HL Deb 22 June 1999 vol 602 cc786-853

3.14 p.m.

The Lord Privy Seal (Baroness Jay of Paddington)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report. —(Baroness Jay of Paddington.)

On Question, Motion agreed to.

Clause 2 [Exception from section 1]:

Lord Strathclyde moved Amendment No. 21:

Page 1, line 14, at end insert — ("() If a vacancy arises by reason of the death or disqualification of an elected hereditary peer excepted from section 1 the vacancy shall be filled—

  1. (a) until the end of the first Session of the Parliament after that in which this Act is passed, by the unsuccessful candidate who obtained the highest number of votes in the election at which the deceased or disqualified peer was elected; and
  2. (b) for any subsequent Session of Parliament, by the holding of an election conducted in accordance with provision made by virtue of this section.")

The noble Lord said: My Lords, this is the first of an important series of amendments which will be moved from the Front Bench. Perhaps I may crave the indulgence of the House to mention them briefly.

Amendment No. 21 has been tabled to insist on the long-term replacement of what we now call the Weatherill Peers in a by-election. Secondly, Amendment No. 25 would bring in an independent appointments commission—something that the Government have promised for over two years but have not yet delivered. Then, possibly next Wednesday, we shall debate a related amendment, Amendment No. 52, which would limit the size of the House to 659, the same as another place, and so place a cap on the overall extent of patronage. I also commend to the House Amendment No. 46 in the names of my noble friends Lord Mancroft, Lord Goschen and Lord Renton of Mount Harry. The amendment would limit the ability of any future Prime Minister to flood the House in a bid to extend the life of a Parliament.

I must say at the outset that none of these amendments threatens the Bill. Taken together, they do not cut across its objectives, certainly not in the way that the Weatherill amendment, which has already been agreed and commended to the House by the noble and learned Lord the Lord Chancellor, did. They do not delay the Bill. They do not modify the composition of the House. They simply place safeguards around the exercise of patronage by any future Prime Minister. They also—and this applies particularly to Amendment No. 21—ensure that we do not find ourselves drifting down a slow road to an appointed House. That could happen if the principle of replacement is not included on the face of the Bill.

In the interim House, taking into account the Bill as amended and last weekend's creations, there will be some 218 Conservative Peers and 236 Labour and Liberal Democrat Peers, taken together—a Lib-Lab majority. It is also true that there will be 150 or so Cros-Benchers. But it will be far easier than we may now assume for the Government, who are creating a primarily appointed House, to gain control of procedure and the workings of the House. It would be wrong for the radical step of the creation of an appointed House to be brought about by sleight of hand through Standing Orders. Such an extraordinary step, which would create a hand-picked Chamber, almost unique in the world, should only come about openly, in the full glare of public debate, by primary legislation.

The original Bill before the House was such a Bill. It was universally condemned by commentators, right, left and centre, as a quango too far. So the Government retreated. They accepted the Weatherill amendment; and so, in honour, as I, like the noble and learned Lord the Lord Chancellor, feel bound in honour, there they should stay.

I do not think that there is a disagreement in principle between this side of the House and the party of government on this amendment. There should not be. We have always made it clear that we should have preferred a single stage Bill. "No stage one without stage two" was not only a good slogan; it was a good constitutional principle. But that battle is now gone. We have this dismal johnny of a Bill before us and we have to deal with it.

I accept that the noble and learned Lord and the Government intend to move on to a second stage Bill. But his and the Government's lips are sealed on what that second stage should be, and those of his colleagues likewise. So do they want to shake the comfortable nest that they will be taking over as life Peers by bringing in elected Peers? I look across the Chamber and do not see a reformist stage two gleaming in Members' eyes.

I accept the good intention of the noble and learned Lord the Lord Chancellor in that regard, but he is not immortal in his high office and cannot necessarily command a future Cabinet, a future House of Commons or a future Parliament. So we must treat the Bill as a stand-alone Bill, one that may last 10, 20 or even, as the current proposals have done, nearly 90 years. That means that if we are not to drift into the quango House that no one wants, we must have a system of replacing the 92 hereditary Peers as they die off.

In my amendment I have given the noble and learned Lord the Lord Chancellor or my colleagues in the next Conservative government time to move on to stage two; time to pass a Bill in the first Session of the next Parliament. In that time I have gone along with the noble and learned Lord's view that empty places be topped up from the election roll of 1999. But I have added the tiny insurance policy of writing it onto the face of the Bill. In the long term—and we must conceive of the long term—the top-up scheme is not a secure or stable system. Shall we say, for example, in 2020 that Lord X must come into the House because he was 132nd on the Cross Bench list in 1999? That is a nonsense and we all know it.

The best way to fill a Weatherill place in the long term is to follow the practice the House has had the wisdom to use twice previously for the Irish and Scottish representative Peers. That is by election. The noble and learned Lord the Lord Chancellor has himself referred to the greater authority that will come to hereditary Peers who remain in this place because they have been elected. Those who come here afterwards by election will have the same authority. The system will have the logic and certainty that the House requires.

I have made my view clear that I would prefer by-elections in future to involve the whole group of hereditary Peers in the party college so that they are truly representative of the hereditary peerage. In Committee, the noble and learned Lord appeared to hint that he might favour what the Romans called "adlection", election from the body of hereditary Peers by those hereditary Peers already in the House. I am less attracted to that approach, but I do not rule it out.

Those kinds of matters are far better resolved by the Procedure Committee and ultimately, of course, the House. They are matters which would fall to be debated and decided on the report of the Procedure Committee when it comes to your Lordships' House.

On behalf of these Benches, I must say how grateful I am for the firm assurance given by the noble and learned Lord in Committee that the debate on the Procedure Committee will be held before Third Reading. That was a wise and statesmanlike undertaking. The amendment is therefore simple. It does not seek to anticipate the details of a by-election system in the long term. That will be for your Lordships on another day. It is also non-prescriptive. It goes with the grain of all that is implicit in the Weatherill arrangement. It is common sense, and it provides, as a wise revising Chamber must, for stability in the long term if stage two never arrives.

I hope that the Government's response will be positive and that they will think carefully on the matter. I was disappointed to read the words of some unnamed spin doctor who claimed that the Weatherill Peers would be excluded if the House insisted on the amendment. I would like to think that that spin doctor was not speaking with the authority of the Government in this House.

I know that there are those outwith the House who do not understand the duty of the House to improve legislation and to guard against every eventuality, however unlikely it might appear. I know that there are those who do not understand the will of the House to be satisfied on the point. The amendment goes to the heart of sustaining the Weatherill arrangement and avoiding a totally appointed House if the second stage never arrives. I hope, therefore, that the Government can reflect on it. I hope that they understand its importance and that the Minister comes to the Dispatch Box this afternoon with a positive reply. If the noble and learned Lord cannot do so, I must warn him and the Government that I shall be obliged to test the opinion of the House. I beg to move.

Viscount Cranborne

My Lords, I wish to associate myself with the words of my noble friend the Leader of the Opposition. I made it clear during the course of some of the debates in Committee that this was one of the matters in my recollection which the noble and learned Lord the Lord Chancellor and I had raised but had deferred as matters for consideration in further detail. I hope that the noble and learned Lord will also be able to confirm that as his recollection. It is a matter of detail, but, I submit, of extremely important detail.

I shall once again trespass on your Lordships' patience by reminding the House of what I saw as the purpose of the agreement I came to with the noble and learned Lord and the Prime Minister. The purpose was to try to pour some sand into the Government's shoe. It would be an irritation to them. Those of us who suspected—no doubt entirely wrongly—that the Government all along wanted to stick at a stage one nominated House saw it as an incentive to ensure that that intention never materialised.

It is against that background that I suggest we should consider my noble friend's amendment. If the Government mean what they say—and I have absolute confidence in the noble and learned Lord when he says it—that they intend to proceed with all due dispatch to stage two reform, I suggest that there is no difficulty from the Government's point of view in accepting my noble friend's amendment. After all, by the time of, the first Session of the Parliament after that in which the Act is passed", according to paragraph (a) in Amendment No. 21, if that time comes, and the Government mean what they say, it seems to me that we shall be well on the way at least to incorporating stage two on to the statute book. If that is not so, we would have accomplished it. So if the Government mean what they say, they would surely not be taking any risks in terms of by-elections. There would be no call for by-elections.

However, if the Government resist the amendment. it would confirm in the unfortunately suspicious minds of some of us that there are some elements of the Government—I am sure, not the noble and learned Lord the Lord Chancellor—who have always wanted an entirely nominated Chamber. They could clearly not get it by passing the Bill in its original form. That is something which they accepted would prove enormously difficult in the absence of the compromise which your Lordships have approved in principle.

It would imply that they could also not rely on the recommendations of my noble friend Lord Wakeharn. Those suspicious spirits might feel that he could have been relied upon by the Government to recommend an entirely nominated Chamber. Your Lordships have been repeatedly assured by my noble friend, as is no surprise to those of us who know him, that a nominated Chamber is only one of the options that his Royal Commission will consider and that of course he will be entirely open as to his reasoning behind any recommendations he gives.

So, if the suspicious are right, then the Government would not be able to achieve a wholly nominated Chamber by that route either. If the Government were to resist this by-election amendment, the suspiciously minded would then be driven to the conclusion that if the first two routes had failed they would be driven to a third expedient, and that expedient would take a little longer than they had originally planned but they would still get there in the end. The phrase that has come to be recognised to represent this tactic in your Lordships' House is "withering on the vine". Clearly, if no by-elections were to be held, and this stage one Bill were not to be replaced by a stage two Bill, it would be clear that the 92 would be allowed to wither on the vine and the Government eventually would manage to have achieved their nominated Chamber. In fact as the withering took place, the nominated Chamber would become increasingly a reality, as those of your Lordships who were lucky enough to be elected as members of that group of 92 gradually died off.

It seems to me therefore that what is at stake here is the Government's credibility. I have no doubt at all, as I have said before, that the noble and learned Lord the Lord Chancellor has bent over backwards to be honourable in keeping to the agreement that he and I came to. I have already said that this detail was one over which we did not agree and which we merely raised in passing, as I understood it, for future agreement. Nevertheless, for the reasons I have given, it seems to me that this is a detail of considerable importance. If the Government really do mean to go to stage two, there seems to be no necessity to oppose my noble friend's amendment, because the by-elections will never be called upon to take place. If, on the other hand, they do not mean to proceed to stage two, then the sand in the shoe will become an ever2014;present reminder to whatever government are in place at the time of by-elections that something must be done to complete the process which Parliament has started in the present Session.

I would submit to your Lordships that this amendment is integral to the tactic which lay behind our motives in coming to this agreement. If Your Lordships do not accept the amendment, then the whole reasoning behind the Weatherill amendment begins to fail. I would suggest to Your Lordships that this will prove to be a test which it is only sensible for your Lordships to set the Government. I am sure that the noble and learned Lord the Lord Chancellor will take my remarks in the spirit in which they were intended.

