VOTING RIGHTS OF MINISTERS AND OTHER OFFICERS

HC Deb 02 April 1969 vol 781 cc393-454

Amendment proposed: No. 167: In page 4, line 29, at end insert: 'provided that the number of such offices does not exceed four'.—[Mr. Sheldon.]

Question again proposed, That the Amendment be made.

10.0 a.m.

The Under-Secretary of State for the Home Department (Mr. Merlyn Rees)

As I have listened for an hour and 20 minutes so far, I think it may be convenient if I intervene at this point.

Mr. Heffer

On a pont of order, Mr. Irving. Do I take it that the Minister's intervention at this stage in no way implies a curtailment of the debate? Many hon. Members who have sat throughout the debate so far—it has only just begun on this Amendment—have a right to speak, have they not?

The Chairman

Order. That is not a matter for the Chair.

Mr. Iremonger

On a point of order, Mr. Irving. There are many hon. Members on both sides, within your own vision now, who are waiting to make submissions——

The Chairman

Order. The hon. Gentleman is proceeding to deal with a matter which I have ruled is not one for the Chair.

Mr. Iremonger

My point of order, Mr. Irving, is to ask whether it would be in order for the Minister to intervene a second time after he has heard the debate.

The Chairman

Order. The Minister may intervene whenever he wishes.

Mr. Rees

Perhaps it would be as well at this point to remind ourselves, in the context of the Amendment, what the Clause itself is about. Clause 5 makes special provision for Ministers and the holders of high judicial office to have voting rights. I remind the Committee also that paragraph 45 of the White Paper says: In order to preserve the freedom of the Prime Minister in appointing Ministers of his choice and to ensure that a Minister in the House of Lords would be a voting member of that House, Ministers would also be exempted both from the attendance requirement and from the restriction on age. In stating the purpose of the Amendment, my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) made clear that he was not concerned with the number of four as such; as he said, four was just a number, and it may be wrong or right. I accept that, and I shall in the main refer to the general principle. However, I shall wish to discuss the number of four in this context as it is opposite to the general argument.

Mr. Heffer

My hon. Friend will realise that I wish to argue the case for the number four precisely in the terms of the Amendment.

Mr. Rees

I am sure that that will be taken into account.

It is pointed out in Appendix II to the White Paper that there are at present two Cabinet Ministers—this was in last November—and 13 other Ministers, including the Whips, in the House of Lords, and one of those Ministers spends most of his time out of the country. Moreover, as was briefly mentioned last night, two of the officers—the Clause refers to officers—are the Chief Opposition Whip and the Leader of the Opposition in the Lords. Therefore, if these two officers were still to receive remuneration, the number of Ministers would be down to two if the figure were to be four. Again, I accept that the figure four is just a figure put in for the sake of discussion.

However, although we are concerned with the question of principle, the number four which is proposed is not the world's best cockshy in the context of the number of Ministers in the Lords at the moment. Moreover, I must point out that the Amendment as drafted refers to officers. My hon. Friend is arguing that there should be only four Ministers in the Government as a whole. In fact, there are nearer 100. The reference here is not just to the House of Lords. If I may say so with respect, the Amendment as drafted is silly since it is not just concerned with the House of Lords. It would make a nonsense if we voted in favour of an Amendment which would limit the number of Ministers to four over all.

Mr. Iremonger

How can the hon. Gentleman say that? The very first words of the Clause are, A peer of first creation …". We are talkng about peers of first creation being exempted, not about Ministers.

Mr. Rees

No. The Amendment deals with officers in general. I am firmly advised on that point. Nevertheless, we are concerned here with the argument in the context of principle. My hon. Friend developed his argument in terms of what is said in Appendix II.

Mr. Heffer

Nonsense!

Mr. Rees

There is no skin off my nose in a statement of that kind. We ought to get down to the principle, and I am advised that the Amendment as drafted is a nonsense.

Mr. Michael Foot

I understand what my hon. Friend says about the question of principle, but it is not satisfactory when he says that he is advised in that way. We want an explanation of how he thinks that the second part of the sentence is not governed by the first.

Mr. Heffer

May I help? Obviously, my hon. Friend's advice is bad advice. The words of the Clause are, … for the time being the holder of an office to which this section applies". We are talking about a Bill dealing with the House of Lords.

Mr. Rees

Literally, the Amendment would provide that peers who hold Ministerial office could vote ex officio only if the number of such offices—not the number of peers holding such offices—were not more than four. That is the point at which I stick.

Mr. Iremonger

It is "such offices", so the offices refer to the offices to which the Clause relates.

Mr. Rees

The words of the Amendment are "such offices", not "the number of peers holding such offices". However, I accept that in discussing the overall principle one relates the argument to what my hon. Friend has in mind. I can only say that my advice—which I accept—is as I have stated it, and I put it to the Committee that way.

My hon. Friend the Member for Ashton-under-Lyne related his argument to Appendix II and quoted the speech of the Lord Chancellor. I remind the Committee that in paragraph 1 of Appendix II we are told: The ideas it puts forward do not represent formal proposals by the Government or by the Conference and they are reproduced only for the purpose of illustration; they are in any event on matters which would have to be considered by the Houses themselves. They might, however, form the basis for further study by a joint select committee once the reform has taken place and may be thought helpful to indicate some of the wider advantages which might accrue to the British parliamentary system from a reform of the kind proposed. The Appendix goes on in paragraph 2 to point out that, it might be necessary, in order to obtain full advantage from an improved flow of legislation from one House to the other, to increase the number of Cabinet and other Ministers in the House of Lords.

Mr. John Lee

That is all very well in a general discussion in a White Paper, but if one is embarking, as Ministers are, on a major exercise in the reconstruction of the second Chamber, why leave it loose-ended like that? I do not want it, but if my hon. Friend is going in for that sort of exercise, why is it not written more specifically into the Bill so that we know how matters stand?

Mr. Rees

With respect to my hon. Friend, I will deal with that later. I am now dealing with the point raised yesterday by my hon. Friend the Member for Ashton-under-Lyne when he quoted the speech of the Lord Chancellor in another place. I am on that point and not on the question whether the precise number of peers who should be Ministers should be laid down in the Bill. My hon. Friend in quoting what the Lord Chancellor said was giving the matter more certainty than the speech of the Lord Chancellor merits on a second look. The Lord Chancellor said: … with a reformed House there would be no reason why a Bill should start in one House and not in the other …. One could provide that a Public Bill, after having its Second Reading in one House, would then perhaps have a Joint Committee Stage of both Houses …. Again I think we should consider the possibility … I suspect that the Private Bill procedure in both Houses really needs an overhaul …. Finally, there would be no reason why …."—[OFFICIAL REPORT, House of Lords, 19th November, 1968; Vol. 297, c. 650–1.] I submit that the speech was made in another place with the emphasis that these matters, whether of finance or anything else, would have to be considered by both Houses. There is no certainty in this. I can see that underlying the reform which is involved in the Bill is the reform of the procedures of the House of Commons and the House of Lords, but these were suggestions of what might happen as a result of the reforms that are made statutorily in the Bill.

Mr. Sheldon

My hon. Friend must be aware of my contention as to the difference between the prospectus offered to the House of Lords and that which was offered to the House of Commons. When this was discussed in the House of Commons there was no mention of increasing the power of the House of Lords in this way. Yet the speeches of the Lord Chancellor and of the Leader of the House of Lords in another place contain these high promises offered to the Members of the House of Lords, and what many people are offended by is the difference between the prospectus offered in the House of Commons and the prospectus offered in the other place.

Mr. Rees

In that respect, I refer my hon. Friend to Appendix II on which the speech of the Lord Chancellor was based, and that is contained in the White Paper which has been offered equally to this House and to another place. The remarks he offered to the Committee from the speech of the Lord Chancellor in the context of Appendix II referred to the paragraphs headed: Public Bills: General; Public Bills: Committee procedure; Public Bills: accelerated procedure; Subordinate legislation; Private Bills; Specialist Committees. The Lord Chancellor was not just putting a gloss on his interpretation of what might happen as a result of the statutory form which is laid down in the Bill, but was referring to Appendix II. He was not offering a new idea on his part to another place and not to us. What he said is all taken from the White Paper which is now in front of me and which has been in front of the House for some time. It was not something new.

Mr. Powell

In that case, will the Under-Secretary of State explain why, since these prospects were so important and were embraced by the Government as a whole, no reference was made to them by an official speaker during the two-day debate in the House of Commons upon the White Paper? Why were they passed over in silence here even though they were buried in the Appendix?

10.15 a.m.

Mr. Rees

In reply to the right hon. Gentleman's remark about the prospects being buried in the Appendix, although someone outside might regard them as buried in the Appendix, no one who is considering the whole question can regard it in that sense. I cannot without reference turn to it, but I recall that the implication of Appendix II in the context of reform was raised at least by my hon. Friends on Second Reading. I surmise from that that the Amendment which we are considering and others like it follow up points raised on Second Reading. It is not just an idea which has occurred to my hon. Friend the Member for Ashton-under-Lyne in recent weeks.

My argument is that Appendix II is in the White Paper; it puts forward ideas of what might be done to improve the procedures of the House of Commons and House of Lords; it contains reformative ideas which would have to be considered by both Houses; and it is basic to the Bill. What underlies the Bill is a means of improving the procedures of the House of Lords and the House of Commons. This was not a sudden idea, a gloss put on the Bill by the Lord Chancellor in another place; it is part of the White Paper.

Mr. Michael Foot

If it is basic to the Bill, will my hon. Friend consider in the next stage of the Bill incorporating it in the Preamble?

Mr. Rees

That is an interesting point which no doubt will be considered, but, I should have thought not with any great chance of success.

While I accept that the number four is a cockshy and is not the world's best, the Amendment as drafted is silly. I cannot claim the omniscience on numbers that has sometimes arisen on both sides, but in this respect it is not a good Amendment. The principle underlying the Amendment is that the number of peers in the Government in another place should be laid down by Statute, and there are many other side effects.

In the 1961 issue of The Table, which is the Journal of the Society of Clerks at the Table in Commonwealth Parliaments, there is an interesting article by Mr. Punnett on Ministerial representation in the House of Lords since 1859. Table I gives the representation of the House of Lords in Governments from 1859 to 1962. It starts with the first Long Government of Lord Palmerston and ends with the Government of 1957 of Mr. Macmillan. It gives the number in the Cabinet, the number of peers in the Cabinet, the total number of posts and the number of posts held by peers. I accept that the House of Lords has changed in its composition, that the number of peers has changed and that the number of Ministers has changed since that time, but the number of peers in the Government became smaller over the years until the Government of 1951–55, when there was a sudden escalation of the number of Cabinet Ministers in the Government, for a variety of reasons.

From this, I deduce that it would be an error of approach to lay down precisely the number of Ministers who should be in another place. That is not something that ought to have statutory form. For philosophical reasons, over the years Tory Administrations had more Government peers than Labour Administrations. There are fewer peers as Ministers in another place now than in the previous Administration. There may be a number of reasons why Tory Administrations have more Ministers in the House of Lords, but I am attributing that not to ability but to philosophy. The Government believe that this is best left in a flexible form and not laid down in numerical form.

Mr. Iremonger

Surely the hon. Gentleman has totally misread the purpose of both the Clause and the Amendment. The Clause does not limit the number of peers in the Government. It limits the number of peers in the Government who shall be exempt from the qualifications governing other peers.

Mr. Rees

I fully accept that. It is based on paragraph 45 of the White Paper, which says that, in order to preserve the freedom of the Prime Minister in appointing Ministers of his choice and to ensure that a Minister in the House of Lords would be a voting member of that House, Ministers would also be exempted both from the attendance requirement and from the restrictions on age. That is the intention of the Clause.

Mr. Boyd-Carpenter

Does the hon. Gentleman appreciate that acceptance of the Amendment would not inhibit the Prime Minister's choice of peers as members of his Government? It would only limit the number of such peers who, being Ministers, were exempted from the age and voting requirements.

Mr. Rees

What it would do is to create two types or grades of Ministers. The view of the Government is that that would be an error. If the right hon. Gentleman is arguing that in some future Administration Tory peers should be second grade peers in the sense in which we are talking now, that is an interesting point. But the view of the Government is that, based on the history of Ministerial responsibility and methods of approach, it should be done in the same way as it has been in the past. That is the purpose of the Clause as it stands.

Mr. Boyd-Carpenter

If the hon. Gentleman uses the phrase "second grade peers", is he aware that what he is now enunciating is the doctrine that Ministers will be first grade peers and that all other peers, including leaders of the Opposition, will be second grade peers? That is not exactly facilitating his argument. Incidentally, with respect to the hon. Member for Orpington (Mr. Lubbock), he is wrong, as he usually is on the rare occasions when he is here.

Mr. Lubbock

As the right hon. Gentleman has referred to me, perhaps I might point out to him that if he had been here yesterday evening he would have heard that the Leader of the Opposition and the Chief Whip in another place are covered by paragraph (a) and their salaries are payable under the provision for Ministers.

Mr. Boyd-Carpenter

That is evidence of my proposition——

The Chairman

Order. We cannot have an intervention on an intervention. Mr. Merlyn Rees.

