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Viscount Cranborne: 1945!

Earl Ferrers: My Lords, I beg my noble friend's pardon. If he had just kept quiet a little longer, I would have said that, but I do so on his prompting.

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The Salisbury convention has always been treated with respect and dignity and great efforts have been made--with success--to ensure that it is not infringed or tampered with. As your Lordships know, it was introduced first by the grandfather of my noble friend Lord Cranborne when the House of Lords was a very different place from that which it now is. Your Lordships' House then consisted mostly of hereditary Peers, the sons of their fathers, most of whom, but not all, were Conservatives. Some new Labour hereditary Peers were created, but for some extraordinary reason their sons usually became Conservatives. In those days there were no life Peers and no women Peers. So, however hard the powers that be tried to tip the balance of the House away from being predominantly Conservative, like a gonk it always came back upright again. That caused complications.

It was in that scenario that the late Lord Salisbury, with the late Lord Addison, devised the Salisbury/Addison convention, which states that if a Bill is introduced by a government which has been foreshadowed in the manifesto, the government are deemed to have a mandate for the Bill and the House of Lords should not oppose a Second Reading, nor put down wrecking amendments. That has, as we all know, worked exceedingly well. But the question which the noble and learned Lord's Motion suggests is: should that principle still continue? After all, in the days of the inception of the Salisbury/Addison convention, the House of Lords was a largely hereditary House, largely Conservative, with some Bishops and some Law Lords. We now have life Peeresses or life Peers and women Peers. The majority of the hereditary Peers have been vaporised.

The composition of the House of Lords is--and let us not forget it--a composition which is exactly what the Government wanted. They said that they wanted all hereditary Peers to go--"It is in the manifesto", they said. All was set to get rid of all hereditary Peers. Then the Government changed their mind and said, "No, we want to retain 100". So the engines were put into reverse and 100 hereditary Peers were retained. The House of Lords is, therefore, now a House the composition of which is exactly what the Government wanted and what the Government chose.

Someone said to me yesterday, after we had the debate on the possibility of changing the Wednesday debate to a Thursday, "Of course, you would be against any change". I was rather miffed by that remark, particularly as I voted with the majority. I replied, "I am not against change, I am in favour of good change". Like the noble and learned Lord, Lord Simon of Glaisdale, I question whether now is not the time for change.

All the speakers in the debate, other than the noble Lord, Lord Desai, have, I think, inferred that the Salisbury convention is good and should be kept. I could see the antennae of the noble and learned Lord the Attorney-General bristling against such reaction. I am fascinated by that. I shall look forward to the noble and learned Lord agreeing with me when he replies to the debate. He is a great moderniser. He would change anything, whether it moved or did not move, provided

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that it constituted a change and provided also that it did not involve taking on the parliamentary draftsmen on anything so fundamental as changing an "a" to an "an". I came across that on the House of Lords Bill when I tabled an amendment to refer to an hereditary Peer rather than to a hereditary Peer. All the powers of the noble and learned Lord came to the fore. He said that my amendment was completely wrong because the parliamentary draftsmen had said so. Therefore, one can alter anything other than matters on which the parliamentary draftsmen have made a pronouncement, even when that is a matter of adding an "n". I do not think that that amendment was too much for the noble and learned Lord's intellectual powers but I think that it may have been too much for his gladiatorial powers.

I am therefore excited at the prospect of having the noble and learned Lord on my side and on the side also of the noble Lord, Lord Desai. I can assure him that that is more comfortable than having him against us. The real and simple point is that if the House has changed so much, is it right now to keep the regulations and practices which were appropriate for a bygone era when the House and its composition were totally different? If the House is now--to use that awful phrase which the noble Baroness the Leader of the House used--more legitimate and more authoritative, do the government of the day need to be protected from the forces which are no longer here?

I can see the argument. I shall wait with fascination to hear it trip off the tongue of the noble and learned Lord; namely, that if a government had just been elected it would be a bore to see the House of Lords throw out a Bill which had been in the manifesto. I can understand that but I doubt that it would happen all that often.

But if the House of Lords is to be, as the noble Baroness the Leader of the House told us, a check on the executive, should it not be given the freedom to do that? It is, of course, a democratic fallacy--I agree with the noble Lord, Lord Desai, on this--that anyone who votes for a candidate of a political party accepts, holus-bolus, everything that is in the manifesto of that party, which almost certainly is never read.

There is an argument that the Salisbury convention has served the House and the Parliament well, so let us leave it alone. The noble and learned Lord might think that that is a good old Conservative argument. But I am beginning to think that there is a greater argument; namely, that times have changed, conditions have changed, the composition of the House has changed and the time has come for that particular convention to change too.

4.27 p.m.

Lord Campbell of Alloway: My Lords, the House will be grateful to the Cross Benches and, indeed, to the noble and learned Lord for having introduced this timely debate. Surely the question is whether the recommendation of the Royal Commission that some new consensual arrangement should be devised to re-establish practical working relationships between the

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two Houses without amendment of the Parliament Acts should be adopted, or whether some statutory provision is to be imposed to debilitate the delaying power of your Lordships' House.

