Are We Seeing a New Golden Age of Parliament?
Thursday 5 July 2007
A British Academy discussion evening chaired by
Peter Riddell, The Times
Hugh Berrington, University of Newcastle (Co-Convenor)
Alex Brazier, Hansard Society
Philip Cowley, University of Nottingham (Co-Convenor)
Meg Russell, University College London
Philip Norton, University of Hull
Baroness Onora O’Neill (President of the British Academy): Good evening. I am the President of the British Academy, and the British Academy as many of you know, but some of you may be here for the first time, is the national Academy for Humanities and Social Sciences.
We have a very topical topic, as one might say, for this evening, but I promise you that all the planning was done long before we realised quite how topical it would be. The panellists have already been mulling this over all day, but we will all have many questions about the specific moment. It is not every week in which a Prime Minister announces that he will hand over prerogative powers to Parliament. Does that make a difference? What difference does it make? There will be many questions that you will have that are topical but this was an occasion that was planned a good deal before we knew that.
We are very fortunate to have Peter Riddell of The Times as the Chair for the panel. I will hand over to Peter and he will tell us the rules of the game.
Peter Riddell: Thank you very much indeed. Even walking down the steps talking to you about the Green Paper on the government, I realised we had discussed one of the problems of it. It is rather like a Catherine Wheel, spilling out ideas, and there are various reasons why this has happened, but the timing could not be better to have this session this evening. Of course, we know that the Government has a grid which the British Academy organised beforehand with careful planning with Gordon Brown! We can view the result that way, but it could not be more topical with so many ideas, I think more ideas than the Government realises were produced without complications. For those of us in what is described as constitutional business, as everyone on this panel is, I am not only in my journalistic day job, but I am also Chairman of the Hansard Society, and in the Hansard Society’s role too are many people in this room as well who are exercised and intrigued by what is happening.
The format this evening is to have presentations from the speakers. I will exercise discipline. In Philip Norton’s house, one of the Government Whips gets up and ‘tut-tuts’. I will be somewhat firmer than that, Philip! I know you keep perfectly to time! Then we will have a question and answer session and given some of the people in this room, I would like to air some of the issues which were raised in the Green Paper.
We will start with Hugh Berrington, a veteran political scientist and student of legislatures, and he will provide some historical perspective. Then, Alex Brazier, who is Director of the Parliament and Government programme at the Hansard Society, and who can frighten Parliamentary clerks with his knowledge, and a year or two later they adopt his ideas. After that, is Professor Philip Cowley who is an expert on Commons rebellions, having learned his skills from Philip Norton on that, and also in terms that are very important in relation to the Academy, makes his knowledge known via his website, and it is an important method of education. Perhaps the educational message which Professor Cowley gives ought to be spread more widely.
After Philip, Dr Meg Russell, who is the expert on the House of Lords, is recognised as such by their lordships themselves. If you look at any debate within the House of Lords and their future, you recognise an intelligent speaker because they quote Meg! Some of her views on the Lords have matured and changed in the last two or three years it would be fair to say as the Lords themselves have changed. She has recognised that, and I always find her work on the House of Lords to be stimulating, original and a corrective, which I as a journalist frequently quote to those who make rather ignorant observations on it.
Our final speaker will be Philip Norton, who will be doing a summing up. Philip is an academic practitioner. He balances his week between being a very successful academic at Hull University, looking at the legislatures throughout the world and the constitutions, and also is a very active member of the House of Lords. He was Chairman of the Lords Constitution Committee until two or three years ago which produced some very interesting reports and some which have had a considerable influence.
We have a galaxy of stars! Hugh!
Hugh Berrington: Thank you very much, Mr Chairman. I have been asked to give a brief historical overview lasting not more than eight minutes, and this focuses on the relationship between government and Parliament.
A question that might be posed in such a context is how did it all get like this, and the second question, was it always like that? Contemporary criticism emphasises that the government is too dominant over Parliament. A second variation, very widely voiced, is coupled with the claim that government control over Parliament is becoming stronger, and particular weight is put on the role of the Blair Government. That is disputable, but I leave that to others to argue that.
The third stage of the argument is that there was once a golden age of Parliament, when Parliament was a bulwark against oppressive, over-powerful administrations – once upon a time. When asked the question 'when was this golden age?' to which they point, some people say it was before the rise of Labour and the payment of MPs, the payment of MPs started the rot. Some would put it in the early post-World War period, before the career politicians came on the scene, who were allegedly the basis of Executive dominance.
The Power Commission, formed a couple of years ago under Baroness Helena Kennedy, seemed to put it just before the coming of Margaret Thatcher, but there are others, even more disgruntled, who see the golden years has having flourished up until Tony Blair entered Downing Street.
Thanks to the research of some of those present, Philip Norton and Phil Cowley, we are in a position to answer some of these questions precisely and in detail. However, just a few words on that golden age. It is usually located in the 19th century, before the rise of what are called strong parties when MPs were men of financial substance and respected in their communities. What I seem to read here is that there is a kind of wish fulfilment, perhaps more appropriate to Freud’s theory of dreams than to a history of the 19th century. It expresses an impatience with the modern world, with all its messy compromises, all its frustrations. In moments of whimsy, I say it is like the world of Midsomer Murders but without the murders!
Some, however, would point to a particular historical period, the period of 21 years between 1846 and 1867, with the collapse of what is called strong government. Having emphasised that, note that there was very strong criticism of our arrangements at that time. Many people became disillusioned and impatient of this world in which it seemed to be drifting, directionless.
When did this Golden Age, whether it was golden or merely bronze, end? I suggest that the critical date is 1886, and the reason why 1886 is important is that at that moment the divisions in British society burst wide open with the first Bill to confer Home Rule on Ireland. At this point, with the intense party competition, voting in the House of Commons becomes increasingly Whip dominated. If you were to look at the session of 1890 (not 1990), if we look at the behaviour of MPs of the governing party, we see a much more government-dominated House of Commons than in any of the sessions in this century of 2001.
That political system was established in or before 1886; it is arguable that in fact with the Conservative Party it really goes back 10-15 years earlier. That political system was inherited by the new party system formed after 1918. The last 40 years since 1966, and particularly the last six years, have seen a gradual loosening of the inherited bonds. It will be the development of that which will be the substance of the contributions we are going to hear today.
Thank you. [Applause]
Peter Riddell: Thank you very much indeed, Hugh. That set us up perfectly. When you were talking about men of substance and independence, I kept thinking of the new Labour MP of Grantham and Stamford, a man certainly of independent means. I am not sure otherwise he fully fits into, but thank you, that was perfect.
Now Alex Brazier will give us his perspective.
Alex Brazier: Thank you, Peter. I was going to run through more where we are now and where we might be going. When I was preparing to answer the question 'Is this the Golden Age of Parliament?', my answer was no. After this week’s reforms, the answer is still no, and I will come to why I think that is the case and make some observations about the reforms. What hopefully these historic reforms will show this week is that the nostalgia claims that the golden age is always inevitably in the past are not correct, and I will explain why. There are many examples of people who wish to make it clear to the public at large that we are at an incredibly low ebb of Parliament, and I will give one classic example of the genre which some people may have heard today, but is worth repeating. It is from Henry Porter in the Observer earlier this year, in which he asserted:
'Ten years of Tony Blair have seen the emasculation of the Commons. It is one of the assured parts of his legacy that he leaves the House of Commons in a far worse state than he found it. The place is a glimmer of its former self, a Parliament of political shades, the Chamber has rarely seemed so listless, so disconnected from the government of the British people, so lacking in self-confidence and authority'.
I would argue that that is wrong, and I will give some reasons as to why I believe that is the case. We will hear from Phil, Meg and Philip about other developments within Parliament and both Houses, but I would like to run through very briefly what has happened within Parliament in terms of the way it operates in the last ten years.