Mr. Rees

Again, these are interesting points, and it is not for me to rush to defend the hon. Member for Orpington (Mr. Lubbock). We engaged in these discussions late last night.

To return to the point at issue, the view of the Government is that there should not be any number laid down in the statute. We believe that it should be a flexible number, and over the years it has been flexible.

The other point is that any changes in procedure that arise in Appendix II are matters for discussion, that it would be inappropriate for them to be laid down in the Statute, and that Parliamentary reform in terms of procedure, including Private Bill procedure, which would set free this place to engage in far more important matters, would arise from it.

The view of the Government is that this Amendment is inappropriate and that it is not right to lay down the numbers. It is also my view and that of the Government that the Amendment as drawn is silly. However, I accept the principle behind it, and I have put my mind to that.

Mr. John Lee

Are we to understand from that that the Government intend to introduce an Amendment of their own on Report to improve the position?

Mr. Rees

No. My hon. Friend is a lawyer, and he is picking up a narrow point. I was saying that I thought that the Amendment as drawn was silly, and perhaps that was a little discourteous. I was conceding that my hon. Friend has every right to take the view that he does, and I quite see his argument, even though I do not accept it. However, clearly, he is more concerned with the principle than with numbers.

It is our view that the Amendment is inappropriate, whatever it is trying to say, and my recommendation to the Committee is that it should be negatived.

Mr. Hugh Fraser (Stafford and Stone)

The Committee is becoming more and more confused by the Ministerial speeches. The problem facing us, quite simply, is this. Because of the Preamble and the leaving of so much to the prerogative, because of the nature of the Bill which is more and more clearly demonstrated to be bad, and because of the sort of speech that we have just heard from the hon. Gentleman, where he seems to have misinterpreted the objects of the Clause and the Amendment and the effect of it, the Committee is being driven to make a new constitution for the House of Lords. That is why we are having to go through every line and point in the Bill and try to tie down any future Government in what they propose to do.

I regard this as thoroughly unsatisfactory, but, because of the vagueness, because of the misinterpretations which are possible and the abuses which could flow from the Bill, we have no alternative.

The point which becomes more and more clear as we proceed is that the two Front Benches, for a matter of what they believe to be administrative——

The Chairman

Order. The right hon. Gentleman has not yet addressed himself to the Amendment.

Mr. Fraser

I am coming to the point, Mr. Irving. As a matter of administrative convenience, they are prepared to destroy a part of the constitution.

The Amendment seeks to avoid the kind of abuses which could creep in with peers being exempted and raised above the level of their fellow peers in the other place. This is an essential point for this House to get written into the Bill.

I hope that the suggestions of the hon. Member for Reading (Mr. John Lee) and the hon. Member for Ebbw Vale (Mr. Michael Foot) will be considered seriously. Either this point about the membership of Ministerial and other privileged peers should be written into the Preamble on Report, or the number should be laid down. As the hon. Member for Ashton-under-Lyne (Mr. Sheldon) said, we do not stand by this number of four, but we are determined that there shall be a number above which no Government may go in granting these special privileges by putting Ministers in another place above the law of the other place.

There is also the point that this could be abused as it stands. It might be that this House became unmanageable, as perhaps it is today, and it might be that the Government thought of transferring more Ministers to another place. It is not inconceivable. One could visualise conditions in which it might be that under the present Prime Minister the glorious days of Lord Palmerston returned with a mass of Ministers in the other place and this House reduced in importance because executive power and responsibility lay elsewhere. As matters stand, that is not an impossibility.

That is why we are anxious and determined to see that something in the nature of this control is firmly written into the Bill. We do not insist on the number being four, but, we are determined that the Government should lay before us on Report a suitable number which cannot be exceeded. If they do not, there is every possibility of this Bill, which hon. Members on all sides find more and more obnoxious, presenting grave dangers to thte liberties of this country.

10.30 a.m.

Mr. John Lee

Looking at this Clause as we have looked at every other Clause so far, we start by casually observing what seems to be a not particularly controversial or exceptional provision. It is when we begin to examine the Clause in detail that we realise just how ridiculous it is. One of the definitions of law which I most like is that it takes a magnifying glass to the edges of meaning. What we have been doing throughout the Bill—and I apprehend that we shall be doing the same thing in relation to many more Clauses—is to take a magnifying glass to the edges of meaning. We magnify the Clause, and we see how blurred and ambiguous it really is——

The Chairman

Order. The hon. Member is not addressing himself to the Amendment.

Mr. Lee

I said that by way of preface, Mr. Irving. In my view both the Clause and my hon. Friend's Amendment are incredible. This is an extraordinary Bill. I do not know whether the Minister has realised that it is creating a specially privileged class of Minister, unlimited in number, over and above the number of Ministers that Parliament allows to exist at the moment.

For a long time it has been a constitutional convention—with the trifling exception of the Scottish Law Officers, and even that exception has not been a consistent one—that Members of the Government should be ordinary Members of either House. Persons who through the accidents of electoral misfortune are not Members of the House, or for some reason or other cannot be made or do not wish to be made Members of the other place in the ordinary course of creation, cannot be Ministers at all.

The Clause seeks to create a special category of Minister because the existing membership of the House of Lords is not deemed to contain enough Members of ministerial calibre. It creates an extra category of Minister—a category of peers not previously Members of the other place, from which Ministers may be made.

That, in itself, is not so exceptional, but then we see that the Clause seeks to vest in those peers special privileges, in the form of voting rights. If it were desirable—given the idea of limited membership of the other place—to create extra peers to provide Ministers there, there might be an arguable case for making those Ministers non-voting peers and for treating this as a wholly exceptional provision, not likely to be used very often and therefore not to be used in a way that will destroy the balance in another place.

The Under-Secretary does not seem to realise that if this provision is not limited in the way suggested by my hon. Friend, or in any other way, it will enable the Government of the day to destroy the whole idea of a voting balance in the other place. As I understand it, part of the rationale of the Bill is that there should be a fair distribution of political strength in the other place; indeed, the Bill has been sold to some of my hon. Friends only on the basis that the other place has previously always had an inbuilt Conservative majority and that henceforth this will not be the case; that there will not necessarily be a Labour majority and there will not necessarily be a Conservative majority. The balance will be held by the cross-bencher peers.

That is all very nice. It sounds most democratic and logical, until we examine the membership of the cross benches in the other place and try to discover what on earth the cross-benchers stand for.

Mr. Ronald Bell

The whole concept is that cross-bencher peers should not stand for anything.

The Chairman

Order. This is not relevant to the Amendment.

Mr. Lee

If we allow the Clause to go through unamended, as the Under-Secretary has invited the Committee to do, it will be an open invitation to any Government faced with intractable opposition in the other place—Conservative as well as Labour—to manufacture extra Ministers and to vest in them the voting rights permitted by the Clause. What a wonderful arrangement! We have already had sufficient foretaste of the disagreeable attributes of patronage that the Bill provides. I do not know how many hon. Members realise that this Clause is an open invitation—indeed, an incentive—to create Ministers in the other place and to vest in them voting rights.

I turn now to some of my more detailed objections. I do not know how many times it has been said in relation to other matters, but it bears repetition, that if we are going to make a major constitutional departure of this kind—and the Clause by itself represents a major constitutional change—why should we seek to do so in advance of the Constitutional Commission? Why is the Constitutional Commission vested with powers to examine the desirability or otherwise of Ministers being in this House, or the other House, or in no House at all?

In parenthesis, I admit that there may be a case—although it has been only a rare exception in the past—for Ministers of the Crown to be in neither House. On the whole, that is a highly objectionable practice. It has not been indulged in very much since the Liberal Government of Asquith.

Mr. Lubbock

Frank Cousins.

Mr. Lee

The hon. Member for Orpington (Mr. Lubbock) mentioned Frank Cousins. I remind him that Mr. Cousins was duly elected and came into this House. At any rate, this is a highly objectionable practice. This objectionable provision has been surreptitiously inserted into a Clause which is ostensibly in one of the less important parts of the Bill.

The right hon. Member for Stafford and Stone (Mr. Hugh Fraser) talked about there being more Ministers today. I believe that there are more today than there have ever been in any one Government. I may be wrong, and I shall probably be corrected if I am. I have heard that there are 107 Ministers of all kinds, from the Prime Minister down to the Third Lady-in-Waiting. One thing that one would have thought would be forthcoming from a radical Government is an organisation and methods exercise into the number of Ministers required. We have become very scientific-managerial conscious—if I may use that rather inelegant phrase. We bring the organisation-and-methods people into the B.B.C. and into industry. Some of my hon. Friends who charge themselves with assisting the Leader of the House in the task of reforming our procedures have suggested the introduction of such experts into this House. Why should not an evaluation be made of the number of Ministers we require?

If I am on firm ground, as I believe I am, in saying that this is urgently necessary, then in view of the number of proliferations and coalitions of ministerial responsibilities which have taken place in recent years, surely this should have been done before inserting a provision such as this in the Clause. It is an open invitation to a Government to create Ministers not previously in either House and to vest in them the extra voting rights.

For various reasons, which I shall give, I am not particularly enamoured of the figure of four mentioned by my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon). I think that I understand the purport of his Amendment rather more clearly than the Minister, because it seemed to me that three-quarters of the Minister's speech was directed to an argument which was never adduced. My hon. Friend says, "This is a bad Clause. The least we can do is to make it less bad by putting a ceiling on the number of peer Ministers of first creation." That is an admirable principle, although I think that the number suggested by my hon. Friend is wrong. It should be none. I do not think that my hon. Friend merely brought a number out of his head, although if he did he would not be the first person to do that on this Bill. A lot of numbers have been brought out of people's heads and they have gone on to prove what they started in the first place. That seems to be the general reasoning in all the numerical calculations which have been put before us.

Although I think that my hon. Friend's Amendment falls a long way short of perfection, there is another reason why, if he is minded to press it to a Division, I shall be minded to support him. As long as a provision of this kind is contained in this sort of Bill, there will be an incentive for Prime Ministers to create peers in the normal course of events—the normal replacement quota, so to speak—who are of non-Ministerial calibre. The Prime Minister will reason, "I do not need to create peers in the ordinary course of creation who are fit to be Ministers because I know that under Clause 5 I can always jack up the voting in the other place and have Ministers in the other place of the correct calibre recruited from outside the normal voting quota and normal working membership of that Chamber."

One of the objects of the Bill is to improve the quality of the other place. Therefore, why do the Government seek to put in the Bill a provision which, if it is acted on, as I suspect it will be, most certainly will have the opposite effect? Human nature being what it is, the Government will be itching to use any pretext to add to their political strength in the other place whenever difficulties are caused by the Opposition, cross benchers or other peers perhaps on their own side who wish to vote them down. Nobody suggests that all those peers created in a reconstituted second Chamber should be of Ministerial calibre. Certainly they are not now.

10.45 a.m.

Many of the complaints about earlier provisions in the Bill and the ludicrous provisions about chalking up a certain number of attendances have been directed to the fact that many experts who will be infrequent attenders will be debarred from effective membership. Therefore, nobody suggests that the Bill should be directed entirely to the creation of peers of ministerial calibre. Nevertheless, to put in a provision, as this Clause does, which will have the effect of being a disincentive to the creation of peers of ministerial calibre in the normal course of events is most extraordinary.

We still demand an explanation why this provision is in the Bill. It is yet another attempt at surreptitious patronage. It has other disturbing implications. In so far as there is another place of the kind which is in existence or of the kind envisaged in the Bill, I should have thought that the aim of a Labour Government would be to reduce to a minimum the number of Ministers in another place. There is a strong case for a small piece of enabling legislation to remove the statutory requirement that there shall be so many Ministers in another place in order that the Government may be properly constituted. I find it extraordinary that a Labour Government should introduce a Bill containing a Clause of this kind whose ultimate effect undoubtedly will be to increase the number of Ministers in the non-democratic Chamber. Therefore, I invite my hon. Friends to divide the Committee on the Amendment.

Mr. Lubbock

I did not propose to intervene in the debate, and I have no intention of delaying the proceedings, but I have been provoked into doing so by the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), who, with exceptional arrogance and offensiveness even for him, accused me of having made a mistake when I said that the Leader of the Opposition and the Opposition Chief Whip in another place were covered by the Clause because they are dealt with in the Ministerial Salaries Consolidation Act, 1965.

I do not know whether the right hon. Gentleman has read the White Paper, but obviously he has not read the Act referred to in the Clause. Under Section 4(1)(b) of the 1965 Act, the Leader of the Opposition in another place is paid a salary of £2,000 and the Chief Opposition Whip in another place is paid a salary of £1,500. I wonder whether those noble Lords are worth the money they are paid.

The Chairman

Order. The hon. Gentleman is getting away from the Amendment.

Mr. Lubbock

I am following up the point made by the hon. Member for Ormskirk (Sir D. Glover) last evening.

The Chairman

Order. I cannot help the hon. Gentleman. I must rule as I understand the Standing Orders.

