§ Order for Third Reading read.
§ 3.49 p.m.
§ The Secretary of State for the Home Department (Mr. Ede)
I beg to move, "That the Bill be now read the Third time."
I am in the happy position that, judged by the proceedings in Committee, this Measure has now reached the stage of a non-controversial proposal. I have to express my thanks to His Majesty's Opposition for their co-operation on the Committee stage in enabling us speedily to discharge our duties. We had five speeches from the Opposition, two by lawyers, two by hon. Members for universities and one by an hon. Member who was both a lawyer and a Member for a university. [An HON. MEMBER: "And something else."]
This Bill is a short and workmanlike Measure to bring up to date an Act which, at the time of its passing, was fiercely resisted by the party now represented by right hon. and hon. Gentlemen opposite. They then proclaimed their definite intention, as soon as they got into office, to repeal it. Now they accept it as one of the pillars of the Constitution. Therefore, one does not have to argue anything other than the shortening of the time during which another place can delay the non-financial proposals which this House sends forward to them. We feel that the length of time allowed in this Bill of one year and two Sessions is adequate to ensure that proposals which may be the subject of controversy between the two Houses shall receive full and ample consideration before being carried into effect, even if another place should not be reconciled to them.
I do not think it has been seriously argued during the Committee stage or on the Second Reading, that this is a Measure which can, in itself, be regarded as unreasonable, but it would be wrong of me to leave the Third Reading without making it quite clear that this is a Measure which, if necessity should arise, the Government intend to use in order to secure the passage of controversial legislation. We repeat the statement made by 1018 the right hon Member for Woodford (Mr. Churchill) when he was speaking on the Third Reading of the Bill of 1911:We do not want the Parliament Bill for itself alone; we want it to carry our Measures; we want it to carry Measures which, if they had been in a Conservative programme, would have been carried long ago."—[OFFICIAL REPORT, 15th May, 1911; Vol. 25, c. 1772.]It was suggested by the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid) during the Committee proceedings on the Bill that we required this for one Measure only. This is a general precautionary Measure which we take in order that we may be able to complete the programme which we laid before the country before the General Election of 1945, and we want it to be clearly understood that any effort on the part of another place to obstruct us in carrying through that programme will be dealt with under the proposals of this Bill.
The only other point with which I have to deal is the question of the timing of this Bill. This is the last possible opportunity we shall have of putting it forward if we are to be certain of carrying it in this Parliament. We did not bring it in previously, because, until this Session, we were in the position that Measures we introduced, if rejected by another place, could be carried through under the provisions of the existing Parliament Act. From this Session onwards, we shall not be in that position. Therefore, at this stage we think it desirable to ensure that the remaining Sessions of this Parliament shall be as fruitful in useful and constructive legislation as the previous Sessions of this Parliament have been, and as we intend this Session to be.
There is no danger in this country that legislation will ever be too quick, unless it comes with the general consent of both Houses. We saw during the war the way in which during one day the most sweeping changes could be made when there was an urgent sense of necessity, and a feeling that it was desirable that Measures should be put through with the utmost speed. In ordinary times, however, the procedure of this House and consultations with another place, ensure that considerable delay must take place between the origin of a Bill here and its final passage into law, and if there has been any danger in modern times, it has been that the machinery of Parliament is too slow rather than too quick to keep pace with the 1019 ordinary needs of the country in legislative matters.
Therefore, we do not feel that in suggesting that, between the date of the first Second Reading of a Measure in this House and its final submission to the Throne, an interval of 12 months is too short a period for safety. It has been suggested in the course of our deliberations that the only time which ought to be counted is the period between the date when the Bill emerges from Committee in this House and its submission to another place. I really think that hon. Members opposite do themselves less than justice in their powers of pointing out to the country what they imagine to be the dangers of our legislation, and they also very considerably under-estimate the imaginative powers of the writers who support them in the Press.
With this Measure we may feel that we have indicated what are the maximum powers of delay which any Second Chamber, no matter how constituted, should enjoy in this country. There were hon. Friends of mine who, during the Committee stage, felt that we had been overgenerous in this matter. I think they were appropriately dealt with by the Lord President. This Measure gives to the country an assurance that, if another place has doubts as to the wisdom of any proposals we submit to them, before the Bill can become law it must again be submitted here and passed through all its stages, so that a fresh opportunity for the Opposition of the day to state their views may be afforded.
This country enjoys a settled Government, which is a great asset in the present troubled state of the world, but one of the things that democracy has to prove is that it can, with speed and certainty, deal with needed reforms that from time to time have to be considered by the Parliamentary machine. I regard failure to convince the country of that as the greatest danger that might afflict us as a Parliamentary democracy, and it is because I believe this Measure, thought out as it has been, will meet the needs of our time, and not because of any antiquarian interest or slavish subservience to precedent, that I commend it to the House. I see no reason—after the way in which it has been treated by the Opposition in this House and the sparsity of their attendance 1020 this afternoon—why this Bill should not speedily become law. I can think of no better Christmas present for democracy than that we should be able to get the Royal Assent to this Measure before we part for the Christmas Recess.
