Address in Reply to Her Majesty's Most Gracious Speech

– in the House of Lords at 3:17 pm on 2nd December 2003.

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Debate resumed on the Motion moved on Wednesday last by the Lord Ashley of Stoke—namely, That an humble Address be presented to Her Majesty as follows:

"Most Gracious Sovereign—We, Your Majesty's most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament."

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office) 3:18 pm, 2nd December 2003

My Lords, I am pleased to have this opportunity to set out this year's proposed legislative programme on constitutional affairs. Justice, rights and democracy are at the centre of what this Government are about. Nowhere can that be seen more clearly than in the field of constitutional affairs. The range of Bills set out in the Queen's Speech indicates the high priority that the Government attach to this agenda. Our constitutional structure must fully meet society's needs and reflect its expectations. Only then will it be able to maintain the trust of the very people it is there to serve.

In bringing forward this programme, we have had to face up to some hard questions. We have to ask ourselves whether our structures and institutions are fit for purpose and whether they deliver what the public want of them. The answer to both questions is no. The evidence is all around us in falling numbers of people voting in elections, something about which no politician, elected or appointed, of any persuasion should be comfortable; in lower levels of trust in our public institutions; and in a widespread lack of faith in the justice system to deliver and enforce penalties.

Maintaining the status quo is simply not an option, but there will be no change for change's sake. All changes to the justice system and the constitution will be based on and measured by how they serve the public.

If we are to have a justice system that meets the needs of a modern society, we must have a strong, independent judiciary. The judiciary must also reflect the diversity of our society. Our judicial system is one of the strongest and most revered in the world, but transparency and lines of accountability are blurred.

That is why we are introducing the constitutional reform Bill. The Bill's provisions will enhance transparency and accountability in our constitutional arrangements by clarifying the independence of the judiciary from the executive and the legislature and ensuring that the respective responsibilities of the Secretary of State and the senior judiciary are clear.

The constitutional reform Bill will create a new independent judicial appointments commission responsible for the appointment of judges in England and Wales and a free-standing Supreme Court, separating the highest appeal court from the House of Lords; and abolish the office of the Lord Chancellor in its current form.

The concepts behind those reforms are not new and have been debated for many years. They will put the relationship between the judiciary, the executive and the legislature on a more modern footing and make the constitution more relevant and effective for the needs of today. I can assure the House that detailed consultation on them has taken place and that we will continue to work closely with the judiciary on those major and important changes.

Just as we intend to clarify and separate the roles of the executive and the judiciary, in line with the principles of a modern democracy, so we intend to complete our long-standing aim to remove the hereditary principle from our legislature; and will bring forward a House of Lords Bill to do that.

We said in 1997 that the,

"right of hereditary peers would be removed by statute", and in 2001 that we were:

"committed to the removal of the remaining hereditary peers".

We will honour our promise to the people.

As the House is well aware, we have tried for some years to find a way forward.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Liberal Democrat

My Lords, can the Minister explain why she and the Government have given priority to only part of the promise in her remarks, for the undertaking given to the electors in the Labour Party manifesto of 1997 was clearly not only to make this House more representative but to make it democratic? Neither she nor any other member of the Government seem to have recalled that fact in the legislation that they have announced.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, if the noble Lord could wait until I finish the next paragraph of my speech, that may become clear. I will then give way if he is not happy with what I have to say.

Let me repeat, as the House is well aware, we have tried for some years to find a way forward. The Royal Commission chaired by the noble Lord, Lord Wakeham, produced a considered report. The Government published a White Paper that largely gave effect to that report. Neither found favour.

We then invited Parliament itself to consider the options. The Joint Committee of both Houses, of which the noble and learned Lord, Lord Howe of Aberavon, was the deputy chairman, produced for our consideration a discussion of the roles and functions we want to see in our second Chamber and a series of options on composition. We voted for a wholly appointed House by a majority of 3:1.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, I should like to finish.

The other place failed to record a majority for any option, although I must remind your Lordships that it liked a wholly appointed House even less than it liked anything else apart from abolition.

In those circumstances, the Government have decided to move where we can. We are also committed to removing the overwhelming powers of patronage invested in the Prime Minister. It is nonsense to claim that those reforms are intended to make it easier to create a House of cronies. For the first time ever, the Prime Minister will be unable to determine how many Peers he may himself create and how many the other parties may create. That decision will be made by the appointments commission. We will also bring the rules for disqualification for membership of this House more into line with those for the other place.

We will continue to search for a consensus on the future shape and role of the House; the Joint Committee will continue, and, we hope, bring forward recommendations at a later stage. But we have already held up those fundamental reforms long enough while searching for agreement. I am sure that I will hear arguments today that the lack of consensus is reason enough to halt all reform; I do not agree. We have all been in politics long enough to know that the perfect can be the enemy of the achievable. The Government have promises to keep, and they intend to keep them.

We will continue our work to increase participation in the democratic process. The European Parliamentary and Local Elections (Pilots) Bill carried over from the previous Session will allow pilots of innovative voting methods to be held at next year's European and local elections.

The Bill will allow a continuation of the Government's successful programme of piloting electoral innovations, including all-postal voting and electronic voting, at next year's European and combined elections. Its aim is to engage the maximum number of voters in the elections and make their participation easier and more convenient. It will allow many more people next year to have the opportunity to take part in trials of ways of voting more in tune with modern lifestyles. The Government recognise that improving trust in our democratic institutions and increasing participation at elections is not just about how people vote, but offering updated ways of voting has an important part to play.

We will consult stakeholders on a draft Bill that will set out the Government's thinking on the terms on which a referendum on membership of the euro would be held. The draft Bill is another major step forward in paving the way for the British people to be consulted on the adoption of the single currency, subject to the five economic tests being met.

In this country, we have a deep and proud sense of our rights based on a strong historical tradition of mass political participation and freedom of expression. The Government strengthened those rights by legislating on human rights, freedom of information and data protection. But we must not be complacent. It is fundamental to an inclusive society that individuals and groups be given the rights to which they are legitimately entitled and wherever possible be allowed to live their lives as they determine and free of discrimination.

The Gender Recognition Bill will give transsexual people legal recognition in their acquired gender, including, from the date of recognition, the right to marry and be given birth certificates in the acquired gender and to leave behind the vulnerable position, the limbo between two genders, which they have presently to endure. The Bill brings to fruition the work that the Inter-Departmental Working Group on Transsexual People started in 1999, and honours the Government's commitment to implement the judgments of the European Court of Human Rights and to ensure that transsexual people are given the rights that respect their identity.

With democracy and rights come responsibilities. We expect people to respect the rights of others and are prepared to take swift, effective action where they fail to do so. In the last Session, the Government passed important new laws to tackle anti-social behaviour, place tougher sentences on repeat offenders and streamline the courts system. Tackling crime remains a key priority for this Government, together with providing better support and services for victims and witnesses.

Access to justice for all is essential to achieving a fair and safe society for all our citizens. Legal aid is essential to achieving that, in order to make sure the most excluded have access to the justice system. However, the cost of legal aid continues to rise, and, too often, it is not sufficiently targeted at those who need it most. That is why we will consult on a draft criminal defence service Bill to help to continue the reform of legal aid, bringing down the cost while ensuring high-quality advice and representation for those who need it.

The Government made a commitment in the Joint Declaration of 1st May 2003 that there would be a second justice Bill for Northern Ireland, which would more fully implement the recommendations in the criminal justice review. The Justice (Northern Ireland) Bill is the continuance of the process of change and improvement in the criminal justice system in Northern Ireland. The main provision of the Bill will be the creation of a Northern Ireland judicial appointments commission.

Our agenda is ambitious and our programme extensive. As a Government, we are prepared to enter into positive and constructive debate on our proposals as they proceed through Parliament. Our continued willingness to listen is further demonstrated by the number of Bills that we are publishing in draft on the constitution and across the whole of Government. But nobody should doubt our determination to deliver—a determination to deliver change that will enhance our democracy and people's rights, and restore trust in the justice system.

That is what underpins our programme. I commend it to the House.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Liberal Democrat

My Lords, the Minister has kindly said that she would give way to me again. In the light of her remark that there was no consensus about the reform of this House, and that the Government had therefore thought it necessary to bring forward proposals, why did those proposals not conform with the Government's own promise for democratic reform? They could not have made that promise in the expectation of finding either consensus or universal agreement in this, or the other, House.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, there are two reasons. First, as I said, we will continue to search for a consensus on the future shape and role of the House. But noble Lords must remember that, in our manifestos of 1997 and 2001, we made clear that our first commitment was the removal of the hereditary principle. Noble Lords will recall that, in our discussions on the 1999 reform Bill, part of the agreement for retaining the 92 hereditary Peers was to give an impetus for reform. That impetus has failed to deliver. We need to move forward; we will seek greater consensus; but our commitment with respect to the hereditary principle is one we wish to take forward. That is what the House of Lords Bill will deliver.

Photo of Lord Strathclyde Lord Strathclyde Conservative 3:35 pm, 2nd December 2003

rose to move, as an amendment to the Motion for an humble Address, at the end of the Address to insert "but regrets the decision of Your Majesty's Government to abandon the search for cross-party consensus on constitutional reform and to launch unilateral proposals for changes to this House that could gravely weaken the House; and calls on Your Majesty's Government to respect the formal undertakings given to this House, to withdraw their current proposals and to undertake meaningful consultation with Parliament and the senior judiciary before proceeding with legislation."

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, I admit that it is unusual for us on this side to move such an amendment to the Motion for an humble Address. It is equally unusual for the Liberal Democrats so to do. The fact that both parties have done so this year says something striking, of which all noble Lords are all too well aware: the exceptional degree of unease—to be blunt, even anger—about the cavalier way in which the Government have treated this House and the senior judiciary. If the Government plunge on with their ill-conceived Bills, that anger can only deepen.

Why are we where we are? In June, the Prime Minister had a row with the noble and learned Lord, Lord Irvine of Lairg, the then Lord Chancellor and a scrupulous respecter of his office of judicial independence in your Lordships' House. The Prime Minister was having problems in his now famously botched reshuffle. Then some bright spark popped up and said that he could look more modern by scrapping the office of Lord Chancellor, or, as the Prime Minister so intellectually put it, getting rid of the wigs and women's tights.

The noble and learned Lord, Lord Irvine of Lairg, was summoned. No doubt he told the Prime Minister what the Judges' Council, the Lord Chief Justice, the majority of Law Lords and the Society of Black Lawyers have since told him—that his plan was unnecessary, potentially harmful and patently ill thought-out. His reward was dismissal. As the noble and learned Lord was led away, the noble and learned Lord, Lord Falconer of Thoroton, glided in smoothly from the anterooms of power.

What an astonishing way to take a decision to kick out the Law Lords, scrap the Lord Chancellor and spend who knows what on building a new Supreme Court, who knows where—all to solve a problem that no one really thinks exists at all. When the Prime Minister met the Liaison Committee in another place, Mr Alan Beith said that it seemed that neither the Cabinet, Law Lords, senior judges, Parliament nor the Scottish Administration had been consulted. He asked:

"Prime Minister, was it just two or three people in Number 10 . . . and they discussed it with you and you just made the announcement?"

Did the Prime Minister hit back with an angry denial? No, he shrugged his shoulders and said:

"It is in the very nature of changes to do with the reshuffle that obviously there is a more restricted discussion".

So it is official: a reshuffle dictated this massive constitutional change. The policy was cooked up in the kitchen cabinet and served in a hurry half-baked; it is now to be force-fed through this House. There was not a shred of consultation with anyone here. The House still has no date for a debate on any of these sweeping proposals, except the speakership, where the noble and learned Lord seems in a hurry to be on his way.

Many noble Lords opposite have told me that they share my view on this sorry episode. It is surely inconceivable in any other free country, where big constitutional changes must follow wide debate, often a referendum and a two-thirds majority in Parliament, that such far-reaching changes could be bounced through in this way. Other countries require consensus. That, if nothing else, would justify support for the amendment that I submit today.

We will hear from the noble and learned Lord the Lord Chancellor. No doubt he will tell us, "Sure, on the one hand, we could have consulted before. But then, on the other hand, we are now consulting after". "Let us be absolutely clear", he might say, "there can be a big conversation". Cannot we be part of this big conversation before our House is changed? Does not the senior judiciary qualify to be in on the big conversation?

The noble and learned Lord may promise a spanking new Supreme Court building to try to win over the noble and learned Lords, who want a bigger home than we can give them, however much many of us want them to stay here in this House. Now he is even dropping hints on safeguarding judicial independence. But does it not strike him how utterly ludicrous it is that the safeguards that he talks about are safeguards against his own proposals? It is a funny old world, but it shows how right the noble and learned Lord, Lord Woolf, and others are to be deeply wary. If safeguards are given on a judicial appointments commission, will the same be given on an Appointments Commission at your Lordships House?

The noble and learned Lord the Lord Chancellor is a loyal man—there is none more so—and he is not a foolish man, but he must know that his policy is falling apart. It looks like a recipe for chaos and confusion. It risks far too much, far too fast, for far too little gain. The Lord Chancellor should consider a constitutional commission on this great subject. He should think again and consult more widely, more openly and more deeply. If he did that, he could save the Prime Minister from what was bad government and a bad error and he might even help to preserve a judicial system of unique authority and unquestioned independence which is also an adornment to this House. The House should invite him to do so tonight.

I now turn to the other element of the amendment, which relates to the composition of this House. I say with all respect to the Government that this issue does not belong to them. It belongs to Parliament and it matters to everyone in Parliament and in the country. There is no point in harping on old myths and ancient wrongs. We should deal with the situation as it is now. In 1999, the Government achieved a long-held objective to end the right to sit here by virtue of an hereditary peerage. That right no longer exists. The backwoodsmen have gone. Those who remain are elected. Now the Lord Chancellor says that he must act decisively against them.

A wise man decides where he is going before he acts—something the Government have never managed to do when it comes to constitutional change. The Lord Chancellor is surely at his most spurious when he says that purging elected Peers will deliver stability. If he thinks that this Bill will deliver stability, I fear that he is sadly wrong. To judge from Mr Robin Cook's reaction last week to what he denounced as a Bill to create an appointed House, opening this box again could do precisely the opposite. The Government may think that they can confine debate to old war cries about hereditary toffs, but that will not wash any more.

The Bill is also sadly short of the real question before us. The real question that we should be addressing is not a narrow, partisan Bill, but how to make Parliament work better in controlling the executive. Purging 20 per cent of non-government Peers—those of whom the noble and learned Lord said:

"Many of them are among its most active and effective members".—[Official Report, 18/9/03; col. 1058.]— does not seem to be the obvious place to begin, but then I do not think that this Government ever wanted a stronger Parliament. If they did, they would not have given house room to the idea in paragraph 41 of the consultation paper which suggested that appointments to this House might reflect the number of seats won in the Commons. Doubtless, such a House—with 62 per cent of its political Members hand-picked by the Prime Minister—would have loyally waved through restriction of jury trial.

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

My Lords, would the noble Lord confirm his previously declared public position that he is in favour of the abolition of all hereditaries in this House and an 80 per cent elected element to this House?

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, I stick to the policy that I have put forward in the past—namely, that no political party should dictate this matter on its own. It should be part of a wider consultation. We propose an elected Senate—80 per cent elected and 20 per cent appointed. My view has not changed. However, the debate that we face today and will face over the course of the next Session is not over a long-term reform Bill. It goes back to stage one. It is the Bill that the Lord Chancellor will no doubt propose in a few weeks' time.

In his consultation paper and in the past when we dealt with the 1999 Act, the Lord Chancellor spoke of "broad parity" between the parties or some reflection of votes cast. No doubt he will now say that those circumstances no longer apply. Perhaps Mr Blair was just stringing the Liberal Democrats along in 1997. I am sure that they have a view about that. After all, the Prime Minister is now paying back their trust with the most stinging contempt, and we have seen more of that today.

We all know, however, that there is a deeper act of dishonour—even the Government admit that, and few in this House do not feel something tacky in the air. Many of us were here on that day. The House was packed to the gills on 30th March, 1999. The noble and learned Lord, Lord Irvine of Lairg, stood at the Dispatch Box and said that the 1999 Bill,

"reflects a compromise negotiated between Privy Counsellors on Privy Council terms and binding in honour on all those who have come to give it their assent".

The Prime Minister was one of the negotiators. He gave his assent. Does he have no sense of honour to bind him, or is it simply that we cannot believe a word that he says any more?

The noble and learned Lord continued in the most carefully worded statement. He said that,

"the 10 per cent—" that is the 92—

"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.]

The words could not have been more unequivocal and 650 men and women believed him. They left this House quietly and without a fight, satisfied with the service that they had given, and trusting the word of a Privy Counsellor that those who remained would go,

"only when stage 2 has taken place".

That promise and their trust in it as parliamentarians are utterly dishonoured by the Bill proposed. Sadly, I must tell the Lord Chancellor and the Leader of the House—although I am sure that they both know this—that all their tortuous efforts to justify the Bill are embarrassing and demeaning.

Photo of Lord Marsh Lord Marsh Crossbench

My Lords, I was one of the three Privy Counsellors who took part in those discussions. There were no negotiations as such, because there was no way that the three Privy Counsellors, who were all Cross-Benchers, could negotiate because they could not deliver anybody apart from the three of them. Who actually reached the agreement? It was not the three Privy Counsellors. I do not know how it could have been the Leader of the Opposition, because he was fired the same day, immediately after the press release. So who on the Conservative Benches was party to the agreement?

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, the noble Lord has just reminded me of a rich irony. Today is precisely the fifth anniversary of my sacking as Chief Whip and installation as Leader of the Opposition. The agreement is quite clear in the words of the noble and learned Lord, Lord Irvine of Lairg. It is an agreement between the Government and Parliament. It was on that basis that the House of Lords Bill of 1999 became an Act. This proposed Bill does not take us anywhere near stage two. It does not pretend to be stage two. It could not pretend to lead to stage two. All that it does is to take us back to 1998–99, to stage one.

Do the Government have any intention of moving to stage two? The Minister mentioned it, but did not shed much light on what it meant. Can we ever know? If we are to have stage two and the stability to which the Lord Chancellor has referred in the past, even in the context of an appointed House, questions flagged by the Royal Commission would have to be addressed, such as: the total size of the House; safeguards on political abuse; term limits or otherwise of appointed peers; a rebalancing of the House after elections; the right to reappointment or to stand for the Commons; the place of the right reverend Prelates; retirement rules; powers over secondary legislation; who appoints the appointers; and the powers of the Prime Minister to appoint Peers outside the appointments commission.

Those and many other issues will all need to be resolved in an appointed House such as proposed by the Government, without even considering the issue of election—direct or indirect. Ahead of us is fire and storm shell and a very uncertain outcome. It is all so avoidable.

I believe that I speak for many Peers on all Benches with whom I have had the privilege of working over the course of the past two decades. On this Bill, as on the Supreme Court Bill, there is a far better way forward. We should return to where the Government once wisely pointed—the Joint Committee. Even in the context of this Bill, the Joint Committee could do a service. The noble Baroness admitted as much. The committee could study and advise on the matters left undecided by the Royal Commission and say how, for example, an appointments commission might work.

We hear much of pre-legislative scrutiny, though not, sadly, of either of the Bills that we are discussing today. I find that astonishing. Prime ministerial amour-propre should not rank above responsible constitutional reform. Wise governments know when and how to retreat; wise oppositions respect a government ready to think again. That is clear to all of us. In the face of all the authoritative objections raised, it would be so much wiser and would win so much more respect if the Bills were put to the Joint Committee or another parliamentary forum before any attempt to ram through unilateral change. Then, while the work of building consensus continued, Parliament could deal with what the public might think to be more pressing matters, such as mental health or the reform of charity law, Bills that will be held up while this legislation is pushed ahead.

Later tonight I will invite the House to record its distaste for the breach of the undertakings given in 1999. We must send a clear message, asking the Government politely but—to make no mistake—earnestly to think again. The noble Baroness, Lady Williams of Crosby, has tabled a separate amendment, but the Government should draw no comfort from that. All those who support either amendment are asking the Government to think again. Supporting the noble Baroness's amendment does not mean that someone cannot support mine. I hope that many will join me when I divide the House tonight.

As I listened to the gracious Speech, I felt, as other noble Lords may have done, a real sense of threat to this House. That is why I will ask the House to join me in a common resolve to urge the Government back to consultation and consensus. In the search for that, I promise, all other parties are ready to play their part.

Moved, as an amendment to the Motion for an humble Address, at the end of the Address to insert "but regrets the decision of Your Majesty's Government to abandon the search for cross-party consensus on constitutional reform and to launch unilateral proposals for changes to this House that could gravely weaken the House; and calls on Your Majesty's Government to respect the formal undertakings given to this House, to withdraw their current proposals and to undertake meaningful consultation with Parliament and the senior judiciary before proceeding with legislation.".—(Lord Strathclyde.)

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat Leader in the House of Lords 3:52 pm, 2nd December 2003

My Lords, in following the speeches made by the Leader of the Opposition and the noble Baroness the Leader of the House, I shall make my starting point closer to the speech given by the noble Baroness the Leader of the House than to that given by the Leader of the Opposition. But I shall come back to what the noble Lord said because he identified as fundamental the deeply troubling sense that there has been a breach of trust. The Liberal Democrats, perhaps, have a different aspect on that, but I would like to put it before the House.

Before I do so, I must underline one of the most important things said by the noble Baroness the Leader of the House: our concern is, rightly, not only with the House of Lords but with the growing distrust of representative democracy in our society. We would be unwise to fail to recognise that the challenge to the Government on constitutional reform is, at this time and for this nation, very serious. As the noble Baroness said, the proportion of people who vote is falling. That is most notable among the young. The number of people joining a political party or associating themselves with one is falling. There is a wide consciousness that local government has been hollowed out and that it has little discretion and little power. There is growing awareness that, under this Government and their predecessors, the Prime Minister's office has increasingly taken over from the Cabinet direction of the policies put before Parliament and that such policies are often passed under great pressure and against what would be the conscience of Parliament.

We must be aware that we are at a profoundly critical stage in the development of this country's long-standing and powerful democracy. In 1997, we and our predecessors on these Benches believed strongly that the government that had been elected had a new vision—a vision of radical constitutional reform that would strengthen Parliament and give the country a Parliament truly capable of holding the executive to account. We were, as my noble friend Lord Maclennan of Rogart said, inspired by the concept of devolution of power to the countries and regions of the United Kingdom. We were inspired by the prospect of a serious consideration of the voting system. We were inspired by the prospect of a Parliament that, at both ends of the building, would be reformed and modernised.

Some of that has happened. Like many of my colleagues, I welcome the devolution of power to Scotland and Wales. It has led to new ideas, new vigour and, often, to extraordinary reforms that have not yet been extended to England. We welcome those things and congratulate the people of Scotland and Wales on what has been done and on what will be done. However, the great reform has come off as—I agree with the Leader of the Opposition on this—a half-baked reform. It has been stopped half way through its growth and its life.

Today, there are reforms to the judicial system—my noble friend Lord Goodhart will mention our welcome for the joint appointments committee—but we have stopped half way. There is no ministry of justice, as there is in Scotland; there is no concept that the creation and initiation of law should be in hands different from those involved in its implementation; and there is no awareness that our criminal justice system is, in many ways, anachronistic. A ministry of justice would have been a proper, substantial reform. We got a certain amount of tinkering, instead of what could have been an inspiring rebirth of the judicial system in the United Kingdom.

I turn to reform of the House of Lords. I subscribe to the serious charge made by the Leader of the Opposition. We believed what the noble and learned Lord, Lord Irvine of Lairg, said when he was Lord Chancellor. We believed in the proposals for what was described as a more representative and more democratic House. We believed in those things; we worked on them; and we thought that, together with the representatives of Her Majesty's Government, we could deliver those things. In that context, I quote one of the Government's earlier leaders on the matter, the right honourable Robin Cook MP. As Leader of the House of Commons, he said, as late as January 2002:

"If the second Chamber is to discharge is to discharge those functions in the public interest, it is essential that it should contain some members elected by the public".—[Official Report, Commons, 10/1/02; col. 706.]

That view was echoed in this House by the late and deeply lamented Leader of the House, Lord Williams of Mostyn. Most of us know that Lord Williams of Mostyn was a strong supporter of the idea of having a substantial democratic element in the House. Why is it that a key constitutional question appears to be determined more by a change in the cast of players than by the significance of the play itself? Why has much of the impetus for reform somehow been lost?

The noble Baroness the Leader of the House spoke eloquently and persuasively about the difficulties of moving ahead. We all know that, in this House, a substantial majority was, as she said, in favour of a wholly appointed House. However, we must be precise: there were two reasons why the vote in another place for an elected or substantially elected House was lost. The first reason was tactical. The votes in the House of Commons did not put the principle of having an elected House up against the principle of having an appointed one, and the majority in the Commons in favour of an elected House was fragmented by a set of separate Motions proposing different elected proportions. Taken together, the votes showed that the will of the other place was clear.

There was a prospect that the 80 per cent option would, despite the fragmentation of support by the 60, 20 and 40 per cent options, be passed by another place. I think we all know why that option was lost by precisely four votes. It followed the direct intervention of the Prime Minister, who indicated his complete opposition to a substantially elected House. Frankly, it is no good for Her Majesty's Government to pretend that there was no such intervention, one that brought about the loss of that particular option by only four votes. So Members on these Benches do not believe that there is no way forward. We believe that there is a way and that, given the will, it would be possible to find a further route for this House.

Although it is difficult for governments to understand this, I want to say a few words about the absolute importance of having a Parliament which is respected, taken seriously and able to hold the executive to account. I say over and over again that Members on these Benches in this House have no perverse desire to toss out legislation introduced by Her Majesty's Government. We will not take part in a policy of "going slow" to frustrate the will of the Government. But we are profoundly concerned about the Government's suggestion that, somehow, it is illegitimate for an unelected House to draw the attention both of the Government and of the other place back to what we regard as serious incursions on traditional liberties and on the standing of our unwritten constitution. That I believe to be the ultimate obligation of this House and one that the public widely accept.

In the poll conducted prior to the votes taken in the other place, 83 per cent of those who took part indicated their strong support for a largely elected House. It is impossible to argue that there is public support for a wholly appointed House because there is no evidence whatever to suggest that that is true. If we are to respond to the concerns of our fellow citizens, we need to go back and consider the position before us.

Let me say finally—I do not want to detain the House for long—in a little more detail that Members on these Benches deeply regret the Government's lack of courage in breaking the link between the Peerage and the House. I cannot think why the Government have reverted to the profoundly "little c" conservative view that this House must be linked somehow with the Peerage. That is almost to say that we are not moving in a modernising direction.

I turn to the position of the hereditary Peers. In doing so I pay due respect to the fact that they are among the best attenders in the Chamber and the most hardworking of Peers. Nevertheless, since the very beginning of the Liberal Democrat Party, Members on these Benches have never accepted that heredity by itself is a proper basis for representation in either House of Parliament. We have never held to that principle and we do not hold to it now. However, we feel very strongly—we will stand by this—that to make a half-botched reform by getting rid the remaining hereditary Peers without making any response to the other half of what we understood was the decent, honourable, upright deal and understanding between us—the noble Lord, Lord Strathclyde, pointed this out—is wrong. The abolition of the remaining hereditary Peers was to be linked to a true reform that would bring in a new influx of democratically elected Peers. What is proposed is not what we understood would happen. Members on these Benches are disappointed, some would say that we feel betrayed, because we have acted and negotiated in good faith. We have to hold to the position that, sooner or later, that good faith must be upheld.

Photo of Lord Craig of Radley Lord Craig of Radley Convenor of the Crossbench Peers 4:04 pm, 2nd December 2003

My Lords, in the 1999 White Paper, Modernising Parliament, the Government stated that they would,

"maintain the cross-bench representation at around its present proportion of life peers".

However, in the Consultation Paper, CP 14/03, the Government proposed only that the,

"appointment of non-political members of the House should average 20% of new appointments over the course of each Parliament".

I invite the noble and learned Lord the Lord Chancellor to confirm today that the independent, non-party figure of 20 per cent is to be the accepted benchmark for membership in an all-appointed House of the future.

From 1958 to 1999, it was customary for some life peerages to be announced in the Queen's Birthday and New Year's Honours lists. In total about 250 individuals out of well over 1,000 were honoured in this way before the present appointments commission was set up in 2000. That is equivalent to an annual average of fewer than six awards per year; a small and special category of recognition. Virtually all other life peerages have been awarded in dissolution or resignation honours lists, or to replace or strengthen political party membership—quaintly referred to as "working Peers". In 2001, the newly created appointments commission recommended 15 outstanding applicants to become independent Peers. Until then, a peerage had been regarded and treated as an honour.

Regrettably, by establishing the appointments commission, this Government have severed the link between membership of the House and the honour previously bestowed in the New Year and Birthday Honours lists. In the case of the late Lord Lewin and myself, we were named in the lists of honours awarded respectively for the Falklands conflict and Gulf War 1. We did not figure in a half-yearly honours list and we much prized this uniqueness. Speakers from the other place are also honoured with a peerage on their retirement, at the behest of the Commons. They, too, prize this. Will the Government confirm their intention specifically to allow for peerages in these two categories to continue?

However, of greater concern to me is the proposal to establish an appointments commission on a statutory basis and to give that new body significant responsibilities, in addition to selecting individuals as new non-party Peers. I wonder if I am alone in feeling uneasy about this plan? It is seen as a means of replacing and building on the experience and responsibilities of the present commission, but the case for the present commission is based on less solid ground than when it was originally proposed and set up. At the time there was a strong presumption that, before too long, the House would have an elected element. It was argued in the 1999 White Paper that an appointments commission would relieve the Prime Minister of the function of nominating Cross Bench Peers because they would become more important,

"with the removal of the Conservative in-built majority".

But Cross Benchers are never whipped.

The Royal Commission recommended a statutory commission with wide-ranging powers for a partly elected House when it would be inappropriate for a Prime Minister to have a role as an appointer. It was argued that it was not in keeping with modern sensitivities for a Prime Minister to exercise patronage in appointments. Much was made at the time, and has been repeated today, of the self-denying ordinance of this Prime Minister.

