Prospect held a roundtable discussion on Monday 12 January, 2015 as part of our Blueprint for Britain series. The guest speaker was Lord Blair of Boughton, QPM and the chair was Bronwen Maddox, Editor,
Prospect. Below is the full transcript and list of attendees.
Attendees: Dr. Andrew Blick, Lecturer in Politics and Contemporary History, King’s College, London Professor Vernon Bogdanor, Research Professor, King’s College, London Frances Cairncross, economist, journalist and academic Jennifer Coombs, Director, Prospect Publishing Baroness Falkner of Margravine, Chair, Lib-Dems Parliamentary Foreign Affairs Committee, House of Lords Professor Jim Gallagher, former senior civil servant, Research Fellow, Nuffield College, Oxford Lord Goldsmith, QC, former Attorney General for England, Wales and Northern Ireland Lord Kerr of Kinlochard, former diplomat, Cross-bench peer in the House of Lords Lord Lexden, historian, Conservative peer in the House of Lords Alec Marsh, freelance journalist, writer and editor Lord Morgan of Aberdyfi, historian, Labour peer in the House of Lords Dr. Elizabeth Gibson-Morgan, senior lecturer in Law at the universities of Tours and Bordeaux Jesse Norman, Conservative Member of Parliament for Hereford and South Herefordshire Vicky Pryce, Chief Economic Adviser, CEBR Mary Riddell, journalist and columnist, Daily Telegraph Professor Meg Russell, Deputy Director, Constitution Unit, University College, London Gisela Stuart, Labour Member of Parliament for Birmingham Edgbaston Lord Wood of Anfield, Shadow Minister without Portfolio, adviser to the Rt. Hon. Ed Miliband, MPBronwen Maddox:
Prospect has posed a series of questions following the Scottish vote about how Britain might run itself in the future. Some people have turned up to argue “exactly how it does now,” while others have turned up to argue more radically. Ian, let’s kick off with your thoughts on this. How should the House of Lords be reformed or indeed should it at all?
Ian Blair: I need to start with a disclaimer; your decision has obviously been to invite the new boy to report on what's happening because I haven't been in the Lords nearly as long as some of the people sitting around this table. I rather assume it's something to do with what happens when you have a deliberately unmanaged institution such as the Lords which is self-regulating. There are four solutions ahead:
The first is to abolish the House of Lords completely and become unicameral. There is one global example of a very large unicameral legislature, in China, but most are small. That includes some EU members, such as Portugal and Denmark.
The second option you could go for is an elected house or a partially-elected house. Personally, partly because I'm crossbench, but also because the example of the United States stares at us. It's interesting to note that US Senators were not directly elected until the 1920s.
And then thirdly, you could have a new kind of body, a new federal arrangement. Then lastly, we could reform the present structure.
My view would be that the House of Lords does a necessary job in refining legislations to make most bills from the House of Commons more workable. An example is the Pension Services Bill that recently went through the Lords. There are 82 government amendments following the second reading and I can tell you that the government is listening to the experts in the Lords who are saying things about the bill that I don't understand at all. The Lords has got some advantages. It's got a preponderance of party members, it has got cross-benchers. Also, whipping is more often broken in the Lords so eventually, although the government will win, the government has got to take notice of what's said.
However, the Lords has far too many members and that is a real problem. A situation made much worse by the [attempt by the] current coalition government to make the Lords composition reflect the results of the last election. Well if you do that at every election, you are going to build up the House of Lords to 2000 or 3000 strong. I don't want to pick on the Liberal Democrats, but they have increased their numbers by 48 per cent since the last election. They've got 105 members at the moment and they may not have 105 MPs [after the next election], that's all I'm going to say. So that's what happens if you do all of this without an exit [policy for peers]. There's a retirement scheme which has been taken up by very few members and there is death.
If I just mention to you that there are 101 members between 80 and 85, 73 are 85 plus. There's an inbuilt London/South East bias of appointment, the devolved regions are under-represented, and it's quite clear that the Lords contains higher proportions of women and people from BME communities than the Commons. I think this is an inherent weakness in being a self-regulating chamber, particularly for misconduct and the presence of significant party donors. It does nothing to enhance the Lords reputation.
The congenial atmosphere [in the Lords] creates a dangerous weakness of self-regard, particularly when it's talking about itself. What needs to be done? You [could] cut it down by [introducing a] retirement age. There was a debate about this last Tuesday. There was a general consensus that there should be a retirement age—but they seemed to be indicating sometime after 85 which I think is a problem. We could have a length of term that might be 15-20 years. You could increase the number of crossbenchers where there seems to be a reservoir of significant expertise. You could consult about the future of reserve places for bishops. Quite interestingly, one of the people who didn't get into the Lords recently was Cardinal Cormac Murphy-O'Connor, who would have been an ornament for the Lords in the same way the Chief Rabbi is. But apparently the Vatican didn’t want its Cardinals involved in politics. That might bring a smile to some faces.
I think we can remove, by retirement or death, the hereditary peers.
We can also seek to increase the power of the Lord Speaker, by virtue of it being a self-regulating house. It is an issue how long some debates can take because everyone wants to speak and nobody is ordering them.
BM: Ian has kicked off in discussing how we should reform the House of Lords, if at all, [it is] way too big. Some of the wrong people [are] there. He made various suggestions on how to get it down and touched on the question of what the House of Lords is for? I want to come back to that more generally.
