HL Deb 14 December 1981 vol 426 cc19-26

3.38 p.m.

Lord Alport

My Lords, I beg to move that the Constitutional Referendum Bill be now read a second time. Your Lordships will remember that I introduced a Bill with the same Title at the same time last year. In the debate which followed a number of criticisms were made, but your Lordships were good enough to give it a Second Reading without a Division.

I did not subsequently seek to take the Bill through any further stages in this House, for two reasons. First, in view of the criticisms of the then Leader of the House, Lord Soames, I felt that it would be right to give the Government an opportunity to introduce in this Session a Bill of their own which was more to their liking. Secondly, I felt that it would not be right to ask your Lordships to give time and thought to a Bill which the Government clearly intended to use their influence to defeat in another place when the volume of business inflicted on your Lordships by the Government's own legislation was already making exhorbitant demands on our energies and patience.

However, while awaiting some indication in the recent gracious Speech from the Throne of the Government's intentions for this Session, I took the precaution of asking those who had been kind enough to help me with the drafting of my Bill to advise me as to how it should be redrafted to meet the criticisms levelled at it during last year's Second Reading debate. I therefore present to your Lordships the Constitutional Referendum Bill, Mark 2, which I believe to be a much better Bill than its predecessor.

Before I try to explain it in detail, may I attempt to answer some of the general criticisms which were and may again be made against it? The first criticism is the use of the referendum as a constitutional expedient. The precedents represented by the EEC referendum and the Scottish and Welsh devolution referenda are already very powerful. Since then, the whole question of the use of the referendum, it seems to me, has become a matter of somewhat confused thinking. The Labour Party which thought it eminently desirable for the membership of the EEC issue now considers, apparently, that it should not be used to decide the issue of Britain's possible withdrawal from the EEC. The present Conservative Government, whose predecessors had very mixed feelings about the use of the referendum, within the last few weeks have proposed that a referendum should be used not in the a case of some major constitutional issue but to decide the purely local matter of the relevant level of rates as against the provision of local public services—although I understand that this idea has now been abandoned.

I recognise fully the importance of maintaining the powers of decision of Parliament in general and of the elected Chamber in particular in all matters which affect the security and good government of the country. The exception, in my view, is where the issue directly affects the structure and powers of Parliament itself. This was the real issue in the case of both the EEC and the devolution referenda. This would be the issue in the event of a proposal to abolish the Second Chamber or so to emasculate its powers as to produce the same result.

Your Lordships will remember the noble and learned Lord the Lord Chancellor's striking description of our constitution as being an "elective dictatorship". We accept that a Government with a secure majority in the House of Commons can do almost anything, except change a woman into a man; although I am not sure that that disability has not been overcome by recent legislation. But all Governments govern at their peril and retribution can be exacted on them by the voters at the next election. What they cannot do is to prolong their elective dictatorship beyond the five-year life of a Parliament because of the powers which are reserved to your Lordships' House.

This brings me to what I regard as the "myth of the manifesto". There is a general belief that Governments which are elected to power are entitled, and, indeed, obliged, to give effect to everything in their election manifesto. Therefore, if, for the sake of argument, at some future election a party won an overwhelming majority by promising to end unemployment, halve the income tax and double the standard of living and, in the small print of the manifesto, had undertaken to abolish the Second Chamber, they would, according to present theory, be entitled to do so; although your Lordships might kick up a bit of a fuss when the relevant legislation reached your Lordships' House.

I suggest that at elections those who determine the outcome vote, first of all, for people; and, secondly, they vote against parties, and particularly against the party which formed the previous Government if by any unhappy chance their period of administration has not fulfilled their expectations or their leaders are unpopular; and thirdly, they vote in accordance with an amalgam of considerations of self-interest, inherited loyalties and an instinct as to where, for the time being, the national interest lies. What they do not vote for is the small print of election manifestos.

