§ 3.38 p.m.
§ Order of the Day read for the consideration of the Report from the Select Committee on Leave of Absence.
THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOME)
My Lords, I beg to move that this Report be now considered.
§ Moved, accordingly, and, on question, Motion agreed to.
THE EARL OF HOME
My Lords, this question is a matter for your Lordships' House, and therefore I speak to-day in my capacity as Leader of the House. My object is to see whether I can give guidance as to the attitude which your Lordships might take to the Report of the Committee presided over by the noble Lord, Lord Merthyr, which is before us. During the last year or so the House has been feeling its way towards what many of us hope may be, in the not too distant future, a comprehensive reorganisation of your Lordships' House, arrived at by compromise and sealed by Party agreement. However that may be, we have sought, as we have gone along, to do two things; to keep this House abreast of the needs of the time and to remove any features of our composition or our practice which are out-dated or which are the focus of adverse criticism either from your Lordships or from outside—because the objective which all of us desire is that we should be, and should be seen to be, an efficient and workmanlike House of Parliament, playing a limited but a definite and valuable part in the Constitution of our country.
One matter of criticism which has been the concern of your Lordships for some time, and has attracted criticism from outside, is the problem posed by the substantial number of peers who, although they have received a Writ of Summons never, or hardly ever, come to take part in our proceedings. If I judge feeling aright, there is a growing and substantial feeling that those who receive 1006 a Writ have a duty to the Sovereign and to Parliament which they should fulfil or, if they cannot, ask to be excused. Secondly, of course, there is the possibility that on some particular political issue which aroused the dormant political enthusiasm in these Peers they might descend upon the House and undo its will as it had been arrived at by the careful processes of reason and debate which we try to maintain in this House at a high standard. That danger is more theoretical than real, but it is a possibility.
It was therefore in that situation, I think, that the House set up what I may for convenience, call the Swinton Committee, to advise the House as to whether we could deal with this situation under our own powers, and in particular to advise us whether we could do it by means of granting leave of absence to some of our Members. Very shortly, I would remind the House of the salient findings of the Swinton Committee: first, that the House has no power to exclude one of its Members—every member has the right to receive a Writ of Summons secondly, that the receipt of a Writ of Summons involves a duty to attend unless the Peer is excused attendance which the House has power to do. I call attention to one other passage in the main Report of the Swinton Committee—namely, the passage which deals with leave of absence. It is contained, I think, in paragraph 33 (b), and deals in particular with the notice to be given by a Peer who has been granted leave of absence, before he returns to the House. I should like to read it to your Lordships. It says:Members are expected, if they have been granted leave of absence, not to attend until their leave of absence has been terminated by giving such notice as may be prescribed by Standing Orders.I have reminded myself, in view of the evidence given by Lord Simonds, who is going to speak later—and we shall listen to his remarks with interest—of the Resolution which we passed in this House on December 10, 1957. I find that my noble friend Lord Swinton specifically asked the House, both at the beginning and at the end of 'his speech, to approve paragraph 15, which deals with the issue of the Writ of Summons, and paragraphs; 29 to 39 which deals with leave of absence, including the words on the question of "notice" which I have just quoted to your Lordships. I would remind your Lordships that the House accepted those 1007 specific proposals after debate and without a Division. Therefore, I would conclude that the question before the House to-day is not one of principles, or indeed of the main proposals, but whether Lord Merthyr's Committee has proposed ways and means of carrying out the main proposals which are reasonable and practical and acceptable to the House.
Your Lordships will find the main suggestions made by Lord Merthyr's Committee and the proposal for a new Standing Order in paragraph 5 of the Report. The Report is unanimous, and I think that the drafting and the intention are clear. There are, therefore, only one or two points to which I would draw your Lordships' attention. First of all I would refer you to the last words of paragraph 5 (1), which make it abundantly clear that it is not the intention of this House, and certainly not the intention of the Committee, that a Peer should feel that he has to apply for leave of absence if he feels he has any contribution at all to make to the proceedings of this House. The last thing we want to do is to exclude anybody from this House who feels he has a contribution to make to our debates. I think your Lordships would agree to that. Without taking specific cases, we have lately had one or two cases of noble Lords who cannot often be here but when they do come speak with great authority on certain subjects to the great benefit of the whole House. Therefore it would be a great pity if any Standing Order were to lead them to think that they should apply for leave of absence. Paragraph 5 (1) seems to me to secure that, and its language is quite clear.
Then the Committee (and in view of the Amendment which Lord Saltoun has on the Order Paper, I would particularly ask him whether he would consider these points before he speaks to us this afternoon) recommend that in the normal case the interval that should elapse before a Peer who has been granted leave of absence comes back should be three months. I have done my best to study this proposal and to see whether it is one that I could recommend to the House. The first thing that I asked myself was whether such a proposal deprives a Peer of any constitutional right. Well, we shall listen to Lord Simonds with interest, and no doubt my noble and learned friend the Lord Chancellor will give his view; but, 1008 for myself, I cannot see that it deprives a Peer of any constitutional right. What it does do—and this the House has a perfect right to do—is to indicate to the Peer concerned the period which the House would normally think it proper should be observed before a Peer returns.
My Lords, none of our conventions in this House has the force of a Rule of Order which can be applied and insisted upon by the Leader of the House or by the Lord Chancellor on the Woolsack; in that way we are quite different from another place. I would draw your Lordships' attention to the sub-title of our Standing Orders, which says that they are:Remembrances for Order and Decency to be kept in the Upper House".Therefore, I should have thought that it was only proper to include such a provision: that a Peer should be expected by the House to give three months' notice, and that that was in accordance with the "Remembrances for Order and Decency" by means of which we conduct our proceedings.
If it would assist the noble Lord, Lord Saltoun, I would reinforce that point of view by saying that in our existing Standing Orders there are, for instance, such matters as:It is the duty of the Lord Chancellor ordinarily to attend … but in case [he] be absent … the Lords may then choose their own Speaker,and again,Lords may obtain leave of absence at the pleasure of the House upon cause shown.None of these Rules (if I may call them that) can be enforced by the Leader of the House, but conventions which have been built up have been observed and I believe that, on the whole, your Lordships will feel that our House works extraordinarily well by reason of those conventions and that it would be a thousand pities if we had to adopt more rigid Rules of Order.
I cannot say whether or not this experiment, if it is tried, will work. Of course, if a sufficient number of Peers breaks what I might for convenience call the "three months' notice rule", then the whole scheme will break down. But there is an equally good, and indeed a much better, chance that the convention will be gradually built up and that Peers will recognise and conform to the 1009 reasonable wish of the House, so that we shall gradually find a House of recognisable working Peers.
The last point in this Report to which I will draw attention—and I consider this a very sensible provision—is that the Committee suggest that a committee should be set up on the lines of that which deals with travelling and expenses, to supervise, and to advise the House on, the working of the scheme as it goes along. I did not myself serve on this Committee, but I have had the advantage of reading the evidence put before the main Committee and reading this Report, and, as Leader of the House, I have had therefore to consider what advice I might give to your Lordships to-day and whether I should advise its adoption. We have already had two debates on the main question, the last of which was on a Resolution in favour of the positive proposals contained in the main Report, and those proposals were agreed to by this House without a Division.
We now have a unanimous Report on ways and means of carrying out those main proposals and a unanimous Report from a Committee presided over by my noble friend Lord Merthyr, Lord Chairman of Committees. After having tried to give my best attention to this matter, I have concluded that the proper course for me to-day is to give a strong lead to your Lordships in favour of the findings of this Committee and that we should make this experiment; and I believe there is a very good chance that noble Lords will co-operate to make it a success and to improve the business of our House.
There are several other matters which the Committee could not put into a Standing Order but to which they gave their attention and which I believe will need a little more consideration—for instance, the facilities to be given within these buildings to Peers who have been granted leave of absence. I would suggest that those are proper matters to be considered by the Committee which the Committee of the noble Lord, Lord Merthyr, suggested should be set up, and that that Committee might make a Report to the House on these matters at a future date. But on the main Report, having heard the previous debates on the proposals of the main Committee which was presided over by the noble Earl, Lord 1010 Swinton, and having considered this Report, I beg to move that the Report be agreed to.
§ Moved, That the Report from the Select Committee be agreed to.—(The Earl of Home.)
§ 3.55 p.m.
§ LORD SILKIN
My Lords. as one who served on both the original Committee and on the Committee which was set up to draft the Standing Order, I should like to begin by paying a tribute to the noble Earl, Lord Swinton, who was Chairman of the original Committee, for the most able and courteous way in which he presided over our deliberations. He was not an orthodox Chairman. He took an immense amount of trouble and gave every member of the Committee a fair chance to express his views; and I have nothing but praise for the way in which he conducted the proceedings of that Committee. I should like to pay a tribute also to the noble Lord, Lord Merthyr, for the way in which, he conducted the proceedings of the second Committee, in which the actual Standing Orders were drafted.
In moving this Motion, the noble Earl the Leader of the House told us that he had studied the Report and had considered whether or not he could recommend it. He said that after careful consideration he had come to the conclusion that the proper course was to give a strong lead in favour of the findings of the Committee. Front that I take it that we are all in the same position of having to consider the final Report—that is, the Standing Order as finally drafted—and that we are perfectly free to come to the conclusion to which the noble Earl has come, or the reverse, as we think appropriate.
I would just remind the House of the recent history of this matter, which first came to us officially on April 5, 1955. There had been in earlier debates on this House some reference to absenteeism as there had been for many years, but it took concrete form on a Motion:That a Select Committee be appointed to inquire into the powers of this House in relation to the attendance of its Members.That Motion was moved by the noble Marquess, Lord Salisbury, the then Leader of the House, and I should like 1011 to quote a few sentences from what he said [OFFICIAL REPORT, Vol. 192, col. 278]:The question of the powers of this House with regard to the attendance of Peers has cropped up more than once in recent debates. It is not for me to express any views on that subject to-day: indeed, in view of the proposal which I make in my Motion I am sure the House will agree that it would be most undesirable that I should attempt in any way to pre-judge the issue.The noble Marquess enlarged on that point, saying that it was clear to all of us that at that stage, in approving the Motion to appoint a Select Committee, nobody was committed to the principle of dealing with absenteeism, either in the way proposed by the Select Committee or anybody else.
The Motion was supported by the late Earl Jowitt in a few sentences. He said [col. 279]:This is a very narrow Motion, as I understand it. There is no question of legislation, directly or indirectly …and so on. He had no objection. It was also supported by the noble Viscount, Lord Samuel, whom we are glad to see here this afternoon. The noble Earl also approved the appointment of a Select Committee. In a further question the noble Marquess was asked [col. 280]:Does that mean anything more than finding out what, in fact, the powers of the House are in regard to the attendance of dilatory Members?The noble Marquess replied:… that is exactly what it means. … This is just an inquiry as to what the powers of the House are in this matter.And it was, my Lords, upon that basis that the inquiry proceeded.
It was a most interesting inquiry and the views put before us were by no means unanimous. But eventually we reported, in October, 1955; and I would draw the attention of the House to the first sentence of the Report:"Scope of the Report.The Committee have interpreted their terms of reference in the light of the debate which took place in the House at the time of their appointment. The House charged the Committee to advise what the House can do, not to recommend what the House should do.So up to that point the House was in no way committed. We had reported what the House could do and not what it should do.
Then we had a further debate in the House on February 28, 1956, on a Motion 1012 by the noble Earl, Lord Swinton, to call attention to the Report. In an introductory speech he explained—if I may say so, very clearly and concisely—what the Report was all about and what were the suggestions that were made. And again the noble Marquess who was leading the House spoke on the matter, and he said [OFFICIAL REPORT, Vol. 196, col. 18]:… the Report … has no direct bearing on such a subject as the reform of your Lordships' House—in case there may be anybody who would attempt to link the two together.I rather think that the noble Earl attempted to connect the two and regarded this as one step in the direction of reforming the House.
But then the noble Marquess went on to say:… the House charged the Committee to advise what the House can do and not what the House should do. … It was asked to consider quite a simple and quite a straightforward question … and that question was: What are the existing powers of the House with regard to the attendance of Members? It was asked just that and no more, and it is to that particular point that the Report is confined.He went on to say:In these circumstances, I do not propose this afternoon to deal with any points that go beyond those limits which I have tried to define, and I certainly do not propose to trench on such subjects as the reform of the House of Lords.So it was perfectly clear that the House was in no way committed up to that point; it was merely an inquiry as to what the House could do if it so desired. Then we had the debate on February 10, 1957, to which the noble Earl has referred, and this matter was again discussed on a Motion by the noble Earl, Lord Swinton, welcoming the adoption of the conclusions of the Report; and for the first time there was some sort of a debate on the merits of this question.
§ THE EARL OF SWINTON
My Lords, with great respect, the noble Lord is surely wrong. There was a great deal of discussion on the merits when the Report first came before the House, and very general approval was expressed of it. There was a great deal of discussion on it when the Second Reading of the Life Peerages Bill was introduced and the Government expressed the hope, with which the noble Marquess, Lord Salisbury, agreed, that the Report would be adopted and be a concomitant of the Life Peerages Bill; and it was then, after that, that I put down the Motion that 1013 the House approve of the Report and instruct a Select Committee to carry it out. The noble Lord has been very fair up to now, and I am sure he would wish to be fair on that.
§ LORD SILKIN
My Lords, I hope I shall continue to be fair. But the noble Earl will agree that a discussion on, or a reference to, the attendance of Members, on the Second Reading of the Life Peerages Bill, cart hardly be regarded as an approval of the House to the principle.
§ LORD SILKIN
There was some discussion, but we remained with the impression that all we had been asked to do up to that point was to say what the House could do and not what it should do. I still submit, and I think I am right in saying, that the first time that the House directly and deliberately considered the proposals of the Select Committee was on February 10, 1957, on the Motion by the noble Earl welcoming the adoption of the conclusions of the committee.
§ LORD SILKIN
I thought. I said December 10. I have said that this was in itself a somewhat perfunctory debate, because we did not fully discuss the merits and demerits of the Report. We were dealing with a Motion that we should try to draft something, and so far as we on this side of the House were concerned we felt that we ought to reserve our own observations until such time as the actual Standing Order was before us and we could then go through the same mental process as the noble Earl the Leader of the House tells us he went through to-day on reading the Report. In support of that view, I should like to state my own opinion—what I then said in the debate on December 10. I discussed the desirability of doing something about this problem; and, if your Lordships will permit me, I will quote one part of 1014 what I said [OFFICIAL REPORT, Vol 206, col. 1009]:It was also said that regularisation of absence would put ourselves in a better position in the eyes of the public.That referred to a statement the noble Earl had made in the earlier part of that debate. I continued:… I feel that on the whole it is just worth trying; but will it improve our position in the eyes of the public if it turns out that 300 noble Lords, hereditary legislators, do not want to have anything to do with the place and ask for leave of absence? I cannot think that that would enhance the prestige of this House at all.I added:I wonder whether it would not be better, in those circumstances, to let sleeping dogs lie, rather than to bring out into the limelight the fact that there are so many absentee Peers.I went on to say:From the point of view of noble Lords on this side of the House, it does not matter to us one way or the other. Even if three-quarters of noble Lords opposite took advantage of this and obtained leave of absence, instead of being outnumbered by sixteen to one we should be outnumbered by four to one. It could not matter less. It would merely de-congest the Division Lobby, but otherwise we are just as dead at four to one as we are at sixteen to one.That was the view that I took in the debate on December 10, 1957. I was then speaking on behalf of my noble friends. If the noble Earl would have us think that that represents an acquiescence in the Report, I am very much surprised.
§ THE EARL OF SWINTON
My Lords, what I said was, if the noble Lord would be fair enough to read the Motion which the House unanimously agreed to in the end:That this House would welcome the adoption of the conclusions relating to the delivery of Writs of Summons contained in paragraph 15, and the conclusions relating to Leave of Absence contained in paragraphs 29 to 39, of the Report of the Select Committee on the Powers of the House in relation to the Attendance of its Members; and that a Select Committee be appointed to frame and propose to the House Standing Orders for giving effect to the conclusions relating to Leave of Absence.That was the Motion which the House adopted with unanimity.