Vernon Bogdanor: What is the House of Lords for? It can have some influence on legislation. It can make a government think again. It can’t alter the course of a government. I think that is right. I regard the main role of the Lords, not so much as a legislative role, but one of inquiry. It performs the role of select committees on matters which the House of Commons doesn’t perhaps deal with particularly effectively. Especially matters that cross government departments. The constitutional ones are the obvious example.
The European one I think is very important. European matters tend to be a bit tedious and have no political payoff but are very important for the government in preparing its approach to European affairs. I personally believe the main impact of the Lords is through the select committee system, which I think is a replacement for the royal commission
I don’t disagree with anything Lord Blair has said. Just to make two points on how Lords reform relates to other issues—first is the question of the establishment of church and state. The question of whether other religions should be represented in the Lords. [This is] very difficult because other religions don’t have leaders in the same sense as the Church of England and the Catholic church. The Muslims don’t have a leader, neither do Baptists. The Jews don’t really have a leader. It would be very difficult to represent other religions in the same manner as CoE. I think, in practice, it is very odd that other religions seem to, on the whole, accept the bishops and archbishops as speaking not just for the CoE but for faith as a whole. I might be wrong.
Second thing he hinted at, which I think is crucial, is the question of political finance. Obviously, It is a scandal, to put it mildly—the disproportionate representation of those who are there because they have made a large donation to a political party. That of course is nothing new. It has been going on for a long time, certainly well before the last Peerage Act in 1963. If we’re going to change certain aspects of the Lords, I think we are going to have reform how it is financed.
The average person thinks that a political party is financed by subscriptions from widows and orphans. That’s never been the case. There are really only two alternatives to public finance. First, is that you rely on institutional finance from trade unions and companies. Tony Blair, when leader of the Labour party, wanted to get away from that. He found the only alternative was to rely on handouts from millionaires, and of course the other parties do that as well, and of course the finance of a political party depends on the habits or interests of millionaire donors. It was said recently, and I don’t know if it’s true, that because Ed Miliband voted in favour of a Palestinian state in parliament, some Jewish donors were considering withdrawing their support. Don’t know if that’s true but the finance of a political party shouldn’t depend on accidental contingent matters. If we are going to reform the Lords, we need a system of state aid to the political parties.
We already provide public money; to help with elections; free meetings; free postage. I don’t think it’s a huge extension of that principle which would have great effect. I think it could be linked with some index of democratic participation, perhaps party membership, perhaps votes. I don't know, but the substance wouldn't be parties. That would get rid of some of the aspects of the Lords the average person finds most distasteful such as the fact that, in effect, it seems you can buy a post in the Lords.
BM: A vote for the status quo.
John Kerr: I totally agree with Lord Blair. It’s far too big since the last election. The total number of active peers last year was 790. The biggest increase has indeed come from the Lib Dems, whose number of peers has increased by 48 per cent. I think it’s very likely that there will be another wave at the time of, and shortly after, the next election. Of course there are lots of people not standing for the Commons who David Cameron feels might be an asset in the Lords. A natural lord. What happens if the Lib Dems only hold a couple of dozen seats in the Commons, and still find their number going up in the Lords? This is not my big worry. It’s too big, it should be shrunk. But, my big worry is – what is it for? I think VB is correct, that the work of some of the select committees is really rather good. That in itself is not sufficient. But you, at
Prospect, are thinking about things like devolution and one ought to approach the House of Lords as its function should be; to cement the Union. A difficulty with this, is that, like Sinn Fein, the SNP doesn’t believe in nominating any peers. There are no SNP peers but if, as seems quite likely, the Nats are the third biggest party in the House of Commons after the election, it would be wrong for the HoL to contain no such representation. I don’t know if Ms Sturgeon’s views on this are the same as Mr Salmond’s.
I hope that one of the things that
Prospect will bring up is the paradox if the SNP find themselves supporting, presumably from the backbenches, a minority government. It should be very odd that they would not want to pursue what they were doing in the HoC in the HoL. That minority government might then have serious difficulties getting their legislation through the House of Lords. I personally can’t see that working political. If they were prepared to whip people to go down to the wicked Westminster and sit in the HoC, why not the HoL?
BM: But the question of knitting the Union together, there will be some more devolution, some more powers to Scotland, does that serve your function of the Lords acting to knit the whole lot together?
JK: That takes me down the route that probably contains indirect election of at least part of the Lords or representation. It takes me back to the early days of the European parliament. I can envisage a delegation from Cardiff, Belfast, a delegation from Edinburgh composed of members of the Scots parliament...I don't know where it leaves people like me. Where it leaves us crossbenchers. I personally would go down an indirect elected route with crossbenchers too. By a random process, we do have on the crossbench an interesting array of expertise but it’s completely random the way it’s got there. The law society doesn’t nominate the lawyers. The bar society doesn’t nominate. If wewent down that route…It would be possible to enlist the trade unions, the universities, the CBI, nominating people who would, for a term or two, represent them and rightly electing inside that community. I do think that it is very important. The government should not be able to get through its legislation without having some independent body go through it. The power of the HoL is limited and that’s a good thing. The problem with the HoC is that their powers are so strong. The legislation comes through so fast, a lot is hardly looked at at all. Literally not looked at. The HoL, in its boring way, does go through thing, but I would like to see the random process by which people like me turn up on the crossbenches have a rationale and I think that should be something to do with the cement of the Union.
JK: Then there’s the Church. I totally disagree with Vernon. The Jews have a chief rabbi. It would be perfectly possible if we wanted to [to get religious representatives out]. I’m like the French, I say get them all out of parliament. They are nothing to do with parliament.