But, in reality, how great is this Prime Minister's surrender of Lords' patronage? What has he given up? He has given up honouring around six new individuals per year from a field of eminent and successful people whose efforts merit the award of a peerage. But he will still be responsible for the ennoblement of every new Peer on his party's Back Benches; the Ministers that he wishes to sit in the Lords; the past holders of high office such as Archbishops, Cabinet Secretaries and Chiefs of the Defence Staff, whose appointments he was probably responsible for recommending to the Queen in the first place; and every new Peer named in his dissolution or resignation honours—I tread lightly on those two adjectives. Is that patronage surrender? No, it is just spin.

This Prime Minister retains a major role in filling vacancies in your Lordships' House for as long as it is to remain a fully appointed House, which is his firm preference. But that role for a Prime Minister is neither reprehensible nor alien to our customs. All of Mr Blair's predecessors since the Life Peerages Act 1958 managed to select on average around six individuals a year to be honoured in the New Year and Birthday lists, to select their party's working Peers and Ministers, and all those named in their dissolution or resignation honours.

Why then should the relatively small task of selecting five or six individuals a year to be honoured be so inappropriate for the nation's Prime Minister? Instead, his appointments commission was tasked to seek applicants, not those who should be honoured with no pre-scripted obligation to participate in the work of the House as had happened previously. We are invited to legislate to remove just one small element of patronage from Mr Blair and all future Prime Ministers. Is it right to so curtail a responsibility that should go with the job?

We now have a commission the role of which, after the flush of 15 Peers to catch up with the period when there had been no new year or birthday honours, may be limited to naming five or six Peers per year in a couple of tranches once filled by the honours system. Even that number could be doubtful. Three non-party peerages have been awarded in the past year directly on the Prime Minister's authority, without recourse to the appointments commission.

Current Cross-Bench representation, excluding the Lords of Appeal in Ordinary and minor parties, is around 24 per cent. That leaves scant headroom for additions to a 20 per cent on average non-party membership.

A new statutory commission, as envisaged in the Government's consultation paper, will,

"wield very significant powers".

Without dwelling on the make-up of this body or how its membership is to be found, can any such group, however eminent, fulfil the functions that this Government expect of it? Apart from their doubts revealed in the consultation paper about the commission's composition or the best way of finding its membership, the Government significantly only place as third in their list of criteria for the commission's guidance that it is,

"to have in mind the non-party peers' share of the House".

The commission's significant powers are to be exercised in conformity with certain principles or guidelines—I am not sure which, and it may not be that material—but, whichever they are, they are expressed in the vaguest terms:

"The Government of the day should not have an overall majority in the House".

How long is a piece of string? The commission,

"should be guided, in its decision on the appropriate balance of new nominations between the parties, by the distribution of votes between the major parties at the previous general election".

What about the minor parties?

Because of the inflexibility of life membership the Government do not propose to set out any of these "rules" in legislation,

"beyond having regard to the general election result".

It seems to me that there could be precious little help for the commission from legislation crafted in such vague terms.

Yet the more that it is left to its own devices, the greater will be the prospect of serious disagreement on one side or another about its decisions and methods of work. With a much more limited role the present commission has not been without its critics.

The new commission is also to pay attention to representativeness and regionalism and is to have,

"very much in mind the need to keep the House to a manageable size".

Manageable by whom? Further vague phrases; difficult, impossible to define. My home is in Norfolk. Do I represent in some way regional East Anglian interests? I think not. I spend more of my days here in London. I was born in Dublin. My interests and experiences are not geographic but professional in defence and science. I suppose I may now be embarking on a constitutional foundation course. Vagueness could be a recipe for instability—something to avoid in a vital constitutional matter.

Should legislation to set up a new commission seek to be precise; to give some mathematical approach to calculating relative party strengths after a general election and eligibility criteria for becoming a Member of the House? If so, you do not need a new statutory commission. The Electoral Commission could be charged to work out the new party strengths to the agreed formulae following an election.

In sum, for a fully appointed House I have doubts about the need for a statutory commission with wide and ill-defined powers yet great authority. It may be difficult even to get its membership mix agreed. Once it is set up it will be either a continuing focus for dissent, and thus instability, or it will be so circumscribed by statute as to be an unnecessary complication in our constitution.

Let the Prime Minister of the day, still with very wide powers of patronage, continue to be responsible for honouring half-a-dozen or so individuals as independent Peers each year. If he needs help in identifying them, he can look to an informal arrangement. Future Prime Ministers should be free to undertake this task in whatever way—including, perhaps, the old way—that suits them. They should not be tied by an entrenched statute.

The nation has been well served by the appointed Members of the House who have entered it by the old routes. The goal posts of reform have moved back from election to appointment. The Royal Commission's views in favour of a statutory commission are no longer so relevant. Must we turn to an expensive, controversial statutory commission with ill-defined, extensive political powers and required to find a very few new independent Members a year for your Lordships' House? However eminent, will it serve us well? I have my doubts.

I have not yet addressed the amendment standing in the name of the noble Lord, Lord Strathclyde. He knows that I have a good deal of sympathy with what he says. I reflected similar sentiments when I said that the noble and learned Lord the Lord Chancellor's statement on 18th September contained a,

"serious breach of faith".—[Official Report, 18/9/03; col. 1065.]

But I have some reluctance about amending the response to the gracious Speech and so I shall listen with great interest to what is said.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop 4:16 pm, 2nd December 2003

My Lords, there is a story about a preacher who fell asleep during his own sermon. I have never suffered from that particular fate myself, but it springs to mind as I try to make some observations about the implications of the gracious Speech in relation to today's debate.

I have been in your Lordships' House for only four years, but there seems to have been more than ample opportunity to try to get at least some of these matters settled in some kind of orderly way—Wakeham, Green Paper, parliamentary Joint Committee, to say nothing of the public debate that has been going on at the same time. I hope that what follows, offered in the spirit of a friendly critic, may in some small way help to push the debate along. If I adopt the popular preacher's practice of concentrating on three areas that begin with the same letter—process, principle and perspective—perhaps your Lordships may be allowed to conclude that the ruse is to try to keep me awake while I speak to you.

First, the process has gone badly wrong in relation to the Lord Chancellorship and the reform of the House. I accept the argument offered by many that the tramlines of constitutional development might be leading us towards a separation of powers, but to do so on the hoof in a Cabinet reshuffle is not exactly the best way to go about things. It is certainly not something that I would get away with as a Bishop in a diocese along the south coast. There should have been a debate beforehand on the principles involved and these Benches look forward to contributing to the debate on the report that has recently been published.

As far as reform is concerned, I should like to register a little frustration from these Benches. We have consistently encouraged the reform process, even though, in relation to recent deliberations, we have had no representation on the Joint Committee. Over and above a desire to make the Lords Spiritual more comprehensive in composition, some of us, on a much wider front—and I am not here to speak about Bishops in the House of Lords; it is about reform that I want to speak—have repeatedly drawn attention to the need for far more work on different methods of appointment and different methods of election.

Instead of being presented with a series of mathematical options, as we were in January by the Joint Committee, we should have had the opportunity to look in far more detail at that issue first to try to widen the range of language we are accustomed to using; to get away from the at times polarised style of debate we have had in this area—where it is either "elected" or "appointed" when all the ranges of options merge in and out of each other in the middle. It is a much more complex issue than many realise.

In that connection, I have a great deal of sympathy with those who believe that, before we abolish the hereditary principle, we should have a much clearer idea about where this House is going. That has been signalled by the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams. At the risk of rushing in where angels might fear to tread—but we do that in this profession quite frequently—we could do a lot worse than to set up our own Select Committee to do that work for us, and to explore the many different possibilities for election and appointment.

That brings me to my second point, about principle. What should a second Chamber look like? Among its many ingredients, which must reflect its work as a revising Chamber, with at times a challenging and—to use theological language—prophetic role—must be the principle of what might be called "ordered participation". Until now, we have lived with the non-separation of powers, so that the legislature, the judiciary and the executive live in some kind of creative tension, as they are in part spread over both Houses. With the removal of the judiciary, however, we shall be left with the legislature and executive in what can only be described as an ever-increasing creative tension.

I am frankly not persuaded by the buffalo charge for an immediately reformed Chamber that is fully elected. More work needs to be done to ensure, by whatever methods of election, appointment, or a mix—and we have been hybrid for centuries—that sharp expertise is represented on a range of areas and interests. Although there should appropriately be a political element, I am not alone in lamenting the possibility of an over-politicised upper House.

Whatever the means whereby we arrive at that result, let me draw attention to the kind of animal who sits on these Benches. We are, in practice, elected by a Crown Appointments Commission, whose membership is elected from other bodies. The four from the dioceses who are elected by the Vacancy-in-See Committee have, in practice, a veto over every other member of that commission—but perhaps that should not be repeated outside this Chamber. We are Members of the House of Lords, not Peers. We bring with us a geographical area—I am the only person in your Lordships' House from south-east Hampshire and the Isle of Wight. We rotate and we retire, thus ensuring active experience, as well as bringing here a whole range of conversations with many people in our communities. Leaving aside the question of the Lords Spiritual, such a model has something to commend it among the range of options that might be under consideration.

That brings me to my third point, which relates to perspective. In debates about all our institutions, another convenient and facile polarisation emerges, between so-called traditionalists and so-called modernisers, which seldom does much justice to the complexity of the issue or to the personalities involved. As an historian, my profoundest frustration about reform is that more often than not it comes across as if we at this end of the corridor are a problem that somehow has to be solved. It is as if we were a little like a slightly out-of-hand border terrier that needs to be neutered. As the owner of two seven year-old neutered border terriers, I speak with some experience.

Parliamentary reform should be about the whole of Parliament. As experiments are made with devolution and, more modestly in this place, with appointments commissions and different forms of election that may be tried from time to time—carrying on the hybrid nature that this House has had for many centuries—the national finger will begin to point more and more at the rest of the parliamentary scene. The sooner that that is realised, the better.

As the noble Baroness the Leader of the House warned earlier, participation in modern democracy is a precious flower that cannot be taken for granted, when it is as low as it is now in terms of voting, particularly among the young.

I wish to quote from the most reverend and right honourable Prelate—I am glad that I got that mouthful out—at the time that he was a most reverend Prelate because he was still Archbishop of Wales, but not quite right honourable because he was not yet elected formally as Archbishop of Canterbury. In last year's Dimbleby lecture, Dr Williams spoke about the increasing erosion of the voluntary base. He said:

"It isn't surprising, then, if the unspoken model of political expectation now is increasingly the consumerist one: the individual confronts the state, asking for what is promised—maximal choice, purchasing power to determine a lifestyle. It isn't surprising if the attitude of many to national and local elections is apathy, with a disturbingly high percentage of younger people failing to vote".

That means looking at the structures that we have—and at all the structures, not just this House. I know that we have to start somewhere. However, unlike the problems in higher education, which will be debated on Thursday and which go back over 20 years, the particular matters under consideration today are, largely, the responsibility of the present Government. I urge them, in the spirit of critical friendship, to think more widely and deeply than they have so far.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:26 pm, 2nd December 2003

My Lords, the gracious Speech proposes legislation, as we have heard again today, for the abolition of the current office of the Lord Chancellor, for the setting up of a new supreme court and for a new way in which to appoint judges in England and Wales. That the Prime Minister had decided on those matters was intimated by a press release from No. 10 Downing Street as part of the announcement of a ministerial reshuffle, as a result of which the noble and learned Lord, Lord Irvine of Lairg, left the Government.

I have the impression that there was no prior consultation with the Scottish Executive, nor with the judiciary here in England and Wales, in Scotland or in Northern Ireland, although the Lord Chancellor is the Lord High Chancellor of Great Britain, and the supreme court is proposed as the supreme court for the United Kingdom. As one who felt highly honoured to hold the office of Lord Chancellor from 1987 to 1997, I feel sad that the abolition of that post was announced in such a fashion.

Is the office still important? Those presently serving as Lords of Appeal in Ordinary do not always agree on everything. However, they have agreed in stating:

"We are, however, very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected. In the past the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced".

That is a quotation from the submissions of the Lords of Appeal in Ordinary, in answer to the consultation paper on the supreme court—which, of course, did not directly deal with the question of the abolition of the Lord Chancellor's office.

My understanding is that the proposed replacement in respect of that matter is to be a statutory obligation on the Secretary of State for Constitutional Affairs to safeguard the independence of the judiciary. What is this statutory obligation to require? What could the Secretary of State for Constitutional Affairs do to subvert the independence of the judiciary if he did not have this statutory obligation? On the other hand, what can he do to safeguard the independence of the judiciary? What specific powers will he have to carry out this particular obligation? I refrain from giving examples of difficulties that he might face, but I am sure that they will come to mind very readily for many of your Lordships.

The doctrine of the independence of the judiciary is not for the benefit of the judiciary. It is the fundamental protection for every citizen that when a citizen goes before a judge, that citizen will receive a judgment that is to the best of the judge's ability,

"according to the laws and usages of this realm without fear or favour, affection or ill will".

What of the supreme court? We are told that it is to have the same judicial powers as this House presently has, with the added power to hear appeals in devolved issues that by deliberate decision in the Scotland Act were conferred on the Judicial Committee of the Privy Council. The reason for that, as I understand it, was that hitherto there had been no power or jurisdiction in the House of Lords to hear criminal appeals from Scotland. In the nature of things, some of these devolved issues were likely to involve, as indeed it has turned out, matters of criminal law. Therefore, it was appropriate that these appeals should go, as other appeals from Scotland would do, to the Judicial Committee of the Privy Council.

The statement as to the jurisdiction of the House of Lords in relation to Scotland means that criminal appeals to the new supreme court generally will still not be available from Scotland. In what sense is it the supreme court of the United Kingdom if it has no jurisdiction whatever in criminal matters from Scotland, which is still, notwithstanding the devolution settlement, part of the United Kingdom?

Of course, there is already a supreme court in England and Wales—the Court of Appeal, the High Court and the Crown Courts are together the supreme court—and there are supreme courts in Scotland with a distinguished body of solicitors with a long history, based in Edinburgh, known as Solicitors to the Supreme Court. The father of the noble and learned Lord the Lord Chancellor practised alongside those although he was a member of what was thought to be the somewhat more elite body of Writers to Her Majesty's Signet.

At present, the Lord Chancellor is by statute President of the Supreme Court of England and Wales and President of the Chancery Division. In my view that makes it suitable for the Lord Chancellor to provide the administration of the supreme court. Who is now to be the President of the Supreme Court of England and Wales? We are told in one of the consultation papers that the Lord Chancellor is in consultation with the senior judiciary about that. But surely this is a matter for us all. It is not a private matter between the Lord Chancellor and the senior judiciary; it is a matter in which all of us have an interest. So far as I have been able to see, and I am very subject to correction, there is absolutely nothing about that in any of the consultation papers that the Lord Chancellor has put out, except to say that he is in consultation with the senior judiciary about it.

I doubt whether it is appropriate for the administration of the courts, including as it does matters such as listing and other judicial functions, to be under the control of a Secretary of State who is neither a judge nor constrained by a judicial oath.

Another important question which I should like to mention in the minute left to me is that of rights of audience. When I was responsible for these matters the senior judiciary were fully involved in decisions on rights of audience by express provision of the statute. That has since been modified to give the responsibility to the Lord Chancellor only, I think with the consent of the senior judiciary. Is it appropriate that that function should be discharged by a Secretary of State who is neither a judge nor constrained by a judicial oath, important as the rights of audience are to the conduct of the courts?

There are many matters in these proposals that are of great consequence. If the new system proposed by the Government is to work as well as the Government admit the system that they are trying to replace is working, then a great deal needs to be done about the detail. I humbly submit that they are more likely to be successful if that is done with deliberation and caution.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative 4:34 pm, 2nd December 2003

My Lords, it is a privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, who closes his distinguished speech on precisely the note on which I had planned to open mine. It is a happy coincidence but it is true. The fact is that in the years when this topic has been before Parliament we have seen a recurrent contrast between impulsive, reckless proposals, almost vandalistic in their quality, and periods of collective, calm reflection when the matters are referred either to Parliament, to committees or to Royal Commissions.

If one is looking for an example of impulsive vandalism, nothing could be clearer than the way in which the office of Lord Chancellor has been handled by this Government. The handling of it almost defies belief because it fails to take account of a most fundamental feature of our constitution which in a way is represented by the physical presence here of the noble and learned Lord, Lord Mackay. The looming presence at the end of the Cabinet table of the Lord Chancellor—a manifestly different creature; judicial background, judicial oath, legal training—is formidable and is the most effective guarantee of the independence of the judiciary that I can think of. The noble and learned Lord, Lord Mackay, has quite a looming presence and discharged that duty effectively. He will forgive me if I say that he did not loom anything like as much as Lord Hailsham used to do. That is intended as a compliment to both of them.

That is brought out very clearly in the supplementary memorandum on the future of the appeal committee from the noble and learned Lord, Lord Hobhouse of Woodborough. He says that the Government's thinking confuses the need for the independence of the judiciary with what he calls,

"a doctrine based on a mistaken analysis of the British constitution developed by French thinkers in the 18th century"; that is, the separation of powers. He says quite clearly:

"The cornerstone of that protection"— the protection of judicial independence—

"is (paradoxically) the role of the Lord Chancellor as head of the judiciary", sitting at the Cabinet table. I ask, as the noble and learned Lord, Lord Mackay, has done already, how on earth that effect is to be produced in whatever is written into any statute that may now try to adorn a mere Secretary of State with comparable authority.

This may well be an anomaly. However, as Professor Ash Wheatcroft—professor of tax law, rather remarkably—once said, a tax system breathes through its loopholes. In my judgment, a delicate unwritten constitution such as our own breathes through its anomalies. We at our peril allow reckless modernisers to sweep aside conventions of which they are ignorant or which they do not understand. That is what is so destructive about that approach to the office of Lord Chancellor.

We have seen a similar variation—evolution is too dignified a word—in the Government's approach to the broader question of the future of this House. At the outset, ebullient with their enormous majority, their commitment was to sweep away all our hereditary colleagues at a very early stage—"out with the lot", and no matter what comes thereafter. Gradually that simple proposition has been eroded and diminished by a succession of concerted activity—including the Wakeham commission, the 1999 legislation and above all the embodiment in that Act of the Weatherill agreement, and by the House of Commons Public Administration Committee and the Joint Committee. Much of the controversy has been gradually diminished. Moreover, a great deal of common ground has emerged on almost all of what one might call the second-order questions, and that is rehearsed in the latest documents. So far, so good. Yet now, at the beginning of this Parliament, the Government return to the charge with their impulsive decision once again to break their promise, as has been so clearly pointed out by both the Front Bench speakers, and to proceed with the elimination of the surviving hereditary Peers.

If one examines the consultative document, one sees clearly that at the outset the Government intended to bind themselves to their honourable commitment. They said that the removal of hereditary Peers "remains the Government's policy", but that,

"For the time being, the Government will concentrate on making the House of Lords work as effectively as possible in fulfilment of its important role".

That was the impression that they sought to give from 15th July when they produced their response to the second report of the Joint Committee until a couple of weeks ago. Stability for the House over the medium term was the declared objective. That has now given way to a determination to sweep aside the remaining surviving elected hereditaries despite the fact, as has been pointed out, that they are among the most useful and effective Members of the House. I find that quite indefensible and I entirely agree with both the Front Bench speakers in deploring it completely.

What about the rest of the agenda and the Appointments Commission? That is something which the Joint Committee has tended to look at with some sympathy. However, having listened to the speech of the noble and gallant Lord, Lord Craig, I can see why there is much more thinking to be done on that, particularly when one looks at the criteria for the size of the House, which has shifted rapidly before our eyes.

However, there is one matter that still needs to be addressed, and that is the question of the composition of this House. That, too, needs to be addressed with less absolutism than is sometimes the case on the part of speakers on all sides of the House. The noble Baroness, Lady Williams, spoke movingly and effectively, as always, about the decline in respect for Parliament. She also spoke about the need for substantial democratic change in this House. I wish that one could be as enthusiastic about that as one would like to be in principle when one hears the same speakers, including the noble Baroness, talk about the decline in turnout at elections and the diminishing respect for elections as a process for choosing people. Elections are no longer the hallmark of legitimacy that they used to be in this or any other society. That is why I hope that the whole approach to the elected or nominated membership of this House will be considered much more carefully.

One cannot brush aside the fact that a very large majority of the Members of this House does not welcome the idea of an elected membership. However much Members of the Commons may have been bullied by the Prime Minister, they failed to agree on any one of the options laid before them. One cannot distil from that an overwhelming enthusiasm for filling this place with elected Members. That matter deserves to be re-examined by all of us and by all parties. I hope that my noble friend Lord Strathclyde will be prepared to recognise that the same goes for the proposals for this House, to which he still adheres, of a senate of 300 people with 60 nominated Members. In all the documents that have so far been prepared it is common ground that the future size of this House should be in the region of 600 to 650. However, my noble friend and one or two other enthusiasts still propose that the House should suddenly be reduced to half its present size with only 60 nominated Members. If he protests at the cull of the surviving 100 hereditary Peers in the present House, how much more should he be inclined to protest at the proposed cull of some 600 Peers and the formation of a senate half the size of the present House with 10 per cent of us left? I cherish the belief that my noble friend's attachment to that idea will diminish as the days, weeks and months go by.

I make a final point by way of concession to my noble friend. I understand the argument that election is perceived to confer legitimacy even in these days, but why do we have to accept this proposition in such large doses? If the proposition is to become effective at all, why cannot there be a rebirth of the modesty with which Macmillan first introduced the idea of life Peers? At first they constituted a mere drip, a handful. Now, as the noble and gallant Lord, Lord Craig, pointed out, there have been, over the years, 1,000 of them, and we are very lucky to have them. Similarly, is there not a case for a much more modest and less vandalistic approach to the democratisation of this House, however worthy it may seem on the face of it? Let not the reshaping of this House follow the pattern of the destructive reshaping of the office of Lord Chancellor.

Photo of Lord Morgan Lord Morgan Labour 4:45 pm, 2nd December 2003

My Lords, as A J P Taylor used to say, it is "a curious twist" that the most controversial aspect of the Address should be a debate on constitutional matters. In the past they were regarded as an elite subject that caused people to leave the House in large numbers. However, they constitute perhaps the most radical change that the Government have introduced. In his presence I pay very great tribute to my noble and learned friend Lord Irvine who was an extraordinary reformer—the greatest reforming Lord Chancellor ever; he was not perhaps so much Thomas Wolsey as Thomas Cromwell in terms of the agent of a revolution in government.

We now have a further move after a lull—the Department for Constitutional Affairs, the Supreme Court, the ending of hereditary Peers. As the first Back-Bench Labour spear carrier to speak, I should like to say that I strongly support them all. I do not take some of the opposition too seriously. It comes from people who have opposed all reforms. With regard to Scotland and Wales, they have ended up, like Gemini in the "Eurovision Song Contest", with nul points.

It is sometimes said that the Government do not have a master plan, and there is much to be said for the criticism that some of it is incoherent. However, I believe that they have master principles, particularly regarding local accountability, the emphasis on rights, a move towards a written constitution and a more positive view of citizenship which I hope will be extended elsewhere, including to the monarchy, which we never discuss on these occasions.

I should like to allude briefly to three areas. No one has mentioned devolution. That constitutes an enormous radical change for which my noble and learned friend Lord Irvine was very much responsible. The Secretaries of State for Scotland and Wales are now largely redundant. They have—particularly in Scotland—a somewhat shadowy role. Welsh devolution needs a substantial overhaul. In the summer the Richard Commission heard powerful theoretical and empirical argument in favour of change. The Welsh devolution settlement is unstable and does not lead to a proper process of legislation. The only answer is primary powers in due course for Wales as for Scotland.

I mention regionalism briefly. It would be highly desirable if such moves as there are towards regional government were attached to the Department for Constitutional Affairs and not to Mr Prescott's department. The matter should be viewed laterally and not vertically.

The Government have introduced perhaps their most radical changes in the area of human rights. They have transformed the relationships between the legislature and the judiciary. It is absolutely right that the total independence of the judiciary should be emphasised in those changes. We are moving rightly towards a more formal separation of powers. We have an entrenched independent judiciary not depending simply on convention or on culture, which I welcome. It seems to me that the creation of an independent Supreme Court is the logical extension of that. Incidentally, we are told that the Law Lords add greatly to our enlightenment and wisdom but there has also been reference to Hitler and to judges being executed in the 17th century. We were not told by whom those references were made but they slightly argue against the proposition.

The culture of human rights is very important and should be observed by the Government. It concerns me that alongside these valuable constitutional changes there are proposals in the asylum Bill that would clearly challenge or undermine the human rights of detainees. The proposed civil contingencies Bill would in key respects challenge or suspend human rights and erode parliamentary and/or legal protection. It is sometimes said that we need something beyond the Emergency Powers Act 1920. I am afraid that I have destroyed a few rain forests writing about that Act. I say to comrades and Peers on these Benches that that was a strike-breaking measure to attack the trade unions and send troops with fixed bayonets to the mining valleys of south Wales. Let us not assume that it was, as it were, a woolly-minded Guardian-reader reform that now has to be extended.

The Department for Constitutional Affairs is a quite admirable innovation. It seems to me that it creates joined-up government. I welcome particularly the creation of the Constitution Directorate. Since the Constitution Unit was wound up in 2001, we have needed something to bring the various agencies together. When the noble and learned Lord, Lord Falconer, addressed the Constitution Committee, I made the point that it should be a proactive department, not simply a technical, nuts-and-bolts department. It should cast its eye boldly over the whole range of constitutional change, and energise and take the whole process forward.

As the noble Baroness, Lady Williams, and others have said, the main problem with the constitution is clearly Parliament. Both Houses of Parliament are the black hole in the Government's programme of constitutional change. The noble Lord, Lord Norton, who is present in a sense, has wisely and correctly written in Parliamentary Affairs about the demise, as he calls it, of parliaments and the parliamentary model. One could argue whether it is demise or decline, but we need to reform the Lords extensively. Of course we should get rid of the hereditary Peers. It is absurd to have hereditary legislators, any more than hereditary vice-chancellors or hereditary plumbers. There is no logic or reason in it, and I welcome that change.

Lords reform should also welcome other principles. What should it reflect? I voted for only one of the eight options; namely, an all-elected House. The Liberal Democrats, admirable in many areas, are timid in wanting a 60 per cent elected House. The Conservatives go for 80 per cent. The only possible policy for a social democrat is an all-elected and democratically elected House, reflecting the people, not patronage and enclosed systems. However, I shall vote with the Government for the reason that Orator Hunt voted for the Reform Act 1832—it is a start. Orator Hunt voted for the rotten Reform Act 1832 because, if it disfranchised only one rotten borough, it would be desirable. If the measure gets rid of the hereditary Peers as a constitutional anomaly, I shall vote for it.

The problem is not only the institutions of Parliament, but the operation of Parliament. Next month, we shall look at the Hutton inquiry. Now is not the time to examine the disgraceful and illegal aspects of our foreign policy that the Hutton inquiry will reveal, but it will most certainly show the evidence and everyone with a computer will be able to read it. We shall see the damage that has been done through the intrusion of the organs of central government into the Civil Service, sectioning off parts of the Civil Service, if not bypassing entire departments.

I hope that the Government will attend to those matters, and I expect confidently that they will, because they have been innovative, dynamic and radical elsewhere. I am very proud to support them on those matters. They need to reform both Houses of Parliament and address the anomaly that, at a time of great decentralisation and devolution, we actually have greater centralisation of the governmental machine. New Labour will not give us socialism in our time, but it may give us democracy in our time, and I hope that it will take that process forward.

Photo of Lord Smith of Clifton Lord Smith of Clifton Liberal Democrat 4:54 pm, 2nd December 2003

My Lords, it is a pleasure to follow my friend, the noble Lord, Lord Morgan, who speaks with his usual measure of intellect and verve.

When they came to power in 1997, the Government energetically set about major structural reform that included devolution in Scotland and Wales, the Human Rights Act, an elected Mayor for London and the first stage of Lords reform, all of which were long overdue and welcome. After that first wave of bold changes, the Government's resolution seemed to flag. Then, last summer, the Government suddenly regained their reforming zeal and announced their intention to create a Supreme Court, a Department for Constitutional Affairs, and the abolition of the residual hereditary Peers.

Between the first and second waves of major reforms, little real consideration was given to constitutional matters at least as pressing as those addressed at the outset of this Government. As a number of noble Lords have touched on, there is the whole question of reform of the legislature and, in particular, reform of the House of Commons. It needs to be reformed in a major way. Hopes were raised while Mr Robin Cook was Leader of the Commons, but seemingly little can be expected now to improve substantially the power of the Commons to hold the Government accountable.

Increasing Back-Bench revolts in the Parliamentary Labour Party may well force change in government policies, but that is no substitute for fundamental reform of the role of the House of Commons. That remains a priority if our democracy is to be adequately modernised. Creating alternative parliamentary careers by offering the prospect of higher salaries to those who chair Select Committees is a minor reform. Similarly, twice-yearly meetings between the Commons' Liaison Committee and the Prime Minister have proved not to be a significant investigatory device.

It is unfortunate that Commons reform, which would help to restore public interest in politics, was not mentioned in the gracious Speech. The neglect of that fundamental reform in the legislative branch of government has been paralleled by a mushrooming development in the executive branch. I refer to the remorseless growth of what I have previously termed the political demi-monde. That comprises the various policy tsars, task forces, regulators, executive agencies, and the outsourcing of services, including the ever-burgeoning number of PFI/PPP schemes. Those central government manifestations of the demi-monde are greatly multiplied at the levels of local and regional government. It is difficult to obtain reliable statistics but, as I have cited in your Lordships' House before, the metropolitan district of Calderdale last April recorded 107 partnerships and programmes stemming from central government.