§ LORD SILKIN
My Lords, I was reading out to the noble Earl a passage to show the spirit in which we accepted the matter. We said that it could not matter one way or the other; we have 1015 grave doubts about the whole thing, but we are quite willing to take part in the drafting of a Standing Order. That was the substance of what we said. And we are now considering the proposed new Standing Order. I am sure that none of us wants to make debating points on this matter. I have regarded the whole thing as being open until we had the Standing Order before us and we could discuss the matter on that.
I now propose to turn to the merits of the question. What are the merits of this proposal and what is the reason for it? The noble Earl the Leader of the House has given us two reasons. They were both stated in the speech he made on the earlier occasion and he gave the same reasons this afternoon. He said on the earlier occasion [Col. 983]:They do attract some measure of public condemnation on themselves—he was referring to absentee Peers—and some discredit on this House.He went on to say that he did not wish to exaggerate the problem. Is that the case for making this Standing Order? Is it merely becausethey do attract some measure of public condemnation on themselves and some discredit on This House"?If that is part of the case, I would repeat what I said then—namely, that in my view it would reflect at least equal discredit on this House if it were made public that, say, 250 or 300 Peers, or more, had definitely applied for leave of absence because they were not able or were not willing to do their duty in this House. I should have thought that if anything like that number applied for leave of absence (and it is anybody's guess how many will apply: if one judges by the number who come to your Lordships' House, it may well turn out to be something like 250 or 300), it would reflect more discredit on this House than merely leaving things alone and not making a definite Standing Order on this subject.
Is one of the reasons that one of the Parties in this House is hopelessly outnumbered; that there is a permanent Tory majority in this House, whoever constitutes the Government, and that it is desired to balance out the Parties—because obviously the majority of those who apply for leave of absence will come from the Benches opposite, rather than 1016 from this side? Is that the idea? I thought that I had answered that already in my speech on December 10, 1957. It makes no difference to us, if and when we are a Government, whether we can be out-voted by sixteen to one, by four to one, or by two to one. Our real case that there is a permanent majority on the other side, and nothing that this Standing Order can possibly do will materially influence that situation. What then is the reason for this Standing Order? I hope that some noble Lord will be able to enlighten us. But I have not been able to find any reason, except the wish to make ourselves look respectable and, to a certain extent, redress the balance.
But I have another objection to this Standing Order—I am not going to put it in legal terms: I believe that the noble and learned Viscount, Lord Simonds, is going to do that. I put it in ordinary language. Both Peers of first instance and hereditary Peers have a duty by virtue of being Peers of Parliament. Peers of first creation are made on the definite understanding that they will play their part in the legislative and deliberative functions of your Lordships' House. If that is not so, why are they created'? Is it merely an honour? Of course it is an honour to be created a Member of your Lordships' House—but is it merely that? Are there no corresponding duties? And if there are, can it really be open to any person who has accepted the honour not to carry out the duties and obligations, or to carry them out just as he pleases?
I come to the hereditary Peers. In past debates we have heard the justification for an hereditary system in this House: that there is something about an hereditary Peer—tradition and all the rest of it—which makes him prima facie a suitable person to act as a legislator. But what happens if any noble Lord who is prima facie a suitable person to act as a legislator and take part in the proceedings of this House, asks for leave of absence and does not turn up at all? What remains then of this justification of the hereditary system? What is left of it? I feel very strongly about this matter, because of recent years we have had a number of creations of Peers—Barons and Viscounts—men who have been properly honoured for their past services and who would have made a great contribution to the work of this House, but who have 1017 never once set foot in the place. Indeed, so far as I know, they have never even taken the Oath. They may have had a cup of tea in the tea room or invited friends to lunch, for all I know, but they have never come into this Chamber and certainly have never taken part in its work.
I feel that by passing these Standing Orders and accepting the principle of leave of absence we are condoning this practice. It will be perfectly proper and respectable for any person to accept a Peerage and the next day to come along and ask for leave of absence for the rest of the Parliamentary Session. He will get a certificate from the noble and learned Viscount the Lord Chancellor that he is perfectly in order; he has done his duty; he has applied for leave of absence, and has obtained it, and that is the end of his legislative functions.
If the noble Earl the Leader of the House wishes to say that we accepted this proposal sub silentio, I am quite prepared to let him have his debating point, because it is only a debating point. We claim the same privilege as the noble Earl, that of considering this matter as it now conies before us and of making up our minds on it. The noble Earl, as he is entitled to do, has made up his mind that this is worth trying. We have made up cur minds that this would be a mockery to this House and would be utterly incompatible with the maintenance of the hereditary system. If noble Lords wish to proceed with it, I warn them that they are driving one more nail into the hereditary system of legislation as it obtains in this House.
There is one final thing I would say. I think the House would be ill-advised to ignore the doubts which have been expressed as to the legality of what we are doing. Every noble Lord receives from Her Majesty a Writ of Summons which brooks no refusal. It is in peremptory terms. Your Lordships all know it well, and have heard it on the frequent occasions when it has been read in this House. Noble Lords are expected to obey that Writ of Summons without excuse. Are we going to say that this Writ of Summons need not be obeyed; that a Peer of his own volition, without having to give any reasons, can now refuse to obey it? I doubt very much whether even from the legal point of view we are 1018 justified in doing this. Of course, I know that every noble Lord "plays the game," and, having obtained leave of absence, will not come here and speak and vote. But we are already proposing, in our Standing Orders, to give him a way out. He can give three months' notice that he wants to come, and if some urgent matter is looming in the distance he will no doubt give that notice. In fact, I think the Standing Order uses the words, "or sooner, at the discretion of the Committee"; and the Committee might decide on an even shorter period. There is nothing to prevent a noble Lord, other than the general idea of not "playing the game," coming in defiance of the Standing Order, even if he has obtained leave of absence. We feel that the House would be ill-advised to pass this Standing Order. We hope that the Government will have second thoughts on the matter, but if they insist on pressing this—
THE EARL OF HOME
This is a matter for the House. The noble Lord is talking rather as if he is speaking for his Party now, as he is no doubt entitled to do; but I tried to give advice to the House as Leader of the House, and not to insist that this Report was backed by the Government. I do not know how my noble friends feel about it. It is a matter for the House, and it is important that we should keep that in mind.
§ LORD SILKIN
Then may I slightly change my appeal? I would appeal to the House not to give support to this Motion, but to have second thoughts. I would say that we have not really discussed it sufficiently in all its aspects. However, if it is the intention definitely to put this question before the House, I hope the House will vote against it.
§ 4.26 p.m.
§ VISCOUNT SAMUEL
My Lords, I much regret that my noble friend Lord Rea is confined to his house by a slight indisposition and is unable to take part in our debate to-day, as he had hoped to do. For myself, I would only say that, having served on both the Select Committees, I do not agree with anything that has been said by the noble Lord, Lord Silkin. If the noble Lord divides the House on a subject which he says "could not matter less", I will certainly support the Motion of the noble Earl the Leader of the House.
§ 4.27 p.m.
My Lords, as a member of the Select Committee appointed to frame the Standing Orders now before the House, I should like to say a few words. I would again remind the House that the noble Lord. Lord Silkin, was not only a member on the Select Committee on the Powers of the House but also a member of the Select Committee on Leave of Absence, and presumably he accepted these Reports as he did not put forward a Minority one.
§ LORD SILKIN
May I make my position clear? I disclosed that to the House at the opening of my remarks.
I apologise to the noble Lord if I put a wrong interpretation on what he said. But he was, in fact, a member of both these Committees and did not put forward any Minority Report. I fully understand the difficulties of the noble Lord with his Party, but I am sorry he has found it necessary to change his views on leave of absence. In the debate on December 10 last which he has mentioned, he admitted that the scheme was worth trying, and went on to say:If the House wants to try it out, by all means let it do so.It has also been said by the noble Lord that leave of absence might be derogatory to the House. I think it is true to say—it is, perhaps, well known, and certainly it is not new—that approximately 259 Peers have not taken the Oath; 114, I believe, have taken it once only; 188 (142 of whom are Peers of first creation) have made fewer than ten attendances; and 253 have attended more than ten times. I cannot see that if 300 Peers ask for leave of absence it is any more derogatory to the House than the figures I have just given.
Both during the debate in December last on leave of absence and in the earlier debate on the Constitution of the House, it was generally agreed that there should be some limitation on the number of Peers who could at any time attend the House. With a number of Life Peers being added to the House, our total number will go on increasing, not getting smaller. I think it was the noble Earl. Lord Attlee, in the debate on the Constitution of the House, who said that it was necessary to consider the cutting down of its numbers; but he went on 1020 to say that the provision to grant leave of absence was not, in his view, very satisfactory, as it would not remove what he regarded as a potential menace—the "potential menace" being, of course, the possible sudden arrival of "backwoodsmen" to swamp the House on an important measure about which perhaps they might know very little; and they might rarely, if ever, have come to the House and might not even have taken the Oath.
It was precisely for this reason that the proposed Standing Orders have been drafted, so that a Peer who had obtained leave of absence would be unable to attend the House and vote without giving three months' notice. Why three months' notice? Why not one month's notice? I think if it were only one month it would mean that a Peer might suddenly see a Bill on the Order Paper which particularly interested him, and he could, with one month's notice, come back in the middle of the debates on the Bill, take part in them and vote; and that, I think, is what we want to prevent. It can at once be said that the House has no powers to exclude a Peer, and that if he were determined to attend, in spite of the Standing Orders, he could not be prevented from doing so. Of course, this is perfectly true. On the other hand, I am sure that few noble Lords would be prepared to break Standing Orders. As your Lordships know, in the past, for many years now, we have never had any trouble about the breaking of Standing Orders. On the other hand, I suggest we should remember that it would in fact be possible for a Resolution to be moved in the House for "contempt" should a Peer break a Standing Order. In the Report of the Select Committee on the Powers of the House, paragraph 40 states thatThe fact that this power has not been used for some time must not be taken to imply that this power does not exist.After considerable research, I am sure that this power does in fact still exist.
Some doubt has been raised in various quarters as to the powers of the House to introduce the proposed Standing Orders. I would say, in the first place, that the Select Committee on Powers has made it very clear that the House has undoubtedly for many years exercised the powers to excuse Peers from attendance, and the granting of leave of absence is certainly no new thing at all. If one looks at the Journals of the House, one 1021 can see many cases in the past when Peers have in fact been excused attendance. The Committee also made clear that the proposed Standing Orders would in no way affect the Prerogative of the Crown. The Standing Orders would not deprive any Peer of his rights. As no right conferred by the Crown would be diminished or taken away, the Prerogative of the Crown would not in any way be affected: in fact, those are the words which appear in paragraph 36 of the Report of the Select Committee on Powers. I suggest we must bear in mind that the House is certainly not in any way limited in the application of its powers strictly to what has been customary in the past, because if this were so no new precedent could ever be created: and it is, of course, true that Parliament has evolved through the years from precedent to precedent.
I think we should also remember that on December 10 last the House approved the conclusions relating to leave of absence, as contained in the Report of the Select Committee. What we are really doing to-day is to decide the form which the Standing Orders should take in order to give effect to these conclusions. I would further point out that the noble Lord, Lord Saltoun, who has an Amendment to this Motion on the Order Paper, seems to be jobbing backwards, which is, I must say, rather strange in the circumstances, as the House has already approved the conclusions set out in the Report of the Committee on Powers with respect to leave of absence. I do not know whether the noble Lord is thinking of the Peers of Scotland. If he is, of course they are not included in the scheme for leave of absence.
I hope the House will further agree that Peers on leave of absence should be entitled to receive Hansard and other Parliamentary Papers on application. I think they should also be entitled to use the Library, Refreshment Room, certainly the Galleries, and perhaps the steps of the Throne. I suggest that their eldest sons should continue to be able to sit on the steps of the Throne. I think wives of Peers on leave of absence should also be entitled to use the Galleries. On the other hand, I suggest that it should be made perfectly clear that only those Peers who have not applied for leave of absence, and who have taken the Oath, should be entitled, with their wives, to attend the opening of Parlia- 1022 ment. In the past, Peers who have never attended the House except at the opening of Parliament have come along and filled up the limited accommodation, together with their wives, to the exclusion of the hard-working and active Peers of the House. I maintain that that is quite wrong.
I should like to conclude by recommending to the House the proposed Standing Orders, which are based on the conclusions in the Report of the Committee on Powers already approved by the House. They have been examined most carefully by the Select Committee, and I feel sure that, with the unfailing aid of your Lordships, they will work and be of great benefit to the House.
§ 4.36 p.m.
§ VISCOUNT SIMONDS
My Lords, it is long since I addressed your Lordships, and I am almost inclined to ask for the indulgence which your Lordships always give to maiden speeches. I am in the happy position that I was not a member of either of the Committees which have considered this matter; nor, most unfortunately, was I able to be present at the debate on December 10, when the Report of the Committee presided over by my noble friend Lord Swinton was considered. I had intended to be, but I was laid low by an attack of influenza and so did not have the opportunity of saying then what I take the opportunity of saying now.
I am going to invite your Lordships' attention to a single aspect of these far-reaching proposals which, as I think, may effect a revolutionary change in the Constitution of this House. I am not going to say one word on the question of expediency, because I think that that question has almost necessarily a political implication; and I, standing here at these Cross Benches, and holding the Judicial position which I now hold, wish to say absolutely nothing on that question, except this single word of warning, if I may venture to give it—I think I need not give it, because I believe that no Member of this House would feel justified in depriving any one of: his fellow Members of his constitutional right, so long enjoyed, unless he felt sure that he was justified in so doing. Law should never give way to expediency, and your Lordships must be satisfied, before you adopt a course on the ground of expediency, that you are justified in law.
1023 I say that for this reason—I hope your Lordships will not think it presumptions of me. I have felt it my duty to say what I have to say to-day, because it happens that when, for three years or more, I occupied the position which my noble and learned friend on the Woolsack now occupies, it fell to me on more than one occasion to go as deeply as I could into this question of the constitutional propriety of some such Standing Orders as those now proposed—not indeed in these words, though the principle was clearly before us. I may as well at once, having put my hand to the plough, or perhaps, more appropriately, I should say taken the bull by the horns, tell your Lordships at once that I am wholly convinced that Standing Orders in the form now proposed are wholly contrary to the law and custom of the Constitution. I must of course make good that statement, but first I should like to make this preliminary observation, in view of something that has fallen from some of the speakers who have preceded me.
I speak as one who regards the Standing Orders of this House as something which has to be obeyed: in the Report of Lord Swinton's Committee that was asserted in unequivocal terms. If this House makes a Standing Order directing the conduct of a Peer, whether the word "must" is used or whether the word "should" is used, that Order has to be obeyed. I cannot imagine a more powerful deterrent, and I remind myself that I read the Report of the debate of December last, though I could not be here, and I remember so well that one of your Lordships—I think it was the noble Viscount, Lord Soulbury—said that for his part he would rather commit an offence against the law than commit a breach of Standing Orders.
§ A NOBLE LORD: Hear, hear!
§ VISCOUNT SIMONDS
That view receives, at any rate, some approbation. But, my Lords, that is the very truth: Standing Orders are meant to be obeyed just as much as if they were part of the Constitution.
Having said that, if I am not wearying your Lordships, I should like to go a little into the constitutional question. I think we are so far agreed that it will be necessary for me to say very little. Certain 1024 propositions are obvious and command universal assent; and they have already to some extent been stated in the House to-day. The first is the absolute right of a Peer to receive his Writ of Summons. That was established centuries ago; and, ironically, it was established by your Lordships in a battle with the Crown. The Sovereign had sought to withhold a Writ from a Lord of Parliament, and your Lordships fought his battle and insisted that he was entitled to receive his Writ. How ironical if your Lordships, having fought that battle, should then say to one of your Lordships' House who has asserted his right and obtained his Writ that, nevertheless, he is not to attend! Can one imagine anything more inconsequent and illogical than that as a proposition of constitutional law? He is entitled to receive his Writ; he is entitled to obey it.
Now we come to the next proposition, which is a corollary; he is not only entitled to obey it, he is bound to obey it. He has his Sovereign's Command. It is the Sovereign who, by virtue of the Prerogative, issues the Writ, and it is the Sovereign, or it was the Sovereign, in days past, who expected that Writ to be obeyed and who expressed in a vigorous way, often enough, his sovereign displeasure if it was not obeyed. That was the position. Now, my Lords, at some date (I do not think that in the researches, and they were very considerable, I then made, I ascertained the precise date) the power which the Sovereign had exercised in excusing a Peer from obeying his Summons, which took the form of granting him leave of absence, was delegated by the Sovereign to this House and was so exercised. And just as the Sovereign himself had visited disobedience with displeasure, so this House visited disobedience by a Member with displeasure; and your Lordships will find in the records many instances of how that displeasure was exercised. All that is historical fact, not capable of denial or qualification.