There have been a huge number of changes which I would argue have improved the way it holds government to account in the way that it does its business, and these include reforms of Select Committees, payment of Select Committee chairs, the appearance of the Prime Minister before the Liaison Committee – not something that most heads of government willingly choose to do, and interestingly something that the First Minister of Scotland has now agreed to do, so rather than lagging behind it seems to be leading on that one – many, many changes to the legislative process including probably the most significant change for the last 50 years with the abolition of Standing Committees, and most recently changes to the way backbenchers are going to hold the government to account. I could go on in a rather more anorak-y way about parliamentary procedure, but I promise that I will not! Suffice to say that all sorts of things have happened which I would argue have improved the way that government is held to account by Parliament in the way it operates.
However, although these may excite Westminster watchers, including nearly everybody here, it is absolutely true that it has not come through to the public very well. Where the prophets of doom may have some sort of validity to their case is that the public clearly are very disconnected from the political process. Evidence from the Hansard Society clearly illustrates this. Just to give a couple of examples, when we asked in our order for political engagement how much you trust politicians generally, we were told none or not very much, 71 per cent, 26 per cent a fair amount, and a solid 1 per cent saying a great deal. I would love to meet some of the 1 per cent because they never appear to be anywhere I go! Satisfaction with Parliament, 35 per cent; with your own MP, slightly better at 41 – there is often a bit of a myth that people do not like politicians as a whole, but they love their own MPs. In fact, the gap is not that big, it is 6 per cent. Clearly there is statistical evidence that the public are rather disengaged.
When we did some focus work, what came to mind when they talked about Parliament and we asked people to compare the two with animals, out came snakes, weasels, foxes, rats, donkeys, wolves and vultures! It may be there has never been a society on earth that has described their politicians as eagles, gazelles and lions, and may be we should be suspicious if that was the case, but it is indicative of an extremely negative view within the public. That is probably one of the reasons why the Government has brought forward these very welcome reforms this week, to try and reconnect with the population as a whole and to change the terms of trade of the political debate.
I will very briefly go over some of them. The changes to the prerogative powers, which are a step forward, have been wrongly described as a restoration of powers to Parliament. Parliament never had these powers in the first place, so it is historic change. Some of them will make a difference to do, we hope, with scrutiny of appointments. There will be improvements to the scrutiny functions, the Civil Service Act, there is a whole range of things in there, and as a whole, I welcome them enormously as do the Hansard Society.
However, there are some caveats to be added there. For a start, these reforms have not been put into practice yet, and implementation as with almost anything, is all, how they actually work in practice, whether they do come into force and how they come into force. Perhaps most fundamentally is how Parliament responds to these. There are many extra duties and powers, responsibilities and work, that Parliament needs to do if it is going to change the relationship between Parliament and government. The Hansard Society is as guilty as anybody in always advocating more work for Parliament to do, more work for Select Committees. This really is a lot more work. Parliament as a whole and individual parliamentarians have to respond or else it is not going to work, and that is probably one of the crucial things.
Another point is whether the public even notice? Are the public so disconnected that almost anything could pass them by and the whole image of Parliament, how it is perceived through the media, all these things are crucial. One thing the government and Parliament must do is explain that there have been enormous changes in this area, otherwise it will be an anorak obsession which would be sad.
It would be churlish to go on about all the other things we wish to happen and the things that are outstanding, but I will, because it is not as if this is the end of the story. There are a number of things the Hansard Society and many others have advocated for a long time. Most notably perhaps is a report we did last year on financial scrutiny of Parliament, how it holds government to account for our spending and taxation. Essentially very little has changed on that. All that the proposals say is that it will be a more simplified way of handling estimates which is welcome but only tinkering on the edges, there is the whole area there. There is the whole area of how Parliament organises itself, how it has more independence from government in terms of a business committee, again it is a rather technical thing, but it would be symbolic that Parliament was able to organise its own business, and one other thing, the whole area of Private Member’s Bills, so that individual parliamentarians can express themselves in their legislative capacity without government being overly-dominant. There are clearly many things that could be done as well. That said, we welcome what has happened this week, and we will monitor it and hope it succeeds.
It has been said many times that Christmas has come for Parliament or parliamentary reform. No, not quite. I would say probably entering Advent, and we will hopefully proceed and all good things are foretold. We will wait to see them happen! [Applause]
Peter Riddell: Thank you very much indeed for that, Alex. Now Philip Cowley.
Philip Cowley: I have been asked to speak about backbench behaviour for two reasons. First, it is what I do, and everyone has to have a hobby and that is mine. Secondly, because it is a central part of criticisms about Parliament, this idea that MPs today are slavish adherents to the party Whip. To pick up on Hugh’s point, there was a time – and no-one is quite sure when – but 20, 30, 40 years ago when we had these independent people who stood up to the party Whip, amateur politicians usually, not beholden to the party. That is a central part of the decline thesis.
It is not true, and I am going to show why in a minute. I want to start with two examples of how you get it wrong.
This is from the Power Inquiry which came out last year. This is not an atypical comment on backbench behaviour and it says:
'The Executive in Britain is now more powerful in relation to Parliament than it has been probably since the time of Walpole'.
As I say to my students, the word 'probably' is a good word to insert. If you do not know what you are doing you can get away with all sorts of things if you put the word 'probably' in a sentence! The Whips have enforced party discipline more forcefully and fully than they have in the past.
There is, as some of you know, a very snobbish academic put down which is to say dismissively that you would not give somebody a 2.2 if it was handed in as an essay. If this was handed in to me, I would not give it a 2.2, I would fail it, and then I would expel them from the University and bar them from any other academic institution in Britain, and then I would hunt down and kill all of their family, and even then I would think they had got off pretty lightly! This is just cobblers from start to finish. None of it is backed up by evidence, however much it might be part of conventional wisdom. Just to show that it is not the Power Inquiry, Roy Hattersley was saying something very similar in 2005, and Simon Heffer from the right said something almost identical in the same year.
As I say, this is a central idea, this idea that there used to be very brave backbenchers, and now, to use Hattersley’s phrase, we have these supine backbenchers.
We have known in the academic community for at least 30 years that this is not true. Philip Norton who is on the right of the panel in all sorts of ways published his first book in 1975 and disapproved this idea of the decline of backbench independence. Since then, other studies have confirmed this.
This very simple graph shows the rate of rebellion, percentage of division seeing a backbench revolt, dating back to 1945 and going up to the last full Parliament of 2001-2005. If you need the colours explained to you, you are in the wrong room!
As you can see, if you look back to the 1950s, the year of the independent backbencher, the great amateur politician, almost absolute cohesion on the backbenchers. There are two years in the 1950s, two whole years, when not a single backbench government MP defies the Whip. They have absolute 100 per cent cohesion in every single vote. Then there is a sea-change somewhere around the 1960s or early 1970s, there is a bit of debate about when and why, and for the rest of the post-war era, you see a much higher level of backbench independence, and the 2001-2005 Parliament saw the highest level of backbench rebellion in the post-war era. This idea that there has been a decline is not just wrong, it is the opposite of the truth.
Just to give you another example, this is the first session – I do not want to include the 2005-6 figures in the overall table – but here are the first sessions of every Parliament, again since the war, the 2005-6 session which finished in November 2006 was the highest rate of rebellion in a first session. You had the highest rate of rebellion in a Parliament, 2001-5, and then the first session of this Parliament, a higher rate still.
Just to give you a couple of overview figures. In the Thatcher era between 1979 and 1990, there were a total of 4,259 votes in the entire Thatcher era, 11 and a bit years. In the Blair era which is shorter, the figure goes up to 6,500, so there is a 50 per cent increase in backbench dissent when you compare the Thatcher era to the Blair era, even though the Blair era is a bit shorter. This idea of decline, this idea that somehow backbenchers today are servile, today are cohesive, is false.
Just to chuck in some examples of what those were, we start at the top with Iraq, the largest backbench rebellion faced by Tony Blair, 139 Labour MPs rebelled on that in the largest rebellion. Then Trident, top up fees, trust schools, incapacity benefit, foundational schools – down the list we go.
