Lord Speaker addresses Women's Institute: transcript

The Lord Speaker, Baroness D'Souza
11 June 2016

The Lord Speaker, Baroness D'Souza, spoke on the role and future of the House of Lords at the annual meeting of the National Federation of Women's Institutes (NFWI) on Saturday 11 June 2016.

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I am honoured and delighted to have been invited to speak in this the 101st year of your existence. We have over the years forged good links between our two organisations. A guest speaker from the House of Lords visited the Leicestershire and Rutland Women’s Institute in March and we are planning further visits to the Isle of Ely and Cornwall. It seems that we enjoy one another’s company.

There are two distinct parts to my talk here today, the first is to argue the importance of the House of Lords in the legislative process, and the second, to suggest that its present composition is not ideal for the House to fulfil its purpose.

Part 1

So what is the House of Lords, who is in it, and what is it for? A surprising number of even constitutionally literate people have little idea. And yet if the House of Lords were to disappear tomorrow it would most probably have to be re-invented the next day. It plays a vital role in revising and scrutinising draft legislation before becoming the law of the land, affecting all of us.

One of my colleagues, Michael Dobbs, put it best in a recent interview:

“[The Lords]”, he said, “are really parliamentary worms. We take all this rubbish that comes from [the Commons], and it disappears inside the House of Lords, in darkness, because nobody knows what it is that we do, and it reappears six months later. It might not be perfect, but it is always more fragrant and more fertile than what went in.”

Very simply the Government of the day devises laws which are then drafted and debated in the House of Commons, the elected House. But major problems begin to arise – the Commons has to deal with an avalanche of draft laws or bills, especially at the beginning of a new administration following a general election. Governments of whatever colour come into office full of zeal to make the world a better place and to make their mark on history. This too often gives rise to a sudden rush of ill-thought through, contradictory and poorly drafted clauses to bills.

MPs are allocated a certain amount of time for each bill. When they reach the end of the allotted time, that’s it—there is no further opportunity to change draft laws. The risk therefore is that unrevised bills would become the law for the courts to impose, often to the disadvantage, even to the detriment, of us all.However, this draft legislation then comes to the Lords who have no time limit to their deliberations – it takes as long as it takes to revise pages and pages of often complex bills, technically, morally and ethically. And this is the main function of the Lords: to revise and to scrutinise line by line and in so doing to hold the Government to account. The Lords do this in various ways but usually at Committee stage where amendments to bills are tabled and voted on.

You might ask ‘What justification is there for this unelected group of aged people to adjudicate on legislation?’ It is a good question and I will try to answer it briefly. Since the Life Peerages Act of 1958, people who have achieved distinction in their professional fields have been appointed to the House of Lords. Today you can find world renowned experts in just about any field you can think of—medicine, science, law, philosophy, education, welfare, architecture, climate change, the built environment, crime, the arts—and the list goes on.

Even those who have retired from their professions maintain frequent contact through professional associations, and through membership of civil society organisations that promote their particular interests or causes. For example, one peer who was formerly Her Majesty’s Chief Inspector of Prisons is an active member of almost all those voluntary and campaign groups that have anything to do with prison conditions, rehabilitation, sentencing, or youth offending. His views are deeply respected by his fellow peers and by the Government of the day –because he speaks from such a wealth of experience rather than as a party political affiliate.

Another example concerns legislation, governing stem cell research and use of 14 day old embryos – a matter you will agree which raises many and deep religious, ethical and scientific implications. The Lords debated and argued the draft bill for days. Many of those who spoke in favour of maintaining the UK’s pre-eminent world position in the field of regenerative medicine were themselves practitioners, lending scientific, and not just political, weight to the debate.

They argued that the only way to develop measures to counteract inherited conditions was using stem cell research and won the day; certainly by force of argument supported by the expertise that many held. There are many examples of these kinds of interventions made by the Lords that ensure a bill leaves the Lords in a very different form from the one in which it arrived. In the parliamentary year 2014-5 the Lords tabled 3,217 amendments, of which 1,213 were agreed and many more accepted in principle by the Government.

