Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
The Lord Speaker, the Rt Hon the Lord McFall of Alcluith, sets out his thoughts on the future of the House of Lords, addressing concerns regarding the size of the Upper House, setting out the benefits of the House's scrutiny work, and considering the constitutional role of the House and its role in our wider society.
The Rt Hon the Lord McFall of Alcluith
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Delivered: 7:30pm, 7 December 2022 Portcullis House, Westminster
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Thank you for that kind introduction. I’m grateful to Dr Ruth Fox and staff at the Hansard Society for re-arranging this speech for tonight. It was originally due to be delivered in early September, but was postponed when Her late Majesty sadly passed away. This means I have rewritten tonight’s remarks about three times in order to reflect the context. However, I can assure you that my key messages on the future of the House of Lords would have been the same if I had delivered it then, or even last year. But the context has changed, with a report published this week proposing abolition of the Lords, generating extensive media coverage. The irony is not lost on me that the author of that report appointed me to the House back in 2010. So thanks, Gordon, for shining a further spotlight on my remarks this evening! As Lord Speaker, I am impartial. It is not for me to put forward my own specific proposals for the future of the House of Lords tonight. However, what I can do is suggest a framework that will help us to have a constructive and purposeful debate about the future of the House. Tonight, I want to begin by outlining my two unassailable truths regarding the current House of Lords, before going on to set out my three principles for considering reform of the House. My first truth is that the House adds significant value to parliamentary scrutiny and revision, and is distinct from and complementary to the House of Commons. And my second truth is that, while the House of Lords is able to add value because its composition is different from the Commons, there are also issues around our composition which we need to resolve. That gives us an agenda for change – keeping what is positive in the House’s role, while responding to issues of public concern, such as size and appointments. My three principles for assessing reform of the House of Lords build upon one another: First, that changing the composition of the House will inevitably change its role, even if there are no explicit changes in its powers. Secondly, that the more radical the change in composition, the more radical and unpredictable will be the resulting change in the role of the House. History tells us that incremental change has been easier to realise than radical change. This is because reforming the House of Lords requires consensus at multiple levels. If radical reform is to be undertaken, then that is for the politicians to consider and take forward – it is not for me as an impartial speaker to stand in the way of any such reform. I merely stress the need for constructive engagement that can deliver the widest possible consensus. This in turn gives me my third principle: let’s be clear upfront that we need reform proposals to achieve engagement and endorsement from Government, from political parties in Parliament and—not least—from across our increasingly diverse UK population. We need to think about how to achieve this. Let us start by setting out my first “truth” in more detail: the House of Lords performs an important role and does this well. We are living through an epoch of upheaval and disruption, with the shifting forces of geopolitics, the rise of artificial intelligence, the realities of climate change and new trends in migration. This context is disconcerting for some and unsettling for many. Our task as legislators is to appreciate that and to respond effectively through policy and legislation. But it is not as straightforward as that! Our public policy landscape has become more complex and interconnected than ever. Economic and non-economic shocks are entangled—the writers Martin Wolf and Adam Tooze have referred to this as a ‘polycrisis’—and the age of being able to resolve problems within convenient intellectual silos has gone. Public policy challenges and threats are bound together, testing all our thinkers and legislators. And this test is taking place at a time when our methods of communication have been revolutionised, with social media having shaped a new form of discourse which is increasingly polarised, with competing positions becoming hardened and difficult to reconcile. The House of Lords works well in this context. Let me give you an example. In January 2021, seven months before the withdrawal from Afghanistan, our International Relations and Defence Committee reported that: “The ongoing presence of US and NATO troops in Afghanistan is essential to the Afghan government’s military strength and negotiating position. Premature withdrawal by the US, likely to be matched by NATO partners, runs contrary to the UK’s objective of securing a durable negotiated settlement.” What a remarkably prescient report! It warned of the risks that withdrawal would pose to the Afghan government, the reinvigoration of the Taliban that would result from such an action, and the consequential threats to the human rights of Afghans. The Committee was chaired by a former Foreign Office Minister and included among its membership a former Defence Secretary, a former UK Ambassador to the UN and members with long experience of conflict resolution and human rights work. Their extensive inquiry resulted in the first report on this topic by a committee in either House since 2014. My point here is that the membership of the House of Lords is replete with experience and expertise. I have chosen just one example of our select committees in action, but I could choose many others. Think of the Economic Affairs Committee inquiry on social care funding, Lord Patel’s Committee on the long-term sustainability of the NHS, and the range of new committees we created after Brexit: Common Frameworks, the Northern Ireland Protocol, and International Agreements. These new committees have no direct counterparts in the Commons and fill vital gaps in parliamentary scrutiny of our new international and trade