3.30 p.m.

Lord Desai

My Lords, we should be grateful to the noble Lord, Lord Strathclyde, for repeating the arguments that he made on an earlier occasion on this amendment. I find the amendment rather curious. The argument is made that, if we are going to have a reformed Chamber and a second stage, then this amendment is harmless and that therefore we should accept it; but if it is not going to be like that and the transitional House will last a long time, then of course it is absolutely crucial, and the Government must accept it.

I would say exactly the opposite. If noble Lords are right and we accept the Weatherill amendment in order to entice or encourage the Government to have a stage two and stage two is going to happen, the amendment is unnecessary. So why burden the Bill with an unnecessary amendment? If, however, for some reason or another, we are going to have a long transitional stage, which will change the nature of this House in the much longer run, we need to think very carefully about how we will replenish the numbers in that continuing House.

One argument I would make, which is a very strong one, against putting such a provision in the Bill is that at present the rules for electing the 90 are not on the face of the Bill; they are in the Standing Orders. Any amendments to those rules should be left to the committees of this House in the future rather than be put on the face of the Bill, which would allow another place to amend them. We do not want another place to determine by what rules we elect Members of this House. In order to do that, we must leave this question off the face of the Bill. That is one argument for rejecting the amendment.

Lord Dean of Harptree

My Lords, I voted for the amendment to Clause 2—the so-called Cranborne/Weatherill compromise—for three reasons: first, it will provide some continuity with the existing House; secondly, it will retain in the House more knowledge, experience and diversity than would otherwise be available; thirdly, it will provide an elected element and therefore greater authority for the Peers who are elected and for the House as a whole. Those seem to be substantial reasons in favour of the amendment. Therefore, I judge all amendments, including this one, by one test: is the amendment in keeping with the compromise or not? In my judgment, the amendment moved by my noble friend is in keeping with it. In fact, I believe that, without the provision for by-elections, the amendment which your Lordships' House accepted in Committee will not be wholly effective.

I realise that the Government will say that provision for by-elections is not required because the second stage reform is coming quickly. I do not doubt for one moment that the Government are genuine in their belief, but I do suggest to your Lordships that both time and political imperatives will be against them. The Royal Commission is due to report by the end of the year. That is a very tight timetable. There is no guarantee that it will achieve that timetable. After that, the Government, to their credit, have promised a Joint Committee of both Houses. Anyone who has studied the history of House of Lords reform will realise how difficult it will be for that Joint Committee to achieve agreement. It will certainly need a good deal of time to deliberate. After that, there will be the reaction from the Government. Who has ever heard of a Government coming up to a general election and introducing a Bill for which there is little demand in the country? Of course, the Government will inevitably say—any Government would say it in such circumstances—"We are far too busy with legislation for which there is great demand among the public and legislation which will stand us in good stead for the next general election". Any government would do that and no-one can blame them for so doing.

I suspect that, when we reach that stage, the Government will say, "We are very sorry but we do not have time to introduce the Bill in this Parliament". Then, of course, the general election will take place. Who will win it? Who knows? What will be the form of the next Government and the next Parliament? What will be their attitude to stage two? No one knows. It is at least possible—I say probable—that the interim House will last for a very long time. It is for this reason that I believe we should legislate for that possibility, and I strongly support the amendment moved by my noble friend the Leader of the Opposition.

Lord Marsh

My Lords, I had no intention of taking part in this debate for a variety of reasons, but a misunderstanding may well have emerged. It has already been stated twice that this particular amendment, which may be good or bad, is a crucial part of the agreement. I am perfectly prepared to give way to the noble Viscount, Lord Cranborne, if he seeks to deny that.

Viscount Cranborne

My Lords, as usual, obviously I have not made matters clear to the noble Lord in particular and the House in general. What I hoped I had made clear was that I regarded the question of by-elections as a crucial detail. However, if my memory serves me right, that was not a matter upon which the Lord Chancellor and I were at one during the course of agreeing the overall Weatherill amendment. That matter was left for future resolution.

Lord Marsh

My Lords, then there is obviously no need to make the point that I intended to make. This amendment may be good or bad, but it certainly was not agreed by some parties to the Weatherill amendment. Notice of that was given to both sides some weeks before the Bill ever entered the House.

Having risen to my feet, I should like to say a few words about the amendment. One fear that has run throughout the debate is that the Government have some reason for wanting to kick the ball into touch and move to a wholly appointed House. I and many other noble Lords are very much in favour of a largely appointed House. Other noble Lords take a fundamentally different view: for example, that it should be overwhelmingly an elected Chamber. That is precisely the key issue on which the Royal Commission has been set up to make recommendations. It seems to me to be, sensible to wait until that point before we decide.

How valid is this fear? We are talking of the possibility of a considerable number of those who remain being struck down by bubonic plague or some other illness. One by one they go down like skittles until we run out of people to whom we can turn. But everybody in the House knows that—I am sure that the Leader of the Opposition agrees—the likelihood is that the Conservative Party will win the next election. In that case there will be no problem. Even in the unlikely event that the Conservatives did not win the next election and the Labour Government were returned with their majority, together with the Liberal Democrats who support them on this issue, cut to less than 100, for what possible reason could they fail to proceed with the intentions of the Bill?

Scottish and Welsh devolution arid the Greater London Bill would be out of the way and this one issue would remain. Would the noble and learned Lord the Lord Chancellor and the noble Baroness the Leader of the House come before the House and say that they were terribly sorry but they could not do anything further about the removal of hereditary Peers from the House of Lords because the Scottish (No. 2) winter feed-stuff Bill was holding up the programme? They would have to deal with it. Therefore, I believe that this is a false issue.

3.45 p.m.

The Earl of Onslow

My Lords, almost invariably in this debate I have agreed with the noble Lord, Lord Marsh. However, on this occasion I believe that his normal lucid grasp of affairs has slightly slipped. Harold Macmillan said, "Events, dear boy: events, clear boy". The 1911 Act was supposed to lead to proper reform. I take noble Lords through the following possible scenario. The Royal Commission is split. Historically, Royal Commissions have not always been unanimous. That holds up the matter. A joint committee of both Houses then considers the matter. As has been said, such committees are not renowned for being smooth-talking bodies that produce agreements fairly easily. It does not happen like that.

I try my hardest not to make any party-political points. I am interested only in what comes after me. I want the future House to command respect and authority and be able frequently to kick any government where it hurts most. If the then government have to use the Parliament Act, so be it; let them. If this House in its new form can throw out delegated legislation, so be it. The government will then have to justify themselves.

As I understand it, the reform of the House is intended to give this place greater authority. My noble friend Lord Cranborne has done his country an enormous service in ensuring that stage one will have more authority. Noble Lords opposite will not be able to say that all the hereditary idiots like Onslow—there are lots of others, but I shall not name any names—are in the House. This is the sand in the shoe if they do not proceed with it.

The noble Lord, Lord Barnett, said at Committee stage that he did not like the Weatherill amendment but saw it lasting. The Government have nothing to lose either by accepting the amendment or giving a rock solid undertaking to put a proper by-election procedure into Standing Orders. I see the force of the point made by the noble Lord, Lord Desai, about putting the matter on the face of the Bill. There is much greater force in putting the commitment to a by-election procedure on the face of the Bill. That does not go against anything that anybody has said before. I hope that Fabius Maximus Cunctator does not have to come out of retirement, but I remind noble Lords that the football season starts fairly soon.

Lord Waddington

My Lords, I am surprised by the confidence of the noble Lord, Lord Marsh, that a second stage Bill will follow shortly after the passage of this legislation. I am now allowed to refer in debate to what has been said in another place during this Session. The noble Lord, Lord Marsh, perhaps has not read the report of the debate in another place on 9th June. Mr Robert Sheldon, a former colleague of the noble Lord, is a man of enormous experience in these matters. Those of us who were in the other place in 1968 will clearly recall how Mr Sheldon was one of those who engineered the government's discomfiture and forced them to abandon all progress on the Parliament (No. 2) Bill. Perhaps we should consider what Mr Robert Sheldon said in the other place: My view of the proposed legislation, as it comes back from the House of Lords, is that it would produce a transitional House; these are the first steps. My expectation is that that temporary scheme is likely to become permanent. I am sorry to disagree with some of my colleagues, but, as time goes on, the enthusiasm for constitutional reform is not likely to increase. In my experience—I have seen a fair amount of such matters in my time—that enthusiasm is likely to terminate fairly early on".—[Official Report. Commons; 9/6/99: col. 668.] Noble Lords would be very foolish not to heed the words of that acknowledged expert.

When we are considering all the amendments before the House, we should proceed on the assumption that, whatever may be the intentions of the Government, there is no way in which the Government can guarantee that there will be a second-stage Bill because the matter is not entirely in their hands; and there are a great many experts in the other place and here who have experienced Bills designed to bring about constitutional reform who recognise the difficulties with which the Government will be faced, and know perfectly well that governments tend to have other priorities. I therefore support the amendment.

Noble Lords

The Lord Chancellor!

Lord Lucas

My Lords, this is Report stage.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, in the light of the contributions your Lordships have made, and with the leave of the House, it might be for the convenience of the House—I shall not give way at the moment—and of assistance to the House to know the position that the Government are minded to adopt.

Lord Denham

My Lords, I hope that the noble and learned Lord is not making a winding-up speech because, this being Report stage, if it is a winding-up speech no one can speak after it, so the debate could not continue after the noble and learned Lord speaks.

The Lord Chancellor

My Lords, perhaps I may repeat for the benefit of the noble Lord, Lord Denham, I think that it may be for the convenience of the House if I were to indicate the position that the Government are minded to adopt in the light of the various useful speeches that have been made.

Let me make some things absolutely plain. As I have said many times before, the Weatherill amendment is a purely transitional measure. It was on that basis that the Government supported it; and if the noble Lord the Leader of the Opposition, will forgive me, no matter how loudly he may whistle in the wind, it is to be hoped that that is the position. He may find that activity of whistling in the wind sustaining for the present, but I can assure him that it will not sustain him for very long.

I also have explained that Clause 2 of the Bill is not about keeping open the principle of hereditary membership of your Lordships' House. That is why, as a matter of principle—and I want to make this absolutely plain at the outset—we do not accept by-elections in which all the hereditary Peers, including those by then excluded from the House, could vote. But perhaps it would be convenient if I indicated my position in relation to what the noble Viscount, Lord Cranborne, said.

All that we ever agreed in terms of replacements was fastest losers. We did not get further than that. So I can confirm that what the noble Viscount, Lord Cranborne, has said is correct. We did not proceed in our discussions beyond that stage. We did not discuss a point in time when fastest losers might cease to be an effective proxy for contemporary popularity, precisely for my part because I contemplated, and do contemplate, phase two preceding that time. It is not for me to say what was in the noble Viscount's mind, but I can confirm that we did not discuss the subject matter of this amendment.