In more recent times it is the Lords that have insisted that the Government think again:

  • on imposing child and working tax credit cuts
  • on accepting some of the 3,000 unaccompanied children languishing in refugee camps in France
  • on a commitment to increase social housing
  • on minimising the impact of the so-called ‘bedroom tax’
  • on maintaining a degree of legal aid
  • on the Tampon Tax
  • on disabled children having the right to attend mainstream schools, and
  • on funding for political parties.

The Lords is more driven by issues than it is by party politics although of course party politics play a part. So what happens when the Lords, which does not in normal circumstances have a veto, objects to elements of legislation and sends an amended bill back to the elected Commons for agreement? The Commons can do one of three things: It can accept the Lords changes, it can reject them or it can rephrase or put into its own words the changes sought by the Lords.

What happens if the Lords are so adamant that they dig their heels in on a particular clause? It can and has happened most especially on issues to do with civil and individual liberties. For example NOT increasing the number of days any suspect can be held in detention before being charged.

Well we then go into ping-pong, back and forth between the Houses until a compromise is reached which it usually is. Sometimes this can take a long time - in 2006 the Lords sat continuously for nearly 40 hours while considering a bill.

Ultimately however, the Government of the day must have its way in the elected Chamber. This is particularly accepted if the legislation is a so-called Manifesto Bill, meaning one that was promoted on the platform of the winning side in a general election. If, and this is very rare, the Lords absolutely insists on its changes the Government can invoke the Parliament Acts – legislation that goes back to 1911 when the Lords objected to Lloyd George’s ‘peoples’ budget’; it simply means that the Government can override Lords’ objections and enact legislation to which the Lords has not given its agreement – albeit the law will be delayed for up to a year. This has happened only seven times since 1911 and most recently in 2004 to insist on banning hunting with dogs.

Let me summarise very briefly: the Lords has a distinct and important role in revising and scrutinising legislation and holding the Government to account. It also plays an equally important role in its select committee work producing reports that influence government policies and are widely respected throughout the world.

We too for example have looked at the issue of food waste – which has been discussed here today – and we made recommendations to give far greater emphasis to the distribution of surplus food via food banks and charities.

The Lords has also in the last two years produced intensively and extensively researched reports on subjects such as Affordable Childcare, The Arctic, Extradition Laws, Sexual Violence as a Weapon of War, Social Mobility, the Built Environment as well as a host of scientific reports on alternative energy, climate change, immunisation, HIV/Aids, pandemics and the like.

We know that although the age profile of the lords is embarrassingly high, (but coming down) there is a pool of wisdom. Diversity too is increasing, 26% of members are women (not enough but better than the 17% when I joined in 2004), all nine major religions are represented as are ethnic and minority groups.

So what’s to criticise – the Lords are doing a good job and many small changes to procedure and practice over the years taken together mean that the Lords is by no means unreformed.

Part 2

Dear colleagues I have to tell you that all is not well in their Lordship’s House.

The House is far larger than it needs to be to fulfil its role – increasing the burden to the administration and to the taxpayer.

Peers are sometimes appointed for reasons other than their expertise or indeed willingness to contribute to the work of the second Chamber.

An increasing number of former MPs are being appointed which shifts the balance towards a more politicised House.
The Hereditary Principle still operates albeit to a much reduced degree.

The House as presently constituted does not represent the party balance as shown in recent elections.

These factors have to my mind contributed greatly to a downturn in the reputation of the House and indeed to its effective working. Let us look briefly at the implications of some of these factors.

The size of the House – I am almost too embarrassed to tell you that we currently have well over 800 members. The only larger chamber in the world is the Chinese National Congress which is not really a parliamentary body at all.

How has this happened and why? Very simply because there is no, nor ever has been, any cap on the size of the Lords, appointments to which remain in the patronage of the Prime Minister of the day. In the last year out of 64 appointments to the House, only four have been crossbenchers or independents with no affiliation to a political party proposed by the Independent Appointments Commission. In contrast, 56 appointments have been party political.

While some of those appointed are clear contributors to the work of the Lords, too many are not. In fact in one or two cases those appointed decline to make any contribution other than voting due to the fact that they are still acting as Special Advisors to the Government.

