House of Lords (Hereditary Peers) Bill

Debate between Lord Howard of Lympne and Viscount Hailsham

Report stage
Wednesday 2nd July 2025 Lords Chamber

[Lord Howard of Lympne (Con)]

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

[Viscount Hailsham (Con)]

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

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

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

House of Lords (Hereditary Peers) Bill

Debate between Lord Howard of Lympne and Viscount Hailsham

Committee stage
Monday 10th March 2025 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I will speak briefly to Amendment 45 and the other amendments in this group that would make HOLAC a statutory body. I was a member of the commission for a number of years and, despite the fact that I hold the proposers of these amendments in very high regard, it would be a great mistake to put it on a statutory basis. I say so for the same reason as that given by the noble Lord, Lord Kakkar, a distinguished former chairman of the commission, to your Lordships on 18 November 2022.

In a nutshell, making HOLAC a statutory body would make it subject to judicial review. This would mean that someone who was unsuccessful in their application to become a Member of your Lordships’ House could challenge that decision in the courts. It would mean that an appointment that had been announced and, indeed, confirmed could be challenged in the courts. The courts would be drawn into deciding who should and should not be a Member of your Lordships’ House—a Member of this Chamber of Parliament—which is a flagrant breach of what we have always understood by the separation of powers.

It may be suggested that the legislation contemplated by these amendments to make HOLAC statutory could in some way circumscribe the power of the courts to intervene. I am afraid that history demonstrates that in a contest of that kind between the parliamentary draftsman and the courts, the courts usually win.

[Viscount Hailsham (Con)]

My Lords, my noble friend is making a very serious point. Would he perhaps consider that the power of judicial review would be reduced if HOLAC was obliged, before making a public statement, to give the person affected the opportunity to respond?

[Lord Howard of Lympne (Con)]

On the contrary, if reasons were given, those reasons could be the basis of a challenge in the courts. I fear I entirely disagree with the last point my noble friend made in his speech, when he suggested that reasons should be given. If reasons are given, they can form a stronger or a particular basis for a challenge in the courts.

I shall content myself with one example of the attitude of the courts to attempts to circumscribe their powers to intervene. When I was Home Secretary, a decision was made, though not by me, to refuse British nationality to someone whom I will not name. The relevant statute says that in such cases the Home Office is not obliged to give reasons for its decision. The High Court decided that these words meant what most people would think they meant, which was that the Home Office did not have to give any reasons. The Court of Appeal, however, decided that because the statute gave the Home Office discretion as to whether it could give reasons, it was wrong not to give the reasons. Your Lordship will see what I mean when I say that it is extremely difficult to circumscribe the determination of the courts to intervene.

I do not think that the courts should have a role in determining the membership of your Lordships’ House. That would be a consequence of these amendments. I urge your Lordships to reject them.