Viscount Cranborne

My Lords, I wonder whether the noble and learned Lord could also confirm that at a later stage we discussed in principle the matter of by-elections, but came to no conclusion.

The Lord Chancellor

My Lords, if the noble Viscount recalls that, I would not call it in question. Certainly we arrived at no agreement about by-elections.

The question therefore arises: if on the expiry of the first Session of the next Parliament there has been no stage two, then the noble Lord the Leader of the Opposition says fastest losers by then surely cease to be an effective proxy. Let that be. The Government are willing to proceed on that hypothetical assumption. So let us look carefully at what the amendment says. It recognises the topping-up procedure currently provided for in the draft Standing Orders as an acceptable scheme to generate replacements until, and only until, the end of the first Session of the next Parliament. Thereafter, it provides that replacements should be decided by means of by-elections.

The noble Lord suggested that fastest losers may by that time no longer be considered by their hereditary colleagues to be the most suitable candidates for the post. I am willing to accept that that is a reasonable proposition on the assumptions on which it is based. I do not need to share the assumptions in order to accept that it is a reasonable proposition based on these assumptions, and that by-elections would be a reasonable alternative to fastest losers after the lapse of a few years. I have no objection to the suggestion that the end of the first Session of the next Parliament is a suitable cut-off point. This is a matter of judgment, of course. The contrary could be argued. But for myself and for the Government, the noble Lord's judgment on this appears to be reasonable and therefore one that we can accept.

The Standing Order, as presently drafted, does not rule out by-elections; and of course the Standing Orders have the great advantage of allowing the House maximum flexibility in the matter of replacements, both in deciding the method to adopt to replace excepted Peers once there are no available runners up, and in deciding the right time when to introduce a new method for replacement. That is why we have always believed, as a matter of principle, that such matters are far better dealt with in Standing Orders. But the noble Lord the Leader of the Opposition has explained that he wants a measure of certainty; that he wants on the face of the Bill an express provision for by-elections to kick in at a predetermined point in time.

As for the detailed mechanics of the by-elections, the amendment appears to reflect the Government's view that the mechanics, the details of the by-elections, are not matters for the face of the Bill because the amendment which the noble Lord has brought before the House appears to envisage that the detailed provisions should be made elsewhere; and that, of course, is in Standing Orders.

So the Government's position is this. Against the possibility, which we do not accept will become reality, that the transitional House will last for longer than on many occasions I have indicated that it will last, and because we are persuaded to accept the proposition that after the passage of the period of time denoted in the noble Lord's amendment, by-elections are a reasonable alternative to the initial topping-up procedure for filling vacancies, we could be persuaded in favour of an amendment in relation to by-elections, but we could only accept an amendment coupled with Standing Orders which provided that hereditaries outside the House may of course stand, and only they may stand, but that they may not vote in the by-elections.

I want to make that point absolutely clear because it is the key to our willingness to entertain any amendment along the lines proposed on the face of the Bill. What we propose is that there will be in-House by-elections and no excluded hereditary Peer will have a right to vote in them.

The voters in a by-election to fill a vacancy arising among the 75 Peers elected in the first instance by the four party and Cross-Bench groups will be the excepted hereditary Peers in the relevant grouping. Thus this matters remains exclusively within this House.

By contrast, the voters in a by-election to fill a vacancy arising among the 15 elected to stand ready to serve as office-holders will be, as in the initial election for the 15, all Members of the House, in this case all life Peers and all excepted hereditary Peers. That is the rational and logical constituency, since any replacement in this category will be expected to stand ready to serve the whole House.

In the light of what I have said I hope that the noble Lord, Lord Strathclyde, will accept my assurance that the Government themselves will bring forward at Third Reading an amendment which gives effect to the proposition that I have outlined, I hope clearly, to the benefit of the House, and that he will therefore, when the time comes, withdraw his amendment. I can further assure the noble Lord that if this course is acceptable to him, then, once the amendment is in draft, we will discuss its terms with him.

The proposition that I have outlined, to be reflected in that amendment to be brought before the House by the Government on Third Reading, will of course also need to be reflected in draft standing orders to be considered by the Procedure Committee, and I would hope that that state of affairs could be achieved before Third Reading.

Those are the fullest assurances that I can give the noble Lord to encourage him to withdraw his amendment.

4 p.m.

Lord Denham

My Lords, I think that the noble and learned Lord the Lord Chancellor will accept that a large number of noble Lords on this side of the House have genuine fears that the interim House might go on very long indeed. We are very grateful for the assurance that the 92 hereditary Peers will carry on until stage two eventually comes.

Just suppose that that House goes on for a very long time and the party opposite get fed up with it. If it wanted to get rid of those 92 before stage two came, and it hit on the idea of getting rid of them by giving them all life peerages, although that would no doubt fulfil its commitment in its manifesto, I believe that it would be a breach of the Weatherill agreement. Does the noble and learned Lord agree?

Lord Ewing of Kirkford

My Lords, before my noble and learned friend the Lord Chancellor responds to the point that has just been made by the noble Lord, Lord Denham, perhaps I may put this to him.

I had not intended to participate in the debate, but I listened with some concern to my noble and learned friend's response to the amendment before us, in the name of the noble Lord, Lord Strathclyde. It seems to me that there is a simple solution that would meet the point made by the noble Lord in his amendment and the feeling that seems to pervade the House. I refer to the principle that we in the Labour Party follow in the election of Members to the Council of Europe and the Western European Union and the appointment by the Conservative Party of Members to serve on those two bodies. We select so many pool Members and so many alternate Members.

I think that the Conservative Benches are to elect 42 Members to continue in the interim House. It seems to me a simple proposition that they should also elect 42 alternate Members at the same time. Then when it was necessary to consider a replacement the replacement would come from the 42 alternate Members who were elected at the same time as the substantive Members.

I think we are drifting into very difficult waters, when a very simple solution could be introduced on Third Reading. I ask my noble and learned friend to consider it before that stage.

Lord Mishcon

My Lords, I wonder whether my noble friend Lord Ewing is aware that an alternate Member does not exist only to inherit a membership. but has the right to participate in the proceedings of assemblies, or a board, because he or she is the alternate and can therefore participate in the proceedings prior to any death, resignation or whatever. That obviously is not what anybody wants.

Lord Ewing of Kirkford

My Lords, with the leave of the House, I say, with great respect to my noble friend Lord Mishcon, that my experience of alternate Members in Europe is that they replace those who are absent. And there is no more certain absence than the certainty of death.

Lord Goodhart

My Lords, are we still continuing with a mini-debate, or have we returned to the main debate?

The Lord Chancellor

My Lords, I should like to respond to the two points that have been made, dealing first—

Lord Rodgers of Quarry Bank

My Lords, my noble friend Lord Goodhart asked a question which is very relevant to the ability of other noble Lords to participate further in the proceedings. There was considerable concern in all parts of the House when the noble and learned Lord the Lord Chancellor rose, as Members believed that that might put an end to the debate under our rules of order. I understood him to say that that was not the case, and that he was intervening. I should like to have this absolutely clear, so that there will be no further misunderstandings. When the noble and learned Lord has said what he wants now to say, will other Members of the House be free to speak in the normal way, if they wish? I understand that the Chief Whip is nodding assent. If that is confirmed, there will be no further problem.

The Lord Chancellor

My Lords, I thought that it was clear to everyone in the House that that was the position, and I see that everyone is nodding agreement. On the other hand, it might be of assistance to the House if, before other contributions were made, the noble Lord, Lord Strathclyde, felt able to indicate whether the course of action that I propose is acceptable to him. That, of course, does not shut out other noble Lords, but it might persuade them to abbreviate their contributions if I have secured a favourable response from the noble Lord, the Leader of the Opposition.

Of course, I say out of courtesy to my noble friend Lord Ewing that I will consider his proposition of an alternate system, but, for the reason given by my noble friend Lord Mishcon, I think it is an unnecessary complication; it is not proposed by anyone by way of an amendment; and it steps completely outside what has already been agreed in the Weatherill amendment, that there should be a defined number. The notion that that defined number could be represented by an equal defined number of alternates to participate in our debates does not appeal to me.

Nothing I can say to the noble Lord, Lord Denham, can bind a future Parliament, nor, indeed, a future Government. That is obvious. But I say quite clearly that it is the Government's intention that the position of the excepted Peers shall be addressed in phase two reform legislation.

Lord Strathclyde

My Lords, it might be for the convenience of the House if I were to give a response to the noble and learned Lord the Lord Chancellor.

The House is very full this afternoon. We have witnessed a most extraordinary event, one which I think will become extremely memorable. The dramatic entry of the noble and learned Lord in this debate was extraordinary, but most welcome. One of the excitements of this House is the unpredictable nature of interventions from the Front Bench. I have to say that I suffered a frisson of excitement as the noble and learned Lord spoke and he has given me great pleasure. If I had known that he was to reply quite so quickly, I should have asked for a lot more!

I believe that the noble and learned Lord has come to a statesmanlike conclusion. It is sensible. It is consistent with the arrangements in new Clause 2, on which this House has already voted. It is a victory for common sense. I understand that the noble and learned Lord has committed the Government to coming forward with an amendment at Third Reading. It will be discussed between the Government and the Opposition so that a format can be agreed. He has accepted that there should be on the face of the Bill an assurance that any replacement for the 90 Peers will be by election and that there should be agreed Standing Orders to ensure that those elections can take place.

The Lord Chancellor

My Lords, for the sake of the record, all that is correct, but upon the expiry of the first Session of the next Parliament.

Lord Strathclyde

My Lords, I agree with that. It was contained in my amendment and I welcome confirmation of it. However, the noble and learned Lord would not want to see the whole of the hereditary peerage being part of the electorate, although they could all be candidates. That is an important consideration. The electorate would be the limited 90 or 75 Peers as per the arrangement in Clause 2.

Of course, I should like to consider that in greater detail and discuss it with the noble and learned Lord. However, I hope that the House, and particularly Members behind me from my own party, will recognise that it would be churlish to take the matter further. I very much welcome the words of the noble and learned Lord and, on that note, I beg leave to withdraw the amendment.

The Deputy Speaker (Lord Murton of Lindisfarne)

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

Noble Lords


Lord Goodhart

My Lords—

Noble Lords

Hear, hear!

Lord Carter

My Lords, I am afraid that the noble Lord is out of order because the Companion states clearly that on Report only the mover of the amendment speaks after the Minister, save for short questions for elucidation before the Minister sits down. My noble and learned friend has sat down. However, where the Minister wishes to speak early, that does not prevent subsequent debate.

Lord Goodhart

My Lords, that is completely consistent with what the noble and learned Lord the Lord Chancellor said. He said that he was making a brief intervention.

Lord Carter

My Lords, the House is always flexible in its procedures. The Question has not yet been put. I suggest that we hear only briefly from the noble Lord, Lord Goodhart, and the Question should then be put.

