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Lord McNally: My Lords, I thank the Minister for those details. However, does he agree that the eyes of the world will be on those two games and that if things went badly wrong our chances of staging the World Cup in 2006 or the Olympic Games in 2012 would be severely damaged? In those circumstances, might it be a good idea to call together sports editors, particularly those of the so-called “red tops" in both England and Scotland and suggest that they do not spend between now and the games whipping up the kind of hostilities and hatred which could well bring about hooliganism and which undoubtedly they would all condemn the day after it occurred?

Lord Bassam of Brighton: My Lords, I agree with the noble Lord, Lord McNally. It would be much better if the press and media generally spent time focusing on the games. If we have a message to deliver to the editors today it is that we want them to encourage responsible behaviour by spectators. We want them to encourage passion, pride and perhaps some patriotism but more than anything else we want them to encourage the good behaviour of all involved.

I do not see it as inevitable that there should be bad behaviour at either of those games or the events surrounding them. Members of your Lordships' House will want to encourage good behaviour and we must do all we can in our communications to ensure that that is the case. I am sure that all those on the “terraces" opposite and the “terraces" behind will do their best to whip up the right fervour and enthusiasm.

Lord Cope of Berkeley: My Lords, in view of the exceptionally high international profile of the two matches, as the noble Lord, Lord McNally, set out, will the Government assist the football authorities financially with the policing and security of the matches, or charge them a large sum of money?

Lord Bassam of Brighton: My Lords, it is our belief that the football authorities are well resourced to meet the expectations of the public which are quite rightly placed upon them. I am sure that with our active encouragement they will do the job in hand.

Lord Faulkner of Worcester: My Lords, I declare an interest as vice-chairman of the Government's Football Task Force. Does my noble friend agree with me that to talk of racism in the context of ticket application arrangements in relation to these two matches is both unhelpful and nonsensical? Indeed, it undermines the efforts that serious people in football are making to kick racism out of the game. In view of

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the fact that it is a legal requirement on both Scottish and English authorities to segregate fans at both games, should we not be applauding their efforts to keep the fans apart through segregation rather than belittle them in the way that the tabloid newspapers and others have done?

Lord Bassam of Brighton: My Lords, my noble friend makes a good point. We do not want to trivialise matters. We believe that segregation is right at football matches. We do not believe that the arrangements that have been made in any way, shape or form breach the Race Relations Act, although the matter is one for the Commission for Racial Equality. It has been referred to them.

Lord Mackie of Benshie: My Lords, is the Minister aware that the best way to keep order at football matches is to keep down the amount of drink consumed before and during the game?

Lord Bassam of Brighton: My Lords, it is a well known fact that there is an association between the consumption of alcohol and occasional outbreaks of disorder surrounding football matches. We can achieve much by encouragement and that is what we shall attempt to do in this instance.

Lord Peston: My Lords, since safety is alluded to in the Question, can my noble friend say who is responsible for explaining to the two teams what the role of the spherical object placed in the middle of the pitch is? Who can explain that that is what is meant to be kicked rather than members of the other side?

Lord Bassam of Brighton: My Lords, I am beginning to feel like a referee. My noble friend is right. It is the round object in which we should be most interested and getting it into the right net, whether one is a Scotland or an England fan. Let us hope that the correct outcome on the day comes to pass. However, footballers in general have an important role to play in setting a good example. I hope that all of those who play association football between now and the next two England-Scotland matches bear that very much in mind. Their behaviour on the pitch reflects the behaviour of the fans and colours the flavour of the game. We should take every opportunity we can to encourage good behaviour among football players and football fans alike.

Lord McNally: My Lords, I greatly welcome the spirit and the content of the Minister's answers today. My initial Question referred to the role of the print media. But many of the target audience--the young audience--watch programmes like “Soccer AM", and “Match of the Day" and listen to Radio 5. Would it not be beneficial to encourage the television and broadcasting authorities to join, as he suggested, in getting the message over that hooliganism is stupid and that all true fans of football should disown the hooligans?