As the noble and learned Lord, Lord Simon of Glaisdale, said, abuse of the Parliament Acts can be redressed by a self-denying ordinance. Albeit that we debate under the long shadow cast by stage two, as heralded by the White Paper, the electorate is surely entitled to know the answer of each political party to the question that has been put either in the manifesto or in a perfectly clear statement of policy in the election campaign.

I only intend to refer to two recent developments: achievement of parity voting potential and the routine resort, or threat of resort, to secure Royal Assent of government Bills under the Parliament Acts (whether mandated or not) which has generated a form of resistance in this House not only in the manner of speeches but also in a new dimension of insistence which has to be addressed by the spirit of the doctrine--the approach of Lord Cranborne--not by the convention as such.

The achievement of parity voting potential constitutes a fundamental change of circumstances which deprives the Cranborne convention as such of any justification today. The routine resort to the Parliament Acts is said to have arisen on account of a single example--the War Crimes Act--on a non-mandated Bill. But the fact of the matter is that the Cranborne convention, which related only to mandated Bills, was observed from 1911 until the advent of this Administration. In any event I believe that this Administration would have extended it to non-mandated Bills. It is just unfortunate that the single example should have been used as a convenient precedent.

The purpose and substance of the Cranborne convention no longer exists, but the spirit of the doctrine was no more than a self-denying ordinance. As Lord Shackleton said in the bench-mark debate of 19th May 1993,

    "Lord Salisbury produced a solution that made it possible for this House to function ... as well as it could under difficult circumstances ... is not recorded officially anywhere".--[Official Report, 19/5/93; col. 1786.]

The convention has always been implemented by a series of ad hoc arrangements on government mandated Bills. The Royal Commission's recommendation 4.21/4.35 favours an updated version of the Cranborne convention--it calls it the Salisbury convention--which would represent a new balance of political authority as between the two Houses and reconsideration of the mandate doctrine. As was pointed out by Lord Rippon of Hexham in the bench-mark debate, manifestos are long, turgid and rarely read by the electorate; and the manifesto doctrine should apply to policy which has been made perfectly clear at a general election.

What kind of new arrangement can be devised by consensus in the interests of the orderly conduct of the practical working of this House and the retaining of comity as between the two Houses? It is by convention,

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not by codified and defined amendments to the Parliament Acts which would import inflexibility and denigrate the ethos of independence. Is it not the approach of the Cranborne doctrine (in other difficult circumstances) which is of commanding fundamental importance? Is it not the only approach compatible with our largely unwritten constitution for bicameral government under the Queen in Parliament?

Perhaps the acknowledged function in a new form of convention for the House to delay Bills by rejection or amendment where the nation is substantially divided should be expressly reaffirmed. Perhaps on Bills which substantially affect the constitution--here I have to declare an interest--it should be for Parliament and not the government to decide whether there should be a referendum. Perhaps the sovereignty of each House over its own rules and procedures should be firmly entrenched--in so far as one can entrench anything under our constitution. Perhaps there should be some reappraisal of the exercise of our right to insist. Perhaps some accommodation could be had enabling the government, save in exceptional circumstances, to have their business irrespective of any mandate at a general election. I take on board much of what was said by the noble Lord, Lord Peston, in that regard. But I also take on board the views expressed by the noble Lord, Lord Dahrendorf, concerning the mandate. With respect to the House, what he said seems entirely right.

4.35 p.m.

Lord Barnett: My Lords, I begin by adding my congratulations to the noble and learned Lord, Lord Simon of Glaisdale, on introducing such an important debate. There would obviously have been many more Members present if the debate had taken place on a Thursday. We shall hear from all the parliamentary leaders in this House. I hope, therefore, that we shall have some answers. When I refer to "leaders" I include potential leaders.

There has been little constitutional change; I am sure that some hereditary Peers may not agree. We had what might be called the Cranborne deal--a deal between the noble Viscount and the Lord Chancellor. The noble Viscount did very well to get that deal. He did so well that he was sacked by the leader of his party.

We are assured that it is a slightly more legitimate House--but only slightly. There is still not real reform. I am delighted to note the agreement of the noble Viscount, Lord Cranborne. The assumption is that we shall have real reform. I am delighted to see that the noble Lord, Lord Strathclyde, agrees. I await his speech with great interest.

I speak briefly as I have spoken often on this issue. I turn to the two main issues: composition and powers. On composition, I understand that what the Government have in mind--as I am sure we shall be told--will be based largely on Wakeham but with perhaps an even smaller number of elected Peers. I want to make this clear, as have other noble Lords. I agree strongly with the noble Lord, Lord Norton. I

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should be utterly opposed to any smaller number of elected Peers in your Lordships' House. A hybrid House would not be helpful to anyone. I hope and believe--the Government should be so aware--that if such legislation were brought before us it would be opposed strongly from all sides of your Lordships' House

One has only to consider the matter to realise that it is something of a nonsense. My noble friend Lord Peston referred to this. How would this small number of Peers be elected? How would it be done? Would they represent constituencies or regions? Would election be by the PR system? Would they be independent Peers; and, if so, how? Would they stop political parties putting up candidates?