§ 4.0 p.m.
§ Mr. R. A. Butler (Saffron Walden)
I beg to move, to leave out "now," and to add at the end of the Question "upon this day six months."
The Home Secretary started his brief and very ineffective speech by trailing, and, I think, deliberately trailing his coat. He then proceeded to give the explanation, arising from a guilty conscience, of the reason why at the last stage the Government have thought of this iniquitous Measure, and brought it forward in the wrong way at the wrong time. Let me first deal with some debating points he condescended to put before the House on this important occasion. He started by saying that the only speakers on this side of the House were lawyers and university Members. I fail to see why such types of hon. Members should be out of place in discussing a matter of constitutional law relating to the British Constitution. I venture to suggest that had the legal advice provided for the Government on this occasion been of a higher quality and been possessed of some of the learning in the heads and minds of some of the university Members, they would have brought forward a Measure of very much greater value than this to our ancient British Constitution.
The right hon. Gentleman's second main point, so far as one could discern any points in his short address, was a rather unconvincing explanation of why the Government have suddenly thought of this Measure and brought it forward on this occasion. Of course we know the reason why that explanation had to be the sole feature of the right hon. Gentleman's inadequate speech. The reason is that this Bill was thought of at the last moment and was brought forward in a hurry to deal with dangers and rifts in the party opposite, which would otherwise have resulted in the demise of that party and split it into indefinite fragments. The country knows that fact perfectly well, and recognises the origin and parentage of the Bill equally well. The right hon. Gentleman's arguments cannot stand up dialectically because the Government have 1021 chosen to bring forward this Measure at a time when they have had two years' experience of the moderate use by the House of Lords of their powers towards the Government's legislation.
If they wanted to bring this Bill forward, they should have brought it forward at the beginning of the Parliament, when they might have felt anxiety about the House of Lords. That would have been the time to bring forward such a Bill. In fact, they know from experience that the Upper House have dealt with legislation put forward, including, I think, six Bills involving nationalisation proposals, with the utmost moderation and in accordance with the general spirit of our Constitution. There is no justification, therefore, for this Bill, and the right hon. Gentleman and his friends have brought it forward to save their own bacon within their own party, and not in order to serve the needs of the British Constitution.
I deliberately used the expression "saving their own bacon" because the right hon. Gentleman had the offensive daring to bring forward at the end of his speech the argument that this was a useful Christmas present. Frankly, what the country wants from this Government—and I will not further err on the Third Reading, but I am answering the right hon. Gentleman—as a Christmas present is more food, better administration, and more confidence in the manner in which the affairs of our country are being handled. They do not want Bills of this miserable sort, which give them a great feeling that the party opposite have not realised the magnitude of the constitutional issue involved.
I do not think it is necessary to refer any more to the paltry contribution of the right hon. Gentleman to our Debates. I only wish to say this to him quite seriously. He and I were engaged in a major reform involving as it did many political, and, indeed, religious and denominational questions. When we were considering that reform we came to the conclusion that those who attempt small and pettifogging, tinkering, reforms usually fail in the end. We came to the conclusion, when considering the reform of the educational structure of the country, that, unless we did the thing in a big way, it would not last. My objection to the right hon. Gentleman and his Government on this occasion is that they have 1022 done this reform in a small way. It has all the evils of tinkering, and when one tinkers, the vessel one is mending in that way either leaks and has to be repaired again, or it is unusable and it is a bad method of handling the matter. We feel it is exactly the same in dealing with the British constitution.
If we are going to have a reform, why not adopt the procedure and method which is part of our ancient tradition, namely, that constitutional matters should be settled by agreement between all shades of opinion in the House? Why did not the right hon. Gentleman and his friends make some attempt to find out opinion, and to find out whether there was that juxtaposition of personalities and political forces which alone make possible a great and major reform? I say this quite seriously because the right hon. Gentleman would, I am convinced, have found much more basis for agreeing about what wants doing to another place, than by handling it in this petty way, which can only alienate us on this side of the House and cannot possibly achieve a major reform. That, then, is our first objection on the Third Reading of this Bill, that this is a petty, tinkering reform, which will not last, and about which no attempt has been made to obtain the agreement of the Opposition, and no attempt has been made to obtain a lasting reform such as is suitable for the British Constitution.
Let me now look, as, no doubt, you Sir would desire me to do, at the contents of the Bill. The first feature with which I want to deal is its proposal for retroactive legislation. What we find here is that the constitutional rules are being altered as from a date before the procedure of making the alteration has been completed. That is a procedure which, so far as I know—and I am supported here by the university Members and, as far as I know, by the Home Secretary—for which there is no precedent. The Home Secretary was content on 4th December to say that he did not care whether there was a precedent or not, and his argument was that anything was good enough if done by a Labour Government. He brushed aside all that careful attention to precedent which has always been a feature of our Constitution, and has always been a feature of those who were building up any changes to that Constitution.
