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Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. I hope that I may add a further point, having raised the matter in the first place and having argued the case of Shah in the House of Lords about what is meant by ordinary residence. Will the Minister carefully consider the unnecessary complexities that would be introduced by bringing in residence or even ordinary residence? Will she also consider with her colleagues how undesirable it would look for the United Kingdom to have a different and narrower test than, for example, the Canadian test which seems to me a fair balance of argument and rather less wide-ranging than the New Zealand test? Could one consider the wider Commonwealth attitude taken in other common law countries in arriving at a workable solution to the problem? I greatly welcome what she said. What we are all trying to do is to find a workable test.

Baroness Scotland of Asthal: We shall, of course, consider that before tabling our own amendments. However, I reiterate that the concept of residence does not seem to have caused problems in relation to the War Crimes Act. No definition was provided there but it has worked well. For the moment that is the way we are thinking. I can certainly reassure the noble Lord that we have taken on board everything that has been said. That will be factored into the way in which we frame any amendment on Report.

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The important issue is that anyone thinking of coming to this country should know that we shall not be a haven for war criminals and that they will be subject to the full force of the law. That is the import of what we want to achieve.

Lord Archer of Sandwell: I am grateful to all noble Lords who have participated in the debate, particularly those who supported the amendment. The sole exception was the noble Lord, Lord Lamont. I was a little surprised to hear my noble friend Lady Scotland using precisely the argument which underlay all that the noble Lord said. I see him nod with satisfaction. I think that they are both wrong.

What the noble Lord said in so many words at the end of his intervention was that offences are better tried in the country where they are committed. Of course they are. That is not the issue. No one disputes that. What is important is that if they are not going to be tried there, they should be tried somewhere. Yet most of the offences with which we are concerned are not likely to be tried in the country where they are committed. The question then arises: how do we ensure that they are tried somewhere? With such horrific offences, it is vitally important that they should be tried.International opinion cries out for it. But, perhaps even more importantly, it is important that future potential victims should know that someone cares for them.

I am grateful to my noble friend for the consideration which the Government clearly have given to the matter. The Minister said that the concept of residence introduced an element of flexibility into what was proposed. That is precisely what worries some of us. You can be too flexible when you are dealing with the criminal law. But the noble Baroness has held out the hand of friendship and I can do no less than wait to see what she has in it. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 109 to 111 not moved.]

On Question, Whether Clause 51 shall stand part of the Bill?

Lord Lamont of Lerwick: Perhaps I may ask the Minister to clarify one point. I understand that the Bill widens the definition of the crime of genocide beyond that of the Act of 1969. I should like to know in what respect that happens. I ask for this reason. As has been said, genocide is the most horrible and terrible crime which canbe committed. However, in my experience it is a word which has become slightly debased by over-usage in other crimes. Even in legal circles, I have noticed the term "genocide" being, to my mind, used somewhat exaggeratedly. That is not to say that there were not other crimes involved, but I take the term "genocide" to mean the killing of a class of people. I should be interested to know in what way and why this definition--it is already being strained--is being widened.

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Baroness Scotland of Asthal: I hear what the noble Lord says. Genocide is fully set out in Article 6 of the Rome Statute. It provides that for the purpose of the statute genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethical, racial or religious group. It sets out five elements: killing members of the group; causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. The definition of the crime is the same and is clearly stated there.

Clause 51 agreed to.

Baroness Ramsay of Cartvale: I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage of the Bill begin again not before 8.55 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Social Security Contributions (Share Options) Bill

7.54 p.m.

Brought from the Commons; read a first time, and to be printed.

Constitutional Committee

7.55 p.m.

Lord Dean of Harptree rose to ask Her Majesty's Government whether they support the proposal for a Constitutional Committee in the House of Lords; and, if so, what they believe the role of such a committee would be.

The noble Lord said: My Lords, I am grateful to all noble Lords who will speak, in particular the noble Lord, Lord Carter, the Government Chief Whip who will reply, and my noble friend Lord Henley who will speak from the Opposition Front Bench

I warmly welcome the setting up of the Constitutional Committee which was approved by the House on 8th February. I wish it every success, and my noble friend Lord Norton of Louth, its chairman, and all members. I believe that this committee could be as important to the functioning of this House as the Delegated Powers and Deregulation Committee. It could give the House an early warning of constitutional matters in public Bills and how they should be dealt with.