Another important factor is the size of your Lordships' House. As at 15th January this year there were 691 Members of your Lordships' House. Under the deal agreed by the noble Viscount, Lord Cranborne, there could be another 32 Labour Peers. That would take the figure to well over 700. There will be a few new independent Peers. We already have more than 160 Cross-Bench Peers. We shall have some elected Peers. So we may have nearly 800 Members of your Lordships' House. I hope that your Lordships will agree with me that to proceed along those lines would be raving mad. Perhaps we could have some voluntary retirement as The Times suggested. I am not sure how to describe what the noble Lord, Lord Strathclyde, implies by his action: that for Members to retire voluntarily could be well paid! We are assured by the Leader of the House that it is not true.

Perhaps there could be not voluntary but compulsory retirement. Rarely do anywhere near 700 Members of your Lordships' House vote. In the major and very good debate on Monday just over 300 voted. I know that there will have been some genuine abstentions, but we very rarely have more than 400 voting. Perhaps we should have some voluntary or compulsory retirement. I am not sure whether 75 is an appropriate age--perhaps it should even be a little younger. That would mean losing some important Members of your Lordships' House. We heard from the noble Lord, Lord Roll of Ipsden, earlier, and there would be many others. I certainly would not want to lose the noble and learned Lord, Lord Simon of Glaisdale. The real issue of composition has not been considered seriously.

I reiterate what a number of noble Lords have said about powers. It is vital that real powers are given to a second Chamber, if only to provide a check on what the noble and learned Lord, Lord Hailsham, described as the elected dictatorship. We have that now in another place, with a government majority of more than 170. The noble Lord, Lord Pym, was sacked for daring to suggest such a thing to the noble Baroness, Lady Thatcher.

Although an elected government will have their way in the main--and so they should--surely we must all accept the right of a second Chamber to revise and, if necessary, seriously work to delay legislation introduced by a government with a substantial

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majority in another place and to ask the other place to think again--or, as the noble Viscount, Lord Cranborne, said, to deter a government from getting away with it.

Reference has been made to the Salisbury/Addison convention. That was a deal. The noble Viscount's ancestors seem to have been good at striking deals. They struck one with Lord Addison and stopped him calling it the Addison convention. The problem is that it is based on manifestos. My noble friend Lord Desai said that he had not often read the manifesto. In many years of canvassing on the doorsteps, I have not yet found anyone who had read a manifesto of any political party, yet the Salisbury convention is primarily based on a manifesto that nobody has read. The noble Viscount, Lord Cranborne, likes what he calls the "flexibility" of the convention, although he conceded in a debate on 7th February last year that there were,

    "some doubts as to what comprises its detail".--[Official Report, 7/2/00; col. 394.]

The noble Lord, Lord Strathclyde, said in a Politeia lecture that the convention needed redefining. The noble Lord, Lord Wakeham, said in his report that the new House should pragmatically consider changes that might be needed, with a new convention. Even some real experts such as Dicey, Jennings or some of the experts in your Lordships' House cannot agree precisely on what the Salisbury convention means. Even the grandson does not really know what it means.

The convention is very uncertain. I prefer statutory certainty. I thought that the noble Earl, Lord Ferrers, agreed with me on that, although I doubt it. I do not want to provoke him, but he certainly seems to be in favour of some change. I hope that my noble friend the Minister will tell us that the Government's position is that in a future House, reformed under a new Labour Government, we shall have certainty.

In conclusion, I have some questions for the leaders who are to reply to the debate. Do they agree with the Wakeham commission that there should be a small number of elected Peers in a reformed House, which presumably would number nearly 800 in total? Will existing Peers have the right to voluntary retirement, as has been suggested? Will there be any reduction in the real powers of a second Chamber? I hope not. As has been said, a government with a majority in another place should have the right to get their business through generally, but that does not mean that we should not have powers to say and do something about it. Will all that be in a manifesto, so that we can base any new Salisbury convention on what is said in that manifesto?

I accept the need for a second Chamber and its vital role of providing checks and balances on the elected dictatorship in another place. I hope that we shall always have such a Chamber.

4.45 p.m.

Lord Rees: My Lords, I add my thanks to the noble and learned Lord, Lord Simon, who introduced the

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debate with impeccable timing one week after the noble and learned Lord, Lord Donaldson, enabled us to debate the Parliament Acts. Today we have concentrated more on what we must learn to call the Salisbury/Addison convention. I am sorry that time did not permit the noble Viscount, the present Lord Cranborne, to tell us a little more about the development of the thinking of his distinguished ancestor, the Prime Minister, on the issue in the 19th century and about the precise circumstances in which the convention was negotiated between his grandfather and Lord Addison. Perhaps it should more properly be called a pragmatic understanding that has stood the test of time. Given how long it has endured and its tacit, if not explicit, acceptance by all concerned, it has achieved the patina of a convention. There is some merit in its perpetuation, provided that it is recognised that, at least at the margins, it must adjust to changing circumstances. In extreme situations, it may need to be set aside. That cannot be done with legislation.

The convention, or understanding, rests on one or more fictions. The first is that the manifesto of the majority party in the other place must be treated as having received in its entirety the imprimatur of the electorate. The second is that, throughout its period in office, the majority party, presumably by its continued communion with the electorate, has achieved a legitimacy denied to other participants in the legislative process. A moment's reflection will show that neither proposition can be accepted without massive qualification. I see no reason why a second Chamber, as an institution, should not be accorded a measure of legitimacy acquired by time and the successful discharge of its functions. I like to think that the current House might qualify on that basis.

