House of Lords Bill

HL Deb 25 May 1999 vol 601 cc860-914

8.25 p.m.

House again in Committee (on Recommitment) on Clause 2.

The Earl of Dundee moved Amendment No. 13:

Page 1, line 9, leave out ("90") and insert ("16 people domiciled in Scotland and no more than 90 other")

The noble Earl said: In moving Amendment No. 13, I shall speak also to Amendment No. 24 which is consequential upon it. After the description of what they entail is an explanation of what they achieve: first, consistency with the 1701 Act of Union provision; secondly, consistency with current proposals for Lords reform; and, thirdly, the value which they add to those proposals with which they are consistent.

The option offered by Amendment No. 13 is for consideration by the Royal Commission and for adjudication at stage two. What, then, is the justification for its discussion at all at stage one and within this Bill? The amendment as proposed does not seek incorporation within the present Bill; nor is it intended that its terms should form part of the transition House. Instead, what is envisaged is that its option should be freely evaluated by my noble friend Lord Wakeham and his colleagues and by the architects of stage two.

However, that can happen only if the option within the amendment has not been precluded by the present Bill in the first place. Therefore, the sole purpose in discussing the matter now is to obtain the guidance and reassurance of the noble and learned Lord that the option within the amendment, as about to be explained, will not have been precluded by the present Bill by the time it becomes an Act.

The option within the amendment is based on one of my submissions to my noble friend Lord Wakeham and his colleagues. It recommends that a small group of Scottish independent Peers be formed of no fewer than 16 people. That group would not be aligned to any political party and would be separate from the Cross Benches. It would be elected by a cross-party electoral college of Peers resident in Scotland. That electoral college would reflect the view of all sides of the second Chamber and would be constituted accordingly.

While the electoral college would include life Peers resident in Scotland, it might also include members of the Scottish hereditary peerage resident in Scotland. Equally, while candidates for election as Scottish independent Peers would include life Peers resident in Scotland, they might also include members of the Scottish hereditary peerage resident in Scotland.

The first advantage of that option is consistency with the 1707 Act of Union provision. The 1963 Act ended the system for selection of Scottish representative Peers. However, it did not alter the relevant provision within the Act of Union; nor would it have attempted to do so. This provision gave Scotland the right to send a number of Peers to the House of Lords. Whichever method of election may obtain need not infringe the Act of Union provision. Nor, of course, in 1963 did discontinuation of Scottish elections remove the obligation. Conversely, a new form of election would also not contravene the Act of Union. Therefore, a cross-party electoral college of Scottish Peers resident in Scotland would be consistent with the 1707 provision.

Then there is the consistency of this option with the current proposals for House of Lords reform. These aims may be agreed as follows: first, approximate voting parity between the main political parties; secondly, restriction of the automatic right to sit and vote in the second Chamber on succession to a hereditary peerage; and, thirdly, preservation of the present quality of the deliberative function of the second Chamber. The proposal for Scottish independent Peers is consistent with those three aims.

As to numbers, it does not undermine parity. There are two reasons for this: first, the present quota of numbers arising from the Weatherill amendment applies to the transition House but not to the post-transition House; and, secondly, since the proposed electoral college will be a cross-party one, parity obtains by definition and in any event.

As to the expedients to redress the imbalance of party politics, clearly it would not be helpful to reinstate elections of Scottish Peers by the Scottish hereditary peerage. That is because the majority of hereditary Peers may well take the Conservative Whip. Equally, in relation to Scottish representation, it is unconvincing to assert that as things already are there is enough redress of party politics through existing Scottish Peers. Certainly, in this House there is quite a large number of Scottish Peers resident in Scotland. That is always to be welcomed. Yet these are different groupings of party politicians who happen to be good Scotsmen. That is not the same thing as an elected group of Scottish independent Peers who are also good Scotsmen.

A further benefit is the value which this option adds to the aims of House of Lords reform, with which it is consistent. In particular, it assists the third aim; that is, within a reformed second Chamber, the preservation of the present quality of the deliberative function and the further emphasis of the ascendancy of this function over party politics and voting.

As I indicated, these are matters for stage two. They need not detain us now. The important question today is that stage one and the current Bill should not preclude their evaluation. The purpose of the amendment is to obtain reassurance and guidance on this aspect from the noble and learned Lord. I beg to move.

8.30 p.m.

Lord Gray

As someone who has to take off his shoes and socks before he can do complicated sums, I am glad that the maths in this amendment are not as complicated as in the group of amendments we discussed before dinner.

In introducing the amendment, my noble friend said that he was seeking only discussion of the principle and that the amendment was tabled at this stage to ensure Scottish representation for the future. I have made clear in earlier debates that I hold strongly to the views that we should never—particularly at this time of devolution—repudiate, or appear to repudiate, the fundamental provision of the Acts of Union. The guarantee of specific Scottish representation in this Parliament, in this House, was basic to the Union treaty.

The amendment is not a re-run of the amendments I proposed in earlier debates, although, were the noble and learned Lord, Lord Falconer, here, I would tell him that I did not intend to disappoint him by perhaps not returning to those amendments later. This amendment introduces the idea of an independent body of Scots representatives and takes account of the presence of Scottish life Peers, as did the amendment of the noble Earl, Lord Mar and Kellie, debated earlier in Committee.

The amendment has two aspects which should recommend it to the House and to the Government. The suggestion that 16 should be the number for the independent group replicates the original Acts of Union position and is therefore a reasonable suggestion. However, it is also probably about right numerically to secure a Scottish representation of 40 or so, which has previously been suggested as a reasonable level. At present there are 110 Peers with a Scottish address. Subject to whoever secures exception from Clause 1, more than three-quarters of that number will disappear with the stage one reform. There are currently 40 life Peers with an address in Scotland, including Members appointed under the Appellate Jurisdiction Act 1876. I do not know how many of the remaining life Peers have their main residence in Scotland as opposed to merely an address there. I do not know how many of those 30 plus life Peers are active here and will continue to be active here. It is interesting that stage one will remove 22 Cross-Bench or otherwise unaffiliated hereditary Peers.

It would seem that the suggestion of 16 for an independent group is very reasonable. We should try to build a bridge between 1706 and the future by ensuring that the matter is considered by the Royal Commission and by ensuring that, whatever happens, Scotland's special position as a co-founder of the Union continues to be a feature of this House. Surely we can agree on that.

It is important that the Union position is kept alive and not allowed to go by default, as did the Irish representation here. I hope that the Government's response will reflect the importance which they have said they attach to the continuance of the United Kingdom. I am pleased to join with my noble friend in proposing the amendment.

Lord Taylor of Gryfe

I have a great deal of sympathy with the sentiments expressed to ensure the continuance of Scottish representation in the House, but, frankly, those of us who sit in the House are part of the United Kingdom Parliament and I cannot justify the special provisions for Scottish representation sought by the amendment.

I should say to my Scottish colleagues in the House that if we are not careful there will be a substantial English backlash against Scotland. In a Cabinet of 22 people, there are no fewer than six Scottish Ministers—I do not know whether the Prime Minister might be regarded as a semi-detached Scot; in which case he would be another one—and the representation of Scotland in the United Kingdom Parliament and the centres of power within Parliament is well outside the Scottish 10 per cent of the United Kingdom population.

Like my colleagues, I realise that a good many of the matters with which we have been involved in this Parliament have now been devolved. During the referendum debate I tried to speak in various parts of Scotland and to warn people that the creation of the new Scottish Parliament meant the abolition of the House of Lords so far as it concerned domestic legislation. Any Bill passed by the Scottish Parliament has no provision for a revision Chamber and passes directly to the Queen for acceptance.

I can understand the frustration of my noble friends at now having no voice in Scottish domestic affairs, but I am hopeful that those of us who will remain in the House as life Peers will be able to exercise our influence, albeit indirectly, when Scottish affairs and certainly British affairs are discussed in the House. When during the devolution debate I said to meetings throughout Scotland, "You know, of course, that you are abolishing the House of Lords as far as concerns Scottish legislation affecting housing, health, education, the law and so on", I found that my audiences were somewhat unmoved by the fact that that was taking place. The people of Scotland voted for that. It would be most unfortunate if, the people of Scotland having voted "yes, yes", which I did not support, and having supported that degree of devolution, somehow or other we were to introduce in this Bill a special provision for Scottish Members in the new Chamber.

I realise that my noble friends are, in a sense, simply testing the temperature of the water, but I suggest that they do not proceed with this provision. I can tell them that the backlash is already evident. I see many references in the press to the inequalities of the Barnett formula and to the privileged position which Scotland enjoys in the British Parliament now that responsibilities have been devolved to Edinburgh. Therefore, I would not support the idea that a special position for the Scots in the transitional House should be sustained.

The Earl of Mar and Kellie

The noble Earl, Lord Dundee, has introduced another attempt to secure the retention of statutorily guaranteed Scottish representation in the House. As it is largely based on hereditary Peers, it is obviously doomed. However, that does not mean that we should not fight for a continuation of the statutorily guaranteed representation which Scotland has enjoyed since the treaty of 1707 and which, for the sake of the Union and Scotland, should continue. I am concerned that that will be lost by accident.

Finally, perhaps I may say to the noble Lord, Lord Taylor of Gryfe, that the success of Scots in government is a tribute to the fact that the United Kingdom is an open state.

Viscount Bledisloe

I should like to ask the noble Scotsmen who have spoken why they have so little faith in those domiciled in Scotland that they are determined to ensure that only 16 out of the 106 Peers they are proposing can possibly come from Scotland and that 90 have to come from somewhere else. I should have thought that any confident Scotsman would expect that out of 106 many more than 16 would be elected. I cannot see why they are determined through this amendment to prevent more than 16 being elected, come what may.

Lord Newby

I congratulate the noble Lord, Lord Gray, and the noble Earl, Lord Dundee, on tabling this amendment. I think it is the third time they have succeeded in having an amendment on the Marshalled List which seeks to do if not exactly identical things then as near as makes no difference. As I have said several times during previous debates, the principle lying behind the amendment—namely, that there should continue to be, as there is now and will be in the transitional House, a good, fair and strong representation of Scots in your Lordships' House—is one which we can wholeheartedly support. We agree with that principle. We disagree with the means proposed to maintain it, partly, if not largely, because we think that during the term of the transitional House it is completely unnecessary. The figures were explained on previous occasions. They have not changed since.

