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Lord Addington: My Lords, the point I sought to make related to the general problems of the section for a person with literacy problems. I appreciate that the noble Baroness was addressing more the disability side.

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Sensitive handling at the initial interview of an adult with literacy problems would encourage integration into the system. That was the main thrust of what I said.

Baroness Hollis of Heigham: My Lords, I take every point the noble Lord made, including the fact that if we rely on letters for contact we multiply the problems.

I shall ask my officials to write to the noble Lord stating to what extent dyslexic and literacy problems are covered in the specialist training of the advisers after the point of entry into the single gateway. If he is not satisfied perhaps he will come back to me on it.

Over and beyond the problems of disability and its take-up, we also have the problems of income support. Many noble Lords raised the issue today. Perhaps as many as 700,000 pensioners could be entitled to income support but are not claiming it. Perhaps I may say this in response to the noble Lord, Lord Higgins. Numbers have come down partly because of the glitch in information. But we are also finding as we undertake the pilot schemes that one of the biggest single reasons for people below income levels not claiming their income support is the high level of savings. Of 600,000 people not claiming the minimum income guarantee, well over half have savings of over £20,000 and something like 200,000 (a third) have savings of over £50,000. If people are not willing to draw on their savings, they may well be living on income below that of income support.

Lord Higgins: My Lords, one knows only too well from one's constituency experience that the savings issue causes a terrible problem. Having saved all their lives, those people feel that this is their final fall-back position and are reluctant to run it down.

Will the noble Baroness confirm that there are to be new figures out in May on pensioners not taking up the benefit?

Baroness Hollis of Heigham: My Lords, I am expecting so. But the figures were partly due to a technical problem, and the fact that we were revising downwards. I take the point, but it is a little hard to justify someone with a capital of £50,000 having income-related benefits which are designed for the poor. If they choose not to draw on those they may well have a living standard below that of income support levels and not be entitled to income support top up.

Some pensioners who are failing to claim may be entitled only to a very small amount. However, pensioners, in particular single elderly widows, may be missing out on sums of £15 to £20 per week. As noble Lords have already identified, the pilots are showing a problem of ignorance, complexity, stigma, or the fact that they may have applied for a benefit in the past, been rebuffed, and thought that somehow they had no entitlement in future. We have been working on pilots. The results are not happy ones. We have not yet identified satisfactory ways of getting to elderly people benefits to which they are entitled. We are looking at piggy-backing on the attendance allowance, data matching, and at points at the 70th or 80th birthday. We are working actively in all those areas. We are working

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with local authorities. However, there is as much reluctance to claim as there is a willingness on our part to encourage people to claim; and we have a long way to go.

The noble Lord, Lord Rix, asked me about widows' benefits. I am sorry; I cannot add anything beyond what I said last time. We inherited the problem from the previous administration. In 1986 the government changed the rights of widows to SERPS and failed to notify anyone about it for the next 10 years. We picked this up last autumn and set about immediately analysing the size of the problem, our legal responsibilities and what they may entail. But I am afraid I cannot add to what I have already said.

The noble Earl, Lord Russell, asked about the NINO pilot schemes. Those are pilot schemes based on the fraud Act which the previous administration introduced. The local authorities volunteered for this work. We believe that relatively few people are affected by it. Most people claiming council tax benefit are already claiming another benefit which is their passport, or identification, for this benefit. Few need to rely on NINOs alone. The pilot schemes that we are handling with the local authorities are designed to show precisely what problems there may be. If, as the noble Earl suspects, there are deeper problems than we have so far identified, we should be able to pick them up before the scheme is extended nationwide. That is the point of it.

Time is running out. I have done my best to answer questions asked by noble Lords. As I said, there is no hidden Treasury agenda to deny people information about benefits to which they are entitled. We believe that benefits unclaimed are a right that is foregone and we would not wish people to do so. Disabled people in particular, and elderly people on income support, are those losing out most. I hope that your Lordships will join with me in ensuring that they receive the benefits to which they are entitled.

House of Lords Bill

8.24 p.m.

House again in Committee on Clause 1.

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Trefgarne: My Lords, we have had a long and interesting debate on many different aspects of Clause 1. I do not propose to go over those again now, although some of my noble friends may have one or two points to raise.