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In this Parliament we have had a lot of Bills changing our constitution. That has convinced me that we need more effective parliamentary safeguards than exist at present. I remind noble Lords that the terms of reference of the committee are,

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

Those are comprehensive terms of reference. I imagine that there will not be too many public Bills which have significance for the constitution. It may well be that the committee will be able to give quite a lot of its time to the second part of its terms of reference; namely, to review the operation of the constitution.

I mention two separate points concerning the operation and work of the committee. The first is the use of the Parliament Acts. Since the first Parliament Act was put on the statute book in 1911 it has been rarely used. The fact that it was on the statute book proved enough. But in this Parliament it has been used on two or three occasions. It has been used on a matter of conscience where, by long tradition, both Houses have a free vote. I suggest to the House that this is contrary to the spirit of the Act. An unhappy impression has been created that there has been little or no attempt to listen to the views of your Lordships' House and to try to accommodate them. This cannot be good for Parliament or for the effective scrutiny of government. I believe that this attitude tends to undermine your Lordships' important role in trying to ensure that the checks and balances in our constitution are maintained.

In his debate on 24th January, the noble and learned Lord, Lord Simon of Glaisdale--I am delighted to see him in his place today--spoke about the abuse of the Parliament Acts. I suggest to your Lordships that he has unrivalled authority and that we should take seriously the comments he made. It may well be that this matter is too delicate, too controversial, for the Constitutional Committee to consider particularly in its early stages. However, I ask the Government to recognise that there is unease in many parts of the House about the way in which the Parliament Act has been used in this Parliament.

My second point concerns the relations between Westminster and the new devolved bodies in Scotland, Wales and Northern Ireland. That is a separate point that has not been raised in our recent debates on constitutional matters. There are concordats governing the conduct of Ministers in relation to the devolved Assemblies. I want to talk about the relations between the Parliaments, on which no view has yet been formed.

There will inevitably be differing views on policy matters. That is understandable. However, we should do our utmost to develop good relations between Westminster and the devolved Parliament and Assemblies and to try to avoid demarcation disputes. Your Lordships' House is eminently suited for that role. I call in aid the Wakeham Royal Commission and

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the Delegated Powers and Deregulation Committee. Recommendation 32 on page 65 of the Wakeham commission's report stated:

    "The reformed second chamber should consider establishing a committee to provide a focus for its consideration of issues raised by devolution, possibly as a further Sub-committee of the proposed Constitutional Committee".

In other words, it would be a devolution committee.

The Delegated Powers and Deregulation Committee produced a special report dated 24th November 2000, which referred to the procedural consequences of devolution and quoted written evidence to the Royal Commission. On pages 17 and 18, it stated:

    "The House of Lords should be addressing this issue now, separately from House of Lords reform. The issue is all the more pressing for the House of Lords as, unlike the House of Commons, the House of Lords has no obvious first port of call for relations with the Parliament and Assemblies. In our view, the House of Lords should consider this issue as a matter of high priority".

Those are powerful recommendations from two highly authoritative committees. I understand that no action has been taken so far on the issue. If so, that is disappointing. We are feeling our way. We are in uncharted territory and we need landmarks. It is not a question of big brother at Westminster telling little brothers what to do; it is a question of developing good working relationships between bodies that are independent of each other but need to work together for the good of the United Kingdom as a whole. I hope that the new Constitution Committee will be able to give a high priority to the issue. It may well also be an appropriate subject for the Liaison Committee. I hope that the Chief Whip will be able to answer my points.

8.4 p.m.

Lord Simon of Glaisdale: My Lords, the noble Lord, Lord Dean, brings exceptional experience and authority to the subject of the constitution. We are also indebted to him this evening because his Question relates to the establishment of an institution that has been lacking in our public life. That may have gone unnoticed because we have an unwritten constitution. A written constitution, particularly a federal constitution, almost inevitably demands a constitutional court or its equivalent.

On a number of occasions during the last Parliament, Cross-Benchers urged the Government to establish a Royal Commission on the constitution. Minister after Minister said that it was unnecessary, because everything in the constitutional garden was lovely. It never seemed to occur to them that an alternative government might follow that viewed the existing balance of the constitution with less enchantment. That has occurred.