The Earl of Erroll

My Lords, before the noble Lord sits down, perhaps I may say that from the Cross Benches I had wanted to make a brief point and I had understood that the noble Lord the Leader of the Opposition was making an early intervention. I had one brief comment to make and I had not expected the debate to be wound up quite so quickly and abruptly.

Lord Strathclyde

My Lords, it will obviously be worth hearing one or two Members of this House speak to the amendment. In that case, I shall withdraw my withdrawal of the amendment so as to hear those valued contributions. However, perhaps I may indicate to the noble and learned Lord that I have no intention of pressing the matter to a Division.

Lord Carrington

My Lords, on a point of order, all this has been extremely satisfactory and everyone is quite content. However, almost everything that has happened has been out of order! At Report stage, no noble Lord can speak more than once and there should be no interventions. There have been a great number of speeches from various noble Lords on the same subject and I suggest that if we stick to the rules of order, we shall get on very much quicker.

4.15 p.m.

Lord Goodhart

My Lords, what we have just seen in the past few minutes, in a somewhat peculiar procedure, is a cosy get-together of the two Front Benches. I regret to say that I have to be the bad fairy at the wedding.

As has been made perfectly clear, the by-elections were no part of the Cranborne/Irvine concordat. So far as we are concerned, as we made clear during the debate on recommitment, we oppose the filling of vacancies. If they must be filled, we accept filling by runners-up. We cannot accept the by-election system. To begin with, it is pointless in principle. The 90 Weatherill Peers would no doubt be those who are currently active. They will stay until they die or until stage two. Certainly, for up to 10 years it will be practicable to use runners-up to fill the vacancies. Eventually, there will be difficulties, but so what?

The purpose of the Weatherill amendment is to put pressure on the Government to proceed with stage two; as the noble Viscount, Lord Cranborne, graphically put it, it is the sand in the shoe. If, in 20 or 30 years' time, we still have not reached stage two, it will mean that the whole purpose of the Weatherill amendment has failed and that successive governments will have found it easy to ignore the sand in their shoe. We believe that there is no justification for keeping the Weatherill amendment alive by a system of by-elections. That would simply be keeping it alive on a lire-support machine without any hope of recovery. It is better to let it die with dignity.

There are, of course, questions about how the by-elections would work. Who would be the electorate'? Who would be the candidates? One point which is not unimportant but has not been considered is the position of the 15 who are to be elected by the whole of your Lordships' House on the footing that they are willing to serve as Deputy Speakers or Chairmen of Committees. The candidates for those 15 vacancies will obviously not be serving Members of your Lordships' House. but will have to be willing to serve as Deputy Speakers or Committee Chairmen. How can someone who has not been in your Lordships' House for years, may perhaps never have been in your Lordships' House, be qualified to serve? How will their ability to serve be tested? Will it be by some kind of election campaign or by a mock Sitting of your Lordships' House to test the capacity of the candidates to chair it? That is completely absurd. I suggest that it is quite impossible to have by-elections for the 15.

As regards the party group Peers, we have been told by the noble and learned Lord the Lord Chancellor that the electorate will be the hereditary Peers who belong to the party group in which the vacancy occurs. That would be unworkable in the case of the noble and learned Lord's own party where, on the death of one of its two elected Peers, the survivor would simply have a right to nominate the successor to the other. It is almost equally unworkable in the case of my own party, where we have three. There would be two survivors. Given that even among the Liberal Democrats there are from time to time disagreements, if those two were to disagree the system would become totally unworkable.

The alternative favoured by the Official Opposition—election by the body of hereditary Peers connected with the party—is unworkable in any circumstances. Who would the candidates be? Would they include those who succeed to their peerages after the Bill comes into force? Presumably they would. But if their successors can be candidates, it means that some man, or very occasionally some woman, who had never been a Member of your Lordships' House could stand for election to your Lordships' House simply as a representative of a section of the hereditary peerage. How would the candidates be elected? Clearly, the group which would be elected among the Conservatives would be far larger and more diverse than the pre-1968 electorate for the representatives of the Scottish Peers or pre-1921 electorate for the representatives of the Irish Peers.

Even if we accept that there will be 90 Weatherill Peers, even if we accept the election of 90 Weatherill Peers with reserves, we cannot accept a system of by-elections. In practice, by-elections must mean that if stage two is deferred for any length of time, there will be brought into your Lordships' House hereditary Peers who have not previously sat here. Once we start looking at the mechanism for these by-elections, the absurdity of the idea becomes obvious.

I repeat that the purpose of the Weatherill amendment is to shame a recalcitrant government into proceeding with stage two; and if that does not work within 10 years, there is no reason why it ever should. By-elections to fill the vacancies will not be needed to make the Weatherill amendment work; they will prove that it has not worked. It is arguable that some hereditary Peers should continue to sit until stage two, but I can see no argument for bringing in their successors who have no experience of this House. They will be merely phantom Members of your Lordships' House, elected by a phantom electorate. This is a stitch-up between the two Front Benches in which we have no part and wish to have no part.

Lord Strathclyde

My Lords, what experience do new life Peers have when they come to this House?

Lord Goodhart

My Lords, life Peers come here because they have had experience in many capacities in public service.

The Earl of Errol

My Lords, I wish to make one point. The noble and learned Lord the Lord Chancellor referred to 75 Peers. I suspect that there will be some difference as to whether there are 90 or 75. The House should continue to have the option of being able to elect 15 hereditary Peers who probably have a greater sense of tradition and ceremonial because some of us take part in it every day or in our general lives. That option should be kept open. We should not be talking about 75 Peers only being included in a by-election. I disagree with everything that the previous speaker said.

Lord Strathclyde

My Lords, I do not believe that there is very much more to add after the response of the noble Lord, Lord Goodhart, to my question. On the basis that I have said everything that I need to say, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21A had been withdrawn from the Marshalled List.]

Lord Rodgers of Quarry Bank moved Amendment No. 21B:

Page 1, line 14, at end insert— ("() If Standing Orders provide for any people to be excepted from section I in consequence of an election the method of election shall be determined by each party group and by the Cross-bench peers.")

The noble Lord said: My Lords, having listened with great interest to the debate on the previous amendment, I have to tell your Lordships that there have been no exciting overnight meetings between myself and the noble and learned Lord the Lord Chancellor. At the same time, I hope that his accommodating position on the amendment moved by the noble Lord, Lord Strathclyde, will be regarded as a precedent and that he will have no great difficulty in accepting in the same kind of spirit the amendment which is now before the House.

During the course of the Report stage and Third Reading, we on these Benches do not intend to re-open the central issue of principle or detail of the Weatherill amendment. We have made our position very plain indeed. The House has decided and we do not intend to re-open those matters on which the view of the House has been plain, even where we have disagreed with it.

I believe it has been clear from our debate so far today that there are matters which were not covered by the agreement between the noble and learned Lord the Lord Chancellor and the noble Viscount, Lord Cranborne. This amendment deals with one aspect of that.

In the course of the debate in Committee on 25th May, I referred briefly to the matter. That was the day when the Bill was recommitted, with the Weatherill amendment becoming Clause 2. I explained then that, on the evidence available to me, it was clear that there had been no agreement between the noble and learned Lord the Lord Chancellor and the noble Viscount, Lord Cranborne. Therefore, it was a matter to be settled by the House without the noble and learned Lord saying, "We fully understand that it was part of the agreement, whether or not the House likes it and whether or not I believe that it is sensible. This is part of the agreement and I am sticking by it". That is a perfectly tenable position, even though an unsatisfactory one from the point of view of most of us.

As I say, this matter does not fall into that category. In the course of my brief intervention in that debate, I referred to two papers. I wish to refer to them again today. As the House will recall—certainly those who follow these matters in detail will—earlier this year, sometime after the Weatherill amendment had been promulgated but long before it was included in the Bill, the Lord Chancellor very reasonably convened a meeting of what was known as the "O" Committee under the principal official concerned in the Cabinet Office, Sir Quentin Thomas. The instructions of the committee—I am not in any way disputing them—were to try to decide how the framework and the detail of the Weatherill agreement could be embodied in Standing Orders if that seemed to be the best way to proceed. They were the terms of reference and, in effect, they formed the text from which the "O" Committee worked.

I have before me a paper Lords Reform: Cross-Benchers' Amendment: Description of Material for a Resolution. That paper was prepared at the behest of the Lord Chancellor. It was put before the "O" Committee on or about 15th February for discussion by the group at its first meeting, which was later in the month.

Paragraph 4 of the paper said quite plainly that, The method of election may be determined by each party group". What is not in dispute is that the elections within each party group will now be by the hereditary Peers. That is not what we prefer, but that is what the House decided. That is not in dispute and I do not require any comments from the noble and learned Lord the Lord Chancellor on that.

What is also not in dispute—it was the purpose of another paper to which I shall soon refer—is that, whatever form the elections take, they would be supervised by the Clerk of the Parliaments and his staff. That is not in dispute either. The point at issue is very simple: should the three parties and the Cross-Benchers decide for themselves what the method of election should be?

I have referred to the paper prepared for and put forward by the Lord Chancellor. In confirmation of that, I wish to refer to another paper circulated by the Clerk of the Parliaments on 24th February. In paragraph 4 on the conduct of elections he said: Two approaches to the elections of the 75 party peers are possible. One is that each party should conduct its own elections according to its own rules and inform the Returning Officer of the result. The other is that the Returning Officer should conduct all the elections according to common rules".

In each of those alternative propositions there are two ideas. The first is the role of the returning officer and whether the groups should conduct their own elections and inform the returning officer of the result; or whether he should conduct the elections. I have made it absolutely clear that the view from these Benches is that the returning officer should conduct the elections.

The second idea contained in paragraph 4 of the Clerk of the Parliament's paper is whether the election should be conducted according to common rules or whether groups and the Cross Benches should decide how they want to choose. The hereditary Peers should decide how they want to choose those who are staying on.

That is the point at issue. All I have sought to establish so far is that these were not masters determined by the noble and learned Lord the Lord Chancellor and the noble Viscount, Lord Cranborne. These are outside that territory. All those on all sides of the House who may have had reservations in the past as to whether they could vote against anything that was included within the agreement need not fear on that account. These matters are outside the agreement.

In the debate to which I referred earlier I hoped that, following my intervention—I refer to the day on which the Bill was recommitted—the noble and learned Lord the Lord Chancellor would reply and make clear the position. But he did not reply during the course of the debate. I waited for some time because, following the normal practice of your Lordships' House, Ministers often write to us from time to time saying, "You raised a matter during the course of the debate and here is your reply". But one day and then another passed and the Lord Chancellor did not reply. There is no suggestion of discourtesy. I can only believe that it was an oversight.

So on 10th June I wrote to the noble and learned Lord drawing his attention to what I had said at cols. 839 to 840 of the Official Report of Tuesday, 25th May 1999. I ended by saying, I would be very grateful if you could let me know before next Tuesday"— that was Tuesday of last week— how you now see these matters".

