Lord Wallace of Saltaire:

Moved by Lord Wallace of Saltaire

5: After Clause 1, insert the following new Clause—“Life peerages not to be conferred against recommendation of the House of Lords Appointments Commission(1) The Life Peerages Act 1958 is amended as follows.(2) In section 1 (power to confer life peerages), after subsection (1) insert—“(1A) The power under subsection (1) may not be exercised in relation to a person if the House of Lords Appointments Commission has written to the Prime Minister to recommend that a peerage should not be conferred on that person.””Member’s explanatory statementThis new Clause would prevent a life peerage being conferred on a person if the House of Lords Appointments Commission has recommended against the appointment.

My Lords, Amendment 5 is in the names of my noble friend Lord Newby, me and others. In preparing for this, I was also looking at preparation for Friday’s debate on a report from our Select Committee on the Constitution, Executive Oversight and Responsibility for the UK Constitution. That report in effect says that the chief responsibility for maintaining constitutional behaviour in Britain rests with the Prime Minister. That is to say the Prime Minister, who is the all-powerful Executive, is also responsible for making sure that the Executive behave themselves. That, of course, is one of the underlying problems with our unwritten constitution: it relies on our Head of Government being a “good chap”, or a “good chapess” in the case of Liz Truss. The responsibility, authority and power to appoint Members of the second Chamber also lie with the guardian of the constitution and Prime Minister, more or less unchecked.

The Written Statement we had the other week—quietly put out on the Government’s behalf—suggests that future party appointments to this House should require the party nominating them to provide a short note on the qualifications for the—

My Lords, I am sorry to interrupt the noble Lord but, just as a matter of accuracy, I think he is talking about the citations that are already in place and were used in the last list to come forward.

My apologies. The Prime Minister in future would have to justify overriding the House of Lords Appointments Commission. This perhaps is some control mechanism on the Prime Minister’s power of appointment, but we have lived through a difficult period in which we have had Prime Ministers who did not particularly pay attention to constitutional conventions and did override the advice on the integrity and suitability of nominations presented by the Prime Minister.

I think the long-term answer to this is clear: we change the way in which this House is constituted. The Bill we presented when we were in the coalition in 2011 and 2012 suggested that we would do much better to have a second Chamber elected in thirds for 15-year terms. That would resolve a lot of these problems, but in the meantime, with the very slow pace of partial reform that we have on these occasions, we need a number of interim measures to limit the Prime Minister’s prerogative and to guard against the real risk that we might again have a Prime Minister who is not a good chap or chapess.

Over the last 30 or 40 years the British have constructed a number of what are called constitutional guard-rails to limit the Prime Minister’s untrammelled prerogative power. We have the Committee on Standards in Public Life, the Independent Adviser on Ministers’ Interests and the House of Lords Appointments Commission itself. The Labour Party’s manifesto committed to construct a new ethics and integrity commission that will also be a means, yet undefined by the Government, of checking the Prime Minister’s untrammelled authority and holding the Prime Minister to account.

We are all painfully conscious that not all Prime Ministers or presidents respect constitutional or ethical constraints. We have experience in this country, the United States has an extremely painful experience at the moment, and we might again have the experience after the next election, so this interim measure seems to many of us necessary and highly desirable. I beg to move.

My Lords, I put my name to Amendments 5 and 6. I very much support enhancing the powers of HOLAC, largely for the reasons explained by the noble Lord. Too many appointments made by previous Prime Ministers have been of people who I rather doubt were in any sense appropriate. That, I am afraid, has happened on too many occasions.

In Committee I tabled an Amendment which did not find favour with my noble friend Lord Howard of Lympne. It would have required HOLAC to state its reasons for not approving an individual and allowed that individual the opportunity to make representations. I did that because I was very conscious that injustices can happen, and I think natural justice requires some form of remedy. My noble friend argued very persuasively, as he always does, that this would open up the prospect of judicial review. I am bound to say that I think he was unduly pessimistic; I do not agree with him. But I took the sense of the House, and I have not repeated that part of my amendment.

I come to Amendment 6. I am very grateful to my noble friend Lord Dundee. Here we are dealing with a fundamental question. HOLAC should carry out a fit and proper person test and should assess the propriety of appointing somebody. Furthermore, it should carry out a test as to that person’s likelihood of attending and participating. That is the first part of the amendment to which we have both put our name. I commend it to your Lordships’ House.

Is my noble friend not aware—I speak as a former member of HOLAC—that it does indeed subject any applicant for membership of your Lordships’ House to quite stringent questioning on the extent of the commitment they are likely to make to the House and the attendance they are likely to give to the considerations which take place within the House, and that that represents one of the key factors in HOLAC’s decision-making process?

I think we are in agreement. What I am in favour of is putting this in a statutory frame. I do not doubt that it is done in a discretionary manner, but I would like it to be statutory. I think it is a very slight difference between us, and I hope we will not fall out on the matter.

My second point—I feel sure that I will not have the agreement of the front bench here—I make as a permanent, paid-up member of the awkward squad, and it relates to the oath. It has been a long time since I took the oath of a privy counsellor. I did not take away a copy and I am not quite sure what it said. But I have been on the internet to have a careful look. What it actually says is that, when members of the Privy Council have a clear and informed view, they should vote and speak accordingly. I actually believe that is the duty of your Lordships—all of us. It certainly seems to be the duty of members of the Privy Council.

There are many matters—I now speak personally—on which I do not have a formed or an informed opinion. I like to think that they are the same. In respect of those matters, I am quite happy to take the guidance of the Front Bench. But then I ask myself: what is one’s duty when one has a formed and informed view? I think it is quite plain; it is to vote in accordance with one’s conscience and opinion. We are not echo chambers. This is not an echo chamber. We are not part of a chorus line; we are here to express an unfettered view in accordance with our settled opinion. I would like Members of the House to take an oath to that effect before they sit in this place. So when a member of the Whips’ Office comes along and says, “We want you to vote”, you would simply say, “My dear, I simply don’t agree with you and, what is more, I have sworn an oath that I will speak in accordance with my conscience”. That would be conclusive of the matter.

My Lords, I rise to speak to Amendment 19, in my sole name, which proposes the replenishment of the Cross Benches following the departure of the hereditary Peers with 20 appointments over five years via HOLAC, the House of Lords Appointments Commission, which is chaired so ably by the noble Baroness, Lady Deech.