Mary Ridell: It seems to me that the question of perhaps what the Lords does or what it is for is the easier one. I don’t disagree with Ian, but it does all seem rather incremental. I wondered if, as an outsider, there is any enthusiasm around the table for something much more radical that has been proposed since 1911 onwards, never with much success. Tony Blair got a certain distance. The Lib Dems might have done had they not been knocked by all and sundry. More recently, Ed Miliband has this plan for an elected senate which perhaps addresses some of the regional complexities. I just wonder, what members of the House of Lords, peers and others, thought about the prospect, after the next election, for more radical changes. Whether that is just a rumble in the background, or whether, at some point, the momentum might build enough?
Baroness Falkner:The late Conrad Russell used to argue two things about the HoL and reforming it. That was the balance between legitimacy, which on the whole you always have on account of how it has been constructed, and accountability. What’s clearly discomforting in today’s age, without some radical reform, is the continuous lack of accountability. All these things that have been mentioned are very incremental. What concerns me, with all respect to the prospects for Ukip, it is really for the three parties that will have anything over 30 or 40 seats at next election, it might not be the Lib Dems, will be up for them to decide what to do. It will hang on the timeframe of how long this constitutional convention takes. Dramatic reform is clearly the way to go. It was a barking mad idea to say that Lib Dems should come in proportional to their numbers in the general election. I think that has died its death and become obvious that you need to lose numbers not gain them. I don’t know how it got in there in the coalition agreement. It’s not just a matter of numbers or how we do our business. It goes to the heart of what democracy is about with legitimacy and accountability. I think there should be a referendum put to the country, despite the unhappy experience we have had with the alternative vote referendum, and it should be a package bringing in Wales, Northern Ireland, Scotland. It should work through how we do this without getting rid of some of the stronger features of the HoL, such as crossbench peers and all the other things we do rather well, such as select committees. I would be interested to hear from Stewart Wood how long he thinks this constitutional convention will take.
BM: Thanks for raising the questions of democracy and how you get it to work. There is this way of talking about the Lords that can be “How do you make the machinery work better?” I had in mind the words of the Saudi Ambassador to London, who said at the time of the Lords reform, “If that’s what Tony Blair means by democracy, getting rid of one house of parliament and replacing it with his friends, we can do that tomorrow’.
Meg Russell: I think it might be worth separating out two questions here. Rather than, as seeing them in competition with each other, seeing them as two separate questions. One, is that which Mary asked—in the long term what big reform might we want for the HoL? The secondis, in the short term, what must we do? If you look back at the history of House of Lords reform, there has never been a shortage of large scale proposals but they are very difficult to achieve. What history teaches us, is that Lords reform happens when it is small and incremental. Whatever your view on large scale reform, I’m happy to come back to that later on, because there is devolution, and lots of things are going on which potentially play into this question. But what is the next small, urgent, incremental reform on a pragmatic basis.
MR: I think the things Lord Blair has suggested are all pretty sensible about the size of the House. I think that is the most urgent question. It was slightly surprising in that Lords debate [on a pension scheme] and in what Lord Blair said, as there was so much focus on ways out of the chamber. I think the most urgent thing is to regulate the way in. The problem is unregulated prime ministerial appointments. The PM can appoint however many he wants, with whatever party balance he wants. So long as PMs have that power, they will fall to temptation to put lots of people in, particularly to bolster their own side. Now, I don’t want to point the finger specifically at David Cameron, this has been going on for decades, but actually Cameron has appointed the House of Lords faster than any PM since life peerages were created in 1958. What you get is a ratchet effect on the size of the chamber. Each one tries to outdo the last. The really urgent problem facing us with respect to the 2015 election, if there is a change of government, that there is a possibility the incoming government will want to make lots of new peerages. The numbers will go even further through the roof. There is an incentive to do so. Ed Miliband has expressed his commitment to seeing large scale reform happen. It’s difficult, but even if optimistic, it’s going to take at least a couple of years. What we need is to clamp down on prime ministerial appointments now. We need a cap on the size of the house and an agreed formula on what the share of new seats created should be between the political parties. This has been called for by the political Constitutional Reform Committee in the Commons. We need an agreement on how many peers can be created and with what balance.
BM: I agree with most of what you said Meg except that the abolition of hereditary peers was not that incremental.
MR: Well, at the time it seemed incremental. 1911 as we have already heard was incremental. 1949 was incremental. 1958, 1963, 1969, all at time seen as dealing with one single urgent problem until we could get on with big stuff. That’s been the history all the way through. When people tried to do big reform, as Nick Clegg and as Harold Lawson did in 1968, it proves to be extremely difficult—but all of those things retrospectively are extremely important.BM: Where do you think we should be trying to get to? Even acknowledging the constraints that we are starting to hear. There are questions about the devolution settlement and how the House of Lords in the long term might tie into a devolution settlement. I have been writing on this for years and years. Nobody was particularly interested in it. Now people are beginning to get interested but that is only just beginning. It will take some time. The House of Lords is not the answer to resolving the territorial tensions in the UK, but if there are other territorial reforms agreed - if we are moving to an English parliament or regionalism - then the House of Lords could come to reflect that. But you can't put the cart before the horse, those things need sorting out first. In the meantime, we need to sort out the urgent problems. I don't dismiss the issues Ian raised such as retirement age, but it’s no good dealing with the way out of the chamber when the way in remains unregulated.