The noble and learned Lord did not reply. I do not believe for a moment that that was through a lack of courtesy. I do not believe that it was through oversight. The noble and learned Lord is highly competent, as the whole House knows, in the conduct of his affairs and he has a distinguished staff to serve him. I believe the only reasonable assumption is that the answer to my question is, "Yes, you are right and, yes, it is for the House to decide that matter." I do not believe that there is anything that the noble and learned Lord the Lord Chancellor can now say that would persuade me otherwise, in view of the passage of time—a full month—since I raised the matter in the House.

The question is a simple one. I hope that your Lordships will feel able to deal with it in a relaxed manner. Should the House dictate, should the House determine, should the Lord Chancellor instruct each group—the Conservative Party, his own ranks, the Cross Benches and the Liberal Democrats—should the House instruct us, on the way in which we should elect our hereditary Peers? Or should there be some degree of freedom?

This is a rare occasion when the House can make a legitimate decision on this important Bill in a painless way. My view is that the House should say, "Live and let live. Do it the way you want, subject only to making sure that events are conducted by the returning officer in such a way as to satisfy the natural criteria". The amendment says that. I hope very much that the House will be sympathetic to it. It does no harm to anyone. It does not infringe the Weatherill amendment. I t stands on its virtue and I hope that your Lordships will believe that it deserves to be supported.

4.30 p.m.

Viscount Cranborne

My Lords, as so often happens, when listening to the noble. Lord, Lord Rodgers, I am for a moment seduced by the power and charm of his argument, particularly his peroration this afternoon. However, in spite of the seductive way in which he put his argument, I find myself in strong disagreement with the spirit and the letter of the amendment. As the noble Lord said, the "O" Group made clear in its report that there were two ways of approaching this question: whether the parties should be left to decide how they would elect the hereditary Peers to represent the hereditary peerage in your Lordships' House during the transition phase, or whether the House as a whole should agree on one method of election that would be followed, slavishly, no doubt, as the noble Lord may think, across all four categories—the three main parties and the Cross Benches.

I believe that before pursuing his amendment the noble Lord, Lord Rodgers, may want to consider the distinction between election to a party organisation and election to a House of Parliament. It seems to me that election to a party organisation is of no moment except academically or for purposes of derision by any other organisation. It is a matter exclusively for the party. However, at stake here is membership of a party group but a party group that is part of a House of Parliament. I believe that there is a crucial distinction between a party which is an important part of the political mechanics of the way in which we conduct our affairs in this country and the integral part of the constitution which is how we select people to serve in either House of Parliament.

Therefore, it seems to me sensible that in another place there should be one way of electing people. In the past I have been attracted, and still am, to the idea of once again introducing university members, but I let that pass.

The approach in your Lordships' House has been more eclectic in that we have more than one way of selecting people for membership of this place: by virtue of hereditary peerage, by another method introduced in 1958 of life peerages, and by the way in which Bishops serve in the House. None the less, it is clear that no matter what the political allegiance of the membership of your Lordships' House, whichever route is chosen should be a route that is common to all Peers of that particular category, which does not take account of their party allegiance.

Therefore, that is an important distinction which is worth preserving. It is not election to a party committee, but election to membership of your Lordships' House during a transitional phase, which all of us hope will be short, but nevertheless must be taken seriously while it lasts. For that reason alone—there are other reasons—I feel that the first option, so rightly pointed out and described by the noble Lord, Lord Rodgers, should be rejected.

I hope that the noble and learned Lord the Lord Chancellor will agree that when we discussed this matter during the course of our conversations in the run-up to concluding our agreement—the degree of harmony of our conversations has been the most agreeable feature of our debate so far—he and I agreed that this was an overwhelming reason for rejecting the first option and that all Members of your Lordships' House elected under these transitional arrangements should be elected in the same way. I hope that your Lordships will see that there is force in that argument, and that in spite of the seductiveness of the arguments of the noble Lord, Lord Rodgers, noble Lords will nevertheless reject his amendment.

Lord Desai

My Lords, while the amendment tabled by the noble Lord, Lord Rodgers, is a reasonable one, in the light of what happened on the previous amendment, and especially considering what my noble and learned friend the Lord Chancellor said, it becomes somewhat anomalous. If I have understood what my noble and learned friend said, a consequence of this Bill will be to disenfranchise the hereditary Peers who are not excepted by Clause 2 from voting in further elections to this House. If that principle is accepted, and it has to be accepted, the matter cannot be left to the individual parties to choose the method of election because they may choose to violate that principle. It would be open, for example, to the Liberal Democrats to decide, whatever the Lord Chancellor says, that they want to have the non-excepted hereditary Peers as part of the electorate. We cannot have that.

Lord Harris of Greenwich

My Lords, no.

Lord Desai

My Lords, I understand that the spirit of the amendment is to enable the life Peers to be elected. My proposition may be carried out by the Conservative Party. If we accept what my noble and learned friend said, that restricts the freedom of parties to choose how they elect other hereditary Peers.

Lord Harris of Greenwich

My Lords, may I just correct the noble Lord, Lord Desai? If he looks carefully at the amendment he will see the words "the method of election", not "the electorate". It does not go wider than the simple question of the method of election.

Lord Mackay of Ardbrecknish

My Lords, I have been puzzled by this amendment. I thought I understood it when I read it initially, but clearly I must be too stupid or something to have understood it properly. However, I am satisfied that I am not too stupid when I realise that the noble Lord, Lord Desai, shares my puzzlement. When I read this, I thought that "the method of election" meant not just whether it would be by proportional representation or whether all hereditary Peers would have a vote, but that it might mean that life Peers would also be allowed to vote along with the hereditary Peers. So I listened with some interest as the noble Lord, Lord Rodgers of Quarry Bank, if I may say so, narrowed down his amendment. I understand now what he means, but I suspect that the noble and learned Lord the Lord Chancellor may say that this amendment is defective and that it goes a good deal wider than the noble Lord, Lord Rodgers, seemed to imply in his speech. If the noble and learned Lord does say that, I have to say that I agree with him. I had come prepared to discuss whether or not we life Peers ought to have a vote in our respective parties. Now I am told that the amendment does not call for that, although I actually think it does—

Noble Lords


Lord Harris of Greenwich

My Lords, if the noble Lord would be good enough merely to read the amendment, he would see that the point he is making is nonsensical—

A noble Lord

So there!

Lord Mackay of Ardbrecknish

My Lords, I accept the reprimand that I am not being sensible but I am afraid that, like the noble Lord, Lord Desai, I actually interpreted the phrase "the method of election" rather more widely than the originator of the amendment intended. I am just making a simple point; I do not need a little lecture from the noble Lord, Lord Harris. I think that the amendment goes much wider. However, I will narrow the issue to the method. The noble Lord, Lord Rodgers of Quarry Bank, did not explain to me why his amendment wanted the possibility of different methods. He did not explain what different methods would be available, and that has left me in some difficulty to understand what he is seeking to do here. It seems to me that certainly the noble and learned Lord the Lord Chancellor is not going to dictate to us—to the Conservatives, the Liberal Democrats and the Cross-Benchers—how they should actually conduct the election. The people who are going to dictate that are the Members of the Procedure Committee and the House. As an election would be an election to the House, I think it is right that the House should decide the method of election.

I am not going to argue which method should be chosen. I think the method should be the same for all the parties involved. I agree with my noble friend Lord Cranborne, that although it is perfectly right for a party inside its own organisation to decide on its own different methods to elect party executives and to choose election candidates, when it comes to the actual election—for example, to the other place—the electoral procedure is the same for all who stand. All those who stand will participate in a first-past-the-post election or, if I may just whisper it, an extraordinary list system like the one we have just adopted for the European Parliament. Everybody has to stand on the same basis. I could not say during the European parliamentary elections that I did not approve of the system and so would it be possible for the Conservatives to have a different electoral system. That would not work. When it comes to elections to this House, although I understand that we can argue about what method should be used, it should be a common method and therefore I hope that the Government will not be minded to accept the amendment.

4.45 p.m.

The Lord Chancellor

My Lords, this amendment, as I understand it, replaces an earlier one which said that any elections provided for in Standing Orders under Clause 2 must be conducted by the single transferable vote system. Presumably, the noble Lords on the Liberal Democrat Benches decided that STV was unlikely to gain the support of the House—I rather think they are right on that score—and instead proposed to allow each grouping a choice of electoral systems.

I have to say, speaking for myself, that the answer offered by the noble Lord, Lord Mackay of Ardbrecknish, is absolutely correct. This is plainly a matter for the Procedure Committee. I would be astonished if the Procedure Committee supported the proposition that each party or grouping could go it alone. I confidently predict that a uniform election procedure will emerge from the Procedure Committee, if for no other reason than to ensure that each individual excepted Peer chosen by the respective groupings has precisely the same legitimacy as all the others, having been elected by the same means. I really think that a common system of election is required, and that is what is reflected in the Standing Orders as currently drafted. Also, from the point of view of practicality, I do not: believe it would be fair to impose on the Clerk of the Parliaments the burden of administering possibly four different electoral systems. I would suggest that this is really not on, from the point of view of principle and practicality.

The noble Lord, Lord Rodgers, in going through his paper trail on this matter, demonstrated that he would have made a rather good member of the Bar had he chosen that vocation. But let me do the best that I can from my own recollection. The noble Viscount, Lord Cranborne, and I certainly discussed at length the composition of the electorate. We came to the view that it would be right that the election should be by hereditaries of hereditaries for hereditaries.

I entirely accept that there is a reasonable argument on the other side, which is that life Peers should have the opportunity also to vote in an election for who their hereditary colleagues should be. I do not reject that argument as an unreasonable one: it can be reasonably entertained and there are equally strong arguments the other way, on which the noble Viscount, Lord Cranborne, and I agreed.

My recollection is that since we took the view that there should be symmetry in the matter of the electorate, we contemplated that there would be overall symmetry because of the principal justification for that: namely, that Members of a House of Parliament are being elected, and there should be a uniform method of election. I am sure that is what we contemplated. I cannot recall any detailed discussion about it, and so I am not saying that those who want to maintain the contrary view are precluded from doing so by reason of the agreement. Those, on the other hand, who maintain the contrary view, whether on the amendment or any part of the agreement, are not precluded from testing the opinion of the House—although of course I do not invite them to do so.

Certainly, it is the case—and I reproach myself for the fact—that I did send to the various parties concerned, which includes all the political parties and the other groupings, a paper prepared by the Constitution Secretariat, which included the paragraph to which the noble Lord referred, which stated that the method of election may be determined by each party or group. I am afraid that I simply did not spot that one line in the paper, but I can certainly say chat the noble Viscount and I contemplated symmetry across the groupings, as evidenced by our clearly expressed agreement in relation to the electorates. For my part. I see no reason why we should agree symmetry for the electorates and not contemplate identity of electoral methods and procedures.