Lord Bassam of Brighton: My Lords, that is the case. My 10-year old son reminds me of that each and every

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week when he listens to, and watches, various programmes and hears the messages that go out to football fans countrywide. We recently introduced the new legislation relating to football offences. I am pleased to say that that legislation received widespread publicity. Indeed, I have received complaints to that effect from fans throughout the country who read my article in their local football magazine, so I know it to be true.

Baroness Masham of Ilton: My Lords, following the question relating to alcohol, would it not be possible to shut the pubs in the vicinity and give the publicans a free ticket to the match?

Lord Bassam of Brighton: My Lords, I am rapidly becoming responsible for a whole range of new policy. I am not sure that this is quite within my remit.

All noble Lords will appreciate that matters relating to the consumption of alcohol, the opening times of pubs and so forth are operational issues. The issue is one on which the police, football authorities, local authorities and all others concerned keep a careful eye in assessing the risk of the outbreak of disorder. It is an important message and it has been conveyed.

Business

Lord Carter: My Lords, it may be helpful if I explain the procedure for the two Motions on hybridity which are the next two Motions on the Order Paper. It has been agreed among the usual channels and the movers of the two Motions that the Motion in the name of the noble Duke, the Duke of Montrose, and that in the name of the noble Lord, Lord Clifford of Chudleigh, will be debated together this afternoon.

It may be convenient for the House if I outline the procedure to be followed when dealing with a joint debate of this nature. The noble Duke, the Duke of Montrose, will move his Motion. The noble Lord, Lord Clifford, will then speak to his Motion. A debate will then take place jointly on the two Motions. Any noble Lord who wishes to speak on either Motion should do so at that point. The two Motions will be disposed of separately, with that of the noble Duke, the Duke of Montrose, coming first. There will then be no need for further debate before the Motion in the name of the noble Lord, Lord Clifford of Chudleigh, is taken. I hope that clarifies the procedure.

House of Lords Bill

3.18 p.m.

The Duke of Montrose rose to move, That the Bill be referred to the Examiners in respect of Clause 1.

The noble Duke said: My Lords, we have lived with this Bill on and off for a great many months, but for all the simplicity of which the Government were so proud when it was introduced, it can take some time to consider all the possible implications.

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My Motion is that the Bill is hybrid in respect of Clause 1, because that is where the Government attempt to create separate classes within the Peers who sit in Parliament. At various other points in the Bill there are other issues which affect the private rights of Members within that class, so the Bill as drafted does not seem to me to answer all the points that are required if it is to avoid this further scrutiny.

Your Lordships will by now be aware of the opinion of Mr Leolin Price QC which has been placed in the Library, supporting this view. I have also heard an opinion from Mr John Lofthouse to the same effect. I hardly need to remind your Lordships that the definition of hybridity that is contained in Erskine May is that hybrid Bills are public Bills which are considered to affect specific private interests in a manner different from the private or local interests of other persons or bodies of the same category. The hybrid procedure is designed to protect private interests from unfair invasion or restriction by legislation passed by the legislature at the behest of the Government or the Executive; that is to say, public Bills--this is a public Bill.

The words of that ruling are those of Mr Speaker Hylton-Foster, given during the proceedings on the Bill for the London Government Act 1963 in the course of a debate in another place. He accepted that the test for deciding whether to refer the Bill to the Examiners was that,


    “if it be possible for the view to be taken that this Bill is a hybrid Bill, it ought to go to the examiners. There must not be a doubt about it".--[Official Report, Commons, 10/12/62; col. 45.]

I suggest that that is the test for this House today: not to make a decision on whether the Bill is hybrid, but to decide if it is beyond doubt not hybrid.

