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CANADA

with some "inked-in" relative to my essay and brief "On guard in a global environment," v.E.

The Special Senate Committee on Senate Modernization met this day at 11:30 a.m. for the consideration of methods to make the Senate more effective within the current constitutional framework.  1

Senator Tom McInnis in the chair.  2

The Chair: I call to order this meeting of the Special Senate Committee on Senate Modernization. It is my honour and pleasure to introduce our witness for today, the Right Honourable the Lord Hope of Craighead, Convenor of the Crossbench Peers of the House of Lords of the United Kingdom.  3

Lord Hope is from Edinburgh. He had a distinguished legal career as Lord Justice General of Scotland, Lord President of the Court of Session and Lord of Appeal. He was made a life Peer in 1995. After his retirement from the bench, he became an active Crossbench Peer in the House of Lords and was elected as Convenor last year. We have invited Lord Hope to speak to the committee about his role as the Convenor of the Crossbench Peers.  3-1

Lord Hope, please begin your presentation. Afterward, senators will have questions for you, I am certain.  3-2

Rt. Hon. Lord Hope of Craighead, KT, Convenor of the Crossbench Peers, House of Lords of the United Kingdom, as an individual: Honourable senators, I should begin by presenting a paper on the role of the Convenor of the Crossbench Peers in the House of Lords. First of all, I will provide you with some background; to understand the role of the Convenor in the House of Lords, you have to know something about the history of the house and the layout of the chamber.  4

For much of its history, the house was composed almost entirely of hereditary peers. Some of them had no wish to align themselves with a political party. To demonstrate this, they chose not to sit on the benches occupied by the government or the opposition parties.  4-1

In 1876, they were joined by judges who were appointed to sit in the house as members of an appellate committee—the Law Lords—which until 2009 was the UK's Supreme Court. By virtue of their office, they were independent of any political party, and they remained as independent members of the house after their retirement, so they did not sit on the political benches, either.  4-2

The benches in the house are arranged in the form of a rectangle. The benches occupied by the political parties are on the opposite sides of the rectangle, on the long sides—you could call them the east and the west sides—of that arrangement. Between them, on one of the short sides—the south side—are the throne and the Woolsack, which is the seat of the Lord Speaker. In the middle is a table for the clerks.  4-3

On the other short side—that is, the north side—just inside the bar, are three benches that lie across the space between the opposite sides of the political benches. These are the cross-benches on which the nonaligned hereditary peers and the Law Lords sat.  4-4A

As a result of changes introduced by the Life Peerages Act 1958, the House of Lords Act 1999 and the Constitutional Reform Act 2005, the composition of the house is now very different from that which existed for most of its history, but the layout of the chamber has remained the same. Under the 1999 act, most of the hereditary peers have now gone, but 92 were allowed to remain to provide continuity and experience at a time of great change. That number of hereditary peers is still there. Some sit as a matter of choice on the cross-benches. The appellate jurisdiction of the House of Lords was ended with the creation of the U.K. Supreme Court in 2009 under the 2005 act, but there is still a number of retired Law Lords who also sit on the cross-benches.  4-5

The number of peers who sit on the cross-benches has increased greatly as a result of the Life Peerages Act 1958. Unlike those appointed to the political benches by the Prime Minister, they come from two sources. One is under a convention that enables the Prime Minister to appoint to membership of the house a small number—currently limited to 10 during the lifetime of a parliament—of people who have achieved distinction in public life. They include cabinet secretaries, various senior members of the military and diplomatic services, and former speakers of the House of Commons.  4-6

The other is by a process of selection, conducted by an independent House of Lords Appointments Commission. Its function is to recommend for appointment members of the public who are, in the view of the commission, able to make an effective and significant contribution to the work of the House of Lords, and who have a record of significant achievement within their chosen way of life. The Prime Minister has no part whatever to play in their selection.  4-7

As a result of this increase in their numbers, the cross-benchers also sit on a section nearest to the bar of the government side of the chamber.  4-8

As for the Convenor, it was not until 1964 that the holder of such a position emerged. Since then, the status and functions of the office-holder have developed gradually over the years. To begin with, there was no formal process of appointment, but the practice now is for the Convenors to be elected, to offer themselves for re-election after two years and to stand down after four.  4-9

I was elected in July 2015 and took up office in October of that year. The post is unsalaried. It is the product, as so many other things are in the house, of practice and convention. It is not provided for in the standing orders, but it is mentioned in the companion to the standings orders, which is the authoritative guide to procedure in the house. The current edition refers, in a paragraph at page 49, to "usual channels'' on which the smooth running of the house largely depends. It says that while the usual channels consist of the leaders and whips of the three main political parties, for certain purposes they include the Convenor of the Crossbench Peers too.  4-10

I'm now going to talk about the role of the Convenor. The primary role of the Convenor is to it act as a conduit of information between his group and the leaders of chief whips of the political parties with whom he meets each week to discuss the arrangement of business and other matters before the house. While he is not formally a member of the usual channels, he is consulted by the other parties on issues where the cross-benchers' views are sought or need to be represented. He also meets regularly with other office-holders, including the Lord Speaker and the Clerk of the Parliaments to discuss domestic matters. This enables him to feed back to them any issues that the Crossbench Peers may wish to raise.  4-11

My brief to the MDRN suggests, in par. 7-4, some people to be among the first to be appointed: someone with the vision to anticipate potential hazards in our ever-changing global environment, an expert in wickedly complex problem-solving, an expert in digital technology, an organizational psychologist, and a director of complex problem-solving. Elsewhere I further suggested that the appointed director of complex problem solving ranks equally, or cooperates closely, with the Speaker who himself is elected by the senators. In this context, please, refer to an article by Globe & Mail columnist Ken Tencer, Putting people into a room together doesn't make them a team.  n4-11

The Convenor chairs a weekly meeting, which all Crossbench Peers are invited to attend. The group hears from guest speakers who include members of the political parties responsible for legislation currently before the house and senior members of staff who can speak about matters involving the way the house is run. This gives the cross-benchers the opportunity to question the speakers directly and for the government and the opposition to present their case to the group.  4-12

The Convenor informs the meeting about forthcoming business, when votes are expected and the issues they are expected to raise. In these and all other matters, it is important that he is seen to be wholly impartial. He does not seek to influence the group as a whole or tell its individual members as to how to vote, but he can and does offer guidance to members about how to conduct themselves in the chamber. This can include giving guidance as to how to table amendments and reminding members about the conventions of the house as to the way and the extent to which government business there can be challenged.  4-13

The Convenor has a seat on the front of the cross-benches, which he occupies during Question Time and when statements are being made to the house on behalf of the government. His role is to ensure that the cross-benchers have a proportionate opportunity to ask supplementary questions and to assist a member who has relevant expertise to intervene if he or she wishes to do so.  4-14

When the Convenor takes part in debates, moves amendments or votes, he does so in a personal capacity, but there are some occasions, such as when tributes are being paid by the party leaders, where he speaks on the group's behalf. There are also ceremonial occasions both inside the chamber and externally at which he represents the group, such as when parliament is being prorogued.  4-15

The Convenor represents the group on a number of domestic committees which deal with matters such as procedure, members' privileges and conduct, security and work projects on the parliamentary estate. He also has responsibility for nominating members of the cross-bench group to sit on other committees. The group has among its members people with a wide range of experience and expertise. This extends across the whole range of public, academic and professional life, so the involvement in the work of committees of the Crossbench Peers is important and valuable. The Convenor has a key role in ensuring in discussions with the usual channels that they are deployed to the best advantage in committee work.  4-16

Finally, he has a pastoral role to perform. Members of the group may inform him about the state of their health and whether or not they are able to attend. He may offer guidance to members, all of whom are entitled to remain as members of the house for life, as to when they should take leave of absence or retire. He meets and offers guidance and support to new members on their introduction to the house.  4-17

Finally, a word about the private office and funding: the Convenor is supported by a private office. It consists of a private secretary and an executive assistant, who acts as his diary secretary and makes the administrative arrangements for the weekly meeting of the cross-benchers. The private secretary provides oral and written briefings for meetings and assists the Convenor with his responsibilities in providing accommodation and nominating members to sit on select committees. He also supports other members of the cross-bench group with their inquiries and providing them with information. He prepares a weekly notice, which goes to all cross-benchers; it includes a minute of the weekly meeting and draws attention to things of current interest relating to business in the house that they ought to know about. He arranges for the speakers who are to be invited to address the cross-benchers' weekly meeting.  4-18