Two major questions arise out of the development of the demi-monde. Although there is doubtless some rationale behind the creation of every one of those innovations, it is the aggregate of them that is the cause of concern and that, it appears, has never been addressed. The operations of the demi-monde in all its aspects could be wholly conducive to the good ordering of the body politic. The point is that no one can know, either inside or outside government. Its rapid and haphazard development precludes critical scrutiny. It remains outside any constitutional or effective management control. There is no management chart, let alone any formal codification. The situation defies human invigilation, particularly in the localities. I ask the noble and learned Lord the Secretary of State for Constitutional Affairs whether the demi-monde has impinged on the collective consciousness of his newly-created department.

There are signs that the Government are at last starting to appreciate the down side of what they have spawned. Only last week, The Times reported that a review of 31 central health bodies and watchdogs, which have more than doubled since 1997, is to be undertaken with a view to them being "axed, merged or privatised". They represent but a microcosm of the bureaucratic quagmire that has been replicated throughout the executive arm of UK government.

Evidence—still slight, but welcome nevertheless—that a change of mind may be in the offing is to be seen in the growing interest in decentralisation. Whitehall departments have been asked to examine which of their activities could be physically moved away from London, although so far that has not met with a hugely positive response. The Home Secretary is playing with the idea of elected sheriffs to head up constabularies, while foundation hospitals were advanced as giving a larger degree of autonomy to locally elected health trusts.

My own party has further contributed to the theme of greater localism by proposing local income taxes, to replace the highly regressive council tax. I suspect that other parties are closely looking at the feasibility of that proposal, in the light of growing unrest with the council tax. Such an innovation would be of considerable constitutional advantage by helping to revive local democracy.

On the vexed question of Lords reform, on which many noble Lords are focusing today, the situation has deteriorated into a stand-off between the parties and there is no consensus on how to proceed. Opinion has also divided within the Labour Party. That the problem has developed as it has is due mainly to the Government.

The resulting impasse has been served up as an excuse for abolishing the hereditary residue without making any provision for an elected element. I say in response to the noble Lord, Lord Morgan, that we on these Benches would want a 100 per cent elected House.

As other noble Lords have noted, the Government have reneged twice on their manifesto commitments and on their word solemnly given during the so-called "Weatherill amendment" negotiations. Reneging on those undertakings is quite unacceptable and the explanation proffered by the noble Baroness the Lord President was most unconvincing. Reform of the second Chamber has ceased to be treated by the Government as an issue of constitutional importance and relegated to one of political convenience. We shall end up being the biggest quango of them all.

This thinking on the part of the Government is all of a piece with their approach to constitutional reform, which is quite exasperating. Successive Lord Chancellors have openly admitted that they disdain having any overall view on constitutional matters. They seek, most unconvincingly, to say that the Government initiate reform as and when it is perceived to be necessary. The lack of a coherent constitutional road map—to use the current jargon—creates many problems not least for the Government themselves. This is well illustrated by the sudden announcement about creating a Supreme Court and a Department for Constitutional Affairs. Both are commendable reforms. The problem is that they are seen as yet another act of "ad hockery" as they were not presented as part of an overall plan in which various reforms are seen to be related to one another in a coherent and meaningful way.

This gives some advantage to the "forces of conservatism", as the Prime Minister puts it, who oppose the proposals, which include a majority of the Law Lords. Next week, the Secretary of State is due to give a lecture to the Constitution Unit on the Government's philosophy of constitutional reform. It would be good if he were to give us a rehearsal today.

It is to be hoped that by the next Queen's Speech the Department for Constitutional Affairs will be up and running, taking on the need for a more comprehensive view of our constitutional arrangements and living up to its name. Joined-up government pre-supposes a joined-up constitution.

Photo of Lord Ackner Lord Ackner Crossbench 5:02 pm, 2nd December 2003

My Lords, just before becoming Prime Minister in 1997, Tony Blair said:

"Labour's goal of improving access to justice is an essential part of our commitment to social justice".

I shall be submitting to your Lordships that under this Government that commitment has been and is being seriously eroded. I shall address your Lordships under four headings: first, asylum and immigration; secondly, crime; thirdly, civil claims; and, fourthly, the rapidly diminishing facilities for advice.

The Asylum and Immigration (Treatment of Claimants, etc.) Bill provides at least four serious examples of restriction on access to justice. First, there is a restriction on the higher courts to exercise by judicial review their normal supervisory jurisdiction over tribunals. What is proposed would be that if a tribunal, in determining an application, made an error of law or failed to give proper consideration to relevant facts, the only redress would be to ask the tribunal to review its own decision. This would be only through written submissions. No matter how erroneous the decision, the applicant would have no means of challenging the tribunal's ruling.

Secondly, changes in the appeal structure by providing for a single tier of appeal will conflict with the interests of justice. The poor quality of the initial decisions means that the hearing carried out before a special adjudicator is often the first proper factual assessment of the case.

Thirdly, undocumented passengers are to be subject to sanctions. This will lead to a breach of Article 31 of the Refugee Convention 1951, acknowledged in domestic law by Section 31 of the Immigration and Asylum Act 1999. The article provides:

"The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who come directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry".

Fourthly, there is to be limitation on legal aid advice. It is proposed to limit initial advice to three hours for immigration and five hours for asylum work. This has led to widespread criticism. Indeed, the United Nations High Commissioner for Refugees has written to the Lord Chancellor warning him that the proposal will lead to vulnerable refugees being deported unnecessarily.

It is apparent that the Home Secretary dislikes not only judges but also the judicial process. It is becoming more and more obvious that he does not meet the job specification! Thank heavens the judiciary is in no way involved in the highly controversial proposal for identity cards.

On crime, it is proposed in a publication from the Lord Chancellor's department, entitled Delivering Value for Money in the Criminal Defence Service, to downgrade the fees in the "very high-cost cases". That totally overlooks that law firms use the few remaining complex and better-paid cases to cross-subsidise lower-scale work. Driving down fees on complex work would drive out a business of criminal firms already struggling to keep afloat and affect access to criminal justice.

But an accused person is also entitled to a just sentencing system. Your Lordships have been addressed at some length by me and others on the ministerial decree which resulted from the Home Secretary producing Schedule 19 to go into the Criminal Justice Act which added at least 50 per cent to the agreed sentencing guidelines provided the previous year. Those guidelines were the result of consultation between the Court of Appeal, or the Lord Chief Justice, and the sentencing panel. The guidelines subsequently received the concurrence of the Home Secretary and the noble and learned Lords the Lord Chancellor and the Attorney-General. The Government have totally overlooked that, by adding more than 50 per cent to the guidelines relative to murder cases, all other serious offences also have to go up proportionately. The distortion that will result, together with the increase in the prison population, is beyond dispute.

I come next to the question of civil claims. When the Labour Government came into power, there was already in existence speculative litigation, which previous generations had condemned as being contrary to public policy. There existed agreements known as "conditional fee agreements", or CFAs. Those operated on the principle of no win, no pay. Thus, the lawyers' remuneration, which was to be 100 per cent on the ordinary fee, was contingent on the action succeeding. Therefore, the lawyers had a stake in the litigation, with the result that there were bound to be occasions when their interest conflicted with that of their clients—in particular, when a settlement was being negotiated.

The previous government had stated firmly that the new freedom to litigate on that basis was not intended to replace the grant of legal aid. I believe that a provision in the initial legislation provided that check. It was the noble Lord, Lord Mishcon, with his acuity and perception, who sought from the then government such an assurance.

However, when the new Labour Government, by legislation in 2000, decreed that there should no longer be legal aid for personal injury claims, apart from clinical negligence, then problems arose. The personal injury claims were to be funded entirely on the contingent-fee basis. That was, in fact, unnecessary. The high frequency of success, either by litigation or compromise in this field of work, resulted in the legal aid fund recovering its costs. In addition, the Government were reimbursed with social security payments to the injured plaintiff. That meant that civil legal aid in this field involved the Government in little, if any, payment out. However, since it is an accepted principle of English law that "costs follow the event", it soon became essential for the plaintiff to insure himself against the liability to pay the defendant's costs in the event of his claim failing. That insurance is known as "after the event" insurance.

The CFAs brought into play a number of undesirable participants—usually not lawyers—such as Claims Direct. Such participants met well the description of "ambulance chasers". They brought the system into discredit and fuelled the perception of a compensation culture. Such undesirable organisations are not regulated and they cream off profits at the expense of claimants. A number of claims with little merit were initiated in the hope of obtaining from the defendants' insurers at least their nuisance value. However, having failed in their purpose, they left the "after event" insurers holding a sizeable baby. As a result, a number of insurers, including the major player MIG Skandia, have withdrawn from this market and it is becoming very difficult, if not impossible, to obtain after-event insurance or insurance where the premium is not excessive. In the result, there is, in practice, no access to justice in personal injury cases.

I come lastly to the rapidly diminishing ability to obtain advice. One organisation which is likely to feel the immediate impact of the public's inability to obtain basic legal advice, formerly provided under the legal aid system by solicitors, is the National Association of Citizens Advice Bureaux. When it offers criticism, that cannot be met by the rejoinder that it is arguing from a standpoint of self-interest, as is often said of the Bar or the Law Society.

In a press release in September headed:

"Community Legal Service is unfair, unjust and inexcusable in the way it is operated",

Mr David Harker, chief executive of the National Association of Citizens Advice Bureaux, stated that government policy in this area was delivering injustice and unfairness in a way that was inexcusable.

I shall not develop this theme further as I could do because of the time restrictions which impliedly impose themselves on me. I end merely in this way. In the glossy Command Paper of July 2002 entitled Justice for All, the foreword bears the signatures of the then noble and learned Lord the Lord Chancellor, Lord Irvine of Lairg, the Home Secretary and the noble and learned Lord the Attorney-General. It states:

"we are determined to ensure that justice is done and is seen to be done".

So far, there is no hint of any determination to tackle the matters to which I have referred, all of which are vital to achieving meaningful access to justice.

Photo of Lord Gordon of Strathblane Lord Gordon of Strathblane Labour 5:17 pm, 2nd December 2003

My Lords, I shall confine my remarks to the single issue of an appeal to both Front Benches and the usual channels to make further efforts to reach consensus on the matter of House of Lords reform. If, after all, we could, and did, achieve consensus on the far more difficult issue of the first stage of reform, it should not be beyond the wit of the Members of this House to find a solution that is fair and equitable to the problems of the 92 existing hereditary Peers as part of the second stage of reform.

For that reason, with the greatest respect, I deplore the apparent intention of the noble Lord, Lord Strathclyde, to divide the House tonight, somewhat unusually, half way through a debate. After all, as I understand it, this is only the third day of our debate on the gracious Speech. I believe that it would be unnecessarily confrontational and could well be counter-productive.

I believe that a pragmatic solution needs to be found. This is not a matter of principle. There is consensus that the hereditary principle is no longer valid as the basis for membership of the legislature. That is common ground. No political party wishes to introduce it, so let us not pretend that it will survive for very long.

We also agree—in this House, at least—that we want an all-appointed House. I fully respect the opinions of the Liberal Democrats and, in particular, those expressed in the opening speech of the noble Baroness, Lady Williams of Crosby. However, it is also a fundamental principle of democracy that one accepts the will of the majority. The overwhelming majority in this House, by more than three to one, are in favour of an appointed House. That may be a matter of regret to some people. I know that it is a matter of regret to some on these Benches and certainly to the Liberal Democrats, but let us recognise that that is the will of this House.

This House, at least, should be rejoicing in what the Government have put forward because they have favoured our option. They will have far more difficulty at the other end of the building because the House of Commons took a different view. I freely concede that the House of Commons rejected the idea of an all-appointed House. But the Government should be commended rather than ridiculed in this House for their bravery in putting forward that proposal. It may be quite difficult for the proposal to be approved by the House of Commons, but it should not be difficult for it to be approved by this House.

We should also recognise that we have an appointments commission. People are beginning to take that in their stride, forgetting that it is the biggest single act of abdication of patronage by any Prime Minister in history. The Prime Minister is willingly forgoing his right to appoint Peers and to decide the number of Peers. That has been handed over to the appointments commission. He deserves at least some credit for that, but so far in the debate I do not believe that that has been adequately recognised.

I shall now make some points that are mildly critical of the Government. I believe that the Government have been over-apologetic in their approach. They have stressed the obvious difficulties of finding an agreed way forward. I regard this as a genuine second-stage reform, as do the majority of Peers in this House. We voted overwhelmingly, by three to one, for an appointed House and the Government are giving us that, saying that that is the second stage of reform, and yet we are saying, "Oh, no, we don't like it".

Let us be quite clear. I am very nervous that somehow the status quo will survive; a combination of Back-Bench disquiet in the Labour Party and doing something dramatic with the House of Lords as a lightning conductor. There are the principled, but I believe misguided, objections of the Liberal Democrats in both Houses to any form of appointed House and the unprincipled, opportunistic moves by the Conservative Party, which is in favour of elections but only as a means of retaining hereditary Peers—that is somewhat illogical.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, speaking for myself, and I am pretty certain for the rest of my party, the moment that elections come there will be no further place for hereditary Peers in the House. That has been made crystal clear. We are here only as a pustule on the rump of the body politic to remind the Government of their honour pledge to do something proper with this House. It is certainly not an opportunity for objection on the part of noble Lord, Lord Strathclyde, and certainly not on mine either.

Photo of Lord Gordon of Strathblane Lord Gordon of Strathblane Labour

My Lords, I shall reply quite simply to the noble Earl. I regard an appointed House as a legitimate second-stage reform. This House voted for that. I have not checked Hansard—I perhaps should have anticipated the possible intervention and checked this point—but I shall gamble that the noble Earl voted for an all-appointed House.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I voted with Lord Williams of Mostyn, the noble Baroness, Lady Jay, and the noble Duke, the Duke of Montrose. As democrats we all trooped through the Lobby for any form of democratic election. I know that Lord Williams was proud of that as I believe was the noble Baroness, Lady Jay; we all know that the noble Duke, the Duke of Montrose, is dour and does not show his emotions.

Photo of Lord Gordon of Strathblane Lord Gordon of Strathblane Labour

My Lords, my homework has not paid dividends. I shall check who were the 335 Peers who voted for an all-appointed House, but I strongly suspect that the number will contain many members of the Conservative Party.

If that is an option, it is an option that we want. It is counter-productive to say that somehow this is not a second-stage reform. It is a second-stage reform. I believe that the idea that reform must involve election is contrary to good sense and contrary to the will of the House. More Peers should speak out against that. It is a matter of some concern; unless we speak out we may find that the House of Commons adopts elections and forces us into a much more unpalatable solution.

Noble Lords may remember the tag "Ecclesia semper reformanda est"—the Church is always in need of reform. The House of Lords is always in need of reform too. I believe that the Government made a mistake in calling one of the White Papers Completing the Reform. The idea of a reform ever being completed is highly arrogant and foolish. Of course, there will be further stages of reform. I do not know why and I do not know what will be the driving principles, but at some time in the future there must be more reform because circumstances will change. For the moment the Government have adopted the path to reform that this House wanted.

I believe that there is consensus on the issue of the 92 hereditary Peers. Let me be quite clear, that was a matter of pragmatism and not principle and I believe that the issue should be dealt with as a matter of pragmatism and not principle. The minimum going-in position is that the by-election system should end. The idea that there is a permanent hereditary constituency commands very little support in this House and I believe that it should go. Beyond that I freely concede that we are in difficult territory, but again it should not be beyond the wit of the usual channels to find a solution.

Clearly at one extreme one could baptise everyone by awarding life Peerages all round. That may be a neat solution, but would it be acceptable to the House of Commons and would it be acceptable to the public at large? A solution that commends itself to me, but I suspect not to the majority in the House, would be to abolish the by-elections and to allow the great appointments commission in the sky to decide the ultimate composition of the House.

Other matters are dealt with in the consultation document which, in the interests of time, I shall keep for my submission to the Government rather than weary the House with them now. That avoids breaking my recommendation about being too confrontational early on. I disagree with many points made in the document and I shall make my feelings known to the Government in the hope that I can change their views. In the mean time, the important point is that the usual channels appear to be blocked. I think we need Dyno-Rod. I am happy to join with Back-Benchers, who share the view that we want an appointed House, to try to achieve that.

Photo of Lord Renton Lord Renton Conservative 5:26 pm, 2nd December 2003

My Lords, the noble Lord, Lord Gordon of Strathblane, has made an interesting speech. I can agree with him on one point, that an appointed House of Lords is better than an elected one. I once heard the great Sir Winston Churchill say, "Democracy works badly but we cannot have any other system". The main purpose of your Lordships' House is to make democracy work better than it would without it.

Over the years—I have spent 58 years in Parliament—the composition of the House of Commons has changed greatly. During my 34 years in the Commons, which ended in 1979, on both sides of the House there was always a great variety of Members with experience and expertise: businessmen, farmers, distinguished officers of the three Armed Forces, trade union leaders, professional people, including doctors, accountants, dentists and lawyers. There were never fewer than 20 Queen's Counsel during my time there and in 1959 there were 30 Queen's Counsel in the Commons. Although for centuries the Law Officers were Members of Parliament, for the past five years the Government have had to appoint a Member of your Lordships' House as Attorney-General because they could not find one in another place.

The cause of that fundamental change is mainly due to the fact that being a Member of Parliament in the other place is more of a full-time job. Therefore, it is vital that membership of this House should contain an array of men and women with a variety of experience and expertise. We have a good deal already. In my opinion that is why the Government Front Bench in this House is better than the one in the other place.

The 92 hereditary Peers in this House provide much valuable experience and many of them have great expertise. When eventually they have to go, I hope that a large proportion of them will be made into life Peers, bearing in mind the valuable part that they have played, on both sides of the House, in getting our work done. Although I am open-minded about the appointments commission, it should be required to maintain the quality of our membership.

I now want to deal with the Government's controversial proposals for dealing with the higher ranges of the judiciary and of the legal profession. They put forward as their reason for doing so the separation of powers between the Government, the legislature and the judiciary. We all know that that is an ancient constitutional theory but in practice it needs to be varied. For example, there is a great advantage in having in the Cabinet a distinguished lawyer as Lord Chancellor in order to keep it right on constitutional matters and to deal with legal issues which occasionally rise in the course of Cabinet discussions. To be without a Lord Chancellor in the Cabinet will weaken the Government and therefore weaken democracy.

Secondly, a great advantage to our legislative process is to have speeches from Law Lords, retired Law Lords, the Lord Chief Justice, who occasionally is able to be in the House, and other experienced top judges. They often play a vital part in our debates, especially on legislation on legal matters. So the total separation of powers is, I suggest, neither necessary nor advantageous. I make a small concession: during my many years as a Member of Parliament I served as a recorder, having to try judicial cases, sometimes of some length and some importance. I hope that being a Member of the House of Commons did not mean that I was not fit to preside over these cases judicially. It would have been nonsense to suggest that it would.

I turn to another government proposal which is controversial: doing away with Queen's Counsel. I hope that the Government will not do so. Perhaps I should confess that I have been one for nearly 50 years. I became one because I had a very busy junior practice when I was MP for a very large constituency and had a growing family. If I had not become a Queen's Counsel, I would have had to give up being a Member of Parliament.

There are several advantages to having Queen's Counsel in the House of Commons and to having Queen's Counsel in general. The major advantage is in helping to find the right people to be appointed as judges; it must make it less difficult to decide. If we did away with Queen's Counsel there would be a real problem. So I hope that the Government will realise that they will create chaos in our profession, if they do away with them.

In conclusion, perhaps I may say that I strongly support the amendment moved so eloquently by my noble friend Lord Strathclyde and hope that many Cross-Bench Peers will support it.

Photo of Lord Waddington Lord Waddington Conservative 5:34 pm, 2nd December 2003

My Lords, it is a great pleasure to follow my noble friend Lord Renton. I cannot congratulate him on his contribution, lest those who know the customs of this place imagine that it may have been his maiden speech, but I am entitled to say what one says after a maiden speaker: "I hope we shall hear from him on many future occasions".

So far as I am concerned, the gloomiest aspect of the Government's programme is the continuation of the rake's progress of so-called constitutional reform. The removal of the last of the hereditary Peers from the House without second stage reform will mean a House of Lords less able to check the Executive and more likely to be neutered by the Government in the same way as the Government have tried, not entirely successfully, to neuter the House of Commons.

There is the European Constitution. No one has yet mentioned that today. But signing up to it will mean the sacrifice of another giant slice of national sovereignty to unelected and unaccountable institutions of the EU. I know that Europe is not strictly the subject for debate today—it is the subject for debate tomorrow—but I cannot see how one can make a speech about our constitution and threats to it without mentioning the biggest threat of all.

I return to the House of Lords. The issue today is not how this House should eventually be composed—whether it should be nominated or elected or part elected and part nominated—it is about the Government ratting on an undertaking. I shall remind the House once more of the history of the matter. Back in 1999 the Government announced that they were to embark on the first stage of a two-stage reform, stage one being the abolition of the right of hereditary Peers to sit. Many of us were deeply unhappy at the idea of stage one going ahead without any guarantees that there ever would be stage two reform. But when the Bill was amended to allow 92 of the hereditary Peers to continue to sit, and the Government said that they would remain until second-stage reform had taken place, with their presence being a firm guarantee that stage two would come about, we on these Benches were greatly reassured.

We accepted the Government's word and, being accustomed to honest dealing in this place, never thought that they would go back on it. Now the noble and learned Lord the Lord Chancellor has pronounced a doctrine hitherto unknown to students of the law. In answer to a parliamentary Question not so very long ago, the Lord Chancellor said that the Government did make a promise but are perfectly entitled to break it. "Breach of contract on grounds of changed circumstances is no breach", says the Lord Chancellor. It will appear in the law books no doubt as the rule in Falconer's case. But it will haunt the Government. It will sour dealings between the Front Benches in this place because this Chamber will not work very well if the Government's word cannot readily be believed.

The Government have the votes and it is highly likely that before long the Weatherill Peers will be gone along with the Law Lords who have made such a distinctive contribution to this place, and we shall be left with a House composed entirely of people who owe their presence here to present-day patronage; a House less independent of government and less effective as a check on the Executive; and a House where the numbers can most easily be manipulated in favour of the Government as they will be—mark my word—following this Bill becoming law. If I am wrong about that perhaps the noble and learned Lord the Lord Chancellor will assure me that new Peers will be created to replace the Weatherill Peers so as to reflect the present party strengths among those Peers. Some chance.

On top of all that, we have every reason to fear that there is a plan to weaken the House as a check on the Executive by changing its working practices. That is not fanciful. This Administration has devoted much effort to turning the House of Commons into a part-time Chamber, and a part-time Chamber which gives wholly inadequate attention to Bills because of a draconian use of the guillotine. Time and again Bills have arrived here, great chunks of which have never been considered in Committee. This summer, in a written reply, a Minister admitted that in the Standing Committee on the Communications Bill, 101 clauses and five schedules were moved forthwith by the chair because time had not been allotted to discuss them. Now, having drastically curtailed debate in the Commons and having prevented proper consideration of Bills there, the Government are bent on preventing proper consideration in this House as well. No other conclusion can be drawn from Mr Hain's references on Radio 4 to the House of Lords',

"time-consuming procedures which did not allow government business to be carried through", and which,

"allow effective continual filibustering by the Opposition and Back-Benchers".

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

My Lords, perhaps I may take the noble Lord back to the 1980s when he played a prominent part in managing his party, was a member of the Cabinet and was able to influence the Queen's Speech. In 1984, there were 535 Peers who took the Tory whip and 136 who took the Labour whip. I wonder how much unease the noble Lord felt then at the democratic deficit.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, I do not see what on earth that has to do with what I am saying. I am talking about an intention on the part of the Government to neuter this place in the way in which they have neutered the Commons. To find evidence of that, I refer to what Mr Hain said on Radio 4. Nor can any other conclusion be drawn from the words of the Home Secretary in the House of Commons on 12th November. He said:

"There is no procedure in the House of Lords for any sort of timetable or closure mechanism . . . Until we have such a system in the Lords we cannot take anyone's word that that House will be in favour of anything that we propose".—[Official Report, Commons, 12/11/03; col. 652.]

If that was not a threat to introduce in the Lords the guillotining of debate—now standard in the Commons—the language of Government Ministers has lost all meaning.

Finally, and briefly, I turn to Europe. The Government should be ashamed of themselves for steadfastly refusing to allow a referendum on the European constitution when they are prepared to give the people a vote on trivial matters such as local mayors and regional government. I hope that the Government will have second thoughts. It is not a matter of just deciding whether the majority of voting should continue in this area or that; it is about a constitution. Goodness me, we ought to know what a constitution is. States have constitutions with flags, anthems, currencies and citizenship, which are all signs and symbols of nationhood. Yet we are brazenly told that this particular constitution, like the flag, the anthem and the citizenship, signifies little. It is just a mere tidying-up exercise.

I remind noble Lords what Clare Short said in The Times on 26th November. She said that,

"the reality is that pro-Europeans are driving a project that leads inevitably to a super state which most of us do not want".

Signor Prodi made it plain enough when he said, on about the same day, that we have to give ourselves a constitution that marks the birth of Europe as a political entity. If Europe is to be born as a political entity, I reckon that the people of Britain are entitled to have a say in the matter.

Photo of Earl Ferrers Earl Ferrers Conservative 5:43 pm, 2nd December 2003

My Lords, like my noble friend Lord Waddington, my main concern about the gracious Speech—I am bound to say that I have stacks of other less main concerns—is the determination, yet again, of the Government to play ducks and drakes with the constitution. One might think that they have had their fill of doing that considering all the parliamentary time taken, time wasted and the instability created. But no, the Government want to continue.

Again, the Government are going what one might call "hereditary Peer bashing", which the noble Lord, Lord Gordon of Strathblane, enjoyed doing today. In some ways, what is happening to hereditary Peers is rather like kicking spaniels: one can keep on doing it and they are a bit miserable, but it is quite good fun because there are so few of them. I should declare an interest that is common knowledge to your Lordships' House: I am a hereditary Peer. I am not ashamed of being a hereditary Peer, principally because it is not my fault. As regards life Peers, it is their fault; it is what they have done, who they have chatted up, who they have sucked up to or what they have achieved in life. It is their fault that they are here, and great credit to them.

However, I am bound to remind your Lordships—the noble Lord, Lord Graham of Edmonton, loves this—that hereditary Peers are the only elected Peers in your Lordships' House. But, curiously, the Government want to get rid of those who are elected. We seem to have been classified as the lowest and certainly the most vilified form of political life. The Government are setting about hereditary Peers as though they are some form of parliamentary terrorists doing immense harm, undermining the constitution and doing tremendous damage, who must be expunged or vapourised and removed from political life.

Perhaps I may remind your Lordships that four years ago, the Government said, "All hereditary Peers are to go. It's in the manifesto. All six lines of it". So everyone had to go. Then they said, "Steady on. That won't work. And the House of Lords won't work either, so we had better get 92 of them back". So back we all came. Now the Government say, "We have had enough of all that. We want to get rid of them. So out they all go again".

The Government are acting with all the intellectual consistency of a child with a yo-yo. We told them that it would not work because they had not thought beyond the first stage. The Government took no notice of that. They should have thought about the whole of the reform of your Lordships' House and not just about getting rid of what they consider an unacceptable part of the political spectrum.

The really damaging—I would say wicked—part of all this is that, whether we like it or not, your Lordships' House is part of our constitution. It is part of Parliament. Parliament and the constitution belong to the people, not to a single party. Of course, periodically, there must be changes. Everyone knows that. But that must be done by consensus—with the consent of Parliament—and not by a single political party.

So what happened? Having failed to get their original Bill through Parliament as they wished, the Government set up a Royal Commission to ask what would be the best way out. The Royal Commission said that it did not know the answer, but gave three options, none of which found favour with Parliament. The Government then set up a huge committee with Members from both Houses of Parliament to determine the best way out. It said that it did not know either, but gave seven options. Another place did not agree with any of them.

That was a right mess. The Government did not know the way out. Parliament did not know the way out. The Royal Commission did not know the way out. Both Houses collectively did not know the way out. What conceivable right have the Government to say, "Tut Tut. We will now bring in our own version"? It would be a party political scheme to alter for ever the constitution of the country, without agreement, without consensus, without even consultation with the other parties, which would remove one-fifth of all Members of your Lordships' House who do not support the Government. In common political parlance, that could be called political gerrymandering on a vast scale.

What price for integrity? As my noble friend Lord Strathclyde said, an undertaking was given by the previous Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, from the Dispatch Box. Ninety-two hereditary Peers were to stay until stage two of the reform had been approved. My noble friend has already quoted from Hansard of 30th March 1999, but it needs repeating. The noble and learned Lord said that the amendment to have 92 peers,

"reflects a compromise negotiated between Privy Counsellors on Privy Council terms"— and—mark these words—is,

"binding in honour on all those who have come to give it their assent".

The noble and learned Lord then said

"But the 10 per cent will go only when stage two has taken place".—[Official Report, 30/3/99; col. 207.]

That is a clear, unequivocal promise and undertaking.

In no way is this stage two. No one has been consulted; the Government have simply produced a scheme of their own. That will not do. It is a government diktat. If one cannot trust an undertaking given by a government—a Lord Chancellor, no less—in private and in public about such a fundamental thing as the constitution, does not political honour go? Where lie parliamentary trust and integrity? It is not the fault of the noble and learned Lord, Lord Irvine of Lairg, whom I am glad to see in his place, as he did his honourable best—he is an honourable man—but it is others who have overturned the apple cart.

If that is not condemnation enough, what does the present noble and learned Lord the Lord Chancellor have to say? I am glad to see that he is in his place on the Woolsack. He said:

"So the context for reform has clearly and significantly changed. The circumstances which gave rise to the original arrangement over the remaining hereditary Peers no longer apply . . . So the Government must act, and act decisively, to bring about stability and sustainability".—[Official Report, 18/9/03; col. 1058.]

What on earth does that mean? How can the noble and learned Lord say that the context has been changed?

