We are planning not for the reasonable people we see around us—most of us are very reasonable—or for the reasonable and honourable people in another place. We are planning for how things may turn out in 10 or 15 years after the control and the safety lock have gone. To have a power such as the derogated detention powers as they were originally sent to us from the House of Commons in the Government’s hands would lead to the most terrible pressure on individual liberty. It is a fascist provision. That is what we are here for, that is why I stayed, and I hope that your Lordships will bear that in mind in the months to come.

9.02 pm

Baroness Symons of Vernham Dean: My Lords, I am very glad to follow the noble Lord, Lord Elton. I have always regarded him as something of a senior statesman in your Lordships’ House. I agreed with much of what he said about the priority of Europe at the moment. It was a point made by my noble friend Lord Giddens today and the noble Lord, Lord Owen, last Thursday. I hope that there will be the opportunity to have a debate specifically devoted to the subject of Europe and the economic and political movement around Europe at the moment.

I should mention again that I was a member of the Joint Committee on the Draft House of Lords Reform Bill and that I was also a signatory to the alternative report. Not very surprisingly, I intend to concentrate much of what I want to say on the announcement in the gracious Speech about reform in your Lordships’ House.

However, there is another constitutional point on which I hope the Minister will comment when he winds up. That is the announcement that the Government intend to take forward reform of the rules governing succession to the Crown. The briefing notes on the gracious Speech, which I believe are available on the Cabinet Office website, make it clear that this is part of a system to do away with male primogeniture—a system under which a younger son can displace an elder daughter in the line of succession—because the current arrangements are discriminatory. Does not the same discriminatory practice pertain throughout all the succession rights in the British aristocracy except

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where expressly provided for with some specific titles? Surely it is no more or less discriminatory to usurp the elder daughter of a duke or an earl in favour of her younger brother than it is to usurp the elder daughter of the monarch. I hope that some thought will be given to that when we come to consider the Bill, and I would value the Minister’s comments.

But of course the flagship policy on constitutional reform in the gracious Speech is the reform of your Lordships’ House, and since we last discussed it in this Chamber, we have all heard the gracious Speech. The 15-word reference to the reform of this House sheds little light on what the Government really intend. It says quite simply:

“A Bill will be brought forward to reform the composition of the House of Lords”.

No mention is made either of elections or of functions and powers, despite the clearly emerging consensus that functions and powers are unlikely to remain unchanged if the Lords are elected. However, whatever the gracious Speech says or does not say, the briefing notes from the Cabinet Office, available on the website, make it clear that the Bill is intended to ensure that most Members of the House will be elected. The Cabinet Office paper notes that there has been, in its view, a “broad consensus” on this since 2001, which I imagine is news to a great many of us, particularly to my noble friend Lord Grocott, given what he said earlier this afternoon. The briefing notes go on to claim that the Joint Committee which considered the Bill under the chairmanship of my noble friend Lord Richard agreed that there should be, “a mainly elected chamber”. That statement is misleading and I have today written to the Cabinet Secretary asking him why the Cabinet Office briefing notes are so inaccurate.

This is a fundamental issue. Your Lordships will see on page 150 of the Joint Committee report that the original draft said that the Joint Committee agreed that,

“the reformed second chamber … should be elected”.

That is a bold statement. It was a Conservative MP, Mr Gavin Barwell, who moved an amendment so that the sentence was deleted and a new sentence inserted to read that,

“the reformed second chamber of the legislature should have an electoral mandate”.

That amendment was passed. A mandate, as the Oxford English Dictionary tells us, is the,

“authority to carry out a policy or course of action, regarded as given by the electorate to a candidate or party that is victorious in an election”.

So the decision of the Joint Committee was to give an elected House of Lords the authority of a mandate. The sentence was then further amended—without a vote as everyone agreed—with the addition of the crucial words,

“provided it has commensurate powers”.

When I asked the Leader of the House why he had chosen to leave out this vital phrase in his opening speech last Thursday, in his usual jocular way he asked me what the Joint Committee had actually meant by “commensurate powers”. I hope that this is not going to be another consensus moment for the Leader of the House. The word “commensurate” is in common usage,

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and again the good old

Oxford English Dictionary

comes to our aid by pointing out that what it actually means is, “in proportion to”, or,

“corresponding in size or degree”,

or,

“of the same size … extent”.

In this case, it means the same size and extent as the electoral mandate.

There is no ambiguity about what paragraph 23 of the report says, and I hope that, given how much time was devoted to this issue, what the report actually says will be quoted rather than what many people who do the quoting would rather it had said. It says, for the avoidance of doubt:

“The Committee, on a majority, agrees that the reformed second chamber of legislature should have an electoral mandate provided it has commensurate powers”.

That is what the Cabinet Office briefing should have said.

The Leader of the House says that the Government want to proceed on the basis of consensus. We all know that the noble Lord, Lord Forsyth, who is not in his place at the moment but who has been here a great deal, has pointed out on numerous occasions that there is no consensus on election. However, there is consensus on a great number of issues regarding the reform of this House, as the noble Lord, Lord Jenkin of Roding, pointed out in his very good speech earlier today. There is consensus that we can begin reform now, taking the Bill of the noble Lord, Lord Steel, together with some of the reforms suggested by the noble Baroness, Lady Hayman.

Lord Campbell-Savours: The noble Baroness has repeatedly referred to the use of “commensurate powers”. In an intervention in our debate on 30 April—I am just trying to establish exactly where she stands—she defined “commensurate powers” as,

“doing away with Commons primacy”.—[

Official Report

, 30/4/12; col. 1963.]

If that is the view carried by the committee in the amendment that my noble friend referred to, is she then suggesting that it was the view of the majority of the committee that they should do away with Commons primacy?

Baroness Symons of Vernham Dean: No, my Lords, I am not suggesting that; I am suggesting that “commensurate powers” means what it says, particularly when it comes in a sentence that refers to an electoral mandate. The current settlement between the two Houses on the constitutional position and the conventions must change in favour of the House of Lords if it is elected.

We could have consensus not only on the Bill of the noble Lord, Lord Steel, but on the reforms suggested by the noble Baroness, Lady Hayman, in her excellent speech earlier today. Such reforms would fulfil the undertaking given in the gracious Speech to,

“reform the composition of the House of Lords”.

The Government would be doing exactly what is laid out in the gracious Speech. There is consensus in the Joint Committee report that giving an electoral mandate to the Lords means that the elected Lords has powers

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commensurate with that mandate. That after all lies at the heart of democracy. Elections mandate the elected, and those elected become accountable to their electorates.

There is further consensus that Clause 2 of the Bill is completely unfit for purpose; it has no friends other than the Deputy Prime Minister and the Minister responsible for the Bill. Moreover, there is consensus that if there is a parliamentary decision to elect the Lords, the people should be consulted in a referendum. Even the noble Lord, Lord Tyler, agreed on this point earlier in our exchanges on this issue. I do not know whether the rest of the Liberal Democrats agree with him, but I rather gathered from the remarks of the noble Lord, Lord Rennard, that some of them would take issue with him over that.

