very few members of the Joint Select Committee agreed with everything in the report. Indeed, a number of us, including me, agreed to an alternative report-but, again, views were not unanimous. May I say, in parenthesis, that your Lordships may wish to consider the arrangements for widely held dissident views on a Select Committee to be more easily expressed than is at present the case? But let that be a matter for another day.

I turn to the substance of the issues before your Lordships as considered and reported on. The essential proposition set out in the draft Bill, supported by the White Paper and by the right honourable gentleman, the Deputy Prime Minister, when he gave evidence, is that there should be a fundamental change to how Members of the upper Chamber are selected while the powers and role remain unchanged. The introduction of a process of election is said to be required to meet a perceived democratic deficit. As I shall say later, I do not necessarily disagree with the concept of a properly elected Senate, but I most strongly disagree that that can and should be achieved while the role and powers remain unaltered.

I believe with complete conviction that if we move to a wholly or largely elected second Chamber, the new House will straightaway use its existing powers more aggressively and very soon be agitating for more. The Parliament Act 1949, which reduced allowable delay from two years to one, as originally proposed in 1911, will no doubt be an early target. Indeed, the 1911 Act itself, according to some authorities, may well become inapplicable, given its preamble, with which your Lordships will be familiar, on the temporary nature of its provisions pending a properly elected House of Lords.

Furthermore, the conventions, which are not part of statute law but which form such an important part of the present relationship between our two Houses, are likewise very soon to come under pressure. I see the Salisbury convention, for example, being the first of these to be questioned and, perhaps, abandoned. So I have to say to my noble friend and your Lordships

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that with the Bill as drafted primacy will move measurably away from the House of Commons to the new Senate, notwithstanding the aspirations of Clause 2 which, in the committee's view, would be quite ineffective.

I turn to the intervention of the new Senators-the most likely title for these people, it would seem-in constituency affairs. It will be difficult if not impossible to prevent Senators taking up local issues brought to their attention if they so choose. Frankly, it would be wrong to attempt to do so. Perhaps some modus operandi can be found, but this matter will need to be resolved if friction is not to ensue.

Noble Lords will have observed that both the draft Bill and the Joint Select Committee report anticipate that the new Senate will be chosen by PR, probably some variation of STV. Whatever may be the merits of PR-and the British people were pretty unconvinced when they were asked about this issue last year-it will surely mean that one or more of the smaller parties, such as the Lib Dems, the Greens or even UKIP, or maybe a cocktail of all three, will hold the balance of power in the new House. No doubt that is why my right honourable friend Mr Clegg is so keen on the proposals. Other party leaders, not to mention the electorate, may be less sanguine.

I have previously taken the liberty of detaining your Lordships on the question of the 92 hereditary Peers. My position on that remains unchanged. I agree that if this Bill, for all its shortcomings, were to become law, that would mean the end of the by-elections and eventually the departure of the 92 hereditaries along with the life Peers. However, if the proposed Bill does not reach the statute book and some more limited interim measure is proposed, I would wish to reserve judgment for the present of what my view might be with regard to the by-elections.

I was also an adherent to the alternative report now before your Lordships. I do not agree with all of it, but I agree that the constitutional forum that the alternative report proposes would go a long way to meet the undertaking in the Conservative manifesto that we should seek a consensus. That is surely the right way forward, and a referendum would clearly complete that process, and it is supported by the Joint Select Committee and myself.

I dare say that I am seen as some kind of hereditary dinosaur opposed to all change, but that is not so. I am in favour of what I see as proper reform-namely, a fully elected Senate with full powers perhaps along US lines. This Bill seems to be the worst of all possible worlds, and I hope that it will not reach the statute book.

6 pm

Lord Brooke of Alverthorpe: My Lords, I declare an interest as a supporter of the Campaign for a Democratic Upper House, and as a long-standing member of the Labour Party-a party which, within its DNA, has sought to reform the House of Lords and to move towards an elected second Chamber in this country. That is not to say that I am in agreement with everything that the Campaign for a Democratic Upper House has been saying in this context over the past few weeks and in its submissions, any more than it means that I

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supported the Government's White Paper and draft Bill when it first came out. Indeed, when it did I was quite critical in a number of respects, particularly in regard to Clause 2. I was unhappy about the 15-year term and the absence of accountability which I believe this House needs to have introduced.

I have been in this House since 1997, and when I first came in I believed that the House should be reformed. Much as I have come to love the place and the people in it, and to respect the very significant contribution that it makes to society through its work, knowledge and expertise, I have over the years felt the embrace of the House on me to shift my position. The noble Lord, Lord Steel of Aikwood, has left the Chamber, but I have been almost seduced to switch my position by the efforts that he has made with his several Bills. However, I have not shifted it. In that respect, I thank the noble Lord, Lord Richard, and his committee for reaffirming my position.

I want first to say that over the past months I have watched people trooping through the Lobbies who for many years were opposed to what they were voting for in regard to health and social care-and that is what the public see, too. They were people who for many years had fought for benefits, particularly for the disabled, but who were voting in a manner quite contrary to anything I had previously seen. I am thus reaffirmed in the view that the public are entitled to have a say on who is in this House.

I express my gratitude to the noble Lord, Lord Richard, and all the members of his committee for the report which has been produced for us. It has not been an easy task, as we all recognise, but they have moved us forward. This momentum has been under way since the 1990s, and it will not stop. In particular, I am pleased that a majority of them embraced the circumstances in which we, as representatives, cannot resolve this issue and find a consensual approach, and have recommended that the people should decide what should be done with the second Chamber. On that there was, fortunately, a very substantial majority in the committee.

I am pleased that my leader in this House has reaffirmed in the Lords today the Labour Party's position in favour of a referendum. We indicated that in our manifesto. However, I was disappointed earlier to hear the Leader of the House, when speaking on behalf of the coalition, say that the Government saw no case for it. I hope that the Government are going to reflect on that and change their minds, that that will not become a point of dissent between and within the two Chambers, and that we can move forward and let the people have their say. When they have had their say, it should rest with a House of Commons, whose primacy we want to see maintained, to take a decision on the composition and powers of the House of Lords. That was a big change and is a big step forward, and I thank the committee for it very much indeed. In a sense, if the proposal goes through, the committee will have taken it away from the warring factions, which have so far been unable to move forward on it.

Finally, I want to say something on Clause 2, which I have been very unhappy about. I have long been an advocate of the Government working on codifying

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our conventions. They have resisted doing that so far, and I have looked at the arguments that they have advanced when they have gone before the committee, but I still believe that those issues need addressing-as do other topics that are still left over. We need a dispute resolution procedure beyond that which has been presented by the Government, and further work on codification or addressing the conventions of the House. When we examine the report which the noble Lord has produced, we see that within it there is an answer to most of the problems which have been presented hitherto by those who are opposed to us shifting on this ground: that the primacy of the Commons would be challenged.

I urge noble Lords to re-read the report because it provides us with a foundation on which we can build in moving forward. It also provides for those, perhaps particularly on the Cross Benches, who are fearful about the possible attack on that primacy from the Lords if we had elections. There is a scheme within it to cover that. I suspect that the minority on the Joint Committee have realised that there is quite a lot in this report, sufficient to have moved them to provide an alternative. The noble Lord, Lord Cormack, has done his best today to make sure that everybody reads it. Again, I urge people to read it fully, because it is a very useful document, although in some areas it does not quite represent the full position.

In conclusion, I will pick up a point from the alternative report. In its executive summary it says that the Government's Bill "purports" to set out a system of an elected second Chamber that will not challenge the primacy of the Commons, but it fails to do so. I asked noble Lords to ask themselves: why should a Government-indeed, why should the previous Labour Government-whose power depends upon their position in the House of Commons set out to do any such thing to undermine their power and primacy? Why should they do it? Nobody has looked at or answered that question. The simple fact is that the Commons will continue to have their power there. Governments will want that, whether they be Labour, Lib Dem, Conservative or coalition. That is the way they will want it, and they will make sure that the laws of the land are structured so that that primacy is retained, even if they have to change it en route.

I look forward with great interest to seeing where we end up with the Bill, when it comes to us. I look forward, too, to the people taking a decision on this. I will be one of those canvassing and fighting hard to make sure that those people who have the right to make the law are there through the votes cast by people who have to live under those laws. We will then see where we end on the primacy issue. If the Commons come out with a majority in favour of change, as seems likely from the way that the voting has gone within the Joint Committee, this House should be willing to accept it.

6.09 pm

Lord MacGregor of Pulham Market: My Lords, for those who have the earlier version of the speakers list, perhaps I could explain why I am speaking now. I put my name in last week but, by mistake, it was left out

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and there is a new version. The noble Lord, Lord Richard, had a difficult task and he has my sympathy. I understand and can see that he approached his chairmanship with thoroughness and sympathy, and he approached it well, but at the end of the day this was clearly a divided committee. As the noble Lords, Lord Willoughby de Broke and Lord Grenfell, pointed out, it is 13 to 12 because one member of the committee, as I understand it, attended hardly any of its sessions. There are therefore almost two versions of the report. I strongly support the alternative report. I commend members of the committee on their impeccable logic, the cogency of their analysis and the conclusions of their report. We have had excellent and convincing speeches today from some of its signatories. I shall make just four points in the time available. Inevitably, I will be somewhat repetitive but there is nothing wrong with that as this debate needs to reflect the overall response of the House.

First, on Clause 2, the committee was unanimous. Indeed, the overwhelming evidence that it received from nearly all the witnesses meant that it could hardly have concluded otherwise. It is pretty devastating. The committee was,

It went on:

"We concur with the overwhelming view expressed to us in oral and written evidence that Clause 2 of the draft Bill is not capable in itself of preserving the primacy of the House of Commons".

It also stated that the possibility of judicial review was "profoundly undesirable" and said:

"The Government's approach in Clause 2(1)(c) of the Bill ... risks judicial intervention"-

which-

Those are pretty strong words. Given the unanimous opinion of the Joint Committee, the opinion of most Members of both Houses and all the expert opinion outside Parliament, I cannot see how the Government can bring forward a Bill without a wholesale reconstruction of Clause 2. It would be a travesty of consultation and almost an insult to the parliamentary process to do otherwise. That covers the problem of conflict between the two Houses.

Secondly, I turn to the problem of conflict in the constituencies. Some people have suggested that this would not happen. Here again, the alternative report, half the signatories to which have long experience of elections and being elected, got it right. It says:

"We believe that this is a wholly misplaced notion of the reality of practical politics".

My noble friend Lord Trimble went into some detail on that today. It is pretty obvious that there will be conflict at the constituency level, not least because in today's world of the internet and e-mail anyone can put their views forward very quickly, either to their elected MP from the other place or to anyone else that they wish. I simply do not believe that elected Members of this House would not be subjected to large numbers of such e-mails and correspondence.



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At the regional level that they will represent-the wider constituency level-there will be many issues that are not related to individual constituency cases but are of great concern to all the constituents, over which there will, frankly, be rivalry between the Members of this House and those of the other House, particularly if they represent different parties. It is obvious that there will be constant conflict then. The Government have attempted to solve this with 15-year terms and no re-election. I cannot emphasise strongly enough that this completely destroys the democratic accountability case on which the Deputy Prime Minister hangs his whole argument. I agree very strongly with the right reverend Prelate the Bishop of Leicester on this point.