At some time—and one cannot ascertain the exact date—Lords ceased to ask for leave of absence, though the matter remained in the Standing Orders. It is long since any leave was sought, and certainly since there was any refusal to grant leave or any question of visiting absence without leave with displeasure. That is the constitutional position. Here 1025 again, I do not think it can be questioned that you are seeking for justification for what you want to do in the law and custom of Parliament.
Let me observe that for some 600 years (it is, I think, just about 600 years ago that this House took its present form as a separate House of Parliament) it has never, either by the Sovereign or by your Lordships, been made a condition of granting leave of absence that that absence should be prolonged beyond the period for which the Member sought it. My Lords, there is no custom. Where is the law? Equally, in 600 years there has never been a suggestion that leave of absence asked for a particular time should be extended for a further time. Nor for 600 years has there ever been the suggestion that a man desiring leave of absence, and having got it, could not return if he found that, after all, he was able to perform his duties. I say that it is impossible to find here any justification for depriving a Member of this House of his right and duty to come here if he wants to come.
It may be asked: What is there in the proposed new Standing Orders which offends against that situation? I would draw your Lordships' attention (I hope that I am not taking too long) to the words of the Standing Orders—and this point is very relevant to one made by the noble Earl, the Leader of the House. I must assume, though it is extremely difficult to find any dividing line, that there is a sort of Peer to whom the exemption in paragraph (1) of the proposed new Standing Order No. 21 applies. Let me read paragraph (1):Lords are to attend the Sittings of the House or, if they cannot do so, obtain leave of absence, which the House may grant at pleasure"—so far, so good; I do not think that is in any way objectionable—but this Standing Order shall not be understood as requiring a Lord who is unable to attend regularly to apply for leave of absence if he proposes to attend as often as he reasonably can.Two people, with exactly the same conditions, might come to wholly different conclusions as to what their obligation was. How is a man to decide whether he proposes to attend "as often as he reasonably can"? One man would interpret that one way and one another. I do not make any point, but I think it is deplor- 1026 able that the matter is not more closely defined.
At any rate, the Order contemplates that there is a class of Peer who does not come within the exemption. He may be going to attend from time to time, and he cannot predicate to himself that he proposes to attend "as often as he reasonably can." He is therefore a man who, obeying the Standing Order, says to himself, "I must get leave of absence", and so 'he faces that position. What does he find? He wants, let me assume, to be away for the month of May; he does not propose to attend in the month of May, but he knows nothing of June and July, except that he has not yet made up his mind. He is still a man who has to get leave. What does he find? He finds in paragraph (2) of this new Standing Order these words:A Lord may apply for leave of absence at any time during a Parliament either for a session or the remainder of the session in which the application is made or for the remainder of the Parliament.That is a thing that was never suggested in the Report of Lord Swinton's Committee; nor, as I think, has it been brought before the House. Therefore, that is a vital matter for your Lordships' consideration for the first time.
I put it to your Lordships: here is a man who wants to be away in May. He may, if his circumstances justify it, if he is sufficiently interested in the topic, want to come in June or July. He cannot apply for May; he must apply for the remainder of the Session. Why should he? What power in the world have your Lordships to say to a man who wants leave of absence for May, "Yes, but you must have it for the remainder of the Session"?
He may think that if he reads on he will find something to 'help him. Let me read on, as he would. He reads paragraph (3) and he finds that that really has nothing much to do with the matter, so he passes over it, as I do. He comes to paragraph (4), which says:A Lord who has been granted leave of absence"—that is, I assume, for the remainder of the Session—should not attend the sitting; of the House until the period for which the leave was granted has expired or the leave has sooner ended.That seems to me to be a vicious provision. Why should he not? He could 1027 think that "until the leave has sooner ended" gives him a little hope. Let us see. Paragraph (5) reads:A Lord to whom leave of absence has been granted may give notice in writing to the House for the purpose of terminating the leave before the period for which it was granted has expired; and at the end of three months following the notice, or sooner if the House so direct, the leave shall end.What hope does that give him?—three months, and he cannot rely upon the words "or sooner if the House so direct". How does he know that the House, which passes a Standing Order like this, will direct that the leave is to end sooner? You cannot justify a thing that is wrongful by saying that it may be put right. So he is faced with this situation: that for months during which he wants to attend his duty he is excluded because he has properly asked for leave of absence during the period for which he wishes to be absent. How is that justified? Where do you find the right?—I beg your Lordships' pardon; I should say "where do we find the right?" I go on to say: how do we dare to infringe so flagrantly the Royal Prerogative? What is a man to do in circumstances where he conies with his Writ and says, "I am ordered by my Sovereign to do my duty"—and your Lordships know the peremptory terms of the Writ—" and your Lordships say, 'Go away; you shall not do your duty.'"? Is the new form of Act of Parliament to be, "Her Majesty, with the advice and consent of the Lords Spiritual and Temporal, or such of them as have not been excluded by order of the House"?
I am sorry if I appear didactic or dogmatic, but I feel strongly about this question. I gave evidence before one of the Committees which dealt with this matter and I put these arguments before the Committee. Not one of them has been dealt with substantially in the Report, or, at any rate, in a way which has carried any conviction to my mind. The only thing that I have found in the Report which seems to me to be of vital importance on this point is this—I will, if I may, read paragraph 29 of the Report, which says:Much of the evidence given to the Committee, and a great part of the Committee's deliberations, were devoted to the subject of leave of absence. For the reasons given above, the Committee came to the conclusion that it would not be legitimate for the House, under 1028 the guise of granting leave of absence to a Peer, in effect to deprive him of his right to sit, speak and vote.That is exactly what this Standing Order does. I am astonished that, having accepted that position, the Committee should have made the recommendations that they did.
There are two things possible in this Standing Order that I regard as wholly unjustifiable. The first is that when a man wishes to apply for a month's leave he should be told he must have, whatever it may be—six months; and the other is that, having been granted leave, he is not entitled to return when he wants to return. In my respectful view, those things are wholly unconstitutional. I have necessarily, I am afraid, been rather emphatic, and for this reason: that I am speaking at a moment when the propositions which I have put before the House have not been dealt with or controverted in any way; and. of course, I do not know what the Lord Chancellor is going to say. I think he has made no pronouncement upon this matter; it may be that in his researches he has discovered reasons which would show that I am wholly wrong; if so, of course, I shall withdraw. But so far, nobody has suggested anything which shows any justification for depriving a Peer of the right which is constitutionally his, of attending if he thinks fit, to speak and to vote.
I have some words taken from the noble Earl the Leader of the House, when he said that our system was outmoded and that a question might arise in regard to a particular political issue upon which the so-called "backwoods" Peers might come from their backwoods and vote down the House. That is a question of expediency which has nothing whatever to do with the question upon which I am venturing to address your Lordships. Then, some suggestion was made that times have changed and new measures were needed. I am not quite sure whether that fell from somebody else or occurred to me when I was reflecting upon this case.
Would the noble Viscount permit me to interrupt for a moment? He has referred to the question of times having changed. Would he not agree that the process of Parliament has evolved from precedent to precedent? There must be changes over the centuries. Would the noble Viscount not agree?
§ VISCOUNT SIMONDS
Yes, but if the application of that doctrine to the present case had occurred to me, I should have felt justified in saying that its application was arrant nonsense; if it fell from anybody else, I should, of course, say merely that it is a rather imperfect analogy. Of course times have changed; but what has not changed is the Writ of Summons. In any case, the doctrine of changing the law because circumstances have changed has a very dangerous application—I hope the noble Lord, Lord Teynham, will believe me; it is a matter that I have often had to consider in another sphere. Then, there is the question of order and decency. Can anybody suggest that any ground of order and decency would justify the exclusion of a Peer who wishes to conic here, holding out his Writ and saying, "I want to sit and to vote"? I venture to submit to your Lordships that, whatever the expediency of these Standing Orders may be, they violate in a most flagrant way the principles of our Constitution so far as they relate to the right and duty of a Peer to attend and speak and vote.
§ 4.59 p.m.
My Lords, the noble and learned Viscount has made, as might be expected, a weighty speech which it would be an impertinence for me, as a layman, to deal with in any detail. I would say only two things about it. The first is, that I do not think that any member of the Committee, of which I was one, was not under the impression that the main principles of leave of absence had been endorsed by the whole House, and that the task of the Merthyr Committee was merely to reduce these agreed principles to precise terms. The other thing is that I do not believe that any member of the Committee (which, of course, contained another distinguished lawyer, the noble and learned Lord, Lord Reid, who we all regret is indisposed to-day) really thought that there was anything in this Standing Order which required or requested a Peer to obtain leave of absence for such a short period as one month. However, I do not wish to continue on this constitutional point, on which others much better qualified to deal with it will no doubt have a great deal to say.
I was hoping that, important as this constitutional question no doubt is, it 1030 would not be the only aspect of this Report which would receive attention to-day. It seems to me that there are other, and perhaps less definable, considerations arising from this Report which possibly may have an important effect, at least in the course of time, on the working of this House. One of these is the way in which this Standing Order, if approved, is likely to be interpreted by individual Peers. I was hoping that in the course of this discussion there would emerge some general consensus of opinion as to how it should be interpreted, if approved, to which reference could be made by any Peer who felt in need of some guidance on this matter.
Surely in the present state of political thinking about the House of Lords it would not be surprising if some Peers, particularly those younger Peers who may not have made up their mind what service, if any, to give to this House, felt in need of some guidance. Indeed, their position is not without an almost humorous aspect. Everything that they may do will be wrong from some point of view. If they stay away they will be pilloried by some sections of political thought and some sections of the Press as absentees and possibly "ticket-of-leave" men; but if they come to this House, although no doubt they will be received here with traditional courtesy, they will learn by the briefest reference to debates in another place on the Life Peerages Bill that the whole of the Labour Party, and apparently a number of Conservatives too, entirely disapprove of the principle that brings them here. Some of the speeches made in another place made this sentiment clear in language so forthright in character that it did not differ very much from personal abuse, very different from the elegant phraseology of the noble Lord, Lord Silkin, in this House.
In these circumstances, therefore, the younger Peer may be somewhat mystified to find that as late as 1949 the whole House voted almost to a man for the continuation of the hereditary principle. Similarly, if these young Peers come to this House they will be told, no doubt by the noble Viscount, Lord Alexander of Hillsborough, that it is very wrong of them to oppose the people's will as represented by the Government of the day; and yet they will find that by the same Act of 1949 this House is 1031 specifically empowered to delay legislation for a period of one year.
We, who have been Members of this House for some time, are aware of the complex, if not tortuous, line of reasoning that has produced these paradoxical results; but I believe younger Peers may be somewhat bewildered; and not only younger Peers but many foreigners and members of the Commonwealth, too. We are always apt to hold ourselves up as a model of Parliamentary democracy, and they will be bewildered by the fact that whenever the question of the Second Chamber crops up there should be this ritual of imprecation against the composition of the present Chamber, which is never followed by any agreement as to how it should be modified or replaced, or whether it should exist at all.
This process has now been going on for the last forty-five years; yet while all these great issues are being debated and decided upon, if they ever are—and it is a wonderful example of the truth of that French proverb that nothing endures like the temporary—there seems to be quite a lot of work to be done in this House, even for the humblest Peers, although it may be work of a somewhat unspectacular character. To take one example, I am told that the Committees which deal with Private Bill legislation, which is often of considerable local importance, are largely manned by younger Peers and that there would be great difficulty in manning those Committees if there were fewer Peers of this particular category.
Again, in spite of the violence of language employed in another place against the hereditary principle, particularly by the Labour Party, I should be the first to admit that when the Labour Party were actually in power here and the late Lord Addison was in charge, the Back Bench Peers on this side of the House got a very good deal. I believe, however, that the whole position is extremely confusing, not only to younger Peers but possibly also to the rarer visitor—the specialist, the doctor, the scientist and so forth; and I am glad that this all-Party Committee found it possible to agree to incorporate in their Report a paragraph which set out their reasons for drafting the Report in the way they have done.
1032 The Committee were not empowered to offer guidance to anybody, but it seems to me that if the House endorses this Report, including this paragraph—and I very much hope that it will—it can be referred to by Peers in need of guidance and they may derive some profit from it. But I fear that if this Report is passed without appropriate guidance being available to those who need it, it may over the years be interpreted in a way which none of us can quite foresee and which many of us might perhaps regret.
§ 5.09 p.m.
§ LORD ELTON
My Lords, since the burden of a good deal of this discussion is bound to be regularity of attendance, and since I am only too conscious that I have not been present in your Lordships' House for several months, perhaps I may be allowed to begin by saying that I have just returned from New Zealand and Australia, and have been not so much a backslider as an involuntary absentee. What I should have done had the proposed Standing Order been in force, I am not at all clear, for, as the last speaker emphasised, the Order leaves it far from clear under what conditions one ought to ask for leave of absence. I have never been an admirer of the major changes which have recently been effected in the Constitution of your Lordships' House, and I look forward to the coming influx of Life Peers and Life Peeresses with the liveliest apprehension, since I fear that they may not only alter the membership but, in due course, transform the traditional character of your Lordships' House. The Report which we are now considering is, of course, not an integral part of these major changes; but it is, as I think Lord Silkin said, a concomitant, and it seems to me that in one important respect it threatens us with some of the same dangers.
My Lords, throughout the debates on the revolutionary changes which have now earned the approval of the majority of your Lordships' House there was frequent and recurrent emphasis on the desirability of regular attendance; and I, for one, felt the greatest anxiety—which indeed I endeavoured from time to time to express—lest we might be led to sacrifice one of the unique merits of your Lordships' present House. I am thinking, I need hardly say, of its ability 1033 to draw upon the occasional attendance of Lords of pre-eminent distinction and experience who can speak with outstanding authority upon their own subjects. It is a conspicuous tendency of our age to legislate for the average, and to suspect and extrude the exceptional, and it would indeed be a tragedy if this House were ever to approximate to those conventional Assemblies, of which there are numerous examples throughout the world, where whole-time politicians spend their lives in the purlieus of the Assembly, almost wholly divorced from the life of the nation.
It was with some such anxieties as these that I found myself examining the Report: which is now before us. Evidently much turns upon paragraph 4, and upon the phrase "as often as he reasonably can." My Lords, I feel that the position of the Peer who is engaged, full-time or part-time, in one of the professions, or in industry and commerce, is safeguarded up to a point; and I say, "up to a point", for I feel pretty sure that there will be some Members, and probably a considerable number, who are so modest as to their potential value to the House, or are so conscientious as to how this ambiguous phrase "as often as he reasonably can" should be interpreted, that they may quite unnecessarily write themselves off as active Members of your Lordships' House. And as I ventured to say at the outset, I am myself quite in the dark as to how I should have been best advised to behave, on the eve of going off to Australia early last January, if the present Standing; Order had been in force.
But what genuinely alarms me about this Report, and about the proposed Standing. Order, is that, so far as I can see, there is no hint of consideration for the position of the Peer of outstanding experience and authority who is ready and anxious to enlighten this House, and the world, on the subjects on which he possesses unrivalled authority, but who may not be prepared to "clock in" regularly for debates on subjects for which he has no concern. Over the twenty-four years during which I have been a Member of your Lordships' House there have been not a few such Members of the House. Thus the interventions of the late Lord Keynes were always most interesting to this House, and to the world; but I very much doubt whether he would have been prepared to undertake to "clock in" with 1034 reasonable regularity for debates on other subjects.
Or, to take a comparatively unimportant but most characteristic instance, some years ago the noble Viscount, Lord Stansgate, introduced a Motion on the alleged undue severity of disciplinary action taken by the Scout Movement against a Rover Scout in Bristol; and the Chief Scout, the noble Lord, Lord Rowallan, came to the House to put the case for the Scout authorities. I speak subject to correction, and with no knowledge whatever of the noble Lord's position, but I can hardly conceive that the Chief Scout, or any Chief Scout, would be prepared to "clock in" to your Lordships' House with "reasonable regularity", although it must be of extreme value to us that he should be prepared to come here when he can be of special service to your Lordships.