The original undertaking was not given by the noble and learned Lord, Lord Irvine of Lairg, in a pub to a few friends; it was given at the Dispatch Box to Parliament by the Lord High Chancellor of Great Britain with all the authority of that office. It was the Lord Chancellor binding the Government to Parliament. How does the present noble and learned Lord dare to say that he has changed his mind, and that he has decided to revoke and expunge his predecessor's promise?

The noble and learned Lord reminds me of Toad—not in expression or countenance, but in fact. Noble Lords may recall that Toad was locked in a room in Toad Hall by Badger for profligate spending. He promised to spend less and was therefore let out. When he went out, he reverted to his normal extravagant behaviour. He was then castigated for breaking a promise to Badger that he would not do that. Toad replied that that promise had been given in a different room.

I know that the Government hate the idea of anything hereditary in the House of Lords. That is a perfectly understandable point of view, if one happens to take that view, but it is their hypocrisy that is so galling. Noble Lords opposite do not half enjoy the pomp, the pageantry, the ermine, "my Lords" here, "my Lady" there, and even the sons of Ministers sitting in the eldest sons' box—

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, perhaps the noble Earl is aware of another incident in The Wind in the Willows, when Badger said to Toad:

"first of all, take those ridiculous things off!".

The reply came:

"'Shan't!' replied Toad, with great spirit".

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, it is a pity that he did not say it to the right reverend Prelate in that delightful garment.

It is curious that eldest sons of Members of the government Front Bench occupy the eldest sons' box, as they are entitled to, and prefix their name with "The Honourable", to which they are entitled. That is fine for the endangered species, but it is odd when government Front-Bench Members castigate the hereditary system and then enjoy it themselves when the situation suits them. Life is full of oddities. If hereditary Peers are driven out and ostracised by Parliament, an essential and vital ingredient of history will be lost, and we will end up with an appointed House. Heaven knows, many disagree with that, even though I am not among them.

I do not wish to be beastly to the noble and learned Lord the Lord Chancellor. I like him a lot, as we all do; however, I do not wish to see him ruin his reputation, the Parliament and the country all at the same time. We thought better of him. But we all approved of, and enjoyed, his move to rejoin the bastions of reaction when he walked backwards down the Steps of the Throne. He was quite right, and we all nearly cheered. That apart, I can assure him that he will be in for a bumpy ride.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, the noble Earl made much play about the number of groups and organisations that were established and could not find a way out. Am I correct in believing that your Lordships' House did find a way out, and consistently voted seven times to prove it, and that that did not include elected hereditary Peers but only an appointed House?

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, your Lordships' House and the House of Commons voted on what was put before them.

Photo of Lord Dahrendorf Lord Dahrendorf Liberal Democrat 5:56 pm, 2nd December 2003

My Lords, I have long looked for an opportunity to express my respect for the noble Earl, Lord Ferrers, whom I have come to appreciate, over the 10 years in which I have been a Member of this House, as one of the guardians of our rules, including the good humour that we are sometimes in danger of losing these days, and which I will hope we will keep with him for many years to come.

It is too early to tell what this Government and the Prime Minister will be remembered for by future historians. But it must be likely that two issues that were not particularly dominant in Mr Blair's thinking when he came to office will figure prominently: Iraq and constitutional changes. I have supported the Prime Minister over Iraq because I firmly believe not only that democracy and the rule of law are values that must be defended at home, but that, at times, intervention in countries that threaten those values is justified.

On constitutional changes, I have strongly supported the Human Rights Act 1998, although I am well aware that such texts provide only limited protection when the going gets really rough. I can also agree with the noble Lord, Lord Gordon of Strathblane, that we should start from where we are now. That is easy for me to say, unlike many of my noble friends, because I am in favour of a wholly appointed House. But many other constitutional changes introduced by this Government raise serious questions, including the two that are prominent in the gracious Speech: the abolition of the current office of the Lord Chancellor and the reform of the House of Lords.

My main argument is about the justly cherished values of independence, and, more precisely, what happens if the presumption of independence is replaced by organised independence. Many of the constitutional changes that we have debated in recent years, and those that we are debating this year, threaten to have the possibly unintended, but nevertheless serious, side-effect of politicisation. That is particularly strange at a time when people's trust in political parties is low and there is widespread desire for more, rather than less, independence. What I call the presumption of independence is an unlikely but important virtue. It is a belief that people in certain positions will act in an independent manner despite the fact that they have strong preferences and aversions like the rest of us, and that they are members of political parties and other opinionated associations, and could easily abuse their position.

One of the great strengths of this country was that the belief in an attitude of independence was widely held and that many office holders not only held that view but practised it. The Lord Chancellor, for example, was not only another Government Minister clutching his party manifesto or even prospectus. We are fortunate to have two outstanding examples of past Lord Chancellors here who practise what I call independence. The Civil Service was assumed to be independent and behaved accordingly. We have on the Cross Benches some outstanding examples of that tradition. Talking of Cross-Benchers, it is right that the Chairman and Deputy Chairman of Committees—and in future, perhaps, the Lord Speaker—should have to demonstrate their independence by escaping from their party Whips.

The governors of the BBC were once thought to be independent, as was the process of appointments for important public positions, including judges. The presumption of independence is unlikely—but then British democracy always rested on unlikely yet effective assumptions. The noble and learned Lord, Lord Howe of Aberavon, said that Britain's unwritten constitution breathes through its anomalies. I would include in that the apparent—but, so far as I can see, never real—contradiction between the principle of the separation of powers and the position of the Lord Chancellor. It is unlikely, but it worked.

That leads to a question too rarely asked these days—why are we spending so much time debating constitutional changes? Not, I suggest, because of overwhelming popular demand. Even in the case of devolution, the demand was modest and was strong only among activists who could hope to benefit from new institutional provisions. More importantly, very few of the changes, including the ones in the gracious Speech, were introduced because existing arrangements no longer worked. "If it ain't broke don't try to fix it" is a sound principle, because if we try to fix something that is not broken we are more likely to break it in the process than to improve anything.

If neither popular demand nor a breakdown of existing institutions provides the reasons for change, change becomes what one can only call an ideological demand. Words such as "reform" or "modernisation" are empty if they are not backed up by arguments of popular demand or the malfunctioning of existing institutions. The empty labels merely camouflage the vested interests of small groups, often of political activists. I do not suggest that this is all a deliberate act of policy, but that politicisation has been and will continue to be one of the main effects of ideological tinkering with the constitution.

To return to the point that I want to make above all, once we abandon the presumption of independence we have to think of ways of creating arrangements that have the same effect. So-called independent commissions—as foreseen for the selection of non-party members of your Lordships' House and for the appointment of judges—are one such arrangement. However, how is the independence of those commissions guaranteed? It may be nice to take away certain rights from government, but how in particular do we make sure that the influence of government is not replaced by the influence of party?

Perhaps I am overly influenced by continental experience, but there must at least be a suspicion that, in the end, it is not an attitude of mind that is required of the commissioners but a composition of the commission that reflects the political spectrum of the country at a given time. In the end, some type of proportionality prevails, both in the composition of the so-called independent commissions and in the choices that those commissions make. I suggest that such contrived independence would be distinctly second best. Therefore, as debate turns into action—or, at any rate, into Acts of Parliament—it will be the task of your Lordships' House to make sure that we guard true independence when that is the most effective guarantee of liberty. In my more detailed contributions to the debate, I will be influenced and informed by that maxim.

Photo of Lord Cobbold Lord Cobbold Crossbench 6:05 pm, 2nd December 2003

My Lords, it is a privilege to follow an hereditary and an appointed Peer of such distinction as the noble Earl, Lord Ferrers, and the noble Lord, Lord Dahrendorf. Like other noble Lords, I deplore the implications in the gracious Speech that the undertakings given by the Lord Chancellor in this House on 30th March 1999 are to be broken—undertakings that we have heard were,

"negotiated between Privy Counsellors on Privy Council terms and binding in honour".—[Official Report, 30/3/99; Col. 207.]

I therefore welcome and fully support the amendment moved by the noble Lord, Lord Strathclyde. There is a clear need to continue the search for cross-party consensus on these issues. There is also still time for detailed comment on the Government's consultation paper, Constitutional Reform: Next Steps for the House of Lords, published on 3rd September last. Detailed responses to the report are required by 12th December next week. I hope that all noble Lords are taking the opportunity to express their views and I trust that the Government will take note of them.

The arguments on Lords reform have been well rehearsed. I am one of those who believe that the House should be either fully elected or fully appointed. A fully elected Chamber is clearly a workable option. However, it would radically change the relationship between the two Houses and would inevitably undermine the supremacy of the House of Commons. Also, as other noble Lords have noted, the prospect of yet another election is unlikely to inspire electoral fervour in an electorate already faced with district, national, European and perhaps regional elections. Most important of all however, an elected Chamber would destroy the unique reservoir of experience and expertise which is the great strength of your Lordships' House.

The accolade of a life peerage is valued and still retains an unspoken duty element of public service. The House therefore benefits from the participation of top achievers from all walks of life, many of whom retain active outside interests and are able to contribute that experience to the workings of the House. That has to be of benefit to the scrutiny of new legislation. The Government need to think very carefully before throwing away that unique national asset.

As one of the 92 remaining hereditary peers, I feel extremely fortunate still to be a Member of this House. Like most hereditary peers, I recognise that the inheritance of a peerage should no longer carry an automatic right to a seat in the upper House. That is now a fact of life. The hereditary right has already been abolished. Those of us who remain have been elected. However, I have a strong sense of history and I believe that the role played by the hereditary peerage over the centuries in the House of Lords—in its workings, its traditions, customs and ceremonies, and in the relationship with the monarchy—is of value and should be acknowledged by a continued modest representation, given that the present appointed Chamber is to continue.

The figure of 92 is not sacred. It could be a smaller figure—50, or even less. Were that proposal to be accepted, the agreed number should be chosen by the 92 by election among themselves. Those elected should all sit as independents and not be subject to a party Whip. Were one of the group to be given a Government or Opposition job, he or she should cease to form part of the group and be granted a life peerage—as if coming directly from outside the House. Vacancies in the group could be filled by election by the remaining members of the group.

To broaden the age range of Members of the House and provide some younger Members—they may be in short supply in the future—we could have a rota. The first vacancy could be open only to applicants aged, say, between 20 and 30; the next to those aged 30 to 40; the next to those aged 40 to 50; then to those aged 50 to 60; and finally to those aged over 60. Then, we could repeat the cycle. That would help to create a spread of age that, with the abolition of the hereditary peerage, will be lacking in the House.

Such a representation would preserve historic links but would not involve automatic membership by right of birth, only the right to stand for election to that small group. The system would create a small proportion of elected Members in the House.

I agree with the views expressed by my noble and gallant friend Lord Craig of Radley on the appointments commission. There are many other points that could be raised; perhaps, we will have an opportunity to do so on future occasions. The important thing tonight is to express the hope that the Government will think again and that cross-party consensus can still be achieved.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour 6:11 pm, 2nd December 2003

My Lords, I intervene this evening to do three things. The first is to express my support for the proposals for further reform of your Lordships' House set out in the gracious Speech. The second is to say a word about the relationship between this House and the other place. The third is to express my disappointment at the tone and tactics adopted by the noble Lord, Lord Strathclyde, and I shall start with that.

In a sense, the noble Lord is arguing that the Government should not proceed with what I and my noble friend Lord Gordon of Strathblane regard as the second stage of reform because they have failed to achieve consensus on constitutional reform. The noble Lord is a genial and popular Member of your Lordships' House, but I must say that that is a bit rich coming from him. On many occasions, it has been apparent that he has been a significant obstacle to the achievement of consensus, certainly as far as many noble Lords on his side and on this side are concerned.

For example, there was not a flicker of support on the Benches behind the noble Lord for his notion of an 80 per cent elected Senate.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, I will not take up any time. I support it.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I am delighted to hear the noble Lord, Lord Waddington, say that, but, sitting here watching the Opposition Benches, I saw not a flicker of support for it.

There is a consensus for reform in this House. It was demonstrated by huge majorities in each of the seven votes that we had on 4th February on the options for reform. The House declared itself in favour of an appointed Chamber, not a wholly elected one or even a partially elected one. For the record, the option of an 80 per cent elected Chamber, supported by the noble Lord, Lord Strathclyde, was defeated by 338 votes to 93.

It is a pity that the noble Lord has not got his act together with his noble friends and his honourable friends in the other place on the Joint Committee. My understanding is that his two principal supporters, Mr Hague and Mr Clarke, failed to show up for the final meeting on 28th October. It was the Conservative members of the committee who asked the Government if they could continue with their work.

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, that last remark was the most ridiculous one, if I may say so. A Joint Committee of both Houses is a Joint Committee of both Houses. I have never had any conversations with any of the members about what happens. They do not need to report to me. Their responsibility is to Parliament, not to party. In a way, that is the problem with the whole proposal. It is the Labour Party's proposal in the interest of the Labour Party. Why cannot the noble Lord put Parliament and people first, rather than party?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I am grateful for that intervention. In the Bill, the Government hope to implement the will of this House and proceed with the establishment of an appointed House.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, does the noble Lord believe that the Government are implementing the will of the House of Commons?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, the House of Commons was unable to come to a conclusion. The proposals from the Liberal Democrats for an elected House did not find favour in the House of Commons. What the Government propose matches precisely the conclusion that this House came to.

One of the reasons why we came to our decision was the constitutional doctrine described with great clarity by the noble Earl, Lord Howe. Speaking from the Opposition Front Bench on the proposals for foundation hospitals in the Health and Social Care (Community Health and Standards) Bill, the noble Earl said:

"of necessity, we must return to what I suggest is the issue today; that is, the constitutional position. Late last night or early this morning, the other place reinstated Clause 1 and Schedule 1 with a considerably increased majority. I believe that this House was right to send an emphatic message to the Government yesterday in rejecting those parts of the Bill".

The noble Earl continued:

"However, like it or not—I do not—this House has a duty to recognise the validity and strength of the decision of the other place. On a matter of this kind, which is essentially an issue of policy rather than constitutional principle, it is not for your Lordships to continue to resist the will of the elected House any further. I therefore do not propose to move my amendment".—[Official Report, 20/11/03; col. 2087.]

That brought to an end, in a dignified and proper way, a disagreement between this House and the House of Commons. The noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, speaking for the Liberal Democrats, did not like foundation hospitals any more that Thursday than they had in previous debates. They accepted the constitutional position that the elected House must have the last word, and I believe that your Lordships must accept that.

In reading up for this debate, I was interested to see the Liberal government's policy on the House of Lords in 1910. They were quoted in The Times of 28th November, 1910, as saying that they would bring,

"to a final issue the question of the House of Lords . . . declaring the unshakeable determination of the Liberal Party not to halt in the struggle until in all legislation the will of the people as expressed by the House of Commons was supreme".

The Commons may insist on Bills to which a majority of your Lordships object. There may even be one or two Bills before the House of Commons in the next Session that may be electorally damaging for the Members of Parliament who support them. However, that is a matter for them, not for us. They must account to their voters sometime in the next two to three years; we will not. I do not want to re-open all the issues about elections to this House, which we debated at length on 21st January and voted on a couple of weeks later, but I must say that, if there had been Members of this House elected by popular mandate who felt as strongly about foundation hospitals as did the noble Earl, Lord Howe, or the noble Lord, Lord Clement-Jones, would they have been able to concede with as much grace and common sense as those two noble Lords demonstrated? Of course not. I suspect that one of the reasons why the House of Commons is so confused on the issue is that it is dawning on MPs that a wholly or partially elected House of Lords would create a different constitutional settlement between the two Houses that would lead inevitably to an increase in the power and authority of one House at the direct expense of the other.

This evening, we have heard arguments for maintaining the presence of the 92 hereditary Peers. We have not heard—I had hoped that we might hear it from the noble Lord, Lord Strathclyde—a defence of the continuation of the extraordinary by-election arrangements for the replacement of deceased Members. It is nice to follow the noble Lord, Lord Cobbold, who is, I think, the beneficiary of a by-election. I am delighted that my noble friend Lord Grantchester is back on these Benches, but no rational person could defend the route that he had to take to get back here. To his great credit, neither would he.

In the previous Session, there was an opportunity to preserve the position of the 92. Parliament could have passed the Private Member's Bill abolishing by-elections, introduced by the noble Lord, Lord Weatherill.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, the noble Lord seems to forget that that method of electing was agreed by the House of Commons. It was part of the Labour Government's policy, it was agreed by the Commons and the Lords, and it became an Act of Parliament. That is the justification for it.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I am grateful to the noble Earl for that remark, but of course it was a temporary arrangement and conditional on the achievement of stage two of reform. Many noble Lords on this side of the House believe that what is being proposed during this Session is stage two.

I bear absolutely no animus towards any of the hereditary Peers. It has been pointed out in the debate that many of them make outstanding contributions to the work of your Lordships' House, and I would refer in particular to the noble Earl, Lord Howe, whose contribution to this Chamber is quite outstanding. I certainly hope that, for those who wish to remain, it will be possible to offer life peerages, and I have no difficulty with that possibility.

However, what is not negotiable is the ending of heredity as a criterion for membership and it is in that respect that the Government's proposals are both right and reasonable.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I apologise for intervening, but I am sure that the noble Lord realises that paragraphs 29 to 60 of Consultation Paper 14/03 make it quite plain that the one thing that cannot be done, even if the whole House wanted it, is to offer the remaining hereditary Peers life peerages. That would be totally contrary to the whole concept of the Government. Does not the noble Lord realise that it would be impossible?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I do not see at all why it would be wholly impossible and I am sure that an arrangement of that kind could be arrived at during the course of this Session. However, the point I sought to make was that, had we approved the Weatherill Bill, it would not have been necessary for this to take place anyway, because it would have achieved the de facto status of the hereditary Peers as life Peers and therefore it would not be necessary to remove them from your Lordships' House.

What I cannot understand—and here I address in particular Members on the Liberal Democrat Benches—is why, if they think it wrong for heredity to be a criterion for membership of this House, it is wrong to establish an independent appointments commission on a statutory basis that would remove the power of the Prime Minister, through patronage, to determine the constitution of this House, and why it is wrong to give Members such as their own colleague, the noble Baroness, Lady Ludford, the opportunity to resign. I am assuming that all those measures will be in the Bill and I should have thought that that would be wholly in accord with the view expressed by this House when we debated this earlier in the year.

Photo of Lord Rawlinson of Ewell Lord Rawlinson of Ewell Conservative 6:22 pm, 2nd December 2003

My Lords, I do not intend to follow the noble Lord; I shall leave him to the tender mercies of those on my Front Bench who, presumably, will reply to him. As I so rarely trouble your Lordships by speaking or intervening, I should declare an interest. Prior to my retirement in 1984, at the age of 65—I found that I was saying to the judges: "Will you please speak up"—for nearly 40 years I practised at the Bar. Noble Lords will see that my partiality and prejudice arises from that.

It is now 41 years since I first became a law officer. At the time Harold Macmillan memorably remarked to me, "Remember that your duties are, first, to the Sovereign, secondly to Parliament, and only thirdly to my administration". In 1970 I was appointed as Attorney-General and then, 28 years ago—to my great honour since I was elected by my peers—I became chairman of the Bar. I confess, therefore, to a certain partiality and prejudice for a profession at whose head, when I practised, stood a Lord Chancellor.

During that time the quality and ability of judges being appointed by Lord Chancellors were remarkable. They were intellectual, experienced and possessed of great integrity. They were not diverse or representative. There was no question of them being "representative" in the sense that that word is now used. One did not add up how many Methodists, Jews and Catholics were on the Bench. We accepted the standard of the people who were appointed because they were men—at that time they were nearly all men—of great integrity. A few women were outstanding when I was practising, such as Rosie Heilbron. Today there are many more women judges, and inevitably in the future there will be even more, as there ought to be.

I turn to consider the head of my profession while I was practising it: the Lord Chancellor. It was a unique position, not least because the Lord Chancellor was impervious to what happened in any Cabinet, in particular to the pecking order. The Lord Chancellor was unique because he was beyond and above it. In Cabinets of any colour, ambitious politicians will battle to secure a department that is a little better than that which they have. For example, the Secretary of State for Trade and Industry is above the Secretary of State for Transport in the pecking order and one seeks to leapfrog over one's colleagues. However, the Lord Chancellor was above all that.

I served as a colleague with two Lord Chancellors, Lord Dilhorne and later Lord Hailsham of St Marylebone. However, I was closest to two Labour Lord Chancellors. The first was Lord Gardiner who, after I took silk in 1959, invited me to join his chambers as the junior silk—I had the crumbs from the great man's table. No one could ever challenge him as to his competence or his appointments. He was a man of great integrity, if somewhat rigid opinions.

I then shadowed Lord Elwyn-Jones, who was Lord Chancellor when I first came to this House in 1978, and he then shadowed me. Similarly, no one could challenge his appointments and he performed the role of Lord Chancellor with such grace and competence. So much for what someone has said about "people poncing about in women's tights and a wig". Those men were great Lord Chancellors and we should all be proud of them.

Now he is to go because he is only a "pale shadow"; that is, the noble and learned Lord the Lord Chancellor is "alone and palely loitering" on the Woolsack. He is there only for a time because with a casual wave of a Cabinet hand—one wonders how many in the Cabinet did so—it has been decided that we would have no more of a real Lord Chancellor. To his great credit, the noble and learned Lord, Lord Irvine of Lairg, stood against this. No one could say that he did not bring gravitas and strength to the office. He is what the French would call un homme serieux. Whatever one thought of his manner, there was no question about his competence and his authority.

There has always been a case for stripping the Lord Chancellor of his role to sit as a judge. My noble and learned friend Lord Mackay of Clashfern may recall that years ago I moved an amendment to a courts Bill going through the House that no longer should the Lord Chancellor have the power to sit as a judge. The amendment was resisted and I withdrew it at the urging of the noble Lord, Lord Mishcon, who was leading for the Opposition Front Bench. But who would have thought that the whole office is to be obliterated and replaced by a form of cardboard Lord Chancellor? There is good reason for the judges to fear for their independence in the sour and hostile atmosphere emanating from the Home Office under an authoritarian Home Secretary.

I believe that a Conservative Member of the other place considered that when my right honourable friend the Leader of the Opposition was Home Secretary, there was "something of the night" about him. I have heard others say of the present Home Secretary that there is "something of the nightmare" about him, given his petulance when judges decide against him. Now a committee is to be appointed by the Government, a body responsible to the Government that is to do what was done by the great men I have talked about with great confidence and without any objection whatever.

A superior court is proposed, but superior to what? It will certainly not be superior to the Lords of Appeal in Ordinary who have sat in this place and joined in the throng of politics and legislation. By their absence, the influence of this House will be lessened and the influence of Parliament lowered. Instead we have a Secretary of State for Constitutional Affairs, doubling up. I admire the loyalty of the noble and learned Lord, but perhaps I may say that it is humiliating to have to carry out a dying role.

The new rank of Queen's Counsel has also been referred to. Queen's Counsel was an appointment of the Crown. Stripping it away reveals the ignorance of the distinctive role in the administration of English law played by counsel and judge. That is not like America, where one has 40 minutes or so to speak. In the administration of English justice, in the higher and appellate courts, counsel and judge debate together; there is a dialogue. I do not think there is any difference in the European courts from the time when I practised there. I have always thought that in European courts the advocates play an almost academic role, reading a lecture from a script and sometimes lifting their noses from the script.

All in all, the English Bar and the English Bench work together. It is a great tradition that has created much of English law. This is a sad day. This is a great blow to the fabric of the state, effected by a sudden whim which apparently caused the then Lord Chancellor to resign and the Leader of the House to be visibly mortified.

We must accept that this change will happen and that the noble and learned Lord the present Lord Chancellor will take responsibility for the new system. Heaven help his conscience and the consciences of his colleagues if the new system fails the state. I believe that this House must reject any attempt to abolish the post of Lord Chancellor as we know it.

Photo of Lord Trefgarne Lord Trefgarne Conservative 6:31 pm, 2nd December 2003

My Lords, I do not intend to detain your Lordships long but it is my duty to add my voice to others with regard to the proposal in the Queen's Speech relating to the future of your Lordships' House. I share the dismay expressed by my noble friend Lord Strathclyde and many others that the Government have chosen to disregard the undertaking freely given to the effect that the elected hereditary Peers would remain until the full phase two reforms were agreed and in place. So I say frankly to the noble and learned Lord the Lord Chancellor that I shall do whatever I can to resist the passage of that Bill when it comes.

I am not opposed to reform of your Lordships' House. I am one of the comparatively few Members of the House on this side who agrees with the idea of an elected House. That is not a majority view on this side of the House but it is one that I happily support. But I will also support whatever it is that Parliament in due course decides collectively is to be the future of this House.

Of course I recognise that the Government have a huge majority in another place and, in theory at least, can force through the necessary legislation. I agree that there will be differing views on this matter among noble Lords. But this not about whether we should have an elected or appointed House; it is about whether or not undertakings freely given can be relied upon.

Perhaps I may turn to one other matter—that is, the proposal to create a Supreme Court and for the noble and learned Lords who sit on the Judicial Committee to become part of that Supreme Court. There are, I gather, sharply differing views among noble and learned Lords on this matter. I must be honest and say that I have no great difficulty with the proposal in principle. But I shudder a little at the practicalities. As we discovered with the Parliament building in Edinburgh, the cost of these projects can truly run wild. I hope that the Government will be willing to ensure that such problems do not arise in this case when and if that course is decided upon. But that is all for the future. The principle has first to be agreed and I look forward to entering into those discussions in due course.

Finally, I refer to the future of the office of Lord Chancellor, which is, of course, tied up with the Speakership of your Lordships' House. I have the honour to be a Member of the Select Committee which considered that latter point recently but I am afraid that I found myself at variance with its conclusions, along with my noble friends Lord Freeman and Lord Alexander of Weedon. All that is for another day. For now I shall concentrate my energies on the expected House of Lords reform Bill. I apologise in advance to your Lordships if, when the time comes, I detain your Lordships for rather longer than I have today.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 6:34 pm, 2nd December 2003

My Lords, in adopting a somewhat different tack from most of the previous speakers, I hope that I will at least provide a kind of sorbet between the heavy guns of the constitutional advocates. I want to take up one of the themes that has been current throughout the debate. It was particularly referred to in opening by the noble Baroness, Lady Amos, by my noble friend Lady Williams, by the right reverend Prelate the Bishop of Portsmouth and indirectly, and rather deftly, in his reference to the political demi-monde, by my noble friend Lord Smith. I refer to the importance of the vigour of our democracy and the justification, as I understand it, for the Government's proposed reforms of shoring up what all of us would accept is a state of democracy today that leaves a great deal to be concerned about.

I agree with my noble friend Lord Dahrendorf. Before I say why, I should refer to the speech of the noble Earl, Lord Ferrers—who never fails to rouse the House—and assure him that if one of the reforms involves the abandonment of ermine, I, for one, shall be delighted. It will save me £116 every time I doff it. Unless, of course, he is willing to let me have his as he goes out of the door. I have let myself in for it now.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, I would be delighted to accommodate the noble Lord but he is, of course, only a poor Baron and he cannot have an Earl's ermine.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, as I said, I let myself in for that one. I am poor but not "barren".

One concession I will make to the noble Earl is that I shall be very happy to see introduced as part of the reforms the abandonment of titles. Frankly, for life Peers, they seem to be an embarrassment. I believe that many others in my position will be very happy to see them go. It would be a small step towards closing the gulf between the public and this House. That would of course leave untouched hereditary titles.

My noble friend Lord Dahrendorf said that there was no popular clamour for these reforms. I agree. But there is a clamour against the excess of law-making coming from this House and another place. This includes laws that are felt to be intrusive; regulations that are felt to be choking; laws so complex, confused and hydra-headed that they leave all but specialist lawyers in a state of bemusement. These are viewed, I am afraid, as so much parliamentary effluent.

I obtained from the Library today the statistics for 2000, the latest year for which we have figures. In that year we passed no fewer than 12,552 pages of new law—that is raw law, without notes or indexes—and I estimate that only about 2,000 pages of old law went out. So we were left with a net increase of more than 10,000 pages of statute law to add to the 10,000 net pages of statute law of the year before.

This aggregation of statutory and legal complexity is choking democracy and disaffecting citizens. It is making life out there impossible to lead without a wholly unwanted and expensive resort to so-called experts. To that must be added case law and tidal waves of EU directives and regulations.

The Queen's Speech for this Session referred to 27 new Bills, two carry-overs and seven Bills announced and to be worked upon. This proposed legislation includes five further criminal law Bills, which brings the total since Labour came to power to approximately 40 criminal justice Bills. If Archimedes were alive he would point us to the inescapable truth; that you cannot go on filling water into a bath without it flowing over. We cannot go on filling the heads of our citizenry with this mass of legislation without them revolting against it and, in the process, thinking a great deal less of us. I find frankly that they wonder just what the heck we get up to here. What an earth are we doing, passing all that stuff? When I say to them that, actually, we do not understand it either, and that the vast majority of statutory instruments pass through both Houses without any serious oversight or intervention, they get as worried as I believe that they ought to be.

The truism is that too much law makes for unlawfulness. If the public become confused and feel put upon and resentful, ultimately they will not think of the law as their law. They will not care about it or observe it, which undermines the very law that is the source of the resentment.

Over-complicated law is an instrument of elitism. How often do we pass laws designed for the less well-off among our fellow citizens, only to find that they cannot understand what we are doing or pay for the lawyers to help them to understand what we intend? The more complex the law, the less often and the less fairly it will be implemented. Once the process of ignoring and evading law starts, the downward spiral leads to yet further laws to shore up the laws that are not being observed. That is an Italianate scenario that we could well do without.

A fortnight ago, the RIPA statutory instruments passed through this House. Again, that was hugely important legislation which, I would say, scarcely anyone in the House, on any Bench, totally understood. Indeed, noble Lords will remember that one of the amendments was that the Home Secretary must bring before the House a memorandum explaining how the laws interlock, both here and abroad.