He also sends out briefings or letters from ministers that have been sent to him for circulation to the members of the group and provides members with an advisory note when votes on legislation are expected. The notice gives information about the amendments that are to be debated and the members who will move them. They are intended to provide impartial information to assist members of the group in deciding if and how they wish to vote. These decisions are for each member to take according to their own judgment as the cross-benchers are not whipped.  4-19

The Convenor is allocated a small amount of money from a fund provided by the government to help the opposition parties in the House of Lords with their costs. This money is used to pay for the two posts in the private office. There is a small reserve to cover ad hoc expenses, but in practice, it is seldom drawn upon. Items such as security, cleaning, stationery, information technology and communication services are provided by the house without charge as part of the services provided for and shared by all members. A certificate from an independent auditor is provided to confirm that this money has been properly accounted for and used only for parliamentary purposes.  4-20

Honourable senators, that completes my introductory statement, and I hope it has been of some help to you.  4-21

The Chair: Very interesting. Thank you very much, Lord Hope. We will now go to our senators, commencing with the deputy chair, Senator Joyal.  5

Senator Joyal: Thank you, Mr. Chair. Thank you, Lord Hope, for accepting our invitation. This will be very helpful in our own reflections and deliberations.  6

I listened carefully to your presentation on what your responsibilities are as Convenor. Could you, in a nutshell, explain the main differences between you as Convenor and the leader of one of the three parties that are represented in the House of Lords? In other words, other than the fact that your group is not whipped, what are the other real differences between those two positions?  6-1

Lord Hope: Well, the whipping arrangement is actually the crucial difference because I have no authority to tell anybody what to do. I cannot instruct or order any member of the group. What I do is provide information, offer guidance, possibly provide support if it's asked for, but it has to be delivered with a very light touch because, as I say, I have no authority to instruct or do anything by way of, as it were, rebuke if somebody does something with which I disagree. I may have my own views about voting, for example, but I cannot disclose what I think, and it's not for me to criticize any of my group for voting in a way that may differ from me.  7

I think in a way the name "Convenor'' is quite a convenient way of looking at it. I convene the meeting as any convenor of a meeting does. I control the meeting, I suppose, by personality and persuasion, and because I have an elected position, it gives me a certain amount of status. But I differ from the party leaders by not having any kind of firm hand and any sort of arrangement behind me like whipping, which has with it certain sanctions if you fail to obey the whip.  7-1

Senator Joyal: You say that you have no hand on your group. According to your presentation, you seem to select the peers who are going to sit on select committees. What are your differences of status from a party leader who might also have the responsibility of selecting the membership of peers on the committees?  8

Lord Hope: The political parties go about their representation on the committees in a different way from us. I can't speak from my own knowledge exactly how they do it, but there may well be some process of selection amongst the political parties, which depends on the individual's performance and whether or not that person has obeyed the whip.  9

In our case, we ask every year for invitations. We offer an invitation to our members to fill vacancies that emerge in a rotation system every year, and we then receive the bids by the individual members. Their names are then put before me, and I consult a small group of three, who are my advisors. We then select the people to sit on these committees, based on a number of criteria: first, their relevant expertise; second, whether they have sat on that same committee before; and, third, whether there is somebody who has newly come to the house who ought to be given an opportunity to be on a committee to get some experience at committee work. I'm not interested, I must stress, in the voting record of the individuals. It certainly doesn't enter my books at all. Obviously, if I'm confronted by somebody who was appointed to a committee and didn't attend regularly, then I might take that into account in deciding whether or not to appoint that member, simply out of fairness to others who want to sit on the committee and will be able to sit more regularly.  9-1

Senator Joyal: In other words, it's not the members of your group that vote on who would be invited to sit on the committee. As I understand it, you have a general broad consultation, names are given to you and, with a group of three others, as you have mentioned, the selection is made. In other words, who is going to be finally selected to sit on committees is made under your authority and not under the vote of the group as a whole. Am I right?  10

Lord Hope: You are absolutely right. You summarized it absolutely correctly, yes.  11

Senator Joyal: In so selecting, you will take into account, for instance, the attendance record of the person, the diligence that peer would have shown in past memberships of other committees or of that committee in particular, or to any other consideration you might want to look into before making your decision?  12

Lord Hope: Yes. Some committees are more popular than others. We may get, let's say, 10 bids for a particular committee where there are only two places. I have to exercise some judgment in fairness to people who would like to be on that committee, as opposed to those who have served on it already. I am trying to spread the expertise and give opportunities to people to serve on as many committees as I can. There are other committees that are of a domestic nature and don't have the same popularity. I may have to actually invite people to sit on them because I don't get a bid for them. It's quite a sensitive process, really. That's why I have a little group to advise me. It's certainly not open to the group to vote their own members on to the committees at all.  13

Senator Joyal: Would you make sure that your group is represented on all the committees, or do you identify a certain number of committees and leave the other committees aside for the other party group to fill? How do you work to make sure that you assume your fair share of work within each and every committee? Some of them, as you have said and as we have experienced, are not always that popular.  14

Lord Hope: Well, there are conventions about this. The convention is that the cross-benchers will always be represented on every committee. There are some committees on which I sit ex officio. Those are the domestic committees. That is, the Procedure Committee, the Privileges and Conduct Committee, Administration and Works Committee and things of that kind. In most of those committees, there is space for one other, occasionally two other, cross-benchers, simply because that has been well established as the arrangement.  15

Each year, we have a number of select committees that are appointed to consider issues of current interest. This year we're setting up a committee to consider the future long-term sustainability of our health service. On committees of that kind, there is a recognized division between the various groups: four Conservative, four Labor, two Liberal Democrats and two for the cross-benchers. I then have the responsibility of selecting the two cross-benchers who will sit on that committee. I know that it's going to be a very popular committee because we have a lot of medical people in our group. I have quite a process of trying to be fair between the various medical people and decide which of them should get the choice and which will have to wait until some other occasion.  15-1

Senator Joyal: What is the distinction between the cross-benchers per se and the group of others; that is, the 28 peers who are labelled "others'' that seem to be nonaligned formally but are not part of your group? Is it because you don't want them in your group, or it is because they have expressed their wish not to be part of your group? How does it function to distinguish between who is a member of the cross-benchers and who is not accepted to be a cross-bencher but is pushed back in the other group?  16

Lord Hope: I think I should go back to those members who are appointed to the cross-bench group. None of the people appointed by the Prime Minister, the 10 for the parliament and appointed through the selection commission, are nonaligned. They are appointed directly into the cross-bench group.  17

Now, there are a number of people, for some reason or another, who become disaffected with a political party. There are some, very occasionally, who are selected to perform a function within the administration that requires them to be independent. We have one nonaligned peer, for example, who has been asked to supervise the development of major infrastructure matters in this country. He was a Labour peer but he now sits as a nonaligned peer because he wants to distance himself from a political party. There is room for that.  17-1

There are others who have left their political parties and are waiting until I can accept them into the cross-bench group. The practice for me is that I don't accept them into our group until they have made it clear that they have separated themselves completely from their former political party for about a year. We have, I think, three people at the moment who are waiting to join us and are serving their time as nonaligned.  17-2

There are others who are nonaligned because we have people who are hereditary peers and simply wish to be nonaligned. They don't want to make a choice; they don't want to join us.  17-3

That's a brief description. There is a variety of people who are nonaligned. Some won't remain that for long, because eventually they will be invited to join the cross-benchers. Others may go back to their own political party. Once the reason for being nonaligned has been served, they are free to go back and join their party.  17-4

Senator Joyal: Other colleagues will want to exchange with you and seek answers to their questions, so this is my last question. Has it happened that a member of your group has been asked to leave your group for X, Y or Z reason?  18

Lord Hope: I don't think so. I have not asked anyone to leave the group. We have people who I have to invite to retire, but that is a different thing. There are people who become elderly or infirm for various reasons and the time has come for them not to come because they are really incapable of performing. Leaving aside health reasons, I am not aware of anything of that kind.  19

It would be a very odd thing for a Convenor to do because, as I said, I have no authority to do that. I would hate to bring somebody before our weekly meeting and have a vote as to whether or not that person should continue. We're a very free and independent body with individual members who are entitled to act according to their own judgment and their own conscience.  19-1

There aren't any rules, really, that would justify their removal, although I can say that, on perhaps one or two occasions, I've asked an individual to come to see me so that I can point out to them that there are certain matters that they should take into account in deciding whether to present arguments to the house, and they take my advice.  19-2

