HL Deb 27 April 1999 vol 600 cc150-225

3.6 p.m.

The Lord Privy Seal (Baroness Jay of Paddington)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee. —(Baroness Jay of Paddington.)

Lord Rodgers of Quarry Bank

My Lords, before the House takes a view on the resolution before it, I raise a procedural point and seek the guidance of the noble Baroness the Leader of the House. There appears on the revised second Marshalled List today an amendment which is now numbered 10A in the name of the noble Lord, Lord Strathclyde, and others. Inevitably as it is first on the list it will take proper precedence in our debate.

However, a recent first report of the Procedure Committee set down a method of looking at amendments which I believe met with the acceptance of the House as a whole. Indeed I believe the noble Lord was party, as a member of the Procedure Committee, to that recommendation. It referred to Marshalled Lists of amendments published on the working day before a debate. It stated, Lords should be encouraged to facilitate this by tabling amendments no later than 5 pm two days before the debate, whenever possible". This amendment was clearly not tabled two days before the debate and therefore we have to consider whether the words "whenever possible" might apply. I am sure that the noble Lord, Lord Strathclyde, would agree that there were no extenuating circumstances. The amendment standing in his name and those of other noble Lords is only part of our general debate. It does not even arise with regard to matters which will be discussed at the Committee stage next week.

We need a degree of latitude in matters of this kind. I believe this is in clear breach of the spirit of the recommendation of the Procedure Committee. I ask the noble Baroness the Leader of the House—and perhaps, through her, the noble Lord, Lord Strathclyde—whether we are to regard this as a precedent for the way in which we are to proceed on the Bill, because it will not help the orderly conduct of affairs.

Lord Strathclyde

My Lords, I am indebted to the noble Lord, Lord Rodgers of Quarry Bank. He asked whether it was in order to put down the amendment that I have tabled. I believe it is and I would very much appreciate the confirmation of the noble Baroness the Leader of the House on that point.

Baroness Jay of Paddington

My Lords, I agree that the matter is formally within the letter of the law as regards the procedure of the House. However, I believe the noble Lord, Lord Rodgers, is correct in saying that it is not within the spirit of the understanding that we have of the report of the Procedure Committee which was accepted by your Lordships earlier this year.

Lord Strathclyde

My Lords, I wonder whether the noble Baroness will take some time later this afternoon to re-examine what she has said. I am not at all aware that it is against the spirit of the report of the Procedure Committee. I am under the impression that it is perfectly in order to table the amendment as we have done. Indeed, in the report of the Procedure Committee there is a system whereby amendments tabled late would be printed on a separate piece of paper. If the noble Baroness would confirm that that is her understanding, perhaps we can carry on with the Committee stage.

Lord Rodgers of Quarry Bank

My Lords, before the noble Baroness replies, I think that the noble Lord, Lord Strathclyde, has got it slightly wrong. He does not have the Procedure Committee report in front of him. I thought that he would be pleased that the amendment was published in the Marshalled List. As the noble Baroness said, the resolution which has been agreed by the House states that it should be published in a revised Marshalled List or in a supplementary list. There is no argument about that. It is to the advantage of the noble Lord and to the advantage of the whole House. The real question is whether the recommendation of the Procedure Committee means what it says. There can be no doubt at all that the noble Lord, Lord Strathclyde, has acted outside the spirit of the matter. I do not intend to pursue it further; I do not want to delay the debate on the main issue. I only hope that the noble Lord, Lord Strathclyde, does not do it again.

Lord Campbell of Alloway

My Lords, this is an amendment of overriding consequence, notwithstanding what the noble Lord, Lord Rodgers of Quarry Bank, has said to the contrary. It is concerned with what could conceivably be a fundamental defect in the drafting of Clause 1 of the Bill. In these exceptional circumstances, as I see it at all events, it is right that it should take place before Clause 1 because it is a wholly exceptional circumstance. If it has arrived late, that is nothing to do with me; it has arrived late.

Baroness Jay of Paddington

My Lords, I am sure the substance of the question of whether the amendment is relevant to the underlying purpose of the Bill will be the subject of the debate, which I hope we can proceed to. I would say to the noble Lord, Lord Campbell of Alloway, that if the amendment was so obvious and so fundamental it is surprising that it was tabled so late. As to the spirit of the understandings which were agreed with the Procedure Committee, I think—I do not have the advantage of the noble Lord, Lord Rodgers, of having the report in front of me—the words were that the practice is to be discouraged. I am in the hands of the House about whether to discourage this practice, but I think it was agreed that discouraging the late setting of amendments was precisely to facilitate the arrangements for every Member of the House on all sides.

Lord Strathclyde

My Lords, I cannot accept this. I was present in the Procedure Committee which discussed this. It was quite clear that it was intended that on occasions amendments would be tabled late according to what I might term the old rules. If that had not been the case I would not have agreed to the report of the Procedure Committee. If the noble Lord, Lord Rodgers of Quarry Bank, is saying that there should be a further examination by the Procedure Committee, there is a perfectly good system to allow that discussion to take place.

On Question, Motion agreed to.

House in Committee accordingly.


3.15 p.m.

Lord Mackay of Ardbrecknish moved Amendment No.10A:

Before Clause 1, insert the following new clause—

EXCLUSION OF HEREDITARY PEERS (". No-one shall receive a writ of summons to attend the House of Lords by virtue of an hereditary peerage. ")

The noble Lord said: Before I turn to the amendment, perhaps I may say to the noble Lord, Lord Rodger of Earlsferry, that he should thank his lucky stars

Noble Lords

Lord Rodgers of Quarry Bank!

Lord Mackay of Ardbrecknish

I am sorry. I meant Lord Rodgers of Quarry Bank. Such a distinguished colleague as my noble and learned friend Lord Rodger of Earlsferry would not have asked such a question. The noble Lord, Lord Rodgers of Quarry Bank, should be grateful that I did not produce a manuscript amendment.

As my noble friend Lord Campbell of Alloway has just said, the object of the amendment is to probe a very important part of the Bill and to seek the Government's view as a result of an opinion given by Mr. John Lofthouse. As your Lordships know, I am the only member of the "Triplets Mackay" who is not a lawyer, and therefore the amendment is very much a lay amendment. The clause is very much a lay clause because it does not address the peerage in a technically precise way. As it stands in the Bill, the clause hangs on the three words "by virtue of', which my noble friend Lord Ferrers will raise and probe later.

How is it that we—all of us, life Peers and hereditary Peers—come to be sitting in your Lordships' House? I suggest and submit that it is in response to a Writ of Summons. Once we come here, all of us, apart from the right reverend Prelates, have the right to stay here for life. Whether hereditary Peers or life Peers, we are here because of a Writ of Summons. An hereditary Peer does not sit in your Lordships' House by virtue of being an hereditary Peer. There are some 70 holders of hereditary Peerages who cannot be here today because they have no Writ of Summons. A number of my noble friends—my noble friend Lord Caithness is one—inherited their Peerages before they were 21 years old. They could not come here; they did not receive a Writ of Summons. That is one example. A Peer who is bankrupt cannot receive a Writ of Summons to come here. A Peer whose father dies cannot walk in here and demand to take his seat if he does not have a Writ of Summons. Every time someone comes to take the Oath, whether at the beginning of a Session or as happened earlier today, a piece of paper is handed to the Clerk; and that piece of paper is the Writ of Summons. It is not the hereditary Peerage but the Writ of Summons that is important.

The terminology in legislation is vitally important. Perhaps I may illustrate it in this way. English, Scottish and Welsh people are all entitled to be Members of the House of Commons. But let us say—it does not look very likely from the opinion polls in Scotland at the moment—that Scotland were to become independent and one wished to exclude Scots from this Parliament—present company, the Lord Chancellor and myself excluded, I need hardly say. How would one go about it? One might put forward a late piece of legislation that said "No one shall be a Member of the House of Commons by virtue of being a Scot". Would that exclude Scots from the House of Commons? Clearly it would not. It would not be enough for the Government to say "Ah, but that is what we intended". If that is what is intended then that is what should be on the face of the Bill.

The amendment is a simple, layman's proposition but it is based on the opinion of one of the leading practitioners of peerage law in our country, Mr John Lofthouse, whose opinion on such matters has been sought by the Government in the past. His opinion is perfectly clear. He says: nobody is a 'member of the House of Lords' by virtue of an hereditary peerage. Membership of the House is conferred by obedience to a writ of summons"'. He goes on to say that that is no mere technicality. He reminds us of the leading case on this matter—it may have been some time ago, but it is still the leading case—the case of the Earl of Bristol. He was a hereditary Peer but Charles I refused him a Writ—I suspect that Charles I did not want him to sit in your Lordships' House—and because he had been refused a Writ he could not sit in your Lordships' House. It was only after he had contested the issue and had received a Writ of Summons that he was able to sit in your Lordships' House.

Clause 1 does not seem to be the whole, or even part, of the answer when it comes to excluding hereditary Peers from this place. It may seem strange, but I am trying to help the Government in this regard. It is part of your Lordships' role to revise legislation and to ensure that it means what it says. Whether one agrees with what it says is another matter, but it should certainly mean what it says.

The Government may ask: does not subsection (4) of Clause 2 override the writ, even if the argument about Clause 1 is correct? I do not know the answer. As I said, I am not a lawyer. But it is a question worth asking. We all look forward to hearing the answers to these points from the noble and learned Lord the Lord Chancellor.

There are those who say that the writ is merely a summons; that, once the writ has been answered and a Peer has come to this House, it cannot be used as a means to eject a Peer. It is argued that a Peer who has taken the Oath sits in this House as of right, and that Clause 4(2) does not remove that right.

This legislation will set aside centuries of constitutional practice and precedent. It purports to set aside the rights, duties and privileges of Peers of Parliament summoned here by Royal Command. Those are rights to which human rights legislation, notwithstanding the declaration made by the Government in the Bill, may well apply, because there are legal rights and duties. Also, as noble Lords on all sides of the House have freely admitted, sacrifices have been made by many Peers to come to this place and do their duty in the expectation that they would sit here for the rest of their life. Can those rights and duties be readily and loosely overridden? I do not dispute that Parliament can do that. But in this age of human rights and natural justice, we must be careful about how Parliament does it.

The Government may say that the purpose of the legislation is clear. They may say: "It does not matter whether we have got all the small print right; it is what we wanted to do that must guide the courts"—as it were, a Pepper v. Hart view of legislation. That may well be right. But it seems slightly akin to someone deciding to ban a ball game: let us say, cricket. We Scots sometimes think that cricket probably should be banned. If we set out to ban cricket, and did so on the definition of a ball that did not in fact "catch" a cricket ball, although it may have caught other balls, where would that leave us? We may be able to argue: "Yes, of course we are against cricket. We did not specify that it had to be a hard leather ball that we wanted to ban; we just specified balls"—

Noble Lords


Lord Mackay of Ardbrecknish

I did not mean that!

If one is going to do something specific, one really ought to draft the legislation to do that, and not to leave anyone in any doubt. Leaving people in doubt may have been good enough at one time, but it is not good enough now. I certainly think that one of the roles of this House is to ensure that people are not left in any doubt, that there is not a potential legal challenge. There can always be potential legal challenges, but we have a duty to try to ensure that we have covered all eventualities so that a legal challenge does not arise that was foreseen during the course of the Bill's passage. So we must examine this matter carefully.

Over time, this House has made clear its view that the law ought to be clearly made, so that political matters and judgment matters of a political nature are not left to the courts if that can possibly be avoided. Mr. Lofthouse's opinion, as will some of the views that we shall probably hear later in this debate, casts doubts on the drafting of the Bill. It suggests that the Bill may not actually achieve the Government's objective. I humbly submit that my amendment might better achieve that objective, without making any judgment as to whether or not I like it. I look forward to hearing the remarks of the noble and learned Lord the Lord Chancellor—

Lord Richard

Before the noble Lord sits down, in view of the distinguished names that appear on this amendment—the quartet that we see is a very official one on behalf of the Opposition—can we take it that it is now the policy of Her Majesty's Opposition that no one shall receive a Writ of Summons to attend the House of Lords by virtue of an hereditary peerage, or is this merely a drafting nonsense?

Lord Mackay of Ardbrecknish

I thought I had made that clear, even to the noble Lord, Lord Richard. As I have said, this House often tidies up, tries to improve and probes legislation of which it does not approve. When we were in government the Opposition, led by the noble Lord, did that on a number of occasions on propositions of which they heartily disapproved. It stopped them tabling probing amendments, clarifying amendments, to ensure that the legislation meant exactly what it said. That is exactly what I am doing. I am trying to ensure that we take the view of a proper revising Chamber and ensure that the legislation means what it says. We shall discuss whether we like what it says later.

Lord Peston

It looks as though we are playing a peculiar game here. My noble friend Lord Richard deserved a straight answer. Let us assume, hypothetically, that by some miracle your Lordships, even without my noble and learned friend the Lord Chancellor rising to reply, agreed the amendment. The Bill would then include an amendment proposed by official Opposition spokesmen stating categorically that hereditary Peers would no longer receive Writs of Summons. Can we then assume—since I cannot believe that the noble Lord, Lord Mackay of Ardbrecknish, would play games with us—that through the rest of the Bill's passage, having got their own way in amending the Bill, seriously as they think, the Opposition would then nod through the whole of the rest of the Bill having improved it beyond all measure? Or shall we continue day after day playing these ludicrous games?

Lord Mackay of Ardbrecknish

I never thought to ask the noble Lord the same kind of question when he tabled amendments to Bills that I was proposing when I knew that he did not approve of the Bill in total. It still did not prevent the noble Lord and his friends from tabling amendments, not wrecking amendments but probing amendments. I have tabled this amendment because I believe it is our duty to explore how the Bill operates, whether it is correctly drafted and how it works. I thought that I made our views perfectly clear at Second Reading.

Lord Elton

Before my noble friend sits down, will he confirm that it would be entirely wrong of this Front Bench or this House to allow a Bill to go forward knowing that it could not have the intended effect, and it therefore has a duty to probe this question; and that that is not a commitment to any policy except that of seeing that legislation works?

Lord Mackay of Ardbrecknish

I am grateful to my noble friend, who has had long experience. He has played a distinguished role, both in and out of government, in ensuring that legislation is questioned and properly drafted. He is absolutely right. I beg to move.

Lord Mayhew of Twysden

Perhaps I may trouble the Committee briefly in support of the purpose for which my noble friend declares he has proposed the new clause. I wonder whether it would not be prudent for the Government to take seriously the anxieties expressed by my noble friend, and to consider whether there may not be another means by which their declared objective can be achieved.

We are not talking about the merits of the Government's policy or what we feel about it. It can be easily described. It is to turn the hereditary Peers out of Parliament, and to do so at the end of this Session. What we are talking about is whether or not the language chosen to effect that policy actually does the job.

Like my noble friend, I feel a certain sense of paradox in seeming to attempt to help the Government to do their job. But I have always understood it to be central to the functions of this House that it pays careful attention to the quality of the legislation that is brought before it. I ask the noble and learned Lord the Lord Chancellor whether he is satisfied with the language that has been adopted in the Bill, or whether he thinks that it may be the case that different language would yield a more sure result.

As I have said, there is no difficulty in stating the Government's policy clearly. The trouble arises in their determination to use the concept of a Member of the House of Lords being a Member by virtue of a hereditary peerage; and by declaring in Clause 4(2) that the Writ of Summons of such a person shall not have effect after this Session. That is the problem that confronts us. Does the noble and learned Lord the Lord Chancellor agree that any Bill which purports to remove a component of Parliament—to eject part of Parliament—has to be expressed in crystal-clear language? I say that because it will be examined very closely and construed very tightly by any tribunal—it will probably be the Committee for Privileges—that is called upon to resolve the challenge.

Is there not a real argument that it is not until a Peer has received and obeyed a Writ of Summons and taken the Oath or affirmed that he or she becomes a Peer who is a Member of your Lordships' House? Is there not a real argument to that effect? Can it realistically be said that a Peer is a Member of the House of Lords when he or she cannot perform the function and duty of sitting and voting here because there has been no Writ of Summons? Is such a person's position not this: that he holds a peerage certainly, whether hereditary or life, but he is not a Member of the House of Lords?

This would not matter if the Bill did not proceed on the basis that it is using the nomenclature or title of, a member of the House of Lords". I ask in passing whether that has ever been construed judicially and whether it has ever been defined. It is not defined in the Bill. What definition do the Government give? If my suggestion is right, in plain language surely it is by virtue of the Writ and obedience to the Writ that a hereditary Peer becomes a Member of the House of Lords and not by virtue of his hereditary Peerage. I do not know whether that argument is right; I do not know whether that argument is wrong; but I believe that it has substance and that it needs both a convinced and a convincing answer.

Much more important than my own views on the subject are the views of Mr. Lofthouse, a Treasury Counsel in peerage matters and someone of great experience and standing, who was referred to by my noble friend Lord Mackay. Is it not the case that Mr. Lofthouse, in his opinion, which I know the Lord Chancellor has seen, cites much House of Lords authority? Given these rather unsatisfactory and certainly unusual circumstances, would it not be wise for the Government to reflect that there are more ways available to them of skinning this cat? I suggest that the new clause is one of them—or at least it is part of one of them—because it reflects the primacy of the Writ of Summons by stopping any hereditary Peer from sitting and voting here because he will not have received a Writ of Summons. No doubt other forms of words could be found to achieve the same result.

The Government believe that their purpose of turning out hereditaries at the end of this Session is achieved, however curiously in point of form, when one reaches the commencement clause, Clause 4(2), which reads as follows: Accordingly. any writ of summons issued for the present Parliament in right of a hereditary peerage shall not have effect after that Session". But again I ask the Lord Chancellor: does that language itself not have problems for the Government? Can it not be argued with some substance that a Writ of Summons is spent once we attend in obedience to it, hand it over and take the Oath? I understand, although I have not checked up on this, that to mark the fact that it is spent, a line is struck through it by the Clerk. It has no continuing effect once we have obeyed the command which it embodies to attend in your Lordships' House. So it rather looks as if the current language in the Bill, although it will not be wholly ineffective, will catch only those hereditary Peers who have failed by the end of this Session to turn up, to obey a Writ of Summons. It will catch, if I may say so, the backwoodsmen, but only the backwoodsmen.

It could be said that that is perhaps not a bad thing; if you happen to take that view, although it is immaterial whether you do or you do not. But whether it is a good thing or a bad thing, it is not the Government's thing. I suggest that this language will lead to many a challenge in the Committee for Privileges with which the Lord Chancellor, among others, would have to deal. Apart from anything else, there is an interest in making sure that the Bill is as clear as it can be.

I have had the advantage of seeing the letter which the Lord Chancellor kindly sent to my noble friend Lord Strathclyde. Rather interestingly, the Lord Chancellor said in his letter that parliamentary counsel considered alternative approaches, including operating directly on the Writ of Summons in Clause 1, which this new clause precisely does. However, he said that the main reason for not doing so was the wish to get at the heart of the matter. That is all well and good, but where does the heart of the matter lie? It seems seriously possible, I suggest with great respect, that it lies not in the holding of a hereditary Peerage but in the receipt of and obedience to a Writ of Summons.

There are certainly other ways in which the declared intention of Clause 1 and Clause 4(2) could be more reliably achieved. The language might not be so sonorous; it might not be so welcome or agreeable to certain partisan eyes and ears; but it would very probably be better law. I trust that the Government will think again.

Lord Hooson

Has the noble and learned Lord the Lord Chancellor considered accepting this amendment? If the Conservative Opposition and the learned counsel whom they quoted are correct, all that is needed to achieve the ends the Government have in mind is an acceptance of the amendment. If the amendment is accepted—it may well have the effect which the Conservative opposition claimed for it—it seems to me that none of the rest of the Bill is necessary. I cannot see that Clause 4(2) would be necessary if the amendment were accepted. I wonder whether the noble and learned Lord has considered that point.

Lord Campbell of Alloway

I wish to make a truly short intervention. I am sure that the noble and learned Lord the Lord Chancellor will know that it is settled peerage law and not merely arguable that it is attendance to the Writ that gives the right to sit and the right of membership. It is nothing to do with heredity.

I have had the honour of serving for quite some time—about 15 years—on your Lordships' Committee for Privileges. If one wants to get to the heart of the matter—I totally accept the sincerity of the noble and learned Lord as to that—the heart of the matter according to peerage law is the Writ of Summons and attendance pursuant to that Writ, which not only confers the right to sit but the right of precedence over previous or other Peers who have received a Writ of Summons but have not attended. It is attendance before the House which confers precedence among the Peers of equal rank and the right to sit in your Lordships' House.

Lord Waddington

I hope that the noble and learned Lord the Lord Chancellor will address the point raised by the noble Lord, Lord Hooson. The noble Lord suggested that if the Bill were amended in the way which is suggested in Amendment No.10A, the effect would be the same as that which the Lord Chancellor thinks that he has achieved by the present wording. I wonder whether that is strictly correct. A good deal must turn on the point raised by my noble and learned friend Lord Mayhew of Twysden. A good deal must turn on the effect of the tendering of the Writ by the Peer when he comes to the Box to take the Oath. I recall that when I was elected a Member of the House of Commons I had to turn up at the beginning of a Parliament and hand in my Writ. The handing in of my Writ was, as it were, my ticket for entry into the House of Commons for that Parliament. I did not have to carry it in my breast pocket and produce it every time I wanted to speak thereafter. The Writ was, in effect, spent when I tendered it at the beginning of a Parliament. I am fairly sure that that is its effect in the other place.