Be that as it may, the real question that the Salisbury/Addison convention endeavoured to address, with considerable success over many years, concerns the proper balance between the elected and the non-elected Chamber. We have been told by members of the Government in this Parliament that we are a subordinate House--sometimes they flinch from putting it quite so baldly to us, at least in this Chamber--and that we are a revising House. The House can provide a critically important constitutional role.

Majorities in the other place come and go, sometimes rather rapidly. This House, however composed, continues. We have a special duty to maintain the constitution and safeguard its working. The Salisbury/Addison convention does not deal adequately with that.

It may, for example, be our duty to give the electorate a chance to express a view on measures of deep constitutional significance emanating from the other place. In a sense, that thinking underlies some of the provisions of the Parliament Act 1911. I believe that the respectable argument which should be put forward from the Conservative Benches is that the electorate should be given greater opportunity to reflect on the constitutional implications.

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I turn next to our revising role, which has been acknowledged--if in a rather patronising way, I am bound to say--by the Government. I acknowledge that the detail of legislation which is conceded to us may be important and that all too often neither the government in the other place nor the other place as a whole have much time to reflect on detail. An absurd position arose during the passage of one Bill when the Government tabled more amendments than the Opposition.

There has been a considerable increase in the number of guillotine Motions, by convention in the past resorted to sparingly, so that consideration of parts--perhaps important parts--of a Bill often have not been scrutinised before being received in this House.

Then there is the unattractive spectacle of Divisions taking place some days after the debates to which they relate. Of course, the procedures of the other place are not for us to debate. However, the revising role, which is ours, must take some account of the effectiveness of the scrutiny to which measures have been subject before they reach us. In that regard, we should give more attention to, for example, the details of finance Bills. I believe that that point was touched on by the noble Lord, Lord Desai, and my noble friend Lord Campbell of Alloway. I entirely agree, recognising of course that governments must be permitted to get their finance Bills in due time.

I hope that all those points will suggest that there is a busy and important role for us in this House and that anything less will weaken the control that the legislature--both Houses--should have over the Executive and, ultimately, the bicameral basis on which our constitution depends.

4.52 p.m.

Lord Rodgers of Quarry Bank: My Lords, first, I add my thanks to the noble and learned Lord, Lord Simon of Glaisdale, not only for initiating the debate but for choosing such an opportune moment for it. My perceptions have been sharpened by the debate, which is welcome; but I must admit that it has also weakened my certainties, which is always uncomfortable. I would almost prefer to go away and think about what has been said than to contribute anything of my own.

Given all the global factors today, I agree very much with the noble Lord, Lord Peston, about the exaggerated belief by governments in their power. I am worried by what the noble Lords, Lord Peston and Lord Norton, said about a partially elected House possibly being the worst of all worlds. I agree with the noble Viscount, Lord Cranborne, about the need to rebalance the relations between this House and the other place, and I shall say a word or two further about that. And I agree very much with my noble friend Lord Dahrendorf and the noble Lords, Lord Desai and Lord Barnett, among others, about the doctrine of the mandate and, in particular, the role of manifestos, about which I shall also say a few words.

Indeed, I suppose that I am most worried--in that I am trembling on the brink of a loss of faith--about what the next stage of reform should be and when it

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should come about. However, I take it that on these occasions I do not have to speak with the authority of my party behind me but, rather, I can listen to what is said and judge it on its merits. My view is that we should wait for a while before further reform to see how the House settles down under its current arrangements. And I believe that we should spend much more time--this point is aimed at the Government--in seeking a consensus. When reform comes, it is more likely to be wise reform if it takes place in the second Session of the new Parliament and not in the first.

Meanwhile, I want to make some remarks about the question of the balance between the Lords and the Commons and also about the doctrine of the mandate. Initially, I believed that these would be mildly heretical remarks, tested against the conventional wisdom of the day. However, the conventional wisdom has been turned on its head, and now I find myself very much in support of--although, in some cases, perhaps a little beyond--views which have already been expressed.

I believe that in this House we all accept the description of the noble Lord, Lord Wakeham, that the Commons is the pre-eminent Chamber of Parliament. We refer in commonplace language to its primacy. However, primacy for the Commons arises from its evolution as a result of the extension of the franchise in 1832, 1867, 1884 and since. Its role, status and primacy stem from its elected and representative character, which earns it legitimacy, authority and respect.

The paradox which has been widely expressed is that much of the discussion about the future of the Salisbury doctrine before today stems from the fact that this House, as it now is, is, in the words of the Leader of the House, the noble Baroness, Lady Jay, more legitimate, more authoritative and more worthy of respect. In other words, the House of Commons has earned its primacy through change and through the advance of democracy, ultimately resulting in legitimacy. However, the argument now is that, because we are more legitimate, we should exercise less power. I do not believe that that is logical and I do not believe that we should accept it.

Indeed, I do not consider that the argument is about legitimacy at all; it is about the dominance of the House of Commons and about the fear of competition from this House. It is a conservative rather than a radical argument because, the more legitimate this House becomes, it is about either maintaining the status quo or redressing the balance. My fear is that the instinct behind this leans towards a unicameral system, with this House merely as an appendage of the kind that the noble Lord, Lord Desai, suggested.