I now turn quickly to two points that have not been covered so far. The first concerns who will stand. I find it very difficult to work out who will stand for the alternative House that is being proposed. It certainly will not be those who wish to seek a proper political career. In the other place, one can be re-elected every five years and, if not re-elected for one constituency, can stand in another. Members thus have the opportunity of a long-term political career. At the age of 37, someone who wants a political career will not be very happy to come to this House for 15 years, with no possibility of being re-elected to the other House. Also, if they have proper ministerial ambitions and want to play a part in the policies of the Government to which they hope to belong, those ministerial ambitions will be best satisfied in the other place. Of course, if they stand for this House in the hope that it will lead to a career in the other House, under the proposals they will be prevented by the case that has been put forward. Therefore, I cannot see why people who want a full political career will wish to stand under the present proposals.

Nor can I see those in other professions and occupations-who it is apparently hoped will bring the expertise and specific experiences that many of the Cross-Benchers here now offer-wishing to stand for this place in mid-career. Neither the salaries offered nor the career prospects are very great. If you are 37 or 40 and thinking of coming to this place for 15 years, taking a complete break from your career, what chance will you have of going back to that career after 15 years?

Therefore, it would tend to be rather an elderly House. Most probably, those who do not have political ambitions would think of standing for this House in the late stages of their other careers. They would seek a further few salaried years and perhaps find them interesting. That would be like the Cross-Bench Peers in the present House. However, it would be a House that challenged the primacy of the House of Commons, which the other place strongly opposes, and at much greater cost than the present House, as the noble Lord, Lord Lipsey, pointed out. The electorate will almost certainly dislike that, to put it mildly. I am deeply worried by the thought that this would be an attractive career opportunity for many, and I doubt that any reform would bring the expertise and experience of this House as it stands.

Having listened to the speakers before me, I probably carry most Members with me so far, but in my final point I may have a little more difficulty. While I

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strongly support the proposals in the Bill of the noble Lord, Lord Steel, and have always done so, and strongly support the additional points made so properly by the noble Baroness, Lady Hayman, which are appropriate for the reform of this House, there is one issue on which I urge a word of caution. I do not think that we have properly addressed it yet. It concerns our most vulnerable point: the size of the House. We have recently adopted proposals for voluntary retirement, which have had a puny-almost minimal-response and will obviously not solve the problem. We need to go further. I do not find at all attractive the suggestion of appointing no more new Members until the grim reaper has played his part and the numbers have come down. It is important that this House is constantly refreshed with new people, new experiences and new expertise. Therefore, we have two options, which we will have to address-that is, retirement on the grounds of either length of service or age, which happens in pretty well every other profession and occupation, including for judges. I believe that we will have to include this in the Steel-Hayman reforms and it is something that we have still to address.

That does not detract at all from my overwhelming view that this House is right to say that the alternative report is the right one, addressing the right issues and making the right point, and that the Government's proposals therefore remain deeply flawed.

6.17 pm

Lord Thomas of Gresford: My Lords, I suppose that, like the noble Lord, Lord Brooke of Alverthorpe, I must declare an interest, as I am the newly elected president of the Lloyd George Society. Your Lordships may recall that Lloyd George did not have much of an opinion of this place. Indeed, he said that it was 500 ordinary men, chosen accidentally from among the unemployed. Your Lordships will gather from that that we do not do deference very well in north Wales. It is part of my DNA; I can tell the noble Lord, Lord Brooke, that.

It will not surprise your Lordships to know that in my first election, in West Flintshire in 1964, I campaigned on three principles. The first was a Parliament for Wales; the second was proportional representation; and the third was abolition of the House of Lords. I found a fellow toiler in my friend, colleague and adversary, the late Lord Williams of Mostyn, who came from 20 or 30 miles from my home town and was educated similarly to me. Although we were in different parties, we shared the same values. On past occasions when we debated House of Lords reform, he and I walked almost alone, together, through the "100 per cent elected second Chamber" Lobby. We continued to do so over all that time.

Some three weeks ago I was invited to speak at a dinner of Flintshire County Council, at which I was told not to be too political. You are not allowed to be political at these events where there are lots of people in chains from all the county councils and local councils around. I indulged in a little fantasy. Since the House of Lords is so perfect in many people's eyes, what would Flintshire County Council look like if it were

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composed in the same way? Ten of the councillors would be hereditary. Some of my Liberal friends on that county council have admirable sons and grandsons who could inherit their seats. Some 50 would be appointed for life by the local constituency parties. I am sure that they would be very glad to be relieved of the sort of things they are doing at the moment, such as knocking on doors, giving out leaflets and canvassing. Then we would have to think of the others-perhaps the Bishop of St Asaph; the former commanding officer of the Royal Welsh Fusiliers TA; the former commodore of HMS "Rhyl", and various other people of a similar variety. The suggestion that drew the sharpest intake of breath was that former chief executives of local authorities should be appointed to this body for life.

It is absurd, is it not? I am entirely with the noble Lord, Lord Dubs, on elections. There is nothing wrong with knocking on doors, meeting people and talking to them about their problems or pushing leaflets through doors, as I have said. We on the Liberal Benches are not "too posh to push". We would welcome elections if they came along.

It is said that this place works, but only because the other place fails. Noble Lords who were present during the final moments of the passage of the legal aid Bill, as I was, will recall that many on the opposition and Cross Benches complained about the lack of time that had been given to that Bill due to the guillotine and programme Motions that had been applied in the other place, which meant that the issues that we discussed at length had not been taken up in the House of Commons at all. This place works only because there is a void that we have to fill. We are the people who are lobbied and have to make changes to hastily introduced legislation.

What we are facing here in opposition to the Bill are the forces of inertia, however it is described. Lloyd George understood and even sympathised with this notion. After all, he had spent six years in coalition with the Tories. He was the Nick Clegg of his day, you might say. He had the Nick Clegg experience. Speaking at the National Liberal Club in 1924, Lloyd George said:

"Toryism undoubtedly makes an appeal to one essential mood of human nature-that of fundamental inertia; and that is sometimes a real human need ... every man tends to become a Tory himself when tired, disinclined for exertion, wishing to be left alone, cross with anyone who proposes new efforts, and, may I add, tempted to view the drink traffic with an unusually friendly eye. Toryism makes an inherent and instinctive appeal to very prevalent moods in human nature-contentment with your own lot; indifference to the lot of others, often through ignorance of the conditions or the imagination to realise them; rooted habits and prejudices".

However, Toryism, as Lloyd George defined it, is just as active on the opposition Benches as it is on these Benches. "Not now", says the noble Baroness the former Leader of the House, "Not like this". "Give us a constitutional convention", others cry-anything except action. Toryism on all sides of the House, said Lloyd George, would, if left alone, do nothing. Liberals would break the soil with the plough.

Lord Morgan: Will the noble Lord kindly explain to the House why Lloyd George was against an elected House of Lords?



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Lord Thomas of Gresford: He was for the abolition of the House of Lords, as I recall.

6.24 pm

Baroness Miller of Hendon: My Lords, Lloyd George came here. Perhaps the noble Lord does not know that. Anyway, that is by the by.

The so-called reform of the House of Lords-I use "reform" with a degree of irony-has been an intractable question bedevilling those interested in the constitution for more than 100 years. Despite the distinguished membership of the Joint Committee, I have to say with the greatest of respect that the report does not carry the issue any further forward. The problem that the committee had to face was that its terms of reference did not permit it to reach the conclusion-the only conclusion at this time in my opinion-that doing nothing, or practically nothing, was an option.

It is clear from the majority report and the persuasive alternative report that the committee was divided across the parties, within the parties, and between the Houses. In one case, however, the committee's report is unanimous. It states that,

and that,

Is it likely that the Members of the Commons will meekly vote for losing their acknowledged primacy? The report makes it clear that Clause 2 of the draft Bill is defective and fails to preserve the primacy of the Commons, and insists that it will be impossible to legislate to that effect. If we are to have a major constitutional change, it must be by Act of Parliament and not by the nods and winks of an unwritten convention. The committee was unable to agree on such vital issues as the composition and powers of a changed House-I decline, even here, to say "reformed House"-the method of election, the term of office, the running cost of the House, how the Members should be remunerated, whether they should be Peers, and so on. In fact, we are still where we were a century ago.

In the end, the committee abdicated the need for a firm conclusion by proposing a referendum-a classic case of kicking the issues into the long grass. This is not Switzerland. We do not govern by referenda. We expect our legislators to take on the responsibility of making difficult decisions. A referendum is not an exercise in democracy but a way of passing the buck, which this report proposes to do. My final word on referenda is that no matter how many people vote for a bad idea, it is still a bad idea. The alternative report, acknowledging the committee's failure to provide a conclusive answer, has suggested the setting up of a constitutional convention. How many have there been in the past on the same topic? However, it must be a properly constituted commission with impartial, non-political, non-party members, with expertise in history and constitutional law who must also have knowledge of the workings of other legislatures. Its members must have ample time to take and consider evidence and not be constrained by the social engineering ambitions

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of professional politicians who are only too well aware of the transient nature of their individual influence, which is subject to the whim of the electorate.

In all the contradictory thinking displayed by the two reports, one thing is clear. This Parliament, with just three years to run at most, has absolutely no authority, despite the coalition agreement, even to attempt to impose a permanent change to our constitution for generations to come. I await to see whether the Government will be rash enough to introduce the defective House of Lords Reform Bill, which has received absolutely no unequivocal support from the committee set up to consider it-nor, it should be said, from most of the media, from many politicians of all parties, and in particular from the public. I predict an exceedingly rough ride in both Houses and outside Parliament if they do so. I was going to say "if they are stupid enough to do so" but I had better not use that word, especially as Members of the House of Commons are present.

6.29 pm

Lord Desai: My Lords, the answer to my noble friend's question to the noble Lord, Lord Thomas of Gresford, as to why Lloyd George did not support an elected House is very simple. At that time, the unionist opposition was proposing an elected element for the House of Lords precisely to make it more powerful. One thing that Lloyd George did not want was a House of Lords more legitimate and powerful than he already had facing him, which is why the 1911 Act carefully avoided going down the elected path. All the themes that we have discussed-an elected House, the way to reconcile a quarrelling House of Commons, joint sessions and referenda-were rehearsed way back before the Parliament Act 1911 was passed. You have only to read Roy Jenkins's book, Mr Balfour's Poodle, to find that out. Again, given where we are, do we want to make the House of Lords more powerful than it is?

I compliment my noble friend Lord Richard on the excellent report of his Joint Committee, but I should say that one of the central contradictions is that the Government have proposed a draft Bill but have been somewhat timid with their reforms. Had they been really bold, they would have said, "We want an elected House of Lords, but it would be difficult to retain the primacy of the House of Commons unless some drastic things are done along with the Bill". Everyone has agreed-including the Joint Committee's report, the alternative report and many of the witnesses-that Clause 2 will not do because it will not resolve the issue of the primacy of the House of Commons. The question would then be: is the primacy of the House of Commons there not because it is elected but because we are unelected? If we get elected, will the primacy of the House of Commons make sense any more? That is the question that people ought to pose. The financial privileges of the House of Commons derive from way back in the 17th century, before it was elected in anything like its present form. That had to be reaffirmed and established in statute in the 1911 Act because those privileges were not guaranteed by the conventions of that time. If we are again to assert the primacy of the House of Commons, we have to establish that in

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statute-perhaps as a separate Parliament Act, not mixed up with the House of Lords Reform Bill. If you do not do that you cannot rely on conventions because, as the balance of power changes, conventions will change-and previous conventions will, no doubt, be challenged. One of the things we therefore have to do is make quite sure that if the two Houses of Parliament want to preserve the primacy of the House of Commons we must spell out what that primacy consists of and establish it by statute, because nothing can be taken for granted in an unwritten constitution whereby one Parliament can change what another Parliament does.

