Lord Goodhart: My Lords, before the start of the debate, I should like to complain about the fact that the order of business today, although it is the same as in the Minute, is different from that published yesterday in the list of forthcoming business, on which most Members of this House rely.
So far as I am aware, all speakers in the first debate are present. However, I was only notified of the change by a telephone call at 9.59 and 52 seconds this morning. I could well, in reliance on the list of forthcoming business, have arranged not to arrive until after 11 o'clock. It is also seriously inconvenient for those taking part in the debate on the Psychotherapy Bill, most of whom, I believe, will have assumed that that Bill would come first and may have made arrangements accordingly for the business of the afternoon.
Lord Strathclyde: My Lords, I join the noble Lord, Lord Goodhart, in his complaint. I was slightly confused when it was brought to my attention this morning that a change was taking place. It suited me, and I understood that all speakers had been notified. However, if some Members of this House have been inconvenienced, it might be helpful if the noble and learned Lord the Attorney-General could throw some light on why the change has taken place.
Also, I understand that the list of forthcoming business published yesterday does not make it clear that, on Tuesday afternoon, before we take the main business, there will be a discussion on the Procedure Committee report which includes the potentially valuable proposal to swap the business on Wednesdays and Thursdays, although that is stated in the Minute. I wonder whether the noble and learned Lord the Deputy Leader of the House might examine this matter to make sure that such confusion does not occur again.
The Attorney-General (Lord Williams of Mostyn): My Lords, I am sure that is right. Apparently, the order of business as we presently have it has been set out on paper since 21st December. However, I agree with the noble Lord, Lord Goodhart. I received notification at about the same time as he did.
I am not able to cast any further light on the matter. I shall inquire with the Chief Whip, particularly bearing in mind the point made by the noble Lord, Lord Strathclyde, which I, too, had noted. Obviously, quite a number of noble Lords will be interested in the discussion on that particular matter. I hope that no
Lord Hodgson of Astley Abbotts: My Lords, perhaps the Minister will include a further point in his inquiries. Because of the confusion, I went yesterday to the Government Whips' Office to ask specifically about this matter and was told that the order of business would be the reverse of what is now happening. Will the Minister please inquire about that as well?
Lord Williams of Mostyn: My Lords, I shall certainly make that inquiry. I note that the noble Lord, Lord Alderdice, who is introducing the Second Reading of the Psychotherapy Bill, is not present. I do not know whether there is any connection between those two matters. It is possible.
In the case of a Money Bill, the Commons had only to pass it once, and wait one month to see whether this House would agree. If the House did not agree, the Commons could forthwith submit the Bill to the Monarch for enactment.
In the case of any other Bill to which the Act applied, the Commons could submit it for enactment only if they had passed it on three occasions and two years had elapsed between the first Second Reading and the third occasion on which it was passed by that House. The 1911 Act expressly provided that the new procedure could not be used in the case of a Bill which made provision for extending the life of Parliament beyond five years.
In 1949, the then government took the view that the timetable in the 1911 Act imposed too long a delay. They wished to substitute a requirement for the Bill to be passed by the Commons on two, instead of three, occasions and for only one year, instead of two years, to have elapsed. The other place supported that proposal. For reasons which escape me, as I thought it a reasonable proposal, this House disagreed.
The Bill as enacted by the Commons expressly stated that this was done on the authority of the 1911 Act. If that had been the case, matters would have been fine. There was, however, a fatal flaw. As your
The 1949 Act purported to vary the powers delegated to the Commons by curtailing the timetable. This could have been authorised by a Henry VIII clause in the 1911 Act, but there was no such clause. It follows that the other place, in enacting the 1949 legislation, exceeded its authority.
What is the result? That Act is not void; nor is it a nullity. But is flawed. As it is subordinate legislation--that is to say, legislation under delegated powers--the courts can be asked to exercise their power of judicial review. If, as in my view is undoubtedly the case here, the 1949 Act was made in excess of authority, the courts have the power to set aside the Act itself or anything done in reliance upon it. But--this is important--unless and until the courts take action, the flaw does not matter. Life goes on as if nothing were amiss.
That brings me to the very important question of whether the courts would grant an application for judicial review. Their power is discretionary. They will refuse to exercise it if the applicant has no personal interest in the matter; that is, if he would not be personally affected one way or the other whatever the court decided. In other words, the court will give no assistance to busybodies. They will also refuse judicial review if the applicant could have been expected to have applied to the court sooner. This is because third parties are entitled--and, indeed, bound--to treat the legislation as valid until they are told to the contrary. If they are not told very promptly, they may have acted to their detriment and may not be able to extricate themselves.
