For this week’s quiz, I thought I would focus on women in the House.   Various attempts were made to enable women to sit in the Lords prior to the 1958 Life Peerages Act.  The passage of the Sex Discrimination (Removal) Act 1919 was taken by some as suggesting that women may be eligible for admission to the House.   At the time there was a small number of hereditary peeresses and one of them, Viscountess Rhondda, requested a writ of summons.  Her application was initially upheld by the Committee of Privileges, but after opposition from some peers it was reconsidered and turned down.   A Private Member’s Bill to allow women to sit was variously introduced but failed to achieve passage.   It was not until 1958 that women could be offered life peerages and it was the 1963 Peerages Act that allowed women who inherited their titles to sit. 

This week’s questions:

1.  Who was the first woman Leader of the House of Lords?

2. Which Leader of the House held office while her father was also a member of the House?

3. Of the two women who presently sit as elected hereditary peers, who has served in the House the longest?

4. Which female life peer has served as a distinguished judge and whose brother served as Lord Chancellor?

The first two readers to supply the correct answers will be the winners.

Parliament was prorogued at 4.30 p.m. today.  It was a quiet end end to a tumultuous session.  There was no last minute ‘ping pong’ between the chambers.  The absence of such ‘ping pong’ reflected the influence rather than the weakness of the Lords.  On recent measures – some of the big Bills going through the House – the Government has been busy accepting amendments, recognising that they improve the Bill.  Few of the amendments are the result of Government defeats.  The House proceeds largely by way of  a constructive discourse with ministers.  Each session, anything between 1,000 and 4,000 amendments may be secured in the House.  Occasionally, it becomes necessary to force a vote and the Government may be defeated.  As Meg Russell’s research has shown, about 40 per cent of defeats are accepted by Government; somewhat counter-intuitively, it is the more important defeats than tend to be accepted. 

The House thus makes a difference and it does so on limited resources.   The demand is greatest on opposition front benchers.   Many are basically full time but have no salary and extremely limited research support.   The demands are also great on those with expertise in a particular area who are willing to devote long hours in Grand Committee and on Report to pursuing amendments.  Some Bills are in Committee for several days.   We may sit late to get through all the amendments.   The important aspect of such sittings is quality rather than quantity in terms of who is present.  It is very rare to force divisions during committee stage.  It is the discourse between ministers and peers who know what they are talking about that is important.  I have achieved some modest changes, but none has involved forcing or threatening a vote.  They entailed moving amendments in committee, letting ministers (who initially resisted them) reflect on them, and then having meetings with the ministers to discuss what they may accept or assurances they are prepared to put on record.  It is not earth-shattering stuff, but it all adds up to an improvement in legislation.  

The most important work of the Lords, certainly in overall terms in affecting legislation, is that which you do not hear about.  The major defeat, or the failure to defeat the Government on a contentious issue, attracts the headlines, but what is newsworthy is what is exceptional, or – as with Prime Minister’s Question Time – what is televisual.   Detailed scrutiny in an essentially non-adversarial environment does not qualify.

It is almost unbearable when the names of young men and women killed in Afghanistan are read out in the Chamber of the House of Lords. After we returned from the summer recess the roll call was no less than 38 and it was more than many of us could cope with. The question hangs in the air, heavily: for what are our young dying?

This week we honoured the dead and the wounded on almost every day and the ceremonies became more poignant as the week wore on.

 Last Friday there was a mammoth debate on Defence which inevitably focused almost entirely on the Afghanistan question and others have already blogged about it. The fight that the armed forces mount each and every day is brave beyond belief and they need (indeed must have) the support from a public which has some idea of what they are going through. But this cannot stop us from asking the fundamental question over and over again.

I have to say that if only a small part of the  billions of dollars spent on arms and maintaining the armed forces in the south of Afghanistan could be deployed to proper, thought through, sustained reconstruction and development – with a strong emphasis on investment in industy and natural mineral wealth – there would be hope for some communities in the safer areas.

I firmly believe that this model of investment and coherent planning would help Afghans to face the Taliban or rather turn their  backs on them. It is amazing what can  be achieved if money, people, plans and other resources come together and insist on resolving a problem – however intractable.

It could be achieved  but I guess that it probably won’t happen.