Perhaps the clearest guide on this subject can be found in the report of the Examiners on the Aircraft and Shipbuilding Industries Act 1977. The Examiners noted with palpable regret the erosion of the test for hybridity, which took place due to rulings from other Speakers, but still applied it. The eroded practice allows the Government to choose their own class and, so long as they keep all who are in that class in the Bill and put no one from outside the class into the Bill, they will steer clear of hybridity.

Applying that test, I look at the Bill and it may be prima facie hybrid for two reasons. The Bill in its preamble--and, again, in Clause 1--adopts the expression of “membership of the House of Lords". In the Committee for Privileges on Monday and Tuesday, the Government explained to us, with great patience and perspicacity, that the reason that we are all here is the on-going effect of our Writ of Summons. In that committee, we even heard the assertion by Anson that, in answering a Writ of Summons and in taking a seat, every peerage is perfected.

It has probably not escaped your Lordships that these Writs of Summons, apart from the phrase of nomenclature, are the same and ask for the fulfilment of the same duties and responsibilities, irrespective of the reason or route by which the right to receive the

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Writ has been achieved. All, instead of just being Peers of the Realm, become Lords of Parliament. This Bill, by wishing to deal with membership of the House of Lords, is dealing with Lords of Parliament, including all the rights and privileges that evolve therefrom.

We are all well aware that from the earliest times in Parliament all Peers are equal. I have had my attention drawn to a statement by the 17th century lawyer, Sir Edward Coke, reiterating that,


    “in the judgment of law any of the ... degrees of nobility are peers one with another".

I should like to ask the Examiners to consider that a distinction made between Lords of Parliament during the currency of their Writs of Summons is a condition that is not germane to the Bill. This is not to say that the Government can never consider any distinction between Peers because, on the expiry of the Writ of Summons, we all revert to the class of peerage with which we have been endowed.

The other point on which some hybridity might occur is on the question of the inclusion of the titles of His Royal Highness the Prince of Wales and of the noble Earl, Lord Chester. Those two titles are not hereditary titles; they are titles that are given for life. If the Government wish by such a clause to include His Royal Highness the Prince of Wales and the noble Earl, Lord Chester, it is surely possible that they could then include anyone and make the Bill even more hybrid.

I turn now to the question of private interests. I do not need to detain your Lordships for long because during the Committee stage of the Bill I brought forward an amendment relating to the Lord High Constable of Scotland. I then received letters from the Clerk to the Public Bill Office telling me that to introduce an element like this would render the Bill hybrid. Therefore, I take it that the Clerks have ruled that there are private interests involved.

There is one specific element relating to private interests about which I think your Lordships should be aware. By removing Peers from this House at the time of the passage of this Bill, anyone so removed will then lose his or her right to vote in elections until the next register comes into force. The question may seem slightly academic until we consider the fact that we are now facing a by-election in South Kensington and this might affect the rights of several Peers in that regard.

In raising these matters before the House, I am not seeking to be difficult or obstructive. One of the prime duties of this House, as recognised in the Government's White Paper, is that this House has an obligation to review and amend ill considered and badly drafted legislation.

This Bill is one of the most fundamental innovations that has been seen in our constitution for some time. We are all responsible for seeing that it falls within the structure of our historical constitutional processes. If there are any errors or anomalies, it is best for them to be considered now rather than left to litigation after the Bill has become law.

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I am merely pointing out that starting from the original Bill, as first presented to this House, there was bound to be an element of hybridity for consideration. I do so supported by expert and constitutional opinion. Therefore, under the rules of the House, the Bill must be referred to the Examiners.

Moved, That the Bill be referred to the Examiners in respect of Clause 1.--(The Duke of Montrose.)

3.30 p.m.

Lord Clifford of Chudleigh: My Lords, it is a pleasure to follow the noble Duke, the Duke of Montrose, in this Motion.