1023 We feel this precedent is particularly dangerous in the case of a constitutional Bill. The precedent for causing legislation to work backwards is one which, after all, could be extended by any Government to other types of Bills. It can be extended, for example, to the sphere of the individual, and if individual rights are to be treated in this way, we are getting into such a dangerous realm of legal theory and argument, and, indeed, practice, that it will result in something which is totally alien to our best characteristics as a nation, and to the whole spirit of our ideas of liberty and constitutional law.
The right hon. Gentleman has been priding himself that he is ultra-modern. Re said so again in his short speech this afternoon. He said he was not antiquarian. In fact the one character in history of whom the right hon. Gentleman reminds me is that old-fashioned reactionary described by Disraeli as:The serene intelligence of the profound Metternich.What was the characteristic of Metternich? In the Carlsbad Decrees, Metternich deliberately resorted to the system of retroactive legislation, and in order to keep himself in power and position he introduced laws which affected the individual, and caused the individual to be punished for things which were not illegal at the time they were committed. If we are to have an extension of this principle we shall get into the worst form of reaction, not only retroaction. I appeal to the Government to reconsider this matter before the Bill goes to another place, and to be very cautious about the precedent which they are now introducing.
§ Mr. Bowles (Nuneaton)
Surely there can be no retrospective action, or retroaction if the right hon. Gentleman prefers that word, if the House of Lords passes this Bill before this Session ends? It is only if they delay it and use their two years' suspensory power under the Parliament Act that any retrospective legislation is involved.
§ Mr. Butler
I am not responsible for another place, or for answering how they will act. I am only responsible for criticising the terms of the Measure as we have it before us. It is undeniable that they are in the terms I have described.
1024 What is worse is that we have at once in this Bill the abuse of the retrospective Clause, and prospective punishment for the Upper House out of fear for what it may do. The Government know perfectly well that the House of Lords has not abused the Constitution. There has been so much stated on this aspect that it is unnecessary for me to repeat the arguments which have been used by Members of the Government about the manner in which the House of Lords has satisfactorily discharged its duties. The fact is that since 1914 for example, only two Bills have been rejected under the provisions of the suspensory power in the Parliament Act. One was the Government of Ireland Act, which never came into force, and, in fact, the only Bill which has been affected by this procedure in all that time is the Welsh Church Act, which to some extent is different from other types of legislation just as our Debates involving conscience and religion are different from—
§ Mr. Butler
I am giving the information which is at my disposal. I am quite open to correction, if the hon. Member is correct.
In the present Parliament the Lords have deliberately attempted to carry out their duties in a reasonable way. Yet the Government say, "Do not let us reform this institution by agreement, but let us take preventive action." They say, in effect, in homely language, "We do not like your face, we had better bash it in before it is too late." That is precisely the feeling of hon. and right hon. Gentlemen opposite. They refuse to judge on a man's record. They are nervous about what he may do, because they do not like his face; therefore, the face has to be bashed in and the man put under preventive arrest.
That is exactly the procedure, not only of Metternich in the early part of the 19th century; it is the procedure of the 20th century dictator today. That is why we attach the utmost importance to the issues which arise in this Bill, and we seek every occasion to warn the country of the tendency shown by the Government about preventive arrest and in regard to disliking a man, and, therefore, taking steps against him, however good 1025 his record may have been before he has had a chance to prove he is guilty. We believe that that sort of procedure is the way dictatorship lies. Therefore, we wish to warn the country of the extreme danger which lies before it if it accepts quietly the Bill as put forward by the present Government.
§ Mr. Turner-Samuels (Gloucester)
The right hon. Gentleman has mentioned the question of waiting for the House of Lords being guilty. Supposing that were so in the future, there would be no opportunity of meeting that position because we would not have the powers. What would be the position then?
§ Mr. Butler
I would say that it would be just too bad.
The Home Secretary deliberately said that no precedent was necessary. When he and I used to work together he always astounded me by his voluminous knowledge of English history, in which he had an unfair advantage, because he was always with the schools and scholars, and was, therefore, perpetually refreshing his memory. May I remind him, as he has a very real knowledge of history, that in the period of the Protectorate there were many leaders and thinkers who thought they could mi-handle our Constitution, and that mishandling affected another place. But at the end of that period there was presented a "Humble Petition and Advice," which brought back the constitutional position, very broadly, in the shape of having two Houses and bicameral government, to what had been the general stream of English constitutional development. I solemnly warn the Government that if they proceed with a tinkering Measure of this sort, they will have to submit at some stage to a Humble Petition and Advice, if they do not take our humble petition and advice on this occasion. They will then have as Marriott, perhaps our greatest constitutional expert, says "to return to the path of constitutional experience" of trying to achieve their requirements by agreement rather than introduce a pettifogging Bill for political party reasons. So much for the procedure of retroactive legislation.
I wish to turn for a moment to the limitation of what is known as the suspensory veto of another place. First I should like to make clear that it is not a veto; it is a suspensory power to enable a Bill 1026 to be reconsidered in the light of action taken on any particular occasion by another place. The right hon. Gentleman made a great point of the need for more speed. He said that unless a Bill was virtually agreed, it would always take a long enough time to be properly considered. We say that the Government's proposal is neither one thing nor the other. Let us examine this period of delay. If a Bill is introduced before Christmas, and proceeds on its way to another place, after being strenuously debated here, and then debated in another place, it is very likely that it will not receive the final approval of another place until the end of July. If the Bill is introduced before Christmas it means that the year's veto which this Bill provides ends just before the next Christmas.