Mr. Lubbock

The hon. Member for Ormskirk read out the names of all the Ministers who, he said, were covered by the Act. The Minister reminded him that the two noble Lords to whom I have referred had been left out of his calculations. Although the hon. Gentleman was able to give the name of the noble Lord, Lord Carrington, who is the Leader of the Opposition in another place, he could not remember the name of the Chief Opposition Whip, who is paid——

The Chairman

Order. The hon. Gentleman wondered whether the noble Lords were value for money. I must rule him out of order.

Mr. Lubbock

I am on another point.

The hon. Member for Ormskirk, who thought it important that the Committee should know the names of these noble Lords in coming to a decision on the Amendment, was unable to tell us the name of the Opposition Chief Whip in another place. I have not the faintest idea who this noble Lord is, and I wish that one of the Tories present this morning would enlighten me. I wonder whether they know the name of this noble Lord.

The Chairman

Order. The identity of the noble Lord is irrelevant to the Amendment.

Mr. Lubbock

Then why was the hon. Member for Ormskirk allowed to read out that list?

The Chairman

Order. I hope that the hon. Member will not reflect on the decision of the Chair at any time.

Mr. Lubbock

Of course I would not reflect on the Chair.

Mr. Iremonger

On a point of order. It is important that we know the identity of this noble Lord.

The Chairman

Order. The hon. Chairman heard my Ruling.

Mr. Boyd-Carpenter

The mistake which the hon. Member for Orpington (Mr. Lubbock) is making—this is why I suggested earlier that he was wrong—is that subsection (1)(a) refers to any office in respect of which salary is payable under the Ministerial Salaries Consolidation Act 1965". Although the hon. Gentleman is right in saying that Section 4 of that Act refers to payments made to this gentleman, it is significant that there is no reference there to an office. There is an earlier reference—for example, in Section 2—to offices. It is offices which are referred to in the Schedule. On the other hand—this is where the Minister was wrong—Section 4 of the 1965 Act neither creates an office nor attaches a salary to an office. It attaches the salary to individuals and, therefore, is outside the Bill, which refers to "an office".

The Chairman

Order. The right hon. Gentleman is making a very long intervention.

Mr. Lubbock

I have taken the point made by the right hon. Gentleman.

Mr. Boyd-Carpenter

On a point of order. I always accept your guidance, of course, Mr. Irving, but it will be within your recollection that the hon. Gentleman challenged my accuracy on a point. He was perfectly right to do so, because I think it is a difficult point, and he was courteous enough to give way. I hope that your Ruling does not indicate that in those circumstances the Member challenged is not permitted to explain a not terribly simple argument.

The Chairman

Order. I thought that I was helping the right hon. Gentleman by giving him considerable latitude already.

Mr. Lubbock

I have taken the right hon. Gentleman's point and I will reply to it. The question whether the Leader of the Opposition and the Chief Opposition Whip in another place are office holders within the meaning of subsection (1,a) is a matter for discussion. The right hon. Gentleman may have certain views on this, which I hope he will be able to give to the Committee. Yesterday the Under-Secretary said that these two noble Lords were included in the provisions of the Bill. With great respect to the right hon. Gentleman the Member for Kingston-upon-Thames, who I know thinks he is always right, and who is extremely proud of his legal knowledge——

Mr. Boyd-Carpenter

No.

Mr. Lubbock

—or who gives the impression that he is whenever he speaks in the House of Commons——

Mr. Boyd-Carpenter

No.

Mr. Lubbock

The right hon. Gentleman thinks he is always right. I say, with great respect to the right hon. Gentleman, that the Minister at the Home Office has access to considerable legal advice of his own. Therefore, if it comes to a dispute between the right hon. Gentleman and the Minister, who has the whole of the resources of his Department at his disposal, I know who I prefer to accept.

Mr. Ronald Bell

Deal with the argument.

Mr. Lubbock

I said that it is a matter for discussion. The right hon. Gentleman says that these two gentlemen are not within the provisions of this paragraph. The Minister said that they are. I prefer to accept the opinion of the Minister and to say that the right hon. Gentleman must be wrong.

Mr. Merlyn Rees

I speak only with second-hand omniscience, because I am not a lawyer. I took advice. All I can offer the hon. Gentleman is that the legal advice I was very firmly given was directly contrary to the advice which the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) offered a few moments ago. I offered last evening the advice I was given. I believe that the hon. Member for Orpington (Mr. Lubbock) is building his argument on the point I made, on which I took legal advice.

Mr. Boyd-Carpenter

rose—

Mr. Lubbock

The Under-Secretary was making an intervention in my speech, not in a speech of the right hon. Gentleman. If the right hon. Gentleman has anything to say, perhaps he will seek to catch the eye of the Chair later.

What the Minister has said in my view disposes of the matter. The Minister has taken the advice of his Department. The right hon. Member for Kingston-upon-Thames is wrong. That was the main reason for my wanting to speak.

There is another point which is worth drawing to the attention of the Committee, particularly after the contribution of the hon. Member for Reading (Mr. John Lee). Section 2 of the Ministerial Salaries Consolidation Act, 1965, places numerical limits on the number of Ministers of particular kinds who may be created at any time. For instance: The number of persons to whom salaries may be paid at any time as holders of the office of Secretary of State shall not exceed nine. Later on, numbers are stipulated for Ministers of State, Treasury Secretaries, Junior Lords of the Treasury, Assistant Government Whips, Lords in Waiting, and Parliamentary Secretaries.

If there is an overall maximum of the number of Ministers in each of these categories, by implication there are subsidiary limits on the number of these Ministers who serve in another place. Hon. Members opposite who have been supporting the Amendment will agree that there are practical lower limits below which one could not go on the number of Ministers serving in the House of Commons. There must be Ministers who are capable of answering Questions in all the Departments, replying to debates, and handling Bills in Standing Committees. If these are subtracted from the total numbers set out in Section 2 of the 1965 Act, one arrives at a maximum beyond which one could not in practice go in another place.

In any case, do hon. Members opposite seriously think that a Labour Government would increase the number of Ministers in another place? Probably what they have in mind is the danger that if the Tories return to office there will be a vast increase in the number of noble Lords, as there was from 1951 to 1955. However, for practical reasons which I have given, if by some unfortunate mischance a Tory Government were to return, this could not happen, because there must still be Ministers to do the work in Standing Committees of the House of Commons; there must still be Ministers on the Front Bench here to answer Questions, and so on. The Tories would be bound by the limits set out in Section 2, unless they were to alter them.

In the light of this consideration I believe that the hon. Member for Ashton-under-Lyne (Mr. Sheldon) has put up a bogey. I hope that on reflection he will decide that we can move on to more important matters.

Mr. Heffer

Presumably the hon. Member for Orpington (Mr. Lubbock) is overlooking the fact that Acts are sometimes amended. A simple way of overcoming the limitation on the numbers imposed by the 1965 Act would be by making a minor amendment to that Act. Then the number could become limitless or a further limitation could be imposed.

Accepting that the White Paper and the Bill set out the new constitution of the House of Lords, there will have to be an extension of the numbers of Ministers so that there will be sufficient Ministers in the other place to enable it to operate with its increased power and authority. So, although I understand the point the hon. Gentleman is making, I think that this practical difficulty could be easily overcome.

The hon. Gentleman's suggestion that a Labour Government would not increase the number of Ministers in the Lords, deplorable as I find such an exercise, flies in the face of the experience of the last two or three years. There was an argument last night about the number of Ministers in the other place. It has risen by only one or two, but it has nevertheless risen. This disposes of the hon. Gentleman's point that a Labour Government would not in any circumstances increase the number of Ministers in the Lords.

11.0 a.m.

Mr. Rees

Perhaps I might give a little information. Until relatively recently the number was lower than it had been for a good many years, and it is still smaller than it has been for many years. I accept the point that it has gone up or down by one, but in terms of overall numbers it is considerably less than under previous Tory Administrations.

Mr. Heffer

I am not denying this. It is right that the greatest fear is that, in the event of tie Conservatives taking over, there could be an enormous increase in the numbers of Ministers in the other place. Any other Government could do the same—if there were to be a Liberal Government for example.

Mr. Lubbock

No.

Mr. Heffer

I am glad to hear the assurance that this is not likely to happen under the Liberals.

It is clear that the section in the 1965 Act to which reference has been made does not apply only to Ministers of the Crown. In that sense it might be said that Amendment does not cover the point, but I think that it does.

The Leader of the Opposition and the Chief Whip in the other place are both beneficiaries under the Act. The hon. Member for Orpington gave the figures. The Leader of the Opposition in the other place gets £2,000 a year. His name, for the benefit of those who do not know it, is Lord Carrington. The Chief Opposition Whip in the other place gets £1,500. There seems to be some mystery about the name of that noble Lord. I understand that his name is Lord St. Aldwyn. I hope that this mystery is now cleared up for the benefit of members of the Committee.

Mr. Lubbock

Does not the hon. Gentleman think it remarkable that none of the Tories could tell us his name and that it had to be given by an hon. Member from the other side of the Committee?

Mr. Heffer

Perhaps hon. Gentlemen opposite do know his name but did not wish to reveal it, for reasons unknown to myself.

Mr. Iremonger

This is most interesting information about the identity of the noble Lord. But what really affects us in considering the Amendment is the age of the noble Lord. If the noble Lord was over 72 at the last possible date for dissolution of this Parliament, he would be a candidate for exemption under the Clause for the new House if the Labour Party formed a Government.

Mr. Rees

I have had a quick check made. If it is the correct person, he was born on 9th October, 1912.

Mr. Heffer

There is no doubt that as we go on the amount of information that the Committee gains is absolutely incredible. If nothing else, it has at least brought out this vital information. I am sure it is of great importance.

Mr. Boyd-Carpenter

It is a vital statistic.

Mr. Heffer

My hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) has said that he is not tied to the figure of four in the Amendment. I am not absolutely tied to that figure, but I think that it has a significance, which I will endeavour to explain. Excluding the Leader of the Opposition and the Chief Opposition Whip in the other place, and speaking in terms of four Ministers of the Government, irrespective of which party is in government, it would come down to something like this. One of my hon. Friends says that it should not be any, but I think that is going a little too far. I have considered the matter in concrete terms and this is what I have come up with.

First, the Lord Chancellor. We must have a Lord Chancellor—anyway, at present we must have a Lord Chancellor—so it seems perfectly logical and sensible that the Lord Chancellor should be a member of the Cabinet.

Mr. Powell

Is the hon. Gentleman aware that the Lord Chancellor does not need to be a member of the House of Lords, and often has not been?

Mr. Heffer

I accept that this is so, but we are looking at it in the context of the present situation, and for some time the Lord Chancellor has been a member of the House of Lords. It seems to me that he is a good candidate for being one of the four Ministers and a member of the Cabinet.

Second, I think that the Leader of the House of Lords should be included; third, the senior Government Whip, and, fourth, the junior Government Whip.

Those are the four candidates who I feel should be included. That is why we have been exceedingly generous in the Amendment. We do not go as far as my hon. Friend the Member for Reading (Mr. John Lee) who wants to eliminate the whole lot. We suggest that there is a good case for four Ministers in the other place.

Mr. Iremonger

The Amendment is concerned only to limit the number of Ministers who were over the age of 72 at the dissolution of the last Parliament or were otherwise ineligible. There could be any number of eligible Ministers under the Amendment and under the Clause.

Mr. Heffer

There could be other Ministers, I accept. But, from our point of view, we argue against any other Ministers in the other place.

An Hon. Member

Not even the old ones?

Mr. Heffer

Perhaps the hon. Gentleman would like the old ones.

I do not like the position where a number of Ministers in the other place, no matter how good they are, never have to get up in this place where the elected representatives of the people can subject them to questions and discussion in debate. I see nothing wrong with the principle of having the majority of our Ministers subject to this House and, in turn, subject to the electorate. If they are hopelessly wrong or incompetent at the end of their term in the House of Commons the electorate can then give them their answer. I feel that this is of great importance.

Mr. Lubbock

While accepting that Ministers ought to be members of this House so that they can be called to answer questions by hon. Members, may I ask whether the hon. Gentleman thinks there is a legitimate case for having at least Parliamentary Secretaries in the other place also covered by the Clause?

Mr. Heffer

I was coming on to this point. If we had an elected second Chamber which was equally responsible to the electorate, there is a very good argument for an equal distribution, or a greater distribution, of Ministers in the elected democratic second Chamber. But we are not talking about an elected second Chamber.

I have heard it said here many times that if we had an elected second Chamber it would inevitably have equal powers with this Chamber. That is why everyone puts his hand on his heart in this Chamber and says that under no circumstances do we ever want an elected second Chamber. But what is happening now? If the Clause is carried un-amended the powers of the second Chamber will be almost equal to ours, and there is no democracy attached to it.

I say seriously to those who until now have thought that we have been rather silly in our opposition to the Bill that every hon. Member should bear this point in mind. It is fundamental, and they should ask themselves why we are fighting the Bill as we are.

