House of Lords (Hereditary Peers) Bill

Lord Pannick Excerpts

Report stage
Wednesday 9th July 2025 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Hunt, made a very eloquent speech, but I am puzzled by it. He did not dispute the merits of what is proposed in this amendment or the mischief that it is addressing; his point appeared to be that nothing will be done by government until there is fundamental reform of this House. But we all know that that will not occur—at the very least, not for a very long time. Because of that, over recent years this House has regularly addressed specific mischiefs and improved them. This is another one, and we should act on it.

[Lord Wallace of Saltaire (LD)]

My Lords, I declare an interest: for five years, I was an unpaid Lords Minister and Whip in the coalition Government. When we have a coalition Government—we may very well find ourselves with a rather messy coalition after the next election—there may be an argument for having a larger number of Ministers, because we have to spend some of our time marking each other, so to speak.

My responsibilities were in the Foreign Office and the Cabinet Office, and I did indeed spend quite a lot of time outside the country. That enabled the Foreign Office to send someone to a number of countries that would otherwise have been entirely neglected without the most junior Minister, as it were, being sent there. I was lucky enough—and still am—to have an academic pension and a wife who has an academic pension, which means that we are moderately comfortably off. Maybe if we were of the Conservative variety, we would find that we needed more to live on, but one can manage not too badly on an academic pension. I did not mind missing some of the days in the House.

We have heard a number of interesting speeches, which have ranged very widely, including on the relationship between the two Houses. I say to the noble Lord, Lord Hunt, that I am reading a book on the House of Lords in the 17th and early 18th centuries, when we had conferences between the two Houses; maybe he would like to suggest that we move back towards that. Here we are on Report for a Bill that has been deliberately designed to be as narrow as possible, but we are talking about the relationship between the two Houses, the way in which government is structured and how many Ministers we need.

The noble Lord, Lord Forsyth, is absolutely correct that keeping the Back-Benchers in order has led to an expansion of government patronage. He did not make as much about the expansion of PPSs in the House, as well as trade envoys, which has meant that the House of Commons has ceased, in effect, to do a lot of its scrutiny job. Indeed, some weeks ago I met a Labour MP, elected last year, and she said that she wondered what the purpose of an MP is in the House of Commons now, as they are not expected to change legislation or to get at the mistakes that their own Government are making. There are some very broad issues here, but those issues are broader than this Bill.

We all know what the impact of this amendment, if passed, would be: the House of Lords would have fewer Ministers. That would damage this House very considerably, because the current Government are highly unlikely to shrink the number of Ministers in the Commons. If we want to shrink the number of Ministers, we should be agitating, but, of course, part of what has happened is that as local government has got weaker and central government has taken on more of what used to the role of local democracy, Ministers have expanded in all the things they do.

So, from these Benches, we will not support the amendment. Yes, we do favour much wider parliamentary reform. Yes, we favour much more thoroughgoing reform of this House. Yes, we are immensely disappointed at the timidity of this Government, with respect to this Bill as in so many other areas. But here we are, with a Bill that is concerned with a small change in the nature of this House, and unable to persuade the Government, without a much longer conversation, to change the 1975 Act, to change the way the Commons operates and, in that case, those of us on these Benches will vote against the amendment if a Division is called.

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[Lord Pannick (CB)]

My Lords, I have added my name to this amendment. I suggest, in addition to the point made by the noble and learned Lord, Lord Garnier, that the position is even worse. We are not relying on the Clerk of the Parliaments; the Government are relying on legal advice which has been received that none of us have seen. I cannot understand, on a matter of this importance which goes to the integrity of the House, why we are denied access to legal advice which, as I understand it, the Government are relying on in order to respond to the amendment from the noble Lord, Lord Ashton. This is a matter on which certainty is essential and I, for my part, without seeing this legal advice, cannot accept that the best solution is not to put the matter, with clarity, in legislation.

[Lord Keen of Elie (Con)]

My Lords, I join with others to support the amendment proposed by my noble friend Lord Ashton. The constitutional role of this House is to review and improve legislation, and this is a clear case of improving legislation. I make only two points. First, to repeat the observation made by the noble Lord, Lord Pannick, we have never seen the second set of legal advice that has now been provided by the Government Legal Department. There is absolutely no convincing reason why confidentially should not be waived in respect of that legal advice. It is impossible for us to make any judgment without that happening. It is equally clear that there remains real doubt as to the advice received. The Clerk of the Parliaments has talked about being willing to take a risk. There is only a risk where there is uncertainty.

The second point I wish to underline is that mental incapacity does not necessarily proceed in a linear fashion. I take the simple example of George III: periods of pronounced mental incapacity may be followed by clear and lengthy periods of lucidity. Indeed, in the case of George III that led to constitutional problems, because when lucid he went on to question some of the steps taken in the regency. Here, you also have the case of someone who suffers a massive nervous breakdown and fully recovers, only to discover that they have been resigned from this House—an irretrievable step. They cannot go back, so what do they do? They seek to challenge and review the decision on the grounds that it was unlawful, and they may well succeed.

What happens if, after one or two years in court, it is determined that that person was entitled to continue as a Member of this House, and they then say, “Well, I would have acted in the following way with regard to primary or secondary legislation that passed through this House during the period when I was unlawfully prevented from contributing to proceedings”? It seems to me that it just leads to a constitutional problem, one that is simply resolved by a very straightforward amendment to the 2014 Act.

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It is really the challenge set out by the noble Baroness, Lady Stowell: can we find a way forward that we all agree on? We are trying to get to the same point. I hope that we can.

