Examination of Witness (Questions 387
THURSDAY 24 JANUARY 2002
387. Lord Chancellor, we are delighted to have
you amongst us.
(Lord Irvine of Lairg) Good afternoon,
I am happy to be here.
388. We wonder if you would like to say a few
words to us by way of introduction.
(Lord Irvine of Lairg) Yes, let me say a few things.
First of all, this is now a time for reflection. The White Paper
was not a policy for which I could claim sole ownership. It was
settled by a strong Cabinet Committee which I chaired and the
terms of the White Paper were agreed by all its members, who included
John Prescott, Robin Cook, Gareth Williams, Jack Straw, David
Blunkett, Hilary Armstrong, Dennis Carter, Charles Clarke, Gus
Macdonald and Charlie Falconer. First of all, you find me in a
reflective mood because there have been two impressive debates,
one in each House, and the debate in the Lords occupied two days.
Responses to the consultation process continue to come in. It
does not end until the 31st. As much as you might wish me to be
prescriptive, I just do not feel able to be. I am sure that we
can have a very productive discussion but really nothing I can
say should be taken as any kind of concluded view in the current
context. What we are doing is listening and reflecting. The best
way I think I can assist in opening discussion is this: I would
like to identify the interests that have to be protected in any
reform proposal that is carried into effect: first, broadly, to
preserve the existing powers and functions of the House of Lords,
in the sense that the House adds real value in scrutinising and
does not challenge the House of Commons as the pre-eminent Chamber;
and secondly, to ensure that composition post reform does not
prejudice the value of the House of Lords, as presently composed,
and to prevent any politically elected element becoming so large
as to threaten the continuation of either of these two interests
that I have just listed. If you do not prevent that, it could
challenge either of these two interests by encouraging a challenge
to the current pre-eminence of the House of Commons or, as a separate
point, significantly diminishing the flow into the House of Lords,
as presently composed, of men and women of great expertise across
a broad range of national life, the professions, business, the
arts, the voluntary sector, the military, the faith communities,
as well as highly experienced, former Members of the House of
Commons or local authorities who make up a kind of aldermanic
bench in the House of Lords. To go much above a particular percentage
electedand 20 per cent is where the White Paper arrived
atand to maintain that to go above it significantly will
not over time alter the balance of power between both Houses,
I would suggest is simply to be in denial. It is as if the proportion
of elected is a self contained issue, a kind of bidding process
where what is euphemistically called a "centre of gravity"
is looked for, without the need at the same time to have any regard
to the impact of the composition of the Lords on the balance or
the dynamics of the relationship between both Houses, and that
I think is the most important thought to have in mind. I make
this comment in passing. How right we were, I would say, in the
last Parliament on stage one. We were told there should be no
stage one without stage two. Well, if we had waited for a consensus
for a whole package we might have waited for a very long time
and certainly all the hereditaries would still be there. Another
way of looking at the same question, I think, is when people say
it should be substantially elected, I would say why should conventions
which built up because the House was unelected not be swept away?
And might it not be claimed that a substantially elected House
of Lords had even a superior legitimacy if it were elected by
PR, that is to say those who claim a superior legitimacy for PR
over first past the post. Another argument that was there, this
time an argument in a different direction for the status quo,
would say that the House is more independent if it is not elected
and Members sit for life. There is an astonishing range of argument
around. Last, and I think by no means least, we have to proceed
in relation to composition in a way that does not prejudice the
rights of the existing life Peers who entered Parliament and altered
the course of their lives on the basis that they had a seat and
a voice in Parliament for life. Finally, underlyng all this may
be an issue which nobody usually cares to raise; why have a bi-cameral
system at all? The answer today is very easy, whether you agree
with it or not is another matter, but the answer today is very
easy; the House of Lords adds distinctive value without challenging
the pre-eminence of the Commons. The Lords provides what is generally
regarded as a high-quality, revising and scrutinising of legislation
function, in Committee, on the floor of the whole House and, unlike
the Commons, not subject to any guillotine, but the more the Lords
becomes elected and the greater the claims for its greater democratic
legitimacy, as a result, so the question must be posed why have
two elected Houses rather than one, the Commons, in which the
Commons would have to make, of course, its own powers of provision
of scrutiny more effective? So these seem to me to be all the
distinct interests that have to be had regard to at the same time
and you cannot just focus on any as if it were self-contained.