The noble Lord, Lord Tyler, and I exchanged views on what we voted on. For the avoidance of doubt, we voted on a proposal which was agreed. It was:

“The Committee recommends that, in view of the significance of the constitutional change brought forward for an elected House of Lords, the Government should submit the decision”—

not the proposal—

“to a referendum”.

There were no “ifs” or “buts”; the Joint Committee agreed, as more and more commentators are agreeing, that a decision to elect the House of Lords should be subject to a referendum of the people of this country.

I think that a further consensus has started to emerge: that there will be no consensus around this totally inadequate Bill unless it is a consensus that it does not work. It falls short at virtually every point, from the Parliament Acts, through Clause 2, to primacy, and from the almost Byzantine arrangements for elections on a proportional representative system—a form of which the people of this country have already decisively rejected—to the non-renewable terms of office. The noble Lord, Lord Ashdown, said that we fell short of even the standards of Egypt in this respect. I discussed non-renewable terms of office recently with some Egyptian visitors to this country. They wanted to be MPs in the Egyptian Parliament. They said something to me that made me think they were talking about non-renewable terms. I said, “Is it non-renewable terms to which you are referring?”. They said, “Oh, no, of course not. We know there is no accountability with non-renewable terms. We would not dream of using them”. They understood that point very clearly.

The Government are obviously in trouble over this Bill. They know that it cannot work but they have all promised each other to give it a jolly good try to get it through. The noble Baroness, Lady Boothroyd, put her finger on it precisely. Ministers are now falling over each other to say what has been pretty obvious to all of us for some time now: this Bill is not a priority. If it fails, as I hope it will, we will be back where we started, waiting for another try perhaps in 2015, 2020 or 2025. I strongly agree with the noble Baroness, Lady Hayman, that we should act on the consensus that we have. As suggested in the alternative report, there is consensus on the Steel Bill, some of the noble Baroness’s own proposals and some of the Goodlad proposals. I believe that we should set up a constitutional convention as laid out in the alternative report to consider whether and how we could eventually elect

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the House of Lords. That should consider inter alia how the elections would affect the Commons and the devolved Parliament and Assemblies. It should consider the composition of religious representation in your Lordships’ House, the role of government in the Lords and the crucial question of the effect of the possible independence of Scotland. Above all, a convention should consider the powers and functions of the Lords and Commons, and deal with the fact that we would have two elected Chambers comprising what

Erskine May

describes as “representatives of the people”. There would be two such Chambers but with no written constitution to work out which Chamber would prevail in the event of a dispute—a point made so eloquently by the noble Lord, Lord Kakkar.

The noble Lord, Lord Ashdown, thinks that it will all work itself out, as he claims that it has in the past—a prospect of, “Well, let us see what happens”. That is an irresponsible attitude and one that no sensible Government should proceed on. The noble Lord did not answer the point about a written constitution leading to the possibility of the courts having a direct role in the conduct of Parliament. Perhaps the Minister would like to give that one a shot when he replies to the debate.

I make no apology for emphasising that before we get this Bill—if we do—we need some proper costings, with options properly, openly and transparently done to see what the price of 300 of 450 additional, salaried politicians would be. Or we could try the other way, as described in the alternative report. Constitutional conventions are a sensible way to find answers to complex questions—ones not answered in the Bill or White Paper, or by the Joint Committee. So far, nothing has produced a consensus on what should happen if there is an elected House. I ask the Minister to give this suggestion some serious thought, not simply to shrug his political shoulders and say that it is not something that he is prepared to consider. It will take time and effort but it could produce results, although not quickly. It may produce something far more durable and workable than the current Bill.

The noble and learned Lord, Lord Lloyd of Berwick, said that the alternative report made no mention of the Wakeham commission. It does. It does so twice in warm terms. If the noble and learned Lord reads paragraph 5.8, he will see that the royal commission is referred to as having been chaired by the former Leader of both the House of Commons and the House of Lords, the noble Lord, Lord Wakeham, and as having given the fullest recent consideration to a range of proposals on further reform of the House. It is further referred to at paragraph 5.2. If the noble and learned Lord would like to reread the alternative report, I have one or two spare copies.

Lord Lloyd of Berwick: My Lords—

Baroness Symons of Vernham Dean: If I may, I shall just finish my point and then of course I shall give way.

Each generation has to look at this again. It has been 12 years. A lot has happened in the past 12 years. This generation of politicians has to look again at the issues to try to find answers for the 21st century.

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Lord Lloyd of Berwick: I thank the noble Baroness for giving way. Of course I accept that there were passing references to the Wakeham commission, but the question is: why does the alternative report not accept the conclusions of that royal commission?

Baroness Symons of Vernham Dean: My Lords, I hope that I have answered that. I do not think that they are passing references. I think that the noble and learned Lord does scant justice to the fact that both references to the commission are warm. I hope that I have answered his point: why not just accept it? Because every generation of politicians has to reach its own view, consensus and compromise. That is what is necessary now.

A constitutional settlement is needed between the two Houses and between the constituent parts of the United Kingdom. A settlement of two elected Chambers with commensurate powers may well emerge. On the other hand, something very different may emerge. What cannot emerge is this totally inadequate Bill on Lords reform. The Bill is fundamentally flawed, and we should not waste further time discussing it. Rather, we should concentrate on where we can get consensus, and we should do that as soon as possible.

9.21 pm

Lord Bichard: My Lords, it is always tempting to believe that simple changes will solve complex problems. Indeed, many of us have reached these giddy heights because we have convinced others that we have a simple solution to their complex problem. Too often, our simple solution has involved changing the composition or structure of our national institutions, which is why so many of them have changed so rapidly over the past decade or more.

The reality, of course, is that changing the composition or structure of an institution rarely improves its performance. To do that, you have to look beyond the structure and examine how it operates and how the systems work or do not work. In the context of reform of this House, the lesson of experience is that changing the composition of the House will achieve little. Actually, that is not quite true: it will undermine the primacy of the other place; it will add yet further elections to our increasingly confused democratic landscape; and it will probably increase, rather than reduce, political patronage.

The sadness is that reform is needed; indeed reform is overdue. The noble Baroness, Lady Hayman, and the noble Lord, Lord Steel, have pointed us in the direction of reforms with which we would probably all be able to agree, here and in the other place. Our reforms should also address the current shortcomings of Parliament, not just of this House. Regrettably, those shortcomings are not difficult to find. I say that so as not to be accused by the noble Lord, Lord McNally, of being smug. For a start, as other noble Lords have said, we simply have too much poor quality legislation. As the noble Lord, Lord Butler, found out by asking a Question for Written Answer in January, significant parts or all of 77 Acts from 15 departments passed between 2005 and 2010 have never even been brought into force. I am not entirely surprised about

14 May 2012 : Column 229

this because I remember how departments, Ministers and senior civil servants saw legislation as a way of demonstrating their importance, so they fought hard for their place in the gracious Speech. I have to say that it was also a very convenient way of occupying the excessive number of Ministers that most departments have.