I also put it to the House that the confused and disempowered among our citizens are rendered more so by the endless change in law, even when it is intended for them. Imperfect laws that are understood and accepted are better than sophisticated replacements that are not. There is now a vicious circle, in which less and less law is implemented, leading to more and more laws. One has only to consider the situation with criminal law to see the strength of that process. I understand that since the Government came to power in 1997, more than 600 new criminal offences have been created. The number of police to implement that burgeoning number of laws has scarcely increased. What numerical increase there has been has been more than overtaken by the fact that they now spend 50 to 60 per cent of their time in the stations, trying to understand the laws that they are supposed to be implementing and filling in forms in the process.

We have no impact assessments for the laws that we pass. That is an extraordinary state of affairs, which means that many laws are never ripped out of the statute book, although they are not just useless but worse than useless. Consolidation becomes impossible, because the ground is constantly moving under the feet of those charged with the task.

I have not the time to deal with the long-term and fundamental issues that must be addressed in dealing with the issue of over-legislation, but I believe that the points that I have raised are relevant to the overall debate.

Photo of Lord Hoyle Lord Hoyle Labour 6:43 pm, 2nd December 2003

My Lords, I agree with the noble Lord, Lord Phillips, on two points. The sooner that we get rid of ermine, which portrays a very old-fashioned and out-of-date House, the better. I agree, too, on the need to change the title of those who serve in the House. I would prefer them to be called senators rather than Lords, and I would prefer the name of the House to be changed.

I would like to deal with the issue in front of us tonight—the proposal that we should go forward with an appointed House. What has changed on that? I still believe that there should be democratically elected people in this House. On 4th February, I voted for all the proposals from 20 per cent to 80 per cent—and I had the noble Lord, Lord Strathclyde, the Leader of the Opposition, with me. However, I am afraid that he had not much support from his own Benches. Although one or two hardy souls ventured into the Lobby with him, the vast majority of the noble Lords sitting behind him also believe in an appointed House. That is where we are.

I shall certainly support the Government on these matters, as we are taking a step forward in getting rid of the 92 hereditary Peers. However, I see that not as an end in itself but as a beginning. The setting up of the statutory commission is another forward move, although one or two speakers have said that it will mean only the appointment by the commission of the Cross-Benchers. That is not so. It is another important piece of patronage that the Prime Minister has given up. The commission will decide on the number and timing of appointments, and take into account, especially after a general election, that the House should reflect it, but that no one party should have an overall majority. Those are very important proposals that are being entrusted to the commission, which are also powers that the Prime Minister is giving up.

The commission will also be responsible for maintaining the 20 per cent of Cross-Benchers, as well as appointing them. It will also vet the political appointments that are made. However, we do not want an appointments commission that makes appointments like the ones made by the present appointments commission. All noble Lords will recall that, before the last appointments were made, there was talk of people's Peers. The noble Lords who were appointed are esteemed and reliable, but they are certainly not people's Peers. They are all part of the great and the good, and would have been appointed to this House in any case.

I received hundreds of letters from very worthy people from all walks of life, saying that they would like to be a people's Peer. They cited to me what they had done—but, of course, it was to no avail. Since the last appointments, I have not received one letter from anyone saying that they want to be a people's Peer. I hope that, when we appoint a statutory appointments commission, we consider the person who is to chair it and ensure that it is broadly based and brings people in from all sections of our community. I hope that it pays respect to ethnic minorities and to gender, and that it represents the ordinary people who do so much work.

I should also like the commission to take into account the age structure of this House. We want younger, lively people coming in—not to say that all noble Lords are not lively people. Having younger people in would add to the House, however; they might begin to understand why a lot of young people are turning their backs on politics today and not voting, which is putting democracy itself in peril.

As for the 92 hereditary Peers who are left, like other noble Lords I pay tribute to many of them who play a vital role in this House. However, the one thing that cannot be defended is why they are here. They are here by accident of birth, which can no longer be defended in a democratic society. The time has come for them to go, but we are facing a real difficulty. The two amendments tonight—particularly the amendment from the Conservative Benches—intend simply to delay things again. That amendment says, "We will not defend the notion of hereditary Peers here, but we shall retain them for as long as we can". That is what it is all about. One or two noble Lords are shaking their heads, but I look at it that way.

What has changed is that both Houses have had their say, and there is no majority in another place—but there is certainly a majority here. In that respect, however much we wrap it up, we are moving to another stage. That is why the time has come for the 92 hereditary Peers to go. We shall see what happens, but that is what the fight is about. Stripped of all the delay and the talk about a more democratic House, it is about retaining those 92.

As I say, that is typical of what happens when we talk of changing this House. People are not against changing it, but there are so many ways of doing so. So in the end we maintain it as it is. That is why this House is being left behind. That is why, in many instances, its views are not regarded as part of this century. That tendency is showing its face again today. It is about change tomorrow but no change today.

Photo of Lord Selsdon Lord Selsdon Conservative 6:50 pm, 2nd December 2003

My Lords, on 7th November, my son's birthday, I was very fortunate to be able to ask an Unstarred Question to which the noble and learned Lord the Lord Chancellor replied. It was a quiet afternoon when not too many strident people were present. The Question was whether the proposals for constitutional reform would enhance the membership of your Lordships' House. Today, sadly, I have learned that they will not. We are probably talking of dismemberment of membership—if I may use such words in this day of plain English speaking. I wonder why I feel that way. Perhaps I should go back almost to the beginning.

I look around me at the remarkable depth and spread of quality and knowledge in your Lordships' House, and at the enthusiasm of the young Strathclyde, who, when I first joined, had just learned to walk.

Noble Lords:

Oh!

Photo of Lord Selsdon Lord Selsdon Conservative

I think that he had learned to speak as well, my Lords. I also see the enthusiasm of the noble and learned Lord the Lord Chancellor, who in those days had just reached his 11-plus days. I would not dream of saying anything personal about the noble Baroness opposite. However, at that time she had not yet started her 11-plus days. By the time that I joined the House, the noble Earl, Lord Jellicoe, had already been a Member since before I was born. When I look round today and see the noble and learned Lord, Lord Brightman—who was kind enough to speak on my Question—as the oldest Law Lord, and the noble Lords, Lord Roll and Lord Renton, all well into their 90s, it proves to me again that there is no reason at all why anyone should ever retire from your Lordships' House as long as they are active.

My problem is myself, unfortunately. I was elected. Whichever way we look at it, and however people may denigrate it, we are elected—not all 92; it is actually 90—to perform a role. In that role we are required to use our best endeavours to try to ensure that a second stage of reform of the House takes place. However, rather than stepping back into the same battle, I looked at one of the most shaming moments in my life, when, as the senior non-executive director at the annual general meeting of a public company, I saw that there were 3,750 votes that I should not be re-elected. It made no difference to me that there would need to be 1 million or more such votes but that 3,750 people did not feel that I had effectively done my job of scrutiny.

While we are introducing complicated legislation requiring the private sector to supervise and survey and to allow every Tom, Dick and Harry—or Greenbury, Cadbury and everybody else—to come in, we should look at ourselves. Of course, we could say that, as we have Ofwat and Ofgas, we should also have an Oflord, as we currently have an Offalconer. We have to look at ourselves. In order for a House to be democratic it must be elected. However, in order for it to be representative it does not have to be elected. Those are the two poles of the argument. I would beg and ask noble Lords opposite, please, on this day of plain English speaking, to remember that we are elected Peers. The mandate may be suspicious, but the reasons given were sound.

I turn now to this question of "binding in honour" which worries me no end. As noble Lords will know, there was a bigger majority for Weatherill than there was for an appointed House. It was one of the biggest majorities in your Lordships' House. As I said in the debate the other day, I did not vote for Weatherill because I did not think that it was morally correct. However, almost all noble Lords opposite voted for the amendment—binding in honour those who come to give it their consent. Some 51.8 per cent of the current Members of the Benches opposite voted for Weatherill. If they thought that there was anything in the words "binding in honour", did they do an honourable thing or did they not?

If I as a member of a non-executive board saw that happening in a public body, I would crucify them—I am sorry; that is a religious word and I should not have used it. I would attack them very forcibly. In the same way, if I saw a company about to break itself up, because that is what is happening now, I would fight tooth and nail. I do not want the noble and learned Lord the Lord Chancellor to go either personally or corporately. He and his colleagues have been doing a substantial amount of moonlighting outside the House, building an empire which has grown since I became a Member from 9,000 to 25,000 people. They have increased their remuneration, but that is beside the point. I chair a remuneration committee, but I would have to ask outside advisers whether the remuneration was right or proper. Frankly, I think that we should go back to the old days when the Lord Chancellor had a certain number of tonnes of wine each year which he then swapped for £25,000, I think, 10 per cent of which was for his role as Speaker. Moreover it was Gascon wine—not even appellation controlee, unlike that which I produce myself and have to declare. I was banned from selling it to your Lordships' House because that would be non-democratic.

I do not think that we should dismember this House without having decided what goes in its place. The hereditary principle went in accordance with the 1968 Bill and it is no longer there. No one could have devised something as complex, diverse and totally unacceptable as this strange mechanism of election. However, we who are elected have a duty and a responsibility—I believe that we even have a form of legal responsibility—to ensure that change takes place. To remove the elected element without an adequate replacement—and at the same time to remove perhaps the most important part of the Temporal side of your Lordships' House, the legal aspect—would be an extremely worrying prospect.

If we decide that we have the right to decide that we are all appointed, we could then face the horror of horrors. Borne on the winds from the east, mounted on black chargers, the Vandals from the other place may come and say, "No, no, no. We are going to have an all-elected House". That is a possibility. We currently have not a House divided against itself, but political parties divided among themselves; it is slightly different.

The Conservative Party has said, "We are going to have more elected people than anyone else; therefore vote for us at the next election". The Liberal Democrats are sound and reliable because they believe in proportional representation and that is what it is all about—although a few chaps did wonder when it came to voting for self-preservation. Although those opposite say that we should effectively be democratic and elected by the people, we find that almost all of them vote for their own self-preservation as appointed Members. Then, above us all, there is the Grim Reaper. The average age of your Lordships' House is such that, at the general election after next—if that is when we move formally to a fully appointed or fully elected Chamber—328 Members of your Lordships' House will be over the age of 75. I would never suggest for a moment that any one of them should be forced to retire.

In this document which I have prepared with a new Select Committee that I formed—a Select Committee of one; the document has already been distributed to elected Peers, but appointed Peers and those who voted the right way will receive it tomorrow—I have put forward the solution for your Lordships' House which brings together Church, law and Parliament. It is called, as I have mentioned before, Towards a Peerless Future. I leave your Lordships to eager anticipation as it will be my reply to the noble and learned Lord the Lord Chancellor. My reply will also include a draft restraining order which I am trying to introduce—but none of the Clerks seems willing to help me—in order to ensure that the noble and learned Lord may not leave the House without the approval of 100 per cent of your Lordships.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport) 6:58 pm, 2nd December 2003

My Lords, I rise to speak in this debate to touch on just some of the many crucially important issues before us.

First, with regard to reform of the House of Lords, the Government's approach defies description. An interview on the radio two evenings ago, between the noble Baroness the Lord President and Andrew Rawnsley on the BBC programme "The Westminster Hour", summed it up for me—an absolute unmitigated mess and muddle. It was immediately clear that the Government have not moved one iota towards genuine Lords reform since 1997. Further, we were reminded that the noble Baroness does not believe in the Government's path to so-called modernisation having recently voted, like me, for a fully elected House of Lords.

However, unlike me, the noble Baroness does not appear to be seeking to persuade her colleagues that this is the right path. Instead it seems we are to continue to have cronyism with political appointees, together with an independent commission to decide who should sit on our Cross Benches. The last so-called independent commission proved to be a real sham given that one of its members was himself chosen to sit as a people's Peer, thus making a complete mockery of the system. So much for democracy. So much for being bold.

I offer one suggestion that might begin to lift this deeply depressing manipulation of the legislative process: will the Government now seriously consider separating honours that may be bestowed upon those who have done great service to Britain, and those who are ready, willing and picked to come to this House to sit as working Peers? Personally, like others who have spoken this evening, I favour removing the titles for working Peers as that would focus the minds of those who are seriously prepared to commit and contribute to the upper Chamber of our legislature.

I turn to proposals to abolish the office of the Lord Chancellor and to replace the Appellate Committee of the House of Lords with a new Supreme Court. Those decisions were announced to the world in a press release principally concerned with a Cabinet reshuffle. It was almost as if this came about as a knock-on effect of Alan Milburn deciding that he wanted to spend more time with his family. It is extraordinary that this and other proposed measures were announced without any prior consultation with your Lordships, the judiciary or the legal profession at large.

Was the Government's decision to abolish the office of Lord Chancellor driven by the recognition that the incumbent had become increasingly political, giving significant time to executive and party political priorities, not to mention radio chat shows, at the expense of fulfilling his role as head of the judiciary?

The position of the Lord Chancellor has long been subject to intense legal debate, with the primary objection to the role being the application of the doctrine of separation of powers. The Lord Chancellor occupies a constitutionally problematic role. As a member of the Cabinet and thus the executive, he retains a strong political function. However, he is also head of the judiciary, a prominent and independent legal role, while presiding over legislative business in the House of Lords.

Over the past five years the status of the Lord Chancellor has been subject to further scrutiny as it has been suggested that the position may be incompatible with Article 6 of the European Convention on Human Rights, involving the right to a fair trial. As your Lordships will know, Article 6 requires that all judicial and executive functions remain entirely separate before a tribunal may be considered "independent and impartial". In McGonnell v UK (2000) the European Court of Human Rights held that:

"Any direct involvement in the passage of legislation or of executive rules was likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons existed to permit a variation from the wording of the legislation or rules at issue".

It is clear that the consequence of such judgments calls the complex position of the Lord Chancellor into question as European jurisprudence now places increasing importance on a legal rather than political constitution.

However, while it might appear on the surface to seem to be preferable that the judicial functions of the Lord Chancellor are removed and that a senior member of the judiciary, the Lord Chief Justice for example, takes his place, I believe that a separation of powers is constitutionally unnecessary. Unlike civil law jurisdictions, our legislative and political history has been based upon the common law and thus an unwritten constitution. Comparisons with jurisdictions such as the United States are theoretical rather than practical and not, in reality, of great assistance. Having thought through all the arguments I must say that I find the notion expressed this evening by my noble and learned friend Lord Howe of Aberavon that the separation of powers breathes by anomalies most compelling!

I turn now to the debate regarding the abolition of the House of Lords Appellate Committee and the establishment of a Supreme Court—a proposal that raises a number of serious concerns. For example, I question the removal of the Appellate Committee from the House of Lords. I understand the argument for seeking to separate the judiciary from the legislature. However, this would, in one sweep, remove a wealth of experience and sagacity from your Lordships' House. If that happens, I support the Odysseus Trust in its Response to Constitutional Reform, in which it stated,

"that so long as there are appointed members of the House of Lords there is no reason why the Justices of the Supreme Court or any other senior judge should not be eligible for appointment on retirement".

That compromise would allow retired Law Lords to sit in the legislature and contribute their much needed expertise and knowledge, as they do at present.

I now turn briefly to the issue of judicial appointments. The present system has been subject to criticism, most notably for the lack of accountability and transparency. However, in the main, the system has worked well and the standard of judicial appointments has remained at a consistently high standard. The reforms advocated and subsequently implemented as a direct result of the Peach report demonstrate a positive step towards securing judicial independence in the appointments process. Now we have more proposals for change without any prior consultation, and this worries me greatly. I agree with Justice, which, in responding to these proposals, said:

"We are concerned that legislation may be drafted too quickly on matters which are of considerable constitutional importance and where consultation would normally take much longer. Given this, time should be found for pre-legislative scrutiny of a draft Bill to be presented in the next Parliamentary session".

Does the Minister accept that these reforms must now be placed before a draft scrutiny committee before being introduced to this House?

I am at a loss to understand the Government's rationale behind the proposal to establish a recommending commission as outlined in the recent consultation paper, A new way of appointing judges, to replace the current system with a more politicised process conferring power on the Secretary of State to veto a judicial appointment. I agree unreservedly with the Society of Conservative Lawyers on this point, which states that,

"it would be nonsensical to replace the present system of judicial appointments with a system in which there was greater political involvement or politicisation of the process, or with a system which failed to choose the most able candidate. The sole criterion for judicial appointment should be merit, irrespective of gender, race, sexual orientation, religion or political affiliation".

The Government must carefully consider what problems these reforms seek to address. While I strongly advocate the need to defend the independence of the judiciary from political intervention, I do not support transference of power from the Lord Chancellor to a Cabinet Minister who need not have any legal knowledge or experience. The Lord Chancellor, despite his constitutionally difficult position, is able to defend the independence of the judiciary at the heart of the executive. If that power were to be removed, there would be no legal representation in the Cabinet and any decisions to appoint members of the judiciary made by the Secretary of State for Constitutional Affairs could be arbitrary, ill informed and politically motivated.

It is imperative that any system is free from political bias or interference to ensure that public confidence and democratic legitimacy are maintained. I believe that the creation of an independent Appointments Commission, consisting only of judicial, academic, professional and lay representatives, is the only viable alternative to our present system.

In conclusion, the journalist and lawyer, Joshua Rozenberg, was wrong when he wrote in the Telegraph on 20th November that with regard to a constitutional reform Bill to bring about profound and irreversible changes to the judicial system of the United Kingdom none of the political parties is taking this seriously enough. The Conservative Party is taking this very seriously and again I urge the Government at the very least to accept that there is a need to subject these far-reaching proposals to draft scrutiny.

Photo of Lord Greaves Lord Greaves Liberal Democrat 7:08 pm, 2nd December 2003

My Lords, I should love to join in the debate about the future of this House and lock swords with people such as my old friend the noble Lord, Lord Hoyle. However, instead, like a good Liberal, I shall talk about voting systems, particularly the Government's steady move towards turning all our public elections into all-postal voting elections or other so-called modern systems.

Already we have pilots regarding local elections under the Representation of the People Act 2000. The Government have told the Electoral Commission that they agree in principle to moving to all-postal votes in almost all local elections. In due course we shall consider the European Parliamentary and Local Elections (Pilots) Bill which will lead to all-postal ballots in three of the regions in the European elections together with any associated local elections next June. That is, at this stage anyway, a retrograde and very dangerous step. The pilots have been widely seen as improving turnout, which I think means increasing turnout, but there is a very important difference between the number of votes sent back and the number of people who actually send those votes back. A great deal of evidence shows that postal voting is associated with a lot of low-level, fairly benign fraud, and that it can be and in some cases is associated with very severe and organised electoral fraud.

The noble Baroness the Leader of the House said, in introducing the debate, that the Government wanted to produce ways of voting more in tune with modern lifestyles. The penny post was actually introduced more than 30 years before the secret ballot came into operation at polling stations. It was not used in those days and has not been used since except, until very recently, for people who really needed it, for very good reasons.

If we go back several hundred years, elections took place at meetings. Those few people who had the ability to vote were gathered together. The sheriff or some such local officer determined the election by taking the voices of people there, a means that the House will understand well. If necessary, they had a show of hands. That is a modern system that this House has not quite caught up with yet. Then, because there were obviously disputes over who had shouted loudest of the four people there, or whatever it was, they took to recording the votes of individuals. By the early 17th century, it became common practice to have an officer who recorded how people voted in some sort of register or ledger.

By the 19th century, the tradition of hustings had grown up, where a stage—usually wooden—was built, and people who were allowed to vote turned up and announced in public how they were voting. Very often, a lot of the ordinary folk who did not have the vote gathered there and cheered or booed according to what was said. That, too, led to a great deal of abuse, but it had one great safeguard; namely, that people had to turn up in person to vote. If the person who turned up was not the person entitled to vote, people could object. They very often did so, and sometimes there were riots.

Then, after a lot of electoral abuse, the Ballot Act 1872 came in, when the famous pencils with pieces of string attached to them in rickety booths were invented, which government Ministers have taken to denouncing as old fashioned. The Ballot Act had two fundamental principles. First was the old principle that one cast one's vote in person, and could be challenged if one was not the person whom one was supposed to be. The second—it was crucially introduced by the Ballot Act—was that the vote was cast in private. It was a secret ballot in the strange little booths.

From some of the local election pilots that have taken place, and from postal votes in other places, particularly parts of Lancashire such as Oldham, Blackburn, Burnley and Pendle, all of which have led to police investigations and complaints that postal votes have been abused, it is quite clear that postal voting can very easily contravene both those principles. The safeguards are simply not there to make sure that people vote in person—that someone else does not vote for them—and in private, without anyone standing over their shoulder telling them what to do and watching how they do it.

As I said, some such activity is benign. I am indebted to my colleague Councillor Suzanne Fletcher, who I think is leader of our group on Stockton-on-Tees Council, which had a pilot in May. She reported a large number of instances in which people had told her what had happened. One example was,

"mine's been sent in, and I filled his in for him as well".

That woman added that she thought she would go round to the neighbours and vote for them as well, but decided that it would not be quite right. Another example was:

"I've filled all ours in".

That person then saw the look of disapproval on Councillor Fletcher's face and added that it was all right because,

"they were all for you".

The examples continue. Another is:

"I did his for him as well, he'd never have got round to it, you know what he's like".

Another was someone who had filled in her son's paper for him. That again drew a horrified look from Councillor Fletcher, so that person quickly added that she had rung him up first to check whom he wanted to vote for. There is nothing malicious about that, but it contravenes some very fundamental principles about postal voting. The final quote that I have states that,

"at 8 o'clock in the morning a woman at the bus stop got these 3 white envelopes out of her bag, and she started doing something with the papers. She was voting on all three, at 8 in the morning would you believe it, 8 in the morning. Then she posted them. All three".

A lot of evidence suggests that one reason why the poll goes up in such elections is that people vote for other people. They do so thinking that it is the right thing to do.

When we get round to debating the subject later, I shall talk in considerable detail about some of the organised fraud that has taken place in some of the places that I have mentioned. The classic way of doing it is that an activist from the party—someone's agent—follows the postman and picks up the votes. They either make sure that they are filled in there and then—they might allow them to do it in private or stand over them and make sure that they have done it properly; they might want to check all the votes before they are put in the envelopes—or simply take them away and get them filled in. All that has happened in a number of those places recently. I am not saying that it is rife across the country but, in certain places and in certain communities, it is very dangerous.

If politicians can cheat, some politicians will cheat. Widespread postal voting is wide open to people who want to cheat. Under the present circumstances and without inventing some very substantial new ways of stopping the abuse, it is a recipe for widespread electoral fraud, voting corruption and, inevitably, a number of activists, probably from all political parties, ending up in prison.

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench 7:17 pm, 2nd December 2003

My Lords, I have the strongest possible views about the proposed statutory execution of the noble and learned Lord the Lord Chancellor—or, perhaps more accurately, his office. I listened with silent applause on my part to the speech of the noble and learned Lord, Lord Mackay of Clashfern, who of course has almost more experience than anyone in this House. I listened with equal silent applause to the speech of the noble and learned Lord, Lord Rawlinson of Ewell. Having listened to those speeches and others in a like vein, I find that all I can do is, to coin a phrase, say that I agree and have nothing to add. When it comes to the amendment proposed by the noble Lord, Lord Strathclyde, he will have my vote with some enthusiasm.

I want to turn to something different, although it is not as far removed as postal voting. It is the Parliament Act. I do so because on Sunday I watched Peter Hain on "Breakfast with Frost". He was complaining that this House had lost its way. He told the public—to my surprise, but not perhaps to that of the public—that its true function was to revise legislation passed to it from the other place, not to veto it. Still less was it entitled to give it only cursory consideration as, he claimed, had been the case with the Hunting Bill in the previous Session.

Those assertions by someone holding such a prominent position in the Government as the Leader of the House of Commons should not be ignored and should be answered, because otherwise they may become accepted by the Government as justifying still further attempts to curb the already truncated powers of this House. As noble Lords will know full well, he has got it quite wrong.

The fact is that this House surrendered the power of veto in 1911. It retained a power to delay Bills in order to give the government of the day time for reflection and having second thoughts—which might well be wiser thoughts. This is not an obstructive power; it is an essential partial safeguard against the government of the day rushing into ill advised and destructive legislation.

If Mr Hain had his way, the role of this House would be purely advisory. It would receive a Bill from the other place and say that it was a good or bad Bill, or that it wanted amendment in the following respects. It would then return the Bill to the other place to do as it liked with the advice and that would be the end of the story. That, it seems to me, is what the noble Lord, Lord Faulkner of Worcester, championed when he suggested that any attempt to delay a Bill would be improper.

There is an issue as to whether the Parliament Act 1949 has abridged the period of delay from three Sessions to two, but that is not for this debate. It may well have to be decided by the courts, including this House in its judicial capacity, during the coming year.

What does require careful consideration is the allegation that this House made no attempt to perform its revising role in relation to the Hunting Bill. It is an undoubted fact that consideration never went beyond Committee stage before prorogation. I do not know the reason for that. It may have been the case that the Government's business managers were not prepared to accept a programme which would have given this House the time to undertake a full examination of the Bill.

Alternatively, it may have been appreciated by the usual channels that any further consideration not only would jeopardise the future of other more important and less controversial Bills, but would have been a waste of time as the other place was not interested in any form of revision or reconsideration.

However, this aspect of the working of the Parliament Act requires further and serious consideration. The Act can apply to any Bill which has been sent up to the House of Lords at least one month before the end of the Session and is rejected by this House before the end of that Session. Perhaps here I may interpolate as I have been asked today whether a Private Member's Bill qualifies. The answer is that it does because it is a Public Bill. Only Private Bills in the sense that X corporation wants to increase its local powers do not qualify. Therefore, if the Hunting Bill returns in the form of a Private Member's Bill, so be it—it will qualify for consideration under the Parliament Act.

A Bill is deemed to be rejected by this House if it is not passed without amendment, or only with amendments agreed to by both Houses. That underlines the importance of how much time we have to consider such a Bill.

Nowadays, it might be thought that leaving this House only one month in which to give full consideration to what almost by definition will be a highly controversial measure is quite inadequate unless it is intended that all other business shall be shelved. This is particularly the case if some parts of the Bill have never been considered by the other place because of the operation of the guillotine.

Furthermore, the Government's business managers will usually be able to ensure that the Bill cannot receive sufficient time for full consideration in this House. On the other hand, there has to be some time limit in order to prevent the frustration of the Parliament Act process by a filibuster extending until the end of the Session—a parliamentary form of kicking into touch.

One solution might be to provide that the Bill must be sent to this House at least three months before the end of the Session. Another, which could be added as it is not inconsistent, might be a clause whereby, on a Bill-by-Bill basis, this House could resolve that further discussion of a Bill at the beginning of the following Session should, for the purposes of the Parliament Act, be deemed to have occurred in the previous Session. However it is dealt with, we ought seriously to reconsider the operation of the Parliament Act in all its different aspects.

Photo of Lord Barnett Lord Barnett Labour 7:25 pm, 2nd December 2003

My Lords, I am in partial agreement with the Government on the principle of the separation of judicial powers from a Minister of the Crown. However, like the noble and learned Lord, Lord Mackay of Clashfern, I do not agree with the way in which it was announced. I hope the proposal will be given long and careful consideration when eventually it is brought into effect.

I am not a lawyer and I have always had great respect for the Law Lords in your Lordships' House. Most of those I have heard are retired. Like the noble Baroness, Lady Buscombe, I hope that they will return at an early stage if the proposals are put into effect. I have found it difficult to understand some of the arguments I have heard and read today from lawyers and Law Lords who oppose the separation of powers. I read with great interest an article in The Times of 13th November by Peter Riddell. I do not suppose he wrote the headline:

"The law lords are acting like members of the FBU".

I know what is meant because below that the sub-editor wrote that it was "over-the-top resistance". The article is worth quoting:

"Imagine the outcry if a Prime Minister proposed that the head of the judiciary should be a senior minister. And, moreover, a member both of the Cabinet and of the House of Lords. The Government would be denounced for outrageous political interference . . . of the judiciary and acting dictatorially".

I am sure that neither this Government nor their predecessor would have dreamed of doing any such thing.

The plain fact is that we had a brilliant Lord Chancellor sitting in the Cabinet of which I had the privilege of being a member. I refer to Lord Elwyn-Jones, who many in your Lordships' House will know was a wonderful man, a brilliant Lord Chancellor and a marvellous Cabinet Minister.

The consultation paper that has been published asks for our views, so I thought that briefly I would give mine as I have the Floor. We are informed that it is the job of the Lord Chancellor to deal with ecclesiastical patronage, visitorial jurisdiction and charities and schools. We all know that most of that work is rubber-stamping decisions that have already been taken. Indeed, if Lord Chancellors interfered, usually they were wrong to do so. If the noble and learned Lord the Lord Chancellor is interested in my views, I hope that he will happily give up those jobs. As for the job of being Speaker in your Lordships' House, normally—apart from today when he has sat throughout the debate—I am happy to see that he does not sit for too long on the Woolsack.

My concern about the consultation document relates to value for money—a matter I used to have something to do with—and what the Secretary of State for Constitutional Affairs will do when he is stripped of those rubber-stamping jobs. It was particularly worrying to read in the document that the Lord Chancellor would still be in charge of a major department with "large spending powers". I would be grateful if my noble and learned friend would tell us perhaps today just what he has in mind to spend his money on. In other words, how many staff will he have and what will they do when they are stripped of these powers? I should be happy if he would write to me or tell me on another occasion.

I turn briefly to the subject of House of Lords reform. I shall leave my main comments until we debate the Bill itself. The major decision concerns the abolition of hereditary Peers. I have set out my views on that decision to your Lordships on other occasions. The principle that no one should sit in Parliament simply because of something that his ancestor did must be right, even if that person is as good as the noble Lord, Lord Strathclyde. Having said that the hereditary Peers should go, I do not say that there are many hereditary Peers here who are any worse Members than the life Peers—many of them are far better. However, that is still no reason for them to be here.

