Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence, March 28, 2007 - Morning meeting
OTTAWA, Wednesday, March 28, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4, to amend the Constitution Act, 1867 (Senate tenure), met this day at 11:59 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, today we continue our study of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure). Bill S-4 contains one substantive clause, an amendment to the existing term of appointment for senators. Currently, the term of each senator runs until the mandatory retirement age of 75. The new term would be for eight years and the renewal of a term is not precluded.
In addition to the evidence provided during its own hearings, this committee is making use of the work completed by the Special Senate Committee on Senate Reform in the fall of last year and extensive debate in the Senate chamber itself. It is also paying close attention to the initiatives that have been introduced in the British Parliament, and debates about reform of the House of Lords in the United Kingdom.
I join with my fellow honourable senators on this committee in welcoming our special guests from the United Kingdom. We are extremely interested in your perspectives on the historic changes being proposed in England.
Reform of the British House of Lords has emerged as a significant issue in the United Kingdom in recent years, for reasons that will be familiar to the participants in debates about Senate reform in Canada. Most important, concerns about the legitimacy and related effectiveness of an appointed body within the democratic political process have steadily grown. As a result, successive proposals for the election of some or all members of the House of Lords have been developed over the years.
In 1997, the process for making significant changes to the House of Lords began in earnest, resulting in the Wakeham commission report in 2000, which proposed an elected House of Lords, as well as recommending term limits of 12 to 15 years. This past February, the most recent in a series of white papers, entitled House of Lords: Reform, was released by the U.K. government. The various proposals contained in this white paper present seven composition options, ranging from fully appointed through various combinations of appointed and elected, to fully elected.
On March 7, the House of Commons rejected the government's preferred hybrid option and voted 337 to 224 in favour of a 100 per cent elected House of Lords. On March 14, the House of Lords voted 361 to 121 in support of a motion for a fully appointed House of Lords. This result conflicts directly with the result of the House of Commons vote, and reflects the long-standing pattern of deadlock between the Houses on the issue of Lords reform. It remains to be seen how the government will now proceed.
This brings us to today, where we are most honoured to have with us, by video, three distinguished members of the House of Lords. Honourable senators, I present to you first, Lord Howe of Aberavon. He was Margaret Thatcher's longest-serving cabinet minister, successively holding posts of Chancellor of the Exchequer, Secretary of State for Foreign and Commonwealth Affairs and, finally, Leader of the House of Commons and Deputy Prime Minister. Lord Howe was made a life peer in 1992.
Also with us today is Baroness Deech, who has held many prestigious positions during her life. Most notably, she served as Senior Proctor of the University of Oxford between 1985 and 1986, Governor of the BBC in 2002, and subsequently was named Dame Commander of the Order of the British Empire (DBE). Baroness Deech is a Crossbencher, and was appointed a life peer in July, 2005.
Finally, we have with us Lord Tyler, a member of the Liberal Democrats who was first elected to the House of Commons in 1974 and then again from 1992 to 2005. After the 2001 general election, Lord Tyler was reappointed Shadow Leader of the House to work opposite the Rt. Hon. Robin Cook, MP, pushing forward Liberal Democrat plans for the modernization and reform of Parliament as well as overseeing the current business of the House of Commons. Lord Tyler served as a member of the Select Committee on Modernization of the House of Commons from 1997 until 2005, when he was named a life peer.
Honourable senators of the Standing Senate Committee on Legal and Constitutional Affairs, I am very pleased to welcome you and our distinguished guests here today. We will begin our discussions with Lord Howe.
Lord Howe of Aberavon, Member of the Conservative Party, British House of Lords: Thank you very much for your welcome. It is a rather unusual privilege to be addressing a whole assembly of people on issues as important as those you are considering. While we cannot begin to understand them, all I can really share with you is a little bit of our own experience.
The position which I adopt is that the House of Lords, as it now is, is functioning very well. There are some things that I could suggest, some details that perhaps could be changed.
My impression is the issues with which you are grappling in Canada are rather different from the ones with which we are grappling. We are not grappling with such practical things as duration tenure. The essential issue here is whether or not there are to be any elected members of the upper house. You have been given the figures on the votes of the two Houses that show that there are deep divisions.
I have become increasingly persuaded that one does not want to have elected members of this house. It is expected to have adverse effects. One, it will result in greater politicization of the house; the more the two houses are dominated by fiercely whipped political parties, the greater becomes the control of the executive over the upper house.
I think it also confuses the functions of the house, because it is quite clear that the House of Lords is consultative, and not law making. The democratic chamber, the one elected, is the law-making chamber; they have the last word. In recent times there has been a much more powerful recognition of that distinction.
The House of Lords is now a great deal more influential than it was 20 years ago, because two inventions have changed its nature. First is the introduction of life peerages, which began diluting the concept of hereditary peers dominating the house. Second was the removal of the bulk of the hereditaries in 1999, because the thing that has always disabled the House of Lords, and made it less credible and less effective, has been the argument that whatever decisions it made were being decided by a large army of a hereditary Conservative majority. That has all gone now, and the House of Lords now has a very different structure of life peerages and a small residue of hereditaries who are in situ for life only.