Lord Stoddart of Swindon

Perhaps I may intervene. As a former Member of the House of Commons, I cannot recall ever having received a personal Writ of Summons or handing it in. The Writ of Summons goes to the returning officer who then returns it. That is why he is called a returning officer.

Lord Waddington

Perhaps I am mindful of the time when I was a candidate in a by-election. I can assure the noble Lord that I had to carry the Writ into the Chamber. At the beginning of a new Parliament, the procedure is simplified and all the various returning officers send in the Writs, but it has exactly the same effect. I carried with me into the Chamber my own Writ, which was my ticket that entitled me to sit in the House of Commons for the remainder of that Parliament. I suspect that the same happens to the Writ tendered by a Peer when he comes to take the Oath in this Chamber. Perhaps the noble and learned Lord the Lord Chancellor will give his view on that. I believe that the Peer hands in his Writ which is his ticket to sit and speak in the House of Lords. The Writ is then spent and has no further effect.

If that is the way matters work in law, perhaps the noble Lord, Lord Hooson, is not quite correct in saying that the amendment would have the same effect as that intended by the Lord Chancellor. The effect of the amendment may well be that from this time onwards those who come to the Box with a Writ and ask for permission to sit in this House will be refused, but those who have already tendered their Writ and been accepted as Members of this House will retain that right for the rest of the Parliament. These are very important matters to which the noble and learned Lord the Lord Chancellor must address his mind. When he comes to sum up the debate, I should like the Lord Chancellor to give his understanding of the effect of the Writ. Does he agree that once the Writ is submitted its effect is spent?

3.45 p.m.

Lord Jauncey of Tullichettle

Perhaps I may remind the Committee of the words of Lord Cranworth, the Lord Chancellor in the Wensleydale peerage case in the last century: That which gives every noble Lord his right to sit here is not his Patent of Nobility, but the Writ of Summons which he is entitled to, in consequence of that Patent". I agree with the noble and learned Lord, Lord Mayhew, that at the very least there is doubt as to whether Clause 4(2) is effective in as much as the Writ may or may not still be alive after it has been presented and the holder of it has sat in Parliament.

Lord Mishcon

I apologise in advance for being quite wicked. I believe that I and my colleagues now know why this amendment was tabled at the last minute. Perhaps I may be forgiven for my suspicion that there was a strong minority in the party opposite who said that they must not make fools of themselves by tabling an amendment of this kind because of the result pointed out by my noble friend Lord Richard and others; namely, that they would go on record as being in favour of the amendment so tabled. Having said that, I congratulate the minority opposite who said that and deprecate for their sake the decision to table the amendment, which was reached at the last moment.

I turn to the amendment and the present wording of the Bill. In this debate we are speaking at the very time when, after centuries, writs of summons have ceased to be issued in the Royal Courts of Justice. I say very proudly that the first of the new substitutes for writs of summons was issued by my firm. My firm has now gone on historic record not for the number of negligence cases brought against it, but because it issued the first notice of claim to be handed to the senior master.

Having given that puff, in the same manner in which those writs of summons have been abolished, Writs of Summons to your Lordships' House may be abolished. What nonsense this amendment would bring about in not carrying out its purpose. No Writ of Summons, notice of hearing or whatever it may be would be required for attendance in this House. We have limited ourselves by this amendment to the issue of a Writ of Summons. If there is any change in that procedure we have had it, to use a colloquialism. The wording of the Bill before us makes it transparently clear that whatever procedure may be adopted, hereditary Peers will not by virtue of that fact become Members of your Lordships' House and be entitled to speak and vote.

Earl Ferrers

The noble Lord, Lord Mishcon, says that he is "wicked". That is his word; I would not have used that word. Sometimes he is mischievous, and I believe that he has been so this afternoon in explaining why the amendment was tabled. I believe that my noble friend has done a great service to the House and the Government. It is our purpose to look at what the Government are doing and, possibly, disagree with them, but also to help them.

The Bill at the moment does not carry water. It refers to a Peer being here by virtue of a hereditary peerage. However, as my noble and learned friend Lord Mayhew said, we are not here by virtue of an hereditary peerage but by virtue of a Writ of Summons. If this Bill passes into law unamended, it may well be that a Peer will contest the matter in a court of law. If the court found that he had a right to ask for and receive a Writ of Summons, the Government would look pretty stupid. We are trying to help the Government and to prevent them looking stupid, which is not an easy task. The fact is that we are here by virtue of a Writ of Summons, not a hereditary peerage.

Lord Mackie of Benshie

Does the noble Earl agree that such a person would not receive a Writ of Summons unless he was a hereditary Peer?

Earl Ferrers

The Bill states that no one shall attend the House of Lords by virtue of the fact that he is a hereditary Peer. Although I have not seen the letter written by the noble and learned Lord the Lord Chancellor, to which my noble and learned friend Lord Mayhew referred, it appears that parliamentary counsel had thought of using the Writ of Summons approach, but wanted to get to the heart of the matter.

What is the heart of the matter? To use the unfortunate phrase which the noble and learned Lord the Lord Advocate could not get his tongue round the other day, it is in order to get rid of the hereditary Peers. I can only say that it is a funny thing that, while the right honourable gentleman the Prime Minister is conducting a great fight against the Serbs in relation to ethnic cleansing, here at home he is carrying out a great fight in the House of Lords in relation to hereditary cleansing. In other words, "Get rid of hereditary Peers, whatever they are: good, bad or indifferent. Let us get rid of them all. "

That is pretty pungent stuff. If that is the reason why the Bill is written as it is, it would be interesting to know. I was disappointed that the noble Lord, Lord Richard, and the noble Lord, Lord Peston—and I was surprised that the noble Lord, Lord Hooson, joined in too—tried to make a monkey out of what is a perfectly genuine amendment which tries to help the Government avoid getting themselves into a position they would regret.

Lord Richard

I seem to remember a proverb from my schooldays about Greeks bearing gifts. There are not many Greeks in this Chamber but, if my Latin were good enough, I would try to re-translate it to, "Beware the Earls bearing gifts".

With great respect to the Opposition, it is a most extraordinary and rather fatuous position they are arguing. What is it? They have put down an amendment which on the face of it does exactly what the Government wish to do. They have done that not by way of an amendment to Clause 1, but by inserting a new clause which is clear and specific and which they say is unarguable; namely, that hereditary Peers should not receive a Writ of Summons to come and serve in your Lordships' House. The amendment is not tabled by one of their lawyers in an attempt to tidy up the drafting; not a bit of it. It stands in the name of the Leader of the Opposition, two Mackays and the legal spokesman for the Opposition, Lord Kingsland. Yet, in reply to my perfectly simple question, "does it represent the view of the Opposition, I am told, "Of course it does not. It is merely an attempt to assist the Government to make sure they get it absolutely right."

If the Opposition are opposed to the Bill, I would have thought that the result they might have wished was one in which the Bill was not totally clear; one in which there could be a recourse to the courts. Indeed, if the Opposition mean what they say about opposing the Bill—root and branch, I think someone said at one stage—a situation in which it was capable of being overturned by the courts is one I would have thought the Opposition would grasp with both hands.

With great respect to those sitting opposite, I do not think that they mean what they say. I do not believe that they are in business to assist the Government. If, therefore, the amendment does not reflect the official position of the Conservative Party and if the Opposition do not mean that which is contained within it they should not have proposed it.

Viscount Cranborne

I find myself in rather a distressed state after listening to the noble Lord, Lord Richard. I thought that we had established an agreeable double act in your Lordships' House in recent weeks in which we would be able to fly over both Front Benches and agree, in a sort of moueing fashion with each other, on virtually everything to do with reform of your Lordships' House. However, having listened to the noble Lord's as usual eloquently expressed strictures, I find myself profoundly in disagreement with what he had to say. It is important that those among your Lordships who, like me, are not lawyers should intervene in lawyers' disputes. It is in the best traditions of Parliament that non-lawyers should contribute.

Listening to the Government and their supporters, I must confess to a degree of astonishment at the line they taken. It sounds increasingly an Alice-in-Wonderland sort of proposition. It does not matter what the legislation actually says, "it means what I says it means". Humpty Dumpty. I thought that we still preserved, in this Parliament at least a respect for the details of legislation.

I recall, on the first day of the Committee stage, a number of us were reproved by the Government Front Bench for making what were considered to be Second Reading speeches. The implication of that criticism is that in Committee your Lordships concentrate on what your Lordships do so well, which is to consider the detail of the legislation. If we are to consider the detail of the legislation, which is something that the Government are encouraging us to do, I suspect that the way we do so is by concentrating on the meaning of the language.

For the Government Benches therefore—led by the noble Lord, Lord Mishcon, and the noble Lord, Lord Richard—suddenly to say to your Lordships that it does not particularly matter what is said in the detail of the Bill and so long as the Government's ultimate intentions are made clear we can rely on the courts to put it right is an abnegation of the true purpose of Parliament and of legislation in the first place. I am sure that one moment's thought on the part of both noble Lords, who in their own respective ways are not only experienced parliamentarians but also very distinguished lawyers, would convince them—without any help from me—that, with the greatest respect, they really are talking nonsense.

I am not a lawyer, but I am very well aware of the reason why I sit in your Lordships' House. I sit here not because I am a hereditary Peer. I am not. I sit here by virtue of an extraordinarily arcane device which has occasioned a good deal of ribaldry, not least among a number of your Lordships opposite but also, dare I say it, among the denizens of Grub Street. That arcane device, your Lordships will remember, is a Writ of Acceleration. The fact that I am allowed to sit and speak in your Lordships' House, as I understand it, is purely as a result of my being in receipt of that Writ.

Lord Barnett

There is something here which I find very hard to understand. The noble Lord receives a Writ of Summons. Can he tell us why he receives it?

Viscount Cranborne

If the noble Lord cares to look once again at the amendment proposed by my noble friends on the Opposition Front Bench, I think he will see that the implied point he makes has been taken aboard in the drafting. It is always a pleasure to be barracked by the noble Lord, Lord Barnett. Indeed, I am barracked very frequently by the noble Lord not only in your Lordships' Chamber but also in the corridors. If I may say so, it is one of the things that draws me back like a magnet to your Lordships' House. Perhaps the noble Lord will allow me to make my point in my own way.

In the drafting of their amendment my noble friends have said, as no doubt the noble Lord has noticed, that no one shall receive a Writ of Summons to attend the House of Lords by virtue of a hereditary peerage. It is implied by the noble Lord that my connection with the hereditary peerage is what enables me to receive the Writ of Summons. That is indeed so. But it is no more, I submit to your Lordships and to the noble Lord in particular, than what my noble friends are saying. What they suggest in the amendment is that Writs of Summons are at the moment issued to members of the hereditary peerage by virtue of their having a hereditary peerage.

With the greatest respect to the noble and learned Lord the Lord Chancellor, who, I understand, is the only begetter of this particular piece of legislation, and no doubt because of the hurry in which it was drafted, he perhaps swallowed a word or two when he came to consulting parliamentary counsel on the drafting of stage one. If we are here by virtue of a hereditary peerage, I submit that Clause 1 as drafted is no more than a statement of the existing position. It does not change it one whit. If, on the other hand, we believe that legislation should say what it actually means rather than what the government of the day suggest it should mean—it would be an extremely dangerous road to do down despite Pepper v. Hart, and so on—it would be more sensible to incorporate the reality in Clause 1.

The other argument deployed by the noble Lord, Lord Richard, not only in his remarks today but in previous interventions, seems to me remarkable. If I understand the noble Lord correctly, he is saying that however one drafts it the effect is the same: hereditary Peers will no longer be allowed to sit. That is the Government's intention: we all accept that. Equally, the noble Lord has asked: is it not somewhat odd for the Opposition effectively to make a suggestion which makes legislation, with which we assume they disagree, work better? In putting forward that argument, the noble Lord is making an uncharacteristically partisan point. He has been a most distinguished leader of your Lordships' House, and indeed leader of the Opposition. During the course of my extremely agreeable association with the noble Lord in both those incarnations, I felt it was clear that the noble Lord understood that there was a difference between party politics and the constitutional role of your Lordships' House. It seems to me that a clarity of view of that distinction has distinguished your Lordships' House and its Members rather more than it has Members of another place. Your Lordships are well able to distinguish between a view about the desirability of a policy, whether or not a party policy, and whether the legislation is drafted in such a way as to deliver a government policy, desirable or not, in the most effective way.

For the noble Lord, Lord Richard, to say, that by implication the measure as drafted may not be satisfactory but at least it can be sorted out in the courts seems to be accepting a surrender of the proper role of Committee stage in a parliamentary process which is breathtaking—and certainly breathtaking coming from someone of his distinction.

I think that the noble and learned Lord the Lord Chancellor could help us a great deal if he were able to say that he agrees that a number of us sit here because we are connected with, or are, hereditary Peers; but we have the right to sit here because we have received a Writ. If the Government wish to abolish the right of hereditary Peers to sit here, perhaps the legislation which brings that desire into effect should reflect the mechanism which brings that about rather than the general practice, with the Government saying, "It may not be accurate, but you know what I mean, and that is good enough".

4 p.m.

Lord Goodhart

I read earlier today Mr. Lofthouse's opinion. It is an incredibly learned opinion and I am persuaded that he is correct in saying that membership of your Lordships' House results not from a peerage alone but from that coupled with a Writ of Summons. Mr. Lofthouse concludes from that that the Bill probably fails to achieve what we all know is its purpose.

In the best tradition of the Bar, the opinion leads by a process of impeccable logic from a correct premise to a wholly fantastic conclusion: that the Bill applies only to hereditary Peers who have not yet: taken their seat during this present Parliament. Mr. Lofthouse's opinion wholly fails to see the wood for the trees. The fact is that we all know what the Bill means. The Conservatives know it as well as anyone else in your Lordships' House. It is of course true that one can never be quite sure that judges will know what is common knowledge to everyone else, but I believe that even the most remote and learned judge—there are not so many of them around as there used to be—would have no difficulty in deciding that this Bill, if passed as it stands, removes the right of hereditary Peers to sit and vote in your Lordships' House.

The noble Lord, Lord Richard, refers to the phrase, "beware Greeks bearing gifts". He should have taken into account the fact that in legal debates classical allusions have been forbidden by the noble and learned Lord, Lord Woolf. However, I suggest that this debate is not worthy of any further time of the Committee.

Lord Davies of Coity

Like the noble Lord, Lord Mackay, I am not a lawyer either. But if the amendment were carried it would shift the emphasis away from hereditary peerages to the Writ of Summons. The amendment states: No-one shall receive a writ of summons to attend the House of Lords by virtue of an hereditary peerage". If the amendment were passed, does it not mean that those who have already received Writs would remain here?

Lord Peston

Before my noble and learned friend replies, I wish to make two points. I agree with the noble Lord, Lord Mackay of Ardbrecknish, that many of us here are laymen. He is, and I am. We have to be careful about involvement in these issues. Despite my earlier acerbic remarks, I always accept the bona fides of the party opposite. Perhaps I may say to the noble Viscount, Lord Cranborne, that I stand second to no one in wishing Bills to be properly drafted.

There is an easy solution to these matters. There is at least one other expert person on whom we can rely here; namely, my noble and learned friend the Lord

Chancellor. I, for one, would like to hear his definitive response. I am tempted to think that it will be conclusive.

Lord Trefgarne

Perhaps I may assist a little by reference to my own experience. My late father died in 1960 when I was only 19 years of age. I succeeded to the title. I became Lord Trefgarne the very moment my father passed away. But I was not allowed at that point to sit in your Lordships' House. I had, first, to prove that I was indeed my father's son. That, happily, presented no difficulty. I received a letter from the then noble and learned Lord Chancellor saying that he was satisfied that I was who I was and that he would have authorised a Writ to have been issued had I been 21. So clearly I was a hereditary Peer at that point but not allowed to sit in your Lordships' House because I had not received a Writ of Summons and was not entitled to receive one at that age.

I think that that underlines the point which Mr. Lofthouse has made: that it is the Writ of Summons which gets us into the House, not just being a hereditary Peer. I therefore support the amendment proposed by my noble friend.

The Lord Chancellor (Lord Irvine of Lairg)

The noble Lord, Lord Mackay of Ardbrecknish, has confirmed that this amendment arises out of the opinion of a member of the Bar, Mr. John Lofthouse, dated 14th April 1999. I do not in any way desire to detract from Mr. Lofthouse's standing at the Bar. His learning in peerage law—and some peerage law is very ancient; it is a very arcane area of the law—is well acknowledged. But, just for the record, he is not a Queen's Counsel.

His opinion has been widely circulated. His basic contention is that the Bill in its present form will not be effective in excluding hereditary Peers from your Lordships' House. If that were right it would cause great concern to the Government. We should then be welcoming Mr. Lofthouse's opinion as a gift from the gods and setting parliamentary draftsmen to work to make the Bill effective.

No one is more grateful than me for all the assistance: that I receive from every and any quarter. Life is so difficult that I could not say otherwise. But 11 have considered Mr. Lofthouse's opinion with very great care and I am satisfied that the Bill is effective as it stands without the need for any amendment.

The issue is whether the courts would construe the Bill (when it passes) to give effect to its well known purpose. The judges, in common with everyone in the country, know what the Government's purpose and objective is. It is to remove the totality of the rights and duties which members of the hereditary peerage have in their capacity as Members of the House of Lords; and the courts would unquestionably construe the Act to give effect to its manifest and well known objective, which is that the totality of these rights and duties will be removed, without any exception at all, once the Act comes into force, in terms of the Bill as now expressed.

The Bill has great merit in that it is expressed in the plainest of plain English so that anyone can understand. Just as Clause 1 is admirably clear, so also are Clauses 4(1) and 4(2). Clause 4(1) provides, subject to the stated exceptions, that the Act, shall come into force at the end of the Session of Parliament in which it is passed". Clause 4(2) provides that, any writ of summons issued for the present Parliament … shall not have effect after that Session". Thus, Clause 4(2) provides that the consequence of Clause 1 and Clause 4(1) will be that, at the end of the Session of Parliament in which the Bill is passed, any Writ of Summons issued for the present Parliament in right of a hereditary peerage, shall thereupon become null and void in law. That, for the avoidance of any doubt at all—although I am confident that there is none—is the meaning the Government intend for the words in Clause 4(2), shall not have effect after that Session". The Government's objective in choosing the words in Clause 1, by virtue of a hereditary peerage", is, by the intended breadth of the words, to make it plain beyond any doubt that the Bill when it passes ends the membership of this House by any Member whose membership is in any way connected with, or related to, a hereditary peerage. My noble friend Lord Williams of Mostyn will make the same point when he comes to reply for the Government to Amendments Nos.19, 68 and 155, which are in the names of noble Earl, Lord Ferrers, and the noble Baroness, Lady Young.

Mr. Lofthouse's argument is that Clause 1 is ineffective as membership of the House of Lords is not "by virtue of a hereditary peerage", but "by obedience to a Writ of Summons". Obedience to a Writ of Summons, however, is the mechanism by which a seat is assumed, but it is not membership of the House of Lords itself. Clause 1 is intended without any qualification to preclude membership of the House of Lords by any person whose membership, if not so precluded, would be in any way connected with, or related to, any hereditary peerage.

I confidently advise your Lordships that that is what the Bill intends and means and that that is how the courts would construe it in order to give effect to its manifest and well known objective. For myself, I am clear that the purpose and objective of Clause 1 of the Bill is in no way ambiguous or obscure. But, lest the contrary view be subsequently argued in any court, or any court be minded to conclude that Clause 1 is in any respect whatever ambiguous or obscure, or lest that be argued pursuant to any Petition for Admission or Writ of Summons, let me say on behalf of the Government that for their part they regard the purpose and objective of Clause 1 to be precisely as I have just stated it to be.

I regard this amendment as having given me, on behalf of the Government, a useful opportunity to put to rest any misunderstanding about the straightforward purpose and objective which Clause 1 is intended to secure. On that basis, I invite the noble Lord to withdraw his amendment.

4.15 p.m.

Earl Ferrers

Before my noble friend replies, will the noble and learned Lord explain the issue a little further? Clause 4(2) states that, any writ of summons issued for the present Parliament in right of a hereditary peerage shall not have effect after that Session". However, the noble and learned Lord did not reply properly to the fact that a Writ of Summons invites a person to come here. Once he comes here, that Writ is expended and therefore it is not possible to halt the application of the Writ half-way through. If the noble and learned Lord wanted to travel from London to Edinburgh, bought a ticket and boarded the train, he would not think much of it if he were thrown out at Peterborough.

The noble and learned Lord did not address that issue. However, he did say—I found it alarming—that the courts will consider the Bill in the way that the Government want. He said that the Government "intend" this that and the other. Parliament intends and the courts will decide what Parliament itself has decided on.

The Lord Chancellor

With great respect to the noble Earl, Lord Ferrers, I believe that his final observation is not worthy of his general observations to this House; nor is it representative of him. I made it absolutely clear—I chose my language with deliberate care—when I said that the Government, for their part, regard the purpose and objective of Clause 1 to be precisely as I have just stated it to be. I repeat, "for their part". It is for the courts, of course, to construe this Act when it comes before them as the courts think right. Nothing that I said was intended to, or could, derogate from that.