The nub of the problem is the nature of the elections to the House of Lords, which a lot of noble Lords have spoken about. It is clear that if we have elections on whatever territorial basis-either singly or as a group, as we do for the European Parliament-the House of Lords will replicate the House of Commons. If the Lords is elected by PR, that would in at least some people's eyes be more legitimate than first past the post; and a House of Lords elected on the same territorial basis as the House of Commons, by what some may think is a better method, will no doubt challenge the legitimacy of the House of Commons. One should not be surprised by that. One ought to look at that issue in advance and do something about it.

What I proposed in my submission to the committee somewhat overlaps with what the noble Lord, Lord Low, said earlier. It was that we should have elections to the House of Lords for 80 per cent of its Members-I would prefer 100 per cent, but I pass on that-but the elections should be on a regional basis. Of course, we are not a federation and it is difficult to justify a second Chamber if the country is not a federation, as many experts told the Joint Committee. We already have three devolved Parliaments, and England is supposed to have 10 regions. I know that the regions do not actually want autonomy, but we shall have to impose some autonomy on them. If we elect an equal number of MPs from the 13 regions-quick arithmetic tells me that if we have 20 from each region we would have 260 elected Lords in a House of 300; and the number could be adjusted to 450-and the list is regional and not attached to any constituency, the Members elected will in some sense be representative but will not be rivals to the way that the House of Commons derives its legitimacy.

There is another advantage-a House of Lords elected by regional lists will fill the one big gap in our system. Your Lordships' House is at present always accused of being too London-biased and that a regional dimension is missing from our Parliament. If we could get a regional dimension into Parliament through elections, either directly or indirectly, it would provide for an elected element to the House of Lords that would not challenge the legitimacy of the House of Commons, which is based on an entirely separate constituency system.

That is one way of reconciling two difficult problems. As for the 20 per cent who would be appointed, I entirely agree with the suggestion of the noble Lord, Lord Low. We have many electoral colleges, including the Royal Society, the BMA and the Law Society. Each could elect one representative, and the appointed

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element would also have some legitimacy. These sorts of schemes have been proposed for the British constitution over the past 100 years; there is nothing new about that. In that way, we will have an elected element in your Lordships' House, it will not threaten the legitimacy of the House of Commons, and we will definitely have a better House than at present.

I shall say just one more thing. It is a fallacy to think that elected people do not have expertise. You have only to go to the House of Commons, which over many years has included professors, lawyers and scientists. I recall Dr Jeremy Bray, whom I used to know well; he was a distinguished scientist and a very good MP. Elected people can have expertise. You do not need to be unelected to be an expert.

6.38 pm

The Earl of Clancarty: My Lords, as has been pointed out, the noble Lord, Lord Richard, said that the committee did not have a blank sheet. That is fair enough, but it is worth bearing in mind that the draft Bill that the committee looked at is called the House of Lords Reform Bill. It is not called the "Composition of the House of Lords Reform Bill"-important though that area of reform will of course be.

In that spirit, I want to use my intervention to hold a magnifying glass over a specific topic of House of Lords reform that has not yet been mentioned and was not in the report but that would be a significant and timely measure for reasons of transparency, public confidence and modernity. My topic is the official recording of abstentions. This issue also throws up interesting questions about underlying attitudes that reform should address and challenge.

While this matter is not exclusive to the reform of the second House, our continuing refusal to record abstentions in either House is emblematic of the continuing emphasis in Parliament as a whole on a rigid two-party parliamentary system, despite the current reality that we have a coalition as well as renewed public interest in the notion of party politically independent candidates. It is a style that remains primarily confrontational, the very thing that the public do not like and are reacting against, and a style that, it has to be said, was reaffirmed by the decision to keep the first-past-the-post system for election to the Commons. Although tempered in the Lords, this system is nevertheless the foundation on which both Houses are currently built.

This system is of course reflected and reinforced by the very geography of both parliamentary Chambers, where Dispatch Boxes and rows of Benches are set up in opposition to each other. We are not of course the only Parliament in the world to use this layout, but it is a geography that, in relation to other more modern Parliaments that use a more open and often semicircular layout for their Members, can appear inward-looking and hermetic.

In an exchange in the Commons on 3 February last year, Caroline Lucas, on the subject of abstentions, said that people had told her, "If you can't make up your mind, you shouldn't be in politics". That is clearly a view that people still hold. What occasioned that exchange was six Lib Dems voting the previous evening in both Lobbies on the forestry debate. It is

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possible to vote in both Lobbies in the Commons but not in this House. The Deputy Speaker reiterated that voting twice in the Commons was "unparliamentary". I agree, and I am sure that if the public were to be asked, they would heartily disapprove of that practice. It is also obviously an inelegant and cumbersome solution if one takes abstention seriously.

A more sophisticated and sensitive system and a more sensitive Parliament would appreciate that there are often shades of opinion on, for example, amendments to Bills. An amendment can sometimes carry within it two principles which Members of the House may feel are both valid but are in conflict. Indeed, there was a prime example of such a case in this House just last week during the Protection of Freedoms Bill when, as noble Lords will recall, the noble Lord, Lord Rosser, in his speech from the opposition Front Bench, asked all opposition Members to abstain on the amendment of the noble Lord, Lord Marlesford, on entry to premises, on the basis that protecting the privacy of occupants and the protection of consumers' rights were equally important.

The fact is that abstentions happen and will certainly happen even more, with or without recording, particularly if we are to continue to have coalition Governments. Disagreements between partners ought to be acknowledged as a fact of coalition life and are not necessarily something that Parliament needs to be embarrassed about. Hardly a vote has gone by when there have not been abstentions on some of the very complicated Bills that we have discussed recently.

If we introduced recorded abstentions, we would simply be getting up to speed with the more modern, and in my view more progressive, systems of many, if not all, European countries, including Denmark, Sweden, Belgium and Germany-and locally now including the Scottish Parliament and the Welsh Assembly.

The main argument is that we need a more transparent Parliament. This is a time when many are concerned about bringing a truer picture of Parliament to the public. If you are in this Chamber at the time of a Division, you know full well who has abstained. Members will often make it very clear when they sit down to be counted-to coin a phrase-often in no uncertain terms, that they are abstaining. That is a significant aspect of the business of this place and could make the difference between whether a vote is won or lost. It is insulting to the public that that information is in effect kept secret and not made available. It might not be the wilful neglect of the public, but it is wrong. That goes hand in hand with the scornful attitude in some quarters to websites such as TheyWorkForYou and the Public Whip, which number-crunch the votes and are all part and parcel of the larger public interest in Parliament.

The possibility of recording abstentions was last considered in 1998, when the Select Committee on Modernisation of the House of Commons produced a consultation paper on voting methods, finding that a majority-slim, but a majority nevertheless-of 54 per cent of Members were in favour of introducing that measure. It is high time, 15 years on, that that was looked at again. My understanding from research by the House of Lords Library, for which I am grateful, is

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that it might be possible to introduce that through a Standing Order, as another measure considered by the same committee, the practice of deferred Divisions, was introduced in that way in 2004-although an amendment might also be brought to the House of Lords Bill. The measure might well be trialled in the Lords as part of current reform.

I do not think that we should wait for the introduction of electronic voting systems, which is something of an excuse not to introduce this measure. There is no reason why abstentions could not be recorded with the clerk in the Chamber itself. Neither is it a measure that depends on the final composition of this House. It would be a significant improvement in the democratic workings of Parliament as a whole, not only for itself but as a sign of greater transparency and accountability.

6.44 pm

Lord Crickhowell: My Lords, Parliament has never before faced a situation in which a draft Bill sent for consideration by a Joint Committee has been totally demolished by the members of that committee. That is the effect of the two reports produced by its members-the Joint Committee report agreed by all and the alternative report signed by 12-which have to be taken together. They create a balance of opinion more significant than the individual votes-on which the noble Lord, Lord Richard, laid much emphasis-a balance of opinion vividly and wonderfully described in a tremendous speech by the right reverend Prelate the Bishop of Leicester.

Clause 2, the keystone of the Bill, supposed to hold up and guarantee the continuing primacy of the House of Commons, was pulled out and discarded as worthless by the whole committee, and the alternative report argued that,

It is now clear that what is involved is not just the introduction of elected Members to the Lords but a titanic upheaval with massive implications for the Commons. If the Bill is introduced, Parliament is then confronted with the necessity of trying to bridge the unbridgeable by making fundamental changes that seem bound to include amending the Parliament Acts, a review of codification of conventions by a Joint Committee and the examination of a plethora of vital issues that have not been thought through, to cite the noble Baroness the Leader of the Opposition. They include the future of Scotland and the devolved Administrations, among others.

The report identified other consequences that are almost equally damaging, among them the very large cost of introducing an additional 450 paid politicians to Parliament, 360 elected by a system of PR likely to ensure that a minority party always holds the balance of power. I say to my friends on the Liberal Democrat Benches that they should not optimistically assume that they will be that minority party. They may find that others of whom they strongly disapprove hold the balance in that situation. There is the lack of accountability of those politicians elected for a 15-year term and unable to seek the endorsement of the electors for a second term. There is the absurdity of the proposition

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that, having been elected, they should not take up constituency issues, with restrictions placed on expenses provided to enable them to do so. The case for the necessity for a referendum has been compellingly made and the arguments against exposed as shallow and unsustainable.

It is abundantly clear that there is now no consensus about the way to reform this House. To cite the noble Lord, Lord Richard, chairman of the Joint Committee, there is division within the parties and within the Houses. I disagree very strongly with his view, supported by my noble friend Lord Strathclyde, that we should just press on ahead with what has been presented to us so far. In this situation, it would be political madness and deeply unsound constitutional practice were the Government, after only the briefest consideration, to commit themselves in the Queen's Speech to the introduction of the same Bill or one closely similar. For Parliament to attempt on the Floor of both Houses to reconstruct and make sound a Bill that has been so comprehensively demolished is likely to wreck parliamentary business for the whole Session, threaten and perhaps destroy the coalition Government-goodness knows, they are facing enough troubles as it is at present-and produce a deeply flawed and unsustainable reform. To use the Parliament Act to force through a Bill in those circumstances would be a constitutional outrage.

The manifesto commitment of the Conservative Party was to,

The Prime Minister repeatedly made it clear to members of his party that it was not a priority or a task likely to be attempted until after a subsequent election. Now that it is abundantly clear that the work to build a consensus has failed, I hope that he will have the courage and good sense to insist that adequate time is taken carefully to consider the proposals made in the alternative report and the ideas for incremental reform that have been advanced by the noble Lord, Lord Steel, and others.