I wish to take up the point made by the noble Lord, Lord Taylor of Gryfe, about the English backlash. I do not want to overdramatise any sense of English backlash at the moment because I do not think it is yet a pressing issue. However, I do believe that in the way that we look at the reform of this place, in politics more generally and in the conduct of business in Parliament, the role of England and the English regions needs to be given due weight to that of the Scots and Welsh. If one looks at this Chamber, one sees that there is undoubtedly a far stronger Scottish and indeed Welsh component than that of virtually any English region outside London and the Home Counties. I am sure that the Royal Commission will wish to correct that when it looks at the composition of your Lordships' House. But I do not believe that either in the short or the long term the strength of the United Kingdom will be promoted by having entrenched provisions for a limited number of Scottish Peers only.

8.45 p.m.

Lord Mackay of Drumadoon

My noble friend Lord Dundee has done the Committee a great service by raising the matter again. With the greatest respect to the noble Lord, Lord Newby, the fact that it is being raised for the third time does not in any way diminish the importance of the matter. I say with the greatest respect to him that if his colleagues restrained themselves to making the same point once, a number of your Lordships' debates would be a great deal shorter than they are. It is an important matter and it is right that it should be debated.

The noble Lord, Lord Taylor of Gryfe, said that it would not be right to have special provision. However, that ignores the history of the matter. In the Treaty of Union there was special provision. Despite the eloquence of the noble and learned Lord, Lord Falconer of Thoroton, at the Committee stage on 27th April, there remains a serious dispute as to whether it is open to this Parliament not to amend the Acts of Union but to amend the Treaty of Union. I could not be present that day but I read with interest what the noble and learned Lord said in rejecting the views of Lord President Cooper back in the early 1950s. I have to say, with respect, that that view is not universally shared. That is why I suspect that the matter of whether it is appropriate to proceed in this way will be returned to at the Report stage.

I share the concern of the noble Lord, Lord Taylor of Gryfe, about an English backlash. He seemed to think that it is based on the fact that there are a number of Scots in the present Cabinet. He did not suggest who might voluntarily retire from the Cabinet to eliminate the risk of any such backlash. But I am fully confident that the noble and learned Lord the Lord Chancellor will answer that question when he comes to reply.

It is agreed on all sides that in the transitional House it will be valuable to have Scots Peers on all Benches. It may well be—I do not know what the arithmetic suggests—that for our 10 per cent of the total population of the United Kingdom we are reasonably well represented in this House. Certainly, my own clan does its best to assist in achieving that objective. Some other members of my clan might be of value to the House—f the noble and learned Lord wishes to have a quiet word later on. It is important that Scots voices are heard on all Benches. I hope that when the noble and learned Lord comes to reply he will go one stage further than his noble and learned friend Lord Falconer of Thoroton did when the matter was previously debated. He narrated a list of those who currently serve in the House. I was honoured to see my own name included in that list as one who had incredibly effectively represented Scotland throughout the time I had been there. On the previous occasion when the noble and learned Lord, Lord Falconer, mentioned my name, he complimented me on making a speech of commanding brilliance but intense vacuity. Therefore, one must take what he says in his own eloquent and amusing manner with a slight pinch of salt.

I ask the noble and learned Lord the Lord Chancellor not for a categoric assurance but for an undertaking, in making appointments to the transitional House, not merely when the Bill becomes law but in the years when the transitional House is operating before the fully reformed House comes into being, that some regard will be had to the importance of having Scottish Peers in all quarters of the House. That was what the Treaty of Union required: 16 Peers to represent Scotland in this House.

Although the number has increased as a result of the 1963 Act, the basic provision still remains part of the Treaty of Union. No doubt individual Peers may make representations to the Royal Commission as to what should happen in the reformed House when the stage two legislation comes about. But we are dealing with the interim position. My noble friend has done the Committee a service in raising the matter again. I hope that the noble and learned Lord will take it one stage further than his noble and learned friend Lord Falconer did in April.

Lord Taylor of Gryfe

Will the noble and learned Lord accept that the composition of the House will certainly include a number of life Peers who will he domiciled in Scotland, and that that will meet the obligations and concerns that he mentions?

Lord Mackay of Drumadoon

I hope that the noble Lord is correct. I shall speak as long as is necessary for his noble friends to work out who is to reply to this amendment, which seems to be the purpose of this further intervention. The important point is that there should be a number of active Peers on all sides of the transitional House. In that, I believe that I am at one with the noble Lord.

Viscount Cranborne

Does my noble and learned friend agree that there is a slight further inequity for those of us who are increasingly beginning to feel part of the "English backlash"; namely, that when it is now virtually impossible for an Englishman to stand for the Scottish Parliament, or indeed to migrate to Scotland for political purposes, there is a positive torrent of Scots men and women who are moving south and colonising England politically? This is not confined to another place; it is unquestionably true of this House. One begins to wonder whether my noble friends Lord Gray and Lord Dundee are attempting to institutionalise a position from which they can pursue further colonisation on the red leather Benches as well as on the green.

Lord Mackay of Drumadoon

I regret to inform my noble friend that it is not so much a question of an English backlash, but that the fight-back has begun. The new Scottish Parliament includes an English Liberal MSP. Out of little acorns, great English oaks grow. He is already making his presence felt in the Scottish Parliament. So far as I understand the law, there is nothing to prevent him standing for Parliament. In fact, not only did he stand, but he was elected to the Scottish Parliament. I hope that we might now hear the Government's reply.

The Lord Chancellor

I congratulate the noble and learned Lord on the assiduity with which he is pursuing, as one would expect, the question of special rights for Scottish Peers. It was good of him to observe how the genius of the Scottish nation means that it finds itself with many places in the present Cabinet in London. But the Scots did not exactly do badly either under the previous administration. These advantages for the Scots are not confined to one political party. It is against that background that we must consider whether this claim is perhaps one too many for the Scots in terms of guaranteed peerages.

The position is that, since the passage of the Peerage Act 1963, there has been no special treatment for the Peers of Scotland in this House. The provision of the Act of Union which originally gave rise to that special treatment has been repealed. There has never, of course, been any special treatment of Peers of Great Britain or of the United Kingdom who happen also to be Scottish. We do not believe that it is timely, especially in the light of the great success to which the noble and learned Lord called attention, of the Scots without any special quotas to revert to that historic position today.

Of course Scotland must continue to be properly represented in this House, as must all parts of the United Kingdom. But that has been done through the distribution of life peerages, and Scottish hereditary Peers will be as eligible as any others for election under the terms of Clause 2. If they fare as well here as they do generally when they offer themselves for election, they have nothing in particular to fear.

I know that this is becoming a rather tedious refrain, but the second reason why the noble and learned Lord's proposal is unacceptable is that it would alter the numbers to which we agreed as part of the proposition from the noble Lord, Lord Weatherill, and to which I believe the Opposition Front Bench assents.

Others may say that the numbers are wrong. We have been offered alternatives enough during our debates today. But those are the numbers that have been agreed, and they are as far as the Government are prepared to go. We are not prepared to add to them arbitrary allocations for the benefit of special interest groups, even when the special interest group is as beguilingly defined as "people domiciled in Scotland".

The Earl of Mar and Kellie

The noble and learned Lord the Lord Chancellor remarked that the 1963 Act did away with statutorily guaranteed representation for Scotland. Does he agree that Section 4 of that Act extended sitting and voting rights to all Peers of Scotland, presumably to represent Scotland as the treaty states? Also, is there any commitment in the manifesto to the removal of Scotland's rights to guaranteed seats in this House?

The Lord Chancellor

I do not accept the noble Lord's point. Having regard to the position of the hands on the clock, I think it would be better if I wrote to him on this matter.

Lord Gray

Before my noble friend Lord Dundee replies, the debate seems to have strayed rather far from his intention. He made his intention clear, in which I support him; namely, that he was looking beyond stage one reform. He made the point that he sought to discuss this matter now merely to see whether the Government would perhaps not preclude it as a matter for consideration in the future, once the repeal of the Section 4 provision of the 1963 Act was effective.

The Lord Chancellor

I do not read Section 4 of the 1963 Act, but I have offered to write to noble Lords on this subject as offering a guarantee of a quota to the Scottish peerage. It provides that they will have the same right to receive Writs of Summons, to attend the House of Lords and to sit and vote as the holder of a peerage of the United Kingdom. What this amendment would claim is a quota right.

The Earl of Dundee

I am grateful to all noble Lords who have joined in the debate and to the noble and learned Lord for his reply. However, as my noble friend Lord Gray confirmed, the context of the amendment is not the adoption of the proposal by stage one. The context, instead, is that its evaluation by stage two should not have been precluded by the Bill. In view of that, there may have been some misapprehensions expressed in the debate.

The amendment is not concerned with the transition House; still less is it concerned with hereditary Peers in the transition House. It has not even been suggested as a response to the devolved Holyrood Parliament in Edinburgh. The case for the amendment rests upon the need for improving our own arrangements during the process of reform of the House. A cross-party electoral college is a different concept and it does not feather the nest of any particular party political group.

The case for this option rests upon its consistency with the Act of Union, with current proposals for Lords' reform and for the value which it can add to them. Thus the matter under discussion is not for stage one, it is for stage two. All I seek tonight is for the noble and learned Lord to provide the reassurance which he may have done a moment ago in reply to my noble friend Lord Gray. This is that stage one of the Bill does not preclude, by my noble friend Lord Wakeham and by the architects of stage two, the evaluation of the option just outlined. Meanwhile, I am grateful to all Members of the Committee who have spoken and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 14 to 20 not moved.]

9 p.m.

The Duke of Montrose moved Amendment No. 21:

Page 1, line 10, after ("Marshal") insert ("of England")

The noble Duke said: I wish to speak to three amendments. I do not know whether I may offer a small crumb of comfort to my noble friend Lord Cranborne. Of the more or less 20 groups tonight there will be two with a Scottish flavour which is a fair proportion of the Committee's time. One relief I hope I can offer the Committee is that I do not propose to become further involved in mathematics than that element that I have just introduced.

Amendments Nos. 21 and 22 are similar. I hope that some fairly simple reasoning will suffice to explain my case. Amendment No. 23 is an attempt to take matters a stage further and it will perhaps take a little more explanation.

It must be fairly unique in parliamentary history that such a radical constitutional Bill should be brought in which does not contain a clear explanation of its long-term arrangements and the new legislative processes it wishes to put in place to justify all the upheaval. The Weatherill amendment is perhaps a straw in the wind for us, but given the earlier lack of content, I suppose Members of the Committee should say that we now have something for which we can be grateful.