The White Paper has a great deal of significance for the Clause, and Appendix II bears quoting again. If the parts of the White Paper embodied in the Bill are carried, the relationship between the two Houses will be changed. There will be more Ministers in the House of Lords. Appendix II says: 2. A substantial contribution towards improving the legislative process could be obtained by spreading the introduction of public bills more evenly over the session and dividing it more equally between the two Houses. More bills would therefore be introduced in the House of Lords. … and it might be necessary, in order to obtain full advantage from an improved flow of legislation from one House to the other, to increase the number of Cabinet and other Ministers in the House of Lords. At present there are in the House only two Cabinet Ministers and 13 other Ministers (including the Whips), … The operative word is "only". The Government are saying that there are not enough. They are saying that they want to give the Lords more powers, that they want to introduce Bills in another place and to give their lordships more rights, and that, therefore, more Ministers are needed there.

The Appendix also says: 3. If the Lords are to play a more useful part in the legislative process it might be desirable to adopt some form of public bill committee procedure, which need not necessarily be modelled on the procedure for the Commons' standing committees. Other aspects of public bill procedure in the House of Lords might also be considered: for example, whether or not it is desirable to follow the example of the House of Commons in the use of second reading committees.

Mr. Lubbock

Hear, hear.

Mr. Heffer

The hon. Gentleman is rather like a sheep going to the cliff, bleating away and then finding himself dead when he falls over. That is what will happen if we accept the Clause as it stands.

Paragraph 4 of the Appendix says: A convention might be established that certain classes of Bills should start in one House and then receive detailed examination by a joint committee. … A further possibility would be to commit to a joint committee private members' bills on controversial social subjects … I shall not argue about that suggestion, because it is not quite so important.

If these proposals are to work there will have to be an increase in the number of Ministers in the other place. If one is to initiate new Bills there and to have joint committees, with Bills coming through from the other place, there must be Ministers who have been in charge from the beginning.

Mr. Lubbock

I am grateful to the hon. Gentleman for permitting me to intervene again. What I said "Hear, hear" to was the idea of a Second Reading Committee in the other place. If Second Readings could be taken off the floor of the House of Lords fewer Ministers would be needed there, not more.

Mr. Heffer

I do not see that that follows. Even in a Second Reading Committee Ministers are needed to guide the Bill through. That has always been the experience in this House.

Mr. Powell

The point of a Second Reading Committee is that at the same time as it is sitting other business can be transacted on the Floor of the House. Therefore, one needs a double team of Ministers to get any benefit out of the innovation.

[Mr. HARRY GOURLAY in the Chair]

11.15 a.m.

Mr. Heffer

I am grateful to the right hon. Gentleman, who has underlined my point that the proposal would mean an extension of the number of Ministers.

My point becomes really significant in the light of the speech on House of Lords reform by the Lord Chancellor on 19th November, 1968, in the other place. He said: I hope that your Lordships' reading has extended to Appendix II. One of the great advantages of this reform will be that it will then enable all of us to sit down in circumstances in which we are no longer battling with another place, to consider together the reform of Parliament; and, as is pointed out in Appendix II, on Public Bills, with a reformed House there would be no reason why a Bill should start in one House and not in the other. It would need the other place to give way on some of their financial privileges, but I see no reason to anticipate that they would not do that if it were for the good of Parliament. I want to emphasise the point about financial privileges. If that is not giving extra power to the other place, I do not know what is. The answer is to restrict the number of Ministers there, so that the other place could not initiate the types of Bills suggested by the Lord Chancellor. He also said: … I believe, too, that with these reforms the influence of your Lordships' House on the country will be greater than it is to-day."—[OFFICIAL REPORT, House of Lords, 19th Nov., 1968; Vol. 297, c. 650–2.] Those were the last words uttered by the Lord Chancellor in opening that debate. That was what was being commended to their Lordships and being sold to them. I ask hon. Members not to be misled.

Mr. F. Humblet, Secretary-General of the Belgian Senate, in a report on behalf of the Association of Secretaries General of Parliaments on bicameral Parliaments, said the following, which is opposite to the Clause and Amendment: While in a democratic age it might appear surprising that a House with such an overwhelming hereditary element has survived in its present form, it should be remembered that the legislative powers of the Lords vis-á-vis the Commons have been progressively reduced by the Parliament Acts of 1911 and 1949; and the Lords have no rights in relation to financial legislation. But under the terms——

The Deputy Chairman (Mr. Harry Gourlay)

Order. The Amendment deals not with the rights of another place but with whether we should have four or more Ministers there. Perhaps the hon. Gentleman would relate his remarks more to the Amendment.

Mr. Heffer

I accept your Ruling, Mr. Gourlay. I am doing my best to point out that the whole question of the number of Ministers related to the powers of the other place. That is the burden of my argument. The quotation goes on: But while the aristocratic Chamber seems to be disappearing it is worth noting that the method of appointing Members of the Upper House is no more democratic in several States. It seems that some Constitutions have deliberately attempted to temper the democratic character of the Lower House by introducing more conservative elements into the Upper House. We should bear statements of that kind in mind. It underlines the fundamental point I am making. If there is not a limitation on the number of Ministers, we shall see a great mushrooming of various joint committees. It is true that we have Joint Committees now, but they are strictly limited. Under this proposition, there would also be Standing Committees to deal with Bills and so forth. We cannot accept such a proposition.

While it is true that there is a limitation on the number of Ministers at present, there could still be an expansion. I believe that the powers which this Clause would give to any Prime Minister are too much for us to accept. The powers both of the Prime Minister and the Leader of the Opposition would be extended in relation to nomination to the other place. We have heard about there being first and second grades of Minister. There would be six grades of peer under this Bill. But in addition to all those peers who are to have added powers, we could have enormous numbers of Ministers in the other place, all in the gift of the Prime Minister of the day. I do not think that we should or can accept this. The Amendment is designed to limit the number of Ministers in the other place for the sake of the efficiency and power of House of Commons and to ensure that such power is not given into the hands of the Prime Minister.

It is no use arguing that the Clause would not radically change the situation. First, the second Chamber would have increased powers; second, the number of peers with voting rights would be much smaller and therefore those with voting rights would have that much greater power; third, the ratio of Ministers, even accepting the number of Ministers at present in another place, would be that much greater than at present. All this adds up to extra power and influence of the other place.

We are asked, therefore, to accept a fundamental and important change in the relationship between the two Houses. In essence, this would be a weakening of the democratic process precisely because there would be nominated and not elected representatives. I do not like the other place as it is, but I prefer it as it is to this proposition. I hope that the Committee will support the Amendment.

Several Hon. Members

rose—

Mr. John McCann (Lord Commissioner of the Treasury)

rose in his place and claimed to move, That the Question be now put.

Hon. Members

No.

The Deputy Chairman

The Question is—

Mr. Powell

On a point of order, Mr. Gourlay. I thought I heard you—but I must have been mistaken—putting the Question, That the Question be now put. In that case, you cannot be aware that the Minister intervened briefly earlier in the debate for the assistance of the Committee and that many important points have since then been put to which the Committee is entitled to a reply, even at this stage. I am sure that there must have been some mistake.

The Deputy Chairman

I can deal with that point of order by saying that the Chair has taken all the circumstances mentioned by the right hon. Member for Wolverhampton, South-West (Mr. Powell) into account.

Question put, That the Question be now put:—

The Committee proceeded to a Division—

Mr. John Lee

(seated and covered): On a point of order, Mr. Gourlay. I understood the Minister to say that he would not be seeking leave of the Committee because he did not need leave

of the Committee. The inference was surely that he would reply to the debate. Is not your acceptance of the Motion for the Closure outwith your powers, therefore?

The Deputy Chairman

No. That point is a matter not for the Chair but for the Minister.

11.30 a.m.

Mr. John Biggs-Davison (Chigwell)

(seated and covered): On a point of order, Mr. Gourlay. I could not hear the Ruling that you gave to the hon. Member for Reading (Mr. John Lee). Would you repeat it?

The Deputy Chairman

I told the hon. Member for Reading (Mr. John Lee) that the point he raised was a matter not for the Chair but for the Minister.

The Tellers being called to the Table, Mr. MCCANN reported that one of the Tellers had voted in the No Lobby before acting as Teller.

Whereupon The CHAIRMAN directed the Committee to proceed again to a Division:—

The Committee divided: Ayes 123, Noes 50.

Division No. 146.]	AYES	[11.35 a.m.
Anderson, Donald	Evans, Fred (Caerphilly)	Loughlin, Charles
Archer, Peter	Evans, Ioan L. (Birm'h'm, Yardley)	Lubbock, Eric
Bacon, Rt. Hn. Alice	Fernyhough, E.	Mabon, Dr. J. Dickson
Bagier, Gordon A. T.	Ford, Ben	McBride, Neil
Benn, Rt. Hn. Anthony Wedgwood	Forrester, John	McCann, John
Bishop, E. S.	Freeson, Reginald	MacColl, James
Blackburn, F.	Garrett, W. E.	Mackenzie, Gregor (Rutherglen)
Boyden, James	Gregory, Arnold	Maclennan, Robert
Bradley, Tom	Grey, Charles (Durham)	McMillan, Tom (Glasgow, C.)
Bray, Dr. Jeremy	Griffiths, David (Rother Valley)	MacPherson, Malcolm
Brown, Bob (N'c'tle-upon-Tyne, W.)	Griffiths, Eddie (Brightside)	Mallalieu, J. P. W. (Huddersfield, E.)
Brown, R. W. (Shoreditch & F'bury)	Hannan, William	Manuel, Archie
Buchan, Norman	Harrison, Walter (Wakefield)	Millan, Bruce
Callaghan, Rt. Hn. James	Haseldine, Norman	Miller, Dr. M. S.
Cant, R. B.	Hazell, Bert	Mitchell, R. C. (S'th'pton, Test)
Carmichael, Neil	Herbison, Rt. Hn. Margaret	Morgan, Elystan (Cardiganshire)
Coe, Denis	Howell, Denis (Small Heath)	Morris, Charles R. (Openshaw)
Concannon, J. D.	Hoy, James	Morris, John (Aberavon)
Cullen, Mrs. Alice	Hughes, Rt. Hn. Cledwyn (Anglesey)	Oakes, Gordon
Dalyell, Tam
Darling, Rt. Hn. George	Hunter, Adam	O'Malley, Brian
Davidson, Arthur (Accrington)	Irvine, Sir Arthur (Edge Hill)	Owen, Dr. David (Plymouth, S'tn)
Davies, Ednyfed Hudson (Conway)	Jenkins, Rt. Hn. Roy (Stechford)	Parker, John (Dagenham)
Davies, G. Elfed (Rhondda, E.)	Johnson, James (K'ston-on-Hull, W.)	Pearson, Arthur (Pontypridd)
		Peart, Rt. Hn. Fred
Davies, Dr. Ernest (Stretford)	Jones, Dan (Burnley)	Pentland, Norman
Davies, Rt. Hn. Harold (Leek)	Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)	Perry, Ernest G. (Battersea, S.)
Dempsey, James	Jones, T. Alec (Rhondda, West)	Price, William (Rugby)
Doig, Peter	Judd, Frank	Probert, Arthur
Dunnett, Jack	Kelley, Richard	Rees, Merlyn
Dunwoody, Mrs. Gwyneth (Exeter)	Lawson, George	Reynolds, Rt. Hn. G. W.
Eadie, Alex	Leadbitter, Ted	Roberts, Rt. Hn. Goronwy
Edwards, William (Merioneth)	Lee, Rt. Hn. Frederick (Newton)	Robinson, Rt. Hn. Kenneth (St. P'c'as)
Ellis, John	Lewis, Ron (Carlisle)	Ross, Rt. Hn. William
Ensor, David	Lomas, Kenneth	Rowlands, E.
Short, Rt. Hn. Edward (N'c'tle-u-Tyne)	Urwin, T. W.	Williams, Clifford (Abertillery)
Silkin, Rt. Hn. John (Deptford)	Wainwright, Edwin (Dearne Valley)	Williams, Mrs. Shirley (Hitchin)
Silverman, Julius	Walker, Harold (Doncaster)	Woodburn, Rt. Hn. A.
Small, William	Watkins, David (Consett)	Woof, Robert
Steele, Thomas (Dunbartonshire, W.)	Weitzman, David
Stewart, Rt. Hn. Michael	Whitlock, William	TELLERS FOR THE AYES:
Taverne, Dick	Wilkins, W. A.	Mr. Alan Fitch and
Thomson, Rt. Hn. George	Willey, Rt. Hn. Frederick	Mr. Joseph Harper.
Tinn, James	Williams, Alan (Swansea, W.)
NOES
Allaun, Frank (Salford, E.)	Grimond, Rt. Hn. J.	Royle, Anthony
Atkins, Humphrey (M't'n & M'd'n)	Heffer, Eric S.	Ryan, John
Biggs-Davison, John	Iremonger, T. L.	Sheldon, Robert
Booth, Albert	Jopling, Michael	Steel, David (Roxburgh)
Boyd-Carpenter, Rt. Hn. John	Kitson, Timothy	Taylor, Edward M. (G'gow, Cathcart)
Brewis, John	Langford-Holt, Sir John	Temple, John M.
Carlisle, Mark	Lee, John (Reading)	Thatcher, Mrs. Margaret
Clegg, Walter	McAdden, Sir Stephen	Wainwright, Richard (Colne Valley)
Cordle, John	Marten, Neil	Ward, Dame Irene
Corfield, F. V.	Monro, Hector	Weatherill, Bernard
Elliott, R. W. (N'c'tle-upon-Tyne, N.)	Mott-Radclyffe, Sir Charles	Wiggin, J.
Ewing, Mrs. Winifred	Nabarro, Sir Gerald	Williams, Donald (Dudley)
Farr, John	Orme, Stanley	Woodnutt, Mark
Foot, Michael (Ebbw Vale)	Paget, R. T.	Younger, Hn. George
Foster, Sir John	Powell, Rt. Hn. J. Enoch
Goodhew, Victor	Pym, Francis	TELLERS FOR THE NOES:
Gower, Raymond	Ramsden, Rt. Hn. James	Mr. Ronald Bell and
Grant, Anthony	Ridsdale, Julian	Mr. Russell Kerr.