The Cranborne deal is now being criticised because there is no new stage of reform. I said, and believed at the time, that it was a bad deal negotiated between our then Lord Chancellor and the noble Viscount, Lord Cranborne, although the noble Viscount was sacked for doing so. The plain fact is that the deal should not have been done. Now, there is no agreement on the composition of your Lordships' House. There is no agreement in either House and certainly not in your Lordships' House. No one who sits behind the noble Lord, Lord Strathclyde, agrees with him, as he knows too well.

Some of the criticism has been ludicrous, but sometimes it has been serious. I refer to when the Statement was first made on 18th September. At that time, the noble Lord, Lord Strathclyde, finished his remarks by saying that,

"he can expect a major fight on his hands, and it will not be confined to this Bill".—[Official Report, 18/9/03; col. 1062.]

That kind of threat will not be at all helpful when we come to give proper consideration to the Bill in due course. However, we heard even worse from the noble Lord, Lord Goodhart, on the Liberal Democrat Benches, who I understood to be a moderate Liberal Democrat lawyer. He said that the Government were trying to castrate your Lordships' House. Even the noble Lord, Lord Strathclyde, did not use language such as that.

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, the noble Lord makes an entirely fair point and therefore perhaps I may make one in return. He may even agree with me. The position with which we are faced is that the Government have broken an undertaking given to Parliament. Yet they expect everyone else to stick to their agreements and their conventions. The Government cannot have it both ways. If they are going to behave in this entirely cavalier fashion, we shall give it back to them. The noble Lord, Lord Barnett, must surely agree with that.

Photo of Lord Barnett Lord Barnett Labour

No, he does not. My Lords, the plain fact is that if the noble Lord, Lord Strathclyde, opposes this proposal, it is because he knows that there will be no changes and therefore it will be an opportunity to retain all the hereditary Peers. That is not a view that I hold. However, that is not to say that that is the end of my view on this matter, as he knows very well.

As I said, there is no agreement on how your Lordships' House should be composed. Therefore, frankly, to complain that the Government are seeking to castrate the House or that they are taking dictatorial powers or that the issue will be fought to the death is not a serious way to debate these matters. As the noble Lord, Lord Strathclyde, knows now, the plain fact is that the Government have 28 per cent of the votes in your Lordships' House. That figure may rise slightly in due course. But the Government have made a commitment that they, and any government in the future, will never have a majority. When the Bill comes before us, the House will have an opportunity to ensure that that commitment is carried through. Perhaps that is what the noble Lord is upset about because, for many years, his party had a majority in your Lordships' House with the huge number of hereditary Peers.

In due course, the independent commission will select Peers according to recommendations. I hope, as I have already said, that we shall have an opportunity to see many of the excellent hereditary Peers return as life Peers. The noble Lord knows that that is my view and I hold to it. However, I hope that the commission will have regard to a matter which it did not seem to take into account in relation to previous appointments—that is, that we are talking about working Peers.

I saw on page 12 of the document that the commission would ensure that the balance of Members had regard to the outcome of the previous general election. Perhaps my noble and learned friend Lord Falconer of Thoroton will be able to tell me how the commission can have regard to the balance at the previous general election and, at the same time, ensure that no party has a majority in your Lordships' House or, indeed, how the commission should choose any Cross-Bench Peers. After all, not many Cross-Bench Members were elected at the previous election. I should be interested to hear from my noble and learned friend the Lord Chancellor how he would deal with that point.

The question remains: what now? When, the other week, I asked a Question concerning the hereditary Peers who wanted to sit and whether they would be nominated for life peerage, I was told by my noble and learned friend the Lord Chancellor that he or she would be open to be so nominated.

I very much regret and, indeed, deplore threats from the noble Lord, Lord Strathclyde. I must tell him that if he presses ahead with that kind of party-political argument, he will certainly lose my support and that of many other noble Lords on this side of the House. I want to see those hereditary Peers nominated and considered seriously by the appointments commission with, it is hoped, with a new chairman.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat Leader in the House of Lords

My Lords, I am grateful to the noble Lord and shall be very brief. He has expressed his feelings very strongly about what he regards as the strong language used by the noble Lord, Lord Strathclyde, and my noble friend Lord Goodhart. Does he have any idea of the feelings that we have about the constant berating of the unelected House for attempting, for example, to amend serious legislation when we have made every possible attempt to have the House elected?

Photo of Lord Barnett Lord Barnett Labour

My Lords, having served in Cabinet with me, the noble Baroness knows how reasonable a man I am, even if I did not always give her the money that she wanted. I should like to reply at some length but, frankly, I have already spoken for 12 minutes and I want to draw to an end.

As I said, I hope that all the hereditaries who want to do so, and are supported by an independent commission, will be able to return as life Peers. However, in the amendment proposed by the noble Lord, Lord Strathclyde—most of which, as I have made clear, I disagree with strongly—there are at least two or three words with which I do agree and which I hope my noble and learned friend the Lord Chancellor will accept. I hope that my noble and learned friend will concede the reference in the amendment to "meaningful consultation" and will hold such consultations. We would then have an opportunity to consider the House of Lords reform Bill in a serious manner, which has often not been the case in today's debate.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 7:38 pm, 2nd December 2003

My Lords, it is a privilege to follow the noble Lord, if only because he wants life peerages for all the hereditary Peers, as do I. But what the noble Lord does not appear to appreciate—I have said this previously but I repeat it in case he was not present—is that the appointments commission, as constituted in that wretched consultation document, provides no guarantee of that. That is one of the problems.

We are debating the shadows of a House of Lords reform Bill and a constitutional reform Bill, together with consultation paper CP 14, on which there has been no consultation whatever. The amendment moved by my noble friend Lord Strathclyde demonstrates propensity to oppose the Bills. It seeks withdrawal in the absence of cross-party consensus and consultation. It warrants the support of noble Lords wherever they sit or have sat or hope to continue to sit in your Lordships' House, whatever their political reservations may be. The Government contend that the Cranborne deal, a formal undertaking given to the House, ratified by the House and which may be enforced only by the House, subject to the will of Parliament, no longer applies. That is an unconscionable contention that mocks the integrity of this place.

My opposition to the House of Lords Bill, as has to be declared, was on the ground that the opinion polls favoured a referendum; my opposition to the Weatherill amendment was that it was hybrid and discriminatory; and my opposition to the Cranborne deal was that it afforded election only to hereditary Peers. Having declared my position, of course I defer to the view of the House.

A deal was struck. It was spoken to and approved by the House on the basis of one bone of contention that there should be no stage one before stage two, which was known then to require the approval of Parliament. There was no fine print and no reservations about obligations to encourage consensus or about permanency, such as has been suggested in paragraphs 25 and 26 of the consultation paper, that one is tempted to regard as a form of political placebo. No conduct has arisen to frustrate consensus or to frustrate the deal so as to justify instant removal. No unforeseeable circumstance has arisen such as could justify negation of the deal as frustrated, and in any event if it were frustrated why not renegotiate instead of seeking to impose by statutory imposition? Your Lordships have already given some answers to that question.

The Bills proposed in the gracious Speech assume an appointed Chamber, which I support. No constructive purpose is to be served today by revisiting those debates as to competition in both Houses, but speaking for myself I hope that the new shadow Cabinet will reconsider the arguments as presented by my noble friend Lord Norton of Louth and other noble Lords and as accepted by a fair majority of this House.

If legislation were to remove the hereditary Peers, it could amend Section 2 of the Act to remove the exemption from the general exclusion, and Standing Orders that gave effect to the deal could be rescinded. The Earl Marshal and the Lord Great Chamberlain would remain ex officio, but not so under the consultation paper. I need not repeat the fair criticisms made by the noble and gallant Lord, Lord Craig of Radley, and the noble Lord, Lord Cobbold, as to the consultation paper concerning the Appointments commission.

The Government do not propose to offer any life peerages, as I have said, to the removed hereditary Peers, much to the displeasure of many noble Lords on all sides of the House. The structure of the constitution has suffered a series of dogma-driven, seismic shocks. Certain cracks beyond repair, such as rescission of the hereditary entitlement to sit and to vote, were initially opposed by my noble friend Lord Cranborne on the basis that opinion polls supported a referendum. When later attracted to the Cross-Bench compromise my noble friend took command and after strenuous negotiations concluded a deal with the noble and learned Lord, Lord Irvine of Lairg, which it is the purpose of this speech to uphold.

The gracious Speech proposed the introduction of Bills to put the hatchet not only to the exemption from the general exclusion under the Cranborne deal, but also to the office of Lord Chancellor and the system of judicial appointments and to remove the Appellate Committee from your Lordships' House. Your Lordships have dealt with the merits or demerits of those proposals already. Shall the dingle bells of political dogma continue to ring their changes just for the sake of change? Are there to be more constitutional detonations, more mindless change, as described by a distinguished journalist. Is that where we are going? I look at the time and with your Lordships' leave I shall conclude.

Photo of Lord Inglewood Lord Inglewood Conservative 7:47 pm, 2nd December 2003

My Lords, as I cannot be here tomorrow I had intended at the start of my remarks today to make some constitutional points relating to the European Union, but given the time and the direction of the debate, I shall leave those matters for another day. I had always intended to conclude with a few remarks about composition of the House—after all, almost every noble Lord has.

I begin by drawing the attention of the House to the fact that I am one of those on political death row. I recall when I was reading for the Bar the advice given that anyone who acted as an advocate for himself had a fool for a client. I have not forgotten that advice so I shall leave that advocacy role to others although it has occurred to me that my predicament seems to give a slightly different meaning to having one's sentence commuted to life.

As well as being an hereditary Peer I am also an elected politician elsewhere. I have been struck by the widespread perception that what the Government appear to propose can hardly be perceived as bona fide political reform. That is most dangerous. In the words of Chris Patten in a recent somewhat controversial article in the Spectator, I am,

"a Tory to the tip of my toes", so why should it matter to me, or to anyone else who is not a committed supporter of the party opposite, that the Government find themselves so badly misunderstood? However, I believe that it matters because we are all part of the wider political process which changes over time. Governments change. It was not all that long ago that it was said that we would never see a Labour government again. One thing that is certain is that the party opposite will not govern this country until the world comes to an end. If the political process is abused, public trust in our institutions as a whole will be eroded as the noble Baroness, Lady Williams, said in her opening remarks.

I do not believe that it is by accident that the Parliament Act does not apply to legislation to extend the life of a Parliament, even if it applies to the legislation to reconfigure the composition of the second Chamber. It would appear from what we have so far heard from the Government, that at a stroke this will achieve a materially different political balance in your Lordships' House. That makes it easier for the Government to drive business through this House at a time coincidentally when they have been complaining of having problems doing that.

No one should get me wrong: the government of the day should get their business. But we must not forget that the government of the day do get their business. The legislative process is not the parliamentary equivalent of taking money out of a form of legislative cash machine. One puts in the card, taps out the code and the money comes out straightaway.

On a number of occasions I have spoken, if not actually in favour, at least sympathetically of gridlock. Time to pause for thought avoids dangerous dogs legislation. That is something that must be in everyone's interest. Delay is a legitimate political device. In our country the process of government is carried on within a framework of rules, laws and procedures. It is not the mere exercise of raw political power. In that context I should also declare an interest. I am told that when I was standing at the Dispatch Box for the previous Conservative government I had the singular distinction, if I can put it that way, of leading the then Conservative government to their biggest defeat in your Lordships' House since the Second World War. Quite honestly, I do not think that it did anyone much harm. I had a great deal of egg on my face and I had to take it on the chin from some of my colleagues, but we got the business through in due time.

Nevertheless, if I go from this House, so be it. But I would make one final plea to the Government from the foot of the gallows that the noble and learned Lord opposite is building for me. That is, find some better arguments for what you propose, ones which the public find constitutionally convincing and politically acceptable. Currently, the jury of public opinion does not believe the case the Government are arguing. That is bad for Parliament and bad for Britain.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 7:52 pm, 2nd December 2003

My Lords, as the Leader of the House says, the gracious Speech contains some very significant legal and constitutional proposals. The issue is whether it contains the right proposals.

On the abolition of the remaining hereditary Peers in your Lordships' House, I support the proposal put forward by my noble and gallant friend Lord Craig and supported tonight by the noble Lord, Lord Barnett; that it would serve the interests of this House and it would be fair if a way was found for the remaining 92 hereditaries to be created life Peers. I hope that the Government will be generous about that.

On the question of whether the Government have broken an undertaking by going ahead with this legislation before the second stage of the reform of your Lordships' House, I put it to your Lordships that the truth which dare not speak its name is that the appointed House, which will exist after the removal of the remaining hereditaries, is the second stage of the Government's reform. That may not be something that the Government want to tell their own supporters. But we do in fact know that that outcome is wished for by the Prime Minister and the former Lord Chancellor.

I make no quarrel with that. The Wakeham Commission, on which I served, recommended that a significant minority of the Members of your Lordships' House should be elected. What it had in mind was that every region of the United Kingdom should have a voice in your Lordships' House. It felt that those who were speaking for the various regions of the United Kingdom should be chosen by the electors of that region. But its overall approach was that your Lordships' House should add value to the work of another place by bringing to it a range of experience and expertise which does not exist in another place, except by chance. That can be achieved only by appointment.

So, I support the Government's approach on the condition that they are generous to the hereditaries who remain in this House and who have served it so well. For that reason, I shall abstain on the amendment tonight.

However, there are two elements of the Government's proposal with which I take issue. One is the method of appointment to this House. The Leader of the House said tonight that the proposals for a statutory Appointments Commission would remove much of the Prime Minister's patronage. I heard the leader of another place say in an interview on the radio that this place would be composed of no one's cronies. But, 80 per cent of those who will sit in this House under the Government's proposals will be appointed by the patronage of the Prime Minister or the leaders of the other parties.

I believe that we will not free the public from suspicion of patronage in this House unless the Government are prepared to go further and to do what the Royal Commission recommended and allow the recommendations themselves to be made by the Appointments Commission. Of course it would be right for the leaders of the political parties to make recommendations to the Appointments Commission of those who should serve them in this House. It would be right for the Appointments Commission to take very careful note of those recommendations and in a great majority of cases to follow them. But I believe that the fears of the public about cronyism will not be put at rest unless the Government take that further step.

The other element of the Government's proposals that I dislike is the proposal on the extension of disqualification. I dislike its retrospective nature and the fact that is it appears to be directed at a single individual, which seems to me to introduce a very disagreeable note of vindictiveness.

I want to say a few words about the abolition of the post of Lord Chancellor. I am one of those who regrets almost every aspect of the effects of this proposal. I also regret, as others have done, the lack of consultation that preceded it. When my noble friends Lord Wilson of Dinton and Lord Armstrong and I were giving evidence to the Select Committee on Public Administration in another place, my noble friend Lord Wilson said that the exercise of great constitutional power should be undertaken in a way that does not create shocks. This did create shocks.

I would have preferred to see this measure not included in the gracious Speech and the inclusion of a measure about the Civil Service, to which the Government have been committed since before they came to power. I am sorry to say that my feeling that the Civil Service requires the protection of legislation in the interests of Parliament and in the interests of future government is reinforced by what I can only say I feel to be the levity with which the Government have become committed to the abolition of the post of Lord Chancellor.

Photo of The Earl of Onslow The Earl of Onslow Conservative 7:58 pm, 2nd December 2003

My Lords, it is very hard to follow a speech given with such authority as the one to which we have just listened. Several noble Lords have suggested that the new second Chamber should be called the senate. That struck me as being an even more reactionary name than that of the House of Lords. The concept of the noble Baroness, Lady Amos, being referred to as a conscript father, which I believe is what Cicero was referred to when he was the senator, was rather amusing.

It also brought me to remember Mark Antony on the steps of the senate after Caesar was assassinated. As your Lordships know even better than I, the speech starts by saying that Brutus and Cassius were honourable men. I wonder whether we will be able to say that Blair and Falconer were honourable men. I say that hoping desperately that they will prove me wrong in my suspicions.

I am horrified to think that a Lord Chancellor cannot live up to the standards of Sir Thomas More and Thomas à Becket, who would not have dreamt of reading—as the Lord Chancellor says he has—the words of their predecessor about being binding in honour, then say that the circumstances alter the case. Neither Thomas à Becket nor Sir Thomas More would have dreamt of that; they would have murdered to keep their word.

As your Lordships know I have no time for my own position in this House, except to thank God for allowing me to do it. I have enjoyed it beyond anything, but I have never seen any reason why someone whose forebears got pissed with Pitt the Younger should be allowed to boss his fellow citizens about. I still do not think that. I have enjoyed it enormously, but before I go I want to ensure that what comes after me is infinitely better than what is me.

There is no other authority in the realm than election. Is it not interesting to notice that Macaulay says of the Plantagenet kings that their power was restrained by that of an hereditary nobility? What was good for Edward II and Edward III not being allowed an appointed Chamber goes just as well for the present First Lord of the Treasury: he should not and must not have a wholly appointed Chamber.

Of course this House voted for an appointed Chamber. It could not do anything else. I am not decrying anyone's honour—on this occasion. The idea that cows vote for the cattle race so that they can all trot up towards the captive bolt pistol to be turned into hamburgers or filet mignon is odd. My noble and learned friend Lord Howe got around this problem. If election is introduced gradually, life Peers will gradually die off. No one would be disqualified; everyone would be happy.

I am here because it was agreed that 92 hereditary Peers would remain here as a permanent reminder—a grit of sand, a pustule on the rump of the body politic; call it what you will—that stage two must come about. Perhaps I may remind your Lordships that the Labour manifesto referred to a democratic House of Lords. The noble Lord, Lord Butler, said that stage two is to be an appointed Chamber. In 1997, the Government said that they wanted a democratically elected House. They were holding their fingers behind their backs and holding them crossed. That is what they say and that is what I am here to remind them. That is what we should do.

I know that other people do not like the proposal. I have been four minutes; briefly, I should like to comment on the prospect of the abolition of the post of Lord Chancellor. It appears that this was discussed for quite some time before it was decided to do it. The discussions were so detailed and so great that they did not even know that he could not be "dis-appointed" without a very serious Act of Parliament. That is not very sensible.

I suspect that part of the muddle has come because French is not such a vivid language as English. As we all know, Montesquieu noticed that the English functions of government are separated, or separe. Separe means both separated and separate. In England, the functions are not separated, but they are separate. The Crown must appoint judges; the executive must appoint judges. The executive is responsible to the legislature, as well as a part of it. Therefore, they all have separate functions but they are not separated. Because French is a language which cannot differentiate between the two words, Montesquieu gets it wrong, the Americans get it wrong and off we go to a different kind of constitution.

I also ask myself why is it that we all recognise that the judges are of the highest quality. The noble and learned Lord, Lord Falconer, said that. So we have got to find a separate method of appointing them. My Garrick friends—if one is allowed to say that in your Lordships' House—say that the judicial Bench is of the highest order possible. It is proposed to set up a committee with possible elected politicians, without having been subject to the judicial oath, with the qualities of the independence of mind that a Lord Chancellor should and, in my experience, has always had—be it Lord Elwyn-Jones, Lord Hailsham or what I remember about Lord Gardiner and, above all, my noble and learned friend Lord Mackay of Clashfern. They all had the ability to separate in their minds being political or being judicial.

If we have a jolly good Bench whose judgments no one queries, why change the system of appointment? I believe that the House of Lords costs £200,000 to run. If there is a new building, as proposed, that cannot be anything but much more expensive. The noble and learned Lord the Lord Chancellor was associated with the Dome. Perhaps if we get a new building, it will make the new Scottish Parliament look like an exercise in fiscal prudence. That is inevitably what happens.

If the Government break their word of honour, I shall draw their attention to the words of Edward Gibbon about the emperor Septimius Severus. He said:

"He promised only to betray, he flattered only to ruin; and however he might occasionally bind himself by oaths and treaties, his conscience, obsequious to his interest, always released him from the inconvenient obligation".

Photo of Lord Monson Lord Monson Crossbench

My Lords, before the noble Earl sits down, perhaps I may raise one point. He said that his ancestry does not entitle him to boss anyone about. That is quite right, but no one in this House—be they an hereditary or a life Peer—bosses anyone about. Nothing proposed in this House gets anywhere unless the elected Chamber subsequently agrees to it, which is as it should be.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I used the expression "bossing about" in a slightly flippant way. I am sorry that it floated gently over the head of the noble Lord, Lord Monson.

Photo of Lord Monro of Langholm Lord Monro of Langholm Conservative 8:08 pm, 2nd December 2003

My Lords, it is not often that we get a chance to talk about Scotland in this Chamber, which will be my main point, but I should first like to say how strongly I support my noble friend Lord Strathclyde in his remarks and the amendment that he has tabled to the gracious Speech.

Trust is an important word in British politics and it is sad that the Government have broken their promise and trust to this House. That deserves all the criticism that it will receive later, when the Bill is debated here. The gracious Speech contains a Scottish Bill to maintain the number of Members of the Scottish Parliament in Hollywood.

However, I want first to ask the Government where they now stand on the West Lothian question. Whatever the Bill or the Boundary Commission do, the West Lothian question will not go away. As everyone knows, that was highlighted recently by the vote in another place, which the Government survived with the votes of Scottish Westminster MPs. It is ridiculous that we have a Minister for Health from Scotland who cannot vote on Scottish health but is responsible for health here in England.

When the Scottish Westminster MPs are reduced to 59, the West Lothian question will remain. What will happen about those 59 MPs voting on English legislation at Westminster? The Government trumpet democracy and transparency, but seem to have no answer about what to do about the West Lothian question. Our Scottish Conservative MP does not vote on English legislation.

Returning to the Scottish Bill and the Scotland Act 1998, it was absolutely clear in the Commons and the Lords that when the MPs were reduced to 59, the number of MSPs would be reduced automatically to 109—or to a figure decided by the Boundary Commission. However, we must first make clear the position and timing of Westminster constituencies. At a Speaker's Conference in 1944—not under the Act of Union, as many people think—it was agreed that Scotland would have a minimum of 71 MPs. The figure is now 73. Under the Scotland Act, the Boundary Commissioners now propose 59 MPs; the commission will report between 2002 and 2006.

The Boundary Commission has virtually completed its work: it has held its inquiries, is listening to appeals and will report soon. If we accept that the next general election will be in the spring or summer of 2005, what is the latest cut-off date for the establishment of the new constituencies, voters rolls and other administrative adjustments? Will it be the summer or autumn of 2004 or when? The country of Scotland is entitled to know how the Government will handle the Boundary Commission report and when they will implement it. I hope that the Government do not hide behind the excuse that they cannot do anything until the commission reports. They must make preparatory arrangements now.

Many of us remember that in the 1970s, the then Labour government laid reports, dillied, dallied and then voted against them. I do not want that to happen again. It is perfectly obvious that the Government are dragging their feet and hoping that they can get away with leaving the decision until after the 2005 election. I hope that the Government will this evening clear up what they intend to do.

The Bill, when it arrives before Parliament, will not be so urgent, because the next election for Holyrood Members of Parliament in Scotland is not due until 2007—for Holyrood if the building is completed by then. The Scotland Act made it absolutely clear that when the number of Westminster MPs was reduced, so would be the number of Members of the Scottish Parliament. Mr Donald Dewar, Mr McLeish and the noble Lord, Lord Sewel, in this Chamber, made it abundantly clear to all and sundry—even arguing against amendments tabled to the contrary—that they would automatically reduce the number of Scottish Members of Parliament at Holyrood when the Boundary Commissioners completed its work here.

I know that they may have had some consultations, but why has there been a complete U-turn, with the Government now intending to keep all 129 MSPs in Edinburgh? We will then have new constituencies for Scottish MPs; Westminster constituencies; local government constituencies; European Union constituencies. All together, it will be an absolute shambles for anyone in Scotland to know in which constituency, for what and when they will vote. The Government are being very unfair to Scotland by how they are handling that constitutional issue.

Why are they doing that? One could hardly say that Members of the Scottish Parliament are grossly overworked at present. They do not sit on Mondays or Fridays and their constituencies are smaller than those in Bavaria, Quebec, Catalonia and other areas. They have 28 Ministers, when other governments did the job with five.

When the Government took the legislation through Westminster, they said that they wanted a leaner and more effective Parliament. Now they are voting to keep it much bigger than necessary, purely to retain the Labour government seats in Edinburgh and a majority, supported by the Liberal Democrats.

Overall, the Government have treated Scotland very badly. They are interested only in seats at Westminster and Holyrood. It is a disgrace to democracy and, coupled with the astonishing revelations during the current Holyrood inquiry, a disgrace to the Labour Party in Scotland.

Photo of Lord Lucas Lord Lucas Conservative 8:15 pm, 2nd December 2003

My Lords, I am delighted that the Government are bringing forward this Bill, as it shows just how much they dislike having us lot here. That is why we are here—as an irritant, to get up their noses and give them an impetus to produce stage two and a decently organised House of Lords to take through the rest of the century. The fact that our presence gets up their noses something rotten is exactly what the guarantee was about.

There is no conceivable reason why there should be 92 hereditary Peers in this House if a deal had not been done. There was no logic in having any remaining hereditary Peers after the first House of Lords Bill unless as a guarantee of later things. I find it shameful that the Government should think of repudiating that. Of course the Government change their minds: they did so on tuition fees; they wanted an elected House of Lords and now they want an appointed one. That seems to be all in the life of a government. But to go back on such an undertaking on the continued existence of the 92 hereditary Peers—in other words, the bringing forward of stage two—is shameful. I shall support my noble friend with conviction.

Ultimately, it is up to the other place to decide what kind of House of Lords we have. Whether the House of Lords should be elected or appointed is a matter of principle for elected politicians, not something on which I, as a hereditary Peer, should stand pat. It does not, therefore, seem that such an issue can be the essence of stage two. The essence of stage two is that the House of Lords is a stable, coherent organisation. We will not leave it with major changes still in the wings, and another House of Lords Bill a couple of years away, it being pretty obvious that the Bill to come before us is incomplete and has left major decisions not taken.

We cannot judge the Bill at present. The consultation period does not end until 12th December, and I suspect that we shall have to wait until next year to see what is in the Bill. However, the Government must sort out, and take a view on, certain major issues. In their consultation paper, they have not taken a view on fixed-term membership or membership for life. One cannot leave that undone and call this stage two. We must decide on the basis of membership of this House and how we are to progress. We cannot seek such a fundamental debate in the future and say that we have reached stage two. We must know what obligations Members of this House will have and how we will deal with the changing membership of this House as elections dictate a change in the balance. There is some incomplete thinking in the Government's proposals that must be dealt with for us to be able to say that we have reached stage two.

We must be clear about what people are in this House for. People who take up peerages and then not bother to turn up do not do this House justice. If we are to keep membership associated with the peerage—and I am by no means committed to that; it would be excellent if we had called this House a Senate—we should follow the logic of what has happened with hereditary Peers. We must be prepared to sever the holding of a peerage from the right to turn up and vote in this House. People may accept a peerage merely because they have done great political service or they are important people in the world of business or the arts, or whatever else it might be. They may flaunt and sport that peerage outside this House but may not intend to turn up much. Well, we have an honours system, so why not give them that honour? However, if they are not prepared to accept the obligations that come with being a Member of this House, they should not have the right to sit here.

We should allow people who, in all the best faith, take on a peerage and say that they will take part in this place and then do not, to retire from it gracefully. If they do not participate to the extent that we expect, we should require them to retire gracefully—or gracelessly. If we had that degree of turnover or obligation it would become much easier to deal with the changing pattern of the House that we could expect to see from one election to another.

Such basic questions need to be settled. However, next year, we could have before us a Bill that solves those problems and leaves open only the arguments about the proportions in the House, the exact details of its comings and goings, and how we deal with people who vote for the Green Party or other such matters. Those are not fundamental things. As an hereditary peer, I could not stand up and claim that the Government had broken their word because they had not done what I wanted them to do in respect of some of the relatively minor aspects of the House of Lords Bill. I am quite hopeful that, at the end of the day, we will see a Bill that constitutes stage two. I am disappointed, however, that the Government are not promising that at the moment. They seem to think that they can get away with something that is an incomplete stage two and go back on the word that they first gave us those few years ago.

We must be careful with our constitution. It is important to fight for democracy. After all, we are fighting for democracy in Iraq at the cost of many lives, but we are not prepared to introduce democracy to the House of Lords. We should put our hearts behind defending and promoting democracy whenever the opportunity arises. Although we seem to live in a comfortable world at the moment, with a benign Government and good economic prospects, we must be conscious that that may not always be the case.

We must be careful to defend the independence of the judiciary. When those Bills come before us, we must be careful that we are comfortable about going forward with such matters and we must pay the greatest attention to what the noble and learned Lords the Lords of Appeal in Ordinary are saying about the effects of the abolition of the Lord Chancellor on the long-term independence of the judiciary.

The Government are not averse to gathering enormous powers unto themselves. The draft civil contingencies Bill would, in the event of a crisis, have given the Government the power to abolish or tear up legislation and, by ministerial fiat, to create any legislation. Perhaps we will see something different when the Bill emerges, but under the draft Bill they would have the power to destroy the constitution—to abolish judges and Parliament and create a dictatorship—and it would all be entirely constitutional and legal. We must be careful about those things. It is sensible to give the Government power to deal with an emergency and say that, in such an event, they should be able to make things right as quickly as possible. However, we must be careful to guard against the advent of a less benign government.

As the Leader of the House said, we face falling numbers of people voting and a lack of faith in our institutions. That sort of trend is rather like the brush drying out in the south of France—it creates conditions in which a fire can burn. A new philosophy or political movement could pick up and quickly gain support from those who have become disillusioned, disenfranchised and disconnected from the political process of which we are part. We have to be sure that, if such an event occurs, democracy will be robust. That means that we must fight hard, when the House of Lords Bill arrives, to make sure that we have a robust institution, safe from the power of an overweening government. We must not have an institution that the Government can master.

We must be sure that we keep the judges safe. They are the guarantee of the power of the individual against the state. We must be sure, to the extent that they must do things to satisfy us, that the Government keep their word. Casting aside such a solemn and binding promise is not the sort of precedent that we should set. It is not a great inconvenience to the Government that we should continue here until they are able to fulfil the promise. I am glad that it is a sufficient inconvenience that they feel that they want to fulfil their promise.