On the eve of the last election, The Economist produced an extraordinary leading article. The Economist had been critical of the Conservative Government, but in the end it concluded, "Labour doesn't deserve it". Its reason was that in Mr Blair's,

    "one declared area of radicalism--constitutional reform--his ideas are half-baked".

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That was a remarkable judgment in the circumstances, but it proved to be true when we embarked on the proposed constitutional reforms. Perhaps the most remarkable aspect was one that has recently been raised again by the noble Lord, Lord Campbell of Alloway--the fact that we embarked on more than one referendum without thinking through what they involved. The referendums in Scotland and Wales went ahead with no consultation with the far more numerous citizens of England, who were affected, and without any thought as to who should frame the questions. They were framed by Parliament, but they were somewhat loaded.

I am encouraged to see so many members of the new committee attending the debate. No doubt it will consider issues such as the circumstances in which there should be a referendum, who should call it and who should frame the question. That is only a beginning of some of the questions.

The noble Lord, Lord Dean, has adverted to a number of questions which undoubtedly would fall to the consideration of the committee. However, in my respectful submission, there is one overriding and all-pervading question; namely, the balance of the constitution and whether our executive is increasingly aggrandizing. I say "increasingly" because it was already notable in the previous administration. What we have seen recently is what we saw before, but now it is more noticeable; namely, an attempt to talk up a practice into a convention and a convention into a rule of law when it suits the executive, as it practically always does.

I very much trust that the noble Lord, Lord Acton, who is present, will bear out to the committee the wisdom of his great-grandfather regarding the potential corruptibility of all power. Therefore, I very much welcome this question, which is now to be answered by the noble Lord the Chief Whip. I noted one or two other points, but the important ones have been introduced by the noble Lord, Lord Dean. Again, I particularly advert to the responsibility which exists in an unwritten constitution of relying on a balance of power rather than a separation of power, such as one sees in America. That is the responsibility to be addressed by the committee, whose establishment we welcome so much and whose membership commands our admiration.

8.12 p.m.

Lord Campbell of Alloway: My Lords, it is both daunting and a privilege to follow the noble and learned Lord. He is the acknowledged expert in your Lordships' House on constitutional affairs and was so long before I ever had the privilege of attending this House. The House will be much indebted to my noble friend Lord Dean for having offered this opportunity for debate on what may lie within the remit of the Constitution Committee.

Inevitably, what is said in this debate and what was said on 13th December on the fifth day of the debate on the gracious Speech, on 19th January on the

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Parliament Acts (Amendment) Bill, on 24th January on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, on the Salisbury convention, and on 31st January at Second Reading of the Parliamentary Referendum Bill is all relevant to this Motion moved by my noble friend today and to the Motion which will be moved by my noble friend Lord Norton of Louth on Wednesday.

Intervening on Tuesday will be the Report stage of the Regulatory Reform Bill. On any showing, that is a main constitutional Bill which, as such, falls within the remit of the Constitution Committee, albeit that it is concerned with delegated power, and the Delegated Powers and Deregulation Committee has already reported on it. On Royal Assent no doubt the Constitution Committee will wish to keep under review that aspect of the constitution.

Assuredly during a dinner hour debate it is not appropriate to deploy any of those arguments, which are already recorded in the Official Report; nor is it appropriate to pre-empt tomorrow's debate on the Regulatory Reform Bill, which will no doubt be considered on the Motion of my noble friend Lord Norton of Louth.

However, in the course of all those previous debates one matter arose but was never discussed. No attention was given to it. It was the rather curious concept which certainly on two occasions appears to have been formed on the Government Front Bench and on which some clarification will be sought from the noble Lord, Lord Carter, during his reply to the debate. As I always do, I have given the noble Lord notice of the question that I was intending to ask.

That concept, as I understand it, subject to correction, is based upon the assumption that this House is subservient to another place. The other place, elected by the people, has a mandate during the period of its office until the next general election to introduce whatever legislation it pleases. Therefore, your Lordships should not exercise the power of objection but only the power to amend.

However, surely unless and until some new form of self-denying ordinance is established by consensus, does not that concept conflict with the express provisions of the Parliament Acts, which preserve the independence of your Lordships' House and the delaying power? Would not that concept inhibit the due exercise of your Lordships' function as the acknowledged guardian of the constitution in circumstances where the nation is substantially divided? Is this question a matter of importance not only with regard to this Motion but also the Motion to be introduced on Wednesday?