If we are to balance this continuous pressure for more legislation, we urgently need a process for ensuring that the Government have to explain the purpose and the necessity of any new Bill. They have to set out for examination the likely benefits, as well as the costs and risks, and indicate whether real, reasonable consultation has taken place with those who are affected. As yet, we have no such system. We have committees to scrutinise statutory instruments but we have no similar scrutiny of primary legislation before it reaches the Floor of this House. That is why one of the key recommendations of the Leader’s Group on working practices was to establish a legislative standards committee. We have not yet implemented that, which I assume means that we are relaxed about spending huge amounts of our time debating legislation which will not even be implemented.

We seem similarly relaxed about the impact of legislation which has been implemented, because Parliament has little effective post-legislative scrutiny in place. In the other place, departmental Select Committees rarely, in all honesty, find time for rigorous post-legislative scrutiny, while in this House, although we have recently agreed to carry out one post-legislative review in this Session—of course, I welcome that—this again falls some way short of the recommendations of the Leader’s review and hardly represents a firm commitment to the rigorous scrutiny we need if we are to learn the lessons of success and failure.

The problems do not end there. As other noble Lords have said, in this House we often—even in my time—have had cause to express disappointment at the quality of legislative scrutiny in the other place. The noble Lord, Lord Phillips, remarked on this earlier. Programming arrangements mean that the Executive are often not held adequately to account, which means that draft legislation reaches this House in poor order. I have been shocked at the quality of some Bills which have come to this House during the past two years. Of course we take pride—justifiably, I think—in the quality of scrutiny in this House and many Bills have certainly been significantly improved as a result, but we also saw in the previous Session many examples of how reasoned amendments made in this House received very scant attention when referred back to the other place. The fact is that the balance of power has shifted away from Parliament and towards the Executive, in a way that is not healthy for parliamentary democracy and should now be addressed. Surely there can be no more urgent or important issue than that in a parliamentary democracy.

I could cite other issues which should give us cause for concern. For example, there is the continued relative lack of pre-legislative scrutiny. I welcome the increased number of draft Bills in this Session, for whatever reason, but pre-legislative scrutiny is not something to which we generally feel committed. There is the failure

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properly to engage interest groups and expertise beyond Parliament. I might even refer to the complete failure to codify, or even describe, the key constitutional relationship between central and local government.

Yet, in the face of these shortcomings, we prefer to debate at great length whether we should change the composition of the House. As has been said already, the public have shown themselves to have little interest in that. If we look, as the noble Lord, Lord Phillips, did earlier, at the latest audit of political engagement from the Hansard Society, we see the consequences of our failure to address the other issues that I have referred to. I make no apology for touching on those findings again. Less than one-quarter of the public thinks that the system of governing works reasonably well in this country. Only 49% agree that the issues that are debated and decided in Parliament have relevance to their lives. Only 38% agree that the Government are held to account by Parliament, and only 30% agree that Parliament does enough to encourage public interest and involvement in politics. Those results are devastating, and in the face of those devastating results we might just ask ourselves whether further lengthy debates about the future composition of this House will reverse those trends better than us showing signs that we are committed to genuine and radical reform of the way in which we and the whole of Parliament operate.

My view is that further debate will do further damage to the reputation of this House and of Parliament, but I am convinced that it will also further delay the necessary reforms that I and other noble Lords have referred to. Surely this is the time to withdraw this unwelcome Bill and commit ourselves to reforming Parliament in a way that the public will understand and recognise.

9.32 pm

Lord Pannick: My Lords, this Government have a poor record on constitutional reform. The observations of your Lordships’ Constitution Committee, of which I am a member, on the Fixed-term Parliaments Bill may perhaps be applied more generally. The Government’s legislative proposals have owed more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand.

The Fixed-term Parliaments Act was no doubt a political necessity for this coalition but I know that I am not the only noble Lord who thinks that its constitutional merits are far less obvious. The Parliamentary Voting System and Constituencies Act introduced a rigid formula for constituency boundaries. Your Lordships will recall that this was the high price paid by the Liberal Democrats—one which their candidates will be paying at the next general election—for a referendum on a system of electoral reform, AV, which even the Liberal Democrats believed to be unsatisfactory.

I hope that in this Session of Parliament, as we debate the constitutional Bills to be brought forward, the Government might be more willing to listen to constructive criticism from this House on their proposals. The noble Lord, Lord Bichard, mentioned the problems that we have had in the past two years.

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This fascinating debate has focused, predictably and understandably, on reform of this House, but there are at least five constitutional measures in the gracious Speech. The first is the very welcome measure to reform the rules governing succession to the Crown so that the oldest child of the late monarch will succeed, not the oldest son, and to remove the unjustifiable bar on the monarch marrying a member of the Catholic faith.

The second constitutional measure is the Electoral Registration and Administration Bill, which the noble Lord, Lord Rennard, spoke about earlier. I am disappointed that the Bill published does not seek to implement the recommendation made by your Lordships’ Constitution Committee in its report dated 25 January 2012 that anyone on the electoral roll who is in the queue to vote at the polling station at 10 pm should be allowed to vote. The present system, as seen at the previous general election, prevents people voting even though they turn up at the polling station before 10 pm and if there is a failure, beyond their control, by the returning officer to ensure that an adequate number of staff is on duty to meet the demand. This is a matter of real constitutional importance. We are all concerned about the low turnout in elections. It is surely desirable to accommodate those who make the effort to turn out to vote and who arrive at the polling station before it closes at 10 pm.

The third constitutional measure is contained in Schedule 12 to the Crime and Courts Bill that your Lordships’ House will soon be considering. I welcome the provisions contained therein to promote judicial diversity. The measures are very similar to those recommended by your Lordships’ Constitution Committee in its report published in March.

The fourth constitutional measure is that the gracious Speech mentions a Bill to allow courts to hold closed proceedings in cases that have national security implications. Your Lordships’ House will want to scrutinise most carefully any such provision to ensure that limitations on open justice are approved only to the extent strictly necessary.

The fifth constitutional measure is, of course, the Bill to reform or, as some noble Lords have suggested in this debate, destroy this House. Your Lordships have heard some exceptional speeches on both sides of the argument. I am, I think, in a very small minority of your Lordships on this issue. I can see the strength of some of the arguments on both sides. That may help to explain why I earn my living as an advocate, not as a judge.

It is very clear that there is a very strong argument that this House as presently composed performs well its limited role, but vital function, of scrutinising legislative proposals. There is a very strong case that an elected House would not be prepared to defer to the House of Commons and so would threaten the primacy of the other place, but surely we also have to recognise that there is a very strong argument that membership of a legislative Chamber, even one with limited powers, most of whose Members answer to a political Whip, cannot continue to depend on patronage.

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It should be based directly or indirectly on the will of the electorate or be amended in some other fundamental manner.