Clause 1 is the heart of the Bill--the very essence of the Bill (if that is the right expression). My noble and learned friend Lord Mayhew expressed some anxieties about how the clause may or may not work, and may speak further about that.

I note that under the Explanatory Notes the Bill states that the Baroness Jay of Paddington, referring to section 19(1)(a) of the Human Rights Act 1998, stated:


    "In my view the provisions of the House of Lords Bill are compatible with the Convention rights".

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    I hope that the noble Baroness is right. There is a problem--I hope that it can be resolved quickly--arising from the European Convention on Human Rights. When, or if, the Bill is passed, virtually all hereditary Peers will cease to be Members of this House. Quite rightly, they had no vote at the last general election and will not now be able to vote until the next general election. Therefore, for the period between the coming into force of the Bill and the next general election they will not exist under a government to whose election they have contributed. I am advised that that is doubtfully legal under the European Convention on Human Rights. I wonder, therefore, whether the noble Baroness was not a little hasty in attaching the certificate to the Bill. I hope that she will be able to assure us that that is not the position.

Lord Mayhew of Twysden: My Lords, during the course of the Bill I wonder whether I was alone with the sad suspicion that the Government were not listening with much care, if at all, to the arguments addressed to them on this clause. It is clear that I was not alone because we have heard my noble friends Lord Peyton and Lord Ferrers making much the same point. I feel the position so keenly that I wish to make clear to the noble Baroness and other Ministers that I have been listening to their argument.

That is simply done because the Government have only one argument: it is called the manifesto. I cannot think of any more persuasive way of demonstrating that I, at least, have listened to the Government's argument than to read the manifesto. At the end, I rather hope that the noble Lord, Lord Richard, and others will not shout "Hear, hear" because the purpose of my reading it is to show that I have already heard. The material passage is as follows:


    "As an initial, self-contained reform, not dependent on further reform in future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute".

Noble Lords: Hear, hear!

Lord Mayhew of Twysden: That shows that noble Lords have not been listening to my argument. The right to sit and vote in the House of Lords will be ended by statute.

If I have described that pledge as the heart of the matter, I reckon that I shall carry with me the agreement of all noble Lords and noble Baronesses opposite. When formulating legislation it is important to make the language used relate to the heart of the matter.

I regret that the noble and learned Lord the Lord Chancellor is not here. No doubt he has other pressing business. I indicated to him that I wanted to make some mild criticism of his speech last Tuesday in particular in response to Amendment No. 10A, the new clause. I am sorry he is not here because he has made it abundantly clear that it is important for legislation to get to the heart of the matter. As we established last Tuesday, he was kind enough to write a letter to my noble friend Lord Strathclyde, indicating that, whereas the parliamentary draftsman had considered a number of alternative

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approaches to securing the purpose of the Bill, he had selected the language of the Bill because he wanted to get to the heart of the matter.

I am glad to see the noble and learned Lord the Lord Chancellor now in his place. I was saying that on Tuesday we had elicited that the Lord Chancellor sees great virtue in getting to the heart of the matter in the language used in legislation. He convinced us as much in the letter that he kindly wrote to my noble friend Lord Strathclyde, explaining why the draftsman opted for the language that we now have before us in Clause 1.

However, on Tuesday I was one of those who enquired, appropriately humbly, why the Bill does not identify the heart of the matter in the same language, when the expressed manifesto pledge of which I have already reminded the Committee--I say that for the benefit of the noble and learned Lord the Lord Chancellor--was to end the right of hereditary Peers to sit and vote in the House of Lords? I asked then and I ask now: would it not have been clearer, would it not have been safer, for the Bill to have done that?

The contributions from this side of the House made it clear that we are not considering the merits of the Government's policy. That is quite a different matter and we spent a long time on that at Second Reading. However, we are looking at the quality of the language and we are seeking reassurance that the language gets to the heart of the matter. Instead of focusing on the right to sit and vote in this House we now know that Clause 1 refers to the membership of the House of Lords by virtue of hereditary peerage. The clause says that that shall come to an end.

