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Lord Donaldson of Lymington: My Lords, Clause 1 retains the timetable.

Lord Campbell of Alloway: My Lords, if the effect of Clause 1 is to retain the existing timetable, so be it. I apologise to the noble and learned Lord for having thought otherwise. However, the debate raises the question of the difficulties of securing Royal Assent to government Bills, whether or not mandated, and the application of the Salisbury Doctrine. In a sense, this debate raises the curtain on the debate which is to take place next Wednesday on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, and on the Parliamentary Referendum Bill, which has its Second Reading on the 31st of this month. Therefore, one must assume a consistency.

I am unable to support a proposal to amend the Parliament Acts. Indeed, I should prefer that resolution of these difficulties is not dealt with by legislation but, in a manner devised by Lord Salisbury, by new practical ad hoc arrangements which would include some self-denying ordinance as to insistence.

The other purpose of the Bill in Clause 1 raises matters which are of serious importance. The House is very much indebted to the noble and learned Lord for providing an occasion on which these matters can be discussed. It is true that the preamble to the 1911 Act envisaged amendment. However, I wholly agree with the noble and learned Lord that it did not envisage unicameral amendment, such as that introduced by the 1949 Act, no doubt to secure immediate enactment of nationalisation of the steel industry.

There was no express provision to confer unicameral amendment to the 1911 Act as distinct from any other enactment. It is not proposed to consider whether a provision could have arisen by a surrender of sovereignty or by usage. This Bill has the great merit of laying the ghosts of the Grove Academe which have haunted the validity of the 1949 Act. The ghosts will now be exorcised and laid to rest. That, on any showing, is the great merit of this Bill and it is a matter worthy of consideration not only of your Lordships' House but of another place.

With regard to Clause 2(b), I wonder whether the noble and learned Lord, Lord Donaldson of Lymington, would consider an extension beyond "powers" to include the "functions and composition" of this House. Only the other day in The Times one read of a proposal for a 70-year mandatory retirement age for Members of this House. That would be a form of retrospective legislation with which I would not

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suppose for one moment the noble and learned Lord, Lord Williams of Mostyn, would be happy, although he might be constrained to support it. However, the presumption that we all go "gaga" at 70 and are troublesome at that age could not arise for many years in the case of the noble and learned Lord.

One difficulty which has arisen is a point which I made on the fifth day of the Address on the gracious Speech. I said that I believed that routine resort to the Parliament Acts to achieve the passage of Bills to be an abuse of that procedure. In a way, that has started to engender a form of routine insistence which is not at all desirable.

I would not have considered that this Bill as such would have pre-empted stage two substantive reform. However, there is a case for suggesting that perhaps it should not take effect before it. Generally, the merits of this Bill are such that they fully justify that it should be read a second time.

11.59 a.m.

Lord Lucas: My Lords, I believe that our watchword in considering this Bill should be "respect". We should have respect for the constitutional position and democratic origins of the House of Commons. In some aspects, I do not believe that this Bill pays sufficient respect to the House of Commons. The House of Commons should have respect for our constitutional role. I believe that in their treatment of the Sexual Offences (Amendment) Act last year they showed insufficient respect for our role. They should have allowed the Bill to complete its passage in this House and dealt with it having had the benefit of our consideration. I hope that that precedent will not be repeated. We should all respect the constitution.

We should not let the Bill leave the House if it contains clauses that propose changes to our constitution. Those changes should come principally from the House of Commons. If they are to originate in this House, they should at least have the Government's agreement. I do not at all mind suggesting changes to the constitution. Potentially, many improvements could be made to the Parliament Acts. We might update the concept that lies behind Clause 2(b) of the 1911 Act, which was born out of conflict. We might examine the way in which conflict is resolved, with a fresh and more co-operative approach. That would ensure that, rather than the will of the Commons prevailing in a rather crude way, the best would be done for the Bill and the country, without incurring any extra delay. One could go on about possible improvements; we may have an opportunity to do so in Committee. We in this House should not pass Bills that change the constitution in such a manner if we cannot obtain the Government's agreement.