The present structure gives both major parties about 30 per cent of the votes; 40 per cent of the votes are shared between Crossbenchers and Liberal Democrats. If one is to win an argument in the House of Lords now, you actually have to persuade all elements in the house. That is a traumatic transformation. Since that position came into being in 1999, the House of Lords has been defeating government positions much more frequently, about 400 times in the first six years and, more to the point, the House of Commons and the government have been accepting the verdict of the House of Lords in about 40 per cent of those cases.
The Lords is now working as a very effective revising chamber, but we do not have the last word. Our propositions, our conclusions are presented to the House of Commons, rather in the same way as a trial judge presents his view of the case to a jury. The House of Commons, the democratically-elected chamber, has the final word.
I think that we confuse the situation once we introduce elected members to the House of Lords. The House of Lords then claims parallel legitimacy, and the risk of a clash between the two Houses would increase. That is what happens in the United States.
The present position, subject to certain modifications which I will outline for you now, is one that works very well. The most interesting argument is this: Those who propose the introduction of an elected element have not yet been able to point to one respect in which the performance of the upper house will be improved in any way. The only reason that is given is that it would somehow add to the so-called legitimacy of the upper house. That, as I say, would only have the consequence of increasing the risk of conflict. That is why I think there is no case for change in that direction.
I would like to close on one final point. You quoted the report of the Wakeham commission of 1999 as recommending a majority of elected members. It did not. It recommended that they could not endorse the idea of a substantial — let alone a majority — component of elected members. They are recommending a step in that direction. I do not think we ought to take that step.
I think that the duration of tenure of a member of the House of Lords, or of a senator, ought to be pretty long because the key to our independence is our independence of the electorate and, above all, our de facto independence of party whips.
I hope that is not too accelerated a presentation.
The Chairman: That has been a very useful overview. We thank you for that. We will hold all questions from here until we hear from the other two presenters. Baroness Deech, if you would proceed next, we would like to hear from you.
Baroness Deech, Cross-bencher, British House of Lords: Thank you for inviting me to speak. I am a relatively new member of the House of Lords, and I would like to commend to you the way in which I was appointed.
I was appointed as one of the so-called «people's peers» under a new system whereby an independent commission surveys very many curricula vitae and decides to appoint someone, rather like being appointed to a job. I was interviewed and I was asked on what subjects I could make a contribution to the House of Lords. On the strength of that, I was appointed.
If I may say, perhaps rather immodestly, I think this is a good method of appointments. I am an independent member, a Crossbencher. I owe allegiance to nobody; I can vote on any subject exactly as I wish. I can listen to debates and make up my own mind. Nobody tells me what to do. I do not have to follow any party line.
To my mind, that is very valuable. I do believe that a good way of appointing people, if they are to be appointed, is by a commission, without too much party political patronage, which is a problem.
Second, one of the things that struck me as a new member of the House of Lords is that although there are not very many women — there are probably only about 15 to 20 per cent — nevertheless, in absolute figures, there are more women in the House of Lords than there are in the House of Commons. I thought this was a very good thing.
I believe, without being too scientific about it, that women in particular would find it very hard to run for election or hold themselves out as candidates on a very short tenure. I have more or less reached the end of my career. My family has grown up. It is much easier for me now. I do not think I ever would have considered standing for election, or that I ever could have coped, as a woman, with the very different, demanding hours and habits of the House of Commons.
I also note that in the upper house here, efforts are made to ensure that Black and ethnic minority people are appointed. Also, religious minorities are something uppermost in our minds. I do believe that the system of appointment is flexible in that it can make sure there are elements of our society represented in the upper house that you would not find in the lower house, and who probably would not stand for election.
This is flexible; clearly the numbers of people you wish to see appointed from various minorities and regional groupings, and so on, change as the years go by. However, I think that appointment is a very good mechanism for making sure that all sectors of society — not just regional but gender, religious and ethnic — are appointed to the upper house, as well as age.
Age is a bit of a problem because unlike you, I gather, we are not paid. Therefore, it means that you pretty well must be retired or not have to work for one reason or another. I do think that paying people is a good idea because it certainly would enable more young people, who need to have an income, to join the House of Lords.
Perhaps I can make just one more point. I do believe that the House of Lords is legitimate, and I speak as someone who used to teach constitutional law a long time ago. Indeed, I taught in Canada many decades ago, though I do not remember the details of your Constitution, I am afraid. I do believe that the House of Lords is legitimate. It is one of the oldest parts of our Constitution. It is part of the rule of law, and it performs a checking and balancing arrangement with the House of Commons.
The House of Commons in this country suffers from what Lord Hailsham called «an elected dictatorship.» Once MPs have been elected, they tend to do what party whips tell them. Sometimes you feel it is almost not worth counting the votes until they get rebellious, because you know where the majority lies.
It seems to me that the last thing we want is a clone of that system in the House of Lords. We do not want people who are there by virtue of their party allegiance, simply shadowing what is done in the House of Commons. We need a House of Lords or, in your case, a Senate with completely different interests, that act as a check and balance on what may be the over-mighty executive in the lower house.
I see our upper house as a fundamental bastion of democracy in our system; and the one house under our Constitution that is able to insist that general elections are held every five years under our Parliament Act.