The Committee will be familiar with the saying from the other side of the Atlantic that when a session of Congress reaches its last year in office, it then becomes known as a "lame duck" session. I only trust that the noble and learned Lord or whoever answers will not just regard these as the protestations of a lame Duke. Even so, because of the sweeping way in which it will come into effect, a great many of us will not be able to put our views on what the long-term structure of a second Chamber should be to those who are gathered in this place.

I am, of course, delighted that the noble Lord, Lord Weatherill, in drawing up his amendment, has seen fit to bring in as a special case the two great hereditary officers of state: the Earl Marshal of England and the Lord Great Chamberlain of England, in particular, as the Government's manifesto commitment appeared to be an attempt to preclude the consideration of any such links to the future of your Lordships' House.

Many here will be even more readily aware than I am that the Earl Marshal of England is a most senior hereditary title. As I understand it, it traces its powers and privileges back to the time of Richard II and continues under Letters Patent granted to Henry Lord Howard of Castle Rising, later the sixth Duke of Norfolk, given to him by Charles II in 1672.

According to a Home Office memo on the jurisdiction of English, Scottish and Irish heraldic authorities, on 1st April 1906, the terms of the patent state: the Office is that of the Earl Marshal of England only".

Also that, no change was effected to its powers either at the Union of England and Scotland or that of Great Britain and Ireland".

Even in the Roll of the Lords Spiritual and Temporal of 15th November 1995, the office is similarly listed. That document unfortunately does not deal with the other case we are looking at: the office occupied by the Marquess of Cholmondeley which simply omits to mention his office. This office of Lord Great Chamberlain of England is of equal antiquity. having first been instituted in 1133 by Henry I, though the present holder's claims to the office have been subject to more complicated legal settlement than most of us would care to endure.

Unfortunately, the wording in the Bill as it stands does not actually define accurately the titles of the two offices, but just refers to the "Earl Marshal" and the "Lord Great Chamberlain". Part of my difficulty with the Bill as at present drafted is that historically there has been an office of Earl Marischal in Scotland. The last holder of this office, which was exactly parallel to the office in England, had the misfortune of being the subject of an attainder following the rebellion of 1745. But there has also been an office of Great Chamberlain which, in its hereditary sense, was surrendered to the Crown in 1705, but was briefly revived after the Act of Union by Queen Anne. I am afraid that I am not in a position to tell the Committee whether it was revived as a Scottish title or whether it was revived as a title of the United Kingdom. Perhaps there is not much chance of someone reviving a claim to one of these ancient titles or the Sovereign deciding to bestow an office such as Great Chamberlain of Scotland on some deserving individual, but you never know. Even so, both from the point of view of avoiding possible confusion and purely historical correctness the two offices of state which the noble Lord, Lord Weatherill, had in mind should surely be referred to as the Earl Marshal of England and the Lord Great Chamberlain of England.

I move to Amendment No. 23. There is an element of history that cannot be contained solely in history books or the lectures of academics. Part of it is folk history and part family history and it is intertwined with and makes more vital our national history. The Labour Party makes much of the fact that it has sought reform of this House for 90 years, and during that time a certain amount of reform has taken place. But this democracy has been subject to evolution for over 700 years. There are some in your Lordships' House representing families who have participated in this process for almost as long.

Here I invoke the hereditary principle in a way that goes beyond its merely genetic or scientific element, More than eight generations ago my direct ancestor, along with the majority of the Scottish Parliament, voted for the Treaty of Union. This together with many other occasions on which Scottish matters have been dealt with in your Lordships' House has given my family a sense of involvement in the future of Scotland as part of the United Kingdom over all the intervening years. The fact that the Government have launched us down the path of devolution for Scotland, Northern Ireland and Wales means that more than ever this House and another place must be recognised as the Parliament of the United Kingdom and constituted so that at all times it focuses the loyalty of all its component parts.

I recognise that the Bill as amended by the Weatherill amendment is posited as merely a temporary measure and that the Government may have plans to cross the t's and dot the i's at a later date. But if for no other reason than that the Government are determined to curtail my right, and perhaps that of a great number of my fellow hereditary Peers, to participate in the long-term plans for the House, I have no hesitation in bringing this issue to your Lordships' attention as one that is truly of equal importance in the interim House.

The Weatherill amendment allows the two hereditary officers just mentioned to remain as Members of your Lordships' House. They are the two hereditary officers of state of England who have particular responsibilities towards the Royal Family within Parliament.

Earlier I tried to give an indication of the history and tradition that lie behind these titles. As far as I can understand these matters, they are the only hereditary great offices of state of the English Crown still in being. The 1996 Stationery Office publication on honours and titles reviewed these great offices of state and explained that, among others, those of Lord High Steward and Lord High Constable were now granted only for a single day at the time of the coronation. The other offices with which noble Lords who come to this House from another place are more familiar are the Lords Commissioners of the Treasury, or the Government Whips.

I hope it is clear to the Committee that the particular area to which my amendment is directed is the category of great officers of state whose responsibilities lie within the Parliaments of the United Kingdom. I do not try to make a case for officers of the Royal Household or holders of other hereditary offices.

In inquiring about this matter I have been directed by the Lord Lyon of Scotland to some writings by the late Sir Iain Moncreiffe, one of the Heralds of the Lyon Court. He points out that all the great officers of Scotland who had a place in Parliament by virtue of their office are entitled "Lord". The main ones that remain to this day are the Lord High Commissioner, the Lord Justice General, the Lord Clerk Register, the Lord Justice Clerk and the Lord Advocate. To this day all those positions are filled by appointment. Other than these, there are two hereditary great offices of state of Scotland which remain: the Great Steward of Scotland and the Lord High Constable. The first office is held by HRH Prince Charles. He has been excluded from any future participation in this Chamber under several of his other titles and presumably would also be under that heading.

That leaves the Lord High Constable who, historically, along with the Earl Marischal mentioned earlier, had the Scottish Parliament under their special protection as their service to the Crown. According to Sir fain Moncreiffe, the Lord High Constable sat on a chair in front of the Throne with the Regalia on a table between him and the Earl Marischal. This office of Lord High Constable, like the others I mentioned, became hereditary in the 12th century and from 1314 has continued in one family, the Hays, later Earls of Errol, until the present day.

Until publication of the Bill, as we discussed in the past few minutes, the Scots have had to guarantee that such of their hereditary office bearers as they saw fit were able to come and take their place within the Parliament of the United Kingdom. As drafted, the Bill means that for the first time that right will no longer exist.

Scotland and the Scots have had a great tradition of loyalty to their kings and monarchs down the centuries. The major wars in Scotland have been either about monarchs or religion, and more often than not about both. The Scots still have a great affection for the Queen and the Royal Family. Many of us are extremely grateful for all the time and effort that Her Majesty and so many members of the Royal Family spend in Scotland. However, despite that, in the present political climate there is a mistaken school of thought that likes to regard Her Majesty the Queen as Queen of our southern neighbours, namely, England.

Noble Lords have only to consider the considerable fuss engendered just over a week ago at the ceremony of taking the loyal Oath at the swearing in of new Members of the Scottish Parliament to understand what I mean. There I believe that about 20 per cent. of the new Members made some form of protest over taking an Oath of Allegiance to the Queen. I feel that it is important at this stage to consider ways of reinforcing the concept of the Parliament of the United Kingdom.

As I have sought to explain, my amendment is founded on the fact that Her Majesty the Queen still has one parliamentary hereditary great officer of state emanating from the tradition of Scotland in the person of the Lord High Constable. The holder of this office, I humbly submit, could be quite acceptable as one of those who could wait upon Her Majesty in the Parliament of the United Kingdom along with the Officers of State of England. I beg to move.

9.15 p.m.

The Earl of Dundee

I support my noble friend's amendment. First, on the drafting, what he proposes is accurate. What he seeks to replace is inaccurate. Secondly, in the terms of the Weatherill amendment, I agree with him regarding the inference of membership of this House for the holder of the office of Lord High Constable of Scotland.

The Earl of Mar and Kellie

The noble Duke's amendment attempts to remedy substantial mistakes made in the 1706 treaty negotiations. Those were conducted in a fairly despicable manner.

The Earl of Onslow

I shall have a small bet that had my noble friend Lord Cranborne suggested this proposal in his negotiations with the noble and learned Lord the Lord Chancellor it is one of those matters which probably would have been accepted. I speak solely as an Anglo-Saxon suburban Surrey Peer. I have nothing to do with Scotland except an occasional desire that the XXth Vintrix Legion should go back and garrison the wall.

The amendment has considerable merit. If we do not have the provision in the Bill, I hope that he will be elected at least as one of the 15 hereditary Peers who will be able to sit on the Woolsack. There is an elegance to the amendment which deserves considerable thought and sympathy.

Lord Sempill

I support my noble friend. Perhaps I may put a question to the noble Lord, Lord Williams of Mostyn. I am struck by an interesting anomaly. Following the clear disposition of the case, perhaps we can address the issue: is it or is it not an anomaly?

Lord Gray

My noble friend is to be congratulated on bringing forward the amendment. It is interesting that it has taken a Scot to point out the references to the Earl Marshal and the Lord Chamberlain. I hope that he will receive a favourable response with regard to the office of Lord High Constable of Scotland. I commend the amendment.

Lord Mackay of Drumadoon

Now that the amendment has the support of my noble friend Lord Onslow, it may be unnecessary for me to say much more. I could be provoked into one of my longer speeches. As the noble Lord, Lord Williams, will be aware, I am capable of a 45-minute speech with just minor provocation!

This is a different issue from the one with which the Scots were possibly accused of boring the House when the last grouping was debated. It refers to the role of a very senior position in Scotland. With respect, the matter merits further consideration.

It has struck me as somewhat strange when observing the ceremonial in this Chamber, both at the Introduction ceremony and, more importantly, at State Opening, that it is English officials and holders of great high office who take part, and not their Scottish counterparts. Garter attends at the State Opening with English Heralds, but not Lord Lyon with the Scottish Heralds. English High Court judges are invited to sit on the Woolsack, but Scottish High Court judges are not; nor are High Court judges from Northern Ireland.

While taking into account the point made earlier by the noble Lord, Lord Taylor, about the importance of avoiding any English backlash, it is equally important to continue to recognise that this is the Parliament of the United Kingdom. Many of us are very keen that that should be steadily and tactfully reinforced. The amendment moved by my noble friend the Duke of Montrose draws attention to that anomaly, but one cannot expect a positive response at this stage to such highly sensitive issues. However, I hope that the noble and learned Lord the Lord Chancellor will agree that this matter merits serious consideration not only as regards the Lord High Constable's position in this House, which may well be solved by electing the Earl of Erroll, but also in the other aspects which I have mentioned.

