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The Earl of Erroll: My Lords, I find intriguing the way the hybridity argument has been used on both sides. The moment certain amendments are proposed, they are deemed hybrid; the moment Clause 1 is examined, it is not hybrid. The same argument has been used on both sides. I find that awkward. I think that a future Chamber should consider how to define hybridity properly.

I should like to ask one question. If this Motion is agreed to and the Bill fails to pass in this Session, can the Government then invoke the Parliament Act?

The Earl of Liverpool: My Lords, the whole House should be grateful to my noble friend the Duke of Montrose and to the noble Lord, Lord Clifford, for bringing this matter before your Lordships today. It may be late in the day but it has not been resolved fully, although it has been discussed both inside and outside the Chamber.

I should like to query what the noble Lord, Lord Richard, said--that we are being asked today to decide whether the Bill is hybrid. With the greatest of respect to the noble Lord, we are not being asked to do that. We are simply being asked to agree that there is sufficient doubt in the area that we are not competent to say one way or the other and that the matter can be settled only by sending it to the Examiners. Unless we do that, we shall be failing in our duty as the custodians of our constitution.

We must put the matter to rest one way or the other. Future generations will not look kindly on us if we let this matter pass without settling it. If, as the Government claim, they want to be transparent in all their actions, they should not be opposed to seeking to

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ensure that the Bill reaches the statute book without flaws and immune from recriminations. I support the Motion of my noble friend the Duke of Montrose.

Lord Pearson of Rannoch: My Lords, I shall not detain the House long. I should like to thank my noble friend the Duke of Montrose for introducing his Motion, which I support and to which I address my brief remarks, because it gives me the opportunity to return to the unfinished debate about hybridity which I had with the noble and learned Lord, Lord Williams of Mostyn, on my Amendment No. 11 in our Report stage proceedings on 15th June (at cols. 233-235, 244 and 248 of the Official Report). Because I suppose it is just conceivable that some of your Lordships may not instantly recall the details of that debate, which took place rather late at night, I shall repeat very briefly those parts of that Amendment No. 11 which are salient to the question of hybridity.

It proposed to leave all Peers with speaking and attendance rights for the duration of the interim House and to remove the voting rights of all Peers, both hereditary and appointed, except the Bishops and the Law Lords. It then set up four electoral colleges--one for each political party and one for the Cross Benches--to elect 700 voting Peers. Those 700 voting Peers were to be allotted as follows: 240 to the Cross Benches--

The Earl of Onslow: My Lords, will the noble Lord give way? I am sorry to interrupt him. I admire him enormously, but to go back over Report stage arcana to produce a point is to try the patience of your Lordships. I love him dearly, but he is seriously trying the patience of the House.

Lord Pearson of Rannoch: My Lords, with the leave of the House, that must be for the House to decide. What I have to say bears on the issue before us and is relevant to the decision that the House must take.

As I was saying: 200 to Labour; 200 to the Conservatives; and 60 to the Liberal democrats. There would have been no distinction between hereditary or appointed Peers in the electoral colleges or in the allocations to the parties. The appointed Peers would have been put in the same boat (or perhaps the same tumbrel) as the hereditary Peers, and we would all have taken our chance together in the elections to become voting Peers. For the benefit of my noble friend Lord Onslow and others, I shall of course not repeat the advantages of that amendment over the Weatherill amendment.

Your Lordships should be aware, however, that prior to our Report stage debate on 15th June I received no fewer than three memoranda from the Public Bill Office, under the signature of no less a personage than the Clerk Assistant, informing me that my amendment, if passed, would render the Bill prima facie hybrid, which would mean that it would have to go to the Examiners. The justification for that

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contention was contained in the following vital words in all three memoranda. The Clerk Assistant said that the amendment,

    “by including in the Bill a specific allocation to different parties within the House, affects the private interests of some hereditary Peers differently from the private interests of other hereditary Peers".

What struck me as most odd about the wording of that memorandum was the singling out of “hereditary" Peers, because hereditary Peers were treated no differently under the amendment than appointed Peers; and although allocations were made to different parties within the House, both hereditary and appointed Peers are of course essentially free to move between parties as they wish, as indeed some do. It was therefore difficult to see how hybridity did in fact bite on that amendment. So I put a few questions to the Government on 15th June (at col. 234), which have not been answered, and should be answered today before we take a decision.