I should not expect the courts at this time to grant any application for judicial review of the 1949 Act, or of any of the legislation enacted on the basis of its amended timetable. They would say that it was all too late, or that the applicant had insufficient interest, or both.
However, a wholly different situation would arise if the other place again legislated without the consent of this House using the 1949 Act timetable and if that new legislation--I have little doubt that this might happen--were challenged promptly by someone with a sufficient personal interest. I know from long, bitter personal experience how difficult it is to say with certainty what a court will do, unless of course you are the judge! Even then, there is a substantial risk that an appellate court will lose its way. But making allowance for all of that, I would forecast that the court would set aside the new Act on the basis that the 1949 Act was
As I say, I cannot forecast when that challenge will come. But, at present, the front-runner must be the Hunting (with dogs) Bill, if and when it is rejected by this House for a second time and one year has elapsed since its first Second Reading. But let me make it abundantly clear that the mischief at which this Bill is directed is not the Hunting Bill, or any other change in the substantive law.
What has troubled me and given birth to this Bill is something wholly different. One of the foundations of our unwritten constitution is a respect for the separation of powers. This involves Parliament avoiding criticising judicial decisions--and quite often it does so--and vice versa. The courts are also very strict about not criticising parliamentary decisions. Unfortunately, the scenario that I foresee will involve the judiciary being obliged to pass judgment on one aspect of the work of the other place. There will be no escape, even if it is only an application for leave to move for judicial review; indeed, no escape whatever. It will be misrepresented by the media and by some politicians as a major constitutional crisis.
I want to avoid that situation. Clause 1 achieves just that aim. It "confirms" the 1949 Act and everything done under its authority. The use of the word "confirm" will, I hope, satisfy those who, like me, are wholly convinced that the 1949 Act is deeply flawed. It will convince us that the flaw has been repaired. I hope that it will satisfy those who could not detect the flaw that all doubts on the part of others have been silenced. Either way, if this Bill becomes law no question of judicial review will arise in the context of the use of the 1949 Act timetable--either in the past or in the future. I should emphasise that I am speaking about the timetable.
In the Explanatory Notes to the Bill, I appear to have misunderstood and, therefore, misrepresented, the position of Professor Sir William Wade. I have received a letter from him in which he says that he agrees that the 1949 Act is subordinate legislation. He also says that my Bill is needed. However, he appears to think that the only limit on the delegated authority is the term relating to extending the life of Parliament. I have the greatest possible respect for his views on any matter of administrative law, but I simply cannot follow his reasoning.
There are two bars--two conditions--in the 1911 Act: one relates to extending the life of Parliament and the other relates to a timetable. If the House of Commons, acting unilaterally, can vary the timetable, so, equally, I should have thought that it could vary the provision about extending the life of Parliament. I cannot see the distinction between the two.
In the interests of freedom and human rights in the broadest sense, the true scope of primary legislation empowering subordinate legislation needs to be scrutinised with very special care. It is not sufficient
Subject to correction, I believe that the historical background to the 1911 Act was that in November 1909 this House rejected the "People's Budget", as it was called, introduced by the Liberal Government. Thereafter, the Government won two General Elections in 1910 focusing on that aspect and secured a promise from King George V if necessary to create sufficient new Peers to secure the passage of the Parliament Bill which by its terms enabled the House of Commons to enact a Money Bill within a month of its passing notwithstanding any objections by this House. It also ensured that this House could not delay the coming into force of other Bills to which it applied for more than two years.
That leaves open the question of whether the category which I have termed "other Bills" is limited to Bills designed to change substantive law or whether it extends to something which is fundamentally different; namely, changing the parliamentary legislative framework by varying the constitution or powers of this House. It is in my view a question which is decisively answered by the recitals to the 1911 Act. They read:
Quite clearly just as the 1911 Act was an Act of the Sovereign Parliament, so it was envisaged that any further limitation or definition of the powers of the new Second Chamber should also be enacted by the Sovereign Parliament and not by the House of Commons acting unilaterally. It is in that context that the phrase,
The 1911 Act restrictions on the powers of this House, to which this House consented, were an interim measure to enable the King's government to be carried on effectively pending a constitutional change. It did not authorise constitutional change at the sole wish of
In Clause 2 of the Bill I have made express only what I believe to be implicit in the 1911 Act. Thus, for example, I have not suggested that the Parliament Act procedure can be used only for "manifesto commitments". There is no support whatever for such a proposition in the 1911 Act. Furthermore, even at that time it must have been clear that any such restriction had no logical basis. Voters do not in fact approve or disapprove of everything which is contained in a manifesto. A political manifesto is simply a prospectus upon the basis of which Members of Parliament are elected and a particular political party is entrusted with the government of the country. As time goes on the Government may think that the national interest requires some new initiative which was not contemplated at the election and did not make even a fleeting appearance in the manifesto. If it is considered to be sufficiently important, the Government must be able to use the Parliament Act procedure in order to change direction. However, it certainly should not be used on every occasion; it should be used only when a matter of grave importance arises.