At its heart, the Bill does not do that. It starts by trying to avoid a conflict that the Government have set themselves on a course to meet. By applying the Parliament Act 1949 to the right to trial by jury, and, potentially, to the Hunting Bill, the Government will create for many people the right to judicial review of

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the 1949 Act. People will effectively be denied the right to trial by jury under the provisions of that Act. That appears to involve sufficient damage to apply for judicial review. Those who are deprived of the right to go fox-hunting will certainly feel the same.

Under those circumstances, it is highly undesirable for us to be riding into this enormous fence on a horse that does not have the ability to jump it. We should certainly take Clause 1 of the Bill extremely seriously and ensure that the 1949 Act remains a viable piece of legislation and that laws that are enacted under it cannot be questioned.

Some of the consequential rewriting in Clause 2 is also desirable. New paragraphs (a) and (e) merely repeat what was in previous legislation. New paragraph (d) should perhaps make it clear that the process for amending the 1911 Act must, in future, be a matter of consent. The provisions in Clause 1 and new paragraphs (a), (d) and (e) in Clause 2 would not in any way affect the constitution; they merely restate the constitution and underpin a piece of the foundations of our constitution that is beginning to feel shaky and which is likely to have a bulldozer run at it if we do not do something to reinforce it.

I have considerable concerns about new paragraphs (b) and (c) in Clause 2. The noble and learned Lord argued that Clause 2(b) is implicit in legislation that already exists. Yes, I share that argument, but it is extremely difficult to express it in the way in which the noble and learned Lord did. What is a,

    "provision to vary the constitution or powers of the House of Lords"?

Who is to make the judgment on what that is? With the Government's help, we might well devise something to clarify the situation. A procedure might be agreed with the Government that would make that possible. It would in effect make open what is implicit, as the noble and learned Lord said, in the 1911 Act. However, that needs to be agreed with the Government. We are also considering a position that was agreed in 1911, but which is really not acceptable now. It is not acceptable now for the House of Lords to have an absolute right to refuse to reform itself or for the House of Commons to have the absolute right to change anything about this country's constitution under the Parliament Acts.

I very much support the comments of the noble Lord, Lord Shore, on referendums. As the Commons slides more and more towards being an assembly rather than a parliament, it is important to get people's opinions on constitutional change through referendums. That might be an appropriate way to go. I am happy to discuss that with the Government, but I do not think that the Bill should contain a clause that would impose it on them.

I am very unhappy about Clause 2(c), which is an entirely new provision. Yes, I agree about the iniquity of what was done during the last Session. The House of Commons should show us the respect that we think is our due, and properly listen to the arguments we have made and the amendments we have agreed to. However, we in this House should not be trying to pass

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legislation regulating the way in which the House of Commons behaves. We can try to persuade, but we should not be trying to legislate.

The Bill has my support, if we can remove a couple of its provisions. I hope that it will enjoy the Government's support on the same basis. It would be extremely undesirable to allow the workings of Parliament to be questioned in the courts in the way that will inevitably happen if we do not pass a Bill such as this one.

12.6 p.m.

Lord Goodhart: My Lords, the noble and learned Lord, Lord Donaldson of Lymington, raised an interesting and important issue for debate, although it is possibly an issue that is more suitable, at this stage, for an academic seminar than a debate in your Lordships' House.

An issue of fundamental importance is involved. If the argument advanced by the noble and learned Lord is correct, four Acts would be invalid, or were not validly enacted. Among other consequences, that could have the result that Members of the European Parliament elected from the United Kingdom in 1999 were not validly elected and, at least theoretically, were not entitled to sit in the European Parliament. However, I accept, as the noble and learned Lord said, that there is a question about whether that issue is now capable of judicial review, because of the time that has passed.

I also recognise that in order to justify the Bill the noble and learned Lord does not have to show that his argument is correct; he has to show only that there is a significant chance that the Parliament Act 1949 and the legislation enacted under it were invalidly passed. If that chance exists, it is obviously common sense to take corrective action now.