Leading counsel, Leolin Price QC, advises me that the Writ of Summons received by an elected Member of Parliament assures that person of certain “private rights"; namely, to attend, speak and vote in the House of Commons. Our Writ of Summons assures us of the same private rights and this statement has no effect on the findings of the Committee for Privileges which ruled on the amendment of the noble and learned Lord, Lord Mayhew.

Hybridity is concerned with making, in a public Bill, a distinction between the manner in which the Bill affects the private interests of one or more members of a class and the manner in which it affects the private interests of other persons in the same class. I shall be concentrating on further anomalies which render the Bill hybrid, by which it must be referred to the Examiners.

As your Lordships will see, Clause 5 introduces on to the face of the Bill provisions to allow for separate voting rights to be introduced for certain life Peers in the event of a Bill being presented to Parliament extending the duration of Parliament beyond five years. This is fundamentally a hybrid clause. Those Peers who are summoned to this House during the same Parliament which considers measures of extension of the duration of a Parliament will be prevented from voting on this Bill. This is quite clearly applying different treatment to some Peers within the same category when exercising their rights as Peers to vote in this House. On that ground alone, the Bill is hybrid and must be referred to the Examiners.

I would add my concern, and, I hope, the concern of all parliamentarians, about the general principle of changing a fundamental cornerstone of the constitutional arrangements of this country through the mechanism of this Bill. The inclusion of Clause 5 is a classic example of provisions rushed into a Bill without sufficient thought as to their consequences. Clause 5 will, if passed, bring on to the statute book some of the most radical changes to the constitution of the United Kingdom.

It is wholly misguided for such an important safeguard to be placed upon the statute book with so little thought, discussion and consultation as to its consequences. If any constitutional safeguards require further contemplation by wiser counsel, they are those measures which prevent the abuse of Parliament and the potential prevention of the right of the electorate to choose by whom and how it is governed. This clause

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is one such measure. These rights should not be dealt with in such a peremptory manner. I submit to your Lordships that such a measure should better be considered by the Royal Commission, rather than rushed through in a vehicle such as this Bill.

I turn to Clause 2(1) and 2(2). There is further introduction of hybridity into the Bill under these clauses. The hereditary Peers form part of the category or class of Peers as explained by the noble Duke. The hereditary Peers are affected by this Bill in that the Bill distinguishes the rights of some 90 hereditary Peers from the other hereditary Peers. Those 90 will retain their private rights to receive a Writ of Summons to sit, attend and vote in the House of Lords. The remainder of the hereditary Peers expelled from the House will have such rights removed. There is no way that those who have drafted this Bill can include these distinctions within the Bill without rendering it hybrid. There is therefore a clear difference in the way in which certain members of the hereditary peerage are treated from all other Peers. This renders the Bill hybrid.

The Bill goes on further to distinguish the rights of two hereditary Peers, the noble Duke, the Duke of Norfolk, as hereditary Earl Marshal of England, and the noble Marquess, Lord Cholmondeley, as hereditary successor to the position of Lord Great Chamberlain. The fact that these two Peers are clearly identified in the Bill as receiving completely different treatment, by virtue of their hereditary status, from the other 90 Peers who will be selected by other means, such as that of election, makes the Bill hybrid.

The argument that the Bill distinguishes the offices, rather than the holders of the office, does not apply. The title Earl Marshal of England is hereditary to the noble Duke, the Duke of Norfolk, just as are all his other titles, Arundel for one. The position of Lord Great Chamberlain, while not a hereditary title limited to one Peer, like that of the Earl Marshal, passes nevertheless between three hereditary Peers: the Marquess of Cholmondeley, the Marquess of Lincolnshire and the Earl of Ancaster, who succeed to it in turn by virtue of their hereditary titles alone.