I apologise to the noble Lord, Lord Rodgers, for the fact that by today, 22nd June, I have not replied to his letter dated 10th June. If he will retire with me to my room, he will see the size of my in-tray and will perhaps forgive me for saying that his letter has not yet reached the top of it. I looked at the reference in Hansard where the noble Lord raised this point. If he checks cols. 839–840 of 25th May, he will see that he did not ask me the question which in fact he asked in his letter of 10th June. However, I apologise for not replying to it formally before now.

Lord Rodgers of Quarry Bank

My Lords, there is no great point in pursuing the final remarks of the noble and learned Lord in relation to the circumstances in which he did not respond on this matter; that is now part of history. I had hitherto believed that he took the closest interest in matters of detail. I know from experience that he is extremely good at replying to letters. If he looks back to the Hansard to which we have both referred, he will discover that I gave him the opportunity over the dinner hour to reflect on what I had said so that he could tell the House the outcome of his thoughts when the House reconvened. However, we all make mistakes and fall short from time to time and I would not hold that against a Member of this House.

The noble Viscount, Lord Cranborne, said that there was a distinction between election to a party or organisation or to a parliament, though he did not make clear precisely what that distinction was except in the most routine and obvious way. However, I remind the noble Viscount that during a period in which he was in government, the United Kingdom chose to elect its representatives to the European Parliament by the first-past-the-post method, while most of the other members of the European Union elected Members by proportional representation.

I am not saying what is right or wrong. I shall be happy to give way to the noble Viscount if I am wrong about the issue and if he can point to an occasion when he spoke out against that arrangement, but if he is not disposed to contradict my understanding on those points, I shall continue.

Viscount Cranborne

My Lords, I will be corrected by the noble Lord, but can he say whether all the countries which elected Members of the European Parliament by proportional representation used the same method of proportional representation? I would infinitely prefer that they were all elected by the first-past-the-post system. It would be much more sensible. I have always made clear that that is my view.

Lord Rodgers of Quarry Bank

My Lords, the noble Viscount has always made it clear that he prefers the first-past-the-post method. But what is absolutely plain is that the government of which he was a distinguished member—this applies also to the noble Lord, Lord Mackay of Ardbrecknish—were not only happy with, but were intent on maintaining, a first-past-the-post system of election to the European Parliament where all our partners took a totally different view.

Viscount Cranborne

My Lords, I thank the noble Lord for giving way. I was seeking information. Do all the other members use the same method of proportional representation?

Lord Rodgers of Quarry Bank

My Lords, I did not say that. My point—I shall not repeat it more than a third time—is that the government of which the noble Viscount was a member were happy to maintain a quite different method of election, knowingly, from that of our partners in the Community. Nor am I aware that he protested about any differences between the methods of election used by other members of the European Union.

It is true, as the noble and learned Lord the Lord Chancellor said, that at one stage we thought of an amendment which might require all groups to elect their members by STV. But that was an unreasonable proposition. We saw it to be unreasonable and decided, on the contrary, that we would prefer every group to choose for itself.

The noble Lord, Lord Mackay of Ardbrecknish, asked what methods might be available. It would be for every group to choose. I would not want to anticipate what my noble friends might prefer. But whatever may be the case, I do not believe that it would be an unnecessary and unreasonable burden on the Clerk of Parliaments to proceed with one different system from those used by other groups. That is not an argument which stands up.

The Lord Chancellor said that this was a matter for the Procedure Committee and that he would confidently predict what would emerge. He may be right. But that is a matter, first, for the Procedure Committee to decide and, secondly, for your Lordships' House. In the meantime, though it may well be that your Lordships are not immediately attracted by the amendment, I intend to press for the opinion of the House.

4.55 p.m.

On Question, Whether the said amendment (No. 21B) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 335.

Division No. 1
Addington, L. McNally, L.
Avebury, L. Maddock, B.
Bath, M. Mar and Kellie, E.
Beaumont of Whitley, L. Miller of Chilthorne Domer, B
Charteris of Amisfield, L. Mountgarret, V.
Clement-Jones, L. Newby, L. [Teller.]
Dacre of Glanton, L. Nicholson of Winterbourne, B.
Dahrendorf, L. Ogmore, L.
Dholakia, L. Phillips of Sudbury, L.
Ezra, L. Razzall, L.
Falkland, V. Redesdale, L.
Gage, V. Renton of Mount Harry, L.
Geraint, L. Rochester, L.
Goodhart, L. [Teller.] Rodgers of Quarry Bank, L.
Grey, E. Russell, E.
Hampton, L. St John of Fawsley, L.
Hamwee, B. Sandberg, L.
Harris of Greenwich, L. Sharp of Guildford, B.
Holme of Cheltenham, L. Swansea, L.
Hutchinson of Lullington, L, Thomas of Gresford, L.
Jacobs, L. Thomas of Swynnerton, L.
Kirkwood, L. Thomas of Walliswood, B.
Leathers, V. Thomson of Monifieth, L.
Lester of Herne Hill, L. Thurso, V.
Ludford, B. Tope, L.
Mackie of Benshie, L. Tordoff, L.
McNair, L. Wigoder, L.
Aberdare, L. Cope of Berkeley, L.
Ackner, L. Craig of Radley, L.
Acton, L. Cranborne, V.
Addison, V. Crawley, B.
Ahmed, L. Currie of Marylebone, L.
Ailesbury, M. Darcy de Knayth, B.
Aldenham, L. David, B.
Alexander of Tunis, E. Davidson, V.
Allenby of Megiddo, V. Davies of Coity, L.
Alli, L. Davies of Oldham, L.
Amherst of Hackney, L. De L'Isle, V.
Amos, B. Denham, L.
Ampthill, L. Derwent, L.
Anelay of St. Johns, B. Desai, L.
Annaly, L. Diamond, L.
Annan, L. Dixon, L.
Archer of Sandwell, L. Dixon-Smith, L.
Archer of Weston-Super-Mare, L. Donegall, M.
Arlington, B. Donoughue, L.
Ashley of Stoke, L. Dormand of Easington, L.
Astor, V. Dubs, L.
Astor of Hever, L. Dudley, E.
Attlee. E. Dundonald, E.
Bach, L. Dunrossil, V.
Baker of Dorking, L. Eccles, V.
Baldwin of Bewdley, E. Eccles of Moulton, B.
Barnett, L. Ellenborough, L.
Bassam of Brighton, L. Elles, B.
Bathurst, E. Elliott of Morpeth, L.
Bearsted, V. Elton, L.
Bell, L. Erroll, E.
Belstead, L. Evans of Parkside, L.
Berkeley, L. Evans of Watford, L.
Berners, B. Ewing of Kirkford, L.
Blackstone, B. Exmouth, V.
Blatch, B. Falconer of Thoroton, L.
Blease, L. Farrington of Ribbleton, B.
Bledisloe, V. Feldman, L.
Blyth, L. Ferrers, E.
Borrie, L. Fisher, L.
Brabazon of Tara, L. Foley, L.
Bragg, L. Fookes, B.
Brentford, V. Forbes, L.
Bridgeman, V. Fraser of Carmyllie, L.
Bridges, L. Gainford, L.
Brightman, L. Gardner of Parkes, B.
Bristol, Bp. Garel-Jones, L.
Brooke of Alverthorpe, L. Geddes, L.
Brooks of Tremorfa, L. Gladwin of Clee, L.
Bruce of Donington, L. Gladwyn, L.
Bruntisfield, L. Glanusk, L.
Burlison, L. Glenamara, L.
Burnham, L. Glenarthur, L.
Burns. L. Glentoran, L.
Buscombe, B. Gordon of Strathblane, L.
Butterworth, L. Goschen, V.
Campbell of Alloway, L. Goudie, B.
Campbell of Croy. L. Gould of Potternewton, B.
Carew, L. Graham of Edmonton, L.
Carnarvon, E. Grantchester, L.
Carnegy of Lour, B. Gray, L.
Carter, L. [Teller.] Gray of Contin, L.
Chalfont, L. Gregson, L.
Chandos, V. Grenfell, L.
Chorley, L. Hacking, L.
Clanwilliam, E. Hanningfield, L.
Clarke of Hampstead, L. Elanworth, V.
Clark of Kempston, L. Hardie, L.
Clinton-Davis, L. Hardy of Wath. L.
Clitheroe, L. Harmar-Nicholls, L.
Cobbold, L. Harris of Haringey, L.
Cochrane of Cults, L. Haskel, L.
Cocks of Hartcliffe, L. Haslam, L.
Coleridge, L. Hawke, L.
Colwyn, L. Hayman, B.
Hesketh, L Morris of Manchester, L.
Higgins, L. Mountevans, L.
Hilton of Eggardon, B. Moyne, L.
Hogg of Cumbernauld, L. Mutton of Lindisfarne, L.
Holderness, L. Naseby, L.
Hollis of Heigham, B. Nelson of Stafford, L.
Hooper, B. Newall, L.
Howe of Aberavon, L. Nicol, B.
Howell of Guildford, L. Noel-Buxton, L.
Howie of Troon, L. Norrie, L.
Hoyle, L. Northbourne, L.
Hughes, L. Norton of Louth, L.
Hughes of Woodside, L. O'Cathain, B.
Hunt of Kings Heath, L. O'Neill of Bengarve, B.
Hylton, L. Onslow, E.
Inchyra, L. Oppenheim-Barnes, B.
Irvine of Lairg, L. [Lord Chancellor.] Orme, L.
Oxfuird, V.
Islwyn, L. Palmer, L.
Jakobovits, L. Park of Monmouth, B.
Jay of Paddington, B. [Lord Privy Seal] Patel, L.
Paul, L.
Jeffreys, L. Peel, E.
Jeger, B. Perry of Southwark, B.
Jenkin of Roding, L. Perth, E.
Jenkins of Putney, L. Peston, L.
Jopling, L. Peyton of Yeovil, L.
Judd, L. Pilkington of Oxenford, L.
Kelvedon, L. Pitkeathley, B.
Kennet, L. Plumb, L.
Kenyon, L. Plummer of St. Marylebone, L.
Kingsland, L. Prior, L.
Kinloss, Ly. Prys-Davies, L.
Kinnoull, E. Puttnam, L.
Kintore, E. Radnor, E.
Kitchener, E. Ramsay of Cartvale, B.
Knight of Collingtree, B. Randall of St. Budeaux, L.
Knollys, V. Rawlings, B.
Lang of Monkton, L. Rawlinson of Ewell, L.
Lockwood, B. Rendell of Babergh, B.
Lofthouse of Pontefract, L. Rogers of Riverside, L.
Long, V. Romney, E.
Lovell-Davis, L. Rotherwick, L.
Lucas, L. Runciman of Doxford, V.
McColl of Dulwich, L. Sainsbury of Turville, L.
Macdonald of Tradeston, L. St. Davids, V.
McIntosh of Haringey, L. [Teller.] Saltoun of Abernethy, Ly.
Savile, L.
Mackay of Ardbrecknish, L. Sawyer, L.
Mackenzie of Framwellgate, L. Scotland of Asthal, B.
Mallalieu, B. Seccombe, B.
Malmesbury, E. Selsdon, L.
Mancroft, L. Sempill, L.
Marlesford, L. Serota, B.
Marsh, L. Sewel, L.
Mason of Barnsley, L. Shaughnessy, L.
Massereene and Ferrard, V. Shepherd, L.
May, L. Shore of Stepney, L.
Merlyn-Rees, L. Simon, V.
Merrivale, L. Simon of Glaisdale, L.
Mersey, V. Simon of Highbury, L.
Miller of Hendon, B. Simpson of Dunkeld, L.
Milner of Leeds, L. Slim, V.
Milverton, L. Smith of Gilmorehill, B.
Mishcon, L. Somerset, D.
Molloy, L. Stair, E.
Molyneaux of Killead, L. Stallard, L.
Monkswell, L. Stewartby, L.
Monro of Langholm, L. Stodart of Leaston, L.
Monson, L. Stone of Blackheath, L.
Montague of Oxford, L. Strabolgi, L.
Monteagle of Brandon, L. Strange, B.
Montgomery of Alamein, V. Strathclyde, L.
Montrose, D. Sudeley, L
Moran, L. Suffolk and Berkshire, E.
Morris of Castle Morris, L. Swinfen, L.
Symons of Vernham Dean, B. Vinson, L.
Taylor of Blackburn, L. Waddington, L.
Taylor of Gryfe, L. Walker of Doncaster, L.
Tenby, V. Warner, L.
Teynham, L. Waterford, M.
Thomas of Gwydir, L. Weatherill, L.
Thornton, B. Wedderburn of Charlton, L
Thurlow, L Westbury, L.
Tomlinson, L. Whitty, L.
Townshend, M. Wilcox, B.
Trefgarne, L. Williams of Elvel, L.
Trenchard, V. Williams of Mostyn, L.
Trumpington, B. Wolfson, L.
Tryon, L. Wynford, L.
Tugendhat, L. Young, B.
Turner of Camden, B. Young of Dartington, L.
Uddin, B. Young of Old Scone, B.
Varley, L. Younger of Leckie, V.