Does not another question arise on both Motions as to whether this new form of self-denying ordinance, including, in accordance with the recommendations of the Royal Commission, a reappraisal of the mandate doctrine to represent a new balance of authority between the two Houses, should not be sought by consensus? Should there not be meaningful consultation--I believe that that phrase was used by

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the noble Lord, Lord Goodhart--between all political parties, the Cross Benches and the spiritual Benches to seek to devise a practical, acceptable resolution?

I turn to the abuse of the Parliament Acts. In that regard, the references for the noble and learned Lord, Lord Simon of Glaisdale, are as follows: 19th January, col. 1320; 24th January, col. 267; and 31st January, col. 783. The noble and learned Lord says that the only constitutional manner in which to seek to control abuse of the Parliament Acts is by a self-denying ordinance. That can be done in two ways. One is self-denying by the Government in resorting to the Parliament Acts, and the other is self-denying by the House in the exercise of its power of rejection and power to insist.

With regard to referendums, the noble and learned Lord, Lord Simon of Glaisdale, said on 31st January at col 769:

    "The urgent question is in what circumstances constitutionally do we need or desire a referendum . . . that is a matter on which we should take advice from the Constitution Committee".

That was in context with the Parliamentary Referendum Bill, which the noble and learned Lord supported, and which dealt with the provision of Bills which substantially affect the constitution. That was also supported by my noble friends Lord Dean of Harptree and Lord Cranborne, and the noble Lord, Lord Chalfont. While we are on the subject of referendums, surely the stance that there must be a referendum on stage two as affecting the constitution is wholly well conceived?

There are other matters of constitutional importance relevant to today's debate and the Wednesday debate, such as the disparagement of the status and dignity of Parliament by doctored spin direct to the media, the re-affirmation of the guardianship role of your Lordships' House and the reaffirmation of the sovereignty of each House under its own rules and procedures. There is also the most important contribution today from my noble friend Lord Dean of Harptree on the relationship between Westminster and the devolved bodies based on concordats, where, as my noble friend said, in accordance with the recommendations of the Royal Commission, good working relationships must be established, and that is within the remit of this House.

Like it or not, we have already entered into a new constitutional dimension in which a new convention which represents a new balance of authority between the two Houses has, as yet, not been devised. On that the House is in urgent need of the advice of the Constitution Committee, albeit that the resolution may be had only by consultation and consensus.

8.22 p.m.

Lord Elton: My Lords, in the three minutes remaining before the Front Benchers speak, I seek to put on record a few words on the assumption that the committee, when formed, will read this debate. I should like to remind them that Parliament was invented when the Crown, which was the executive

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government of this country, could not find sufficient resources with which to govern it without the consent of the people paying the taxes.

There was a battle between Parliament and the Crown which continued until the Stuarts, who tried to do without Parliament, finished up having to do without their head, and the Roundheads, who tried to do without the Crown, finished up by appointing a Lord Protector who was a king in almost everything but name. The constitution settled down in the glorious revolution of 1688 to the House of Orange, and there the matter might have rested, but the Hanovarians came in with a king who could not speak any English. At that point we get into the game which we are now playing. The executive government came in from outside Parliament and was no longer distinct from it. The executive now sits in the House of Commons with a few representatives on the Front Bench in this building.

What I shall suggest will appeal to my noble friend the Conservative Chief Whip and, I hope, to the noble Lord, Lord Goodhart. However, it will not appeal to the noble Lord the Government Chief Whip until he changes places. Then he will see the force of what I say. The function of Parliament is to control the executive. This committee needs to have that in mind and to see whether or not it is capable of so doing. That is an important concept. I ask the members of the committee to keep that in the forefront of their minds throughout their deliberations.

8.23 p.m.

Lord Goodhart: My Lords, I am grateful to the noble Lord, Lord Dean of Harptree, for introducing this short debate. He is a distinguished former member of the Delegated Powers and Deregulation Committee, which I suppose is the nearest thing we have had up until now to a constitution committee.

I warmly welcome the setting up of the new Constitution Committee. I also welcome the appointment of the noble Lord, Lord Norton of Louth, to chair it. I am sorry to see that he is not in his place. I hope that he will not mind if I say in his absence that he is a distinguished expert on the constitution and also, I believe, notably independent minded.