The afternoon after the night before, and here is my report, as promised.   So much for the claim that the House of Lords makes the Commons – and the Government majority there – think again.

 David Davis MP, former Conservative Shadow Home Secretary and leading campaigner against attacks on civil liberties, previously described Minister’s attempts to hold inquests in secret as a “sinister threat”.   Conservative MPs consistently supported moves to stop this change in the law – intended, no doubt, to protect officialdom in the case of soldiers’ deaths – in the Coroners and Justice Bill.

Last night, despite all this principled opposition, Conservative Peers were told by their Whips to abstain when the Liberal Democrats maintained their attack on this “sinister threat”.   Sadly, a number of Crossbenchers who should know better followed their lead, although those most associated with civil liberties issues joined the Liberal Democrats. With only a very brave few Conservatives defying their party, the Government won by 175 to 70.  

Unkind colleagues muttered that the Tory Peers had wanted to speed up the ping-pong process, putting “dinner before democracy”.   I think that was unfair.  It was only too obvious that they wanted to get on to the more excitable issue of sexuality.  Significantly, they piled into the Chamber for that debate:   I saw Peers who haven’t been present for months, and one or two that I didn’t recognise at all.  A total of 314 Members voted in the Division just before 8pm, and so those already dressed up for formal dinners were able to get away in time for the soup course.

The only casualty in the rush for the door was the reputation of the House of Lords as a responsible revising chamber, using this priceless opportunity to force the Government and the Commons to think twice before undermining our civil liberties.

Meanwhile, a list of votes sent to me by the excellent House of Lords Library shows that of all the hundreds of government defeats since November 2002, only 19 happened after 8pm. Of those six were in 2005, when the House exceptionally sat until nearly 6am, to counsel caution against the Government’s attempts to introduce control orders.  Back then, I was in the Commons and, as in this more recent case, Conservative MPs made a lot of bluster in defence of civil liberties and then their Peers gave in on key principles where they had the power to make a difference.

This is both a new post and a follow-on to Lord Tyler’s last. Last night was an exciting evening in the Chamber. The Commons response to the Lords amendments in the Coroners and Justice bill returned to our House for consideration. The process by which a Commons amendment A (usually a re-insertion of the former Government position or a modified response) is debated alongside an amendment A1 by any peer (usually the official opposition or a Lib Dem) who wishes to hold out for the original Lords position. We then proceed to B, B1 and C, C1 and so on through the Commons amendments. In the ’secret inquests’ question the Government had moved a considerable distance to add safeguards; the Inquiry substituted for an Inquest in these rare cases is now to be decided on by the Judiciary not by Ministers. The Majority was satisfied the Government had now largely met the anxieties expressed on all sides in previous debates and won the vote.

The next vote was sexual infidelity being removed as a partial defence to murder, at lease that was how it was perceived although many lawyers in the house pointed out that in fact sexual infidelity alone has never an ‘excuse’ for murder. This was the first vote where perceptions outside the House, particularly the campaigns of women’s groups seemed to be having a major influence.  Before I came into the chamber I’d received (and I guess then so did every crossbench peer) a badly written and ill conceived  e-mail letter from Harriet Harman (twice, from different parts of her office) exhorting us to vote for the Government.  I was so irritated by the letter I’d almost made up my mind to vote against. Then I listened to the debate, and Heavens, the loquacious  speech of the Lib Dem opposing the Government position, Lord Thomas of Gresford was enough to drive me into the Government’s arms. It seemed to me an unnecessary addition to the bill but probably won’t do any harm either.

The last big vote I stayed for (Lord Tyler won’t like this but I decided after it that I wanted to go home for dinner) was the so called ‘free speech’ clause or The Waddington Amendment. Again, before I came into the House  to listen to the debate I thought I’d probably vote against the government, but having listened to the safeguards and watched how many homophobic peers were voting for the amendment, I decided in the end I didn’t want to keep company with them and voted against. A long winded and rather bad tempered debate, at one point the incomparable Baroness Trumpington intervened

“My Lords, I wonder whether I would be right in saying that 99 per cent of the Members in this Chamber have already made up their minds which way they are going to vote. Will the Minister cut the cackle and let us get on with it?

Noble Lords: Hear hear.

