House of Lords Reform

HL Deb 07 November 2003 vol 654 cc1057-80

12.39p.m.

Lord Selsdon

rose to ask Her Majesty's Government whether their latest proposals for constitutional reform would enhance the membership of the House of Lords.

The noble Lord said: My Lords, I am most grateful to the House for allowing time for this Question. I hoped that it would be tabled for a Friday, with a relatively small number of noble Lords present, in order that we might set aside all private interests, prejudices and partial affections, so that we might, without emotion, stick to the Question which asks whether or not the proposals of the Government will enhance the membership of the House.

However, I find it difficult not to have some partial affection. I joined your Lordships' House by accident of birth in 1963, at the age of 25. I hardly knew anybody; when I came in, nobody said hello to me. I found I had to change my name, which I rather regretted—I ended up being Selsdon of Croydon instead of the proper Scot I am. I came to sit on these Benches because these were the temporal Benches and it said that this was the Barons' Bench and that the Earls sat in the front.

Over that period of time, amazing things happened to me. I worked in a research company, and one of our assignments was to do the study for the Labour Party on the 1968 reform. That reform simply proposed that the hereditary principle should no longer exist to give a right for a seat in the Lords and that no party should have a permanent majority.

At that time, an excellent White Paper was prepared by the Government which was voted on in this House with a majority of 197. It went to the Commons, where it had a majority of 111. At that early age, I hoped and begged that there would be a reform, because I believed passionately that this House should be wholly elected in order to be democratic.

That is a feeling I had even when we came to the 1999 reform. In the debates that we had then, I introduced an amendment of which I was rather proud, which had been perfectly and beautifully drafted, and which contained within it an amendment permitting the right to retire. When I moved that amendment, it came about that my colleagues on this side of the House tried to encourage me not to push it any further. Noble Lords on the Cross Benches also encouraged me not to push it any further. Indeed, Lord Longford asked me what on earth I was doing promoting Labour Party policy, because it was in truth the Labour Party's Bill of 1968. Then I found to my surprise that there was nothing more one could do about it—there was a sort of fix that went on, to which we will come later.

In looking at the enhancement of the House, I looked at the three great estates of Church, Law and Parliament. My Lords, I do not want the Lord Chancellor to go. In the whole structure of our society, law is an important part of this House. There are so many Law Lords here, and a total of 100 lawyers, if you include them all together, a very significant proportion of the House. We have here the highest paid official in the land. He is paid twice as much as a Solicitor-General and is well worth it. He is the one who grants us our Writs. He has a power, authority and influence way over that which he put in the consultation paper which, like all modern government consultation papers, is thick, widely spaced and thin.

When I came to your Lordships' House, I wanted to know what the Lord Chancellor did, and 1 asked around. It took some time before an excellent report on the Lord Chancellor was prepared by David Beamish and others—most of the Clerks joined the same time as I did. He was, as I learned, the most important citizen in the land after the Royal Family and the Archbishop of Canterbury. He fitted between the Archbishop of Canterbury and the Archbishop of York, and then came the Prime Minister. Today the Lord Chancellor is sandwiched between the Archbishop of Canterbury and the Archbishop of York. I do not think we should let him go willingly. He may, however, shoot himself in the foot. Your Lordships will be aware that the first gun licence ever introduced was at the time of crossbows—I think it was in 1512. When you wind up a crossbow, you normally put it down, and the phrase "to shoot yourself in the foot" comes from when someone failed to make sure that the trigger was protected.

Within the law, we come to the great estate of Parliament. Your Lordships will know that in this House we have inherited some of the best from the other place. Fading, worn out and aged they may be, but there are 146 of them, and over 60 per cent have held Cabinet or junior ministerial posts. They are the dominant factor in this House. Then we move on to the honours and the 188 Privy Counsellors who are here. I wanted to know what a Privy Counsellor did, and I had to ask. When we came to the phrase "binding in honour Privy Counsellor to Privy Counsellor", I did a little more research.

Those are honourable men, and then we come to the question of honours. How do we determine how many public servants there are and have been in the House? You look at honours list and find, to your surprise, that there are around 150 former civil servants, with these gongs, as they are called—CMG is for "Call me God" and KCMG for "Kindly call me God". They are independent and sit on the independent Benches.

Then we come to the Church. Sitting in the House on the Bishops' Benches are those with flocks of 31 million, with 7,672 parishes and many more churches, spread widely throughout the country.

On whether we are regionally represented, the former constituencies of the former Members of the House of Commons spread right throughout the land and are fantastic. Along with them there are those I thought were academics because my spreadsheet squeezed up and when I saw the initials "DL" I thought they stood for D.Litt. These are the Deputy Lieutenants, however—there are 83 of them, with territories throughout the country. Put that lot together with the Bishops' patches and you have regional representation beyond anything and apart from the individuals who may not be in that happy gang.

As time went by, I kept the original research which we did for free for the Labour Party and constantly updated it. When I saw the latest report on constitutional reform, it reminded me of—well, statistics, or, rather, lies, damned lies and statistics. The problem was that there were not any statistics in it. I would not say it was full of damned lies but prejudice had not been set aside, nor, perhaps, had private interests. I used sometimes to produce reports for myself, which I called, "Towards a Peerless Future". I have a new one, and after we have heard the Government's proposals, I would be happy to share it with your Lordships. It makes fascinating reading.

There is a sadness about the ageing and the agelessness of the House. In a way, many of the older Members—18 are between 90 and 100, and 37 are between 85 and 90—make excellent contributions. The age pattern is such that the average age has risen to 67.8. But there is a new mood in the House on the Bishops' Benches. They have an average age of under 60, which is most encouraging. They are young and forthright; we always used to think of them as old and distinguished, but they are pretty trendy these days.

Out of this document I can produce all sorts of fun figures, but I come now to the sadness of it all—the prejudice. The House comprised 590 Members in 1900 and jacked itself up. After the 1999 Act, two things happened. We had some elected Peers. To my surprise, perhaps reluctance, and then pleasure, I was one of them. We were elected and accounted at that time for 14 per cent of the House, with some 86 per cent being appointed.