Clause 4(2) will primarily bite upon a Peer who has received a Writ of Summons for the present Parliament, but has not taken his seat. In accordance with Clause 4(2), if the Bill passes in this Session, it will come into force at the end of the Session. Then the Writ of Summons not responded to will become null and void as a matter of law.

Lord Rees

Could the noble and learned Lord explain a particular point arising out of Clause 4(2)? To what degree and in what way is a Writ of Summons effective during the course of a Parliament in relation to a Peer who has accepted the Writ and taken his seat?

The Lord Chancellor

The effect of Clause 1 is that a Peer who has received a Writ of Summons and taken his seat ceases upon the Bill's coming into force to be entitled to be a Member of the House of Lords by virtue of a hereditary peerage.

The Earl of Dudley

I have some trepidation in taking on the noble and learned Lord the Lord Chancellor, but I do not believe that I am here by duty, inheritance or privilege, as he suggested; I believe that I am here by custom. I had been waiting for an eminent historian to make the point made by the noble Lord, Lord Goodhart, that for several centuries after Henry III called the first Parliament only a handful of Peers were summoned by Writ of the monarch to Parliament. They were generally those who were the monarch's choice. That prevailed until Tudor times. Indeed, it was not until Tudor times—when I think it was the responsibility of Thomas Cromwell, who wanted to pack Parliament in order to get through his statutes—that more hereditary Peers began to be called, and finally all hereditary Peers began to be summoned to Parliament by the monarch. So it is not a question of right or duty as a hereditary Peer; it is a question of custom.

There is a very strong point about this question of Writ of Summons; that if the Bill is directed towards the hereditary aspect of the peerage it may well, whatever the Lord Chancellor says, have a weakness, whereas if it is directed towards the Writ of Summons, it may be stronger and more cogent than at present.

The Lord Chancellor

In my opinion, the noble Earl, Lord Dudley, is in his seat by virtue of a hereditary peerage which inheres in him. The noble Viscount, Lord Cranborne, is here by virtue of a hereditary peerage which inheres in someone else—I believe his father. He was entitled to a Writ of Acceleration because of the good fortune that his distinguished father is entitled to many peerages. They were available to the noble Viscount when it was desired that he assume a seat in the House, and a Writ of Acceleration was available to him. The words, by virtue of a hereditary peerage", in Clause 1 embrace the position of both the noble Earl, Lord Dudley, and the noble Viscount, Lord Cranborne.

Earl Ferrers

May I ask the noble and learned Lord the Lord Chancellor—

Noble Lords


Earl Ferrers

I think I am entitled to do so. After all, my noble friend Lord Dudley said that he was frightened of asking the noble and learned Lord a question. I am not frightened of asking him a question, even if I am intellectually decapitated in the process.

The fact is that we are all hereditary Peers and life Peers—here by virtue of having received a Writ of Summons. If the Bill says, as the noble and learned Lord says it does, that as from a certain date hereditary Peers will have their Writ of Summons, as it were, removed from them—although for the reasons that have already been stated, that is impossible—how do the Government equate the fact that some Peers will have their Writs of Summons continued with the fact that some will have them truncated? Once that is done, do we not enter into the realms of hybridity?

Perhaps I may take the noble and learned Lord back to the Aircraft and Shipbuilding Industries Bill—the nationalisation Bill. He will not remember that, because he was too involved in what he described as the "fat-cat circuit", but I happened to be involved with the Bill when it was before the House. There was a row over it because it did not distinguish between those involved in ship-repairing and those involved in that business. So, some people were caught by the Bill and some were not. It was therefore hybrid. If the noble and learned Lord's premise is fulfilled and the Writ of Summons can be removed from some Peers but not from others, I respectfully suggest that that might put it into the realms of hybridity.

The Lord Chancellor

The noble Earl, Lord Ferrers, causes me to look back with gratitude and respect for the many years during which I was a member of the circuit which he chose to name in the way that he did. I readily acknowledge that the noble Earl is in no way afraid to ask me questions. I welcome them, and I am in no way afraid to answer them.

The point about Clause 4(2) is that it causes to be null and void Writs of Summons issued for the present Parliament in right of a hereditary peerage after the end of the session in which this Bill passes. Her Majesty has put her prerogative at the disposal of Parliament, and there is no question but that Clause 4(2) has the effect described.

Clause 1 precludes from membership of the House of Lords anyone who is a member by virtue of a hereditary peerage, who will by definition be here pursuant to the mechanism of a Writ of Summons.

Lord Glenarthur

As the noble and learned. Lord the Lord Chancellor failed to answer it, I wonder whether he would pick up the point made by the noble and learned Lord, Lord Jauncey, who referred to a judgment made some time in the last century which specifically seemed to imply, if I understood him correctly, that the Writ of Summons is paramount in this case, arid not the Letters Patent or anything else. The noble and learned Lord the Lord Chancellor has not answered that point at all.

The Lord Chancellor

I have no intention of getting; involved in arcane questions of peerage law. What the Bill does is to address the substance of the matter, which is membership of the House of Lords by virtue of a hereditary peerage, a concept which the ordinary man in the street and the judges will have no difficulty in construing.

Lord Glenarthur

The noble and learned Lord the Lord Chancellor makes that perfectly plain, but is it not a matter of fact that if this is looked at in more depth it is seen to be a matter more for the courts to interpret than he has said? He cannot ride roughshod over history in all this. The noble and learned Lord, Lord Jauncey, put a legitimate point which the noble and learned Lord the Lord Chancellor has manifestly failed to answer.

The Lord Chancellor

I have just answered it. The Bill will take effect, and will be construed by the courts, in accordance with its manifest intention and effect. We do not dictate to the courts. On the contrary, we hold them in the highest regard for their independence. But it is my duty from this Dispatch Box to state clearly and unequivocally what the Government's intention, purpose and objective is by reason of Clause 1.

Lord Campbell of Alloway

Put in a sentence, it repeals settled peerage law on this point. It annuls the previous peerage law as it exists.

The Lord Chancellor

I do not accept that. The background may be previous peerage law, but I must remind the noble Lord, Lord Campbell of Alloway, that in this matter Parliament is sovereign and our manifesto commitment is as clear and unequivocal as I believe the Bill to be.

Lord Trefgarne

It seems to me that the cat is now out of the bag. Whatever may be the view and, indeed, the wish of the noble and learned Lord the Lord Chancellor, it seems to me now inevitable that one or other of the 700 or so hereditary Peers who will be excluded from the House of Lords by the Bill, if it is passed in its present form, will go to a court to get his position reinstated. Can the noble and learned Lord the Lord Chancellor say whether that will be subject to legal aid?

The Lord Chancellor

I would hesitate to say that it would not be in the public interest for any such point to be tested in the courts, but I doubt whether anyone who might embark on such an exercise, which I confidently predict would be doomed to failure, would qualify for legal aid.

The Earl of Northesk

I too am not a lawyer, but I should like to put one point to the noble and learned Lord the Lord Chancellor. As a non-lawyer, I must of course respect his conviction of the purpose of the Bill, but in respect of the Lofthouse opinion, if there is any credibility in it whatsoever, would it not be the case that recourse would not necessarily operate under the court system, but would, according to Standing Orders and the precedent of the Earl of Bristol case, involve a direct petition to the Crown?

4.30 p.m.

The Lord Chancellor

I could embark on a learned disquisition on the many ways in which this issue may become justiciable but that would trespass upon the patience of the Committee. But wherever this matter falls for judicial determination, since Her Majesty has put her prerogative at the disposal of Parliament for the purposes of the Bill, my confident expectation would be, on any petition for admission or Writ of Summons, that the Crown, in the exercise of its prerogative, would follow the law.

The Earl of Caithness

Like my noble friend Lord Trefgarne, I was a hereditary Peer before I received a Writ of Summons. If my memory serves me right—and this is the point I ask the noble and learned Lord to clarify—unless I applied for a Writ of Summons within a set time frame I was prevented from applying for it in the future. Therefore, I could have remained a hereditary Peer but not had the Writ of Summons. Am I right about that or did I have to apply to become a hereditary Peer and apply within a certain timescale?

The Lord Chancellor

I cannot answer that point off the top of my head. But I should be very surprised if there were a time limit.

Lord Hughes

I may be asking an unnecessary question but I notice that a subsequent amendment, Amendment No.121, seeks to delete Clause 4(2). If Amendments Nos.10A and 121 went into the Bill, would that mean that all those hereditary Peers who presently have a Writ of Summons would remain until the end of this Parliament?

The Lord Chancellor

Perhaps we should address that matter when Amendment No.121 is arrived at.

Lord Mackay of Ardbrecknish

We have had an interesting debate. At the risk of crossing swords with the noble and learned Lord the Lord Chancellor, I do not believe that these are arcane points. They are important. Equally, I do not believe that government Ministers, certainly in the past, took the attitude, "Even if we are wrong, it does not matter. We will make the issue clear from a Pepper v. Hart point of view and the courts will know what we mean the legislation to do and not what it says it does. "

I make no apology for the amendment being brought before the Committee. The Government do not believe that it is necessary. That is fine. That is their view. It is your Lordships' right to question the detail of legislation and ask whether it does what the Government want it to do. I do not take the criticisms made earlier by some Government Back-Benchers that somehow or other that is an odd position for the Opposition to adopt. It has been the position not only of oppositions but also of Members on all sides to probe the Government and ask whether they have a clause or part of a Bill absolutely correct. We may not agree about the principles or objectives, but what is said on the face of the Bill should be totally consistent with what the Government want.

We all know what the Government want. At one stage, I wondered whether the Government should introduce a Bill which says, "The law will be whatever it says in the manifesto. " I congratulate the noble and learned Lord the Lord Chancellor for not introducing the manifesto.

Noble Lords

He did; he did.

Lord Mackay of Ardbrecknish

Oh, did he? I am sorry. I must have been too busy trying to write a note about something he said previously. I do not know whether the manifesto is a document which will hold up in court. I think possibly not.

First, I should apologise for calling Mr. John Lofthouse a QC. I understand that in legal circles such matters are extremely important. I do not know about that; it is what I am told.

I am not sure what the noble Lord, Lord Goodhart, brought to the party, so to speak, apart from—I hope I recorded it accurately—the tradition of the Bar writing a note which leads from a correct premise to a wholly fantastic conclusion. I am not in a position to argue about that. The noble Lord will know all about it. I wonder whether his clients know that that is in the tradition of the Bar.

Lord Goodhart

I have written many such opinions myself.

Lord Mackay of Ardbrecknish

Far be it from me to make any further comment. Our proposed new clause and Clause 4(2) work together. I find it odd that in Clause I the Government do not mention a Writ of Summons and yet in Clause 4(2) they home in on the Writ of Summons. From a layman's point of view, which I realise will fall far below the standards of the parliamentary draftsman, it seems to me that instead of bringing in the Writ of Summons Clause 4(2) could simply provide that anyone who claims membership of the House of Lords by virtue of a hereditary peerage shall not be a Member after that Session. Why is the Writ of Summons brought in in Clause 4(2) and yet it is not felt necessary to bring it in at the beginning? It seems to me that the noble and learned Lord the Lord Chancellor did not answer that question.

As my noble friend Lord Glenarthur pointed out, the noble and learned Lord did not answer the point made by the noble and learned Lord, Lord Jauncey, about the view of Lord Cranworth that what gives every noble Lord his right to sit here is not his Patent of Nobility but the Writ of Summons which he is entitled to in consequence of that Patent.

I do not wish to deal further with the argument. We have established from the noble and learned Lord the Lord Chancellor an extremely clear view which he has stated definitively, perhaps with a view to Pepper v. Hart, as regards the Government's intentions, almost regardless of what appears on the face of the Bill. We shall obviously study that with care.

I remember listening to an explanation from the noble and learned Lord, Lord Simon of Glaisdale, about the distinctions in court parlance between "with respect", "with the utmost respect" and "with the greatest respect". The more superlatives you used, the more rubbishy you thought the arguments were. I merely say, with, I think, great respect, that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Exclusion of hereditary peers]:

Lord Gray moved Amendment No.11:

Page 1, line 5, at beginning insert ("Subject to section (Peers of Scotland)")

The noble Lord said: Amendment No.11 is a paving amendment for Amendment No.50 and Amendment No.65 is consequential—

The Minister of State, Home Office (Lord Williams of Mostyn)

Because of the movement and noise, it is impossible for us to hear, on all sides of the Committee, what the noble Lord is saying. 'That is not fair to the noble Lord and it is not helpful to the Committee.

Lord Gray

I am grateful to the noble Lord, Lord Williams of Mostyn. I shall recommence. Amendment No.11 is a paving amendment for Amendment No.50 and Amendment No.65 is consequential. I hope that we are entering quieter and calmer waters than we have enjoyed in the last debate. This debate certainly promises to be less erudite.

The issue on which I now ask the Committee to focus is that of Scottish representation in the interim House. We have been much concerned with the generality of the Bill and its constitutional consequences. Here, in these amendments, we encounter an aspect which has a specific impact on the constitutional settlement, an impact on the Treaty of the Union.

On Second Reading, my noble friend Lord Reay reminded the House that from the Union of the Parliaments until 1963 Scotland was represented in your Lordships' House by 16 elected Peers. For noble Lords who may be unfamiliar with that representative peer scheme, I shall explain it in outline only because it is the source from which my amendments stem.

While various enactments over the years dealt with detail, the principle of elected representation was enshrined in the Treaty of Union. Article XXII of the Acts of Union established the basis for representation of Scotland in the Westminster Parliament. That article laid down that that representation should include 16 of the Peers of Scotland, with the words: 16 shall be the number to sit and vote in the House of Lords". Further, it expressly stated that they were to represent Scotland, with the words: by whom Scotland is to be represented". They were elected to represent Scotland, not themselves, as other hereditary Peers did and do.

Those who stood for election by their fellows were Peers of Scotland only, while the electorate included, additionally, those Peers of Scotland who also held dignities in the peerage of England, and later on, in the peerages of Great Britain and the United Kingdom. Election was for the duration of a single parliament and, when necessary, by-elections were held. Election was by open ballot and after each election this House was notified of the result. The list of those chosen was read out here, after which the representative Peers could take their seats.

The system ended with the passing of the Peerages Act 1963. By virtue of Section 4 of that Act, all Peers of Scotland became entitled to a Writ of Summons. With Clause 3 of this Bill, the Government propose to repeal that 1963 enfranchisement. I have doubts as to the effectiveness of the proposed repeal which I shall raise later when we come to Amendment No.28.

In seeking to repeal the 1963 provision, the Government are effectively proposing to abrogate a fundamental provision of the Treaty of Union. They offer nothing in lieu, although they will be well aware, I am sure, of the effect of their proposed repeal. Amendment No.50 suggests a way of avoiding such an undesirable consequence.

It is important to recognise that when, in 1963, Parliament voted to increase Scottish representation in your Lordships' House, that decision enhanced the Union Treaty provision and detracted nothing from the significance of the representative scheme. That there were repeals of some wording in Article XXII and of some later enactments was neither here nor there. They were merely consequential and necessary to enable the enlargement of Scottish representation in this House. Expanding the franchise was in line with the increase in Scottish Members of another place since it was set at 45 by Article XXII, 293 years ago.

The salient point, central to my argument, is that the decision taken by Parliament in 1963 was one which preserved and strengthened the Union in terms of its significance for your Lordships' House—and Scotland.

The Government should not attempt to undermine or destroy that now. They need to think again and we should make them do so. As on account of past repeals we cannot simply turn back the legislative clock, I suggest that Amendment No.50 is a simple and straightforward way of entrenching an important element of Scottish representation here during the lifetime of the interim House. It cannot completely re-enact the 1963 provision, but it goes as close as I think can be achieved in this Bill.

For the avoidance of doubt, I have included the word "only" in my draft. It might otherwise have been interpreted as enfranchising every hereditary Peer with a Scottish title rather than those who are Peers of Scotland alone.

At a time when devolution is shortly to become fact, it is surely not the moment to draw back from a link between this House and Scotland forged at the making of the Treaty of Union. The Government have repeatedly stressed their support for the United Kingdom's continuance. It seems singularly contradictory and rash to seek to legislate in a way which sends out such a very different signal. I beg to move.

4.45 p.m.

Lord Gordon of Strathblane

I hope that the noble Lord, Lord Gray, will not press the amendment. I am as anxious as he is to ensure that Scotland is adequately and, frankly, even over-represented in this House, but I do not think that this is the way to do it.

This amendment would preserve the automatic link between birth and the right to be a Member of this House of Parliament. That, therefore, goes against the whole thrust of the Government's Bill. There are other ways of ensuring that Scotland is adequately represented in this House. I find my Scottish compatriots who are hereditary Peers even more agreeable than the other hereditary Peers in this House. I am quite sure that their ability is such, if the Weatherill amendment is passed, that they will stand more than an even chance of being chosen as the survivors. Quite apart from that, I hope that subsequent governments will always pay attention to the undoubted talents that lie within the ranks of the hereditary peerage in selecting life Peers. However, the important point is that they will be in this House on their merits, not on the merits of ancestors and sometimes, frankly, on the demerits of ancestors.

Harking back to the Act of Union ignores the fact that much has happened since then. I refer, for example, to the Reform Act 1832 and the growing power of the House of Commons. Scotland is represented in Parliament primarily through the House of Commons. The noble Lord referred to the growth in the number of Scottish seats. It is equally possible that in future the number of Scottish seats may decrease. I, for one, would not regard that as contrary to the Act of Union.

It is important to ask oneself why we should make a special example of the Scots. Are we really envisaging a situation where we have 16 Scottish hereditary Peers here and absolutely no English hereditary Peers? That, surely, would be equally contrary to the Act of Union.

I believe that any government (or any other nominating body which may be empowered to nominate) will be anxious in future to ensure not only a geographical spread of Peers nominated to sit in this Chamber, but a spread of interest groups as well so that this House can continue to serve the nation well by being able to draw on a reservoir of experience in all fields. I respectfully suggest that the Scottish life Peers will still be Members of this House and that their number can be added to. I therefore hope that the noble Lord's concerns about adequate representation for Scotland can be easily taken care of without recourse to this amendment.

Lord Forbes

I support the amendments in the name of my noble friend Lord Gray. They are very important as they concern the proper representation of Scotland in your Lordships' House. The Act of Union was very important. It made provision for 16 Scottish Peers who had received their titles prior to the Act to be elected and to take their seats to represent Scotland in your Lordships' House.

The important point is that the 16 were elected by their fellow Scottish Peers each time there was a new Parliament. I can vouch for the election. It was both simple and dignified. I was first elected to come to your Lordship's House and take my seat in 1955. Therefore I happen to be one of the few still left to have been elected as a Scottish representative Peer to sit in your Lordships' House. I was democratically elected. I did not take my seat by virtue of being a hereditary Peer.

Lord Mackie of Benshie

Would the noble Lord say that the electorate on that occasion were democratic?

Lord Forbes

The point is that I was democratically elected, apart from the electorate. The Act of Union ensured that Scotland was properly represented in your Lordships' Chamber, and that is even more important today as a result of devolution and the fact that the Union itself is under threat.

Two questions must be answered by the Government. First, do the Government intend ensuring that Scotland is properly represented if any change is made to the composition of this Chamber? Secondly, are Articles 12 and 13 of the Act of Union, dealing with Scottish representation, still on the statute book?

The Government have stated time and again that they stand by the Union. On that matter I wholeheartedly agree. The Union is vital. However, we would be deluding ourselves if we failed to recognise that the Union will be under considerable stress, both from devolution and the lack of Scottish representation in your Lordships' House as envisaged by this Bill. Our strength lies in unity. Make no mistake, if Scotland were to separate, that would not only be the greatest disaster for Scotland, but also for England. If Her Majesty's Government seriously wish to preserve the Union, they should accept these amendments dealing with the election of Peers to represent Scotland in your Lordships' House.

Lord Dormand of Easington

Will the noble Lord tell the Committee when he was last elected under the system he described, and how many times he was elected under that system?

Lord Forbes

I was last elected in 1959.

Lady Saltoun of Abernethy

In spite of the fact that Scotland is shortly to have its own Parliament for domestic purposes, there will remain quite a number of reserved matters—too many some of us think—and a number of them will have to be legislated for, discussed and agreed to by both another place and this Chamber.

I have just ceased to be secretary of the Scottish Peers' Association. But before doing so I went through the membership of the association and discovered that out of 147 members, 87 were hereditary and 60 were life Peers. I then went through the life Peers with precisely the question of the adequate representation of Scotland in the future in mind. I discovered that a considerable number rarely, if ever, attended or were so deeply involved in other business in Scotland that it would probably not be possible for them to represent adequately the interests of Scotland in this Chamber. That needs to be carefully looked at by the Government before they kick out all the hereditary Scots Peers, many of whom have been regular in attendance and assiduous in debate.

Beyond that, the amendment of the noble Lord, Lord Gray, raises serious questions—as did the previous amendment—in relation to the drafting of the Bill before us.

Lord Steel of Aikwood

It has been said on a number of occasions that those of us in Scotland are well known for keeping the sabbath and anything else we can lay our hands on. That is a commendable principle, but it can be stretched too far. To try and hang on to the hereditary principle in this House when the English are losing theirs, within 10 days of us securing the restoration of our Parliament, is an untenable proposition. For that reason we on these Benches cannot support these amendments.