The existing balance is not the only formula for constitutional peace in a democracy with a universal franchise. We all know that the United States has found a different method. That is a different system altogether and I would not argue in favour of its balance of power. However, the United States has an elected House of Representatives and Senate, and it is an effective parliamentary democracy by any standard.

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Therefore, it should not be axiomatic that, as this House becomes more legitimate or representative, in whatever way, its powers or the use of them should be in any way diminished. Indeed, I argue that they should be more often heeded and this House more often trusted.

I turn to the question of the doctrine of the mandate. That has always seemed to me to be deeply flawed, and I believe that there is a need to approach it with the greatest caution. It is flawed because it is constructed in circumstances which do not enable the government of the day--particularly a new government succeeding one of a different political character--to know what they will find. All governments coming into power for a first time open the books and find something different to what they expected. In those circumstances, it is wholly flawed to pursue a course which may now be the wrong one.

It is also the case that all governments are thrown off course by war or disaster or, for that matter, by changes in world oil prices. There again, it would be quite wrong for a government to pursue a course which was no longer relevant because circumstances were different. The duty of every government is to do what is best for the country.

Standing against what is best for the country, the manifesto is a relatively small thing. Indeed, essentially the manifesto is a convenience for political parties. It is helpful to party management because the leadership of the party is able to make its policies at a time when the leadership's views are most likely to be accepted. It enables the leadership to go its own way in its manifesto if it chooses, or to find a way to reconcile factions. That is the essential purpose of a manifesto, and it is irrelevant to the government of a country.

For all governments, the motto is, "Heads I win, tails you lose". "Heads I win" is true if a government implement their manifesto, and "Tails you lose" is true because a government can choose to depart from it, for a reason that they claim is good and sufficient.

There is no basis for a doctrine such as the Salisbury convention to rest on the doctrine of the mandate. No election has been fought and won on the basis of a manifesto--elections are fought and won according to the state of the country, the opposition and the leadership of the parties. Elections are often won despite a party's manifesto. The Labour Party won despite the unpopularity of nationalisation; the Conservatives won despite the fact that no one trusted them with the National Health Service; and the Liberal Democrats often get support from those who are not as committed as that party is to adopting a strong view on Britain's role in Europe.

It is not possible to claim that manifesto promises, especially those at the bottom of the pile, receive any meaningful approval. They may not have concerned the majority of voters at all. A referendum is not a referendum on each item contained in a party's policies.

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The helpful Library Notes referred to the remarks that Lord Salisbury made in 1964. He referred to the Salisbury doctrine as a "broad guiding role". That is exactly what it should be, and how we should approach it. We should do so in the light of the deeply flawed doctrine of the mandate, and exercise our own judgment about when it is, and when it is not, appropriate to carry out the letter of what it suggests.

My current fear is that the Government, after inadequate consultation, will put into their manifesto detailed proposals for the next stage of reform, including proposals as to the number of elected Members, and that they will leave only the nuts and bolts of parliamentary procedure to the cross-party committee of both Houses, which has been promised. They will claim that the doctrine of the mandate gives them the opportunity to carry out what they have put into that manifesto. I hope that my fear will not prove to be justified.

5.3 p.m.

Lord Strathclyde: My Lords, we are rightly indebted to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this debate. He is an example to us all for having brought the matter to our attention. He has always been a zealous defender of the rights of this House. Indeed, he is one of the most formidable parliamentarians of modern times.

The noble and learned Lord may be the last Member of this House to hold senior Treasury office and later to become a Law Lord. His is a unique constitutional voice.I hope that he will grace us with his presence for many years to come and is not lured into early retirement--we read about this in the press--by the bounty offered by the noble Baroness the Leader of House.

This debate is the second movement of a duet, of which the first part was played--very persuasively, I thought--by the noble and learned Lord, Lord Donaldson of Lymington, last Friday. When two distinguished former Law Lords touch on the same issues, I sit up and listen. Indeed, as a junior Minister, whenever I saw the noble and learned Lord even stirring, I knew that I had better sit up and listen; otherwise, I would be in trouble. I shall be interested to hear the reply of the noble and learned Lord the Attorney-General.

I hope today that the noble and learned Lord will be less dogmatic--he is at his least attractive when he is being dogmatic--than when he swatted away the noble and learned Lord, Lord Donaldson of Lymington. He declared then:

    "There is no ambiguity in the Parliament Acts which needs to be corrected".--[Official Report, 19/1/01; col. 1328.]

No, it was the former Master of the Rolls who needed to be corrected.

If only I could be as sure of anything as the Government have been on the constitution. Some might say that they have been too clever by half. New Labour has asserted that our well-tested constitution has no place in a modern Britain and that hereditary Peers are indefensible. The Human Rights Act 1998 is

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treated as the Holy Grail and closed lists for European elections are unchallengeable. Even if the noble and learned Lord the Attorney-General is so sure about those matters, will he accept that the most radical change in this House for 350 years casts at least some doubt on the relationship between this House and another place? That is the proposition that lies behind this debate, and I agree with it.