relationships. So what do our committees do? They assist democracy by promoting better legislation and public policy. They complement the work of House of Commons committees, which are focused on departmental scrutiny and often undertake shorter inquiries on topics of high media impact, with membership drawn from MPs, who have many other demands on their time. Our committees also enhance legislative scrutiny, enriching and informing consideration of new laws in a way that is not replicated in the Commons. Our Delegated Powers Committee, Secondary Legislation Scrutiny Committee and Constitution Committee have done much to highlight the critical importance of the balance between primary and secondary legislation as the foundation of the relationship between Parliament and the Government. It is in the Lords where the real detail of legislative proposals is considered and properly scrutinised, and this has been recognised by the Brown report. There is no guillotine on debate and no selection of amendments. And the Government make just as much use of this facility of amending legislation as anyone; in the 2019-21 session of Parliament the Lords made 1,029 amendments to Government Bills, with only 83 of those amendments being the result of a Government defeat in a division of the House. As demonstrated by these figures, many of the amendments agreed in the Lords result not from the opposition defeating the Government, but from debate and deliberation during the early stages of legislative scrutiny. Ministers offer undertakings and then bring back compromise amendments at later stages. This is the high value of the civil discourse that we conduct in the Lords. The way we conduct our business improves the law of the land, serving the interests of the public. Ask most MPs and they’ll agree that they don’t have enough time to properly scrutinise legislation, line-by-line, as we do in the Lords. Capacity for this detailed work in the Commons is limited, and MPs are rightly busy responding to local issues and the needs of their constituents, while also operating within a 24/7 cycle of news and social media. In doing this scrutiny work, we draw upon the expertise of lawyers, judges, scientists, doctors, artists, diplomats, former cabinet members and many other professions represented amongst our membership. For example, when Baroness Kidron is not scrutinising the Online Safety Bill she is off tackling the tech giants in Silicon Valley and improving children’s safety online. When Baroness Finlay of Llandaff isn’t advocating for the NHS from the red benches, she’s overseeing palliative care at the Velindre Cancer Centre in Cardiff. When Lord Woolley of Woodford isn’t speaking up for the disadvantaged and encouraging young people to vote he is on the frontlines of education, running a Cambridge College, the first Black man to do so. What I have set out demonstrates that the Lords has the capability and the expertise to improve laws and improve lives. But our system only works because the House of Commons, who are elected by voters, have the final say. Our members have ideas, but what’s crucial is that the status of their ideas is advisory. Again, our work complements the work of the elected Chamber, rather than competing with it. But this brings me back to my second truth which is that, while the composition of the House of Lords allows us to play our unique role, the composition of the House is also a problem. Considering this in the current context reminds me of the work of Giuseppe di Lampedusa, who in his book The Leopard wrote: “If we want things to stay as they are, things will have to change”. There are questions about the future of the House of Lords which we cannot avoid. I believe we need to see reform of an institution which is performing an important and valuable constitutional role. The Lords should be smaller, more inclusive, and more representative of our diverse United Kingdom. I will now set out further some of my own thinking on this. Much has been said regarding the size of the House. The diligent work of my predecessor Lord Fowler brought this into public focus. He established a Committee on the Size of the House - chaired by Lord Burns, here tonight – which produced sensible recommendations to reduce our size. Following publication of the report, the then Prime Minister, Theresa May, committed to an admirable policy of restraint in new appointments. This, coupled with departures from the House, helped to reduce our numbers from 823 in June 2017 to 778 in June 2019. That same restraint sadly has not always been demonstrated more recently, and we now find ourselves with 828 members, and more to come. New members are individually welcomed; many bring important experience and new insights, but, let’s face it, our overall number leads to understandable public criticism. Indeed, it has been suggested to me that - should there be a change of Government at a future election - the new Prime Minister might need to appoint over 100 peers from their own party in order to see their legislation through the upper House. A House with approaching 1,000 members would not function as a collective entity. Self-regulation would fail. The capacity for civil discourse and effective scrutiny would be fundamentally weakened. The size of the House is important and must be addressed. But there are other important issues to consider. We have seen recent criticism regarding the suitability of particular appointments. I have emphasised that the ‘output’ of the Lords is often excellent. But we cannot and do not control the ‘input’ of new peers. This is a fact which we are used to explaining whenever a new list of appointments is published. The House of Lords Appointments Commission, operating from within the Cabinet Office, has a narrow remit to consider only the propriety of appointments, rather than expertise, suitability or the time commitment a new member might make to the House. Excellent people sit on the Commission, but it has very limited power to challenge nominations. Its Chair, Lord Bew, recently made a rare public intervention about this arguing that the inappropriate nature of recent proposals was putting the Commission in an “uncomfortable” position. Membership of the legislature is a serious responsibility, and brings with it a duty of public service. It is not a reward. Our honours system has other options available for that. There