I diffidently enquired, and do so again: would it have been safer and clearer and would it have avoided the prospect of future litigation and considerable expense--to say nothing of trouble--had the Government said, "We shall think about it; we attach no magical meaning to the language of the Bill and we shall see whether, had we employed the language of the manifesto"--to which the Government refer endlessly--"that might have achieved the purpose more closely and more clearly"?

It is worth remembering that the new clause--Amendment No. 10A--gets to the heart of the matter by operating upon the Writ of Summons. It says that no hereditary Peer shall receive a Writ of Summons to this House. That was only an idea. It seemed good at the time. After the reply from the noble and learned Lord the Lord Chancellor it seemed an even better idea to me. That idea was simulated by the protean mind of the Lord Chancellor in stating to my noble friend Lord Strathclyde that the language had to get to the heart of the matter and that accounted for it.

The idea in my mind burgeoned as I read, as the Lord Chancellor has read, the opinion of Mr. John Lofthouse, Treasury Counsel in peerage matters for the past 10 years and, therefore, no slouch. I now realise that I was a little ungenerous in saying, a moment or two before the Lord Chancellor joined us this evening, that I sadly suspected that he had not listened with much care to any of our arguments because he showed he was listening at that part of the argument when my noble

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friend Lord Mackay of Ardbrecknish, understandably, asserted that Mr. Lofthouse was a Queen's Counsel. The Lord Chancellor started his reply with a correction of that understandable mistake.

That does not affect the issue one way or the other. I defer to Mr. Lofthouse's expertise in such matters, as I did when I was Attorney-General and had the benefit of his advice when seeking to call out of abeyance the Wharton peerage. I certainly defer to the expertise of Mr. Lofthouse now, even though--I regret to confess--I have been a Queen's Counsel myself for 27 years.

Unhappily, I am not aware that the Lord Chancellor addressed any other aspects of my noble friend Lord Mackay's reply with anything like the same acuity. I was heartened by the intervention, after I had spoken, of the noble and learned Lord, Lord Jauncey of Tullichettle, a distinguished former Lord of Appeal in Ordinary. He was kind enough to say that he agreed with me that,


    "at the very least there is doubt as to whether Clause 4(2) is effective in as much as the Writ may or may not still be alive after it has been presented and the holder of it has sat in Parliament".--[Official Report, 27/4/99; col. 160.]

I was heartened by that and the more so because the noble and learned Lord cites the words of Lord Chancellor Cranworth in the Wensleydale peerage case. Lord Wensleydale was a Lord of Appeal and had been appointed by a Patent that stipulated that he should have a life peerage only. There was a very long case about it in the Committee of Privileges in this House. He cited the words of Lord Cranworth, a predecessor of the present Lord Chancellor:


    "That which gives every noble Lord his right to sit here is not his Patent of Nobility, but the Writ of Summons which he is entitled to, in consequence of that Patent". That seemed to me to be significant and persuasive. I was heartened because the noble and learned Lord, Lord Jauncey of Tullichettle, is, as I feel sure the noble and learned Lord the Lord Chancellor knows, a distinguished expert on peerage matters, particularly in Scotland. Therefore, it was correspondingly disappointing for me that when taxed with the point put by my noble friend Lord Glenarthur--a point which the noble and learned Lord, out of mere inadvertence I am sure, had hitherto ignored--the noble and learned Lord the Lord Chancellor avoided it (I can find no other word) with the phrase:


    "I have no intention of getting involved in arcane questions of peerage law".--[Official Report, 27/4/99; col. 170.]

When thinking about that afterwards, I found it very difficult to avoid the word "high-handed" in describing that reply. It is true that the noble and learned Lord the Lord Chancellor did not dismiss the noble and learned Lord, Lord Jauncey, as being merely a retired Lord of Appeal in Ordinary, but it seemed to me that it would have been appropriate to have dealt with the merits of the point that the noble and learned Law Lord had made.

In those circumstances, it would not have cost much to take a little time to consider the point afresh, rather than merely assert, as the noble and learned Lord the Lord Chancellor did, that:


    "the ordinary man in the street and the judges will have no difficulty in construing",

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    the concept of membership of the House of Lords by virtue of a hereditary peerage. It would not have taken much time to have said, "Let us think about this a little further". Indeed, I am not surprised that the noble and learned Lord, Lord Jauncey of Tullichettle, is not in his place if that is how he is treated by the head of the judiciary.