A careful analysis of attendance, voting, and contributions to debates, oral questions, and committees indicates that the Lords – a full-time Chamber with part-time members - could very comfortably carry out its work with no loss of expertise or diminution in the close scrutiny of legislation with between 450-500 members. The total cost of members’ allowances and travel is around £20 million per annum. So reducing the size of the House by about 250 members would represent a significant saving to the taxpayer. Other advantages of a more rational and less politically driven recruitment process could include more time for substantial debates, more sustained questioning of government policies, and perhaps a change in the perception of an overstuffed and unnecessary second Chamber.

A further difficulty is the Hereditary Principle. Those Hereditary Peers who remain in the House are valuable contributors and offer in some cases exceptional expertise. However the Principle surely should not continue in this the 21st Century?

The 1999 House of Lords Act under the Tony Blair administration got rid of the majority of the hereditary peers - some 650 – but a political compromise allowed for the retention of 92 who are elected by their fellow hereditaries and replaced by means of a by-election when one dies or retires. This fudge has a complicated history but was intended to remain until so called ‘full’ reform of the House – meaning moving towards an elected chamber - was agreed. However, the Principle could and should be ended today, by a simple law to stop by-elections.

As things stand at the moment the Government fairly often loses votes in the Lords. Although these changes can be reversed in the Commons, the Government does not have a generous working majority and so Ministers, quite understandably, fear losing their legislation. One way of counteracting this would be to appoint more Conservative peers, moving the Government closer to a political majority and thereby helping ensure that its legislation goes through. This is not just a problem under this Government. The Labour Government appointed hundreds of new peers during their period in office from 1997 – 2010.

There is nothing to stop the Prime Minister of the day (again of whatever political party) doing just this. In fact there are constant rumours that a new list is being drawn up to be announced at a not too politically sensitive time. While everyone accepts that the House of Lords needs refreshing and that new members bring new ideas and a liveliness to the House, we need to have agreement on what a modern, effective revising chamber should look like and equally agreement on how we arrive at that happy position.

This unfortunately could take 100 years! There have been several attempts at full scale reform of the composition of the Lords in the last 15 years. Each one has been defeated – not always in the Lords but in the Commons too, where MPs may perceive a democratically elected House of Lords as a threat to their own influence.

What has been a great deal more successful in terms of reform is incremental change. Thus in the last 10 years we have managed to introduce retirement (voluntary as yet, but gaining momentum), suspensions and even expulsion for repeated non-attendance or gross misbehaviour. This may seem very tame but I have to tell you it is a seismic shift! Nevertheless we still have a long way to go.

The House of Lords is a self-regulating body which is why my role as the Lord Speaker is so different from that of Mr Speaker in the House of Commons. The House polices itself, it makes it clear if members transgress the conventions of the Chamber, it decides through various committees how business should proceed and what changes should be introduced. As a self-regulating chamber I feel it could do a great deal more to be a smaller, tighter more effective upper House.

At the end of last summer I convened an informal cross party group to untangle what we might be able to do to achieve this aim within the boundaries of existing legislation. At all times we had to bear in mind that radical change was not an option – peers sit in the House by means of a Writ of Summons from the Monarch and only primary legislation can alter this.

The Group therefore proposed Principles regarding the House of Lords to which all peers might be able to lend support. I hope that these Principles will soon be put to the House in the form of a Resolution and voted on to serve as a basis for any number of smaller private members bills which would be the mechanisms by which the Principles were implemented.

We arrived at the following Principles:

  • That at all times the Lords should be no larger than the House of Commons thus introducing for the first time in history a cap on the size of the revising chamber.
  • That there should at no time be a political majority in the House of Lords.
  • That at all times at least 20% of Peers should be Crossbenchers or Independents with no Party affiliation.
  • That there should be an appropriate party balance in the House, perhaps reflecting the average votes cast in the last two or three elections.

There is inevitably resistance to a programme of Principles, because it is seen as a means of limiting the Prime Minister’s patronage to appoint peers, which is a very potent power.

However what is the alternative to small, well-thought through, incremental changes to tackle the major problems that the House itself acknowledges; the alternative is an unwieldy ever growing House with increasing party political representation looking inwards rather than outwards. And above all failing to hold the Government of the day properly to account.

My job as Lord Speaker has been in large part to promote and protect the reputation of the House of Lords. I do believe that time has come for a self-regulating House to regulate, in order to regain a reputation for reasoned, independent and robust scrutiny of laws that affect us and our families and our livelihoods.

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