Yes, that’s exactly how we all felt. Lord Bach did try and speed things up with the thankfully short-winded Lord Henley for the Opposition and we eventually voted. The Government lost so it will return today for a final ping or pong. Then we will be prorogued for a break before State Opening. I’ll try not to giggle during the pantomime-like ceremony of prorogation

I’ve written here on LordsoftheBlog before about ‘ping-pong’.  As we approach ‘prorogation’ – the term used to describe the bringing to an end of a parliamentary session, and the short hiatus until the next one – Bills are going back and forth between the two Houses once again.  Most particularly, the Government has suffered defeats in the Lords on the Coroners and Justice Bill, and tight votes in the Commons, so we should be on tenterhooks to see if the Lords, or the Government, blinks first.  I am less pensive.

The process shows both how powerful the Lords can be, and how impotent it sometimes is.  For one thing, crucial votes on this legislation are now likely to happen late in the evening tonight, or possibly on Thursday.  Because the Lords is a part-time House (and defenders of the status quo particularly venerate this feature of it), Peers expect to leave tomorrow, not to return until the Queen’s Speech.

The Government is proposing to give itself a new power to hold a “secret inquiry” rather than an inquest into a death.  Both Liberal Democrats and Conservatives have opposed the plans so far.   Many of the (again, much venerated) Crossbench Peers have hitherto followed suit.  So we should win the votes.

BUT – the Government relies on delays in the business, so that Peers give up and go home. 

In the Lords we have a “dinner hour”.  Very civilised.  It’s a time when we stop considering legislation and a short debate (which few attend) occurs on a topical issue.  Peers are supposed to have their evening nosh, and then return to debate and vote on the law of the land.  However, many do not get past the noshing stage, and simply repair to their beds.

So next time someone says, “but the House of Lords works”, correct them.  “The House of Lords works best before dinner”.

Meanwhile, MPs are now so busy with constituency commitments that even if we do succeed in securing further defeats at this end, far too many MPs will be absent tomorrow to have a chance of overturning the Government’s majority in the Commons.  So the Government will win on its objections to our amendments by a large majority and the siren voices in both Houses – who very definitely will want to be snugly at home by Thursday evening – will refrain “the elected House must have its way”.  It’s a familiar set text wheeled out in the service of executive power and early bedtimes.

The much vaunted ability of the Lords to defeat the Government should be read in this context.  All too often, the second opinion from Peers is overridden by one method or another, by the large government majority in the Commons.  And the justification given is that the unelected Lords are to be ignored as “illegitimate”.

It’s almost as if we could do with an ELECTED second chamber, without the considerable constituency duties MPs have, to make reasonable changes to legislation and, from time to time, to defeat the government of the day without having its legitimacy called into question.

There’s not much hope now, though, before the General Election.  Even if the Government snapped itself out of inertia, my good friend David Howarth tells me that this year only 4 out of 27 Bills got Royal Assent before 6^th May.  How many of those included in next year’s Queen’s Speech will ever make it on to the Statute Book?

Tomorrow, I hope to be able to give you a quick report on the outcome of this week’s ping-pong…

In commenting on the responses to my post on prostitution and the Policing and Crime Bill, McDuff has written:  “This comment thread is, in fact, bloody excellent. How such a thing can happen on the internet is beyond me.”  

I rather share his positive evaluation.  The post has attracted some insightful comments, including from people who may otherwise not have made their views known.   I have found the comments extremely helpful.   I certainly agree with those who argue that the provision of the Bill making it an offence to use prostitutes who have been coerced into prostitution by a third party, and making it a strict liability offence (that is, it is not a defence to argue that one did not know the person was coerced), constitutes bad law.   It can be counter-productive, sets a bad precedent in respect of strict liability, and – as one senior lawyer said to me – won’t work.

The House returned to the provision at Report stage of the Bill.  The Liberal Democrats tabled an amendment to remove the strict liability element.  They also put down a motion, debated at the same time, to delete the whole clause.  There were some powerful speeches in favour of the amendment, not least from senior lawyers, Lord Thomas of Gresford and Lord Pannick.  In replying to the debate, the Attorney General, Baroness Scotland, made what one lawyer described to me as “a jury speech”: it was an emotional appeal to safeguard vulnerable people, but without actually engaging with the amendment. 