As time went on, our share—the elected side—fell to 13.5 per cent and the other numbers went up. Why can we not say that we are who we are and how we came here does not matter? We could all tear ourselves apart at the seams and say that method of entry, donations to parties and goodness knows what were reasons. But the House is what it is; I believe it is a good and great House. I believe it has considerable potential for development with itself. There is, of course, natural death. Some 74 Members have died over the past two to three years and the average age is rising; the older generation will know that for every year they live, they have more than one year of life expectancy to go.

Unfortunately, I take issue with some of things that have been said in this House about whether or not we have stage three reform. I would like to have a reform. I accept now that the quality and membership of the House is such that it would be wrong to change it—it would be wrong to remove and better to add. I have worked in the world of finance, where your word was your bond and you shook hands. In some cases, when you did a horse deal and spat on your hands, you were effectively sealing an agreement, and the punishment for breaking that agreement was death. I believe that it still is, although the death penalty no longer exists.

I would like to place on the record—and I do this with apologies—why I did not vote for the amendment of the noble Lord, Lord Weatherill. I preferred my own. I did not vote for the amendment because I was slightly suspicious about government—but then I was reassured, because on 30th March 1999 the then Lord Chancellor said that the amendment proposed by the noble Lord, Lord Weatherill, would provide for the interim retention of one in 10 of the hereditary Peers, 75 out of the existing 750, plus 15 hereditary office-holders, until the second stage of House of Lords reform has taken place. The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent".

He went on to say: Although I know as well as anyone the honesty and firmness of our intention, I was not offended by those who claimed to perceive a risk that the removal of the hereditaries might prove to be the only reform to take place

He continued: First, a compromise in these terms would guarantee that stage two would take place … But the 10 per cent. will go only when stage two has taken place. So it is a guarantee that it will take place".—[Official Report, 30/3/99; col. 207.]

I could share more information with the House. I am grateful for being given the time. I look forward so much to what now follows.

12.50 p.m.

Lord Weatherill

My Lords, I agree with much of the speech of the noble Lord, Lord Selsdon. I warmly congratulate him on giving us this opportunity to discuss an important question. Some of your Lordships, particularly those who have been in the other place, will remember our old friend Frank Haynes, of Ashfield. I used to keep a list of speeches that had pleased me during my time in the Speaker's Chair. On one occasion I remember Frank Haynes pronouncing the great truth during a debate on new technology: "Mr Speaker, I am all in favour of progress as long as it doesn't mean change".

I am in favour of progress and I believe in change. I fought my first election in 1964 on the slogan "no choice but change". In relation to this debate we have some choice and I shall enlarge on that. As the House knows, I was involved, as the noble Lord, Lord Selsdon, has said, in the 1999 negotiations. I shall listen with interest to the comments of other noble Lords on this subject—notably those of the noble Lord, Lord Strathclyde, who knows that I was not part of what has come to be known as the "Cranborne amendment", which did not form part of the so-called "Weatherill amendment" at that time. The "Cranborne amendment" is what is causing us trouble today. I think that the system of "fastest losers" would have done us well for quite a few years and given us time.

Regarding today's debate, I shall express some thoughts on another change which is not welcomed by the noble Lord, Lord Selsdon—the question of the future of the Lord Chancellor. I gave evidence to the committee chaired by the noble and learned Lord, Lord Lloyd of Berwick. I wish to express a few thoughts on the future of the Speaker of the House of Lords. He or she should be chosen or elected by the whole House, not appointed by the Government. He or she should give up party politics for life so as to be totally impartial and independent. He should be the public face of your Lordships' House, representing us on all important occasions. However, whenever he appears with the Speaker of the other place, the Speaker of the elected House of Commons should always take precedence. We would need modest changes to the way in which the Commons Speaker is ultimately elected. He comes to stand at the Bar, and in the past has asked the Lord Chancellor to consult Her Majesty over whether she agrees to the Commons' choice. That could no longer be the case, because that would indicate that this House was more important than the other place.

Above all, I would want us to keep up our old traditions of self-regulation. I hope that whatever happens, if we have a Speaker here we should not disfigure our proceedings by points of order, nearly all of which would be bogus. We should avoid that sort of thing. In the same way the Leader of the House or whoever is on the Government Front Bench should continue to indicate which Benches should speak next. Let us keep our old traditions of courtesy and consideration. The Speaker of the House of Lords should have an opportunity to grant Private Notice Questions, which are rare in this House. Where there are matters of great importance, Members of the House may ask for a Private Notice Question, and the decision on whether to grant it should be that of the Speaker not the Government.

There is also the question of uniform. I hope that our Lord Chancellor will continue to wear a uniform and a wig. Uniform is important because it draws attention to an office, not an individual. The Speaker should be anonymous. I used to explain to young visitors to Speaker's House in my day that I was merely the conductor of a national orchestra. The Government "violins" wanted to play their tune, as did the Opposition "violins". The noble Lord, Lord Campbell-Savours, will remember "the drums" below the gangway, and those, who in the Speaker's jargon, "did not bother us often", took out their triangle and went "ping"! All of that was part of the national orchestra, and the object was to ensure that the audience—the electorate—had an opportunity to decide whether they liked the symphony, and whether they would wish to hear it all over again at a general election, or hear another tune or even have a bit of each—a coalition government.

By general consent in recent years Parliament has been failing in its duty to hold the Government to account. However, I pay tribute to my colleagues down the corridor in the other place. There is no country in the world where people are represented more personally than they are in the House of Commons. At the last count, when I asked the postmaster how many letters came in to the Palace of Westminster each day, I was told that the figure was 40,000—probably more now because that was six months ago. A large number of them are cases from so-called "surgeries" in our constituencies—most have little to do with Parliament. Opening 40,000 letters a day effectively means that Members of Parliament cannot be in the Chamber as well as in their offices.

I would like to do something about the cases coming from constituencies. I remember when I was particularly busy one day in my constituency and one of my constituents arrived and asked if I could obtain for him a council house. I had to explain that that was not really my responsibility. He said, "What do you mean?". I answered, "Very briefly, if it was called parliamentary housing I would be in business. As it is called council housing, it is a matter for the council and this lady next to me is a councillor. Would you mind talking to her about it? I'm sure she will do what she can to help you.". He poked me in the chest and said, "Look here, mate, you're paid to do it". The truth is that Members go to the constituencies to canvass for problems. Those are generally the responsibility of local councillors, who do an extremely good job. It is they who should receive the credit if they succeed—not those in the other place.