I shall not repeat what I said last Friday about the Parliament Acts. Suffice it to say that, like the noble and learned Lord, Lord Donaldson, I think that there is room for doubt about the validity of the Parliament Act 1949. The Government, by their ready resort to the use, and the threatened use, of the Parliament Acts, have moved those Acts on to a new plane. They have used them in relation to details that were not in a manifesto--they did so with closed lists. They also used the Parliament Acts on a moral issue to stop your Lordships' amendments being discussed in another place. They now threaten to use the Parliament Acts in relation to hunting and trial by jury. That unhealthy enthusiasm to press the constitutional nuclear button itself justifies this debate.

I turn to the Salisbury convention. It was born in the old Britain that New Labour set out to sweep away and in an entirely hereditary House which was wholly dominated by the Conservatives. It was a gentleman's agreement but it served us well. Indeed, it became, as my noble friend Lord Cranborne declared in 1996--he has been unduly modest about his role in this regard--a settled part of the old constitution. My noble friend was right--it was a long speech, but it was not a boring speech. That declaration ensured that major government business that was set before the people at a general election was not wilfully wrecked by this House. It was never intended to stop this House from improving legislation. It never envisaged that this House must bow down, like Pavlov's dogs--or, dare I say, like poodles--before another place on matters outside the manifesto, on details of legislation or on great moral issues, which should always be subject to a free vote.

However, by passing the House of Lords Act 1999 the Government tore up the old rules and deliberately altered the terms of trade between the two Houses. It is hard to argue that one must do away with the old House but keep the old conventions. The conventions that the Government seek to sweep away are those that act as checks and balances on executive power. The conventions that they want to keep are those that suit their purposes. However, in November 1999, New Labour brought into being a new House, backed by overwhelming majorities in both Houses. As the Jay doctrine put it, they created a House that would be "more legitimate", that would "carry more weight" and that would keep the "executive better held to account".

It has not always felt like that. When the noble and learned Lord the Attorney-General sums up, I hope that he will answer two specific questions. First, does he agree that on subjects such as NATS and trial by jury, in relation to which the Government tried to do what they pledged they would not do before the

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election, this House has an unfettered right to throw out the relevant legislation? Does he agree that no government should use the Parliament Acts in such circumstances?

Secondly, does the noble and learned Lord accept that using the Parliament Acts across two Parliaments, although allowed by Clause 2 of the 1911 Act, would break all constitutional practice since 1911? Every government at the end of every Parliament have dropped unfinished business and left it to the next Parliament to decide its course. Until the threats over hunting, I thought that that had become, by usage, an established part of our constitution.

Perhaps the Government thought that the 1999 Act would change nothing other than the names on the pegs downstairs. In a speech in the autumn of 1999, which was referred to by the noble Lord, Lord Barnett, I warned that that simply could not be the case because the Government were changing the constitutional ground. They could not expect change not to follow. The old certainties had gone and we cannot know where things will end. All the relevant factors--the powers, composition and functions of this House--are inextricably involved in the settlement that will evolve. That is why we have consistently argued that the Joint Committee of both Houses must look at composition as well. It would be extremely helpful if the noble and learned Lord the Attorney-General could tell us when that Joint Committee will be set up, because if he can do so, then the prediction made by the noble Lord, Lord Peston, that we are all wasting our time might, on this occasion, not be correct.

I do not believe that even this new House has the right to challenge the other place on Second Reading or by tabling wrecking amendments to core manifesto items of legislation. In a modern world, only an elected House could do that. But given the new composition of this House, the Salisbury convention deserves to be reviewed and this debate is part of that process.

The upper Chamber is no longer as it was in 1945 and the pace of politics itself has changed. Today, the global economy moves much faster than politicians imagine. It is difficult to reconcile an absolutist approach of total compliance by this House over five years with the modern world.

And I totally agreed with the noble Lords, Lord Dahrendorf and Lord Desai, and, in fact, almost every other noble Lord who spoke on this subject, when they referred to the status of manifestos. Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?

While the case for giving manifesto promises a relatively easy ride in the first few Sessions of a government's life is largely unassailable, subject only to Parliament's overriding duty to safeguard the constitution, it does not mean that that should automatically extend to the whole five years.

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In the view of the noble and learned Lord the Attorney-General, are there no limits to a manifesto promise or, indeed, non-manifesto proposals that this House can be made to accept? Does the noble and learned Lord think that the 1999 Act changed anything? Will New Labour observe the Salisbury convention as it understands it, exactly as agreed in the 1940s, when they come back into Opposition; or is its view that a new doctrine now applies, perhaps the one explained by the noble Baroness the Leader of the House on "Question Time" last week? On cloning, she implied that this House must not challenge the vote of the elected House. The noble Baroness then weakened her case by stating that she would vote differently from another place on hunting. Perhaps the doctrine applies to Members of the House but not to the Leader.

But be that as it may, what is the position as the noble and learned Lord now understands it? Do the Government believe that this House must invariably defer to a vote in the elected House? If that is the case, then Mr Blair expects far more of this House than Mr Attlee or Mr Wilson expected of the hereditary peerage. It shows less legitimacy, freedom and respect for the distinguished people who have been put in this place than was owed to the despised ranks of noble Dukes, Marquesses and Earls.

