Lord Speaker discusses role of second chamber

Lord Fowler sets out the role of the House, discusses the vital function it serves, and explains its democratic duty to provide a check on government.

DO WE NEED THE HOUSE OF LORDS?

Address by Lord Fowler, Lord Speaker
You may remember that last week the Government was defeated on the Brexit bill by a majority of well over a hundred in the House of Lords. It was enough to provoke a hail of criticism and personal abuse directed at the peers who make up the second House. The Daily Mail in a leader most succinctly encapsulated the attack, describing us as an: “unelected House of cronies, dodgy party donors and washed-up politicians”.

I can hardly deny that it is an unelected House but at least no one can accuse me of being a dodgy donor. One of the great advantages of being Lord Speaker is that I have to be independent and so I am precluded from making any financial contributions whatsoever. It’s saved me a fortune.

The attack on washed-up politicians perhaps gets nearer the mark and I must confess to 30 years in the House of Commons as well as 10 years in Margaret Thatcher’s Cabinet. People will have to make up their own minds if that history is an advantage in giving political advice or a disadvantage.

But let me try to evaluate the contribution of the House of Lords – leaving ex-politicians to one side, as I clearly have an interest to declare. It is worth remembering some of the things the House of Lords has done in recent times:

• It passed Alf Dubs’s amendment to the 2016 Immigration Bill which gave child refugees the opportunity to come the UK and make new lives for themselves here;
• It voted by a higher proportion than the House of Commons in support of Equal Marriage;
• It was the first House to authorise the filming of live proceedings in Parliament;
• Ensuring protections for home-owners affected by the building of HS2; and It banned smoking in cars that carry children.

 My first claim then about the Lords is that there are men and increasingly women there who have an experience and skill in their own area which would be foolish to ignore.

Take arts and broadcasting as an example. We have broadcasters like Joan Bakewell and Floella Benjamin, Melvyn Bragg and Michael Grade.

We have internet giants like Martha Lane Fox. We have celebrated physicians like Ara Darzi and Robert Winston (who between them hold more than 50 honorary doctorates and fellowships), and medical professors Ilora Finlay and Sheila Hollins – both former chairs of professional medical bodies.

Or take the law – we have former Lord Chief Justices like Igor Judge and John Thomas, and former members of the Supreme Court like David Hope and Simon Brown, as well as leading practitioners like David Pannick and Helena Kennedy.

We have defence chiefs, leading environmentalists and educationalists, and leaders of business and enterprise.

I could go on but suffice it to say that I know of no similar senate which has such a variety of experience and skill. We have over 300 peers manning select committees examining area of policy that vary from international affairs to HIV and AIDS.

Their impact was shown just last week with new reports on Artificial Intelligence, cultural identity and the rural economy, all of which were well reported in the media, and the Economic Affairs Committee will be publishing a report next month on funding for higher education and student loans – which you may find interesting! 

Perhaps if we called the Lords a Senate then the point would be underlined. And let me add that if we moved to a fully elected House then the risk is that that would be a recipe for truly washed-up politicians. They would be the natural candidates for an all elected House – but I will come to that issue in a moment.

So my first claim for the Lords is that there is here a wide if not unrivalled experience.

My second claim would be independence of judgement. Not in every vote or every case but the Lords is much less run by the whips than the Commons. Many of the issues they consider are issues of judgement. If the minister is thought to have a bad case he or she will not be saved from defeat simply out of party loyalty. Indeed we should remember that although the publicity inevitably goes to Government defeats in many of those cases the Government in the end accepts the amendment or redrafts one of their own to meet the case.

The point is this. The vast number of amendments to legislation passed or debated by the Lords do not remotely have the high profile of Brexit. The task of the Lords is the essentially unromantic job of going through legislation from the Commons line by line, checking that points have not been overlooked and that the meaning of individual clauses is clear.

It is low-profile work, but it is vastly important for organisations, commercial or voluntary, outside Westminster that have to live by the laws that are passed. And frankly, the use of the guillotine in the Commons means that whole sections of bills can come through to the Lords largely unconsidered. In the Lords there is no such guillotine.

But having said all this I do not deny that some major issues can place the independence of the Lords in conflict with the Commons and/or the Government.

Governments can be defeated, but before even more leader writers reach for their laptops, let us at least consider what actually happens when the two Houses disagree. If the Government is defeated in the Lords it is not remotely the end of the matter. The Bill then goes back to the Commons and if the Commons stick to their vote then it is returned to the Lords – who, almost always, either immediately or at a later stage withdraw their objection. And they do that for one entirely overwhelming reason. The Commons is the democratically elected House; the Lords is unelected. The elected House has the final say.

