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Lord Campbell of Alloway: Very well, my Lords. I apologise for being so cross but it was true anger. I beg leave to withdraw my Motion to adjourn the House.

Motion, by leave, withdrawn.

Clause 99 [Referendums to which this Part applies]:

Lord Campbell of Alloway moved Amendment No. 169:

The noble Lord said: My Lords, I shall get on with this as quickly as I can. The amendment eases the restraint of Clause 99(2)(a) to assert the freedom of both Houses, if so advised under extant rules of procedure, to resolve that a pre-legislative referendum be conducted as proposed in Amendment No. 170 on provisions of a Bill which on the advice of the constitutional committee substantially affect the constitution.

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The purpose, without derogation from the exercise of your Lordships' guardianship function under the Parliament Acts, is to delay enactment of a Bill until the result of a referendum is known and so, in the interests of the body politic and not of any particular party, to seek to safeguard the unwritten constitution from unwelcome erosion by statute. Irrespective of the result of the referendum, the legislative powers of government are preserved. Albeit that the remit of the constitutional committee, which is about to be set up, is indeed wide, as affirmed by the noble Baroness the Leader of the House on 14th November--at cols. 124 and 125 of the Official Report--the scope of the amendment is concerned with Bills in which no provision is made for a referendum, and not with the interpretation or implementation of the Parliament Acts or with any other enactment upon which it would be within the remit of the constitutional committee to advise this House.

This is an enabling provision, a measure of safeguard at the disposal of both Houses, but not at the disposal of one House. It is to be implemented only if so advised under the freedom of each House, a freedom which cannot be exercised under this Bill unless this measure were to be amended before enactment, as proposed. Part VII of the Bill on referendums is of generic application to all referendums and provides that all referendums shall be conducted by the electoral commission, as all referendums have to be held by or under an Act of Parliament.

The concept of a pre-legislative referendum on the provisions of a Bill which substantially affect the constitution derives from Clause 3 of the Parliamentary Government Bill of my noble friend Lord Cranborne, read a second time on 25th June 1999. As I have said already, my noble friend would have wished to address the House tonight on this matter. This concept, as proposed to be implemented by the amendment tabled by the noble Lord, Lord Owen, in Committee, could not have been supported for reasons given by my noble friend Lord Cranborne and other noble Lords. Implementation of the concept as proposed by these amendments is dependent on a factor which may well not have been taken into account when instructions to draft this Bill were prepared; that is, the advice of a constitutional committee to be set up on the recommendations of the Royal Commission to be tendered to this House on the provisions of a Bill which substantially affect the constitution. Such advice will be reasoned, objective and wholly devoid of party political consideration. The crucial consideration is whether both Houses resolve to accept such advice and that a referendum should be held in which event the referendum would be held by an independent body appointed by the Secretary of State rather than by the electoral commission.

These amendments acknowledge the sovereignty of another place, asserting the procedural freedom of both Houses to resolve that a referendum should be held and, if so advised, to impose conditions such as the form of the question to be put, as well as the threshold. In neither House could argument for or against a pre-legislative referendum be foreclosed upon. I mention that in deference to my noble friend Lord Norton of Louth,

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who is present in the House. He takes one view and I take another. Voting entitlement would be provided under Clause 102 of the Bill. Indeed, the provisions of the Bill would stand save as requisite to accommodate these amendments which, if acceptable in principle, would require expert attention to the Bill by a draftsman before enactment of Part VII.

Much has been said about modernising Parliament, but little has been said about safeguarding our largely unwritten constitution. The cumbersome and complex machinery of the Bill may well be appropriate to govern elections, albeit that serious reservations have been expressed. But it is not appropriate that the electoral commission should have the conduct of a referendum such as that proposed by these amendments on matters concerning the constitution.

It is assumed that the constitutional committee will report on Bills, either on its own initiative or at the instigation of the leader of any party or the Convenor of the Cross Benches, and will have access to academia. It is envisaged that a new dimension of amity as between the two Houses could evolve.

Having to talk at this hour of night about a new dimension of amity which could conceivably take us a little further forward towards safeguarding the constitution shows the ridicule of the position in which I have been put, against which I firmly protest and shall continue to do so. Neither my party nor the party opposite is the slightest bit interested or concerned about anything that I am saying tonight. I hope that when the House is assembled on Third Reading, it will be interested. I accept that the Front Benches are not.

This new dimension is to be achieved on a case by case basis without derogation from the delaying power under the Parliament Acts. The advice of the constitutional committee--of which no account has been taken--would enter the public domain after it had been tendered to your Lordships' House. Is there any reason to suppose that the quality and objectivity of its advice should not receive in another place the general acclaim and respect accorded to the advice of all other Select Committees of your Lordships' House? It is to be hoped that the Committee of Selection will favour the inclusion of Law Lords--or retired Law Lords if they are willing to serve--as the efficacy of the amendments is dependent upon the authority, advice and status of the committee, which would be greatly enhanced by their inclusion.

We cannot know when or on what instructions Part VII of the Bill, which deals with referendums, was drafted. Was it by accident or design that provisions to accommodate the freedom of both Houses were omitted? If by accident, perhaps the Government will take on board the principle of these amendments at Third Reading. If by design, then why so? As I said, under protest, I beg to move.