Surely the Government cannot seriously claim that the votes of this House must echo the votes of another place on every issue, under threat of the Parliament Acts. That way unicameralism lies. I was delighted to hear the noble Lord, Lord Rodgers of Quarry Bank. He too has spotted the dangers of that or, even possibly, the New Labour plot. Lurking behind unicameralism is a threat of a new presidentialism, with no effective containing power. That cannot be the way for Parliament.

I thank the noble and learned Lord, Lord Simon of Glaisdale, for initiating this important debate and I very much hope that the noble and learned Lord the Attorney-General will make it crystal clear that that is not the view of this Government, whatever the impression that has been given in the past.

5.14 p.m.

The Attorney-General (Lord Williams of Mostyn): My Lords, I thank all noble Lords who have taken part, but in particular I thank the noble and learned Lord, Lord Simon of Glaisdale, who, on this occasion and on these matters, has been our mentor, as so often in the past.

The noble Lord, Lord Strathclyde, said that 1945 was a different world. It was. It was a land of grinding poverty, gross inequality, no protection for women or minorities, inadequate education, no National Health Service, no Human Rights Act and vicious legal pursuit of those who had different sexual preferences from the alleged majority. So I am glad that we have moved on, and not all the work has been completed.

Quite a number of specific questions have been put to me and I shall do my very best to answer them in the 20 minutes only that I have.

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The constitutional arrangements that we have in our country, as I see them, depend on a respectful balance between the powers of both Houses and that adjective I contend to be of great importance. However, it is not, and cannot be, contended to be an equal balance. It is a balance, as has been recognised by all of your Lordships who have spoken, in which this House must ultimately defer to the Commons.

One of the specific questions that I was asked by the noble Lord, Lord Strathclyde, is whether this House has the unfettered right to overturn, for example, measures in relation to NATS or jury trials. The answer to that is to be found in the Parliament Acts and the answer is plainly: no. That is what the law of our constitution provides. Therefore, this House has, literally, the inability continually to foil the determined, settled will of the Commons. That is what the 1911 and 1949 Acts provide, and they are quite independent, in that connection, of the Salisbury convention.

Therefore, it is not a question of convention alone; it is enshrined in two statutes. The noble Lord and others referred to our debate on Friday on the Bill introduced by the noble and learned Lord, Lord Donaldson of Lymington. The purpose and entire consequence of the first part of the Bill--irony of all ironies to be savoured, bearing in mind what has been urged this evening--would have been to entrench absolutely the 1949 Parliament Act. My modest suggestion was that it was not needed because there is no ambiguity about the 1911 and 1949 Acts taken together. Whether or not I am right, the consequence of the Bill of the noble and learned Lord, Lord Donaldson, would simply have been to entrench absolutely, without any question of doubt, the power of the other place.

I am most grateful for the scrupulous, civil analysis of our constitutional arrangements which was put forward by the noble Lord, Lord Norton. The basis of the balance is the self-evident proposition that the Commons must be supreme because, as he said, of its periodic accountability to the electorate at an interval of not more than five years. I do not believe that any noble Lords addressed that simple proposition as he put it. I cannot think why that may have been.

It cannot be and it should not be an absolutist supremacy. Nevertheless, it is a supremacy that we need to recognise and in my case, for the reasons absolutely and clearly adumbrated by the noble Lord, Lord Norton, I applaud it. After all, the supremacy of the Commons must ultimately depend on the reflected virtue of their popular election. If your Lordships take a different view, let us hear it unambiguously because I have not heard it.

The basis of the Salisbury convention, therefore, does not change by virtue of any alteration in the composition of this House. That is the further question with which the noble Lord, Lord Strathclyde, asked me to deal.

Some of the descriptions of our arrangements which were put from various quarters did not, I think, recognise the true British nature of our constitution. I referred to the respectful balance but that balance does

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change subtly and sometimes quite imperceptibly according to time, according to occasion, according to topic.

I shall give one or two recent examples. The noble Lord, Lord Dahrendorf, referred to the matter. On Monday we had a most extraordinary debate. Whatever one's private views or whichever way one voted, it was a classic. I was forced to agree with someone in the lobby who said that the Commons could not have matched it. Casting my mind further, I do not believe that there is another legislature in the world--I am sorry to be unduly chauvinistic--that could match it.

The point about the quality of the debate and the fact that plainly some votes were altered by debate, and not by preconceived settled prejudice, is that we had it in our hands to destroy the regulatory scheme. The Minister made the position plain. No one was unaware of the seriousness of our power, but on that occasion we decided that, although we had the power and the authority, we would not exercise it because we considered the issues on the merits.

That is why I have tried to say to the House--I hope respectfully--that I despise no duke, I despise no marquess and at least one earl is my very good friend. That is also why these rather bald descriptions of what may or may not be done do not meet the spirit or practice of this House as it is at present or as it will become.

I turn to an alternative example, which came from the noble Viscount, Lord Cranborne, that demonstrates the opposite. He spoke of the deep respect that we give to the Delegated Powers and Deregulation Committee and its reports. Your Lordships will remember that recently on sentencing powers the committee strongly urged the House not to accept the form of a Bill that I was introducing, in part, concerned with sentencing provisions. I shall not go into the details as your Lordships know them. On that occasion, I said that I would pay particular attention to what your Lordships thought and, as is known, we went away and reconstructed the Bill. It was a government amendment, but it was a government amendment with virtue.