I do not think that we can do much about constituency correspondence. We shall not return to the days in 1964 when I first entered the other place. My neighbour in Streatham was Duncan Sandys, who used to say openly that he was sent to represent Streatham in Westminster, and not Westminster in Streatham. He went to Streatham on average about once a year. Those days are long past and rightly so. However, I think that your Lordships' House must continue to play a crucial part in holding the Government to account in the role that we undertake in the scrutiny of legislation and through our general debates on topical subjects.

There is one other innovation that we might introduce with a new Speaker of the House of Lords: the ability to grant Standing Order 24 debates—I think that that is what they are called—on urgent matters that have not been exposed. In the other place the Speaker can receive a request from a Back-Bencher, and it is his responsibility to decide whether a debate should be granted. Such a debate takes precedence over the Government's business for the day and lasts, I think, for three hours. It is a very important opportunity for a Back-Bencher to raise an important matter that should have urgent consideration.

Time does not allow for further thoughts on this. However, in my judgment, this will prove to have been a very important debate. I again congratulate the noble Lord, Lord Selsdon, on giving us an opportunity on a Friday to discuss these issues. Noble Lords who have spoken, and those who are about to participate, are heavyweights in parliamentary terms. I am well aware that it is an old quip that if you wish to keep a secret, you should make a speech about it in Parliament. I hope that that will not be the fate of this important contribution to the future of your Lordships' House and our role in the Parliament of the United Kingdom.

1.1 p.m.

Lord Wakeham

My Lords, I am delighted to follow the noble Lord, Lord Weatherill. Over many years and in a number of guises, certainly throughout my political life, we have worked together in all sorts of different ways. I have learnt that when he says something it is worth considering. Some of his comments today are worth considering, although my conclusions might be slightly different. Nevertheless, he raised serious points which I am sure we will have to consider as reform of the House of Lords develops.

I say to my noble friend Lord Selsdon that I greatly enjoyed his speech and that I have considerable sympathy with some of his concerns. However, the point that I took from his speech was that, whatever we finally do and however we ultimately reform the House of Lords, we must recognise that we are handling an institution with a great tradition that has served this nation extremely well over centuries. Therefore, we want to be very careful that we get it right.

While I am in a mood for expressing sympathy for people, I should say that I have considerable sympathy for the noble and learned Lord the Lord Chancellor. If anyone has a capacity for drawing short straws, I think that the noble and learned Lord is probably the champion of the lot.

In my view, reform of the House of Lords is in a mess. In the final paragraph of the report of the Royal Commission which I had the honour to chair, we more or less forecast that that was a considerable possibility. We said: But if interested parties choose to hold out for what they would ideally like, the opportunity may pass for another generation, maybe another century". I have expressed rather stronger views than that polite phrase from the Royal Commission. It has been clear to me from the beginning of this process that no one was going to get everything that they wanted. Unless there was a degree of compromise between all the different interests, the matter was likely to end up in the sand.

In my view, only a small amount of compromise is necessary to make progress. Quite a lot of what the noble and learned Lord the Lord Chancellor announced last September represented progress. The Royal Commission, in our report, proposed a statute-based Appointments Commission. Although doubts remain, I think that it would be okay to allocate seats on a political basis, having regard to the outcome of the previous general election. However, that would have to be done fairly. As the Government have not accepted our recommendation for a 15-year term for appointed Members, such an arrangement is much more difficult.

I believe that the Government are correct that 600 is about the right size for a part-time House. However, they are wrong to put a formal cap on it. It is much better to get the proportions right, at about that figure, than to stick absolutely rigidly to 600. The Government are also right to accept the Royal Commission's view about a proper balance of gender, age, ethnicity, faith and disability.

However, I think that the Government are wrong in a number of their proposals. I believe that it would be a great mistake to allow Peers to retire and go to the Commons. I think that that would do untold harm to the House of Lords. I am sure that this place would become a staging post for young, ambitious politicians trying to get up the political ladder. We simply do not want that in a revising House.

Retirement from the service of the House—as the noble and learned Lord the Lord Chancellor has recommended—is fine. However, renouncing one's peerage would be a nonsense and counterproductive. If the noble and learned Lord has any doubts about that, I suggest that he discuss them with some of his noble friends. I think that the Government, in their own interests, would be wise to offer a life peerage to all the remaining hereditary Peers who want one. On that basis, the hereditary system in the House of Lords will end and the rather silly by-elections will cease.

Having said all that, I just wonder whether the Government might not be wise to look again at our Royal Commission report and our suggestions on how the House could find a better way of securing a voice for the countries and regions of the United Kingdom. Although we called them elected Members in our report, and that is of course correct, it was a bit of an overstatement in that we recommended that they should be effectively appointed by the people. That would have been a more accurate definition. We could start with a very small number, a 15-year term and no possibility of re-election. I think that that is worth looking at again.

After all, the number of life peerages started in a very small way in this House and gradually increased. After about 50 years, a life peerage has become a universally accepted basis for membership. The issue will not go away. I am not one of the most enthusiastic supporters of an elected House. However, I believe that it is better to make small changes slowly over time than to risk a wholesale upheaval in future that could leave us with a second Chamber that is simply not able to do its job and act as a revising Chamber.

In asking the noble and learned Lord the Lord Chancellor to have a little look at what I suggested in our report, I should perhaps finish by reminding him that the Labour Party included the same suggestions in its manifesto at the last general election.

1.9 p.m.

The Lord Bishop of Oxford

My Lords, I am particularly grateful to the noble Lord, Lord Selsdon, for this opportune debate. As it is a low-key, thoughtful and good-humoured debate, I hope that we may have a chance to influence the Government before their proposals are set in concrete. I should like to make three points, only the first of which I think would come under the heading of private interests, prejudices and partial affections in that it does touch on the role of Bishops.