Currently, there are 32 hereditary Peers sitting on the Cross Benches of your Lordships’ House—an increase in the years since I joined, when I believe there were 28 hereditary Cross-Benchers. No group will be greater impacted by the impending removal of the hereditary presence. Unlike other groupings within the House, the Cross Benches do not speak with a single voice, despite being so ably convened by the noble Earl, Lord Kinnoull, and his illustrious predecessors, nor do we have any political or parliamentary machinery with which to lobby for replacements to ensure the relative proportion of the Cross Benches remains consistent after the passage of the Bill.

Contemporary political scientists and commentators —and, after this afternoon’s debate, I think the Majority of your Lordships—consider that the expert, independent and ameliorating presence of the Cross Benches in this House is an essential element of its good legislative function. The Cross Benches provide considerable subject matter expertise not found on the more political Benches and tend to carry an apolitical casting vote that acts as a dampener to the political noise that emanates from the other place and is echoed here through the party-political Benches. We mess with that tempering role at our peril. I would ask the Minister to explain clearly in her closing speech how the Government propose to ensure that the Cross Benches of your Lordships’ House will not be diminished as a result of this legislation.

Your Lordships may recall that we debated this in Committee with Amendment 51, to which the noble Lord, Lord Anderson of Ipswich, and the noble Earl, Lord Dundee, added their names. The noble Lord, Lord Anderson, apologises that he cannot be here today, but he reiterated his support when we spoke this morning. He previously noted the importance of HOLAC and the people’s Peers process as a means of admitting distinguished and apolitical expertise to your Lordships’ House. The angels of HOLAC would not gain access by any other means. Think of the contributions of the noble Baronesses, Lady Grey-Thompson, Lady Lane- Fox, Lady Bull, Lady Watkins and the indefatigable Lady Kidron—the champion of our creative industries. Think of the tireless work of many noble Lords, including the noble Lords, Lord Krebs, Lord Pannick, Lord Patel, Lord Currie and Lord Adebowale. None would have been here but for HOLAC.

Amendment 19 would ensure that your Lordships’ House continues to benefit from this HOLAC appointments process, which is particularly important given the dramatic decrease in the number of HOLAC appointments in recent years. To reiterate the numbers referenced in Committee, there were 57 appointments during HOLAC’s first 10 years between 2000 and 2010. Since then, there have been only a further 19 appointments, with six since 2018.

As a former member of HOLAC, I wonder if I might intervene briefly. In the term in which I served on HOLAC, we would have liked to have introduced two or three Cross-Bench Peers a year, which had normally been the case. I am afraid that we were prevented from doing so by the Prime Minister of the day.

That is very helpful, because I was going to propose a possible number. As I was saying: in other words, from initially making nearly six HOLAC appointments a year, we now have only one such appointment annually.

Despite having a non-partisan, highly qualified appointments commission, we are simply not making use of it. Given that this Government are determined to honour the constitutional commitments of the Blair years with the Bill’s passage and the final abolition of the hereditary peerage, should they not also honour the Blair Government’s connected commitment to HOLAC and permit the replenishment of the Cross Benches in the way proposed by Amendment 19, which would ensure a modest appointment rate of perhaps four people’s Peers per annum?

As I have previously noted, I do not think that hereditary Peers should be converted into life Peers in any significant number. Amendment 9 should not pass. This is because our particular demographic will remain well overrepresented among the remaining Members of your Lordships’ House. I do not therefore see Amendment 19 as a route for abolished hereditaries to return to these seats, albeit that they would be welcome to apply with anybody else as common citizens. Rather, we should take advantage of the removal of the hereditary presence to increase the diversity of our membership and bring a broader array of expertise and opinion to bear upon your Lordships’ legislative efforts.

As I understood it—and as mentioned earlier—one of the main reasons for retaining a rump of hereditaries back in 1999 was that it would encourage the further reform of this House, leaving it better, not worse, as a legislative body. I am concerned that the Bill, as currently drafted, removes a group of largely independent-minded Members and increases the proportion of Members that are politically motivated. Amendment 19 would reverse that and replenish the House with a group of non-partisan and technically expert Members. It also has the benefit of diluting, if only a little, the relative increase in prime ministerial patronage that will result from the loss of hereditary Peers, which must surely be a good thing.

On that basis, I recommend it to your Lordships and look forward to hearing from the Minister why it cannot be adopted to support the continued and essential vibrancy of our Cross Benches.

My Lords, in this grouping I support Amendment 6, proposed by my noble friend Lord Hailsham.

Your Lordships will agree that the membership composition of a reformed House must sustain and continue the high legislative scrutiny standard of the present House—and thus, conversely, that future membership composition should be designed to serve this priority aim.

If, within the temporal membership of a reformed House of 600, the political numbers were to be 450, the non-political representation appointed by HOLAC would then be 150 Cross-Bench Peers.

As a result, within that total of 600, respective proportions could then become: the government and Opposition parties at 175 political Members each; next, the independent non-political Cross-Benchers at 150; and, next, all other political parties at 100.

These respective proportions would then provide a good balance for sustaining and continuing our present high standard of legislative scrutiny.

However, regarding life peerages conferred on independent non-political Cross-Bench life Peers within a reformed House—and as my noble friend Lord Hailsham emphasises—in the first place it must be HOLAC and not the Prime Minister of the day who recommends these appointments to the King.

My Lords, I intervened in Committee to explain why I could not support Amendments 5 and 6. I will repeat my argument briefly now. These two amendments would put the committee, HOLAC, into a position where it overruled the Prime Minister. In one case, the Prime Minister could make appointments to the House of Lords only on the advice of HOLAC:

“No recommendation may be made to His Majesty to confer a life peerage except by the House of Lords Appointments Commission”.

So HOLAC would make the recommendation. In the other case, the Prime Minister could be prevented from conferring a peerage on the recommendation of the appointments commission. Both these cases would mean that the Prime Minister was entirely constrained by this advisory committee.

My argument is that the Prime Minister’s powers should not be constrained by a non-elected committee of people, however distinguished. The noble Lord, Lord Wallace, referred to other committees that constrain the power of the Prime Minister, but they are crucially different because they are simply advisory. In this case, what is being proposed is committees that would enforce their decision on the Prime Minister. In the case of non-elected people, that is wrong. If Parliament were constraining the power of the Prime Minister, either to appoint or not to appoint, that would be acceptable. It is not acceptable that a non-elected committee, however distinguished, should do so.