Lord Williams of Mostyn

The noble Earl, Lord Onslow, offered to take a bet, which I think is very improper behaviour in your Lordships' House. It is well known that the hereditary aristocracy is a role model the younger generation in this country and anything that induces them into the path of addictive gambling is wholly to be deprecated.

The Earl of Onslow

I cannot let that kind of challenge go totally by me. The life peerage in the form of the noble Lord, Lord Marsh, has got a hundred quid on with the noble Lord, Lord Rodgers of Quarry Bank, that the House will not exist like this for 10 years! I am only following the example of what can only be classed as the "modern jumped-up peerage". It is as simple as that.

Lord Williams of Mostyn

That is entirely my point! The noble Lord, Lord Marsh, has not had the benefit of centuries of exquisite inbreeding, and therefore one could not expect him to be able to discharge his public responsibilities as a role model in the way of which one would have been confident when looking to the noble Earl, Lord Onslow.

It is true that the shorter speeches of the noble and learned Lord, Lord Mackay of Drumadoon, normally extend beyond 45 minute—mainly, I have to say from my recent recollection, on the Government of Wales Bill.

Turning first to Amendment No. 21, our advice is that the term "Earl Marshal" is quite sufficient to place beyond doubt the identity of the office-holder in question. The same observation applies to the subject:, or object, of Amendment No. 22, with regard to the Lord Great Chamberlain.

The substantive amendment moved by the noble Duke, the Duke of Montrose, is Amendment No. 23. I do not believe that loyalty to the United Kingdom or to the Crown depends on a, or an, hereditary representation in this House. There is no recent Duke extant in the Principality of Wales, so far as my present researches indicate. But tomorrow I shall attend the opening of the Welsh Assembly, which is to be opened graciously by Her Majesty the Queen in the company of Prince Philip, Duke of Edinburgh, and the Prince of Wales. These things do not depend on historical representation.

I ought to say why on the Weatherill compromise, two hereditary office-holders, the Earl Marshal and the Lord Great Chamberlain, were included. As your Lordships know, the office of Earl Marshal is held by the Dukedom of Norfolk and the office of the Lord Great Chamberlain revolves on a kind of flexi-time basis between the Marquessate of Cholmondeley, the Earldom of Ancaster and the Marquessate of Lincolnshire.

Those two office-holders were invited to remain on the Weatherill compromise because both have ceremonial functions in this House. For instance, they have duties and obligations on the State Opening of Parliament and the Coronation. The Lord Great Chamberlain retains his seat as the Queen's representative in this House and the Earl Marshal retains his as the person responsible for ceremony. The noble Duke, the Duke of Montrose, is right in his historical survey. However, he is also right in pointing out that the Lord High Constable of Scotland has no duties in this Parliament. I believe the noble Duke made reference to Sir Ian Moncreiffe of that Ilk.

Noble Lords

No!

Lord Williams of Mostyn

Certainly I believe the noble Duke left out "of that Ilk". One should be scrupulous about such matters. It often takes a grammar school boy from North Wales to reflect on such historical resonances. If I remember correctly from my childhood talks with my father, Sir Ian Moncreiffe of that Ilk is the father of the present Lord High Constable of Scotland, the noble Earl, Lord Errol, who is, I believe, again reflecting dimly, the 28th hereditary Lord High Constable of Scotland. One needs to bear such matters in mind. He has no role to play in your Lordships' House. He sits in this House as a Member, pure and simple, with no additional, specialised role.

An important point has been prefigured in what I was hoping to put as my marshalled arguments upon this occasion. Earlier today, a number of noble Lords in discussing whether the number of the Weatherill relicts should be 92, 46, 180, 120, 207 and so forth, quite rightly made particular reference to the Act of Union 1707. I now produce my trump card. There is no reference at all anywhere in the Act of Union 1707 to ensure the Lord High Constable a seat in this House. Need I say more? I shall.

Lord Mackay of Drumadoon

I thank the noble Lord for giving way. He will correct me if I am wrong, but is there any reference in the Treaty of Union, which I respectfully suggest is the important document, as to whether either the Earl Marshal or the Lord Great Chamberlain should be Members of this House?

Lord Williams of Mostyn

Of course not; nor would the informed mind expect there to be. It is well known to most of us—I hope it is well known to all of us—that the function of the Lord High Constable of Scotland is to defend the person of Her Majesty north of the Border. It has nothing to do with any duties he might have in your Lordships' House. Therefore, although the noble Duke, the Duke of Montrose, rightly brings these matters to our attention, as always, his amendment is misplaced because the true functions of the Earls of Errol as hereditary Constables lie north of the Border. I could go further and expand a little, but I think that perhaps my argument is so overwhelming that no further contribution is needed.

The Duke of Montrose

I know that the hereditary aristocracy is supposed to set a standard and give people something to follow. However, I would have thought, perhaps contrary to the remarks of the noble Lord, Lord Williams of Mostyn, that they probably invented gambling. They have not always had what I might call the Presbyterian attitude to some of these occupations.

I am most grateful to the noble Lord for his explanation of the Government's point of view on the issues I raised. My point was not that the Lord High Constable had a duty currently in Parliament here, but merely that by widening those involved to cover the full scope of the officers of state within the United Kingdom, it became more of a United Kingdom Parliament than it currently appears to be to some observers.

The question of whether or not there is any duplication in these titles is a slightly difficult one. If one consults with somebody like the Lord Lyon in Scotland, he would see that there was a possible duplication in these matters. If one consulted the Garter King of Arms, he perhaps would not see it in terms of a Parliament of England.

The question to which I am trying to find an answer is this. Considering that this is the Parliament of the United Kingdom, who can lay down whether or not there is a possible confusion? But rather than keeping the Committee any later tonight, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 24 not moved.]

9.30 p.m.

Lord Strathclyde moved Amendment No. 25:

Page 1, line 12, at end insert—

("( ) The number of people counted towards the limit set out in subsection (2) shall not be less than 90 for an:?,, period exceeding 30 sitting days.")

The noble Lord said: This is a simple amendment. Its purpose is relatively plain so I shall move it briefly. I must say at the outset that the Opposition attach considerable importance to the principle underlying this amendment and that of my noble friend Lord Lucas, Amendment No. 31, which may be a marginally better amendment than my own.

Amendment No. 25 says that the limit of 90 Peers should be replaced within 30 sitting days, while the amendment of my noble friend says it should be, as soon as may be reasonably convenient". I hope that the Government will give a positive reply. It is important to make sure that there is a floor on the number 90. The two are the ex officio posts held by the Lord Great Chamberlain and the Earl Marshal, and we want to make absolutely sure that the number cannot be reduced. I beg to move.

Lord Lucas

I should perhaps speak briefly to Amendment No. 31. I am grateful to my noble friend Lord Strathclyde for outlining what it says. It is quite clear that the Cranborne-Chancellor agreement embraces the fact that there will be 90 hereditary Peers coming in under the various electoral arrangements, and that is the figure which it is intended should remain. But that is not at present what the Bill says. I shall be interested to know why the Bill does not say that, if the noble and learned Lord the Lord Chancellor does not intend to table an alternative amendment to those we propose.

The Earl of Onslow

There is considerable virtue in the spirit of this amendment. If we are to have this arrangement which has been fixed by the "odd" channels rather than the "normal" channels, it must still be properly set out in the Procedure Committee's rules. We must make certain that there is a replacement in the event of a death or a resignation. I hope that there will he a proper method of re-election.

I suspect that there was a perfectly sound precedent set by the Act of Union with Ireland. When an Irish Peer died he was replaced. I believe a writ went to the Lord Chancellor's office though I cannot remember the exact details. My noble friends are asking for a proper procedure, not subject to delay, to replace those who fall by the wayside through death, resignation or for some other reason. I support the spirit of the amendment. We do not need to amend the Bill but the matter should be examined carefully within the standing orders of the Procedure Committee.

Viscount Bledisloe

I strongly support the principle behind the amendment, which is designed to ensure that the 90 are replaced promptly when someone dies. It is nice to know that this cannot be answered by the argument that the amendment is contrary to the deal done, because the deal expressly says that the 90 will remain as transitional Peers, not up to the 90. These amendments seek to achieve the deal and not to vary it. It seems to me that an amendment along the lines of that of the noble Lord, Lord Lucas, is proper and suitable, whereas the amendment proposed by the noble Lord, Lord Strathclyde, on the Government Front Bench, seems to suffer from the defects of King Canute's courtiers who they seemed to think that they could forbid death, which is as impossible as forbidding the ebb flow of the tide. If one such Peer dies, a procedure is put in hand to replace him but, if just before he is replaced another such Peer dies, and if the 30 days have been exceeded, the amendment will have been breached. I do not think that even the noble Lord, Lord Strathclyde, considers that Parliament can forbid death, but hope that the Government will either say that they will accept the amendment of the noble Lord, Lord Lucas, or do something to ensure that the 90 must be maintained.

The Lord Chancellor

There is no issue of principle between us. I have made that absolutely plain. The noble Viscount, Lord Bledisloe, is absolutely right that it will not be heard from me this evening that there is any reason of incompatibility with the agreement as to why this amendment cannot be properly considered.

The agreement is quite clear. The 90 is intended to be both a ceiling and a floor. The issue is one of practicalities. Noble Lords opposite want to have as firm a guarantee as possible that the number of excepted hereditary Peers will remain at 90 and that when vacancies occur, they will he filled. That is certainly the Government's intention. I have given a 100 per cent assurance that that is so. I should not like anything that I say now to suggest that I have a closed mind on this point.

The problem is, as quite often it is, the English language, admirable though that is. The Bill says not more than 90. Therefore, people fear that this may mean fewer than 90 because fewer than 90 is not more than 90. But if we were then to say, "not fewer than 90" others from a different standpoint would start fearing that that might mean more than 90. I have to tell the Committee that language gives rise to difficulties. There is nothing sinister whatsoever about the language of Clause 2, which provides for a maximum number of 90 hereditary Peers to be excepted. I have given before and shall give again the Government's absolute pledge that, of course, we intend any vacancies that arise to be filled. As I say, the figure is both a ceiling and a floor.

The matter of filling the vacancies will not be a matter for the Government as such; it will be a matter for the House and for the parties. I repeat my unequivocal assurance that the figure of 90 will be honoured by the Government throughout the whole period of the transitional House. I wonder what more is sought from me.