I noticed that the noble Earl, Lord Home, in his introductory remarks used some such phrase as "whenever he thinks that he can be of service to the House". I do not suppose I have remembered his phrase word for word, but I noted it especially, because it illuminated and amplified this lamentably vague phrase, "as often as he reasonably can". But there is nothing of that sort in the Standing Order and there is nothing of that sort in the Report, and we ought not to have to rely merely on the obiter dicta of the Front Bench. If it is really intended that this invitation to noble Lords to disregard the suggestion that they should strike themselves off should apply to the Peers of outstanding distinction of whom I have been speaking, then something of the sort, something on the lines of what Lord Home let fall just now, should find its place in the Standing Order itself. It is difficult to suggest suitable words. I suppose that after the words "as often as he reasonably can" one could add "or whenever he can be of special service to the House", but I admit that those words are not very satisfactory, and I just wonder whether it would be possible for the noble and learned Viscount the Lord Chancellor to indicate, when the letter goes out to noble Lords whom he may feel to fall into the category of which I have been speaking, that they are entitled to interpret the phrase "as often as he reasonably can" with considerable elasticity. If some arrangement of that 1035 sort could be made, I should feel at least that provision had been made against one threat to the traditional character of this House, which is already threatened from so many angles.
§ 5.19 p.m.
had given Notice of his intention to move, That the Report be referred back to the Select Committee to be reconsidered with a view to making the proposed Standing Orders more consistent with the powers of the House. The noble Lord said: My Lords, I think I ought to start by saying that owing to an illness, for the same reason as that of the noble and learned Viscount, Lord Simonds, I was not here on December 10 last, and to that extent I had no chance of criticising the Resolution that was debated on that occasion. I put down the Amendment that stands in my name on the Order Paper because I have so often been taken to task by Government Whips for having been ready to divide on a matter on which I had given them no notice; therefore I thought it was my duty as soon as possible to put something down on the Order Paper to show where I stood in this matter. I shall certainly either divide on this Amendment or follow the noble and learned Viscount, Lord Simonds. In fact, I am under some difficulty in this matter because he has spoken so very much better than I can possibly hope to do and on precisely the ground of principle which I most willingly adopt on this question. I think that he is resisting what I was taught at school to be "civium ardor prava jubentium". I think that it is a great thing when one sticks to a principle.
Thanks to the enthusiasm of this Government and of many Governments which have gone before it, your Lordships' House now is much more like the ancient Great Council of the nation than it has been for six hundred years. Your Lordships will remember that in those days the Great Council consisted of abbots, bishops, ealdormen and thanes of all degrees, a large proportion of whom were never able to attend, and the business of the Council was carried on by the minority who did attend. I can see no objection to this Constitution of your Lordships' House; I think it is a very good one. But if it is generally going to 1036 be the view of your Lordships that that happy state of affairs is to end, then there are certain points in this Standing Order now before your Lordships' House which I feel inclined to criticise.
First of all, the request for leave of absence is for an arbitrary period of time… for a session or the remainder of the session …Then there is the point in paragraph (4) referred to by the noble Earl, Lord Home, which, if I read it correctly, bears rather a different meaning from that which the noble Earl the Leader of the House gave it in his speech. The paragraph reads:A Lord to whom leave of absence has been granted may give notice in writing to the House for the purpose of terminating the leave before the period for which it was granted has expired; and at the end of three months following the notice, or sooner if the House so direct, the leave shall end.That looks very much as if any noble Lord finding himself in the position of having asked for leave of absence and wishing to terminate it, will not be able to terminate it for three months. I think that that is unreasonable. If that is not the meaning, then the Order should be properly drafted and go back to the Committee to be reconsidered.
My main objection is to paragraph 5 (4). We have heard the noble and learned Viscount, Lord Simonds, on the matter and I do not think I can really add anything. We hear Writs of Summons daily read before us—… (waiving all excuses), you be personally present … to … give your counsel upon the affairs aforesaid …and we may well think that it would be impossible for the House to exclude any noble Lord. On the other hand, history shows that your Lordships' House has been a law to itself in these matters. There is a precedent, which I am told is a bad one and ought never to be referred to—that is, the case of the Duke of Hamilton, who was a Scottish Representative Peer, elected under the Treaty, who was made the Duke of Brandon. Thereupon the House decided that he had ceased to be a Scottish Representative Peer by reason of his having accepted an English Dukedom and that he could not sit as an English Duke because he was a Scottish Peer. For over half a century the Duke of Hamilton could not take his seat and was excluded from the debates in your Lordships' House. If that 1037 precedent is worth anything, it means that your Lordships can be a law to yourselves in this matter.
If the noble and learned Viscount, Lord Simonds, is right and it is true that we cannot exclude noble Lords who have asked for leave of absence, then I think that paragraph 5 (4) is wrongly worded. It is worded in this way:A Lord who has been granted leave of absence should not attend the sittings of the House until the period for which the leave was granted has expired or the leave has sooner ended unless it be to take the Oath of Allegiance.That looks like an order, but if it is attacked as being ultra vires and an order that ought not to have been made, then it would be passed off and excused and justified as being only a piece of advice. If it is advice, I say that it should be framed as advice. If it is an order, then we should make it perfectly clear that it is an order and that we are not going to take the view expressed by the noble and learned Viscount, Lord Simonds. I do not like the sort of double aspect of the order as it is.
People talk about "playing the game", but public affairs are public affairs, and a man may feel that, whatever he has undertaken, in a matter of great public importance, it is still his duty to come here and take his seat and speak his counsel according to his Writ. This has happened in public affairs again and again. May I give the House one example, a very well known one? The first Marquess of Montrose signed the Covenant—signed it with his own blood—yet, having made that solemn undertaking, he broke that engagement at the call of what seemed to him to be a higher duty. Those circumstances have occurred in the past and will occur in the future. Therefore, I think that all this talk about "playing the game" is a little misplaced. A man may always find that his duty leads him to break engagements to which he would adhere in ordinary circumstances.
There are some matters of detail which have been touched on by noble Lords to which I want to refer. The noble Lord, Lord Silkin, said that it made no difference at all whether his Party was outnumbered by four to one or sixty to one. If I may say so, speaking as a Back Bencher only, that is a most unfortunate thing for this House, because noble Lords 1038 opposite too much consider this House as a political body and not as a part of the Constitution. The other day, on the Life Peerages Bill, the best speech against the Bill was made by a noble Lord who sat on the opposite side of the House. When it came to the Division, his name was not found in the Division list because, politically, he felt that he did not want his name to appear against his Party. Noble Lords on this side of the House will not care in the least about the Party Whips; they will go in the way they think right. I hope, and keep on hoping, that noble Lords opposite will become imbued with that spirit and feel themselves less and less politicians.
I should like to know how Peers who are granted leave of absence are to be treated. My noble friend Lord Teynham referred to this matter. Are they to be treated as Scottish Peers who are not Representative Peers are treated or how? Another thing I should like to know is whether the Committee, which considered this matter and has recommended this Standing Order, has considered the question of fines. There is no doubt that your Lordships have power to inflict fines upon the Members. As many of your Lordships know, if a noble Lord comes into this House and takes his seat during a debate without having first taken the Oath, he is liable to a fine of £500 a day. I have known a noble Lord actually do that, though the line was not inflicted. If this system of leave of absence is to be introduced, I suggest (I do not know whether the idea was considered by the Committee) that it should be possible for your Lordships to affix a fine for non-attendance, and exact that fine only in the case of a Peer who had taken leave of absence and broken the leave. If the amount was reasonable—say, 5s. a sitting—the fine would perhaps amount to £8 or £10. A man would have to have some feeling of urgency before he broke his leave of absence.
I am uneasy as to the effect of paragraph (4) of the new Standing Order 21 on a great many people, including people like the Lords Lieutenants. As your Lordships know, in most cases these Lords Lieutenants are Peers, and there have been many occasions when we have been very behoven to them for their wise and impartial help in matters that have come before us, especially in Private 1039 Bills. I dare say your Lordships remember the Tenterden Water Bill, and how greatly we were helped by my noble friend Lord Cornwallis, with his impartial and wise advice. And there have been many others. Are these Lords Lieutenants to ask for leave of absence; or is the Government to be bound not to bring in any legislation affecting their counties while they are absent? They must feel it their duty to come to this House when matters affecting their county are discussed. That leads me to ask: what will be the effect on Committees on Private Bills? Many noble Lords do not come near this House, yet do great service in this sphere. I do not know how many there are now, but, to give a case in point, the late Lord Abinger seldom came to the House but was always serving on Private Bill Committees—and very good service he gave. As a matter of fact, that counts as attendance at the House, because it is done by direction of your Lordships. Then there are past heads of the Services, and other noble Lords in a similar position: they are seldom able to come to the House, but we should be the poorer if we did not hear what they have to say from time to time.
I dare say that all these difficulties can be met in one way or another. But what is the purpose of all this?—this Order which is not an Order. It is said to meet the charge that the noble Marquess, Lord Salisbury, or the noble Earl, Lord Home, has merely to wave a wand and an enormous horde of Peers who take no interest in politics will immediately come up to vote blindly behind them. Noble Lords opposite, and all your Lordships, know that that does not happen. Since 1945 many questions on which feeling has been very warm, and even bitter, have been keenly debated in your Lordships' House. One of them comes back to what I said about the noble Lord, Lord Silkin, when the noble Marquess who then led the Opposition was quite determined to put an Amendment in a Government Bill, and I remember being warmly pressed by the Whips to support it. As I did not feel that I could support the Amendment, I sat behind the noble Marquess. After the Amendment had been moved in Committee, the late Lord Jowitt had got up and made a short speech of ten minutes at the Box. I saw my noble friend look 1040 round; and when he saw that he had not a single vote behind him, he withdrew the Amendment. But there were no "Backwoodsmen" on that occasion.
I recall only two occasions when "Backwoodsmen" were seen in the House. One of them was the debate on the Television Bill. Again and again in that debate noble Lords opposite accused the noble Marquess who then led the House of having brought up his "Backwoodsmen" to out-vote them in the Division. There was one "Backwoodsman" attending on that occasion—one only. I will not mention his name. He has been a Member of the House longer than I have, but I am certain that I have not seen him in the House more times than the number of fingers on my hand. If your Lordships look at the Division Lists, you will find his name in the Division List of the Socialist Party. So that does not look as if this threat of "Backwoodsmen" was very important. The only other occasion, as I dare say some of your Lordships remember, was when the late Lord Harrowby, who played such a great part in the affairs of this House fifty or more years ago but who had not been to the House for over thirty years, came as Lord Lieutenant of Staffordshire. He sat in a corner of the House and got up and made representations on a particular Bill that affected his county. He was so much a "Backwoodsman" that noble Lords on the Front Bench were nudging one another and saying: "Who is he?" I submit that that kind of "Backwoodsman" is one we should not be without. The danger of that, therefore, does not appear to be so great.
The question I would ask your Lordships is this. Supposing you carry this proposal, do you mitigate the objection of noble Lords opposite to this House: that it is a House which is formed on an hereditary basis? Will what your Lordships are doing to-day mitigate that charge in the least? I do not think it will. They know that these Standing Orders can be defied, if the noble and learned Viscount, Lord Simonds, is right, and it will not make any difference to them. Not that I am afraid of their comments on this House—I know them too well. But what about the irresponsible people outside? Will anything we do of this nature make much difference to what malice and mendacity will say about us? I think the 1041 best thing to do is to let well alone and not trouble ourselves very much.
I feel that these proposed Standing Orders ought to be put in better shape than they are, for the reasons I have given to your Lordships. I think they require Amendment, and ought to be amended, and that is why I propose to refer them back. After all, your Lordships' House, as an hereditary House, is in the unfortunate position of a woman who has incurred the invincible odium of her husband and is trying to allay or remove it by tricking herself out in the latest Paris fashions. If that is what your Lordships wish to do, then I hope that the fashions you adopt will be really becoming. I beg to move that this Report be referred back to the Select Committee to be put into better shape and more in accordance with the powers and nature of your Lordships' House.
That the Report be referred back to the Select Committee to be reconsidered with a view to making the proposed Standing Orders more consistent with the powers of the House.—(Lord Saltoun.)
§ 5.40 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, I hope your Lordships will forgive me if detain you for a few moments on this subject. I am certain that every one of your Lordships, on whatever side of the House you may happen to sit, will have listened with deep and intense interest at the beginning of this debate to the exposition of the proposals now before us which was given by the Leader of the House. I am fully certain that, in spite of what the noble Lord, Lord Silkin, said, there are few who will not have viewed with profound admiration the extreme ingenuity of the proposals which have been put forward with such skill by the noble Earl, Lord Swinton, and his Committee, and have now been given, as I understand it, practical form by the noble Lord, Lord Merthyr, and the Committee which sat under him.
These proposals, I think it is necessary to say, in view of one or two remarks that have been passed during the debate, are not to be regarded as in any sense a reform of the House. I thought that point was quite properly put, if I may say so, by the noble Lord, Lord Silkin. The Swinton Committee, as when I was leading the House I made quite clear at the time, were not empowered to recom- 1042 mend anything of that character at all. Therefore, these proposals must be regarded, as I understand it, merely as an attempt, in an unreformed House, to remedy an abuse which is generally recognised to exist and which does not, as I think we should all agree, redound greatly to our credit as a House.
If, therefore, the proposals by themselves do not add to the prestige of your Lordships' House, as I believe a more thorough-going scheme of reform might have done, at any rate I think they will add a measure of respectability—and that, at any rate, is something. And indeed, to remove, or at any rate to mitigate, abuses by reviving old practices, which is what the proposal of the noble Earl, Lord Swinton, does, is surely both ingenious and admirable. On that particular aspect, I thought, if I may say so, that the noble Lord, Lord Silkin, went rather wide of the mark. He seemed to think that the granting of leave of absence by itself represented something new and revolutionary. Of course, that is not so. It is a practice which dates right the way back to mediaeval times.
In those past times, as we all know—at least, those of us who have read the Swinton Report, and I imagine that is everybody who is here—at the beginning of each Parliament the Writ used to be sent to every Peer summoning him to the House of Lords. If he was unable to obey that Writ, then he was expected to apply for leave of absence. I do not say he always did. I imagine that then, as now, the proper procedure was not infrequently honoured more in the breach than in the observance. But, technically, that was accepted by everybody as the correct procedure for hint to adopt. Then, some time in the early part, I think, of the last century, the practice of actually sending Writs of Summons to Peers was discontinued. I do not know why that change was made. I do not know whether it is made clear in the Swinton Report or not, but I think we should all agree now that it was an extremely unfortunate change. But the fact that no. Writ of Summons went out to Peers; obviously reduced the obligation on them to attend or to ask for leave of absence if they did not.
Now, as I understand it, it is proposed, in effect, to restore the old procedure and to make it clear to Peers that they should either attend the House or ask for leave 1043 of absence. That, to my mind, in itself is all to the good. Of course, it does raise the question—a question with which the Leader of the House properly dealt—of what is meant by the word "attend". Does it mean that Peers who are not going to apply for leave of absence must attend the great majority of the Sittings, or does it mean that they should attend only when it is practicable for them to do so? What should a conscientious Peer do who can only, in the nature of things, attend rarely, but who wants to perform his duties to the best of his ability? If he comes to the conclusion that he can attend only seldom, and perhaps even very seldom, is his proper course to apply for leave of absence?
Here, if I may say so with all deference, I entirely agree with what was said by the noble Earl the Leader of the House. If the proposed plan enshrined in this Standing Order is to be effective and not to impair the efficiency of the House, it must not be regarded as applying to Peers who intend to come when they can, even if that is not very often. There are, as we all know, a great many noble Lords in that situation in this House, men with other interests and obligations, who cannot, in the nature of things, make Parliament the first call on their time, and yet who are experts on their subject and most valuable Members of the House. If all those people, by reason of conscience, felt it necessary to apply for leave of absence because they were not able to come more often, we should lose their services, and then the plan, in my view, would have failed, and failed disastrously.
The plan, as I understand it, is meant to apply mainly to those noble Lords who are so immersed in other occupations, of whatever kind, that in practice they never can attend, and who are not in any effective sense Members of this House. There is no doubt, I think, in any of our minds, that that type of Peer, having received a Writ of Summons to attend the House, and being pretty certain in his own mind that he is not going to be able to obey it, at any rate in the foreseeable future, ought to apply for leave of absence. It is only decent that he should do so.