Photo of Viscount Tenby Viscount Tenby Crossbench 8:26 pm, 2nd December 2003

My Lords, it is with some diffidence that I take part in the debate, a diffidence that, some might feel, is generated by the fear of any charge of self-interest. Apart from a longstanding family concern in the reform of the House of Lords, I pray in aid the fact that I am one of the three surviving Peers whose names appeared on the so-called Weatherill amendment, Lord Carnarvon having, sadly, passed on since then.

I recall being slightly surprised at the time that the Government should have accepted the amendment so readily. Of course, it offered the prospect of a fairly quick resolution to a problem that might have dragged on for an embarrassingly long time. No doubt it was also felt by some that a measure of agreement might be possible in three years. In hindsight and given the intractability of a problem with a 150-year history, we might have won the blue riband for optimism, even in a profession that exists on it.

Because of what was said then and has been said on numerous occasions in the intervening period, I am in no doubt that, in seeking to overturn their solemn undertaking, the Government have left themselves open to the charge of acting in bad faith. That is a serious matter in the normal run of things, but is particularly so if it jeopardises future parliamentary business and results in the souring of relations in this House, which are normally genuinely friendly.

It is an unusual concept—one, I suspect, that the noble and learned Lord the Lord Chancellor would not, in his distinguished legal career, have met too often in the commercial courts—that a change of circumstance entitles one of the two parties to an agreement unilaterally to declare it null and void. It is difficult to imagine how, were that to be the norm, the City of London would enjoy the pre-eminence that it enjoys today. The bond market—if I may make a play on words—would become seriously devalued.

With his genuine charm and skill, the noble and learned Lord the Lord Chancellor has, for the most part, managed to restrict criticism of the Government's proposals to accusations of being disingenuous. By a happy chance, I found in my dictionary that the word after "disingenuous" is "disinherit". I digress.

Unpalatable though the circumstances are, we must move on. To coin an in phrase, that was then and this is now. As if to reinforce that point, I was struck by the phrase used by the noble Lord the Leader of the Opposition following Her Majesty's gracious Speech last Thursday. I was so struck that I wrote it down. Because I do not make a habit of doing that, I hope that I have got it right. The noble Lord said:

"We recognise our duty to carry the Queen's business".—[Official Report, 26/11/03; col. 14.]

Amen to that.

I hope that the amendments moved today do not precede a scorched earth policy in respect of the Government's forthcoming legislative programme.

To embark on such a course in the coming Session would be counter-productive and the equivalent of committing hara-kiri or, as Adlai Stevenson was noted as saying in another context,

"As a very rich, tired man said to his chauffeur, 'Drive off the cliff, James. I want to commit suicide'".

Quite apart from anything else, it would enable the Government spin machine, and through it the media, to point out—correctly or otherwise—that much-needed legislation was being obstructed by a handful of unelected toffs, or whatever elegant phrase the tabloids come up with. That is, I know, slightly ironic when one bears in mind that, however bizarre the elections and the size of the electorate, the group referred to is the only one in the place technically to have been elected.

Where do we now stand in this epic reform? It is welcome news indeed that the Joint Committee has been asked to try to resolve the impasse and there are certain peripheral matters which at least can be settled relatively easily such as, for example, faith representation. The inclusion of appropriate representatives of other Christian denominations, the Jewish community and other ethnic faiths should be relatively simple to kick start, commanding as it does general support from all sides. I must leave it to the legal professionals to battle it out over the proposals concerning a supreme court and the appointments system within the judiciary, while it would take a whole debate in itself to comment on the future role of the Lord Chancellor. I have not left time for that.

Perhaps I may turn to the composition of the House itself. Nothing that has been said in our many debates on the subject has altered my conviction that this should be, if not an all-appointed House, at least a largely appointed one if it is to retain its role of revision and constructive improvement of legislation. It seems to me that at the very heart of the opposition to this concept is not only an all-embracing and admirable dedication to the democratic process, but rather the fear and suspicion surrounding any appointment arrangements that are finally made. However, I refuse to believe that, if the will is there, it will not be possible to devise a transparent and open selection system which will be demonstrably fair and which can make use of the best talent that this country has to offer.

I move briefly from the general to the particular. Surely it is inconceivable that the new statutory appointments commission—if it survives the thought-provoking dissection made on it earlier in the debate by my noble and gallant friend Lord Craig of Radley—will not, for the most part, nod through the political lists presented to it by the appropriate groups.

However, understandably and for historic reasons, there exists no machinery with similar authority to provide Cross-Bench names. That is a lacuna which demands early attention—initially of course from the Cross-Benchers, but then sympathetic support from the Government—before the newly appointed commission starts to spread its wings. In the first instance, only working Cross-Benchers will possess the necessary knowledge to assess whether a name may be suitable for such a list. This would be no theoretical exercise, for although it is generally accepted that the right to a seat through birth is no longer appropriate—we have heard that repeated countless times during the debate—surely those evicted should have as much right as any other citizen to seek selection. Indeed, in a rational world, their years of service and consequent expertise on how this place is run might in some cases even give them a good start over the rest of the field.

What is beyond doubt is that if the oft-repeated commitment to a strong and independent element in the new House is to be anything more than a pious aspiration or a media soundbite, then these matters will have to be addressed, along with the need for a larger and more representative independent element on the new statutory appointments commission itself. I cannot speak for the Cross Benches as a whole; it is an old and honourable tradition that we speak only for ourselves, but I believe that in emphasising these points I may be reflecting a general feeling in their ranks. It is one of which the Government will wish to take note when they seek Cross-Bench approval for any future proposals.

That great constitutional expert, Walter Bagehot, wrote some 130 years ago that:

"It is incredibly difficult to get a revising assembly because it is difficult to find a class of respected advisers".

Over the coming months, let us set out to prove that, for once, this eminence grise and parliamentary totem got it wrong.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour 8:35 pm, 2nd December 2003

And now for something slightly different, my Lords. I have chosen to speak in the debate because, before I entered your Lordships' House, I worked for more than 30 years in the field of equal opportunities, and aspects of equal opportunities are to be debated today in this part of the response to the gracious Speech.

The Conservative years were lean years from an equal opportunities point of view. Yes, we had the Sex Discrimination Act and the Race Relations Act already on the statute book, but successive Conservative governments did nothing to build on them. Indeed, it appeared at times that they were deliberately weakening them. There was little understanding of, and scant sympathy for, those who were discriminated against. The only real step forward in this area came via the much maligned European Commission, which was more enlightened than the Conservative Party.

Since 1997 this has changed substantially. The Labour Government came to power with a pledge to improve equality legislation and they have done so. Such improvements have, in my view, been among their greatest achievements. They are still continuing to improve the legislation, as can be seen by a number of measures outlined in the Queen's Speech.

A Bill is to be introduced to allow same-sex couples similar legal rights to married partners in such areas as inheritances, pension survivors benefits, parental responsibilities and many other areas. This is a radical measure, long overdue in our legislation, which will bring to same sex-couples the security previously denied them.

The gracious Speech also contained proposals for a further discrimination Bill designed to rectify weaknesses and loopholes in the Disability Discrimination Act 1995. It should extend the definition of disability and enable many more disabled people to be protected against discrimination and, it is to be hoped, will provide a public duty to positively promote disability equality and diversity, thus removing the justification for employers taking discriminatory action against disabled employees.

In addition, included in the proposed Employment Relations Bill will be measures to change the law to allow unions to exclude racists and fascists from their memberships. Of course, some unions have already taken action along these lines, one of the first being—perhaps surprisingly—the Prison Officers' Association. It introduced a rule to ban members of the National Front from its membership in the mid-1990s and expelled certain members from its ranks accordingly. The proposals in the Employment Relations Bill will allow extension of such action. Such proposals in all three Bills have been welcomed by both the TUC and the EOC as forward-thinking and positive measures.

I am often asked why I feel so passionately about equality issues. To me, the answer is simple. If we wish to build a civilised society, fair to all its citizens, then equality of opportunity must be a baseline for that society. Equality legislation goes beyond merely placing equality on the statute book; it sets the scene for society's attitudes. Equality is not only about the rights of minorities; it helps to create a society in which everyone can fulfil his or her potential; where differences are both valued and respected; and where individuals and communities can live safely and with dignity in a more cohesive way.

Once discrimination is recognised and acted against, there is less chance of discrimination being accepted; there is less chance of hearing sexist, racist or gay so-called jokes; there is less chance of a person's disability being laughed about or remarked upon; and there is more chance that each person will be valued for themselves.

Although it was not mentioned specifically in the Queen's Speech, I understand that further steps will be taken in the equality area by the establishment of a new single equality commission, about which a White Paper is expected, possibly—hopefully—in the spring. The EOC, the CRE and, more recently, the Disability Rights Commission have carried out sterling work over the years. However, the equality legislation with which those bodies work needs overhauling and upgrading, as all legislation does eventually. The Government believe that the full implementation of the relevant two EU directives provides a great opportunity to do just that, and propose to establish a single equality body rather than establishing three new commissions—for religion or belief, sexual orientation and age.

Like the EOC and the TUC, I believe that such a commission must be based on a strong vision of why equality matters; it must have real teeth and definite powers; it must respect the diversity and the needs of each of the strands that it will cover; and, above all, it must be adequately resourced. I ask my noble and learned friend to draw to the attention of those currently working on the establishment of the new body the need for adequate powers and sufficient resources to enable it to work well.

Finally, I turn briefly to the reform of the House of Lords. As a member of the Joint Committee, I have been immersed in the issue for some time. Much has been said about what was, and what was not, in the 1997 Labour Party manifesto. Whatever the actual words were, I do not believe that it was ever in the Government's mind to have a clone of the other place in this House. The Joint Committee had hoped that there would be some form of consensus when the two Houses voted. In the event, it was not to be so. However, this House spoke firmly against election to it, which cannot be ignored. The other place did not get its act together and gave very little steer for the future.

During the debates in both Houses and in the Joint Committee, several issues were raised that could and should be considered further, such as the size of the House; how to improve the membership geographically, with geographical representation; and, possibly, even the length of time for which Members should be appointed. I was pleased to hear my noble friend refer to a future joint committee in her opening address, and hope that such issues can be considered in future.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 8:42 pm, 2nd December 2003

My Lords, it is a pleasure to follow the noble Baroness, Lady Gibson. We served together on the Joint Committee. I was very surprised to hear her account of the previous Conservative governments and their contribution towards equality. I would have been far more persuaded of her enthusiasm for equality if she had taken time to denounce the provisions in the gracious Speech that aim to discriminate against middle-class children going to universities. That will be the effect of the proposals—

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour

My Lords, we shall have debates on those issues in future months, and I ask the noble Lord to listen to what I say then.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I will. However, it is somewhat typical of her party's position these days that they are delighted to talk about the past but not about their own record or their own plans for our country. In the gracious Speech are provisions that aim to discriminate against middle-class children, in the main, coming to university with proper qualifications. They will not get their places, however hard they have worked, because this Government want to establish a new office for fair access—a body set up deliberately to discriminate against certain people.

The noble Baroness could not find it in her speech to remark on that; nor could she find it in her speech to remark on the provisions in the gracious Speech that provide for those women with children who are asylum seekers to be blackmailed into leaving the country by the threat of their children being taken into care. Instead, we got a very distorted and partial account of the previous Conservative government's very distinguished record in that area.

I was struck by the remarks of my noble friend Lord Lucas about the need to keep this House safe from an over-riding government. My goodness me, is not that what we have got? We have a Government who talk about constitutional reform—but constitutional reform, if one considers it, is about advancing the interests of the Labour Party. Devolution in Scotland was about trying to create a permanent Labour administration in Scotland. Constitutional reform in this place is about removing the votes which inconveniently speak up for the many people in this country who believe, for example, in jury trial. It is about gerrymandering our Parliament.

This is a Government who rubbish anyone who attacks them. We saw it most recently with the Minister with responsibility for children attacking someone who had been a victim of child abuse. We have seen that also with civil servants; Martin Sixsmith also was rubbished and attacked. This is a Government who are now abusing their power to advance their own interests.

I have listened to most of the speeches in this debate including that by my noble and learned friend Lord Rawlinson. The speech by the former Cabinet Secretary, the noble Lord, Lord Butler, absolutely astonished me. Any government would be wise to listen to what they had to say about the abolition of the office of Lord Chancellor. My noble and learned friend Lord Rawlinson explained the very powerful arguments for retaining that office. The noble Lord, Lord Butler, went so far as to say that he thought that it was appalling and that he wanted to have a Civil Service Bill for he feared for the independence of the Civil Service. We have seen how this Government, in their attack on the press officers and on civil servants, have abused their power.

I look at the gracious Speech and I see a Government who have lost not only their way but their compass. The gracious Speech states:

"Up-front tuition fees will be abolished for all full-time students and a new Office For Fair Access will assist those from disadvantaged backgrounds".

It also states:

"A Bill will be introduced to enable more young people to benefit from higher education".—[Official Report, 26/11/03; col. 1.]

I ask and I wonder why it is that the Labour Party north of the Border believes that there should be no tuition fees but the Labour Party south of the Border believes that English parents should have to pay £3,000 and more. As someone living in Scotland, I wonder why it is that there will be tuition fees if my children decide to go to an English university but none if they go to a Scottish university. There is a principle here. The principle used to be that there was equal access to higher education throughout the United Kingdom.

It is even more appalling that English taxpayers are expected to contribute an additional 25 per cent more per head so that Scottish parents can send their children to Scottish universities and not pay tuition fees. There is no equality or equity in that. It is a nonsense brought in by this Government.

In the gracious Speech we have the gimmick politics of the child trust fund. We are told that its purpose is to enable children to save up the money and have a little nest egg when they are 18. Yet this is the same Government who next year will take away the tax relief provided for those who saved in ISAs by means of advance corporation tax relief on dividends. Those who are saving in ISAs will therefore be disadvantaged. The end of advance corporation tax relief on dividends is taking £5 billion out of pension funds every year, giving us a total of £30 billion, and yet we are asked to take seriously a gracious Speech that says:

"Legislation will also be introduced to encourage both employers to provide good-quality pensions and individuals to save more effectively for their retirement".

Her Majesty is now the vehicle through which the Government give their spin. In the face of the havoc created by the Government's policies and as people's pensions have decreased in value and they have looked to work longer than previously, the gracious Speech tell us:

"A Pension Protection Fund will be set up to protect employees and pensioners if companies become insolvent".—[Official Report, 26/11/03; col. 2.]

We are expected to be grateful to the Government for that. I have all the gratitude that I would for an arsonist who arrives with a fire extinguisher and then tells us, "By the way, the extinguisher is empty. And we expect the pension funds to pay for the guarantee fund when it is set up as there will be no Government standing behind it".

At the end of the gracious Speech we are treated to a commitment to reduce "burdensome and outdated legislation" and regulation, and yet the gracious Speech proposes setting up no fewer than four new commissioners and bodies full of people, adding to the burden on taxpayers and the wealth-creation sector.

We are promised yet more on constitutional reform. My noble friend Lord Monro talked about the sudden and astonishing commitment to maintain the size of the Scottish Parliament at 129 MSPs. I wonder whether that has something to do with the electoral interests of the Labour Party.

As the Scottish Parliament sits only one and a half days a week on average, why cannot we get rid of all 129 altogether? Why cannot we have Scottish MPs sitting in the Scottish Parliament on Mondays and Tuesdays? They could discuss English business at Westminster. On Wednesdays, Thursdays and Fridays they could come down and we could discuss UK business. That would solve the West Lothian question and save the salaries of 129 MSPs who are all paid full salaries and allowances, and we could spend the money on doctors, nurses and teachers who might be more useful.

We see a Government who are really struggling—a Government who started by promising that they would reduce the number of cars on the road led by the Deputy Prime Minister in his two jags. Now we are told that legislation will be brought forward to improve traffic flows and manage roadworks more effectively. What an admission of failure. All governments—I was a member of one—run out of steam and all governments lose their way, but this Government do not understand the difference between the interests of the country and the interests of their party. We are seeing in this Government a government who are abusing their power at every turn and a government who have lost their philosophical base.

I thought that this evening I would be able to speak about the Government's proposals on higher education. But, surprise, surprise, the Government's flagship Bill has not been published today, as promised. The Government's flagship Bill is under water. At the weekend we were told that the proposals in the gracious Speech were being rethought completely. This evening we learn that the proposals in the gracious Speech in respect of domestic violence are now also being re-thought as a war takes place between the Home Secretary and the Attorney-General. This is a Government who can no longer find agreement among themselves, a Government who have abandoned their philosophical base, a Government who are now seeking to attack the very foundations of our constitution and a Government of which the country needs to be rid soon.

Photo of Lord Tanlaw Lord Tanlaw Crossbench 8:52 pm, 2nd December 2003

My Lords, that is a difficult speech to follow. I shall manoeuvre into quieter waters. I am no constitutional lawyer and therefore I should proceed with great caution in debating the future constitutional reform of the House of Lords. However, I get the impression that there is more than a whiff of short-term political expediency behind the Government's approach to this aspect of the gracious Speech. That seems totally at odds with the reassurances given in the previous Parliament. The Bill on the reform of the House of Lords could be described by some as hard-ball politics rather than a constitutional reform and I shall discuss only a small part of it.

I detect a general feeling of antipathy towards the hereditary Peers which might even extend to their families. In my view there appears to be no proper recognition of the extraordinary contribution that those families have made to this country over the past thousand years and more. The perhaps unintentional attitude of the Government is that hereditary Peers' families will have no part to play in the future of the House of Lords once the hereditary Members have left the House.

I fully accept that the holder of the title of a hereditary Peer will no longer have any right by birth to sit in your Lordships' House except, for the time being, those 92 designated Peers as proposed in the amendment of the noble Lord, Lord Strathclyde. However, I speak both as a life Peer, which I am proud to be, and as the younger son of a hereditary Peer. I am perhaps expressing the unspoken feelings of younger sons and daughters of all hereditary Peers inside and outside your Lordships' House. Cannot they have some role to play as ordinary citizens in this House and so keep at least a sense of continuity or history which lies behind virtually every other aspect of this House? In future cannot they be actively encouraged rather than discouraged from applying to sit either as working Peers or in one of the political parties in this House, or applying to the appointments commission to sit as independents on the Cross Benches?

In the past, younger sons and daughters of hereditary Peers were the inherited reservoir of young people who gave great service to this country, both at home and abroad. They did so out of what I believe was an inherited sense of duty to the nation. Their elder brothers may have sat in this House, but they served in the Armed Forces, the colonial and foreign services, the Church and so on. I feel—although I have not read it anywhere—that a sense of resentment may pervade future generations of younger sons and daughters, and replace the positive attitudes that they have always had towards making a contribution to the future well-being of this nation.

Can we draw on that historic reservoir before it is too late, by finding suitable candidates to become a proportion of working or independent Peers in a reformed House? My suggestion is based not simply on sentimentality, but on the hope that people of the right age will be introduced, perhaps of independent means, which may be a necessary requirement to top up the poor remuneration that goes with this job of a working Peer. Might not the appointments commission contain at least one hereditary Peer's son or daughter, to maintain some connection with the past and perhaps help to vet any suitable applicants from hereditary Peers' families?

I shall switch to the Bishops for a moment. The right reverend Prelate the Bishop of Portsmouth mentioned his local knowledge—through his diocesan work, I assume—that was a great help to him in making a contribution in this House. Many years ago—I think it was in 1998—I raised the question of why the Bishops wore robes and sat in their part of the House, which did not necessarily reflect their political affiliation. Having consulted all the books, the answer from the Government was that they were allowed to wear robes as a form of mufti. They were their travelling clothes, and the Bishops were not meant to carry any form of religious insignia on their garments or person. They were to speak from the experience that they gained in their dioceses.

The Bishops make an amazing contribution to this House. However, I may have to disagree with my noble friend Lord Tenby. If we have other faiths represented here, it will be a very complicated business. In the future, I would much rather see an entirely secular House, because that is complicated enough. The matter has to be fully and delicately debated before we go any further.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, with the greatest respect, what we wear has nothing to do with what we say. However, I take the point about coloration.

Photo of Lord Tanlaw Lord Tanlaw Crossbench

My Lords, I take the right reverend Prelate's point.

The noble Baroness, Lady Williams of Crosby, the noble Lord, Lord Hoyle, and other speakers drew our attention to the falling numbers of voters in all elections. The noble Baroness called for a fully elected House, but what would be our electorate if we had to put ourselves up for election? If the Government were to fund expenses for the candidates for the reformed House of Lords through the political parties, how would independent Peers' election expenses be funded?

Are not our voters democratically represented enough through their local community councils, regional councils, devolved parliaments, the Sovereign Parliament, and the European Parliament? From experience to date, does it not seem that the more democratically elected bodies are created, the less attractive they seem to the number of electors who are prepared to vote for them? Has not the greater variety of politicians simply widened the disillusionment of the voters, especially the young, in our political system? Is not that disillusion primarily based on a failure to deliver political promises or public undertakings by the government of the day? Is not that the issue on which we should vote tonight?

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour 8:59 pm, 2nd December 2003

My Lords, it is my pleasure to take part in the debate. I recognise that there are divisions on both sides of the House and among all parties on the central issues. I shall express my own views but, like many Members of the House, I do so from my own background, belief and start in life. It is right that I should remind the House of what I have said before and where I stand on the issues.

First, all my life I have believed in the abolition of the hereditary principle in this House. Over the years, I have not changed my arguments and no one has persuaded me otherwise. Secondly, I believe in a wholly elected second Chamber. If I am told, as I was during our great debates on this, that the House will be either wholly elected or wholly appointed, I would be prepared to settle, if not for half, for something less than what I want. I share the view of the Leader of the Opposition, my good friend the noble Lord, Lord Strathclyde. We worked together amicably for many years. He has nailed his flag to the mast and said that, heretofore and notwithstanding, an 80 per cent elected second Chamber would satisfy his ideas of a change. I would accept that.

After examining the recent past, where do we stand on this now? I say with great respect to many Members opposite that we need not have been in this position. From 1979, they had 18 years in which to bring about some change—any change—in this place. As regards the balance of power, the whole country knew that whatever power the Conservative Party won in the other place, it could, give or take the odd hiccup, rely on Members of this House to support it.

I remind the House that, in 1984, 535 Members of this House took the Conservative Whip and 136 took the Labour Whip. Any measure of change that the Conservative government proposed could be carried, but they proposed nothing because the situation suited their books. In 1997, the last year in which the Conservatives could have done something, there were 481 Conservative Peers and 116 Labour Peers.

In 1999, there were 473 Conservative Peers and 168 Labour Peers and there was a move to achieve a proper balance. One might ask: what are the consequences of having such a gross imbalance? Members opposite complained that all of a sudden, in 1997–98, the issue was dragged to the fore, but they could have avoided that if they had had a plan to address the imbalance.

I painfully learnt the consequences of that as Opposition Chief Whip. In 1974–75, there were 119 Divisions in this House and the Labour government were beaten 103 times; and do not let anyone tell me that that has nothing to do with the generality of the argument. I am telling the House where I come from and what motivates me on this issue. In 1975–76, there were 146 Divisions and 126 defeats for the government. Those opposite who look at me and smile were here and recognise that. They knew the power of the majority that they enjoyed. In 1977–78, there were 96 Divisions and 78 government defeats.

Between then and 1996–97, in no year were the Conservative government defeated more than 20 times; five, seven, three and 17. But moving to 1997–98, there were 39 defeats for the new Labour Government. In 1998–99, there were 31 defeats; in 1999–2000, there were 36; in 2002, there were 56; and last year there were 80.

I simply say to the House, without wanting to be offensive to any hereditary Peer or any party manager, that the situation about which they now complain could have been avoided. A rotten situation was perpetuated and it sustained the Tory government over all those years. Today's situation could have been avoided if they had sought meaningful discussions.

Photo of Lord Ampthill Lord Ampthill Crossbench

My Lords, does the noble Lord consider that in those days the legislation was better drafted than it has been over the past few years?

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour

My Lords, over the past 30 years that I have been in the House, I cannot recall a time when someone could not stand up legitimately and ask, "Could not the legislation that we are dealing with now have been improved?". That argument always exists. Of course, the noble Lord is right. I understand the arguments—particularly those raised in the previous Session—about the wrongs in the legislation that need to be put right. I fully support those who take the opportunity to oppose.

However, I am an arithmetic man. I recognise that abolishing the right of hereditary Peers to come here will make a difference to the way that votes will be cast. For example, of the 92 hereditary Peers, 50—surprise, surprise—are Conservative, four are Labour and 29 are on the Cross Benches. Of course, one spin-off from perpetuating the policy that the Government are putting forward is that the arithmetic will change. I glory in that. I want to see change. I want to see the arithmetical imbalance improved in support of my party—a party, would you believe, that won landslide victories in 1997 and 2001. One great problem for Members opposite is that they cannot yet get their minds around the fact that twice in the past five or six years they have gone to the country and been thrashed. So far as I am concerned, this is a real debate.

The noble Lord, Lord Strathclyde, said that he sensed that the proposals posed a threat to the House. I believe he is right. It is a threat to the House as he knows it and as he has known it. Our aim is to change the nature of the House and increase the value of the threat. So far as I am concerned, the proposals of the Government are long overdue and I welcome them.

Photo of Lord Denham Lord Denham Conservative 9:07 pm, 2nd December 2003

My Lords, this will be the fourth occasion on which the noble and learned Lord the Lord Chancellor will have sought to convince the House that there is not, and I quote his own words,

"one iota of dishonourable conduct in relation to the Government so far as this matter is concerned".—[Official Report, 18/09/03; col. 1074.]

I have a large quotation from the noble and learned Lord's predecessor which your Lordships will have heard many times during the course of the day. I shall not repeat it in full now; I need only refer to the catch-phrase at the end:

"But the 10 per cent will go only when stage two has taken place. So it is a guarantee that it will take place".

The noble and learned Lord, with great sensitivity, went on:

"Thirdly, to insist on fulfilling the manifesto pledge by one step, not two, would bring down the curtain unceremoniously on the whole of the hereditary peerage, many of whom, and whose forebears, have given so much to this House and to public life. The compromise will enable the elected 75 to participate in our counsels and to vote as the stage two plans are developed and debated. It will allow those who do not stand, or who are not elected, to depart with dignity . . . and without rancour".—[Official Report, 30/3/99; cols. 207–8.]

I cannot visualise a more categorical and binding undertaking than that.

It is no good the noble and learned Lord, Lord Falconer, saying that the situation has changed and that Her Majesty's Government are justified in breaking this agreement because, inasmuch as the situation has changed, it is their fault, and theirs alone, that it has changed.

Back in the days soon after the 1997 election, when reform of the House of Lords had been promised, but the precise form of it had not yet emerged, we told them again and again that the only way to achieve a workable reform was to legislate for the composition of the new House in the same Bill that removed the hereditary Peers—what inevitably came to be known as the big bang. The House of Commons has always been nervous of a reformed House of Lords, and perhaps rightly so. Power is a finite commodity and, if one House gains more of it, it can only come from the other. That is why between 1911 and 1997, in spite of several attempts, nothing was actually done. The only course would be to define the form one wished the new House to take, show it to the Commons, and tell them, "Here is what you have wanted for the past 90 years, this is how you do it and this is the price you have to pay". We offered our help to achieve it, just as we did in 1968. But the Government knew better; they threw away the one bargaining counter they had, the removal of the hereditary Peers, and got nothing in return. That is how we have reached the position we are in today.

It may seem a small point, but when they set up the Royal Commission in 1998, they refused to include in it a single hereditary Peer, the one section of the political world which had years of experience of how the wheels of a successful revising Chamber go round. That this was a successful revising Chamber, many previous leaders of the Opposition of both main parties would have been able to testify, had they been alive today.

The Royal Commission reported by the end of December 1999, and this was to have been followed as soon as may be by a Joint Committee of both Houses of Parliament, which would have provided a sort of Committee stage to the Wakeham report. But this was put off again and again until, in September 2001, it was announced that it would be dropped altogether. This in itself was a breech of an undertaking from the Dispatch Box. I came down overnight from Scotland to remonstrate with the noble and learned Lord, the then Leader of the House, the late Lord Williams of Mostyn. He saw me with his invariable charm and courtesy and gave me a good three-quarters of an hour of his time, but he was adamant. I remember that several times during that interview I was on the point of asking him, "If the Government were breaking that relatively minor undertaking, why should we trust them not to do so over the big one, that of the 91 hereditary Peers?" But the noble and learned Lord was not only a political opponent but also a personal friend and a trusted colleague, and I could not in the end bring myself to risk offending him by making such a suggestion. Indeed, I did not really believe it myself at that time.

Finally, in July 2002 Her Majesty's Government found that they had no alternative but to set up the Joint Committee after all, but it was too late. The matter had gone cold on them, with the inevitable result.

When my noble friend, now the noble Marquess, Lord Salisbury, first told me among others, under Privy Counsel terms, of the negotiations he had been having with the noble and learned Lord, Lord Irvine of Lairg, I was extremely dubious as to their value, although I never for a moment doubted their genuineness. What brought me round in the end was the fact that they would give representatives of the hereditary Peers, and none of us knew at that time that we would be of their number, the opportunity to play a part in deciding the composition of the definitively reformed Chamber. The fact that it involved a stay of execution for the 71, later to become 92, hereditary Peers, for a few months or a year or two was almost irrelevant. What mattered was that, for the noble and learned Lord, Lord Irvine of Lairg, it was a guarantee of his good faith that phase two would take place, without any doubt whatever, and for us, the about-to-be-deposed hereditary Peers, the fact that we were going to be allowed an input into just who, and under what conditions, were going to fill the places that we were vacating, an input that had been denied to us when the Royal Commission had been set up.

