§ 3.30 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.)
§ On Question, Motion agreed to.441
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Exclusion of hereditary peers]:
§ The Earl of Drogheda moved Amendment No.23A:
§ Page 1, line 6, at end insert ("except if, on the day this section comes into force, he is such a member and he has attained the age of 75 years")
§ The noble Earl said: This amendment is an extremely moderate one and my reasons for putting it forward are threefold. First, your Lordships' House is not a place where age, by its very nature, is a drawback. We have been conditioned to the idea of a retirement age. Sixty-five is generally considered the norm. For people whose jobs are largely physical or repetitious, that makes sense. However, for those whose work is stimulating, a statutory retirement age is not essential. Although such an argument may be put forward in areas where mental quickness and agility are of the essence, such as at the Bar or performing in the other place, they are not prerequisites in your Lordships' House.
§ It may be an advantage and it is certainly a pleasure to observe the swift exchanges of wit which frequently adorn this Chamber. However, there is another area where opinions based on mature consideration and reflection may be of more lasting value, and for such opinions time and experience are a help. Age also brings with it a healthy degree of scepticism, which is surely one of the necessary ingredients of a revising Chamber. Your Lordships' House is an ideal place for such contributions to be of use. I hope that my arguments suffice in convincing your Lordships that there is no inherent drawback to age in your Lordships' House and that it may well bring its advantages.
§ My second reason might be described as an aesthetic one, and although I realise that such an argument tends to be anathema in this country—and I use it with some caution—I do believe it is a valid one. We are privileged to sit not just in any large room but in this magnificent Chamber where a sense of history and continuity was achieved by the genius of Barry and Pugin, all the more remarkable when we reflect that this building is less than 150 years old. It is largely thanks to their art that our proceedings achieve a convincing gravitas. As we are all aware, the most dramatic change is about to take place here. The retention of those hereditary Peers proposed in my amendment would undoubtedly soften this change and I cannot but believe that the Government would prefer the physical landscape to change more gradually than the constitutional one.
§ Thirdly, and finally, I make my appeal on the grounds of humanity. Why, purely for the sake of an ideology, inflict the undoubted distress and humiliation that this Bill will cause, particularly on those for whom attendance in your Lordships' House has become of such central importance to their lives and where their long experience of life can be of such value? I beg to move.
§ The Earl of Longford
For fairly obvious reasons, I have a great deal of sympathy for the amendment but I cannot support it. We oldies are difficult to please. If 442 someone gives you a hand across the street, you rather resent it, particularly if it is given by someone of your own age group. Oldies are impossible to please.
I speak at the moment without an interest so I suppose I must declare one for the future. I happen to have been given a hereditary peerage many years ago and now I have been given a life peerage. I can think of only one other colleague who is in that bracket. It is a limited application. We oldies are very lucky if we are treated as well as anyone else. To be treated better than anyone else is something we have never thought of.
I sympathise with the view that you get wiser as you get older, until you lose your marbles. The point about this House is that when you lose your marbles someone persuades you not to come again. I am reminded of a very close friend of mine—I will not say who he was. His wife used to watch him sitting just below the Bar. One day he said to his wife (I will call her Angela but she was not called Angela) "By the way, Angela, you have to vote". I knew that his time had come. The time does come when you have to go.
I am all for old people being treated equally to everyone else. Although I find the amendment almost patronising, I respect entirely the motives of the noble Earl in moving it.
§ Lord Middleton
Were it necessary to declare an interest, which I do not think is the case, I would have to say that I will be 78 at the end of this week. I thought that the noble Earl might have had his tongue in his cheek in proposing the amendment, but he has proposed it with such charm and so persuasively that I take it at its face value. Taking it at its face value, I have to say that I do not support the amendment. The only premise under which the Government could possibly accept it would be that the over-75s were dotty and would pose no threat from these Benches. Looking back over the years, it is quite obvious that the opposite is the case. Noble Lords will call to mind as many names as I can. Indeed, some of the most effective debaters in this House have been over 85 years of age.
The tragedy about the Bill is that so much talent will be lost from all age groups. That might be mitigated by the Weatherill amendment. But if I were to pick an age group to be retained, it would be the under 35s. No. I would not wish to be here because I was in my dotage and only an ornament. That is the only conceivable reason for the Government accepting it.
In fact another reason occurs to me. The Government might accept it to demonstrate to the world that hereditary Peers were just a bunch of senile old men. I cannot support the noble Earl.
§ Lord Monkswell
As a relatively junior Member of your Lordships' House, with only 14 years experience on these Benches, I welcome the amendment tabled by the noble Earl, Lord Drogheda, and while I cannot support the amendment, I wholeheartedly support the reasoning behind it.
I speak in support of the sentiment behind the amendment as a precursor to Amendment No.31 in the name of the noble Lord, Lord Weatherill. If that 443 amendment is accepted, it will be necessary to determine the selection procedure for the 90 hereditary Peers who will remain when the Bill reaches the statute book. It is presumed that the only mechanism would be election. I suggest that there are two far more significant selection mechanisms: one on grounds of age, as suggested by the noble Earl, Lord Drogheda; the other based on seniority in terms of membership of this House. Either would be sensible, and both need to be considered.
During the limited time that I have been a Member of this House, I have heard contributions from Members with immense age, wisdom and experience. Perhaps I may give two examples. A few weeks ago, the noble Lord, Lord Renton, spoke on the subject of the First World War. The noble Lord said: "I was alive during the First World War". In what other Parliament around the world would there be a member with that experience who could contribute sensibly to parliamentary debate? Perhaps I may—
§ Lord Acton
I believe that Strom Thurmond of the United States Senate is rather older than the noble Lord, Lord Renton.
§ Lord Monkswell
I stand corrected; but that adds to the strength of the argument.
Another example is that of Lord Cairncross, who was able to contribute on the basis of having been a prosecutor at the Nuremberg war crimes trials. That brought an extra dimension to our debate. I am only sad that our colleagues in the other place did not listen to the points that he and others made about the Bill during its passage through this place.
My point is that an essential and positive feature of this House is that we do not discriminate on the basis of age. In fact, we positively welcome contributions from our more mature and senior colleagues. I hope that this debate will stress that important dimension in our parliamentary deliberations.
§ Lord Hacking
Before my noble friend sits down, perhaps I may correct him on one point. Lord Shawcross was the noble and learned Lord who appeared at the Nuremberg trials. "Lord" Caincross—more accurately, Sir Alec Cairncross—was the well known economist. Perhaps the confusion demonstrated by my noble friend illustrates why we should not remain in this House beyond the age of 60.
§ Lord Monkswell
I am glad to be corrected. But that is not a signal that older Members should go. Perhaps it is the younger Members who should go.
§ Lord Mackay of Ardbrecknish
I did not realise that this amendment was quite so important as it has turned out to be. It has provided an opportunity for the noble Lords, Lord Monkswell, Lord Hacking and Lord Acton, to go on the hustings, as it were, and present their credentials to their colleagues, who may well have to decide for whom to vote.
444 The amendment has introduced, albeit narrowly, an interesting point, to which the noble Lord, Lord Monkswell, has added. At the risk of damaging his future career, I agreed with much of what he said.
To link this matter to previous debates. the amendment, if accepted by the Government, would remove one of the arguments used by the noble and learned Lord, Lord Falconer, against his noble friend Lord Randall and a number of other Members who have argued that we should admit no more hereditary Peers but that those who are already here ought to be allowed gently to "die away"—not quite in an asymptotic curve. because such a curve never comes to an end; it moves into infinity. I doubt whether even the longevity of Members of this place will reach into infinity!
It would help, actuarially, to make sure that the hereditary Members of this House who remain d, to use a rather vulgar reference, die out reasonably quickly, in something like 15 years, as I was informed by the actuary, instead of 60. When I came here, I discovered that I was joining a sub-group of the population who lived much longer than anyone else. I Find that encouraging.
Many of our hereditary colleagues, and indeed life Peers, who are over 75 are very distinguished. We have just heard the noble Earl, Lord Longford, who, as he rightly says, does not now come into the category that requires saving because he has been saved by the life-belt of a life peerage coming downstream from Downing Street. I am sure that the whole House is delighted. But there are others in this House who have played, and still play, an important and interesting role. Perhaps I may give just a few examples. I see the noble Lord, Lord Strabolgi, in his place; the noble Lord, Lord Shepherd, is also very active in matters of the House; and my noble friends Lord Carrington and Lord Aldington are examples of over-75s who are extremely active. Examples on the Cross-Benches are the noble Lord, Lord Ampthill, and the noble Earl, Lord Halsbury. So there is an argument for retaining those of your Lordships who are over 75 and who bring the experience not merely of age but of having lived through events in this century from which we should still be trying to learn.
Perhaps I may comment briefly on the idea of drawing arbitrary retirement ages. My first proposition, based on my observations of your Lordships, is that dottiness is not necessarily a factor of age. If anyone asks me to prove it, I shall ask the noble and learned Lord, Lord Falconer, to plead the Fifth Amendment on my behalf. Given the assent that I hear from all sides, I do not require to prove it.
Equally, many noble Lords who are over 75, both life and hereditary Peers, still play an important part in this House. The noble Lord, Lord Callaghan of Cardiff, who is not in his place today, is always hugely interesting in his observations, based as they are on his great experience. My noble friend Lord Renton is another Member to whom noble Lords always listen with great interest. I see the noble Lord, Lord Barnett, in his place. I have made a quick check, and I see that the guillotine would just go down on him. We cannot have that, 445 because the noble Lord, Lord Barnett, is the only person who understands the famous Barnett formula. One of my noble friends shouts out, "Does he?". I simply say: "I hope he does", because it will become germane to debate in the near future when the Scottish Parliament gets started and wants some more money and people in the south perhaps want to give it less money.
There is a serious point here, although I cannot go along with the narrow angle that only 75 year-olds should be saved. If we are to save any hereditaries, those with a contribution to make are the ones who should be saved. However, it provides me with the opportunity to say a few words about retirement age.
§ Lord Mackay of Ardbrecknish
I am grateful to the noble Earl. I appreciate that his amendment is quite narrowly targeted. It is probable that many noble Lords take my view of retirement age: that it will always be two years ahead of the age at which I am now.
§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
I am grateful to the noble Earl for moving this amendment in such a moderate and elegant way. We cannot accept it, for a number of reasons. Underlying this Bill is the principle that a person should not be a legislator simply on the basis of heredity. This particular amendment suggests that there should be two processes, both genetic to an extent, to determine whether someone can be a legislator: first, parentage; and, secondly, the ability to survive. That does not seem to us to be a sensible basis on which people should be selected to play a role in the legislative Chamber. First, it would lead to the preservation of a number of hereditary Peers for perhaps as long as between 10 and 15 years, on the basis of actuarial tables. (I apologise for mentioning such a sensitive subject.) Secondly, the amendment is not put forward on the basis that this arrangement awaits the second stage but that it should continue in perpetuity.
In May 1998 there were approximately 113 hereditary Peers over the age of 75. I fully accept that in many, many cases age brings great wisdom, but it is also my experience that from time to time that is not so. Although very many people get better as they get older some do not. For all those reasons, unfortunately we cannot accept the amendment.
Perhaps I may refer to the eminent Peers whose names have been mentioned as an indication of the brilliance of age. My noble friend Lord Callaghan will survive because he is a life Peer rather than for other reasons. The noble Lords, Lord Shawcross and Lord Renton, will also survive because they are life Peers. As for "Lord Cairncross", I do not believe that he exists and, therefore, on any basis he will not survive.
The Earl of Drogheda: I thank the Minister for that reply. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.446
§ Lord Stanley of Alderley moved Amendment No.24:
§ Page 1, line 6, at end insert (", but any person who is excluded from membership of the House of Lords by virtue of this Act shall retain the right to correspond with Ministers of the Crown as if he remained a member of that House")
§ The noble Lord said: At this stage Amendment No.24 is merely a probing amendment. This is part of a series of amendments in my name and that of my noble friend Lord Caithness. Its prime objective is to discover what the Government have in mind for the future, in particular the interim House. I am also convinced that the public would like to know that.
§ Experience has taught me that the ability to write to Ministers is as good, or better, a means of getting a sensible answer from government and civil servants as chattering away in your Lordships' House, of which yesterday was perhaps an example. This has become very obvious in the case of the Bill: Ministers do not answer questions and appear not to care what happens to this House in future. I regard such an attitude as either thoughtless or irresponsible. It is probably both.
§ If the Committee accepts that argument, noble Lords may well ask why this amendment retains the ability for those who are to leave the House to obtain a reply from a Minister. I assure my noble friend Lord Mackay that I am not going on any husting. The reason is simple. Time and time again we have been told—and probably flattered—by the noble Baroness the Leader of the House, and most if not all of her colleagues on the Front Bench, that hereditary Peers are useful citizens. When we do not have to appear in this Chamber we shall be able to devote more time to being better and more useful citizens out in the sticks, where many or most of us have non-paid, voluntary jobs in the community.
§ I am aware of the so-called privileges. One of the reasons why so often we get the job of president or patron of such organisations is that we have been able to put those bodies' cases direct to government. Sadly, government now have an all-pervading influence on our lives and occupations, particularly charities. This was brought home to me forcefully the other day when I attended the annual general meeting of the Institute of Agricultural Secretaries and Administrators as patron. That body has a problem in obtaining academic grants—I believe that the noble Lord, Lord Carter, is aware of this—to train to meet an unsatisfied demand. I was asked what I could do. My reply was that I would write to the Government and, if the response was unsatisfactory, table a parliamentary Question. It is becoming increasingly difficult to get replies from the Government and they are inclined to be much delayed. At this stage I do not seek the right to ask a parliamentary Question, but this amendment would give those of us who leave the House the right to write and get a reply from a Minister during the interim period.
§ I am trying to persuade others to take on the odd job that I still have, not least because I am always being made aware of my age. I hope that future Members of the second Chamber will feel obliged to do so in due course. However, there is a snag in that those who remain, or are appointed, as interim Peers will have to be full-time, not part-time backwoodsmen like me and 447 many other noble Lords. Therefore, they will not have the time, inclination or—perhaps more importantly—involvement with such organisations for a long period of time which I believe is essential before taking on such jobs.
§ If the Minister has been listening and managed to follow my argument—I believe that the noble Lord, Lord Carter, is to respond—he may now realise that this is one of the arguments that he is bound to lose. If the noble Lord replies with the normal monosyllabic "no" it will mean that we have the duty to resign from the type of jobs that I have mentioned, whereas if he accepts the amendment it will be the first and probably last time that the Government have ever considered accepting something. I believe that it is a case of heads I win, tails the noble Lord loses. I beg to move.
§ Lord Mackay of Ardbrecknish
It is very brave of my noble friend Lord Stanley of Alderley today to move an amendment of any kind given the difficult position in which he placed the Government yesterday. I suggest to him that the only letter he is likely to receive from the Government is one ordering his instant execution. My noble friend makes the point that no one in this Chamber, including the Government Front Bench, disputes that a good number of hereditary colleagues play a valuable part in many organisations in the community, including local authorities and charitable bodies. One, but only one, of the qualities that they bring to those organisations is their ability to help them when it comes to a problem with government by corresponding directly with Ministers. It would be a pity to lose that important link, which must be helpful to government as well as those organisations, when the hereditary Peers finally left the Chamber.
I am not entirely sure that this needs to go on the face of the Bill. However, it would be a nice gesture if the Government stated that they and their successors intended that Members of the House who had to depart after the Bill became law, if it became law—I say that in case someone picks me up later—would be able to correspond with and get replies from Ministers as quickly as they do now. I would not ask for it to be more swiftly. I think that acceptance of the amendment would be a nice gesture on the part of the Government and a recognition of the service the hereditary Peers have given not only to this House and the country, but also to many organisations in the part of the country in which they live.
§ 4 p.m.
§ Lord Annan
Throughout the country individuals who are not Members of this House do superb voluntary work. They write to Ministers and may receive a reply. Why should there be a privilege of this kind?
§ Lord Mackay of Ardbrecknish
I sometimes wonder whether the noble Lord lives in the real world. Ordinary members of the public who write to Ministers do not receive replies from Ministers.
§ Lord Carter
Amendment No.24 seeks to provide for hereditary Peers who are no longer Members of the 448 House of Lords to correspond with Ministers on the same basis as when they were Members of the House. Throughout Whitehall it is the custom that Members of the House of Lords who write to Ministers will receive a reply from the Minister. The amendment would confer a right to receive a ministerial reply.
The noble Lord, Lord Stanley, always asks helpful questions. He made the point that hereditary Peers are useful citizens. Of course they are. So are life Peers. So are the thousands of people who hold neither a hereditary nor life peerage and who give valuable service to the organisations in which they are involved.
The noble Lord referred to the Institute of Agricultural Secretaries and Administrators. It took me back a long way. I was one of those involved in the foundation of that institute many years ago. I did not understand the noble Lord's remark about his duty to resign from all the voluntary organisations with which he is connected. I find that extraordinary. Is the only reason he is involved with those voluntary organisations that he has "Lord" in front of his name? I am sure not.