I had the great honour and pleasure of serving under the chairmanship of the noble Lord, Lord Wakeham, as a member of the Royal Commission. As he said, we very much welcomed the idea of putting the Appointments Commission on a statutory basis. In the document, Constitutional reform: next steps for the House of Lords, the Government propose eight, or possibly nine, commissioners, some of them to be appointed by political parties and others to be independent members. When the Joint Committee on House of Lords Reform was set up, there were no Bishops on it even though at that time it was anticipated that it might get round to discussing the role of the Lords Spiritual in this House. That seemed to some people rather odd. Our 26 Members try to play as full a part as we can in the life of the House commensurate with a wide range of other responsibilities. I leave the matter there, but it seemed rather odd.

The Appointments Commission has been charged specifically with looking at other faith representation in your Lordships' House. That commission will need at least one person on it who understands the religious scene. It is a complex scene. That person need not be a Bishop. I leave that thought with the House but a person will be needed—whoever it is—who understands the religious scene.

I now wish to make my two major points. Paragraph 20 of the Government's Paper, Constitutional reform: next steps for the House of Lords, uses the words "refresh the membership". Like many noble Lords I find plenty of opportunities in the House to refresh myself but presumably the document refers to new members. In the Army between the two world wars promotion occurred on the basis of what was called "dead man's shoes". At the moment, particularly if we are looking for a relatively fixed number in the House, there are very few opportunities for new Members to enter the House. Due to healthy living conditions in your Lordships' House, noble Lords live to a good old age, but not—despite the kind words of the noble Lord, Lord Selsdon, about the average age of Bishops—as long as the clergy, who live longer than anyone else. Nevertheless, your Lordships live to a good age. That means that under the principle of dead man's shoes there are very few opportunities for new members to come into the House.

As the noble Lord, Lord Wakeham, said, the Royal Commission recommended that people should serve for 15 years with a possibility of further service up to 15 years. We made that recommendation on the basis that we have already sundered the link between membership of this House and the peerage. It is possible to be a hereditary Peer and not to be a Member of the House. That link has already been broken.

We already have in the House noble Lords who are here just for a period—the Bishops. The late Lord Hailsham talked about Bishops blowing in, blowing off and blowing out. I hope that is not entirely true but we eventually blow out in that we have to go when we retire from our Bishopric.

Recommendation 75 of the Royal Commission's report states: Members of the reformed second chamber should be able to retire", and Recommendation 104 of the Royal Commission's report states that the Life Peerages Act 1958 should be amended in order to allow that.

Paragraph 20 of Constitutional reform: next steps for the House of Lords states that fixed terms—which the Royal Commission was strongly in favour of— are difficult to introduce and suggests that the Government intend to keep the link with the peerage and lifelong membership of the House of Lords, at least so far as life Peers are concerned. Paragraph 21 of Constitutional reform allows for the possibility of people renouncing their titles. The noble Lord, Lord Wakeham, commented on that. Let us suppose that a person does not want to renounce his title—it is a distinguished honour—but has reached the point in his life when he feels that he has no serious contribution to make to the House and that he should make way for someone else. What mechanisms will be put in place—particularly if the aim is to reduce the membership of the House to 600—to allow a person to retain his title but to bow out of this House with dignity and grace? Would it be possible to have a category of permanent leave of absence? A person may have served here for a long time and considers that he has made his contribution but his health may be failing and he is rarely able to attend. Perhaps such a person ought to be able to apply for permanent leave of absence. I suggest that the figure for the membership of the House should not include those people. At present a tiny number of noble Lords ask for leave of absence, but there could be a big category comprising Peers asking for permanent leave of absence. I suggest that for all practical purposes that category should not be included in the figure for membership of the House.

We could perhaps grant a right of appeal to reverse the decision regarding permanent leave of absence. Someone aged about 80 or 89 may consider that he has done enough and decide to retire. However, he may suddenly get a new lease of life, feel rejuvenated and discover a whole range of new interests. I suggest that such a person could apply to the Appointments Commission to have the original decision reversed. That might give people confidence that if they applied for permanent leave of absence they could, in extreme circumstances, have that decision reversed. I am all in favour of such confidence-building measures. But on a more serious note, what mechanisms will the Government put in place to enable fresh life to come into the House?

Finally, I turn to the Appointments Commission. It was set up on a statutory basis, which we welcome. However, under the Government's proposals, the commission's role is confined almost solely to Cross-Benchers. The Royal Commission recommended strongly that it should have a role in relation to political appointments as well. We were particularly concerned about political dissidents in the House of Commons. A party leader might put forward a list of people which does not contain someone who has been a thorn in the flesh of his party, but whom the House of Lords would very much welcome into its membership. How would such a person enter the House of Lords?

Looking at the matter more widely, the Royal Commission recommended that the House as a whole needed to be broadly representative, that it needed to have a gender balance and a fair representation of minority ethnic groups. However, in the Government's paper, the role of the Appointments Commission is to ensure that kind of balance through the Cross-Benchers, but it has virtually no role in relation to political appointments. A similar point can be made in relation to Royal Commission Recommendation 93. We recommended elections on a regional basis, beginning, as the noble Lord, Lord Wakeham, said, with a very small percentage of elected members. That would ensure that there were some real regional members.

The amazing fact is that one or two of my fellow Bishops have remarked that they are in some instances the only Member of this House from their region, or there may have been one other at the time of the hereditary Peers. Some regions are severely underrepresented in this House. Therefore, it seems to me essential that in the House of the future—if we are not to have elections on a regional basis—we must have some way of ensuring that the political appointments reflect the regions as well as gender balance and other considerations.

The Appointments Commission should have some serious role and some powers in relation to political appointments. The noble Lord, Lord Goodhart, shakes his head. We have already discussed this matter and he believes strongly that political appointments should be in the hands of political leaders. I am partially persuaded by his point, but that does not mean to say that the Appointments Commission should have no power in relation to that. If we do not want to give it power to send the list back for reconsideration on the grounds that it is not representative—that would be one way of doing it— the other way might be to give the commission a monitoring role in relation to all appointments. We could also enable it to have a public report once a year in which it specifically commented on whether the political appointments were broadly representative of the House.

I very much hope that the Government might take some of those considerations into account.

1.20 p.m.

Lord Brightman

My Lords, I am grateful to the noble Lord, Lord Selsdon, for tabling the Question. It gives me the opportunity of saying a few words about some of the consequences of transferring the judicial work of the House to a new Supreme Court of the United Kingdom. In dealing with that matter, I hope that I am not straying outside the intended parameters of the Question.