Jim Gallagher: I’ve been waiting decades for this. I had the Lords reform portfolio under Blair. I broadly agree with Meg—ground zero, we’re not going to have a Philadelphia moment on the House of Lords, or a referendum on it. I disagree with Mary in saying that the “what’s it for” question is the single most important one. It’s more than the end following the function. We haven't got a complete answer to that. I am of the view it should have a role in the territorial role of the UK, but that’s not a full time job. That’s not enough to keep even 200 peers going I don’t think. It’s interesting when people talk about this. Every last attempt at Lords reform has found what the Lords have done is actually jolly good and what we aim to do mainly is fill it with the right people and make it legitimate and keep it doing the same thing. I don’t agree with that for two reasons. First, changing its composition will change its legitimacy and the formal powers it has today will suddenly become more significant. I think you have to deal with that role first. And secondly, most of the changes made in the Lords on legislation, is because the govt didn’t write the bill right in the first place. Because they knew they could sort it out in the Lords. So when you have that, those 80 government amendments are mostly officials thinking “oh shit, we didn't get this right.” It’s a substantial problem in the legislative process that our bills are no good, but with all respect to the Lords its not the Lords that finds that out, but a lot of it originally is just the passage of time. I’m rather attracted to Vernon’s suggestion that the deliberative function of the Lords is more important than any other. I do agree that it has a territorial role.
Two thoughts on the territorial role. Let’s imagine we had some form of direct election to the Lords across the whole of the UK. You immediately get a free added West Lothian Question with your second chamber. One West Lothian Question is quite enough thank you. We need to find a mechanism that distinguishes the nature, if there is territorial representation, how it works, that might argue for indirect rather than direct. It may argue for mixed system. It might argue for devolution to be discounted in the Lords, as Gladstone managed. As for incremental changes, I'm happy with them and agree with Meg’s proposition that you have to narrow the gate. All those who are currently up the ladder are about to pull it up. Let me offer you one other incremental change, because this is a continuous institution there is still far too much formal symmetry between the House of Lord and the House of Commons. If you were to look at the legislative process purely as it’s written out you might think the HoL had an equally significant role as the HoC in passing legislation—what is it doing taking second readings? Why is it agreeing with principle bills if it’s a retirement home? What’s it doing giving third readings, the legislative process should be radically different in the House of Lords to the House of Commons. Otherwise, what we have got is simply a relic of the time when the House of Lords had real power and we want it to be a different kind of beast.
BM: Which Scotland might have been. One of the things they would have needed in the event of a Yes vote, would have been another chamber, or could the revising function you’ve described be provided by committees?
JG: I think its a scale issue. A very small country could probably only afford one chamber but a big one can afford a place in which, for want of better word, some wisdom is applied to the legislative process.
BM: Which Scotland might have been. One of the things they would have needed in the event of a yes vote would have been another chamber, or could the revising function you’ve described be provided by committees?
JG: I think it’s a scale issue. A very small country could probably only afford one chamber but a big one can afford a place in which for want of better word, some wisdom is applied to legislative process.
BM: Jesse did you want to come in at this point
Jesse Norman MP: I think others have indicated before me but I'm happy to say something if you want.
BM: I'll go to the end and come back to you
Andrew Blick: I think an important history point here, is that the House of Commons, and this is an important political blockage, is going to be very reluctant, under any circumstances, to create a chamber that is going to challenge its own legitimacy. That's been the problem since 1911 and that will continue to be a problem. Whatever government we've got, I don’t think we can imagine that problem's going to go away. That is a blockage we have to be aware of. If you look at the famous preamble to the 1911 act, it does say, although no-one meant it apart from Gray, that we're going to replace it with a properly elected chamber. It also says we're also going to do something about the powers of that properly elected chamber. Get them under control, which deals with some of the symmetry issues we've just been hearing about actually. So that's always going to be there but let's imagine for a moment that we were able to get a federal system of some kind, in which I suspect we agree an upper chamber, it probably wouldn’t be the Lords anymore, but an upper chamber would play a part. Reform is possible. We've seen big reforms of the Lords over the years and one I should add to the list is the removal of the Law Lords, effectively by 2009, which is a very important change also in terms of what it is for function, what it's not for any longer is being a court.
Some of them have come back but not as Law Lords any longer. So if it is going to be a federal system, if that could be achieved, and I'm not saying it will be but there are a lot of attractions there, but we're at an early stage of this conversation. I think we've got to look at what are the different federal systems. Do we go for the American-style, directly elected. Is that a problem? Are we better off with a German model? I suspect that's probably a more attractive route. Maybe to a kind of Spanish model which I won't go into but that's different again. One of the advantages there, and I think that deals with some of the issue about processing legislation, is that if we do actually have a federal system of some kind then supposedly that leads to decentralisation of power, and Whitehall isn't dealing with as much legislation as it once was, and some of these problems that we're talking about with badly drafted legislation which probably result from overload of the centre actually go away. So I do see some merits in that kind of option. So dealing with the territorial issue, and dealing with the Lords, and this has already come up, do have a kind of synchronicity between them.
BM: Andrew thank you. Frances Cairncross next, and then I'll come back and pick the other points up at the end.
Frances Cairncross: Well this is the first time anyone has mentioned the world beyond these shores, and it seems to me when you're thinking about reform you want, at least a bit, to think about what happens in other countries. I remember reading something by you Meg I think about the trade off between election versus various means of appointment. With election, if I remember rightly, being more common in countries with presidential styles of government precisely because it produced a chamber which was more aggressive and more willing to rock the boat… One of the questions one wants to ask because most of the solutions to changing the house of lords involve a greater focus on legitimacy.... The argument for legitimacy, I suppose, is whether it be indirect election or direct election. So does this mean that almost any reform that is assumed will result in a chamber that is more keen to throw its weight about and, if so, will this ultimately be a good thing for the quality and stability of government?