But let me take my argument a stage further. If, at a future election, a Government come to power with the abolition of the Second Chamber as an item in their manifesto, they then would be entitled to introduce a Bill in the House of Commons to carry out what they would regard as their election pledge. When that Bill came to this House, your Lordships would have to decide whether to let it go through and open the road to an "elective dictatorship" of a potentially permanent nature or to chuck it out and let the Parliament Act operate. In the latter case, your Lordships' action could be, and certainly would be, portrayed as a last-ditch effort to defend the privileges of a largely hereditary, partly nominated, completely unrepresentative and unreformed Chamber against a House of Commons elected by a majority of the nation. It would be the "Peers against the people", literally with a vengeance.

Whatever may be the criticisms levelled at the composition and character of your Lordships' House, we carry out, as the Second Chamber of the British Parliament, a number of important and, indeed, essential functions. We bring to legislation both the opportunity for second thoughts and a variety of personal experience. We are able to initiate and to help refine public discussion on moral and social issues; and, even if, under the benign guidance of our party Whips, we sometimes tend to reflect too closely the party pattern of the House of Commons, there is among the members of all parties in this House a consciousness of personal independence which is unique among the Senates of the democratic world. Above all, we are entrusted with the power to prevent a party dictatorship elected to the House of Commons for the span of a single Parliament of five years from becoming a party dictatorship in perpetuity.

All these functions and responsibilities are vested in this House as the Second Chamber of the British Parliament; they are not derived from our individual right to sit here as Peers of the Realm. However composed, I believe that the Second Chamber should have and would have, powers very little different from or fewer than we have today. It might have more— but that is a different matter.

If your Lordships look at the text of this Bill, you will see that it refers throughout to the retention and powers of a Second Chamber within the structure of the British parliamentary system, not to its composition. Your Lordships will remember very well that a few years ago we in this House voted overwhelmingly for reform—only to be frustrated by the combined efforts of the present Leader of the Labour Party in the House of Commons and the right honourable Member for the Ulster constituency of South Down. This Bill does not seek to entrench the powers and composition of the present House of Lords; it deals exclusively with the powers and continuance of a Second Chamber in the parliamentary system.

If some future Government, fortified by a pledge in its election manifesto, were to introduce a Bill into the House of Commons to abolish the Second Chamber or to emasculate its powers and if this Bill now before us was on the statute book, the Speaker would be required, after the "Abolition Bill" had received Third Reading in another place, to endorse it under Section 1(2) of the Constitutional Referendum Act —if this Bill should become an Act. It could then go no further without a referendum. If such an "Abolition Bill" was introduced, improbably, into this House or if the Speaker, for some reason best known to him, omitted to endorse such a Bill or if, as a preliminary to introducing a Bill to abolish the Second Chamber, some future Government were to introduce a Bill to repeal this Constitutional Referendum Act (if it became an Act) then I think it probable that your Lordships would reject such a Bill on Second Reading.

But the grounds for doing so would not be easily portrayed as an attempt to frustrate the will of the elected majority in the House of Commons or to protect the undoubted privileges which we enjoy. On the contrary, our action would be designed to give the people an opportunity, by means of a referendum, to decide whether the only effective constitutional barrier against the perpetuation of a single party in power or a one-party state was to be swept away. It would be the "Peers for the people", and, even if the result of the referendum went against a Second Chamber, it would not be a bad note on which your Lordships' House ended its historic role within the British democratic parliamentary constitution.

When under the leadership of the late Sir Winston Churchill the Conservative Party was struggling to recover from the defeat of 1945, one of the things we did was to organise an exhibition in London to illustrate our ideas. It was entitled: "Trust the People". In our ignorance and conceit we imagined that we had invented the slogan ourselves. Your Lordships will of course know that in his great speech in Birmingham in April 1884, Lord Randolph Churchill said: 'Trust the people'—I have long tried to make that my motto … He went on: You who are ambitious and rightly ambitious of being the guardians of the British constitution, trust the people and they will trust you… That is precisely what this Bill is all about. By a curious coincidence in the second leader of The Times today that slogan, "Trust the People", makes its appearance once again.

You will not wish me to weary you with a repetition of the detailed explanation that I gave of the Bill on the last occasion. Clause 1 enables a Bill designed to abolish or emasculate the powers of a Second Chamber (however composed) to go through all its stages in another place before the Speaker endorses it. This is in response to a number of criticisms of last year's Bill which provided that the endorsement should be made after Second Reading in the House of Commons.