The consultation paper dealing with this particular proposed reform poses 23 questions. I am concerned with only one of those questions, number seven, which asks in effect, "What about retired Law Lords?"—that is to say judges who have ceased to be members of the new Supreme Court of the United Kingdom and are not already Lords of Parliament. Are they to become Members of the House of Lords, or are they to be put out to grass? Are the services which they can offer to the House of value? Will they enhance the membership?

The consultation paper suggests no answer to question seven. My answer is to let a retiring Law Lord be an ex officio Member of this House if willing to become a full working Member. In expressing that view I must tread carefully, because I am obviously parti pris and open to all manner of charges of bias and self-interest. I express the view because I believe that there are areas in which a retired Law Lord is able to give a useful contribution to the work of the House without becoming involved in any political or controversial issues.

The first area which I have in mind is the chairmanship of Select Committees. I have no ready means of ascertaining the track record of other retired Law Lords, but I myself have been employed as chairman of nine Select Committees. I have no doubt that other retired Law Lords can say much the same. The Committee of Selection will know better than I whether it would be useful to retain a pool of retired Law Lords for that type of work.

The second area in which retired Law Lords can be helpful, again without being involved in political or controversial issues, is spotting clauses in Bills that need redrafting in order to put them in a fit state for inclusion in an Act of Parliament. I have in the past called such clauses drafting quagmires. The best example that I have encountered of a drafting quagmire occurred in the National Health Service (Private Finance) Bill 1997. I shall explain it quite briefly.

Under the Bill, an NHS trust was permitted to make, an externally financed development agreement". The agreement had to be certified as such by the Secretary of State. To receive such a certificate, the agreement had to meet the conditions laid down in subsection (3). There then followed this remarkable subsection: Nothing in this section affects the validity of any agreement made by a NHS Trust if the agreement has not been certified under this section, but would have been an externally financed development agreement for the purposes of this section if it had been so certified". What could that mean? We had already been told that an agreement was, an externally financed development agreement", if certified as such by the Secretary of State.

That drafting quagmire was spotted in time. An appropriate amendment was made, and the intended meaning was expressed in terms so simple that noble Lords may find it difficult to see how the complication of the subsection ever found its way into the Bill. The amendment expressed the meaning by stating: The fact that an agreement made by a NHS Trust has not been certified under this section does not affect its validity". A retired Law Lord, by his training as a barrister and experience as a judge, is well equipped to detect bad drafting before a Bill becomes law. The question in that area is whether a retired Law Lord can make a useful contribution to the form in which Acts of Parliament reach the public. More generally, are retired Law Lords worth while? In the words of the noble Lord, Lord Selsdon, does their presence enhance the membership of this House?

As it is a Friday afternoon, I shall close with a teasing question for the noble Lord, Lord Selsdon, which he will unfortunately not have the opportunity to answer as he has no right of reply. I was a little puzzled by his use of "enhance". I was not absolutely certain what was meant. I consulted my Concise Oxford English Dictionary, but that did not help me. I next turned to Fowler's Modern English Usage, which described "enhance" as, a dangerous word for the unwary". It then told me that its use in a personal sense, and so applying to membership of this House and other matters, was "long obsolete".

1.29 p.m.

Lord Goodhart

My Lords, I, too, am very grateful to the noble Lord, Lord Selsdon, for giving us our first opportunity to debate the Government's proposals for what they choose to call "reform", apart from a short debate on the Statement made by the noble and learned Lord the Lord Chancellor on the publication of his consultation paper last September. Indeed, it is the only opportunity that we will have to debate the proposals before the end of the present Session, although we are likely to have a great many opportunities in the next Session if, as we expect, we see a Bill to give effect to them.

The Question asked by the noble Lord, Lord Selsdon, was whether the proposals would enhance the membership of your Lordships' House. I would put the Question slightly differently: will they enable the Members of your Lordships' House to enhance the performance of the House?

This House is described as a revising Chamber. I accept that as a definition. We are not rivals to the House of Commons. We are bound, for example, by the Salisbury convention, and we should not, save in exceptional circumstances, wreck or reject government Bills, even if they are not in the manifesto. But "revising" does not mean only tidying up and correcting the kind of defects to which the noble and learned Lord, Lord Brightman, referred so entertainingly; it may also include substantial, and sometimes contentious, revision.

We believe that only a democratically elected second Chamber would have the strength and legitimacy to carry out the proper role of your Lordships' House to its full effect. I consider your Lordships' House already to be more independent since the departure of most of the hereditary Members in 1999. We are now more willing to exercise our revising power. When the majority of Members were hereditary, this House was all too conscious of the weakness of its mandate to challenge the Government. However, I believe that an appointed House would not have very much more legitimacy than a hereditary one.

It is too easy for the Government to reject our amendments, not on their merits but on the footing that they have been passed by an unelected House, and we have heard that comment made since yesterday's votes in your Lordships' House. That is why our main reaction to the consultation paper is that, frankly, it is a cop-out. An elected second Chamber would strengthen democracy in this country.

To their credit, the Government recognised that in their manifesto before the 1997 general election and, again, before the general election in 2001. To their discredit, the Government have now opted for an easy life. Indeed, they have done more than that: they have engineered the defeat in the House of Commons on all options for the election of Members of your Lordships' House. As I said on a previous occasion, I consider that to be a betrayal of the Government's manifesto commitments. Therefore, the Government's proposals in their consultation paper represent yet another missed opportunity. They result in little, if any, improvement on the status quo.

There are, of course, two main elements in the Government's proposals: first, the removal of the 92 remaining hereditary Peers; and, secondly, putting the Appointments Commission on a statutory basis and laying down a formula for the making of appointments both by the commission and by the political parties.

With regard to the first of those issues—the removal of the remaining hereditary Peers—we on these Benches and our predecessors in the Liberal Party have sought since 1910 to end hereditary membership of your Lordships' House. We supported the removal of the hereditaries in 1999. We were not consulted on the Weatherill amendment, under which the 92 remained as Members of this House, but those 92 were left here for a purpose. They were left as what is described as "the grit in the oyster", and they were left to ensure that the Government could not carry out their manifesto promise to remove the hereditaries, except as part of a full reform of the House of Lords. The Government now propose to break the promises made when your Lordships' House accepted the Weatherill amendment.