[Lord Pannick (CB)]

The noble Baroness has been extremely helpful. In the period before Third Reading, if the noble Lord, Lord Ashton, agrees with that approach, would she be prepared, at the very least, to share with the House, or with those who are interested in this issue, the substance of the legal advice, so that we can understand what the issues and uncertainties may be?

[Baroness Smith of Basildon (Lab)]

I think the best way forward would be for the government lawyers to talk with lawyers in the House with an interest, including the noble Lord, so that we can find a way forward. It is in the interests of the House to resolve this and for lawyers to talk to lawyers. I am not a lawyer and I have no intention of becoming a lawyer, although the noble Lord, Lord Pannick, once accused me of being a lawyer —I say that with some pride—but I think we are all in the same place and want to find a way forward.

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[Lord Gove (Con)]

My Lords, I hesitate to rise in this debate and was not intending to, but since no other Member of this House has spoken in opposition to the amendment from the noble Earl, Lord Kinnoull, I shall do so very briefly.

I hesitate to do so because when I was Education Secretary, I introduced legislation to deal with persistent absentees, and therefore it might be thought that I was in sympathy with the intent behind this amendment. But one of the reasons why I am very cautious about seeing this amendment go further is this. It is based on a false premise that we hear often, which is that this House has too many Members and new schemes must be found somehow to identify those who should be expunged or removed at any point. If we look at the Division lists in the votes that we have just had, the numbers are lower than one would expect in some of the Divisions in the other place. The suggestion that there are too many Members can often be a means of trying to get rid of those Members whom the Executive or others, for whatever reason, ideologically or otherwise, find inconvenient—a stone in the shoe. We in this House should not be seeking to reduce the range of voices, to limit the number of Members or indeed, potentially, to forfeit expertise.

That takes me to my second point. Many of those Members of this House who will not be here for 10%, 11% or 12% of the time—or whatever arbitrary percentage figure we choose—will be people of eminence who will be occupied outside in deploying their expertise for the public good or who will have achieved eminence in a particular role. They may be, for example, former Prime Ministers. Would it be right if we found that, for example, Theresa May—the noble Baroness, Lady May —had attended this House for only 8% or 9% of Sittings in a given year and should somehow be expelled? That would be an outrage, but that is what would happen if we followed this arbitrary proposal.

That takes me to my third point. I know that this amendment comes from a place of courtesy and consideration and that the Cross Benches are anxious to ensure that this House can accommodate the request for reform that comes from the other place and from outside. That is why I am so cautious in pushing back. But, rather than seeking to bend the operation of our House to those who are not in sympathy with it, we should seek to ensure that it operates effectively in challenging faulty legislation and in making sure that expertise is deployed—not in attempting to regulate our numbers but in attempting to regulate the flow of legislation that comes from the other place which is faulty and which benefits from the expertise here. If we lose a single voice that is expert and authoritative in challenging that Executive, we undermine the case for this place. That is why, with the greatest respect, I oppose this amendment.

[Lord Pannick (CB)]

My Lords, we undermine respect for this House if we continue to have people who do not turn up more than once in each Session. The answer to the point from the noble Lord, Lord Gove, about previous Prime Ministers is that the rule is not absolute, because Section 2(3)(b) of the legislation being amended provides that the House may resolve that the period of attendance should not apply to the particular Peer

“by reason of special circumstances”,

so there is already a statutory provision that allows for exceptions.

My other point in answer to the noble Lord is that we have already accepted the principle. Section 2(1) requires that each Peer must attend at least once during a Session, so we have accepted that people who do not comply with the timing position must go. The only question is whether that is a realistic limit. I entirely agree with the convenor that a once-in-a-Session provision is not an appropriate rule. A much more appropriate rule is to require people to be here 10% of the time.

[Lord Newby (LD)]

My Lords, I strongly support the principle behind this amendment. We have debated the concept at some length and, in my view, it is essential that we now move to a position where there is a rule that means that people who play no part after a period cease to be Members of your Lordships’ House. The noble and learned Lord, Lord Hope, talked about persuading non-attendees to retire, and I too have done that. One case is seared in my memory: I went to see a member of the Liberal Democrat group with my Chief Whip to try and explain to him that he had done absolutely nothing for a considerable number of years and it might be appropriate for him to retire. He was extremely sweet; he smiled and said, “I never thought of that. Could you give me a bit of time to think about it?”. Years later, he still had not thought about it. So I am absolutely certain that we need to move.

As for the objections of the noble Lord, Lord Gove, the people we are talking about are not the stone in the shoe; they are never in the shoe. When they are in the shoe, they are normally sand at best, because they do not do anything. The idea that we would lose voices of any consequence by saying that people had to be here rather more than they are at the moment is just wrong, I am afraid, as far as legislation is concerned. In my experience, the number of people who normally are not here and suddenly turn up to play a full part in a Bill is immeasurably small.

My only problem with the amendment, as the noble Earl, Lord Kinnoull, knows and as I have said before, is that this issue should be considered first by a Select Committee, for a number of reasons that have been given—10% may be the right answer, but it is worth thinking about that. The other thing that has been put to me—it will be contentious, but at least we ought to think about it—is whether the requirement applies retrospectively. Some people have said that, unless it applies retrospectively, we will get flooded with people who have never been here before. There are arguments for and against it, but we need to discuss that; we have not done so at all.

So, for those reasons, while I absolutely support the principle, if the noble Earl were to press this amendment to a Division, I do not think we would be able to support him in the Lobby.