I am sorry, I do not know enough about your Constitution to know whether your lower house is able to amend the Constitution of the upper house without its own consent, and whether your lower house could ever get rid of general elections without your consent. However, to my mind, that is a very important consideration. I will stop there and welcome questions later on.
The Chairman: The three points you made are of great interest to the senators around the table because they do figure indirectly on the considerations we have with Bill S-4. Thank you for that.
Lord Tyler, Member of the Liberal Democrat Party, British House of Lords: I do welcome again the opportunity of speaking to some of the members of your Senate.
I do agree with both my colleagues that the last thing we want is for our second chamber of Parliament to be just a clone, a shadow, of the first. Otherwise, however, I fear I do not agree with very much of what has been said because I come to this discussion from a different viewpoint.
Let me first say that I voted both for 80 per cent of a reformed second chamber to be elected and also for 100 per cent. I frankly confess I see advantages in both. Eighty per cent would enable there still to be 20 per cent independent of all parties and of any sort of political connection to be in our second chamber, while 100 per cent would increase the democratic legitimacy of the second chamber.
My principal reason for wanting to change the way in which people arrive in this house of Parliament is simply because I have experienced over many years what happens to the work of this house when it goes to the Commons, when the government is able to rubbish so much of the excellent work that is done in the House of Lords because they are always able to dismiss it as being the work of an unelected house.
Jeffrey Howe, quite rightly, says that we have a high reputation for the performance of this house. I think of this performance in terms of a wonderful debating society; he himself described it as a consultative chamber. I want it to be more influential, more powerful than that, and the only way that can happen in a modern, 21st century democracy is for there to be some form of democratic legitimacy, some mandate from the public. That is why I believe it is essential that there should be, in future, some degree of elected support for those who come into this chamber.
The problems that are identified — and I have given a lot of attention to this over the years, across parties with members of all parties — are mostly able to be dealt with very effectively by the way in which the elections take place, their regularity and the extent to which they are term limited. That is where I think we come to the specific question with which your Senate committee is currently engaged.
Within the context of an elected house, the reasons why we have been looking at term limitation are several. First, we have no retirement age. The average age of the House of Lords is about 68 or 69. I am 65, which is the retirement age for normal people in the United Kingdom. I am already heading towards that figure.
Second, even when there is a very important vote in the House of Lords, a great many members are not feeling now that they wish to participate. There were 480 who voted at the height of the discussions two weeks ago on the reform of the Lords, when there are normally about 740 members who could attend. We clearly need to have some sort of retirement system.
Most important of all, if we are to have the degree of independence from party control in future, whether it is from an elected base or from some form of nomination from the parties, we want people, once they come into the second chamber, whether we call it the Senate or whatever, to feel as free from party emphasis, party influence, party pressure as they can be. That is why we think one term, be it for 12 years or possibly longer, but not repeatable, would mean that they would be there on their own merits without any attempt by them to try to influence their future membership in the house by being ultra loyal to their party rather than using their own individual judgment.
That is the reason why we have been looking at term limits. I have to say that I am on the side of those who voted so substantially in the House of Commons, which still is our primary chamber, who want to make this house more legitimate.
The Chairman: Thank you. I would ask Lord Howe and Baroness Deech about the length of term that they would consider proper for members of the House of Lords, given the 15-year term recommended in the Wakeham report.
Lord Howe of Aberavon: Thank you for the opportunity to comment on that point. The Wakeham report suggests a 15-year term for members, whether elected or nominated. It also suggests that either category could be re-nominated by the nomination commission; but I am not sure about that. Some of the other proposals more recently have suggested 12 years. The joint committee of which Lord Tyler and I were both members suggested 12 years. My feeling is that 15 years should be a minimum length of tenure. We might need to set a retirement age because otherwise we have a predominantly elderly house. I am sure we need a kind of retirement system. All those are secondary questions to the question of election. I think that 15 years is about what most of us would regard as reasonable, as a starting point.
If I may make comment on what Lord Tyler was saying, you will notice that he did not actually suggest that there would be any improvement in the way in which this house influenced the rule-making process or anything else as a result of having elected members. The only change would be the right of the house to make a stronger case for legitimacy and, therefore, a greater risk of conflict. He founded that, incidentally, on a false premise and said that the government would then not be able to rubbish decisions of the Lords. That is old hat. The government was rightly able to rubbish, as he puts it, when the Lords had a built-in, hereditary Tory majority. They were not credible then but that is gone, and we now have a house with growing confidence. In the first six years of our present structure, so far from rubbishing what we do, the government and the House of Commons are accepting 40 per cent of the recommendations made by the House of Lords. Certainly, that seems to be a pretty sensible, working structure.
Baroness Deech: It is more important to have a retirement age than to have a particular length of tenure. Whatever the length of tenure is, it should be such that you are not tempted to use your periods in the upper house as a springboard to a lucrative position in business, or as prelude to being elected to the lower house. In other words, it should be a period of time towards the end of a career, without people being too old. To have a retirement age of 75 or something like that is a good idea — perhaps an age comparable to that of judges. If judges stay wise until the age of 70 or 75, then I think senators can do so as well.