If Ministers simply press on and attempt to force through Parliament a Bill similar to the draft, I will base my actions on the firm belief that, confronted with a choice between supporting a legislative programme that includes a deeply flawed reform Bill or defending fundamental constitutional principles and an effective Parliament, my clear duty lies with the constitution and Parliament. I will make my speeches and cast my votes accordingly. I am optimistic that I will be just one of a very large number of Members of both Houses who will act in the same way.

6.51 pm

Lord Hoyle: My Lords, there has been debate over whether this is a decision that should be made now or in the future. Many want to see it made in the future but I suggest that we have been waiting a very long time for this reform-since 1912-and it is time that it was acted upon. We cannot continue to pretend that this issue does not exist, and pretending that we have a democratic constitution is absolutely ridiculous. Looking

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back at Labour Party manifestos from 1997 onwards, I see that we called for House of Lords reform in all of them. We were very specific in the last Labour Party manifesto, when we said:

"Further democratic reform to create a fully elected Second Chamber will then be achieved in stages. At the end of the next Parliament one third of the House of Lords will be elected; a further one third of members will be elected at the general election after that. Until the final stage, the representation of all groups should be maintained in equal proportions to now. We will consult widely on these proposals, and on an open-list proportional representation electoral system for the Second Chamber, before putting them to the people in a referendum".

It has been interesting to hear the views expressed today. Some have been in favour of reform, and I think that I speak for the minority when I say that I am very much in favour, although I would prefer to see a 100 per cent elected House. However, I can see the argument that has been made for 80 per cent of Members to be elected, with 20 per cent being appointed. We have had a long debate about the primacy of the House of Commons and the Bill will be going to the Commons. As my noble friend Lord Richard made clear, of the MPs on the committee, only one opposed the proposition. Therefore, primacy will be an issue and it will be discussed, but I do not believe that it is an obstacle that cannot be overcome. As I said, after the Bill has been considered, we shall make a decision on that matter and it will evolve as time goes on. Both Houses, as well the people, will have a say on how it comes about.

The other point I should like to make is that about 400 people, give or take a few, regularly sit in this House. It is not always the same 400 people, so I think it is right that the number of Members envisaged in the Bill is increased to about 450.

Of course, people have been talking about this matter for a long time. When proposals for reform have been put before us in the past, they have failed because there has not been time to carry them out. However, that will not be the case if such a Bill is put forward in the Queen's Speech. It can be delayed but at the end of the day there are going to be changes, and this House should address itself to the kind of change that it wants to see. It is no longer good enough to say that staying as we are will do for the future. The question may be asked-it has been asked today-whether this is a measure that should be raised. That sort of question is always asked. The big thing at the moment is obviously the economic situation, but nobody is suggesting that only the economic situation should be dealt with; other things should be looked at as well.

As I said, the need for us to look at this matter is long overdue and I look forward very much to the Bill being introduced. I hope that account will be taken of the report of the committee led by my noble friend before the final Bill is put before us. It will be very sensible to look at the views expressed in the committee. However, one thing that we should realise is that the current composition of this Chamber cannot remain in the future. The future lies with a predominantly elected Chamber. As I said, I should like to see 100 per cent of its Members elected.

I have no doubt that we shall return to this matter time and again before legislation is passed, but I wish to put myself firmly on the side of reform and an

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elected House. My noble friend Lord Dubs said very eloquently that he would feel far happier speaking as an elected Member of a second Chamber. He said that he had found universal support from all sections of the Labour Party wherever he had been, apart from Cambridge University, where unfortunately I do not think they listened carefully enough to the eloquence with which he expressed his views.

I am conscious that many other noble Lords wish to speak, so I shall not go on any longer other than to say that not only is this decision due now but it is long overdue. It is a decision that this House will have to face up to. Whatever the method of election, we have to face up to the fact that the second Chamber of this country will be largely elected in the future.

6.58 pm

Lord Williamson of Horton: My Lords, I join other Members in thanking the noble Lord, Lord Richard, and the Joint Committee for their report. It seems to deal well with the issues directly covered in the draft Bill, as was the role of the committee, and to avoid becoming too deeply enmeshed in questions that are not covered in the Bill and which are clearly not subject to any consensus. I also thank the members of the committee who have made their alternative report available.

However, it is our duty to look a little beyond the terms of the draft Bill when we consider that some of the consequences that would follow from a move to a largely elected second Chamber are not dealt with, or are dealt with only cursorily, in the draft Bill. That is particularly true in relation to the future powers of the proposed largely elected second Chamber and the likely effect on the operation of Parliament as a whole-that is, a new sharing of power between the two Houses. These matters are dealt with in recommendations 2 to 16 of the conclusions and recommendations of the Joint Committee. They are also dealt with more trenchantly in points one and two of the executive summary in the alternative report.

There are hundreds of points in the draft Bill that will need discussion, and there are 87 conclusions and recommendations in the Joint Committee's report, but the House will be glad to know that I shall not deal with them all today. There will no doubt be opportunities to do so in the weeks, months, probably years and possibly decades ahead. Today, I shall deal only with the question of the powers of the two Houses if there were a largely elected second Chamber.

I start with the simple proposition that the draft Bill would have one tremendously important consequence: it would bring to an end the House of Commons' monopoly in democratic legitimacy. That is just about the most fundamental change that could happen to the first Chamber of a Parliament. It is difficult to detect in the draft Bill a full comprehension of the consequences of that change for Parliament as a whole. However, the Joint Committee has understood it and I would like to pick out and approve what it says on a number of points. First, the Joint Committee imposes an important condition where it records that a majority of its members consider that a reformed second Chamber should have an electoral mandate, and that condition is,



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Of course, an electoral mandate is not an abstract concept; it is thousands of citizens trooping into a polling station and electing their Member of the second Chamber and, as a direct consequence, looking to him or her to respond to their wishes and deliver the goods. I am absolutely certain that a reformed House in respect of its elected Members would have a representative function, because the electors would demand it and the second Chamber would evidently be more assertive, not to say aggressive, in using its powers.

The events of last week on the Legal Aid, Sentencing and Punishment of Offenders Bill provided a good example of what happens now and what would be likely to happen if Parliament were to consist not of one but of two democratically elected Chambers. Representative organisations and many members of the public already recognise that in draft legislation the House of Lords is now the principal revising Chamber. I had 256 e-mails last week from such organisations and others mostly recommending or pressing for specific changes in draft legislation-and I have not even been elected yet. I am amazed that a press that reports on the House of Commons gives little or no publicity to the fact that important parts of draft legislation are not discussed or debated in the House of Commons or are dealt with only cursorily in a very short time because a guillotine is almost universally applied.

Currently, the House of Lords scrutinises thoroughly and proposes amendments, where appropriate, but we are quite reticent about pressing them if the House of Commons cursorily rejects them. Evidently, that situation would not prevail between two democratically elected Houses. Some mechanism for conciliation between the two Houses in such cases would be needed. I do not think that it would have to be statutory because we would run into judicial interference, some sort of mechanism for conciliation would be an inevitable consequence of two democratically elected Houses.

Secondly, there is the specific question of the conventions between the two Houses. Clearly, those would need to be reviewed, and where necessary changed, to reflect the role of the two democratically elected Houses. I strongly agree with the Joint Committee that the current text of the Bill in Clause 2 risks making judicial intervention possible, contrary to Article 9 of the Bill of Rights, and is to be rejected. The conventions themselves will almost certainly need to be redefined, and that could be done in a concordat between the two Houses.

In my view, that should apply to all legislation, including secondary legislation, which has hardly been mentioned today. The House of Lords has shown almost complete restraint in dealing with secondary legislation, despite the fact that 10,662 pages of almost wholly home-grown-not Brussels-secondary legislation went through this House in a recent year. In the new circumstances, the second Chamber would clearly be more ready to strike off secondary legislation of which it disapproved.

Thirdly, and finally, like many other Members I shall say a word about the primacy of the House of Commons, which is central to the Bill, although the

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Bill does not deal with it adequately. The Joint Committee points out that Clause 2 is not capable of preserving the primacy of the House of Commons, so if it comes forward in that or a similar form, I am sure we shall have serious problems when the Bill itself comes before us.

I believe that the issue of financial privilege is more complicated than it has appeared to be in the discussion today, because we cannot have a situation in which we have two completely free tax-raising Chambers of Parliament. On the other hand, a democratically elected second Chamber would need a way of dealing with issues that are important but that had some financial consequences. I saw the south-west news at the weekend, which showed many people holding up banners that said, "The pasty tax is a nasty tax". I am sure that that would be thought about by a Senator who came from Cornwall if we had change in the structure of this House.

I also believe that we need to maintain the structure under which there is a weapon of last resort, which is currently the Parliament Acts. I have noted the views of the noble and learned Lord, Lord Goldsmith, and of the noble Lord, Lord Pannick, in the report, but if the new circumstances come about it would be necessary to make statutory provision for some form of last resort-yes, more time and perhaps more controversy.

News Corporation: Conduct of Secretary of State for Culture, Media and Sport

Statement

7.06 pm

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, perhaps this is an appropriate time to take a short break from the debate on the report of the committee chaired by the noble Lord, Lord Richard. With the leave of the House, I shall repeat in the form of a Statement the Answer given by my right honourable friend the Prime Minister earlier this afternoon in response to an Urgent Question from the Leader of the Opposition. The Statement is as follows:

"Last Wednesday I answered questions on this issue at PMQs and the Culture Secretary made a full statement. But let me set out the position again. I set up the Leveson inquiry last summer to investigate the culture, ethics and practices of the media and the relations between the media and the police, and the media and politicians. It is a full judge-led inquiry, with evidence given under oath and full access to papers and records. No Government before have ever taken such comprehensive action. It is this Government who are putting these issues properly on the table and getting them dealt with. Let me deal with the three issues in this question: the conduct of the Secretary of State for Culture, Media and Sport; the nature of the inquiry needed to get to the bottom of these issues; and the wider issues over the relationship between politicians and the media.

First, on the Culture Secretary, as was made clear in his Statement last Wednesday, in every respect with regard to the News Corporation bid, the Culture Secretary asked for independent advice and acted on

30 Apr 2012 : Column 2002

it. He was not required to ask or to follow such advice, but he did so. He acted fairly and impartially and in line with the advice of his Permanent Secretary. Indeed, as he set out in his Statement to this House last Wednesday, he acted against the interests of News Corporation on four key decisions: on being minded to refer the bid to the Competition Commission; on refusing to accept News Corporation's undertakings without advice first from the OFT and Ofcom; on extending the consultation; and on going back to Ofcom for further advice about the impact of phone hacking. I have seen no evidence to suggest that in handling this issue the Secretary of State acted at any stage in a way that was contrary to the Ministerial Code.

In terms of the Secretary of State's responsibilities towards his department let me say this. The Permanent Secretary of the department approved the approach his department took to the quasi-judicial process, which included a small number of people acting as contact points with News Corporation, as is required and normal in such a process; and the Permanent Secretary of the department has stated that he was 'aware' and 'content' for contact to be made between the Culture Secretary's special adviser and News Corporation. However, it is quite clear that this contact became improper and inappropriate and went beyond the requirements set out by the Secretary of State or the Permanent Secretary. That is why the special adviser resigned and he was right to do so.