The schedule lays down that the referendum should be held not less than three months' after making the order for it to be held. This will give plenty of time both for your Lordships to debate the principle enshrined in the Bill in a normal debate here and for the electorate to be fully siezed of the nature of the constitutional issues at stake. Clause 2 follows the provisions of the Scottish and Welsh Devolution Acts, as does the schedule.

Clause 3 excludes any Bill intended to amend this Bill—if it becomes an Act—from the operation of the provisions of the Parliament Act of 1911, if the former is rejected by the House of Lords. There is however one part of the Bill which is now before your Lordships and about which I have had further thoughts. If it reaches Committee stage, I should like to take the advantage of your Lordships' advice on this. That is the appendix which contains the two questions to be asked in the referendum. It may be all right. However, on the other hand, I have come to the conclusion that it might be better if the questions to be asked in the referendum were not included in the Bill. Instead, it might be better if they were formulated by an impartial committee consisting of, say, the Lord Chancellor, the Speaker of the House of Commons and the senior Lord of Appeal-in-Ordinary or the Master of the Rolls.

There will be other matters on which your Lordships' views and advice will, as always, be of the greatest value. I would of course resist to the best of my ability thing which appeared at a later stage to be a wrecking amendment; but I hope that your Lordships will give this Bill a Second Reading and let it go to Committee so that your advice can be made available. What may happen to it subsequently here or in the House of Commons is a matter again this year for consultation and further thought.

I am, of course, well aware that the Government consider that a Bill of some constitutional significance should not originate from the initiative of a Private Member. As I made clear last year, I am more than willing to hand over this Bill to the Government or, if Ministers prefer to introduce their own legislation along these lines in this session, to withdraw this Bill after Second Reading, if your Lordships approve it.

However, it seems to me to be clear from the speech of my noble friend Lady Young at this year's Conservative Party Conference that the Government have set their mind against the initiative in this matter. In these circumstances, I believe that any Member of your Lordships' House has the right and the duty to promote the enactment of legislation which he believes profoundly will assist in preserving the integrity of the British parliamentary constitution.

My Lords, it is therefore in that belief that I move that the Constitutional Referendum Bill be now read a second time.

Moved, That the Bill be now read 2a—[Lord Alport.)

3.55 p.m.

Lord Jacques

My Lords, may I first congratulate the noble Lord on his tenacity in bringing back an amended version of his Bill and on the lucid way in which he has explained it. He is a man of considerable independence of thought and he pursues those thoughts with courage. I think that meets with admiration on all sides of the House.

I want to deal first of all with a sentence in the preamble: whereas it is expedient that the present Second Chamber should be reformed All history shows that the institutions which cannot adapt themselves to ever-changing circumstances eventually become merely part of history. Adaptability is absolutely essential. If this House were abolished, I have no doubt that it would be said by some people that it was because it was unable to adapt itself to changing circumstances. But what could not be said is that this House has been unwilling to adapt itself to changing circumstances.

There have been three occasions in the post-war period when the House showed quite remarkable adaptability. First of all, this House was faced for the first time in 1945 with a Labour Government which had a majority. It immediately came forward with what has become known as the Salisbury doctrine: that it would not oppose in principle legislation for which a Government with a majority in the other place has a mandate. The House has acted in accordance with that doctrine since 1945.

The second occasion when it showed adaptability was in 1968, largely due to the excellent work of the noble Earl, Lord Jellicoe, and the noble Lords, Lord Shackle-ton and Lord Byers, who produced a report setting forth radical changes which the House approved by an overwhelming majority—and that was at least in part due to the eloquence and persuasive powers of the noble Lord, Lord Carrington. We all know that the Bill was talked out in the other place. The reason why it was talked out was quite simple: the abolitionists know as well as anybody else the lessons of history, and because they know the lessons of history and because they want to abolish, they do not want this House to reform itself.

Lord Boyd-Carpenter

My Lords, would the noble Lord allow me to intervene? As I was a little involved in the transaction to which he has just referred, is he aware that so far from this Bill being talked out after a considerable body of discussion had taken place, it was withdrawn by the Government of the day?