BM: Jesse go ahead
JN: So, with a few exceptions, I'm afraid I disagree with almost everything that's been said. The trouble with constitutional change is there's far too much of it...Constitutional change should be done, in the way we've historically done it until recently, and that is to say focused and prudent, and addressing a need. The trouble with constitutional change, from a think tank perspective, is that everyone thinks they can do it. So what they do is, they, in general, don't pay any attention to what the actual details of our parliamentary process in fact are. They pull off the shelf, dimly remembered theorising about the American Constitution from their university days and the result is disastrous...The one thing about the Lords is its one of the very few parts of our parliamentary system that seems to be working quite well. It's got a problem: it's too big. It's got some crooks in it. We have to get rid of them. But it's generally working pretty well. You don't believe that. Look at the debates on Syria.
JN: Burke has a great line which he applied to Lord North in 1770 during the crisis of America which I think perfectly applies to Nick Clegg. He says Lord North, this is a man who consults his invention, he means his imagination, and rejects his experience. And that's what we all do. We consult our inventions and reject our experience. So it's very easy to say the Lords lack legitimacy. It isn't elected it's true. If we elected it, we would be dramatically advancing its power in a way that would make it hard to elect a government and respect the majoritarian principle that's tied the two chambers together historically. When you elect someone you give them a lot more power. The joy of the Lords is they don't have all that power. They have some power. We have other unelected parts of our constitutional arrangements. We such as unelected judges. We don't seem to think that they're enormously lacking in legitimacy. They have other legitimacy that comes from transparency. That comes from due process. That comes from prior established practice. So, I feel there may well be scope for sensible reforms of the kind we've discussed but I think that, when we reach for the chainsaw, we ought to be careful. And one final thing, anyone who thinks that the US is a good model for the British system needs their head examined. Just go and spend some time on Capitol Hill. It’s a mess of money politics. It's a style of government which we would be screaming at because we would worry about possibility of corruption. You’d worry about the way in which votes are assembled rather than the majoritarian principle we've always adhered to and we worry about the effects of over-accountability which is something I don't think people care a lot about.
BM: I'll come back to John in a minute on your rejection of his idea that it's about glueing the Union together.
JN: No, no i've just said... [talking over each other]
BM: The purpose of it is to revise and improve legislation. I mean there are degrees of legitimacy. Election is at one end, cash for peerages is at the other.
Stewart Wood: Just some remarks on what Jesse said. Although when he mentioned "some of them are crooks" he looked over out of the corner of his eye at me and I thought he was going to accuse me of being one of the crooks there. Anyway.
JN: You are a model of public legitimacy and authority.
SW: Thank you very much, is that on the record? That's your headline. But I think there's a convenience about the Burkean argument. Presumably Jesse in 1998 would have said the same about Blair's reforms of the Lords which I think have turned out to be a pretty good idea. Limited as they were, phase one never became phase two but nonetheless they were good reforms. And the sort of Burkean Conservatism argument I think is sometimes wrong. It's very difficult to know in advance whether it's a right or a wrong example of sensible reform.
JN: But you can know in advance whether, if you're wrong, you're wrong small, rather than wrong big. As we've heard, the '97 reforms were not regarded as a drastic.
SW: But you can be wrong big by not changing things. You can't just be wrong big by changing something catastrophic. So I think there's an asymmetry about that perspective which is not always appropriate. Now, I agree with you that I don't think there's a huge crisis of the Lords which is on the lips of every elector out there which requires some burning constitutional solution. That's certainly true. My instinct on this, however, is what is the problem we face in our politics, well there's lots of them, but one of them is a sort of legitimacy snapping between the institutions of central government in particular and the public's faith in politics. I think it wouldn't be right to rule out of court the reform of the second chamber as part of a gradual constitutional innovation to try and sort that out. And my fundamental instinct on that, is that it points us towards an elected second chamber. Why? Well let me put it this way. There are three functions I can think of. The argument for appointment rests on three basic arguments. One is it's a protection from whipping in the commons. So you don't have another chamber that's at the behest of party leaders and party apparatchiks. The second is an expertise argument. The third is a “thank God we've got at least one check and balance in the system that's quite short of them”. None of them, in my view, are sufficient for making the case for appointment. You could quite easily have, for example, an elected chamber with term limits, in which all three of those can obtain, with lists for example. There are ways of coming up with that. And let’s be honest there's a much vaunted argument expertise in the House of Lords is a by product of the patronage that gets people into the House of Lords. It is not the ostensible rationale for assembling a slate of people who cover different areas. We're lucky to have Ian and others, who have extraordinary expertise in areas of their professional lives, but it's not by design. It's an incidental product of what is a patronage game, and I'm speaking as someone who is part of that patronage game myself. There are better ways of getting expertise than the one we have now, it seems to me, but all that suggests to me is that the aspiration should be towards an elected second chamber. Even with the constitutional convention that Baroness Falkner mentioned, I don't think it'll be the number one issue on people's lips about what kind of second chamber we have. I think actually, if it works in the way that it worked in a country like Ireland where there was a similar attempt at a two or three year process of coming up with a collective view about the way in which institutions needed to change, I think, and hope, that it would lead to a sense that rejuvenated faith in the ability of central government to create instructive politics might have implications for the kind of second chamber you have. To pre-judge what that outcome will be now I think will be rash, but I think that's an un-Burkean hope that it's worthwhile happening.