Question put accordingly, That the Amendment be made:—

The Committee divided: Ayes 45, Noes 127.

Division No. 147.]	AYES	[11.44 a.m.
Allaun, Frank (Salford, E.)	Iremonger, T. L.	Ridsdale, Julian
Biggs-Davison, John	Jackson, Peter M. (High Peak)	Sheldon, Robert
Boardman, Tom (Leicester, S. W.)	Jopling, Michael	Smith, John (London & W'minster)
Booth, Albert	Kitson, Timothy	Taylor, Edward M. (G'gow, Cathcart)
Boyd-Carpenter, Rt. Hn. John	Lee, John (Reading)	Thatcher, Mrs. Margaret
Brewis, John	McAdden, Sir Stephen	Wainwright, Richard (Colne Valley)
Clegg, Walter	Marten, Neil	Ward, Dame Irene
Corfield, F. V.	Mitchell, R. C. (S'th'pton, Test)	Wiggin, J.
Ewing, Mrs. Winifred	Monro, Hector	Williams, Donald (Dudley)
Farr, John	Nabarro, Sir Gerald	Woodnutt, Mark
Foot, Michael (Ebbw Vale)	Orme, Stanley	Wright, Esmond
Foster, Sir John	Paget, R. T.	Younger, Hn. George
Goodhew, Victor	Park, Trevor
Gower, Raymond	Perry, George H. (Nottingham, S.)	TELLERS FOR THE AYES:
Grimond, Rt. Hn. J.	Powell, Rt. Hn. J. Enoch	Mr. Ronald Bell and
Heffer, Eric S.	Ramsden, Rt. Hn. James	Mr. Russell Kerr.
Hughes, Emrys (Ayrshire, S.)
NOES
Anderson, Donald	Davies, Rt. Hn. Harold (Leek)	Hart, Rt. Hn. Judith
Archer, Peter	Dempsey, James	Haseldine, Norman
Bacon, Rt. Hn. Alice	Doig, Peter	Hazell, Bert
Bagier, Gordon A. T.	Dunnett, Jack	Herbison, Rt. Hn. Margaret
Benn, Rt. Hn. Anthony Wedgwood	Dunwoody, Mrs. Gwyneth (Exeter)	Howell, Denis (Small Heath)
Bishop, E. S.	Eadie, Alex	Hoy, James
Blackburn, F.	Edwards, William (Merioneth)	Hughes, Rt. Hn. Cledwyn (Anglesey)
Boyden, James	Ellis, John	Hunter, Adam
Bradley, Tom	Ennals, David	Irvine, Sir Arthur (Edge Hill)
Bray, Dr. Jeremy	Ensor, David	Jenkins, Rt. Hn. Roy (Stechford)
Brown, Bob (N'c'tle-upon-Tyne, W.)	Evans, Fred (Caerphilly)	Johnson, James (K'ston-on-Hull, W.)
Brown, R. W. (Shoreditch & F'bury)	Evans, Ioan L. (Birm'h'm, Yardley)	Jones, Dan (Burnley)
Buchan, Norman	Fernyhough, E.	Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Callaghan, Rt. Hn. James	Ford, Ben	Jones, T. Alec (Rhondda, West)
Cant, R. B.	Forrester, John	Judd, Frank
Carmichael, Neil	Freeson, Reginald	Kelley, Richard
Coe, Denis	Garrett, W. E.	Lawson, George
Concannon, J. D.	Gregory, Arnold	Leadbitter, Ted
Cullen, Mrs. Alice	Grey, Charles (Durham)	Lee, Rt. Hn. Frederick (Newton)
Dalyell, Tam	Griffiths, David (Rother Valley)	Lewis, Ron (Carlisle)
Darling, Rt. Hn. George	Griffiths, Eddie (Brightside)	Lomas, Kenneth
Davidson, Arthur (Accrington)	Hamilton, James (Bothwell)	Loughlin, Charles
Davies, Ednyfed Hudson (Conway)	Hamling, William	Lubbock, Eric
Davies, G. Elfed (Rhondda, E.)	Hannan, William	Mabon, Dr. J. Dickson
Davies, Dr. Ernest (Stretford)	Harrison, Walter (Wakefield)	McBride, Neil
McCann, John	Peart, Rt. Hn. Fred	Thomson, Rt. Hn. George
MacColl, James	Pentland, Norman	Tinn, James
Mackenzie, Gregor (Rutherglen)	Perry, Ernest G. (Battersea, S.)	Urwin, T. W.
Maclennan, Robert	Price, William (Rugby)	Wainwright, Edwin (Dearne Valley)
McMilan, Tom (Glasgow, C.)	Probert, Arthur	Walker, Harold (Doncaster)
McNamara, J. Kevin	Rees, Merlyn	Watkins, David (Consett)
MacPherson, Malcolm	Reynolds, Rt. Hn. G. W.	Weitzman, David
Mallalieu, J. P. W. (Huddersfield, E)	Roberts, Rt. Hn. Goronwy	Whitlock, William
Manuel, Archie	Robinson, Rt. Hn. Kenneth (St. P'c'as)	Wilkins, W. A.
Millan, Bruce	Ross, Rt. Hn. William	Williams, Alan (Swansea, W.)
Miller, Dr. M. S.	Rowlands, E.	Williams, Clifford (Abertillery)
Morgan, Elystan (Cardiganshire)	Ryan, John	Williams, Mrs. Shirley (Hitchin)
Morris, Charles R. (Openshaw)	Short, Rt. Hn. Edward (N'c'tle-u-Tyne)	Woodburn, Rt. Hn. A.
Morris, John (Aberavon)	Silkin, Rt. Hn. John (Deptford)	Woof, Robert
Oakes, Gordon	Silverman, Julius
O'Malley, Brian	Small, William	TELLERS FOR THE NOES:
Owen, Dr. David (Plymouth, S'tn)	Steel, David (Roxburgh)	Mr. Alan Fitch and
Parker, John (Dagenham)	Steele, Thomas (Dunbartonshire, W.)	Mr. Joseph Harper.
Pearson, Arthur (Pontypridd)	Taverne, Dick

The Deputy Chairman (Mr. Harry Gourlay)

We now come to Amendment No. 31—

Mr. Boyd-Carpenter

On a point of order. I would be grateful if you could help the Committee, Mr. Gourlay, in the suggestion which has now arisen. It will be within your recollection, since you were in the Chair at the time, that during the debate which has just been terminated the Under-Secretary of State for the Home Department intervened fairly early this morning and that after his speech several speeches were made which raised questions. The hon. Member for Orpington (Mr. Lubbock) and I raised from different angles a point on the construction of the Bill and of the Amendment which it was understood that the Minister would answer. I would be out of order were I to comment on the circumstances in which the debate was terminated, but I seek your guidance on whether, on the specific point on the construction of the Bill in relation to that Amendment, on which I had my friendly difference of view with the hon. Member for Orpington, and on the other points raised, it would be in order, to make up for the omission, for the Minister to reply during the debate on the Question, That the Clause stand part of the Bill. I would be grateful if you could reassure us on this point.

The Deputy Chairman

It is not a matter for the Chair to give a specific assurance on what may be hypothetically possible. I think that we should wait until we come to the Question, That the Clause stand part of the Bill.

Mr. Boyd-Carpenter

I understand that but, with respect, what I was seeking was guidance on whether you would rule out of order an attempt by the Minister on that Motion to reply to the points raised on the Amendment which we have just been debating.

The Deputy Chairman

I think the Committee had better wait for the guidance of the Chair at the time of the debate on the Question, That the Clause stand part of the Bill.

Mr. Michael Foot

On a point of order. Might I suggest the possibility of a different way in which the Committee might proceed? May I ask for your consideration as to whether I would be given the opportunity to move to report Progress and ask leave to sit again on these grounds; first,——

The Deputy Chairman

Order. The hon. Gentleman is seeking to ask leave to report Progress, but I am afraid I am unable to accept the Motion at this point.

Mr. Foot

May I submit to you, Mr. Gourlay, the reasons why you might be prepared to consider it? I will do so briefly. It has been the common practice when an hon. Member rises to suggest that such a Motion might be considered that he should be able to mention briefly the points to which he wishes to refer, although I agree that the points cannot be made extensively. The points to which I refer are two. First, many of us believe that the last debate was truncated, particularly in the example which the right hon. Gentleman has mentioned, and those of us on this side of the Committee who have been here throughout the whole of the debate and wish to participate believed that we would have a further period of discussion and that that matter could be discussed on the Motion to report Progress.

Secondly, an entirely novel situation has arisen, in that a Teller voted in the last Division, and if on subsequent Divisions Tellers were to use the same method it would mean that the procedure of the Committee could be entirely blocked. If you would quote precedents, Mr. Gourlay, I would be glad to hear them, but, as far as I know, this is an unprecedented situation, and I therefore suggest that the best and most orderly way for the Committee to deal with these two questions is that you should accept the Motion, particularly as we have made some progress since the Session started at approximately 3.30 yesterday afternoon.

The Deputy Chairman

Order. I am unable to accept the hon. Gentleman's submission. Both points have already been dealt with.

Mr. Powell

Mr. Gourlay, it will be within your recollection that at a recent stage of our proceedings the question of the range of application of Clause 5 and the point on interpretation arose which the Minister was unable to clear up because discussion occurred after his intervention. In these circumstances, Mr. Gourlay, I submit that the Committee is in great difficulty in proceeding to consider a Clause without knowledge of its application, and that we should have the means in our power of securing from the Government a ruling and an interpretation which will enable us to know to what the Amendments that we are discussing relate. We are in doubt as to the application and the meaning of the terms of the Clause which govern all the Aemndments which are to be considered. I submit that to you, Mr. Gourlay, in connection with the points which have been made by the hon. Member for Ebbw Vale (Mr. Foot).

Mr. Paget

On a point of order. Surely, the opportunity to discuss the points made by my hon. Friend and the right hon. Gentleman will be when we come to the Question, That the Clause stand part of the Bill.

The Deputy Chairman

I cannot give hypothetical Rulings because it depends on the occupant of the Chair when the debate on the Question, That the Clause stand part of the Bill, takes place. I know that the right hon. Gentleman is in some difficulty. On the other hand, the point which he has raised is not a matter for the Chair at this stage. I would suggest that we proceed to discuss Amendment No. 31 together with Amendment No. 236, and perhaps during the debate some information may be elicited.

Mr. Heffer

On a point of order. It is reported in HANSARD that yesterday during the speech of my hon. Friend the Member for Ebbw Vale (Mr. Foot) I made an interjection, as follows: Perhaps they are suffering from a collective pressure."—[OFFICIAL REPORT, 1st April, 1969; Vol. 781, c. 287.] What I said was this: Perhaps they are suffering from a collective mindlessness. This is not quite the same thing. I was referring to the absent Members of the Opposition Front Bench. May I ask your guidance, Mr. Gourlay, on how this erroneous impression in HANSARD can be corrected?

12 noon.

The Deputy Chairman

I am obliged to the hon. Gentleman for calling attention to this mistake in the OFFICIAL REPORT. Perhaps he will take it up with the appropriate authorities, and the Chair will do the same.

Mr. Boyd-Carpenter

On a point of order, Mr. Gourlay. You said just now that you hoped that the Committee would proceed with the Amendment which you were about to call, and you added the comment that the point which I have raised might be elicited in the course of that debate. This is not hypothetical, nor is it a point for any other occupant of the Chair. It refers to this moment and the present distinguished occupant of the Chair. Am I to understand that I should be in order in raising that matter in the forthcoming debate and that the Minister would be in order in responding? That is what I understood your observation to indicate. It would be a great pity if there were any misunderstanding about this, and perhaps you would assist the Committee on it.

The Deputy Chairman

If we proceed with the debate, the occupant of the Chair at the time will be in a position to decide whether the right hon. Gentleman is in order during the course of the discussion.

Mr. Boyd-Carpenter

Do I understand that to mean that you are expressing only a hypothetical possibility that it might be elicited and not, as I understood, giving an indication in broad terms that this will be permitted? It makes a difference.

The Deputy Chairman

That depends on how the right hon. Gentleman relates his remarks to the Amendment at the time.