We shall, of course, support, and continue to support, the principle that hereditary membership of your Lordships' House should be abolished. However, the Government cannot rely on us to help them to bring that abolition into effect, except as part of a programme for a full and democratic reform of this House.

I move on to the second element—the Appointments Commission. So long as this House remains at least partly appointed and includes non-party Members, there will clearly be a need for an Appointments Commission. If so, we agree with, and welcome, the fact that the Appointments Commission will be put on a statutory basis.

This is not an occasion for going into the details of the proposals for appointments, but I should like to flag up some comments on that issue. We welcome the idea that the Appointments Commission should determine the number of political appointments, although, unlike the right reverend Prelate the Bishop of Oxford, I do not believe that it should have a role in choosing the appointees. I believe it should continue to play the role carried out in the past by the Political Honours Scrutiny Committee and that it should ensure that those nominated for appointment are suitable for appointment to your Lordships' House. But it is crucial that the Appointments Commission determines the numbers. That takes that vital decision out of the hands of the Prime Minister. We welcome the proposal that there should be binding guidelines on the way in which the Appointments Commission exercises that power.

If your Lordships' House is to play a proper role, it should be broadly representative of public opinion but not a clone of the House of Commons. In an age when a party can obtain a massive majority in the House of Commons on little more than 40 per cent of the national vote, surely the share of votes and not the number of seats should be taken into account when allocating the number of appointments; otherwise, we shall create an elective dictatorship which will be even more complete than the one that now exists.

I agree with the noble Lord, Lord Wakeham, that it is also necessary to ensure that your Lordships' House cannot be used by ambitious young politicians as a stepping stone on their way to the House of Commons. That would change the nature of this House for the worse. It would, for example, make it far more confrontational, and that is something that I believe very strongly we should avoid. I agree that there should be a right of retirement, but that right should be designed so that it cannot be used to enable someone to move speedily into the House of Commons.

A raft of issues, even on the basis of a wholly appointed House, are not adequately touched on in the consultation paper and they also need to be considered. Again, I agree with the point raised by both the noble Lord, Lord Wakeham, and the right reverend Prelate the Bishop of Oxford concerning whether future appointments should be for life or, rather, for a term of, say, 15 years.

The consultation paper states that there should be diversity among Members, including age diversity. We agree with that. But that means, for example, that if someone is elected as a representative of youth at, say, the age at which the noble Lord, Lord Selsdon, became a Member of your Lordships' House and lives to the age which the noble and learned Lord, Lord Brightman, has presently obtained, he, or she, would have been a Member of your Lordships' House for upwards of 70 years, for most of which he would no longer be suitable to be a representative of youth.

We consider it desirable for the House to be smaller. It should not include people who are no longer able to contribute on grounds of ill health or, indeed, loss of expertise if they become out of touch with the profession or business which they followed before coming here. An age limit would, indeed, be discriminatory and would exclude the many people of advanced age who have, as has been seen in today's debate, been able to make very important contributions. But a time limit on membership would not be discriminatory.

The consultation paper talks about a House of 600 Members, of whom 20 per cent, or 120, would be non-party. The Bishops would be retained on top of that, although Law Lords—I say nothing about retired Law Lords—are likely to go. We consider that that would leave your Lordships' House still too big—the limit should be closer to 500. I believe that the Bishops would represent far too large a proportion of the non-party Members if they were to retain their present right to 26 Members. I also ask whether the Government intend to end the convention that former Cabinet Ministers are entitled to a place in your Lordships' House, irrespective of their willingness to contribute to its work.

We do not consider the Government's proposals to be wholly without merit, especially in transferring the Prime Minister's powers of allocating political appointments to the Appointments Commission. But we believe that the proposals will do little to enhance the membership of your Lordships' House; they will do little to make your Lordships' House more fit for its purpose; and the real tragedy is, I believe, that the Government could and should have done so much more.

1.40 p.m.

Lord Strathclyde

My Lords, I begin with a public apology to my noble friend Lord Selsdon. Initially I thought that the timing of this debate was not entirely right. However, I was quite wrong. We have had a fascinating debate and one that I have hugely enjoyed, not least the speech of my noble friend and his exposition of some of the facts about our House as opposed to the convenient political myth. I also thank him for giving the Government the chance to make some nice points about the House, about the hereditary Peers and about the Law Lords.

In the past few days we have heard the usual bluster about hereditary Peers and the need for another place to force changes to the membership of your Lordships' House. Such reactions simply betray the underlying purpose of the Government in pushing for change without consensus. The purpose is political: to change the arithmetic of the House, to expel 20 per cent of non-government Peers and so remove the inconvenience of being asked to rethink controversial policies, such as the restriction of trial by jury and foundation hospitals. However the Government present the changes that they are threatening next Session, they will not wash, either as principle or as genuine reform. It is simply a good, old-fashioned fix.

Before anyone buys the Government's propaganda it is important to put on record two points. First, this House, as currently composed, is the Government's creation; it is Mr Blair's House. Let it never be forgotten that the Prime Minister himself was a direct and active participant in the undertakings, binding in honour, that were given in 1999. This House was created following huge majorities in both Houses, and its powers and right to use them were never challenged in any of those debates. Indeed, the then Leader of the House, the noble Baroness, Lady Jay of Paddington, said that the House had been made more legitimate and that in future governments must take more note of it. It has not turned out as she promised. That is all very sad. The irony is that for all the doubts that many had in 1999 the House has worked far better than so many of us expected. It has worked well. I fear that it is not the failure of the House that worries the Government, but its successes.

My second point is that consensus is not, as the noble and learned Lord the Lord Chancellor is fond of saying, beyond reach. On the contrary, as the noble Lord, Lord Goodhart, has said, there is a wide range of opinion across his party, my party and the Labour Party that could be brought together. The blunt truth is that the Government do not want to seek it.

In a powerful speech made on another occasion, as he has reminded the House, the noble Lord, Lord Goodhart, called the Government's actions an act of betrayal. The Lord Chancellor should take particular note of today's speech by the noble Lord, Lord Goodhart. It was a powerful speech in which he warned that the Government should not take Liberal Democrat support for granted.