The noble Lord, Lord Annan, said it all in his brief intervention.
§ Lord Pearson of Rannoch
Does the Minister accept that it might not be the simple fact that he has "Lord" in front of his name but because of the influence that he might bring to bear in your Lordships' Chamber?
§ Lord Carter
I understand that entirely. Plenty of life Peers will be able to bring influence to bear in your Lordships' Chamber—in fact, over 500 of them.
As I am sure that noble Lords are now fully aware, the purpose of the Bill is to end membership of the House of Lords by virtue of a hereditary peerage. lf, after he has left this House, a hereditary Peer wishes to write to a Minister on a particular matter, he can of course do so. It is his democratic right, as it is for all other members of the public. The reply may come from the Minister or from an official. In both cases, the department concerned will endeavour to reply within its stipulated time-scale and as helpfully as possible. No provision is needed to preserve the right of a Peer, or of anyone else, to write to a Minister.
However, it would be wrong to enshrine in legislation the right of a noble Lord who is no longer a Member of your Lordships' House to receive a ministerial reply to his correspondence. To do so would require a creation of duty on Ministers. Why should hereditary Peers receive different treatment from other individuals who are not part of the legislature? Former Members of another place do not receive ministerial replies as of right; nor would they expect to receive one. I fail to see why former Members of this place should do so.
I should point out that throughout Whitehall it is the convention that Cabinet Ministers will always reply to Privy Counsellors irrespective of whether or not they are in the legislature. The Bill will not change that practice.
The Bill is about ending membership of your Lordships' House by virtue of a hereditary peerage. All rights and customs attaching to membership will come to an end. However, should a Minister wish to respond 449 personally to a letter from a hereditary Peer, that is his or her prerogative. I urge the noble Lord to withdraw the amendment.
§ Baroness Carnegy of Lour
If I may say so, that was an uncustomarily insensitive reply from the Government Chief Whip. The noble Lord was asked by my noble friend on the Front Bench whether the Government could say something a little sympathetic on the subject. I believe that the Government Chief Whip well knows the role that our hereditary colleagues play in voluntary organisations, and why they are there. It is partly, of course, because of their access to government through membership of this House; but it is also because they are who they are, with the experience and reputation of service that hereditary Peers have had throughout the years.
I hope that the Government will stop doing this. It absolutely disgusts me to hear the Government talk like this about people who have given distinguished service through the years. It continues to happen and it makes me quite angry. Perhaps I may ask the Minister a question. Will the hereditary Peers who are Privy Counsellors and who write to Ministers about business receive the same priority as life Peers who will continue to be Members of this House and who are Privy Counsellors?
§ Lord Carter
As regards the last question, I said, and I repeat, that throughout Whitehall it is the convention that Cabinet Ministers will reply to Privy Counsellors irrespective of whether or not they are in the legislature. This Bill will not change that practice.
I am amazed by what the noble Baroness says. I said nothing insensitive. I said that we are all aware of the immense service given to voluntary organisations by hereditary Peers. However, your Lordships have to realise that when a hereditary Peer's membership of this House ends, so will the customs, privileges and rights that go with it. That is entirely fair. That is not insensitive. It is a statement of fact. I am the last person to attack the vast amount of work that has been done over the years by hereditary Peers. But as regards their attachment to voluntary organisations because they are hereditary Peers and can therefore automatically receive letters of reply from Ministers, I hope that they are on the committees, or whatever, of the voluntary organisations because of the undoubted service they give.
§ Baroness Carnegy of Lour
I thank the Minister for that reply. When he departs from his brief he becomes his own courteous, sympathetic self. It is the government brief that is the trouble.
§ The Earl of Radnor
The Minister made a comparison between retiring Members of another place and those who will retire from here. He pointed out, frankly and correctly, that those in another place are in a way relieved of the duty of writing to Ministers and 450 receiving a special reply. But they are happy to be allowed to use the Bars and Dining Rooms of the House and to take other privileges of that nature.
§ Lord Carter
So far as I am aware, it is only the former Members of another place who come to this House who can use the Bars in the House of Commons.
§ Baroness Park of Monmouth
Perhaps I may make a purely practical point. Most of the hereditary Peers of whom we speak, with some exceptions, will be within only two or three years of the end of their time of service with whatever charities or public duties they are involved. It does not seem sensible to waste that investment (if I may put it that way) for the country. Why should it not be possible for them to continue until they cease to operate in that way? It is a practical point. They are involved in most of the organisations for which they work not only because of their sense of duty and service, but also because they can render a practical service to the organisation. Would it be so very difficult to allow that access to Ministers to expire with the end of their public service life?
§ Lord Carter
If we did so, we would have the invidious problem of the younger hereditary Peers who take an active part in voluntary organisations and who could be there for a very long time indeed.
The noble Lord, Lord Mackay of Ardbrecknish, said that he did not think that the matter was suitable to be placed on the face of the Bill. I am sure that those hereditary Peers who have had contacts with departments and Ministers will continue to provide extremely effective service for the organisations with which they are connected. But we are not prepared to place a duty on Ministers to reply in the way suggested by the amendment.
The Earl of Caithness
I welcome the noble Lord, Lord Carter, in taking up the batting from the Government Front Bench. It is always nice to have a new batsman and we welcome his fielding of the replies.
I hope that between now and another stage he can give a little more thought to the amendment. Having been a backwoodsman, having started life on the Cross Benches and having taken a leave of absence, I believe that there is a great deal to be said for retaining this right for former hereditary Members of the House to correspond with Ministers. When I was a Minister, I found that a number of charities, voluntary organisations and others benefited hugely. That is the substance of the issue: charities and voluntary organisations benefit; not the Peer himself. Organisations benefit from a hereditary Peer having the right of access by letter to a Minister of the Crown and receiving a reply from a Minister. Recently, my experience has been that some replies, not from Ministers, have not been as forthcoming as a ministerial reply. I hope that the noble Lord will think again.
Perhaps I may refer briefly to the convention that he mentioned which pertains throughout Whitehall. I must declare an interest as a Privy Counsellor. I have not always had a reply from a Cabinet Minister. I hope that 451 I shall in future. That is a particular privilege to which I shall be entitled. On the more general question, I hope that the noble Lord will at least take this away and think about it.
The Earl of Erroll
I may be able to help. As we notice a steady move towards a partyless system, perhaps people are worried about the delinking of an MP or a representative at Westminster from the general public. Perhaps this amendment is an attempt to preserve one of the last channels between the executive and the general public.
§ Lord Richard
May I suggest to the Committee that we are making heavy weather of a point which can be expressed, and was expressed by the noble Lord, Lord Stanley, in a relatively small compass?
What is wrong with the amendment is that it demands a right. It demands a right for people who have ceased to he Members of Parliament. I do not believe that the Government can legitimately concede that as a matter of right.
On the other hand, it seems to me that a Peer who has been active in a charity and who ceases to be a Member of this House because his peerage was hereditary and who subsequently writes to a Minister will not be treated any differently in future from the way in which he has been treated in the past. This is one of those issues, which so often arise, where there is a difference between the legal entitlement, which cannot be conceded, and the way in which people will operate in practice. The fears of the noble Lord who moved the amendment are, in this regard, frankly, somewhat illusory. I do not think that the Government can concede that as a matter of right. I should be very surprised indeed, if, as a matter of practice, there is any great change.
§ Lord Campbell of Alloway
I want to make the point straightaway that this cannot go into the Bill as an amendment. This sort of right, which is not a statutory right—it is a conventional right—cannot be enshrined in the Bill. I am not seeking that.
Yes, we are making heavy weather. I suppose it is because we are desperately seeking a humane, reasonable approach—a "gesture", as it has been called—from the Benches opposite so that it is recognised that this is not, so to speak, an individual request. It is a request on behalf of a body of people who have rendered great and valuable service to this country and who are willing and who wish to be able to continue to do so. Yes, that is heavy weather, but it could be made a very light affair by the kind of gesture that we are seeking. If we can never achieve a gesture, I believe there will be heavier weather.
§ Lord Brookman
I have listened carefully to the debate and I can speak from personal experience. When I left the House of Commons in 1969 or 1970 I was out of politics for five years. During that period I was able to write to Ministers and receive replies perfectly satisfactorily without the prestige of being a Member of your Lordships' House or of the House of Commons. In 452 other words, when you write to Ministers, they treat you according to the eminence of the job that you have at that time and in relation to the case that you present to them. I am sure that that will continue. There is no reason why it should not. I entirely accept the assurances of my noble friend on the Front Bench on that point.
Before I sit down, perhaps I can say to the noble Baroness who was offensive to my noble friend on the Front Bench that her remark was unnecessarily offensive. In no way did my noble friend try to belittle the work that hereditary Peers carry out in voluntary organisations. Indeed, he gave special credit to them. I think that the noble Baroness must have misheard him. In no way did he intimate that such Peers would be disregarded in the future. I believe that the attack on this issue has gone on long enough and that we ought now to reach a decision.
§ 4.15 p.m.
The Earl of Dudley
Unlike my noble friend Lord Caithness, I do not understand how any noble Lord on this side of the House can think that replies from Ministers in this Government are worth 20p, let alone 26p.
§ Lord Carter
I shall take up some of the points which have been mentioned. The noble Earl, Lord Caithness, welcomed me to the Front Bench on this Bill. If he had been here at 12.20 a.m. on Wednesday he would have heard me reply to an amendment from the noble Earl, Lord Clanwilliam.
On this amendment, we have heard only about the voluntary organisations. What about all the commercial organisations with which noble Lords are connected? Will they have the same right or expect the same duty to apply to a Minister to reply if they are well paid directors of commercial organisations? In fact, the head of an important organisation, whether or not a Peer, would receive a ministerial reply in any event, when appropriate. There is no need for such people to be Members of your Lordships' House for them to be taken seriously.
My noble friends Lord Richard and Lord Northfield, with their experience as former Members of the other place and now as Members of this Chamber, explained very well what will happen in practice. Some hereditary Peers very rarely attend, but are very active in voluntary organisations. Should they have the same right?
§ Lord Stanley of Alderley
I am pleased to hear the noble Lord, Lord Carter, say that because I was about to ask whether he would reinforce the remark of the noble Lord, Lord Richard. I thought the noble Lord's remark summarised my amendment as I would wish it to be summarised. Of course, I see the problems. Not for the first time, I agree with the noble Lord, Lord Richard. On many occasions I have not agreed with him, but I am delighted that he tried to encapsulate what I was trying to say.
One or two other points were raised by the noble Lord, Lord Northfield. I have fond memories of battles with him a few years ago. One point is whether the cart 453 comes first or the horse. Many of us are appointed to such jobs because we have the ability to use our influence on behalf of a charity. Strangely enough, it is difficult to get people to do such jobs. It will become even more difficult when everybody is professional.
Not for the first time, what has been said by Members of the Committee has made me think. I believe that the answer was summed up by the noble Lord, Lord Richard, my noble friend Lord Pearson and my noble friend Lady Park of Monmouth. They all hit the nail on the head. I may wish to return to this on Report, but I am happier having heard what the noble Lord, Lord Richard, had to say. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Renton of Mount Harry moved Amendment No: 25:
Page 1, line 6, at end insert—
("(2) But subsection (1) shall not apply in respect of any proceedings in the House of Lords on a bill introduced by a Minister of the Crown providing for—
§ The noble Lord said: I approach this amendment with a considerable sense of modesty as I have never moved an amendment in your Lordships' House before and I do not pretend to be a great constitutional expert. I do not believe that in a fairly long parliamentary life in the other place I ever made a speech about the length of a parliament or the constitutional duties and powers of the Crown.
§ I was, however, moved to table this amendment. I am delighted to see that a similar declaratory amendment by the noble Earl, Lord Perth, has been grouped with it. History reminds me that the length of a parliament is a subject that was discussed by our predecessors between 1907 and 1911 at the time of the Parliament Act 1911. But the subject has not been touched on in our debates about the reform of the House of Lords.
§ The issue is not only about the duration of a parliament, but the duration of a government. How long can or should a particular government remain in office without being required to approach the electorate and have its democratic role renewed by their decision? There is no minimum period for governments in this country. However, a Bill was introduced on a number of occasions way back in the 1890s which would have provided that no general election should take place within six months of an election previously held. Our predecessors were then worried about a government getting the result they did not want and immediately going back to the country without good reason to try to obtain a more satisfactory result.
§ I accept that it is a little time since a parliament lasted 17 years, but that was the length of the second Parliament of Charles II. Many of us forget—why should we remember?—that the Parliament of 1935 lasted for 10 years. It was renewed yearly by Herbert Morrison as 454 Home Secretary until 1945 because of the exigencies of war. I am sure that no one blamed the coalition government for that; it was accepted. However, against that historic background I considered that the question of the length of a parliament, and associated with it the constitutional powers of the Crown, should at least be touched upon in debate in your Lordships' House.
All of us would have been reminded that the 1911 Parliament Act was specific and that Clause 7 states:
Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act of 1715".
The previous Clause 2(1) dealing with vetoes in this House specifically provides that:
the absolute veto of the House of Lords shall not apply to any Bill containing any provision to extend the maximum duration of Parliament beyond five years".
§ Doubtless many in this House or outside will ask, "Why is he bothering? It is in the Parliament Act 1911. That is not being changed. Why worry about it?". The reason why I worry about it is because the composition of the upper House is being substantially changed by the measure now before your Lordships.
We must consider carefully whether the enactment in the Parliament Act 1911 is sufficiently valid within the context of an upper House whose membership is being substantially changed. I hope that your Lordships will not mind if in that context I quote briefly from the words of Campbell-Bannerman, at that time Liberal Leader, when he moved a Motion on the veto of the House of Lords in a three-day debate in 1907. In that, he made the reduction from seven years of Parliament an absolute and necessary part of the scheme to increase the powers of the House of Commons. He stated:
We consider that the undoubted danger that the House of Commons with the increase of power which we claim for it"—
as the Liberals did—
might for some years of its life have its genuine representative character impaired can best be guarded against by a more frequent reference to the electorate. This is, as is known, no new proposal. Most of us on this Bench have voted for quinquennial Parliaments and we believe that the reduction of the period of parliamentary existence to five years will add vigour, freshness and life to our parliamentary system".
§ The reduction from seven to five years went through in the 1911 Act with almost no discussion. Since then there have been occasional movements in the lower House further to reduce the term of a parliament. Austin Mitchell and Tony Benn, both Labour MPs, in the Reform Bill of May 1985 sought to reduce the maximum life of Parliament to four years.
§ Why is there such pressure for reduction? They were Back-Benchers, or Opposition Leaders, who were worried about the dangers of over-mighty government who were increasingly out of touch with the electorate and did not want any check on their legislative programme in a more or less independent upper House. In these days of focus groups and opinion polls such a government might find themselves seriously down in the eyes of the electorate and then say, "What we really need is 10 years to finish the job". I confess to having heard that said when I was a Minister in recent 455 Conservative governments. They might say, "We need 10 years to finish the job, so why not extend the life of Parliament to give us that further term?".
§ One should also add that there is a new volatility in voting which can make governments believe that if only they can hang on for a little longer everything will come right. They might be 20 per cent down in the polls but that might change over the next year. We arrive at the question of whether leaving the 1911 Act as it stands is adequate for the very much reformed upper House which we shall have.
§ In my judgment, all that turns on the remaining powers of the reformed upper House and of its constitution. Like many other Members, I wish that we had discussed those aspects before we came to the constitution of membership; but we did not and that is behind us. The key question, which I hope Ministers on the Treasury Bench will consider in the apolitical and serious manner in which I am attempting to approach it, is how independent of the House of Commons the second Chamber will be. There is no point in having an absolute right of veto in this House, which under the 1911 Act is given on any Bill to extend the life of the Parliament beyond five years, if this House is to be the poodle of the Prime Minister of the day.
§ It could he said that after reform has taken place this upper House will always have a majority by virtue of the Parliament of the day. If it is not of independent membership, and if it is in some sense the servant of the Lower House, one is then led to the question of whether there is an argument for a fixed term of Parliament of four years; a fixed term that is outwith the control of the Lower House. I would appreciate the views of the Treasury Minister when he replies to that.
§ The second part of my amendment touches on the relative question of the constitutional powers of the Crown. I had that in mind in the context of the duration of Parliament. It is true that the Crown is involved in the lengths of Parliaments and in the question of who shall be Prime Minister. All Prime Ministers are formally appointed by the Crown; but my own experience does not go back as far as the Crown preference for Bonar-Law over Austen Chamberlain in 1922 or for Baldwin rather than Curzon in 1923. However, I remember very well that when I entered the House of Commons in March 1974 Ted Heath was not then the leader of the largest party, but we thought that for some time he was looking into the possibility of forming a coalition with the Liberal Party which would enable him to continue as Prime Minister. It is obvious that if he had been able to make that coalition with the Liberals and promised them a certain number of Cabinet seats that would have put the Crown under considerable constitutional strain, because one assumes that the leader of the largest party, Harold Wilson, would have said that he, and not Ted Heath, should clearly be Prime Minister.