Whatever the future of your Lordships' House, it will undoubtedly remain a revising and scrutinising chamber. However, I think that it can do much more than that. The Select Committees of your Lordships' House are an important way of achieving that. As the European Union Committee and the Science and Technology Committee have shown, Select Committees do not have to be reactive. They do not just have to deal with current legislation. They can be forward looking and can, indeed, be a kind of think-tank, not just an ordinary think-tank but one of the highest authority.

The quality of the staff, the clerks and the expert adviser, is very high indeed. Even though the committees in your Lordships' House have no power to compel attendance of witnesses, they are able to persuade important players in the game to appear as

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witnesses. The all-party and cross-bench membership of the committees adds weight to their reports, especially when, as they commonly are, unanimous. Our Select Committees produce reports of quality and authority. In setting up the Constitution Committee we are building on strength.

I believe that there are three roles for the Constitution Committee. The first and obvious one, because it is spelt out in its remit, is to report on the constitutional implications of legislative proposals, either in current Bills or in pre-legislative scrutinies. I am sorry that this committee was not in existence some years ago. We have had what I think has been an unrivalled flood of important constitutional legislation in this Parliament, certainly for a very long time indeed. Even in this Session we have had the Regulatory Reform Bill. As the noble Lord, Lord Campbell of Alloway, said, that raises important constitutional issues, both by extending powers to act by secondary legislation and by developing further the relatively new form of what might be called "hybrid secondary legislation", the super affirmative resolution procedure, as it is sometimes called, which involves an extensive degree of consultation.

It is too late for the new committee to report on the Regulatory Reform Bill, which has its Report stage tomorrow and, provisionally, Third Reading next Monday. But the Delegated Powers and Deregulation Committee has already reported fully on that Bill. Undoubtedly, at least if the present Government are returned at the next election, there will be more to come in the way of constitutional legislation. I refer in particular to the stage two reform of your Lordships' House.

The second role I see for the Constitution Committee is the monitoring of the working of the current constitutional arrangements. As the noble Lord, Lord Dean of Harptree, said, it is a vital question to study how the devolution is working. Is the balance of devolved and reserved powers satisfactory? Is the partial system of devolution to Wales, which gives power over secondary but not primary legislation, workable? Will the Political Parties, Elections and Referendums Act work properly or is it, on the one hand, too easy to evade its restrictions or, on the other, unnecessarily bureaucratic? Will the Freedom of Information Act work when it is brought into force?

Although I do not agree with the noble Lord, Lord Dean of Harptree, in suggesting that the two recent cases in which the Parliament Acts have been used were inappropriate, I very much agree with him that these issues are matters which the Constitution Committee should consider. It should look at the Parliament Acts and, indeed, the Salisbury Convention. It is difficult, if not impossible, for the Constitution Committee to reach a conclusion and make formal recommendations on this because it is too controversial as between the parties. But certainly reports could clarify the issues and set out the arguments on either side.

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I believe that the third and final role for a Constitution Committee is to look at the detailed implications of the constitutional changes that could happen in future but have not yet taken place.

It is unlikely that the committee would put forward recommendations for a new constitutional settlement because they are likely to be highly politically controversial. However, it could examine the perceived advantages and disadvantages of constitutional proposals. We could, for instance, ask the Constitutional Committee to review the various electoral systems now in force in this country. There is a multiplication of them--in our view there are too many but some are desirable.

The noble Lord, Lord Elton, suggested that the role of the Constitutional Committee was to defend or strengthen the hand of Parliament against the executive. He will be pleased to hear that I strongly agree with him. I hardly dare mention one issue which the committee might examine; that is, whether all Ministers need to be Members of one or other House of Parliament. They need to be accountable to Parliament and to answer questions, but do they need to be Members in order to be accountable? Might it not be better to have a larger pool of people from whom Ministers can be appointed.

I shall not go further into that matter, which is a hobby-horse of mine. I return to the main issue. I believe that the Select Committee on the Constitution will strengthen the position of the constitution. I believe that it can and will strengthen the role and reputation of your Lordships' House and I extend a warm welcome to it.

8.32 p.m.