Mr. Ronald Bell

Further to that point of order, Mr. Gourlay. The point that my right hon. Friend referred to was the question canvassed in the debate on the last Amendment of whether the Leader of the Opposition and the Chief Whip in the House of Lords were to be included in the number of four which figures in the last Amendment. What troubles me about your Ruling, however tentatively given, is that the Amendment which we are about to consider, when it is moved, deals with high judicial offices within the meaning of the Appellate Jurisdiction Act. One would hesitate to describe the Leader of the Opposition and the Chief Whip in the other place as holders of high judicial offices, and I ventured to wonder whether it would be appropriate to continue the truncated debate which we had on the last Amendment to carry through to fruition the arguments which we then deployed.

The Deputy Chairman

The hon. and learned Gentleman's point is not a matter for the Chair. Perhaps we can proceed with the Amendment. Mr. Lee.

Mr. John Lee

I beg to move—

Mr. Powell

On a point of order. Mr. Gourlay. Might I raise with you a point which arises out of the recent Divisions which have taken place in this Committee? My point refers to the first of those Divisions, which was abortive, though not to the grounds on which it was declared by you to be abortive. I understand that an hon. Member entered the voting Lobby by the exit door at a time when the other doors leading into the Lobby had already been locked on your orders—[HON. MEMBERS: "Oh."] Although the Division in question was declared by you to be invalid on other grounds, I apprehend that it would be right for the Committee to receive your guidance on whether such an action is in accordance with the rules of order for future cases.

The Deputy Chairman

I appreciate the point which the right hon. Gentleman raises, but, as he has indicated, the Division was disqualified on other grounds. I think that we might leave it at that.

Mr. Powell

Further to that point of order. I am not arguing as to the validity of that Division which, as I said, was abortive. Nevertheless, it is a matter of importance. I apprehend that it is the duty of an hon. Member to raise and have resolved for the guidance of hon. Members on future occasions whether an action such as I understand occurred on that occasion is proper or improper. I would submit that it is wholly right that this point should be put to you at the earliest opportunity so that it may be resolved, irrespective of whether or not that Division was abortive.

Mr. Ronald Bell

Further to that point of order, Mr. Gourlay. I rise because the same thing occurred in the Committee last night when I was a Teller and an hon. Member entered the exit doors after the main doors had been locked. On that occasion, the two Tellers of whom I was one declined to count the hon. Member's vote. I hope that we were right in doing that. My recollection is that, when this has arisen in the past, Mr. Speaker has ruled that an hon. Member may enter the exit door and be counted provided that the main doors have not been locked on the order of the Chair. Since it has happened twice within 24 hours, perhaps we should have a Ruling on it, because it seems to be becoming a habit in the Committee. I suggest that when the main doors are locked, a different situation arises, that we were right to refuse to count the hon. Member's vote yesterday, and that it would be right to do so in future.

The Deputy Chairman

I think that most hon. Members know that it is wrong to enter the Lobby after the main doors have been locked. However, the Division in question has already been declared abortive. It would have been in order for the Chair to have ruled on the point which the right hon. Member for Wolverhampton, South-West (Mr. Powell) has raised if he had raised it at the time, but some time has elapsed since then.

Mr. John Farr (Harborough)

Further to that point of order, Mr. Gourlay. As soon as you declared the Division to be invalidated and called a new Division, a number of hon. Members immediately proceeded to their appropriate voting Lobbies. I have a suspicion that, while I was absent and voting for the second time, you may have said something from the Chair as to the reasons why you had declared the first Division to be abortive. As you may have done that, might I ask you to repeat it for the benefit of those of us who were not in the Chamber? On the other hand, if you have not declared officially why the first Division was abortive, may I ask you to give your reasons now?

The Deputy Chairman

The whereabouts of hon. Members when a decision is given is not the responsibility of the Chair. The matter has already been decided. I do not think that we can go back on it at this stage.

Mr. Biggs-Davison

Further to that point of order, Mr. Gourlay. Did you say to my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) that it was impossible to investigate his allegation because some time has elapsed between the circumstances which he adduced and his raising the matter with you? If an impropriety has been committed in a Division, surely it is necessary to investigate what happened. Hon. Members who may have committed some impropriety should be discouraged from doing so again. If no action is taken, the same circumstances may arise in the future. Will you, therefore, institute an investigation into the exact circumstances of my right hon. Friend's allegation, and perhaps report to the Committee and give a considered Ruling upon your findings?

The Deputy Chairman

The Division had already been declared void, so the remarks of the hon. Member for Chigwell (Mr. Biggs-Davison) make no difference to the point which has been raised.

Mr. Farr

Further to that point of order, Mr. Gourlay. Are we to take it, therefore, that the Chair declines to state the reasons why the Division was invalidated? It may be of interest to you to know that it is being said already, in the absence of a clear declaration from the Chair, that it was a Government Minister who went through the Lobby, voted, and thereupon took upon himself the duty of acting as a Teller. I am sure that that is an inaccurate and possibly wild and nonsensical rumour. [An HON. MEMBER: "The Leader of the House."] [Laughter.] This is terribly serious. It is an example of what can occur when no authoritative statement is made available to both sides of the Committee by the Chair.

The Deputy Chairman

Order. The Chair made a completely authoritative statement at that point. I am sure that the hon. Member will be able to read what was said in HANSARD tomorrow.

Mr. John Lee

I beg to move Amendment No. 31, in page 4, leave out lines 30 to 32.

This Amendment and Amendment No. 236, in page 5, line 7, leave out: 'for the purposes of any judicial business'. are the only ones that relate to the important facets of the judicial functions of certain Members of the other House. I apprehend that it would be in order if the debate became a somewhat wider ranging one, since this judicial function is the second most important function of the House of Lords.

The history of the position of the Law Lords is that until the Judicature Act, 1874, the House of Lords exercised its judicial functions in a plenary capacity. Its functions were appellate or of original jurisdiction, in respect of matters such as impeachment. The decision was the decision of all Members of the House of Lords and there was, in effect, no distinction between a lay peer and a learned peer or a peer with legal qualifications.

With the growing complication of the law this was found to be an unsatisfactory situation, and in 1874 the lay Peers were debarred from voting and speaking on any judicial business. That situation has existed until today. As I understand it, the Bill will have the unfortunate effect, at least by implication, of implicating the judicial Members of the House of Lords in its political activities. We have just been discussing the position of Ministers in the other place and the question whether there should be special provisions to enable extra voting places to be created in the other House. That provision was defended by the Government broadly on the ground of convenience. They said that it might help the proper expedition of business if extra Ministers were created in the other place and that it would be anomalous if those Ministers were not vested with the franchise of voting rights.

Even if that argument is tenable—and many hon. Members on both sides of the Committee hold most emphatically that it is not—it certainly cannot be said to be true of the position of the Law Lords. Under the practice has grown up—which hon. Members of all parties would probably commend—although the Lords of Appeal in Ordinary, the Lord Chief Justice and the Master of the Rolls sit in the House of Lords and have the same voting rights as do ordinary lay members of the Chamber, they do not generally take part in political debates or in the discussion of matters that are recognisably within the ambit of ordinary political controversy.

That does not mean to say that none of them ever makes a controversial speech; indeed, Lord Goddard has been known to be explosively controversial in respect of a number of social issues—but they were not issues which were recognisably within the scope of party politics.

12.15 p.m.

Why on earth do the Government regard it as necessary gratuitously to exempt the Lords of Appeal in Ordinary from the provisions relating to disqualification that otherwise would apply? Why should they place the Lords of Appeal in this specially privileged position? Subsection (1) provides that A peer of first creation who is for the time being the holder of an office to which this section applies, that is … any high judicial office within the meaning of the Appellate Jurisdiction Act 1876 as amended by section 5 of the Appellate Jurisdiction Act 1887, shall be qualified as a voting peer whether or not he is or could be so qualified by virtue of voting declaration under the foregoing provisions of this Act". It would surely have been far more appropriate if, instead of that provision, there had been a provision which excluded all the judicial Lords from taking part in the political business of the House of Lords. In the absence of such a provision I commend the Amendment. It would at any rate prevent the situation from becoming even worse.

For some time many hon. Members have felt a measure of concern at the anomalous position of the judicial peerage in a political system. I think in particular of the Lord Chancellor, since he is a high judicial officer and is referred, to together with the other non-political judicial Lords, in paragraph 62 of the White Paper. It might be appropriate if I read part of that paragraph, since it is relevant to this discussion. It says: The Government believes it would be appropriate for all serving law lords, i.e., the Lord Chancellor, Lords of Appeal in Ordinary and other peers, such as the Lord Chief Justice and the Master of the Rolls, who hold high judicial office, to possess voting rights; but since any distinction between those who could meet the attendance requirement and those who could not would be entirely arbitrary, it is proposed that all serving law lords should possess the right to vote by virtue of their office, irrespective of their age or attendance.'— the magic figure of 72 does not seem to come in there— Law Lords who have retired from those offices would however be subject to the ordinary rules and qualify for voting rights on non-judicial business only if they met the attendance requirement and had not passed the age of retirement. In parenthesis, it is strange that if a Law Lord can, notwithstanding other provisions, be considered as fit to go on exercising his judicial functions over the age of 72, others should not be considered fit to exercise other tasks, not noticeably more onerous in terms of the mental faculties required, after that age. But that is not the main point at issue.

The nub of the issue is this. The Government have again burked the anomalous position of the judiciary in relation to the Second Chamber and, a fortiori, the position of the Lord Chancellor in that Chamber. So far from the position in relation to the high judicial offices being made clear in conformity with the general belief, shared by hon. Members on both sides, that the judiciary should be separate from the Legislature and the Executive, it is gratuitously made worse.

In recent years, there have been a number of cases with strong political undertones in which the position of people formerly connected with the Government has been somewhat delicate. I merely mention, and pass no comment on, the decision of the House of Lords in Joyce v. Director of Public Prosecutions which made one wonder whether the Lord Chancellor should be politician and judge at the same time. On a lower plane, political influences are not wholly non-existent in judicial proceedings. Is every hon. Member satisfied with the conduct of the various spectacular trials in the summer of 1963 which are generally referred to by the blanket term "the Profumo affair"? I merely pray that in aid of the case for separation.

If we are to have this Bill at all, it would be sensible to do something about completing the separation between the judiciary and the political system which effectively exists, for the most part, at the lower plane but which, on strict constitutional law, does not exist in the House of Lords. Instead, the Government, as anticipated in paragraph 62 of the White Paper and in the Clause, propose specially to preserve their voting rights.

I should like to know whether the opinions of the Lords of Appeal in Ordinary were canvassed. Were they ever asked, "Do you want to vote on political matters?". How many Lords of Appeal in Ordinary, Masters of the Rolls and Lords Chief Justice have taken part in political debates over the last 50 years? How many of them spoke on the nationalisation of the coal industry or on the more recent Transport Bill? How many have spoken in debates on, for instance, Rhodesia? The answer is, very few, if any. Normally they confine themselves to social issues and organisation and methods Bills like the Supreme Court of Judicature and Law Reform (Miscellaneous Provisions) Bills. The nearest that they have come to what some of them would regard as the muddy fields of political controversy is to discussing what might loosely be called Home Office issues—capital punishment, reform of the prisons, the probation service, and the like. Very rarely do they think it prudent or proper to stray outside those matters and to deal with political issues.

A factor which will influence my hon. Friends and myself in deciding whether to push the Amendment to a Division is this. We want to know why the Government thought it necessary to go out of their way to preserve the voting rights of people who do not generally vote or wish to vote. Surely all that was needed was a provision which protected them from any impediment which prevented them from sitting in the Chamber. It would be better to take the judicial Lords out of the House of Lords and constitute them as a separate court and to covert the office of the Lord Chancellor into a full-time job. I do not see how the Lord Chancellor can effectively carry out the job of presiding over the judicial body in the House of Lords, speak in the House of Lords on a host of different political issues and sometimes lead that body as well, although that does not apply now because there is a separate Leader of the House. It is, however, within the recollection of the Committee that before now a Lord Chancellor has doubled up on all three occupations, which is not very satisfactory.

When we come to the main debate on the Clause, there will be an opportunity to discuss the constitution, appointment, promotion and general regulation of the judiciary. I commend the Amendment, not as an example of perfection, but on grounds of simplicity. At least it would not make a bad situation worse. It would not invite the judicial Lords to become political creatures. It might do something to spare them the embarrassment which the Bill will obviously cause them.

The provision in the Bill is seemingly uncontroversial and unexceptionable. However, when examined closely, one sees that it is riddled with anomalies, fraught with controversy and highly productive of doubt. There are many questions to which I hope the Minister will reply. I trust that we shall not find our business abridged by some interference because these are important matters. Whether or not hon. Members agree with me about the scrupulous separation of the judiciary from the Executive and the political system, nobody can doubt that this is a matter of the gravest importance.

Mr. Iremonger

Would the hon. Gentleman deal with something which other hon. Members besides myself may not have fully apprehended? Will the Law Lords, whether exempted from disqualification or not, be allocated to one of the camps—the Government camp, the other camp, the neutral camp or the cross-bencher camp? Will they be able to pick and choose which camp they will join?