So if you're thinking about, as it were, correction, I do it by giving advice in private. So far, I'm glad to say my advice has been accepted.  19-3

Senator McCoy: Lord Hope, thank you very much for taking this time. I'm pleased to say that we are modelling what we hope to be our new modern Senate. We have the chair, who is a member of a political caucus, one of them; the vice-chair, who is a member of another political caucus; and I, who has sat as an independent from the time I was first appointed. We're all very interested in how we might continue to evolve. As always, we look to the House of Lords. Although we have never been identical to the House of Lords, you have always inspired us, so we're very pleased to have the benefit of your experience today.  20

I do have a couple of questions and maybe some supplementaries to that. There has been a view put forward in this committee—I'll paraphrase it, and I may not get all the elements of the view quite the same—to the effect that if we had, eventually, 105 independent senators, or even a large group of independent senators in the Canadian Senate, we would have chaos. We would have a disorganized group. They have been referred to by some as "loose fish,'' which is a term that our very first Prime Minister used, actually, to describe members of Parliament who were not aligned with a political party, or even loose cannons.  20-1

What is your experience with the other 177 cross-benchers with whom you associate?  20-2

Lord Hope: Well, we compose approximately 20 per cent of the House. It used to be slightly bigger than that. Somebody told me the other day it was about 28 per cent. It is now established that 20 per cent is the established proportion.  21

That means that the political parties make up the remaining 80 per cent, so there is a stability, in a sense, through the political parties. There will be a ruling party, the Conservative Party, which actually doesn't have a majority in the House at the moment, and then there are the two opposition parties, Labour and the Liberal Democrats.  21-1

Of course, if the cross-bench group composed 80 per cent of the house, it would be an entirely different feeling from what it is today, but as it is, because we are a relatively small part of the house, you don't have that kind of instability.  21-2

It is interesting—and the party leaders pay very close attention to it—to see how the cross-benchers vote when issues come up, particularly very sensitive issues. Of course, the government party would like the cross-benchers to vote in their favour. If they did, the government plus the cross-benchers could still be out-voted by Labour and the Liberal democrats if they chose to join together.  21-3

Although you mentioned the number of 178, in fact, the daily attendance is nothing like that. Out of the approximately 830 total in the House, the daily attendance is rarely more than 500. In our group, we're lucky if we get more than about 70 to 80, something of that kind, because our members have outside interests and are not required to be there every day.  21-4

The voting of the cross-benchers is interesting but, under the current state of affairs, they don't really hold the balance of power. There was a time, under the previous administration, when they came close to that, and the cross- bench group's vote made a great deal of difference. But I don't think we're quite in that position today.  21-5

Senator McCoy: It does sound a different dynamic entirely, and that is of interest. It seems to me you have the benefit of at least four caucuses or four groups so that no one group has a majority that can steamroll over the entire house. Is that correct?  22

Lord Hope: That's right. That is absolutely so, yes. A good deal depends on alliances. What tends to happen at the moment is that if Labour and the Liberal Democrats join together, they will attract some of the cross-benchers as well, but it doesn't make any great difference because Labour plus Liberal Democrats outnumber the Conservatives. So the Conservatives will lose if Labour and Liberal Democrats are determined to push something through against the government's wishes and they join together.  23

Now, the Labour Party can't do it on its own if the Liberal Democrats don't join them. That is equally true, in fact, even more so, for the Liberal Democrats, who are the smaller opposition party. Unless they can persuade Labour to join them, they won't carry the vote either.  23-1

But the cross-benchers aren't in that position. We're not putting forward a group view at all, although individual members of the group may propose amendments and they would be strengthened if the amendment they're putting forward is one that one of the opposition parties, or preferably both, will support. We have a bill going through the house today where I know the government are going to lose on a cross-bench amendment that is being supported by Labour and Liberal Democrats, but that doesn't always happen for cross-bench amendments. Sometimes they don't have any political support, in which case they move the amendment and it may have a persuasive value because the government will listen to the argument, but we wouldn't vote on it because we don't have enough of a body to vote on something that is of interest only to ourselves.  23-2

Senator McCoy: I think there is a critical difference—and we can talk amongst ourselves about that, but just to say it out loud—between your chamber and ours. We have 105, of course. That's not so much, with a cap on it, but we have a duty to attend. We are penalized if we do not attend the Senate when Parliament is in session, and that, I think, also sets up another dynamic. That's a comment.  24

I have another question, if I may, and that is about your relationship with the government leader, who we're now calling Government Representative in the Senate. I take it he or she is not a member of your caucus.  24-1

Lord Hope: Not our group, certainly not. The arrangement is that there is, of course, a government leader. The government group has a leader, as the opposition parties do, and they are my equivalents in their own groups, but, in addition to that, each of the government departments has one or possibly two ministers who sit on the front bench and represent their departments.  25

Today, for example, was a typical day at Question Time when we had half an hour of questions, four questions, 10 minutes approximately per question. Each of the questions was addressed to a different department, and a minister from that department had to answer the questions and face supplementary questions across the house.  25-1

We depend on the government to provide the ministers, who are all members of the House of Lords, some of whom were appointed, indeed, to represent the government for that very purpose, and they are there. They are distinct from the groupings. They represent the government departments, and they are, of course, members of the government group. They're not leaders of the group. That's a separate position.  25-2

Senator McCoy: I take it you go to considerable lengths to ensure that there is this independence. You go to considerable lengths to ensure that your group maintains a certain independence from political association.  26

Lord Hope: I do, myself. I can't say that all my members are without any political views whatever. I think some of them have views. They prefer to sit on the cross-benches because it means that they're perfectly free to express their views either way whenever they want, but some of them I think you could pinpoint as being more left wing than others and others more right wing than others. For some of them, I can predict the way they're going to vote. But it's not for me to criticize them, and it's certainly not for me to express my views in the hope that I might influence them.  27

Perhaps I should add in relation to an observation you made earlier that none of us are salaried in the House of Lords except one or two individuals. We're paid a daily allowance if we turn up, a small daily allowance; but other than that, there's no obligation to attend if you're a cross-bencher. If you're a member of a party, you are under an obligation to answer the whip. The parties, in times of high political drama, go to great lengths to bring their people in. I dare say there's a certain amount of acrimony if they fail to answer the whip and don't appear.  27-1

It is a rather different dimension for members of parties because they really may be ordered to come back from whatever it is they are doing to get into the house for the vote; whereas with cross-benchers, we don't do that. We vote if we want to and turn up when we want to, but no one is going to criticize you for not doing so.  27-2

Senator Eggleton: Lord Hope, I had the pleasure of having a meeting with you in your office this past December when I was in London over the holiday period. I thank you very much for that and again for today.  28

I have a couple of questions. Are there members of the cross-bench group who belong to political parties although not subject to the whip, obviously, or alternatively, who would form subgroups based on common beliefs or values?  28-1

Lord Hope: None are members of a political party, as far as I'm aware. That is a sine qua non. It's a given that they're independent of the parties. That is demonstrated by the fact that those who have come from a political party have to satisfy me that they are no longer supporters of the party, do not fund the party in any way and have not been sitting and discussing party affairs with the party. "Independence'' means what it says. That is clearly so.  29

As for groups within the cross-benchers, there are associations in the sense that we have a number of medical people who tend to group together on medical issues, we have a number of people with military backgrounds who tend to gather together for that, but we don't have caucuses in the sense that I can detect.  29-1

There's a certain amount of grouping around a bill. For example, respecting the bill I was talking about today, there are three cross-benchers who are very experienced in housing matters, which the bill is about. They do tend to join together because they're consulting each other as to whether one would like to press an amendment, whether the wording of the amendment is all right or whether they would join with him in presenting the argument and so on. You can have a little grouping for a particular measure, amendment or bill, but there isn't a long-term relationship of that kind. We all value our independence, actually, so that we sit as free-thinking individuals.  29-2

Senator Eggleton: When we met, I told you about our current government, the new government in the House of Commons. In our system, the prime minister makes appointments or gives advice to the Governor General, who represents the Queen, as to what appointments should be made—all of them. Prime Minister Trudeau has determined that he wants more independent senators—less partisanship on the part of senators, and is intent upon appointing such people. In fact, we recently had some who were appointed in that category, and all sit as independents.  30

At the rate we're going with retirements, because the compulsory Senate retirement age is 75, the independents could be the largest group within a year or so. Certainly extending down through the line, at some point in time, if that system continues, everybody in the Senate could be independent.  30-1

