LORDS AMENDMENT (Hansard, 20 July 1978)

§ Lord McCLUSKEY
My Lords, I beg to move that this House doth not insist on their Amendment No. 33 and agree with the Commons in their Amendment No. 34 proposed in lieu thereof. As with the matter to which I have just spoken, this is a subject that we have spoken about before. It concerns prerogative powers.
482 The subject has been debated at length in your Lordships' House and I can add nothing that is new. I understand from the Paper that has been put in by the official Opposition that they do not propose to ask that this go back to the other place, and in the circumstances, and having regard to the time, I do not propose to rehearse the arguments with which we are already familiar.

Viscount COLVILLE of CULROSS
My Lords, I will not spend any time on this matter either. If we cannot have the original Amendment we sent down, certainly let us have No. 34, which ceases to draw the untenable distinction between prerogative and executive powers. I have thought of all sorts of the most excellent answers to the very bad points made by the noble and learned Lord when we last discussed this subject. Perhaps I can treat him to those on another occasion, and the House not at all. The matter has been widely discussed in another place. It was a monster then; it is a monster now. The Government will regret it. They ought not to do this sort of thing. It is still done under protest, but I am not going to suggest that your Lordships should send it back.

The Earl of SELKIRK
My Lords, I should like to add one word to what my noble friend has said. One thing was said quite clearly by the Government—and here I agree with the exact contents, and I apologise for not giving it before—when the Minister of State at the Privy Council Office said at column 804 of the Official Report for 6th July: It does not appear to have been one which was current in Dicey's day ". Let us be absolutely clear what that means. This is a flat repudiation of every standing authority on constitutional matters.
I was able to give quotations at an earlier stage, not only from Dicey but up to the 1970s on this point. The Government have driven straight through the whole lot; they could not care less. You may ask, "What does this matter?" 483 The danger is that it should be regarded as a precedent, an authority, for doing something in the future. There is a new constitutional principle which the Government have been totally unable to define. They do not know what the purpose of it is, and they just say that it is a vague substance.
This is something that we should not regard as utterly trivial. Here we are at the present time with a sheaf of books coming out telling us that our Constitution is not all it should be. Some people want a written Constitution; some people want this, and some want the other. Is this the time to play fast and loose with perfectly well-known principles of constututional custom, law, and convention? The Government have pushed this through, so to speak, at the point of a barrel. The Government know perfectly well that if they want additional powers the way to get them is the way we have always done it in this country; we take statutory powers. There is no difficulty about that. But this is to take powers out of the air. This is where there is a real danger. Powers will be invented and no one will go to the expense of challenging them. They will be drawn out of the air, and if no one challenges them they may become a custom. This is a most unfortunate step the Government are taking, marching straight through this unnecessarily and without the slightest definition of what they are doing or what they want to do.