With the main conception which is enshrined in this new Standing Order, therefore—the conception of the revival 1044 of a practice of granting leave of absence I—am personally in the fullest agreement. There is, however, one part of the Standing Order which I must confess worries me, as I think it worried the noble and learned Viscount, Lord Simonds—and it worries me seriously. It is paragraph (5), which states that a Peer who has applied for leave of absence should not attend again until three months after he has given notice that he wishes the leave of absence to be terminated, unless the House otherwise directs. That means that it is taken out of his hands and can be put in the hands of the House. That is a new provision in the sense that it is not a revival of a former practice of the House, and I should doubt personally, as I think the noble and learned Viscount, Lord Simonds, doubted, whether it was constitutionally desirable.
The Leader of the House, in his opening speech, rather implied that it was not really competent for us to discuss this particular aspect at all, for it was mentioned, he said, in the Report of the Swinton Committee, and the House had accepted that Report without a Division. But, I, personally, cannot feel that that quite debars us from further considering the question; for if, as a result of further examination of the position, it seems to any of us that this particular provision raises constitutional issues which had not at first appeared, then I think it is our duty to mention the fact.
I must confess that it is that particular aspect which causes me personally certain preoccupations which I would venture, very diffidently, to put before your Lordships. What, after all, is the conception underlying the whole institution of the House of Lords? I am not a constitutional lawyer, or anything like one, but I do suggest, as a layman, that it is this. The Sovereign enjoins all Members of the House, by means of a Writ of Summons, that they should come and give, individually and collectively, their counsel, counsel which she urgently needs (and that is made clear by the Writ), counsel which it is their constitutional duty to profer and counsel which they are normally in a position to provide. But it was recognised, I think, from the earliest times, from the very dawn of this House right away back in the Middle Ages, that sometimes it would not be possible for individual Members of this 1045 House to obey their Sovereign's command and so a custom grew up, as we know, for Peers to apply for leave of absence until they were in a position to return to their duties. And the Sovereign, or the House acting for the Sovereign, normally granted that application.
If that is a correct account of the constitutional position—and I think that, broadly speaking, it is—surely there is something fundamentally false, and indeed slightly ludicrous, in proposing, as appears to be proposed in paragraph (5) of this Standing Order, that the Sovereign or the Sovereign's agent—that is, the House—in acceding to this request by a Peer, should accompany the reply by a proviso something to this effect: "Very well, though I badly need your advice, as has been made perfectly clear by the Writ of Summons, you can have leave, but only on one condition—that you give an absolute assurance that you will stay away for the remainder of the Session; or if you feel you must come back before then, at any rate we must insist that you give three months' notice of your intention before appearing in the House." I do not know how it strikes the rest of your Lordships, but it does not seem to make sense to me.
THE EARL OF HOME
My Lords, I wonder if we might explore this point—I think it would be helpful—before the Lord Chancellor replies. Taking the other extreme, if no notice at all was required, it would make nonsense of the "leave of absence" scheme, and people could pop in and out at any time. I thought the House had accepted the principle that some notice should be given, and the Committee, having considered the matter carefully, came down on the side of three months. It really is an indication, I think, to the noble Lord who has been granted leave of absence that that is the normal period the House would expect him to observe before returning.
§ THE MARQUESS OF SALISBURY
That is not quite what paragraph (5), as I see it, says. It says:A lord to whom leave of absence has been granted may give notice in writing to the House for the purpose of terminating the leave before the period for which it was granted has expired; and at the end of three months following the notice, or sooner if the House so direct, the leave shall end.1046 Therefore, the leave goes on to the end of three months unless the House directs otherwise. As a noble Lord has already said that he would rather break the law than Standing Orders, that is a pretty powerful instruction, at least in my view. I fully recognise that in saying what I have I may be accused of an unduly legalistic frame of mind, but I do not think I have been unduly legalistic. After all, this conception that the Crown needs our advice and asks us for it is the only reason we are here at all: it is fundamental to our very existence as a House. And if the Crown really needs our advice, and has said so in the Writ, our absences should surely be as short as we personally can possibly make them.
I realise that I may be accused of illogicality in saying what I have done, because in the past I suppose that T have pressed perhaps more than anyone in this House for legislation to prevent the House from being flooded with "Backwoodsmen" on some particular issue; and some noble Lords might, very naturally, say that now that something is at last being done to prevent that, I come down here and pour cold water on it. If that should be suggested, my reply would be that that criticism leaves me unmoved. It is one thing, I submit, for Parliament, in its wisdom, to decide that there should be a different kind of House, with different kinds of Members, and that it is only to those Members that the Writ—and possibly a different kind of Writ—should be sent; but it is quite another for the Crown to send to the existing Members of the present House a Writ which is solemn, and indeed peremptory, enjoining their attendance, and that the House itself should then pass a Standing Order which is bound, in my opinion, in certain circumstances to have the effect of nullifying the Writ. That is why I feel unhappy about paragraph (5). I am all in favour, and always have been, of controlling sudden inrushes of "Backwoodsmen," but I cannot help feeling that this is the wrong way to do it. It is using the machinery for granting leave of absence for a purpose for which it was never intended, and for which I do not think it can properly be used.
Moreover, I do not believe that anything would be lost by omitting paragraph (5). I am pretty confident that a Peer who applied for leave of absence for a 1047 certain period would not come back to the House before the end of that period. The Peers in question, those we are all thinking of, as I believe the noble Lord, Lord Saltoun, pointed out just now, are not in any case what might be called normal attenders. Most of those in question do not come here at all. The fact that they had, in addition, applied for leave of absence would, I think, be a further deterrent, if such a deterrent were needed. The only thing that could bring these people would be something so vitally important that they could not in conscience be away. And in that case, in my view, they would be perfectly right to return. So long as they are Members of this House I believe that it would be entirely wrong for the House to exclude them.
I should therefore, I confess, feel very much happier if, on further reflection, the House agreed to the omission of paragraph (5), and I would commend consideration of this course as a possibility to the noble Earl the Leader of the House and the noble and learned Viscount the Lord Chancellor, in case they feel that it is a course which the House might properly support. Without paragraph (5), for the great majority of us—I do not say the noble Lord, Lord Silkin, who takes a much stronger view against the whole of the granting of leave of absence—the Standing Order would then be entirely uncontroversial and should do a great deal of good, just by reminding noble Lords who do not attend this House as they should, what are the duties that fall to them as Members of your Lordships' House.
§ 5.59 p.m.
My Lords, I hope that I may be forgiven at the outset if I suggest that, in part at any rate, the debate this afternoon has not been entirely confined to the Motion on the Order Paper, although admittedly it would not seem to have departed so much from the Motion as the debate in December last. But I should like to confine myself to what I conceive to be my duty—namely, to try to suggest to your Lordships that this Report does obey your Lordships' instructions to the Committee of which I was the Chairman. What were the instructions? They are set out in paragraph I of this Report. I hope that I may be forgiven if I suggest that 1048 the real question before the House this afternoon is nothing more than this: does this Report give effect to the conclusions of the Swinton Committee? That, as I conceive it, is the question we have to decide to-day; and nothing more than that. And with all respect, I affirm that, generally speaking and on the whole, this Report does give effect to the Swinton Committee's suggestions. That is not to say that the suggestions put before your Lordships to-day are final and conclusive. On the contrary, I have no doubt whatsoever that all the proposals and suggestions made to-day will be seriously taken up and, where it is proper to do so, given effect to in due course.
The next question is: What were the instructions of the Swinton Committee? The conclusions of that Committee are set out in paragraph 33. I should like to make the point (although the noble Lord, Lord Silkin, is not here at the moment) that these conclusions were adopted by the House, without opposition, on December 10. There may have been disagreement in debate, but there was no contrary vote against the Resolution adopting these conclusions. Therefore, it is in no way surprising that the Select Committee should have worked upon those conclusions. The Swinton Committee used the words "expected not to attend", and my Committee, if I may so put it, have been criticised this afternoon for using the words "should not attend". Is there really very much difference between those two phrases? We were directed to act upon the first. Can we now legitimately and logically be criticised for using the words "should not attend"?
If there is one thing that I particularly want to say this afternoon, with considerable emphasis, it is that there is not a word in this Report which will in any way, if it is adopted, take away the rights of your Lordships' House or the Members thereof. I want to emphasise that point, because I am afraid that in doing so I must, though I say it extremely reluctantly, differ from the noble and learned Viscount, Lord Simonds. I believe that this question is vital, and if I thought for one moment that this Standing Order did take away a right which has been enjoyed by your Lordships' House for centuries I should not be standing here supporting it or proposing it. But in fact I have no doubt 1049 whatever that it does nothing of the kind. I say that with the utmost respect to the noble and learned Viscount.
May I, in this connection, quote a phrase which was used in the debate in December by the noble Lord, Lord Conesford, who said [OFFICIAL, REPORT. vol. 206, col. 1005]:He"—that is, a Member of the House—can apply for leave of absence and thus avoid disrespect of the terms of the Writ without sacrificing any right of any sort.I should like to underline the last few words of that phrase, "without sacrificing any right of any sort." That is what we have tried to ensure in framing the proposed Standing Order. I venture to say that during the debate in December, which unfortunately I was not able to hear, because I was overseas at the time, several red herrings were introduced, notably by the noble Viscount, Lord Esher, who made such a delightful speech. He criticised what he said was a process of selection which would result from the process which is now proposed. Of course, the only selection that is going to take place is that of each individual Member of the House, as to whether he should or should not apply for leave; nobody is going to dictate to him as to whether he should.
The noble Lord, Lord Silkin, said this afternoon that in his opinion if it were known that hundreds of Members of your Lordships' House had applied for, and received, leave of absence, it would bring discredit upon the House. Would it really? Which is the more creditable or discreditable—to be absent, shall I say, from one's school or regiment, or one's House of Parliament, without leave or with leave? I venture to say that it is more creditable to be absent with leave than without leave.
§ LORD HENDERSON
May I interrupt the noble Lord? I think the point that my noble friend was making was that they would still be absent; and it is that which would be to the discredit of the House. Although to make it absence by leave when at present it is without leave, may make the matter better and honest, the fact is that they would still be absent.
I do not dispute that last statement. But what the noble Lord was saying was that the adoption of this Standing Order would bring dis- 1050 credit upon the House by reason of its publicity. I cannot for a moment accept that view. In all these institutions that I have named attendance is compulsory. I will not attempt to deal further with what was said by the noble and learned Viscount, Lord Simonds, whose opinions, I know, we all listened to with great respect, whether we agreed with them or otherwise. I hope and anticipate that the noble and learned Viscount on the Woolsack will take up the points which Lord Simonds made. But I cannot resist saying that I join issue with the noble and learned Viscount when he says that we are trying to deprive any Member of your Lordships' House of a right.
There was criticism of paragraph (2), I think by the same speaker, who said that if a Member wanted to go abroad for the month of May it was very hard that he should be deprived of attending the House in the months of June and July. Of course, the answer is that in those circumstances he should not apply for leave. Nobody is compelling him, or even asking him, to do so. That, surely, is the answer to that point. The noble Lord, Lord Elton, made some points. He seemed to be in a difficulty as to whether, in certain other circumstances, a Member of the House should apply for leave. In his ease, it was a journey to Australia and New Zealand. I concede at once that cases of this sort will arise and will have to be considered every time they arise; but primarily, they will have to be considered by the Member of the House himself. He will have to decide, first of all considering what his plans are, where he is going to and for how long he is going to be away; then, considering the Standing Order, he will have to decide whether or not to apply. But I do not share the fears of the noble Lord that this will lead to doubt or difficulty of the nature which he outlined.
Then the noble Lord said that he feared that these Standing Orders would prevent the attendance in the House of Peers of outstanding experience and authority. It is a point, but I confess that it does not seem to me to be one of any possible danger. I should have thought that again in most cases the noble Lord concerned simply would not apply for leave. Then there was the more difficult case still. The noble Lord mentioned another Member of your 1051 Lordships' House whose activities outside the House I am quite certain every Member greatly respects and admires. In that case there was the possibility that he might come here, as I understood it, to defend an outside organisation of which he was an officer, but otherwise would not come to the House at all. If it is said that in those circumstances that ought to happen and ought not to be prevented from happening, all I would say is that I do not think opinion would be unanimous on the point.
Then there were the Lords Lieutenants. Here again, no one values more than we do the work that Lords Lieutenants do in their counties, but I can only say that every individual case will have to be considered primarily by the Lord Lieutenant himself; he will have to decide whether it would be proper to apply or not to apply. In most cases I should say that it would be proper not to apply. I listened with anticipation to what fell from the noble Lord. Lord Saltoun, for he has on the Order Paper an Amendment to refer the Report back to the Select Committee, because he is not satisfied with it; and of course I do not blame him for that. In my view the noble Lord's interpretation of paragraph 5 of the Report is entirely correct, I do not think there is any doubt about that. But I submit that in December your Lordships' House agreed to this, and the question is whether it is going to alter its opinion to-day. It was because the House agreed to this in December that the Committee over which I presided got to work. For that reason I do not feel entirely answerable for the fact that the noble Lord, Lord Saltoun, takes a different view.
My Lords, may I interrupt the Lord Chairman for a moment? I understood him to say at the beginning of his speech (I was careful not to interrupt him then) that what had been put forward by noble Lords in debate to-day would be carefully considered and taken into account. We have objected to a good many things in these proposed new Standing Orders. Am I to understand, from what the noble Lord has said, that we are not passing these Standing Orders this afternoon but that they will come before the House again, possibly for amendment? Or are we finishing them finally this afternoon?— 1052 because if the latter is the answer I feel I should press my case.
THE EARL OF HOME
My Lords, the intention was that if the House passed the Standing Orders to-day we should bring in the Standing Order formally at a later date; but I should like to leave that point, if I may, until the noble and learned Viscount the Lord Chancellor replies.
§ LORD CONESFORD
My Lords, as my noble friend the Lord Chairman of Committees quoted me at an earlier stage, may I put a question to him? He is quite right in saying that in the December debate we approved the principle of there being some prescribed period of notice. That is contained in paragraph 33 (d) of the original Report:by their giving such notice as may be prescribed by Standing Order.But we did not have before us then the suggestion that the period should be three months; and since my noble friend was good enough to quote what I said in that earlier debate, I think I ought to make it quite clear that I share the doubts of my noble friend Lord Salisbury on this very long period of three months that is now suggested. although I agree with the noble Lord now addressing the House that the Motion passed in December authorised some time limit.
My Lords, may I ask one question of the noble Earl the Leader of the House? Like my noble friend who has just spoken, I was very much impressed by what was said by the noble Marquess, Lord Salisbury, and if the matter were going back to the Committee with a later chance of considering the Standing Order I should vote one way. But if it is to be moved merely formally, one might, I believe, take a different view as to how one would vote on the Amendment of the noble Lord, Lord Saltoun, that the Report be referred back.
§ THE EARL OF SWINTON
My Lords, before the noble Earl the Leader of the House answers may I say this? As I understand it, the Motion which he has invited the House to agree to to-day, and on which I believe everybody is agreed, is to accept the Report. But that does not mean that they accept the proposed Standing Order in the precise terms in which it 1053 appears in the Report. The Standing Order itself has to be passed by the House in precise terms, and that Standing Order could not be put to the House unless it had appeared on the Order Paper—which it has not. I take it, therefore, that if we accept the advice of the noble Earl the Leader of the House and vote for the Report in principle, exactly as the House voted for what I might call "my" Report on the last occasion, the House would be deciding that there should be a Standing Order on leave of absence broadly in these terms. But supposing that it were actually put down on the Order Paper in the exact terms in which the Committee of the noble Lord, Lord Merthyr, has reported (and it may be that the House would prefer that) it would still be perfectly open to arty Member of the House to move to delete three months and insert two months or one month, or even two weeks—
§ THE EARL OF SWINTON
My Lords, we might reduce it to something ridiculous. We have another Cohen Report. I am not sure that that would be more acceptable in all quarters, but I believe that I am right on the principal point.
THE EARL OF HOME
My Lords, before any further Reports are presented, it is perfectly true that what was suggested to your Lordships' House as a good thing to be done to-day was the adoption of the Merthyr Report which we have in our hands. We shall have to put down on the Paper a Standing Order, and the reason why we are having this debate to-day is, of course, so that I and the noble and learned Viscount the Lord Chancellor may hear the views of noble Lords on the various points in the Standing Order suggested. At that time it would be open to us to amend any section of it if we are convinced by the arguments made to-day, and even to the noble and learned Viscount the Lord Chancellor or myself to suggest an Amendment, or to accept one from anybody else if, on reconsideration, that seemed necessary. I should hope that we should not have to debate the whole Standing Order again but that, having concentrated on this section, we might consider that.