In moving his amendment the noble Lord, Lord Gray, was absolutely right in his description of the reasons why the 16 elected Peers were part of the Act of Union. But in the real sense in the legislation of the Scotland Act we have been redefining the Act of Union. Therefore the 16 hereditary Peers have no place in that new scheme of things.

Furthermore, I believe I am right in saying that the White Paper and the terms of reference of the Royal Commission, looking at the longer-term of this House, are obliged to consider the whole question of the relationship between this House and the devolved Parliament. In the longer run therefore that issue is already being considered. In relation to the short-run—the transitional House—it is the case that at the last count there were six or seven Members of your Lordships' Chamber standing for election to the Scottish Parliament. Of those I would hazard that at least three have a reasonable prospect of being elected, as it happens one from each party. Therefore the idea that we will lose any link between this House and the Scottish Parliament is simply not true.

The right course to take to enter proper democracy is not to try to revive something that was dispensed with a couple of decades ago. This is not the moment to try to revive a well justified but now archaic principle from the early years of the 18th century.

Baroness Carnegy of Lour

The last three speakers pointed up a problem which the Government will have to face. The noble Lord, Lord Gordon, said that, whether or not this amendment is accepted, there will be Scots Peers here to represent Scotland in the interim House. That is true. But the noble Lady, Lady Saltoun, gave us the figures—I was not sure of the number of life Peers as compared with the number of hereditary Peers from Scotland—and, as she said, there will be a considerable shortage of Peers to represent the interests of Scotland in discussions in this Chamber as an interim House if the amendment is not accepted.

As the noble Lord, Lord Steel, said, several of our number are standing for election to the Scots Parliament and some will doubtless get in. They will not have much time to come here. So there will indeed be a shortage. Therefore, if the amendment is not accepted by the Government, can the Minister give us some assurance that there will be an attempt to increase the number of Peers from Scotland in the interim House to ensure that the interests of Scotland are not neglected in that Chamber, the duration of which we still do not know?

5 p.m.

Lady Saltoun of Abernethy

The Peers' election to which the noble Lord, Lord Forbes, referred, and in which he is still one of the very few Members of this House to have taken part, worked extremely well because everyone knew everybody and everyone knew everything about everybody. As a result, we never had a dud elected; indeed, the "odds and sods" simply did not get elected. We had sensible people who were prepared to do the job. They undertook to do it by offering their names for election. In those days it was a considerable personal sacrifice because there were no expenses and certainly no allowances at that time. Indeed, I do not believe that there were even travelling expenses. People did it as voluntary work and they did it very well.

The Earl of Lauderdale

Most of my predecessors came to this place as representative Peers, with one exception upon whom I shall not waste too much time. In fact, in the end, he did not present himself for election. I speak in support of the proposition put forward by my noble friend Lord Gray. Whatever happens now—that is to say, however well the Scottish Parliament performs and however intelligently Whitehall responds to it (something that I always doubt) there is bound to be a degree of tension between Edinburgh and Whitehall. That is something I deplore, although I am happy to see from press reports that the likelihood at present is that the Nationalists will not do very well in the coming elections in Scotland. Thank God!

There is bound to be some tension willy-nilly between Edinburgh and Whitehall. It is greatly in Scotland's and in Britain's interests that the Scottish peerage should contain representatives within earshot of Whitehall. Therefore, I support my noble friend's amendment.

Lord Monro of Langholm

We are most grateful to my noble friend Lord Gray for tabling the amendment because it has given us the chance to express a view upon the points so nobly put by the noble Lady, Lady Saltoun. After the new Parliament comes into being, I know that there will be much less legislation going through this place than has been the case in the past as regards Scotland. Indeed, it will only be legislation on foreign affairs, defence and one or two other matters that are for this Chamber rather than the Scottish Parliament.

However, the question which comes to my mind is whether or not there will be sufficient Scottish based life Peers to carry out the work in this Chamber. The noble Lady, Lady Saltoun, indicated the number involved. In fact, one could boil it down to the fact that about 5 per cent of the Chamber would be life Peers coming from Scotland, which is not a large number.

I was not impressed by the point made by the noble Lord, Lord Steel. I say that because it is to be hoped that there will be one or two life Peers returning here who will also be members of the new Scottish Parliament. But if the polls are right and the overall majorities one way or another are going to be so tight, I do not suppose that any member of the new Scottish Parliament will be able to leave Edinburgh with a safe conscience—certainly not if the whipping system has to be as severe there as it has been in the other place in the past.

Therefore, when the Minister replies to the debate, perhaps he will indicate how we can be certain that there will be a sufficient number of Scottish life Peers to look after the interests of Scotland, in conjunction with the new Scottish Parliament. After all, they will be complementary and will not be opposing each other. It is no use saying, "Oh, yes, there are bound to be enough distinguished Scots who will be made life Peers"—although that may very well prove to be true—because we do not have such a provision on the face of the Bill. Therefore, we will be left with the question of whether it is up to the Prime Minister of the day, an appointments committee or, indeed, something suggested by the Royal Commission.

How can we be certain that there will be a sufficient number of Peers from Scotland; and, indeed, from Wales and Northern Ireland? How can we be sure that other aspects of the life of this United Kingdom will be expressed here by Peers from those countries? It is up to the Government Front Bench to indicate what the position will be. Then, if the Minister's explanations are unsatisfactory, we can decide whether to take the matter further. My noble friend Lord Gray has certainly given us an opportunity to discuss the old election system of the Scottish Peers which worked exceptionally well. But, in the first instance, we want to know how Scotland, Wales and Northern Ireland are to be represented sufficiently in this Chamber so as to satisfy those countries that they are being well looked after in the House of Lords or in its successor.

Lord Waddington

It is with some diffidence that I enter this debate; indeed, I shall not detain Members of the Committee for very long. However, there are some general points affecting all of us which must be made. I do not know how many noble Lords have given evidence to the Royal Commission on the reform of the House of Lords, but I imagine that many of them who have been thinking about the possible shape of a reformed second Chamber will have wondered what part such a Chamber might play in strengthening the Union. In other words: how, in a reformed second Chamber, could we have proper representation of the constituent parts of the United Kingdom? How, by having proper representation of Scotland, Wales, Northern Ireland and the English regions, could we meet to some extent the demands of people living in more remote parts of the UK for as strong a voice as possible at the centre?

Of course, we have returned to our old difficulty. I must be forgiven for beating the same drum, but I have mentioned these points on many occasions and rarely received even the beginnings of a reply. As a result of the way in which the Government have decided to proceed, we all now know that a Chamber will be created which will either be composed of wholly nominated Peers or of largely nominated Peers with some representation from the hereditary Peers as a result of the Government's acceptance of the Weatherill amendment.

However, whether or not the Weatherill amendment is accepted, one thing is absolutely plain: no one in this place can, with his hand on his heart, say that the Chamber created by this House of Lords Bill will only be with us for a short time. Indeed, it may or it may not. As I mentioned the other day, there is certainly not the beginnings of a consensus yet as to what shape the new Chamber should take. We really must face up to what happened back in 1968 and recognise that the Chamber which will be created by this Bill may be with us for three, five, 10, 15 or even 20 years.

Therefore, with that background, I think it is a great pity that the Government have not already addressed their minds to a very real problem. How can this second Chamber be so constructed to ensure that there will be proper representation of the constituent parts of the United Kingdom? It is not too late for the Government to consider amendments which would graft on to the Bill specific provisions to allow for directly or indirectly elected people from the constituent parts of the United Kingdom. It is not too late for that to happen; indeed, the matter is entirely in the hands of the Government. It will be a great pity if they decide not to do so.

However, if they will not accept such amendments, I hope that they will take the opportunity of debates of this kind to lift the veil a little and tell us which way their minds are working. For example, do they envisage that, as soon as possible, the second Chamber will perhaps to a large extent be a Chamber designed to keep the kingdom united—a second Chamber which really will make sure that each constituent part of the United Kingdom is properly represented? I hope that on this occasion the Minister who is to reply to the debate will not brush all this aside. I want to know what the Government's thinking is with regard to the possibility of this so-called transitional House being with us for 10, 15 or 20 years. If it is to be with us for such a long time, the Government ought to think of amendments along the lines that I have suggested. If they are absolutely confident that the provisional House will not be with us for long, I want to know the reasons for that confidence. I do not have it myself. I have listened to the debates in the House of Commons. I cannot see for one moment the Labour Members in the House of Commons agreeing with what appears to be the majority view on the Conservative Benches; namely, that there ought to be a wholly elected second Chamber. Where is the beginnings of a consensus? If there is not the beginnings of a consensus, how on earth do the Government think that either immediately before or immediately after the next general election they will get a second Bill through Parliament? I believe they will have an uphill struggle.

If I am right in my thinking, the Government should explain to us why they think the framework for a second Chamber which is contained in this Bill is anything like adequate. I believe it is plain to most of us that it is far from adequate. It does not contain any of the constitutional safeguards which I have urged upon the House on previous occasions ought to be in a Bill of this nature. It is inadequate because it does not provide specific representation from the various constituent parts of the. United Kingdom.

I do not say that I am in favour of this particular amendment as I do not really understand all this business of representative Peers. That is not my object. However, it has given us an opportunity to ask the Government to explain their thinking as to how the constituent parts of the United Kingdom can be properly and clearly represented in a transitional House and finally in a reformed House.

The Earl of Mar and Kellie

I am grateful to the noble Lord, Lord Gray, for bringing this amendment forward. I refer to one straightforward issue; namely, that this Bill seems, probably by accident, to bring to an end Scotland's statutorily guaranteed representation in this House that was first laid out in Articles 22 and 23 of the treaty, and then modified by the 1963 Peerage Act, which of course allowed all the peerage of Scotland to attend. The Bill seems to bring that to an end—1707 to 1999. I wonder whether that is really the Government's intention. I shall try not to preview Amendment No.53, which I believe may supply an answer. However, it is not in the group of amendments that we are discussing. I ask the simple question: how can I explain what the Government want to do in this respect in a positive way in Scotland?

5.15 p.m.

Lord Elton

As I understand it, the Act of Union was the placing into legislative form of a bargain which took the form of the Treaty of Union. The bargain has not been reneged on. It has not been unstitched so completely as I believe the noble Lord. Lord Steel, suggested in his brief intervention because it was a bargain between two sovereign parliaments. The Parliament being created in Scotland is not in all matters sovereign. In any case that can be regarded from the point of view of governance as being an advance on the position achieved by the Act of Union as far as concerns the Scots.

The Act of 1963 was an advance on the Act of Union because it increased from 16 to a much larger number the number of Peers attending from the Scottish peerage. Had the Bill proposed merely to reduce the representation of the Scottish peerage to the level at which it had originally been instituted in this House, that would not have affected the treaty rights of the Scots. However, the Bill proposes to wipe out a particular benefit in a bargain contractually arrived at between sovereign parties and embodied in a treaty. Presumably either that was provided for in advance and there is a mechanism in the treaty and the Act for dealing with such differences—in that case I hope that the noble and learned Lord will enlighten me as to what it is—or else there was none, this was not foreseen and this measure is a breach of that treaty. It seems to me that this is an unfortunate point in history to embark on such a breach when in a year or two's time we will get the new Parliament in Scotland up and running, the Royal Commission will have reported and both Houses will have debated what the proper relationships between Westminster and Edinburgh should be. But at the moment it is, I think, a not unimportant symbolic reneging on a bargain entered into many years ago with no indication of what restitution is available.

Lord Baker of Dorking

I thank the noble Lord, Lord Gray, for introducing this amendment as it has given us the opportunity to have a short but interesting debate upon the representative elements of the constituent parts of the United Kingdom. I cannot support this amendment because patently it is unfair that Scottish Peers should be allowed to elect from themselves a certain number to sit in this House when English, Welsh and Northern Irish hereditary Peers do not have that right.

I should preface those remarks by saying that I was a member of the committee of Alec Douglas-Home that reported back in the mid-1970s and recommended a membership of this House which was half elected, a quarter appointed and a quarter of all hereditary Peers elected from among themselves. I thought that was quite an attractive composition, but it is no longer on the table. Clearly that cannot be done selectively for one part of the United Kingdom although I recognise entirely the tremendous contribution that Scottish Peers have made both under the old elected system and under the non-elected system. I remember an amusing story told by Alec Douglas-Home of the process of election. I do not know whether the noble Lord, Lord Forbes, will be able to confirm that this is how it happened. Alec Douglas-Home said that the hereditary Peers of Scotland were summoned to Edinburgh—I believe they were summoned to the Assembly House—and the senior Peer of the day did a roll call (I believe it was Lord Stair) and voices were raised in favour "yea" or "nay" as the names were called. Occasionally Lord Stair would come across a name—it may have been Macpherson of Dundee—and would say, "We cannot have him. This chap did a spell at Eton", and struck the name out. I do not know whether that happened to the noble Lord, Lord Forbes, but certainly it produced a system which served this House well, but which is no longer on the table.

I believe it would be useful to know the following. I echo what the noble Lord, Lord Waddington, has just said in this regard. I hope that at some stage during the Committee stage Ministers will reveal some inclination as to how the different parts of the United Kingdom are to be represented not only in the interim Chamber but also in the eventual Chamber. If Ministers cannot do that on behalf of the Government, I hope that they will reveal their own personal feelings on the matter.

My own views are fairly clear. I want the eventual Chamber to be part appointed and part directly elected. The noble Lord, Lord Williams of Mostyn, comes from Wales. It would be interesting to hear him say how he would like to see the Principality of Wales represented in the interim House or in the eventual reformed House so that the interests of the Welsh people can be properly represented in this House. After all, they will soon have an Assembly—virtually a Parliament of their own—which is unicameral. After all, within a month Scotland will have a Parliament of its own which to all intents and purposes will be virtually independent. It will have a Prime Minister of its own and a Cabinet of its own and they will meet in Edinburgh within a month. In terms of the United Kingdom constitution, that represents a huge imbalance. There has to be some balancing feature which has not been expressed at all by the Government.

I express the hope that several others of my noble friends have expressed; namely, that at some stage during the proceedings of this Bill some Members of the Government Front Bench might indicate just a little of their feelings. As I say, if they cannot do that on behalf of the Government, I hope that they will reveal their own personal feelings. I hope that is not too much to expect.

Lord Jauncey of Tullichettle

This is a valuable amendment. I endorse the remarks of the noble Earl, Lord Mar and Kellie. The effect of the Bill as drafted will be that, for the first time since 1707, there will be no statutory right of representation for Scotland in this House.

It is true that, with the advent of the Scottish Parliament and the appropriation of many matters to it, the amount of work will be reduced. However, reserved matters affecting Scotland will remain, and will fall to be dealt with by this House. At a time when the major parties are anxious to preserve the Union, it seems unfortunate that the Bill should remove the right of statutory representation for Scotland in this place. It is a matter that the Government should think worthy of consideration, even if not in the form of this amendment.

Lord Gray

I merely wish to take up one point that was made by my noble friend Lord Elton. He said that the coming into force of the 1963 Act added a number of Scottish Peers to this House. If my memory is correct, I believe that the Act added four or five—the reason being that it referred only to those Peers who had their titles before the Act of Union.

Lord Mackie of Benshie

I can hardly believe some of the remarks made in this debate. It is true, as a number of speakers have said, that we need representation for Scotland which will cover reserved matters. At present, there is no logical way to achieve that. It is impossible that it should be through the hereditary Peers, given the whole aim of the Bill. While the Government are telling us about Scotland, they might touch on the point as to why on earth, in a Bill to abolish hereditary Peers, they want to preserve them while deciding how to reform this House.

The Earl of Northesk

I wish to take up points made by many noble Lords, and by my noble friend Lord Elton in particular. Put simply, my interpretation of the "audit trail" of the Bill runs along these lines. The Bill removes hereditary Peers. The repeal of Section 4 of the Peerage Act 1963 removes the statutory right of members of the Scottish peerage to sit; and the repeal of the relevant passages of the English and Scottish Act of Union of 1707, on the face of the 1963 Act, sorts out the issue of Scottish representation. On the surface, it is all very simple.

But I am less certain that the matter is so clear-cut. The audit trail that I have defined gives rise to a particularly thorny problem. One needs to return to the terms of the 1707 Act to begin to understand what could be made permissible by the enactment of this Bill. We should pay particular attention to the following passages of the 1707 Act; first: And it is hereby statuted and ordained, That this Act of Parliament, with the Establishment therein contained, shall be held and observed in all Time coming, as a fundamental and essential Condition of any Treaty or Union to be concluded betwixt the two Kingdoms, without any Alteration thereof or Derogation thereto in any Sort for ever"; and, secondly: And lastly. Her Majesty enacts and declares, That all Laws and Statutes in this Kingdom, so far as they arc contrary to or inconsistent with the Terms of these Articles, as above-mentioned, shall from and after the Union cease and become void". It is of course the case that the institution of the representative Peer system is qualified on the face of the 1'707 Act with the phrasing, until the Parliament of Great Britain shall make further provision therein". Equally, it is the case that "the Parliament of Great Britain" has indeed made subsequent "further provision therein"—not least in the 1963 Act. But the key words that flow from the two passages that I have cited are, in turn. "derogation" and "contrary and inconsistent".

Given the text, the presumption must be that, to be consistent with the terms of the treaty, all subsequent amendments to it must be on the side of enhancement, not diminution—that surely is the correct interpretation of the usage of "derogation" in its context. In fact, there is evidence of the validity of that view in some of the proceedings of this House. For example, it was observed by the noble and learned Lord, Lord Keith of Kinkel, in a debate in 1977 that: Under Article 18 of the Treaty of Union it is provided that the laws of Scotland which concern private right are only to he altered by the United Kingdom Parliament for the 'Evident utility of the subjects within Scotland—. —[Official Report, 27/6/77; col.902.1 Following that logic a little further, I do not seek to suggest that the Bill before the House today should "cease and become void" by virtue of being "contrary and inconsistent" with this. What I do say is that it will be freely available to anyone with a mind so to do—and we can be certain that such persons exist and may even now be actively preparing their case—to pursue an argument that the Bill, once enacted, has breached the terms of the Treaty of Union and that, therefore, the Union should cease. Referring back to the texts that I have quoted, the argument runs thus: it is a "fundamental and essential Condition" of the Union that there be no "Derogation thereto"; in the event—as with this Bill—that proposed statutory provisions give rise to such a derogation, they must be "contrary to or inconsistent with the Terms" of the treaty and Union; in turn, enactment of the inconsistency—

Lord Gordon of Strathblane

I thank the noble Earl for giving way. Does he agree that if, selectively, members of the hereditary peerage in Scotland alone were to lose the right to sit in the House of Lords, that would be a breach of the Act of Union; but if the rights of hereditary Peers throughout the United Kingdom are removed, there cannot be any derogation from the Act of Union? Indeed, it would be unfair if, selectively, Scottish hereditary Peers preserved the right to sit and English hereditary Peers lost that right.

The Earl of Northesk

I take the noble Lord's point. However, there is the problem that the Act of Union says what the Act of Union says. The Act established as a fundamental and essential condition that the representative peerage system shall exist. So if there is a derogation from that, we are in slight difficulty.

To resume my argument, enactment of the inconsistency of such provisions gives effect to the statutory force, "That all Laws and Statutes in this Kingdom" shall "cease and become void". Of necessity—this is the fundamental point—that must apply to the Act of Union itself. In effect, the B ill could exist as a mechanism to deliver Scottish independence via the back door. Such is the nature of the law of unintended consequences.

Lord Norton of Louth

I apologise for interrupting the noble Earl. I merely wish to make two general points following remarks by my noble friends Lord Monro and Lord Waddington in support of the principle underlying the amendments, which is to ensure that different voices of the United Kingdom are heard in this House.

There is the positive argument that has been touched upon, that ensuring that those voices continue to be heard adds to the richness of debate in this House and contributes to the experience and expertise that is a feature of this House and makes it what it is, adding to the quality it brings to the political system. The other reason why I believe it to be important—a negative reason but one that is specific to the present—is this: because, as a result of devolution, there is to be an elected Parliament in Scotland and an elected Assembly in Wales, that strengthens the case for retaining some voice for different parts of the United Kingdom in this House. Otherwise, the tendency, once the elected assemblies are in place, will be for Scotland arid Wales to become marginalised within the Westminster context. There is something of a precedent for that in Stormont. It is important that that is recognised. In order to prevent Scotland and Wales being marginalised as a result of those developments, it is important to look for some way to ensure that different parts of the United Kingdom are heard in this House.

I recognise that this amendment, because it is specific to Scotland, would not achieve that. Later amendments will address the point. As presently drafted, the Bill does not address the point. If the Government are minded to accept that some hereditary Peers are to remain in the House—I am wary about an over-formalistic approach—is there not a case for providing some mechanism that would at least ensure that the different parts of the United Kingdom have a voice in this House?

5.30 p.m.

Lord Mackay of Ardbrecknish

We have had a most interesting debate. There have been two strands in the debate. One strand was the whole question of Scotland's position in the House after the hereditary Peerage has been removed—especially against the background of a Scottish Parliament. The same question arose in respect of Wales and Northern Ireland, although perhaps not to the same extent because the Scottish Parliament certainly will have much greater powers and will look much more like one would think a parliament would look like than either the Assembly in Wales or the Assembly in Northern Ireland. It is important to raise the point of the position of Scottish Peers—not necessarily hereditary Peers—in your Lordships' House.