389. Thank you very much for that. If I could
open up a few of these areas and then colleagues will want to
come in. I was going to ask you whether you were the architect
or the salesman for these proposals. I think in a way you have
answered that by saying that this is a straight Cabinet decision
by a Committee you chaired, with the full informate of Cabinet
behind it, and you are a believer in these proposals?
(Lord Irvine of Lairg) Yes, as I said already, it
was a product of a Cabinet Committee that sat in many, many meetings.
We discussed it fully. The White Paper was, in the judgment of
all members of the Committee, the best proposal that we could
put forward for today.
390. We just have to try and establish where
we are at in order to see where we might go. When Lord Lipsey
came to see us last week he was someone who loyally defended the
White Paper's proposals when they appeared and he came to tell
us, in his words, that they were now "a dead duck with its
feet in the air" and that we had to think now beyond them.
Is that not a shrewd analysis and a fairly obvious analysis of
where we are at?
(Lord Irvine of Lairg) I would say it is not obvious
and it is wrong. The White Paper is not a dead duck. What is really
awfully significant in this area is that there are as many opinions
as people, therefore, if you are looking for a significant number
of people who in turn say "this is a work of collective genius;
we will sign up to it", it is not that kind of issue, I am
afraid. It is an issue in which every politician has an opinion
and it really is quite remarkable. If you were even to put it
in this way and say to me that we cannot say yet there is a consensus
round the White Paper, I would say that is probably right, but
there is not a consensus around anything else either and the White
Paper is still very much in contention. The proposals in the White
Paper were put forward by people who knew that they were proposing
a compromise and what I would say to you is we will have to wait
and see how they fare in the end. Of course, I accept that this
particular compromise package is in the course of being road-tested,
but I make no apology for that whatsoever. We collectively agreed
to put it forward as a compromise. We also well recognised, as
I am sure everyone in this room does, that we are in an area of
potential reform which defied the abilities of the whole of the
last century to accomplish anything at all. I would remind you
that we are not even yet at the end of the consultation period.
391. It is not so much the details that will
detain us now, it is whether we get a clear sense of where the
positions of principle are that we could work out details around.
(Lord Irvine of Lairg) And that is why I drew attention
to these interests which I think have to be had regard to and
have to be had regard to as a whole.
392. As you gave us your analysis I was struck
by the way that it was at odds with much of the other evidence
that we have been given on this ground. You were very emphatic
about the central issue here being the need to do nothing to disturb
the balance between a pre-eminent House of Commons, and a House
of Lords. And yet we have heard compelling evidence that the real
issue here is the relationship between Parliament and the Executive.
Is it not the case that if you start from that position you think
about this entirely differently? If you were obsessed, as I might
say the White Paper seems to be obsessed, with only thinking about
the pre-eminence of the House of Commons, which of course in reality
falls prey to the pre-eminence of the Executive routinely rather
than to Parliament in relation to the Executive as a whole?
(Lord Irvine of Lairg) I think that is another central
point and if I had been taking longer than I thought was appropriate
in defining the relevant interests to be observed, I would have
engaged with that argument, too, but you bring me to it now, which
is good. I think, truly, that there is a misconception about here
so let me try to say why I say that. It is frequently said that
the Executive is over-powerful in relation to the legislature.
I put to one side the argument whether that is so or not because
I think it is a misconception that this is an excess, if it exists,
which can be corrected by House of Lords reform or, at any rate,
by any House of Lords reform that would impair the stability of
relations between both Houses. I think at root here there is a
confusion between problem and remedy, the problem being that the
Executive is too powerful at the expense of the legislature. In
fact, the check and balance that the Lords does provide over the
Commons is an important restraint on the Executive having its
way. My own view is that that should remain where it is. It would
be wrong, I think, to give greater power to the Lords than at
present exists so as to cause the Commons to think again, subject
to the Parliament Act, in order to operate as a greater restraint
on the Executive because I think that this would simply destabilise
Parliament. If the Executive has too great a power over Parliament,
in my view, it ought to be addressed as a separate issue, but
not one that (however interesting) is part of this specific debate.