§ More recently, I remember as Government Chief Whip in 1990 having very serious discussions as to what advice we should give the Queen if the Prime Minister lost on the first vote in the party leadership ballot and wished then to give up her seals of office immediately, before the further elections had taken place to decide who was to be her successor.456
§ These are real problems that face the Crown. They are added to by the greater volatility in voting that I have mentioned, and perhaps also by the adoption of proportional representation, which is likely to lead to more cases in the Commons of no major party having an outright majority and therefore to one party seeking to form a coalition—I have just quoted the example of Ted Heath in 1974—and then to be able to form a government that can apparently command a majority. This will put a strain on the Crown in deciding whether to accept the leader of that coalition as Prime Minister.
As Peter Riddell, that very wise political commentator in The Times, remarked a few years ago,
The monarch's role as umpire only works if it is above controversy.
§ In the scenarios that I have just put forward there is a possibility of more controversy surrounding these constitutional powers.
§ It has been suggested, against this background, that the power to appoint the Prime Minister should be removed from the Crown and put out to a commission of the great and the good, or to the Speaker of the House of Commons. But at the end of the day who appoints the Speaker? Notionally it is done on an all-party basis. In fact, at the end of the day the appointment lies with the majority party in the House of Commons. Equally, who appoints a commission of the great and the good?
§ It seems to me that we all realise that there is a need for a bulwark of independent senators with whom would rest such final but very difficult decisions. That sounds very much like Athens of the 5th century BC, a son of Platonic ideal that is not possible these days.
§ Of course, I think of the Privy Council. I declare an interest; I am a Privy Counsellor myself. The Privy Council is all-party, it is independent and it is secret—it keeps matters to itself. Commonwealth countries, such as Canada, have representatives on it. Canada has a nominated Senate, and could therefore feed in to our discussions about what sort of upper House we should have in this country. There are judges on the Privy Council; the judiciary is very strongly represented, not only from this country but from elsewhere in the Commonwealth.
§ What does the Privy Council do these days?—virtually nothing. Yet I remember that practically the first Starred Question that I asked when I came to the House of Lords was whether the Leader of the House anticipated the Privy Council having any part to play in consideration of reform of the House. I received a one-word answer from the then Leader of the House, who is sitting on the Benches opposite: "No. " That is a pity, because the Privy Council might have had some useful thoughts from independent senators.
§ I put the amendment before the Committee in the belief that there could be a potential problem, one that needs to be thought about and discussed. If Ministers tell me, "Don't worry. What you're concerned about will never happen", I shall say "Splendid. If that is the case, there is no problem at all in accepting my amendment. " I beg to move.457
§ 4.30 p.m.
§ Lord Richard
I fear that what I have to say will not be quite so agreeable as my last speech.
The noble Lord, Lord Renton, moved his amendment, which he said was apolitical and reasonable, in his usual charming way. But this is a Bill about composition. It is not a Bill about powers. Everything that the noble Lord said may be germane to a measure dealing with the powers of the House of Lords, but there is no proposal before the Committee that there should be any diminution of the powers of the House of Lords in relation to the extension of Parliament beyond five years, nor that there should be any diminution in the powers of the House of Lords in relation to a diminution in the power of the prerogative. That is not before the Committee. The Bill deals solely with composition.
In tying the two together, the noble Lord's amendment, moved in a charming, rational and apolitical way, is grossly offensive to those of us who sit on this side of the Chamber. The essence of what he is saying—and how dare he say it?—is that the only people capable of dealing with these great constitutional issues and preserving the constitution are the hereditary Peers who are being ejected by the Bill. That is an astonishing proposition, which I totally reject, not only on behalf of the rest of us who are not hereditary Peers, but very strongly on my own behalf.
I have just as much constitutional concern as any Member sitting on the opposite Benches. The idea is ludicrous that in order to preserve five-year Parliaments the hereditary peerage must be kept in abeyance, sitting outside the Chamber so that if a Bill to extend the length of a parliament beyond five years is introduced they can all come trooping in as the guardians of the constitution.
I cannot believe that the noble Lord, who on most matters is very sensible, rational, apolitical and reasonable, really intended to be quite so offensive as the amendment implies. I cannot accept, nor do I believe, that the Committee can accept a situation where it is solemnly alleged that the only group of people who can be trusted with the British constitution are the hereditary Peers.
The noble Lord talked about the life Peers being in thrall to the Government. For the past century we have had a predominance of Conservative hereditary Peers in the House of Lords. The danger is not that Labour governments will produce a Bill to extend Parliament beyond five years. If the situation had been reversed and a Conservative government had proposed the extension of Parliament beyond five years, they would have started with a massive majority in favour. The presumption would have been that the Bill would be passed. The constitutional dangers are greater if the hereditary peerage stays than if it goes.
I apologise for speaking with some heat, but as the noble Lord went on, in his rational, apolitical and moderate way, I found myself becoming angrier and angrier at the implications of what he was saying. I hope 458 that in all the circumstances, when the noble Lord considers this in a calmer manner, he will seek to withdraw his amendment—and do it quickly.
§ The Earl of Radnor
Would we not be much happier about the future and not be worried, as is the noble Lord, Lord Renton of Mount Harry, who moved the amendment, forgetting how he wanted to solve the matter, if we knew what the House of Lords was going to be like?
§ Lord Richard
The noble Earl might be happier, but that is not the issue before the Committee. The issue is whether hereditary Peers should be deprived of the right to sit and vote. The strategy of the Labour Government on reforming the House of Lords is well known. We have been round this course many times. It is a two-stage process, of which this is the first stage. All that I am saying is that to tie the issues raised by the noble Lord, Lord Renton, to the argument about the removal of hereditary Peers from the House is illogical, does not make sense, and is deeply offensive to the other parties who are not Conservative.
§ Lord Crickhowell
I am flabbergasted by the tone of the noble Lord, Lord Richard, on this occasion, in suggesting that anything said by my noble friend Lord Renton was grossly offensive. It seems to me, on the contrary, that my noble friend raised a valid and important constitutional issue.
The noble Lord, Lord Richard, said that the Bill was about composition and not power. But if we are dealing with a constitutional matter the two things are intimately related, and must be. That is so because there is no safeguard in the arrangements for the temporary House to prevent the Prime Minister of the day fixing the nominations.
The nature of the appointments commission that is proposed by the Government, which is to be set up by the Prime Minister and the Government—that is to be dealt with on a later amendment—is concerned only with the appointment of Cross-Bench Peers. Indeed, the Government's White Paper says specifically that the Prime Minister will decide the overall number of nominations to be made by the Queen.
I know that we have had a number of undertakings. I am sure that those are intended and well meant. However, I should point out that we have had undertakings from the Government, which have been quickly overturned. Indeed, we had an example of that yesterday. Undertakings were given in this House about beef on the bone which were overturned 10 months later by a Minister in another place.
Although this legislation is intended to last for only a short time, it may last for very much longer. There may be a different Prime Minister in position by then. It is important that there should be a constitutional safeguard which is effective in any circumstances. A Prime Minister who was tempted to go to Parliament and the House of Commons and seek an extension of the life of Parliament from five to seven years would be precisely the kind of Prime Minister who may be tempted to attack this House. Indeed, if he thought there were 459 legitimate grounds for extending the life of Parliament, no doubt he would find powerful arguments for dealing with this House.
Therefore, despite what the noble Lord, Lord Richard, said, no constitutional safeguard is provided under the Bill as it stands at present. Surely that is a sufficiently important issue for it to be discussed in this Committee without arousing the fury of the noble Lord, Lord Richard. It is an important constitutional issue which deserves serious consideration.
My noble friend is right, too, to link the issue of the duration of Parliament to that of the constitutional position of the monarch. He drew attention to a number of important considerations regarding the appointment of the Prime Minister and the tensions which may arise in a variety of situations. But it is true also that questions are being asked at this very moment about the use of the Royal Prerogative. That is being raised by Members in another place. Therefore, the question of the role of the monarchy is currently being debated legitimately—I do not object to it—by Members of the party opposite.
Therefore, dealing with the most fundamental role of this House, which is a role of constitutional protection, we should understand precisely what we are doing, as should the country. I am sorry if any Member of the Committee opposite finds that grossly offensive but I hope that my noble friend and others will continue to debate the matter as it certainly deserves to be debated.
§ 4.45 p.m.
§ Lord Graham of Edmonton
The proposition which we are asked to consider was dealt with head on by my noble friend Lord Richard. However kind and sensible the proposition, it is perfectly clear that in the mind of the mover of the amendment, if not every Member opposite, is the thought that there is a need for the House to retain the intelligence and the national interest which resides in the hearts and minds of hereditary Peers.
What is the difference between life Peers and hereditary Peers either in their loyalty to the Crown or the observations of conventions and the constitution? There should be no difference at all and, in my view, there is not. I accept and understand that the hereditary Peers are faced with what, to them, is an extremely important event; that is, the exclusion from sitting and voting in this House. That is all.
On Second Reading we had a very lengthy debate in which many hereditary Peers, supported by their friends who are life Peers, put forward the case that hereditary Peers serve a useful purpose because they are motivated by service, loyalty, duty or pride. Life Peers are motivated by all of those feelings. What is the difference?
One element was left out of their argument; that is, the political element. Hereditary Peers told us that they come here because they are proud to continue the line of service offered by their families. I respect that. They felt that they had a duty to be here.1 respect that. But there was not one word about their allegiance to one party—the Conservative Party. In that debate, noble 460 Lords opposite spoke about many things but not about the party that dare not speak its name, the Conservative Party.
You can dress up the reasons why you do not want hereditary Peers to be deprived of the right to sit and vote. For my part, it is primarily a political issue. I sat on the Labour Benches and I was the Chief Whip. Therefore, I know, beyond doubt, that whenever there was a major vote there was no influx of life Peers; there was an influx of hereditary Peers. They came in out of a sense of duty, loyalty and service to their political party.
I am puzzled as to why noble Lords opposite persist in, first, denying their political heritage; and, secondly, using the time of the House to bring forward what are interesting debating points, but they are not the issue which is before this House. The issue on the Bill, the clause and the amendment is whether we are in favour of taking away the right of hereditary Peers to sit and vote in this House; and I am.
§ The Earl of Perth
I rise because my Amendment No.106 has been grouped with the amendment in the name of the noble Lord, Lord Renton of Mount. Harry.
I start by saying that we should not become too heated in this debate. We are discussing a Bill which may last for 50 or 100 years, a long period. Whatever the government of the day may say, the abolition of hereditary Peers will cause a fundamental change. I have lived for a long time and so the fact that I shall disappear does not cause me any concern. It is about time I did retire. It is extremely important to realise that this Bill proposes something which may well last—I hope it does—for a long time.
As I said, my amendment is grouped with Amendment No.25 which we are considering at present, and I do not quarrel with that. The sidenote to my amendment states: "Declaratory (No.2)". I looked up "Declaratory (No.1)". It concerns Amendment No.97, tabled by the noble Earl, Lord Caithness and the noble Lord, Lord Stanley of Alderley which covers very much the same ground. It states:Nothing in this Act affects the powers of the House of Lords".That is really what the Government are saying. I do not quarrel with that; I am delighted to hear it. However, when we debate that amendment let us remember that the purpose is abolition of the hereditary Peers; nothing else.
I remember being told, 40 or more years ago, that the only thing that counts in a Bill is what is actually in it. Ministers may give every kind of assurance—and generally we believe them—but when it comes to the crunch, to an interpretation, all that the law does is to look at what is in the Bill. That is of vital importance and that is why I tabled my amendment. Although there are all sorts of obstacles to this Parliament being lengthened, none of them is certain except the power of veto of this House, in whatever form, over the other place trying to extend its life or to extend the life of a parliament.
461 That being so, I very much hope that in one form or another—Amendment No.25, tabled by the noble Lord, Lord Renton of Mount Harry, Amendment No.97, or my Amendment No.106—this is accepted by the Government.
I had the pleasure of discussing the matter with the noble Lord, Lord Carter. He wrote me a helpful and thoughtful letter on the subject. I wonder whether he would either reply, quoting his letter to me because it is so valuable, or consider placing it in the Library. It states:I do hope what he [Lord Carter] said will put your mind at rest.I am afraid it does not. It is not that I doubt his intention in any way, or that of the Government. I would like to recall what I have always been told; that is, nothing counts except what is in a Bill in words. I appeal to the Government to consider the point and see whether they can help. The noble Lord, Lord Carter said he would do all he could to make it clear and give as many assurances as necessary. I absolutely accept that. However, as I have tried to show, assurances count for nothing when it comes to the crunch; that is, when we have to decide what a Bill says.
I therefore beg Members of the Committee not to think of this as being derogatory of the Government's intention but to think seriously of the worries many noble Lords have on the matter.
By introducing the amendment my noble friend Lord Renton of Mount Harry has done a good service. Perhaps I may say that he introduced it in an inoffensive, intellectual, and scholastic way. I am surprised that the noble Lord, Lord Richard, became more and more angered by it. He said that the Bill concerns only one issue; that is, getting rid of hereditary Peers. He must see that it goes a good deal further than that. He shakes his head. He seems to have tunnel vision. One cannot remove 600 or 750 people from Parliament and say that it has no outside or alternative effect.
§ Lord Richard
I am not saying that. Of course I know that it has an effect. The point made by the noble Lord, Lord Renton, is that the only way of preserving these constitutional prerogatives, and the only way of ensuring that no government extends the life of a parliament, is by bringing the hereditary peerage back into this House for the purposes of considering the Bill. I reject that on my own grounds. With respect, I am just as capable of looking after the constitutional position in this country as the noble Lord.
The noble Lord is far more capable of doing that than I am. However, he knows perfectly well that when one tables an amendment it is often a probing amendment. The noble Lord shakes his head again. That is another example of tunnel vision. It is unlikely that any future government or event would have the effect that all the Peers who had been ejected would suddenly come running back in. The point made by my noble friend is that this concerns a serious constitutional matter.
462 Perhaps I may say, with the greatest respect, that the noble Lord, Lord Graham of Edmonton, made the same mistake in stating that all the Bill does is to get rid of hereditary Peers. He asked why all hereditary Peers belong to the Conservative Party. I can tell him one of the reasons. Before 1958 a number of Peers were, quite correctly, created on the Labour Party Benches. Curiously, the majority of their sons became Conservatives. That was the reason for the introduction of the Life Peerages Act: to encourage more Peers on to the Labour Benches.
I hope that the noble Lord, Lord Carter will not reject this totally. It is a serious point but not an inflammatory one. If the Bill is passed as it stands, all hereditary Peers will go and we would be left with an appointed Chamber. We do not know what will happen about the Weatherill amendment, which is another matter entirely. That is what the Bill states and what the Government intend to do. That would totally alter the balance of powers and responsibilities between the two Houses and may well produce a constitutional problem. That is the reason why my noble friend quite correctly highlighted this point.
We do not know what the second Chamber will comprise or who will make the appointments. We do not know whether there will be 100 hereditary Peers. Because of the way the Government have introduced the Bill, the future is unknown. With respect to the noble Lord, Lord Richard, it is no good him saying, "Oh, well, this is only about getting rid of hereditary Peers. It doesn't matter. " This affects the constitution hugely and my noble friend is quite right to draw attention to the matter.
§ Lord Northbourne
Perhaps I may say to the noble Lords, Lord Richard and Lord Graham, that as a hereditary Peer I would be very comfortable if I thought that they would be in a position to make the decisions in future. Under those circumstances, I would be happy to go. However, alas, neither the noble Lord, Lord Richard, nor the noble Lord, Lord Graham, has the power to deliver. We do not know what this Chamber will be like when we, and possibly they, have gone.
§ 5 p.m.
§ Lord Goodhart
We have no objection to Amendment No.106 which stands in the name of the noble Earl, Lord Perth, but it is completely unnecessary because there is nothing in the Bill that alters the powers conferred on your Lordships' Chamber or reserved to your Lordships' Chamber by the Parliament Act 1911.
The amendment moved by the noble Lord, Lord Renton of Mount Harry, is another matter altogether. That is not acceptable to us because it retains the votes of the hereditary Peers for special circumstances. It is seriously defective in its drafting. There is nothing in it which prevents a Bill to extend the life of Parliament being moved by a government Back-Bencher with government support.
As for new restrictions on the constitutional powers of the Crown, those powers are now mostly exercised by the Government as part of the Royal Prerogative; for 463 example, the power to sign and ratify treaties or to declare war. Most of us would welcome a government who introduced a Bill to restrict their own powers to exercise the Royal Prerogative by, for example, allowing Parliament to have a voice in the ratification of treaties. But we do not see the need to have any special votes on such a Bill.