Some noble Lords may sometimes think that there are too many Scottish Peers in your Lordships' House. I read in the papers that the Prime Minister thinks that he has too many Scots in the Cabinet and that after the Scottish Parliament is set up there is to be some type of ethnic cleansing of the Scots in the Cabinet and in the Government. Some of us are taking little wagers as to who will go and who will stay. Any noble Lords who wish to see me about that later are welcome to do so—especially if they are in the Government and have some inside information! The keeper of the book always likes inside information. But there is a serious point about the different component parts of the United Kingdom being properly represented in the Parliament of the United Kingdom.

If one looks at the composition of the current House, while some of the Scots may be on their feet quite often, in purely numerical terms the Scots are not very well represented, especially by people with backgrounds in academia, medicine and the law, with the exception of the "professionals", if I may call them that, who get here by being Law Lords and politicians, and the lawyers who get here by being former Lord Advocates. The universities of Scotland, for example, are very badly represented in your Lordships' House. The medical Royal Colleges in Scotland are certainly of equal prominence to those in the south, but they are very badly represented here. Some of my noble friends have made the good point that after devolution there is a danger that Scotland will be marginalised at Westminster. That danger is underlined by the press reports that even the Prime Minister feels that he may have to remove some of the Scots from his Cabinet, not because they have done a bad job—although one or two, I suspect, have not done very well—but because they are Scots.

Lord Acton

I thank the noble Lord for giving way. If, as the noble Lady. Lady Saltoun, has said, there are 60 Scottish-based life Peers, including three Mackays, does the noble Lord really think that Scotland will be marginalised?

Lord Mackay of Ardbrecknish

My noble friend Lord Henley says, "Not with three Mackays". But that would not be an argument for reducing the number to just the three Mackays. I am not sure how the noble Lady, Lady Saltoun of Abernethy, arrives at her 60. While a number of Scottish Peers appear often, as I said earlier, a fair number of my colleagues from Scotland play little part in the proceedings of the House.

Lady Saltoun of Abernethy

I thank the noble Lord for giving way. I arrived at my 60 by counting the number of life Peers in the membership of the Scottish Peers Association. I think that is fairly comprehensive. I have already pointed out that not all of them attend regularly. At least half, if not more, do not attend regularly.

Lord Mackay of Ardbrecknish

I thank the noble Lady. Indeed, one can go a little further: I think she will agree that there are a few members of the Scottish Peers Association whose links with Scotland are a little tenuous and that it has been quite a long time since the predecessors of some hereditary Peers have lived in Scotland. I will not take the point that has just been made to me.

The position of Scottish Peers is a real point. My noble friends have addressed it and no doubt the noble and learned Lord, Lord Falconer, will give us some advice on the matter—together with free tickets to the dome!

I wish now to address another and more important issue raised by the amendment of my noble friend Lord Gray. It is especially important at a time when there are to be elections to the Scottish Parliament and when there is a party in Scotland which seriously advances the cause of the breaking up of the Treaty of Union. We take this matter seriously in Scotland. Indeed, the governing party takes it so seriously that, along with its friends in the media, it has given the matter a huge amount of attention. It has rubbished the Scottish National Party quite successfully to date—sometimes with weapons which, when used by us, when we were in Government, caused us to be howled at by the very same Scottish press that is now using exactly the same ammunition. Politics is a funny old game; I should not complain. The result is that the Scottish National Party is not doing very well. But that does not mean to say that there will not come a day when it might do very well. Therefore it is important that we ensure that any legislation passed in the House is compatible with the Treaty of Union.

The Treaty of Union and the two Acts of Parliament—the Act of the English Parliament of 1706 and the Act of the Scottish Parliament of 1707—are arguably the three most important pieces of paper in the United Kingdom. They created Great Britain; they created the country in which we live. They are therefore hugely important. As my noble friend Lord Gray explained, Article XII of the Treaty of Union provides that 16 of the Peers of Scotland at the time of the Union should sit and vote in the House of Lords. That article provided that the Privy Council of Scotland should cause 16 of the Scottish Peers to be chosen in accordance with the provisions of another Act passed by the Scottish Parliament in the same year. I know it is harking back to the last debate, but it is interesting to see that Article XXII says, a writ shall be immediately issued under the Great Seal of Great Britain, directed to the Privy Council of Scotland, for the summoning [of] the sixteen Peers". I will not go back over that argument; there were to be 16 Peers of Scotland. There were also to be 45 Members of the House of Commons. The Peers were to number 16 out of 179 and the Members of the Commons were to number 45 out of 513. Article XXIII of the Treaty provided that the 16 Peers selected to sit in the House of Lords should have all the privileges of Parliament which Peers of England then had and which Peers of Great Britain would have after the Union. The article also provided that all the Peers of Scotland and all their successors to the honours and dignities should be Peers of Great Britain, enjoying all the rights of such Peers except the right of sitting in the House.

That remained the position until the Peerages Act 1963, Section 4, which amended the two Acts of the Scottish Parliament but not the treaty itself. In doing so, it took nothing away from the rights and privileges of the Peers of Scotland; on the contrary, it added to their rights. In no sense could it be suggested that the 1963 Act watered down the effect of the provisions of the Treaty of Union.

That is not the position with the present Bill which actually takes away from all Scottish hereditary Peers the right to be one of the 16 Scots Peers who should sit in the House of Lords. In other words, it changes the Treaty of Union; it is a serious amendment to the treaty. Of course other legislation has amended the treaty. Last year we amended the treaty, I suppose, by the passage of the Scotland Act. But the Government thought it was so important to take account of the fact that they were amending the treaty and the two important Acts that in Section 37 of the Scotland Act they inserted these two lines: The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act". It may be that Ministers should discuss with their friends in the Scottish Office, and the draftsmen should discuss with the draftsmen of the Scotland Act, why they thought it was necessary to put that small section in that Act whereas the Government do not think it necessary to put something similar in this Bill.

My final point is a rather complex one. It is to address whether any limits are placed on what this Parliament can do to alter the provisions of the Act of Union. If there are any limits, are they breached by the provisions of this Bill? That is the point I want to address and I am sure that the noble and learned Lord the Minister will address it. Perhaps I may say to the noble Lord, Lord Steel of Aikwood, that it is a good deal more important than he seemed to imply. The Government have to be satisfied that they have the power to amend this part of the treaty.

My justification for raising these questions is to be found in a famous case in 1953 of John MacDonald MacCormick and Ian Robertson Hamilton v. The Lord Advocate on the question of whether or not Her Majesty could be styled Queen Elizabeth the Second or whether she ought not to be styled Queen Elizabeth the First. Ian Robertson Hamilton is still alive and kicking. He is a QC at the Scottish Bar and is standing for the Scottish National Party, without much chance of success, I suspect. John MacDonald MacCormick is long dead but his sons are certainly known to some of us and indeed to the noble and learned Lord the Lord Chancellor. One son, Neil MacCormick, is the Regius Professor of Public Law at the University of Edinburgh; and very prominent he is too. He is on the Scottish National Party list to be elected to the Scottish Parliament. Another son, Mr. Iain MacCormick, was a Member of another place until I dispossessed him.

The point raised in the case concerned whether or not the Act of Union was being breached. In his judgment, Lord President Cooper said this: The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law … Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions". The Lord President went on to say: The Lord Advocate"— at that time the Lord Advocate was Lord Clyde— conceded this point by admitting that the Parliament of Great Britain 'could not' repeal or alter such 'fundamental and essential' conditions. He was doubtless influenced in making this concession by the modified views expressed by Dicey in his later work entitled Thoughts on the Scottish Union, from which I take this passage … After instancing the provisions as to Presbyterian Church government in Scotland with their emphatic prohibition against any alteration, the author proceeds: 'It represents the conviction of the Parliament which passed the Act of Union that the Net for the security of the Church of Scotland ought to be morally or constitutionally unchangeable, even by the British Parliament … A sovereign Parliament, in short, though it cannot he logically bound to abstain from changing any given law, may, by the fact that an Act when it was passed had been declared to be unchangeable. receive a warning that it cannot be changed without grave danger to the Constitution of the country'".

Lord Gordon of Strathblane

I thank the noble Lord for giving way. Despite his very interesting essay on Scottish jurisprudence and the interpretation of the Act of Union, I think I am right in saying that Her Majesty the Queen is still styled Queen Elizabeth the Second in Scotland and to that extent the case must have been lost.

Lord Mackay of Ardbrecknish

Yes, but I do not think it was lost on that point. Lord President Cooper introduced that part by saying: Upon this view a part of the Lord Ordinary's judgment and of the argument before us disappears". Then he said—I did not say this but the noble Lord, Lord Gordon, has prompted me— But lest this case should go further, I shall briefly express my opinion". He then expressed his opinion as I read it out. But that was not the ground on which he held that the case of John MacCormick and Ian Hamilton fell. So I am afraid that the noble Lord's valiant efforts on behalf of the Government are not too successful.

I wonder what the Government think. I look forward to hearing what the noble and learned Lord, Lord Falconer of Thoroton, thinks of this and of the view of Lord President Cooper. I want to know under which category the noble and learned Lord thinks Articles XXII and XXIII fall. Are they part of the treaty, where the power to amend is there and the British Parliament can make amendments; or are they part of the treaty which the British Parliament has no power to amend?

Those questions should be answered. They are important. As I said, I do not think the Treaty of Union should be amended without a great deal of thought and without making sure that it is legitimate to amend it especially, as I said at the beginning of my contribution, when there are people in Scotland who would very happily tear up the treaty. The noble and learned Lord and his colleagues on the government side and those of us on these Benches are absolutely opposed to that. I therefore think that it is beholden on us to ensure that nothing we do disturbs the fundamental principles of the treaty.

5.45 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

I shall restrict myself to the amendment. Two points underlie the amendment. First, it is said that without the amendment there would inadequate representation of the Scots in this House. Secondly, it is said that the Bill transgresses both the spirit and the letter of the Treaty of Union and/or the Act of Union. I shall deal with the first point first.

In my view, it is almost unarguable, having heard the brilliance of the speech of the noble Lord, Lord Mackay or Ardbrecknish, that the Scots will not be adequately represented in the transitional House. One has simply to name a few names to indicate that they will be adequately represented. The noble Lord, Lord Steel of Aikwood, will be able to come down. He is nodding enthusiastically; he will manage that without any difficulty. I think of the noble Lord, Lord Mackie of Benshie; the noble Baroness, Lady Carnegy of Lour; the noble and learned Lord, Lord Irvine of Lairg; the noble Lord, Lord Gordon of Strathblane; the noble Lord, Lord Macdonald of Tradeston; the noble Lord, Lord Sewel; the noble Lord, Lord Gray of Contin; the noble and learned Lord, Lord Jauncey, and the noble and learned Lord, Lord Mackay of Drumadoon, to name but a few. Those names are names of honour—people who have incredibly effectively represented Scotland throughout the time that their representation has been required.

My noble friend Lord Williams of Mostyn has handed me a list that he would regard as being of equal lustre in relation to the people of Wales. I would love to read it out but I do not have the time. It is, as one would expect from my noble friend Lord Williams of Mostyn, very, very long indeed.

The noble Lady, Lady Saltoun, gave us the statistic that there are 60 members of the Association of Scottish Peers who are life Peers. I do not know whether there are life Peers from Scotland who do not join that association. If the noble Lady is the secretary it is hard to imagine that they would not join. But let us assume that 60 is the minimum. That means that in the transitional House 60 out of the 500 life Peers will be Scottish. With the greatest respect to the noble Lord, Lord Gray, it is absurd to suggest that Scotland will not be adequately represented in the transitional House.

I take the amendment one stage further. The idea that the way one provides adequate representation is to take a random bunch of hereditary Peers and make them the people who represent Scotland seems absurd. What little history I know tells me that the sovereigns of this country did not appoint hereditary Peers on the basis of regional equality; where they came from was entirely random. With the greatest respect, I believe that the first basis on which this proposition is advanced does not stand any examination.

Lady Saltoun of Abernethy

Perhaps the noble and learned Lord will give way. I also pointed out that of those 60 life Peers a goodly number—well over half—never attended because they were otherwise occupied.

Lord Falconer of Thoroton

I remembered that. The 500 I have taken represents every single life Peer. I have reason to believe from what I have been told that there are some English, Welsh and Northern Irish life Peers who do not attend either. Therefore, one is comparing like with like.

I turn to the second basis of the argument; namely, the immutable nature of the Act of Union. The noble Lord, Lord Mackay of Ardbrecknish, treated us to a disquisition on Scottish law. He pointed out that the quote from Lord Cooper indicated that the Treaty of Union was made between the sovereign Parliaments of Scotland and England. He said that therefore Lord Cooper was suggesting that bits of it could never be changed. He spoke about the part dealing with the representation of Scottish hereditary Peers. That would mean that one could not increase or decrease the number. If one increased the number it would, as I understood the argument of the noble Lord, offend against the deal done on behalf of the English Parliament. That is the necessary effect of the argument advanced by Lord Cooper.

The case to which reference was made predated 1963. By 1963 it was constitutional convention accepted by all that the UK Parliament was sovereign and that there were no entrenched provisions. That was reflected in the 1963 amendment to the Act of Union which changed the basis on which Scottish hereditary Peers sat in this House. It was changed effectively from an elected system, to which the noble Lord, Lord Forbes, referred, to one in which every Scottish hereditary Peer had the right to sit. With the greatest respect to the noble Lord, Lord Mackay of Ardbrecknish, it has been accepted by constitutional lawyers that that point has gone. It is on that basis that the Bill has been drafted.

I make one final point on the spirit and letter of the Act of Union. Noble Lords have rightly been referred by the noble Lord, Lord Mackay of Ardbrecknish, to the provisions of the Treaty of Union which provide that Scottish hereditary Peers shall be treated just the same as English, Northern Irish and Welsh hereditary Peers. As everybody knows, English, Northern Irish and Welsh hereditary Peers will lose their right to sit and take part in these proceedings; in accordance with the Treaty of Union, so should Scottish hereditary Peers.

The Earl of Caithness

Can the noble and learned Lord provide any other examples of breaches of the articles of the Treaty of Union, and when?

Lord Falconer of Thoroton

It is not a question of the provisions being breached. The particular example that I have given is precisely that which has been relied on in this matter; namely, the provision relating to the election of hereditary Peers. It is not a question of providing examples but demonstrating that this one is changeable.

The Earl of Caithness

With respect, the noble and learned Lord has not answered my question. I heard exactly what he said. He referred to the particular point raised by my noble friend Lord Mackay of Ardbrecknish. Does the noble and learned Lord know of any other cases where there has been a breach of the Treaty of Union, and when?

Lord Falconer of Thoroton

I do not believe that the noble Earl understands my point. I do not accept that there is any breach. What is the relevance of other examples when we can see that the very provision relied on has already been amended and was repealed by the Statute Law Reform Act 1993?

Lord Elton

If the noble and learned Lord rests his case on parity of treatment between the hereditary Peers, how does that fit with the Weatherill amendment?

Lord Falconer of Thoroton

Scottish hereditary Peers, like all other Peers, will be entitled to stand for election.

The Earl of Northesk

Perhaps the noble and learned Lord can clarify one matter. Notwithstanding anything else, does the appearance of the word "derogation" on the face of the Act of Union have any substance left to it?

Lord Falconer of Thoroton

I believe that I have set out the constitutional position, which is that this Parliament is sovereign in relation to all previous Acts of Parliament.

Lord Mackay of Ardbrecknish

The noble and learned Lord certainly made a nice point, as his colleagues would describe it, about the 16. But does he agree with me that there is a difference between increasing the number, which was what happened—it was not a significant increase because by that time there were not many left—and decreasing it? I would have thought that his argument would have held a lot more water had the 1963 Act led to less than 16. The fact that it kept the 16 and added to them indicates that that did not breach the Act. If I accept for the moment the argument of the noble and learned Lord, why have the Government not put something like Section 37 of the Scotland Act into this Bill to put the issue beyond. peradventure?

Lord Falconer of Thoroton

First, Lord Cooper in the particular case was concerned with the sovereign. Parliaments of Scotland and England. The sovereign. Parliament of England would have an interest in keeping the Scottish representation down, just as the sovereign Parliament of Scotland would have an interest in keeping it up. On the basis of the argument advanced, because it is an agreement it makes no difference whether one increases or reduces the number of Scottish Peers. As to the second point, the matter is clear beyond peradventure and there is no need to put it in the Bill.

Lord Norton of Louth

Perhaps I may pick up the approach of the noble and learned Lord to the issue itself. When the question of Scottish Peers in this House was raised, the noble and learned Lord had to rely on looking round the Chamber, a note from his noble friend and figures provided by another noble Lord. Surely, knowing that this amendment was to he dealt with, I would have thought that the noble and learned Lord would have come armed with the relevant figures to respond. That may appear a small point in relation to this amendment, but it has wider significance because it has happened before. There is a general reliance on numbers and who will be there when the Bill is passed. I am concerned that the consequences are thought through rather than that there should be simple reliance on the manifesto as being sufficient. One must think through the position in the interim—not just the numbers but who they are—and the effect on business. Rather than make assumptions, I believe that there is a case for giving further thought in advance to what is involved and coming to the debate better armed.

Lord Falconer of Thoroton

I deal with the noble Lord's ticking-off. I believe that, rather than put forward my own argument, to take the Opposition's case in order to demonstrate the truth of my proposition is a more effective way of dealing with it. If one can demonstrate that the arguments advanced by the other side support one's own position that is often more effective.

Lord Gray

I am extremely grateful to all noble Lords who have taken part, particularly those who have supported me. With a little push from my noble friend Lord Waddington, perhaps the debate strayed rather wider than I anticipated. I am glad that we did not have to go so far as fully to involve the noble Lord, Lord Williams of Mostyn.

To try to sum up a debate of this kind is beyond me. However, I say to the noble and learned Lord, Lord Falconer, that when he gave his reasons for opposing the amendment he placed some emphasis on representation. My emphasis was on the position of the Act of Union. I do not deny that there are very many worthy Scottish life Peers in this House. I know them well and admire the work that they do, but that is not the point.

6 p.m.

I was very grateful to have some endorsement for my views on the Act of Union from the noble Lord, Lord Elton, and from the noble and learned Lord, Lord Jauncey. I was also grateful for the points made by my noble friend Lord Northesk.

There is a point about the Scots Peers which has not been mentioned in this debate. Many Scots hereditary Peers sit on the Cross Benches, whereas I suspect that the majority of Scots life Peers have come here if not through legal eminence, then by the political route. There are some who are even more independent Cross-Benchers, like myself.

This is a debate which I shall need to read with some care. There are obviously serious points concerning the impact upon the Act of Union, which is why I tabled the amendment in the first place, and its complexity is more than I can possibly digest this evening.

With your Lordships' permission, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Gray moved Amendment No.12:

Page 1, line 5, at beginning insert ("Subject to section (Peers of Scotland (No.2))")

The noble Lord said: I may be accused of being rather a nuisance because I rise again—for the same reasons. Amendment No.12 is a paving amendment for Amendment No.51 which contains the substantive provision; Amendment No.67 is consequential.

After the long debate we have had, it would be very unfair to weary the Committee by going over the ground which I covered when I introduced the last set of amendments and I certainly shall not do so. For the benefit of any noble Lords who did not hear my remarks then, I say only that the basis for my putting forward these amendments is preservation of the original Treaty of Union provision that Scotland should be represented in this House by 16 Peers of Scotland elected from their fellows each parliament. I have already reminded noble Lords that the provision was widened in 1963 when the 16 were replaced with all Peers of Scotland.

Whereas my Amendment No.50 was simpler in format, the scheme of which Amendment No.51 is the core would return us to the Article XXII position, with 16 Peers elected to sit and vote here. The use of an electoral system lines up with the scheme behind the amendment which we know as the Weatherill amendment. As we do not know how long the interim House will last, it would be reasonable to establish electoral machinery. For the avoidance of doubt, the word "only" is included in my draft to restrict the right to stand for election to those Peers who are Peers of Scotland only.

I feel very strongly that something should be done to avoid the consequences of the Government's proposal to repeal Section 4 of the 1963 Act, which had its roots in the Act of Union.

We are constantly reminded of the manifesto commitment which justifies this Bill. Perhaps I might be allowed to point out that the paragraphs dealing with devolution in that manifesto are headed, "Devolution—Strengthening the Union". I hope that the Government will recognise that these amendments would contribute to that strengthening. The Government's position appears to be contradictory. I beg to move.

Lord Mackay of Ardbrecknish

My noble friend's amendment would simply take us back to the 1963 position—that is, there would still be 16 elected Peers.

I doubt that there is very much to add to the previous arguments. I would take the opportunity to say, however, that I thought the noble and learned Lord, Lord Falconer, probably did not read out his noble friend Lord Williams of Mostyn's list of the Welsh Peers for exactly the same reason as, when I took part in the Welsh devolution Bill, I said that I would do everything, bar anything that asked me to get my tongue round some of the names. I suspect that is really the problem for the noble and learned Lord, Lord Falconer.

My noble friend Lord Strathclyde and I noticed that, in the distinguished list of Scotsmen which the noble and learned Lord read out, we were both missed out. As my noble friend is so young, I keep thinking that he is a life Peer—or perhaps I am assuming that the Weatherill amendment is already passed!

I listened with some interest to the points made by the noble and learned Lord, Lord Falconer. I shall be consulting various legal luminaries who delve into these matters to see whether he is correct that events have overtaken Lord President Cooper's judgment. It is possible that we may come back to that, but I shall leave it in other hands, and even to other voices, if there are points still to be argued.