In that case there is virtually only the summer holiday, and perhaps the first month of autumn, in which time is given to the country to consider the implications of the action of the Lords before that Bill returns to the Commons and is pushed through again. There is no question whatever of a year's delay; it is a question of two or three months' delay. When the right hon. Gentleman sneers at the Press, which is now usually on the side of the Government side of the House, and other organs of public consideration, let him reflect that it means that we are left with only that time of the year in which to consider what the Bill means. After all at that time of year some people are entitled to take life a little less strenuously than they do during the rest of the year—it might be better if the Government did so, as then we might have a little more consideration. That is a derisory use of the Government's power. It means that they are, in fact, absolutely truncating that power of the Lords. Nevertheless, the year which is provided in the Bill is not a year, for it is, in fact, a short interval in the summer vacation. That is all the time which is given by this Bill for the consideration of a major Bill which the House of Lords feels it cannot, on the first occasion, pass.
If the Government want delay let them give us delay: if they do not want delay, why have any delay at all? This delay is derisory. The Government seem to me to be posed on the horns of a dilemma even worse than that upon which that great artificial creator of constitutions, the Abbé Sieyès, was posed in the many con- 1027 stitutions he attempted to draft at the time of the French Revolution. He was placed in this dilemma:If a second chamber dissents from the first it is mischievous, if it agrees it is superfluous.The Government are in the dilemma that they have power to destroy the suspensory period yet they have provided no suspensory period. Where, in fact, do the Government stand on this matter? I trust that the Lord President will give some reply to this question and will indicate whether the Government are going to think again to try to make this a reality, if in fact they want a suspensory veto for another place at all. It seems to us that the Government have neither achieved reform, nor yet achieved delay, nor yet achieved a proper life for the upper House. They are playing with the Constitution in order to stop rifts within the constitution of their own party.
A further objection I have to this Bill on its Third Reading is that it has been introduced by the wrong method. I base my objection on two main points which the Bill contains. I believe that this will prove an ineffective reform, a reform without agreement. I speak quite sincerely as one who has attempted to do at least one major reform involving issues not unlike some of these, which involved indefinite negotiation and discussion and resulted, in the end, in agreement between the various interests. I believe sincerely that that is the only way to tackle constitutional questions if the reform is to last. I believe it because our Constitution is an unwritten one and—to borrow one of the most important phrases of the senior Burgess for Cambridge University (Mr. Pickthorn), who made so brilliant a contribution to our Debate—because our Constitution has this feature—the omnicompetence of Parliament.
Parliament is, in fact, entrusted with the constituent powers for altering the Constitution. That is totally unlike any other constitution with which I have ever had to deal either in the East, in the case of India and other constitutions, or in the case of the occasion when the Home Secretary and I went to the Channel Islands to look into their constitutional problems, or in the case of America. The very fact that this House can, by its own 1028 action, overturn something in our unwritten Constitution, imposes upon this House a very severe responsibility. That responsibility ought to be wielded far less lightly than we have had evidence of from the opposite side of the House.
Hon. Members opposite may treat with glee the realisation that they have it in their power, with their overwhelming majority, to change something in our unwritten Constitution. But I beseech and implore them to realise that the action which may seem clever and useful today may not fit in with the gradual increase and growing up of precedent upon precedent which has given us our liberties, and which has caused us to observe those liberties by obeying the secret dictates of the British Constitution. The Lord President may feel perky today; he told me that on his summer holiday, he took Erskine May with him to read, I trust he will revert to that pleasant constitutional atmosphere in which he went away on his summer holiday and that this time he will study Anson's Law and Custom of the Constitution, and other such works, and marry them with his growing knowledge of Erskine May. If he does that, then we may hope to have from him a little better constitutional guidance than we have had on this occasion.
Were it in Order on the Third Reading Debate, I should have liked to develop the point that there are between both sides of the House certain definite points upon which agreement could be reached. I do not intend to press this. I refer only to the statement of the Prime Minister of two conditions, namely, that a Second Chamber, if reformed, must not have concurrent powers with the lower House; and that there must not be a permanent majority for any party in the Upper House. These are important points put forward by the Prime Minister in his Second Reading speech. They are serious points which we believe ought to have been considered by all sections of opinion in this House before any Bill altering the constitution was introduced.