There are correct procedures to follow in this regard and they need to be followed scrupulously. That is why last week I asked the Cabinet Secretary, Sir Jeremy Heywood, and the head of the Civil Service, Sir Bob Kerslake, to write to all departments clarifying the rigorous procedures that they should have in place for handling cases of this nature.

This leads to the second issue: the nature of the inquiry or inquiries best suited to get to the bottom of this issue. I consulted the Cabinet Secretary and decided it was right to allow Lord Justice Leveson to conduct his inquiry and not to commission a parallel process to establish the facts. Let me repeat; what we have is a judge-led inquiry, with witnesses required to give evidence under oath, full access to papers and records, and cross-examination by barristers-all live on television. There is nothing this tough or rigorous that the Civil Service or independent adviser could provide.

Of course, it is not for Lord Justice Leveson to determine whether a Minister has broken the Ministerial Code. That is an issue for me and I will deal with it properly. I will not wait until the end of the Leveson inquiry to take action if action is needed. If new evidence emerges from the Leveson inquiry that the Ministerial Code has been broken, I will either seek the advice of Sir Alex Allan or take action directly. But the key point is this: in order to do this, it is neither necessary nor right to have a parallel investigation that could duplicate, cut across or possibly pre-empt what Lord Justice Leveson is doing. Lord Justice Leveson offered his own view on Wednesday when he said that,

I agree with him entirely.



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Let me briefly turn to the bigger picture. I am and always will be a fierce defender of the freedom of the press in this country; it is one of the central pillars of our democracy. But the relationship between politicians and the media has been too close for decades. The Leveson inquiry-which this Government set up-gives Parliament and politicians of all parties the opportunity to get this right for the future. Already we have introduced transparency about the meetings we have with the media. Everyone can see which proprietors or editors I meet, whether publicly or privately.

Let me just say this: like other party leaders in our country for decades, I have tried to convince media outlets to support the policies of my party and now my Government. But let me be clear: there was not and never has been a grand bargain between the Conservative Party and Rupert Murdoch or James Murdoch. Indeed, look for one moment at the number of meetings that Tony Blair and Gordon Brown had with Rupert Murdoch when they were Prime Minister. Blair had seven, Brown had 13 and I have had four. The idea that there was some agreement that in return for their support we would somehow allow this merger to go through is simply not true. I have to say if that was the case, and while I respect him deeply, what on earth was I doing making the right honourable Member for Twickenham the Business Secretary responsible for this? The proprietors of News Corporation have denied under oath at the Leveson inquiry any type of deal, and I will do the same.

Let me just make this last point. Unlike the party opposite, we were not trying to convince a centre-right proprietor of a set of newspapers with solidly centre-right views to change the position of a lifetime. We were arguing a simple proposition: that the last Government were irresponsible, exhausted and bad for our country, and that they ought to go.

While I have said that the relationship between politicians and the media has been too close, I note that none of the people opposite has disclosed any of the meetings they had with News International or other newspaper executives while they were in office. Instead of endlessly trying to use the Leveson inquiry for party-political purposes, is it not time that they were honest about what they did in government? While the country wants to hear about jobs, investment, living standards and the great challenges we face-such as debt-they just play one-sided party politics. Instead of endlessly trying to use the Leveson inquiry for party-political purposes, is it not time that they were honest about what they did in government-and face up to the real mess that they left this country in?".

My Lords, that concludes the Statement of the Prime Minister, which we will now deal with in the usual way.

7.15 pm

Baroness Royall of Blaisdon: My Lords, I thank the Leader of the House for repeating as a Statement in your Lordships' House the remarks made by the Prime Minister earlier today in the other place in relation to the position of the Secretary of State for Culture, Media and Sport, and to his, his office's and his department's connections with News Corporation over its failed bid last year to take over BSkyB.



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When the allegations against the Secretary of State for Culture, Media and Sport, Jeremy Hunt MP, emerged last week, arising from material released by the inquiry into relations between the press, politicians and the police, headed by Lord Justice Leveson, my party called for the Secretary of State to resign or be sacked. We do not as a party make such calls lightly. We have a right to do so; the Secretary of State should have resigned then. Having failed to do so, he should resign now.

The release by the Leveson inquiry of material relating to the Secretary of State and to News Corporation's bid led directly to two events: first, the resignation of Mr Hunt's special adviser, Mr Adam Smith, over the e-mails and other communications that he had with News Corporation in connection with its BSkyB bid; and secondly, in the wake and as a result of that resignation, calls for the Secretary of State to be investigated for potential breaches of the Ministerial Code, the Cabinet Office rules that govern the conduct and behaviour of government Ministers.

The Government, led by the Prime Minister, sought to avoid such an investigation, arguing that the correct procedure for inquiring into these matters is the already extant inquiry led by Mr Justice Leveson, and that a second, parallel inquiry would be confusing and inappropriate. The Prime Minister and the Government also sought to insist that in their view the Secretary of State had not breached the Ministerial Code. That was the burden of the Statement by the Prime Minister that the Leader of the House of Lords repeated today.

This simply will not do. Judges tend not to welcome what they regard as interference by politicians. Judicial independence is a central element in the justice system and the constitution of our country. Rightly, therefore, Lord Justice Leveson both rejected the misguided attempt by the Secretary of State to use the inquiry for his own personal and political ends by seeking to reschedule his appearance before it, and made it clear that the inquiry was not the correct or appropriate mechanism to resolve matters relating to the Ministerial Code.

I looked again today at the terms of reference for the Leveson inquiry. It is transparently clear that there is nothing in the terms of reference that could possibly give it any locus in matters relating to issues covered by the Ministerial Code. For the Prime Minister or other Ministers, including the Secretary of State, to do so was wrong. The Prime Minister told the BBC yesterday that he would investigate the Secretary of State under the Ministerial Codeif there were evidence of wrongdoing, or if any material came from the Leveson inquiry that warranted such an investigation.

The purpose of such an investigation under the Ministerial Code is to determine whether there has been any breach of the code, not to mount an inquiry after the fact of the wrongdoing has become clear. The e-mails and other matter released by the Leveson inquiry last week precisely constitute, under the code, material that warrants further investigation. The code is clear and explicit on the point. Paragraph 1.3 sets out the matter. After stating that it is not the role of the Cabinet Secretary or other officials to enforce the code, it states:



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"If there is an allegation about a breach of the Code, and the Prime Minister, having consulted the Cabinet Secretary, feels that it warrants further investigation, he will refer the matter to the independent adviser on Ministers' interests".

Let us look more closely at that paragraph. It specifies an allegation. Is there an allegation in this case? There is indeed: a serious allegation that the Secretary of State kept informed one of the parties to a bid that he was considering in a quasi-judicial manner of the progress of that bid in a way that was wholly inappropriate to that role; an allegation that the Secretary of State was in breach of paragraph 1 of the Ministerial Code, which requires Ministers to act in a way that upholds the highest standards of propriety; a serious allegation that as part of the information that was incorrectly and inappropriately supplied, details of the announcements to be made to Parliament and to the Stock Exchange were made to the bidder in the case, days before such announcements were made public; an allegation that the Secretary of State was in breach of paragraph 9.1 of the code, which stipulates that announcements by Ministers must be made in the first instance to Parliament; and an allegation that the Secretary of State is currently in breach of paragraph 3.3 of the code, which focuses on the activities and operations of special advisers, and the responsibilities of both special advisers and the Ministers for whom they work. Again, the code is clear, stating:

"The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment".

In this case, that is clearly the Secretary of State for Culture, Media and Sport.

"Individual Ministers will be accountable to the Prime Minister, Parliament and the public for their actions and decisions in respect of their special advisers",

says the code, and clearly, in this case, it is the Secretary of State for Culture, Media and Sport. The role of the Minister is clear.

In this case, the conduct of the special adviser, Mr Adam Smith, was such as to warrant his resignation from his post within government the day after the Leveson inquiry released the material last week. Mr Smith took responsibility for his actions, but the code makes it quite clear that the Minister is ultimately responsible for the actions and conduct of his special adviser. If in this case Mr Smith believed that his actions warranted his resignation and that in this case, as in all others, the Minister is responsible and accountable for the actions and conduct of his special adviser, then it clearly follows that it is for the Secretary of State or, if he will not do so, the Prime Minister on his behalf, to act in the way that the special adviser has done. That is why we call for his resignation. We believe that it is transparently clear that the Secretary of State is in breach of the Ministerial Code and that, like his special adviser, he should go.

There are clear, specific allegations. Paragraph 1.3 of the code, on investigations under the code, stipulates that the Prime Minister must consult the Cabinet Secretary on any allegations. Has the Prime Minister consulted the Cabinet Secretary, Sir Jeremy Heywood? We are told that he has. We do not, of course, know the nature of any such consultations between the

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Prime Minister and his Cabinet Secretary, who is an official of high ability, high repute and high integrity. Having consulted, does the Prime Minister feel that the matter warrants further investigation? Clearly, from his public statements, and from the Statement repeated today by the Leader of the House, he does not. We on these Benches argue that he is wrong in that opinion. The matter clearly warrants further investigation.

Support for this position has come from a number of sources, but among the most notable have been three former Cabinet Secretaries, all Members of your Lordships' House: the noble Lords, Lord Armstrong of Ilminster, Lord Butler of Brockwell and Lord Turnbull. All three noble Lords were men standing in precisely the position of the current Cabinet Secretary. With slightly differing emphases, all three believe that there has indeed been a breach of the Ministerial Code in this case. Accordingly, we on these Benches believe that the Prime Minister should refer the matter to Sir Alex Allan, the current independent adviser.

Do the Government accept that there has been in this case an allegation-indeed, a number of allegations-about the conduct of the Secretary of State? Do the Government accept that the resignation of the special adviser to the Secretary of State supports irrefutably that there are such allegations? Do the Government accept in the light of the opinion expressed by MPs, Peers, academics, commentators and, indeed, three former Cabinet Secretaries, all distinguished and senior Members of your Lordships' House, that the allegations warrant investigation under the terms of the Ministerial Code? Do the Government therefore accept that the Prime Minister accordingly must refer the matter to the independent adviser on Ministers' interests for investigation? If the Government do not accept these questions, will the Leader of the House set out, bearing in mind the entirely appropriate insistence by Lord Justice Leveson that his inquiry is not the correct method of examining these matters, on what possible basis the Government do not accept them?

A Minister's actions, a Minister's integrity and a Minister's career are not matters to be considered lightly, let alone dismissed lightly. We on these Benches do not do so, but even if it is not accepted that there is wrong here-and we believe there is wrong here-it must be accepted that there are serious matters here that warrant proper investigation. We believe that the Government should act, and act today.

7.24 pm

Lord Strathclyde: My Lords, I do not say this very often, but I think there are very few times when a prime ministerial Statement is more suited to the House of Commons than it is here, and I think this is one of those occasions. Notwithstanding that, the noble Baroness the Leader of the Opposition says that my right honourable friend the Secretary of State should resign at once, yet she admits that she has not heard all the facts of the case. That is what she started off with. In fact, that repeats something that Harriet Harman said. Within 23 minutes of the evidence being made clear, she called for the resignation of my right honourable friend. That is a ridiculous way to go about business. My right honourable friend is entirely

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entitled to give his evidence in the same way as those who have accused him of wrongdoing, and that is what he is going to do.