The first question is really the subject of this Motion, which was to ask why the original Clause 1 of the Bill did not make it hybrid. My noble friend the Duke of Montrose has dealt with that point. However, the noble Lord, Lord Williams of Mostyn, replied (at col. 244) that Clause 1 did not hybridise the Bill because it gave all hereditary Peers the same chance. But, I submit, so did my amendment, because it gave all Peers, both hereditary and appointed, the same chance, bearing in mind that membership of parties is not fixed in stone.

I then asked the Minister to explain the significance in the memoranda of singling out only hereditary Peers as causing hybridity in my amendment, and the record shows that he did not attempt to do so. I should be grateful for the Government's answer today. Why did my amendment make the Bill hybrid thanks only to its treatment of hereditary Peers, and not of appointed Peers as well?

The picture is even more confused, because I moved an amendment, Amendment No. 110E, in Committee on 17th May (cols. 43 to 59) which contained exactly the same features as were supposed to render the later amendment hybrid, and nobody said anything about it at all; no memoranda from the Clerk Assistant--

Earl Ferrers: My Lords, perhaps my noble friend will give way. I am sure that he is producing some valid points, but they seem to be way off the subject of the Motion. I think it would be to the agreement of your Lordships if the noble Lord concluded his remarks.

4.15 p.m.

Lord Pearson of Rannoch: My Lords, I am in the hands of the House. I have nearly finished.

The amendment at Report stage contained exactly the same features as the amendment at Committee stage. But I had no memoranda from the Clerks on that, and not a squeak about hybridity from the noble Baroness the Lord Privy Seal when she came to dismiss the amendment (at col. 57). Yet the amendment had been in the Printed Paper Office for weeks, and had

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even missed its turn once on the Marshalled List. So those who were concerned to find fault with the amendment in Committee had plenty of time to do so, but obviously did not think then that it might cause hybridity. This is part of the answer to those who say that it is now too late to introduce the aspect of hybridity. It should have been introduced at Committee stage, but because we did not receive the relevant memoranda and the Government did not produce the point, it was not.

I therefore ask the Minister: what happened to the theory of hybridity between the two stages of the Bill? Why was my amendment hybrid on Report, when it was not hybrid in Committee?

I mention all this to show that the issue of hybridity is not clear-cut, to put it mildly. We have heard many different arguments this afternoon. That is why the Bill should go to the Examiners, as my noble friend suggests. To me, all Peers who have taken the Oath form a single class, and there is nothing that the Government ought to be able to do to get round that simple fact.

Perhaps I may leave the noble Baroness who is to reply with one final and, I trust, rather awkward question. Does not the very word “Peer" mean “equal"--equal with one another, that is? And if so, on that ground alone, does not Clause 1 hybridise the Bill? I support my noble friend's amendment, and I look forward to the Minister's reply.

Lord Mishcon: My Lords, perhaps I may intervene for one moment only to pay a warm tribute from this side of the House to those hereditary Peers who follow the line of the noble Lord, Lord Elton, in this debate.

Lord Strathclyde: My Lords, I suppose the real point behind the speech of my noble friend Lord Pearson of Rannoch is that, had he received the replies to his questions at the appropriate time, we should not have needed to hear them again.

My noble friend the Duke of Montrose has put forward his Motion with the quiet integrity and logic that those of us who have come to know him and who value his contributions in the House would have expected.

I share with my noble friend his distaste, and that of many other noble Lords, for this Bill. It is a bad Bill. It is mean-spirited. It is a licence for old-fashioned patronage. It is a backward-looking “Old Labour meets New Establishment" Bill. It was conceived in malice and has been carried through with a lack of grace from start to finish that has greatly disappointed the House. But the issue raised by this Motion is not whether we like the House of Lords Bill, nor whether we want it to become law. The Motion is on the narrower issue of whether the Bill, in respect of Clause 1, should be referred to the Examiners.

I do not believe that that would be a sensible thing to do. I have listened very carefully to my noble friend the Duke of Montrose. I agree with him that there is a clear and obvious injustice in the distinction drawn

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between life Peers and hereditary Peers. It goes against all the custom of this House--in which all Peers, from the noble Duke himself and the Earl Marshal of England, to those noble Lords who entered the House today are equal. They are all Peers.