There are strong arguments on both sides. Noble Lords should not be surprised that there are strong arguments on both sides of the case. It is precisely because of the strength of the competing arguments and the impossibility of reconciling them that this issue has festered and has not been resolved for over 100 years.

It is plain from the speeches in this debate, the Joint Committee reports and the debate on those reports that we had a couple of weeks ago that one of the central questions for the Government, which they have not yet answered, is: what measures will be included in the Bill, when it is brought forward, to preserve the primacy of the other place? As I understand it, that objective is shared by the proponents and opponents of the Bill. Indeed, in his speech on 1 May, the noble Lord, Lord Hunt of Kings Heath, said from the opposition Front Bench that this,

“is perhaps the most crucial point of all”.—[

Official Report

, 1/5/12; col. 2102.]

I respectfully agree with him. That question has always been at the heart of the debate about the future of this place.

Noble Lords will know that in his stimulating book about the Parliament Acts, Mr Balfour’s Poodle, written in 1954, Roy Jenkins—Lord Jenkins of Hillhead—said that reform of the composition of the House of Lords had been so long delayed because what he called “the left” in politics was,

“interested above all in the supremacy of the Commons”,

and so,

“sees the relationship between the two Houses, rather than the composition of the second, as the dominant issue”.

In my evidence to the Joint Committee, I addressed one vital aspect of the primacy of the Commons. I suggested that, as a matter of law, the Parliament Acts would not continue to apply if a House of Lords reform Bill were to be enacted so that the upper House had an 80% or 100% elected membership. The simple reason for that is that the Parliament Acts were expressly concerned with the interim period prior to reform of this place. The noble and learned Lord, Lord Goldsmith, gave evidence to like effect, and I am pleased that the noble and learned Lord, Lord Mackay of Clashfern, said in this debate last Thursday that he took the same view of this matter.

I suggested in my evidence to the Joint Committee that any Bill brought forward by the Government should contain express provisions that addressed whether and to what extent the Parliament Acts would continue to apply. I did so because the inevitable and wholly undesirable alternative is that this fundamental matter would be left open to doubt and would eventually be resolved by the courts, rather than by Parliament. The Joint Committee concluded in paragraph 368:

“If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision”,

in the Bill. The committee agreed with the evidence that was given by me and the noble and learned Lord, Lord Goldsmith. The Minister and the Leader of the

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House have been very reluctant to express the Government’s view on this vital question. In responding to this debate, will the Minister now please answer this point and tell the House what the Government’s position on this matter is?

Finally, on the more general question of reform of this House, I ask the enthusiastic supporters of the reform Bill to recognise that many noble Lords, of whom I am one, who are concerned about the implications of the Bill, particularly for the relationship between the two Houses, are as committed to democratic principles as they are. There is no monopoly of concern about democratic principles on one side of this argument. The noble Baroness, Lady Hayman, made that point most eloquently today.

A consensus exists on the way forward on these difficult issues where there is a battle between right and right. The consensus would involve as a vital and much-needed next step in House of Lords reform measures that would include a reduction in the size of this House, an end to by-elections for hereditary Peers, the exclusion of noble Lords whose ignoble conduct makes it wholly inappropriate for them to remain Members of a legislative Chamber and, I would suggest, the removal of the Prime Minister’s powers of patronage and their replacement by a statutory appointments commission. I very much hope that the Government will recognise that such measures of reform would be a substantial, worthy and realisable achievement.

I look forward, as I am sure do other noble Lords, to contributing to the vital scrutiny by this House of the constitutional measures to which the gracious Speech refers.

9.46 pm

Lord Falconer of Thoroton: My Lords, I apologise to the Leader of the House, my noble friends Lord Hunt of Kings Heath and Lord Wills, the noble Lords, Lord Tyler and Lord Wakeham, and the noble Lord, Lord Maclennan, who, sadly, is not here to receive my apologies, for being absent when they made their speeches. I have read them in Hansard and I shall return to them in my winding-up remarks. I also apologise to the noble Lords, Lord Stoddart of Swindon and Lord Thomas of Swynnerton, because I was having my supper at the time that they made their speeches. My noble friend Lord Hunt of Kings Heath has told me all about their speeches and has spoken about them in the warmest possible terms.

Over two days, we have debated the constitutional aspects of the gracious Speech. We have devoted the vast majority of that debate to the proposals for reform of your Lordships’ House. I anticipate that in this Session of Parliament, this House will do very important things about constitutional reform and that that will have nothing to do with Lords reform.

Before I turn to wind up the debate from our side of the House on Lords reform, I wish to comment on the particularly important things that the Government will do. First, the royal succession is important and we support the proposals being made by the Government to do away with male primogeniture. We will do everything in our power to help those proposals go ahead. We agree that these must be done in such a way

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as to preserve our relationship with the Commonwealth. We believe that there is a degree of urgency in relation to those proposals.

Electoral registration is the second important constitutional issue that will be faced by this House in this Session. I agree with what the noble Lord, Lord Pannick, says but there is a more important point in relation to that as well. However much we debate the importance of the House of Lords in our constitution, the one thing on which no one disagrees is that the Commons is where the pivot of our democracy takes place.

As my noble friend Lord Wills mentioned in his excellent speech on electoral registration, the Electoral Commission has said that if the Government’s proposed reforms go forward in their current form—introducing individual registration without tying it to a comprehensive improvement in the amount of registration—it is possible that the number of people who are registered could go down from 90 per cent to 60 per cent. We have focused very much on Lords reform and not on that issue, which has an immediate and definite effect on our democracy.

I ask the noble Lord, Lord Wallace of Saltaire, who I understand will be winding up on behalf of the Government, what their response is to what the Electoral Commission says on the effect of individual registration. What steps are the Government taking and what expenditure are they making to ensure that electoral registration does not go down significantly as a result of proposals that are being made? It is important to emphasise that the people who are most affected by a lack of registration are the poor, the disabled, the young and those from the black and minority ethnic communities among us. So it is an important issue for the Government to address.

The next issue on constitutional reform that I believe to be important is judicial diversity. It is of immense importance as far as the country is concerned that we have a judiciary that reflects our society. There is no doubt that our judiciary, which is excellent in very many respects, does not reflect in its gender and racial balance the country that it judges. We would be very keen to see detailed measures and, in particular, those that move away from the situation in which the person at the top of the class gets appointed to judge, to one which looks at merit in a much wider context, as we believe it should be. That is the basis on which the Constitution Committee of this House addressed the issue, and we strongly support that approach. Could the Minister tell us when we can expect a Bill to deal with that?

Another issue to affect the constitution is the defamation Bill. The noble Lord, Lord Mawhinney, was right that it will have a significant impact on freedom of speech. The committee that the noble Lord, Lord Mawhinney, chaired was an important one, and we should try to give effect to the proposals that it made.