There is no point praying in aid all these former great Cabinet Secretaries who distinguish themselves in this House. The former Cabinet Secretary the noble Lord, Lord Turnbull, made it clear that following the process that the Prime Minister has chosen:

"Much more will be made public than if it is done by a nominated retired civil servant".

The noble Lord is someone of tremendous eminence.

What is going on here, and what is going on with Labour's position? The people opposite are those who defended Charlie Whelan and Damian McBride who, I gather, were special advisers in the previous Government. Did any Ministers resign as a result of their appalling wrongdoing?

The noble Baroness said that the Secretary of State should be investigated for breaking the Ministerial Code. The Prime Minister has never said that he will not launch an investigation into whether the Ministerial Code has been broken. All he has said is that there should be a proper process and that it should start when the Secretary of State gives his evidence to the Leveson inquiry. Lord Justice Leveson himself has accepted and agreed that there should not be a parallel process so, as far as I can see, it is all about timing.

What about the specific allegations? Did the Culture Secretary mislead Parliament by saying he was publishing all the exchanges between his department and News Corporation? He certainly did not mislead Parliament. He has laid out clearly in the House of Commons what he is going to do, and he will do it. He has said that he will make available all relevant communications, including texts and e-mails, to the Leveson inquiry and, at that stage, he will be judged upon them.

Was the Ministerial Code breached when the special adviser Adam Smith leaked the content of a Written Ministerial Statement to News Corp the day before it was given to the House? We have to turn to the words of Adam Smith himself in his resignation letter. He said that the extent and nature of the contact between himself and News Corporation was not authorised or known about by either the Culture Secretary or the Permanent Secretary. I think that absolves the Secretary of State, but I am not going to rush to judgment in the way that the noble Baroness has done, although I am sure that he behaved impeccably in everything that he did. There is a process led by Lord Justice Leveson and at that stage I think it is up to the Prime Minister to make up his mind what he wishes to do.

7.28 pm

Lord Fowler: My Lords, surely it would be absurd to have two inquiries going on at the same time. The order that the Prime Minister has announced seems entirely sensible, given that the parliamentary inquiry can then follow the evidence that is given to Leveson. However, is there not a wider issue here? Does the Leader of the House recall that last week, when we debated this issue, the Minister who replied, who is now sitting next to him, said that there was all-party consensus on my proposal that politicians of any party should be taken out of the role of deciding on

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media bids? Then on the "Today" programme on Tuesday morning, the leader of the Opposition specifically rejected that proposal and said that he intended to continue with the discredited system. Can we urge Mr Miliband to think again on this issue, for is it not the case that there will always be a suspicion of conflict of interest if politicians take decisions about media companies which they-we-have done so much to woo? It is a clear conflict of interest, and it should be stopped.

Lord Strathclyde: My Lords, I thank my noble friend for very much supporting the position of the Prime Minister. Many others have taken on this question of having two parallel inquiries going on at the same time. Like him, I am convinced that we have made the right decision.

As for his specific question, the House will know that my noble friend Lord Fowler is pretty much pre-eminent in this House and elsewhere with his expert knowledge on this subject. I cannot speak for the Leader of the Opposition, but my advice to the noble Baroness is that she ought to bring to his attention the words of my noble friend Lord Fowler, and he might change his mind.

Lord Richard: My Lords, perhaps the Leader of the House can help me. I do not understand the Statement that he has just made. He says that there is a process and the process should be followed. What is the process? The process is that evidence was given to Lord Justice Leveson; Lord Justice Leveson has said he is not going to decide the issue as far as Mr Hunt is concerned. It is astonishing for the Leader of the House to say that it should go in front of Lord Justice Leveson when Lord Justice Leveson has just said that he does not want it to come in front of him.

What is the object of the exercise? Is it that Mr Hunt should give his evidence to Lord Justice Leveson, and the Prime Minister should look at it and say, "I am satisfied with that so we will not do anything else", or alternatively say, "Something may be wrong here", and then perhaps he will refer it to somebody else? The fact of the matter is that Lord Justice Leveson cannot resolve the issue. For the noble Lord to come here and say, "There is a proper process and the process is Leveson"-as indeed the Prime Minister did in the House of Commons-is wrong. There is a process and the process is to use Sir Alex Allan: that is what he is there for; that is what he is set up to try to do. With great respect to the Leader of the House, I do not understand what the Government are playing at.

Lord Strathclyde: My Lords, the noble Lord, Lord Richard, is quite deliberately misunderstanding the position and misunderstanding what the Prime Minister has said. An allegation was made at the Leveson inquiry. It is entirely right and proper that the Secretary of State should be able to go and give evidence on the same terms and by the same method as those who have accused him of wrongdoing.

Incidentally, the decision on whether to refer the case to Sir Alex Allan is a decision for the Prime Minister. He can make that decision whenever he wants. He has suggested that he will make that

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decision-or take action, if he believes there was any wrongdoing-following the evidence being made public in the Leveson inquiry. The Leveson inquiry is a proper inquiry where, as I pointed out, evidence will be taken under oath and there will be cross-examination of the witnesses by barristers; in other words, the evidence that has been given already will be properly tested. That is entirely appropriate and there is no confusion at all between the two issues.

Lord Elystan-Morgan: My Lords, the Prime Minister has said that he will await the evidence given by Mr Secretary Hunt to the Leveson inquiry. That may or may not be a rational stance to take. I take very much on board what the noble Lord, Lord Richard, says. It is outside the remit of the Leveson inquiry to adjudicate upon that matter. Putting that aside, perhaps I may ask this pertinent question of the Leader of the House. When the time comes for the Prime Minister to decide whether or not to refer this matter to Sir Alex Allan as a matter of ministerial discipline, will the Prime Minister be acting in a political capacity or a quasi-judicial capacity? If I may be allowed the luxury of a supplementary question, will the Prime Minister be regarding himself as acting in a judicial or a political capacity?

Lord Strathclyde: My Lords, in that event, the Prime Minister will be acting as Prime Minister. He will decide whether to take action directly himself-or not to, because he believes there is no evidence-or to refer the matter to Sir Alex Allan.

Lord Gilbert: My Lords, is it not clear from the Prime Minister's Statement that the Government have now abandoned the Secretary of State's claim that the Permanent Secretary authorised what was going on? The word "authorised" did not appear once in the Prime Minister's Statement-and I was listening very carefully. The Leader of the House cannot hope to slither away and say, "What is the difference because the Permanent Secretary is supposed to have said that he was content?". There is a difference between authorising something and being content with it. Authorising has to do with things ex ante; content has to do with things ex post. When was the Permanent Secretary first made aware of these activities?

My second question is about Sir Alex Allan, who seems to have one of the best sinecures going-in fact, I might put in for it myself. Has it ever occurred to this Government to ask Sir Alex Allan whether he considered it appropriate for him to consider this matter and, if so, what response did they get?

Lord Strathclyde: My Lords, on the latter part of that question, I am not aware of any conversations having taken place. Incidentally, there is no way that I could slither away from anything in this House, particularly when asked by the noble Lord, Lord Gilbert. The Permanent Secretary has said that the content and extent of Adam Smith's contact with News Corp were,



30 Apr 2012 : Column 2010

by both himself and the Secretary of State. He has said that he was "aware" of and "content" with the arrangements that were made initially.

Lord Marks of Henley-on-Thames: My Lords, whatever the outcome of the present episode, does my noble friend the Leader agree that in future it must be absolutely clear that when a Secretary of State and his department are considering such a bid, all contact between the department and an interested party must first be through permanent civil servants; secondly, it must be properly authorised; thirdly, it must be properly recorded; and fourthly, it must be of a formal nature only? Does he also agree that it must be clear that political advisers should not be involved in such contacts in any circumstances, nor should such contacts be marked by the informality and appearance of partiality that marked the e-mails that have recently been released, and that guidance to that effect should be issued formally as quickly as possible?

Lord Strathclyde: My Lords, my noble friend makes a very helpful intervention. Of course, we can all use the benefit of hindsight and see that things were not done in an appropriate way. That is why the Prime Minister, as early as last week, asked the Cabinet Secretary, Sir Jeremy Heywood, and the Head of the Civil Service, Sir Bob Kerslake, to write to all departments and Ministers,

so that suspicion does not fall on departments, Ministers and their special advisers.

Baroness Symons of Vernham Dean: My Lords, when the Leader of the House was replying to my noble friend Lady Royall, he kept asking-I have to say, in a slightly excitable way-"What is going on? What is going on?". It is very simple. It is the enforcement of the Ministerial Code. That is what we on this side of the House-and, I think, many Cross-Benchers-are very concerned about. The fact is that the Prime Minister tried to refer this to Lord Leveson. Does the Leader of the House agree with Lord Leveson that it was inappropriate for the Prime Minister to try to refer this matter of ministerial discipline and the Ministerial Code to Lord Leveson, which is not within his remit, as the original Statement clearly showed? That is the first point.

The second point is that the special adviser says that the Secretary of State knew nothing about his contacts. That may be so and no doubt an investigation will show whether or not that is correct. Notwithstanding that, paragraph 3.3 of the Ministerial Code-which is what we are talking about-is clear. It states:

"The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment".

Mr Hunt made the appointment. The special adviser's contraventions were so serious that he has had to resign. Should the Secretary of State not have had mechanisms in place for discharging his very specific responsibility for the "management and conduct" of his special adviser and, if he did, what were they?



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Lord Strathclyde: I will tell the noble Baroness exactly what is going on here. These are the cheapest and most vulgar political attacks on my right honourable friend the Secretary of State, whose evidence has not been heard at all. The noble Baroness asked about Lord Leveson's statement. What did Lord Leveson say? He said:

"I have seen requests for other inquiries and investigations and, of course, I do not seek to constrain Parliament, it seems to me that the better course is to allow this Inquiry"-

that is, his inquiry-"to proceed". That was done, and the Secretary of State will be able to give evidence to that inquiry in due course. When we have all heard the evidence, it may be that many noble Lords who have spoken today will be eating their words. As to the possible lack of oversight of the special adviser, the special adviser has resigned, having made a fulsome apology and explaining that the action that he took was way beyond the authority given to him by the Secretary of State.

Lord Ashdown of Norton-sub-Hamdon: My Lords, the Prime Minister has used this rather particular phrase, that there has been no "grand bargain", twice now-once at the weekend in his press comments and once in the Statement. Will my noble friend assure us that when the Prime Minister says that there has been no grand bargain, he includes that there have been no small bargains either?

Lord Strathclyde: Yes, my Lords.

Lord Wills: Can the Minister explain what he understands by the extent of the responsibility of a Minister for his special advisers?

Lord Strathclyde: My Lords, how can I possibly answer that at this stage? I have not seen any of the evidence any more than the noble Lord has.

Lord Wills: I was not asking specifically in relation to this case; I was asking generally. What does the Minister understand by the extent of a Minister's responsibility for his special advisers?

Lord Strathclyde: My Lords, that is clearly set out in the Ministerial Code. In this instance, one would expect a special adviser to stick to the agreements and instructions they had been given by their Secretary of State.

Lord Armstrong of Ilminster: My Lords, as the Leader of the Opposition has referred to what I said about this matter, I should like to clarify that if I may, and ask the Leader of the House whether he agrees with it. I have said that the Prime Minister is responsible for decisions about ministerial conduct and for deciding whether a Minister has or has not breached the code. If he has, or thinks he has, sufficient evidence to justify a decision not to refer the matter to Sir Alex Allan, or to confirm the Minister in his position, he is entitled to do that. If he has doubt, he can ask Sir Alex Allan for advice. He is not obliged to take that advice, but clearly the advice will be very important.