So you might say what is the point of this process? The point is that the Lords have fulfilled their constitutional role as a second chamber in asking the Commons to take a second look. If the Commons keep to their decision then that is the end of the matter. Some say that on the tax credits issue of 2015, for example, the Government defeat was permanent. And so it was, but only because the Government decided not to proceed with the proposal and risk a further vote in the House of Commons. In other words, they did not think they would get the measure past Members of Parliament again.

Now a popular argument is that all difficulties in the relations between the two Houses would be swept away if we had an elected House of Lords. In the Lords there are members who take passionately opposing views on this – and remember I am independent on such an issue. But allow me to say that when I was first appointed I rather hoped to later become one of the first elected peers.

Today, I would just venture this. Far from reducing the clashes between one House and another it could increase them. At present the recognised convention is that the Commons has the final say. That is something I as an appointed peer recognise and accept. Had I been elected, the temptation would be to say that “my vote is as good as yours” with the result that you would risk deadlock. Perhaps a way could be found around this with a piece of legislation, but then you would come to a real show-stopper.

The Prime Minister has made it quite clear that there is no prospect of the Government introducing legislation in this Parliament on changes in the Lords – even on changes which are less controversial. And if I was to make a prediction it would be that that would be the same whichever party was in power. No Prime Minister in the middle of the Brexit debate would want to become involved in highly-controversial legislation that has the capacity of gumming up the work of Parliament for months to come.

So does that mean that nothing can be done to make changes in the Lords? The answer to that is “no”.

To my mind, the most fundamental criticism of the Lords is that with 785 members eligible to participate it is clearly is too big. It is too big and should be reduced. It was in that spirit that I set up a special committee under the chairmanship of Terry Burns, who is now the chairman of Ofcom, and they came up with important proposals which, crucially, did not require legislation – only the agreement of the House.

They recommended that:

• There should be a cap on the size of the House at 600 and that cap should not be exceeded by any Prime Minister;
• New appointments should be based on the results of recent elections to the House of Commons;
• New members would be appointed for 15-year terms and
  that some existing members would be required to retire.

And the really significant feature of these proposals was that in a debate on them in December they were overwhelmingly accepted by the Lords themselves. There was no vote against them. And that of course is important because to make changes without legislation requires as much political agreement and consensus as is possible. But it also requires the Prime Minister to agree to the changes because obviously the proposals do affect her right to appoint new members.

As I stand here this negotiation is still in process but to her credit Mrs May has already made important moves. She has:

• Agreed that a reduction in numbers is necessary;
• agreed that she herself will follow a path of moderation in new appointments – in other words that the days of mass appointments under Cameron and Blair have come to an end;
• and also made it clear said that no longer will the holding of a particular office mean that the holder comes to the Lords.

These are all significant moves forward and what really matters now is that we should get some agreement on the cap – the maximum number of peers that are in the House.

Of course there are other issues. You have to remember that it was as recently as 1958 that women life peers were first appointed. They now make up 30% of the life peer total. Not enough, but it shows not only the direction of travel but the undoubted quality that has been added to the House. Indeed, the two most powerful people in the House – the Leader of the House and the Leader of the Opposition – are both women. And indeed we recently appointed the first woman Black Rod in the 650-year history of the role.

There is also an intriguing discussion on appointing non-Parliamentary peers. Peers who do not have the right to sit in the House which might be a way of recognising the contribution of, for example, some leading businessmen who we want to go on working in their particular industry or field.

My last word would be this. Before putting forward new plans of reorganisation, we should ask what do we want the second chamber to do. Our role at present is to check and to improve legislation, and at times to ask the Commons to think again - while always recognising that, in the end, the elected House should have it’s way. We are already constrained in what we can do. There are a number of conventions and statutes which, together, enshrine the primacy of the Commons over the second Chamber: 

• For example, bills implementing manifesto commitments are not opposed by the House of Lords;
• The House of Commons, not the House of Lords, decides levels of public taxation and public spending; and
• Governments should get their business ‘in reasonable time’.

We do not have an ambition to increase our powers and even less a wish to destroy Government legislation. But we do not want to become a purely party-political chamber -we already have one of those. Of course, from time to time there will be differences along the way, but what I would ask is that the public judge us on the final outcome not the initial disagreement. Our aim is to improve laws, not to sabotage them.