My Lords, it is a great privilege to follow the noble Lord, Lord Butler. Like him, I have a similar view that the House of Lords Appointments Commission should not be able to constrain the powers of the Prime Minister. Our system of appointment may not be perfect, but it does at least have some semblance of accountability, in that the person who is responsible ultimately is directly elected.

However, although I would therefore not support any Amendment that gave greater powers to HOLAC, that does not mean that we should pay no attention to what a Prime Minister does, or that we should not seek clarification about what he intends. So I was intrigued by the Prime Minister’s Written Ministerial Statement of only last month—19 June—setting out the roles and responsibilities of all parties in making nominations to this House, and especially by what he had to say about his and HOLAC’s roles in relation to the Cross Benches.

In his Statement, the Prime Minister reminds us that HOLAC determines the suitability as well as the propriety of any Cross-Bench Peer it nominates to him for recommendation to the King. As I think other noble Lords have said, but I will add for clarification, I personally would not want HOLAC to have a role in considering the suitability of nominations from any political leader to the political ranks. The Prime Minister also says in his Statement:

“I will continue to recommend directly for appointment a limited number of candidates to sit as Crossbench peers … These nominations will … be vetted for propriety by the House of Lords Appointments Commission”.—[Official Report, Commons, 19/6/25; cols. 26-27WS.]

The Prime Minister is making it clear that, for any peerage that he nominates straight to the Cross Benches, HOLAC’s role is only to look at the propriety of such nominations, which I think is quite interesting.

Bearing in mind that the Cross Benches are not meant to be partisan, nor in any way obliged to any Prime Minister and that, as we have already discussed this evening, the Cross Benches are about to lose a significant number from their ranks, and the noble Baroness the Leader of the House is concerned about balance, I want to take this opportunity to ask some questions. I do not expect the noble Baroness to signal now how many new Cross-Bench Peers she expects the Prime Minister to create over this Parliament, but it would be helpful to get some sense of where she envisages the split to be between the number of Cross-Benchers nominated via the HOLAC process and the number of nominations she expects the Prime Minister to make directly.

I note the noble Earl’s amendment with his proposal for a specific number. Of course, my noble friend has already said that, in previous times, Prime Ministers had limited the number of Cross-Bench peerages that HOLAC could create. I think that I am right in saying that HOLAC has yet to appoint any new Cross-Bench Peer this year but, in the past few weeks alone, the Prime Minister has appointed four Cross-Bench Peers. I therefore ask the noble Baroness the Leader: what are her views about the risk of, in effect, two-tier Cross-Bench Peers? We have those who are judged on their suitability versus those who are not. Can she confirm—if I have understood the Prime Minister’s Statement correctly—that the Prime Minister could ignore any HOLAC concerns about the suitability of a Peer who he nominates directly to the Cross Benches and that, to go back to my original concern, we could therefore have directly appointed Cross-Bench Peers who are supposedly not obliged in any way to the Prime Minister, who HOLAC may have thought to be potentially not suitable, if they had come through its processes, but the Prime Minister could decide that they are suitable and appoint them directly? I would be grateful for her views on that.

My Lords, it is a pleasure to follow my noble friend Lady Stowell of Beeston, who has asked some pertinent questions about a topic that also caught my eye. Since this Bill was in Committee, there have been two significant developments in terms of the Cross Benches. As my noble friend has just alluded to, there was, on 17 June, a list of four nominations to the Cross Benches. They are four very eminent people: Sir Tim Barrow, Dr Simon Case, Dame Katherine Grainger and Dame Sharon White; we look forward to welcoming them all to the House and the work that they will do. The announcement of their peerages was accompanied by short citations; I have previously paid tribute to the Government for introducing those citations, as they are very helpful. They set out the great distinctions that people have had in their careers and the expertise they will bring to your Lordships’ House. It was not made clear, however, whether these four worthy people were nominated by the House of Lords Appointments Commission or directly by the Prime Minister.

There was a doctrine in the 1990s, under Sir Tony Blair—he wrote a Written Ministerial Statement to Parliament outlining it—that he would nominate a small number of distinguished people who, for reasons of their former career, were understandably not suitable to be partisan Peers, directly to the Cross Benches. At the time he set that out, he said it would be around 10 people per Parliament: they were known in Whitehall as the “Cross-Bench exemptions”. Are the four people nominated on 17 June Cross-Bench exemptions nominated by the Prime Minister, or were some of them nominated by the House of Lords Appointments Commission? Was my noble friend Lady Stowell correct just now that the House of Lords Appointments Commission has yet to make recommendations for the Cross-Bench Peers that it suggests, quite separately from the Prime Minister of the day?

Like my noble friend Lady Stowell, I was interested in the Written Ministerial Statement that the Prime Minister made to Parliament on 19 June, as well as in the questions that she asked about HOLAC’s role in assessing suitability. The Prime Minister said in that Statement of 19 June:

“The Commission can decline to support a nomination on propriety grounds and will inform the relevant political party if this is the case. It is a matter for the Prime Minister to decide whether to recommend an individual to the Sovereign”— echoing the point made by the noble Lord, Lord Butler of Brockwell. He went on:

“In the unlikely event I, as Prime Minister, were to proceed with a nomination against HOLAC’s advice on propriety I would write to the Commission and this letter would be published on gov.uk”.

That happened under previous Prime Ministers. The current Prime Minister, the noble Baroness and others were extremely critical of that. Is it the case, as the Prime Minister has said to Parliament, unlikely though he says it will be, that he now agrees he may need to exercise that judgment, to disagree with HOLAC and to appoint people to your Lordships’ House against its recommendations on propriety? I would be grateful if the noble Baroness could clarify that.

My Lords, again I feel that I am slightly swimming against the tide in opposing this Amendment, which seems to me rooted in the outlook that I think of as “good chappery”— I am borrowing the nomenclature of the noble Lord, Lord Wallace, in introducing it. It is the idea that when you are appointed to a public body, in some presumably painful operation, your opinion glands are cauterised and you suddenly become a wise, disinterested, neutral person who is uniquely capable of raising your eyes above the partisan scrum and descrying the true national interest.