Lord Henley: My Lords, I, too, thank my noble friend Lord Dean of Harptree for having initiated this important debate. I also welcome its timing, coming as it does so soon after the resolution of the House to set up a Select Committee on the Constitution. I am also pleased that Her Majesty's Government listened to us on these Benches, in particular to my noble friend Lord Strathclyde, and agreed to set up the committee. I hope--this hope will be shared by Members on all sides--that the committee develops and grows in stature, as have other recently appointed committees of the House. I think in particular of the Delegated Powers and Deregulation Committee which was set up in 1994 or 1995 by my noble friend Lord Cranborne when he was Leader of the House. We take it seriously and the Government take it even more seriously.

It is a matter for members of the new committee to determine the agenda. I have no doubt that they will follow all that was said in our recent debates on the constitution; those initiated by my noble friend Lord Campbell of Alloway, by the noble and learned Lord, Lord Simon of Glaisdale, and by other noble and learned Lords. I also congratulate my noble friend Lord Norton of Louth on having been selected to be chairman of the committee.

Whatever one's standpoint in the recent debates to which I referred, no noble Lord can deny that a common thread which runs through all of them has

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been a sense of new uncertainty and, potentially, instability in our constitution that has followed the maelstrom of change pushed through by this Government.

There is no part of the constitution--from the local council chamber to this House--which has not been shaken by these changes. At the same time, we have seen the deliberate transfer of authority away from the Westminster Parliament to European institutions, to the judiciary, domestic and overseas, and to devolved bodies. It has been one of the most tumultuous periods of constitutional change for a long time.

Perhaps I may set out a few issues which the committee could examine. Obviously, other suggestions will come from other parts of the House and some from the Government Front Bench. It might have a special role in the evolving structure of new devolved parliaments and assemblies, as put forward by my noble friend Lord Dean. But as centrifugal forces grow, and they surely will, who will watch the process and hold the threads of the constitution together? Let us examine, for example, the points raised by the noble Lords, Lord Carlile of Berriew and Lord Elis-Thomas, on the matter raised by my noble friend Lord Peyton of Yeovil only last week; that we may need to examine the ways in which both Houses now devise primary legislation in relation to the Assembly in Wales. As I read those exchanges, I thought that there was an appropriate function for this House, in particular for this new Select Committee.

The Select Committee may also want to look at the relations between Holyrood and Westminster, the smooth functioning of which is vital to the survival of the United Kingdom. I do not agree with the idea once loosely floated by the late First Minister of Scotland, Mr Dewar, that one day this House might be given the power to review and revise Scottish legislation. Such a proposition would be premature, even though some of the difficulties of unicameral government are already becoming apparent north of the Border--an issue which the committee might review.

On the other hand, as my noble friend Lord Strathclyde suggested in 1999 when he first suggested the idea of such a committee to your Lordships' House, the new committee might scrutinise the work of the Scottish Parliament, the Welsh Assembly and the new Northern Ireland Assembly so as to sound a warning nationally if the Government--for example, through the over-use of the Section 28(7) power in the Scotland Act--were intruding on the privileges of those bodies.

The devolved bodies could themselves bring complaints to the House of Lords if they felt that the executive was encroaching on them and their rights. Equally, the committee could warn if those bodies were seeking to remove the constitutional boundary stones set down for them by Westminster. Although in theory the Presiding Officer--and, indeed, the Advocate-General or the Lord Advocate--have a "whistle-blowing" role, it is not impossible to envisage political circumstances in which they might not blow that whistle.

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Finally, the Select Committee might develop the expertise and authority to be the arbiter of problems arising from the working of the so-called "concordats" between the executives in London and Edinburgh.

My noble friend Lord Strathclyde suggested other potential roles. There is the evolving relationship between Parliament and the judiciary and Parliament and the EU institutions to which I have alluded. There is also the use of the huge powers reserved by Ministers in much recent legislation. One example would be the powers taken in the Greater London Act to require the Mayor of London's policy to be in line with national policy.

Some have floated the idea that constitutional Bills might be given a new and separate status to avoid unilateral imposition of major constitutional change by one party with a majority in another place. The committee might equally report adversely on proposals for referendums where there was unequal funding or where the procedures were not in line with the Neill committee rules. Others, including my noble friend Lord Campbell of Alloway, have raised the question of post-legislative referendums on matters of great constitutional importance.

One has only to review that list, and many other ideas put forward in this debate and elsewhere, to realise that the committee set up by your Lordships may come to have the same importance and authority as the Delegated Powers and Deregulation Committee so ably chaired by my noble friend Lord Alexander of Weedon.