The ground for the confidence of the noble and learned Lord the Lord Chancellor seems to lie additionally in the fact that the Government have made their intention clear, even if the Government have not, for some unexplained reason, adopted the language of the holy manifesto. Perhaps they feel that because they have made clear their intention and their belief of what the language they have employed achieves that will be that if push comes to shove.

I concede that that may help. In winding up, the noble and learned Lord the Lord Chancellor once again took the opportunity to assert his and the Government's intention. But Pepper v. Hart does not provide any government with a wholly reliable "golden pass" conferring upon them immunity in having the language that they got Parliament to use from being construed according to the court's view of its natural and ordinary meaning. It is not a wholly reliable golden pass. The judges will be inclined to hold that the language and not the Lord Chancellor embodies the law.

In conclusion, I submit that to cleave through an unnecessarily unclear and uncertain formulation with the argument that, "In any event, we can work a Pepper v. Hart", is no way to invite this House to legislate. We on this side have argued for the avoidance of doubt, but I fear that the noble and learned Lord the Lord Chancellor has seemed more concerned with the avoidance of any revision of this Bill.

8.45 p.m.

The Earl of Northesk: My Lords, it seems to me that with each passing hour in Committee this Bill becomes ever more extraordinary. It fascinates and confuses me. The Government stand on their conviction that it is a creature of exquisite simplicity. And yet I cannot help feeling that as we have scrutinised it, that simplicity has unravelled before our eyes, not least in the opinion of Mr. Lofthouse.

With all humility and deference--I am not a lawyer--I suggest that notwithstanding the Government's apparent obsession we should not be too concerned with how the courts may or may not construe the Bill as enacted. It should be a matter of what the Bill actually says. We are a Chamber of legislative scrutiny. Our first duty, irrespective of party--and it is especially so because of the operation of the Salisbury convention--is to ensure that legislation is drafted as accurately and clearly as possible.

In Committee in your Lordships' House we should not be overly concerned with the Government's overarching purpose; that is to say, what the Bill means. As the Government and their supporters delight in pointing out, "We all know that anyway"--aside from which that point is readily established by the grant of a Second Reading for the measure, albeit qualified by the acceptance by your Lordships of the amendment of the

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noble Lord, Lord Cobbold. Although manifestly some of us do not like it, this House has embraced the underlying principle of the Bill.

What is therefore at issue in Clause 1 is whether the drafting achieves this underlying principle. I am bound to say that from my admittedly layman's perspective, not only the opinion of Mr. Lofthouse but also a number of concerns expressed by noble Lords, introduce an element of doubt which has yet to be adequately and convincing rebutted by the Government Front Bench. For example, I was intrigued by the response of the noble and learned Lord the Lord Chancellor to Amendment No. 10A. To my mind, it included three distinct interpretations of Clause 4(2), one of which was an accurate reflection of one of the elements of Mr. Lofthouse's opinion. Breaking my own dictum, I wonder how the courts might construe that.

That leads me to another thought. As hereditary Peers, our duty to this Bill is to preside over our own execution at the same time as correcting the terms of our own death warrant. I concede that it is a theatrical metaphor, but that does not make it any less accurate. It is essential therefore that the Government accept their duty in turn to furnish the Committee with substantive and adequate responses to the queries that so many of your Lordships have raised. It saddens me that there are grounds for supposing that thus far that has not entirely been the case.

My exasperation with this has curdled to something more pungent. Like it or not, today we, this whole House, are still a House of this Parliament. Where is our duty to be done if all we are greeted with by the Government Front Bench is the blithe repetition of the revolving prayer wheel mantras: "It is in the manifesto"; "The Bill is solely and exclusively about the hereditary peerage"; "It is a stand-alone measure"? Need I go on?

I accept that such points have a legitimate place in the scheme of things, but the reality is that we are now addressing the detail of the Bill, and that is our right. The Government, while they may disagree and while they may not like it, are being probed on specific points of substance. This autistic reflex does not win arguments. Bluntly, it is irritating. It is simply not good enough. It invites the conjecture that the Government, in their cabal of strategy or tactic meetings--I concede that I am never certain of the distinction between the two--have the perceived wisdom along the lines of, "You don't actually have to bother replying to anything. Just stonewall. Just put up the shutters. That will do the trick". I repeat that it really is not good enough.