The noble Lord, Lord Wallace, asked, “What if the Prime Minister isn’t a good chap or a good chapess?”, the implication being that, if you are appointed to HOLAC, you must by definition have these virtues. But who appoints you to HOLAC? How is it that you suddenly, by virtue of getting there, drop all your assumptions and prejudices and become this kind of idealised platonic guardian? I have to say that it is a doctrine that has debilitated and delegitimised successive Governments, because it has widened the gap between government and governed.

I called it “good chappery”, but actually a more accurate word would be oligarchy: it is a way of taking a group of people and putting them in a privileged position. It is an oligarchy based now not on birth so much as on outlook. How many HOLAC nominees, for example, would have voted with the Majority in the 2016 referendum, just to take the one thing where we actually have an exact measure of how the country at large felt about one specific issue?

The idea that we can, in making these changes to the composition of this House, in effect narrow the way of coming here, put in another filter, strain the nomination through some sort of handkerchief of good chappery, strikes me as utterly inconsistent with the times and almost certainly unacceptable to public opinion. It is also, by the way, very much at odds with the previous amendment from the noble Lord, Lord Newby. I was one of the small number who supported it. It is one of those funny things where everyone spoke in favour of it and then everyone voted against it. It was rather like the Holocaust education centre thing: all the speeches were one way; all the votes were the other way.

Not all the speeches.

Not all the speeches, no: my noble friend Lord Howard was indeed one who spoke in favour of the education centre.

It seems to me that, once we start making these changes, the pressure is going to be for widening rather than narrowing the route by which people come here. In other words, there will be more pressure for some kind of direct representation, some democratic element.

I put it to those noble Lords—I suspect the Majority on both Benches—who do not want a democratic Chamber that their best tactic was just to lie low and do absolutely nothing and allow this House, in the words of the Gilbert and Sullivan song, to do nothing in particular and do it very well. Once you open the issue of the composition and function of this Chamber, you invite the public into a conversation which I can guarantee will not end with a consensus around putting more power in the hands of some appointed committee rather than an elected Government.

To go back to something that my noble friend Lord Strathclyde said in a previous group, there is a very strong case—now that we have decided to open the issue and change our composition by removing our remaining hereditary colleagues, in my view mistakenly—for having a royal commission and looking in a measured and judicious way at how this Chamber can be made more democratically accountable. If we do not do so in a timely and temperate spirit, it is very likely that a future Government will make changes that the majority of noble Lords gathered here would not like and they would do so in a spirit of frustration, having been defeated on some measure. They would lash out in anger and legislate in haste.

My Lords, I support my noble friends on the front bench in Amendment 5, to which I have added my name. I say in passing to the noble Lord, Lord Hannan, that the theory of good chaps in government was a wonderful theory of the noble Lord, Lord Hennessy, whom we do not see now as much as we used to, which depends on the fact that we all actually like to do the right thing. Unfortunately, as I think he said, we have discovered that we do not always do the right thing.

I support my noble friend on the Front Bench exactly because some check and balance on probity is required. The desire for probity in public life has been there as long as people have been in public life, but the desire to codify it began with the cash for questions scandal. It has grown over the years and today we have the Committee on Standards in Public Life and the Seven Principles of Public Life. If you stand for and are appointed to a public body, as I was in Scotland, you are required to indicate that you know what these are and agree to uphold them.

My noble friend’s amendment simply ensures that, where HOLAC has made a recommendation to the Prime Minister by informing him that it does not think someone has that required probity, the Prime Minister should not make the appointment. In this I rather disagree with the noble Lord, Lord Butler of Brockwell, although I have the greatest respect for him. Under his argument, if a Prime Minister decides that the ultimate rogue on the planet should get a life peerage, he should get it. I disagree fundamentally with that. There should be a check and balance.

I regard this amendment as a negative rather than an affirmative instrument. The other amendments are more affirmative instruments, which I disagree with. Under this amendment, the Prime Minister puts forward a name and HOLAC looks at it—I think, generally, we can accept that they are people of good will, as good as we get in terms of neutrality in this House—says whether there is a fairly major problem and advises the Prime Minister of it. The idea that HOLAC is overridden on the person it has considered—Lord knows what they might have done; they could have fiddled their taxes or done all sorts of things—and the Prime Minister goes ahead is wrong.

This happens already. The Honours Committee receives nominations and goes through the probity. If the person it looks at is not thought, for whatever reason, to be fit, the recommendation does not go forward. This is very much in that vein. I will happily support my noble friend in his amendment because it is a simple, small buttress for probity in public life.

My Lords, I oppose Amendments 5, 6 and 31. Noble Lords will probably realise that we are reprising the very excellent debate we had on 14 March about my noble friend Lord Norton of Louth’s Private Member’s Bill, which essentially sought to put HOLAC on a statutory footing.

This debate prompts us to address Tony Benn’s five questions about power, because this debate is about power and putting Members into the upper House of the UK legislature, and it is a very important issue. His five questions are: what power have you got? Where did you get it from? In whose interest do you exercise it? To whom are you accountable? How can we get rid of you? In some respects, these questions are unanswerable, because the effect of the amendments is to put HOLAC on a statutory footing. I believe that would embed semi-permanently an already closed and opaque system of appointment.

It will result in the establishment of an unaccountable, undemocratic and self-perpetuating body whose members share the same liberal, metropolitan viewpoint and hostility to those who take a contrary opinion. It will weaken the reputation and legitimacy of this House and, more fundamentally, undermine the Prime Minister and his long-established constitutional prerogative to appoint Peers on a case-by-case basis in an open system that guarantees accountability to Parliament, to his or her constituents, to the media and to others. HOLAC adjudicating on propriety is of course not ignoble and it is the right thing, but “suitability” is a step too far.

The Amendment also continues the regrettable trend of the accretion of power and decision-making away from elected politicians and towards quangos and non-departmental public bodies—and more recently, inter alia, an activist judiciary. It is predicated on the idea that HOLAC is a model of success—but is it? Although noble Lords appointed by HOLAC are of course noted for their knowledge, skills, experience and wisdom, they would inevitably be drawn from a narrow educational, social, political, economic and demographic cohort. Will we see more working-class men from Yorkshire, Scotland, Cumbria or the east Midlands? Will see more young women, people from south Wales or disabled people? I doubt it. As my noble friend Lord Hannan rightly says, it is a myth that any public body can be truly independent and impartial. Every sentient thinking person is subject to predisposition, prejudice and assumption.