Two things are striking about this table. First is the range of policy that the Government faces trouble on, foreign policy, defence, education, more education, benefits, hospitals, civil liberties, probation, smacking and so on, more benefits. It is across the whole vista of Government that Labour MPs have not been prepared to stick to their government. The second thing that is important about this table is the size of these figures. Not only is it that Labour MPs are rebelling frequently, they are rebelling in number. The largest rebellion is 139 against the Whip by MPs of any party on any issue going back to the corn laws, 150 years. Trident, the largest defence rebellion ever faced by a Labour Government. Top up fees, the largest education rebellion ever faced by a Labour Government. Trust schools, the largest rebellion at Third Reading ever faced by a Labour Government, and so on. You can go down this list and tick off other records. As Alex said, this is anorak-y stuff, but it is important. You are measuring both the frequency and the size, and however you measure it, this is a rebellious time.
I want to end with a quote. This is quote from 1698, not 1990 or 1995, but 1698, and it complains about backbenchers, it complains about MPs, 'impenetrable by either shame or honour, voting always the same way and saying always the same things'. Nothing has changed, and instead of moaning about the present, it would be better if we grew up a bit and accept that this has just been part of political life for hundreds of years.
Thanks very much. [Applause]
Peter Riddell: Thank you very much indeed, Philip. I think 1698 was also when the old Whitehall Palace burned down. I am not sure whether there was any connection. Thank you for your typically well-expressed and forcefully expressed views. Now, Meg.
Meg Russell: We have been asked to talk about the potential new golden age of Parliament, and what I want to talk to you about is how, contrary perhaps to popular perceptions, the House of Lords matters and the House of Lords matters more than it did a few years ago, and perhaps we ought to appreciate it a bit more than we do.
It is hard to hear anybody mention the House of Lords without mentioning the word 'reform'. We see it as unreformed, we only ever talk about it in that context, but over the last few years, I have come to think that may be the reform that we have seen, the reform in 1999 to remove most of the hereditary peers from the Chamber, was more important than we gave it credit for, and perhaps it is reformed, albeit not as much as some people would like.
The 1999 Reform, as I am sure most of you know, removed the great majority, 90 per cent, of hereditary peers from the House of Lords. It was supposed to be the first stage of reform and it has not been followed by another. The result of that reform was to halve the size of the House, roughly. In political terms it removed the least defensible element of the House of Lords, it remains unelected, and most importantly, it fundamentally changed the party balance of the House. Some people say – and I think there is some truth in this – that one of the reasons why Labour was so keen to get rid of the hereditary peers was because they were overwhelmingly Conservative, there were only a small number of Labour or Liberal Democrat hereditaries and a huge number of Conservatives.
People said at the time that what Labour was doing was removing an obstacle to itself in order to make its life easier, and people complained that this would therefore emasculate the House. In fact, if we look at what has happened, it has been the opposite. As a result of the reform and the removal of this great number of Conservative peers, we now have a no overall control Chamber. There are three groups which are roughly equally balanced, Labour, the Conservatives and the independent cross-benchers, and then the Liberal Democrats are relatively well represented as well. It is no longer a Conservative Chamber. The Conservatives cannot defeat Labour on their own. They need the support of either Labour rebels or independent cross-benchers, or what they get most of the time, the Liberal Democrats, in order to inflict defeat.
The peers now feel more legitimate than they did before, in part because of this anachronistic presence of hereditaries having gone, but in part because of this new party balance, where ironically the balance between the parties more closely reflects General Election vote shares than does the balance between the parties in the House of Commons, which is of course famously disproportionate.
Over the period since the 1999 reform, there have been almost 400 defeats of the Government in the House of Lords, compared with the four in the House of Commons. These have been on major issues as well as minor issues, and the research that we have done at UCL on voting in the House of Lords, shows that on many of these important issues, the peers are less likely to back down than they were in the past because they have this greater sense of their own legitimacy, and the result of these defeats is real change in terms of policy. The Government can, of course, overturn House of Lords’ defeats. It can take a Bill back to the House of Commons and ask the MPs to overturn the Lords’ amendment, but that is not done all the time. It takes up precious time in the legislative timetable. If it is an issue on which the peers have public opinion on their side, the Government do not want to draw attention to the fact that they are doing something controversial, and therefore often will back down. Given the more rebellious House of Commons we have, they also fear they could be defeated on some things in the House of Commons if they push the Commons to a vote on something the Lords have proposed which is popular outside the House.
We find that in the majority of cases, when the Government is defeated in the Lords, there are at least some policy concessions. Some of the major policy impacts that have flowed from this are fairly familiar. We have seen repeated blocks to attempt to limit trial by jury. We have seen serious amendments to the Government’s terrorism and asylum legislation, and we have seen repeated blockages of an attempt to introduce a law against religious hatred. That was one where the House of Commons actually backed the Lords against the Government and defeated the Government, rather than backing the Government against the Lords.
The peers in their behaviour are strengthened by other things which our research shows. Public opinion on the whole is supportive of the Lords, despite its unelected status if it defeats the Government on unpopular policies, and actually MPs are supportive of that too, according to our research.
The new House of Lords is having a very significant impact on British politics, and how we have traditionally understood it. As a result of the 1999 reform, the Government is having to negotiate with Parliament far more than it used to have to do. In particular, it is having to negotiate with the opposition parties much more because it needs the support or at least the acquiescence of one or other opposition party to get its legislation through the House of Lords. In particular, it has strengthened the role of the third party in British politics, because Conservatives vote against the Government most of the time. It is the Liberal Democrats who are the pivotal voters in the House of Lords. In those roughly 400 defeats, the Government would have only been defeated about 20 times had the Liberal Democrats consistently voted with them. It is the Liberal Democrats who swing it most of the time. You might ask yourselves why another feature of the last couple of weeks has been Gordon Brown making overtures to Liberal Democrat peers to join his Government. The general effect of these changes has been to introduce a greater pluralism to British politics which we have seen reflected in the discussions in recent weeks.
This greater assertiveness of the current House of Lords is a potential barrier to future reform. It is widely accepted that if the House became elected it would be more assertive still. I think that wholesale reform of the House of Lords remains fairly unlikely. But while we can say that the Government has not delivered on its promise of wholesale reform, and we can complain that the House of Lords remains unreformed, may be we are missing the good thing which is under our noses.
One reason why we think the House of Lords is unreformed is because we continue to get rather clichéd images from the media of elderly gentlemen in ermine-trimmed robes. In fact, roughly two-thirds of the life peers in the House of Lords were put there by Tony Blair, it has a very new membership. Amongst the life peers there is a higher proportion of women now than there is amongst MPs in the House of Commons, there are also more ethnic minority members than there are in the House of Commons.
Another reason why we do not think that the House is reformed perhaps is because many people on the Labour side do not realise the magnitude of what they did when they removed the hereditary peers, perhaps because they did think they were removing a Conservative blockage at the time. They did not realise what they were going to bring about.
The House of Lords has always defeated Labour Governments, and it continues to defeat a Labour Government. In that respect you could say that not very much has changed. What has changed is that if we see a Conservative Government some time in the next few years, Labour and the Liberal Democrats in the House of Lords for the first time will be able to combine to defeat the Conservatives in a consistent way, and this pluralism in British politics will apply even under a Conservative Government which has never been the case before. The irony is that Labour has introduced a very fundamental reform of the House of Lords, but it will not actually appreciate it itself until it finds itself in opposition. [Applause]
Peter Riddell: Thank you very much indeed, Meg, for those enticing remarks and correctives to many of the popular views. I often think when you talk about the Labour side, the real division in understanding is between those who are in the Commons and those who are in the Lords. It is not only the Labour peers who realise what has happened, but it is Labour MPs and Labour Ministers who do not fully realise it. That is where the division lies.
To round off the panel discussion, Philip Norton.
Philip Norton: I was not quite sure what I was expected to say, not that I have ever let that stop me in the past! I adopt the politicians’ approach, if you see an audience, address it! I was not quite sure whether I should look at the historical perspective, make some comments on the Lords, or comment on the Government’s announcement this week, so I thought I would cover all three in a minute!