Perhaps I should have remembered from my school days the Latin tag caveat emptor, let the buyer beware. I am told that Latin tags are out of fashion in legal circles these days and perhaps it is just as well. But it is a sorry state of affairs if the vendor is the Government of the day.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 9:14 pm, 2nd December 2003

My Lords, in the debate on the gracious Speech it is unusual to set aside a whole day to discuss constitutional and legal affairs. This year it is necessary to do so because the programme for this Session includes two major constitutional Bills. First, there is the Bill to set up a Supreme Court and a judicial appointments commission, which we are told will be called the constitutional reform Bill; and, secondly, there is the Bill to reform your Lordships' House.

In my speech I shall concentrate on those two Bills in spite of a number of interesting and valuable contributions from your Lordships on other subjects, including those from my noble friends Lord Phillips of Sudbury and Lord Greaves.

We support the constitutional reform Bill, although we regret the clumsy manner in which the reform was introduced. We have argued the case for these reforms for years. We are hardly going to change our views when success seems at last in sight. Few Members of your Lordships' House, except for the noble Baroness, Lady Buscombe, concentrated on that particular Bill. It is of course a Bill of enormous importance. I intend to spend a few minutes discussing it.

The creation of a Supreme Court involves a separation of powers. In the United Kingdom the executive and legislative powers have become hopelessly intertwined and cannot be separated without pulling the constitution completely to pieces. That I believe makes it all the more important that the highest court in the land should be separate from the executive and the legislature. To a limited extent that happens already: lay Peers do not sit on the Appellate Committee of your Lordships' House and Law Lords rarely speak or vote in your Lordships' House on political issues.

However, it is important that powers should not only be separate but should be seen to be separate. Outside your Lordships' House, the case for a Supreme Court has recently been made in powerful speeches by the noble and learned Lords, Lord Bingham and Lord Steyn.

Of course, the Government must accept that the new Supreme Court must have a proper home and proper facilities, including library and support staff. They do not get those facilities here, where they are far too cramped. I should like to pass on a suggestion given to me by my noble friend Lord Roper. He proposes a large modern unused building in north Greenwich—with which the noble and learned Lord the Lord Chancellor may not be entirely unfamiliar—which might perhaps make a suitable home.

The other main part of the constitutional reform Bill will be the creation of the judicial appointments commission. That is an essential step. There are at least four factors which mean that there is a greater conflict between the judiciary and the executive now than in the past. First, judges have become more activist and have turned judicial review into a major check on the powers of the executive; secondly, there is the European Communities Act 1972 which has given judges the power to enforce European laws in the United Kingdom; thirdly, there is the Human Rights Act 1998; and, finally, there is the conversion in recent years of the Lord Chancellor's Department into a government department with responsibilities going far beyond its historic functions.

Recent Lord Chancellors have been admirably impartial in the appointments they have made. That was not always the case, certainly it was not in Lord Halsbury's day, and it will not necessarily be the case in the future. If we leave matters as they are I believe that some future Prime Minister of any party may well appoint a Lord Chancellor who will make such appointments to the judiciary that the Prime Minister wants him to make. That is a real risk. The response of some critics in not recognising that risk is short-sighted.

Some speakers in the debate—I mention the noble Lord, Lord Renton, the noble and learned Lords, Lord Rawlinson and Lord Donaldson of Lymington—are I think harking back to the old days of a Lord Chancellor with a tiny office, employing a small team of barristers and sitting in a few rooms in the furthest reaches of the Palace of Westminster. That I am afraid is just nostalgia. It does not recognise today's reality of the Lord Chancellor as the head of a large government department with a staff of 25,000 and a budget of billions of pounds. Therefore, we are wholly behind the principle of a judicial appointments commission. The details are important and must be got right.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, perhaps I may protest against the criticism of Lord Hailsham as regards his judicial appointments. I do so publicly now.

Noble Lords:

Lord Halsbury.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I was not protesting against Lord Hailsham, I was protesting against Lord Halsbury, with entire justification should one read about him.

We are therefore truly behind the principle of a judicial appointments commission, but the details are very important and must be got right. I shall turn to three such details. First, ministerial involvement must be restricted. A judicial appointments commission should recommend a single name to a Minister for appointment to a senior post. That Minister, if he vetoes the name, should give the commission reasons for the veto. Secondly, not only the judicial appointments commission, but also those who appoint the members of the commission, should be wholly independent of the Government. Thirdly, we are concerned that it is proposed that the lay membership of the commission be restricted to five out of 15 members.

The third element in the Bill is the abolition of the office of Lord Chancellor. I believe that is inevitable because the Lord Chancellor, as head of a major government department, cannot now sit as a member of the judiciary, let alone act as head of the judiciary.

I therefore turn to the more controversial of the two major Bills; namely, reform of your Lordships' House. I welcome a number of sensible speeches from the Conservative Benches with which I agree; notably, those made by the noble Earl, Lord Onslow, and the noble Lord, Lord Lucas. We, and our predecessors in the Liberal Party, have been campaigning since the Parliament Act 1911 for the complete removal of the hereditary membership of your Lordships' House and its replacement by a democratic system of election.

We came agonisingly close to that goal in February when the proposal for an 80 per cent elected membership came within three votes of a majority in the House of Commons. I do not believe that the Government are entitled to rely on the absence of a majority in the House of Commons when they, through the Prime Minister, are responsible for the failure to achieve that majority. Those in all parties who have campaigned for a democratic second Chamber felt a strong sense of betrayal.

We are now to get a Bill that does no more than remove the remaining hereditaries and to set up a statutory appointments commission to appoint non-party Members. We are in favour of those changes, but we want them not as ends in themselves but as steps towards our real objective; namely, a second Chamber in which most or all of its Members are elected. Our attitude to any Bill brought forward by the Government will depend on whether we see the Bill as furthering that aim.

Taken by themselves, the Government's proposals are merely window dressing. They will enable the Government to wash their hands of further reform. What was unfinished business in 1911 will remain as unfinished in 2004 and, if the Government have their way, for many years thereafter. I disagree with the noble Lords, Lord Morgan, Lord Faulkner of Worcester and Lord Hoyle, who said that they would vote for the Government because their proposals are a start. The Government—as the noble Lord, Lord Butler of Brockwell, made clear, he thought, and supported—believe that those proposals are not the start, but the end. As my noble friend Lord Smith of Clifton said, that means that we in your Lordships' House will end up as the biggest quango of all.

I am aware that a large majority of Members of your Lordships' House, including my noble friend Lord Dahrendorf and a number of other noble friends, voted for a wholly-appointed House. Therefore, I should explain why I believe that election is so important. It is only the election of the political Members of your Lordships' House that can give it the strength to carry out its proper constitutional role. Expertise and distinction of appointed Members, however great, will not give us that strength.

What is the role of your Lordships' House? First, of course, as a revising Chamber, but revision is not just a matter of correcting errors and oversights; if the role is to be meaningful, we must be able to make amendments that are not wrecking but which are nevertheless substantial and sometimes controversial. When we have done that, we have been doing no more than our duty. We must have the strength to force the Government to negotiate.

However, your Lordships' House is also the guardian of last resort of the constitution. In the end, the House of Commons can have its way through the Parliament Acts, but the power of your Lordships' House to challenge and delay legislation that it believes to be unconstitutional is vital and part of the checks and balances of the constitution. That power is weakened if, as happened last week, the Government can rubbish us as an unelected House.

Of course, there are drawbacks to an elected House.

Photo of Lord Morgan Lord Morgan Labour

My Lords, I am sorry to interrupt the noble Lord, but he misrepresents the case. The power of the Lords is not confined to alleged constitutional laws; it applies to all laws—it could apply to fox hunting. His view is incorrectly stated.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, of course there is power to reject any Bill; I am describing what the proper role of your Lordships' House should be. It is plain that your Lordships' House has power to reject any Bill, as the constitution stands, but not as a matter of convention.

For a detailed examination of what is to be included in the Bill, we must wait until we can read it, but I shall make three points on what should or may be in it. First, political appointments should be directed to making membership proportionate to the share of votes at the previous election, not the share of seats. A House that was a clone of the House of Commons would be meaningless. When the noble Lord, Lord Graham of Edmonton, referred to an overwhelming majority, he was referring to a majority not of the vote but of the seats. The vagaries of the voting system meant that the Government have an overwhelming majority on the basis of 42 per cent of the national vote.

Secondly, there are strong arguments for giving appointed Members of your Lordships' House—political and non-political—appointments for terms of, perhaps, 15 years, rather than life. That would enable the House to be somewhat smaller and remove some of those who no longer play an effective part in your Lordships' House for reasons of health, boredom—in some cases—or want of expertise. That idea was supported by the right reverend Prelate the Bishop of Portsmouth and others.

Thirdly—this has not been mentioned but is important—although we welcome the creation of a right to resign membership of your Lordships' House, it is essential that Members should not be able to resign after a short time to stand for the House of Commons. That would mean allowing your Lordships' House to be used as a training college for the House of Commons, which would be a complete disaster.

Photo of Lord Elton Lord Elton Conservative

My Lords, would the noble Lord go further and say that no one should be able to use an early resignation to obtain preferment to a well-paid post under government subsidy?

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, it is difficult to envisage cases in which there would be an inconsistency between membership of your Lordships' House and taking up another post. If the noble Lord, Lord Elton, has an example in mind, I shall obviously consider it when we debate the Bill.

This is our first debate on issues that are likely to dominate this Session of your Lordships' House. No doubt many more such debates are to come. We have made our attitude to the House of Lords reform Bill clear: we will support it only if it is part of a process leading within a clear timescale to our objective of a mainly elected second Chamber.

With regret, I must say that we cannot support—although we will not vote against—the Conservative amendment, which seeks further discussion. We have not been short of talks in the past; more talks in themselves will lead nowhere. After a year as a member of the Joint Committee on House of Lords Reform, I see no prospect of its reaching a consensus or any remotely helpful conclusion. We have tabled our amendment to make clear that our objective is not more talks but election to the second Chamber. It is time to finish the unfinished business.

Photo of Lord Kingsland Lord Kingsland Conservative 9:30 pm, 2nd December 2003

My Lords, it is trite history that the post of the Lord Chancellor has lasted for more than 1,000 years; but it is worth reflecting for a moment on what that means.

It means that, for at least 1,000 years, each generation, in each year, has confirmed the value of the Lord Chancellor's role by retaining it, whatever the political weather. Through all the turbulent events following the Norman Conquest, through the great constitutional reforms of Henry II, the Wars of the Roses, the constitutional upheavals of the 17th century leading to the rule of law, the great Reform Act, universal suffrage, our signing of the European Convention on Human Rights and its enshrinement in our own law by the Human Rights Act, the constitutional role of the Lord Chancellor has been endorsed.

Then we come to the year 2003. What is it about this year that makes it so different from each of the previous thousand years? It appears to have started benignly enough. There was no leak from No. 10 that the Prime Minister got up in the morning and said, "Gosh, I am afraid that I will have to get rid of Derry's job because it contravenes the Human Rights Act".

Then, just over two months later, on 7th March, in a debate in your Lordships' House on ministerial and other salaries, the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, the noble Lord, Lord Macdonald of Tradeston, said:

"It has been suggested that by implication, the Human Rights Act might make it inappropriate for my noble and learned friend to continue to exercise any judicial functions".

He continued:

"the office of Lord Chancellor, straddling as it does the three parts of the constitution, makes its holder uniquely placed to protect the interests of each part against the demands of the others. In particular, it both upholds judicial independence and mediates between the executive and the judiciary when occasion for controversy arises".

The noble Lord went on:

"The Lord Chancellor is able to perform that function both because of his seniority in Cabinet and because he is head of the judiciary and sits as such from time to time. Through his office, the judiciary has a representative in the Cabinet. The Lord Chancellor is in a position to promote mutual understanding in order to avoid collisions at the major intersections in the separation of the powers".

He continued:

"It is of course important when the Lord Chancellor sits as a judge, it should not be in a case in which it would be inappropriate . . . It can be argued, of course, that whatever may have been appropriate in the past, the Human Rights Act now makes it unacceptable that the Lord Chancellor should continue to fulfil his multiple functions. The Government do not accept that. I would point out, first that the only jurisprudence on this subject from the European Court in Strasbourg, the McGonnell case, as mentioned by the noble Lord, Lord Lester of Herne Hill, emphasised that 'The question is always whether, in a given case, the requirements of the convention are met'. The court accepted the UK's contention that neither Article 6 nor any other provision of the convention required, 'states to comply with any theoretical constitutional concepts as such'".

The noble Lord concluded:

"It follows that the Government do not accept that the Human Rights Act 1998 causes us to review the role of the Lord Chancellor".—[Official Report, 7/3/03; cols. 1095-97.]

That speech was made on 7th March. Just over three months later, the role of the Lord Chancellor was purported by the Government to be abolished. All the reasons that they gave in the press release for its abolition flatly contradicted the statement made by the noble Lord, Lord Macdonald, some three months earlier.

One can speculate about why that might have been so. History has never had a great resonance for this Government. Indeed, there have been occasions when one might have thought that they endorsed the memorable statement made by Henry Ford in the early 1920s that "history is bunk". However, I believe that the reasons for the Government's change of heart about the role of the Lord Chancellor are more pernicious than even that statement.

It is well known that, for the year leading up to the events of the middle of June, there was a struggle in the Cabinet—some might say that it was a clash of the titans— between the Home Secretary and the noble and learned Lord the Lord Chancellor. As we all know, the noble and learned Lord lost, and the spoils of victory for the right honourable gentleman the Home Secretary were the removal of the Lord Chancellor from the Cabinet and the removal of all the Law Lords, together with the Master of the Rolls and the Lord Chief Justice, from your Lordships' House. That amounts to nothing less than a substantial weakening of the judicial arm of our constitution.

Make no mistake about it: this is not the same as the issue of judicial independence. Of course, it is vital that judges remain independent in their day-to-day work in the courts to decide cases and interpret the law, free from bias. However, the issue of the role of the judicial arm in our constitution, although related to independence, is quite distinct. It is about the ability of the Lord Chancellor in Cabinet and noble and learned Lords in your Lordships' House to tell the Government to think again when they are proposing to do something in a particular statute that will breach the rule of law.

The noble and learned Lord, Lord Howe, said in his splendid speech that he was always aware of the looming presence of the Lord Chancellor in the Cabinet. The noble and learned Lord, Lord Mackay of Clashfern, will remember, perhaps to his cost, the events of 1989 and 1990, when certain noble and learned Lords came down from the Strand to take a different view about some changes that he had proposed. How much easier it was for the noble and learned Lord, Lord Irvine, to achieve the objectives that the noble and learned Lord, Lord Mackay of Clashfern, had hoped but failed to achieve 10 years earlier, when the noble and learned Lords, Lord Bingham and Lord Woolf, came down and endorsed everything that the noble and learned Lord, Lord Irvine, wished to do in the Access to Justice Act 1999. That is the measure of the power of noble and learned Lords in your Lordships' House when your Lordships shape legislation.

The noble and learned Lord, Lord Rawlinson, spoke eloquently about the importance of having a senior member of the Cabinet who has nothing to hope and nothing to fear—because he or she has reached the pinnacle of professional ambitions and acts without fear or favour in the Cabinet. The Lord Chancellor may seek to give the same protection in his proposed constitutional arrangements, but he will have to mimic the role of Lord Chancellor in Cabinet. In that case, what is the point of making those changes in the first place?

I have one other reflection about the events of the middle of June. They have, at least in the Temple, quite transformed the image of the noble and learned Lord, Lord Irvine of Lairg. Once reviled for diminishing the power of the designated judges, introducing conditional fees and reducing the rate of legal aid, he is now spoken of in hushed tones of admiration. He is feted for his jurisprudential wisdom. The noble and learned Lord, Lord Irvine of Lairg, reminds me somewhat of that great couplet in "Antony and Cleopatra". It is said of Caesar's wife that,

"She's good, being gone;

The hand could pluck her back that shov'd her on".

My noble friend Lord Strathclyde spoke with great eloquence about the other matter that is before us today: reform of your Lordships' House. I shall add just that it seems to me that the motives for the Government's Bill on the reform of your Lordships' House are similar to their motives for their Bill on the abolition of the Lord Chancellor. Just as the Bill on the abolition of the Lord Chancellor seeks to strengthen the executive in relation to the judicial arm of the constitution, so the Government's Bill on House of Lords reform seeks to strengthen the executive arm in relation to the legislature.

Your Lordships' great problem is that the House has been too successful in scrutinising government legislation, so successful that many supporters of the Government have often failed to vote in support of government measures.

What has been the Government's response? It has been to say, as many of your Lordships have said today, how disgraceful it is that the undemocratic arm of the constitution should seek to hold up the business of the elected House. What hypocrisy.

The Government have no intention of democratising your Lordships' House. What do they intend to do instead? They intend to introduce a provision that makes the balance of power in your Lordships' House reflect exactly the balance of power in another place, thus making opposition to the government of the day almost impossible and making a mockery of the Parliament Act, which was so skilfully explained by the noble and learned Lord, Lord Donaldson of Lymington, this afternoon.

In any case, how can the Government enforce such a requirement? In no time, as one government succeeds another, your Lordships' House will double in size. The Government's provision on that matter is not only deeply disingenuous but ludicrous as well.

A good way of summing up both provisions would be to say that they are an unedifying combination of Shakespeare's "Julius Caesar" and Fred Karno's circus. They ought to be opposed.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 9:43 pm, 2nd December 2003

My Lords, it has been an important debate and an extraordinarily striking one, as far as concerns the position of the other side, the Conservatives. As my noble friend Lord Graham of Edmonton pointed out, they were in government for 18 years with an overall majority in this House. The essential complaint that has been made about our proposals for constitutional change is that they will weaken Parliament and strengthen the executive not just in relation to Parliament but in other ways. We must examine that central charge and see how powerful it is.

Just before I do that, I shall identify three other constitutional changes that this Government have produced that have been opposed by those on the other side. First, there is the independence of the Bank of England. At the time, the Conservative Party described it as an outrage and opposed the Bill. It was the de-politicisation of an institution that should be de-politicised. The Conservatives then opposed devolution to Scotland and Wales. The giving up of power by this place and by the executive in this country was, again, opposed. Thirdly, they opposed the Human Rights Act 1998. The Act places limitations on the way in which the executive can behave. The complaints that have, at the moment, been made about our constitutional reforms should be viewed with some scepticism, in the light of the previous misconduct of those on the other side.

Let us look at the two major items in the Queen's Speech that have been the subjects of criticism in the debate. I would submit that the theme of both of those proposals is one of the giving-up of power and the provision of proper independence for institutions which, for some considerable time, have required it.

First, I turn to the Constitutional Reform Bill covering the abolition of my office of Lord Chancellor. I should say straightaway that this office has been discharged with great distinction by the noble and learned Lord, Lord Mackay of Clashfern, and by my noble and learned friend Lord Irvine of Lairg. The distinction with which both noble and learned Lords discharged the office has perhaps disguised for a considerable time the difficulties of its existence.

What does the Lord Chancellor do? First, he is the head of the judiciary. That means that he can tell judges to go from one place to another; he can move judges around if, as would never occur under the current arrangements, they do not suit his purposes. What else can he do? He can appoint every single judge. But he is a judge whom, as time went on, judges did not want to sit with any more. The noble and learned Lord, Lord Steyn, has made it absolutely clear in a number of pronouncements outside the House that the idea of a Cabinet Minister sitting in the judicial House of Lords is no longer a sensible course. I am not sure that there are many lawyers and judges who disagree with the proposition that a head of the judiciary who sits in the Cabinet should not decide cases. That is a reform which has already been accepted. Should a Cabinet Minister be the head of the judiciary with the powers that I have described? In my view, clearly he should not. Again, that is an issue with which not many people now disagree.

Should the Lord Chancellor be the Speaker of this House as well? He has substantial roles in relation to the judiciary and, as the noble Lord, Lord Goodhart, pointed out so eloquently, he is moved from the positions of being a judge and a Speaker of this House to being a Minister in the Cabinet with billions of pounds of expenditure and tens of thousands of civil servants for whom he is responsible. My noble friend Lord Barnett asked what he is doing with all those billions of pounds and tens of thousands of civil servants. I shall tell noble Lords: he is responsible for, for example, the administration of the Court Service—the county courts, Crown Courts, High Courts and magistrates' courts. He is responsible for the dispensing of legal aid. He is responsible for human rights. He is responsible for freedom of information. He is responsible for data protection. I could go on and on. If he is responsible for all these matters, which he is, then it is right that he should, in discharging those functions, do so like any other politician; namely, by being responsible and accountable to the electorate.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, why has this changed in three months? If this was suddenly visible in July, why was a completely opposite answer given in March? None of what the noble and learned Lord has said suddenly appeared like a puff of magic mushrooms on the political scene between March and July 2003.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, we must judge the argument on its merits, and so far as concerns the merits of the argument, I believe that the case is overwhelming for moving forward. The public is entitled to a Minister discharging those responsibilities who is accountable in the ordinary way. The public is entitled to a situation in which the person who is the chief judge in England and Wales is no longer a politician and is instead a judge. The people are entitled to an arrangement where a member of the Cabinet cannot move judges around at will. That is wrong. The time has come for change.

I want to make one further point. The excellent Select Committee chaired by the noble and learned Lord, Lord Lloyd of Berwick, proposed that this House should have a Lords Speaker who should be paid at the same rate as a Cabinet Minister. He would sit in this House because he recognised the importance of the job. I thoroughly agree with that proposal. The idea that those three jobs—head of the judiciary, Speaker of the House of Lords and a Cabinet Minister with the responsibilities I outlined—can all be carried out by one person is, with great respect, entirely wrong and, in the interests of the country, we need to look forward.

I should address the important central issue of judicial independence, which has been protected extremely effectively by recent Lord Chancellors. It is worth pointing out that in the 1940s the then Prime Minister, who, according to the history books, did not like his Lord Chancellor very much, flipped him out of the Cabinet for a period of time. So the constitutional position of the Lord Chancellor within the Cabinet has varied from time to time.

But judicial independence is an absolutely vital part of our constitution. It is accepted by all as something on which our constitution depends. Should it be dealt with by a looming presence at the end of the Cabinet table? Is it utterly dependent on the personality of the Lord Chancellor at a particular time? Or has the time come for the importance of that independence to be enshrined in statute so that everyone can see how important it is and that it is there as a clear duty?

The noble and learned Lord, Lord Mackay, quite rightly asked about the enforcement of the duty and what form it would take. What is the current position in relation to the Lord Chancellor? We have a series of ill defined conventions of great importance. Yes, they have worked, but if they are put into statute there will be clarity and people will be able to see and understand that important part of our constitution. It will reflect what we all accept—that is, the importance of the independence of the judiciary, which must be protected in whatever arrangements we make.

The time has inevitably come for us to move on to the position that every other modern democracy has reached, with a Minister accountable as a Member of the Government and a judiciary utterly independent of the executive.

I noted with interest what the noble Earl, Lord Onslow, said about what Montesquieu meant by the separation of powers. I do not believe for one moment that any realistic constitutionalist has rejected the idea that the judiciary must be separate from the executive.

The establishment of a Supreme Court will be an important constitutional change. There are differing views on whether we should create a Supreme Court. The noble Lord, Lord Kingsland, in what appeared to be a flight of fantasy, said that the Law Lords were being removed from this House—if I understood his rather crazed account—as part of the reward for the Home Secretary in another place. That is complete nonsense.

Let me describe the argument in favour of a Supreme Court and quote the words of a current Law Lord in this respect. He said:

"The aim must be a Supreme Court independent of the other branches of government, in the framework of our existing system in which the supremacy of Parliament is the paramount principle of our constitution. Such a court would in the eyes of the public carry a badge of independence and neutrality: it would be a potent symbol of the allegiance of our country to the rule of law".

That is an extract from the Neill Lecture given on 1st March 2002 by the noble and learned Lord, Lord Steyn. There is absolutely no intention to undermine independence—far from it. The intention is to increase independence.

As regards the House of Lords reform Bill, the position has now been reached where the House has a choice. The argument advanced by the Conservatives is that the way to protect the independence of the House is not to allow the House of Lords reform Bill but to rely on the 92 hereditary Peers to ensure independence. I began my remarks in relation to the constitutional reform programme by saying that we were depoliticising the independence position and making sure that there was a proper separation between the executive, legislature and the judiciary.

The proposal that we make in the House of Lords reform Bill is that, instead of the Prime Minister being able at any stage to determine what the size of the House may be, or what the make-up may be between individual political parties, those matters will be determined by a body that is beyond politics. Those on the other side propose that we rely on the 92 hereditary Peers, plus a Prime Minister from any party at any stage, to be able to determine the size of the House.

Make your mind up as to which is a better protection for this House. Make your mind up as to what will lead to much greater independence for this House and much greater freedom from the depredations of the executive. At every stage, every aspect of our constitutional reform process is designed to create greater independence, greater depoliticisation and greater faith in the public that things will be run on a proper, clear and transparent basis, rather than on a political one.

With the greatest respect, I go back to the remarks of my noble friend Lord Graham. For a long time while they were in power, it was perfectly satisfactory for there to be a large Conservative majority. Not any more, because, as our proposals make clear, we have set out arrangements by which no one party will ever have a majority in this House again.

Photo of Lord Elton Lord Elton Conservative

My Lords, I may have misunderstood the noble and learned Lord, but he seems to suggest that our contention is that the 92 Peers should remain here in perpetuity as guarantees of independence. That is not at all what we are saying. We are here merely as a guarantee that phase two takes place, and some of us will be very glad to go when it has and are not prepared to go before it does.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, may I come to that? A most convenient situation has been reached for the Conservatives. They have an elegant and persuasive leader in the noble Lord, Lord Strathclyde, who is well able to persuade practically everyone in the whole world of his arguments, except, unfortunately, those sitting behind him, none of whom supports him. He, wringing his hands, tells us that nothing would give him greater pleasure than to support us in these measures, as long as we introduce an elected element.

Sitting behind the noble Lord, Lord Strathclyde, are noble Lords such as the noble Lord, Lord Waddington, who voted for an 80 per cent appointed House and for an all-appointed House in the course of our debates. I assume that he wanted an all-appointed House and, in default of that, an 80 per cent appointed House. Our proposals will involve a statutory appointments commission, making appointments offshore from the executive. They make arrangements for the removal of hereditaries—and the noble Lord, Lord Waddington, does not want to see hereditaries stay, in his long-term arrangements. I am sure that he would have issues about what precisely is done with the Bishops, for example, or precisely how long some noble Lords stayed. However, broadly, what is being proposed to make the House more stable is that which the noble Lord, Lord Waddington, voted for on 3rd February 2003.

The Conservatives are in the happy position of having a leader who says that the House must be elected, although he sadly cannot make any progress on that, while behind him large numbers of noble Lords are saying, "This is precisely what we want and we are outraged by it". It is very difficult to see that as a coherent position. It may well be that, as the noble Lord, Lord Elton, suggested, I misunderstood the Conservatives' position, but I believe that I could be forgiven for that in the context.

I apologise for taking so long over those two Bills, which are the two by which the House will, plainly, be most detained. We on our side of the House believe that the Bills are very important; we have a clear position on all of the Bills, which we intend to put before the House. I commend the Bills to the House.

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, the noble and learned Lord seems to have finished. However, he might answer one question that I posed to him. He has not answered any of the questions that I posed to him, so let him have a go at answering one. During the debate, it has been raised by many noble Lords from all sides of the House. There seems to be much division in his own party as to whether this is stage two or part of a process to get to a stage two. Will the noble and learned Lord give us the answer to that question? He must have done the thinking about it.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I think that we have made it clear. No consensus was reached. It was not possible to put forward a concluded—

A Noble Lord:

Answer the question.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

Excuse me, my Lords; I am answering the question. It was not possible to put forward a concluded consensus view. In those circumstances, these measures were taken to put the House on a stable and coherent basis.

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, in which case the answer to the question from the noble Lord, Lord Goodhart, is that there is no promise of further reform; and that no doubt will be noted.

This has been a long day and there have been some excellent speeches. The noble Lord, Lord Goodhart, said that this is the first time that we have been able to debate these issues since the noble and learned Lord the Lord Chancellor made his announcement on 18th September. It will not be the last. This has been a useful curtain-raiser to a Session whose hallmark will be these sorts of constitutional debates. The quality of the speeches no doubt will improve; so will the disagreement. However, one useful sign that we have received from the noble Baroness the Lord President and Leader of the House and the noble and learned Lord the Lord Chancellor is that they wish to turn their backs on consensus and on consultation. That is what my humble amendment calls for. I very much hope that the House will support it.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 188; Not-Contents, 108.

Division number 1 Private Parking: Ports and Trading Estates — Address in Reply to Her Majesty's Most Gracious Speech

Aye: 186 Members of the House of Lords

No: 106 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat Leader in the House of Lords 10:13 pm, 2nd December 2003

rose to move, as an amendment to the Motion for an humble Address, at the end of the Address to insert "but regrets the decision of Your Majesty's Government to propose changes to the House of Lords which repudiate their previous commitment to create a more democratic and more representative House; and calls on Your Majesty's Government to introduce legislation which, while ending hereditary membership of the House, will ensure a majority of Members of the House are democratically elected."

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat Leader in the House of Lords

My Lords, I want simply to say that the reforms mentioned by the noble and learned Lord the Lord Chancellor were largely inspired by the party on these Benches, and that we regard the argument that we presented for a democratic House of Lords as, with great respect, not having been responded to in any adequate way. I beg to move.

Moved, as an amendment to the Motion for an humble Address, at the end of the Address to insert "but regrets the decision of Your Majesty's Government to propose changes to the House of Lords which repudiate their previous commitment to create a more democratic and more representative House; and calls on Your Majesty's Government to introduce legislation which, while ending hereditary membership of the House, will ensure a majority of Members of the House are democratically elected."—(Baroness Williams of Crosby.)

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 36; Not-Contents, 141.

Division number 2 Private Parking: Ports and Trading Estates — Address in Reply to Her Majesty's Most Gracious Speech

Aye: 34 Members of the House of Lords

No: 139 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I beg to move that the debate be now adjourned until tomorrow.

Moved accordingly, and, on Question, Motion agreed to, and debate adjourned until tomorrow.

House adjourned at twenty-four minutes past ten o'clock.