When the noble and learned Lord introduces his Bill next Session, he should not expect an easy surrender by this House or by another place. We all know that if the undertakings made in 1999 are successfully dishonoured, a full and fundamental reform will, in all probability, not happen in the near future. A once-in-a-century opportunity to strengthen Parliament, on which so many have worked so hard, will have been lost. The work of Members of this House, like my noble friend Lord Wakeham who chaired the Royal Commission, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Weatherill, who sits on the Royal Commission, will have been lost and the noble and learned Lord will bear a direct personal responsibility for that.

My noble friend was right to say that the Royal Commission carried out much good work. Why has that work been rejected by the Lord Chancellor? I particularly enjoyed the speech of the right reverend Prelate the Bishop of Oxford and the questions that he raised about how the Appointments Commission would work in practice. When the Lord Chancellor replies to the debate I hope that he will tell the House his vision of stage two. I see he nods. We shall all look forward to that. The Government have had 10 years, since Mr Blair promised an end to what he called then an "affront to democracy", to think about it. What an irony it would be if the end to their long 10-year quest resulted in slamming the door on democracy.

In the context of an appointed House the noble and learned Lord is fond of hinting that while he wants to expel the elected hereditary Peers, he does not really want to expel the hereditary Peers that we have now. He says that we are all wonderful chaps. Perhaps he would tell the House whether life peerages will be on offer, as my noble friend Lord Wakeham suggested. Will all the 33 independent Cross-Bench Peers be invited back? If so, why go through the charade of kicking out Members on one day and inviting them back the next?

Rather than short-term expedients, should not the Government make at least one more attempt at reaching consensus, rather than plunge Parliament into senseless internal conflict? His argument that it is impossible to reach consensus does not begin to stand up. The House of Commons firmly rejected an all-appointed House, but it was within three votes of voting—on a free vote—for the model proposed by the shadow Cabinet and the Liberal Democrats. That was a vote on which the other place was offered seven different options.

Have the Government considered going back to the other place with a straight choice between the all-appointed House that they want to create and a predominantly elected House? Using his undoubted influence, he could perhaps organise that before the end of the Session. To plunge on now with unilateral change would not only dishonour the binding undertaking that was given in 1999, that we would not have further change until stage two was presented— something that the Lord Chancellor has freely admitted—but would also make a mockery of those words of the noble Baroness, Lady Jay, about the legitimacy of the House. It will raise fears that the Government will not accept any second Chamber, however composed, unless it can be relied on to say "Yes".

Can the noble and learned Lord confirm that it is the Government's intention to present two Bills to this place next Session: one to expel the elected hereditary Peers and one to expel the Law Lords from the House and set up a separate Supreme Court? Does he realise that, in the view of most noble Lords, removing the participation of the Law Lords and the retired Law Lords would hugely diminish this place? What have the noble and learned Lords done wrong to deserve that expulsion or being put out to grass, as the noble and learned Lord, Lord Brightman, put it? Surely it cannot be that a sentence in the European Convention on Human Rights serves to override centuries of our mixed constitution. If separation of powers is the issue, will he present legislation to remove executive Ministers from this place also? Has the noble and learned Lord had time to study the important response from the Law Lords to his consultation paper and the words of Lord Justice Judge, reported in this morning's press? Will he pay any attention to the concerns that they have raised or do the Government intend to plunge on with unilateral change here too?

With an inquiry in progress on the costs of the Holyrood Parliament, one concern could be cleared up here and now. The Law Lords are united in arguing that if a new Supreme Court is to be set up, it must be properly housed with all the facilities that it needs to do its work. As the architect of those plans, the noble and learned Lord must have given some thought to it. Will the court be a purpose-built construction? Can he give the House some idea of the cost that he has in mind? A ball-park figure will do. Will it be of the order of £40 million or £400 million? It is inconceivable that he will not have thought about that. Perhaps he could undertake to publish a business plan at the same time as a Bill is laid before Parliament.

I hope that following this debate the noble and learned Lord can tell us that he is ready to take time to think again. I am sure that all noble Lords would co-operate in ways to save the Prime Minister's face over this summer's fiasco. He made a mistake, as the noble and learned Lord, Lord Irvine of Lairg, told him with a characteristic bluntness and integrity, but we should not allow amour propre to override the interests of the House and the senior judiciary.

We are very close to a threshold in parliamentary history. If the Government proceed as they threaten, the House that my noble friend Lord Selsdon so ably described will cease to exist. Every fibre in me tells me that such far-reaching constitutional change should be taken only with forethought, after consultation and, if possible, with cross-party consent. That is the wise and the honourable course. The noble and learned Lord has both those qualities. He can, even yet, redeem the Government's honour by choosing that course. I hope that he does.

1.50 p.m.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)

My Lords, I join other noble Lords in congratulating the noble Lord, Lord Selsdon, on giving us this opportunity for what has been in everyone's view a truly excellent debate. We have heard from the chairman of the Royal Commission, a former Speaker of the House of Commons, an extremely distinguished Law Lord, a Bishop who also sat on the Royal Commission, two very distinguished Front-Benchers on behalf of the Opposition parties and the noble Lord, Lord Selsdon, himself, who I very much hope will be here for at least 70 years as the noble Lord, Lord Goodhart, sought to deprecate.

At the heart of the debate is the question of the Government's proposals to reform the House of Lords which I announced on 18th September. Perhaps I may briefly say how we reached that stage without going over the history, which is well known to everyone in the House, and explain our reasons. It is well known to noble Lords that a Bill was introduced in 1999 and that the so-called Weatherill amendment was introduced. It is absolutely right to say that the Weatherill amendment was accepted on the basis that it would provide a way of forcing a consensus to be found on the way forward for stage two of reform and to provide assurance that further reform after the 1999 Act would be forthcoming.

It was made very clear at the time of the passage of the 1999 Act, and subsequently, that the amendment put forward by the noble Lord, Lord Weatherill, was a transitional measure. When my noble and learned friend Lord Irvine of Lairg spoke about these amendments in 1999, he made it clear that, the Weatherill amendment is a purely transitional measure"— [Official Report, 22/6/03; col. 795.] and that the 1999 Act was a transitional measure providing for a transitional House.