But the Government, with their vicious, scornful and distasteful campaign against hereditary Peers--cliche piled on cliche, stereotype on stereotype, falsehood on half truth--have injected a poison into this House. They have destroyed that old balance by which all Peers looked upon each other as equal. That is to their shame. It will be up to them in future to justify their contention that a life Peer has some specific and special democratic legitimacy over and above an hereditary Peer.

But, carefully though I have heard my noble friend the Duke of Montrose, I have to say that my advice is that the Government can draw such a distinction. Otherwise, how in future could a government present legislation on life Peers, along the lines of the provisions of Clause 2 for hereditary Peers, as I have no doubt some government, some day, may wish to do. Noble Lords opposite may well wish to ponder on that ambition.

But even if my advice were wrong, and the advice of the noble Duke were right, what would it achieve, as my noble friends Lord Ferrers and Lord Elton have asked? The government spin doctors would go to work. The half truths and distortions would continue. We should be said to be trying artificially to hold up the Bill, although I know that that is not the intention of my noble friend. This afternoon, the noble Lord, Lord Richard, has already started on that charge. I can almost guarantee that the noble Baroness the Leader of the House will use it once more when she makes her speech.

We will open ourselves further to that line of abuse and attack. We might even give the Government the excuse they crave to remove Clause 2 and introduce the full horror of a wholly appointed House of Lords. I do not think that would be wise.

The same considerations apply even more to the Motion in the name of the noble Lord, Lord Clifford of Chudleigh. He asks for the clause that has come to be known as the Weatherill amendment to be referred to the Examiners. What would that achieve? If the Examiners found that the clause was not hybrid, we should be where we are today. If the Examiners found that the clause was hybrid, would not the recourse for the Government be to drop the clause and impose their quango-Bill for the House of patronage?

The House voted overwhelmingly for the Weatherill clause, new Clause 2, as making a bad Bill better. Today I see no reason to revise that judgment. I am therefore opposed to the reference of the clause.

Some of your Lordships may think that a finding that the Bill was hybrid would make it impossible to use the Parliament Acts. I am advised that that is not the case. A declaration from the Examiners that the Bill was a hybrid Bill would not prevent the Government re-introducing the Bill next year under

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the Parliament Act. That was the case in 1976-77 when the Aircraft and Shipbuilding Industries Bill was re-introduced under the Parliament Acts, even though it was a hybrid Bill. The hybrid Bill procedure and the Parliament Acts procedure are separate; they do not interrelate and no one who votes for this Motion should do so because they think it will frustrate the darkest purposes of the Government.

To return to the Motion in the name of my noble friend the Duke of Montrose, I much admire him and hope that the House will long have the benefit of his wisdom. But I regret intensely that I cannot support him today. I also cannot advise my noble friends to do so. But neither will I oppose a Motion that he has put forward with such integrity and which, unlike the Motion of the noble Lord, Lord Clifford of Chudleigh, touches on a matter on which the House has not yet resolved. The question of a reference of Clause 1 is ultimately a matter for the whole House to determine, although for my part, I and my colleagues on the Front Bench will abstain if my noble friend tests the opinion of the House.

One last word: if the intention is to prevent this Bill from becoming law, it should not be done indirectly through use of the hybrid Bill procedure, a device that will not work to that end. If that is the preferred option of noble Lords, it is better to go for an open kill, at Third Reading, on Bill do now pass, or when the House considers the reasons sent to us from another place. That is when the House must finally determine the rights and wrongs of the Bill. I believe that it is on those debates that noble Lords who oppose or support the Bill should concentrate their energies.

For those reasons, I cannot, regrettably, support my noble friend, but I very much look forward to further vigorous debate at Third Reading.

4.22 p.m.

The Lord Privy Seal (Baroness Jay of Paddington): My Lords, in the interests of good grace, which we have heard expressed considerably this afternoon, I welcome the underlying points which the noble Lord, Lord Strathclyde, made about the specific Motions before us. We have heard from several places around the House distinguished and authoritative legal opinions on the points put forward; legal opinions which I think it is true to say were all in favour of rejecting the Motions. The House may be interested to know--and to some extent it is relevant to this afternoon's proceedings--that the Privileges Committee has just ruled in favour of the Government on the second reference on the Scottish Peers. The House will be aware that two days ago the Privileges Committee unanimously rejected the earlier reference on Clause 1.