With that, I simply say that, as with the previous amendment, my noble friend Lord Gray has done us a service in drawing to our attention the important way in which the Act of Union interfaces with this Bill as far as the peerage is concerned.

Lord Elton

As my noble friend has helpfully introduced the matter of electoral procedures, may I use this opportunity to ask the noble and learned Lord whether he can give us some assurance that when we reach the main debate on electoral procedures, which I presume will hinge on the Weatherill amendment, we shall by then have had an opportunity to see, discuss and digest the Standing Orders of the House under which it is proposed that those procedures shall operate, otherwise we shall be discussing this in somewhat of a vacuum?

Lord Falconer of Thoroton

Without any disrespect to the noble Lord, Lord Gray, I think that the principles which underlie this amendment are the same as those which underlay the previous amendment. The only difference is that it is an electoral college rather than all Scottish hereditary Peers being entitled to sit.

I shall not repeat the remarks I have made, but I do make this point in relation to the amendment: the effect of the amendment is to allow holders of Scottish and other UK peerages to vote in this electoral college as long as they have a Scottish peerage among their peerages; yet it allows Scottish Peers only to be elected, which in effect was the position before 1963 and which, with the greatest respect, is completely odd, because it means that people who have absolutely no right to sit here can vote in that strange election.

That is the only differential point. Again, I ask noble Lords to reject the amendment if it is pressed to a vote.

The reason I did not mention the noble Lord, Lord Mackay of Ardbrecknish, in the list was because my first remark was that once one had heard a speech of the brilliance of the noble Lord, Lord Mackay of Ardbrecknish, there was no need to worry about Scottish representation. I did not mention the noble Lord, Lord Strathclyde, because—this may be news to the noble Lord, Lord Mackay of Ardbrecknish—I understand him to be a hereditary Peer, although his talents would suggest that he had got here on his own merits.

Lord Elton

Is there any source from which we can be told about the availability of the Standing Orders? I know that it is wide of the amendment, but I can think of no other occasion on which we can ask for the assurance. When we come to that debate, we should then be briefed.

Lord Falconer of Thoroton

I am not in a position to give an answer one way or the other.

Lord Gray

I am grateful for the contributions we have had on the amendment. I shall not detain the Committee long. Before I withdraw the amendment, perhaps I may offer the following information. At present, so far as I can work out, some 41 Peers could vote but not stand in the election that I propose, and about 40 could stand for election. My mathematics are not necessarily very good, but I have done some research. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord Boardman moved Amendment No.13:

Page 1, line 5, at beginning insert ("Subject to section 4(I) and (1A)")

The noble Lord said: This is a paving amendment. I shall speak to Amendment No.112. The effect of the amendment is to put off the date at which the Bill comes into effect until each House of Parliament has passed a resolution that it will do so; and that it will not do so until the report of the Royal Commission has been considered by this House.

I believe that the amendment is attractive to the Government for many reasons. I think that it is somewhat difficult for the Government to oppose. It makes no attempt to change the underlying theme of the Government's alteration of this House. It does not attempt to argue against their manifesto commitment. It merely proposes delaying the Bill coming into effect until the Royal Commission has reported. I believe that all Members of this House, the public and the press think that that is right: that there should be no stage one without stage two. The amendment proposes that the Act takes effect only after the Royal Commission has reported and each House of Parliament has voted on the matter.

The only concession required by the Government is that the amendment allows hereditary Peers to stay in office slightly longer than they would otherwise have done. As there have been Peers in office for many hundreds of years, I do not think that that is a severe penalty to bear. The prize is that the Government will receive the wise advice and views of the Royal Commission in making this major constitutional change. If the Government do not accept the amendment, or an amendment along this line, the penalties are that they will create a vacuum for this House which will be stripped of all hereditary Peers and with a flood of new life Peers to balance the Labour ranks with those Peers who are left.

Is it right that this House should agree to pull down so rapidly a structure which is dependent upon centuries of history, and one which has worked reasonably well, with no plans for its reconstruction? We accept that the Government have a mandate to make these changes. We accept that changes are desirable in many respects. But they wish to do so at a speed which destroys the present structure with no idea of what they will put in its place. It is left to a Royal Commission. It is hoped that the Royal Commission will report at the end of this year. We are talking about a break of a few months in order that a wise body can bring forward suggestions for this House and another place to consider before finally sacking hereditary Peers.

One of the hallmarks created, rightly or wrongly, by the Government since they have been in office is the starting of schemes without seeing them through to the end. One can think of a variety of matters which they have started. The Government have then scratched their heads and have been unsure what to do. I ask that they agree to wait until the Royal Commission has reported before the Act comes into effect.

Baroness Blatch

My amendment, Amendment No.113, is grouped with my noble friend's amendment. It will not have gone unnoticed that they are similar. However, my amendment has a slightly tougher ending. Having spoken with my noble friend, I think that there may be a preference for Amendment No.113.

At Second Reading, the noble and learned Lord the Lord Chancellor threatened the whole House that if the Government were displeased by amendments that we may pass, or any delay that may be incurred, or some other as yet unnamed displeasure that we may cause, we may or may not have—depending on the whim of the Government or the Lord Chancellor of the day—a Bill with the Weatherill amendment. So I wish to make clear at the outset that my amendment is predicated with or without the Weatherill amendment.

I pray in aid the noble Lord, Lord Norton of Louth. Earlier he slightly chided the noble and learned Lord, Lord Falconer, for not coming armed with some basic statistics for previous amendments on the number of people who would be available to the interim House. I find it extraordinary that the Government not only do not know what stage two will be, but are not in a position to make an intelligent guess as to the size of the interim Chamber.

There is nothing in the Bill or the White Paper or from any of the discussions we have had which suggests to the House or the outside world that Members of the interim or stage two Chamber will be remunerated for their efforts here. So I do not know what pressures the Government believe that they can bring to bear on those Members who habitually do not attend this place, sometimes for very good reason. There may be reasons of health. It may be because work outside the House precludes them from attending here, or the logistics of getting to and from this House on a daily basis make attendance difficult. We have a number of Members of this House who attend infrequently, but when they attend they bring to bear a specialism, a specialty, a point of interest which is extremely valuable to the work of this House.

I do not write off the importance of the number of attendances. But as an interim Chamber, with or without the Weatherill amendment, we have an obligation to do our work properly. We have a scrutiny obligation. We have an obligation to man (as I prefer to call it, in the universal sense) the committees of this House. The work of those committees is extremely important to the work of Parliament. At the very least, the Government should be able to say with some confidence that the size of the interim Chamber, and the likely daily attendance of Members during the interregnum, will meet all those obligations regarding the quality expected of a second Chamber without too onerous a duty on individual Members.

Some of us are sceptical about stage two. Will it come at all? How long will it take? How difficult will it be to reconcile the different viewpoints about its shape, nature, role and functions? It is likely that the interregnum could continue for some time. However, if one takes the Government at their word, they are saying that they do not expect a delay between stages one and two. I suggest that they cannot have it both ways. If the second stage will follow quickly after the first, what is the point of an interregnum? If the second stage is not to follow without undue delay, it is important that we have a strengthened interregnum, against which the Government have set their face, or that we do not commence stage one until both Houses have seen the report of the Royal Commission and discussed it. It is then that with some confidence we shall have a better understanding of how long the interregnum will be and can move on to that stage and the definitive second stage.

I do not argue the finer detail and that the Bill should have gone through both Houses in order to implement stage two. However, I believe that at least we should see the report of the Royal Commission. There should be a discussion in both Houses, and a resolution should be determined by both Houses that it is timely to commence stage two. For that reason, I believe that the amendment in the name of my noble friend Lord Boardman and my amendment should be given serious consideration, even at the risk of offending the noble and learned Lord the Lord Chancellor and his colleagues in government.

I really am delighted that we are not cowered by those threats. This is important business; it is a serious constitutional change. However threatened we all may be—and we now know that we are all threatened, not just our hereditary colleagues—we have a duty to scrutinise this legislation. We have a duty to make it better, if that is possible and I believe that it is, and we have a duty to strengthen the interregnum arrangements or to delay their implementation until both Houses are satisfied that stage two lives up to the criteria laid down by the noble Lord, Lord Richard. It should be consistent with an independent, strong second Chamber that is able to keep the executive in check and balance.

Lord Graham of Edmonton

Before the noble Baroness sits down, can she help me on the following point? Not for the first time, reference has been made to the deprivation the Chamber will suffer with the absence of hereditary Peers. Many of my colleagues are unable to serve on committees because of the political complexion of the House. By agreement, the number of members of a committee is based on the proportion which the parties enjoy in the House. Can the noble Baroness tell us from where she gets the idea that in a House deprived of hereditary Peers there will be a shortage of Members who are willing to serve and to carry out its work?

Baroness Blatch

I can answer that directly. In an interregnum House without the Weatherill amendment, 750 Members will immediately leave. After examining the daily attendance over the past four or five years, and seeing who attends from the beginning to the end of business enabling the House to fulfil all its duties, including committee work. I believe that there will be difficulty in expecting the 300 or 400 who are left to do so. Even with the Weatherill amendment, the number will not be much higher. I believe that the number of Members who will be expected to attend daily in order to meet the obligations of the business of the House will present a difficulty. It is incumbent on Ministers to give us their intelligent guesses as to the likely attendance in the House with or without the Weatherill amendment.

Baroness Crawley

I listened carefully to the commencement argument put forward by the noble Lord, Lord Boardman, and to the attendance argument put forward by the noble Baroness, Lady Blatch, which have been ably answered by my noble friend Lord Graham. However, I am irresistibly drawn to the conclusion that these amendments are quite deliberately delaying tactics. They are an attempt to put the Bill as it stands on the back burner, on the long arm, as far away from becoming legislation in this parliamentary Session as it is possible to get away with.

What is so admiringly blatant about the amendments, which are designed to delay the removal of the right of hereditary Peers to sit and vote in this House, is that they are proposed in the teeth of a manifesto pledge which could not be clearer if it were written in letters 20 feet high and hung across the roof of the Palace of Westminster. The manifesto states—

Lord Strathclyde

Does the noble Baroness consider that just because the proposals are in the manifesto they cannot be debated?

Baroness Crawley

Of course not. I was referring to the admiringly blatant quality of the amendments which form part of the debate.

I know that noble Lords opposite will be extremely keen to hear again the quotation from the manifesto. It states: As an initial, self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute". That could not be mistaken for anything other than an intent at exceptional clarity in a manifesto which, as my noble friend the Leader of the House reminded us last week, was so popular it was on The Times' best-seller list for 1997. Another publication on the same list was The Little Book of Calm, which should be recommended reading for all those taking part in this Committee stage.

The delay in the Bill, which the amendments would create. most definitely goes against the spirit of the Salisbury convention. I imagine that it would be considered by the Government as an extremely wrecking route for noble Lords to take. The Government are totally committed to further reform. As we know, the Royal Commission is the first stage of that further reform. But the Bill stands alone in its intent for the very good reason, as noble Lords opposite are well aware, that linking the two stages of reform have historically led to stalemate and failure. Despite the best efforts of the noble Lord, Lord Boardman, and the noble Baroness, Lady Blatch, many of us will resist the delaying blandishments of these amendments.

6.30 p.m.

Lord Norton of Louth

Will the noble Baroness tell us precisely what wording in the manifesto Amendment No.112 does violence to? The amendment does not affect the stand-alone element, because the Act would have been passed. It does not affect removing the hereditary Peers' right to sit and vote; that would have gone by the Act; and it does not make it dependent on further reform, because it is merely awaiting proposals. So the amendment is neutral about what follows, and does not do violence to the words of the manifesto commitment.

Baroness Crawley

I believe very firmly that the spirit of the three amendments does do violence to the spirit of the Salisbury Convention, by inevitably delaying the Bill which, as a stand-alone Bill—a very clear, very short, 25-line, stand-alone Bill—should be able to go through in one Session.

Lord Norton of Louth

I was not aware that the Salisbury Convention was in the manifesto. With which part of the manifesto does the amendment conflict? As it stands, I cannot see that it does. I was going to intervene later to be helpful to the Minister who is to reply by pointing out that it does not do violence to it and therefore may actually be attractive to the Government.

Baroness Crawley

I am holding the section from the manifesto to which I referred. It states that the Bill is a stand-alone Bill which does not depend on any further reform, as the noble Lord has just stated. Therefore, amendments that call for delaying the Bill until further reform is decided, by whatever mechanisms are available in the future, are very much delaying tactics.

The Earl of Onslow

I am infinitely impressed by noble Baronesses who say "I have listened with great care" to the arguments advanced by my noble friends Lord Boardman and Lady Blatch and then produce a wodge of paper, several pages thick, so obviously written in about 0.5 of a nanosecond, as opposed to being prepared from the outset. So, with the greatest respect to the noble Baroness, I strongly suspect that her speech had been written before she listened to the argument. We have all done it—there is nothing to be ashamed of—but do not try to con us.

Baroness Crawley

The noble Earl, Lord Onslow, has many qualities, but I did not realise that he was, as it were, an angel or a ghost on my shoulder, watching me in the many hours between my looking at the amendments and speaking to them, and knowing whether certain parts of my speech were prepared before or after. I am amazed at his qualities.

The Earl of Onslow

I shall certainly rest on the noble Baroness's broad shoulders whenever she thinks it is necessary.

There is another point to make about the amendment, an amendment with which I am not in agreement. I would have been completely in agreement with it, had it not been for the Weatherill amendment. The noble Baroness says that we must not pass wrecking amendments, and that the matter was in the manifesto. The manifesto says quite categorically that the Government will get rid of the hereditary peerage. Lo and behold, they have agreed to an amendment, with which I too am in complete agreement, which drives more than a coach and horses through the original Bill. As wrecking amendments go, it is the whole Royal Mews—state landaus, the Irish state coach, the lot.

Therefore, we have a Bill that is genuinely capable of a little bit of improvement. I have been on record as wanting proper reform. Those of us who want reform look for a little more of the spirit that the Government have shown over the Weatherill amendment. I do not mind the fact that it needed the ability of a Byzantine theologist to make the Weatherill amendment work in line with the Labour Party manifesto. I do not hold manifestos up as holy writ. But we should give the Government credit for what they have done. Yes. let us try to make sure that their appointment system is more satisfactory afterwards; but if we accept this amendment, we shall be asking a bit much of them. Had it not been for the Weatherill amendment, I would have gone down this line time and time again, and I would have been as nasty as I possibly could be. But when somebody has made a concession, we should approach it in the spirit in which it is made.

The point about the whole Royal Commission and the Bill is surely this: if the Royal Commission reports quickly and its recommendations are passed quickly, that is all right but, if not, we must make sure that the Bill itself is a stand-alone measure.

I totally agree with my noble friend Lady Blatch that to pass an Act of Parliament which results in one House of Lords having lasted 700 years and another lasting 15 months is a fairly silly way of doing things. But we have agreed that. We must also ensure that, if the interim House lasts for more than 15 months or further change is postponed (because of what Harold Macmillan described as "Events, dear boy"), the Bill is as good as it can be. With the greatest respect to my noble friends Lord Boardman and Lady Blatch, I do not think that it matters whether or not that is done after the report of the Royal Commission. Therefore, I would not support them in this. The noble Baroness who has just spoken has completely missed the point of what has been discussed and what her own side has agreed to do. Let us give the Government credit. I am afraid that I cannot support my noble friends Lady Blatch and Lord Boardman.

Lord Monson

I cannot agree with the noble Earl. When the Bill was first conceived a couple of years ago nobody, whether in or out of government, knew that a Royal Commission was to be set up, still less that it would be required to produce its recommendations by 31st December this year, a mere eight months hence. On the contrary, it was assumed that any recommendations for major reform would take years rather than months to produce. On that assumption, it was not unreasonable to frame the Bill so that the hereditary Peers could be got rid of before the end of October this year—that is, if one accepts the Government's general arguments against the hereditary Peers, which I do not. However, the fact that the Royal Commission has been charged with making its recommendations in eight months' time changes things utterly. It enables, in theory at any rate, a much smoother, less abrupt and more logical transition to take place. However, the Bill as it stands unfortunately fetters the Royal Commission and may pre-empt its recommendations.

After all, the commission could very well conclude that the good governance of this country, the optimum handling of legislation and the restraint of the currently excessive powers of the executive all require the continued presence in Parliament, either permanently or for a limited period, of some or all of the hereditary Peers currently sitting in the House of Lords. But unless these amendments are agreed to, however strongly the commission might consider this to be the best option, it would not be entitled to make such a recommendation. This is a crazy state of affairs. Accordingly, I strongly support the amendments.

Lord Harris of Greenwich

We were all privileged to hear a heroic speech from the noble Baroness, Lady Blatch. "We will not be cowed", she said. Cowed by whom? Cowed by the noble and learned Lord the Lord Chancellor? What did the noble and learned Lord the Lord Chancellor say? He said that there was a bargain—a bargain to which the noble Viscount, Lord Cranborne, and the Government were parties. It does not seem to me that the noble and learned Lord said anything other than that there was a bargain and that the Conservative Party would have to pay a price for that bargain, a point to which I shall come in a few moments.

Certainly, the Committee has demonstrated a remarkable, if not altogether surprising, appetite for discussing these issues. In the October and February debates we had over 200 speeches, and last Tuesday, the first day of the Committee stage, we had a large number of additional Second Reading speeches. Some of those who participated claimed that they were speaking to probing amendments, as they were described, but there was and is nothing to probe. The only issue before us in reality is whether the Committee is prepared to accept the proposition that hereditary Peers should no longer be permitted to speak and vote in the House of Lords. That is the issue. It is the only issue before us. The Committee should recognise that.

The Earl of Onslow

Has not the noble Lord just made another Second Reading speech—the complaint he has made about others?

Lord Harris of Greenwich

I am responding to a speech by the noble Baroness, Lady Blatch, who gave us a full account of her views on the subject. I make no complaint about that. I propose to return to one or two points of general application made in the debate because we should recognise the issue that we are discussing when dealing with this amendment.

The noble Baroness, Lady Crawley, referred to the Labour Party manifesto. Indeed, she was quite right to do so. It has been mentioned once or twice before. Nevertheless, given the character of some of the speeches to which we have listened since the beginning of this Committee stage, it is right to remind the Conservative Party of what was in that manifesto. The same applies also to my own party. That is why those of us sitting on these Benches are firmly in support of the Bill.

It is right to remind the Committee yet again that both manifestos made it clear that this would be a two-stage reform, a point which is of fundamental significance in relation to this amendment.

Although there have been many fierce attacks on the Bill, the noble Viscount, Lord Cranborne, clarified the position when he spoke on the first amendment moved by the noble Lord, Lord Campbell of Alloway. The noble Viscount said: Tempted as 1 am by the prospect of supporting my noble friend's amendment. it is in direct contravention of what has come to he known as the Salisbury Convention". A few moments later, he added: I would strongly advise your Lordships against supporting on the first day of Committee stage debate an amendment the effect of which would be to wreck the Bill-. —[Official Report 20/4/99: col.1042.] That was clear, was it not? The problem is that the majority of the amendments now on the Marshalled List have, as their central purpose, the desire to undermine the main proposition within this very short Bill.

The question of the Weatherill amendment has been raised. My noble friend Lord Rodgers of Quarry Bank and I have indicated our concern about it. But the amendments before us now are far more substantial than the Committee recognises and certainly far more substantial than the noble Lord, Lord Boardman, suggested. First, they seek to ensure that when the Bill receives Royal Assent it should not come into effect until the Royal Commission has reported and both Houses would then be obliged—in some respects this is the most important part of the amendment—to pass resolutions before the Bill came into effect. I wonder what is the meaning of that.

The political consequences are clear. The Conservative majority in this Chamber could then vote against that resolution and the Bill would be dead. That is the reality. That is what we are discussing. There should be no misunderstanding. This is one of the most fundamental amendments tabled for Committee stage. For the reasons that I have indicated, what is being suggested is entirely unacceptable to us.

The problem is that a number of Members of the House—the noble Baroness, Lady Crawley, referred to it—are determined that they will organise a prolonged series of debates challenging the decision made by the British electorate two years ago.

Earlier this Session, we were promised by noble Lords on the Conservative Benches—and this was before the negotiations of the noble Viscount, Lord Cranborne, with the Government—some kind of political—

6.45 p.m.

Lord Stanley of Alderley

The noble Lord referred to a deal, a bargain, brokered between the Opposition and the Government as regards the Weatherill amendment. I do not know what that was. Perhaps the noble Lord will tell me.

Lord Harris of Greenwich

As we were not parties to it, I cannot answer the noble Lord's question. But as the deal has been reported rather widely in the newspapers, there is not much mystery about it.

Baroness Blatch

The noble Lord, Lord Harris of Greenwich, has prayed in aid the deal without knowing the details of it. Will he tell the Committee whether the deal precluded the tabling of any other amendment to the Bill?

Lord Harris of Greenwich

That is a matter on which the leadership of the Conservative Party will be in a position to judge better than I because, as I understand it, at the time the noble Viscount, Lord Cranborne, was fired as Leader of the Opposition by Mr.. Hague, he indicated that the noble Lord, Lord Strathclyde, had been party to some of those discussions. Therefore, the noble Lord, Lord Strathclyde, will be able to answer the question of the noble Baroness, Lady Blatch, without any difficulty.