The final constitutional issue, before I come to Lords reform, is that of Europe, which is not referred to in the gracious Speech, save in the mention of proposals to be put before the House to admit Croatia as part of the European Union. The noble Lord, Lord

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Elton, and the noble Lord, Lord Owen, in what was an exceptional speech, and my noble friend Lord Giddens are right to say that there are things happening in Europe that are of greater importance than many of the other things that we have to debate. What do the Government say is the UK’s position on the change in arrangements and structure of Europe that is being proposed in some quarters and which will inevitably have to be given effect to deal with the eurozone crisis?

Those are the issues that we will be dealing with in the course of the next year, the issues that will affect our constitution, and the issues on which I hope we will have a role and voice in this House. They affect our country much more than Lords reform.

Where are we on Lords reform? Although I missed all the speeches that I indicated, I had the pleasure of listening to the other 46 speeches during the course of the Thursday and Monday. It is true to say that there were some very exceptional and penetrating speeches in relation to the issue. Without being invidious, I wish to single out the speech of the noble and learned Lord, Lord Mackay of Clashfern, which completely encapsulated the relationship between electoral mandate and the powers of the House. I refer also to the speech of the noble Lord, Lord Norton of Louth, who expressed very clearly that our electoral system is based on the fact that we have a Government in the Commons, and if you do not like that Government you throw it out by election. The effect of changing that is that you fragment—to use his word—accountability.

Then there was the speech from the noble Baroness, Lady Shephard, who completely got right the fact that it is obvious that the work has not been done on this Bill. She did not say it in capital letters, but I felt that it was in capital letters, and her message to the Government was, “Do the work”. That is obviously right. The Leader of the House said, “Well, hold on, it is proposals from the noble and learned Lord, Lord Falconer, and Jack Straw, on which we are building”. We both put forward proposals which foundered on the fact that we could not deal with the powers and electoral accountability issue. We learnt from that. We thought that if the Leader of the House was going to come forward with proposals, he would have a solution to that problem. I waited in anxious hope for such an answer to come. Unfortunately, although I was not present when the noble Lord delivered his speech, all that I got from it was effectively abuse of the Labour Party. As I understand it, he said that if we did not support his proposals—the noble Baroness, Lady Boothroyd, floated this—the failure to get reform would be,

“entirely due to Labour’s conniving and collective spinelessness”.—[

Official Report

, 10/5/12; col. 31.]

I was very surprised to read that. If I were trying to build consensus, I asked myself whether the way to do so would be to abuse the noble and learned Lord, Lord Falconer of Thoroton, and all his colleagues. No, so I wondered what the noble Lord’s motivation was for abusing me. Then I reached for the previous Saturday’s Financial Times and read that the noble Lord the Leader of the House had wagged his finger

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at the Commons, saying that the moment we had an elected element we would be much more assertive against the Commons.

I completely agree with what the noble Baroness, Lady Boothroyd, said. Was the noble Lord trying to encourage dissent in the Commons? He points at himself and shakes his head in his inscrutable way. The most telling aspect of the whole story is this: if he really wanted consensus, would he not resort to his normal oleaginous charm? Would he not talk to us in that deferential way that we have come to love in the House of Lords? We know that he does not believe in almost everything he says, but at least he tries to persuade us. However, that is not the case on this occasion; he has switched to a completely new mode.

Where are we then on Lords reform? I cannot hope to match the quality of some of the speeches that have been made but I shall seek to analyse where we have got to. Everybody, including the proponents of the Bill, now agree that it is unlikely that the relationship between the two Houses would remain the same if we kept everything the same, except for making all or the majority of the Members of this House, elected. The Joint Committee said unanimously—this is not the alternative report; every single person on the Joint Committee said this—that,

“following election the increased assertiveness of a reformed second chamber will affect the balance of power between the two chambers in favour of the House of Lords”.

The alternative report expressly agreed with that position. If we have had the opportunity to read the Financial Times of two Saturdays ago, we will know that the Leader of the House of Lords also agrees with that proposal.

The Government’s proposals were advanced on the proposition that we do a good job in the House of Lords and that everything should remain the same except the method of entry. In the light of the unanimous view that election will affect the balance of power between the two Houses, it is plain that the aim and stated purpose of the reform—namely, to leave everything the same except method of entry—has not been achieved. The approach of the noble Baroness, Lady Shephard, with which everybody agrees, is that more work needs to be done to address the question of powers. According to the noble Lord the Leader of the House, the Conservative Party is divided on whether there should be Lords reform and, if so, what the form of that reform should be. My party is not committed to supporting the current proposals. It believes, as do many people, that the problem of powers is unresolved and that a hybrid House of the sort proposed would reduce the validity of non-elected Peers, who would tend to give way to the elected Peers. We are committed to there being a referendum before any significant proposals for Lords reform can proceed.

Lord Ashdown of Norton-sub-Hamdon: I wonder if the noble and learned Lord could be clearer than was his noble friend, the noble Lord, Lord Hunt, in our debate last Thursday, in which he seemed unclear as to whether or not, if this Bill were presented to this House absent of a clear codification on the issue of powers, the Labour Party would vote in favour of it. Can the noble and learned Lord enlighten us? If the

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Bill comes in that form, without a clear codification, will the Labour Party vote in favour of it, or will it not? Yes or no.

Lord Falconer of Thoroton: My noble friend Lord Hunt was absolutely clear. We will not vote for a Bill that does not solve the problem of the powers. We do not believe that the draft Bill does that. As my noble friend made clear, we will have to wait and see what is then produced. There was absolutely no lack of clarity in what my noble friend Lord Hunt of Kings Heath said in relation to that issue.

Our position is clear. The Conservatives’ position is clear. I should also make it clear that I thought that two of the parties were divided internally as to what to do—the Conservatives and Labour—and that the Liberal Democrats were united. Imagine our surprise when we saw them today. First, we had the greatest exponent of Lords reform, the noble Lord, Lord Tyler, who, to his great credit, did not even mention Lords reform. We heard the excellent noble Lord, Lord Phillips, give an inspirational speech on how well the Lords performs now; we had the noble Lord, Lord Maclennan, saying that more thought was required; and the two proponents of Lords reform were the noble Lords, Lord Ashdown and Lord Rennard.

The passion of the noble Lord, Lord Ashdown, for reform was so great that he did not allow history to get in his way; he did not allow foreign comparisons to be drawn accurately; and he was, on two separate occasions, corrected on the facts in relation to his speech. Nobody, particularly those in the Egyptian Parliament, could have doubted his enthusiasm for Lords reform. I wonder whether enthusiasm is enough. Surely it would be much more sensible if we got down to the arguments in relation to it.

I continue on the propositions: there is no doubt that the Joint Committee was divided on the way forward. The Lords is, by a very substantial majority, I would opine, opposed to the Government’s reforms. The Liberal Democrats, however, are, by a majority, in favour of reform but appear to have nothing to say on the detail. The current position is obviously a very bad basis for reform. I am very sympathetic to the position of the Leader of your Lordships’ House, who everybody admires and likes. Like him, I embarked on proposals for reform—but they foundered. The right thing for the noble Lord to do is to come forward with proposals that have some prospect of success.