I would point out, in respect of what my colleague Lord Tyler said, that I suspect some members of the upper house do not attend because they are still working, and it is difficult to fix a working timetable to be free when the House of Lords, perhaps unexpectedly, has an important vote. It is important that the position becomes a job.
As for being non-renewable, if the term is, for example, eight or 10 years and non-renewable, that flies in the face of the stated desire to make the upper house more legitimate and more accountable. If you are elected and then you are not able to be re-elected, then you would not care what you did during your term in office because you would not be held accountable to the electorate. That would not be a good idea if you are thinking of being elected. It should be a lengthy term with a retirement age.
The Chairman: Thank you. I will open the questioning with Senator Milne, Deputy Chairman of the Standing Senate Committee on Legal and Constitutional Affairs.
Senator Milne: I appreciate the information that you have provided. This bill that is before the Senate proposes a term, perhaps renewable, of eight years. Currently in the works in Canada is a proposal that elections be held every four years to the House of Commons. Therefore, an eight-year term in the Senate would be the equivalent of two terms in the House of Commons, meaning that a prime minister with a majority for two terms would have appointed everyone in the Senate by the end of his or her term, possibly resulting in all senators being of one party.
I have become most concerned about the proposal of an eight-year term in the Senate because, in my view, the tenure should be longer. The committee therefore is looking at the House of Lords for an example, and at the various reports on the matter. The Wakeham report proposes 15 years and some more recent reports have proposed 12 years. My perception is that it should be perhaps either 12 or 15 years. I am rooting for a 15 year term that would be non- renewable. Thus, toward the end of their term in the Senate, senators would not look to the prime minister with great hopes in their eyes of being reappointed.
I like the way in which a non-partisan commission investigated and appointed Baroness Deech to the House of Lords. I assume that the commission's recommendation was then okayed by the prime minister.
Baroness Deech: I do not believe that the prime minister was able to veto the recommendation of the commission. My understanding is that a name is put forward by the commissioner. If anything, it is the commissioner who appears to be able to veto names put forward by the prime minister. We have had some interesting examples of that.
If I may be so bold as to interpret, it seems that the root of the trouble lies in massive patronage on the part of the prime minister. You want to have an independent, open and transparent method of appointment.
Lord Tyler: We must emphasize that Baroness Deech is one of a minority of appointments. Most appointments to the House of Lords are political in nature and have been since the Life Peerage Act in the 1960s, and my guess is that it is about 75 per cent. Mine was a political appointment. My party leader made a nomination to the Prime Minister when I retired from the House of Commons. Most of those who now sit in the House of Lords, who are life peers, were political appointments. If we are to retain an appointed house, it will still be more similar to your Senate than I would like it to be.
Lord Howe of Aberavon: You must not be misled down that path. It is quite right to say that, until recently, appointments have been made formally by the prime minister after representations from the political parties. After all, there has not been a Liberal prime minister for 100 years or so but here is a real life Liberal peer nominated by a Labour prime minister. As to the present structure of the House, it does represent equality between the major parties and the Liberals as well. It is pretty fair, but I go beyond that.
Everyone who has looked at this question, from the Wakeham commission onward, has said that appointments, from now on, should be made by an independent commission. Those of us who want to keep that system think that the commission should be put on a statutory basis and obliged to pay attention to certain criteria. If I may, I will add two personal points. My wife is a member of the upper house. She was one of the first wave of people's peers. At that time, there were 3,000 nominations and she was one of 15 who survived the entry process, and I am quite proud of her on that point. Such a selection process was able to detect two or three cases of people being nominated because they had been contributing to the funds of a political party. It was the commission that detected the alleged corruption of politicians trying to raise funds to back elections. Logically, we could all be nominated to the House of Commons to save on the expense of elections.
My last point is on retirement. The 15-year term would be a minimum tenure for credibility. Obviously, I am quite affected by the fact that our life tenure has worked pretty well up to now, as it seems to have done for senators as well. I am prejudiced because I am already five years beyond the generally suggested retirement age, so I am nervous about that.
The Chairman: Thank you. Your Lordship should know that we are aware that you only have 25 minutes and then you must leave for a vote. I want to remind you that I have a list of five more senators who wish to pose questions.
Senator Hays: Before I put my question, I would like to thank you for your help this afternoon. In particular, Lord Tyler, I would like to thank you and say that it is good to see that you are fully recovered. Last time we spoke, Senator Segal and I had a long conversation with you when you were recovering from an injury. Your input is always helpful.
I will address a couple of questions to Baroness Deech. A comment from others would be appreciated. Would you have accepted an appointment under the process that the non-statutory Independent Appointments Commission has brought forward for a term of eight, 12 or 15 years? I will put my other question at the same time.
We here have not been thinking about the "springboard'' argument. I know it is of great concern, both in terms of the European Parliament and in terms of possible elected Lords. I will put the question this way: What is wrong with someone at the end of their term seeking office in the other house?
Baroness Deech: Would I have accepted a shorter appointment? It would have depended on what age I was and what my working situation was at the time. It takes quite a lot out of my week, and it certainly is much more convenient if one can run it with a part-time job, which is what I am doing at the moment. Had I been offered this appointment when I was head of an Oxford college, I could not have done it without giving up my full-time post. I would have been looking ahead for a pension, so to my mind it is all mixed up with pay and pensions and so on, which I have had to preserve. Probably because it is such an honour, I would have accepted it.