Lord Jacques

My Lords, I am aware that it was withdrawn because the talking was going on for ever and other things were being held up in the meantime. If that is not "talking out", I do not know what "talking out" is. The third occasion when this House showed a great willingness to change was in the early 'seventies when we joined the EEC. The House immediately set about changing its methods and making provision for the consideration of directives from the Commission, and it did it so well that the way in which it did it and the work which is being done by the committee concerned have been admired throughout the whole of Europe.

The greatest change which has been made in the postwar period was by Mr. Harold Macmillan when, in 1958, we had the Life Peerages Act. That was the greatest change, but it was one of those changes which was outside this House.

This House is a House of persuasion rather than House of decision. It has no power to decide but it has the power to delay, to give it time to persuade the elected Chamber to make changes which it thinks advisable. So it is essentially a House of persuasion. Some of the most influential leaders of the party opposite have recently advocated that we should have an elected Second Chamber, elected on the principle of PR and, as I understand it, leaving the House of Commons elected, as it is now, on the first-past-the-post principle. I hope they will forgive my bluntness, but if ever there was a recipe for conflict that is it. With two Houses elected on entirely different principles, we would have great conflict and we would do nothing other than fall out with each other. I, for my part, have been looking for remedies which would reduce rather than increase conflict, because I think we have enough conflict within our nation without sowing the seeds of further conflict.

A Second Chamber has most obvious advantages which can be stated quite simply and quite quickly. It not only gives an opportunity for fresh minds to be brought to bear upon the issues involved but a Second Chamber also enables consideration of those parts of legislation which may have been neglected by the First Chamber for any reason whatever, guillotine or anything else. But, above all, it allows the Government of the day, no matter what its colour, to have the opportunity of second thoughts in the light of the discussion in both Houses. That, I think, is of paramount importance and also, in the absence of a written constitution, it is a check on the abuse of power.

So long as this House remains a House of persuasion, a considerable case can be stated in favour of its Members being appointed rather than elected. First, it enables us to bring in expertise from outside politics which my experience here has shown me is vital, even when I was a member of the Government. It also enables us to retain the services of those wise and long-experienced ex-statesmen who are past fighting elections. We can retain their services and get their advice within this House.

My own party has had two committees considering this question over the past decade. I have been a member of both and have taken a great deal of interest in the matter. The second committee of two years ago made a number of recommendations. I need only mention the four most important ones. First, it recommended that there should be a Select Committee in the House of Commons with the Prime Minister as chairman, and that it should be responsible for considering and listing those people it thought suitable for a place in this House. Any recommendation to the Sovereign by the Prime Minister would be taken from the lists of that Select Committee.

Secondly, in keeping with the proposals of 1968 we recommended that the hereditary principle should go, that it was now out of date but that the parties could nominate to become life Peers those hereditary Peers who were taking an active part in the affairs of the House, if they so wished. Thirdly, we recommended that there should be 250 voting Peers and that broadly at any point of time they should reflect the balance of voting in the House of Commons because we believe that every Government must have ways and means of getting their legislation through.

Fourthly, on the question of delay, we felt that when there was a difference between the two Houses and the matter had gone back to the Commons a second time, the Commons ought to be able to resolve the matter by a simple resolution, unless it was a proposal to extend the life of Parliament. That, we felt, should continue as at present. The report, with those being the principal recommendations—not the only ones—received the approval of the Peers on this side of the House at their usual meeting.

I come finally to the question of referenda. The referendum, like most things, is all right if it is used with a bit of moderation and a bit of care. I believe we were right in using referenda in the case of the EEC and as regards devolution for England, Scotland and Wales. I believe that referenda should be restricted to those constitutional changes where the parties are not in agreement. I am in favour of that because I do not want a constitutional change to be hidden in a manifesto among all the normal day-to-day policy issues which are under consideration. I will therefore support this Bill and I know of no good reason and no formal statement by the party of which I am a member which would prevent any of my colleagues following me into the Division Lobby in support of the Bill; and I hope they will do so.