To get away from the defects in the drafting, the principle behind the amendment is equally unacceptable; indeed, more so. I do not believe that there is any prospect of any party seeking to exercise the power to prolong the life of a parliament in any circumstances, except the kind of grave national crisis which led to the extension of the lives of the Parliaments elected in 1910 and 1935. But if any party did seek to do so, the life Peers of all parties would have the independence and courage to resist the attempt. I do not believe that the life Peers on the Conservative Benches feel themselves less independent than do their hereditary friends. I ask the noble Lord, Lord Renton of Mount Harry, whether he feels less capable of exercising an independent judgment than his noble friend Lord Ferrers. I do not believe that he does.
If a Conservative government tried to extend the life of a parliament and the Conservative Peers believed that they were wrong in doing so, would they vote against their own party? I believe that they would. If they would not do so, the whole argument that your Lordships' House is a bulwark in its present form against the power to extend the life of a parliament must fail. But if it is true that the Conservative Peers would be prepared to vote against their own party if they believed it was acting wrongly in seeking to extend the life of a parliament, that must equally be true of the Peers of other parties. whether they are life or hereditary Peers.
I may have expressed my views less provocatively than the noble Lord, Lord Richard, but in essence my views are exactly the same as the views expressed by both him and the noble Lord, Lord Graham of Edmonton. I do not believe that the amendment is justified.
This is one of the most important amendments tabled to this Bill and I hope that the Government will look at it very seriously. It may not be correctly drafted, as the noble Lord, Lord Goodhart, said., but that is not the point at issue.
The important constitutional point at issue here is whether or not the House of Lords would have the power to prevent the life of a government being extended. The amendment, moved in a balanced and moderate way by my noble friend Lord Renton of Mount Harry, linked with that of the noble Earl, Lord Perth, makes that important point.
It would be extremely unfortunate if the debate descended into a kind of wrangle as to whether hereditary or life Peers are more independently minded and act more responsibly. That is not what this is about. The truth is that when we determine a constitution, like any legal document, we look at the opportunities for doing things which none of us sitting in this Chamber today would think are right. But one cannot possibly 464 know what a future Chamber might consider to be right. That is why I feel that the final argument of the noble Lord, Lord Goodhart, does not stand up.
In making these judgments one has to consider what a future Chamber might think it right to do. Those of us who have been in politics for a long time know that there are situations in which temptations and arguments are put up which are quite wrong; and one likes to feel that one is independently minded enough to stand up against them. I believe that I can say that I am independent minded and have stood up against arguments which I felt were wrong. In constitution-making, we have always to prepare for the worst and make the assumption that such things are possible. I can accept that these amendments may not: be correctly drafted, but this is an important issue that needs to be addressed and I hope that the Government will address it.
The Earl of Errol
Perhaps I may say quickly from these Benches that I am a little tired of hearing how all hereditary Peers sit on the Conservative Benches. They do not. A significant number of us sit on the Cross Benches and if one other party joined with the Cross Benches, we could defeat the Conservatives. That is a straight fact. They do not have an overall majority in this Chamber.
Having dealt with that matter, the real problem here—. the reply of the noble Lord, Lord Richard, was very ingenuous—is that this country does not have a constitutional court. We have no final long-stop. If the executive can gain control over everything, that is it. At the moment, for many members of the public and Members of your Lordships' Chamber, the only long-stop left is the hereditary Peers, inadequate as that may seem to many. If another Bill before Parliament: gave a different constitutional, irrevocable long-stop, I am sure that we would have no problem with the Bill going through at the moment. We are therefore attempting to put in other long-stops.
The 1949 Act has shown how it is possible to revoke certain provisions in other Acts. The 1911 Act contained certain protections. The 1949 Act shows that those protections can be overturned. In fact, the 1949 Act, as an example, could overturn Clause 7—the quinquennial Act provision—to reserve powers to the Lords under the 1911 Act. It therefore concerns me that whatever we pass now can actually be revoked. It does not matter what constitutional protections we put in; it can be revoked by a government and pushed through. That is what worries me.
As I said in my Second Reading speech, I am worried about who governs my grandchildren. I am not worried about going on sitting here; I am worried about the future. I find it very difficult when I listen to people of great and good intention who are honest, sincere and would do their duty—like the noble Lords, Lord Richard and Lord Graham of Edmonton, whom I respect greatly; I know I can put great faith in them—who believe that they can trust a successor of either political colour. No one can guarantee that this interim House will not last for another 100 years. So these provisions will go on and we should try to think how we are going to put in 465 some constitutional safeguards and stop rejecting them out of hand. The only constitutional safeguards we have at the moment are the hereditary Peers unless we provide for a constitutional court in this Bill. If the Government wish to do that, let them come forward with it; I am sure we would all vote for it.
§ Viscount Cranborne
I am sure Members of the Committee will agree with me that we owe a debt of gratitude to the noble Earl, Lord Perth, and to my noble friend Lord Renton of Mount Harry for putting forward, in the one case, his declaratory amendment, and in the other, his probing amendment.
The whole House seems to feel that the noble Earl merely reflects a statement of the case as it is. But we owe him a debt of gratitude because it is often forgotten—and had been forgotten until the reform of your Lordships' Chamber once again floated over the political horizon—that one of the most important and, we hope, permanently dormant—politically at least—powers of your Lordships' Chamber is its power under the 1911 Act to preserve the provisions of the quinquennial Act. For that reason, it seems to me that the declaratory amendment proposed by the noble Earl is a useful reminder, whether or not it is eventually incorporated into the Bill.
As far as concerns the amendment of my noble friend Lord Renton of Mount Harry, I also think that we ought to be grateful. During the course of my noble friend's extraordinarily interesting analysis of his amendment I believe he made it clear that, if the provisions of the Quinquennial Act are to be preserved, the quality which matters most for your Lordships' House after the passage of the Bill is independence. It matters for virtually every other issue that this Chamber concerns itself with, such as the revision of legislation and its more day-to-day functions. However, by definition, this long-stop function matters more than anything else. Indeed, that independence is the crux of the argument which has flowed backwards and forwards across the Chamber this afternoon.
I believe it was my noble friend Lady Young who, wisely, observed during the course of her remarks that we should not legislate on the assumption that people of good will interpret the legislation. She said that we should legislate on the assumption that governments in particular will be tempted to act in certain ways. From my limited experience of governments, of all persuasions, I do not think that it is necessarily always ill will that tempts them; it is expediency. Above all, it is the feeling, which is perhaps natural in any government, that they are the embodiment of the instrument of doing what is right. They feel that there is a sort of moral obligation which enables them to become a little less scrupulous, especially after long periods in power, than perhaps a number of us would like to see. I hasten to add at this point that I am not referring to governments of any complexion in that remark.
However, I also think that it is especially important to consider now the question of the effect of legislation on governments who are driven, for whatever reason, to become unscrupulous. After all, we are not only living 466 in a period of very great constitutional change as far as concerns our own country; we are also living at a time when the existence of the nation state as the basic political building block within our planet is under challenge. As a conservative with a small -c"—and, of course, with a big "C"; but particularly with a small "c"—that is not a view to which I subscribe. But it is increasingly asserted that the day of the nation state is gone.
We must assume in this House and in the consideration of legislation that the nation state is something which will endure for the purposes of this Bill; and that safeguards affecting the nation state should continue to be incorporated. But if, for example, this view, which I deplore, were to become more prevalent I suspect that it would be increasingly easy to argue, if only for reasons of expediency, that constitutional safeguards which guarantee the continuance of the nation state, in the form that we understand it, should be undermined. Indeed, not only that they should be undermined but, also, in the modern global world in which we all live, that they represent something which does not particularly matter. After all, in international organisations there are great platonic guardians who know what is good for us better than we do.
Therefore, for all those reasons, I think it is extremely sensible for us to ensure that the preservation of the provisions of the Quinquennial Act is kept as the cornerstone of the functions of your Lordships' House, whether reformed or unreformed. As I said, I believe that my noble friend Lord Renton of Mount Harry did us a service by drawing our attention to this so early in our proceedings. However, with the greatest respect, where I begin to part company with my noble friend is on the issue as to how sensible it is to imply that any group of people outside the membership of either House of Parliament should have a reserved constitutional role which acts as a sort of guardian for Parliament. Some people may say that, in due course, judges may have a say in that role. Again, this may betray my conservatism in every sense of the word, but I actually think that this is the sort of question which properly belongs in Parliament, especially in the upper House.
I believe that I have made clear during the past few weeks my reluctant conclusion that the day of the hereditary Peer is over, but I shall not rehearse those arguments again and risk boring noble Lords more than I usually do. Nevertheless, however much I may or may not deplore the departure of the hereditary peerage, I find it constitutionally odd that Parliament itself should not be trusted to perform one of its central functions in its control of government; and that Members of Parliament alone—particularly, in this instance, Members of your Lordships' House, whether reformed or unreformed—should not be trusted to maintain the provisions of the Quinquennial Act.
Having said that, that does not mean to say that I do not greatly sympathise with the very real problem identified by my noble friend Lord Renton of Mount Harry. For reasons that I have tried to explain, I fear that we would be wise in this House to doubt the reliability of governments of any colour when put under enormous pressure and when they may feel that it is 467 expedient, for example, to change the provisions of the Quinquennial Act. One of the difficulties that any government would have with your Lordships' House in the form as at present proposed would be the sheer mechanics of flooding this Chamber with enough people to win a vote. With a very large number of Peers allowed to sit and vote, the number of peerages which would have to be created in order to overcome an inbuilt majority against the Government for a Motion of the kind that we are envisaging would present difficult mechanical problems, especially if it had to be accomplished in a hurry. But that, in itself, is a safeguard.
I suspect that that safeguard will, by definition, be somewhat eroded with the very much smaller House that we will see, even though the Government have told us that they intend to maintain broad parity with the Conservative Party alone and not seek an overall majority in your Lordships' House. Under the very severe circumstances which might lead to a proposal for the overturning of the Quinquennial Act, I suspect that a government would not be too inhibited by that undertaking.
I should tell my noble friend that I do have a difficulty with the solution that he proposes to the problem that he has identified. However, that does not mean to say that I do not think that he is absolutely right in his view that the problem does exist. If the Government agree with me that the way my noble friend has suggested for dealing with this problem is perhaps not the ideal one, I wonder whether they could give us an reassurance that perhaps some thought might be given as to how his difficulty might be addressed. One way he suggested was a fixed Parliament. If I may say so with the greatest respect to him, that is one of the oldest chestnuts in British constitutional history. That is one possibility.
Another one, which may be more easily achieved during the passage of the present Bill, is a maximum number for the membership of your Lordships' House, which, again, would help a little to ease the difficulty of swamping your Lordships with new creations. That is another thought that I leave in the Committee's mind as a possibility.
However, whichever way we jump, we are presented with a difficulty throughout this Bill. My noble friend Lord Waddington, who is not present, has identified that difficulty with increasing passion as our debates have progressed; namely, that we are presented with a Bill which is only half a reform. Time and again we come back to the practical difficulty; namely, that as much as we love and admire and believe the Government, in the end we are forced to take on trust the fact that they will proceed to stage two, which will incorporate all the guarantees that we all want and which, by definition, are being eroded in this present Bill.
I recognise—as your Lordships have perhaps criticised me for recognising in the past—that the Government are in an extremely powerful position and that the compromise which we shall debate in a couple of weeks' time is perhaps the least bad option. However, it would be some comfort at least for those of us who 468 agree with the old French saw that, "ce n'est rien que le provisoire qui dure" to know that some of the guarantees—in particular the matter raised by my noble friend Lord Renton of Mount Harry this afternoon—might be incorporated in this Bill in case the temporary lasts longer than some of us would like.
The Earl of Erroll
Before the noble Viscount sits down I wish to ask him one question. He said that it was the role of Parliament to decide these matters. Why was it then that the British Parliament in deciding the bicameral constitutions of the Dominions still reserved the right that constitutional change had to be ratified by this House?
§ Viscount Cranborne
I realise that the noble Earl is a great deal more knowledgeable than I about the history of the constitutions of Commonwealth Parliaments. My sense of the development of the Commonwealth in the past few decades is that increasingly Commonwealth countries have taken from the Judicial Committee of the Privy Council, and indeed from the British Parliament. powers which they have drawn into the bosom of their own Parliaments. I suspect from some of the newspaper reports that I have read in the past few clays—I believe I read something of the kind in connection with Trinidad this morning—that the remaining vestiges of the connections may indeed be on the way out. I suspect—I refer to those of us who believe that the nation state will endure—that those of us who distrust the reliability of international organisations will find this a rather reassuring development.
Even assuming that there is the theoretical problem identified by the noble Lord, Lord Renton of Mount Harry, I find the solution proposed by his amendment remarkable. Let us assume that stage two does not come upon us very quickly, if at all, and that in, say, seven years' time a Minister of the Crown introduces a Bill and it is suggested that that restricts the powers of the Crown—let us say, to select the Prime Minister. Is it really contemplated that upon that day seven years hence, all those then qualified for hereditary Peerage, the heirs of many of the persons presently in your Lordships' House—some of whom will by definition never have been here—all 700 of them, shall then be entitled to apply for 'Writs of Summons, shall queue up to take their oath, shall make their maiden speeches (all 700 of them) before they can take part in proceedings on the Bill? That is riot just a matter of dusting down elderly Peers who have been put out to grass for seven years; it is a question of unwrapping from their nappies their successors who have never been to this place and who have no idea how it works, and suddenly conferring upon them a power to take part in the activities of one Bill, because it is an important Bill, and then sending them back either to their dusty shelves or to their nappies. It is an amazing solution.
§ Lord Eden of Winton
One of the great assets and great strengths of the Chamber which many Members of the Committee have commented upon, most notably my noble friend Lord Cranborne, is the independence 469 of judgment exercised by individual Members. Since I have been here I have had the opportunity to witness that on many occasions. I must admit that when I was a Member of the other place it was much more difficult to exercise that degree of independence of mind, thought and action. However, in this place it has been easy to do so. I shall exercise my independence of judgment this afternoon, should either of the noble Lords who have moved amendments press them in any shape or form to a Division. However, I would not feel able to support that of my noble friend Lord Renton of Mount Harry. I say that with great regret because I have the greatest regard for him.
Nonetheless, I would find it most valuable to have something like the declaratory amendment put forward by the noble Earl, Lord Perth, included on the face of the Bill. That would be a safeguard and a reassurance. I emphasise the word "reassurance" and in doing so I look straight at the noble Lord, Lord Richard, and say to him that I understand perfectly well why he felt a little upset. I do not think he was "steamed up" because in the past I have seen him get steamed up and I know what happens when he does. He certainly was not steamed up this afternoon. Nonetheless he made a perfectly valid point; namely, that there is nothing to choose, when it is a matter of independence of judgment and of a willingness and readiness to protect the constitution, between hereditary Peers and life, appointed Peers. I fully accept that.
However, what this Bill is about—as, again, the noble Lord, Lord Richard, took the opportunity to emphasise—is the composition of the Chamber. We are engaged in a process which will lead to a changed House of Lords. It will not be the same as it is now. By changing the composition you inevitably change the nature of the Chamber. I suspect—but I do not know this any more than any other noble Lord does at present—that the nature of the Chamber will change by virtue of the appointments that will be made to make up its number. It will become a different place. It will become largely peopled by new-entry Members who owe their allegiance to the source of that appointment. Inevitably there will be an erosion of the degree of independence of judgment which, by virtue of the mix of hereditary and life Peers that we have at the present time, this Chamber has been able to enjoy, and which it has honoured. Therefore I believe that we are in danger of having a less independent, judgmental forum in the future than that which we have today.
I ally that possibility in my mind with the reality of another place with a substantial majority, and with a government determined to exercise their power and who have already shown that they have comparatively little regard for parliamentary institutions. Therefore, I think it is all the more important that we do everything we can to safeguard those elements of the constitution which may in future be under attack by an over-mighty government with an over-large majority in the other place when this Chamber has changed its composition altogether. For that reason I strongly support the amendment moved by the noble Earl, Lord Perth.
470 I hope that I am right in feeling encouraged that the noble Lord, Lord Carter, who has evidently written a very fulsome letter to the noble Earl, will be able to give firm reassurances from the Dispatch Box and, more importantly, that he will seek to enshrine words to the effect of the declaratory Motion, if not in the Bill then in any future legislation affecting the powers of the House.
§ 5.30 p.m.
§ Lord Acton
Before the noble Lord sits down, surely he does not believe that the 120 Cross-Bench life Peers owe their allegiance to whichever Prime Minister was responsible for them coming here?
§ Lord Peyton of Yeovil
I do not believe that it will unduly grieve or shock my noble friends sitting in front of me when I say that it is quite a long time since I would have admitted to the description of being an ardent party politician. Indeed, my regard for political parties generally has diminished sharply over recent years. I hasten to add that that does not alter or diminish the respect I have for my noble friends who are sitting in front of me.
The speech of the noble Earl, Lord Erroll, from the Cross Benches gave me particular pleasure. I regard the Cross Benches of your Lordships' House as unique. Noble Lords who sit on the Cross Benches come here without any party ties at all. That is not repeated anywhere in the world. I hope that whatever replaces your Lordships' House will somehow perform the miracle of preserving a collection of people who are uncontaminated by party allegiance.