BM: Stuart thank you, brilliantly put, by which I mean I have enormous sympathy. If you're setting out to produce a house which is expert in a revising capability, you regard this as its main purpose, then you would set out, as Jim was saying, to get pools of expertise in different areas and you might actually construct an argument for quite a large chamber.
JN: That's true, 100 per cent. So if you have pools of expertise the way you described, that could also be categorized as lobbying groups, self electing indirectly into a legislature which raises questions about legitimacy and it also raises questions about people who aren't included, the doctors, the vets. I think the vets should be nominating someone. Indirect election is nothing like as unproblematic as people think. The appointment system is actually not bad. Very few really top quality people in their fields can ever stand for election because you have to be prepared to have a lot of people throw a lot of crap at you. There's a lot to be said, but the fact that its not perfect isn't a reason to get rid of it. The fact that you've got an alternative that isn't as good isn't a reason either.
BM: A British trade off [would be something that] produces something that looks quite a lot like independence, that's worth having and there's a lot of good people there and Stuart's argument about unease about public legitimacy and public mistrust.
JN: Sorry, there’s very little public mistrust of the Lords, everyone hates the Commons. That’s because the Lords isn't elected but surely if you've got to bring the Lords into distrust you've got to elect them. What are the three most well-established and loved institutions of this country? The Judiciary, the BBC and the army – none of which are elected. And the monarchy.
AB: I'm in favour of a constitutional convention but if you're going to have a democratic reform of the Lords you're going to have to find an alternative principle of representation to the principle on which the Commons is based. and the representation of the judiciary. It used to be that landed aristocracy had a special role to be represented and that ended in 1911. One thing people have put forward now is territorial representation because that's the only alternative. I think that's highly dangerous. I want to deal with the general idea of whether or not the Lords could actually have cemented the union, be it directly or indirectly. Firstly, of course the SNP don't want representation there. For the same reason they don't vote on what they think is English legislation. They want to separate the two systems and not to bring them together. So of course they don't wish to be represented there. Even if they're not directly elected, as soon as they appear representative of Scotland, even if not directly elected, they bring in the West-Lothian question into the House of Lords, which would damage it.
AB: Then, you raise the problem again of the English backlash that we already see in the Commons. It is not federal or quasi federal system. We are an asymmetrical system. There is no sign yet that England wants a parliament, much less regional devolution. But if you look at federal systems, like say Australia, where the upper house is directly elected, the people in Australia say they don't represent areas or parties as much as they do politicians and parties. If you are a senator for New South Wales, you don't represent New South Wales, you represent the Liberal Party or the Labour Party. At least, the Australian system avoids deadlock because you can dissolve the upper house—you can have a double dissolution as you had in 1975. You can't dissolve the House of Lords. Now it's obvious that if you create a legitimate second chamber as people want to do, it must have more power than the present one. It would be pointless to have a second chamber which was legitimate and had less power than the present illegitimate one. So you're therefore going to institutionalise some sort of deadlock of the sort you had in Australia, extreme versions in America and in Germany. For that reason the two arguably most successful left-wing prime ministers of the 20th century, Asquith and Eckley, said, “we're not dealing with the competition of the upper house. All we are doing is going to reduce its power so it can't interfere too much with the reforming government of the left.” I think that was extremely wise and when Wilson in 1968 took up the other idea of attempting [to limit the Lords' ability to vote on and block legislation], he got in terrible trouble and achieved nothing at all.
John Kerr: I think this is a very interesting discussion. The Titanic is sinking, the union is under serious threat, if there was another referendum, a rerun of that referendum today in Scotland, then independence would be on the agenda...I don’t know what the current membership of the Scottish nationalist Party is but reports in the papers start at about 180,000. Since September we have produced this fatuous devolution settlement which satisfies nobody, not the SNP, it could cause untold trouble with the Welsh. What is the rationale for it? I'm strongly in favour of the constitutional convention. I think we've got to get back to first principles. We've got to decide what is real. Our deckchairs, we have to arrange them where the ship is going to go and what the perks of the ship is. To Mary's original challenge to me, I am strongly against an entirely elected second chamber, directly elected second chamber, because I was an ambassador in Washington and I know that the conventions would break down straight away. I think the marvellous invention of 18th century Britain was that we invented a system of parliamentary democracy, with the power of the cabinet residing in the House of Commons. That’s where we need to be. We're basically unicameral with a revising deliberative gender attached and that is what I'd like to hang on to. But it seems to me that you have to start at the other end devising, if you want to hold the union together. I'm a strong unionist Scot. Devising ways in Scotland, think of what the situations going to be in Ireland in two years time if there's a Sin Fein government in Dublin, which seems to be rather likely. That will create a whole new, for some of them very old, series of tensions in Derry and in Belfast. Look at the representation of North Ireland in the present House of Lords now—it’s grotesquely askew. Persuading a Sinn Fein representative that he wanted to sit in the present House of Lords is out of the question, but one need to think about what should be the role of the House of Lords... I wasn't trying to say Vernon, that territorial principle needs to be the defining principle for how we arrange representation of the House of Lord
s. I am saying that the random process of expertise needs to be replaced by something resting on principles and it's getting worse all the time. We now have a Prime Minister who's making appointments to the crossbench that don't have appointments and that is astonishing.