My Lords, I hope that the questions I was asked have by 1054 now been answered. May I add that there is no doubt at all that no Standing Order can be passed without having been presented to your Lordships' House; and it can be amended at any time, both while it is being presented to the House and after it has been passed. I do not mind adding that I myself have already an Amendment to the Standing Order to propose, although I do not think I need mention it this afternoon.
I believe that I was dealing with the view of the noble Lord, Lord Saltoun, who said in the course of his speech that paragraph (4) of the proposed Order looks like an order. Most Standing Orders do. In this connection I cannot refrain from drawing the attention of the House to the very first words of this Standing Order which have not yet been quoted this afternoon:Lords are to attend the sittings of the House …That also looks like an order, and I would suggest, with all respect, that those words deserve just as much attention as any other words in this draft. I would further suggest that if only the Members of your Lordships' House were to obey those first words, a great deal of what has been said would seem to be completely unnecessary. Be that as it may, I will deal very shortly with one or two other points.
The noble Lord, Lord Saltoun asked: "How will noble Lords who have applied for, and been granted, leave of absence be treated?" My Lords, that is a very pertinent question and it is one which admits of varying opinions, but I will answer in only this way to-day. It is proposed to set up a small Committee to go into that very sort of question, and the question which has been touched upon by the noble Lord, Lord Teynham, and other speakers: should those with leave of absence be allowed to use the Library, and so on. I can assure the House that all those questions will be most carefully gone into and will not be settled until they have been approved by the House itself, but it may be a little premature to go into them all in full detail to-day. We have already heard in this debate that opinions may differ as to what facilities shall be granted to those holding leave of absence. I will only say that if the fullest possible facilities are granted, short of sitting on these Benches, there may be advantages in that; but there may also 1055 be disadvantages. On the other hand, if facilities are to too great an extent withheld from those with leave of absence, then there will be a great temptation not to apply for leave of absence on the part of those who probably ought to. And so it is a matter of degree and of striking a happy medium.
I did not quite understand the noble Lord when he said that this Standing Order would have an unfortunate effect on the hereditary system. I would only observe that, unless I have made a mistake, the passing of this Standing Order will have exactly no effect at all either way on the very difficult and disputable question of whether there should be hereditary Members of your Lordships' House.
I should like, with respect, to say a word or two about what fell from the noble Marquess who has just sat clown, on the point about the period of three months. I think I should explain why the Committee inserted that period in the suggested Order. It is, I think, true that the Swinton Committee did not name that period; but I can say, and I hope with some justification, that we put it in because we had read the Report of the debate in December. I hope that if your Lordships look at the relevant Hansard report now you will think that we were justified in coming to the conclusion that, taking a medium, it was on the whole the opinion of the House that some such period as three months should be inserted, for the reasons given. Lord Teynham himself to-day has argued that there should be a period of some such length, and therefore I do not wish to repeat it.
As I said at the beginning, I thought it my duty not to go into the wider aspects of this matter to-day, but only to try to persuade your Lordships that this Motion, which is of a quite limited nature, ought to be passed and ought not to be rejected.
§ 6.24 p.m.
§ LORD WINSTER
My Lords, I was very glad to hear my noble friend Lord Silkin emphasise the point that he took part on behalf of our Party in the deliberations which have led up to our debate to-day, on the understanding that they would deal only with what it was within the power of this House to do and in no way with what the House should do. In 1056 that way neither the noble Lord nor his Party are in any way committed to the attitude that we should assume on this debate. I entirely agree with what my noble friend said in his speech, except on one point on which I demurred slightly. I understood the noble Lord to say that in the past he had been reluctant that this matter should be raised at all, because he felt a revelation of the facts might discredit the House of Lords in the country. I hope I have quoted my noble friend correctly. Well, there have always been two schools of thought about soiled linen: whether it should be worn in private or washed in public; and, on the whole, I am rather in favour of washing it. But I think in this matter the public may be rather divided between two views on this subject. On the one hand, they may be shocked by the revelation of how many hereditary Peers never attend this House, and on the other hand, they may approve very strongly the fact that the House is making some effort to deal with that unsatisfactory state of affairs. I am not sure which way public opinion will come down, but I feel, as I say, that they will hold those two views on the subject.
The noble Viscount, Lord Simonds, spoke about Standing Orders and the respect which the ordinary man pays to them. I think someone said that most men would rather break the law than break Standing Orders. That may be why my father advised me as a young man never to read any Standing Orders and never to look at a notice board. But it is the fact that we pay great respect to Standing Orders. That is because we have the assurance that the Standing Orders are within the law, and, that being so, we have no fear about obeying them. But if we have the least suspicion that a Standing Order or a rule of our Club is outside the law, then, of course, we should feel completely justified in not observing it.
I noticed what the noble Marquess, Lord Salisbury, who I regret is not here at the moment, said about leave of absence being an old custom. If he had been here I should have liked to ask him—for information, not because of any criticism—if, when the custom started in those old days of applying for leave of absence, the Peer who applied had to give, his reasons. If so, it would be a very different state of affairs from what is 1057 being proposed now, where, as I understand it, the Peer has no obligation whatever to give any reasons for applying for leave of absence: he merely says, "I do not propose to attend for such and such a period," and that settles the matter.
§ VISCOUNT SIMONDS
My Lords, I think I might be able to answer that point. I speak subject to the correction of the Lord Chancellor, because it is some years since I looked into this matter, but I should say that, certainly in the early days, when it was the Sovereign's own permission that was granted, the Peer wishing to be absent gave his reasons and got his permission or did not. In the old days, the Sovereign was often glad enough to give the permission, because in those days he was often at issue with the Peers. And may I add this (because I think it is right to do so): that if it had been possible for him to say, "Yes, you may stay away for May, but you must also stay away for June", there would have been many cases where that would have been a most convenient weapon in the hand of the Sovereign.
§ LORD WINSTER
My Lords, I am grateful to the noble Viscount, but I think that what he has said emphasises the fact that there is a great deal of difference between what happened at the start of this custom and what is proposed to-day.
It has been emphasised by one or two speakers that what is proposed has nothing to do with reform of the House of Lords; it will not, of course, make the slightest difference in the work of the House of Lords or in its method of functioning. But I feel that this, and the Life Peerages Bill, will be likely to weaken the status of the hereditary principle. The Life Peerages Bill was, in effect, a confession that the hereditary Peers could not be relied upon to keep the work of the House going. I believe that the noble Marquess, Lord Salisbury, in discussing this matter once said that the House was dying on its feet. It was on that account that the Life Peerages Bill had been introduced, hoping for a blood transfusion and the arrival of new elements, so that the House would cease to die on its feet and would be kept alive.
The Motion that we are discussing to-day, which I think is a remarkable proposal in many ways, is again a confession that hereditary Peers cannot be relied upon to attend the House regularly. They 1058 do not attend, and this proposal makes no effort to induce them to attend. It is not a remedy; it is only, as has been said, in the nature of whitewash. It is really making what is an illegality legal. We say, "We despair of making you obey the constitutional law; therefore we are making your infraction legal." But this proposal, if carried, will not make the slightest difference to attendance. Not one more Peer will attend. Although bad attendance is the source of so many of our troubles and difficulties, this measure does nothing whatever to correct it.
In my ignorance (though this has been limited to a large extent by the remark. able speech of the noble and learned Viscount, Lord Simonds), in considering the matter I feel uncertain about whether the House has power to give such leave of absence, to say that a summons from the Crown in urgent terms can be disregarded if the noble and learned Viscount the Lord Chancellor, speaking with the authority of the House, says that it may be disregarded. As I understand it, too, an hereditary peerage carries with it obligations to perform certain Parliamentary duties. Has this House the power to say, "We absolve you from your duties of attending and voting in the House, while allowing you to retain your status and dignities as an hereditary Peer"? We receive from the Crown a summons to attend in explicit terms. Can we say that a Peer need not attend, without in any way amending the terms of that summons? If there is a power to absolve from attendance, I should have thought that there was a necessity to amend the terms of the summons.
There are two other points on this question. I think I may say that I attend fairly regularly; at any rate, I attend to the best of my ability. I do not feel that a Peer ought to be asked whether he is going to attend in future. I have not the least wish to be discourteous to the noble and learned Viscount the Lord Chancellor, but if he inquires whether I propose to attend or not, and if I feel that it is an inquiry which ought not to have been addressed to me and I do not reply, what happens to me in that case? I recognise the right of any noble Lord to move that I be no longer heard, and, if the Motion is carried, I must resume my seat. But has the House power to take any action against me if 1059 I do not answer the question whether I intend to come here or not?
Again, suppose a Peer elects to reply that he has no intention of attending and then some situation arises completely out of the blue, which was not foreseen at the time when he made his reply—a question of war, a question affecting the Crown, a general strike or such an episode as that of Suez—on which he feels very strongly and on which he feels that as a matter of conscience he ought to come to the House and put forward his point of view and vote on it. The three-month rule stands in the way. By the time the three months have elapsed and such a Peer is entitled to come here again, the episode which aroused his conscience and his strong feeling is all over. In spite of what he has said, can he be deprived of the right to come here and speak and vote, if he feels so strongly upon the subject involved that, as a matter of conscience, he considers himself absolved from the undertaking that he has given?
§ THE EARL OF IDDESLEIGH
My Lords, if the noble Lord will allow me, I will give him an instance very much to his point—that was the debate on the revision of the Prayer Book of the Established Church, which attracted the biggest House I have ever seen.
§ LORD WINSTER
If his conscience was roused deeply in such a matter, should a Peer be deprived of his right to express his feelings because, not knowing that such a question was to come up, he asked for leave of absence? Can he say in such a case, "I am going to obey the summons I have had from the Crown, which I feel takes precedence above anything the Lord Chancellor may have said"? I think that this whole proposal is anomalous. A Peer who applies for, and receives, leave of absence is told that he may retain all his honours and dignities but need not perform the duties upon which the honours and dignities are based. We might as well say to a general that he may wear his uniform and receive the salutes and dignities of his rank, but if a war breaks out and he does not feel like going to it, "just come and ask us and we will give you leave of absence not to attend the war".
I feel that the hereditary peerage and the duty of performing Parliamentary 1060 duties are interwoven, are warp and woof of the whole cloth. And if a Peer is to be absolved from attendance, on what basis does his hereditary peerage rest? For what reason does he enjoy an hereditary peerage if he is absolved from performing any of the duties upon which that peerage is based? I say this with deep respect to the House and with no wish whatever to say anything in any way hurtful, but I feel that by the Life Peerages Bill and by this Standing Order we are driving two nails into the institution of the hereditary peerage. I do not feel that an hereditary peerage can continue indefinitely if it is divorced from any duties of any sort whatsoever. If the duty of attendance in this House is waived, then what justification remains for the enjoyment of an hereditary peerage? I feel that that is a point which is worthy of consideration and which demands an answer.
I say that in taking these two steps—the Life Peerages Bill and this Standing Order—we are proceeding by gradual and logical steps towards the eventual end of your Lordships' House in its present form. If we are to have a second Chamber, then I think these two decisions which have been taken point to the necessity of reconstituting the Second Chamber upon entirely new terms, since the existing basis of the Second Chamber, the hereditary peerage, has now to be divorced from the performance of those Parliamentary duties upon which the peerage is based.
§ 6.41 p.m.
§ THE EARL OF SWINTON
My Lords, I have found it a little surprising that although what has been called the Swinton Report has been before the House for more than two years, and has been debated at great length on at least three occasions, for the first time to-day we have had legal doubts raised upon it. I appreciate that the noble and learned Viscount, Lord Simonds, was indisposed on one of the occasions; but happily, he and the noble Lord, Lord Saltoun—who said, the last time he spoke on it, that he welcomed it in every respect except that it did not make every Scottish Peer a Peer of the United Kingdom, which certainly could not be done by a Standing Order—were not indisposed during the whole of those two years, and I think it would have been a 1061 little more convenient if these grave legal doubts had been raised a little earlier.
The main Committee reported in January, 1956. The Report came before the House in February of that year, and it had a very favourable reception. We did not proceed further with it only because at that time my noble friend Lord Salisbury was trying to get his scheme of reform through. We knew that some scheme of reform was going to be produced, and we waited, because if the whole of what is recommended by the Select Committee were to be covered by legislation, obviously there would not be any need to go forward with it. But when, ultimately, the Government plan of life peerages came out, and the Government said that it would be a valuable concomitant of that Bill that (nr Report should go forward and be adopted. then I tabled my Motion in December, 1957; and the House specifially approved the Report of the main Committee and instructed Lord Merthyr's Select Committee to draft a Standing Order to give effect to its provisions.
I think the noble Lord, Lord Merthyr, was fully justified (I was a member of his Committee) in saying that the job of his Committee was a limited one: it was to make a Standing Order which would carry out the main Report, and to fill up any gaps. I will come in a minute to the three months' notice, which was not dealt with as a term in the main Report; but with the exception of the three months (and the length of notice was one of the matters left to the Merthyr Committee to report to the House) the proposed Standing Order, I think, follows paragraph 33 of the main Report.
§ VISCOUNT SIMONDS
Perhaps I may interrupt the noble Earl, as I am sure he wishes to have this matter right. It was a vital part of the Swinton Committee Report that there should be a right to ask for leave of absence either for the duration of the Parliament or for any shorter period—I get that from paragraph 33 (b). If it is for a shorter period, it would exactly answer the first of my objections.
§ THE EARL OF SWINTON
I quite agree. The Merthyr Committee had to 1062 report what the period should be. But that does mean some period. Words must have some meaning, and "period" does mean a period of time: it does not mean that a man should be able to turn up immediately, and that no period should be fixed. However, I will come back to that in a moment.
I was dealing with the anxiety, which I am sure is felt in the House, that those Members who can attend only occasionally, and who are so valuable to our debates, should not feel obliged to ask for leave of absence. That point was dealt with by the Swinton Committee; it was strongly approved whenever it was debated in your Lordships' House, and it figures, as noble Lords will see, in the Merthyr Committee's Report. Both on our Committee and on the Merthyr Committee we considered carefully whether we could improve upon those words in the Swinton Report about to attend "as often as he reasonably can." I know my noble friend Lord Salisbury agrees that, on the whole, we could not find better words. It is true that they leave it to a man's own decision as to how often he "reasonably can attend", but all those who have had this to consider feel that they cannot improve upon those words. If I may speak, as I think I do, certainly for both Committees and for the sense of the House, I am sure we all hope that Peers will not be (if I may put it this way) too conscientious about this, and that those Peers who can only coma infrequently, but who are so valuable when they do come, will feel that they are not obliged to ask for leave of absence.
Paragraph 33 (b) of the main Report, which has been specifically referred to, lays down this:Members are expected, if they have been granted leave of absence, not to attend until their leave of absence has been terminated by giving such notice as may be prescribed by the Standing Order.What the length of notice should be is an open question. But until to-day nobody (and let the House remember that two Law Lords and Lord Campion sat on the Select Committee) has challenged that recommendation of the Select Committee that there should be a period of notice prescribed in the Standing Order, whatever that period should be. In the last debate, a strong view was expressed in more than one quarter of the House, 1063 and by responsible Members, that the period ought to be three months. I am not going to argue that matter now. The Lord Chancellor gave us his view that that would be perfectly legitimate; and he gave his reasons, as did the noble Lord, Lord Teynham, the noble Earl, Lord De La Warr, and others. But there will certainly be a further opportunity for that matter to be considered when the Standing Order comes before the House.
Before the noble Earl leaves that point, perhaps he will note that the words of the Report are "is expected", whereas the word he used was "should".
§ THE EARL OF SWINTON
I know. There is not the least doubt that the word "should" has, in fact, the same legal interpretation as "is expected". The noble Lord may be a much better lawyer than those who advised us. We took a great deal of trouble in Lord Merthyr's Committee as to what word should be used, and we were advised that "should "would have exactly the same effect as" is expected"; and I do not suppose anybody will very much mind when the Standing Order comes forward whether it says "should" or "is expected". Perhaps the noble Lord will now allow me to continue with something which is really of consequence, because I do not want to be too long.