I quite understand the difficulty and the hostility that the Labour Party has felt for many years at finding itself facing a permanently entrenched majority of Conservatives in the House. I find it exceedingly difficult that we somehow get blamed—as we were by the noble Lord, Lord Graham—for wishing to compare the respective merits of hereditary and life Peers. That is totally irrelevant to the issue. Everyone wants to have good people in the House who will look after the interests of the nation. To indulge in that kind of comparison is very unhelpful indeed.
I have the greatest respect for the noble Lord, Lord Richard. No one can be more fairly attributed the characteristic of Olympian calm. The noble Lord achieved a unique performance. He always speaks entertainingly and interestingly, but on this occasion he somehow managed to couple his usual Olympian calm with words of anger. The words did not seem to be coming from someone who felt that emotion. Although the noble Lord was very impressive in one way, I think he had a very odd combination of manner and substance.
My noble friend Lord Renton will correct me if I am wrong, but I never heard him say that the only way in which to defend the constitution was the preservation for ever of hereditary Peers. If I am not right, my noble friend will doubtless interrupt me. That was the basis of the charge. If the noble Lord, Lord Richard, is going to 471 doubt people because of what appears on the Marshalled List, that will lead to some very odd conclusions. No one knows that better than the noble Lord, Lord Richard, who, after all, has been Leader of the House.
The difficulty throughout the Bill has been that we are discussing a one-legged affair; it hops along; it does not progress in an orderly fashion. I am irritated when I look at the Front Bench opposite and again and again one sees the unreceptive faces of noble Lords who cannot understand any point of view other than their own. I did not come here to make those kind of remarks. I was in a happy, calm mood. It is amazing the power that people on Front Benches have to upset me. They must practise; they have such skill. I see no sign of them even trying to understand what we mean or our real concern that we do not know what the future holds. I am a very reluctant believer in the goodness and common sense of governments. My experience of nearly half a century is that governments do not deserve any tribute of that kind. Goodness is very far from them and common sense often flies away from them.
I hope that the Government Front Bench will at least listen with respect to noble Lords who are not trying to filibuster or to put only the point of view of their party, but who feel very worried indeed about not knowing what will replace your Lordships' House. They are worried that we could end up with a House which, far from being permanent, will be a storm centre for many years to come.
§ Baroness Carnegy of Lour
I think I detected a wave of sympathy from the Government Front Bench when the noble Earl, Lord Perth, spoke to his declaratory amendment. I was very glad to hear that because I think a declaratory amendment will help. But I, for one, do not feel that a declaratory amendment alone will do the trick on this issue.
I echo the words of other noble Lords who have said that perhaps the solution to the problem enunciated by my noble friend Lord Renton is the right one. He enunciated a very important problem—a problem which exists because we do not know how the House will be constituted as time goes on. We do not know how many Cross-Benchers there will be; we do not know what the House will look like as time goes on if stage one lasts for a long time. When the Government Chief Whip replies I hope that he will be able to give us an assurance that the Government are looking at the problem enunciated in Amendment No.25. If he does not do so, I am sure that other noble Lords will seek to ensure that an amendment will be made to the Bill to confront this problem.
§ Lord Strathclyde
I should like to begin by agreeing entirely with my noble friend Lady Young who said that this is one of the most important issues that we have had to address during the course of the passage of the Bill. Not only is it important, but it also deals with one of the most sensitive areas of the constitution.
I am interested in finding the solution to the problem raised by my noble friend Lord Renton of Mount Harry. The Parliament Acts have restricted the delaying power of the House of Lords over government Bills, but they 472 have, however, specifically and deliberately left untouched the absolute power of the House of Lords to reject outright any Bill to extend the life of Parliament. It is widely known that many dictatorships have been democratically elected and then entrench themselves by altering the constitution, and the 20th century has a number of disturbing examples. That is not in question in our country at this time. Although it is easy to reject the proposition as fanciful—I think it probably is—it has happened in the past in England, as my noble friend Lord Renton of Mount Harry reminded us, in the 17th century, at a time of constitutional crisis and civil strife. It has happened in many other countries. That is why the constitutional protection is there—not because of what we think will happen but because of what is unlikely but could nevertheless happen in theory.
A sound constitution will provide against these dangers. In recent centuries, ours has most certainly done so. So what will happen after the Bill goes through without an amendment of this kind? We will have a second Chamber with the formal powers still to veto the extension of a Parliament, but the Prime Minister of the day will have the power to nominate a majority in that Chamber and the same Government could therefore present a Bill to extend its life and ensure a majority for the Bill's passage in the Lords. That is the. fundamental point.
We have been told many times that the Bill is about removing the hereditary Peers. That is only part of the. purpose of the Bill. The other part is that the Bill creates an interim House. So we should consider how that interim House will operate. The composition of this House will be decided by another place, most notably by the Prime Minister.
My noble friend has put forward a proposal which allows the hereditary Peers to be brought: back in, as the noble Viscount, Lord Bledisloe, described, from their dotage or from their nappies in order to deal with this issue. I agree with my noble friend Lord Cranborne that that is almost certainly not the best way of dealing with this problem. I should like to put this point to the Government: do they accept that there is an issue here and a problem that needs to be resolved? This is not an issue that needs to be resolved just because a Labour Government are in place. But do they accept that, for the long term consequences of the Bill, some kind of new safeguard needs to be introduced in this House to deal with the issue that was raised by my noble friend?
We are told by the Government—we have to accept it—that this is a stand alone Bill. There are no guarantees that we will go forward to a stage two. Noble Lords opposite have set up a Royal Commission to look at the future, but there are no guarantees that the Royal Commission's recommendations will be accepted; nor do I think there could be. So we have to deal on the basis that what is proposed in the Bill could stay with us for a very long time.
A number of other suggestions have been made by noble Lords today. There is the possibility of introducing a maximum number of Peers in this House. There is also another option. It is an option which the Government have found for themselves in relation to the 473 Scotland Act passed last Session. In the Scotland Act the Government took the decision that there should be a qualified majority on constitutional issues. The Government obviously considered that option for the Scotland Act and decided to put it into place. I just wonder whether the noble Lord who is to reply can tell us whether that would be an acceptable solution to this problem.
As I said, I am not convinced that my noble friend has proposed the best way of maintaining the guarantee that currently exists and I very much hope that his amendment is not pressed today. But he has offered one solution. A voting threshold or a maximum number of Peers in the House are other ways. What we cannot have is no way of dealing with this problem. I look to the Government to impress us with their thinking and to give firm assurances that they will either join us or come forward with their own amendments at a later stage.
§ 5.45 p.m.
§ Lord Pearson of Rannoch
Before the noble Lord, Lord Carter, rises to reply, I think I should point out that the situation is a little more serious than was outlined by my noble friends Lord Renton of Mount Harry, Lord Eden, Lord Strathclyde, and others. I say that because it is very unlike them, but the noble Lords, Lord Richard and Lord Graham of Edmonton, appear to have forgotten the Labour manifesto. Indeed, no noble Lord has mentioned the Labour manifesto. I suppose we can forgive the noble Lord, Lord Goodhart, for not being entirely familiar with that document, but I am very surprised at noble Lords opposite who have opposed the amendment of my noble friend Lord Renton.
I say that because the Labour manifesto clearly said that the Government would in future appoint Peers to reflect more closely the proportion of votes cast in the previous general election. That must mean that if that part of the manifesto, to which we notice the Government are very committed, is carried through, a future House of Lords will be more sympathetic to and reflective of the government of the day. I should be very grateful if the noble Lord who is to reply to the amendment would deal with that very real problem.
§ Lord Carter
We have certainly had a very interesting debate and an interesting historical and constitutional journey. In replying to Amendment No.25, I shall speak also to Amendment No.106 in the name of the noble Earl, Lord Perth.
The purpose of the amendments is to give hereditary Peers a continuing role as guardians of the constitution against the executive. That is a paraphrase. The clause has the effect of allowing the hereditary Peers to speak and vote on any public Bill which would extend the life of a Parliament or any public Bill which would restrict the constitutional powers of the Crown. Although hereditary Peers would cease to be members of the House of Lords, they would apparently be eligible to return to take part in proceedings on those two types of measure. There is no indication in the clause as to whether Writs of Summons would be needed for that 474 purpose or whether they could simply turn up. The clause also contains no indication of the type of legislation to which paragraph (b) refers.
The amendment of the noble Lord, Lord Renton of Mount Harry, seeks to allow the hereditary Peers to return to the House to vote in two circumstances. One is clearly defined and one is extremely vague. As I understand the noble Lord's amendment, it stems from two anxieties. The first is that this or a future government intend to subvert the constitution of this country; the second is that life Peers are not to be trusted to stop them. I have to tell the Committee that neither proposition has any basis in fact.
When I listen to these fears being expressed by the noble Lords, Lord Renton and Lord Crickhowell, the noble Viscount, Lord Cranborne, and others, I just wonder whether noble Lords raised such concerns about the power of the executive and so on when the noble Baroness, Lady Thatcher, was Prime Minister with a very substantial majority in the other House. Perhaps they did. Indeed, at that time, despite the in-built majority of hereditary Peers, that Conservative government created twice as many Conservative life Peers as Labour life Peers. I just wonder whether there was any protest at the time and whether any concern was expressed about the constitutional dangers that might come about.
Perhaps I may deal immediately with the point about the intentions of the Labour Government. I know that noble Lords opposite do not like hearing quotations from our manifesto. We have stated that,We are committed to maintaining an independent cross-bench presence of life peers. No one political party should seek a majority in the House of Lords".We have also said that in a transitional House we wish to seek only broad parity with the Conservative Opposition and a substantial presence of independent and Cross-Bench Peers. That could not be clearer. What is interesting—
§ Viscount Cranborne
I apologise for interrupting the noble Lord when he is in full flow. What makes the noble Lord think that it would be possible for this Government's statement of intention, not even expressed in legislation, to bind subsequent governments?
§ Lord Carter
No Parliament can bind its successor. I shall return to that point; it is central to the argument.
On the general point, the proposals for reform of the House of Lords have produced a veritable upsurge and an interest in constitutional change and in novel constitutional ideas: fixed term Parliaments; constitutional safeguards; the proposal of the noble Viscount, Lord Cranborne, for reform of the other place. As I said in an earlier debate on this subject, the thought process of the Conservative Party in this area owes rather more to Rip van Winkel than to Socrates.
The constitutional safeguard that we have now is not the presence of hereditary Peers in this House. It is the Septennial Act as amended by the Parliament Act. I shall return to that point in replying to the amendment tabled by the noble Earl, Lord Perth.
475 There could be a valuable role for a reformed House of Lords in relation to constitutional issues. I shall not be in the least surprised if a large proportion of the evidence given to the Royal Commission under the noble Lord, Lord Wakeham, does not make suggestions on the role that a reformed House could play in constitutional issues. This Bill does not deal with that point. It is one to which I shall return.
The noble Earl, Lord Ferrers, is always introducing us to new ideas. He had a new theory. He seemed to say that the majority of Conservative hereditary Peers had Labour hereditary Peers as their fathers. That is an extraordinary tribute to the fertility of the previous Labour generation, given the number of Conservative Peers in this House.
The noble Earl referred to the idea that the new House will be an appointed Chamber. This House is an appointed Chamber. It is appointed by eight successive Prime Ministers in the case of life Peers; and in the case of hereditary Peers, by their genes. It is also implied that Conservative hereditary Peers are the only people available to safeguard the constitution. We do not accept that.
The noble Lord, Lord Goodhart referred to defects in the drafting of the amendment.
The Earl of Erroll
Perhaps I may correct the noble Lord: I believe it was all hereditary Peers, not merely Conservatives. There are a large number of us on the Cross-Benches.
§ Lord Carter
I accept the correction.
The noble Earl, Lord Erroll, said that the presence of all hereditary Peers represents the only longstop. He wanted some form of safeguard which could not be changed in the future.
It is the heart of our constitution that no Parliament can bind a successor Parliament. That is absolutely central.
The Earl of Erroll
I said that it was an inadequate safeguard for the present. I suggested that an irrevocable constitutional court might be better.
§ Lord Carter
That is an alternative. The constitution as it presently stands is absolutely clear that no Parliament can bind its successor.
Turning to the amendment tabled by the noble Earl, Lord Perth, we shall provide all the assurances that we can regarding the intentions of the Government as regards the Septennial Act.
The Government have made it clear that in the transitional House no party should seek a majority in the reformed House. We have committed ourselves to seek only broad parity with the main Opposition party. There will still be a substantial Cross-Bench presence. The majority of Members at any time will not have been appointed by the present government. Existing life Peers have been appointed by eight Prime Ministers over 40 years. So the fears expressed by noble Lords are unfounded.
476 The idea of fixed term Parliaments is one that has been advanced over many years. It would be a major change to move to fixed term Parliaments at Westminster. Our parliamentary system depends on the executive commanding the confidence of Parliament in the other place and at the discretion, in appropriate circumstances, of the Prime Minister to seek the dissolution of Parliament for a general election. There are possible arguments for changing that, but they do not arise from the Bill. It does not change the powers and privileges of the executive, the Commons or the Lords. I should also point out that an Act introducing a fixed term Parliament could be overturned by the same elective dictatorship which it is feared will remove the safeguards of the quinquennial Act.
The noble Lord, Lord Strathclyde, seemed to fear that in future that we should be in the hands of a dictatorship. The noble Lord said that "only at this time' was he happy about the situation. He also agreed that to bring back the hereditary Peers as the constitutional safeguard was not the best way to deal with the issues that have been raised.
The noble Lord said that there is no guarantee in regard to stage two. There is a safeguard. We have made clear that, if this House accepts the Weatherill amendment, stage two is required to fulfil our manifesto commitment to remove the hereditary peerage. We have made that absolutely clear. The noble Lord referred to the possibility of a blocking majority on constitutional issues. I cannot accept it on behalf of the Government on the hoof in debate, but it is certainly an interesting idea and one that could possibly be put to the Roy al Commission in relation to the final stage of a reformed House.
§ Lord Strathclyde
Perhaps I may intervene. The problem that we are talking about will riot be resolved by the Royal Commission. The Royal Commission will be examining proposals to take this House from its interim stage to full reform. The problem that will arise immediately this Bill is on the statute book relates to the interim House. Perhaps the noble Lord will consider that point.
§ Lord Carter
We have explained that in the interim House no one party will have an overall majority.
§ Lord Strathclyde
If that is the case, will the noble Lord accept an amendment to the Bill that makes that clear?
§ Lord Carter
I cannot; nor does the Bill—or indeed any Bill. No Parliament can bind its successor. 'We have made the position absolutely clear. If noble Lords do not believe us, we can only give our word and the word of the Prime Minister.
§ Viscount Cranborne
I apologise for yet again interrupting the noble Lord. Will he not accept that an 477 assurance, even from him—and this House has learnt from the beginning of the noble Lord's career to accept his assurances as carrying great authority, given in total good faith—would be less easy to overturn if it were embodied in legislation for a subsequent Parliament?
§ 6 p.m.
§ Lord Carter
The assurance is not only from me; it comes from the Prime Minister. The Prime Minister has made our intention absolutely clear. It is to seek—unlike what we could seek based on the results of the last election—only broad parity with the major Opposition party in the transitional House and perhaps also in the finally reformed House; that the Government will never command a majority in this House. It is a familiar situation for Labour Chief Whips. That is what we have said, and we intend to stand by our word.
Turning to the substance of sub-paragraph (a) of the noble Lord's amendment, I assure the Committee that the Government have no intention of bringing forward legislation to alter the maximum life of a Parliament. We are quite prepared to face the electorate on our record at the end of this present Parliament; as, for example, the noble Lord, Lord Renton, was in 1987, when his party commanded a massive majority in both Houses. We never dreamed of accusing Members opposite of wishing to take advantage of that majority to subvert the constitution. If anxieties on that score lie at the heart of the noble Lord's amendment, they are unfounded.
I am not at all clear as to the aim of sub-paragraph (b) of the amendment, dealing with the powers of the Crown. I assume that it relates to any attempt to reduce the powers of the monarchy. But it is by no means certain that it can be construed as narrowly as that. For example, would a Bill that attempted to reduce the powers of the executive also fall within the ambit of this sub-paragraph because of the Royal Prerogative. It offers scope for endless argument as to whether or not the provision of the sub-paragraph has been triggered.
I am not sure whether we are intended to take seriously the second proposition that apparently lies behind the noble Lord's proposals; namely, that life Peers are not to be trusted with the constitution of this country. As a life Peer himself, I am sure that the noble Lord believes himself to be eminently trustworthy in that respect. Why should he or we think any less of our fellow life Peers? Yet that appears to be the burden of his remarks. No doubt he assumes that this Bill will last much longer than we intend. We have heard the fears expressed that apparently there will be ample time for the present Prime Minister, who in the meantime will have won several elections without the help of suspension of the Septennial Act, to pack this House with poodles—to quote one expression we have heard—before he moves in for the kill. At that point, 20 to 25 years hence, the hereditary Peers will be asked to ride to the rescue. Presumably, by that time several hundred hereditary Peers will never have been Members of this House.