I come back to the point made by the noble Lord, Lord Wallace of Saltaire, about the “good chaps” theory that has been mentioned. The noble Viscount, Lord Thurso, is right that it was articulated very clearly by the noble Lord, Lord Hennessy. However, that was about convention and historical precedent. It was never about bringing forward heavy-handed legislation but about relying instead on convention.

We all know that to a certain extent—I know my noble friend Lord Norton disagrees with this—this amendment arguably arises from one hard case under the premiership of Boris Johnson as Prime Minister in 2020. That is regrettable because, as we know, hard cases are likely to make very bad law.

The Bill is sui generis. To add to it a bauble of formalising HOLAC’s statutory role is inappropriate and wrong.

My Lords, it may be worth thinking about where this power for the Prime Minister to appoint Lords came from—I am thinking of the comments of the noble Lord, Lord Butler. It derives from the fact that King John had his power to raise taxes taken away from him by the Magna Carta. He was left with the right to appoint Peers—to create Lords—to wage war and to write and sign treaties. Since then, the waging war and treaties have recently come under greater scrutiny. There are problems with that, and Parliament is certainly facing them at the moment in the treaties being written.

The one thing that no one seems to be questioning is that the Prime Minister has the right to advise the King, and constitutionally the King does not refuse the Prime Minister—because that is unconstitutional. Therefore, the Prime Minister has the ancient monarchical power to create Peers. If we think that this power is still right 800 or so years later, that is fine, but we should maybe be thinking, as our predecessors did all those centuries ago, about circumscribing this right and having more control over the unfettered power of the Prime Minister, who is also the head of the Civil Service—and the judiciary, which is now a Civil Service department, the Ministry of Justice—and the leader of the Majority party in the House of Commons. I do not really like him having control over everything.

My Lords, I have long thought that the problem with the Bill is that we all become rather high-handed in talking about the hereditary Peers, as though they are the epitome of anti-democracy in this House. To be honest, we have all been appointed; none of us was elected. Therefore, it seems to me that this is a way of feeling good about ourselves by looking down on the hereditaries, when in fact none of us has a legitimate right to be here.

That to one side, I had a lot of regard for the spirit of the previous Amendment from the noble Lord, Lord Newby, looking for a democratic way of electing a second Chamber. The spirit of that, at least, was that the demos—the people—should decide, and I regarded that well. Yet the lead amendment in this group, in the name of the noble Lord, Lord Newby, seems to epitomise the opposite of that last amendment, because it is all about anti-democracy. It would give the ultimate power to an unelected committee answerable to no one. The noble Lord, Lord Butler of Brockwell, explained that very well, and there have been follow-on speeches expanding on it.

In moving the amendment, the noble Lord, Lord Wallace, asked us to imagine that the Prime Minister—or indeed president, as he said—may not be a good chap or chapess. I wondered who would decide who and what is good. Would it be HOLAC, or the noble Lord, Lord Wallace? It is possible that he and I would not agree. The whole tone was that constitutional guard-rails would be set up by those who know better, who are more ethical or more virtuous, just in case the voters voted in the wrong way and voted in a wrong ’un. We all know that this is a nod to having a go at the previous Prime Minister, Boris Johnson, and that it is about President Trump, not President Biden. It has a partisan feel to it.

When it comes to legislation, I am very worried about how many Henry VIII powers are being used at present and about the number of statutory instruments contained in Bills. I argued that when they were put forward by the Conservative Government and agreed with many people in the Labour Party in Opposition about that anti-democratic trend. I am sad to see that with Labour in government, there are even more Henry VIII powers and statutory instruments. In other words, we should be worried by an anti-democratic trend that we are witnessing. If we have to have a second Chamber, the Lords, and if we are going to appoint people, at least let us retain the notion that the Prime Minister—who has a democratic mandate—should be the person who decides, rather than an unelected committee.

As a note on the virtues of unelected expert committees, I am absolutely fine with them being advisory but not in charge. This morning, in relation to a discussion on the infamous door that has cost a fortune and does not work, and on that ugly fence that is an anti-social insult and looks like a barrier between this House and the public, we heard that it was all agreed by a very worthy committee. None of us even knew it was happening, because it was unanswerable. At the end of that discussion, I still could not work out who had made the decision. It was even more opaque than a Prime Minister deciding on who gets in this House. In other words, having a committee does not make it okay.

Finally, I will speak in favour of being partisan and taking sides. I am all for the virtues of the Cross Benches, but something seems to be wrong about the notion that the Cross Benches are full of the great and the good, who are experts, and that somehow they are superior to anyone who has an opinion, a passion or a principle, because they know more than the rest of us. I appreciate that I never joined the Cross Benches—somehow I did not get invited.

Noble Lords:

Oh!

I am just pointing it out.

They are apparently independent, but not that independent. There is a group of us who are sort of maverick; we are called non-affiliated—God knows what it means. It is very important that we defend the right to be political, to be partisan and to say, “I’m not an expert, but I absolutely believe in this”. If we are to exist in here at all, can we at least have some purpose beyond saying how many PhDs we have or how many charities we run?

The great and the good are great and good, but the writing of Laws in this country—being legislators and being political—is not just about that. I am as frustrated as anyone about the way that party politics—the whipping process and so on—can damage political independence and courage on all sides of this House. We have witnessed it tonight and we have witnessed it in the other place over the last few days. That annoys me, because I want people to believe in something. On the other hand, the danger of saying that we are a House of experts, and that we will now have an expert HOLAC group that will decide on how many more experts it will bring in, is that we are kicking politics out of what should be an absolutely political place.

My Lords, I will not delay the House long. Many years ago, under a Conservative Government, I advocated that Nigel Farage should become a Member of your Lordships’ House. If we had recognised the role that he played in taking Britain out of the EU, people would have said that he does represent the Majority in this country.

At the time, he was polling quite significantly—which is more than one could say for most Cross-Benchers in this House—and he was a very significant political player, whether you agreed with him or not. Neither of the political parties was going to nominate him, so it would have taken the Cross-Benchers to make him an offer to join them. At that time he might well have done so, because he thought he had finished his political career by taking us out of the EU, and he would have had a very valuable role to play in your Lordships’ House.

Think how different things would be today. It does not follow that he could not have led Reform from your Lordships’ House, but I suspect that it would have been rather more difficult. We would have been in a very different position today if he were a Member of your Lordships’ House. When we think about how representative our House is of British public opinion, we have to bear in mind that there are serious players out there who are not represented here, and I believe that they should be.