It is argued to-day that to require three months' notice is ultra vires. But the argument carried to its logical conclusion, as pressed by the noble and learned Viscount, Lord Simonds—and he put the same arguments before the Select Committee at great length—would really have been that there could be no period of notice at all. I must protest, as a Member of this House, against an unduly legalistic or antique view that this House is not master of its own affairs and cannot adapt itself to changing circumstances. If that were not so, we should all be living in the time of Edward I. It was put to the noble Viscount himself when he was giving evidence before our Committee: "You say that this was all illegal; but supposing the House did it, would it not have power to do it?" He said it was wrong of the House to do it, but if the House did do something there could be no possible appeal; 1064 and that applies to either House of Parliament acting within its jurisdiction.
It is a matter for the House as to how it is to adapt its procedure. I am going to ask the House to say to-day that in the Swinton Report, which your Lordships have approved, and broadly in the Merthyr Report, too, there is nothing wrong in any sense. We are guided, but we are not hidebound, by precedent. The whole development of this House and its procedure, as the British Constitution itself—the noble Lord sneered at the phrase though it was used by the whole of the Committee; I think we were indebted to the noble Viscount, Lord Samuel, if I remember aright, for suggesting the words; they were not original—is broadening down from precedent to precdent. We are the masters of our procedure and have constantly brought that procedure up to date and into line with the circumstances of the time.
Let me give the House one example which is taken in the Swinton Report—the suspension of proxies. A legal authority one hundred and fifty years ago—I think it was the Lord Chancellor of the time—laid down that voting by proxy was the inalienable right of every Peer. But the House thought that voting by proxy was not the proper method of proceeding, and so, by Standing Order, in 1868 the House suspended the right of Peers to vote by proxy, and that right has been suspended until this date. Are we to return to the right of voting by proxy because it was so immoral of us to adapt our procedure to the convenience and, I would say, the decency of modern times? The present proposal in the Standing Order is surely adapting our procedure and practice to the situation of the day and in accordance with the wishes of the House.
The main Committee, with its high legal authority, laid down in terms—and the House will find this in paragraph 36—that none of the proposals contained in the Report are in any way a derogation of the Royal Prerogative. We were most careful to consider that, and we so reported to the House. What is more, the Report of the Committee goes on:… the Committee most carefully considered whether they"—that is, the Standing Orders they proposed—would affect the Royal Prerogative or alter the position of the House. The Committee 1065 feel able, with confidence, to say that they would not.Then it goes on:For the essence of such arrangements would be that they would not deprive any Peer of his rights and that they would merely regularise the existing state of affairs. The imposition of certain conditions and formalities upon such regularisation seems to the Committee to be no more than the legitimate and proper use of that power which, as all agree, the House has to organise and regulate its own proceedings.I venture to go further and say that not only is there nothing illegal or improper about this, but that what we are doing fully preserves the Prerogative and enables a Peer to honour his duties in the right and proper manner according to the circumstances of to-day. Nobody has challenged the basic findings of that Committee. There is the mandatory nature of the Writ:(waiving all excuses), you be … present …There is the duty to attend. There is no doubt that the House has the power to compel attendance under penalty, if it so wishes. There is no doubt that the House, for the last three hundred years since the right passed from the Crown, has the right and discretion to give leave of absence. There is equally no doubt, as the Committee report in paragraph 31, that there is a duty upon Peers who cannot attend in accordance with the terms of the Writ, to apply for leave of absence. If we are really to be strictly bound by ancient precedent, the one thing I think in the Swinton Committee's Report that could be criticised would be that very provision to which I know the House attaches so much importance: that Peers who cannot attend regularly, but will attend when they can, shall not have to apply for leave of absence.
Now all this, surely, is exactly the way in which the House adapts its ancient practice to modern convenience. We deliberately avoided any question of the imposition of sanctions. We thought—and I know the House agrees with this—that it was undesirable and unnecessary. I think there is almost certainly an inherent power of sanction for contempt if orders are not observed. But M all the history of this House—and we have searched for 150 years back—we cannot find an instance where a Standing Order has had to be enforced by any such sanction, because we are a law 1066 abiding body, and Standing Orders have always been accepted. Nothing here inhibits any Peer from discharging his duty under the Writ. All we do is to enable those Peers who cannot discharge their duty to regularise their position in accordance with the recognised procedure of the House, as my noble friend Lord Salisbury has said.
I am a little puzzled at this solicitude on behalf of a hypothetical Peer who declines his obligations of attendance under the Writ, who has not the faintest intention of obeying the Writ, and who also declines his proper constitutional alternative of applying for leave of absence. He can discharge his obligation under the Writ by regular attendance or by attending when he can. I cannot see that there is any need to excuse him from what the Committee lay down is the complementary duty to apply for leave if he does not mean to discharge his Writ. This odd solicitude is urged on behalf of a Peer who refuses alike his obligation under the Writ and his proper excuse. As a matter of fact, I do not believe that this hypothetical Peer exists. I would say, let us have a little sense of proportion in this case. The noble Lord, Lord Winster, comes whenever he can, and is a regular attender. Are we really then to be so solicitous for a Peer who refuses to discharge his duty under the Writ and who refuses to obey the Standing Order of the House? It is not only a new Standing Order—there is an old Standing Order as well about applying for leave of absence. As a matter of fact, I do not believe such a Peer exists. I believe that every Peer will keep the Standing Order.
I hope the House, therefore, will take the advice of the Leader of the House and will approve the Report. With great respect to the noble Lord, Lord Saltoun, there could be no possible sense in referring it back to the Merthyr Committee. What would happen? The Merthyr Committee would say: "The questions which have been canvassed to-day are the very questions we went into, and we have made to the House the best report we can." That really would be a work of supererogation. What we surely can do is this: pass the Report to-day, accept the Merthyr Report, as the House unanimously—I wish we could accept this unanimously—accepted the Swinton Report on the last occasion. Then 1067 the Leader of the House and others will consider the best form in which the Standing Order should go down. Let it be that he takes the form in the Merthyr Report with the period of three months. Do not let the House forget that every Peer does not speak on every occasion, but there was a tremendous volume of support for three months on the last occasion. I am not going to argue whether that is right or wrong. The Swinton Committee did not put in any period. Some period, I am quite sure, there must be. For the sake of argument, let the Standing Order go down with the three months period in. Then it will be perfectly competent for any Member of your Lordships' House to move an Amendment reducing the three months to two months or one month, or even, if it were wished, to three weeks. That would be in order, and then we should be limited.
The noble Lord, Lord Silkin, was very kind in his remarks on my chairmanship of the Committee. May I say that there was no more valuable member of that Committee in its long sittings than he himself, and I believe that, in his heart of hearts, he likes the Report a good deal better than he would have us believe. We are grateful to him for the work he did on that Committee. Let us now go forward to-day and take the practical step of approving this Report, doing what I believe the whole House wants to do and what, through being done, is going to make it a better House. Then, when the Standing Order comes on to the Order Paper, let us confine ourselves to the details of what the length of period is to be; and if there are any other detailed points for consideration on the Standing Order, that would be the convenient way of considering them. I hope the House will accept that—and, I hope, with unanimity—as a practical proposal for us to follow.
§ 7.03 p.m.
§ EARL ATTLEE
My Lords, although the Report of the Swinton Committee passed through this House without a vote in opposition, it must surely not be taken that that was because there was general approval. Personally, I did not think it worth while to take any action because, frankly, I do not think that this proposal affects this House in any regard. I stated 1068 that I believed that no reform of this House which did not deal with successive membership would have any effect whatever. I do not think this is effective at all. I think it is a kind of camouflage put up to pretend that this House does not have "Backwoodsmen" Members. At any moment, whatever the notice is, these noble Lords have the right to come here. I further think that they have the duty to come here. It has been pointed out that there is this leave of absence. I doubt whether people outside realise the position with regard to leave of absence. I am quite sure that people would say, "If Peers do not want to attend, the right should be taken away from them." I believe that any changes like this should be by Act of Parliament and not by Standing Orders of this House. I think the noble and learned Viscount the Lord Chancellor will have to put up a pretty good case to answer what was said by the noble and learned Viscount, Lord Simonds, on the constitutional aspects of this question. But it is not for me to argue constitutional or legal matters.
Looking at this proposal from a practical point of view, one asks, how does it help? It is said that the "Backwoodsmen" never have descended on this House. Of course they did in 1910; and they might again. It might not be because of any particular legislative proposal brought before this House: it might be a general objection to a Government whose colour they do not approve. Therefore, whilst I have always, during these last ten years, regarded these so-called "Backwoodsmen" as being only a potential menace and not an actual one, the fact is that whatever is done on this Report it will not remove that potential menace. At any time this leave of absence can be revoked.
I am bound to say that I consider it rather derogatory to the regular attenders, that they should be asked to say that they are not going to stay away; and in other cases it does mean that, either for three months or some other period, noble Lords are to debar themselves from attendance. That seems to me to assume a far greater regularity in our national affairs than has been my experience in the last five-and-thirty years. Things "blow up" fairly suddenly. Take the case, for instance, of the Abdication crisis. 1069 There might have been a number of noble Lords who did not attend regularly who might have been very much stirred if that crisis had gone a particular way. Supposing they had found themselves debarred by a three-months, or even by a sessional order, I think they would have had the feeling that they had rather bartered away their rights.
I quite agree that we proceed by adaptation, but it must be a genuine adaptation. In my view, if there is to be reform of this House it should be done properly by legislation. Frankly, I do not con-skier this proposal does anything affective. I think it is a pretence to say that this House does not consist of 860 people but only of whatever the number may be—200, 300, 400; it may vary from Session to Session. I do not think that will impress the public outside or attract any more support for this House. I do not think it will do anything whatever to redress the balance of Parties in this House. And, with all respect to the noble Lord, Lord Saltoun, who seemed to suggest that we acted here under the Constitution, oblivious of Parties, the fact is that the whole of the working of our Constitution depends on there being Parties. If we did not have an Opposition point of view, we should not be the Parliament we are.
Further, I do not like this division of Peers into two lots, the regulars and the "ticket-of-leave" men. I was reading in the Library the day before yesterday a book by M. Hippolyte-Taine on his impressions of England. One of his impressions was the contrast between the British Peerage, who attended and did duties, and the French, who had only privilege and no duties. By this proposal we are going, in effect, to set up a special division of Peers, a division of Peers who, having duties, perform them, and a division of Peers who have privileges and no duties. I am not attacking "Backwoodsmen" as such—many do excellent work outside, in all kinds of activities. But the fact is that, as they do not attend the House, they are accepting privileges without duties, and I and my noble friends propose that the House should not approve.
§ 7.10 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, may I say, to begin with, that, like my noble friend 1070 Lord Home, I speak to-day as a Member of your Lordships' House who, as Lord Chancellor, is a Speaker of the House, but not as a Minister of the Crown for the Government. I confess that, like my noble friends Lord Swinton and Lord Merthyr, I have felt at some stages of this debate that there surely was some relevance in the fact that this House, only some four months ago, passed a Resolution which had three clear components: first, that it would welcome the adoption of the conclusion with regard to the delivery of Writs by myself; secondly, that it welcomed the conclusions relating to leave of absence which are so clearly set out in the paragraphs named in the Resolution, numbered 29 to 39; and thirdly, that it desired this Committee to issue Standing Orders to give effect to these matters.
It has been suggested by some speakers in this debate that we have not given enough consideration to this matter. Let me briefly remind your Lordships of the consideration that we have given. In 1953, my late noble friend Lord Exeter introduced a debate in which this matter came up as one aspect of its content. In that debate my noble and learned friend Lord Simonds made a speech dealing with the difficulties of the late Lord Exeter's proposal. We then had a debate on the setting up of the Swinton Committee, to which reference is made. We had the Swinton Committee before which my noble and learned friend Lord Simonds gave evidence, stating the objections which he has made to-day. We next had the Report of the Swinton Committee. We then had a debate on February 28, 1956. We had a further debate on December 10, 1957. Then we had the Merthyr Committee, and now your Lordships are studying the subject again. Many criticisms have been and will be levelled against your Lordships, but he would be a brave man who would say that your Lordships had been too impetuous in considering the subject now before you.
I shall therefore try to limit my observations to your Lordships to the points which have caused anxiety to those who have spoken. Of course, out of deference to the opinion expressed by my noble and learned friend Lord Simonds, I shall endeavour to say why I disagree with his conclusions and objections to this scheme, although, as he said, there 1071 is bound to be a sphere of agreement from which our departure must take place. May I take up the analogy which Lord Simonds, with all due warning as to the dangers of analogy—and in that I entirely agree with him—mentioned in the debate on Lord Exeter's proposal five years ago? He put it in this way: that it is quite permissible and right to say that if you use the Queen's highway you must keep on the left and obey certain traffic rules; but it would be wrong to say that you cannot use the Queen's highway if you have not been to church on Sunday. With that I entirely agree. But I should say that there was a difference between the kind of prohibition suggested by my noble and learned friend and the regulation of the method of use of the highway. In fact, while I do not wish to push analogies. I think that if one says, "Instead of restrictive legislation, let us look at the Highway Code which lays out the desiderata, the method of use of the highway which we desire, "that is, as I understand it, what my noble friend and his colleagues were trying to do in regard to regulating the method of exercising the undoubted rights of a Peer which is desired by this House. We do not want to go further than that; and, with great respect, I do not think that that is wrong.
The noble Lord, Lord Silkin, said that the Swinton Committee was dealing merely with what this House can do. If I may say so, it dealt with it very thoroughly. The noble Lord, Lord Silkin, read the first few lines, but if he would look at the last few lines of the first paragraph he would find that it says:The Committee have, therefore. had to cover a fairly wide field; they have for example felt it their duty to inquire into the nature of the Summons by Writ and the rights and duties that arise upon it; the relation between the powers of the House and the law and custom of the Constitution, and how far the former are limited by the latter; whether and how far the House is bound by its own precedents in the exercise of its powers; and whether and how far the Royal Prerogative is or might be affected by the exercise of any powers the House might have in relation to the attendance of its members.I hope that my noble and learned friend Lord Simonds does not think that the Committee did not fully consider these questions. There is no doubt that the Committee thought that they were con- 1072 sidering them, and I hope in a moment, by quoting from their Report, to show that they did consider them. That was what they said they were doing.
Now may I come to the points—it is really one major point—which the noble and learned Viscount, Lord Simonds, made in his evidence before the Committee. His proposition was—and I entirely agree with him—that this House cannot do by indirect means what it is impossible to do by direct means. On the other hand, we cannot, as indeed we would not, erect a tolerable facade to hide a breach of the law. That, broadly, is the charge. I want just to look at a short portion of the Report. because it is quite clear that the Swinton Committee had this danger in mind and did their utmost to avoid it.
If your Lordships will allow me to direct your attention to three paragraphs in the Report I believe they will make my point. In paragraph 29 the Committee said:Much of the evidence given to the Committee and a great part of the Committee's deliberations were devoted to the subject of leave of absence. For the reasons given above, the Committee came to the conclusion that it would not be legitimate for the Committee, under the guise of granting leave of absence to a Peer, in effect to deprive him of his right to sit, speak and vote.Then there is stated what the Committee took into account, including the question of proxies, and they go on to say that the decision on proxies:was merely an example of that power which, in the opinion of the Committee, the House must have of adapting its procedure to the needs of the times and of regulating the manner"—and this is the important matter—in which the rights conferred upon Peers by the Writ and Letters Patent should be exercised.
My Lords, I would ask the noble and learned Viscount to note the following words:The suspension of proxies did not deprive any Peer of his right to attend and vote;
§ THE LORD CHANCELLOR
My Lords, certainly. That is the very point I am making. That was, as the Committee pointed out, an exercise of the methods by which rights could be exercised, and not a deprivation of the rights. That is the difference between the Committee, with whom I agree, and the noble and learned Viscount, Lord Simonds, with whom I disagree.
My Lords, the noble and learned Viscount does not follow my point. This Standing Order does deprive a Peer of his right to attend and vote. The resolution in regard to proxies did not do so.
§ THE LORD CHANCELLOR
My Lords, the point really does not become any the stronger, however often it is repeated. That is the view of the noble and learned Viscount. My view is that it does not deprive anyone of the right to sit and vote but lays down the manner in which that right shall be exercised. That is the difference between us.
§ SEVERAL NOBLE LORDS: No, no!