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In this case, as I understand it, the Prime Minister takes the view that the evidence that comes before Lord Justice Leveson will be more pervasive, extensive and comprehensive than anything that Sir Alex Allan could get. Lord Justice Leveson is not being asked to take the decision about the Ministerial Code. As I understand it, it is being suggested that the evidence given to his inquiry, elicited by questions from counsel and by all the other procedures, is likely to be more comprehensive and more reliable, since it will be evidence taken on oath, than anything that Sir Alex could achieve. However, Lord Justice Leveson is quite right in saying that he cannot take the decision or give advice about the Ministerial Code. The only person who can take a decision is the Prime Minister, and if he wants advice, he will have to ask Sir Alex Allan.

Lord Strathclyde: My Lords, it is good to hear the noble Lord, Lord Armstrong of Ilminster, put his question, and the tone in which he did so will no doubt calm the atmosphere of the House. He described the situation entirely correctly. This is a decision for the Prime Minister. When it comes to disciplining Ministers, the Prime Minister is entitled to make that decision in any way that he wants. Equally, the decision that he has taken, as the noble Lord has laid out, is that the evidence laid before Leveson-in the manner and way in which it will be laid-will be more authoritative and ultimately gain more public acceptance if it is done publicly at the Leveson inquiry rather than secretly by Sir Alex Allan, although I have no doubt that he would do it extremely well. Finally, I agree that Lord Justice Leveson himself cannot make the decision under the Ministerial Code; he has no locus to do so. The Prime Minister will no doubt be able to make a decision once the evidence has been given, and that decision is entirely up to him.

Lord Borrie: My Lords, following the very helpful intervention by the noble Lord, Lord Armstrong, is it not the case that there is no way-as and when the Minister makes his appearance at Lord Justice Leveson's inquiry-that the Prime Minister can ensure that the questioning by counsel will bring out all the vital matters that relate specifically to the question of whether the Ministerial Code has been broken? The Leveson inquiry is a general inquiry into the relationship between the media, politicians, the police and so on and does not specifically address the question of whether the Ministerial Code has been broken. Are the Government therefore not relying on the matter coming out incidentally at the inquiry? The Prime Minister is not even prepared to wait until Lord Justice Leveson gives his report. Like the rest of us, he is simply going to watch what is said on television and so on, which may or may not reveal very much. What is really needed is a specific inquiry on whether the Ministerial Code has been broken.

Lord Strathclyde: I reiterate that Lord Justice Leveson is not being asked to take a view on whether the Ministerial Code has been broken. We started all this because allegations have been made in the Leveson inquiry. Surely it is only right and proper for my right honourable friend the Secretary of State to be given the opportunity to deal with those allegations by

30 Apr 2012 : Column 2013

providing whatever evidence he wants. He has laid out the kind of evidence that he will provide, and I believe that it will entirely restore his reputation. During the course of that evidence-taking-and let us remember that this is all about the relationship between politicians and the media-the Prime Minister can take a decision on whether he believes that the Ministerial Code has been broken, and whether to instruct or invite Sir Alex Allan to look into it, or whether to believe that no further action needs to take place. I very much hope that it will be the latter.

Lord Low of Dalston: My Lords, if the leader of the Opposition was playing party politics with his question, what on earth was the Prime Minister doing with his Statement? I have three questions for the noble Lord. First, how does he reconcile what he said about the Leveson inquiry with Lord Justice Leveson's refusal to get drawn into the Hunt affair? Is it not the case that the Statement that the noble Lord has quoted came at a rather earlier stage of the proceedings? Secondly, the noble Lord has said that the Secretary of State took independent advice when he did not need to, and acted upon it. However, is it not the case that Ofcom advised him to refer the matter to the Competition Commission, which he did not do? Finally, the noble Lord has said that the Permanent Secretary approved the special adviser's role as a conduit between the Secretary of State and the Murdoch organisation. However, he was decidedly shifty about this when questioned on it by the Public Accounts Committee. The noble Lord said that the Permanent Secretary was aware of the special adviser's role and was content. Does the noble Lord agree that that is not the same as giving approval?

Lord Strathclyde: My Lords, the Prime Minister was invited to make a Statement by the leader of the Opposition, who was clearly trying to play politics. I do not want to offend the noble Lord, who is a distinguished Cross Bencher, but those of us better versed in the means of politics can see what is going on utterly clearly; it is as clear as daylight. I am under the impression that everything the Secretary of State was required to do during the bid process, he did. He accepted an offer of undertakings by BSkyB, but he referred them as well; and of course when the undertakings were themselves withdrawn, the full referral then took place. As for the role of the Permanent Secretary, I think that I have said everything I can possibly say about that.

Lord De Mauley: My Lords, the time has come for us to move back into the other debate.

Draft House of Lords Reform Bill

Draft House of Lords Reform Bill

Motion to Take Note (Continued)

7.50 pm

Lord Elton: My Lords, your Lordships can now return to an equally controversial matter, on which I think the camera has somehow got too close to the subject. I know that there is a general impression outside this House, although probably not inside it,

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that we are observing the early to middle stages of a power struggle between the two Houses, whereas we are actually in the closing stages of a power struggle between the Crown and Parliament.

The Crown and Parliament are the protagonists on whom we should keep our eye. By "the Crown", I would have said "the Government", but when one talks about the Government, one tends to think of what is only a thin veneer of ambitious politicians laid over a vast machine with a collective memory that goes back for centuries and which understandably regards Parliament as something of an obstacle to its objectives. As a Minister, one can detect this in individual civil servants, although I should say at this stage that I am commenting not on individuals but on human nature. However, you find that there is surprise and resentment that some proposal that appears to be eminently sensible to people who are not in touch with the mood of public, which as a Minister one has to be, can be obstructed by the parliamentary machine. The combined apparatus of ambitious politicians and career civil servants has a momentum of its own. The Crown as such has been trying to retrieve the power that it lost to Parliament in the 13th century, and it has retrieved a great deal of it.

One cannot survey the history in seven minutes, but I can give a good illustration of the state of play in more or less contemporary times by asking noble Lords to look at the year of 2005, and in particular to what happened between noon on Thursday 10 March of that year and 7.31 pm on the following Friday evening, which if I have calculated the period correctly is a total of 31 hours. Many noble Lords who took part will remember that the then Government had brought in a Bill with a clause that would have empowered the Home Secretary-in the legislation I think it is the "Secretary of State"-having consulted a single senior police officer, to sign a bit of paper that would consign a British citizen to what was called "derogated detention" for up to 90 days without the intervention of any legal force whatever.

Anything less consonant with British liberty or standards of democracy is difficult to imagine. It was got through the House with a government majority of 131 and was carried by a majority of only 14. We removed the clause and sent it back. Commons messages arrived and then we started on a round of ping-pong. As a result, that draconian measure was subject to very thorough judicial supervision and did not resemble what had been sent to us to start with.

Why was the House of Commons not able to control the Government? I remind noble Lords that Parliament was invented to control the Government. What was the difference between that House and this place? There are four differences. The first is that Members of the other place receive a substantial salary and are in what we would regard as career jobs. As has been alluded to, if you lose your seat you can move on to another, but if you lose your seat you lose your job and your salary. It is certainly true that the Whips have the power to deselect a Member so that he actually loses his job and perhaps cannot pay his mortgage, the school fees and so on. That is it, really. Members of Parliament have to be re-elected to hold

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on to their jobs, so they have to toe the party line; and if a Government have a substantial majority they actually hold those jobs and livelihoods in their hands. In this House, we are not elected and we do not have a salary. Although I benefit from it, I regret the fact that we now have a certain incentive and an interest that we ought to declare in this debate: if we claim it, we are in receipt of £300 a day for attendance. To that extent our continuance in office is a matter of personal concern, but of course we cannot be turned out, as the others can.

The present Government proposal entails the introduction of a majority of elected people who inevitably will have to be paid large sums of money in the form of salaries, and in effect those salaries will be in the gift of the Whips, if they have to be elected Parliament by Parliament. If we are going to move to something along the lines of what is being suggested, it is essential that the term of office, the tenure, should be for at least 15 years, although I would rather see it set at 20 years.

Perhaps your Lordships would pause to reflect for a moment that it was actually the undemocratically produced House that in March 2005 defended the electorate from a democratically elected Government when the elected House was unable to do so. Therefore, I see no need for election. Further, on appointing Members, I would remind noble Lords that more than 50 per cent of this House was appointed during the prime ministership of the then Prime Minister, and I believe I am right in saying that the Government suffered the largest defeat of any Government since the war. So I am here merely to say: please remember that we are trying to preserve the power of Parliament in the face of the Government, and to do that you need at least one House of Parliament with what the Americans call "tenure". As it is not available in the other place, we ought to have it here.

7.57 pm

Baroness Kennedy of The Shaws: My Lords, this issue has engaged me since the launch back in the 1980s of Charter 88, which called for House of Lords reform as part of a serious rethink of our constitutional architecture. I chaired Charter 88 from 1992 to 1997 and played a role in putting constitutional reform on the Labour Party manifesto prior to the 1997 election.

More recently, I chaired with the Conservative politician, Ferdinand Mount, the Power inquiry, which also recommended the reform of this Chamber. However, I reinforce the point that those recommendations for a change to this House were set against a backdrop of holistic constitutional reform, a recognition that if you want to reform this House that reform will have knock-on effects and therefore should be seen in the wider context of the checks and balances that are needed to make our system work well. You have to ask questions: what is the second Chamber for, and what are its powers?

For that reason, Charter 88 in its manifestation argued for a written constitution, something that I still believe is necessary, particularly as we become a more mature and sophisticated democracy. We continued to argue in the Power inquiry report that there had to be

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a written declaration of what the powers of this House would be in relation to the House of Commons. If the primacy of the House of Commons was to be maintained, there would have to be some kind of statutory document or concordat setting down the nature of the respective powers.

We also suggested that there should be a regional basis on which this House might be elected. Parliament is at the heart of our democracy and it is vital that it has the confidence of the people. When the Power inquiry went around the country and asked the public what they felt about the House of Lords, they said that they wanted it to be elected. Interestingly, when the follow-up questions were asked as to what kind of membership they wanted, they said that they wanted it to be expert; they wanted Members to have a hinterland and to have experience in many different walks of life; and they wanted to see independence. They wanted in a strange way to square a very difficult circle, because finding an electoral system to produce that is the real challenge. I am not satisfied that the recommendations in the recent reports meet the requirement.

People repeatedly told us that they wanted independence of mind and a distance from party diktat. They were very clear that they did not want any extension of dominance and control by the main political parties. They did not want any reform that brought an increase in the writ and power of the Executive-that is, Downing Street- whichever party was in power. This was not in relation to any specific distrust of any particular political party. They liked the idea that people had a lifetime's experience in different walks of life and that that would provide a different kind of Chamber from the other. It is here that I take issue with the noble Lord, Lord MacGregor, who asked what kind of person would want to be in this new Chamber if they could not see a progression in their career. What people really like about this Chamber is that it is filled with people who are not professional politicians as we see in the other House.