Before the sad passing of the noble Viscount, Lord Cranborne, as Leader of the Opposition, we were promised some form of political Gettysburg. We were told that there would be the fiercest battle that the House of Lords had ever seen. Last week, we certainly heard the thunder of the guns; but, of course, there were no casualties because the guns were firing blanks. There was no Pickett charge for the army had disappeared. As soon as the moment of decision arose, nob1e Lords concerned withdrew their amendments.

The reason is clear. As a result of the talks, on which, no doubt, in a few moments the noble Lord. Lord Strathclyde, will be able to assist the noble Baroness, Lady Blatch, the Conservative Party is aware, as the noble Lord, Lord Strathclyde is aware, that it is on probation. If it attempts to wreck the Bill, its members know that the Government may drop their support for the Weatherill amendment which guarantees places for a minimum of 42 hereditary Conservative Peers in this House.

Therefore, until now we have merely witnessed a phoney war. Certainly, there has been a desire to wound the Government but there have also been grave doubts on the Conservative Benches about striking too fierce a blow against the Government, which could lead to painful reprisals.

The question for the Opposition is clear. If they support the amendment in the name of noble Lord, Lord Boardman, which is the paving amendment for the two others to which he referred, designed to delay the implementation of the Government's manifesto commitment, they are clearly in breach of the Salisbury convention. As we all recognise, they have an overwhelming majority in this House and if they go into the Lobby, they will win. None of us has any doubts about that.

As I indicated, for us, as I am sure for many others, this is a major issue of principle. The Committee deserves to be allowed to make a clear decision one way or the other. If yet another request is made for leave to be given to withdraw the amendment, we shall insist on a Division. The time has come to end the period of this phoney war. If the members of the Conservative Party then choose to use their majority to carry the amendment, so be it. The responsibility will be theirs.

Lord Strathclyde

I am intrigued by the speech of the noble Lord, Lord Harris of Greenwich, who makes much of the constitutional convention. There are two important conventions in this House. One is the Salisbury convention. Another is the convention that we do not vote against secondary legislation. I have yet to see the Liberal Democrats stick to that second convention. They are picking and choosing on the conventions that they decide to support and it is not good enough.

Baroness Knight of Collingtree

I must say to the noble Baroness, Lady Crawley, that it is a quite extraordinary point of view that just because a Bill is heralded in a manifesto, no amendments should be tabled to it in Parliament. That is the most extraordinary view to have expressed in this House.

Baroness Crawley

That is not what I said.

Baroness Knight of Collingtree

I am sorry, but my hearing is pretty good and that is precisely what was said. The noble Baroness said that because it was in the manifesto, that was a clear expression that the Bill was going to come through. I believe she said that it would be a one-stage Bill or a one-storey Bill; that it was obnoxious, appalling and against all sorts of conventions that anyone should put down amendments to it. I am bound to say to the noble Baroness that there are many people in this House who share with me a long period of time in another place. If it had ever been the rule that we were never to put down amendments or argue a Bill that was in a party manifesto, I think it would have been a surprising development for all of us and we would not have accepted it.

Lord Richard

I was sitting next to my noble friend Lady Crawley, when she was on her feet. I believe that the noble Baroness, Lady Blatch, interrupted her and asked her specifically if she was saying that there should be no discussion of amendments to the Bill. The answer my noble friend gave was clearly "No", that that was not her view.

Baroness Knight of Collingtree

We were not talking about discussions, we were talking about amendments. The noble Baroness quite clearly was angry that there were amendments tabled on this particular point.

Baroness Jay of Paddington

The noble Baroness refers to her long experience in another place which, of course, we all respect. She will be aware that in another place amendments of this kind—indeed, there were suggestions of amendments of this nature referring to what we would call the second stage of reform—were ruled inadmissible by the Table in another place.

Baroness Knight of Collingtree

Everyone who has had experience in another place, which includes many in this House, is aware that amendments can be ruled unacceptable and not debated. There is no argument about that. That was not the case that I was making. I was trying to tell the noble Baroness—possibly trying to extend her education of the general system of government in this country—that there is nothing wrong with an opposition opposing it. It is as simple as that.

I very much want to support, even if briefly, my noble friends Lord Boardman and Lady Blatch in the two amendments. To proceed before a Royal Commission has reported seems to me to be not only putting the cart before the horse but putting the cart in a position when the horse is not even in the stable. What in the world is the sense of having a Royal Commission to report on something when half of what it is to consider has already been dealt with? What, indeed, if the Royal Commission decided, as some of us feel to be the case, that the hereditary Peers have served this House, and continue to do so, extremely well; that they do about half of all the solid, slogging work of the House and are, indeed, valuable? The Royal Commission might well reach the conclusion that it would be wrong to get rid of such hard working people who work for nothing.

It may also point out that in the main it is the hereditary Peers who provide the youth in this House, which is a very good thing. There are many other cases which the Royal Commission might discuss and conclude by saying, "Wait a minute. You should not really have got rid of the hereditaries. You haven't thought this thing through. "

I am a little tired of hearing about the Labour Party manifesto. I remind the Committee that it has been reported that only 2 per cent of the people who admitted reading it knew anything about this suggestion. Of that 2 per cent perhaps only I per cent knew that there would be a one-stage Bill or even understood what that phrase might mean. After all, as I understand it, there were several other assurances in the Labour Party manifesto. It was not just a "one issue document" to which the people of this country overwhelmingly agreed. I am a little tired of being told that it was.

To go ahead without listening to the carefully thought through opinion of experts about this House and how it can be most effective seems to me to be absolutely absurd. Is not the Royal Commission going to look at how the House of Lords has worked all these years? If a Royal Commission is to be set up, I do not understand the sense in going ahead without listening to everything it might have to say on the efficacy of this House and the way business should be conducted here in the future.

Lord Bach

I have listened carefully to the remarks of the noble Baroness. May I take it from what she has had to say that she does not agree with the conclusions reached by the Mackay Commission set up by the leader of her party?

Baroness Knight of Collingtree

I am merely speaking to the two amendments as they are set down on the Order Paper. I believe that I am perfectly in order in doing that.

Lord Bach

Perhaps the noble Baroness will forgive me for coming back, and will answer my question. I think it is a fairly simple one.

Baroness Knight of Collingtree

The question asked had absolutely nothing to do with what I said or the two amendments. I am therefore perfectly in order in refusing to answer it.

Lord Desai

I have the greatest respect for the noble Lord, Lord Boardman, and the noble Baroness, Lady Blatch, as they both know. In pushing the amendment they have argued that if it was passed it would somehow improve the Bill. However, they also say that all the amendment does is not to amend the Bill but delay its implementation. Amendment No.113 states: shall not come into force". Therefore, it will not alter what the Bill says. It says, "Here is a Bill. Let us suspend implementation until January", in the case of the noble Lord, Lord Boardman, or—who knows when a joint committee of the two Houses of Parliament will be—let us say December 2000; that seems to be the consensus. Therefore, if we were to take their speeches at face value, they say, "Oh. no. We don't want to improve the Bill itself; the Bill is fine. We just want to delay its implementation".

Let us accept, as the noble Lord, Lord Harris, pointed out, that the requirement that there be a resolution by both Houses of Parliament is intended to be a Trojan horse for the amendment of the Bill in a way which is not intended in the Bill as it is before the House. The purpose of the Bill is stated at the top; namely, to remove the hereditary Peers. That is its only purpose. If the resolution of the two Houses of Parliament is not to alter the substance of the Bill, what is the point of the delay? It does not improve the Bill; it just delays it. If it is going to change its substance, then in rejecting the purpose of the Bill noble Lords are going against the manifesto of the Labour Party. My noble friend Lady Crawley said that she objected to a delaying or wrecking amendment. Discussing an amendment is fine.

Lord Boardman

I am grateful to the noble Lord for giving way. I said, or intended to make clear, that we are talking about the constitution of this House, which we hope will last for centuries afterwards. It is not unreasonable to have a delay of eight or nine months—which is the time for the Royal Commission to report—in order to set up what we believe to be the best constitution for this House. The delay is in order to have the considered report before the die is cast.

7 p m.

Lord Desai

With respect to the noble Lord, that is not what the amendment says. It does not say that when the commission has reported we will have another Bill incorporated into this Bill and we will consider that. His amendment says that the Act shall be as it is when it is enacted.

So the noble Lord is not talking about a second stage in these amendments, and nor is the amendment of the noble Baroness, Lady Blatch. They say: "It has been agreed that this Bill should go through as it is, but somehow, for various reasons—the atmosphere is not right; we are waiting for Hurricane Mitch or whatever else it is; we have waited 700 years—we are going to delay its implementation". But either the delay is going substantially to change the Bill and this is therefore a wrecking amendment, or it is otiose. We have reason to believe, therefore, that these amendments should be rejected.

Lord Crickhowell

The central issue for many of us in relation to this Bill is that we object to passing a constitutional Bill which leaves us in a black hole. I suppose it was characteristic of the noble Lord, Lord Harris of Greenwich, that he should speak so firmly in support of a vacuum. But I am bound to say that he is a little foolish if he urges us to fire the heavy guns. I can assure him that I feel no inhibitions, either because some deal has been done in which I was not involved or indeed because of any interpretation of the Salisbury convention, about firing guns. But I shall fire them at the moment of my choice and not at the moment of choice of the noble Lord.

I always feel that the noble Lord, Lord Harris of Greenwich, is desperately regretting that moment when he left the Labour Party and is seeking his way back as rapidly as he possibly can. But then his whole life, to use that immortal phrase of the noble Lord, Lord Goodhart, earlier, has been the development from a correct premise to a wholly fantastic conclusion.

I turn to the more realistic and sensible, but not very convincing, argument of the noble Baroness, Lady Crawley. She hung her hat solely on the manifesto pledge. One of the difficulties I have about the manifesto pledge arises from a criticism made by the Labour Party about the Conservative Party when it asked, "Why did you not get on with reform when you were in government?". The Labour Party had 17 years or so to work out its proposals for constitutional reform and all it was able to come up with was this simple, short manifesto commitment and this simple, short Bill. All the great brains, the think-tanks, the advisers that were working away for the whole of the 17 years, could not produce more. All the information I can get out of government, government departments, advisers in government—one still has a few ways to sift what is happening within government and government departments—is that the Government still do not have the faintest idea what is to follow this Bill and are relying solely on the Royal Commission to give them some ideas.

There is therefore a pretty strong case, when we are dealing with a constitutional Bill of this importance, to say, "We will not recklessly get rid of 'what we have at the moment until we can be pretty certain that we know what is going to follow on; at least until we have seen what the Royal Commission has had to say and Parliament has had an opportunity in both Houses to debate it". We know now that the issues are pretty complex, even if we did not know it before We now have the report of the Mackay commission, which was referred to by a Member of the Committee who has now left the Chamber. That did not reach any final conclusions; indeed, on perhaps the most difficult issue of all, as to whether or not to have an elected Chamber, it gave two options and left the matter for further debate and consideration. That is a subject about which some of us have strong views which no doubt we will present in due course.

If we had had doubts about the complexity of the issues, we could not have after reading the consultation paper issued by the Royal Commission with the innumerable questions it asks. And again, if we had had doubts about the matter, we could not have any after reading the views of the noble Lord, Lord Richard, In the short time since he left government he seems to be able to go far further in reaching firm conclusions about the future than his colleagues did over 17 years.

I do not have any hesitation in pursuing these issues. I shall not have any hesitation in firing the heavy guns in due course, at a moment of my choice and that of my colleagues. Of course, if the Liberal Party wants to start tabling amendments and joining in the fun, it is welcome. But I expect that it will withdraw from the battle as it has withdrawn from serious battles whenever they really begin.

In relation to the views of my noble friend Lord Onslow, I do not see anything in these amendments which makes me worry about the introduction of the Weatherill amendment, whether or not I favour it. I do not express a view about that now, though I may do later. It does not inhibit or prejudice the acceptance by this Committee of the Weatherill amendment and therefore, because I am not prepared to accept at any stage of this Bill that we should allow the Government on the strength of their manifesto commitment to leave the constitutional arrangements of this country in a vacuum, I shall strongly support the amendment of my noble friend.

Lord Richard

I heard what the noble Lord, Lord Crickhowell, said. I was flattered by his reference to me. I hope he bought the book and did not just borrow it from the library. He would have found it modestly priced and well worth the money.

Lord Crickhowell

I am grateful to the noble Lord for giving way. As the author of one book and another which is to come out, I have every sympathy and I will buy his book if he undertakes to buy both of mine.

Lord Richard

It depends how much the noble Lord's books cost and what the value is.

These two amendments are not ones the Committee should accept for one simple reason; that is, they both bring the matter back to this Chamber. After the Royal Commission has reported; after the joint committee has considered it; the matter then has to come back here in order for it to be decided whether this Bill, which the Royal Commission is not discussing, will be implemented.

Again, as the noble Lord, Lord Harris of Greenwich, pointed out—he was right to do so—we would be in the position where the implementation of this Bill, which would have passed the Commons and presumably passed this House as well, would again be subject to the veto which the Opposition hold because of the composition of this Chamber. I do not believe that either the noble Lord, Lord Boardman, or the noble Baroness, Lady Blatch, could conceivably expect the Government to accept an amendment which would mean that in perhaps 18 months or two years' time, after the Royal Commission and the joint committee reported, we would come back to this House and be again in thrall to the 300 hereditary Peers who take the Conservative Whip.

The figures in this House are always worth remembering when we are considering constitutional matters. I believe 476 Peers take the Conservative Whip; of those, 300 are hereditary. The Labour Party has 175 Peers, of which 18 are hereditary. Perhaps I may say to the noble Baroness, Lady Blatch, in parenthesis, that the Labour Party is perfectly capable of playing its part in running the committees and the work of this House without, if need be, 18 hereditary Peers. I imagine that would be the same for the Liberal Democrats. So the noble Baroness is simply trying to persuade the Committee that we cannot run the business of this House unless there is an overwhelming majority of Conservative hereditary Peers to do it.

The noble Baroness shakes her head. With great respect, that is the inexorable conclusion of the figures on the composition of this Chamber. She can shake her head as much as she likes but she cannot evade the conclusion. The fact of the matter is that, by and large, the hereditary Peers sit on the opposite side of the Chamber—300 of them. I am not prepared to accept, and I trust my party is not prepared to accept, that in order to run the second Chamber of the British legislature we have to perpetuate a system which gives such an enormous in-built Conservative majority to the Opposition in the House of Lords. It is an absurd proposition and should be rejected.

Therefore, to talk about a set of amendments which would mean that in 18 months' or two years' time the issue would have to come back to this Chamber, at which point the 300 hereditary Peers on the other side would no doubt, yet again, be able to make all the noise that they are now making, is, frankly, a proposition which I find deplorable.

Baroness of Knight of Collingtree

I have a question for the noble Lord before he sits down. Is it not the case that if they were constituted as they are at present, the Government could perfectly well vote down what this Chamber decided? Surely the noble Lord's point is not a very strong one.

Lord Richard

With great respect to the noble Baroness, the first answer to that is the fact that the Parliament Acts do not apply to resolutions; indeed, they apply only to Acts of Parliament. Secondly, for this to apply to an Act of Parliament, the procedure would have to start in the other place and then come to this Chamber. Therefore, unless we amend the Parliament Acts so as to give the government majority in the first Chamber—that is, the House of Commons—the right to vote down a resolution passed in this House, there is no other way of doing this.

Baroness Blatch

Does the noble Lord agree that we on these Benches have, throughout the whole history and record of our party in this House, honoured the commitment never to vote down secondary legislation? What is it that makes the noble Lord believe that a resolution of both Houses could be voted down by this party?

Lord Carter

That is not exactly correct. I should remind Members of the Committee that the 1968 Rhodesian sanctions order was voted down.

Lord Richard

My noble friend refers to the Rhodesian order, but a resolution of the House is not technically secondary legislation; indeed, it is a resolution. It does no good for the noble Baroness to shake her head again because, with respect, it does not advance the argument. All it does is make the noble Baroness's head shake. She really must apply herself to the point.

That side of the House is entitled to vote against a resolution of this House. I have no doubt whatever that, if this were to come back in two years' time on the basis of either of these two amendments, that is precisely what noble Lords opposite would do. Why would they do so? The answer is very simple. They would do so for the reason that they are now opposing the Bill; namely, that they want to preserve the Conservative majority here in the second Chamber. It has always been thus.

Lord Marlesford

I wonder whether Members of the Committee paid sufficient attention to the most interesting and important speech of the noble Lord, Lord Harris of Greenwich. It seemed to me that the noble Lord raised an interesting procedural point. As noble Lords know, I am a child in procedural matters. As I understand it, the mover of an amendment has the right at the end of the debate to propose to withdraw it. Normally that is taken on the nod, that is to say, without a Division, with all of us walking through the Lobbies.

As I understood the noble Lord, he suggested that at some time in the future an amendment might be put forward by a Member of this side of the Chamber, which the mover subsequently proposes to withdraw. He said that he would oppose the withdrawal and, presumably. that means that he would vote against it being withdrawn. Indeed, if Members on this side of the Chamber (and perhaps on the Government side) decided that they would like to have the amendment withdrawn, they would ensure that it was withdrawn because they would vote for that. I am not absolutely sure how that helps the noble Lord, Lord Harris, because the result would be precisely the same. It will not have been a question of deciding on the merits of the amendment; it will merely mean that we will have spent quite a lot of time going through the Division Lobbies to decide that the amendment should, by leave, be withdrawn. withdrawn.

7.15 p.m.

Lord Harris of Greenwich

Perhaps I may assist the noble Lord by referring to a debate on 19th March 1998 (Hansard cols.919 to 922) on the Crime and Disorder Bill and to the Division which took place thereafter. On that occasion, the noble Baroness, Lady Hilton of Eggardon, asked, with the leave of the House, to withdraw her amendment. At that point, the noble Lord, Lord Henley, the Opposition Chief Whip, said "No", and a Division followed. There is nothing unprecedented about what I said earlier; indeed, the Conservative Party has done this on many occasions in the past.

Lord Eden of Winton

We are in fact discussing two amendments proposed by my noble friends Lord Boardman and Lady Blatch. Of the two, I have to say that I prefer the former amendment tabled in the name of my noble friend Lord Boardman. I do so for the precise reason that, were his amendment to be accepted, the time-scale likely to be involved would be shorter. In other words, we would not have to wait for a committee of both Houses to report, as I understand would be the case with the amendment of my noble friend Lady Blatch. Following the report of the Royal Commission, I believe that it would take some time for a committee of both Houses to report.

As I understand it, the Royal Commission is doing its level best to report by the end of this calendar year. If that is the case, what my noble friend Lord Boardman proposes is extremely modest. He has suggested that the implementation of this Bill should await the report—and only the report—of the Royal Commission at the end of this year. That is not asking a great deal.

I believe that the noble Lord, Lord Desai, or the noble Lord, Lord Harris—indeed, it may have been both of them in curious harmony—indicated that there was the potential for delay beyond the end of the calendar year when the Royal Commission reports because of the proposal in both amendments that there should be a resolution of both Houses. I hope that I am right in saying this; but, if I am wrong, no doulbt someone will shoot me down. It seems to me that the sense of the proposal that there should be such a resolution lies in the fact that that would provide at least an opportunity for some account to be taken of the findings of the Royal Commission.

I believe that it was the noble Lord, Lord Monson—although it may have been one of my noble friends—who put forward the view that rather than proceeding as we are and taking a once-and-for-all decision in advance of knowing the nature of the findings of the Royal Commission, we should at least hear what it has to suggest. I cannot believe for one moment that the Government have set up this commission with their hands tied. Surely the Royal Commission has full scope and opportunity to make whatever recommendations it may choose. I suspect that the commission will take into account the terms of this Bill in its deliberations. However, it will know that by the time this Bill reaches its later stages it is likely to have been amended. despite the manifesto commitment, by Amendment No.31. tabled in the name of a number of Cross-Bench Peers, including the noble Lord, Lord Weatherill. If that were done, there would then be provision for retaining a number of hereditary Peers. The importance of that in the context of these amendments, and bearing in mind the possibility of the Royal Commission reporting with some regard to the position of those hereditary Peers, is that the latter might be retained for a longer period.

If the Government have agreed to the Weatherill amendment, which provides for the retention of a number of hereditary Peers—presumably for the good order and better working of the House; otherwise, I cannot understand why they have done it—they might also want to preserve that same group for a while longer so that we can understand the full import of the Royal Commission's findings.

I hope very much that the Government will feel able to accept at least the modest proposal of my noble friend Lord Boardman because it makes good common sense. If we are embarked upon this major change—I think every noble Lord in the Chamber accepts that there is no question of stopping the process—let us do whatever we can during the course of it to ensure that what comes after the change makes good sense. It is important that the position of the Royal Commission is not fully circumscribed by the passing of this Bill and that we should not bring it into force until the commission has had a chance to report. I hope very much that that will be the case. I do not see this as a wrecking amendment in any sense. I certainly do not feel that it is a wrecking amendment and I do not think that it should be interpreted as a wrecking amendment. I accept the principle of the Bill as predicated in the manifesto. The manifesto commitment will still be honoured when this Bill ultimately becomes law. All one is asking in a modest way is to hear something of what will take the place of this Chamber in the future before this Bill is enacted. I hope very much that the Government will feel able to accept at least the proposal of my noble friend Lord Boardman.