Of course, it could be argued, for example, that the Executive's
power over Parliament in this country is, say, substantially attributable
to the fact thatand I know there will be some denialsmost
Members of Parliament would like to be members of the Executive,
that is to say Ministers, whereas in the United States of America
the Executive is externally appointed by the President and the
President has to fight for his programme through Senate and Congress.
My own view is that we muddle up the debate on House of Lords
reform by getting into these issues which I do not regard as issues
for this debate. Some people would go even further than you, Chairman,
and say you have got to sort out such issues, and the issue of
a written constitution and every other kind of constitutional
issue you can jolly well think of before you can reform the House
of Lords and that, in fact, was what we were told in many of the
part one reform debates in the Lords. In the real world I think
that is an exercise in nihilism that goes nowhere.
393. The reason I say thisand I realise
it is more exciting than talking about swapping percentages and
so on- is I do think this does go to the heart of the matter.
(Lord Irvine of Lairg) I do not think it is less exciting;
I think it is more interesting, but I still think that it is for
a different debate.
394. There are two of us who find it exciting
but we do not come to the same conclusions and unless we see where
we are differing we shall not get any further. The argument I
am putting to youand we have heard it from many authoritative
voicesis that we need a more legitimate second Chamber
to act as a more effective check on an Executive which in this
country is too powerful. That is the analysis of the problem and
that is the analysis of the solution. I want to be clear, that
is something that you are rejecting, is it not?
(Lord Irvine of Lairg) What I am actually saying is
that that expression that you have used contains a number of words
which require further definition. A "more" legitimate
second chamber supposes that the more elected, the more legitimate.
I would say in answer to that implicit assumption that it depends
what the powers and the functions of the House of Lords are.
395. Can I interrupt you just for a second because
this is really so important.
(Lord Irvine of Lairg) That is why I am trying to
make it clear.
396. The reason why it matters so much is that
at the moment the Whips in the House of Commonsand I am
sorry you have not been in the House of Commons
(Lord Irvine of Lairg)So am I! I was doing
397. It was a severe loss, I think, and I have
to tell you about it. At the moment the Whips in the House of
Commons can tell their troops to roll their tanks over the Lords
and their amendments because they are not elected, they have no
legitimacy at all, so unless we address that issue we are not
going to get to the heart of this argument, are we?
(Lord Irvine of Lairg) I think we are at the heart
of argument but I do not have to agree with you in order to say
that we are at the heart of the argument. It seems to me that
the House of Lords with its present powers and functions delivers
an enormous amount of value and passes thousands of amendments
over every conceivable Bill every year which are accepted by the
House of Commons. Admittedly many of these are Government amendments
but, leaving that aside, nobody who has analysed the course of
any Bill at all of a contentious kind would doubt that the House
of Lords has added enormous value within the context of its present
powers and functions. I was at a charitable reception the other
night that Shelter was giving where the Director of Shelter was
singing the praises of the House of Lords in Committee on the
Homelessness Bill which will pass through the House this evening.
On the Counter Terrorism Bill, I think many Members of the House
of Commons would be first to agree that the House of Lords did
a splendid job. When you talk about the House of Commons feeling
able to ride roughshod over the House of Lords because it is unelected,
I do not believe that that reflects the reality. It is only twice
in recent times that the Parliament Act has been used.
398. When I tried to explain to the Whips in
my Party why I wanted to agree with the Lords on their amendment
to the Terrorism Bill I was told I should not because the Lords
were not elected. Is that not the argument about legitimacy?
(Lord Irvine of Lairg) That may be an argument about
using the word "legitimacy" which is advanced but the
Whips do not always advance good arguments in order to knock people
399. It is the knocking into line I am interested
(Lord Irvine of Lairg) You could, if you chose, have
voted as you wished.