Let me start with the historical perspective. To understand Parliament, we have to define what we mean by Parliament, by a legislature. If you look at a dictionary, it will say that a legislature is a law-making body. No, it is not. If you look comparatively at what legislatures actually do, that is not what they are about. They are executives of the bodies that generally craft them, the ones that make the law. What defines a legislature is the giving of assent to measures that are going to be binding on society. Parliaments, legislatures, are law-effecting bodies, not law-giving, not law-making bodies. It is not the law of the land until it is approved by the legislature, and before giving that approval, the legislature may subject it to intense scrutiny, may even say 'no' to it, but that is what a legislature is about.
That is important in looking at Parliament in the United Kingdom, because historically Parliament has always responded, it has been a reactive legislature, it has been there to give approval, it has not been there to initiate, to make the law. That has been the responsibility of the Executive, initially the Crown and now ministers acting on behalf of the Crown. It is important to understand Parliament throughout its history, and any deviation from that has been historically atypical.
That provides us with the basis for trying to look at Parliament over the past 100/200 years, because it is looked at mistakenly from a conceptual perspective, that thesis of decline. That is misleading, because you understand what Parliament is about, but what you should be analysing is adaptation, how was Parliament adapted to changes within the Executive which itself is responding to changes in society. What we should be analysing is how Parliament has changed, has adapted to that, and if you like, whether it has managed to keep pace with those developments so that it can engage and inform scrutiny, and so influence government before giving assent. That provides a much better conceptual framework, so we should be looking at adaptation.
That brings me on to the second point which is to complement what Meg Russell has said about the House of Lords which has been described by one of my colleagues as one of our best kept secrets – the old joke, if you want to keep a secret you announce it in the House of Lords!
Meg has focused on behavioural changes, but there have been institutional changes as well which complement the point that she has made about how the House has adapted. I have to say that I think the House of Lords is better than the Commons at adapting institutionally without making a great deal of fuss about it, which may explain why not many people notice it. To complement what Meg has been saying, there has been significant behavioural change so the impact of the Lords on measures has increased in the way and for the reasons that Meg has given.
At the same time, what we have seen is a greater professionalisation of the House of Lords in a way that actually complements the House of Commons rather than the challenges it. To some extent, a consequence of the change Meg mentioned, the 1999 change, has emphasised the extent to which in membership, the House is a House of experience and expertise, more the former than perhaps the latter in terms of volume, but a House of experience and expertise. At the same time, the House has become much more specialised, so what was once a plenary oriented body has started to make far greater use of Committees, both for scrutiny of public policy and of the Executive and increasingly for the scrutiny of legislation.
Over the past 20 years, there has been a significant use of Select Committees starting with Science and Technology and then delegated powers, but in recent years, a quite significant expansion, Science and Technology, but in 2001, the Constitution Committee, Economic Affairs Committee, with the Commons a joint committee on human rights, and complemented since by the merits of the Statutory Instruments Committee, and this year, two new committees, one on Regulators and one on Communications. The House adapts, it creates committees as it sees a need to fill gaps and to complement the Commons, to avoid duplicating so we do not look at departmental responsibilities, we try to go for cost-cutting issues.
You see it as well in terms of legislation. Rather than taking the Committee Stage predominantly on the floor of the House, a large swathe of legislation is taken in Grand Committee, which saves the time of the Chamber and allows for those who are experts in the area to focus on that particular Bill.
A consequence is far greater informed scrutiny through Committee which does not get noticed to the extent that defeats do in terms of legislation, but the work that informs the debate. Peter mentioned that I chaired the Constitution Committee of the House of Lords and we have a rotation rule so you serve for three years and come off. In my three years, we issued 33 reports, three of them major reports, but the others more on the detail of legislation which quite often produced a positive response from government. The work of the Committees has quite a significant impact, a lot of it not overtly apparent, but it does improve the quality of legislation and to some extent that is what the House focuses on. To some extent, it has reinvented itself, but it never really invented itself in the first place. It has adapted, it has changed its role, so it is pre-eminently a House of legislative scrutiny. It is also a House of scrutiny of administration and public policy. By public policy I do not just mean government policy in this country, I mean European Union policy which is a particular area of strength, and also of debate, not just in terms of debating legislation and issues that occupy the House of Commons, but to some extent an agenda setting role - because the Lords has the opportunity of being less partisan than the Commons - to bring issues on to the agenda of political debate outside the context of party debate, issues that might be unpopular, but nonetheless deserve an airing, and there is the opportunity to do that. The House of Lords is adapting.
Just very quickly, to complement one or two of the points that have been made about the Prime Minister’s statement this week, as Alex has said, the powers that are given, it is not to give powers back to Parliament, they are new powers. Formerly if you look at the need to give approval to war, that is the equivalent of 1689 when Parliament decided that the King could not legislate without the assent of Parliament; now the government is saying it will not go to war without the asset of Parliament. On the face of it, they are extremely significant.
Just to put in one or two caveats or limitations, one is conceptual and one is terms of detail. The changes themselves that have been announced are potentially very significant, and are clearly premised on the view that Parliament should be strengthened in relation to the Executive, but not going beyond that in constitutional terms of being part of a clear conceptual view of what the British constitution should be, what is the constitution that is desirable for the United Kingdom which is a matter now of quite considerable debate. There is not a clear constitutional goal in view, so it is how do these changes feed into a coherent intellectual approach to constitutional change?
Then at the level of detail, what was announced this week is the starting point. There is a lot to be added because on the face of it, some of them might not amount to much. Giving the House of Commons the capacity to approve the commitment of troops abroad may seem a significant power. Well, the House of Commons voted on Iraq so the precedent has already been set. As I have argued before in debate and the government to some extent now concedes is in their Green Paper. If you are going to vote, you have to have the information as the basis on which to make an informed judgment, so if the Executive comes along, has a monopoly of information, then the Commons really cannot do much about that, so you have to think how can the Commons have the information – it will never have perfect information – but to what extent can we better inform and circulate informed judgments. How do you deliver that, given the obvious balancing act that there will need to be?
It is that type of consideration that we now need to move to and the point was made in debate on the statement that the devil is in the detail. There is a great deal still to be done, so it is a starting point but by no means an end point. I come full circle, because Parliament will have to take that on board, decide how to change itself, in other words, how to adapt to a changing situation where the onus will continue to rest on the Executive. Parliament’s role is to respond to that. What we have to evaluate is how well it does it. [Applause]
Peter Riddell: Thank you very much indeed, Philip, and thank you all for keeping to your time.
If I might begin our discussion, before we open it up, by asking each of the Panel up here, when you looked at the Green Paper, three points which struck you good and three you are worried about.
Philip Cowley: First would be the terminology, which is the point about these are entirely new powers. Even on the morning of the announcement, I heard it discussed on the radio that these were brand restoring powers to Parliament.
The second would be that some of these are not as great as you think. The power to appoint bishops, I cannot imagine Gordon Brown losing too much sleep over not having any more. War-making powers, as Philip pointed out, the precedent was already set. This is not a huge advance, it is fine to put it on a statutory basis.
The power I thought was most interesting was the power to dissolve Parliament which had a lot of attention, as if this was some great constitutional shift. Then you discovered that the Prime Minister was giving up the right to request a dissolution himself, and you needed a resolution of the House in order to do it. I found myself wondering how many of those the Prime Minister would lose, and the answer is none, the power effectively still rests with the governing party to dissolve Parliament when it wishes to dissolve Parliament, with one or two exceptions.
I suppose the point of concern was what comes next? Brown was very good on Tuesday announcing short term things which were quite good, advance Parliament’s power, and all the complicated stuff is to be consulted on, and no real timetable is set, so we do not know, it could be years. Something to be consulted on has the potential to weaken Parliament. It comes back to Philip’s point about what kind of constitutional settlement you have in mind. The initial announcements all strengthen Parliament and I welcome them because they strengthen Parliament, and they strengthen a system of representative government. What comes next could easily weaken Parliament and it could do it in the name of engagement and participation. I am very suspicious about those two words, they often do not mean anything other than giving middle class people more avenues to sound off.