Clause 2 of the Bill contains one exception to my self-imposed approach of not seeking to use this Bill to vary the existing law, and that is contained in paragraph (c) of Clause 2. This provides that the Commons shall have an opportunity fully to consider this House's views before it can proceed to pass an Act without our consent. If this proves controversial, I shall be perfectly happy to abandon it. As I say, it is designed to ensure that timetable Motions in the other place do not deny that House an opportunity of fully discussing and considering the views of this House before imposing its own view. At the same time it was necessary to avoid providing a charter for Members of the other place seeking to mount a filibuster. I took the view that it was impossible to draft a precise definition of "fully discussed and considered" which would be appropriate in all circumstances. The concept was clear enough but its detailed application called for judgment rather than legislative precision.
Conveniently, Section 2(2) of the 1911 Act requires the Speaker to certify that the provisions of the section have been duly complied with. If the present Bill becomes law, he would need, before certifying, to exercise his own judgment as to whether there had been full discussion and consideration of all the provisions of the Bill concerned at a stage when the views of this House would be available. Section 3 of the 1911 Act provides that the Speaker's certificate shall be conclusive for all purposes and shall not be questioned in any court of law. I am aware that while there has been one case (Annisminic v Foreign Compensation Commission) where the courts have held that such a clause did not prohibit all judicial intervention, I am confident that they would not seek to review the Speaker's certificate.
I now turn briefly to the other provisions of Clause 2 of the Bill which are, I hope, largely self-explanatory. The exclusions in Section 2(1) of the 1911 Act concerning Money Bills and Bills containing provisions for extending the life of Parliament are removed, but reinserted by paragraphs (a) and (e). This has been done in order to provide a more intelligible lay-out. If there are about seven exceptions in a sentence, one cannot understand what it is all about. Paragraph (b) entrenches this House's constitution and powers, subject, of course, to the omnipotence of the Sovereign Parliament. Paragraph (d) is designed to prevent some ingenious soul seeking to unravel all the protective provisions of this Bill by using the Parliament Act procedure to amend this Bill if it becomes law or to amend the 1911 Act.
As I said at the beginning of my remarks, I stress that this Bill is designed to remove doubts as to the past and to avoid doubts for the future. It is designed to avoid a collision between the courts and the other place. I commend this modest, but constitutionally very important, Bill to the House.
Lord Strathclyde: My Lords, we should naturally be indebted to the noble and learned Lord for having raised this issue. However, this is the second time he has raised it. He published a Bill at the end of the previous Session which has now been resurrected with some amendments in the measure before us.
It is ironic that I do not think we would have discussed this matter if it had not been for the fact that since 1997 the Government have either used, or threatened to use, the Parliament Act as frequently as they have done. That action has led to this debate.
Why is this occasion so important? It is because this Bill goes to the very heart of the issue of bicameral government in our parliamentary system. There is no point in an upper Chamber if the executive dominating the other place is not prepared to listen to it and sometimes change its mind.
A century ago this issue would have grasped the attention of political commentators, academics, newspaper editors and, indeed, the general public. But, so anaesthetised do we seem to be by the daily trivia of government spin, that, until this week, the matter has barely broken the surface. Now, thanks partly to the initiative of the noble and learned Lord, Lord Donaldson, and partly to the threats of the Government over the Hunting Bill, that is beginning to change. Only this week those of us who read all the papers will have seen major pieces by, for example, Hugo Young, Peter Riddell, Donald Macintyre and Paul Routledge. These are not House of Lords "groupies" or, indeed, fanatical hunters. They are people who care about liberty. They are disturbed by the growing tendency of this Government to use, or
But still many people seem too ready to take the Government on trust with regard to the constitution. That is the very area where, if I may say so, they have shown themselves least worthy of such trust. Of course, I do not throw that charge at the noble and learned Lord the Attorney-General but at the people in the heart of the command and control centre inside No 10. If nothing else, I hope that the Bill, introduced by such an authority as the noble and learned Lord, Lord Donaldson of Lymington, will open more people's eyes to the risks of the executive exerting untrammelled power to override this House.