What people did not want-we should concentrate a little on what is not liked about this House as we congratulate ourselves on our successes-is for the Lords to be used to reward party donations or as payback for services rendered to a political party or Prime Minister in some form or other or as a place of refuge for persons being removed from the House of Commons. They did not want it to be seen as a place to bump someone into to provide a safe seat for a party favourite. I am afraid that those suspicions are regularly reiterated by critics of this House.

There is wide agreement, therefore, about the need for reform. We are too large, and it is clear that there has to be a review of our size and our purpose, but we have to reflect for a moment on how you achieve that. It really is not becoming for us to congratulate ourselves on how terrific we are and on the quality of our debates. It is for others to say whether that is what they think. It is not enough for us to say that we should be allowed to stay here for ever. It is for others to decide on that. We cannot therefore talk about reforming this House without giving the public their say in how it should be done. It is for that reason that I urge that we consider taking a step similar that to that being

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recommended by the alternative report, which is that there should be some kind of constitutional convention but not in the form that is being suggested, with the great and the grand and the academic researcher being put on it.

The people doing that should come from among the general public. This is not something that has not been considered in other nations. Recently Canada, which looked at whether it should renew its electoral system and change it from first past the post to a proportional system, created a convention made up of a cross-section of its public. There is a clear methodology for doing that. It had proper and full debates, with evidence gathered from a properly drawn cross-section of the public, who in fact all decided that they preferred first past the post to the proportional representation that had been proposed. It is the public who should decide on this and not parliamentarians, who may have vested interests.

The person to whom we should turn is a very distinguished professor of political science at Stanford University, James Fishkin, who with a whole team of people there has developed this deliberative polling system. He has done it for Canada, and he has done it for other parts of the world when presented with constitutional issues of importance. I would advise this House to embark on having his team conduct such a thing here over the next period and advise our political leaders.

The complementary relationship between the two Houses should be at the forefront of our minds, but it is not acceptable in the 21st century for this House to be created through patronage. Power has to be given to the people. We have been enriched, no doubt, by the many people on the Cross Benches who have come here independently and not as part of the party system, but that could still be done under an electoral system. I am happy for it to be 80:20 per cent hybrid House if that is the consensus, but it is the public who should decide and not us.

8.06 pm

Lord Steel of Aikwood: My Lords, it is always a pleasure to follow the noble Baroness in debate, especially on constitutional matters, where she has such expertise and knowledge. I want to begin with a personal apology to the noble Lord, Lord Richard. Due to transport problems from Scotland today, I am afraid that I caught only the tail end of his speech, which I very much regret, because I say genuinely that the report that he and his colleagues have produced is a most valuable document for the House, as indeed was the alternative report.

In my seven minutes, I want to say just three things. The first is about what was my own Private Member's Bill. I say "was", because once it had been passed by this House, I regarded it as a House of Lords measure, which unfortunately lay unattended in the other place for some seven weeks. However, having registered my fury and the disappointment of the House, I am happy to report that sweetness and light have broken out and that it has been agreed that if a Bill identical to the one that left this House is reintroduced early in

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the new Session, it will be proposed to be put through the House by expedited procedure so that we do not have to go through all the stages again. When it is sent to the other place, it will be given a fair wind by the Government. I am very pleased to report that. It is important to disentangle that from the wider issues from the wider issues of reform, because it is a measure that we all want now, this year, and not between 2015 and 2025. I look forward to progress on that issue.

My second point is on the Leader of the House's suggestion that the manifestos of the three parties were remarkably similar at the last election. Well, up to a point, yes; they were also remarkably dissimilar. Of the three, I have to say that I prefer the Liberal Democrat one, because it was unambiguous in saying that we should have a fully elected Chamber. The words "fully elected" are very important because I keep pointing out, especially to my colleagues, that Mr Asquith and the preamble to the 1911 Act never used the words "universal suffrage" or "elected"; they talked about replacing the hereditary House by one based on a popular mandate. I believe that that could be achieved through the alternative report's suggestion of a constitutional convention and the fact that the committee's report and the alternative report both gave a nod in the direction of an indirectly elected Chamber merits further consideration.

I have read with interest the pamphlet of the Society of Conservative Lawyers, by Oliver Heald. It does not feature among my regular reading, I must admit, but I thought that it was a very good report. I understand that similar evidence was given to the committee by Mr Billy Bragg, who I think would claim to be on the left of the Labour Party.

Lord Hunt of Kings Heath: My Lords, I am interested in the noble Lord's support for what has come to be known as the secondary mandate. Should he not go back to Viscount Bryce's conference of 1917, which essentially proposed that?

Lord Steel of Aikwood: I am all for digging up older conventions in order for them to be considered by the new one.

I was going on to say that I have looked further at the work of the Cambridge Liberal Democrat, Dr Alex Reid, whom the noble Lord, Lord Low, mentioned, who also came to this conclusion. There is a measure of support across parties for looking again at the possibility of indirect elections. Dr Meg Russell, in her evidence to the noble Lord's committee, pointed out that 34 countries used this as their method of obtaining a second Chamber. What I did not know until recently was that there is a precedent for that in the United Kingdom. Precedent is terribly important in this House, I know that, and the precedent existed in Stormont. In the old Stormont, the Senate was elected by the lower House, so there is a precedent for doing that here.

There are certain advantages of the indirect election system as against universal suffrage. First, there is a good chance that if the electorate were existing MPs, MEPs and Members of the devolved Parliaments-a confined electorate-we would retain some of the expertise that appointments brings which we are afraid

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of losing. It would prevent conflict between the two Houses because the upper House would not be elected by universal suffrage. There would be no territorial conflict between senators and MPs because there would be no territorial definitions. The costs would be much less, both of the election and of running the House. Most important of all, the fundamental difference is that it would be possible, if such an election were held every five years after a general election, for the House to be adjusted proportionately without increasing the numbers, which is the way it is already constantly adjusted.

The last thing I want to say is that I disagree with the main report in its recommendation that there should be a referendum. Here I rather agree with what the Leader of the House was saying. To coin a phrase that has not been heard much recently, I agree with Nick. The question of a referendum is dangerous. We have to remind ourselves that the coalition came together for the specific purpose of putting right the nation's finances-full stop. We have not yet succeeded in doing that. We may not have succeeded in doing that by 2014-15 if the present economic situation continues. If we go to the electorate and say, "Okay we have not quite succeeded in putting the country right as we had hoped to do but would you mind voting for a more expensive new upper Chamber?", they will say to us, "But you've already asked us about a slightly obscure form of proportional representation. You've already messed about with constituency boundaries and tinkered with the National Health Service. You've spent months in both Houses reforming the House of Lords and what we want is to get the nation's finances back on a proper footing". They might say no. They are very likely to say no.

I end with the recollection that I was involved in the referendum in 1979 in Scotland. The late John Smith was a very good personal friend of mine from student debating days, despite our political differences. I remember that the one time we fell out was during that referendum because I said, "You're daft to have pictures of Jim Callaghan, after the winter of discontent, on posters with the word 'yes' underneath. The public are minded to say no to the Government whatever the question". I that fear the same will happen again and we could end up with nothing at all.

8.14 pm

Lord Quirk: My Lords, I join the many, blessedly without even attempting to repeat the views of the many, who have grave misgivings about the draft Bill and would favour only modest, provenly necessary, incremental reform of the kind that the noble Lord, Lord Steel, introduced in his Bill, which we are glad to know is back on course.

Of course, everyone here has benefited from reading the report of the noble Lord, Lord Richard. I was for example reinforced in my support for our bicameral Parliament that we have enjoyed for so long, at least until such time that the House of Commons can be trusted to scrutinise the Bills that it passes upwards. I welcome the idea of reducing the size of the House of Lords to something under 500. I welcome bringing in a term limit, and 15 years sounds just about right to

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me although I would prefer this to be done in three five-year bites, which could be manipulated to give the Appointments Commission a bit more room for manoeuvre. I share the strong feelings over Clause 2, as one who welcomes and would go on supporting the primacy of the House of Commons. I note with alarm the words in House of Lords Reform: An Alternative Way Forward that the draft Bill reveals an,

What I miss in the report is any convincing argument that the proposed massive change would mean that a new second Chamber would be any better than our present Chamber at what the present Chamber does best, which is revising and advising. Just think of the legislation that has passed through this House this year on health, welfare and legal aid. Bills were not only in need of root and branch revision, but they got it and, let us be fair, they got it above all through the intervention of the Cross-Benchers.

Obviously I would say that. I grant that not all the House's expertise, for which we are famed up and down the land, resides on these Cross Benches. But most of it does. I am astonished at the way in which we have come to expect something like a reduction to 20 per cent of a reduced total House as sufficient to get the kind of expertise that we have at the moment. The hybrid House that we are threatened with would be a very poor exchange for an alternatively revised House in which the independents in fact would form the core, serving and served by a political architecture like at present but smaller, representing the structures of government and opposition. My sense of the national mood is that our people would happily settle for such a House of Lords. I do not think that the people at large are so enamoured of what they currently get in the House of Commons as the result of their democratic vote as to be anything other than perfectly happy to forego the privilege of something similar but of paler complexion in the House of Lords.

8.20 pm

Lord Morris of Aberavon: My Lords, when the House debated its proposed reform on 21 June last year, I commented on a single issue: the Parliament Acts. I will do the same today. There are now two issues. The first is whether the Parliament Acts can be used to drive through a House of Lords reform Bill without its consent-the antithesis of a consensual approach. Secondly, there is whether the Parliament Acts will continue to be effective once the second Chamber has an elected element in it.

I proposed to the House and later suggested to the committee that the Attorney-General's advice be sought. The Attorney-General declined, in the main on the grounds that it would not be,

The Attorney-General was not asked to advise on the programme but on a particular draft Bill. I would have thought it highly desirable for the law officers, who can call on the widest possible resources upon which to formulate their views, to assist Parliament as requested. The committee quite bluntly states that it,



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If I was Attorney-General, I would be very unhappy to have such a weighty Joint Committee of both Houses pass such strictures. Perhaps the Attorney-General would think again if a specific Bill were brought to his attention. His interpretation, in addition to the weighty legal opinions that he points out exist within this House, would be extremely beneficial to our proceedings.

I set out in my earlier speech the caveats entered into in the opinions of Law Lords in the fox-hunter case, Jackson v Attorney-General, on possible limitations to the use of the Parliament Acts. Despite the caveats, I concluded that,

By "Parliament", I mean the House of Commons. This preliminary view is reinforced by the more deeply researched and persuasive views of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Goldsmith.

That aspect in itself was not my main concern, as I said in my letter to the committee. Since the issue is justiciable, courts at different levels have been known to disagree with each other and, in the words of the noble and learned Lord, Lord Steyn,

does Parliament wish to run the risk in such litigation of the possibility of at least the perception of politicising the courts? I leave it at that.

The second issue, which is more germane, is whether there is any reason why the Parliament Acts could not be used if we had an elected House of Lords. Both the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, commented on that and raised their concerns, to put it mildly. The noble Lord, Lord Pannick, said in his evidence that,

As the noble and learned Lord, Lord Goldsmith, says,

The committee, having considered the matter, concludes:

"If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision for it".

The alternative report reaches a similar conclusion, and I agree with it. The Joint Committee reports that,


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