The argument for the invalidity of the 1949 Act has strong academic support. Professor Sir William Wade, Professor Hood Phillips and Professor Zellick are all academic lawyers of the highest distinction. Indeed, Professor Wade was my director of studies for two years when I was an undergraduate at Trinity College, Cambridge. He is undoubtedly a brilliant lawyer and teacher. It is true that ultimately the decision will have to be taken by judges, not academics. The Bill, and the argument in favour of it, were moved by one of the United Kingdom's most distinguished judges in recent decades.

Why is it, then, that I remain unconvinced of the need for and desirability of the Bill? The real reason is that I believe that the whole of the argument rests on a narrow and untenable base; that is, the argument that Parliament does not have unfettered power to change the procedures by which it enacts statutes. Plainly, Parliament has the power to change its own composition and to exclude Members. It did so most recently in the House of Lords Act 1999, which excluded most hereditary Peers. It did so in 1917 by excluding a number of Peers who were found to have been fighting on the German side in the First World War. It did so by the Welsh Church Act 1914 which

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excluded from your Lordships' House bishops holding sees in Wales. That part is particularly significant because Sir William Wade suggests that a change in the composition of your Lordships' House cannot be brought about by a Bill passed under the Parliament Acts. The Welsh Church Act was passed under the Parliament Act 1911 and, if that argument is correct, then Welsh bishops are still entitled to sit in your Lordships' House.

More important, of course, even than the composition of your Lordships' House is the identity of the sovereign. By the Act of Settlement of 1700 Parliament conferred the Crown, in succession, on to Queen Anne when she succeeded King William III, on the Electress Sophia of Hanover and her heirs.

The identity of the sovereign plainly goes to the bedrock of the constitution. It is as significant, if not more significant, than any restriction of the powers of your Lordships' House. But there is no suggestion that the assent to legislation of a monarch who owes his or her Crown to the Act of Settlement is in any sense delegated legislation or that the Act of Settlement itself could not be changed by an Act of Parliament assented to by a sovereign who owes his or her Crown to the Act of Settlement itself.

The Parliament Act 1911 was passed by the full constitutional process of Lords, Commons and Royal Assent. The argument that this is delegated legislation depends on the conclusion that Parliament, despite its theoretically absolute sovereignty, cannot formally exclude a requirement for the consent of your Lordships to the legislation and that therefore the Parliament Act 1911 can be supported only by a constitutional fiction--it is plainly a fiction--that it was delegating its powers to the Crown and the House of Commons to the exclusion of the House of Lords.

Any conclusion that the legislation passed under the Parliament Act 1911 is in any sense delegated legislation is simply fanciful. If Parliament can change the descent of the Crown, why cannot it enable the Crown and the Commons to enact legislation having fully equal validity to legislation enacted by the normal processes? I am afraid that I see no room for the argument that Parliament cannot create an alternative process to the enactment of legislation in a way which gives legislation enacted under the new process equal validity with legislation passed under the old process, including power to amend the Act which created the new process.

It is true that the exclusion from the Parliament Act process of power to extend the life of Parliament was not entrenched in the sense that that power can itself be removed by legislation passed under the Parliament Act. Perhaps it should have been entrenched; there is a strong argument for that. I confess that I have not read the debates in 1910 and 1911 to see whether that issue was raised and, if so, why this particular power was not entrenched. I suspect that the probable reason is that, as the preamble makes clear, the Parliament Act was seen as an interim step leading shortly to a full revision of the composition and powers of your Lordships' House. I do not believe for one moment

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that those involved in the Parliament Act 1911 thought that Acts passed under it were in any sense second-class legislation.

Unlike the noble and learned Lord, Lord Donaldson, I believe that nothing in the Parliament Act 1911 suggests that it could not be used for a Bill to alter the composition and powers of the House of Lords. As I indicated, that was done once in the Welsh Church Act. I believe therefore that the Act is unnecessary because the argument that legislation passed under the Parliament Act is delegated legislation is simply not tenable.

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