I do think it takes a long time to get used to the house. It is probably a much quicker process if you have been a politician in the lower house, which I had not been. I imagine I will be hitting my stride in a few years' time and not right at the beginning of my period of office. Therefore I prefer a longer period, but the honour and contribution are such that I expect I would have taken a short period.
What about using the Lords as a springboard to other things? I do not think that is a very good idea because I firmly believe in being able to look at all issues by focusing simply on the validity of the issue that is before you, and the good of the country and the democratic process without thinking, will this make me popular? For example, if I vote this way on gambling, if I vote this way or that way, will it mean that I am more or less likely to be elected to the House of Commons in a few years' time? If I do this or do that, make the other friends, this friend, that friend, am I more likely to be put on a party list or get elected or appointed to a particular job? I am glad not to have that pressure. We in this country are very conscious at the moment of sleaze and cronyism and people not having the right attitudes. I think it is better not to be looking ahead to something but to regard this position as the pinnacle of one's career.
Lord Tyler: To add to that, we were all saying at the beginning that we did not want the second chamber, whichever way it will be reformed, to be a clone of the House of Commons. If people saw this as an apprenticeship for the House of Commons, if there were the opportunity to move on here, move up here, then that would seem to be unfortunate. That is why there is a trade-off in this whole issue of length of term and renewable terms. If the length of the term is relatively short, but it is renewable, clearly the member of the second house may well be spending his or her time trying to keep in with their party, trying to get a good reputation with their party as being a party loyalist in order to have a political career elsewhere. But if it is only one term, and it is not renewable, and indeed you cannot be elected to the House of Commons or to the European Parliament in the immediate, following election, then that ambition cannot be fulfilled.
Lord Howe of Aberavon: We would all broadly agree with that position. I think again, with general agreement, 12 or 15 years is minimum, 15 for me, but then it is a worthwhile period of performing here.
Baroness Deech: Yes.
Senator Joyal: Welcome, Baroness Deech and Lord Howe. I am happy to have an opportunity to move on with our conversation of last week.
My first question will be for you, Baroness Deech. You, as a professor of constitutional law, have certainly had to wrestle with the impact of legitimacy in the constitutional structure of Parliament. It seems to me that the substance and the meaning of legitimacy has a different bearing, depending on the nature and function of the house. Could you expand a little more on that assertion, or am I totally wrong? In other words, there is only one definition to legitimacy, and that is when people give you a mandate and when they call back the mandate.
Baroness Deech: Speaking as a lawyer, I would say it is a question of the rule of law. In this country in particular, it is a question of the common law going back 1,000 years or so whereas, of course, you have a fully comprehensive, written Constitution.
We have some statutes that amount to our Constitution, but we do not have a Constitution in the way that you do. Our Constitution lies in history, and the House of Lords is a pre-eminent part of that Constitution. It is part of the legal structure of this country and the governing structure, just like the Queen and the judges. The fact that neither the Queen nor the judges are elected, again, goes back to time immemorial.
Democracy is reflected in the House of Commons, and I suppose I do not like to envisage this but, when all is said and done, the House of Commons could probably abolish us. It might be very difficult, given the Parliament Act of 1911. The House of Commons is the font of democracy. We also have a part to play. However, we are legal and in that sense we are democratic. To overthrow us, in effect, would mean a revolution. All first year law students learn that Britain has never had a sort of constitutional revolution of that sort, at least not recently, the sort that produces a written constitution. We have kept these institutions going. They are sanctified by the passage of time, and by the fact that they work. If it ain't broke, don't fix it. We have legitimacy that rests in something like 1,000 years of parliamentary rule.
Senator Joyal: Lord Howe, in your speech two week ago in the House of Lords, you mentioned and referred to the fact that — and I quote:
The British Parliament needs to be strengthened against the executive.
In your opinion, should that not be a measure of any reform in one of the Houses of Parliament, meaningful reform? In other words, is not the purpose of any reform in fact to strengthen the checks and balances that there should be between the two houses, and of course generally, the capacity of the houses to keep the government accountable — this being any changes or reforms that would strengthen the role of the political parties in the upper house or in the Lords that would increase the stronghold of the executive, i.e. the leaders of the respective political parties? Would this in fact weaken the principle of check and balance? Would you care to comment on that?
Lord Howe of Aberavon: I would agree completely with that analysis. We would all agree with the diagnosis of Lord Hailsham about the risk of suffering under an elected dictatorship. The power of Parliament vis-à-vis the executive needs to be enhanced. It is extremely difficult to do that for the House of Commons because the House of Commons is founded on parties, and very strongly whipped parties. It is very hard for an individual member of the House of Commons to believe he is having an influence on anything. In my experience, very rarely can he influence the outcome by his vote or speech. There, as Baroness Deech has said, it takes two flocks of sheep to remind you of the result of the last election.