§ THE LORD CHANCELLOR
The matter does not stop there, because if your Lordships will take a last, lingering look behind at paragraph 33 you will see there that the Committee say:It would, for example, be well within the powers of the House to arrange, as suggested above, that his Writ or a copy of his Writ should be sent to every Peer,and they then set out what the Standing Orders best provide. In paragraphs (c) and (d) they saythat any Member of the House who fails to reply to such a communication should be regarded as having applied for leave of absence, unless he attends to take the Oath within one month of the beginning of a Parliament;and:that Members of the House are expected, if they have been granted leave of absence, not to attend until their leave of absence has been terminated by their giving such notice as may be prescribed by Standing Order.What is being indicated there, and suggested for your Lordships' adoption, and what in fact your Lordships have approved, is a scheme for those who want leave of absence for a considerable period. They either apply to come into the scheme or if they do not reply to the letters that are sent out they are deemed to have applied; and if they come into the scheme, then, the Committee suggest, they should give some notice before they come out of the scheme again.
As to the period of notice, I was impressed, as I told your Lordships the last time we debated this matter, by the arguments of my noble friends Lord Teynham and Lord De La Warr for a three months' period. I have not changed that view, and it is quite clear that some form 1074 of notice was approved by this Committee. The question of how long that notice should be is, after all, only a very minor matter of degree and cannot go to the principle of this affair. I ask your Lordships to consider that, because my noble and learned friend Lord Simonds suggested that his doubts, expressed in evidence, had not been considered; and he told us to-day that, so far as he could see, nobody had considered the questions that he had raised, inferentially, as to the Royal Prerogative.
If your Lordships will look at paragraph 36 you will find it stated, in discussing the possibility that such Standing Orders might be made:The Committee most carefully considered whether they would affect the Royal Prerogative or alter the composition of the House. The Committee feel able, with confidence, to say that they would not. For the essence of such arrangements would be that they would not deprive any Peer of his rights and that they would merely regularise the existing state of affairs. 'The imposition of certain conditions and formalities upon such regularisation seems to the Committee to be no more than the legitimate and proper use of that power which, as all agree, the House has to organise and regulate its own proceedings.I am sorry to read so much but I would ask your Lordships to have in mind, in coming to a final conclusion, the next sentences:Nothing would be done without the consent, tacit or expressed, of the Peer concerned; and in the vast majority of cases the action taken would be on the initiative of the Peer himself. It seems to the Committee, therefore, that as no right conferred by the Crown would be diminished or taken away, the Prerogative of the Crown could not be in any way affected.I do not think there is anything further in the next sentence, but if my noble friend or any other noble Lord wishes me to read it I will do so.
These are the findings of the Swinton Committee on the points which my noble friend has disputed to-day. That Committee contained my noble and learned friends Lord Morton of Henryton and Lord Reid, two Law Lords who were signatories to this unanimous Report. I have shown your Lordships the reasoning which commends itself to two of my noble and learned friends. But, in addition to the views he may be taken to have expressed by his signature of the document, I would remind the House that my noble and learned friend Lord Reid spoke in the debate in this House 1075 on February 28, 1956, when he said [OFFICIAL REPORT, Vol. 196, cols. 46–47]:We came quite clearly to the conclusion that one must draw a firm line between a possible Standing Order which might have the effect of entirely excluding a Peer from voting and one which merely modified or altered the method by which he could exercise his right and privilege. We came to the conclusion—and I do not think we had any doubt about it—that the possible scheme which is set out in detail in the Report would not infringe the constitutional rights of Peers in any way, but that to go much further might well infringe their nights. As is said in the Report, the purpose is to relieve Peers of their obligations, rather than to diminish their rights.I know that my noble and learned friend Lord Simonds would be the last to object to a forthright answer to his points, because he made them in a forthright manner, and I believe it is right that when there are these doubts—and even lawyers, members of the Supreme Tribunal, disagree—your Lordships should have before you the defence as well as the attack; and I have endeavoured to put it.
I want now to come to a point that my noble friend Lord Elton raised as to actual wording, because it goes beyond mere wording to the substance of what we have in mind. My noble friend's point referred to paragraph (1) of the suggested Standing Order, which states:…this Standing Order shall not be understood as requiting a Lord who is unable to attend regularly to apply for leave of absence if he proposes to attend as often as he reasonably can.My Lords, I agree entirely with my noble friend Lord Merthyr, who said that the purpose of that provision is to make the matter entirely subjective: it will be for the Peer himself to judge as to what is reasonable and what is a reasonable number of attendances. That really fits in with the whole scheme here, in that it is a voluntary scheme that can be accepted if the person concerned cares to make either a tacit or an explicit application.
I think that the next point which worried the noble Lord, Lord Elton, and my noble friend Lord Simonds was the proposal that:A Lord may apply for leave of absence…either for a session or the remainder of the session in which the application is made or for the remainder of the Parliament.The position is quite clear, as I understand it (and I shall be corrected if I am 1076 wrong): the Committee of my noble friend Lord Merthyr did not imagine that a Lord would apply for leave of absence for short periods; they considered that he would come into the scheme only if he wanted a considerable period of leave. If it were only for a month that he was not going to attend there would clearly be no need for him to apply.
With considerable ingenuity, noble Lords have suggested potential difficulties that might arise on the outbreak of war. But, after all, there are cables and telephone communications in the period before a war starts. I do not think my noble friend, Lord Salisbury objected to the part of paragraph (5) which says:…or sooner if the House so direct, the leave shall end.If an emergency arose someone would have only to telephone to the Committee and say, "In view of the emergency I want the leave to come to an end." and I cannot imagine a Committee of your Lordships' House having any difficulty about dealing with that. Lord Salisbury put it rather wider, and he said that it is a matter outside the man's own control; and of course what he said will be considered, But I do not think the noble Marquess was here when we discussed the matter last, or heard the strength of opinion that was expressed in the House from many of those with whom he has acted closely in the past—that if a Peer voluntarily comes into a scheme like this, then he should not be able to give up and return to the House without some period being involved, and that that period should be of some length of time. That is a condition on which one gets into the scheme. However, I should like to tell my noble friend that of course anything he says in this House will be considered, and I am not shutting the door on what he has said to-day.
§ THE MARQUESS OF SALISBURY
If I may intervene, I would only say to my noble and learned friend that our conception was slightly different. His conception is of two people who come into a voluntary, self-denying ordinance together. My conception is of a Peer who found that he could not attend to his duties in the House and therefore asked for leave for such a period as that for which he had to be away. When he found he could not be away any longer, then I felt he should have a right to 1077 come back. I quite agree that he would have to give notice that he wished his leave to be revoked; but I would not agree that there was, as it were, an agreement between the House and the Member by which he voluntarily surrendered some of these rights.
§ THE LORD CHANCELLOR
My Lords, I do not think there is any question of surrendering rights, as the noble Marquess has so often told us. We start from the strong words of the Writ; and this is in respect of someone who cannot, for reasons which may vary in different cases, carry out the terms of the Writ, or someone who does not want to carry out the terms of the Writ. In these circumstances, if he has put himself in that position, I think the House is entitled to state the method by which he shall be regulated when he has assumed that position. But, as always, I am very anxious to consider anything that the noble Marquess says; and certainly my noble friends and I will do it. And even if we did not think this is a matter for the House, I am sure that the House itself will always listen to his points. However, I should not like the noble Marquess to be under a misapprehension. There was a strong feeling the other way, and I would respectfully ask him to take that feeling into account.
The noble Lord, Lord Silkin, and the noble Earl, Lord Attlee, dealt with the matter from a quite different point of view, namely the political point of view, and the position of this House as an hereditary Chamber. The noble Lord, Lord Silkin, made the point, as his first point as I understand it, that it would bring more discredit on this House if a number of its Members were given leave of absence than if it continued as at the moment. I should like to deal with that point. The Swinton Committee gave us, among other things, a picture of the growth of numbers in your Lordships' House, and the membership of the House is now between 800 and 900. In these circumstances it is inevitable that there will be some who have other occupations which prevent them from attending the House. That is as inevitable as that the world should change. There are others concerned who will be in a certain geographical situation because of their occupation—they may own land or a farm which keeps them in some part of the 1078 country distant from here. I am not going to mention names, but two old friends I have in mind at the moment hold high office, or have held high office, in countries which in one case is many thousands of miles, and in the other many hundreds of miles, away from here.
There is a third class—let us face it. It is bound to happen, if there are as many as 800 or 900 Peers, that there will be some who are not interested in politics and who honestly do not think that they have a contribution to make. It is a fact that these things do occur to-day. But the fallacy that is inherent in the arguments of both Lord Silkin and Lord Attlee is that it would not be possible to have a Second Chamber that would do the work without drawing on the residue of Members of your Lordships' House. And this is so because the Labour Party will not have either a system of election or a process of selection by your Lordships' House of its Members. Election, they say, would compete with another place. Selection, the noble Viscount, Lord Alexander of Hillsborough, said, might improve the status and influence of your Lordships' House. Therefore, these are barred. If we are to have a Second Chamber which does its legislative and discursive work, I say that it is impossible to have it in this country without drawing on the reservoir of Members of your Lordships' House. That will not have been met if these two things obtain. Then surely it is common sense that as a House we should meet both these requirements and, for the reasons I have mentioned, give those who cannot, or will not, or do not want to be, with us, leave of absence, and try to form a compact House with what we have and with what we are allowed to have within the political limitations of the moment.
I am sorry to have detained your Lordships, but in an interesting debate like this it is only right that the speeches which have been made should receive some reply. I want to say just two words to my noble friend Lord Saltoun, if he will allow me. I think that my noble friend Lord Home indicated to him that on the point of Standing Orders versus Resolution of the House, it has been the practice of this House for several centuries to include in the Standing Orders matters which are general, and not particular, instructions on procedure. My noble 1079 friend quoted the instance about myself and referred to the words:might obtain leave of absence by pleasure of the House upon cause shown.They go back, as my noble friend Lord Saltoun knows, to the earlier form, when the Crown gave leave of absence. This House acquired power in 1621 to forgive Peers who had been absent without leave. There are others—for instance, the position of Bishops, which my noble friend will find dealt with in Standing Order No. 66 of the 1936 edition. I should have thought, if my opinion is of any interest to my noble friend, that the fact that these are put in Standing Orders and are not in Resolutions, does not of itself make any difference to the consequence. I would also say to my noble friend with regard to Standing Orders that they are a suitable mandate for showing the wishes of the House.
My noble friend Lord Saltoun wishes to refer this matter back to the Merthyr Committee. I would ask him to remember what I said at the beginning, when I enumerated all the different considerations which this subject has had; and I would suggest to my noble friend that now that the Leader of the House has made clear that when the actual Standing Order is laid it will be possible to amend it, and that we can take into account the different considerations that have been urged in this debate, this really meets my noble friend's point.
There is just one other matter. My noble friend Lord Swinton said that his Committee were advised, as no doubt Lord Merthyr's Committee were, too, about the language appropriate to distinguish between what is directory and what is mandatory: and "should" was put in one of these provisions as being the proper directory and not mandatory word. But if that is a point on which my noble friend Lord Saltoun is still in doubt, he could raise it in Committee and have it considered then. I should be the last in the world to deprive him of the pleasure of dividing the House, but I do feel that we have considered this a great deal and I should like him to consider seriously whether it would not be a good thing for us to deal with this now and not refer it back to he Committee.
Sometimes it is a good thing "to see oursel's as ithers see us." If my noble 1080 friend Lord Mathers were here, I know that he would go through the whole of the poem by Robert Burns, in which that saying occurs, but whatever be said about the rest of the poem, I think that there is sound sense in that quotation. With great daring, I venture to ask your Lordships, having looked at this problem now, to have a look at it through a different pair of spectacles, through those of The Times, in its leading article of Saturday, April 12. Though they are quotations I do not think that they do violence to the general sense of the argument. The first is this:But it has long since recognised that, under a hereditary system, there must be many peers who either take no interest in politics or claim no competence in them; and to conscribe these into parliamentary service, even if it were practicable, would do no good to anyone.The second—and this is how the article concludes—is this:But the general effect of the scheme, taken in conjunction with the forthcoming creation of life peers, should be to establish a more compact Second Chamber in which the hereditary and nominated elements are more evenly balanced than hitherto and which has some guarantee against interference by merely casual legislators".My Lords, we are grateful to all Members of two Committees for a remarkable achievement. They have evolved a method, in my view, within the law of Parliament and constitutional limitation, of ensuring a more compact and workable House. It now rests with us, I suggest, to translate our gratitude into action by putting these admirable ideas into practical operation.
§ 7.49 p.m.
My Lords, before I ask leave to withdraw the Amendment that stands in my name on the Order Paper, there is one thing that I should like to say. My putting down this Amendment has certainly ensured one thing; that is, that if and when this Standing Order comes to be discussed, we shall not be told that on April 24 it was discussed and unanimously approved by your Lordships' House. That is one great advantage. I think that my principal reason for putting down this Amendment has been removed. That was that it seemed to me that paragraph (4) looked like a mandatory order and one that could not be revoked. The noble and learned Viscount on the Woolsack, and everybody who has spoken for the Committee, have 1081 admitted what I am not quite sure of myself; that is, that any noble Lord who had obtained leave of absence and who chose to come up and take the Oath, and to sit and speak and vote, could not be prevented by your Lordships from so doing. That being so, I thought it utterly wrong to put down a Standing Order which could not be enforced, if it was an order which could be defended, because it appeared like an order, though it was not. I think the noble Earl, Lord Swinton, told me it was mandatory—at least, that is what I understood him to say.
§ THE EARL OF SWINTON
No. I said that, according to the advice I have, "should" and "is expected", have the same meaning.
§ Resolved in the Affirmative, and Motion agreed to accordingly.1082
§ THE LORD CHANCELLOR
As a matter of convenience, we use "mandatory" when you can go to the court, when you have a legal right that can be enforced. "Directory" is when it is indicated as a desirable course of action but not something that can be legally compelled.
It seems to me to come to the same thing. In those circumstances, I do not approve of the Standing Order in that form: I think it should be clear what is intended, as I think all Standing Orders should be clear to the people who are expected to read and obey them. Therefore, I do not see that it is much use referring the Standing Orders back to the Committee, and I can save your Lordships a Division. I beg leave to withdraw my Amendment, because I shall vote against the substantive Motion before the House.
§ Amendment, by leave, withdrawn.
§ On Question, Whether the said Motion shall be agreed to?
§ Their Lordships divided:—Contents, 52; Not-Content, 20.1081
|Kilmuir, V. (L. Chancellor.)||Davidson, V.||Dynevor, L.|
|De L'Isle, V.||Ebbisham, L.|
|Hailsham, V. (L. President.)||FitzAlan of Derwent, V.||Ellenborough, L.|
|Gage, V.||Hawke, L.|
|Lansdowne, M.||Massereene and Ferrard, V.||McCorquodale of Newton, L.|
|Ormonde, M.||Samuel, V.||Merrivale, L.|
|Salisbury, M.||Soulbury, V.||Milverton, L.|
|Stonehaven, V.||Palmer, L.|
|Bathurst, E.||Remnant, L.|
|Buckinghamshire, E.||Addington, L.||Rochdale, L.|
|Dundee, E.||Amherst of Hackney, L.||Romilly, L.|
|Home, E.||Auckland, L.||Sandford, L.|
|Onslow, E.||Chorley, L.||Savile, L.|
|Perth, E.||Cohen, L.||Sinha, L.|
|St. Aldwyn, E.||Colyton, L.||Strang, L.|
|Selkirk, E.||Conesford, L.||Strathalmond, L.|
|Swinton, E. [Teller.]||Congleton, L.||Strathclyde, L.|
|Craigmyle, L.||Swaythling, L.|
|Chelmsford, V.||Croft, L.||Teynham, L. [Teller.]|
|Cholmondeley, M.||Brocket, L.||Pakenham, L.|
|Crook, L.||Saltoun, L.|
|Attlee, E.||Faringdon, L.||Sempill, L.|
|Iddesleigh, E.||Hankey, L.||Shepherd, L. [Teller.]|
|Lucan, E. [Teller.]||Hemphill, L.||Silkin, L.|
|Henderson, L.||Wilmot of Selmeston, L.|
|Simonds, V.||Latham, L.||Winster, L.|
|Mowbray and Stourton, L.|
§ House adjourned at three minutes past eight o'clock.