We know that we all agree on certain things. The speech of the noble Baroness, Lady Hayman, went much further than the Steel Bill, and we can implement those proposals as quickly as possible. The answer for us, in terms of ensuring that we retain our effectiveness and status, is to come forward with detailed proposals that would be attractive to people. It is ultimately not enough to have the excellent passion of the noble Lord, Lord Ashdown, and the position of the noble Lord, Lord Strathclyde—

Lord Maclennan of Rogart: I am most grateful to the noble and learned Lord for giving way, but does he not agree that we cannot move on this subject in a sensible way until we know whether the constitution

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of the United Kingdom will remain one, or whether Scotland falls out—in which case, a completely different House of Lords or second Chamber would be required?

Lord Falconer of Thoroton: I think that we could move on some proposals for reform—for example, the ability of Peers to retire, the ability to expel particular sorts of Members to deal with the hereditary Peers, and various other proposals made by the noble Baroness, Lady Hayman. If there were a consensus and a genuine feeling that the Commons desperately wanted a democratic House of Lords, we should probably move on that basis, but that is obviously not the position. That being so, I completely agree that we need to consider what may happen in relation to Scotland before any final conclusions are made. However, the ball is very much in the Government’s court.

I want to comment on the way that the Government are behaving in relation to this issue at the moment. I particularly have in mind the remarks made at the beginning of this debate by the noble Lord, Lord Strathclyde, who is preparing to lay the blame for the failure of these Lords reform proposals. If one starts to prepare the way for failure and to wonder where the blame lies, then we are really wasting our time looking at these proposals. Let us give up now if there is no commitment from the person who is supposed to be leading the process of reform on behalf of the Government. There could not be a clearer signal that the Government are wasting the time of this House and the other place and bringing the whole of Parliament into disrepute than that they should try and fail to amend the arrangements for the constitution.

I should be very interested to hear from the Minister when we can see a Bill on this issue. The noble Lord, Lord Strathclyde, made it clear that we have not yet seen the Bill that the House will consider when it comes from the Commons. I should be interested to hear whether the Government intend to impose a timetable Motion in relation to the Commons’ consideration of this constitutional Bill. My third question relates to the extent to which the door is closed on a referendum. If the door is closed and we are not going to have a vote on whether the second Chamber should now be elected, why did we have a vote on whether admirable places such as Doncaster should retain their mayors? Can the Minister explain the Government’s position on this?

I regarded myself as one of the greatest enthusiasts for the topic of Lords reform. However, having listened to 46 speeches stretching from Thursday to Monday, I have to say that my enthusiasm has waned a little. If the enthusiasm of an anorak such as myself has waned, imagine how the country will view the issue.

10.07 pm

Lord Wallace of Saltaire: My Lords, we have spent some considerable time on this debate with the agreement of all the usual channels, and I sometimes fear that the House of Lords loves nothing better than to talk about itself at considerable length. We have heard a full array of opinions, with the debate ranging very widely over constitutional theory and the principles of democracy, but that makes it impossible for me to

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answer all the points made, for which I must apologise. Some interesting and novel ideas were expressed. Among them I particularly noted the fascinating ideas of the noble Lord, Lord Campbell-Savours, on reshaping the parliamentary oath, and I think that they deserve fuller consideration before any of us respond.

I start by referring, as have many noble Lords, to the wider context of political disillusionment and the coalition Government’s response to it. I know that it concerns a great many of us and it ought to concern us all. Reform of this place and the opening up of Westminster is part of the response but the Government are very clear that the localism agenda, bringing power back down again to local communities and local authorities, is a necessary part of re-establishing public trust in what to many of them seems remote government. Professor Sir John Baker, in his evidence to the Joint Committee, listed the balance between central and local government as one of the constitutional issues that ought to be dealt with by a special procedure.

Over the past 40 years the balance between central and local government has shifted quite radically under successive Governments, through the process of legislation and statutory instruments, without considering whether it was fully constitutional. This Government are now trying to shift that balance back.

A number of noble Lords—the noble Baroness, Lady Armstrong, the noble Lord, Lord Grocott, and others—held that the key to British democracy is the direct link between the local voter, their MP in the Commons and the ability of Members of Parliament to challenge the Prime Minister on that voter’s behalf. With respect, I suggest that the declining turnouts in general elections indicates that a rising number of voters do not feel that that single link carries the full weight of their confidence or trust. It is too distant and too remote, which is something that we all need to think about as we try to rebuild trust.

We also had a number of arguments from former Members of the other place about the threat of competition in democratic representation. There was a theory, which I understand, that there can be only one territorial representative. That is what I think of as an MP’s freehold, or at least an MP’s leasehold for five years, and is not unlike a parson's freehold. I am not sure how the public respond to that argument either. I should perhaps add that between 1997 and 2005 the then Labour MP for my constituency in Yorkshire, Shipley, delighted in putting on his website that the village of Saltaire included a whole raft of representatives: a Member of the European Parliament who lived there; a Member of the House of Lords—me—two local councillors and the MP himself. In fact, we campaigned together on local issues. Although we represented three different parties, we did not fall over each other. I doubt whether the greater empowerment of local councillors will threaten MPs.

The noble Lord, Lord Wills, and others raised the question of the individual electoral registration Bill, which has now been published and will shortly be introduced. We have put a number of extra safeguards into that Bill, such as using data matching to confirm the majority of existing electors and automatically

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retaining them on the register, which we are confident will ensure the completeness of the register during the transition. However, we look forward to detailed scrutiny of the Bill when it comes to the House.

Lord Wills: As this is so important—I know that it is very late—I would be grateful if the Minister would say what gives him such confidence that the register will be so comprehensive. It is not comprehensive now. Every independent expert thinks that the way in which the Government are introducing individual registration will make it even more flawed. When I was the Minister and brought in most of the measures that the Government now think will make the register comprehensive, I was not confident that they would make it comprehensive. It was because I was not so confident that we tied the introduction of individual registration to the comprehensive nature of the register. Why is the Minister now so confident that there will be a comprehensive register in the next two years?

Lord Wallace of Saltaire: The Bill has just been published and we shall be discussing this in some detail. I am not entirely confident that any means can achieve a totally comprehensive, accurate and complete register. I spent two weekends working in the Bradford West by-election, going along roads where the houses had several names on the bell-pushes but no one on the register. That demonstrated to me that, in a number of places, the register is already quite inaccurate. The Friday that I spent with a community association in south Bradford, where I discovered a large number of people who positively do not wish to be on the register, also demonstrated the sort of problems that we are up against. We shall discuss this further, and the Government are very well aware of the concerns that we all have.

Let me just mention the issue of judicial diversity. On 28 May we shall have the Second Reading of the Crime and Courts Bill in this House, and judicial diversity is one of the issues that will come up then.

A number of Peers have mentioned the royal succession. I am glad that that has received a welcome. The noble Baroness, Lady Symons, suggested that we should move on to primogeniture in hereditary titles. I have to say, individually, that I look forward enormously to the Private Member's Bill which I suggest she might like to introduce on that subject.