Resolved in the negative, and amendment disagreed to accordingly.

5.10 p.m.

Lord Carter

My Lords, before we proceed with the rest of the Report stage, I have been asked by a number of your Lordships to remind noble Lords of the rules for speaking on Report. On Report, no noble Lord may speak more than once to an amendment, except the mover of the amendment in reply; or a noble Lord who has obtained the leave of the House, which may only be granted to a noble Lord to explain himself on some material point of his speech. no new matter being introduced, or to a Minister of the Crown.

Only the mover of an amendment speaks after the Minister on Report, save for short questions for elucidation to the Minister before he sits down; except that, where the Minister wishes to speak early, this does not prevent subsequent debate. Arguments which have been fully deployed in Committee of the Whole House should not be repeated at length on Report.

Lord Coleraine moved Amendment No. 21C:

Page 1, line 14, at end insert— ("() Standing orders of the House shall provide that the 90 excepted hereditary peers shall consist of the following categories—

  1. (a)(i) 2 peers elected by the Labour hereditary peers;
  2. (ii) 42 peers elected by the Conservative hereditary peers;
  3. (iii) 3 peers elected by the Liberal Democrat hereditary peers; and
  4. (iv) 28 peers elected by the Cross-bench hereditary peers; and
  5. (b) 15 peers, elected by the whole House, from among those ready to serve as Deputy Speakers or in any other office as the House may require.")

The noble Lord said: My Lords, I am speaking to Amendment No. 21C. I see from the grouping list that Amendment No. 58D has been grouped with it. However, apart from the fact that both amendments are tabled in my name, I cannot see much connection between the two. Therefore, I propose to speak only to Amendment No. 21C this afternoon.

I can explain in one sentence why I propose that this one significant part of the Weatherill amendment at least, if no other, should be on the face of the Bill. To reserve to Standing Orders provisions which relate to the election of Members of a House of Parliament would be a constitutional aberration, a direct assault on the rights of the other place and an affront to the parliamentary government of this country.

I have received a note to the effect that Amendment No. 21C is, prima facie, hybrid in the opinion of the Public Bill Office. It is right, therefore, that I should say a few words on this topic, although I suspect that others more knowledgeable and learned than I may dwell on it, and rightly so, at greater length. According to Erskine May, The Speaker has defined a hybrid Bill as 'a public Bill which affects a particular private interest in a manner different from the private interest of other persons or bodies of the same category or class"".

In this case the private interest in question is, as I understand it, that of a person, a hereditary Peer, to be elected to be a Member of this House by one of four electoral colleges according to his political allegiance, or, as the case may be, his lack of allegiance. This would give, for example, an independent Peer a different chance of successful election than a Conservative Peer, notwithstanding that we are told that one-tenth of each electoral college will be eligible for election. This fine point seems to me to be very much on a par with the question: how many angels can dance on a split hair?

I have my own doubts as to whether agreement to the amendment should make the Bill hybrid. I have had no advice and I put my doubts before the House as a complete amateur. But I find it peculiar indeed that the right of a Peer to sit in this House of Parliament is considered, "a particular private interest". If any right was a matter of solely public interest in the context of this Bill, I should have thought that this right was. But there you are. That particular reservation on my part, I hasten to add, has no bearing at all on this debate, for the purposes of which I freely acknowledge the full import of the Clerks' advice. What is relevant is that the hybridity rules are for the protection of private interests, so that it can be no proper objection to this amendment that agreement to it might make the Bill hybrid unless it can be shown that there are no compelling reasons why the amendment should not be pressed.

The noble Lord, Lord Weatherill, who I do not see in his place, when he introduced his amendment in Committee said, why have we left so much to Standing Orders? We did so because we envisaged that the arrangements would be temporary and that this would be the most convenient way of making provision. This method has the advantage that more detailed provision on the face of the Bill would have to be agreed by another place, which would therefore have as great a say in determining the process as the House of Lords. Of course, another place could be trusted but in this way we order our own affairs in the matter".—[Official Report, 11/5/99; cols. 1091–92.]

I cannot accept this analysis. Thirty months cannot properly be described as a temporary period. The retention of some hereditary Peers in this House by virtue of their hereditary peerages for even 30 months—which is my best estimate of the time after which the Weatherill amendment will be shown to have been spent—should not be dealt with by transitional provision. This is not a transitional measure.

But what concerns me most is the suggestion of the noble Lord, Lord Weatherill, that the other place should not be concerned with the election of hereditary Peers under his amendment. That seems to me to be not just a gratuitous insult to the other place, of which he was for many years the distinguished Speaker, but an affront to Parliament itself and to parliamentary democracy.

I need hardly point out that if this amendment is not on the face of the Bill, it will be technically possible for a later change in the Standing Orders of the House to change the political balance of this House.

I shall not detain the House further except to add that White's is but one of a multitude of clubs of which I am not a member. But to put it in the way that the noble Lord, Lord Weatherill, put it is to treat this House as a club. Of course, a club can order its affairs, but this House is a House of Parliament and provisions affecting the election and political balance of about a sixth of our present membership can and must be decided by Parliament itself and by the Sovereign. They should not be dismissively treated as mere tedious administrative detail, suitable for rules and regulations. I ask your Lordships to accept this amendment. I beg to move.

5.15 p.m.

Lord Strathclyde

My Lords, this is a perfectly sensible amendment in principle but I have one or two problems with the idea of putting it on the face of the Bill. I have always believed that many of the Weatherill propositions should go on the face of the Bill, particularly those which concern the by-elections that we discussed earlier this afternoon. However, I wonder whether the specific numbers in the current compromise are ones that the House would want to fix for all time, or until that day—mythical perhaps—when stage two will be delivered. This may be one matter that is best left to Standing Orders which can be changed only by leave of the House.

However, it is always good to have an opportunity to debate these matters. That is why I laid the whole draft Standing Order for debate in Committee, although I regret that few noble Lords took part on that occasion. But it may well be that before the course of stage one and a half is run, there will be good reasons to change the numbers or the political balance between the parties. There may be other reasons for that, for example—

Lord Harris of Greenwich

My Lords, perhaps I may ask the noble Lord a simple question. In what circumstances would he imagine it right—

Lord Hunt of Kings Heath

My Lords, my noble friend the Chief Whip earlier read out the rules for Report. We should follow them.

Lord Harris of Greenwich

My Lords, with great respect, I was merely asking a question in the course of a debate in which I had not spoken. I feel I am entirely right to ask the noble Lord, Lord Strathclyde, a very simple question. In what circumstances does the noble Lord think it would be right to change the proportion of party and Cross-Bench representation in the House? I do not necessarily disagree with him in terms of his conclusion about the amendment. Nevertheless, I am a little puzzled by what he is saying.

Lord Strathclyde

My Lords, a situation one might envisage is if, in many years to come, there is a complete collapse of the Liberal Democrat Party. It might then be difficult to justify it having three seats at all. There might be an arrangement to renegotiate the position. The same would apply, of course, to other parties.

Another issue with which the noble Lord might have some sympathy is the future of the 15 above the 75 who are now to be selected as Deputy Speakers. For example, they could be subsumed into the rest of the 90; the House might want to consider that in four or five years' time. For my part, I see some attraction in that.

My noble friend should consider those points carefully before pressing the amendment any further. We are looking for an element of flexibility. I think that the noble Lord, Lord Harris of Greenwich, was probably agreeing with me about that. It is worth discussing these matters but, on this issue, the Standing Orders are a good place for the numbers to be.

The Lord Chancellor

My Lords, the Government's firm view, too, is that the detail of the Weatherill amendment and its consequences are not a matter for the Bill but for Standing Orders. The amendment does not make straightforward statutory provision for the numerical breakdown of the 90 excepted Peers between the different groupings or the different electorates. Instead it imposes a requirement that such provision shall be made in Standing Orders. To have the provision in both places renders the Standing Order empty, making it no more than a rubber stamp.

More substantively, there are two other major objections to the amendment. First, placing these provisions on the face of the Bill would remove the flexibility of the Standing Order in respect of the system for filling vacancies among the excepted Peers. This provision in the Bill would mean that we could not have the fastest loser system currently provided in the draft Standing Order because any replacement excepted Peer would have to be elected. It also means that excluded. hereditary Peers would continue to be able to participate in the by-elections for replacements. That is not acceptable to the Government as a matter of principle, as I explained in giving my assurance about the amendment that the Government will bring forward on Third Reading, against which assurance the Leader of the Opposition withdrew his Amendment No. 21.

There is also a very serious hybridity point. The effect of the amendment would be to include in the Bill a specific allocation to different parties within the House. This would affect the private interests of some hereditary Peers differently from the private interests of other hereditary Peers. A question of hybridity would arise, at least prima facie, if the amendment were to be passed. I must advise the House that if the amendment were agreed to, it would be necessary for the Chairman of Committees to table a Motion after the conclusion of the Report stage to refer the Bill to the Examiners in respect of the amendment, with all the consequences for the timetable of the Bill and the legislative programme that that would entail. I urge the noble Lord, Lord Coleraine, to give great weight to that point and not to press the amendment.