When I look back upon the history of this subject as handled by my right hon. and hon. Friends in the past, dating from the day of the grandfather of the present Leader of the Opposition in the other place, the day of the late Marquis of Salisbury who at the time was Prime 1029 Minister, I find a distinct similarity between views held and the postulates put forward by the Prime Minister on the occasion of his speech. I find a trend throughout of suggestions of a limitation of the principle of hereditary peers likely to be useful in Parliament. I find also a recommendation that life peers should be created on the recommendation of the Prime Minister of the day. Those two trends run through the whole story. In my view, they correspond, not exactly but sufficiently nearly to be interesting, with the proposals put forward by the Prime Minister. Therefore, I regret that the method adopted on this occasion was not a more thoughtful one and that this Government should not feel it possible on constitutional issues to bring in some of my right hon. Friends—and some of my hon. Friends because sometimes all the best knowledge, is not among right hon Gentlemen—in order that we might have considered this matter in the manner which I think is most suitable.
Francis Place, that radical of the 19th century, referred to the British Constitution as:That nose of wax which everyone twists to his convenience.The Government are twisting that nose at the present moment to their own convenience, and they are doing more than that. I believe they are cutting off the nose to spite their own face. They will find that out, and they will regret it. I have never been more confident of any remarks I have made than I am of those I make today. This is not the last we shall hear of this subject and, in the end, the Government will be proved wrong in their handling of this matter. We look at it not as a small party matter, but as a matter affecting an unwritten Constitution which, by its very unwritten nature, is the guardian of our liberties.
We shall divide against this Bill. Our opposition today is most strenuous and definite. The Bill solves nothing. It limits the suspensory powers for opportunist motives, it uses methods of retroactive legislation which are entirely reprehensible, especially in a constitutional Bill, and it does violence to that major principle which I mentioned at the beginning, and which I mention again at the end of my speech, and to which I 1030 attach great importance, that constitutional reform in this country should be done, where possible, by agreement.
§ 4.30 p.m.
§ Mr. William Wells (Walsall)
For two years, we on this side of the House have been accustomed to hearing criticisms of the Government on the score that they have undertaken too much legislation. From today onwards, they appear to be criticised from a different angle, that they are not undertaking enough legislation. In the middle of an economic crisis of quite unparalleled gravity, so we are told, the right hon. Member for Saffron Walden (Mr. R. A. Butler) today proposes a Measure of fundamental and far-reaching constitutional importance to be agreed between the two parties, no doubt by means of a series of constitutional conferences on the lines proposed by the right hon. Gentleman the senior Burgess for Oxford University (Sir A. Salter) in his speech on the Committee stage.
I cannot conceive a more inopportune moment than this for such a Measure as is proposed by the right hon. Member for Saffron Walden, who has, indeed, a great and justified reputation as the architect of reform in the educational world; but; because the particular technique which he and my right hon. Friend the Home Secretary employed was found useful on that Measure, that is no argument for saying that the same method should be applied when we find ourselves confronted, as we do today, with a situation in which the whole of the remainder of the Government's programme may be—and one must emphasise the word "may"—prejudiced by the action of another place.
The right hon. Gentleman produced some very happy and amusing metaphors, as we should expect from him, about the attitude of hon. Members on this side of the House towards another place. I think that, whatever some of us may have said in our youth, in our sober old age today it would be hard indeed to find anything but bouquets which we have presented to another place, and, indeed, most hon. Gentlemen opposite who spoke on Second Reading prefaced their speeches with quotations from speeches on this side of the House about the admirable work which another place is doing. I think that the history of this case, and the history of our programme and the way it has 1031 been put into force, shows that the House of Lords has been quite reasonable and sensible, and has accorded the proper constitutional treatment to Bills sent from this House, and that these facts are a sufficient refutation in themselves of any suggestion that we on this side of the House are actuated by some hostility, or actuated by spite, as the right hon. Gentleman suggested.
As to the charge of tinkering, there was a very significant sentence in the speech of the right hon. Gentleman when he said that any constitutional changes brought about by Measures such as this would not last I can only speak for myself, but I should imagine that the last thing which anybody on this side of the House would desire would be that it should last. On the face of it, it is merely a temporary expedient to deal with a temporary situation.
§ Mr. Wells
Certainly, though that situation has been elaborated ad nauseam in previous speeches from this side of the House. If the hon. Member for Chichester wants to hear it again from me, I have no objection at all. The situation, of course, is that this Government, within two and a half years of the appointed term of this Parliament, finds itself, not unnaturally, with its programme uncompleted. The party of which I am a Member stated in its Election address that it would not tolerate any obstruction from another place, and the Measure which is now before the House is a Measure to ensure that this obstruction does not occur. That is the situation, and it is perfectly simple.
§ Mr. Henry Strauss (Combined English Universities)
May I put this point to the hon. Gentleman? He says that the Bill is only temporary, which is something that has not been stated by his own Front Bench. Will he tell us this? This Bill reduces the suspensory veto to one year, but, at the end of the temporary period, will the period of the veto be lengthened or shortened?
§ Mr. Wells
That question, with respect, seems to me to be an entirely unreal one. The hon. and learned Gentleman is in conflict with his own Front Bench in saying 1032 that the suspensory veto is, in fact, a year, but I will accept that from him. All I am arguing is that, for the duration of this Parliament, all that is needed to make this Government's programme effective is the Measure that is before the House today. In another Parliament, and in another situation, when we have more time, I for one shall certainly welcome the kind of approach which has been envisaged by the right hon. Gentleman the Member for Saffron Walden, but I myself should think that it would have been quite improper at this stage, towards the end of a Parliament's life, or in the middle of a Parliament's life, to introduce the far-reaching kind of Measure which the right hon. Gentleman envisaged.