The provisions are framed in this way because of the legal difficulties of providing anything else. I appreciate that in the light of what I said when we last discussed this, noble Lords opposite have amended their original proposals to provide for a minimum time during which a replacement must be identified rather than—I think they were persuaded before by my arguments—to provide that there must be 90 excepted Peers at all times, because of course it is recognised that vacancies do occur and that such an absolute requirement could not in the real world be continuously complied with.

I then suggested that the similar amendment from the noble Lord, Lord Lucas, also posed real problems. This revised proposal does not address those problems. First, it does not say who is to be responsible for ensuring that the vacancy is filled. Neither individual Peers nor the House itself could be answerable to the courts for failing to fill a vacancy.

Secondly, the amendment does not say what the consequences are to be if the vacancy is left unfilled. Would the proceedings of the whole House be invalidated? Surely not. What happens if honest efforts are made to find a replacement within the time limit, but a number of noble Lords decline the invitation? Alternatively, what happens if a replacement. Peer, having been identified within the requisite period, is ready and available to be appointed, but a second Peer dies within the 30-day limit?

The Earl of Onslow

I have been following with immense interest the noble and learned Lord's argument. However, we do not want him to explain the individual difficulties with the amendment because he has accepted the principle of re-election. We do not want to hear about the faults of my noble friend's argument, which are self-evident. What we want to hear from him is how the Government would actually like this to be done. That is what we are asking for. It is great fun producing these arguments as to why it is silly—and I am in sympathy with that—but what we want, and are entitled to have, is a positive answer about something that the noble and learned Lord has already said he will do.

The Lord Chancellor

If I am unable to think of it, I cannot give Members of the Committee a satisfactory answer as regards putting something on the face of the Bill. I believe that the scheme for replacement set out in the draft Standing Order is the most simple and straightforward way to go. That is actually what I think. In my view, until someone comes forward with something better than this amendment, it should be left on that basis. It must be appreciated that this must be dealt with on a basis of trust against a background where people have made their position unequivocally clear.

Noble Lords opposite have no interest in allowing their allocated share to fall beneath that level. That is the case with the Cross-Benchers and indeed with everyone else. The Government have made their position absolutely plain: even if we were able to do anything to prevent that happening, we would not dream of doing so. We shall stand by what we have said.

The Standing Order provides that if for some reason the scheme becomes unworkable, other arrangements will have to be made. They will have to be made by the House. Beyond that, I feel unable to go. With the best will in the world, I cannot be expected to devise an effective amendment if my own considered view is that it is best to leave the matter to Standing Orders.

Lord Lucas

From the basis of my own ignorance, perhaps I may enquire of the noble and learned Lord the Lord Chancellor what they do in another place when faced with the same problem. Surely the situation is analogous; in other words, if they lose a Member, they replace him. There must be obligations on the parties to do various things for that to happen and consequences of it not happening. Would it not be possible to produce a mirror or an analogue of that in some way?

The Lord Chancellor

No. There are by-elections in the other place; indeed, it is an entirely different state of affairs.

Lord Strathclyde

I sense that the noble and learned Lord is trying to be helpful and I am grateful to him. I suspect that what happens in another place is that a Writ is issued for a by-election and that that is how they get around it. It is possible that we may be able to find a similar system in this Chamber. The solution to this situation may be found when we discuss my amendment. Amendment No. 32, which deals with by-elections because that is also part of dealing with replacements.

The noble and learned Lord started by saying that he does not have a closed mind. We shall examine what he said to see whether there is a way round the problem. In parenthesis, I should point out that this is not an issue of trust or mistrust between the noble and learned Lord and everyone else. However, the noble and learned Lord may not always be with us. He may be replaced by someone who is far less considerate than himself. Of course, that would never do. Therefore, I hope that we shall be able to find a way to deal with this problem which is mutually acceptable to the noble and learned Lord and ourselves, and which actually renders a service to the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Lord Newby moved Amendment No. 26:

Page 1, line 12, at end insert— ("( ) If any persons are to he selected for exception under subsection (1) by reference to a connection with any group or political party, they shall be elected by all peers recognised as provided by Standing Orders as members of that group or party in the House of Lords, unless such peers resolve that the electorate shall consist only of hereditary peers recognised as such members.")

The noble Lord said: This amendment states that the 75 Peers to be elected by the parties and the Cross-Benchers may be selected by all Peers, hereditary and life, if the group so decides, or by the hereditaries only, if that is how the group equally decides.

We went over much of the ground covered by this amendment earlier in the day when we discussed the group of amendments headed by the amendment in the name of the noble Lord, Lord Willoughby de Broke. I do not intend to detain the Committee long with the arguments that many Members of the Committee will already have heard. I say only that that debate demonstrated that there are two views on the nature of the Weatherill Peers. The view that the noble Viscount, Lord Cranborne, clearly expressed was that they should be representative Peers. I believe we would accept that if you take that view it is logical that they would simply be elected by other hereditary Peers in their group. They are literally a sub-sect of the hereditaries elected by the hereditaries to preserve a hereditary principle in this Chamber.

The other view, which I believe many of my colleagues would hold—and which I think is shared, at least in part, by the noble Viscount, Lord Bledisloe—is that we hope that the Weatherill Peers would represent those Peers who make the greatest contribution to the work of this Chamber. Although there would obviously be a great overlap in numbers, we are looking at a slightly different concept here. If you accept our view—which I believe the noble Viscount, Lord Cranborne, described as the elitist view rather than the representative view—it seems to us that it is logical that all Peers in a group, life and hereditary, should have the opportunity to decide which of their number remain.

This amendment simply states that the groups would have the option to choose whichever system they wished. The Conservatives and the Cross-Benchers may decide to go down the representative route. We might decide to go down the other route. The provision does not preclude any group from adopting its preferred route. I believe that we would thereby avoid the nightmare scene depicted by the noble Earl, Lord Ferrers, of a plethora of options because one group would have only one system to operate and another group, meeting elsewhere, would operate a separate system. What we seek here is some statement from the Government that the detailed provisions for the election of the Weatherill Peers will be permissive in the options that they allow groups to follow rather than forcing a single option on all groups. I beg to move.

Viscount Cranborne

I do not intend to repeat the arguments so elegantly laid out by the noble Lord. I say merely that I entirely subscribe to his version of what I said and the reasons for it. I emphasise that the noble Viscount, Lord Bledisloe, and the noble Lord who has just spoken both acknowledge that if the Peers who are to be elected are representative, the logic must be that those whom they represent must elect them. I stand my argument on that logic, validated as it has been by the noble Viscount and the noble Lord. That is my argument.

Therefore it seems to me that if that is right, it is difficult for individual groups—even for the Liberal Party which we know is sui generic in a way which most other political parties are not—to be an exception if that is the logic that prevails. For that reason alone, I find it extremely difficult to support the amendment.

Lord Monson

I think it is a very good amendment. Until about a year ago we never mentally divided ourselves into life Peers and hereditary Peers. It was a happy state of affairs. It was possible to see a fellow Peer every working day for a year or more without being certain whether he or she was a life Peer or a hereditary Peer. I should like to revert to that, but unfortunately it will not be possible. However, the spirit of the amendment is good. As was said earlier today, the life Peers know well which hereditary Peers are the right people to be elected, and such an amendment should be supported in principle at any rate.

Lord Kingsland

I hope that the noble Lord, Lord Newby, will forgive me if I express some wry amusement over this amendment. I seem to recall that for years and years my party was heavily criticised by the Liberal Party in European parliamentary elections for opting for a system of election which was different from that of all the other member states: the first-past-the-post system. I now find that, instead of endorsing the principle of uniformity and equality which was so wished for by his party in the European Parliament, in the House of Lords the Liberal Party wish for a devolved system whereby each party can choose its own method of election. Such an approach is totally contrary to the traditions of equality in the House of Lords, so eloquently expressed this afternoon by the noble Lord. Lord Peston.

Viscount Bledisloe

I share the view that has just been expressed by the noble Lord, Lord Kingsland, that it would be wrong if different parts of the House of Lords had different systems.

The noble Viscount, Lord Cranborne, and I had a discussion earlier on the principle of whether the election should be by hereditary Peers or all Peers. It amuses me to find the Cecil family criticising a system on the grounds that it is elitist. That is at least unusual.

The noble Viscount and the noble and learned Lord the Lord Chancellor suggested that it was contrary to the deal done to suggest that the election could be done by all Peers. Of course, I know not what went on in the inner sessions of the noble Viscount and the noble and learned Lord over their whiskies. The only contemporary record of the deal they did is contained in the press announcement made by my noble friend Lord Weatherill and others, which is wholly equivocal upon the question of whether the election should be done by the hereditaries or otherwise. It may have been locked in the intentions of the noble Viscount that it should be done by hereditaries. But that intention has not manifested itself in any way until now.

We lawyers know full well that very often a party to a negotiation thinks that he has made something plain and it is not. Certainly, if we look at the written record of that agreement we see that the matter is wholly equivocal. I suggest that it would be entirely open to the House at the proper stage to consider this matter, namely, upon the report of the Procedure Committee.

The Earl of Onslow

I hope that we shall keep to the principle of representation. This principle of representative hereditary Peers is deeply in our history. It goes back to the Act of Union 1707. It was followed by the Act of Union of 1801, admittedly in a different form. But there is good, sound historical precedent. I am an Englishman. I like to use our history to advance reform. Therefore, we should stick solely to this method of the representatives.

I hope that when my noble friend Lord Wakeham reports on the findings of his Royal Commission he will extend the principle of representation to other groups and other sections of society, because it is a principle which has served us well. Therefore, let us not get muddled up with Liberal Party ideas of messing up the constitution. It has had so much time to do it and, one hopes, it will go on failing.

Viscount Bledisloe

Before the noble Earl sits down, does he not recognise that this Bill, in its content, abolishes the concept of what we have done for many years in the past? Therefore, it is a little curious to suggest that we should be dictated to by what Scotland did in 1707 when the whole concept of the hereditary peerage is being abolished by the Bill. It is rather odd to invoke in support of clauses in this Bill any principle of long-term history.

The Earl of Onslow

I believe exactly the opposite. There has been the most marvellous English muddle. The Government have decided to do one thing; others told them not to do it. The Government said they would do it and then produced something totally different. Everybody has given something. The Bill as published has nothing at all to do with what we are discussing at present. Something totally different has come out of it. That is a perfect example of English constitutional muddle at its very best.