That is an example not of the power of this House, but of the authority of the argument and of the quality of that committee. However, we all know perfectly well that that committee is of recent origin. It has developed its own authority and not its own power; it has its own influence on the minds of your Lordships and on the way in which debates are carried out. I draw on those two examples only to suggest that some of the descriptions in absolute terms have been mistaken because they do not go to the living heart of this place.

I turn to another proposition from the noble Viscount with which I disagree. He urged the extension of post-legislative referendums. I believe that if one thinks that through one will consider that the consequence would be bad for both Houses because it would take away from the authority of Parliament. I believe that to be wrong.

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I do not believe that the Salisbury convention has fallen into disuse. What is it? It is a doctrine that has become accepted in constitutional circles so much so that it has come to be known as the "Salisbury convention". It has been raised in the language of politics to become a constitutional convention. That means that it is definitely part of our constitution. I certainly regard it as such and so does my party. In my view, it follows that it would be, in the words of a grandfather, "constitutionally wrong for any party or individual to suggest that, whatever the outcome of a general election, this convention would not hold".

Of course, that was not my grandfather but the grandfather of the noble Viscount. That is a quotation from the most interesting lecture that the noble Viscount delivered in 1996 in full expectation, first, of a general election and, secondly, it may have been--I have been reading John Major's excellent autobiography over Christmas--in the full knowledge of the likelihood of a Labour victory.

I turn to what was said about the manifesto. It seems that your Lordships despise manifestos and the doctrine of what I suppose I could call "implied acquiescence". The noble Lords, Lord Desai, Lord Barnett, Lord Rodgers, Lord Strathclyde and the noble Earl, Lord Ferrers, all seemed to be a little on the sniffy side in relation to manifestos. It reminded me of Mr Mervyn Griffith-Jones in the case of Lady Chatterley's Lover at the Old Bailey when he asked the jury whether that was the sort of material that they would want their servants or even their wives to read.

It may be that not everyone believes every dot and comma of every manifesto and it may be that I am the only person in your Lordships' House who can say with any shred of believability that I have indeed read the Labour Party manifesto. Of course, the election engages the public mind on perfectly known propositions. I suggest that whether people read manifestos or not is not really the point.

I turn to the sad state of the nation as exemplified by an hereditary Peer and an historian, the noble Earl, Lord Ferrers. He now seems to have taken to the revisionist and militant tendency. I believe I heard fall from his lips the fact that he actually wanted a change. I fell back in horror. Had I not been seated I would have fallen further.

The noble Earl and I have a good deal of regard for each other and fundamentally I do not believe that we disagree. I believe that we should maintain the Parliament Acts. If we have to look at the edges and the margins of the Salisbury convention let us do so. I do not believe in the unicameral system. The ability that we have, unsparingly exercised, is a powerful part of our constitution. But there are others.

If I may say so, generally it is foolish to overlook the other constituents of our constitution. We have a thriving free press that I am told sometimes brings about political consequences! We have the greatest Act of devolution of power from the central executive--namely, the Human Rights Act--that has occurred for the past 100 years. It is idle, because it is wrong and superficial, to say that we have a centralising

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Government. Devolution to Scotland, to Wales, and if our hopes are fulfilled, to Northern Ireland, under the overarch of the Human Rights Act, is the greatest constitutional agenda that we have been able to contemplate for 100 years. That is not tinkering with the constitution. That is willingly putting on the executive the yoke of scrutiny by the courts.

That reinforces my proposition that this is an organic constitution because we do things differently here. I am aware of the constitutional arrangements in the United States and I do not find them as perfect because there has to be an election every two years and a rolling Senate which means that no one does anything apart from fund raise and stand for election. With great respect I believe that our arrangements are better.

There were a few specific questions about retirement age. The only retirement age that could possibly be contemplated is one five years beyond any period at which I presently found myself! The noble Lord, Lord Strathclyde asked whether there can be voluntary retirement. It is available at the moment in the form of leave of absence. It is not enormously popular but it is there. Will there be a small number of elected Peers? Time and again the Leader has said that the Government accept the broad thrust of the recommendations of the Royal Commission chaired by the noble Lord, Lord Wakeham.

Essentially nothing has changed that requires any modification of the Parliament Acts. I shall be deeply unpopular for, as I have said on earlier occasions, allowing fact to intrude, but a curious point is how sparingly that power has been used. It has been used very rarely indeed: sometimes because tempers cool; sometimes because compromise is available; and sometimes because an election intervenes. It is constitutionally available and under the Parliament Acts therefore constitutionally proper for carry-overs to occur. Whether they do or not is not for me to speculate.

It is sometimes a pity that speeches of criticism in this House--and even some areas of this institution are capable of improvement; for instance, having debates on Thursdays--do not recognise what is brought about in this country. Even the raising of issues, quite vigorously and often with a good deal of expertise, changes the course of public debate. I am told that our colleagues at the other end pay attention to public debate, particularly during periods such as this. The fact that we do not win every vote does not mean that we do not have influence. Some of the comments about the future were unduly doom-laden and reminded me of some of the gloomier passages in The Pilgrim's Progress. But cheer up, my Lords, the pilgrims succeeded.

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