Kenneth Morgan: There's two different systems. One is specific major public appointments, like John and like myself. We go through on that basis, the Head of MI5 etc. The second one should be the appointments commission…
Elizabeth Gibson-Morgan: I just think that parliament has to be considered as a whole and the danger is to consider the reform of the House of Lords as an isolated reform from the House of Commons. You were talking about the importance of conventions, but what happens when conventions no longer work? Isn't there a need for us—talking about the reform of the House of Lords in the long run—to try to think of a joint committee to solve potential disputes between two houses like the one that exists in the French Senate, for example? So that's one thing. And talking about more incremental reform, I think it's important for us to strike through the roles of the committees of the House of Lords and perhaps to give them more prelegislative scrutiny power.
Ken: I agree with everything that my wife has said. the first point is it's really wise that one shouldn't consider the House of Lords in isolation. I think it's extremely important to certainly be part of a wider whole. If we didn't think of that before, the Scottish Referendum is screaming at us. It seems really absurd to consider aspects of reforming one part of the constitution without realising that the union is on the brink of dissolving altogether. I think that the way to reform the House of Lords in that sense, is to get people talking about something else. That is to say, not focusing on the House of Lords, which is probably about number 250 in the list of priorities of people who canvass on the doorstep, but people do sense that our union is broken in all sort of ways.
First of all, the two chambers should be different. There's no point in having identical chambers and I think that's one of the nucleuses that we discussed on the last House of Lords bill. However, I also think that the House of Lords depends very much on party. The most work is done, with respect, not by cross benchers, some of who never turn up at all—their attendance record is pathetic—but is done by those of us who are in a party and who want to be there to promote wider causes rather than a series of isolated objectives. So I think we should emphasize the party aspect of the Lords and I think that means an elected house of Lords. I've changed my mind on that.
I think that... the experts thing is very misleading. We are ex-experts, I was a Vice Chancellor and how could I come from Aberystwth in those 6 years to take part in an institution in Westminster? My own knowledge of the university system is out of date. The system has changed—in my opinion deteriorated but certainly changed—so I think we would look very closely at that.
One very important thing about the House of Lords is that it can look at constitutional matters. There's no other body that looks at that, other than—in a strictly legal context—the Supreme Court. The House of Commons seems to be too flawed, too partisan and too narrow to consider matters like the constitution. So I agree with many people who say there [needs] to be a constitutional convention. It is essential. the Scots had one as well as the Northern Irish. it worked extremely well in Scotland.
What the constitutional convention should lead to is changing the whole system. We should create deliberately a federal Britain and you cannot, frankly, have democracy improving in Scotland and Wales and not in Westminster.
I think the answer therefore, is a written constitution with the House of Lords and parliament. The House of Lords in other countries is uniquely placed to keep the union together. You can have a different perspective from any other party. The House of Commons doesn't carry that degree of weight. Not because of the people there, many of whom are real experts like Mr. Norman and not people like me who are ex-experts. This means that the House of Lords has a unique role in holding the union together.
Last point, I think the way our constitution works at the moment, [it has] two serious evils. One, that it is extremely imprecise and so many people in this discussion have been talking on inference and guesswork, and anybody's guess is as good as any other. The other thing is that, in my opinion, and Stewart might agree with me, is that the real curse of this country is the class system. Far more than the working of our constitutional structure is the working of our social structure and the indirect conventional way in which a constitution works, in effect, helps the class system to perpetuate itself.
Bronwen: By the Lords?
Ken: By the whole system. It’s all based on a particular view of precedent. It's extremely difficult to get new perspectives within it and the House of Lords. The only part of the House of Lords that has got working class people in is the Labour benches. Although they don't actually speak very often, they’re by far the most representative party in the Commons and a democratised House of Lords, or more democratised, within the federal system, would be the answer that would get results. It wouldn't take so long. The American constitution didn't take forever. We can do it too.
Bronwen: Thanks very much for that. And incidently, thanks very much for the excellent piece you wrote on Wales for us.
Jim: This is great fun. Let me begin by agreeing and diagreeing with the motive on my right, I don't think the Smith process should be dismissed in that way. The interesting question here is “what's the right bundle of people [to run a devolved UK]” It doesn't really matter up to a certain point precisely what the mixture is for this purpose. Let's come back to this question of what cementing the union might mean for a second chamber.
B: Do you accept, do you agree, that if it accepts power it might be a part of the function of the house?
Jim: I do, but I think we need to consider how and what a second chamber would do to this purpose, because simply being won't achieve that. Simply being some kind of formal senate-style chamber won't achieve it because it's not the bundesrat, because it's not symmetrical. It has to be what the institution does rather than how it's composed that achieves that result. One of the things it needs to do is address itself to the question of how the union is working; what's going well; what’s going badly; what are the justices; and what are the injustices. And to some degree, challenge our friends at the Scottish Nationalist Party in a way in which the political process in the Commons fails to challenge them.
I was very struck by Jesse's point that the debates in the Commons are rotten and the debates in the Lords are good.
Jesse: I think that's possibly overstating my point.
Jim: But creating a second chamber simply for the purpose of improving the quality of politicians seems to be quite an important thing to do. If that was your objective you could allow constitutional change which said that no one could be an MP if they were 40 because what you're looking for is experience. Ken is absolutely right, of ex-experts who can talk rather grandly about stuff.
We had a debate about this just yesterday in Oxford, Meg and I were both at this question of a written constitution. If we go down that road, we will get nowhere, for two reasons. One is because we don't have a [have tried but really can't get this word. 71:45] that requires it and the second is because, everything is so connected to everything else, if you start down that road you will never reach the end of it. Find out the things that are broken or the things that need to be done, fix them, and write that bit down. by the time you get to the end of that process you'll find that you've coloured in the whole page.