478 The noble Lords opposite cannot have it both ways. Either they believe that this Government can remain in power for many years without cheating or that the present Prime Minister, or a future one, in defiance of everything that has been said about not seeking a majority in this House, will immediately add some 500 life Peers to it. Or perhaps they believe that the present Members of your Lordships' House—the life Peers—are not to be trusted. I shall be delighted if he is right in the first proposition that there will be a Labour government for 25 years. I and my noble friends are rather insulted by the last two propositions regarding life Peers.
I turn to the amendment in the name of the noble Earl, Lord Perth. I assure the Committee that the Bill has no impact on the provision whereby the Septennial Act, as amended by the Parliament Act 1911, is excluded from the operation of the latter. Amendments to the Septennial Act will therefore continue to need the consent of this House. I have already written to the noble Earl to explain this to him. We cannot amend that provision by sleight of hand; we would have to do it openly. We have not done so; nor do we have any such intention. I am happy to take this further opportunity to put that on record by quoting from the letter that I wrote to the noble Earl, a copy of which I shall place in the Library:You asked me to confirm whether the House of Lords Bill was watertight in leaving intact the powers of this House to block any move by another place to extend the life of a Parliament. I am pleased to confirm that this is the case".I then quote the words of the Act. The letter goes on:In order to apply the Parliament Acts to a Bill to extend the life of a Parliament, and thus to take away the important constitutional right which this House has, it would he necessary for the House of Lords Bill, or some other legislation. to amend section 2(1) of the Parliament Act 1911. It is clear from the text of the House of Lords Bill that no such amendment is envisaged. I do hope that this will set your mind at rest. My colleagues on the Front Bench and I would, however, be willing to give as many assurances as are necessary to this effect on the Floor of the House so that the Government's intentions in this area are quite clear".
I pick up one other point raised by the noble Earl about the wording of an Act. Since the judgment in Pepper v. Hart it is open to the courts to consider what is said in Parliament as evidence of intention. What I have just said is evidence of the fact that the Government have no intention of changing the Septennial Act.
As to the more general question of the effect of this Bill on the powers of this House, which was raised by my noble friend Lord Richard, we debated this matter last week in the context of an amendment moved by the Official Opposition. My noble friend Lord Williams of Mostyn made it clear that there is nothing in the Bill that affects the powers of this House; nor is there any intention to do so. He explained then with his usual eloquence why amendments to say that the Bill did not do what it did not do, and was never intended to do, were irrelevant. The noble Earl was concerned about a particular issue. I hope that I have answered the point and that he and other noble Lords who have raised concerns will not feel it necessary to pursue either the general or particular matter any further.
479 We have had an interesting debate in which I have tried to make the Government's position entirely clear. The noble Lord, Lord Strathclyde, does not appear to believe that. Is that the case?
§ Lord Strathclyde
I found the case made by the noble Lord strangely unconvincing. The problem is not the assurances of the current Government on the Septennial or quinquennial Acts, which I wholly accept. The point is that we are creating an interim House, the composition of which is in the hands of the Prime Minister. The noble and learned Lord, Lord Falconer of Thoroton, shakes his head. Therefore, I would be delighted if he accepted an amendment tabled by us to ensure that that was not so. To return to the point, the composition of the interim House will be in the hands of the Prime Minister. This Prime Minister, on whose behalf the Government Chief Whip has given certain assurances, may not last for very long. It is possible that he will last for a very long time, but the Bill may last for longer. We ask that an amendment be made to the Bill to deal with a problem. My preferred solution is that there be a qualified majority of this House. In that way the House of Commons cannot override the wishes of this House by a simple majority here because they have packed the House with their own cronies, to use common parlance.
§ Lord Carter
There is an extremely simple answer to the point just raised by the noble Lord, Lord Strathclyde. The Prime Minister has given an assurance which the noble Lord says he accepts. For the sake of argument, let us assume that the Prime Minister lasts at least until the end of this Parliament. If we amended the Bill any successor Parliament could change it. Therefore, one has an assurance. In practical terms we all know what will happen if the Bill becomes law at the end of this Session, as we hope: there will be a transitional House. The sole intention is to achieve broad parity with the Opposition.
This Prime Minister has taken fewer powers than any previous one by handing over the choice of independent Members to an independent appointments commission. Noble Lords opposite are aware of the Government's proposals about the creation of an independent appointments commission to handle the appointment of independent Peers. This Prime Minister, unlike previous Conservative and even Labour ones, has reduced the power of patronage. We cannot say any more than that when the Bill becomes law—I am aware that I am repeating myself—we seek no more than broad parity with the main Opposition party. All of us can work out the figures. We believe that the Government in this House will never command a majority. It will require an overwhelming majority in this House of all the parties together—the Cross-Benchers, the Conservative Opposition and the Liberals—to defeat the Government. That is the only way that a change can be achieved.
§ The Earl of Lauderdale
I am obliged to the noble Lord for giving way. Earlier he said that no government or Parliament could bind their successor. He has just said that the guarantee (if I may put it that way) of the independence of this House in future will lie in the 480 decision of the Prime Minister to forgo his own power of appointment to this House in favour of an appointments commission. Who will appoint that body?
§ Lord Carter
They are the usual arrangements, all of which have been discussed already. I hope that I am not being offensive if I say that noble Lords opposite are extremely slow learners. We debated this matter for 40 hours before we had the two-day debate on Second Reading. All of this has been explored many times and we have clearly spelt out our intentions. I do not believe that any government could have spelt out more clearly our intentions in relation to this House. The proposal is that in the transitional House there will be an independent appointments commission appointed in the same way as an independent non-departmental public body. Noble Lords must start to believe, first, that we mean what we say and, secondly, that we are telling the truth.
With great respect, the noble Lord, Lord Carter, cannot get away with that. He stated that we had to believe everything that had been said. The Prime Minister had said this and the Government had said that and therefore it would happen. Whether or not one likes it, the Government are altering the constitution. They may be altering it for the better or the worse. You cannot get hold of the constitution and shake it like a Christmas tree and not expect something to fall off. It is perfectly possible for something to go wrong. It is perfectly possible for things to happen which no one expects.
Perhaps I may have the Minister's attention, even when he is being advised by such a learned person as the noble and learned Lord, Lord Falconer. I am sure that the noble Lord will have benefited greatly from the advice he has received, if he is able to remember what it was. I was asking whether the Minister will be good enough to listen to what I am saying, even though he was being interrupted, I am sure quite rightly.
The Minister said that we have to believe what the Prime Minister said. I am sure that the Prime Minister may mean that. But Prime Ministers come and go--sometimes unexpectedly. If one is altering the constitution one must take care of every eventuality. One could have a situation where the House of Lords is an appointed Chamber—that is what it will be—and the House of Commons has a certain majority and therefore pushes its view through both the appointed Chamber and the elected Chamber. In order to ensure that such an eventuality does not happen, we ask for some safeguards.
What worries me, and probably worries my noble friends, is that the Government may wish to provide for that but they have the blank look of not being prepared to listen and to consider that there might be a scintilla of argument. I am sure that their brief is, probably from the Prime Minister too, that there shall be no amendments to the Bill, whatever the argument. But there is an argument. There is a matter of concern. It is not a question of hereditary Peers versus life Peers. I just wish that all four noble Lords on the Government Front Bench would admit sometimes that there might be an argument to be addressed.
§ 6.15 p.m.
§ Lord Rotherwick
I am a little confused by what the noble Lord, Lord Carter, meant when he said that the Government seek broad parity. I understand that we shall go through stage one. Does he mean that they would then seek broad parity in the intermediate House? If so, we have grounds for fear. We would have no control whatsoever over the Government's definition of parity. Would it mean parity with another place—with numbers on Government and Opposition Benches in another place—or in this House?
§ Lord Carter
I am trying to put the issue as simply as I can. If there are 100 Conservatives in the transitional House, we would seek 100 Labour Peers. That is broad parity. It means equality with the official Opposition. Is that clear? If there were 200 Conservatives, the figure would be 200. It is broad parity. If noble Lords want the figures, as Chief Whip I have them in my head. At present we do not have broad parity with life Peers. We are still about 15 short. I leave that point with Members of the Committee. If the Weatherill amendment were accepted the Conservatives would still have more Peers than Labour. Over time we should see broad parity: that is, equality with the number of Conservative Peers.
§ Lord Rotherwick
That is the whole point about seeking broad parity. If the noble Lord told us now that all the Government seek is to have 100 Peers on the Government side and 100 Peers on the Opposition side, why cannot there be an amendment to give us comfort that that is what will happen?
All the noble Lord gives us is a deep suspicion that when the time comes the Government will not do what he suggests they will. As with the debate yesterday on Welsh beef on the bone, the Government had good intent last year but when it comes to the crunch things change. Why cannot the Government give us the assurance, the comfort, which would allow us to go away happy?
§ Lord Carter
We intend noble Lords to go away, but whether or not happy is another matter.
I make the point clear. We have made our intentions entirely clear. I do not think that we could have made them clearer. Either noble Lords believe us or they do not. I would willingly give way to any noble Lord opposite who had raised any of these fears with previous Conservative Prime Ministers who could have flooded this House. Mr. Blair can flood this House with Labour Peers today. He chose not to do so.
We have brought forward a constitutional Bill. We have given assurances. I have repeated them. Either noble Lords accept them or they do not. If they do not do so, I can do nothing about it.
§ Viscount Torrington
Can the noble Lord explain what would happen in a coalition? It has been known before in British politics. If there is, for some reason or another, an alliance between the Tory Party and 482 the Liberal Democrat Party, will the Government immediately seek a large number of additional Peers? Perhaps he will explain the process.
§ Lord Carter
This gets more and more like the "Monty Python Show".
Broad parity with the Official Opposition means that the Government (the Labour Party) in this House over time will see the same number of Peers as the Official Opposition. There will be an Official Opposition in this House even in the case of a coalition. That is all we seek.
I do not think that I can put it any more clearly. I do not think that there is much point in continuing the debate on this issue. I have made it absolutely clear. I repeat: I shall give way to any noble Lord opposite who once raised these fears with any Conservative Prime Minister who could have flooded this House. The noble Baroness, Lady Thatcher, certainly tried to do so, with twice as many Conservative life Peers as Labour life Peers despite the substantial number of Conservative hereditary Peers. Did anyone on the Benches opposite ever express concern? No.
§ Lord Campbell of Alloway
I seek to get away from trying to flood the House with anything.
Perhaps I may respectfully ask two questions. I am sure the noble Lord realises that there is a problem. How to deal with it is, frankly, not so easy. However, as he approaches the problem, will the noble Lord make two assumptions: first, that the so-called Weatherill amendment is not carried in this House; and, secondly, that we do not go to stage two? I do not say what will happen on either. I ask the noble Lord to make those assumptions when dealing with the problem which he realises exists.
I realise that it is a difficult problem. I should be grateful if he could deal with the question on those assumptions.
§ Lord Carter
With all his years of experience in this Chamber, the noble Lord will know that Ministers do not answer hypothetical questions.
If the Weatherill amendment is not carried, this House will consist of a Chamber of life Peers without the 92 hereditary Peers. As I said, we are already 15 short in terms of life Peers. I cannot give the noble Lord any more assurance than that.
§ Lord Eden of Winton
I hope that I am not interrupting the speech of the noble Lord, Lord Carter. I believe that he had finished. I wished to be assured of that. Nonetheless, I hope that he will be tempted to rise again to his feet.
I wish to press one point. I am sure that the Committee is grateful for the assurances he gave to the noble Earl, Lord Perth. I am equally certain that all noble Lords will recognise the generosity and sincerity with which the noble Lord, Lord Carter, expressed those views.
483 Equally, I accept the point he made that although these matters may not be enshrined on the face of the Act, in the event of any dispute or question arising on the matter, the observations of the Minister on behalf of the Government made formally and officially at the Dispatch Box will be taken into account and carry weight. I accept all those matters fully from what he said. I ask only that he returns to the small point I made to which I attach some importance. I believe that the declaratory amendment of the noble Earl, Lord Perth, should be the subject of an undertaking by the Government now. I know the noble Lord explained that the Government cannot bind any future, successor government. However, a marker should be put down now so that the present Government, when they bring forward legislation for stage two, as I assume they will, will incude a reference to the declaratory statement on the face of whatever Bill is put forward at that time.
Taking the point made by the noble Lord, Lord Richard, that Bill will certainly deal with the powers of this place. Therefore, in the light of this debate, which the two noble Lords who tabled amendments have made possible, I repeat that a firm marker should be put down by the government spokesman, the noble Lord, Lord Carter.
§ Lord Carter
If I can find it, I shall quote from the letter. It says,the government has no intention of amending the Septennial Act".I believe that everybody understands that. There is no intention to amend the Septennial Act.
A number of noble Lords have commented on the Government binding a successor government. It is a Parliament that binds a successor Parliament. I can give the noble Lord an absolute assurance that in this Parliament this Government have no intention of bringing forward amendments to amend the Septennial Act. That is the only assurance that any Minister can give in this Parliament. That is absolutely correct.
Equally, I can be confident that in the future there will be no intention to try to amend the Septennial Act to extend the life of Parliament. That is my view. The only assurance that I can give your Lordships as a Minister is that this Government, in this Parliament—it is the only one with which we are concerned—will not bring forward an amendment to the Septennial Act to extend the life of Parliament.
§ Lord Renton of Mount Harry
The Government Chief Whip has used some honest words: that he can give no assurance that a future government will not attempt to amend the Septennial Act. That lies at the heart of our problem.
§ Lord Carter
Any successor Parliament. Noble Lords keep saying "successor government". It is any successor Parliament.
§ Lord Carter
The distinction is enormously important. This refers to the powers of the Government 484 and the powers of Parliament in the second House—in the transitional House—where the Government do not have a majority.
§ Lord Renton of Mount Harry
I congratulate the Government Chief Whip on saying that because he has pointed to the heart of the difficulty of this debate. I am delighted that my amendment has provoked such a lengthy and serious conversation about constitutional safeguards. The words used by my noble friend Lord Crickhowell are, I believe, at the heart of the matter. It is not a question of wishing, as the noble Viscount, Lord Bledisloe, said, to dust off hereditary Peers and bring them out of the cupboard, which was an amusing but facetious remark on his part.
The question is: how can we find a constitutional safeguard in the interim stage, when, as the Government Chief Whip says, he can bind only this Government in this Parliament? The interim solution will disappear in the next Parliament. How can we writ e in a constitutional safeguard that has some chance of lasting longer than that? After all, an amendment to abolish only 16 words from the Parliament Act 1911 would mean that the absolute veto on Bills to extend the maximum duration of Parliament beyond five years would disappear. It is extremely easy to do.
I believe that the Government Chief Whip was wrong when he said, in winding up, that we in some way wish to accuse the Government of subverting the constitution. That is not right. The constitution changes all the time. However, that is why we wish to see whether a constitutional safeguard that is satisfactory to all sides can be written in.
I was particularly pleased by the speech of the noble Earl, Lord Erroll, on this subject, sitting as he does on the Cross Benches. He made the point about what other means can be found to find a safeguard if that in my amendment is not considered satisfactory.
I am grateful for the lengthy debate that we have had. I shall consider the wording of my amendment. Telling me that it is incorrectly drafted is, of course, the oldest trick in the world. However, I shall go away and consider it carefully with a view to redrafting. I hope that we shall be able to return to the matter on Report.
Perhaps I may say, without sounding pompous, that at that stage I hope that the Leader of the House herself will consider answering the debate. It touches on serious constitutional matters. As my noble friend Lord Strathclyde spoke from the Front Bench on this side, I believe it deserves the attention of the Leader of the House herself. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos.26 and 27 not moved.]
§ Lord Gray moved Amendment No.28:
Page I, line 6, at end insert—
("(2) This section does not apply to any person who was on 31st July 1963 the holder of a peerage in the peerage of Scotland only and who on that day became eligible to receive a writ of summons to attend the House of Lords, and to sit and vote in that House. ")
§ The noble Lord said: I beg to move Amendment No.28, grouped with Amendment No.67, which is consequential upon it.
§ We now move from major constitutional matters to the quieter backwaters of detail. In the course of debates we have spoken of hereditary Peers, life Peers, Peers of first creation and Peers by acceleration. My amendment concerns a group of Peers who hold hereditary titles but clearly do not fit the category in Clause 1 of the Bill because they were never entitled to be Members of this House by virtue of hereditary peerages. In consequence, they are still not so entitled, although they sit here.
§ The Peers in question are those Peers of Scotland identified in my amendment. My research suggests that nowadays there are 11 in the group, of whom nine have taken their seats. I am one and so is my noble friend Lord Belhaven and Stenton, as is the noble Earl, Lord Perth. We are Peers of Scotland only who held our titles prior to 31st July 1963, the day on which the Peerage Act of that year came into force. Prior to that day, as explained in the course of yesterday's debates on the Act of Union, we could only sit here—one Parliament at a time—if elected as one of Scotland's 16 representative Peers. After that day we were all entitled to come here.