If that kind of proposition were possible for the House of Lords, would it be workable, or is it better to have the kind of combination you have now, with some people appointed from the Conservatives, some from the Liberal Democrats, some from Labour, perhaps some other minor parties, and I know the Bishops are there too, and then the cross-benchers? Is such a mix better than going to a completely independent system, or could either of them be handled?  30-2

Lord Hope: Well, it's difficult for me to comment on that from experience because we don't have that kind of experience. I suppose the closest analogy would be in the days of the hereditary peers. Most of the hereditary peers were people who had landed estates and a great deal of money and so on. I suppose by nature they tended to be Conservative. Not all of them wanted to join the Conservative Party, and not all of them by any means wanted to take a whip and be told when to turn up. To that extent, the house was rather more, shall I say, unpredictable in what it was going to do than it is today when the party groupings are much more closely supervised and controlled.  31

Our system really isn't equipped to deal with the situation that you described where the cross-benchers outgrow the political parties. There's no way in which the Prime Minister here would allow that to happen. His patronage is exercised largely in favour of trying to maintain his own party's majority, which is a process that is quite difficult to achieve, because of the numbers in the opposition benches, without making the house absurdly large.  31-1

It isn't a situation that we could envisage ever happening in the House of Lords because of the political need. The reason really is that between the two houses, the government relies on the House of Lords a great deal to get its business through. The House of Commons doesn't scrutinize legislation to the extent that we do. A great deal of our work in considering proposed legislation is actually detailed scrutiny, and it is important for a government to have as great a majority as it possibly can and win the votes, if it comes to that, on the detailed amendments to legislation. If they lose, it goes back to the House of Commons, and then the House of Commons will support the government line. It then comes back to the House of Lords, and there is a sort of ping-pong arrangement until eventually the House of Lords gives way.  31-2

The government has got to get its business through, which is why it relies on having political people in the house who can be relied upon to support the government's business and vote accordingly.  31-3

Senator Eggleton: I'd say that I certainly agree with your assessment of scrutiny with respect to the upper house here in Canada. I think that's one of the strengths that we provide in the system.  32

My final question is one that I believe you've already answered, but I want to confirm that that is the case. Because peers do not get paid other than an attendance allowance, they have other occupations in many cases and no compulsion for attendance. However, do you not at any time as Convenor exercise any attempt to persuade people to attend? If somebody doesn't attend for several months, will you remind them that they do have some obligation, in spite of their other employment, to come to the House of Lords?  32-1

Lord Hope: There are two respects in which it would be of concern to me if they didn't attend, the first of which I've already mentioned. If I ask somebody to sit on a committee, in particular one of the very popular committees, and then I find that the individual, of the ten meetings held, attended only two, I would feel very displeased with that individual. I would probably catch up quickly with him or her and say that it's not fair to the others for them to be a member of this committee when there are others who want to attend more regularly. They either change your ways or, when the next round of committees comes along, they won't be appointed. I can do that.  33

The other is a different thing. When people don't attend and you find that their performance level has dropped to, let's say, 2 days out of 150 days or whatever available days there might be, it comes to the attention of the Clerk of the Parliaments. We're increasingly developing a system of persuading people that, if their attendance is as low as that, they should retire. Failing that, they will suffer sanctions that will simply exclude them from membership.  33-1

If you retire, you get the benefit of being able to come and use the library, dining room and so on, although you can't sit in the chamber, but if you're excluded altogether, you lose everything. I have been persuading a number of people whose attendance record has been very low indeed that the time has come for them to retire, and I'm glad to say that some of them are doing that.  33-2

I don't maintain a record of attendance. There are some people who, for very good reasons, can come only occasionally, and usually they come when there is something of interest or they have some real expertise to contribute. They will come for that. They organize their affairs so that, if there's that kind of business, they will be there. That's one of the reasons why we circulate information to members to tell them what the business is and alert them to what is going on. If they are busy, they can make arrangements to be there. It may mean over the course of the year the attendance rate is quite low, but they've been there for all the items of interest to them, which is what really matters to me.  33-3

Senator Carignan: I have also had the opportunity to meet with you over the past few weeks, and I thank you for welcoming me and sharing your wise counsel.  34

I'd like to ask you a few questions about representation. During my visit, I met the Leader of the House of Lords, and I gather that there's a convention regarding the representation of cross-benchers. Parliamentarians arrange it so that about 20 per cent of the representatives are cross-benchers, and the rest of the House is composed of political party representatives because the Prime Minister has the power to appoint an unlimited number of lords. Can you tell us more about how appointments work and proportional representation?  34-1

Lord Hope: The Prime Minister has a certain function in relation to the cross-benchers who, as you say, by convention are approximately 20 per cent of the house. I've explained already that he, by convention, can appoint a small number—currently ten in the life of a Parliament, which is five years—selected from people of great distinction who have served the country as cabinet secretaries or military leaders and so on.  35

He has no function of appointment in relation to the other cross-bench peers who are appointed by an independent commission. What he does have a function of is appointing the people to sit on the political groups, and he does this, I imagine, by discussion with the usual channels.  35-1

His aim is to try to restore a majority for the Conservative group. We've gone through a long period of Labour government, and we've also gone through a coalition period where the Liberal Democrats played a part in government. The Labour and government benches have been filled with a number of appointments by the Prime Minister for political reasons, and for him to restore the balance in the Conservative Party is a fairly slow process, but he is continuing to do that.  35-2

The appointments to the political parties are all dependent upon him and his own judgment about the political balance between the parties and the opportunity that he has to appoint more people.  35-3

We have no upper limit on the membership of the House. There is no numerical limit on the number of people he can appoint, which is a matter of some concern to everybody because the House of Lords is growing and growing and growing: We used to be 600, but we're now 800 and growing. The difficulty is: When is the Prime Minister going to be stopped from appointing more people because he wants to increase his membership in the House?  35-4

I hope that gives you some flavour of the appointment system. It's very uncontrolled, and there are no rules written down in statute. It's a matter of judgment for the Prime Minister as to how he goes about his function.  35-5

Senator Carignan: My next questions are about budgets. You mentioned the budget available to you as Convenor to support your office. Can you tell us more about the sums allocated to you? For example, do cross-benchers have additional allowances for research like those in caucus do? My understanding is that the caucuses of the various parties, such as the opposition caucus, the government caucus, and the Liberal Democrat and Labour caucuses have specific budgets for research. As a group, do the cross-benchers have an allowance other than what is available to you for your office?  36

Lord Hope: I think we should begin by considering the funding arrangements for the government party, first of all, because that is, as it were, the standard to which the other groups are looking for financial support.  37

The government party, obviously, is supported by the civil service, and they provide advisers who come through their machine to advise the government party as to how they should deal with political problems as they arise. Ministers are salaried, and there are funds available through the normal civil service machine to provide staff to assist the government party.  37-1

An arrangement was made some many years ago to provide the opposition parties with funds to enable them to function in a way broadly comparable with the government party, and a fairly substantial sum is allocated to the Labour Party to enable it to act as an effective major party in opposition to the government.  37-2

As far as the cross-benchers are concerned, since they have no political line to follow, all we have asked for is enough money to enable us to staff an office. Initially, it was simply one assistant, but one of my predecessors was able to enlarge the money to enable us to have an executive, or secretary, to assist the private secretary as well. That's why we have a fairly small sum of money, which in pounds sterling is about 89,000 pounds, which is not all that amount of money; If you converted it into dollars, you would be able to see it is a relatively small sum that enables us to pay the salary of the two people in my office.  37-3

We do not, as individual members, have any allowance whatever for research. We receive a daily allowance of 300 pounds or, if you like, 150 pounds, depending on how much you think you can properly claim, which is largely meant to cover accommodation and your support when you come.  37-4

As for research, we depend upon our library, which is very well staffed and provides us with staff who will answer questions if we need them answered on matters of research, and they provide briefing papers on every topic that is being debated currently, which are available in the library for members to read.  37-5

I should say, in addition to that, there are some members who are following particular lines. For example, the cases of housing and medicine are two very lively examples where our members have their own expertise and their own sources of research from their professional lives that enable them to perform their functions in a very targeted way in the matters that are of particular interest to them.  37-6

I don't think we feel shortchanged in any way by the fact that the government doesn't provide us with research money or special advisers, because each of us are just following our own interests and our own pattern.  37-7