Alex Brazier: Probably what I liked most was the endpoint, the goal, which was to rebalance the relationship between Parliament and government. That seemed to be a very clear endpoint which is often missed when you get lots of individual things. It seemed very straightforward that there was a government saying that we wished to give more powers to Parliament and that was the first thing that stood out.
In terms of the details, I liked the ratification of appointments, or rather scrutiny of appointments because there is no veto. That may get public attention, that may engage Parliament on some of these key appointments. I particularly like the one on recall of Parliament. I know it will not be used very much and it is relatively small, but it is very symbolic that Parliament cannot recall itself to sit. The Government has to go with that currently and that is a rather symbolic point, so that Parliament has control over its own business. I like the areas about the civil service, to put that on a more statutory footing.
What I did not particularly like was some of the direct democracy stuff about local citizens juries and some of the things we are hearing today about people voting on finance and budgets in their local areas. I have doubts about whether that will really engage people, whether it will be small numbers. That could be my personal prejudice against that sort of thing, I personally do not like that. Also, the fact that there was very little on financial powers, something we have concentrated on. There is a huge area of contention between the relationship between Parliament and government and virtually nothing about it in there.
Peter Riddell: Thank you, Alex. If I could just chip in myself, I find on the appointments angle, we have to look at the detail of it, but there is a real distinction between what are called people who deal with protecting people’s rights, a commissioner and a group of half a dozen, where it is not a veto power, but quite a difficult power is given between announcement and confirmation in a post, and therefore if a Commons Committee reported hostilely, it would be very difficult to go ahead with such a person. Commissioner of Public Appointments, and so on, is a slightly non-defined category, and on what is described as ‘financially sensitive’, and one sees the hand of the Treasury coming in very strongly there, which is the MPC and utilities regulators, where it is very little different to the current position.
The only change in the current position is that when one is appointed, say to the Bank of England’s Monetary Policy Committee, after their appointment, the Treasury Committee produces a report and it does not matter what it says because the appointment goes ahead. Now the only distinction is that the person does not take up the post. There is no suggestion as to legally what would happen if the Treasury Committee said adversely, would the Chancellor say ‘terribly sorry, here’s your contract, we’re tearing it up’. That is very ambiguous, and one would see the hands of the Treasury in that one.
The other thing leads on Meg’s comments. Alex referred to the recall of Parliament, it is actually the recall of the House of Commons. One of the things I found about the Green Paper is apart from the five or six paragraphs on House of Lords reform which effectively repeated Jack Straw’s Green Paper heavily in that respect, what he said to Alan Beith’s Constitutional Affairs Committee a couple of weeks about the continuing cross-party talks and so on and so forth, the rest of the paper is all about the House of Commons.
Meg Russell: I will mention three in total as well. It is becoming increasing difficult for Philip to say something original now! I was going to going to say recall as well, and with some irritation because at the Constitution Unit where I work we are preparing a major report on Commons reform which is due to be published in the autumn. I have just drafted the recommendations of it, and one of the first recommendations was that a majority of MPs ought to be able to demand a recall. We have not even published it and we are going to have to redraft it but it is hard to complain on that basis, isn’t it?
With respect to the Lords, it is interesting. This was a comparative study where we sought to learn lessons from the way other Parliaments do things and what we might import. In Australia, it is the Senate that has the right to recall itself on a majority, the Lower House does not. In practice, however, if the Senate recalls itself, they feel they have to recall the Lower House as well. This may end up being a bi-cameral thing.
Peter Riddell: Does it go to the Governor General?
Meg Russell: No, I think it is right in standing orders.
I was disappointed by one thing. There is a great deal of stuff about giving up patronage over this, that and the other, the judges and bishops and so on. The most important thing that I would have wanted him to do was to give up patronage over the choice of members in the House of Lords. I was quite hopeful that he might do it, because it has put Tony Blair into so much trouble with cash for peerages. For all the good things about the House of Lords, prime ministerial patronage remains very significant. The Prime Minister picks how many people go into the Lords, when they go into the Lords, and the party balance between them, and he also picks the members from his own party, and may be that is fair enough. These are very significant powers, and if Brown would divest himself of those powers, that would be worth a great deal of applause.
The other thing which I rather like in the paper is the focus on the fact that he has done the small things, he has proposed the small things, but he is throwing the big things out to consultation. I agree with Alex, I get a bit nervous about local referenda and that kind of thing, but citizen’s juries are a bit different, because citizen’s juries confront the citizens with the really difficult questions, ask them to go into a lot of detail on them, and then to work out how they would resolve those dilemmas. In our society we tend to delegate too much of that difficult stuff to the politicians who then continually fail us by not coming up with solutions that we are happy with. The House of Lords, which is one of the things he is proposing to send to consultation, is a perfect example.
There was a poll in The Times which Peter wrote up about 18 months ago, asking people to agree or disagree with different statements about the House of Lords. One statement was,
'The House of Lords should be largely or wholly elected because this is the only way it will have the legitimacy to properly hold the government to account'.
Three-quarters of people agree with that statement. Another statement was,
'The House of Lords should be largely or wholly appointed, because that is the only way in which you will get the proper expertise and independence from party into the House of Lords'
Three-quarters of people agreed with that.How can a government make policy in those circumstances? I am all in favour of putting those people into a room and leaving it up to them to resolve it amongst themselves. If they can come up with an answer, may be the government can then implement what they decide.
Philip Norton: I claim my prize because I had three separate points! An interesting point, on the face of it there was a little bit about the Lords in terms of reform, but potentially I think some of the changes could have significant consequences for the Lords in terms of the Lords’ workload. If some of the functions are carried, I suspect they may fall under the work of the Lords. So, something like scrutiny of treaties, the detail of that in most cases is not going to be particularly sexy, it is going to be dull, dry stuff. That I suspect may end up in the Lords because of its nature, but also because of our expertise for looking in detail at that. Some of this may have a relevance for Parliament, not simply the House of Commons, that is my first point.
The second point: one of the things that struck me was a point of omission. You may say that there is no reason why it should be in, but I call attention to it and there was nothing on post-legislative scrutiny which is actually a very important area for Parliament, is a highly neglected one, the Government is aware of it, the Law Commission reported on it last October and the Government was supposed to reply within two months and we are still waiting for the response. Although Parliament is starting to make some moves on this front, through the lawyers and committees in the Commons, there is nothing happening in terms of government, so that was an omission which was an unfortunate one.
The third point picks up on what has been alluded to in terms of wider constitutional change, in terms of the statement, although this is not repeated in the Green Paper. It was stated that Jack Straw will be peripatetic from this autumn, he is going to go round various parts of the country to hear people’s views on whether we should have a Bill of Rights or a written constitution, which perhaps does not seem the best well-grounded and exhaustive way of deciding such great issues. It perhaps reflects the fact that the Government itself does not have any coherent intellectual approach to constitutional change. Let’s see what people think. This is not the best way to test what people think.
I will round off by coming back to a point I have advocated, and that is having something like a Royal Commission or some sort of Commission to look at the constitution. What distinguishes a Royal Commission, or could do, from those of earlier years, is simply we now have the technology that would allow that Commission to consult much more widely than has ever been possible before, so that Jack Straw just going round with his roadshow would be like the icing on the cake rather than the whole cake! There is tremendous potential there to actually consult, but it would have to be put within the context of understanding or delineating some of the options in terms of what type of constitution one wants to craft for the United Kingdom.
Peter Riddell: Thank you very much indeed, Philip. My own view on that was highlighted what Meg had said about the planning we did - I was not surprised by the results we had! – which is that people had not thought about many of the issues. One of the real problems is that people have totally contradictory wishes, and the balance is between how far that is done by the political parties. Much of this comes back to the issue of what role we want for the political parties which is inherent in the power of the parties. That debate is a very central one, which is implicit in much of this.