I was present for the discussion and was ready to vote for the amendment.  There was support for it from cross-benchers such as Baroness Stern and Baroness Howe of Idlicote as well as from the Opposition Front Bench.  At the end of the debate, Baroness Miller of Chilthorne Dormer, on the Liberal Democrat Front Bench, rose to reply and then, amazingly, said that she did not not intend to push it to a vote.   She then asked leave to withdraw the amendment.  Some of us objected, preventing it from being withdrawn.  However, it was clear when the question was put that there was little chance of winning: the Government was opposed to the amendment (as were some Conservative back-benchers and some cross-benchers) and, given Baroness Miller’s comments,  the Liberal Democrats would presumably have abstained.  With hindsight, though, I would have preferred a vote, if for no other reason than to get my position on the record.   

The clause thus escaped unscathed.  My view is that it is bad law and that, if anything, we should be moving instead in the direction of decriminalisation suggested by several of those who contributed to the post.

Earlier this year, the Constitution Committee published a report on emergency, or fast track, legislation.   Very little study has been undertaken of such legislation, even though there is a general recognition that legislating in haste may not necessarily produce good legislation.  The report made various recommendations for change, not least that there should be a clear justification by Government for expediting the passage of legislation and this this should be made independent of the merits of the legislation.  It also argued that there should be a presumption in favour of sunset clauses: that is, that the life of the legislation should be limited, enabling Parliament to return to the issue if the Government sought to renew the measure.

The Government seeks to publish a response to select committee reports within two months.  On this occasion, it took four months.  It was not an inspiring response: it made supportive comments but without committing the Government to anything, other than what it already does or claims to do.  Yesterday, the House debated the committee’s report.  You can read the debate here.  I took part and developed the need for mechanisms to be embedded to ensure that the Government does justify legislation that is fast-tracked.  I added a recommendation of my own to those advanced by the committee.   When the Government wants to get a Bill through quickly, it can ask the House to suspend the relevant Standing Order which prohibits taking two stages of a Bill in one day.  However, if the Government seeks to reduce the normal gap between the stages of a Bill, but without putting two stages on one day, it does not need to seek to suspend Standing Orders.  The gap between stages is recommended but it is not stipulated in Standing Orders.  I would like to see it enshrined in Standing Orders.  That way, if the Government wishes to expedite the passage of legislation, it has to put a motion down to suspend the Standing Order.  Any member can object and seek a vote.  I think it would create a useful discipline: the onus would be on Government to justify its action.

My principal point was that without some mechanism being embedded, the danger is that the House will get caught up in the “something must be done” mentality and simply let through a measure without assuring itself that the case for fast-tracing it has actually been justified.

Just a quick one. I mentioned before that a peer must hire robes for State Opening. Until yesterday Ede and Ravenscroft had run out and I was stranded. But yippee,  yesterday they had a cancellation so I will go the party after all! It’ll cost me £124 in case you wondered…..

Yesterday afternoon we concluded discussion of the Commons amendments in the Health Bill. There had been some surprising inserts by the Government in the Commons, in relation to the de-authorisation of NHS Foundation Trusts and ‘the private patients cap’, (both of these are something of a health policy minority sport so I won’t say much about these, even though I personally find them fascinating for the political attitudes they betray) but the most interesting was the amendment tabled in the Commons by Ian McCartney which will have the effect over time of outlawing tobacco vending machines completely. Those of us who want to reduce smoking naturally voted with the Government but I have to say I had a lot of sympathy with the argument that this went much further than the Government’s intention to reduce children having access to tobacco purchase and undoubtedly will create difficulties for companies which make vending machines, who have done a considerable amount of technical development to create machines which can be activated by radar to authorise an adult but not a child. There was anger in our Chamber about the procedures in the Commons whereby an amendment passed without a vote by lazy consent. It was for me an uncomfortable vote but one where I felt I could not renege on my principles even though it might hurt more adults than children in the first instance. I suspect that even more people will be driven to buying tobacco on the black market. The problem is that when we vote it is the overall thrust of the vote that is remembered, not the subtleties and quite frequently I find I am voting for an amendment which does not truly reflect my concerns but it is the best approximation to my views. I see how these votes are publicised by ‘theyworkforyou.com‘ and they can be quite wrong in their analysis of the views which one espouses simply because one has voted for or against a particular amendment.