B: And what would you fix most urgently about the Lords?
Jim: I think in respect to this discussion we have probably argued ourselves into a position that makes the composition [the key issue].
X: Rather than a radical change in function?
Jim: Well that would be quite a radical change, partial election would be a very radical thing to change, I quite liked the Wakeham proposals [in] 2000, actually, they weren't as dumb as all that. If you put the UK's best fixer on the game you get fix or solution by now we might be quite happy with the result.
B: Coming to the end of this I've got Meg and any other last additions?
JN: I don't think any sane person wants more politicians like the ones we have. You can have unelected people in political roles, but the things we dislike about politicians [come from the fact that] they're elected, and therefore they tend to be responsive to whips. They tend to do what their electors say, even if it's very short term, rather than thinking long term. Those are the things that people grumble about in politics. Now I think we can be fairly certain that if we elected the House of Lords we would get more of the stuff we don't like and the voters don't like and less of the stuff we do like—the question is how do we get the stuff we do like. It seems to me that's an easier question to write off for being a daydream and I'm-
B: I don't think the public is clamouring for more long expert speeches as much as we might like it.
JN: No, no, no, no, no, no, no. What they are clamouring for— [I'm the only person here who has to deal with the public generally as a politician] and I can tell you what they want. They want politics that is less rancorous; more expert; and more long term in its orientation. That's not something you'd address [with] an elected House of Lords.
BM We are coming to the end... Meg?
MR: I agree with Jim that it's the territorial functions, not the territorial composition that matters. Although they're obviously connected. I studied, I said I had written on this years ago, I studied in some depth, the functioning of various territorial second chambers. Most of them don't perform that binding together function very well at all. So you do have to think it through very carefully, and I do agree with Lord Kerr that we are in a very serious and urgent situation with respect to the territorial politics of the UK. I think it needs sitting down and thinking through carefully. I think it probably needs a constitutional convention of some kind to focus on the territorial aspects and a by-product of that might be, in the longer term, reform of the House of Lords, but the House of Lords is not going to lead that process.
The House of Lords needs attention more quickly than that process is going to produce answers. A number of people have mentioned legitimacy and public opinion on the Lords. I think I agree with Jesse somewhat but I think he is putting a bit too much of a rose and gloss on public opinion. I did ask people a few years ago in a survey a couple of questions about the Commons and the Lords. They had to agree or disagree with these statements: "The House of Commons generally performs its policy role well." 53 per cent agree. "The House of Lords generally performs its policy role well," 57 per cent agree. So you're right inasmuch as the Lords is ahead, but only slightly ahead actually. "The process for choosing members for the House of Commons is a good one," 62 per cent, "the process for choosing members for the House of Lords is a good one," 36 per cent—this was 2007.
I think coming back to the point that Frances made about legitimacy. Legitimacy is a slippery thing. People interpret it in different ways. Interpreting it through public opinion is one way. I'm worried that because of the growing size of the House of Lords and the bad press that it has been receiving in recent years that actually it’s declining in the public eye. I feel that those figures would not be so good if those questions were asked now and that is a problem.
I've done a media analysis up until 2012 of coverage of the Lords. When the media reports what the House of Lords does, it's generally very positive. Most of the media coverage in the last year or two has been about donors, patronage, all of that stuff. So I'm worried that the House of Lords's reputation is in decline and that mean that-
BF: In terms of what Ken said about class, the positive feelings [about] the House of Lords are mainly expressed by middle class people who know the function of the House of Lords reasonably well. What you were saying about press coverage says it all. I think most people who are not middle class think it's a bunch of toffs who are out of touch, elderly—they look around the chamber and they gasp in horror, they thought half these people were dead. That's what happens to schoolchildren you bring in. They think half the people there are already dead. So it's not representative.
The two or three fairly simple things that could be done: One, in that you could bring in the expertise by having a skills order on a periodic basis and say to the political parties “we are missing this” and “we are missing that” so the next time we have a closed list (and I think most people would now agree that a closed list system would be the best way to do it rather than direct elections). So the next time we have a closed list, I know in my party, where we do have elections to have members of the House of Lords... the leader is very conscious of skills I know that because we go and report to where we are short on certain bills and this that and the other.
I have to say I don't agree that the debates are so amazing. I have to say particularly not on Syria but maybe because that's because I had a dissenting view on the last vote.
So for me what's very worrying about a constitutional convention and this idea that we have to do it all in the round, which is probably correct to some extent, is that we will never do it and we will fall into greater disrepute. All politics will fall into greater disrepute. We know from those of us who were there that it's not working as well as it used to. So this idea that is all rosy in the garden is just nonsense.
MR: I think I agree with you and I think there is one more distinction to make. We talked about short term vs. long term, if you're being ultra pragmatic, you look at what needs legislation and what doesn't need legislation. Reforming prime ministerial appointments can be done on the will of the Prime Minister. It just needs pressure on the Prime Minister. We created the House of Lords appointments commission in 2000. There's no legislation. It has no oversight whatsoever.
The House of Lords can do things through allowances to encourage retirement at 80 or whatever, but there are a whole lot of other things like the removal of the hereditary peers, enforcing a retirement age, doing things like the bishops and so on [that] need legislation. These are much more difficult but if you're being ultra pragmatic you grasp what can be done by prime ministerial announcement.