I hope that helps you to understand that the cross-benchers have a very small call on this additional money. The opposition parties, for their reasons, require a great deal more financial support, and as far as I know, they receive a fair allowance for what they do.  37-8

Senator McIntyre: Thank you, Lord Hope, for your presentation. My first question had to do with the standing orders of the house and procedural rights of party leaders and whips as opposed to the procedural rights of the Convenor with respect to the selection of committees and chairs, allocating speaking times of the house and allocating resources and office space. You have already answered that question. I'm satisfied with that.  38

My question has to do with the rules and procedures in the House of Lords. As I understand, 1999 was an important year for the House of Lords because it saw the creation of the House of Lords Appointment Commission and the arrival of the so-called Stevenson Peers. How has the House of Lords modified its rules and procedures in order to accommodate the cross-benchers—in other words, to ensure cross-benchers are provided with adequate opportunities to participate in house business in proportion to their numbers? How successful have these procedural modifications been?  38-1

Lord Hope: Well, it has been a process of evolution. I think you have done some study, so you understand that the standing orders don't provide any rules about the relationship between the cross-benchers and the remainder of the house. It all depends upon the practice of the house and discussions that take place between the Convenor and the usual channels.  39

The way it's developed is this: It's becoming increasingly important for me to be present at Question Time and make sure that people on my benches who have expertise get a chance to intervene when supplementary questions are being asked. What tends to happen is that the initial question is put and answered. Then you have several minutes when it's a free-for-all across the house. Since we don't have a speaker who directs who speaks next, it's a matter of practice as to who is allowed to intervene.  39-1

I sit close to the Chief Whip, and when I think somebody on the cross-benches ought to get a chance to intervene, I would make a suggestion to the Chief Whip that that cross-bencher should be allowed to do so. It's become increasingly important. In the earlier days there was less competition because it was a smaller house. As a house is enlarged, more and more people are there at Question Time. It's more important for me to exercise some kind of function to make sure that they get a fair spread of questions.  39-2

As for the composition of committees, this is a process of discussion between me and the party leaders as to the numbers of people who should be appointed to committees. It is fairly well understood that the two major groups, if it's a small committee of six, there would be two Labour and two Conservative, and then there will be one for the Liberal Democrats and one for the cross-benchers. If it were a larger committee, it would be four-four, two-two. It's that kind of proportion that is now well established. That's been established by discussion and practice.  39-3

The main function I have is Question Time, and when statements are being put, to make sure that in an increasingly crowded house my members get a fair chance to intervene when they have something to offer and would like to do so.  39-4

Senator McIntyre: My second question has to do with the voting patterns of cross-benchers. As I understand, cross- benchers participate a lot in debates, but they have a low voting record. Would you say that voting patterns are reflected between those that fall under the category of working peers and honour peers, "honour peers'' meaning those who have expected the peerage as an honour?  40

I would also like to hear from you regarding the highest turnout for cross-benchers. Does it apply in situations where there are high-profile and controversial issues?  41

Lord Hope: The number of peers who are there because they were appointed as an honour is beginning to diminish. As it happens, that's how I became a peer in the first place, and I was later a law lord, which would have entitled me to a peerage anyway, but I was already there under the New Year's Honours system. Law lords were given membership of the house for life, and on retirement they were not under an obligation to work anymore, but they were entitled as an honour to remain on. There are one or two people like that.  42

Most people who have been appointed through the selection committee now take their position on the cross-benches as something in the nature of an obligation to fulfil the task which they asked to perform, which was to be an effective member of the house. That was one of the criteria they had to satisfy when they applied for membership. We have had quite a high proportion of people coming through the selection commission since 1999 who are regular attenders and provide a fairly steady service to the house.  42-1

I don't keep a tally of the numbers. I haven't even got a chart that tells me how often people attend. I can see that there are some people who, for example, became law lords and have remained on as retired law lords who attend relatively seldom. That's because when they were made peers, they weren't selected for the reason that they would attend regularly once they retired from their judicial position. I wouldn't criticize them for not attending very often, although they may get to the position where I have to say, "Look, it's time to retire because you're not attending enough.''  42-2

I hope that answers the first part of your question. I've rather forgotten the second half, if there was a second half.  42-3

Senator McIntyre: I was wondering whether the highest turnout for cross-benchers was generally on high-profile and controversial issues.  43

Lord Hope: Yes, there are some occasions when it becomes known that there is going to be something crucially important where the cross-benchers will turn out in considerable numbers. That's one of the functions we have through the office. Every cross-bencher gets our weekly notice, and we tell them what the business is that is coming up and what the likely votes are to be so they are alerted to these occasions and know what is coming up and can perform according to what they would like to do.  44

There are some occasions when there is a low attendance because the matter in discussion is of relatively little interest. There are others where it is of considerable interest and they will want to be there and play their part. I think that's just human nature.  44-1

Senator Bellemare: I have two sets of questions. First, I would like you to clarify your comments about Question Time. Is Question Time for the lords to question the government—ministers or ministers' representatives, or is it for asking questions of the lord whose role is leader of the government?  45

Lord Hope: Question Time is for government departments. The purpose of the questions is to try to explore, by questioning of the minister, what the policy of the government is on particular issues. It's not the leader of the party who answers, unless there is a question that is directed to something for which he has responsibility as leader, but that's highly unusual.  46

The normal pattern is people will ask questions about immigration policy, the treatment of mental illness in hospitals, the control of people riding bicycles on street pavements in cities, the maintenance of our railway network or foreign affairs generally. On each of these occasions, a minister speaks for the department responsible. First of all, there is a prepared question that is answered, but from then on he's at the mercy of the house because there is possibly eight to ten minutes when people can ask any questions relating to the department for which he is responsible relating to that question. The questions can be very penetrating, unlike the House of Commons when it tends to turn into a sort of political show, really. In our case, people are searching for answers, and the questions can be really quite carefully directed to get some kind of answer.  46-1

Where we differ from the Commons is that we don't have the leading minister, the Secretary of State, for the department. We have the more junior ministers who don't have quite the same freedom in answering the questions as the Secretary of State would. Nevertheless, the tenor of the questions inevitably is referred back to the department and to the ministers there so that, if there's disquiet on some issue, as there often is—for example, the treatment of mental patients in prisons, mental inmates, or let's say people suffering from a current problem, which is gender reassignment in prisons. These sorts of things are very difficult issues to deal with. They are raised as matters of concern in the House of Lords, detailed questions are put and the minister will do his best to answer, but the department will very carefully study what the questions were and what the answers were.  46-2

We regard Question Time as a very important part of our process, and that's why I do try very hard to get the cross- benchers in when they want to intervene so that they can ask their own questions.  46-3

Senator Bellemare: Thank you. My second question is about what cross-benchers contribute to the parliamentary activities of the House of Lords. If there were no cross-benchers, would that make a difference? Meg Russell, whom I'm sure you know, appeared before our committee last week to share her ideas on the subject. Do you think that the independent lords you oversee have made a positive contribution?  47

Lord Hope: Well, I think you have to look back to the appointments system. What we have on the cross-benches is people with real expertise in various aspects of public life. If you consider the 10 appointments that the Prime Minister can make in the course of a Parliament, we have in our members people who have been very senior diplomats, who have been very senior people in the military forces, people who have been cabinet secretaries and who understand very well how those aspects of our national life are led. When they get up and speak, they speak with real authority. They're not people who want to be part of a political party, but they have a great deal to offer as people of expertise. They're not people who would ever want to stand for Parliament or be elected because they've retired from their positions, but they still have the experience of the office they fulfilled to offer. We have former judges who fulfil that kind of function as well—former Lord Chief Justices—who sit on the benches and can offer really skilled advice on matters of law, which they know about.  48

Also, the appointments commission is concentrating on finding people who have something positive to offer, which doesn't come through the political process because they are people who don't want to be part of a political party but nevertheless know a great deal about the way social services work, people who have worked in the nursing profession, people who have come through the medical profession, academics and engineers. We've acquired a very skilled team of engineers, as it happened, who know a great deal about the way large infrastructure projects should be managed. They can contribute a great deal to discussions from their experience. So we have people in our group who you would not find in a political party, and they are appointed particularly because of their expertise.  48-1

Now if you didn't have them, of course, the House of Lords would continue to function, but we feel that we have something very specific to offer and, as a revising chamber, in areas where they have the expertise relevant to the issue, we can contribute something really positive. I take a positive angle on this myself.  48-2