Indisputably, we never had hereditary entitlement. What was the nature of our entitlement? By virtue of what were we admitted? Perhaps the answer lies in the entry in the Journal of the House on the first occasion after 31st July 1963 when any one of us took our seat, an entry that read:
Sat first in Parliament pursuant to the provisions of Section 4 of the Peerage Act 1963".
§ The answer to the question of entitlement must, therefore, be by virtue of an Act of Parliament. Does that place us in any of the categories of Peers in the Bill? I see that one of our number, my noble friend Lord Reay, has just joined us. Each of us is a hereditary Peer but each of us is the first of his or her line to sit here by right. Does that place us in the category of first creation? If so, perhaps we will each receive a letter from the Prime Minister. We shall wait and see. On the other hand, are we life Peers for the purposes of this Bill?
§ The Government, if they are determined to be rid of us, must answer those questions and decide how they will do so, or accept my amendment for the avoidance of doubt. I beg to move.
§ 6.30 p.m.
§ Lord Newby
It seems to me that the answer to the question came from the noble Lord's own mouth when he said, "Each of us is a hereditary Peer". That being so, the only argument in which we can engage in terms of special pleading for the small category of Peers of which the noble Lord is a member was debated at great length earlier in our discussions about special provisions for Peers from Scotland.
I do not want to re-enter that debate, except to say that we all agree that there should be adequate representation for Scotland, and every other nation and 486 region of the UK. As there will be adequate representation for Scotland in the interim House, there is no need for the amendment to be supported.
Perhaps I may deal with that point. The noble Lord said that I condemned myself out of my own mouth. He missed the point. I said that we never had sat here by right of the hereditary peerage; we came here by Act of Parliament. If we never had a hereditary right to be here, we did not get it from that Act. We were allowed to have a Writ of Summons as a consequence of that Act and certainly not as a consequence of our hereditary right.
The Earl of Caithness
Will my noble friend clarify my position? Being one of those who would qualify to be elected in Scotland, and I did not take my peerage until 1965, when my father died, am I within the ambit of his amendment?
I can answer my noble friend Lord Caithness quickly. I am afraid that he lies without the ambit because he did not hold his title before 31st July 1963.
§ Lord Mackay of Ardbrecknish
Perhaps I may give the noble Lord, Lord Newby, some advice. He would be better leaving the Government's reply to the noble and learned Lord, Lord Falconer, because he has just entered some difficult territory in the peerages of Scotland. My noble friend Lord Caithness illustrated the point. He has a Scottish peerage, but he is here by heredity because he succeeded his father after 1963. However, my noble friend Lord Gray is not here by heredity because of the 1963 Act.
When my noble friend Lord Gray inherited his peerage in 1946, he could not come here, even if he were a UK Peer, because he was too young. But in 1952 he became old enough to do so. He was a hereditary Peer, but he could not come to this House because he was not one of the 16 who were elected. As he explained, he failed to be elected—and I know that he was pretty determined not to be elected at that time. My noble friend came after 1963 only because of the passage of the Act.
It is a narrow point and because I know the noble and learned Lord, Lord Falconer, well enough I know what he will say. But that is not the answer which the noble Lord from the Liberal Democrat Benches tried to give on behalf of the Government. Interestingly enough—
§ Lord Newby
I should have known better than to intervene in the arcane nature of Scottish matters. Is the noble Lord from the Official Opposition Bench seeking to argue that the noble Lord, Lord Gray, is in this House for a reason other than being the possessor of a hereditary peerage?
§ Lord Mackay of Ardbrecknish
I am arguing that if it were not for the 1963 Act, and assuming that my noble friend had continued to fail to be elected as one 487 of the 16, he could not come here, despite the fact that he was a hereditary Peer of Scotland with an ancient title.
The noble Earl, Lord Perth, my noble friend Lord Forbes, the noble Lady, Lady Kinloss, and the noble Lords, Lord Napier and Ettrick, Lord Belhaven and Stenton and Lord Polwarth, are in that category, too. I have obviously disturbed the Liberal Democrats.
§ Lord Avebury
I was in the other place when the 1963 Act was passed and I remember it well. Is the noble Lord saying that because a person came here by virtue of an Act of Parliament, and he is a hereditary Peer and therefore the holder of a hereditary peerage, Clause 1 does not apply to him?
§ Lord Mackay of Ardbrecknish
I am trying to illustrate the question which my noble friend Lord Gray has put, because he is not here because he is a hereditary Peer. I tried to explain that if there had not been a 1963 Act, and if my noble friend had failed to be elected, he would not have been able to come here. However, he would still be a hereditary Peer and hold the title Lord Gray. There is no question about that. It is a matter about which I have no doubt the noble and learned Lord, Lord Falconer, is well equipped to answer and give sound legal advice.
The Earl of Erroll
Perhaps I may add to that because other amendments have been rejected on the ground that hereditary Peers may sit here after being elected, nominated or whatever; they are not disbarred from being members of the future interim House by virtue of hereditary peerage.
However, if in this case it is argued that the noble Lord, Lord Gray, cannot sit here by virtue of the 1963 Act, but his hereditary peerage overrules that, presumably a hereditary peerage also overrules other situations in which we might be able to stand for election or be nominated to an interim House. It would appear that being a hereditary Peer is our most terrible defect. I believe that one cannot have it both ways. One cannot say, first, that the 1963 Act does not overrule the hereditary peerage and, secondly, that something else does. I am very interested in this issue.
§ Lord Falconer of Thoroton
What an interesting debate it has been. I understand the point made by the noble Lord, Lord Gray. It is that those of us who were Scottish Peers before 31st July 1963, and who had not been elected as representative Peers, became Members of this House not by virtue of being hereditary Peers but by virtue of the statute. That is ingenious, but wrong for the following reasons.
The position before 31st July 1963 was that only those Scottish hereditary Peers who had been elected could become Members of this House. That restriction was removed by the 1963 Act. As a result, on that date all Scottish Peers were entitled to become Members of this House. Does the noble Lord, Lord Gray, by way of example on those facts, become a Member of the House of Lords by virtue of a hereditary peerage? Yes, he does. The restriction which had previously prevented him 488 becoming a Member by virtue of a hereditary peerage—namely, the Act of Union—had been removed by the 1963 Act. With great respect to the noble Lord, Lord Gray, I do not believe that there would be any difficulty in a court reaching that conclusion.
That is as a matter of construction. As a matter of intention of the Act, and with great respect to the noble Lord, Lord Gray, and those of his fellows who came into the House on 31st July 1963, can one think of any reason why they and they alone should be protected from what is the plain intent and effect of the provision? I am afraid not. Therefore, although the argument was put incredibly eloquently and incredibly well, and even misled the noble Lord, Lord Mackay of Ardbrecknish, for a moment, it is in my respectful submission entirely wrong and entirely without merit.
§ Lord Phillips of Sudbury
Before the noble Lord sits down, in the interests of the arcaneness which has characterised this part of the debate, may I ask him this? He talked about removal of a restriction by means of the 1963 Act. When was that restriction imposed?
The debate has been very interesting. I am grateful to all who have spoken, including the noble and learned Lord who replied. But I do not agree with him. This is amazing temerity on my part, since I am nothing approaching a lawyer; I am barely educated.
But I feel that my case is supported by the words in the 1963 Act in Section 4. It provides further back-up for what I have been arguing. I shall read it out for the benefit of the Committee:The holder of a peerage in the peerage of Scotland shall have the same right to receive writs of summons to attend the House of Lords, and to sit and vote in that House. as the holder of a peerage in the peerage of the United Kingdom".There are a few more words that do not concern us here because they refer merely to repeal of enactments.
I should like to make the following points. First, one can have the same right as someone else but for different reasons. What is the right that is granted? It is the right to a Writ of Summons, not the right to sit by virtue of a hereditary peerage.
The right given by Section 4 is identified. I have just quoted it, and I shall paraphrase it now. It is the same right as that of the holder of a peerage of the United Kingdom. Peers of the United Kingdom include life Peers, as is clear from their Letters Patent. This seems to reinforce my view expressed earlier that perhaps Peers in this peculiar category are in fact life Peers for the purposes of the Bill. There is no mention of heredity in Section 4 of the 1963 Act.
I have not been seeking to argue that we should come here when all our hereditary fellows go. No, I am drawing the Government's attention to a point where I think they have missed a trick. The draftsman could have written "England" instead of "United Kingdom-, since the peerages all predate the Union. But he did not. 489 We have to go by the words on the face of the Act, not by presumed intention, and I think that the words equate us with life Peers.
At this point I should like to make, rather churlishly perhaps, a complaint about the Explanatory Notes issued with the Bill by the Cabinet Office. Paragraph 24 refers to Section 4 of the 1963 Act, saying:Section 4 of the 1963 Act allows all Scottish hereditary peers to receive a writ of summons to attend the House of Lords and to sit and vote in that House on the same basis as a UK hereditary peer. As no peer will by virtue of a hereditary peerage be entitled to membership of the House of Lords, section 4 can be repealed".There is no mention of "heredity" in Section 4 of the 1963 Act. This is misleading and should be corrected.
§ Lord Phillips of Sudbury
I should like to revert to the issue of removal of a restriction. I know that it is a small point, but I wish to ask the noble and learned Lord to review his reply, because I begin to wonder whether he is correct in saying that the 1707 Act imposed a restriction on Scottish Peers. I do not believe that Scottish Peers ever had the right to sit in this House. The noble Lord, Lord Gray, may in fact be correct in his basic interpretation of the history of this point. I would ask the Minister to look at that outside the Committee.
§ 6.45 p.m.
§ Lord Falconer of Thoroton
I do not think my basic position changes one jot. As the noble Lord, Lord Gray, has indicated, there is a second point—that the effect of Section 4 is that Scottish hereditary Peers are treated exactly the same as United Kingdom hereditary Peers by the 1963 Act. The effect is that whether the point is wrong or right in the way that I put it, they are to be treated in every respect as if they are United Kingdom hereditary Peers, which they are obviously.
Does the restriction in Clause 1 of the Bill, which says that one cannot sit and vote in the House of Lords by virtue of a hereditary peerage, apply to somebody who, first, is a hereditary Peer, and, secondly, is described in the 1963 Act as someone who is to be treated for all purposes as a UK hereditary Peer? I would have thought, speaking for myself and for the Government, that that question allows of only one answer.
§ Lord Trefgarne
The noble and learned Lord almost tripped up over his own words. It seems to me that there is some doubt about this matter. My noble friend Lord Gray has raised a very good point. I accept that the noble and learned Lord happens to think otherwise, but it is not clear beyond a peradventure. There is respectable opinion, respectable legal opinion, for the view contrary to that held by the noble and learned Lord, and that respectable opinion should be taken into account.
As my noble and learned friend Lord Mayhew made clear on an earlier amendment, there is respectable legal opinion on other matters in connection with the Bill as well. It is a sad fact that there are a number of profound 490 legal questions about various aspects of the Bill, all of which I hope we shall explore during the Committee stage.
§ Lord Falconer of Thoroton
I should like to make it absolutely clear that I regard the noble Lord, Lord Gray, as absolutely respectable. However, the argument advanced here is utterly hopeless, and there is absolutely no purpose in giving the Committee any expectation that we shall reconsider the matter.
§ Lord Trefgarne
That is not entirely a question for the noble and learned Lord himself. In the end, it is a matter for the courts.
I am grateful to the noble and learned Lord and others. I had better not prolong this debate, but I was a little upset that the noble and learned Lord repeated what I complained about, in that he equated us with UK hereditary Peers, a matter which is not in Section 4 of the 1963 Act. I still maintain that the words,by virtue of a hereditary peerage",are the ones we should be looking at in terms of my arguments, not my possession of a hereditary peerage.
We have had a good discussion. I shall not threaten to come back but, on advice, I may come back. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No.29 not moved.]
§ Lord Marlesford moved Amendment No.30:
Page 1, line 6, at end insert—
("(2) This section does not apply to any member of the House of Lords by virtue of a hereditary peerage who was on the day on which this Act is passed a member of the Privy Council. ")
§ The noble Lord said: I hope that in moving this amendment I may receive slightly more sympathy from the Government than anyone has received so far.
§ My amendment would exclude from the provisions of Clause 1 privy counsellors who also hold hereditary peerages. They have had conferred upon them a distinction at least as great as—some of us would say greater than—a life peerage. They were in each case selected for this appointment by the democratically elected government of the day. It is therefore similar to the way in which life Peers and hereditary Peers of the first creation have been appointed.
§ It is that selection, presumably on merit, which the Labour Party uses to differentiate hereditary Peers, whom the Bill seeks to exclude from Parliament, from the life Peers, who are to remain ad interim.
§ I emphasise that I have paid the closest attention—and who would not?—to the Labour manifesto in attempting to produce an amendment which should be acceptable to the Government as not violating their manifesto.
§ One may perhaps add that while, from time to time, it has been suggested that some life Peers may have been appointed in return for favours, whether financial, personal or for party, as far as I am aware, no such aspersions have been made, at least in living memory, 491 in respect of those appointed to the Privy Council, and most certainly not in respect of those who would be covered by my amendment.
§ At present, there are 495 members of the Privy Council. Of those, 195—40 per cent—are Members of your Lordships' House. Of the 195, 174 are life Peers or Peers of first creation. They will remain in any event. There are only 21 who first entered the House as hereditary Peers but who now have the distinction of being Privy Counsellors. That is 21 out of 750 hereditary Peers.
§ The great majority of those 21 would not have had open to them the opportunity of using the House of Commons as the route to distinguished public service. The 21 does not include those who entered the House as Peers before succeeding later to an hereditary peerage, of whom there are two or three; nor those hereditary Peers of first creation who have received a letter from the Prime Minister offering them a life peerage. I recognise that it would be open to the Prime Minister to meet the purpose of my amendment by sending a similar letter offering a life peerage to those 21 privy counsellors who happen to be hereditary Peers. However, as it is not within the power of the Committee to do anything about that, it seems reasonable to raise the issue as an amendment to the Bill at this stage.
§ Before I develop my argument, I feel that I should read to your Lordships the names of those who, if my amendment were to be accepted, would remain here on the same basis as life Peers. They are my noble friend Lord Aberdare, the noble Earl, Lord Airlie, the noble Lord, Lord Ampthill, my noble friends Lord Belstead and Lord Caithness, the noble Lord, Lord Camoys, my noble friends Lord Cranborne, Lord Carrington, Lord Denham, the noble Duke, the Duke of Devonshire, my noble friends Lord Ferrers, Lord Gowrie, Lord Hesketh and Lord Jellicoe, the noble Marquess, Lord Lansdowne, the noble Earl, Lord Perth, the noble Lord, Lord Shepherd, my noble friends Lord Strathclyde and Lord 'Trefgarne, the noble Viscount, Lord Ullswater, and my noble friend Lord Windlesham.
§ It may be convenient also to mention that 13 of the 21 are Conservatives, six are Cross-Benchers and one is Labour. Over half of them—12 to be precise—are regular attenders which I define as having attended on at least one-third of the days in the last Session. Of the 12, nine attended on at least 60 per cent of the sitting days and five on more than 80 per cent of the sitting days.
Perhaps I may explain briefly why I believe that the Privy Council is so important in our national life and thus, why those who are members of it are set apart from the rest of us. As Dicey put it, in his famous 1860 essay on the Privy Council:
Our Parliament and our Law Courts are but the outgrowth of our Council".
It is certainly true that its origins are very ancient. In 1237, Henry III appointed a council of 12, the members of which took an oath to furnish faithful advice and—which, in a way. is more interesting—the king took an oath to follow that. Following Magna Carta some 25 years before, surely that was a crucial stepping stone
on the route to the constitutional monarchy which we have today. Those who were not nobles were simply given the title "counsellor" and according to one authority that,
gave him greater weight than the proudest baron".
§ By the time of Edward I, the Privy Council was a permanent body of Royal advisers qualified to render the Crown custodian of the subjects' safety. That is another reflection of the earlier Magna Carta.
§ Indeed, the jealousy of the Barons of the powers of the council was a recurring theme in that early history. By 1340, there were signs that the appointment of commoners to the council represented the early intrusion of the democratic element into the seats of the mighty. Thereafter, it gradually became to some extent an alternative to the Lords Spiritual and Temporal. In Tudor times its role was formalised. From 1540 onwards it became much more structured, becoming not only the effective Cabinet under the reforms of Thomas Cromwell but also, especially under Henry VIII, as we so often remember in our legislation, an important instrument of government which was, to some extent, an alternative to Parliament.
§ For the 150 years that followed the Battle of Bosworth, it began to be composed more and more from measures of merit rather than standards of nobility. Thus, there was a separating out of selection by ability rather than by right of birth. It is a process which I contend has continued to this day.
§ Therefore, if the basic principle of this Government is that legislators should be selected either by the people through elections or by a government on merit, I hope that they will not feel that my amendment violates that principle. I contend it is far less contrary both to the spirit and the letter of the Labour Party manifesto than the Weatherill amendment, to which I understand they have agreed on quite different grounds from those on which I argue today.