It was also made abundantly clear at the time of the 1999 Act that the transitional House was expected to last only for a short time. No one envisaged at the time that the transitional House would last for as long as it has. Those reforms, as noble Lords will know, have now been in place for four years.

The Government have tried to find a way forward and we have failed. The noble Lord, Lord Goodhart, said, "Well, you failed because you encouraged your own Back-Benchers to vote against various proposals in the House of Commons". I hope noble Lords will recall the very significant intervention made by the noble and learned Lord, Lord Howe of Aberavon, on 18th September when we discussed the Statement I made. He made it clear that the Joint Committee, which is an impressive cross-House organisation, could not reach consensus about an elected element. So, with the greatest of respect to the noble Lord, Lord Goodhart, he is being unfair when he says that it is some self-induced failure to reach consensus.

Lord Maclennan of Rogart

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. It is perhaps not unfair to recall that prior to the votes being taken in the House of Commons—notwithstanding the Labour Party's agreement with the Liberal Democrats prior to 1997 to move to a democratic second phase and indeed its repetition in two election manifestos—the Prime Minister chose to indicate his personal preference for an all-appointed House on the eve of those votes. If that was not an attempt to influence the outcome, I find it very difficult to judge what it was.

Lord Falconer of Thoroton

My Lords, it was made clear that it was a free vote; and it was entirely right in my view for the Prime Minister to indicate his view. I simply remind the House of what the noble and learned Lord, Lord Howe, said. He made it clear that even within the Joint Committee it was not possible to reach a consensus about the way forward regarding an elected element. So I do not think that the House should proceed on the basis that there is a consensus about the way forward.

It is also worth pointing out that this House voted overwhelmingly for a wholly appointed House. It is perhaps not without significance that there has been a much greater measure of agreement in the debate than perhaps one might have expected on the basis of what had was said on 18th September 2003. Although the reform paper, which was announced on 18th September, does not propose a permanently wholly appointed House, it seeks to deal with many issues that concern this House.

I return to the very important point made by the noble Lords, Lord Selsdon and Lord Strathclyde. Are we breaking undertakings that were given at the time of the passage of the 1999 Act? The answer is, no, we are not. It is perfectly clear that those undertakings were never intended to operate in perpetuity.

I was much impressed by what the noble Lord, Lord Wakeham, said in quoting the end of his own Royal Commission's report. He said that we should not all quest for perfection or we might lose the prospect of further reform for a generation or even a century. Interestingly enough the noble Lord, Lord Strathclyde, then echoed that remark. He said that if we pursue our current course there will be no prospect of reform for a generation.

The Government are faced with this particular conundrum: we now have a House in which there are hereditary Peers; and it is open to the Prime Minister at any time to fill the House and make it any size he wants. The Government take the view that both those propositions are bad for this House, which in very many respects is excellent. A major proposal we have made in relation to the House of Lords Reform Bill is to remove the remaining hereditary Peers—not for one moment because of the way they have conducted themselves, and not for one moment because of their individual qualities, but because we take the view—a view that I think practically everyone in the House agrees with—that there is no longer a place in this country for a place in the legislature on the basis of one's birth. It is for that reason that we think that it is right to proceed on that basis.

In relation to the statutory Appointments Commission, I understood the noble Lord, Lord Goodhart, to say that that is a good proposition. I believe that it is a good proposition. Again, everyone in the House would agree that it is wholly unsustainable in this age for the head of the executive to be able to determine the size and political mix of the House. Therefore, if those two proposals go forward, we have a much firmer basis for the continuation of the current arrangements.

The noble Lord, Lord Strathclyde, said that surely we should have one more try in order to get consensus. The noble Lord, Lord Strathclyde, as everyone in this House knows, is the epitome of reasonableness. He himself has a most persuasive style. His misfortune in this area is that very unusually for the noble Lord, the one lot that he has totally failed to persuade of his utterly reasonable views is those behind him. They have failed completely to give him—and I cannot understand this—any support whatever for the totally reasonable proposals that he has made from time to time.

So, where do we go from here? In our view, we have to make progress in relation to getting rid of the hereditary Peers. I am intensely disappointed that the noble Lord, Lord Goodhart, says that we cannot count on the Liberal Democrats to support the removal of hereditaries. I am intensely disappointed that that is his view even though—although he had not heard the noble Lord, Lord Strathclyde, at that point, so perhaps his view will change now that he has heard him—that might mean that the hereditaries do not go for a very long time indeed. I take comfort from the following. The noble Lord said that we cannot count on the Liberal Democrats. Perhaps they will change; their mind remains open on that issue. Perhaps they are having difficulty agreeing the right course. They have campaigned on this for many years, indeed centuries. Maybe they will eventually see what is the right thing to do.

The noble Lord, Lord Wakeham, is absolutely right: there is no perfection to the arrangements. However, please do not see the proposals as being issued in bad faith: they are not. Please take note of what the wise noble Lord, Lord Marsh, said on 18th September. These are not his exact words, but he said that we have been circling around the issues for years and years and it demeans the House not to deal with them now. That is what our proposals are intended to do.

Perhaps I may deal with two other issues that have been raised in the debate. First, the noble and learned Lord, Lord Brightman, is proof positive of the importance of ensuring that there is a place for retired Law Lords in this House. Indeed, in the House of Lords reform paper that we published on 18th September, we made it absolutely clear that the norm would be that on retirement from the Supreme Court—which will become the equivalent of your Lordships' House for appeals—Law Lords would expect to come to your Lordships' House. So I am happy to give the noble and learned Lord the reassurance that he sought.

The noble Lord, Lord Weatherill, referred to the issue of the Speaker of this House—I use that phrase without indicating what the person sitting on the Woolsack should be called; but we all know what the noble Lord, Lord Weatherill, was saying. I thoroughly support several of the principles that he described: in particular, that the Speaker should not be appointed by the Government; that the Speaker should eschew party politics; and that whatever arrangements are made—I make no comment on the share out of responsibilities between the Leader of the House and the Speaker—the House plainly and earnestly wants self-regulation to continue.

I congratulate every Member who took part in the debate. I agree with the noble Lord, Lord Weatherill, that it would be a good thing if the terms of this debate had much wider currency than one could reasonably expect.

House adjourned at two minutes past two o'clock.