I greatly welcome the Unstarred Question and the establishment of the committee. Against the background of all the uncertainty following the government changes and against their apparent intention to plunge on with further changes without consulting other parties or seeking any cross-party consensus, I venture to say that few things could be more timely than the setting up of this committee. We always need someone to watch the executive's manoeuvres. This House is uniquely equipped to do so and I believe that the Select Committee will do the job for this House uniquely well.

8.40 p.m.

Lord Carter: My Lords, the House is once again indebted to the noble Lord, Lord Dean of Harptree, for introducing an important topic about the role of your Lordships' House. As a number of noble Lords have said, this is one of a series of debates held this year which follow on from the two Bills introduced by the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Campbell of Alloway, and the topical debate initiated by the noble and learned Lord, Lord Simon of Glaisdale. Not surprisingly, most speakers have concentrated on the second half of the noble Lord's Question regarding the role of the Constitutional Committee, and I want to do the same.

For the record, the Government entirely support the decision of the House to set up the committee which was recommended by the Royal Commission chaired by the noble Lord, Lord Wakeham. We look forward,

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as I am sure does the whole House, to the committee establishing itself as a respected and authoritative body on a par with the other investigative committees of your Lordships' House. The genesis of the committee was the report of the Royal Commission. It noted that proposals for some such committee had come from a number of sources, in particular the right honourable Member for Huntingdon, Mr John Major, the Labour Party and your Lordships' own Delegated Powers and Deregulation Committee.

Following its consideration of those representations, the Royal Commission recommended that the committee should consider all Public Bills, other than those concerned with supply or consolidation, on their arrival in the Second Chamber and prepare a comprehensive report on any constitutional implications; and, more generally, it should keep the operation of the constitution under review. The terms of reference which your Lordships have now agreed for the committee faithfully reflect those two suggestions. The Government likewise accept that this should be the dual focus of the committee. The terms of reference have deliberately been widely drawn to enable the committee to develop its role as it sees fit. All noble Lords who have spoken in the debate have agreed that the committee must be allowed to develop in its own way.

I should like to comment on a few issues which I believe would enhance the effectiveness of the committee. First, comparatively few Bills have a direct constitutional implication, and they are not always the obvious ones. For example, the Clergy Disqualification Bill which is presently in another place is agreed to be a constitutional Bill, but I do not believe many would seriously argue that it has wide-ranging constitutional implications. I believe that, therefore, the committee will establish a reputation for authoritative reporting if it very carefully selects the Bills on which it seeks to do a full report.

Secondly, and perhaps even more important, there are aspects of Bills which in the first instance may appear to be constitutional but fall within the remit of other committees. The Regulatory Reform Bill is perhaps an example of the potential for overlap between the new and an existing committee. I am thinking also particularly of human rights in respect of which there is now a Joint Committee of both Houses, and the balance between the powers of Parliament and the executive as represented by the degree to which Ministers are given delegated powers which fall to be considered by your Lordships' Delegated Powers and Deregulation Committee.

I believe that the constitution committee would be more effective if it concentrated its work on other areas and did not seek to duplicate the work of other committees. In addition, the committee will have to consider how it can best deploy its resources in a comparatively limited period of time. The Royal Commission recommended that it should consider Bills only when they arrive in this House. That will give the committee only a couple of weeks to consider a Bill before it can have its Second Reading. Again, a

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focused, targeted approach will, we believe, yield dividends in the quality of the committee's work. I am sure that the noble Lord, Lord Norton of Louth, who I am delighted to learn is to be chairman of the new committee, has already thought of these and many other considerations. However, I was asked for the Government's views and so I give them.

The ability to comment on Bills is to be only one part of the committee's remit. The other is to,

    "keep under review the operation of the constitution".

That is a much more long-term project. The noble Lord, Lord Dean of Harptree, and other noble Lords asked whether the Government saw issues, such as the operation of the Parliament Acts and the effectiveness of the devolution settlements, as falling within the committee's remit. It is not for the Government to interpret the committee's remit; that is a matter for the committee itself. However, in principle it could be said that both fall within it. I suspect that in particular the latter--the devolution settlements--was what many people, including the Labour Party, had in mind when they recommended to the Royal Commission the establishment of the committee. The Royal Commission itself recommended that the committee might consider setting up a specific devolution sub-committee. Since devolution is obviously a major constitutional change--the decentralisation of power while maintaining the Union--clearly it would be wrong to say that it should fall outside the remit of a constitution committee.