The Chairman of Committees: My Lords, it may be for the convenience of your Lordships, in order to place the

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matter beyond doubt, if I say that any attempt to move the adjournment of the House may be taken as having been, by leave, withdrawn.

Lord Chalfont: My Lords, I support the amendment of the noble Lord, Lord Campbell of Alloway. I have put my name to the second amendment in this group.

As a simple Back Bencher, perhaps I may express the view that this is the most bizarre way of conducting the affairs of a serious legislative body. We are sitting after midnight, with fewer than a dozen noble Lords present, and with the two major parties of the House trading genial insults with each other when dealing with an amendment which has serious constitutional implications. I find it most odd that those who put their names to the amendment should have had no idea whatever of any arrangement between the usual channels as to which clause should have been reached by the time the proceedings of the House were to be concluded. Whatever those arrangements may be and whatever may be the views of the House on this or any other amendment, I find this a most extraordinary and bizarre way of conducting the affairs of a serious upper House.

I support the amendment. It is of great constitutional significance. We have had much discussion recently about constitutional change and the weakening of the powers of Parliament. There has been much concern about constitutional changes such as those that have taken place in the House of Lords, in terms of devolution, and in attitudes towards Europe and the European Community.

"Constitutionalism" is, I suppose, the expression for the beliefs of those of us who believe in the importance of the constitution, albeit unwritten. I have always believed that the constitution assumes that all state and civic institutions derive from a Constitution--in capital letters--and that that constitution is to be obeyed and not departed from at the whim of the government of the day, of whatever complexion it may be.

Although the constitution should mean a government of law and not of men--of either political persuasion--we must accept that constitutional law, like any other law, can be changed. Parliament is fully sovereign. There is no field in which Parliament is forbidden to legislate. However, it seems to me that the amendment is a microcosm of a much broader concern. I apologise to noble Lords for developing this argument at this time of night. I should have liked to develop it at a more civilised time in front of a House with some people listening. It is arguable that, if it is agreed that the proceedings of this House are an integral part of the constitution--which I believe them to be--Clause 99 represents a change in the constitution.

Are we in this House fully aware of the fundamental and important changes that are being imposed on our constitution, against the whole ethic of a constitution--namely, that it is there to be obeyed and not to be changed at the whim of a single political party in a single parliament? Are we fully aware of what is happening? That is my main reason for supporting the amendment. I

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shall be interested to hear the Minister's response. Quite apart from the importance of the amendment, which I strongly support, we are paddling in waters the depth of which I do not think anyone has fully appreciated. Do we really know what we are doing to the powers of this House and the other place, and to what is after all, however unwritten it may be, the constitution of this country?

12.15 a.m.

Lord Dean of Harptree: My Lords, the hour is late and the Benches in the Chamber are not exactly crowded, but Hansard will record this important debate tomorrow. I am grateful to my noble friend Lord Campbell of Alloway for his skilful drafting. I am also grateful to my noble friend Lord Cranborne because the amendment is in fact modelled on Clause 3 of his Parliamentary Government Bill.

I am not necessarily wedded to the details, but I wish to concentrate on the principle; namely, that we need better parliamentary and outside safeguards for Bills of major constitutional importance. I am not enthusiastic about referendums. It seems to me that they fit ill with our concept of parliamentary sovereignty and the representative character of Members of Parliament and your Lordships. We are sent to Parliament to exercise our judgment, having due regard to public opinion. But the reality is that we are making increasing use in recent years of referendums, and it looks to me as if they have come to stay. If that is so, I can think of no better subject for an appeal to the people than proposals to change the constitution of our country.

I am delighted that your Lordships' House has agreed to set up a constitutional committee and that the terms of reference, as my noble friend Lord Campbell of Alloway said, have been agreed:

    "To examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution".

This should provide for your Lordships' House a valuable safeguard--an early warning system to alert this House to major constitutional matters and allow it to recommend how they should be dealt with.

It may well be argued that we should see how the constitutional committee works in practice before proceeding further. Indeed, I shall not be at all surprised to hear the Minister using that argument. There is force in that argument; but, none the less, I believe that the matter is too urgent to be left there. One of the reasons why I say that is to look at the procedure of another place, not in any way in criticism but to consider what the position is there.

There was a long-standing convention in another place that constitutional Bills should not be timetabled or guillotined and that the Committee stage of these Bills should be taken on the Floor of the House, so that all Members of Parliament could take part. That convention has been over-ridden in this Parliament. There are now no more safeguards for major constitutional Bills than for minor technical Bills. I understand that the other place has now decided to go further next Session. It is intended that all Bills should be

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tabled or guillotined from the start. It is not for me to comment on the procedures of another place; they are masters of their procedure, just as we are masters of our procedure. However, the two Houses are complementary: we both have a duty to sustain the government of the day and to call them to account. I suggest, therefore, that we need to take note of the procedures of another place in determining our own procedures.

All governments--I stress "all governments"--no matter what their political colour, are authoritarian by nature if they can get away with it. They need discipline from two Houses of a strong Parliament. Very regrettably, we now have the tendency of government, all governments, to make statements first to the media, thus bypassing and devaluing Parliament.

The power of government has increased and is increasing. The power of Parliament has diminished and is still diminishing. The time has come to redress the balance, especially with Bills of major constitutional importance. I believe that this amendment would go some way to achieve that objective.

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