The thing about the House of Lords is that it used to be defined as illegitimate because of a hereditary Tory majority. As a result of the change now, that is seen to be the position. The government does not have a majority — 30 per cent for Labour, 30 per cent for the Tories, 40 per cent for the rest. Any proposals being made for a statutory appointments commission visualize the preservation of a structure something like that, with a large percentage of floating votes in the middle. The independence of that has been manifested by the frequency with which the government has accepted defeats inflicted in the House of Lords in the last five or six years. There is a recognition in the House of Commons, and in the government, of the wisdom of looking again at suggestions and proposals that come from the upper house. If you begin making the upper house a clone of the lower house, then you risk, as we say, losing the input of that high degree of independence.
Lord Tyler: We should make it clear that both in the government's recent white paper and in the draft bill I prepared with colleagues from all parties two years ago, we were thinking in terms of the elected element in the reformed chamber being elected in tranches: one third every four years or every five years, so that there would be continuity in the second chamber. It would not be the same sort of swing as would happen with a general election. It probably would not coincide with the general election. There would not be a direct threat to the House of Commons as the place where our governments have to gain, regain and retain confidence. There would be no confidence role for the House of Lords.
Lord Howe referred to a very important issue. When he talked about 40 per cent of the defeats in the Lords being accepted, in the main there are only two circumstances in which a government accepts a defeat in the Lords. One is because they are running out of time. It is either nearly the end of a session or the end of the Parliament, and therefore they have to accept the defeat. There simply is not time to go back and start again. Alternatively, it is relatively minor, and they know that they cannot get their troops in the House of Commons to support them in resisting amendments from the Lords.
We cannot emphasize too strongly that we are now in the process of reform in this country. We cannot have the House of Commons, which we all accept has primacy under the English Constitution, being 100 per cent elected and then the second chamber being 80 per cent elected, and that just disappears as if it has never happened. There will be reform of some sort. The question is not if; the question is when.
Senator Fraser: I have two questions. First, Baroness Deech, who appoints the members of the appointments commission? What guarantee have we that they are independent?
Second, Lord Tyler, in our Senate, as I gather in the House of Lords, members of various minorities, as well as women, are more strongly represented than they are in the House of Commons. One of the questions about which I have an abiding concern is how an elected system would continue that counterbalancing of the fact that the House of Commons tends to represent majorities rather than minorities?
Baroness Deech: My recollection is that the appointing commission was put together after advertisements in the newspapers. In general, in this country, when a public committee is put together, the selection committee is composed of a civil servant, an outsider and someone else. There was probably political approval in the end, but there has been absolutely no suggestion that the appointing commission is anything other than a bunch of strong-minded individuals of various sorts, again including ethnic minorities and women. They prove themselves by standing up to the Prime Minister and rejecting names that he has put forward recently, if we are to believe what we are told in the newspapers. I do not think there can be any doubt about that. After all, you must always have someone appointing those who appoint. Who appoints the judges? In the end, you must trust the process, and I think we have made it about as trustworthy as we possibly can.
When I was appointed, the appointing commission told me that they had 15,000 names of possible candidates in the database, and five were appointed in my particular batch. They researched my background pretty thoroughly to ensure that I was not about to disgrace the nature of the house, and this is quite an intimidating process, really. I thought it was a good process, and I do not know how much more independent you can get than that.
Lord Tyler: Senator, on the issue that you properly raised about women and those representing various ethnic minorities, in particular, it is true that the Lords does seem to be better represented. However, do recall that a majority of the people nominated to the House of Lords currently are nominated by the parties. There is absolutely no reason to suppose that if the electoral system is conducive to that, that they would not continue to do that if they were nominating people for election. That is why it is so critical that the method of election to a reformed second chamber is not the one used for the House of Commons here.
I understand that both British Columbia and Ontario have been looking at different forms of electoral systems to represent minorities more effectively, including women. If women are a minority in your country, they are not actually in ours; they are a majority. That is a very critical issue, that the electoral system be used in a way as conducive as possible to ensure a better representative cross-section.
I have to say, however, that there is one considerable majority that is not properly represented in the House of Lords, and that is younger people.
Senator Nolin: I have a concern — and it is also probably a concern that you have in the United Kingdom — about popular support for decisions made in the House of Lords. I want to learn more about the outreach program you are putting in place to explain to the population what you are doing in the reform process to better represent their interests.
Lord Howe of Aberavon: You asked whether we in the House of Lords are running an outreach program so that people can understand us better, which is a very interesting question. One of our problems is that because of our divergent party positions on this reform question, it is not easy for us now to collectively present our views. You can tell from the differences among us. We are, in effect, stepping up the amount of available information. We are producing a booklet in an effort to tell people what the House of Lords does. However, we must come back to the general perception that the media continues to present, and which we try to challenge, and that is that we spend our lives in ermine and red robes.
Senator Nolin: We share that concern with you because in Canada we, too, have a media very "supportive'' of the work we are doing.
Lord Tyler: I entirely agree with what Lord Howe says. Indeed, the misunderstanding about what we do is actually shared by members of Parliament in the House of Commons. They do not fully understand how we operate. Having come from there, I am well aware of this fact.
I sit on an informal group that our Lord's Speaker, Baroness Hayman, has brought together to address this problem because we believe, many of us in the Lords, that we can explain our current role, what we do, without necessarily getting into the territory of what to do next and how to reform the house. We give a lot of attention to that issue.
