Why does the Government keep courting trouble with these plans for the Lords?

In some respects, Falconer threatens to be more reactionary than his predecessor, Derry Irvine
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The Independent Online

It is to the credit of Tony Blair that he is the first Prime Minister ever to agree to give evidence to a Committee of Parliament. Reports of his most recent appearance before the Liaison Committee were dominated by his tacit admission that the hunt was over for those elusive weapons of mass destruction, but more fundamental was the questioning on how this Government makes policy.

Historically the evolution of policy has proceeded at a stately pace from a democratic mandate on a manifesto pledge, through consultation on a Green Paper, to the fully formed proposal in a White Paper. Possibly that cautious process did not keep up with the rapid rate of change in the modern world, but it did allow for democratic scrutiny and provided the potential for a consensus beyond the ministerial private office.

Tony Blair's second term has been marked by an impatience with such a prolonged process of policy gestation. As the senior MPs on the Liaison Committee complained last week, there have been three celebrated examples of what may best be described as policy by ambush - Foundation Hospitals, variable Tuition Fees and a Supreme Court. None was trailed in the manifesto, none was the subject of consultation, but all were launched as a high-profile commitment by the Prime Minister, who converted them into a test of his political authority before there had been any debate on their merits.

Yesterday the Select Committee on Constitutional Affairs produced a report that was critical of the sudden death of the Lord Chancellor's office and the rapid dismemberment of his judicial functions. It is a pity that in this case complaints over shortcuts in process have clouded the irresistible common sense of what the Government is proposing. It has to be right to consolidate the independence of the courts by creating an independent system for the appointment of judges. As the late Gareth Williams used to ask, would we not all denounce MrMugabe for making the choice of judges a decision for a Cabinet Minister?

I can also understand how No 10 got itself into announcing this policy commitment before they had thought it through. The political reality was that Derry Irvine was never going to yield up his personal control over judicial appointments and settle for a more humble reincarnation as Minister for Court Administration. A Supreme Court therefore could only be announced in the context of a reshuffle, as it had to be achieved, metaphorically speaking, over Derry's dead body.

One of those unforeseen, but predictable, consequences was that as a sideshow they deprived the House of Lords of a chairman to perch on the woolsack. Personally I regard that as the most progressive reform of the Lords which the Government has introduced since the last election. It is unseemly for either chamber of parliament to have its proceedings run by a Cabinet Minister chosen by No 10, and I am perplexed by peers indignant that they should now be expected to choose their own chairman.

Regrettably that bold stroke has exhausted the radical impetus of the Government towards Lords reform. Despite their courage in removing the Law Lords to a Supreme Court, ministers have backed off from the modest proposal to cut the number of Bishops. They will now retain their full historic niche in the House of Lords, despite the plurality of other faiths in modern Britain.

In some respects Charlie Falconer threatens to be more reactionary than Derry Irvine. At least Derry had no truck with the notion that members of the second chamber needed to be a Lord or Lady, but the latest package restores the farcical pretence that every member in the upper house has a title from some imaginary manor. It is beyond fathoming why a supposedly social democrat Government should wish to preserve the link between the honours system and the second chamber of a modern parliament.

But ultimately what the members of a second chamber are called is not of great importance. What does matter crucially is whether they are picked by the Prime Minister or chosen by the electorate. Here at least there has been an extensive, nay exhaustive, process of consultation. Almost exactly a year ago Parliament voted on a range of options for the composition of a reformed second chamber. The option that received fewest votes was an all-appointed chamber. Unbelievably, that is the option with which the Government has resolved to proceed. If there is one fault greater in a democratic society than not to consult, it is to consult and then to ignore the results.

Modernisation of the House of Lords is to be kept strictly limited to moving from the 15th century principle of heredity to the 18th century principle of patronage. It defies the 21st century principle that political power should only be exercised by representatives democratically chosen by those over whom they exercise that power.

It appears to be dawning on ministers that this proposition is not marketable. In particular it looks doomed to defeat in the House of Lords, where the surviving hereditary peers were left in place as kind of hostages to ensure the good faith of the Government. The explicit deal was that the surviving hereditary peers would only be abolished when there was agreement to a reform that would create a modern, stable second chamber. No reform of the Lords, no abolition of the hereditaries.

For some months it has been possible to detect the sound of thoughtful tooth-sucking from within the Lord Chancellor's office. In the past week this period of reflection culminated in both Charlie Falconer and Peter Hain pushing out the boat for the so-called "secondary mandate", credit for which belongs to Billy Bragg. Under his scheme the House of Lords would be composed of representatives chosen in proportion to the votes cast for their party in each region at the General Election. The obvious defect of this model is that no elector gets a direct vote on who sits in the Lords, and the choice of its members is subcontracted to the political parties. There is a fine dividing line between this model and an all-appointed second chamber, but it does at least have the merit of allocating seats on the basis of how the nation voted.

What is most striking about this kite-flying is that six months after announcing an all-appointed second chamber, ministers are again facing up to the political reality that they will have problems getting through parliament the policy to which they have committed themselves. I suspect future historians will be puzzled how a Government with an historic record majority kept coming up with policies they could only get through parliament with heroic difficulty. Those old-fashioned processes of policy formulation may have required patience, but they did at least save governments from committing themselves to a proposal before they knew whether they had the support to get it through Parliament.