My Lords, while we are all pondering what might have been, I will just say that I agree, to an extent, with the noble Lords, Lord Jackson and Lord Hannan. Something that worries me about HOLAC, or any kind of body like it, is that the establishment appoints itself, which risks losing diversity.

On the other hand, I think we are trying to let perfect be the enemy of good. Surely we need a body to look at the propriety of the people proposed to this Chamber. The one point that I think is essential—and on which I completely agree with the noble Lord, Lord Butler—is that HOLAC should not have a veto on what the Prime Minister can do. We have to accept that we are dealing with human beings, and sometimes we may have a Prime Minister who makes erratic choices. The key thing is that they have to justify those choices, not that they are prevented from making them.

The noble Viscount, Lord Hailsham, described pretty much what is like to be a Cross-Bencher: without having to take an additional oath, you just speak your mind and vote with your conscience. I will let him ponder that one.

Finally, I am not quite sure how any of this relates to the Bill, but perhaps I am being too narrow in my thinking.

My Lords, I rise briefly and with some trepidation as somebody who came through the HOLAC process. Although I might have become part of the establishment, I did not start as that. I definitely came from a working-class family and I definitely came from the Midlands.

I agree with the noble Lord, Lord Jackson, and others about the importance of increasing the diversity of the House because of the importance of having diverse views within the House. I worry that the combined effect of our procedures and allowances system will always mean that it is very difficult to have people who have not become a little bit like us.

Look at the time we are working. If I had caring responsibilities and lived in a rural part of the country without a good train service, I would not be able to get home. Even with the generous increase in the allowances, I probably would not be able to afford accommodation in London. In the next stage of thinking about how we increase the diversity of the House, not just the way we look and the places we come from but our socioeconomic diversity—and disability, as the noble Lord says—we will need to think very seriously about what participation means.

We have been and will be talking on other amendments about attendance and criteria of participation and that this will mean that people who have other responsibilities cannot be here. As I said on the Bill of the noble Lord, Lord Norton of Louth, we have a wonderful comprehensive school teacher who contributes, but he lives in Hackney. If he lived in Middlesbrough or Burnley, it would be a bit more difficult for him to be here. We need to think about intersectionality when we think about diversity, and that will mean thinking very hard about our procedures and systems in a way that we have not done before.

My Lords, I spoke extensively about HOLAC in Committee, and noble Lords will probably all be grateful that I do not intend to repeat all I said.

I know that there are many different views across this House on HOLAC, but I think we can all agree that we want a House that serves with integrity and commands public trust. HOLAC provides a non-statutory safeguard within the process for appointments to your Lordships’ House, and its recommendations are currently advisory and do not bind a Prime Minister.

Amendments 5 and 31 in the name of the noble Lord, Lord Newby, seek to prevent life peerages being conferred when HOLAC recommends against their appointment. Amendment 6 in the name of my noble friend Lord Hailsham proposes that HOLAC, in place of the Prime Minister, should propose peerages and any recipient should be fit and proper as well as committed to participating in your Lordships’ House. The effect of these amendments would place the power of nomination to this unelected Chamber in the hands of HOLAC—an unelected quango.

As the noble Lord, Lord Butler, reminded the House, and this was reinforced by many of my noble friends this evening, HOLAC was created as an advisory committee; it was created to advise, not to dictate. To make its recommendations binding would fundamentally change its remit and transform it from being a source of counsel to being a gatekeeper for your Lordships’ House. That would be a profound constitutional shift.

The power to recommend appointments to His Majesty should rest where it does now: with the democratically elected Prime Minister, who is accountable to the people. I am glad that the present Prime Minister, who was very critical of former Prime Ministers who ignored the views of HOLAC, has now said that he might, now that he is in power, do the same. My noble friend Lord Parkinson has already quoted from the Written Ministerial Statement, but it is worth saying again:

“In the unlikely event I, as Prime Minister, were to proceed with a nomination against HOLAC’s advice on propriety I would write to the Commission and this letter would be published on gov.uk”.

As a slight digression, I am grateful to my noble friends Lady Stowell and Lord Parkinson for bringing the attention of the House to the Prime Minister’s words on the directly appointed Cross-Bench peerages that were referred to in the same Written Ministerial Statement. My noble friend Lord Parkinson reinforced the concerns and referred to the Statement from the former Prime Minister, Tony Blair. I remember this Statement because I had to dig it up when we were trying to work out how the Prime Minister made Cross-Bench peerages. At the time, these Cross-Bench peerages were limited to 10 per parliamentary Session or per parliamentary term.

Noble Lords:

Per Parliament.

I thank your Lordships. So there were to be only 10 of them per Parliament, and they were meant to be for public service; I think they were meant to allow Cabinet Secretaries to be appointed here—which is marvellous, of course—and various others. But there has been a slight change in approach, and I would be very interested in the Minister’s views, following the comments of my noble friend Lady Stowell, on this idea that there might be a two-tier Cross-Bench peerage process: those that HOLAC judges suitable versus those that the PM judges suitable. It is interesting, because this raises a new question of what the criteria for suitability are, if these appointments are supposed to be non-partisan. The more Peers the Prime Minister appoints to the Cross Bench, the more he risks potentially undermining the status of that section of the House. I think that is worth bringing to the attention of the House. As I say, I would be interested in the Minister’s views. That was a small digression, I suppose.

To refer to the amendments in the group, although I have sympathy with the two conditions proposed by my noble friend Lord Hailsham, particularly the latter, in light of the Bill’s move to expel some of the most active participants of our House, I point out that the current system balances expert scrutiny with democratic accountability. HOLAC exists to advise, and the Prime Minister decides. I am sure that the Prime Minister, like his predecessors, will continue to place great weight on the commission’s careful and considered advice, but HOLAC must remain an advisory committee, and its remit should not take the place of a Prime Minister.

Finally, Amendment 19 in the name of the noble Earl, Lord Devon, like his amendment in Committee, seeks to encourage HOLAC to recommend 20 new life peerages for the Cross Benches. I appreciate the sentiment of this amendment. Your Lordships’ House is set to lose a considerable amount of experience and expertise from the noble Earl’s Benches—not least his hugely respected convenor, the noble Earl, Lord Kinnoull—if the Bill passes unamended. Other amendments are still to come from various noble friends, and they seek to resolve this problem in a similar way but for the whole House. I hope that colleagues on the Cross Benches will consider lending their support to these amendments.