I move on to the question of Lords reform, which most Peers have been discussing in this constitutional affairs debate. It was suggested that the Government and Parliament were not capable of handling Lords reform and a range of other issues at the same time. Given that during the final three years of World War II we fought the war and introduced a number of radical social and educational reforms, that assertion seems a little strong.

The noble and learned Lord, Lord Falconer, asked when we would see the Bill—to which I of course answer, with immense confidence: “Soon”. However, we are still considering the conclusions of the Richard committee and the alternative report that were published only recently. Those considerations and related discussions will feed into the final shape of the Bill.

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Baroness Royall of Blaisdon: Perhaps I may return to the statement of the Minister that of course it is possible for the Government to deal with House of Lords reform alongside all the other things that they wish to discuss. Why therefore are they proposing that perhaps five of the most important Bills outlined in the Queen’s Speech, on such matters as energy and banking, may well be carried over into the next Session? Why are they considering that?

Lord Wallace of Saltaire: My Lords, this will be a shorter Session than the last one, as I am sure all noble Lords have noted. We will see what progress we can make. The speed with which progress will be made on the Lords reform Bill and on other Bills will depend on the reasonableness with which they are met in each of the two Chambers.

I move on to the question that a number of Peers raised about the rationale for the Bill. There are three important points. The first is that we are a transitional House. The noble and learned Lord, Lord Irvine, said:

“The transitional House which will be created as a result of the Bill will be exactly that: transitional and not permanent”.—[Official Report, 11/5/99; col. 1092.]

The Labour Government promised on more than one occasion to take the next step. In this Chamber on 20 July 2007 the noble Lord, Lord Hunt, then a Minister, declared:

“We have the prospect of agreement between the parties on the way forward”.—[Official Report, 20/7/07; col. 535.]

He stated that this was for the House to be “substantially or wholly elected”. We are moving on to the next stage now because the previous Labour Government failed to do so—and we are closely following the model that they intended to put forward.

Since 1999, we had a royal commission chaired by the noble Lord, Lord Wakeham; a first White Paper from the then Labour Government; a Joint Committee; a Green Paper; a second White Paper; a cross-party working group; and, finally, a third White Paper and two reports that we have debated over the past 10 days. In May last year, the Government published a draft Bill—and now is the time to move forward.

The issue of composition arises because we are a patronage House, and the patronage that leads us all here is something that we think is not sustainable. The third is that we are talking about evolutionary reform: the next stage in a pattern of Lords reform.

Lord Cormack: As one who has heard every single speech in the debate, and who did not leave the Chamber on any occasion, might I ask my noble friend to be a little more receptive to the consensus that has emerged in this House during the debate—namely, in the words of the noble Baroness, Lady Hayman, that there would be a very large measure of agreement around a Steel-type reform, but that there is genuine, deep and bitter concern about the proposal to drive forward with elections for which certainly there is no consensus? Will he not at least report that to the Deputy Prime Minister before the Bill is finally drafted?

Lord Wallace of Saltaire: My Lords, I recognise the noble Lord’s concerns and I compliment him on the speed with which he has moved from being—as he

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described himself—a House of Commons man to being very clearly a House of Lords man. Of course I will report back to the Deputy Prime Minister, and the Cabinet Office Bill team had read Thursday’s debate when I discussed it with them this morning. We are listening, but we have not only the opinion of this House to take into account as we move forward.

I move on to the question of a constitutional convention, which appears in the alternative report as a strongly proposed idea and has met with a lot of sympathy around this House. The noble Lord, Lord Norton, went further and suggested that we should approach constitutional reform “from first principles”. The only time that I can recall that the English were tempted to rethink our constitution from first principles was between 1647 and 1650. It was a revolutionary period when the king was beheaded, the Putney debates discussed fundamental principles of authority and democracy and some of the parliamentary army mutinied. Since then, the British have prided ourselves on our unwritten constitution, which changes through evolution rather than revolution. Indeed, the noble Lord, Lord Norton, entitled the chapter in one of his books “Our Uncodified Constitution”.

The alternative report says that constitutional conventions are a well known process in other countries and cites France’s National Convention of 1792 and the American conventions of 1786 and 1787 as appropriate examples. But in France and in the USA these followed revolutions. They beheaded the king in France too.

Alfred Dicey stated in his introduction to Law of the Constitution that it rests on two pillars: parliamentary sovereignty and the rule of law. The noble Lord, Lord Hennessy, in his book, The Hidden Wiring, quotes the first Lord Esher summing up that the underlying principles,

“of our written constitution rest on precedent and reasonableness”.

Reasonableness or restraint expressed through conventions has, in our constitution, moderated the primacy of the Executive and their use of the doctrine of the primacy of the Commons.

Some of those who support the arguments of the alternative report are in effect highly radical, wanting to shift the United Kingdom towards a written constitution. The Americans, mistrustful by far of any Executive, produced from their convention a written constitution designed on the principle of mistrust and unreasonable behaviour. It was designed therefore to lead to deadlock on occasions between Congress and the President and between the two Houses of Congress, as we see now. None of us wants a constitution like that.

The question of costs has been raised. The Government have not yet been able to produce their estimates of costs partly because of the size of the House. The Government’s draft Bill proposed 300 Members and the Richard committee proposed 450. Of course, that makes a difference. If we have 450 part-time Members, it might cost little more than 300 full-time Members. The costs of a constitutional convention proposed by the alternative report would themselves be very considerable. The noble Lord, Lord Jenkin, asked about the Government’s thinking on severance payments

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for retiring Peers. I am not aware of any discussions within the Government or any proposals on that basis, but that raises questions of costs as well.

The question of how we search for consensus is rather like hunting for the Snark. The noble and learned Lord, Lord Lloyd of Berwick, reminded us all of the immensely constructive work of the Wakeham commission 10 years ago. I found the contribution of the noble Lord, Lord Wakeham, to this debate constructive and wise. He reminded us that his report was received with much hostility at the time. More than 10 years later, it seems more acceptable because it is less radical than the draft Bill, just as the Steel Bill which was so strongly opposed in this House when it was previously presented, has now become much more popular now that it appears to be the lesser evil.

The noble Lord, Lord Wakeham, said that the Labour Party,

“has to think again about the idea that it can have 100% elected membership. It is quite simply unrealistic. A consensus outcome will not produce that”.—[

Official Report

, 10/5/12; col. 49.]

Perhaps I may quote one more remark made by the noble Lord, which I think all noble Lords would do well to consider. He said:

“I suggest that we use with some humility the position that we are somehow superior in public perceptions and in our judgment of the public good”.—[Official Report, 10/5/12; col. 50.]

We have to remember that the way this Chamber handles proposals for its further reform will reflect on its reputation outside. We have to understand the likelihood that at some point the sketch writers and tabloid columnists will look to see how they can make fun of this House as well. I would suggest to the noble Baroness, Lady Knight of Collingtree, that it is unwise to describe membership of the Lords, as I think I heard her say, as “peaceful retirement”. If the image of the Lords becomes that of a retirement home for former MPs, and that were to catch the attention of the popular press, the prestige of this Chamber would not be raised.