Mr. Lee

I do not know, and I suspect that the Government do not know. That is yet another point which will need to be resolved. Will there be another category of peer? Will there be Government, Opposition, Liberal, cross-bencher and judicial Lords? It is pertinent to inquire whether they will be given a special bench, like the bishops, on which they can sit uncontaminated by political controversy. It is important that we should know the answer to these points. I do not know the answer to the hon. Gentleman's question. I look forward with eagerness to hearing what the Minister has to say about that matter.

[Mr. HAROLD GURDEN in the Chair]

12.30 p.m.

Mrs. Winifred Ewing (Hamilton)

I support the argument of the hon. Member for Reading (Mr. John Lee) that the separation of peers should be the corner-stone of any rightful constitution. It would be a corner-stone in a Scottish constitution. I believe that, had it not been for the Treaty of Union, we should have looked after this corner-stone much better. The tragic fact is that it has been allowed to slip. I want to direct some of my remarks to the position of the Scottish Law Lords.

The corner-stone has slipped very far in Scotland, because judges of the Court of Session—they are the ones who are contenders for what is covered by this phrase "high judicial office"—are appointed, as far as the outward observer can see, from among those who have served political parties well. It is curious to note how disinterested political beings, once they go to the Scottish Bar, have immediately embraced one political party or the other, even to the point of standing for Parliament. I have seldom known less politically interested aspirants to these benches than can be found among those who stand as candidates from among the profession of Scottish advocates. They are driven to this because of the system of appointment to the bench.

Already we have slipped so far that judges, although we should think of them as being above all this, become very involved and, instead of being cross-benchers or independently minded or, even before the dramatic emergence of my party, Scottish Nationalists, they have to arrange their beliefs to fit in with one of the two parties which gave them the possibility of being appointed ultimately to high judicial office.

The two Law Officers of the Crown in Scotland, the Lord Advocate and the Solicitor-General for Scotland, are almost invariably appointed by the Government of the day from among their own ranks. Inevitably it is lawyers sitting in the House of Commons on the Government side who are appointed to be Law Officers. Even this practice, which has something to commend it, has been departed from. I think that there was one exception in fairly recent times when the Government of the day appointed a Law Officer from the Opposition side.

After the Scottish Law Officers have been appointed—at present neither of them has a seat in the House of Commons—it is the function of the Lord Advocate, as the senior of the two Scottish Law Officers, to appoint people to the Supreme bench of Scotland. Here I am talking only about the civil bench, the Court of Session. The Committee should understand, however, that our Supreme judges have both civil and criminal jurisdiction, but the House of Lords is concerned only with civil appeals from Scotland.

It is, therefore, for the Law Officers to make appointments to fill the Supreme bench vacancies. The practice is, perhaps, what would be expected. The Lord Advocate invariably appoints himself first. Then he appoints the Solicitor-General second. If the Lord Advocate has held his office for only a short time, he may take the view that it would not be appropriate to go on to the Supreme bench too quickly; it might be a bit too blatant; the public might not like it. So he appoints a senior member of the Scottish Bar. This tends to be a much better choice, perhaps because the most senior office bearer chosen from among the advocates tends to be the best pleader, and in this way some outstanding figures get on to the supreme bench. I am aware that the best pleaders do not always make the best judges, but they are outstanding in something, and that is always a good sign.

The system has been eroded. If anyone asks whether the separation of powers in the Scottish judiciary, considering the powers of the civil appeal court and the House of Lords, has led to the principle being eroded, I am said to say that it has been very badly eroded. It is a matter of incredulity, astonishment and public disrepute in Scotland that it has been allowed to go so far.

It is tragic that, when we are revising the constitution, we appear to be moving further away from this important principle. We should be moving nearer to it and using this opportunity to amend this very bad Bill and make it slightly better. We should be on our guard against any further erosion which makes it hard to find any distinction between the judiciary, the legislature and the Executive.

The Temporary Chairman

Order. I am not ruling the hon. Lady out of order at this moment, but I should be obliged if she would explain how she relates her remarks to the voting rights of the peers.

Mrs. Ewing

If the Bill is allowed to go through without this Amendment, a vote will be given to persons automatically by virtue of their being within the category of "high judicial office". That is bad enough. I am seeking to explain that it is much worse than it looks, because already in the Scottish system there is this political involvement by judges. Once they sit on the bench, political involvement is over—in theory. Here they are being given political involvement again, because they are to have both a high judicial office and a vote in the House of Lords. This is a bad principle. The background that I have given of how judges come to be appointed in Scotland, and how their appointment is very involved with practical politics, which I think is a bad thing, makes it all the more serious. It is important for the Committee to know the practice in Scotland before making up their minds to support the Amendment or to vote against it. That is where my remarks are leading.

There is no reason why judicial officers should be chosen in this way. Any experienced practising lawyer could make countless suggestions as to how the holders of judicial office could be chosen in Scotland without looking to the system of simply offering political rewards for good behaviour and long service. In the consideration of this Clause these matters should be brought out into the open.

I turn to the position of the House of Lords as a court of Scottish appeal. I should like this opportunity to be taken to consider whether the House of Lords should contain any Scottish appeal judges, whether the House of Lords should sit in judgment on Scottish appeals. I say this for two reasons. First, it is a breach of the Treaty of Union, because the Treaty of Union laid down that there would be no interference with the Scottish legal system. There was no legislation to alter that. It was simply a matter of practice.

What happened was that a dissatisfied litigant wanted a right of appeal that he had previously had to the King in Parliament. He said, "Where is the King in Parliament? He has gone South now. I have lost a right of appeal, so I must have it somewhere". He appealed to the House of Lords. The House of Lords put an umbrella over him and said, "You have got this right of appeal". The House of Lords had no right to do that, but it did it all the same. It was challenged by the Supreme Court in Scotland, all to no avail.

What is more important, because this is taking us a bit into history, is that Scotland has far too many avenues of appeal already. By perpetuating this system and not using the opportunity to revise the constitution sensibly, we are limiting the exercise of this avenue of appeal to the House of Lords to litigants who are either legally aided or wealthy companies, because no one else can afford to run the gamut of possible appeals in Scotland. Many a person is deterred from exercising his proper rights, because he dare not face all the expense involved in going from the sheriff substitute to the sheriff to the Inner House, through the whole gamut of appeal procedure right up to the House of Lords. As I say, who can afford to go right up to the Judicial Committee of the House of Lords unless he is either legally aided or is a very wealthy company? The whole system is in disrepute. It is bad if the mere existence of many avenues of appeal means that people are deprived of their rights, which is precisely what the situation is.

It is very serious in a debate of this importance that we should be deprived of the opportunity to have Scottish legal advisers. It is deplorable that there are no Scottish Law Officers in this House to keep us right when matters of Scots law and the Scottish legal system are involved.

I need not say: where are they? It is not that they are absent; it is just that they have no right to be here. It is not as though there were no lawyers in this House when the Government decided not to look among these benches for appointees. There were lawyers on the Government side. There was also a learned advocate on the Opposition side—the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie). But perhaps the Government believe that in this day and age party politics have even got to the stage of colouring the giving of legal advice. Perhaps they unworthily think that had they chosen the hon. and learned Member for Pentlands he would not have given them proper legal advice on Scots law.

A deplorable practice has arisen. Where are the protectors of the Scottish legal system to be found? Who is keeping the Minister right on this matter? I do not believe that the Minister is qualified to keep the Scottish system right when a matter so fundamental as this is before us.

One of the Scottish Law Officers has just been elevated to the other place. That is a new departure, and one which we thought most interesting. It is better that he should be there than that he should be in no place. But it still reminds us very forcibly of the dearth to the Scottish legal system that we suffer by being here when we have no Law Officers with the right to advise the Government at times like this.

I should now like to mention one or two points about the definition of "high judicial office" as laid down in the Clause: … any high judicial office within the meaning of the Appellate Jurisdiction Act, 1876, as amended by section 5 of the Appellate Jurisdiction Act, 1887. It is too narrow and unfair to Scotland. Why should not Law Commissioners be included? They are a new type of creation, but who is more fundamentally important to the whole of the law system in Scotland than the Law Commissioners? They must be important, because we have entrusted them with the task of looking at the whole future of the Scottish legal system.

Why is the chairman of the Land Court not within the definition? He is another unique personality, and he has a unique responsibility concerning the rights of tenants of all kinds to land all over the mass of Scotland. He has a great understanding of the problems of the people, but he is not in the definition.

Why do we not have the Sheriffs Principal in the definition? They have a huge jurisdiction and immense responsibility. There is no counterpart in the English system. Therefore, the House tends not to know about them because it is too complicated to put them into the system.

Mr. Elystan Morgan

It would materially assist me, as I have to reply, if the hon. Lady could make clear whether she is objecting to the definition "high judicial office" or whether she is supporting the Amendment as such.

Mrs. Ewing

I am supporting the Amendment, because it makes the situation better. But whenever the phrase "high judicial office" is involved, I am entitled to say what I think is wrong with the definition as laid down.

I have exhausted the list of persons who I think should be included.

Another matter of definition is the definition of Lords of Appeal in Ordinary and the way in which they are appointed.

The Temporary Chairman (Mr. Harold Gurden)

Order. This is all right, but perhaps some of the points which the hon. Lady is now on should be taken on the Question, that the Clause stand part of the Bill. This is purely on the question of voting rights.

12.45 p.m.

Mrs. Ewing

Yes; but in deciding the voting rights we have to decide to whom we shall give the voting rights, whether they are suited to have those rights and whether it would be an advantage to the other place to have such people. With respect, I feel that I must be relevant so far as I have gone.

Mr. Michael Foot

We have all appreciated the skill and delicacy with which the hon. Lady has put her case. But, in view of the statement from the Chair that it would possibly be more advisable to deal with the matter more explicitly on the Question, That the Clause stand part of the Bill, will the hon. Lady accept the advice of the Chair on that account so that we may hear her dealing with the questions more elaborately when we reach that point?

The Temporary Chairman

Order. The hon. Lady's last remarks were exactly right, and that is what I had in mind.

Mrs. Ewing

I do not know whether to seek to earn the approbation of the hon. Member for Ebbw Vale (Mr. Michael Foot) or the approbation of Mr. Gurden. If I have to choose, I will concentrate on Mr. Gurden.

I should like to make a few brief remarks on this other definition which allows 15 years in practice as an advocate as one qualification. We should also understand that, although Scotland has a divided legal profession, the solicitors' branch has a large right of audience, unlike the solicitors' branch of the legal profession in England. For instance, in Glasgow the Shrieval jurisdiction covers the work of the second busiest court in Europe. It is the court of the business man and the insurance companies where men and women of skill make their living exclusively by pleading in cases with no financial upward limit. Bearing this in mind, there are great pleaders to be found amongst its ranks. It seems a pity that such persons are excluded by definition.

On age, as we know, judges are not thought to stop getting wiser at a certain moment in their lives. It is strange that judges should be thought the only samples of humanity who keep getting wiser as they grow older. But perhaps some other hon. Members might like to deal with this question more fully.

I do not see why judges should have any special privileges and be given a vote in the other place merely because they are judges and hold a judicial office. I have already argued that it is an erosion of the very important principle, but I should like to add the argument that there are positive reasons for thinking that judges would be ill-qualified to participate in debates involving political decisions. In my experience, the very nature of a judge's life tends to limit his area of decision to isolation of a problem, to strict rules of relevance, and to a narrow look at a subject. As we all know, in both this and the other Chamber rules of relevance are not perhaps the order of the day.

For these reasons, I support the Amendment.

Mr. Michael English (Nottingham, West)

I support the Amendment, to which I attached my name with my hon. Friend the Member for Reading (Mr. John Lee), who put the position as an English barrister sees it, and the hon. Member for Hamilton (Mrs. Ewing), who has the advantage of a training and qualification in the Scottish law and sees disadvantages from that point of view.

It is true to say of my hon. Friend the Member for Reading that the very fact that he is a member of the Bar, which enabled him so ably to expound the reasons for the Amendment from a legal point of view, could perhaps inhibit him, as he implied, in discussing the activities of certain judicial peers in another place.

We should consider precisely what the Clause will be used for if it is passed. There are no good reasons for the House of Lords being a court of appeal. The reasons why it should not have been fully expounded in a book by the present Lord Chancellor, who is honest enough to say that he is still of the opinion he held before he became Lord Chancellor. It is a complete accident that the House of Lords remained a court of appeal after 1873, when the English legal system was revised by the Judicature Acts of 1873–1875. The House of Lords was struck out as a court of appeal, and the present Court of Appeal was created with the object of there being a proper appeal system in English law which involved separation of powers, which did not have one branch of the Legislature acting as a court of appeal. Unfortunately, that branch of the Legislature strongly objected. It left the Court of Appeal, but put itself as a further Court of Appeal on top. The only group of people that benefit is the legal profession. Instead of there being one right of appeal there are two, and the process of appeal in Britain is twice as costly—and sometimes more—as it need be.