§ Mr. Beverley Baxter (Wood Green)
The hon. Gentleman said a moment ago that the Government would not tolerate any interference by the Upper Chamber. Will he tell us why the Upper Chamber should not be done away with completely, and what are the arguments for retaining it?
§ Mr. Wells
I am not sure whether any answer which I might give to that question would be in Order or not, but the answer which I, personally, would give is that I quite agree with my right hon. Friend the Lord President, who has said on other occasions that another place has done useful work in this Parliament and has exercised its powers in a constitutional manner. I can think of certain Measures which it has improved, and of certain Measures which have been initiated in another place, such as the Crown Proceedings Act, which are of very great importance and value. Certainly, in a period of an overcrowded Parliamentary programme, as was natural after a great war, that fact is sufficient justification for the existence of another place, but really that is beside the argument. I am now discussing the Third Reading of this Bill and not the academic question whether there should be a Second Chamber or not. I would only say, before passing on, how greatly indebted I am to the right hon. Member for Saffron Walden for teaching me how to pronounce the name of the Abbe Sieyès.
In the course of previous Debates on this Bill, it has been attacked on two substantial grounds. One is that it was retrospective in action, and the second is 1033 that it was unconstitutional to make a constitutional change without a General Election. That, apparently, is a ground from which the right hon. Member for Saffron Walden would dissent, but a number of hon. Members who sit behind him apparently do not dissent. I do not propose to examine any further the question whether or not this is really retrospective legislation. I agree with the view expressed by my hon. Friend the Member for Nuneaton (Mr. Bowles), in a number of interjections in the speech of the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe), that it is not, in fact, retrospective at all, but that the whole point about retrospective legislation is not that it is a thing which we must always avoid at all costs on every occasion, but that it is a thing at which we must look very carefully and which we must examine on its merits in each case. Nobody, for example, complains about an Act of Indemnity, which is, in fact, retrospective legislation of the most glaring kind, because it legalises something which somebody has done which we think is wrong, and because it provides that that person shall not suffer from that action.
The right hon. Gentleman the senior Burgess for Oxford University (Sir A. Salter) laid down a series of, I thought, rather startling propositions in the course of his speech in the Committee stage. He said:In the second place, it is against our normal principles, except for very cogent and decisive exceptional reasons, to make legislation retrospective. This is a retrospective Bill. In the third place, it is against our tradition to have particular legislation in the sense that a general Bill is introduced with the special purpose of applying to a particular named individual or to a known particular case."—[OFFICIAL REPORT, 4th December, 1947; Vol. 445, c. 598.]I must say I find it very hard to follow the significance of that last objection, particularly in relation to this Bill. Putting one professor against another, I was strongly reminded of a passage in a work of a professor from the other University, Sir Arthur Quiller Couch, in which he warned the writer against the use of the word "case."
If one looks at this Bill, one finds that no individual is prejudiced. There is no question, as the right hon. Member for Saffron Walden suggested, of another 1034 place being punished. It is merely a question—if certain powers are exercised in a certain way—of the Government themselves taking power to see that the duration of time in which those powers shall be exercised shall be less. There is no punishment involved. In my submission, none of the principles on which retrospective legislation is rightly watched in every case is, in fact, offended against by this Bill. I hope, shortly, to come to the second point—that it is unconstitutional to make a constitutional change without a General Election.
In the course of his speech in the Committee stage, the hon. Gentleman the senior Burgess for Cambridge University (Mr. Pickthorn) propounded what seemed to me a most extraordinary argument. He said:You could not possibly persuade any American, even when you had made him understand the difference between the so-called fixed Constitution of his own country and the so-called flexible Constitution of our own, that in any sense of the word 'constitutional' it could be called constitutional to alter the rules of the Constitution as from some date before the procedure of making the alteration had been completed."—[OFFICIAL REPORT, 4th December, 5947; Vol. 445, c. 605.]That, in my submission, is a most perfect example of the danger of confusing one's terms. I was fortified by a note from the classic work—not quoted, I am sorry to say, by the right hon. Gentleman who quoted Anson—Dicey's "Law of the Constitution." In Note VII of the Appendix, Dicey says:The expression 'unconstitutional' has, as applied to a law, at least three different meanings varying according to the nature of the constitution with reference to which it is used:Paragraph (ii) deals with the French Constitution, and does not really apply here. Paragraph (iii) says:
- (i) The expression, as applied to an English Act of Parliament, means simply that the Act in question, as, for instance, the Irish Church Act, 1869, is, in the opinion of the speaker, opposed to the spirit of the English Constitution; it cannot mean that the Act is either a breach of law or is void"The expression, as applied to an Act of Congress means simply that the Act is one beyond the power of Congress, and is therefore-void. The word does not in this case necessarily import any censure whatever. An American might, without any inconsistency, say that an Act of Congress was a good law, that is, a law calculated in his opinion to benefit the country, but that unfortunately it was 'unconstitutional,' that is to say, ultra vires and void.1035 To criticise this Bill because an American might say it was unconstitutional, when, on the mere face of the terms, the whole meaning is utterly different in the two countries, is, in my submission, no criticism whatever.