In conclusion, I appreciate the strength of feeling across the House on HOLAC and appointments to your Lordships’ House but, as I said in Committee, the balance we have preserves scrutiny and responsibility, and we must be wary of trading one form of discretion for another, particularly when it moves away from democratic oversight.

My Lords, I am grateful to all noble Lords who have contributed to this debate, and to those who tabled amendments. We have had a very thoughtful and helpful discussion.

I will pick up on a couple of points, because a range of views has been expressed this evening and questions asked. The point about what is your Lordships’ role in this House has come out quite clearly. There are those who said we are a House of experts, while the noble Baroness, Lady Fox, was quite clear in asking what is wrong with politics and political parties, even though she does not represent a political party. It just strikes me that, yes, we have a number of experts in your Lordships’ House and we value their expertise, but we are not all experts. The reason we have a number of experts is that we listen to their advice and the information they give, but we are all here to exercise our judgment. That judgment is what we should all bring, and that is the seriousness with which we take our role.

I have considerable sympathy with the Amendment proposed by the noble Lord, Lord Newby. I think we are trying to get to roughly the same place, to ensure that those who are appointed to your Lordships’ House will have the confidence of this House and the public that they are here to do a role and exercise their judgment in the right way. I think the noble Viscount, Lord Hailsham, goes further than that, because he is seeking to completely remove the Prime Minister or any democratic accountability from the process of giving the sovereign advice on appointments, instead giving it to a commission that has no accountability—he is nodding; that is the correct interpretation. I think that I and a number of other Members struggle with the idea that that is appropriate. The noble Earl, Lord Devon, is looking to give the commission a new power to advise the sovereign on 20 new non-party-political appointments over the next five years.

Let me address some of those points. The Statement that the Prime Minister issued really clarified the role. This comes to the point made by the noble Lord, Lord Parkinson, and the noble Baroness, Lady Stowell. There is no change in the arrangements for HOLAC for appointments to the Cross Benches. For those appointments that come through the Prime Minister, whether to the Cross Benches or from the political parties, but go through the Prime Minister, HOLAC is asked to assess for propriety.

It would be totally wrong for any Prime Minister to use that route to make party-political appointments, and I have spoken to the noble Earl, Lord Kinnoull, about this, giving an absolute assurance this Prime Minister would never do that. It would be completely inappropriate. There is no change: it is exactly as it always has been. The rules are those that other Prime Ministers should have followed—and have in most cases, I am sure—for that route through to the Cross Benches via the Prime Minister. There has been a slight change. I think that originally it was for public servants, but both the noble Lord, Lord Cameron, and the current Prime Minister said that it was for people who have a track record of proven public service. Our recent appointments show dedicated public service. Four excellent appointments have been made to the Cross Benches. They are not necessarily public servants, but public service is important. That was a wise move by the now noble Lord, Lord Cameron, and by the Prime Minister to reconfirm his interpretation of that. HOLAC has a role on suitability in the appointments made by HOLAC to the Cross Benches.

Those are the appointments where HOLAC will also look at suitability, as well as propriety. The Prime Minister also mentioned in his Statement a pretty unlikely event which reminds us of the prime ministerial prerogative on this issue, something I think some noble Lords are seeking to remove. It would be a very serious and almost completely unprecedented step, but there has been one occasion when a Prime Minister has gone against HOLAC on propriety. We have set out the process that the Prime Minister should follow and been transparent about that. I think it is quite a serious step to take.

If the Prime Minister were to make an appointment against HOLAC’s advice on propriety, he would be completely transparent on the reasons why, and he would be held to account for that decision. He would be held accountable—that accountability is the issue that has been raised. He would write to the commission to explain the decision and HOLAC would write to the Public Administration and Constitutional Affairs Select Committee to notify Parliament that that advice had not been followed. The key there is accountability, as set out in the ministerial Statement.

May I ask the Minister a clarifying question? I think this is important, irrespective of which party is in office. I think she has described the situation very fairly and clearly. Obviously, this prime ministerial power, which is not new, of direct appointment to the Cross Benches, raises the question of how those are assessed. I do not quite understand the internal procedures of the Cross Benches, but I know of people who sit on the non-affiliate Benches who have been put through some kind of process. The Cross-Benchers may think that they are a bit too close to one party or another. If the Prime Minister—I am not saying necessarily a Labour Prime Minister or a Conservative Prime Minister—used this procedure, would the Cross Benches be able to say, “We think that this woman or this man is too close to the Conservatives” or “too close to the Labour Party”? How would that operate? Do the Cross-Benchers have a say in who is appointed to the Cross Benches in terms of their background?

It is probably more of a question for the Cross-Benchers than me, and the noble Earl, Lord Kinnoull, is ready to leap to his feet.

I thank the noble Baroness very much. This is obviously an issue that has arisen and has been the source of considerable correspondence, which predates me—Lord Judge began it. It would obviously not be proper for the Cross Benches to be part of some approval process, but we have been able to lay out sufficient rail track so that, certainly for my part, I feel very comfortable that the Prime Minister is going to appoint only people suitable for the Cross Benches and have no recent record of involvement in party processes.

The noble Earl will know more about the history of non-aligned appointments. I do not think we have appointed anybody who is not aligned at all.

Interesting points have been made about accountability and suitability. Political parties must be responsible for the suitability of those whom they put forward, just as HOLAC is responsible for the suitability of its appointments. Partly because they are largely my idea, I think citations are a good thing because there is more information in the public domain about why somebody has been appointed. However, it would be a regrettable situation if a political party was then to say, “Oh, we don’t test suitability. That’s a matter for HOLAC; we don’t take responsibility for our appointments”. All political parties should take that responsibility rather than pass it on to HOLAC.

Regarding the other points made about the role of party leaders, everyone talks about prime ministerial appointments. In many ways, for other political parties the appointments go through the Prime Minister. Political parties are asked to nominate and then pass their nominations to the Prime Minister, who passes them on to the sovereign without comment. However, the Prime Minister makes very clear in his Written Statement that he expects the party leader to take full responsibility for properly considering the suitability and quality of the nominations. That includes the role that they intend to play in your Lordships’ House. It is unacceptable for party leaders to say, “It’s just an honour—you don’t have to turn up”. It should be a responsibility to play a role in the House. I come back to the point that party leaders are accountable to Parliament.