Incidentally, we are getting much better at communicating with the public generally than the House of Commons does, in many ways. We had television first in the House of Lords. We have a better website, I believe, than the House of Commons, partly because we are less political. It is true that the public, on the whole, think we are doing a reasonably good job, but they also think that we should be given more legitimacy. The only polls that have been taken on this issue show very large majorities in favour of having a majority or a wholly elected House of Lords. Eighty-two per cent and 92 per cent are the sort of figures that have been recorded in support for that.
Lord Howe of Aberavon: There are two points worth making. One is that since the House of Lords has been "legitimized'' by the removal of the bulk of the hereditaries, there is strong evidence that nongovernmental organizations and interest groups are increasingly making their representations on legislation to this house and not to the Commons. They have realized that in the Commons most of their representations will not be presented. The Commons do not consider more than about one third of any bill they look at. Almost all of the revisions are made in the upper house, and it is to this place that representations are increasingly coming, which is significant evidence of approval and legitimacy.
The other is a very small figure, which may surprise you, but the Wakeham commission said quite clearly that diversity was much more easily achieved by a nomination system than by an electoral system. Who do you want to pick? What do you think is the second most frequently spoken language in the House of Lords, apart from English? The second is Gujarati and the third is Welsh. There are now nine Gujarati speakers here and half a dozen Welsh speakers. That is a small symbol of the extent to which we are much more diverse in our representation.
Baroness Deech: If you ask the public, they would say it is the House of Commons that needs reform rather than the House of Lords because of the tyranny of the party whip and the way that they behave. I think in general — although I do not have the figures that my friend Lord Tyler has — there is not much public concern about the House of Lords. The House of Lords, in recent years, has acquired the reputation of being a defender of civil liberties and human rights, especially in these troubled times that we live in, when there are issues about terrorism and about holding to the rule of law, and so on. The public do tend to look to the House of Lords to maintain a steady hand on upholding the jury trial and civil liberties and so on, when they know that the House of Commons might be giving in to some party political demand.
The Chairman: Thank you. Lord Howe, Sir John A. Macdonald said of the Senate of Canada that he wanted it to be a body of sober second thought. That is what the Senate often is when legislation is passed by the House of Commons in a hurry, and it is necessary for the Senate of Canada to give it that sober second thought. Very often we have to amend a bill, send it back and make the corrections and changes that should have been made by the House, had they taken more time.
Senator Bryden: Thank you for being with us. I would like to follow up with Baroness Deech on her statement that the Lords are not paid. You also indicated that you would like to see more young people have an opportunity to be part of the House of Lords if they are qualified.
Is there a problem with the House of Lords being considered an elitist chamber in which only the fortunate or the well-heeled can participate?
Baroness Deech: I am not sure if that is the perception, but I think there is a grain of truth in that, partly, of course, because of the titles, and also because, as I said, we are not paid, which I think is a problem. I may be in a minority with that view, but I do think the age problem would be reduced if people could look on it not as a lucrative career but at least as replacing days off work. If one took a few days off work to come to the House of Lords, there ought to be some expenses paid towards that.
I am not sure that people look on the House of Lords as elitist. They look on it as rather historic. Those who study the situation have more respect for the House of Lords now than they did when it was fully hereditary. That did not quite resonate with the times when it was fully hereditary. I do not think that most informed people would look on the House of Lords as a house of rich people or anything like that.
Lord Howe of Aberavon: It is also important to recognize that we are not paid a salary, but we do get paid expenses on a daily basis on the days that we come here, for subsistence during the day, for residential accommodation in London, and for our travelling expenses. That goes some way towards bridging that gap, but it does not, of course, open it up as a career for young people. It may in one way be an advantage, but it is a bit over the top because we are all beyond that stage.
Lord Tyler: I would just add, senator, that Baroness Deech is absolutely right. It is not so much elitist, but it is rather selective of the sort of people who can be active members of the House of Lords. I mentioned earlier that only 480 out of the 740 were here for an absolutely vital vote on the future of the House.
Senator Bryden: Is there a minimum age one has to be before being a Lord in the House of Lords?
Lord Howe of Aberavon: I do not think so, no.
Lord Tyler: No.
Baroness Deech: It might be 21. I would not like to say for sure. Have we had people of 30? We may have done. Hereditaries, yes, but the average age is 68, as Lord Tyler said. It could do with being brought down a bit, I think.
Senator Bryden: In our Senate, the minimum age is 30, and on appointment you would tenure to age 75. It used to be a life appointment but it was moved back a few years ago to age 75.
If we were to go to a term appointment, should we also keep the age limit of 75? That is, if we had a 15-year term, a person could not be appointed if their 15-year term would take them over a certain age — perhaps 75?
Lord Howe of Aberavon: I would speak with prejudice on that. I think that if someone aged 55 is appointed, he ought to be allowed to run to age 80. I think there should be a certain degree of discretion.
Lord Tyler: I would agree with that. We all know people of 75 or 80 years who have the mental capacity, and the contribution that they can make is as good as 60-year-olds or 40-year-olds. It is not the age that is important; it is the quality of the contribution.