is a case for examination of the appointments process, including a more robust vetting system and stronger powers for HOLAC, ensuring that new appointees are able to make a worthwhile contribution to the important work of the House. But an examination of the appointments system is just one element of what could be a larger package of reform, including reducing the size of the House and increasing the diversity of its members, allowing us to reach out to all parts of the United Kingdom. So, having described these unassailable truths, I want now to establish a framework for constructive engagement around questions of reform of the House. I propose 3 principles to guide us. First - changing the composition of the House will change its role, even if there is no explicit legislative change in the powers of the House. We have heard a great deal in recent days regarding the possibility of fundamentally reforming the composition of the House, and replacing it with a wholly elected Chamber. The most significant reforms since the Parliament Acts of 1911 and 1949 were major changes in composition, with the introduction of life peers in 1958 and the removal of most hereditaries in 1999. Each of these changes altered the composition of the House, but they also altered its character, affecting the way in which the House conducts its work. As I said earlier, changing the composition of the House will again influence and affect the role that it performs. But there are other suggestions for reform, beyond an elected House, which would not have the same far-reaching effect on our composition. Just this weekend, for example, Lord Forsyth of Drumlean, Chair of the Association of Conservative Peers, suggested that a Bill could be introduced to reduce the size of the Lords, with each group voting for a number of its existing members to remain in the Chamber. In doing so he cited the 1999 precedent, in which hereditary peers voted for 90 of their colleagues to remain in a smaller Chamber. In 2017, strong and clear recommendations for reducing the size of the House were set out by Lord Burns and his committee, with a package of reform which did not require primary legislation. The intention was to reduce the House to a capped membership of 600, primarily through the application of a ‘2 out 1 in’ approach to departures and nominations. The report enjoyed a good degree of support within the House, and there is much within it that is still worthy of examination. But there are also proposals for primary legislation on the table. Former Chief Whip Lord Grocott has sought, over many years, to win support for a Private Member’s Bill to abolish hereditary peer by-elections, leading to the eventual removal of hereditary peers in the Chamber. His attempts to win support have been largely successful within the House itself – when votes have been held on his proposals he has won them, often with significant majorities. This demonstrates the appetite within the House for reform – a fact which is also borne out by the successful passage of the House of Lords Reform Act 2014 – a Private Members Bill which for the first time allowed peers to retire or resign from the House. More recently, we have debated a Bill from Lord Norton of Louth which would address the propriety of appointments and the powers of the House of Lords Appointments Commission. His Bill proposes that HOLAC publish criteria against which Prime Ministers must recommend appointments. This means when a Prime Minister proposes a list, they would be obliged to gather evidence and present it to HOLAC, setting out why each nominee would make a suitable member. This would be an incremental change, rather than wholesale reform. A series of incremental changes can in fact add up to big change over time. In 2018 the Commons Public Administration Committee, chaired by Sir Bernard Jenkin, reported on Lords reform, stating that “The experience of the last century demonstrates that only incremental reform has succeeded. While never excluding the possibility of radical reform, when there is consensus on the next essential step, smaller incremental reforms are possible, and indeed necessary and important. In the end these can lead to radical change over a longer period.” Those are wise words. But there is an opportunity to contemplate reform that allows us to maintain the strengths of our membership, while delivering a smaller House that better represents the modern United Kingdom. The second of my principles for reform is that the more radical any change in composition, the more radical and uncertain the change in the role of the House. For example, a wholly elected House could present fundamental challenges and threaten both the balance of our constitution and our capability, across Parliament, to deliver good and effective legislation. There are a number of questions which those who propose replacement of the Lords with an elected Chamber must consider and address. How, for instance, would we address conflicts between the Houses? We are a revising Chamber and we have defined, over many years, a constitutional role which complements the work of the Commons. Our current arrangements allow the Lords to test the thinking of the Commons, to refine their proposals, and to ask them to reconsider. But ultimately, we defer to the elected Chamber. Elected Lords would have the legitimacy to challenge and block the lower House, entering into competition with the Commons rather than complementing its work. How would we retain independent expertise in an elected House? As I have set out, our members are drawn from a wide range of professions, with many peers renowned for their knowledge, experience and skills. When deciding the big issues, the expertise of our members is often as powerful as any whip. Scrutiny of public policy and legislation in our Chamber is enriched by the depth of experience of members, but also by the time that we are able to dedicate to the detail. It is difficult to contemplate how an elected House would replicate this. An elected Lords is also likely to mean a fundamental change to the role of the Commons is required. The potential for gridlock and competition between two wholly elected Houses has been widely anticipated in recent debates on this subject. But beyond this, a changed upper House might also require the lower House to change how it organises its business; certainly it would