By including these two Peers the Bill cannot avoid treating two Peers within the category of hereditary Peers in a different manner from the rest of the hereditary Peers in three ways. First, they are different from the 90 Peers who retain their place in the House of Lords by other means, such as election. Secondly, they are different from the 90 Peers who will retain their rights as hereditary Peers only for the interim period until phase two of the reform of the House of Lords is introduced. Thirdly, they are different from all the hereditary Peers, as they are retaining their rights as hereditary Peers to sit in the House of Lords, to receive a Summons and to debate and vote in the House by virtue of their position as hereditary Peers, while the Bill seeks to remove such rights from all other members of that category.

Further, the House should note that there are no provisions in the Bill to allow the holders of the great offices of state of Scotland--we have heard this from his grace the Duke--to be treated in a similar fashion

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to the Earl Marshal and the Lord Great Chamberlain. They are left among the broad mass of hereditary Peers either to be included among the 90 or among the remainder of the hereditary Peers expelled by this Bill. This omission introduces differences between the methods in which some holders of the great offices of state who hold duties to the House of Lords are to be treated, and thus, on its own, renders the Bill hybrid.

The Scottish offices relate to duties to the House of Lords as part of the Parliament of the United Kingdom. These duties do not arise out of their relationship to Westminster; nor do they refer to the Scottish Parliament currently in Edinburgh. The legal position is such that, if Parliament were to be summoned to sit in Scotland, the duties to the House of Lords summoned there would be carried out by those who hold the offices of state in Scotland, such as the Lord High Constable of Scotland, and the noble Earl, Lord Erroll. They would not be carried out by the Earl Marshal or the Lord Great Chamberlain. There must be reflection of this within the Bill. The fact that there is not renders the Bill hybrid.

Your Lordships' House will also be aware that the Clerks considered amendments proposed by the noble Lord, Lord Pearson of Rannoch, which introduced a specific allocation of Peers relative to different parties within the House. They found that this affected the private interests of some hereditary Peers and advised that the Examiners would have to consider the Bill in the light of this amendment. The noble Lord, Lord Pearson, withdrew the amendment so it has not had to be referred to the Examiners, but, in the light of such a finding, it is clear that the effect of the clauses which I have mentioned is to render the Bill similarly hybrid.

I turn to Clause 7. If the argument is raised that certain elements of the Bill's hybridity can be drained away by providing that the identification of those treated differently--that is to say, the 90 Peers and the Earl Marshal and the Lord Great Chamberlain--be made by statutory instrument or some other device, I would submit to your Lordships that, first, the statutory instrument is itself a form of legislation and is therefore subject to the rule of hybridity. Secondly, it is not possible to change the character of a Bill by an instrument which is not legislative in character, for example, through the Standing Orders of the House of Lords. Your Lordships' House will recall that it has determined that any affirmative statutory instrument should be subject to the Private Bill procedure. It has resolved that it has unfettered freedom to vote on any subordinate legislation submitted for its consideration. It is entirely proper for your Lordships' House to exercise its rights with regard to these measures.

Clause 7(4)(b) provides that the statutory instruments under this section are to be introduced as negative instruments. Given that this Bill is hybrid, it has to go through the affirmative procedure for statutory instruments. This should be reflected on the face of the Bill. It is to be hoped that, on a matter of such constitutional importance, the Government will

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not seek to impose any statutory instruments through the negative procedure and that this clause should therefore be amended.

The terms of Clause 7(4) are enormously wide. The notion that an order may modify the effect of any enactment or any provision made under any enactment gives the Secretary of State in effect unprecedented powers to change pieces of legislation. This has only been done once before, in Section 51(1) of the Firearms (Amendment) Act 1999.

There is also a desire to provide “not counting in the 90" treatment for exceptions who are members of the Privy Council, 28 of whom are hereditary Peers. The appropriateness of that is a matter of judgment. If adopted, it too would add another element of hybridity.

Your Lordships will be aware that one of the functions of this House is as a balance against the over-extension and abuse of power by another place. This Bill introduces some far-reaching changes into the constitution which have perhaps not been fully grasped by your Lordships. It does so in a Bill which I submit is hybrid, and for which the proper course is submission to the Examiners.


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