The noble Earl, Lord Devon, correctly identifies that the Cross-Bench group is in a very different position here as well. The Prime Minister and the noble Baroness, Lady Stowell, asked about numbers. The Prime Minister will continue to invite nominations to the Cross Benches from HOLAC. It is an open application assessment process to identify and select new Cross-Bench Peers from all walks of life. Those nominations are, by convention, passed on to the sovereign.

Is the Leader of the House comfortable with the fact that Reform commands 36% of popular support in the polls and has no representation whatever in this House?

My Lords, there is a whole issue around this because the SNP has no representation in your Lordships’ House either. The noble Lord has spoken about Nigel Farage being offered a role. Given that Mr Farage’s policy is now to abolish the House of Lords, he may not have been willing to accept that role. The noble Baroness, Lady Fox, made this point well. There should be a diversity of opinion. The noble Baroness, Lady Bull, made the same point. There are a range of diversity issues that we should look at, including diversity of opinion. We make better decisions because of that. However, as my noble friend Lord Rooker said earlier—I have used this line, having heard him use it in debates here—in many ways we are a sub-committee of the House of Commons. We can only recommend suggestions and changes to the House of Commons. We bring our judgment to those decisions.

To finish the point that I was making beforehand, we do not believe that the Amendment for 20 new life Peers is necessary. The number of nominations is a matter for the Prime Minister, but he will take into account the political balance of the House when making those decisions. It is essential for the House. The noble Baroness, Lady Fox, was a little cross with the Cross-Benchers, perhaps because they have not invited her to join, although they may reconsider that now. A Private Member’s Bill tabled by the noble Lord, Lord Norton, proposed the Cross Benches being roughly 20% of the House. That is a fair figure for the House. The noble Lord has heard me say time and again that the House works best with those kinds of figures, with roughly equal numbers of both political parties of government and when we abide by the conventions of the House. That is when we do our best work.

In some ways, I appreciated the honesty of the noble Viscount, Lord Hailsham, in his amendment about removing the Prime Minister from the process and having HOLAC deal with this, but he also spoke about participation and the role that we expect Members to play. He is absolutely right that we should expect all Peers to participate in support of the core functions of this House. That means not just turning up to vote occasionally but taking the role as a Member of your Lordships’ House seriously. That is one of the qualities mentioned in the Prime Minister’s Statement—willingness to contribute and play an active role in the House. It matters how Peers get here, but it matters more what Peers do when they are here and how seriously they take that role. Although participation is not a matter for this Bill, I have set out—we will discuss this later—a proposal that may allow us to take that forward.

The noble Lord, Lord Cromwell, and the noble Baroness, Lady Fox, talked about the independence of the Cross-Benchers. I think there is a role both for independents and for party politics in your Lordships’ House. I do not think any of us would say that we slavishly follow our party. I think sometimes we wish more did, and I am sure the Opposition front bench may say the same, but we do bring judgment. I just keep coming back to that point. Our judgment and integrity are important on these issues.

My final point is on the suggestion from the noble Viscount, Lord Hailsham, of a new oath for all appointments. I think I understand why he has raised that, and it is a thoughtful approach, but we do not consider it necessary. When a Peer takes the oath in this House and they sign as a Member of this House, that includes a commitment to uphold the Nolan principles of public life so, in a sense, that oath is already there. The Nolan principles are important, and I trust noble Lords to take that commitment to the Nolan principles as seriously as they would take any extra oath, so I do not think it is necessary.

I understand why the proposals have been put forward. The noble Lords, Lord Newby and Lord Wallace, have been sincere in this, but I wonder whether it is a stretch too far. There has been only one case where a Prime Minister has overridden the propriety advice of HOLAC. I think it is wrong to do that. It is hard to envisage circumstances where it would be appropriate, but I think that ensuring absolute transparency, if it were to happen, is the appropriate way forward. I see the noble Lord, Lord Parkinson, is about to leap to his feet, so I will give way before he asks.

Before the Minister sits down—literally in this rare instance—I am grateful to her for the comments she made about the Prime Minister’s Statement and the clarification she gave. She alluded to it, but, just for clarity, is she saying that our four new Cross-Bench colleagues are Cross-Bench Peers selected by the Prime Minister rather than Cross-Bench Peers recommended by HOLAC? I think that is what she was alluding to, but it would be good to have that.

: Those four Cross-Benchers have come through the route of public service, and there is still obviously the expectation that HOLAC would have its appointments done separately. I think that was quite clear in the Statement. I am sorry that that was not clear to the noble Lord before.

Having answered questions again, I respectfully ask the noble Lord to withdraw the Amendment.

My Lords, this debate has gone a good deal wider than our modest Amendment. Perhaps we will come back to oaths, and the question of the balance in appointments of Cross-Benchers, between the great and the good and people’s Peers, is another thing that we should clearly come back to.

I was very struck at various points in the Intervention of the noble Lord, Lord Hannan, particularly when he was discussing the difference between liberal democracy and popular democracy. Liberal democracy is where those who govern do so with a degree of checks and balances to make sure that decisions are taken with due consideration and that policy does not swing with popular opinion too rapidly from one to another.

When the noble Lord, Lord Jackson, says that we should not have unelected judges holding Governments to account, he is actually saying that the rule of law should not be a check on the tribune of the people, whoever the President or Prime Minister may be. In this amendment, we are talking about a check. We are not saying that HOLAC should make all the nominations. We are saying that, when the Prime Minister makes nominations, HOLAC should advise and the Prime Minister should accept that advice.

The noble Lord says this is not about all nominations but just those from the Prime Minister. However, the only other nominations other than the HOLAC-appointed ones come through the Prime Minister from the political parties, so which nominations is the noble Lord referring to?

In that case, I must have misspoken and I apologise. The Prime Minister makes the nominations and HOLAC considers them. That seems to us to be a valuable part of the checks and balances of a liberal democracy.

This is not a new problem. Boris Johnson is not the only person who has abused the system. If one is looking for villains of the past, my party provides by far the greatest in David Lloyd George, who sold peerages. Thankfully, we have moved away from that. I wish to press this to a vote, so I ask if I may test the opinion of the House.

Ayes 55, Noes 234.

Amendment 5 disagreed.

Amendment 6 not moved.