In the House of Lords, we have gone to rather an opposite extreme. We now have a lot of ex-experts, people who were expert but have only been able to take up appointment in the House of Lords when they ceased being involved in whatever walk of life they were experts in.
Lord Howe of Aberavon: There is an increasingly exclusive pattern of person being elected to the House of Commons. The House of Commons has become increasingly dominated by the professional politician. When I was there, 30 years ago, becoming Solicitor General in the Heath Government, I was one of many well-qualified lawyers in the Commons competing for that job. Today you find very few people in the Commons following an independent profession. They have largely become professional politicians, but that is not intrinsically very satisfactory.
Senator Grafstein: Welcome, Lords and Baroness. You have used the words "tyranny,'' "tyranny of the whips,'' "elected dictatorship,'' "reform,'' and "legitimacy.'' My question concerns power. Parliament — the Lords in our country — is one where the House of Commons and the Senate is considered Parliament. The question is the allocation of power. You have all said that there has to be a rule of law and checks and balances against the executive. We all agree with that.
Have there been any reforms of power in the House of Lords? If there was a reformed Lords — whatever "reformed Lords'' means, other than the appointment process — would that change the allocation of power within the House of Lords as it relates to the House of Commons or to the executive?
Lord Howe of Aberavon: That has been considered pretty closely, jointly by both Houses quite recently. It is agreed, I think at the moment, that the conventions regulating power should not be changed. It is also agreed, however, that if there were to be a change in the structure of the House of Lords, then the question might arise as to whether those powers should be adjusted.
At the present time, the crucial power equation is this: The executive and the Commons are very closely related to each other in the sense that the Commons can get rid of the executive; they can defeat the government, as we did in 1979. On the other hand, the executive can dissolve the Commons. The relations between the Lords and the executive is quite different. We cannot get rid of them and they cannot get rid of us, which in a way gives us a higher degree of power because of that independence. The real power equation is in the Commons. In their take, it is a rather attractive structure.
Lord Tyler: I sat on the joint committee of members of Parliament and peers to which Lord Howe has just referred. It is important just to mention that the reason that committee was originally set up, with the remit it was given by the government, was that the government wanted to clip the wings of the House of Lords. It wanted to restrict and codify precisely what the Lords were able to do before any reform of its composition. What was so fascinating about that exercise, as we went through it, and as you will know from your work on your committees, is how such an independent party came to a collective and unanimous view that there was no point in having a second chamber if its wings were clipped; if it could not occasionally say no to the government of the day, if it were not, as in the phrase your chair used just now, a chamber of sober second thought, then there was no point in having it. Unanimously, members of all parties and of none from both Houses came to the view that we should retain the freedom of movement and the flexibility that we have at present, and that it would be wrong to try and codify very precisely the room for manoeuvre that the House of Lords had. That report was passed and accepted by both Houses.
Therefore, in a sense, we have bedrock from which we work, but Lord Howe is absolutely right. If over the next five or 10 years there was a change in the composition of the second chamber, then clearly we would have to review that situation.
Baroness Deech: One of the peculiar things about the vote of our House of Commons three weeks ago that the House of Lords should be elected was that they seemed not to see that this would be inevitably setting up an upper house with far more power. The whole argument is about democracy and legitimacy, not that I agree with the way those words are being used, but if you follow through the House of Commons vote, then the House of Lords, if it were elected, would have to have more power. After all, their constituents would have put them there. What is the point of being elected if all can you do is advise and give advice? There would have to be more power. That would have to mean a revision of the balance of powers between our two Houses. It would have to mean a revision of the Parliament Act of 1911, and I believe it would lead, inevitably, to our having a written Constitution. I am not sure whether that is a good idea or not, but with election, with short tenure, would have to come more power. Otherwise, what is the point?
Lord Tyler: If I may say so, it is not a zero sum game. The point was made in both Houses that to make the two Houses more powerful in respect to their responsibility in holding the government to account, working in partnership rather than competitively does not necessarily mean any diminution in the influence, power and responsibility of the House of Commons. It just means that Parliament is more effective in holding the government to account as a whole.
The Chairman: Thank you. My Lords, I know you must go to a vote. We were told that we would be able to hear your bells ringing. Have they started to ring? Has the vote been called, or do you have time for another question or two?
Lord Howe of Aberavon: I think the vote is getting nearer.
Lord Tyler: The minister is speaking, so there will be a vote very shortly.
Baroness Deech: In a few minutes, we think.
The Chairman: I would think that, in view of the fact you have to go, I would like to say, on behalf of our Senate committee here in Canada, that I thank the three of you very sincerely for the excellence of your presentations and for the way in which you have responded to the questions put by honourable senators. The responses that you have given to the questions have really touched on all of the material aspects of our issue of tenure that we wanted to hear, and I can assure you that your advice, your assistance and responses will be very useful to us as we continue our deliberations.
Thank you all very much. I hope that you get to your vote on time.
Lord Tyler: Thank you very much.
Baroness Deech: Thank you.
Lord Howe of Aberavon: We would like to thank you for the experience of being exposed to such interesting cross- examination.
The Chairman: Honourable senators, this committee meeting is now adjourned.
The committee adjourned.