However, even that resounding defeat for the opponents of the Bill had some spurious legitimacy as a unique process, which this afternoon's proceedings do not. The noble and learned Lord, Lord Mayhew, argued that because there was no legal method for deciding a point of peerage law before the Bill was passed by Parliament, the Committee for Privileges

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should be invoked. I did not and do not agree with that argument, but at least he was invoking extraordinary procedure machinery to test it.

In the case of the Motions before us today, there is a routine machinery for testing hybridity in a Bill. That machinery has already been invoked, as several noble Lords said this afternoon, and the Bill has been judged not to be hybrid. For those reasons, although I hope to be able to respond to the noble Lord, Lord Pearson of Rannoch--and one must with courtesy respond to some of the points made by the two movers of the two Motions--I do not think it is necessary to reply in great detail to some of the points raised.

Let me just set out for the House how the system routinely operates and how it has operated on the Bill. There is a machinery in place for considering whether a Bill is prima facie hybrid. It works, whether or not a noble Lord seeks to refer a Bill to the Examiners. A Bill is considered by experts in such subjects as a matter of normal course of events in the process of its passage through the House and at each stage of that passage in relation to each amendment. The experts considered the Bill when it was first brought from the Commons, so they will have looked at the effects of Clause 1 then. They will have considered each amendment as it was tabled, including Clause 2(2).

I remind noble Lords how this works in relation to some points raised by the noble Lord, Lord Pearson of Rannoch, on his amendments. I take issue with his concern that he was not answered appropriately at the earlier stages, but without wishing to delay the House, I shall outline some of the points because they were relevant.

At Report stage, as the noble Lord told the House this afternoon, he was informed that he had been told that his amendment would be likely to be hybrid on a prima facie basis. He then sought guidance from the Government as to why his amendment might make the Bill hybrid while the Bill itself was not, as he explained. My noble and learned friend the Attorney-General explained it thus. The Hansard reference is the same as the one the noble Lord, Lord Pearson, gave us. Perhaps I may quote briefly from my noble and learned friend the Attorney-General:

    “Clause 2 gives all hereditary Peers the same chance. It does not specify any division. The amendment in the name of the noble Lord, Lord Pearson, gives Tory Peers a different chance of continuing membership from Labour Peers. The Earl Marshal and the Great Chamberlain are in a class of their own. It is, I readily concede, quite a small class, but it is in fact a class which is treated equally within itself.

    The same is true of Clause 1 in relation to all hereditary Peers".--[Official Report, 15/6/99; col. 244.]

As several noble Lords have emphasised this afternoon, the key point about determining whether a Bill is hybrid is whether it affects the private interests of some person differently from the private interests of some other person in the same class. The last four words are absolutely crucial. Setting aside the issue of whether the Bill deals with private interests at all--a point rightly referred to by the noble Lords, Lord Elton and Lord Goodhart, and others--the Bill is not hybrid because it does not discriminate between

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members of individual classes. A class does not need to include everyone who could be included in another class of which it would be a subset. So, for example, Clause 1--the subject of the noble Duke's Motion--applies to all hereditary Peers. They, as we all know only too well, are a class on their own. I do not believe anyone in the House disputes that; indeed the whole thrust of our debate so far has been based on how they have special characteristics and are unique as a group of citizens. A Bill which applies to all of them cannot, on that account, be hybrid.

The fact that a different class of Peer could be created which would include life Peers is frankly immaterial. For example, the 1963 Act allowed only for hereditary Peers to disclaim their titles. But no one suggested it was hybrid on that account.

The noble Lord, Lord Clifford of Chudleigh, seeks a reference in respect of Clause 2(2). That is the clause which specifies that 90 hereditary Peers may be excepted, the so-called Weatherill amendment. The first part of that clause is not hybrid because neither it nor Clause 2(1) specifies who the 90 are. All hereditary Peers are to be covered by it. The reference to the Earl Marshal and the Great Chamberlain is, of course, to two hereditary office holders. As my noble and learned friend the Attorney-General explained to the House, they are a class in their own right.

My noble and learned friend acknowledged that it was a small class but it is nevertheless a legitimate one, and for that purpose one is enough. The Public Bill Office automatically considered the amendment when the noble Lord, Lord Weatherill, tabled it, in the same way as it considered the amendment tabled by the noble Lord, Lord Pearson of Rannoch (to which I have already referred), and several others, most notably those in the name of the noble Lord, Lord Coleraine.

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