Senator Bellemare: So there is a future for the cross-bencher in the House of Lords. Thank you very much.  49

Lord Hope: Certainly there is a future, thank you.  50

Senator Massicotte: Thank you, Lord Hope, for being with us this morning. I'm going to ask you some short questions so I can get more questions in, if you don't mind.  51

I'm thinking about how the whole thing starts for the cross-benchers. What is your source of information? From the comments I heard, their principal source of information is a library that does research, which every member of the House of Lords can basically access. Subsequent to that, is there not an opportunity for the cross-benchers to meet and have a discussion and share their opinions relative to a certain bill being proposed?  51-1

Lord Hope: Well, we have the advantage of the library, which is very well resourced. Many of the cross-benchers with particular expertise have their own means of finding out the details of something that they're interested in. And yes, I think informally they would group together and meet and discuss how they might tackle a particular problem.  52

However, it's not my function as Convenor to do that. There are people who are following a particular line, with a view to possibly proposing an amendment and securing votes in support of it. I have to remain completely independent of that process because I have to have the confidence and the trust of the leaders of all the three political parties with whom I deal every week. My relationship with them would be compromised if it was thought that I was organizing a kind of caucus or a group in order to prevent a particular argument.  52-1

Senator Massicotte: Is there no meeting per se where the cross-benchers sit together and are allowed to ask the minister or have a debate about the issue without coming to a conclusion in that discussion?  53

Lord Hope: Well, the thing will vary according to the subject matter. There may be cases where the group gets together. Looking back to my previous life when I wasn't Convenor, if I were interested as a former Law Lord in a legal matter, I would look around to see whether I could find people who would support me. Is it worth putting forward this amendment? Will you speak in support of me? Yes, I can build up a group of people who I think are knowledgeable on my subject and do this by informal discussion. But this isn't developed through the Convenor's office at all. It's up to the individual to try to build up a grouping if he or she wants to do so in order that his particular amendment will carry weight.  54

Senator Massicotte: I think it's an important point. We have had an experience where the Liberals in the Senate have become independent. We meet on a weekly basis, but there is never any conclusion of debate. Because we share thoughts and because there is a group psychology going on, we often find that we basically vote nearly the same in spite of the fact we're technically independent. Something happens when you meet and debate and basically get convinced of the merits of an argument, but then you lose your independence somewhat because the voting pattern is such that you vote as a group. I'm glad to see how you deal with that issue.  55

In your process, there is legislation in place whereby when a bill gets proposed, I believe you have one year to respond to it and automatically it is deemed to have been accepted. We have experts in Canada who say don't ever go that way because you lose your veto rights. You lose whatever power you are deemed to have to influence legislation. Could you comment on your practice and why this seems to work better for you and whether it could be applicable to us?  55-1

Lord Hope: Well, we have a group of acts called the Parliament Acts, which do control the extent to which the House of Lords can disagree with the House of Commons, which is I think what your question is about. It's well understood that the government, through the House of Commons, and particularly on matters that have been the subject of the Queen's Speech, is entitled to get its business through in the end of the day.  56

The House of Lords will vote against the government on an amendment, let us say, which then goes to the House of Commons. The House of Commons will reject the Lords' amendment, and it comes back on a proposal that the Lords accept the Commons' amendment. We can go on voting against the Commons, but only to a certain extent, because if we refuse to pass a bill, then, when a year goes by, it will become law although we didn't agree to it. That is a sanction that we do not want to incur.  56-1

In practice, the position is that the House of Lords will give way, and it would only be in the most extreme situation that we would insist on opposition where we could simply veto a House of Commons amendment and keep on doing it until the parliament runs out and the bill has to fall. So it's in the background, but common sense prevails, and we give way to the House of Commons as the government of the day has the of majority in the House of Commons.  56-2

Senator Massicotte: In your sense, is that when you limit or take away your power? The House of Commons will obviously know that when push comes to shove, you're going to have to back down. Does that take away from your influencing your power?  57

Lord Hope: Well, we don't really think so, in the sense that a lot of our amendments are carried by the force of argument. We actually do have a high success rate in persuading the government to change its bill under the revising system because they recognize that the bill, as it came from the House of Commons, is imperfect. It has things that either simply won't work properly or don't have sufficient merit in them to justify resisting the Lords' amendments. We do feel that we have an effective system of improving bills as they go through.  58

Ultimately, you will understand there are some points of policy where the government is simply not prepared to concede what the view of the Lords might be, particularly in matters affecting the spending of money, where the social security system can't afford to give everybody what everybody wants. The Lords may vote for, let us say, increased benefits to people who are homeless, but at the end of the day, the government will decide it can't afford to do that to the same extent and will vote the Lords' amendments down. We eventually have to give way because we realize that the government has to run the country, and we are there ultimately as a revising chamber, not a controlling chamber. That is the balance between the two houses, which is well understood.  58-1

Senator Massicotte: You actually amend a large percentage of the bills, obviously because you improve upon it, but your house, like ours, is not elected. We get quite a bit of criticism here. We get judged quite a bit in the sense of how can we take on the House of Commons when we're not elected, or, in some people's eyes, we're not legitimate. In your case, you amend a lot of bills. How does the public respond, and how do they buy the fact that you are also not elected?  59

Lord Hope: We do get criticized from time to time on the ground that we are not elected, but there are times when we achieve some success, which actually the electorate as a whole rather likes. Sometimes they will say, "Good for the House of Lords, they have been able to do something that the House of Commons didn't do.'' In the House of Commons, everything is controlled by the whipping system, but in the House of Lords, a bill will come under closest scrutiny. The government may realize, at the end of the day, that it should give way, having seen that there is something that really isn't going to work properly, or which, if it went then to the House of Commons, perhaps it wouldn't win the vote in the House of Commons because there may be rebels prepared to stand up against their own party and support the Lords.  60

Occasionally, there are times when the Lords achieve something, and I think on the whole, the country recognizes there is a value in that. It's an easy tease of the Lords to say they are not elected, but there are times when that's probably quite a good thing.  60-1

Senator Massicotte: A couple of years ago, further to a couple of incidents you have had of misspending, you changed the way you govern both houses with some independents or third parties on a governance board. Could you talk to us about that? It's something we are looking at here but haven't decided on. Can you tell us your experience with that? What percentage of your oversight board, or whatever it is, is non-parliamentarians, and do people feel that they are interfering in your freedom to deal with legislation and so on?  62

Lord Hope: I'm not aware of that, really. I'm not sure what you mean by the oversight board. It is in the ordinary administration committees that we have to deal with procedure and that kind of thing. We have discussions about the way the house is organized.  63

Senator Massicotte: My question was more on the spending side.  64

Lord Hope: The spending side—well, we have no voice on the finance bill. The finance bill comes to us, and we simply have to vote it through without discussion. Pure financial issues are for the House of Commons, and we cannot intervene.  65

There are occasions when we come close to intervening in financial matters where an amendment affects spending. It may be said to us, "Well, this is really raising a financial matter,'' and a House of Lords amendment can be set aside in the House of Commons with a certificate on it to the effect that this is a financial matter, and they give no further reasons for rejecting our amendment except that it deals with money. That's a warning to us, really, that the House of Commons is going to assert its primacy as the house in control of the budget. There are signals that can come to us that this is really dealing with budgetary matters and we should give way to the Commons.  65-1

Senator Tannas: Thank you, Lord Hope, for being here. You mentioned somewhere in the discussion that you accept people into the cross-benches and that you have people who are waiting to be accepted. You outlined that one of the things was that you needed to be satisfied that they had shed any and all previous or intended political affiliations. In your own process of accepting new cross-benchers, do you have a time with them where you lay down any other expectations you might have of their conduct, behaviour or reliability? Is there anything that you do to frame the difference between being a cross-bencher and being an unaligned, independent, loose fish, loose cannon, unguided missile or whatever you want to call the independent senator, the not-cross-bencher, the 28 I think we talked about?  66

Lord Hope: Well, those who are coming to join us have been in the house for quite some time and know very well what the nature of a Crossbench Peers membership is. They understand that it is a situation where they are free to vote according to their own conscience and speak according to what they wish to do.  67

I can't lay down conditions because I have no means of enforcing them. I can offer guidance, but these people, the people I know who are asking to join us, are people who are anxious to join us because, amongst other things, I can appoint them to committees, which they can't do as long as they remain non-aligned. I am dealing with people who are willing to accept advice because they want to be part of our group because of the advantages I can offer them. It's trusting an individual's word, really, because as I said a moment ago, I have no means of enforcing anything on them.  67-1