Could I add one other topic, which was not referred to in the Green Paper, which does need to be debated: when do we have referendums? There is a real problem, and a number of people in this room have written a great deal about it in various forms, but it has been an ad hoc political contingency ever since the 1975 one on our membership of the European Community, and as we are now seeing the debate on the draft European Treaty when it is brought up entirely in a partisan context. That is above all a subject when we need to have established convention on when we should have referenda and when we should not.
Enough of us! Questions!
George Jones (LAC): Shouldn’t the Panel be worried about two recent developments in the Commons Select Committees? Under the guise of scrutiny of policy, haven’t some Select Committees set themselves up as rivals to the real government of this country, the departments, thus going against that old constitutional dictum that Parliament doesn’t govern, it supervises or scrutinises those who do?
I heard Gwyneth Dunwoody say recently that what she was up to as Chair of her Transport Committee was ‘to put Ministers on the rack’, and we can see at this very moment the Treasury Select Committee putting businessmen on the rack. Shouldn’t Select Committees leave off scrutinising businessmen and Ministers, and focus on civil servants who administer policy?
Peter Riddell: George, thank you for that. If I might add a rider to your question, it is very interesting that one of the people who was most persistent in questioning the businessmen two weeks ago, Angela Eagle, is now Treasury Minister. I wonder what the private equity world thinks of that!
Philip Cowley: I am not especially worried by it, George, not least because they are not very good at it. May be if they were very good at it and had Ministers resigning all over the place because they had a grilling in front of the Agriculture Select Committee, there would be something to be concerned about, but at the moment, it seems to me they are getting good at scrutiny, probing, revealing things. They are hardly congressional committees and I would not want them to be congressional committees, to agree with your point.
Gwyneth Dunwoody might think she is good at putting Ministers on the rack; I am not sure that view is widely shared by lots of Ministers – or presumably lots of racks! I can see a theoretical concern somewhere down the line, but I think we are a long way from it at the moment.
Alex Brazier: I would essentially agree with what Phil has just said. I don’t think there is any danger from what I see of improved scrutiny with the Select Committees to become alternative governments. The Executive is always able to ignore anything a Select Committee does. It has no power of veto or sanction, it can simply make life uncomfortable for the government if its scrutiny decides that way. It depends also on what you mean by ‘scrutiny’ in these situations, whether it is rather more rigorous or not. I think that the general balance of power between the Executive and the legislature in this country means that you could have a rather more probing form of scrutiny and it would not sink the ship of state. I do not see that as a problem at all.
In terms of scrutinising business people, I think Select Committees have engaged more with the public on areas of concern than many other parts of the parliamentary process. Whether it is one with private equity, or sometimes they take in other pressure groups or people who aren’t Ministers or civil servants, I personally see that as part of the Select Committee’s role. The fact that it gets coverage, people are concerned about issues such as the private equity role, is a good thing. It should not just be confined to that.
Meg Russell: I agree with the other two. It comes back to the point that Philip Norton made that Parliament doesn’t govern, government governs and Parliament scrutinises. I think that Select Committees scrutinise, they don’t govern. I would like them to legislate a bit more. One of the recommendations in our report which has not yet been stolen by the Government, and we can keep our fingers crossed until the autumn is that Select Committees ought to be able to introduce Bills in the same way that they can in the House of Commons. They are a body of experts. If they want to introduce a Bill, the only way they can do that is through one of the members introducing it through the wholly inadequate Private Members Bill procedure. They can’t do it collectively but they can in many other Parliaments. I would go further than we are now.
Philip Norton: George and I have been having this discussion by my estimation for 32 years! His question didn’t come as a great surprise, though he may be pleasantly surprised by one of the comments I make!
First of all, rivals to government. No, they can’t be, they simply don’t have the resources, so there is no way they are going to rival them. What they can do is inform debate, they can scrutinise and that brings me on the second point, should they be putting Ministers and businessmen and civil servants on the rack? In terms of who they subject to questioning, they should have them all, so it is not the case of one rather than the other, it’s horses for courses, so you get the witnesses who are necessary for the purpose of the inquiry.
However, there may be a point in terms of the form, the style of questioning. Sometimes if it is aggressive questioning, you don’t get the material you want in response, it is actually going to be useful in forming a view. The important thing is that the questioning itself is informed. You have to know what are the best questions to put, and then you have to have the knowledge to evaluate the answers that you are given. There is a point about who is on the Committee, are they trained in forensic questioning, do they know how to question people before them. There is a great deal that could be done to strengthen Committees in the specific tasks they should be fulfilling.
Peter Riddell: I will take several questions together.
John Newham: There is quite a possibility that the next General Election will fail to produce an overall majority. My question to the Panel is what are the implications for Parliament if in their wisdom or foolishness the British electorate fail, even with the current electoral system, to produce an overall majority for anyone?
John Dodwell: I have been an observer of the Parliamentary scene for some 40 years, having begun lobbying in 1968 when I was very pleased the House of Lords did not have a guillotine system and we had matters debated which the House of Commons chose not to. There have been some slides showing the number of the rebellions, but there was no comment on the effect of those rebellions. All we heard from Meg was four Government defeats in the Commons. If we are talking about are the backbenchers more alive, which is one of the subjects for debate, they may be voting against more often, but the effect of that is not being seen. I am old enough to go back to the days of the Tory backbench committees when if you wanted something put through government in the Conservative days, if you couldn’t get passed your backbench committee, you simply didn’t bring it forward. I think the form of rebellion has changed. It is now more open, and I welcome that, but I don’t think you can follow that there were less rebellions in the 1950s or 1960s.
Stephen Lynch: I have a simple question, but possibly with a complicated answer. Do the members of the Panel think, as seems to be the case, we move on towards a written coherent, set in stone, constitution that this would necessarily strengthen the role of Parliament against government, or is the current, more flexible, arrangement where changes in time and the changing style of politics can be taken into account, and allow Parliament a bit more scope to respond and deal with governments as they change?
Peter Riddell: We have three very interesting questions there. One, the impact of a hung Parliament. Secondly, the very interesting point about the balance between discussion within party committees, the discipline point that Ronnie Buck made in his book on Parliament 30 or 40 years ago, the impact of inner party democracy as opposed to overt revolt, and the balance of that, is a very interesting one indeed. Also, the question of whether people anticipate revolt and react and governments anticipate it. Thirdly, the impact of a written constitution. Could I add myself for the Panel which is very relevant to it, something we haven’t mentioned at all which is the judiciary, which I will refer to fleetingly in the Green Paper. Obviously, if you have a written constitution they will have a central role.
Philip Norton: On that last point, we were debating the new Supreme Court in the Lords last night, and this point is not unconnected with what you have just said.
Would a written constitution strengthen the Commons? No, it would strengthen the courts in the same way as the 1970 European Communities Act has done and the Human Rights Act has done. What they have done is create a new judicial dimension to the British constitution which has the effect of limiting the role of Parliament, so Parliament has to work within that, and within documents, if you like, higher law documents which are interpreted by the courts. There is the potential for conflict, although in practice as we have seen, the conflict comes more between the courts and the Executive.
On the second question on the effect of dissent and has it changed in form? To some extent it has, because I actually analysed not just overt dissent through the division lobbies, but what happened in the backbench party committees, and the stages and form in which dissent occurred. It was not as strong as often thought in the ‘50s and ‘60s. Certainly it was covert rather than overt. It may not get passed to a backbench party committee.
The difference between the period before 1970 and after 1970 was that before then, if the government persisted, it knew it would get what it wanted, Parliament would not say no. There may be backbenchers who said we are not having this, and the government might concede, that was part of exerting a persuasive capacity but not utilising its coercive capacity to definitively say no, and it was not prepared to do it. When you have dissent, sometimes it was quite sizeable, but the dissenters always organised it so they never actually defeated the government.
The Macmillan Government won one vote by a majority of one, and that rather worried the dissenters because they had planned for it to win by about four or five, and then were worried that they had almost cocked it up! The form has changed but there has been a significant part of change that since 1970, MPs have voted in such a way that it has meant the House of Commons has exercised its coercive capacity to say ‘no’ to government. Before 1970, the government had a choice. If there was backbench dissent, it may give way, but if it persisted, it would get its way and it had a choice to give way or not. Since 1970, if the power to say no is employed, then that’s it as far as government is concerned, it has no choice.