Lord Hamilton of Dalzell

I would regret very much leaving your Lordships' House but I am prepared to accept that it may be inevitable. I would particularly regret leaving it in the vacuum mentioned by my noble friend Lord Crickhowell. I feel passionately that I want to see what happens next. I accept the argument proposed by the noble Lord, Lord Richard, that once we know what will happen we could vote that out. However, it is far more likely in the tradition of your Lordships' House that we would accept the proposal and it would be voted out in another place if it made any sense. I suspect that that is what terrifies the party opposite; namely, that the proposal would be voted down by another place which does not wish to lose its powers.

Therefore it is highly important that we should see what is proposed and, furthermore, that there should be an incentive for another place to vote for a sensible measure in order to get rid of the hereditary Peers who remain. Why should we have a reason to stay if there was a proper and sensible alternative to our existence here? The difficulty which the opposite side has is that this matter has been outstanding for a hundred years. The Labour Party has longed to get rid of the hereditary Peers for a hundred years. It has longed for all kinds of things for a hundred years. Happily the collapse of the Soviet Union has abolished some of them. Socialism is rather out of fashion these days. Nevertheless, this archaic business of a hundred year-old shibboleth is talked of nowadays in terms of modernity. The whole thing is completely laughable. However, I support the amendment with all my force and if a Division is called I shall vote for it. It is of prime interest to me and I would not mind a bit seeing it go through.

Lord Strathclyde

This has been an important and significant debate. I suspect that we shall return many times to some of the themes that have been mentioned before the various stages of the Bill are completed. There are two immediate points to make. First, these amendments go some way to deal with the issue of no stage one without stage two. Secondly, they probe what I have called the tension between this Bill being a stand alone Bill and it being part of a two-stage process.

I am increasingly of the view that what the Government intend is that this should be a stand alone Bill and that therefore we should treat it as such. When the noble Baroness replies to the debate it would be helpful if she could give a definitive view of whether this is a stand alone Bill or what guarantees the Government are giving about the long-term future of this Chamber. It would be useful for the Committee to be told that.

Amendment No.13 is grouped with Amendment No.112 and also with the amendment in the name of my noble friend Lady Blatch. The effects of the amendments are broadly similar. They give Parliament a lock on the commencement of the Act until we know more about what may be in store for this Chamber in the future. The amendment of my noble friend Lord Boardman asks that we should at least have seen the report of the Royal Commission before purging the House of Lords. The amendment of my noble friend Lady Blatch goes a little further and asks that we should have the benefit of the report of the Joint Committee of both Houses before purging the Chamber. In that context I should remind both the noble Lord, Lord Harris of Greenwich, and the noble Lord, Lord Richard, that the statistics on the composition of this Chamber show that the Conservative Party has about 41 per cent. Even though I am no mathematician, that does not strike me as being a majority.

I do not think there is anything inherently unacceptable about these amendments. Indeed, I have come to the conclusion—Members of the Committee opposite have heard me say this before—that what is so reprehensible about this whole process is the sense that the Government are plunging ahead without knowing what will come next. The Government's policy is, "Act before you think, not think before you act. " That is one of the great hallmarks of this Government. It is not a distinguished epitaph for this Government to be remembered as the most thoughtless, least consensual and most partisan constitutional reformers in the history of the United Kingdom.

This is an unfit way to treat Parliament, or indeed the liberties of the subject of which Parliament is the guardian. In response to an intervention from my noble friend Lady Knight, the noble Baroness the Leader of the House said that this is the kind of amendment which was excluded in the House of Commons. However, I am afraid to say that in another place on 3rd March 1999 a proposed new clause dealt with the issue of the duration of the Act and stated that the Act would cease to have effect after the final report of the Joint Committee of both Houses of Parliament had been debated. Therefore even another place has debated this matter; it is right that we should do so too.

The noble and learned Lord the Lord Chancellor in his now infamous threat—possibly even opinion—in our Second Reading debate said that any kind of commencement clause was intolerable, The Government may think that that says all that needs to be said about this amendment; namely, that up with this the Government Front Bench will not put. I think that it says everything we need to know about the Government's attitude to constitutional reform. The Government's philosophy of "because I say so" is not enough. They have to deal with the issues that have been raised in this debate because we are dealing with the reform of Parliament. This Chamber has a right to know where it is going and what we shall end up with. Even if we do not have that right, surely the people of the country have the right to know what will happen. Even if the hereditary Peers do not have that right, should not the life Peers have an opinion right at the start of this process rather than half-way through? It is also right to expect that the Government themselves should know where we are going. We do not know that; the people of the United Kingdom do not know; the Government do not know; the Royal Commission has been asked for an opinion but that has not yet been delivered.

None of these amendments asks for a fatal delay; they are quite humble in their ambition. A small delay is asked for. We should know what kind of Chamber the Royal Commission proposes before we vote out of existence a Chamber that has worked well. We should know the kind of Chamber that Parliament favours before we vote out of existence a Chamber that has worked well. The irony is that later in the Committee stage we shall discuss the amendment in the name of the noble Lord, Lord Weatherill, which may leave hereditary Peers here for a further generation. Yet if the Royal Commission reports in December, these amendments would leave the hereditary Peers here for perhaps one extra month, or a few weeks more than that, after the end of this parliamentary Session; or, if we wait for a Joint Committee of both Houses to report, for perhaps six months or a year beyond that. These are not long delays in the 100 years that the Labour Party has waited for this great reform; it is no time at all.

What is the Government's attitude towards the Joint Committee of both Houses? Do they have a view as to when it will be set up after the Royal Commission has reported? Will that happen relatively quickly in a matter of weeks, or will the Government wish to wait far longer? Do they know how many members the joint committee will have and what the split will be between Members of this House and another place? Do they have a view regarding what timetable, if any, will be set for the joint committee's report?

My concern is that I still do not know what the Government are so afraid of. Are they afraid that the Royal Commission or the joint committee might see value in elements of the present House; or that they might not be able to justify in a year's time the high-handed action that they are pressing through now?

In considering the two amendments that are before us, I must say to my noble friend Lord Boardman that I marginally prefer the one proposed by my noble friend Lady Blatch because it allows the views of Parliament to be heard as well as that of the Royal Commission. If we believe in Parliament, it is important that its view should be heard.

Either way, this debate is about asking the Government to think again, to show some respect to the Royal Commission that they set up, albeit reluctantly, and to the two Houses of Parliament. before insisting on driving Members out of an ancient and successful House. The charge that the Government have to answer is a significant one, and I look forward to the Minister's reply.

Baroness Jay of Paddington

We have had another ingenious general debate. This evening we hive discussed the long-term reform of Parliament, procedure in this House and in another place, secondary legislation and the Royal Commission. We have also spent some time, albeit not completely directed in the right way, on Amendments Nos.13, 112 and 113, to which I shall now attempt to reply.

The amendments tabled by the noble Lord, Lord Boardman, and the noble Baroness, Lady Blatch, are in the Government's view another way of simply delaying the fulfilment of the pledge in the manifesto—I have no hesitation whatsoever in repeating that—to place the Bill, which we always said was the first stage of reform, on the statute book. I am grateful to my noble friend Lady Crawley for pointing out that the Little Book of Calm was on the best seller list together with the manifesto. So I imagine that it will come as no surprise to the Committee to learn that the Government are not happy to accept either of these amendments.

The noble Lord, Lord Boardman, in introducing his amendment, and the noble Lord, Lord Eden of Winton, said that there was no intention in the amendment to undermine the basic principle of the Bill and that their concern related more to the mechanics of the way in which the Government were proceeding to achieve this reform.

I say to both noble Lords, gently and with considerable respect, that that simply brings us back to the point that I made at Second Reading, which was taken up several times during that debate. If noble Lords are behind the principle of reform, it is rather strange that, during the 45 years in which the party they support was in government, following the first occasion when it was proposed that hereditary Peers should not sit in this House, no proposal for reform was made which was in their view sensible and which they could support. We are now dealing with the Government's Bill as proposed. It has always been clear that reform was proposed in two stages.

The amendment tabled by the noble Lord, Lord Boardman, provides that no resolution of both Houses could be made until the Royal Commission had reported. The noble Lord will be aware that it is most unusual to provide for the commencement of an Act of Parliament by resolution of the Houses of Parliament. I imagine that he will say in response that this is a significant and unique Bill—

The Earl of Onslow

I apologise for intervening, but will the noble Baroness answer one very simple question? Has she any idea at all what she would like in stage two?

Baroness Jay of Paddington

I am always tempted by the noble Earl's intriguing suggestions. I am sure there will be plenty of opportunities for us to consider my views, the Government's views and those of your Lordships at an appropriate time. This is not the appropriate time. We are considering the passage of the Bill and three precise amendments to it.

The Earl of Onslow

I did not ask what the noble Baroness's views were. I merely asked whether she had any.

Baroness Jay of Paddington

Yes, I have.

It is worth considering the way in which the amendment proposed by the noble Lord, Lord Boardman, would work. It suggests that an Act of Parliament passed by the usual methods could then be challenged by Parliament itself. I am inclined to accept the views of my noble friends Lord Desai and Lord Richard, and not to subscribe to the optimism of the noble Lord, Lord Hamilton of Dalzell. I believe that in those circumstances it is almost certain that the political majority in this House would enforce a perpetual veto on whatever was proposed.

We have been round this course on several occasions—

Lord Hamilton of Dalzell

Will the noble Baroness accept the fact that this House has always done so in the past?

Baroness Jay of Paddington

I am afraid that I do not entirely follow the noble Lord's intervention. The House has always done what in the past?

Lord Hamilton of Dalzell

As I understood it, the last reform, in 1968, was agreed by this House but was turned down in another place.

Baroness Jay of Paddington

Perhaps I may gently correct the noble Lord. It was in fact the White Paper on proposals that was put before this House and agreed. There was then a subsequent discussion about the Rhodesia sanctions legislation which was referred to in an exchange on an intervention by the noble Baroness, Lady Blatch. The Bill then went to another place, and we all know the history of that.

Lord Trefgarne

Perhaps the noble Baroness will give way. I believe that that is not quite correct. There was a Parliament (No.2) Bill which went through this House and approved the reforms that were proposed.

Baroness Jay of Paddington

I stand corrected by the noble Lord, but I believe his reference was to the previous occasion, on which the hereditary Peers voted on the White Paper proposals. However, perhaps I may move on.

The noble Lords, Lord Desai and Lord Richard, probably correctly predicted the future in suggesting that whatever was proposed by the Royal Commission would find both adherents and opponents and that, together, they would almost certainly delay any subsequent reform and indeed the implementation of this Bill.

As I said, we have been round this course a number of times. The Government have made very clear why they intend, and have pledged, to proceed to the reform of this House in two stages. One noble Lord, in speaking to an earlier amendment, said, and I support his view, that smaller and, more importantly, self-contained reforms are often the best way to proceed on constitutional matters. Anyone who genuinely wants to reform this House should join us in that approach and, frankly, not seek to delay reform by this kind of method.

I agree that some of the arguments made by Members of the Committee today are apparently rational and have the impact of an interesting discussion which would be worthy of appropriate debate when we come to discuss both the outcome of the Royal Commission and the next stages of reform. But I cannot say too often—

Lord Elton

Perhaps noble Lords will forgive me for intervening in a debate for most of which I have been absent. The Minister repeats a point that I have heard before. The Minister's reference was, "when we come to discuss". But it will not be "we"; it will be "they" so far as the hereditary Peers are concerned. It is because we are locked out of that discussion that we do not feel we can fulfil our duty to see that our departure does not leave the electorate undefended.

Baroness Jay of Paddington

The noble Lord may have missed the earlier discussion among your Lordships. Perhaps I did not use the appropriate expression. When I said "we", I was referring to the House in general and to the life Peers who, as we have discussed, we on this side of the House feel are probably more than capable of defending both the electorate and discussing the future of the House in a sensible fashion.

As I have said before—I said it at Second Reading and in the various debates that we have rightly had on this subject—we see the Bill as a self-contained act of reform. That does not, however, suggest that it is a single act of reform, to reply directly to the point made by the noble Lord, Lord Strathclyde. We are aware— again, I perhaps repeat myself; the Committee must forgive me but some of these arguments have been repeated several times&—that there have been several attempts this century that have shown that abolishing hereditary rights to sit and vote will simply not happen if it is tied to the search for a perfect long-term solution. As I said at Second Reading, the Government are not prepared to fall into that particular trap in 1999. We do not believe that we should do nothing just because we do not intend, and it is not yet possible, to do everything.

Amendment No.113 is tabled in the name of the noble Baroness, Lady Blatch. Some Members of the Committee seem to prefer that amendment; some seem to prefer the amendment of the noble Lord, Lord Boardman. After the earlier discussion on Amendment No.10A, I shall assume, unless I am contradicted, that the amendment of the noble Baroness is not official Opposition policy&—although of course the noble Baroness is a Member of the Opposition Front Bench and a Shadow Minister. I shall assume that the amendment is not official Opposition policy unless I am contradicted.

As the noble Baroness has said, and as other Members of the Committee have agreed&—

Lord Strathclyde

The noble Baroness is making a rather clever point, which I missed. There was an obvious pause, allowing me to intervene. If she was making a clever point, could she go through it again in a rather more simple fashion?

Baroness Jay of Paddington

To put it at its baldest, we are waiting for the noble Lord to give his advice to members of his party. If the noble Lord, Lord Harris, were to suggest that the Committee should divide on the amendment, is that something that the noble Lord would support?

Lord Strathclyde

The noble Baroness was here when I made my speech and heard me say that I marginally preferred the amendment of the noble Baroness. Lady Blatch. The noble Baroness and my noble friend Lord Boardman have not yet replied. They may take the view that their amendments are imperfect. At the moment it is an entirely hypothetical matter. It may he that their amendments are perfect in every way. The noble Lord, Lord Harris, is indulging in a bit of sport, a ploy; that is what he was on about. I am certainly not going to play the games that the noble Lord, Lord Harris, wants me to play.

Baroness Jay of Paddington

I am sure that the Committee will understand from that intervention precisely what the noble Lord intends. We on these Benches are a little confused. The noble Baroness, Lady Blatch, who we regard as a distinguished Member of the Opposition Front Bench and spokesman for her party, has tabled the amendment.

Baroness Blatch

I am grateful to the noble Baroness for giving way. It is a little rich for the noble Baroness to be very concerned and confused about my single amendment when the noble Baroness has no idea what size the interim Chamber will be or what the stage-two proposals are likely to be.

Baroness Jay of Paddington

I am attempting to address the amendment which stands in lie name of the noble Baroness. I am very happy to discuss numbers with her. As I said in an earlier response, I think that that issue is more relevant to a debate on the second stage of reform than to this Bill. The noble Baroness said, and the noble Lord agreed with her, that the resolution of both Houses of Parliament on the basis of the Bill should not even be put to either House until the Joint Committee of both Houses has reported on the findings of the Royal Commission.

By my reckoning, that would mean that there would be no possibility of the Act coming into force until at least the end of the next Session of Parliament. Perhaps, with a bit of luck, it would spill over into the Session after next. In that case, I imagine that the noble Baroness would argue that the Act should not come into force until after the next general election, when perhaps the electorate might be asked to give its view on both stages of reform. Then, perhaps subsequently, we would hear yet again, as we have from many noble Lords today—notably from the noble Baroness, Lady Knight—that the electorate neither understands nor appreciates the terms of these constitutional matters. However, I should point out to the noble Baroness that we operate in the real world and that if the report of the Joint Committee were to recommend, for example, some variation of the Royal Commission proposals, we would be faced yet again with the cry that the Government should do nothing until some further resolution was made.

To put it at its most simple, the Government do not intend to play the game (to use the terminology of the noble Lord, Lord Strathclyde) and to debate this serious issue (to use the terminology of the noble Baroness) in this way again. This time, in this form of legislation, on this Bill, there is one simple question: "Do you believe that hereditary Peers any longer have a place in Parliament?"—and the answer to that must be "Yes" or "No".

The Earl of Onslow

We have accepted that by accepting the Weatherill amendment, which is all about hereditary Peers. I am delighted that the noble Baroness has done so. It shows great flexibility of mind and great intellect worthy of her Oxbridge education, but the noble Baroness cannot have it both ways.

7.45 p.m.

Baroness Jay of Paddington

I am always delighted to be flattered by the noble Earl. But he may not have noticed that we have not yet reached the Weatherill amendment, although the Government were anxious that we should perhaps consider that amendment first in order to obviate some of the discussions that we have had in the last two days in Committee and no doubt will have again subsequently. That agreement was not achieved. We are now on an earlier amendment. I am seeking to discuss with the Committee why it is that the Government are not prepared to look hypothetically at the possibilities of either that amendment or further reform.

The Government believe that reform can succeed only on the basis of approaching this simple, unique, historic Bill on a one-stage, first-stage method of reform. That is why we have consistently proposed and argued for it. That is why we ask the Committee to reject the amendment.

Lord Eden of Winton

Before my noble friend rises, I have listened with great interest to what the noble Baroness has said. As I indicated, I somewhat leant towards the amendment standing in the name of my noble friend Lord Boardman because I thought that the amendment standing in the name of my noble friend Lady Blatch would go for a longer period of time. My noble friend Lord Strathclyde asked a number of questions about the Joint Committee of both Houses. In order that I may make the sort of judgment I may be called upon to make in a moment or two it is extremely important that I should have more information about the Joint Committee of both Houses. Surely the Government are not waiting for some other committee to report to them on what the Joint Committee of both Houses will be, how it will be comprised, when it will be put into place, how long it is likely to take and what its remit will be. Can the noble Baroness give some answers to the points made by my noble friend Lord Strathclyde?

Baroness Jay of Paddington

I can give the noble Lord the response that will always be given in your Lordships' House to matters of procedure of this kind, particularly to those which affect both Houses of Parliament. When the time comes, I am quite sure that those matters will be appropriately discussed by the usual channels. As to the request of the noble Lord, Lord Elton, concerning the draft standing orders on the amendment of the noble Lord, Lord Weatherill, which we shall come to—I did not mention it before because the noble Lord was not in his place—the noble Lord may be aware that the Clerk of the House put a draft to the Procedure Committee on 30th March, and that is now in the Library.

Baroness Park of Monmouth

Am I right in thinking that the manifesto, as well as making this decision, stated then that there would be a joint committee? If that decision was made so long ago, it is surprising that it is not possible to give any details of the thinking behind it.

Lord Strathclyde

I was going to make exactly the same point. The issue of the joint committee is not one just for the usual channels; it is a matter not only of government policy, but of manifesto policy. When I asked about when the Government intended to set up that committee, that was nothing to do with the usual channels; that was to do with the Government. I asked whether it would be in a matter of weeks or a matter of months; how long the Government envisage it lasting; and what they believe the balance between the two Houses will be.

Those are fairly specific questions. They are not the Second Reading points which the noble Lord, Lord Harris of Greenwich, thinks I make all the time. We have not had answers. If we cannot have answers, it is more difficult for my noble friend Lady Blatch to take a view as to whether this question should be divided on now. These are important issues. If the noble Baroness does not know the answers, it would be much easier for her to say that she does not know the answers.

Baroness Jay of Paddington

Of course I do not know the precise mechanics. I do not in any way feel ashamed of making that point. I am sure that there are many procedural questions of that kind which the usual channels will debate—questions about the form, the nature of the membership and the timing. We have always said that this would be set up once the Royal Commission had reported. That is not, as the noble Baroness, Lady Park, pointed out, in the manifesto because the manifesto referred exclusively to the Joint Committee of both Houses and not to the Royal Commission. But there has never been any question that once the Royal Commission had reported the Joint Committee of both Houses would be set up.

I am sure the noble Lord is aware that the White Paper said, in regard to the further procedures on this matter, that we would hope that both Houses of Parliament would be able to consider the findings both of the Royal Commission and of the Joint Committee of both Houses at some stage before the date of the next general election. If the noble Lord is now going to ask me to give him the date of the next general election, I fear I must disappoint him.

Lord Boardman

The noble Baroness accused me of putting down my amendment purely for the purpose of delay. That is not so. The purpose of the amendment is to persuade the Government to tell us what they have in store—to delay the application of the Act, if the Bill becomes an Act, until we have a Royal Commission report pointing out what is in store for us. They should not pull down this ancient structure of the House of Lords without having some plan on paper to show what we might expect and without having something of which we can be proud. So the noble Baroness is quite wrong in accusing me of delay. The sooner it could happen the better. It would have been much better if the Government had thought of a Royal Commission before introducing the Bill instead of having to be persuaded to do it.

A question arises as to whether my amendment or that of my noble friend Lady Blatch is to be preferred. By the time we vote on the amendments we will have agreed which would be the better line. There is a considerable degree of support for both amendments. I certainly very much support what my noble friend Lady Blatch said. I shall not go into what was said by the noble Lord, Lord Harris. His remarks came strangely and were rather ill-informed as to the purpose of the amendments. I beg leave to withdraw my amendment. We will reach the other amendments in due course.

The Deputy Chairman of Committees (Lord Skelmersdale)

Is it your Lordships' pleasure that the amendment be withdrawn?

Noble Lords


The Deputy Chairman of Committees

In that case, I have to put the Question, That Amendment No.13 be agreed to.

On Question, amendment negatived.

Lord Hunt of Kings Heath

I think that this might be a convenient moment for us to break. In moving that the House do now resume, perhaps I may suggest that the Committee stage should begin again not before 8.53 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.