Let me come directly to Clause 1 of the Bill. I am sure that the noble and learned Lord, Lord Donaldson, is right to wish to clarify the position on the authority of the 1949 Act. During the passage of the House of Lords Act 1999 I was approached by a number of people, including some Members of this House. They referred me to the constitutional guidance of a number of authorities, including Sir William Wade, Professor Zellick and others. As I understood it, they said that law made by using the Parliament Act 1949 was unsafe law. They suggested--and the noble and learned Lord suggested it again--that specifically to use the 1949 Act to enable another place to impose radical change on this House unilaterally was invalid. They asked me to urge your Lordships to take the House of Lords Bill (as it then was) through a two-year battle and force use of the Parliament Act so that its validity could be tested in the courts.
I am no lawyer and I recognise that there are conflicting opinions on this point. But I felt that there was some merit in those arguments. I saw a case for testing that opinion in the courts. But, as is now widely known, I decided not to pursue that option, and to recommend to my colleagues that we did not do so. And why? At what cost would that have been to the standing of this House? We would have had years of conflict in Parliament--years in which the motives of your Lordships' House for resisting change would have been traduced by the Government and their spin doctors.
That was not the right route then, but it does not mean that the law does not need clarification. And it does not mean that if the Government continue to use these Acts--as twice they have; as they plan to do on jury trial, and threaten to do on hunting--that someone else may not challenge the validity of the law in the courts. That would cause constitutional confusion. If that were to happen, it is a problem the Government would have brought on their own head by using what was intended as a constitutional nuclear weapon as a new Labour convenience. Distasteful though some measures that would be confirmed by this Bill are, I therefore urge the Government to support the line that the noble and learned Lord suggests.
I turn now to Clause 2 which clarifies and toughens restrictions on the use of the Parliament Acts. At the very least, this is an issue which merits urgent discussion. First, it entrenches what has been understood to be the position: that the Parliament Acts could not be used to pass a Bill to extend the life of a Parliament beyond five years. Can there be anyone in your Lordships' House who would not agree that that is a thoroughly sensible and prudent provision?
Secondly, it would provide that the Parliament Acts could not be used to amend the Parliament Acts, or, indeed, this Bill. As the noble and learned Lord explained, the 1911 Act was used to carry the 1949 Act, which is the origin of the doubt that the noble and learned Lord identified. Given that it is unlikely that any executive would want to impose additional powers on an unwilling House of Lords, that the Wakeham Commission was against any change to the Parliament Acts to weaken the powers of this House, and that we on the Conservative Benches want a stronger, not a weaker, Parliament, I support the proposals of the noble and learned Lord on this point.
None of those issues to which the Government have applied, or have threatened to apply, the Parliament Act was in the Labour Party's manifesto. None of them is central to the Government's programme. None of them is essential to the safety and well-being of the realm. This Government have moved use of the Parliament Act on to a new plane. That is why the noble and learned Lord is so right to lay these issues before us.
I look forward to debating the specific details of Clause 2 in Committee, if we reach that stage. There are issues to tease out. What, for example, comprises full discussion of a Bill? Should that have included discussion of this House's amendments to the sexual offences Bill, for example? I think that it probably should, but that needs to be clarified. But there is no doubt that the noble and learned Lord has accurately identified a danger, a creeping and worrying presidentialism in the making in which Parliament is expected to acquiesce, not in the small print of the manifesto but in the mood and convenience of the hour, or else be rolled over. I believe that we must find a way to deal with this.
My party in government would not be afraid to accept the consequences of a stronger Parliament. I trust that the noble and learned Lord the Attorney-General will agree with me. I suspect that he will be tempted to tell the House that all this must wait until a stage two reform of this House is in place. We have not heard that argument from the Government in the case of the Neill inquiry, procedural change, or as regards the new arrangements for appointing Cross-Benchers.
I hope that the noble and learned Lord the Attorney-General will not put forward that argument. If he does, we should reject it. The case for safeguarding Parliament against the abuse of power is made not on what might happen in the future but on what the Government have done and are threatening to do. The danger is clear and it is present. We should act now. I hope that the Government will support the motives and principles underlying the Bill. I congratulate the noble and learned Lord on bringing forward the Bill and very much look forward to debating it in detail.
Basically, the issue is not simply the relationship between the two Houses of Parliament, to which the noble Lord the Leader of the Opposition referred, but the proper constraints which can be imposed in the 21st century upon the unbridled will of the House of Commons--what is appropriate and what is not. That is a bigger issue even than the scope of the Bill.