Viscount Tenby

The arguments against the amendment have already been well rehearsed. With the principle contained therein, I have no quarrel. Indeed, I support it. However, I do not believe that we should be discussing it in detail now. As I say, this matter should be discussed at a later date. But I cannot resist paying tribute to the silken presentational skills of the noble Viscount, Lord Cranborne. I am sorry to come back to this so quickly. As a Welshman, I should have known that to joust with someone of Welsh ancestry would invite trouble.

At an earlier state of our deliberations on the Bill, I advanced the proposition that to confine the electorate on the choice of hereditary Peers to hereditary Peers reduces the operation to charges of it being like, for example, election to White's or Boodle's. Imagine my surprise, therefore, when I heard the noble Viscount, on at least two subsequent occasions, turn the argument subtly on its face. Accordingly, I promise solemnly not to provide the noble Viscount with any further ammunition, especially since, with a heavy heart, I must confess that he has not so far managed to convince me of the force of his argument. He may well do so at a later stage but, somehow, I doubt it.

My reasons for taking that view I shall leave to the day when the Bill returns to the Floor of this House after scrutiny by the Procedure Committee, a course of action I commend to other Members of the Committee this evening.

The Lord Chancellor

This is a very narrow point. The Committee will appreciate that my interest in it is rather limited. It is coterminous with the interests of my party which secures from the compromise two hereditaries to be retained.

But I am a witness to the agreement, as is the noble Viscount, Lord Cranborne. Although I can well appreciate how the noble Viscount, Lord Bledisloe, would regard the press notice issued by the Cross-Benchers as the record of the agreement, it is not, however, the record of the agreement. That record is the witness of the noble Viscount, Lord Cranborne, and myself as to the agreement that was actually made.

In fact, we agreed that the elections in the several constituencies would be of hereditaries by hereditaries for hereditaries. We both agreed that that was an integral part of the compromise and for my part, although my party's interest is as limited as I have described, I shall not resile from it.

But it is not merely a matter of the amendment contravening the terms of the proposal. One thought behind the agreement was that it would be an invidious electoral system which would enable life Peers to pass judgment on their hereditary colleagues. I can well see how the opposite view may well reasonably be entertained. But it was agreed that the electorate within each grouping consists of the hereditaries and, therefore, I stand by it.

Lord Newby

I am grateful to the noble and learned Lord the Lord Chancellor for that reply. I should say to the noble Lord, Lord Kingsland, that I am pleased that I managed to bring a smile to his face. The European election procedures can be prayed in aid by virtually anybody wishing to promote virtually any argument.

It can certainly be argued, for example, that there is no uniformity in the way in which the lists have been drawn up between the different parties where the methods vary greatly. I doubt whether the Conservatives would support the methods we adopted in selecting our candidates. I doubt too whether the Government would be happy with the methods that either of us adopted. Equally, it simply is not the case that there is a uniform system of elections across the EU at the moment; we have different methods. I do not think that the unity and uniformity argument goes very far.

As to the response by the noble and learned Lord the Lord Chancellor, I understand that the representative clause was in the agreement. As he has said many times on other matters, that is virtually the end of the matter for him; as we have said many times on other matters, that is not the end of the matter for us. No doubt we will return to it. As to the principle, I am afraid that we disagree and, again, we may wish to return to it.

However, we have had a full airing of the issues and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

10 p.m.

The Earl of Dundee moved Amendment No. 28:

Page 1, leave out line 14 and insert ("for a term of up to 7 years which shall expire on the day another person is excepted from that section by or in accordance with Standing Orders of the House.")

The noble Earl said: In speaking to the amendment which concerns electoral colleges, after the description of what it entails is the explanation of what it achieves. This is consistency with the current proposals for House of Lords reform. Such follows from the system for election proposed within the amendment. Yet the benefit outlined presents an option for consideration by the Royal Commission and for adjudication at stage two.

What then is the justification for this discussion at all at stage one and within this Bill? The amendment as proposed does not seek incorporation within the present Bill. In that respect it resembles the amendment moved today concerning Scottish independent Peers. That amendment, too, did not seek incorporation within the present Bill. Nor is it intended that the terms of this amendment should form part of the arrangements for the transition House. Instead, its option is for my noble friend Lord Wakeham and his colleagues and for the architects of stage two. However, its evaluation by them can only occur if it has not been precluded in the first place by the present Bill. Therefore, the sole purpose of discussing the matter today is to obtain the guidance and assurance of the noble and learned Lord that the option within the amendment, as about to be explained, will not have been precluded by the present Bill by the time it has become an Act.

The option within the amendment is based upon one of my submissions to my noble friend Lord Wakeham and his colleagues. If electoral colleges were to become a feature of the post-transition House, this submission recommends that candidates or members should be elected or re-elected every seven years. Thus, regardless of by-elections, the interval between the main elections would never be wider than seven years.

That system for elections is consistent with the aims of House of Lords reform. First, there is its connection with the aim of achieving approximate voting parity between the main political parties. Through time, a number of factors may militate against the capacity or desire for party political voting. Let alone age or infirmity, such factors may even include disinclination owing to other conflicting priorities. Electoral colleges functioning every seven years may therefore take note of the situation as it changes.

Secondly there is the paradox relating to part-time attendance. If electoral colleges provide fixed quotas, then elected members will be expected to be regular attenders. Otherwise the terms and trust of election in the first place would appear to have been breached. On the other hand, part-time attendance is arguably the backbone of the deliberative function and its present quality within this Chamber. There are first-class contributions from more elderly Members who may not be able to attend as much as others. In any case, distinguishing it from the daily voting function is the separate pattern and timetable of the deliberative function itself. This includes questions and debates, the highly-regarded Lords Select Committee reports, the work of overseas delegations such as the Council of Europe. As it is, many of your Lordships in the days when they are not here are often working on these and related parliamentary matters.

If electoral colleges perform every seven years, they can make balanced readjustments. They will be able to distinguish between what is part-time attendance for the right reasons and what is irregular or even regular attendance for the wrong reasons. If electoral colleges appoint only once and for life, no such readjustments are possible.

As I have already indicated, the institution of such arrangements are for stage two. Their details need not concern us now. The important question today is that stage one and the current Bill should not preclude their evaluation. Thus the purpose of the amendment is to obtain the reassurance of the noble and learned Lord that it will not do so. I beg to move.

The Chairman of Committees

I must point out to the Committee that if Amendment No. 28 is agreed to, I cannot call Amendment No. 29.

Lord Gray

When speaking in the debate on the White Paper, I said that I favoured an elected second Chamber. I regret that the Government apparently do not. If in due course a reformed House is to be at least partly elected, then electoral colleges acting in the way described by the amendment would be an important feature of any electoral scheme and a bridge linking the present with the future in a way that could only benefit Parliament. Electoral colleges would then carry through into the future what Clause 2 of the Bill inaugurates. So the scheme envisaged by the amendment has significant advantages over any system where appointment or election for life is the basis.

As my noble friend has pointed out, judgment of performance would influence voting whereas life appointment is not subject to such considerations. It might well be that the electoral college idea could be expanded beyond peerage representation. The amendment suggests a term of up to seven years. I shall be interested to hear what other views there may be as to the length of an appropriate term to provide the balanced readjustments to which my noble friend referred in moving the amendment. Certainly, readjustments will, perforce, be necessary. An adjustment by appointment is likely to give rise to all kinds of complications. If one accepts that the future should reflect the best or the present, the scheme proposed by the amendment deserves serious consideration. I commend it to the Committee.

Lord Weatherill

I assume that the purpose of the amendment is to try to ensure that anyone can have a term if the arrangement envisaged in Clause 2 lasts for any length of time. I cannot otherwise see the point of proposing, as the amendment apparently does, that a Peer should not be eligible for re-selection. The purpose of our proposals was to provide an element of continuity during the transitional House. I do not see how a scheme which would force excepted Peers to retire and be replaced by those who had been outside the House for up to seven years can help to fulfil that purpose. Of course I very much hope that the provision would be entirely academic in that further reform of your Lordships' House will take place long before the seven years are completed. But one should not—

The Earl of Dundee

I am grateful to the noble Lord for giving way. Perhaps I may come to the kernel of his point in this way. As he said, it would not make sense if the amendment were to address itself to the transitional House. It does not. All it seeks to do is to elicit from the noble and learned Lord a reassurance that stage one in the present Bill does not preclude my noble friend Lord Wakeham and his colleagues and the architects of stage two from considering seven year term elections for the post-transitional House.

Lord Weatherill

I am sorry if I misunderstood what the noble Earl's amendment is intended to do. But I must stress the point that our proposals were intended for the transitional period and not for the longer term. I hope that that point is absolutely clear.

The Earl of Onslow

I hope that the Government will resist this amendment. It is one of the few hopes that I have that will be fulfilled. We have a new, stand-alone Bill, which has within it the ability to last very much longer than the Government hope that it will. If it does, that is important; if it does not, that does not matter. But to attempt in this Bill to prescribe what the noble Lord, Lord Wakeham, will do would be a mistake. I suspect that that may not be a million miles from the Lord Chancellor's brief and that, for once, he may even agree with me.

Lord Pearson of Rannoch

I wonder if I could direct the attention of the noble Lord, Lord Weatherill, to the draft standing order on what was, after all, his own amendment. It states: It is proposed that hereditary peers who were the runners-up in the initial elections should fill the vacancies. This is set out in paragraph (7) of the draft Standing Order. This provision should provide suitable candidates until Stage II reform is effective or until the expiry of five years, whichever is the earlier. If the scheme exists for such length of time that the Standing Order provision becomes unworkable, the House will be able to consider alternative methods of filling vacancies and amend the Standing Order, if necessary". That seems to suggest that this may last longer than five years, and the amendment itself does not deal with that problem. We may have to come back to standing orders. If it lasts for five years, why should it not last for seven? It seems to me that the amendment could be reasonable if phase one lasts for that sort of length of time.

Lord Kingsland

I believe that my noble friend's amendment was directed to what we have come to call stage two. Indeed, if the hereditary peerage becomes a permanent part of the stage two solution, as I earnestly hope it will, then the Scottish electoral system is a real runner; although of course it would be hard to escape the conclusion that the same provisions would have to apply to the life peerage as well.

Here we are considering only the transitional House. The noble and learned Lord has the option of either the Scottish or the Irish solution. It is my view that, in the transitional period, the correct solution is the Irish solution.

But if one tests what is proposed against the Irish solution, one discovers that the Government's proposals do not meet that solution, because there is to be no system of by-elections but, instead, a list established in 1999 which will presumably run on until stage two. I earnestly hope that the noble and learned Lord will review the system of by-elections and reconsider his position as regards the 1999 list.