There was another rather surprising passage in the speech of the hon. Gentleman the senior Burgess for Cambridge University, in which he dealt with the doctrine of ultra vires. Once again, I would call in aid Dicey, who says:The sovereignty of Parliament is the dominant characteristic of our political institutions.He then goes on to quote from Burke, the effect of which is that the real limit to the exercise of sovereignty is imposed not by the laws of man, but by the nature of things.
I do not wish to labour any further this somewhat academic argument about what is constitutional and what is not constitutional. The real gist of the matter was explained by Dicey when he said that the conventions of the Constitution varied from age to age, and from generation to generation. That is the whole gist of this matter. We have to decide on the merits of each situation what action is necessary in order to justify the confidence reposed in us by the electors at the time of our election. If the English Constitution is what some hon. Members opposite have said it is, and if they are the standards by which they gauge the efforts of their unfortunate students and examinees today, I must confess that I now understand for the first time the difficulty I had in satisfying my examiners.
In my submission, all the arguments on the constitutional side of this Bill which have come from hon. Members opposite have been false, misapplied and irrelevant. In my view, the way in which they have striven to build up this academic case—that we are doing something unconstitutional—is the most clear criticism of the grounds on which this Bill is being opposed. They are transparently fictitious and false, and they are the arguments, not of injured constitutionalists, but of an angry minority anxious to frustrate the legitimate use of political power.
§ 4.48 p.m.
§ Mr. Raikes (Liverpool, Wavertree)
It is not my intention to go into a lot of small minor points. After all when it is boiled 1036 down, the argument of the hon. Member for Walsall (Mr. W. Wells) amounts to the fact that the Government need this present Measure in order that they may put into operation the whole of their programme in the course of the next two years. Indeed, the Home Secretary said precisely the same thing in slightly different language. I think it might have been fairer to have put it in a slightly different way, and to have said that the object of this Bill was to ensure that, for the next two years, the Government would be able to put into operation any laws they cared to put forward, whether popular or unpopular. That, in fact, is what it really amounts to.
The Home Secretary, who, I am sorry to see is not present at the moment, began by making the sort of error which he seldom makes. He said this was a short Measure. I agree with him there, but he then went on to say that it was a workmanlike Measure, which brought up to date the 1911 Act. In point of fact, that is precisely what it does not do. The framers of the 1911 Act intended, first of all, to deal with the powers, and then tackle the question of composition. This Government do not touch the composition at all. They merely alter the whole basis of the 1911 Act without bringing it up to date in other things. It has been pointed out to us by the Home Secretary that no legislation can be too quick. That is utterly false. All legislation can be too quick, if it happens to be bad legislation. What we fear today is that this Measure is being brought into operation in order to ensure that legislation, good or bad, may be hustled through in the last two years of a Government which have largely exhausted their Mandate. The Measure is unnecessary and undemocratic, and calculated to divide the nation at a time when we are facing a national emergency.
I do not think hon. Members opposite will disagree when I say that the Second Chamber in the past has always had two distinct functions. One was to revise hasty or badly drafted legislation, and the second, where possible, to put some check upon a Government who have either gone beyond their mandate or appear to, have lost the confidence of the nation. The Lord President himself has agreed that this particular Second Chamber has been a good revising Chamber in this Parliament. He went on to say, on the Second Reading—and I have to quote from him because the Home Secretary has said so little in 1037 support of the Bill today that I have to find somebody else who said something—that the trouble about the question of the checking of ill-considered legislation was that, with the present House of Lords, if there was a Conservative Government they would never do anything to trouble the legislation of that Government towards the end of their term of Office. But if we had what he called a progressive Government, then that progressive Government had to put up with checks.
That being so, the Lord President has decided that the real and statesmanlike way to tackle this problem is to ensure that the Second Chamber shall not have the power effectively to check ill-considered legislation by either a Conservative or a progressive Government. Two wrongs have never yet made a right. I should have thought the object of the Lord President, if he wanted to tackle the Second Chamber, and if he thought it was over-weighted on one side, would have been to endeavour to alter the position so that the Second Chamber might be used impartially to check legislation where any Government, Conservative or Socialist, had lost the confidence of the nation, or had gone beyond their mandate.
Instead of taking that way to enable the Second Chamber really to perform one of its important functions, the Lord President went one step beyond that. He said that if it were true in the third or fourth Session of a Parliament that that Parliament was likely to have got out of touch with the nation, the real and logical argument would be triennial Parliaments. He pointed out, and I agree, that triennial Parliaments would lead to great unsettlement, and that they are generally regarded as being unsatisfactory. I think we can also agree that any Government in its third or fourth Session is less likely to be in close touch with the nation than at the beginning of its term of office. For that reason alone, rather than have a triennial Parliament, our Constitution has wisely adopted the other method of having a Second Chamber which, on occasions, can check or hold up legislation which shows that a particular Government has gone beyond its mandate, or beyond what it might properly have done.