Lord Falconer of Thoroton: My Lords, one of the ways in which this House has gained a reputation is because there is proper debate about the issues. Many noble Lords have asked the Government to give their answer to the issue about the change in the powers and assertiveness of this House. From the Dispatch Box, the Minister has given absolutely no reply. He appears not to be willing to address what anyone who has been in this Chamber for the past two days would have regarded as the central issue. That is disappointing and it demeans the standard of the House.

Lord Wallace of Saltaire: My Lords, I was just coming to the issue of Commons primacy. The issue of primacy is partly a matter of whether one wishes to have a written constitution or one operates on the conventions of an unwritten constitution through restraint and reasonable behaviour. Of course we acknowledge the view of the committee that Clause 2 is not capable in itself of preserving the primacy of the House of Commons, which a number of noble Lords have cited, but we should listen to the committee in full when it said:

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“A majority, while acknowledging that the balance of power would shift, consider that the remaining pillars on which Commons primacy rests would suffice to ensure its continuation”.

The primacy of the Commons rests on many pillars. These include the conventions governing the relationship between the two Houses, the Parliament Acts of 1911 and 1949, and the fact that the Prime Minister and most of the Government of the day are drawn from the House of Commons. The whole of the House of Commons will be renewed at each election, and that will clearly be the election in which the Government are chosen. The second Chamber will have, as the noble Baroness, Lady O’Neill, termed it in her interesting speech, a “different sort of legitimacy” as the second Chamber. The relationship between the two Houses is not a zero-sum game.

Lord Davies of Stamford: My Lords, I am most grateful to the noble Lord for giving way. How can the Parliament Acts possibly be a defence for the primacy of the House of Commons when all the legal advice that the House has heard on the subject makes it quite clear that the Parliament Acts would cease to apply if the House of Lords became an elected House?

Lord Wallace of Saltaire: My Lords, there is room for a discussion and a concordat between the two Houses. We have also seen in the evidence that there is some resistance to putting into statute a further codification of the relationship between the two Houses because, as I have heard many noble Lords say, the jurisdiction of the courts and litigation would not necessarily be desirable. The Government did notice and will consider the recommendations of the Joint Committee with regard to initiating preliminary work on a concordat between the two Houses, but such work ultimately would be the responsibility of the two Houses rather than of the Government, as it would be concerned with constitutional conventions.

I want to make one other brief point. I was puzzled to hear a number of noble Lords say that this Chamber is not part of the legislature. Erskine May has been quoted on several occasions. On the first page, chapter 1, page 1, paragraph 1 states:

“Parliament is composed of the Sovereign, the House of Lords and the House of Commons. Collectively they form the legislature”.

Lord Norton of Louth: I think that my noble friend is confusing a point. People are not saying that the House of Lords is not a part of the legislature; they are saying that it is not a legislature.

Lord Wallace of Saltaire: I will return to those speeches that I have read. I admit that I have never taken the MA in legislative studies at the University of Hull, but I referred back to my views. This House is clearly part of the legislature; this is a two-Chamber legislature.

Lord Soley: Really, the Minister cannot get away with that. The issue is that we cannot legislate because the House of Commons can always overthrow what we do. The Minister spoke about the Queen in Parliament. He should remember that she, as part of it, also cannot legislate. The House of Commons overrides at

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the end of the day and decides what the law is. We can advise; we can recommend; we can revise; but we cannot legislate in a direct sense.

Lord Wallace of Saltaire: In which event, the primacy of the House of Commons is in very safe hands.

Baroness Hayman: The reason that the House of Commons is in very safe hands is that there is no elective mandate in this House. Election, to coin a phrase from a popular song, changes everything. Fundamentally, if legitimacy changes, so does the balance of power. The Minister has to accept that, for some people, that is fine—a rethinking of the powers between the two Houses, a concordat of how you resolve differences or a written constitution are prices worth paying for electoral legitimacy—but to suggest that we can continue as we are with just election is simply not realistic.

Lord Wallace of Saltaire: My Lords, I do not want to keep the House too long or too late this evening, but the relationship between the two Houses is not a zero-sum game. A stronger legislature which is able to hold the Executive more clearly to account, between the two Houses and within both Houses, will provide more effective pre-legislative and post-legislative scrutiny. It will be a positive gain. If we do not wish to make the radical move to a written constitution, I am confident, and the Government are confident, that the conventions between the Houses will evolve. We are not an American Congress; we have not been created and an elected House would not be created to stand in opposition to the Commons. We would continue to be the second Chamber.

Lord Foulkes of Cumnock: Is the Minister now able to answer my question that the Leader of the House was unable to answer on Thursday? It was about the commission chaired by Bill McKay, looking at the West Lothian question and whether Scottish, Welsh and Northern Irish Members should be permitted in the House of Commons to vote on matters that are designated as purely English. This issue relates directly to the legislation that might be brought forward, yet there is no indication as to whether any consideration has been given to whether the commission’s recommendations will be taken account of in it. The Minister had notice of this question when I raised it last Thursday. What is the answer?

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Lord Wallace of Saltaire: My Lords, I believe that the noble Lord is referring to Sir William McKay—I noted that because my choirmaster when I was a small child was Sir William McKay, so the name sticks in my mind strongly. We are following the work of that commission and discussing what the implications of his recommendations might be.

Lord Foulkes of Cumnock: With respect, if the Members of the House of Commons are to be divided into sheep and goats—those who can vote on some legislation and those who can vote on all legislation—what will happen to the elected Members of the House of Lords? Are they to be divided in the same sort of way?

Lord Wallace of Saltaire: My Lords, looking across at the noble Lord, I hesitate to say whether I regard him as a sheep or a goat. We are waiting for the McKay commission. When it reports, we will all consider that. We have to operate. We cannot stop all constitutional change to wait for the outcome of the Scottish referendum.

I cannot touch at the moment on the interesting, broader points raised by the noble Lords, Lord Elton, Lord Giddens and Lord Owen, which I suggest will be considered further in Thursday’s Queen’s Speech debate, when we move on to international events. I am happy to talk to the noble Lord, Lord Giddens, and others about this important issue which of course overlaps on to the British constitution.

The composition of this House is not sustainable in the long run in its current form. The Government recognise that there is a widespread sentiment in this House that we like things as they are and that most Members resist change but this is a transitional House under an interim reform carefully crafted in 1999. Our numbers have risen since then and continue to grow. There has been a long series of studies, reports, debates and manifesto commitments since then. There has been a long period of careful deliberation, much of it neither quiet nor calm. The issues have been well set out by Wakeham, Straw and now by Richard. The time is ripe, not, as many noble Lords would wish to argue, still unripe. The Government will continue to work to build consensus but they will press forward with legislative proposals for further reform.

Debate adjourned until tomorrow.

House adjourned at 10.37 pm.