Senator Tannas: I get that. In what opportunity do they actually give you their word? What word are they giving, specifically? Is it around attendance, if you are appointing them to a committee? Is there a point at which you say, "Look, we need you to be present, to conduct yourself in a certain way,'' or is that all left unsaid? As you say, you have the leverage of ultimately replacing them from time to time.  68

You mentioned your ability to influence the whips of the governing party to recognize your people for speaking. Is that ever something that you could use if you had somebody wholly unreliable or who had disappointed you in some way and you could use that as a potential sanction, if you will?  68-1

Lord Hope: Well, there are two points. I don't want to overstate low attendance on committees because, in fact, in practice, the attendance rate on committees is very high. People want to join these committees because they find them interesting, and they really want to contribute to what these committees are doing. I have a group people who are very positive about their membership on the committees, and it's only one or two possibly who fall below the acceptable rate. It's a rare occurrence because of the enthusiasm our members have for sitting on these committees, and they regard it as a real privilege to be a part of it.  69

As for Question Time, anyone can stand up. I can't stop them from standing up. There may be people I would rather not stand up, but I can't stop them. I am trying to make sure that those who I know have something to offer and are perhaps shy of shouting out do get some attention. People who have a loud voice can stand up and intervene in any argument without help.  69-1

Senator Tardif: Thank you, Lord Hope, for being with us. Most of my questions have been asked, and all of them have been very well answered.  70

I would ask you to make a comment on what Meg Russell indicated to us in her presentation and some of her writings: Despite the cross-bench group being large and well established, no agreed definition exists as to what qualifies individuals to sit as independents. The boundaries are too often very far from being clear. Could you comment on her statement, Lord Hope?  70-1

Lord Hope: Well, in a sense, she's right, because there is nothing written down in statute that defines what an independent peer is, but they are people who by definition do not want to be part of a political machine.  71

Now, there are various grades in that class. There are some people who have never ever been involved in politics in their life, and I'm thinking of civil servants and judges who by reason of their occupations are completely detached from politics. There are other people who have worked their way through politics and have decided to leave their parties. I can think of several in our group who fall into that category, people who were formerly members of the House of Commons but have detached themselves from their parties and joined our group. So long as they are no longer actively supporting their party, either providing funds to the party or having membership in the party, paying their dues to the party and attending party meetings, they are open for consideration as being independent.  71-1

Independence is a question of degree and, to some extent, a question of personal responsibility, but it isn't right to think there is anything specific written down. In a way, it's a bit of a strength of our group that we are a broad body of people with various opinions who share their opinions at our cross-bench meetings, for example, and can discuss things with a variety of views. That's our position.  71-2

Meg Russell is technically correct that there is that looseness of definition, because no one has attempted to lay anything down. As I've said repeatedly, I don't have the authority to order somebody to desist from doing something because they're breaking rules, and for that reason we don't lay down rules that cannot be enforced.  71-3

Senator Tardif: Just to get back to the question of independence, I understand that the group of others would be considered independents as well—nonaligned?  72

Lord Hope: Nonaligned, yes.  73

Senator Tardif: I know you gave an answer to Senator Joyal about the distinction between the cross-benchers and nonaligned, but could you repeat it for me, please?  74

Lord Hope: Yes, certainly. There are some people who are nonaligned because they need to detach themselves from their parties temporarily, like one individual who is in charge of a major reconstruction of the way we supply infrastructure throughout our country, and he has decided that it is a job that detaches him from politics and he wants to become nonaligned. He has left his party. He sits on the cross-benches, but he doesn't want to be a cross-bencher, and by his choice he is nonaligned.  75

We have others who are temporarily nonaligned because they are in the waiting room, waiting to come into the cross-benches once I'm satisfied that they are sufficiently independent to be admitted. There are one or two others who are nonaligned because they want to be neither. They have just decided they don't want to be part of their party, but they don't want to be a cross-bencher either, because the House of Lords allows people to be free to make up their own mind and choose their own designation. We have some people who don't want to be a part of any group and just sit there as individuals.  75-1

Senator Tardif: Thank you for the clarification.  76

Senator Frum: Thank you very much for your time, Lord Hope. You mentioned in one of your responses to one of my colleagues that there are some members of your group that you can predict almost every time, or perhaps every time, how they're going to vote. If a cross-bencher always voted Conservative or Labour, do you consider that a failure of independence?  77

Lord Hope: No, I don't. The consequence of saying that I consider it a failure of independence would be that I would have to take some kind of action against them, and as I've repeatedly said, I don't have that authority. They're independent of their party in the sense that it's sufficient to qualify them to sit as a cross-bencher, but I can't criticize them for voting, when they do vote, in support of one of the parties.  78

The distinction that they have is they don't have to vote. If the Labour party, for example, calls for a vote and sends out a whip, these people may not be there, and they don't have to attend and won't be voting. It's up to them to decide whether to vote.  78-1

That's quite an important distinction. There are people who really don't want to be part of the party machinery and want to be free to decide whether or not they should vote. You might like to think their instinctive feeling would be either right wing or left wing and that tends to control the way they vote, but the great point they have to say in support of their position is, "I'm not taking the party whip. I decide when I want to vote and when I don't, and there will be occasions when I simply don't turn up or when I abstain because the vote is not an issue on which I want to express a view.''  78-2

That's the freedom they have in sitting on the cross-benches, that they can decide whether to come and when to vote, without criticism. I can't criticize them for voting in a particular way, even if they do it invariably, because that's not my job.  78-3

Senator Frum: No, I appreciate that's not your job. I'm asking in a broad, general way if that meets your test of independence of mind, which is what the purpose of having this designation is supposed to be?  79

Lord Hope: Well, you can't detach somebody from their mind and their emotional preference. I'm using "emotion'' in a broad way. I assume that people will favour the disadvantaged, the people who are at risk of being rendered homeless, who are refugees or asylum-seekers, all the issues that are coming up in daily life in this country; and almost every time they will go in a particular direction, although the government is saying that, for various reasons, we simply can't afford to pay for everybody and have to draw the line somewhere. We can't admit everybody who wants to come to the United Kingdom into our country, and we have to control our borders and all that kind of thing.  80

You will get some cross-benchers who are not convinced by that, and they do so because they take the time to go and study the conditions in refugee camps. They go and meet the homeless and so on. They will consistently support the people who are disadvantaged and they do so because they're individuals who have done their homework and who feel that way. It's not because the party is telling them to do that. That's the point I'm trying to get across. It's because of the way they themselves feel.  80-1

Senator Frum: And I understand that. I'm questioning if the outcome is the same, if you can count on person A and person B to always vote Labour every time, the difference being person A has a whip and person B does not have a whip, but their voting record is identical, I'm not sure why that person B should be known as being an independent thinker or even a political independent. I'm not sure I understand that.  81

Lord Hope: I confess I haven't done this kind of research, although I don't think you'd find the voting records are identical for people who are in the parties. You would find, no doubt, on the occasions that when they did vote and decided to vote, they would vote in a way that is consistent with a political party view. But the voting record would be well below what a member of the party would be expected to do. That's the point. If you're a member of the party, you're whipped and you're told to turn out and you're criticized if you don't. If you're a cross-bencher, you're entitled to decide not to be there and not take part. You may have issues. There are issues, like the ones I've just been highlighting, which you will make every effort to vote upon, but there are other issues on matters relating to, say, technicalities of partnership law or company law, things of that kind that they have no issue in whatsoever, so they're not there and they don't vote, but people who are in the parties are required to vote. That's the distinction.  82

I think, if you went through the voting record and compared my cross-benchers with people in the parties, you would find their voting record is quite substantially below that of the party people because they vote on the things that interest them but they don't feel they have to vote on things that don't.  82-1

Senator Frum: I appreciate that; thank you very much.  83

Senator Cools: My Lord, I must tell you that for me it is a rare and wonderful thing to be able to speak with a member of that most august and distinguished group of human beings called the Law Lords. I say this and thank you for all of your work and your efforts. I have read a lot of the decisions that have come out of the Law Lords.  84

My question may be philosophical and may be practical, but I wish to ask you whether or not you think, based on your experience in parliamentary business, that it is politically practical or possible to sustain a wholly non-partisan house of Parliament, particularly the upper house.  84-1

I put this question to you because it has not been raised yet today, but this Senate, this Upper House of Parliament of Canada, is the embodiment of the Confederation, and the Fathers of Confederation assembled this house at the time intending to defeat large problems forever in this country.  84-2