The Lord Chancellor

Hope springs eternal that the transitional House will become a permanent House. I had shared with the noble Lord, Lord Weatherill, the view that this proposal related to the transitional House. I had thought that because that is all that we are debating and all that amendments should now address.

I had thought that the proposal was that the maximum term that anyone may serve as an excepted Peer should be seven years. I certainly shared with the noble Lord, Lord Weatherill, the view that this was an attempt to ensure that everyone, or as many as possible, would have an opportunity to serve as a hereditary if the arrangement lasted for any length of time. But looking at the position as it affects the transitional House, the Government's view, consistent with the agreement made, is that excepted Peers should be here on the same basis as everyone else, namely for life, until stage two reform takes place.

I am pleased that I am not in any way disappointing the noble Earl, Lord Onslow, who correctly anticipated what I would say. I am happy once again to have given him satisfaction. We are now told by the noble Earl, Lord Dundee, that the amendment does not relate at all to the transitional House but looks forward to a wholly reformed House. I agree with the noble Earl, Lord Onslow, that we should not now be addressing anything that might be available to the noble Lord, Lord Wakeham, and his commission to recommend.

The Earl of Dundee

I am grateful to the noble and learned Lord for his comments, but perhaps I may put one question to him. Within this Bill we should not do the work of the noble Lord, Lord Wakeham. That work is for him and his commission. Yet the converse is this. The Bill could preclude the evaluation by him of something which he might otherwise wish to evaluate. I should be grateful if the noble and learned Lord could say whether, in his view, the present Bill, either as it is or as it may be before it becomes an Act, will preclude the noble Lord, Lord Wakeham, and his colleagues from evaluating the purport of the option described by this amendment.

The Lord Chancellor

The remit of the noble Lord, Lord Wakeham, and his commission is as set out in his terms of reference.

The Earl of Dundee

I thank the noble and learned Lord. They are, but following what he has just said, does he feel able to give the reassurance that nothing in the Bill would preclude the evaluation of seven term elections for stage two by the noble Lord, Lord Wakeham, and his colleagues?

The Lord Chancellor

In my view the commission will have regard to the implications of the Bill and will want to ensure that there is a smooth passage between what the Bill provides for when it passes and what a fully reformed House will provide for. But it is not intended, by any provision in the Bill, to cut down any part of the remit of the Royal Commission.

The Earl of Dundee

I thank the noble and learned Lord for his reassurance. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

The Earl of Dudley moved Amendment No. 29:

Page 1, line 14, leave out ("to the contrary") and insert ("for an elected second House of Parliament")

The noble Earl said: It has been a long day and it is late. I saw the noble and learned Lord the Lord Chancellor take a deep breath. The last thing the Committee wants is for me to move my amendment. Nevertheless, it is not my fault that I have to move it at 10.15 at night on re-committal. I was guaranteed this spot when I withdrew my amendment a week ago.

There is a simple reason for the amendment. I object to the Government's avowed intent that the 90 hereditaries should remain Members of the House on sufferance with a limited life span, as compared with the life Peers. The noble Baroness the Lord Privy Seal made it clear on Second Reading when she was introducing the Bill when she described the then Weatherill amendment as, a later amendment to retain temporary membership for some hereditary Peers"."—[Official Report, 29/4/99; col. 12.] I hope to persuade all Members of the Committee on all sides to share my objection and support my amendment, although I regard the Lib-Dem Benches as rather wobbly in that respect. If the amendment achieves nothing more, it provides an opportunity for what I hope will be a brief debate on the terms whereby the 90 hereditary Peers may remain as compared with the expectations of life Peers.

I personally have no aspirations or expectations and regard my amendment as a parting shot fired by a powerful objection to the unequal temporary status accorded by the Government to the 90 hereditaries as compared with the expectations of life Peers. It is not improved by Clause 2(3) of the Bill. Although the first part decrees that the 90 hereditaries shall remain Members of this House for life, the words in brackets (which I seek to amend) envisage the stage-two legislation that noble Lords on the Front Bench opposite repeatedly state is guaranteed by the Weatherill amendment, which is now Clause 2 of the Bill. They have gone further and implied that stage two would be the point in time when further legislation would "provide to the contrary" and when the 90 hereditaries would cease to be exempted from the effects of Clause 1 of the Bill.

I should like to see their crystal ball. No one can predict what reforms the Royal Commission will propose. It may recommend removal of the 90 hereditaries or their retention. Perhaps the noble Baroness the Lord Privy Seal or the noble and learned Lord the Lord Chancellor can anticipate how the Government will react if the noble Lord, Lord Wakeham, and his colleagues report favourably on the hereditary element in the Lords. I do not expect them to tell the Committee today and therefore do not propose to ask them. Be that as it may, the House is in for a transitional period of illusion and disillusion—illusion for the hereditaries who are to remain and disillusion for noble Lords opposite who want them to go.

Why do I object to the bracketed words in the Bill? First, they are superfluous. An Act of Parliament can provide to the contrary at any time—as it can for life Peers—without the proviso being written into the Bill. The words carry no force and are unnecessary. My second objection is that they create the illusion that the 90 hereditaries are more vulnerable as regards membership of this House than life Peers. As far as I know, never having been in that situation, no one says to a person that from the moment he is offered a life peerage until he takes a seat in this House he is a Peer for life on condition that no Act of Parliament provides to the contrary. In this respect, the subsection is divisive as it discriminates between hereditary and life Peers in a way foreseen by a number of noble Lords this evening.

My amendment is designed to create the illusion that the 90 hereditaries are on a level playing field with the life Peers as regards lifetime membership of this House. To achieve that, I have devised the only cut-off point that I visualise as being capable of applying to both hereditary and life Peers; namely, an elected second Chamber. That will put both elements of this House on a level footing which will militate against divisiveness. That element of divisiveness has been referred to in the course of the debate this evening.

I could have moved an amendment to omit the objectionable bracketed words. but Clause 2 has been a bitter pill for the Government and their supporters here and in another place to swallow. I suspect that they want some flavouring or sugar-coating on the pill. It seems appropriate to keep an exit gate for hereditaries, as long as it opens for life Peers simultaneously. Therefore, my amendment does not gainsay the noble Baroness's definition of some Peers' continued membership of the House as temporary.

I admit that my amendment offers nothing more than an alternative illusory device. It is not a plea for an elected House of Lords, although I favour that option for stage two after my departure. It is not an attempt to pre-empt the Royal Commission, and in my view it does not breach the compromise between the Front Benches in ways feared and defined by the noble and learned Lord the Lord Chancellor in his remarks at Second Reading. I hope that my modest amendment is acceptable to the Government and inoffensive to more moderate Labour supporters, although doubtless anathema to the noble Lord, Lord Rodgers of Quarry Bank. I commend the amendment to the remainder of the Committee. I beg to move.

Lord Lucas

The words of which my noble friend complains are a gratuitous insult. However, I have a difficulty with the amendment. The Bill provides for an elected upper House with a continued, appointed element of life Peers. Therefore the coming into force of the Bill would immediately extinguish we hereditary Peers as an elected element of the House. I have difficulty as to whether that destroys the Bill entirely, or whether it means that we go round in circles being appointed and disappointed in rapid succession.

Lord Kingsland

I congratulate my noble friend on tabling the amendment. The proposal builds imaginatively on the 1911 Parliament Act which sought to retain the hereditary peerage until some popular and democratic new House was put in its place.

Considering Clause 2(3), it is hard to understand how "provides to the contrary" could mean "provides a nominated substitute for the transitional House." In my submission, "provides to the contrary" must mean some kind of elected House although not necessarily a wholly elected Chamber. The great value of my noble friend's amendment is that it challenges the Government to come up with their own ideas about stage two. As we have done on many occasions from this Dispatch Box, I again invite the noble and learned Lord to speculate a little further than he has been prepared to do on what an Act of Parliament which "provides to the contrary" might contain.

The Lord Chancellor

The noble Earl, Lord Dudley, expressed a little concern at the outset of his observations that my taking a deep breath might signal that I was running out of energy. I can assure the noble Earl that I was not. It is always my practice to take a very deep breath in order to steady myself for whatever may be about to come from the noble Earl.

The amendment strays into matters which are not the proper territory of the Bill. The composition of a fully reformed second Chamber is an issue for consideration by the Royal Commission which we have set up and which is due to report by the end of the year. We have said time and again that we are not willing to pre-empt the deliberations and findings of the commission. That would not be right. It would be equally wrong for the Bill to seek to pre-empt the recommendations of the Royal Commission by enshrining a particular outcome in statute.

I was asked earlier to give an assurance that the Bill did not seek to cut down the terms of the remit to the Royal Commission contained in its terms of reference. I gave that assurance subject to the obvious recognition that the Royal Commission would wish to make recommendations that would promote a smooth transfer from this House to a fully reformed House.

Conversely, it would be wrong for this Bill to seek to pre-empt the commission's recommendations by attempting to enshrine in statute a particular outcome for stage two. That would not be consistent with the consultation process on which the Royal Commission is currently engaged. It is a wide-ranging exercise which aims to seek the views of the public, not just those of politicians.

The White Paper makes it perfectly clear that an elected House is one of the options that the Royal Commission ought to consider, but there are other options, too, which are highlighted in the White Paper. Contrary to various recent press reports, the Labour Party's own evidence to the Royal Commission did not express a preference for an appointed second Chamber over an elected one. The evidence set out the underlying principles which we believe should determine the nature of the second Chamber. It should be representative in the sense that it should represent the groups which make up today's society and the nations which make up the United Kingdom. It should be distinctive from the House of Commons both in its function and composition. And it should have an independent element which brings experience and expertise to this House. Shortly put, it should be a House of all the talents of the nation and it should ensure that no one political party has an overall majority.

However, these are all matters for the Royal Commission. It will recommend what in its view the actual composition of the reformed House should be and how it should be chosen. Meanwhile, we could not conceivably accept the amendment because it strays substantially into stage two.

10.30 p.m.

The Earl of Onslow

Will the noble and learned Lord then explain why there is a necessity for the bracketed words? They seem to me totally tautological. Any Act of Parliament can say what it likes and it can enact what it likes when it likes. That is called the doctrine of supremacy of Parliament. Therefore, it is totally tautological to have the words in brackets in the amendment.

The Lord Chancellor

In a sense, the noble Earl. Lord Onslow, is right. Until an Act of Parliament provides "to the contrary" is probably unnecessary because an Act of Parliament can always provide as it chooses for the reason he gives. However, in my frequent exchanges with the noble and learned Lord, Lord Simon of Glaisdale, who unhappily is not with us tonight—

Noble Lords

He is!