In terms of dissent, the difference between extent of dissent and effect, there is another distinction I need to draw in terms of the question, because there is a difference between the effect of the dissent in the Commons and effect of defeat in the Lords. These are separate things as Meg has outlined, because the government defeats in the Lords are not necessarily because of dissent, they are simply because of the configuration of the parties in their voting behaviour. In terms of effect, they are quite significant because most of the defeats are accepted by government including those that are sent back to the Commons, whereas in the Commons it is very different. You have extensive dissent, but sometimes it does not have a great deal of effect, because rather the point that was so effectively being made in the question, voting against your own side is evidence of failure, that you have not managed to persuade your side at an earlier stage. It is the last opportunity you have, and if you lose out, that’s it.
It is the point that Ian Gilmore made once, that overt cohesion could actually be masking significant backbench influence. Now, I would suggest the evidence for that is not too great, but the incidence of dissent itself is an admission of failure which is why, as Phil’s recent research has showed which reinforces mine of earlier years, it is the usual suspects who tend to be voting against their own side on a consistent basis and they are losing out, particularly the Labour left, because the opposition, the Conservatives, are usually supporting and the government are abstaining, so they have no impact.
On the first point about a hung Parliament, it depends which way it hangs! If Labour emerges as the single largest party, that is very different from if it is the Conservatives emerge as the largest single party. The numbers are important, but the relative position is important. In other words, if the Conservatives had come from where they are now to be the largest single party, then that is seen as success, whereas if Labour is diminished from where it is now to losing lots of seats even though it remains the largest single party, then it is seen as failure, although I think the consequences in both cases is likely to be the same - after a while you will see another election, but that would affect the momentum. A hung Parliament - I think the consequence could be a short Parliament.
Meg Russell: I will just make two points, one on the no overall control. What would the effect be? The effect on the Lords and the effect on the Commons might be rather different. I think the effect on the Lords would probably be to weaken it because the unelected House has stepped into a vacuum created by the fact that opposition in the Commons in recent years has been weak, the government has had overwhelming majorities, and therefore it seems fair enough to make the government work a bit harder for its legislation in the Lords. If it has to work hard for its legislation in the Commons, the unelected House may not feel it has so much legitimacy to do that.
I would quite like to spike the myth that a no overall control election necessarily strengthens Parliament, because if it results in a coalition government, it in effect strengthens the parties and it takes away one of the opposition parties. At the moment, we have the Conservatives and the Lib Dems attacking the Government from different sides. If one of those were drawn into government or they were drawn into government together, you would only have one opposition party. It is a fallacy that coalition governments somehow strengthens Parliament. It strengthens party leaders, and I have seen it in other countries.
On the impact of rebellions, I think that is really a challenge to Phil, but I would make the general point because it applies to Lords’ defeats as well, that what you can see is only a minority of the influence that goes on. There are many defeats in the House of Lords, but what happens even more often than defeats is that the government makes concessions in order to avoid defeat happening. There are many more concessions of that kind than there are defeats. Most of the influence of Parliament, which is one of the reasons why it is held in low esteem, is invisible to the outsider, which is a problem, but it is a fact.
Peter Riddell: Could I underline what Meg has said. If you look at the Scottish Parliament in its first two terms, it wasn’t that effective. It built up an institution, it was institution building, and because there was a clear majority for the Lab/Lib Dem coalition, what is fascinating now with a minority government in Scotland, whether the Parliament therefore develops and becomes more effective. The same is true with the Bundestag with a grand coalition. The Bundestag is extraordinarily weak at present, because the two major parties are there.
Alex Brazier: Now we have switched around sides, we have the difficulty of following on from what has already been said, because I was going to agree with what Philip and Meg have just said about that!
One thing I would add on the hung Parliament side, is that the Hansard Society is looking at this very issue, doing a collection of essays, looking at what might happen in the effect of a hung Parliament. That comes out next February.
Philip Norton: Two very brief points. The first is on coalitions. Meg is quite right. It is a fallacy that a hung Parliament would be good for Parliament as an institution. The obvious bit of evidence here is that if you go into coalition, or even if it is not a formal coalition but a deal on legislation, if I am going to go into a deal with you where I am going to give you something, then you have to give me something back. The only thing the Lib Dems can give is their votes. In return for their votes, they will have to promise discipline. They cannot promise to support the government on certain issues, and then go off into the other division lobby. If you do a deal, you have to deliver on that deal or the deal won’t last. Absolutely, discipline in parties will tighten up, all the things that people like at the moment, any increasingly independent MPs and peers, lots of defeats, all that will stop and legislation will be agreed within the parties and it will sail through both Chambers.
In terms of the policy influence, I agree with most of the question asked. We spent all day before this session – we are influence and effect overload here – discussing how you try to systematically measure the influence of Parliament, try to move beyond defeats, try to move beyond divisions, and it is very difficult. It is very difficult to do it in any systematic way. What I would say is that what you see in terms of rebellious behaviour is frankly the tip of the iceberg, but like an iceberg, the bigger the tip of rebellion, the bigger the trouble that is going on underneath that. I find it utterly implausible from everything that has been written on the 1950s to think that in those two sessions in the 1950s, the reason Government MPs were not rebelling is because they were getting absolutely everything they wanted behind the scenes out of government. That is just nonsense. It is because they had a conception of their role as an MP, which was to back the government come what may because they were amateur politicians, they did their day job in the City or wherever, and then they came in, and they voted the party line, they did their bit for the party.
One of the positive things about the rise of the career politician over the last 30 or so years which has brought with it some negatives, is that these people are more assertive, they want to make a bigger influence on policy than they did 40 or 50 years ago, they are more activist, and that has been quite a positive development.
You will understand, we only had eight minutes, so I could not take you through a whole list of concessions and sub-clause (a) of paragraph 2, and so on. There are some very good books written on this, and I can give you details of them afterwards, available at all good bookshops and Waterstones!
Robert Hazell (Constitution Unit, UCL): Peter, in effect you solicited some comments on the judiciary, who have not been discussed, and I think are going to be hugely important in the years to come because of the last round of constitutional changes, which did not get adequately debated either in Parliament or certainly in the media or by the public when the Constitutional Reform Act went through in 2005. Part of the reason for that was that there was a huge amount of sound and fury about the abolition of the office of Lord Chancellor, which was resolved by retaining the office, but there were two other very big changes in the Bill. One of the creations was the new Supreme Court which has been mentioned briefly, the other creation of a new Judicial Appointments Commission, which hasn’t. Both those things are going to lead to very big changes in the role and public perceptions of the judiciary by politicians and the public.
Very briefly, the new Supreme Court will be a much more visible institution once it comes out from the Palace of Westminster. It is already beginning to change the behaviour of the law lords in interesting ways, and will change their behaviour much more after 2009 when the court comes into being. They are changing their caseload dramatically, they are doing far fewer commercial and tax cases than the law lords used to, far more human rights cases, cases about the right to life, the right to die, things that will really engage with people. Cases on Orora O’Neill’s areas of interest to do with ethics and bio-ethics and that kind of thing.
The Judicial Appointments Commission was a revolutionary change because up until its creation last year, we had kept within the common law tradition that the Crown appoints the judges, and in effect that means the government of the day decides on all judicial appointments. That has been handed to a Commission chaired by Baroness Prashar, which now puts forward just one name to the government, and the government has begun to establish a convention that it will accept that one name. So far no-one has rejected it, so de facto, this Appointments Commission is doing the appointing. It is dominated by judges in the legal profession on the Commission, although nominally it has a lay majority, and in effect it is going to become the judges in future appointing their own. That may lead in time to the questioning of the legitimacy of judges, also where do these people come from, and who chose them?
Geoff Haywood: If Parliament is to be given these powers to decide on where to go to war, how are they going to gain access to the information? We know from the Iraq debacle that MI5 and MI6 reported only to Tony Blair who then gave Parliament erroneous information. Isn’t there a danger that the Executive will have diminished responsibility and therefore diminished accountability? Who is going to pay the price?