In addition, I will say too that political parties were born in the notion that human beings should associate in politics and mobilize support by ideas and by principles as opposed to private and personal interests. Granted, many things have gone wrong with political parties in recent years, including the excessive powers that leaders have taken onto themselves.  84-3

My question comes back to you: In today's community, is it practically possible to sustain a wholly independent—they're saying independent, but they really mean non-partisan—non-partisan upper chamber in a parliament where the lower house is wholly partisan?  84-4

Lord Hope: I can't, if you forgive me, offer advice on how another nation should organize its parliamentary affairs, but under our system in the United Kingdom, I don't think it would be practicable for the House of Lords to be made up entirely of independent peers for reasons I mentioned earlier.  85

The government has to get its business through the house, and it relies to a very substantial extent on the House of Lords as a revising chamber in which their ministers appear, listen to arguments and, of course, have to address amendments that have been put forward and argued for and decide whether or not they should accept them. There is a very considerable political input through the governing party in the handling of committee-stage debates, report-stage debates, where the detail of a bill is gone through.  85-1

Without the government controlling the decision-taking in the end as to whether or not to accept an amendment, it would be very difficult to organize, and I simply can't understand in our system in Westminster how we could live without that controlling body because we always turn, in the end of the day, in the end of every argument in an amendment, to look to the minister and what will the minister say about this. The minister will act as a conveyor of information back to the government in the House of Commons and say, "This provision in the bill that the House of Lords wants to amend and is criticizing is not going to work for reasons that are fully explained, and I have to get authority to accept the amendment.''  85-2

Without that conversation, as it were, between the minister and the House of Lords, and the minister and the Commons, then the system of revising wouldn't work properly. You really have to look to the functions of the two bodies to see whether any particular composition is going to make sense or not. In our system, we really couldn't see it functioning without the political parties there to focus the debate.  85-3

Senator Cools: Thank you very much, My Lord.  86

Senator Joyal: Thank you for your last answer, Lord Hope. That was essentially where I was hoping to get comments from you. Putting it in other terms, what is the role or the importance of parties' presence in the Lords to function in a Westminster-style model of Parliament?  87

Lord Hope: Well, as I say, one has to understand that the ministers in the government are dependent on a communication system that informs them about the subject matter of debate. The opposition parties are equally dependent on understanding what the thinking is in the House of Lords on matters that are being debated. I'm not party to these discussions, but I'm sure there is a constant conversation between the representatives of the departments of government in the House of Lords and those who are running the government in the Commons, and the opposite side in the opposition benches between those who are opposition speakers in the Lords and the Commons, as to the line that should be taken in the course of debates in the Lords when they're revising legislation.  88

The point really comes to this: In the course of a bill's history through the House of Lords, at some point the government may well accept amendments put forward by the Lords or, indeed, propose amendments of their own to improve a bill. Now, I don't believe that the government representatives in the Lords would put forward amendments to a bill in the Lords without the consent of the ministers in their departments who are sitting in the House of Commons. This means that the government is then putting forward an amendment that has the support of the Commons ministers and, when the bill goes back from the Lords to be considered by the Commons, the Commons will accept these amendments because they're government amendments and the government has been represented in both houses in accepting them.  88-1

I think that's the best way I can explain how the parties interact. There is this combination of the way the two houses work that is best focused through the party machines. I must emphasize that, as a cross-bencher, I'm not party to that system—I've never been in government—but I have the sense that this is what goes on, and there are considerable discussions in opposition parties as to whether they should press an amendment because of the views that would be taken in the House of Commons if they did. The two houses work together on the political front in a way that is not so very obvious to outsiders, but I think it is going on all the time behind the scenes, particularly on the government's side. I hope that answers your question.  88-2

Senator Joyal: Yes. I will put it differently. Could you envisage the House of Lords being composed only of cross- benchers? That is, peers would have absolutely no relationship with any of the parties represented in the House of Commons, either in the form of government or opposition or third parties. Could you envisage that it could work in the Westminster-style upper house and would satisfy the role of review that, as you stated, is the essential role of an upper house in a contemporary parliament?  89

Lord Hope: Well, under our system, a bill has to pass both the House of Lords and the House of Commons, and the system is that if the House of Lords puts forward an amendment to a bill, it won't be enacted as part of the bill unless the House of Commons approves of it. This is where the system that you're suggesting to me would break down, because there would be no system of communication that would enable the house composed entirely of nonpolitical people to know whether or not their amendments are going to achieve political approval. As sure as day is day, amendments of that kind would go back to the House of Commons and be rejected, and it would give rise to a state of considerable confusion. It would delay legislation, because unfocused amendments would be put forward, which the Commons would reject, and there would be no one in the House of Lords to say, "Look, we're prepared to accept an amendment in a particular form. If you can revise your thinking a little bit, we'll accept that.'' There is no negotiation process possible unless you have the party people in both chambers.  90

It's that on which we depend. It really is essential that there is this party contribution to the way legislation is handled in both houses, each of them being complementary to the other.  90-1

Senator Joyal: You stated that your status is not defined in the Standing Orders of the House of Lords. Could you expand, for example, on where you are recognized in the rules that govern the operation of the Lords, you as Convenor of the Crossbench Peers?  91

Lord Hope: As Convenor, I can't find any reference to myself in the Standing Orders. I am referred to on one page in the Companion to the Standing Orders. Otherwise, as far as these documents are concerned, I simply don't exist, but the fact is that I'm there. I meet with the party leaders each week, I'm accepted as part of the system, and it's simply by constant communication, acting as a conduit, that I am respected and achieve what I would like to achieve.  92

There is sort of a two-way process in that I can assist the government chief whip in various ways by explaining to him what my people are thinking and from time to time offering assistance in, for example, finding somebody who might act as a convenor of a particularly difficult committee, and he may then make representations to me about things that he would like to be understood or seek views upon.  92-1

I'm a useful person, because there is this group of people who are cross-benchers who need to have a leader, or at least a representative. The fact that I'm not mentioned in these documents really doesn't matter because I'm there every day, and I meet these people and they talk to me. It's a question of establishing a position of trust and mutual respect by simply being there and continuing this conversation, but always on the basis that I'm completely independent and the conversations that take place between us in private remain private, and that is well understood. Provided I maintain their trust in those respects, then I can continue to do my job.  92-2

Senator Joyal: Thank you, Lord Hope. I had a postscript question on the Brexit, but I don't think I'm going to ask it openly. Maybe it would be for a private conversation.  93

Lord Hope: I think I would probably decline to answer it.  94

Senator Massicotte: Lord Hope, under the committee structure of the House of Lords, do the committees provide independent reports on matters of public interest besides reviewing bills?  95

Lord Hope: Yes. We have a system whereby we set up ad hoc committees to consider particular issues, one of which is the long-term sustainability of our National Health Service. That committee will start its work in the late summer and will report in the form of a public report in February or March of next year. It will be a detailed report based on evidence and prepared with the assistance of the clerking system. It is a major contribution to thinking. It's not related to legislation. It's just simply informing the public.  96

Senator Massicotte: Must the government respond to your recommendations and by a certain time limit?  97

Lord Hope: Yes, the government is expected to provide a response, and that will then provide a focus for debate at the house at a later stage. There would then be a debate on the committee's report in light of the government's report. It's a completely independent system from legislation, but it's also a very valuable part of the house's work.  98

Senator Bellemare: Do the cross-benchers propose many amendments, a significant proportion of amendments, or not?  99

Lord Hope: They propose quite a large number. I wouldn't like to put a percentage on it but, in the course of a bill, you would find a substantial number of them. How many of them go to a vote is a different issue, because on most issues they wouldn't be seeking the political party's support. They put forward amendments in order to make a point, searching for information, possibly trying to make the government think again without putting the matter to a vote. It's less often for the cross-benchers to try to canvass party support but quite common for them to put down amendments which are simply informing the government or searching for information as to why a bill is framed in a particular way.  100

The Chair: Thank you very much, and thank you, Lord Hope. It was most interesting. I was wondering, because I personally have some questions I would like to ask and the senators may have additional questions, if we forwarded them to you, if you would be kind enough to respond.  101

Lord Hope: Yes, of course. I'm delighted to help as best I can.  102

The Chair: Thank you very much. We really appreciate it.  103

We stand adjourned until 2:30, when we'll have an in camera session.  103-1

(The committee adjourned.)  104

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