The fact of the matter--an awful cliche, but it seems well-beloved of the Government Front Bench--is that bar one or two of the amendments of my noble friend Lord Trefgarne and myself, as revealed by the noble Baroness, the Lord Privy Seal, last week, the Clerks have advised all Members of the Committee that the amendments they have tabled are in order; they are germane to the Bill. Some may be of more substance than others, but they all merit proper scrutiny and, crucially, adequate replies from the Government Front Bench, replies that actually address their subject matter, replies that go at least some way towards answering the concerns that Members of the Committee are expressing. To do anything else is to demean the

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Committee. This is a Bill that shouts out for intellectual rigour, and it gets the argumentative squalor of the nursery.

We on these Benches, like noble Lords opposite and elsewhere in the Committee, are moderately intelligent. We can grasp when we are being sold a pup. I invite noble Lords opposite to dwell on this. If Front Bench Members of these Benches had sought to adopt this sort of approach when we were in office--perhaps they did; I would not know--noble Lords opposite would have been, quite rightly apoplectic, incandescent with rage.

I am bound to say this. I have no intention of maligning noble Lords opposite, but there has been a sense during the passage of the Bill so far that some of the Government's Back-Benchers have derived some perverse satisfaction, some delight, in supposing that the hereditary peerage and these Benches generally may have given the impression of being little more than rabbits caught in the glare of headlights. It is precisely this symptom of reducing the legislative function of the House of Lords to a branch of the "yah-boo" politics of another place--after all, we are led to believe that this is antipathetic to the Prime Minister's "third way"--that causes so many of us such concern. It is a vision of the rubble to which the centuries of history of the House of Lords will be reduced.

The House is nothing if it cannot maintain its traditions of courtesy and its duty of legislative scrutiny. Inevitably, these rely on trust. It is this trust that enables us to be a self-regulating House. But trust is a two-edged sword. It is worthless unless all sides subscribe to it. If all that is to happen when amendments are moved in all seriousness, in all honesty and in a spirit of inquiry and an intention to be helpful--I repeat that the Clerks have accepted the great bulk of those amendments so far tabled--is that the Government will dismiss them with the ritual recital of their rehearsed mantras, that trust is, in effect, withdrawn. We are all--I include noble Lords opposite, because what is certain is that we always reap what we sow--the poorer for that. We are all wasting our time.

I am a mild-mannered individual. I comment thus not in anger but in pained weariness. But the provocation on this issue, and not only in the Bill, has become too great to ignore. At the very least the Government should come clean, and if they cannot address the points raised they should say so. At best--and I acknowledge that in the current climate this may well be wishful thinking--the Government should be prepared to recognise that, in this of all issues, they are servants of the House of Lords.

It may be that we who are hereditary Peers are about to be the road kill which the Government want. But until such time as the Bill is enacted we continue to be Lords of Parliament, with all the rights that that status accords us. We continue to be wholly legitimate Members of the House of Lords.

In my relatively short time here I have come to recognise, in a way that I never could from an outside perspective, that Parliament belongs to its membership. That is especially the case with respect to the House of Lords. After all, advanced as the virtue of

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"independence", it is something that has permeated so much of our discussions about reform. And, insofar as it remains the case, it means that we deserve substantive replies to the issues we raise, not this whirring clockwork from the spin doctor's work-bench. It really is not good enough.

In conclusion, I simply wish to say that it may or may not be that the Lofthouse opinion has substance. The Government have not established the case one way or the other. Rather, our Committee proceedings so far have revealed that the elements of doubt introduced by them, and other matters of substance raised by other noble Lords, some of them very considerable, call into question the construction and formulation of Clause 1.

I do not for a moment say that we should strike Clause 1 from the face of the Bill. The Government still have time and the opportunity to address the concerns that have been expressed in order to deliver their nirvana of legislative clarity. But without that I could be tempted to a view that it would be both irresponsible and beyond the Committee's competence to accept the Bill as drafted. It would be a dereliction of duty to enact a measure where so much doubt exists as to whether or not it is capable of delivering its stated purpose.


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