Peter Riddell: That issue was raised earlier. There are two points, one which Robert Hazell raised on the judicial changes, and particularly with the Supreme Court coming into being and with the Judicial Appointments Commission. There is an interesting reference in the Green Paper which suggests a formalisation of the withdrawal of the government from judicial appointments. I would make a slightly different point to Robert’s which is when he said judges appointing their own. If one looks back to a lot of Lord Chancellors, one thinks it was very much like that rather than anyone other than the Lord Chancellor being involved in it in practice. You are disputing me on that, Robert!
Robert Hazell: Briefly, the statement given by Gordon Brown, suggested that the government might be brought together. The Green Paper possibly goes the other way. If I can read one sentence which says:
'The Government is willing to look at the future of its role in judicial appointments to consider going further than the present arrangement, including conceivably a role for Parliament itself'.
Peter Riddell: I think the role for Parliament itself is a reporting role, it is not advice and consent from what I understand on that. The other thing is the distinction between now having a Lord Chancellor and a Secretary of State for Justice - he is a barrister, although he didn’t serve long as a barrister - who is in the Commons rather than the Lords. I think that will have a profound impact too. Let me turn that and the interesting Iraq question, starting with Phil.
Philip Cowley: I am going to be really rude and dodge both questions, because I have no view on the first one, and I agree with the potential problem on the second one, but what do you do about it? It is a parliamentary advance. If Parliament is not mature enough to deal with it, then so be it.
I want to add one final point which is a summing up point, something that has not been mentioned already. If you were discussing the way Parliament has evolved in the last 40 or 50 years, you would discuss nearly all the things we have talked about. One thing you would add which we have not mentioned is the growing constituency role of MPs. Again, it was deliberately posed as a provocative title, this golden age of Parliament, I think you can now argue that you have closer linkages between voters and MPs than you have had probably at any time since mass suffrage in Britain. MPs are now much more responsive to the public, much more frequent at being in their constituencies, responding to public concerns and so on. We don’t always like it and we don’t have very high views sometimes of MPs and politicians, but they are far closer to us now than they were 30 or 30 years ago when you would get a reputation as a good constituency MP if you turned up once a month at that. No MP would get away with that these days.
The Hansard Society did a study recently of new MPs from a 2005 intake and found they were spending more than half their time on or in the constituency. I think that is getting too parochial, too constituency-based, and they need to row back from that, but for those whose MPs are too distant from them, it seems to me that the complaint at the moment, if anything, should be the other way round.
Alex Brazier: On Robert’s point about the changes to the judiciary, the point you made about the Supreme Court becoming more high profile once it separates is really crucial. If those cases of the type you mentioned are engaged by the public, covered by the press, I think it would make quite a lot of difference to have people engaged with the political system as a whole. I sometimes feel I know more about Supreme Court decisions in America which tend to get huge coverage in Britain, than about law lord decisions which sometimes slip under the radar. That is because it is rather a complicated system, and people don’t know it. The Supreme Court in America is very straightforward, and may be, when we have our new system, the decisions that affect us all coming out of the Supreme Court will be front page news, in the way that the law lords probably aren’t. We’ll see. If it happens, that is a good thing.
On the other point which is absolutely crucial about how will these powers work in practice, if they don’t, then it is up to MPs and peers, depending on the powers in question, to make a case, to use their influence and their new roles to make sure that they do. If they take a very passive, lack-lustre approach to new powers, whether it be the one you mentioned or many of the others, then it really won’t make much of a difference. If they respond to the rebalancing of the relationship between Parliament and government, which the Government claims it wants, then it will make a difference. If we don’t have this and the information or the resources or the Government is not playing ball, then it is up to Parliament or individual parliamentarians to make that clear and to ensure that it does.
Peter Riddell: If I could add to that, there are references in the Green Paper to the changed role in terms of the Security Committee but it having more resources. There is a lot of ambiguity to that. That might get into the gap you are talking about, which is very interesting.
Meg Russell: Taking head-on both of the questions, Alex has covered them very well. I will make one point which is linked to the issue of the growing power and prominence of the judges. I spoke before on the poll on Lords reform, the general public are quite conflicted on these issues of what they want from their democratic institutions. You could say ‘that’s the public, they don’t really understand these things very well’, but the reformers are quite conflicted as well. If we go back to the Power report, it is full of this language about how they want to strengthen Parliament, but they also want to strengthen direct democracy, and the same set of reformers also want a written constitution which will strengthen the judges. Both of the latter reforms will actually weaken Parliament not strengthen it.
We all need to be a little more honest about what it is that we want out of our system, and rather than continually complaining about it, perhaps face some of the difficult conflicts even ourselves.
Philip Cowley: I will just begin with a point that obviously unites the Panel in case anybody has not picked up on it, and that is the Power report is absolutely useless! That leads into my Harold Wilson impersonation which is to say that ‘as I have said the House’ – the Commons have never debated the Power report, the Lords has. I have dealt with the Power report, and I have dealt with the two issues that have been raised as well, so I will refer briefly to the debate we had last night on the Supreme Court, it is a question for short debate on what progress is being made on the Middlesex Guildhall, which is a peg on which to hang certain concerns about the change itself. One of the consequences I raised was the consequence for the relationship between the courts and the Executive. My view is that this is not going to be a beneficial move for the courts. My view is it is going to put them out more on a limb, they are going to be isolated, and not have the protection they have at the moment.
One of the things being discussed was why can’t the law lords say where they are, you change the name and keep them where they are, and they derive a number of benefits from that. There are certain worries about moving the Court out, isolating the Court, at a time when you have the wider developments that strengthen the role of the judiciary in terms of higher law documents, European Communities, the Human Rights Act, when the courts themselves are starting to probe more into the parliamentary record, not just to resolve ambiguities but to see what the mischief is that Parliament is actually addressing. The potential for conflict is really rather significant at a time when one is moving the Court out, although don’t be too certain it will be ready in October 2009, if you read what one of the law lords said in the debate last night.
Parliament and war is something I dealt with earlier. It is something I raised when we were debating the machinery of government, that yes, the precedent has been set as I said, but what is the point unless Parliament itself or rather the House of Commons has the information on which it can at least make an informed judgment. I made the point about the Iraq war, the decision was taken on the basis of imperfect information. You will never have perfect information. To some extent the Government has recognised the point, because it is actually in the Green Paper. It is going to have to do something about providing information sufficient to make a judgment at the same time not giving away information that obviously would cause problems for the security of the state. There is a balancing act to be done there, and that was my point about the devil and the detail.
Just to round off on one particular point, and pick up on what Phil was saying about the growing constituency role, that is a major factor. It has a significant impact on members’ role and leaves them somewhat schizophrenic because they always say ‘the constituency, I always put that first’, and then privately complain about all the work they have to do in terms of constituency work.
Just a little anecdote, one MP was explaining to me the other day why quite a lot of MPs have moved against wanting to have an elected second chamber. He said MPs are paid £60,000 a year, we take the view that £10,000 of that is for doing our Parliamentary work, £50,000 is for the hassle – except he didn’t say hassle – of having to do this constituency work. He said ‘if you think we are going to vote for an elected House and then be paid £60,000 without having to do any of constituency work, then you have another think coming!’
Peter Riddell: Thank you very much indeed. One of the ironies is that we now have people who do jobs without being paid which include Ministers of the Crown. This Government has expanded so far, they have exceeded the statutory limit!
Thank you all very much indeed. Thank you to the British Academy for hosting both the seminar during the day and this public discussion.
On your behalf, can I think Hugh Berrington for getting us off so well with a good historical context of it, to Philip Norton, Meg Russell, Alex Brazier, and Philip Cowley, thank you very much indeed. [Applause]
Baroness O’Neill: Thank you, Peter, for chairing that. It has given us immense food for thought, and when you have the food for thought, you need a drink for thought, and that is what we are going to provide.