§ Mr. Raikes
If the hon. and learned Member had listened to my observations a moment ago, he would have heard me say that the Lord President might have thought that the Second Chamber was one-sided, and that if he had been wise he would have endeavoured to alter the position so that the House of Lords could have played its part impartially in dealing with the legislation of either a Socialist or a Conservative Government. I think that is a perfectly fair point.
No Second Chamber, unless it wishes to commit suicide—and most people do not wish to do so, although more people may wish to under this Government in the future—would be likely deliberately to overthrow legislation if it believed that to do so would be contrary to the view of the nation, because if it did, it would make its position almost impossible when the next Government came into office. For that reason a Second Chamber is always exceedingly careful—and the Second Chamber in this Parliament has been exceptionally careful—first of all not to oppose anything in the mandate of the Government's Election address, and, beyond that, not to oppose even bad legislation—or what might be considered to be bad legislation—so long as by-elections prove that the people are still behind the Government.
I suspect that the Government are now realising that it is pretty plain that they no longer retain the confidence of the nation to anything like the extent which they did two and a half years ago. The real object of this Measure is to ensure, whatever the views of the nation may be, that so long as this Government is in Office they can do whatever they please, popular or unpopular. It is not without significance that the Second Reading of this Measure on 10th November took place just after the municipal elections had shown a considerable swing to the Right.
§ Mr. Raikes
I am going to deal with by-elections in a moment. It is also not insignificant that the Third Reading should have taken place on 10th December, after four by-elections had shown, in the aggregate, a very considerable change, compared with 1945. I have taken the trouble to make a note of those by-election figures, taking the four together. In 1945, those 1039 four seats revealed 75,753 Conservative votes and 72,603 Socialist votes, which was practically level. Today they have given 91,474 Conservative votes and 68,235 Socialist votes. This Government would be out if they went to the polls tomorrow, and those figures were repeated throughout the country.
§ Mr. Raikes
I am perfectly ready to see them have a try. In view of the turn of the municipal and recent Parliamentary elections, there could not have been a worse or more inopportune moment to tamper with the reasonable constitutional powers of the Second Chamber. If the object of this reduction is, as I believe it is, to enable this Government to pass into law Bills which otherwise would be held up until the verdict of a General Election, then the moment selected for doing so is an extraordinarily bad one.
The Bill is unnecessary, because the Upper Chamber have behaved in a strictly constitutional way throughout the whole period of this Government. It is undemocratic, because at the end of this Government no Second Chamber may be permitted to refer anything back to the people, however unpopular this Government may have become—and they are getting more unpopular every day. Finally, it is calculated to divide the nation because it raises a class issue deliberately at a time of national emergency. For that reason, it is a bad Bill, and I wish I could move, in the good old phrase of the past, "That this Bill be worn and torn," but as it is, we will do our best to oppose it. We believe the Government are digging their own graves at the same time that they imagine they are saving themselves.
§ 5.1 p.m.
§ Mr. Naylor (Southwark, South-East)
The hon. Member for Wavertree (Mr. Raikes) suggested that the House of Lords is a paragon of virtue and progress. I challenge and deny the suggestion. I recollect certain occasions when the House of Lords was in no sense a progressive body, and when many working-class Bills passed in the House of Commons were afterwards rejected by the House of Lords. At that time, just as now, the 1040 House of Lords was not prepared to advance with the times and recognise that the working people of the country were entitled to justice. What has been the attitude of the House of Lords to the question of the franchise? Again and again, from generation to generation, it has opposed Measures for the reform of the franchise, and yet the hon. Member suggests that the House of Lords is not an institution which stands in the way of progress.
§ Mr. Raikes
I was fortified in what I said by the fact that the Home Secretary had already told the House that the powers he was giving to the Second Chamber under this Bill were the maximum powers which he would give to any Second Chamber, however constituted. Therefore, presumably, he regards the present constitution as being as good as any from the point of view of this Government.
§ Mr. Naylor
This Bill gives no powers at all to the House of Lords. It simply reduces the suspensory veto of the Lords from two years to one year. That brings me to the consideration of the suggestion that we are making a constitutional change. I do not regard this question as being of an academic character. I do not approach it from the academic point of view, because I am a layman and not a professor at a university. I want to approach the issue from the point of view of the English language. It is remarkable that the three hon. Members who made the longest contribution on this issue of the Constitution come from the ancient seats of learning, and naturally one would wish to pay deference to the knowledge that they might be expected to possess of the history of the Constitution of this country. I would like to ask them what makes a Constitution. It seems to me that an alteration of the Constitution means a constructive part of the institution which is to have its particular powers curtailed or taken away by this new legislation. In fact, the Constitution is not being touched at all. Surely, it is not suggested that the mere alteration of the suspensory veto from two years to one year is an alteration of the Constitution. The English language is not being strained too much when we say that there is no alteration of the Constitution.