Lord Coleraine

My Lords, I am grateful to the two Front Bench spokesmen who have spoken in the short debate. I do not need to detain the House for very long now. The main objection to the amendment is that it deprives the House of the flexibility which the Front Benches feel it should have. On the other hand, my argument in favour of the amendment is that there should not be that kind of flexibility in the way that Parliament conducts its business. I have no doubt that the Weatherill amendment may go along very neatly for a long time without change, but any change should be a matter for Parliament, not just for this House. In those circumstances, I cannot agree with what has been said and I seek the opinion of the House.

On Question, amendment negatived.

Viscount Bledisloe moved Amendment No. 21D:

Page 1, line 20, at end insert— ("() If, at any time, there shall have been, for more than 30 days, fewer than 90 people excepted from section I pursuant to subsection (2) above, the Lord Chancellor shall thereupon take all such steps as may appear to him to be necessary to seek to ensure that the number of people so excepted becomes 90 as soon as may be reasonably practicable. Provided that the validity of anything done by the House of Lords shall not be in any way affected, or open to challenge, by reason of the fact that, at any time, there are less than 90 people so excepted.")

The noble Viscount said: My Lords, Amendment No. 21D stands in my name and those of the noble Lords, Lord Chalfont and Lord Lucas. I propose the amendment with the greatest confidence for two reasons. First, it gives effect to the policy expressed by the noble and learned Lord the Lord Chancellor when we debated this matter in Committee on 25th May; and, secondly, it is brought forward pursuant to the express invitation of the noble and learned Lord the Lord Chancellor. I should at the outset say that, in the light of what the noble and learned Lord said in answer to Amendment No. 21, it may well be that if he can give me sufficient assurance it will not be necessary to press the amendment at this stage.

In Committee, the noble Lords, Lord Strathclyde and Lord Lucas, moved two amendments designed to ensure that the 90 was not just a maximum number but was a number to be maintained at all times. In answer, so far as concerns policy, the noble and learned Lord the Lord Chancellor gave the most categorical answer. He said: The 90 is intended to be both a ceiling and a floor … Peers will remain at 90 … That is certainly the Government's intention. I have given a 100 per cent assurance that that is so".—[Official Report, 25/5/99; col. 877.]

That is why the amendment gives effect to government policy.

But the noble and learned Lord went on to say—quite rightly, in my humble and respectful opinion—that in the form in which they were drafted the amendments were unacceptable, particularly the amendment moved by the noble Lord, Lord Strathclyde, which forbade any one of the 90 to die at any stage. It was a little optimistic of him to think that even legislation could achieve that. In answer, the noble and learned Lord the Lord Chancellor said: In my view, until someone comes forward with something better than this amendment, it should be left on that basis".—[Official Report, 25/5/99; col. 879.]

This amendment is my attempt to come forward with something better than that basis.

The amendment merely provides that if a vacancy has existed for more than 30 days, the Lord Chancellor shall take such steps as may appear to him to be necessary to seek to ensure that the number goes back up to 90. He has to take only such steps as he considers necessary when the vacancy has existed for more than 30 days. If, for example, a vacancy occurs during a Recess, he may consider that no steps are necessary because the matter will be resolved as soon as someone comes back to do the work. He has only to seek to ensure that the number is topped up; therefore if no one is willing to serve, he has not in any way failed in his duty.

The noble and learned Lord was also concerned that if too absolute a duty was placed on the Bill, there could be some challenge to procedure of the House when the full 90 did not exist. For the avoidance of doubt, I have sought in the second paragraph to make it absolutely plain that that could not apply.

I therefore venture to hope that this amendment is acceptable both in principle and in technicality, because it does not place on anyone an onus to do that which is difficult or impossible, and it makes the position on validity totally clear.

It may be that when the noble and learned Lord returns with an amendment at Third Reading, as he has undertaken to do to in reply to the noble Lord, Lord Strathclyde, that of itself will make it plain that the 90 have to be topped up. If the noble and learned Lord can now assure me that the amendment that he brings back at that stage will make it plain that the 90 have to be topped up and that there is some mechanism for doing that, I shall be content. I have no commitment to any particular method; I merely want to ensure that there is a mechanism at all times for keeping the 90 topped up.

The noble and learned Lord may say that this is all academic, stage two will happen very soon and this provision will never be needed. One fully accepts that it is his intent and wish that stage two will happen soon. I suspect it was the intent and express wish of the authors of the 1911 Act that stage two of that legislation should happen soon. But minor difficulties, such as a near-revolt in Ireland and then World War One, blew them off course. So one can never know whether the Government will achieve that result. The noble Earl, Lord Onslow, in speaking to an earlier amendment, pointed out other reasons why stage two may not happen as soon as it is hoped. There was some debate about how likely that was; but that is not the basis on which we legislate. We legislate to cover all the circumstances and to be sure that the intent is provided. Therefore, I commend the amendment to the House; or at least, I invite the noble and learned Lord to say that he will deal with this matter in his amendment to replace Amendment No. 21.

In that connection, perhaps I may ask the noble and learned Lord one question. He has said, and I am pleased to hear, that we shall consider the report of the Procedure Committee before Third Reading. But the concept of Amendment No. 21 suggests further Standing Orders to deal with by-elections to fill vacancies. It seems to me that it is putting rather a lot on the Procedure Committee to hope that it can deal not only with the first-off election, the one that is to take place soon, but also with the subsequent by-elections, and have its report before the House by, let us say, the middle of July. Is the intention that the Procedure Committee should report to the House on both those issues; or is the intention that the subject of subsequent by-elections shall be left over so that the committee has a more mature time to consider the matter and does not have to work under quite so much pressure? I beg to move.

5.30 p.m.

Lord Strathclyde

My Lords, perhaps I may intervene briefly. I have every sympathy with the amendment. It may be that the Government can accept it. It follows on from the debate that we had in Committee, when I suggested that a floor should be placed under the number of hereditary Peers excepted under the Bill. Then, the noble and learned Lord was concerned that to omit the words "no more than" from the Bill and to insist on leaving 92 Weatherill Peers in the House might invite some to question the validity of the House if the numbers were under 90.

This amendment ingeniously shoots that particular fox. It asks only for the places to be filled as soon as possible. It further puts beyond doubt any question that the House could not act validly if the numbers of excepted Peers fell below 90. So I strongly endorse both parts of the amendment, which clearly should have support in all parts of the House. It may be that the Government will follow the argument of the noble Viscount, Lord Bledisloe, and agree that their response to Amendment No. 21 has changed the ground rules. If so, this is also an opportunity for the noble and learned Lord to say that. I should certainly welcome that.

Perhaps I may deal also with the final point raised by the noble Viscount on Standing Orders. It is my understanding, which is probably right, that the Procedure Committee should meet in order to agree Standing Orders for all these procedures, and that the House should then take a view on the advice of the Procedure Committee. Again, I hope that the noble and learned Lord will he able to give a positive response to the noble Viscount.

The Lord Chancellor

My Lords, let me first respond to the noble Viscount, Lord Bledisloe, by saying that it is certainly my objective, without putting anyone under an excessive burden, to ensure that the Procedure Committee can prepare Standing Orders for consideration by the House, which will address both the initial elections and by-elections; and that the committee should do that, if at all possible, before Third Reading. I therefore endorse the remarks of the noble Lord the Leader of the Opposition. It would not be feasible for the Procedure Committee to achieve that before the end of this Report stage.

The noble Viscount, Lord Bledisloe, will appreciate that I do not want to anticipate the precise terns of the amendment which, pursuant to my undertaking given to the noble Lord the Leader of the Opposition in reply to his Amendment No. 21, the Government will bring forward at Third Reading. However, he may find it reassuring that I at present contemplate that the words "no more than" in Clause 2(2) should be elided, so that the subsection would read, "At any one time 90 people shall be excepted"; then the provision for the filling of vacancies by means of by-elections would show that the statutory purpose was to procure that the 90 were topped up. That in itself, as the noble Viscount anticipated, may be sufficient to satisfy him. As he reminded the House, I certainly said previously that the figure of 90 is both a ceiling and a floor. So far as the Government are concerned, vacancies must be filled.

I am not, as at present advised, satisfied that the amendment brought forward by the noble Viscount is the right one. Let me say right at the outset that I am grateful to him for taking the trouble to write to me in detail to explain the thinking behind his proposal. Let me also make it absolutely clear that I accept that he seeks to be constructive and helpful, and nothing else.

However, looking at the terms of the amendment, I have grave doubts whether the obligation that is sought to be imposed on the Lord Chancellor is justiciable. How could it be enforced? I also have even graver doubts whether this is a matter in relation to which it is appropriate to impose an obligation on the Lord Chancellor as distinct from the House.

Further, it appears to me to remove flexibility for the relevant groupings to decide how long they require in order to determine which candidates are to come forward and what time they need for them to be appraised by the electorates within a by-election system.

I believe that on any view 30 days is too short a period. I understand that in the other place all parties now accept that a new Writ should be issued within three months of the death of a Member. Many might think that to proceed with the filling of a vacancy arising from a death within a period as short as 30 days is somewhat unseemly.

For all those reasons, I invite the noble Lord to withdraw his amendment. I hope that he will be sufficiently satisfied with the amendment which I have already undertaken that the Government will bring forward on Third Reading to deal with the by-election issue.

Lord Campbell of Alloway

My Lords, before the noble and learned Lord sits down, perhaps I may respectfully ask him to examine Clause 2(3). As it is drafted, it looks as if it could be construed as limited to the hereditary Peer who is initially elected, not the one who replaces him. That is because of the words "throughout his life". There is a decision of the Privileges Committee in the Irish peerage case which is to the point on this type of construction. Would the noble and learned Lord examine that provision to ensure that there is no express or implied limitation of that kind?

The Lord Chancellor

My Lords, I shall consider it in light of what the noble Lord, Lord Campbell, says. My immediate reaction is that Clause 2(3) is intended to emphasise that once a Peer becomes an excepted Peer—excepted from Clause 1—he shall enjoy that peerage for life in the same way as a life Peer would, subject to an Act of Parliament providing to the contrary.

It also appears to me that anyone who prevails in a by-election becomes one of the 90 excepted Peers. So I doubt whether there is a problem, but I shall consider it.

Viscount Bledisloe

My Lords, I am extremely grateful to the noble and learned Lord. He hoped that I would be satisfied with his proposal. I am. He hoped that I would be willing to withdraw the amendment. I am. I am grateful to him and thank him for his kind words. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 24 had been withdrawn from the Marshalled List.]

5.45 p.m.

Lord Kingsland moved Amendment No. 25:

After Clause 2, insert the following new clause—
  1. APPOINTMENTS COMMISSION 16,418 words, 1 division