§ Of course, it would be open to the 21 to put themselves forward under the terms of the Weatherill amendment, if that becomes part of the Bill, and some may well do so. Others among them, whose counsel we should value as much as any, would almost certainly not do so.
§ In conclusion, I contend that at least until a stage two emerges, the House of Lords should retain the 21 as that part of the collection of talent, wisdom and experience in public service for which the Bill already provides. I beg to move.
§ Lord Monson
From the Government's point of view, it is understandable that they should resist vigorously many of the amendments moved so far. But this amendment, explained so well by the noble Lord, Lord Marlesford, is surely in quite a different category.
The Government have stated on more than one occasion during the past few weeks that they want people to sit in this House on their own merits and not 493 on the merits of their forebears. This amendment fulfils the Government's wishes in that respect. So how can they resist it?
No one was appointed to the Privy Council because he was a Member of the House of Lords. He will not cease to be a member of the Privy Council if he ceases to be a Member of the House of Lords. There is no logic at all in the amendment. Its only merit is that it has given us a history of the Privy Council.
§ Lord Vivian
I do not wish to become involved in a debate on the composition of the interim Chamber, but I foresee a void of wisdom, experience and counsel in the number of Peers who may be proposed for the interim stage. For that reason, I support the amendment.
§ 7 p.m.
§ Lord Henley
I begin by offering my apologies for my noble friend Lord Mackay of Ardbrecknish who was to respond to this debate, but he has had to return to Scotland for the elections, and I wish him well there.
I am glad to see that it appears that the noble Baroness the Leader of the House will respond to this amendment. I suspect that that is some indication of the importance which she attaches to the amendment. I think there were many in the Chamber who were somewhat surprised that she did not respond to the earlier amendment of my noble friend Lord Renton of Mount Harry; but there it is. She is to respond to this amendment. As I said, I believe it is one of the strongest arguments we have heard for retaining certain categories of hereditary Peers in the interim House. The presence of the noble Baroness on this occasion seems to give some support to that argument.
As my noble friend Lord Marlesford made clear, privy councillorship is a rare and high honour and reflects real achievement. It certainly meets the criterion that has been repeatedly cited by the Government that hereditary peerages are past rights whereas life peerages—as I believe I have heard the noble Lord, Lord Richard, say on occasion—reflect present and genuine merit. Some might say they represent friendship or patronage, but that is another point.
As my noble friend made clear, there are some 29 hereditary Peers who have the honour of being Members of the Privy Council. As he stressed, the amendment would only bring in some 20 as others already have rights to remain here, in that they are life Peers or members of the Royal Family and are therefore not covered. Those 20 or so certainly have an honour that reflects their present merit. In addition to that, because of their hereditary peerages, they have had a seat in Parliament and a place in public service for many long years, even before they reached that high honour.
What rational Parliament in the world would expel those very Members who carry one of the highest honours in the land, all of whom were honoured for their achievements in public service? As I said, the noble Baroness the Leader of the House will be responding to this amendment. Is she saying that we will solemnly expel all those former hereditary Leaders of the House 494 who are privy counsellors? I refer to the noble Lord, Lord Shepherd, on her own Benches; my noble friends Lord Jellicoe, Lord Cranborne, Lord Belstead and Lord Carrington—privy councillors, Cabinet Ministers, former Leaders of the House or Leaders of the Opposition.
Are we really to expel former Ministers or Chief Whips of such calibre as my noble friend Lord Denham, at whose feet I can say I learnt what few skills I have as Chief Whip, or my noble friend Lord Ferrers, who has offered much valuable advice to me over the years and continues to do so to the House during the course of this Bill? Are we to do that simply because of their crime of being the children of their fathers, hereditary Peers, despite the fact that they have also earns the honour of being privy councillors?
There has to be some way round this. I hope that the noble Baroness the Leader of the House will give serious attention to the amendment. I am grateful that it is the noble Baroness who is to respond to this debate and to respond to my noble friend Lord Marlesford.
§ Baroness Jay of Paddington
I am very pleased indeed to respond to the extremely interesting idea put forward by the noble Lord, Lord Marlesford. Perhaps I may say from the outset that of course the Government agree that noble Lords who are Members of the Privy Council are distinguished public servants. As the noble Lord made clear in introducing the amendment, the Privy Council plays an extremely important part in our national life.
Perhaps I may assure the Committee, once more, that nothing in the Bill prevents a distinguished hereditary Peer from becoming a Member of Your Lordships' House as a life Peer. As the noble Lord, Lord Marlesford reminded us, that is the basis on which my right honourable friend the Prime Minister invited Peers of first creation to accept life peerages; that is, that life peerages would probably have been given to them in the first instance had that been their choice and had that been the method of their reaching this House that had been agreed.
The noble Lord, Lord Marlesford, was honest enough to describe the party affiliations of the majority of those who fall into the category of the group he is trying to preserve by means of the amendment. It is open to the leadership of the Conservative Party to suggest precisely those Members of the hereditary peerage who may leave your Lordships' House who are privy councillors and should return as life Peers. There is absolutely nothing in the Bill to preclude that. I am happy to take the opportunity to make that clear once more.
We should also be clear about the fact that most of the current Members of your Lordships' House who also enjoy the honour of being members of the Privy Council are former Ministers. Some received that honour for government service while being Members of this House and some for their service in another place.
The noble Lord, Lord Marlesford, in introducing his amendment, described the contribution of a number of noble Lords whose names he gave and stated that some had been very regular attenders. My information is that 495 several of those distinguished people, who we all agree are distinguished public servants, have not attended. I believe that five of those named attended less than a total of 10 times during the 1997–1998 Session. I am sure there were good reasons for that arid have no doubt that they were engaged on other public service. However, it indicates that there is no guarantee that being a member of the Privy Council is relevant to active membership of your Lordships' House and, therefore, should not necessarily be valued in that context.
I also believe that the number involved—that is, 21—will not commend itself to those who see the desirability of a significant number of hereditary Peers remaining, perhaps under the amendment that we have before us in the name of the noble Lord, Lord Weatherill, and which we shall shortly discuss.
I must also say to the noble Lord, and those who support him, that I understand the reasons behind the amendment. I hope I have answered it fully and have explained the background to the relevance of Privy Council membership. However, the Government are not tempted by this approach. In a sense, it is precisely the problem we have discussed on so many amendments; that is, that we do not wish to retain any automatic relationship between the holding of a hereditary peerage and membership of your Lordships' House. As I stated at the beginning of my response, there are other ways in which distinguished public servants may become Members of your Lordships' House which are open to former Members who have been here until now on the basis of their hereditary peerage and who are also privy counsellors.
§ Lord Monson
Before the noble Baroness sits down I wonder whether she could answer one question. I apologise in advance if this has already been answered at an earlier stage. Will those hereditary Peers who are made life Peers be obliged to go through a ceremony of introduction?
§ Baroness Jay of Paddington
That has been the subject of some discussion. I believe that in response to another amendment we referred to the correspondence which has taken place between one noble Lord who is a Peer of first creation and is considering whether to take a life peerage. That was in relation to his title. The question of introduction has also been considered. However, as I do not have his permission to quote from that correspondence, whereas I did in relation to the name of his title, I would prefer to write to the noble Lord, once permission has been obtained from the Peer concerned.
§ Lord Marlesford
I am, in a sense, rather grateful for the relatively positive attitude taken by the noble Baroness the Leader of the House towards what I am attempting to do.
As I stated, I would be perfectly happy to see the mechanism of a life peerage used to retain the services of these particular individuals. It is, of course, a totally self-limiting list. By definition this will not occur again in any way.
496 With the greatest respect, I must correct the noble Baroness on what she said as regards the numbers. I have checked and found that only three of the 21 had attended less than 10 times; namely, the noble Lord, Lord Camoys, the noble Duke, the Duke of Devonshire, and the noble Marquess, Lord Lansdowne. The attendance of the rest was remarkably strong. I did not make a comparison with the rest of the House but my guess is that they were, in general, more regular attenders than the great majority of life Peers.
The noble Baroness says that it will be up to the Opposition, the Conservative Party, to put forward names. If that means that instead of the Prime Minister writing to the seven hereditary Peers of first creation, as he has done, offering them a life Peerage, the Leader of the Conservative Party in this House, my noble friend Lord Strathclyde, could write a similar letter, then that would meet my point perfectly.
I am not sure whether that is what the noble Baroness was suggesting would be possible. As I understand it, ultimately the Prime Minister of the day, even under the new rules, still has some responsibility for deciding how many from each party, even though not distinguishing between the names, should be allowed. But on that basis I shall be happy to withdraw the amendment for now and perhaps bring it back and discuss it further on Report.
§ Baroness Jay of Paddington
Perhaps it would save the noble Lord time if I say that I was perhaps being excessively generous with a form of patronage which is certainly not within my power. I apologise for that. All I was suggesting was that there was no way in which a future, present or, given the discussion earlier this afternoon, any Leader of the Conservative Party would not be able to suggest and nominate life Peers in precisely the same way that they do at the moment.
§ Lord Marlesford
Provided the generosity— I regarded it as characteristic rather than excessive—of the noble Baroness is in due course able to be translated, that would probably meet the case. At any rate. I have no doubt there can be further discussions on the matter in the next few weeks and, if necessary, we can come back to it on Report. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Norrie moved Amendment No.30A:
Page 1, line 6, at end insert—
("(2A) The personal and property rights to enter, sit and speak in the House of Lords as granted by Letters Patent and existing in customary and common laws, shall not be changed by this Act.")
§ The noble Lord said: I wish to move Amendment No.30A in order to refute some of the remarks made by the noble Lord, Lord Strabolgi, and the Minister. I have read Hansard with great diligence and would like to set the record straight.
§ In the speech of the noble Lord, Lord Strabolgi, responding to mine on 27th April, he challenged the entire concept and the practicality of hereditary Peers having rights of property in this House. He relied on the 497 grant of Letters Patent as the sole source of those property rights. He explained that hereditary Peers' rights of property could not exist once hereditary Peers were no longer in receipt of a Writ of Summons and thus unable to swear the Oath of Allegiance. He therefore claimed that my amendment was flawed.
§ I believe the noble Lord ignored the argument which I brought forward, with good supporting authority, concerning property rights in the House acquired by hereditary Peers under customary and common laws. Thus property rights in this House are acquired by both Letters Patent and by common law. They are separate causes for which there are well recognised, established legal precedents.
§ I suggest to the noble Lord, Lord Strabolgi, that his argument cannot possibly lead to the conclusion that my amendment was flawed. He ignores the fundamental fact of rights in property acquired by usage. This Bill removes those rights.
§ The noble Lord also stated that Amendment No.30A was flawed because it did not include all hereditary Peers. Again, I have to correct that view. All peerages, whether created by writ, charter, Letters Patent or according to the Life Peerages Act, have a claim to property rights in this House. The common law right to enter these premises applies to all Peers. In the case of hereditary Peers, their property rights are to be removed.
§ I refer the noble Lord to the fact that the descent of peerage in England is, and from time immemorial has been, governed by the common law rules of inheritance. This is a principle of the peerage law in England. A peerage, with rights created prior to 1397, as was the noble Lord's opposite, has the same hereditary rights in this House as all those created by Letters Patent. In that sense there are not two classes of peerage. Those prior to 1397 were created by writ, some by oral grant of the sovereign, some by Act of Parliament and some by charter. In all cases, rights were granted which have been and are passed on according to the common laws of inheritance.
It is settled law that if a Writ of Summons is issued and the summoned person takes his seat in the House of Lords, he has thereby acquired a hereditary peerage with the right to sit in the House. Creation by writ is ancient and, to quote Lord Coke,
A man shall gain an inheritance by writ…but the writ has no operation until he sit in Parliament".
§ Once a Peer exercises the right to sit, it is passed on by common law. It is not my amendment which seeks to circumvent the Bill, as the noble Lord clearly stated; it is the Bill which not merely circumvents the customary laws of property, but seeks to destroy them.
§ Perhaps I may express my concern at an unfortunate comparison made by the Minister—who is not present this afternoon—in his response to my amendment on 27th April. He referred to Peers who were deprived of their rights under the Titles Deprivation Act 1917 if they supported the enemy in the Great War. It seems from his remark that the noble Lord considers that hereditary Peers, especially those who fought our enemies in wars, are also to be deprived and thus to be classed with those 498 who were traitors in 1917. I hope the noble Lord was not, albeit unintentionally, revealing the attitude of the Government concerning hereditary Peers. Perhaps the noble Baroness will ask the Minister to withdraw that comparison which he made.
§ Finally, in response to the Minister's remarks about Letters Patent, I have acknowledged in my several speeches to the Bill that Letters Patent can be changed by statute. However, the principle does not provide any authorisation from the electorate to remove property rights acquired by custom under common law. That effect was never even hinted at in the Labour Party's political manifesto.
§ The Minister stated in his remarks that I made a claim to personal property rights in this House, under provisions in the statute of Westminster. I did not. I stated that the statute required the Government to obtain the consent of all Commonwealth Parliaments, since the Bill touches upon the sovereign's inherited titles. I believe the Minister was confused. I beg to move.
§ 7.15 p.m.
§ Lord Strabolgi
The noble Lord, Lord Norrie, has clearly had another go. It is not usual to speak again on a consequential amendment, though there was another occasion the other day.
I do not understand his speech. I did not understand it last time and I do not understand it now. He seems to argue that a Peer has property rights transcending anything else and the sovereignty of Parliament. It seems to me to smack of the ancien régime and I do not believe it has any validity at all.
The noble Lord also says that peerages by writ were created by the sovereign. They are not created; they stem from the fact that their ancestors sat in Parliament and signed the Parliament roll. That gradually became a peerage. They were not necessarily always peerages for life. They could be taken away by the King if he did not summons them to a subsequent Parliament, and they were not always hereditary. That evolved over the centuries.
As I said, I do not agree with the noble Lord. His argument is specious. It assumes that Parliament is not sovereign and that the nobility have rights over and above Parliament. That may have happened in the 18th century in France, but it does not happen in 20th century Britain.
§ Viscount Torrington
In refuting what the noble Lord said, surely Parliament is in fact a collection of those who received a writ to attend. It is not the bricks and mortar of this building.
§ Lord Falconer of Thoroton
I can hardly improve on what my noble friend Lord Strabolgi said, but perhaps I can make two preliminary points.
My understanding as a complete novice in this House is that when people agree to a grouping, although they clearly have a right to come back, there is not much point if they just ignore the grouping when we discussed 499 all the issues on the first occasion. Having said that, I shall deal with the points raised by the noble Lord, Lord Norrie.
First, I am sorry that my noble friend Lord Williams of Mostyn is not here. Knowing him as I do, I know perfectly well that he would never have intended, nor did he say anything which could possibly suggest, that he was comparing the present hereditary Peers to traitors of the country. That was made absolutely clear. If and in so far as anybody could possibly have got that impression, it was never intended. I know that my noble friend would never have intended that.
I shall now deal with the substance of the speech made by the noble Lord, Lord Norrie. At its heart it has two propositions which, with the greatest respect, seem to me to be greatly misconceived. The first is the nature of a hereditary Peer's right to sit in this House; but, uniquely. it is not subject to the sovereignty of Parliament. Whereas every other single right, whether property or not, can be changed, the noble Lord argues that the right to sit in this House by a hereditary Peer can never be changed. That is absurd; indeed, the moment one states the proposition one can see that it must be wrong. The fact that it is wrong is demonstrated by the fact that both the Committee for Privileges and this House have treated it as wrong in the past.
The Committee for Privileges treated that proposition as wrong in the Viscountess Rhondda case in 1922, and the legislative House treated it as wrong in Section 6 of the Peerage Act 1963 when it allowed Letters Patent to be changed to allow Peeresses to take their seats. Quite separately from the legal connotations which those two points indicate, the idea that of all rights in all the world that of an hereditary Peer to sit in this House is the only one that can never be changed is absurd.
The second point is what underlies the argument of the noble Lord, Lord Norrie; namely, that a right to sit in a Chamber of Parliament is a right of property. Is it the only right of property that cannot be sold? Indeed, every other right of property can be sold on the open market. Is the noble Lord seriously suggesting that a hereditary peerage comes into that category as far as concerns the right to sit here? Again, merely stating the proposition seems to me to suggest its absurdity. Although I respect the sincerity of the noble Lord, Lord Norrie, I believe that his propositions are founded on completely absurd and misconceived notions.
§ Lord Norrie
I am most grateful for the full replies that I have received this evening; indeed, my speech certainly generated some steam in the Chamber. I am interested only in the legal connotations. That is my sole concern. If those on the opposite side of the Chamber are satisfied that all this is within the law, then that is fine by me. Perhaps I am trying to be Devil's advocate so as to bring out a few points which I feel are not covered in the legislation. However, provided that the other side is satisfied, I am satisfied. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Hunt of Kings Heath
I think that this might be a convenient moment for the Committee to break for 500 dinner. I therefore beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.23 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.