Whether particular aspects of the settlements, in particular the way in which the concordats work at administrative level, would be appropriate for the committee to consider would depend on certain matters. The noble Lord asked particularly about the relationship between Westminster and the devolved legislatures generally. That seems to be central to devolution, and I see no reason why the committee should not do useful work on that to complement that which is done within government and by the relevant Select Committees in another place. However, whatever the interpretation of its remit, I believe that the committee would be wise to consider extremely carefully the way in which it looked into other questions, for example, the structure of the other place in the light of devolution. It seems to me that that would not be a proper subject for a committee of this House to undertake. We must be careful that the undoubted expertise of the members of the committee does not lead the House to assume that as a whole it has a greater standing in constitutional matters than another place.

The noble Lord also asked whether the Parliament Acts, the Salisbury Convention and so on would be within the remit of the committee. The terms of reference would certainly allow it, but whether a particular inquiry was a sensible and proper use of the committee's time and resources would be a matter of extremely careful judgment. As my noble and learned friend Lord Falconer said on 31st January in response to the noble and learned Lord, Lord Simon of Glaisdale, when the latter raised the point in debate on the Parliamentary Referendum Bill promoted by the

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noble Lord, Lord Campbell of Alloway, we do not accept that this Government's use of the Parliament Acts in any way calls into question their continued validity. I was pleased to note that the noble Lord, Lord Norton of Louth, made the same point in a trenchant contribution to the debate on 24th January.

In addition, we also believe that if there is--we do not accept that there is--a problem in the relationship between the executive and the other place, that is a matter to be resolved by the other place. It is not an issue to be resolved by increasing the powers of this House at the expense of those of the elected Chamber, especially not by this House unilaterally arrogating powers to itself. Therefore, I believe that the committee should be extremely careful about any investigation of the relationship between the executive and the elected Chamber.

I turn to just two of the main points raised in the debate, because there were a number of overlapping contributions. The point raised by the noble Lords, Lord Campbell of Alloway and Lord Dean of Harptree, about the relationship between the two Houses of Parliament, the use of the Parliament Acts and a possible self-denying ordinance affecting the use of the powers of this House is well taken. Speaking as Chief Whip, there is one very important and obvious aspect of this matter which, as far as I know, has not been fully considered. Whatever form future reform of this House may take, I am not aware of any proposals which would give the government of the day a majority in this House. Any government of whatever persuasion would always be in the minority in this Chamber under the many and varied proposals that I have seen for the reform of this House.

How does one square the undoubted voting power of this House to deny the Government some parts of their legislative programme with the long-standing convention that the elected government of the day are entitled to get their business? I can do no more than enunciate the problem. It could well be a matter that the Constitution Committee would wish to consider at some time in the future in order to find a practicable and acceptable rubric regarding the operation of the two Houses and the way in which the Government achieve their programme, as the noble Lord, Lord Campbell of Alloway, very fairly mentioned.

The noble Lord also raised the question of the Constitution Committee in relation to referendums. It is a subject on which I know he takes a particular interest. As my noble and learned friend Lord Falconer said when we debated the Parliamentary Referendum Bill on 31st January, there is nothing to prevent the Constitution Committee proposing, before a measure comes into force, an amendment to a Bill to provide for a referendum. Whether or not such a referendum then takes place will be a matter for the two Houses to decide, as it would be for any other proposed amendment to a Bill.

The noble Lord, Lord Elton, in his brief intervention, referred to the role of Parliament to provide a check on the executive. He said that I might

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be prepared to change my mind if I moved across the House. I reply to the noble Lord that I speak as much as a parliamentarian as I do as a Chief Whip.

We have had an extremely interesting debate. It is clear from the terms of the debate that there will be plenty of work for the new committee to do. It is essential that it chooses its programme of work and its topics for consideration extremely carefully. If one attempted to put together all the suggestions made in the debate for the work of the new committee, it would be very busy indeed. It must choose its early work extremely carefully so that it gets the balance right. I am sure that there will be requests for debates in your Lordship's Chamber on that work and its report.

I conclude that we are grateful to the noble Lord, Lord Dean of Harptree, for initiating the debate. We look forward to the Constitution Committee under the chairmanship of the noble Lord, Lord Norton of Louth, establishing itself by its actions as a respected part of your Lordships' House.

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