Having listened to the noble and learned Lord, I find no difficulty in following his guidance and advice on Clause 1 of the Bill. If there is doubt, anxiety and uncertainty, if we do not want to be faced with unnecessary challenges to future legislation under the 1949 Parliament Act, let us clarify. I believe that that is virtually uncontroversial. However, in Clause 2 we are on to the big stuff: we are at the very heart and nature of the distribution of powers between the two Chambers, and more widely. That is the issue on which I wish to comment.The Bill reaffirms the constraints that we are accustomed to, including the provision that this House has only one month to deal with money
There is also one clear limitation on the elected Chamber--it cannot, on its own, extend the life of a Parliament. That is crucial to our democracy, because even the elected Chamber has to have constraints imposed on it. That is the great precedent. I think that I am right in recalling that, during the war, the elected Parliament was renewed with the consent of the Lords, for perfectly sensible reasons, given the great crisis that our nation then faced.
Those two items are not currently under challenge. However, the three additional items that the noble and learned Lord wishes to bring into the special category are more difficult. In Clause 2(1)(b), he wants to exempt further legislation affecting the powers and constitution of this House from the normal procedures of the Parliament Act 1949. That implies an unacceptable rigidity about the role of the second Chamber. Nevertheless, there are reasons why unusual procedures should be resorted to when we are dealing with further changes to the constitution. I shall come back to that in a moment.
Paragraph (c) refers to Bills that have not been considered properly by the House of Commons. We can all recall a large number of candidates for that description in recent years. I am not terribly opposed to that proposal. The Speaker must be the only person who has the right to make such a declaration, acting impartially and doing his or her best in the interests of the House and the country.
Paragraph (d) would entrench the present situation too much, preventing the use of the normal provisions of the Parliament Act to amend or repeal this Bill or the 1911 and 1949 Acts. The only Bill that I am conscious of having been slightly involved in personally was the 1949 Act. We thought that it was right to reduce the delaying power of this House from two years to one. I can envisage circumstances in which further adjustment might be needed. I should not like those Acts to be wholly exempted from the procedures of change, which ultimately assert the authority of the elected Chamber.
The essence is to have a safeguard against the misuse or abuse of power in the House of Commons. In the famous agreement not to extend its life over more than five years, we have accepted that that is a danger. We are entitled to give that serious consideration. I am not sure the Bill's proposals are best devised for achieving the noble and learned Lord's aim. Our constitutional defences lack a way of differentiating the procedures that we have adopted under the 1911 and 1949 Acts from what might be called ordinary legislation--I think that the noble and learned Lord called it "substantive" legislation. I have no objection to that, because, however distasteful the use of the 1949 Act may be--I have voted against one or two of the more recent uses of that power--it is possible for ordinary
However, surely there must be a distinction between Acts that can be repealed and other major decisions by the House of Commons that could affect the structure of our Parliament and our constitution or--noble Lords may be expecting me to make this point--the rights of our people in the transfer of their powers from Parliament to foreign institutions. That is the greatest challenge that we face today. How can we go on being a sovereign Parliament in either House when we are constantly bombarded with legislation devised by officials in a foreign country and approved generally by the majority votes of a group of foreign Ministers? That is very serious. We have to find new constitutional protections.
Referendums have been developed gradually as a protection over the past few years, but they have not been brought to centre stage. That is the third element of democracy: we have the Commons and the Lords, but the ultimate authority and sovereignty must rest with the people. Society today is very different from that at the beginning of our democracy, or even a century ago. With the availability of mass communications, television, radio and the Internet, we have a much more educated population than we had before, despite certain failings. If we believe in democracy, more basic decisions must be endorsed by the people.
I disagree with the thrust of the Bill on that. The noble and learned Lord thinks that big issues--although he did not touch on the last one that I mentioned--should be dealt with by writing exemptions or restrictions on the Commons in a revised Parliament Act. That may be so. I am not happy that constitutional Bills should go through in the same way as some of the ordinary, substantive legislation to which the noble and learned Lord referred. There is a lacuna here. The House of Commons ought not to be easily able to make constitutional changes, as distinct from other changes, which, although we may find them disagreeable, we know that we can repeal.
We need to find a defence against those constitutional changes which alter the whole structure of the game--the practice of parliamentary democracy. It is not good enough that that should still be part of run-of-the-mill legislation. Therefore, I urge that further consideration be given to the matter. It will not be easy to rectify it.
The House will be grateful to the noble and learned Lord, Lord Donaldson of Lymington, for his masterly exposition. Having appeared before him in all his judicial capacities at the Bar, fortunately I agree with his erudite construction in relation to very difficult matters. If I did not, I would not presume to say so.
One purpose of the Bill, in Clause 2, is to amend the Parliament Acts and to seek to restore a delay of three Sessions and two years under the 1911 Act before another place--
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