need to devote much more of its time to detailed legislative scrutiny. As a result, MPs could find they spend more of their day responding to the legislative agenda of the Government, and have less time for campaigns that matter to them or their constituents. Onto principle three. Reform proposals, if they are to be viable, need engagement and endorsement from Government, from political parties in Parliament and, not least, from across our increasingly diverse population. We need to ensure any reforms enjoy both consensus and legitimacy. Political parties win general elections on the basis of manifestoes that contain wide-ranging commitments across the full breadth of public policy. Voters make their decisions based upon the issues that matter to them. While I think that the future of the House of Lords is important I am not certain it ranks above topics such as health, education and the economy for most voters! Recently, Governments elected on a manifesto which promised significant constitutional change have put those proposals to a referendum before seeking to enact them. I wouldn’t like to predict the outcome of a referendum on the Lords! But I remember that, in 2013, the Government of Ireland sought to abolish the upper House of their Parliament – which is not directly elected - and put their proposal to a public vote. The people of Ireland voted to keep their upper Chamber – the result was 52% to 48%! Incidentally I am not recommending a referendum on the future of the Lords. But I am emphasising that any far-reaching change would need to be seen as legitimate in order to guarantee the broad political support that would be necessary for delivery. We know that previous failed attempts at significant change, including those I witnessed while serving as an MP, illustrate that without agreement across parties even the most worthy proposals could be found wanting. My point is this: Consensus is crucial. It is not beyond the wit of our best policymakers to devise mechanisms for delivering consensus. We must have a vehicle through which options for reform can be considered calmly, acknowledging that there are issues which public opinion demands we address, while understanding our strengths and the value that we can offer to Parliamentary democracy. This is why I advance this principle: to make us think about the appropriate vehicle in the absence of a written constitution or an established solution for these issues. A major reform of the House requires a means of establishing consensus, such as a constitutional convention of some kind, followed by an Act of Parliament for implementation. More incremental reform of the House might, however, only require an independent broad-based consultation and recommendation, with more limited proposals captured in legislation. I have been in conversation with Lord Burns on a number of occasions in recent months. I know that his cross-party committee, which continues in existence and has produced further reports, stands ready to help us in engaging sensibly on this. The Committee has worked well in seeking compromise and consensus across the House; and is keen to continue its work. In light of the current debate and the sharp focus on our Chamber it is essential that Lord Burns and his colleagues continue to take this work forward. With the right support, the Committee could reach out beyond the House to engage in a fundamental, consensus-based review of workable options, setting out recommendations for a way forward. Consensus via the right reform vehicle is vital, but this can only be delivered if a further pre-requisite is satisfied. That requirement is for the Government to be engaged on this issue and to be involved in a dialogue which can lead to delivery. It is worth recalling that the 2019 Conservative election manifesto included reference to looking “at the role of the House of Lords”, among other constitutional questions. In the spirit of engagement, in the summer I wrote to both Conservative leadership election candidates seeking commitment and collaboration on the issue of Lords reform. Rishi Sunak responded positively to me, saying that these issues were “important constitutional questions which need to be considered in detail”, and that a Prime Minister should make time for a meeting to consider this further. I agree, and I’m taking him up on this offer. Engagement with the Government, at the highest level, is of central importance in driving a way forward as part of a consensus based, viable approach to reform. The House of Lords needs to keep up with the times; if it doesn’t, it faces decline. And that’s bad for our politics and our democracy. We need to work proactively to change the Lords so that we can continue to do what we do well, but do it while better reflecting society and all parts of the country, as part of the UK Parliament. Hence my two unassailable truths: First, the House of Lords adds significant value to parliamentary scrutiny and revision, distinct from and complementary to the House of Commons. Second, while the House of Lords is able to add value because its composition is different from the Commons, there are also issues around our composition which we need to resolve. And, following on from that, I will conclude by reminding you of my principles for reform of the House of Lords: First, that changing the composition of the House will inevitably change its role and behaviour, even if there are no explicit changes in its powers. Secondly, the more radical the change, the more radical and unpredictable will be resulting change in the role of the House. Thirdly, we need reform proposals to achieve engagement and endorsement from Government and all political parties across Parliament and wider society. And we need to choose the right vehicle to accomplish sustainable, consensual change. The work, initiative, dedication and thought being put in by the Lords and its members gives me hope for the future. I believe the House wants to be smaller, and I know that the Lords has a good track record of pursuing incremental reform. With conversation, collaboration, commitment and determination, I am optimistic that we can deliver the consensus required to ensure that a reformed upper Chamber can continue to perform effectively as part of a modern Parliamentary democracy, fit for the 21st century. Thank you.
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