Parliament has already once decided, when reforming the English legal system, that a double appeal system is unnecessary. Then merely because a Government changed and there was a change in the composition of the House between 1873 and 1875, the Act was altered before it came into force, not to get rid of the Court of Appeal that it had created but to put the House of Lords back on top and provide an extra appeal which had never existed. It is quite unnecessary. Many lawyers will rightly say that the Law Lords may be more competent as judges of appeal than some of their juniors, as it were. That is inevitable, because under the present system the highest court is the House of Lords, and one would expect the most able judges eventually to find their way there.

The Bill provided a very good opportunity quietly to repeal the part of the Judicature Act, 1875, that I have mentioned. To fail to do so and say at the same time that we want to encourage the Law Lords to participate in political activities in another place is totally wrong. There was a day and age before the Act of Settlement, I think, when puisne judges sat in the House of Commons, but does anybody say that they should do so now? Recorders can and do still sit here, and this is perhaps the last relic of that system. But I do not think that it is generally felt by the country as a whole that there should be any degree of confusion between the Legislature which passes the law and the courts which interpret it and decide whether people have been guilty of offences under it.

The Temporary Chairman (Mr. Harold Gurden)

Order. I say the same to the hon. Gentleman as I said to the hon Lady. I am not ruling him out of order, but would he explain how he relates what he is saying specifically to the voting rights?

Mr. English

The point at issue is that it is undesirable in principle to confuse legislation with adjudication, although it is partly inevitable at present in that the House of Lords is both one branch of this legislature and the highest court of appeal. There is no need to make the position worse, as the Bill does, by going out of our way to say that all peers who really become peers solely for judicial reasons—because if they did not the House of Lords would not be able to sit as a Court, as it would not have the necessary number of Law Lords—shall have a political vote. The object of the Amendment is to cure the defect.

My hon. Friend the Member for Reading gave an admirable description of the difficulties, but to some extent he is handicapped by being a barrister. Not having that handicap, I thought that I would investigate exactly what part the Lords of Appeal in Ordinary played in the non-judicial work of the House of Lords. They prove my point almost explicitly. In this context, for the purpose of my illustrations, I have deliberately restricted myself to the Lords of Appeal in Ordinary. Law Lords within the meaning of the Clause and the Judicature Act include quite a lot of other people, like the Lord Chief Justice and the Lord Chancellor. I do not include the Lord Chancellor, whom we may expect to indulge in politics for obvious reasons. I refer simply to the judicial peers appointed to the House of Lords for judicial reasons alone. One would expect that many of them would have been most careful to refrain from interfering in the legislative or political processes of that House. There are several who have taken that attitude, such as the late Lord Evershed, Lord Pearce, Lord Upjohn and Lord Donovan. None of them has spoken on the non-judicial business of the House.

Mr. John Lee

Is not the position made more poignant by the fact that Lord Donovan has taken that line notwithstanding the fact that he was a Member of this House?

Mr. English

That is true, and I thank my hon. Friend for his intervention.

One recent Session, 1964–65, is the example I have taken. There is no doubt that many people in such a position deliberately restrain their natural inclinations because they believe that that is the appropriate behaviour for a Law Lord. Nevertheless, they are to be given a vote by the Bill whether they wish it or not. Clearly, some are being given a vote who do not wish to have it.

1.0 p.m.

I would have thought that if the Government intended to accept any Amendment this would be the one. But, of course, they cannot accept it because not all the Law Lords take the view of Lord Donovan and his colleagues whose names I have mentioned. Other Law Lords say, "We will take part in Measures which are of relevance to our job as judges". But this is likely to prove a trap and a delusion on their part. One can understand why Lord Morris of Borth-y-Gest spoke on the Law Commissions Bill and the Criminal Justice Bill and why Lord Reid, Lord Guest and Lord Wilberforce spoke on the Law Commissions Bill. But when one finds judges expressing their opinions by voting on Measures dealing with capital punishment, they are proving that, like most people, on the subject of hanging they have passions either for or against. I do not think it a good thing that judges who may or may not, according to the law, have to perform certain functions should vote on that issue.

An even worse example is more recent. There is another type of case these judicial peers who vote on political matters tend to speak. This can best be described as something that was orginally a law case and eventually becomes a political issue. An excellent example was the Foreign Compensation Bill—

Mr. John Lee

And the War Damage Bill.

Mr. English

And, as my hon. Friend rightly says, the War Damage Bill, which involved the Burmah Oil Company. There are several such examples, and it is wrong and improper in the strict sense of the word that Law Lords should have voted. In a case going through the House of Lords on appeal from the Court of Appeal, I do not think that their law lordships would be overpleased if members of the Court of Appeal went around saying loudly that in their view their lordships were wrong in their decision. There are polite and impolite ways of saying so in the legal profession.

But their law lordships would be even less pleased if some people came along, spoke and then voted to make or mar a decision of their lordships in another place. Yet this is what the law lords themselves care to do, because the whole function of Parliament is often to change the law as it has been decided by the courts. The courts decide on bases which were once invariably precedents and are still largely precedents. They decide according to the precedents of the law, according to what they believe the law to be, whereas it may be that society has rolled on and considers that the law should be changed. The only body which can change it is the High Court of Parliament itself—meaning both halves of it and not just their law lordships. But on such occasions their law lordships take strong objection—or those who like to speak and vote do. They have spoken on both the War Damage Act and the Foreign Compensation Act. The noble Lord, Lord Wilberforce, voted on that Act, and this was wrong. The issue was clear.

Mr. Boyd-Carpenter

On a point of order. Mr. Gurden. Is it in order in this House for an hon. Member to criticise the actions of a Member of another place in his capacity as a member of another place?

The Temporary Chairman

I did not understand the hon. Member for Nottingham, West (Mr. English) to be doing so.

Mr. Boyd-Carpenter

I understood him to criticise the noble Lord, Lord Wilberforce, a Lord of Appeal in Ordinary, for a vote he gave on a certain Measure in another place. Surely that is criticising a member of another place in respect of his actions as such. With respect, this has always been ruled out of order.

Mr. English

Further to that point of order, Mr. Gurden. I submit that the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) cannot raise such a point of order on the Bill. It is similar to the situation where one cannot, for example, raise certain matters in connection with the Crown unless the appropriate procedures have been gone through. But once they have been gone through, or we are considering a Bill dealing with the powers of the Crown, one can discuss those matters. It would be an impossible situation if we were to be precluded from discussing what happens in another place. I do not believe that I criticised any individual Member of another place. I said that their law lordships take two separate views. Clearly, there are two groups among them. If we are precluded from discussing what is happening in another place on a Bill whose sole function is to deal with the other place, we shall be in a ridiculous situation.

The Temporary Chairman

I understood that the hon. Member for Nottingham, West was not actually criticising, but it would help the Chair if he would confirm that. If he was criticising, he would, of course, be out of order.

Mr. English

In pointing out that their law lordships apparently hold two views among themselves as to their functions, one is not being critical of them individually. I think that I have demonstrated that they hold two different views. Those I listed earlier in my speech never participate in any non-judicial business. The others I referred to—and I mentioned several names and not merely one—take a different attitude and speak and vote in many cases. I merely singled out the noble Lord, Lord Wilberforce, just before the right hon. Gentleman interrupted simply because, to the best of my knowledge and belief, Lord Wilberforce is the one who has voted most recently on what I believe to be a political measure. He is in no way singular. Others have done it, but they do not include those law lords I first listed.

The Temporary Chairman

Order. It is perfectly in order to discuss these matters, but certainly not to go to the point of severe criticism.

Mr. English

I have no particular criticism of the two views, Mr. Gurden.

Mr. Sheldon

On a point of order. Mr. Gurden. I would like to clarify the Ruling you have given because it will have a bearing on a number of subsequent Amendments. Many hon. Members will seek to deduce from the actions of certain peers certain conclusions, and clearly for this to be an effective criticism one will have to single out different peers and show how they have behaved in the past as a guide to their future behaviour. Such criticism is inescapable if we are to ensure that we get the Upper House in the shape which many of us would prefer to what is proposed in the Bill. I will be pleased if you would address yourself as to how we can make this kind of criticism, which is essential if we are to produce changes in the Bill of the kind required.

The Temporary Chairman

It is for the Chair to interpret the meaning of the word "criticism" in the context of what takes place, and that I have attempted to do. No doubt future occupants of the Chair will do the same when the occasion arises.

Mr. English

It is impossible in this particular case to avoid—not the personal criticism of the single individual, for that can always be avoided—but to avoid being critical or laudatory of one of the two views that their law lordships take; because there are two views, and any one individual such as myself can adopt only one of them. I myself adhere to the view that, in approximate terms, roughly one half of their law lordships take, that they should not participate in the non-judicial work of the House of Lords so long as they are functioning Law Lords. I am highly critical, though not in a personal sense, of the other half of their law lordships who do take part in the non-judicial work of the House of Lords.

I would suggest that it is particularly bad when on an issue which is one of law but also of politics, such as the Burmah Oil case, when there were party Whips on both sides, or the Foreign Compensation Bill, where there were enormous vested interests involved, their law lordships, or any of them, take part and vote. Some of the lawyer Members of this House are perhaps by reason of their position a little inhibited of criticising judges. I believe it needs to be said that the type of judge like the noble and learned Lord, Lord Donovan, who although a man of strong political opinions and active political work in the past, takes the view that judges should not intervene in politics is far more respected in the country as a whole, and I believe in this House, than the type of judicial peer who goes out of his way not merely to participate in the non-judicial work of the House of Lords but to participate on precisely those issues where it might be thought there is some over-lapping in his work in the one capacity and his work in the other.

I am glad to see that the right hon. Gentleman the Home Secretary is here. I have not been moving Amendments on every topic, but have singled out only those in which I genuinely believed, and I would strongly suggest that this is an Amendment which my right hon. Friend could, and I hope will, accept; because only half of the Law Lords themselves would object to him accepting my Amendment. The other half would agree that it should be accepted. They illustrate that by their own actions. I would seriously suggest that we should not go right through this Bill on the principle of rejecting every Amendment merely because rejection of an Amendment illustrates something or other. That is the strength of the weak man who says, "I can never change my mind on anything." I do not believe that my right hon. Friend is necessarily incapable of changing his mind in the way of the strong man upon occasions.

1.15 p.m.

Mr. Boyd-Carpenter

He has done it quite recently.

Mr. English

The thought mentioned by an hon. Gentleman opposite was in my mind, but this is clearly a simple straightforward Amendment. I know that there have to be judicial peers in the House of Lords so long as the House is a Court of Appeal, but this is clearly a simple straightforward Amendment whose sole purpose is to say if they are to be there for that reason—as purely legal peers—as distinct from someone like the noble and learned Lord, the Lord Chancellor—the Lords of Appeal in Ordinary in other words—it would be better if, while they are there for that reason—and theoretically they have not retired as judges—although, as my hon. Friend the Member for Reading (Mr. John Lee) has pointed out, they need not—they ought not to indulge in the non-judicial work in the House. I would hope that my right hon. Friend the Home Secretary would carefully consider between now and whenever we come to finish this Amendment whether he could find it reasonable to accept this one, at least, of the various Amendments.

Sir Derek Walker-Smith (Hertfordshire, East)

Does the hon. Gentleman want to see the Lords of Appeal excluded not only from exercising suffrage in the House but from speaking on matters which have legal content in debates in the House of Lords? He says they should be restricted to their judicial functions. Who is to give the other place guidance on matters of law where they come up as in the Foreign Compensation Act and important constitutional legal matters of retrospection and so on? Is the hon. Gentleman seeking to shut them out from making any contribution at all on those matters? If so, who is to make it?

Mr. English

I am, yes. I will be quite frank. I am saying that in the non-judicial business of the House, I believe that the half of their law lordships who take the attitude that they should not even speak in non-judicial business of the House are behaving properly.

The Secretary of State for the Home Department (Mr. James Callaghan)

rose—

Mrs. Ewing

rose—

Mr. English

If the hon. Lady will forgive me, I would rather give way to my right hon. Friend.

Mr. Callaghan

If my hon. Friend is giving way to me, he gives me the opportunity to suggest that after that innings, with a few snicks through the slips, this is probably the appropriate time to draw stumps for the time being. I beg, therefore, to move, That the Chairman do report Progress and ask leave to sit again.

The Temporary Chairman (Mr. Harold Gurden)

Whether I can accept that Motion depends upon whether the hon. Member for Nottingham, West (Mr. English) has finished his speech.

Mr. English

The hon. Member for Nottingham, West is so pleased by that intervention by my right hon. Friend that he will finish his speech fairly quickly.

Mr. John Lee

rose—

Mr. English

I cannot both finish my speech and accept every intervention. I have made my point. I believe that those of their law lordships who take one attitude are right and those who taken another attitude are wrong; and the hon. Member who intervened a moment ago is precisely on the point. They tend even to talk on non-judicial business on precisely those issues that may overlap with their judicial duties and it is far better if they do not do it at all. But I would plead with the Home Secretary not to say we must reject all Amendments on principle. Here is an Amendment which nobody really dislikes. I do not believe that anybody so far has spoken against it and I believe half their law lordships already do this themselves.

Question put and agreed to.

Committee report Progress; to sit again this day.