The Lord Chancellor

He is here! I have made a double error because I may be encouraging him to rise to his feet on a subject dear to his heart. I have occasionally been lured by the noble Earl, Lord Onslow, into accepting that there is a possibility that words are surplusage and that would be a red rag to the noble and learned Lord, Lord Simon of Glaisdale, were he not so restrained at this hour. But the reason for the emphasis in "to the contrary" is to make plain to all concerned that what is provided for by the accepted Peers is a transitional, temporary arrangement.

Earl Ferrers

The noble and learned Lord, Lord Simon of Glaisdale, may feel restrained at this late hour, but such restraint does not prevail itself upon me. The noble and learned Lord the Lord Chancellor is always enormously persuasive. He said earlier that he could not conceivably advise the Committee to accept the amendment. I wonder whether he could tell us what amendments he could conceivably advise the House to accept, because it seems that the briefs which he and his Front Bench team have given themselves are to accept no argument and accept no amendment.

It is pretty depressing, after seven days of debate full of minutiae of great importance, irritating though they may be to the Government Front Bench, to be told that it is impossible to accept any amendments and they are completely wrong. We have already seen the Government go through a tautological hoop of first saying that the Bill will reject all hereditary Peers and then accepting 100. Not everything therefore can be right. What makes the noble and learned Lord so convinced that everything the Government have said is right and everything the Opposition have said is bound to be wrong?

The Lord Chancellor

I have heard nothing that has persuaded me!

Earl Ferrers

Presumably his brief is, "Accept no amendment; accept no argument". Would the noble and learned Lord care to say whether that is so?

The Lord Chancellor

That is not so.

The Earl of Dudley

I was careful to say that I was not pre-empting the Royal Commission and careful to try to direct my words not towards the problem of an elected second Chamber, but to the problem of the terms on which the hereditaries remain in this House. I do not believe, in that respect, that I was straying beyond any bounds, even those set by the "Cranborne convention/Weatherill amendment", which is now Clause 2.

However, it is late at night. I understand that we are in a period of armistice and that what we say is said for effect rather than for result. In that sense; knowing that the noble and learned Lord and I share one thing in common, of which he may not be aware—our mothers were born in Sutherland—on that spirit of hands across the ocean, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Onslow moved Amendment No. 30:

Page 1, line 14, at end insert ("unless, by instrument of disclaimer delivered to the Lord Chancellor, he disclaims the right to sit and vole as a member of the House of Lords.

(3A) The holder of a peerage who exercises the right of disclaimer conferred by subsection (3) shall retain rights of access to, and use of, the House of Lords and any premises occupied by the House.

(3B) If the holder of a peerage exercises his right of disclaimer conferred by subsection (3), arrangements shall be put in hand to replace the vacancy created within twenty sitting days.")

The noble Earl said: My mother was not born in Sutherland. My grandmother always said that she was born on the groundsheet of a grenadier, but we shall leave that aside.

I sincerely hope that this amendment is not incorporated in the Bill. My purpose in tabling it is solely to receive information from the Government and to put down markers for the Standing Orders about our successors. We must assume that the Bill will last longer than the Government said it would. I do not necessarily believe that it will, but we must assume that it will and act as if it will.

Therefore, there must be a method whereby hereditary Peers can not only be replaced but are able to resign if they become old, incapacitated or totally disreputable. It surely is a sensible arrangement that somebody should be able to resign from a position of authority or privilege. Life Peers cannot do that, but they need not attend. However, because of the representational element of the 90 "self-elected" Peers, I suggest that there must be arrangements for them to be able to resign and be replaced.

I have hardly read the details of my own amendment. I went to the Public Bill Office and explained what I wanted to do and the parliamentary draftsman wrote it down in legal jargon. All I ask is that when we come to the Standing Orders that recreate the re-electoral principle, we build in a provision on ability to resign. I beg to move.

Lord Strathclyde

I am rather attracted to the amendment although I do not suggest for one moment that my noble friend should press it. I entirely accept his reasoning. However, I can see no fundamental objection to the principle that there should be a right to disclaim the right to sit and vote. After all, a hereditary Peer already has a right to disclaim under the great reforming Tory legislation of the late 1950s and early 1960s, which, among other things, brought life Peers to the House of Lords. However, as I am sure noble Lords are aware, that right is circumscribed at present. It may be exercised only within a given period and involves the surrender of title outside this House as well as privileges within it.

The new Weatherill peerages set up a new system and it is entirely reasonable to look at the rules. I believe the noble Lord, Lord Rodgers of Quarry Bank, said this afternoon that he does not like the idea of older elected Peers staying on to preside on the Woolsack when they are not able. The obvious solution to that is to give them a voluntary opportunity to retire. It does not give them the right to sit and vote; it does not affect the numbers game and therefore there should be no issue of principle.

I understand that the Labour Party is not in favour of an age limit, and nor are we. This amendment could well deal with that issue in so far as Peers can be replaced when they have got to the stage when they no longer wish to come to your Lordships' House. Why do not the Government accept the principle underlying the amendment? Why not let us modernise to a small degree and allow this section of the House, which is after all elected, to be a working element and therefore to retire? I shall be intrigued to hear what objection the noble and learned Lord has to what is an imaginative idea.

The Lord Chancellor

The central point is that this suggestion arises in the context of this Bill, and what it comes down to is that there should be a right to disclaim at any time so as to give someone else a shot, while at the same time the Peer who disclaims retains his club rights. The question of whether somebody who has voluntarily requisitioned the membership of the House should have a statutory right of access to the facilities of the House should be a matter for the House itself.

The Earl of Onslow

To talk about "pub" rights when we are talking about something much more important is not acceptable.

The Lord Chancellor

It is in the amendment.

The Earl of Onslow

I accept that it is in the amendment. But it is trivial compared to the issue. of, let us say, an elected Peer becoming involved in a major drug scandal or armed robbery. I know the idea of a doddery old marquess holding up Barclays Bank stretches the imagination, but it cannot possibly be right for him to continue; it would surely be right for him to have the ability to resign. If he is not allowed to go in the bar afterwards I do not mind; that was put in by the draftsman. That is not the main issue at stake; it is the right to resign. I am sorry to get mildly irritated with the Lord Chancellor. I have never done that before and will try never to do it again.

The Lord Chancellor

I must try not to encourage the noble Earl to do so. But he must stand up for the amendment he tabled. He must either say that he does not stand by it or he must support it. If I may remind him, he said that he wants a power, by instrument of disclaimer delivered to me the Lord Chancellor, to be able to disclaim the right to sit and vote as a Member of the House of Lords.

But the matter does not stop there. He goes on straightaway to say that, The holder of a peerage who exercises the right of disclaimer … shall retain rights of access to, and use of, the House of Lords and any premises occupied by the House". I apologise if it caused offence to describe them as "club" rights but that is an apt description which should not cause offence to the noble Earl. Whether there is something to be said for that will be a matter to be considered by the Committee.

It appears to me today that the position is that life Peers are Peers for life. I take the view, as at present advised, that the same position should apply to hereditary Peers as applies to life Peers; that is, that they should be Peers for life. It is on that basis that I have taken the view that the agreement made between myself and the noble Viscount, Lord Cranborne, entailed—though I do not recall that we actually said it in terms—that an excepted Peer would remain until phase two or for life, in the sense that it would be a position for life if not previously brought to an end by phase two. That appears to me to be an entirely consistent position and I do not think it is really timely to bring up an issue of disclaimer in this context

10.45 p.m.

Lord Lucas

Is it not true though that life Peers are not representative Peers and that other groups of Peers in this House, notably the bishops and the law Lords, have different methods of being appointed and of continuing in office which accord with their own particular function and status in this House? It does not seem to me to be outwith the way in which this House operates at present that the hereditary Peers should have a different basis that they should be able to resign in order that the hereditary Peers who are active in this House can properly represent and carry out the function which, under the agreement which the noble and learned Lord the Lord Chancellor has made, they are supposed to do.

The Lord Chancellor

I regard hereditary Peers as representative of the hereditary peerage and I regard life Peers as representative of the country.

Lord Monson

Would the noble and learned Lord not agree that if a life Peer who was appointed, say, 10 years ago, feels no longer inclined to attend very often, he need have no feelings of guilt, but if an elected hereditary Peer feels the same way he is bound to feel guilty because he will not be doing the job to which he was elected? There is a difference between the two.

Earl Ferrers

How can the noble and learned Lord the Lord Chancellor say that life Peers are representative of the country?

The Lord Chancellor

The life peerage is representative of the whole country and the hereditary peerage owes its position to birth and the excepted Peers will be representatives of the hereditary peerage and no-one else.

Earl Ferrers

But life Peers are representative of the people who appointed the life Peers and nobody else.

The Lord Chancellor

No.

The Earl of Onslow

This wonderful argument about who is representative is arcane, to put it mildly. The idea that the life Peers are representative of the country does not hold a great deal of water. They were appointed for exactly the same reason as we hereditary Peers were over the centuries: some for merit, some for chicanery, some for money and some for all the other jolly things for which we have all been appointed to this House.

Your Lordships know perfectly well that I am a reformer and want this House to be properly reformed and to fulfil its function, but there is a fundamental difference in the representative limited part of the hereditary peerage. Those numbers are limited by statute. If somebody is doing 15 years for armed robbery, to put it at its ludicrous extent, he cannot come here and exercise his hereditary rights or his duties and he is therefore depriving somebody else. It is that point. A life Peer not doing his duty is not depriving your Lordships' House of a Member and it is that point on which I really wish to concentrate.

Of course it should not go into the Bill and of course the legalese, which I was far too idle to read, about club rights may be superfluous, and of course the Lord Chancellor, being a brilliant lawyer, needless to say put his teeth into that because all good lawyers try to avoid the issue which is difficult for them. They find an issue which is easy to cope with. That is why he was one of the stars of the Bar and that is why he is the noble and learned Lord Chancellor. I stand in awe of his brilliance and his imagination.

He has, however, still ducked the question of how we get round the disqualification by crime, dishonour, age or incapacity of one person who is holding a place which somebody else could fulfil. I totally accept that this is an issue for the standing orders. I hope we can bring it up again in the standing orders but, with that, I am converted by the noble and learned Lord's brilliance and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Lord Strathclyde moved Amendment No. 32:

Page 1, line 17, at end insert— ("( ) If a vacancy arises by reason of the death or disqualification of an elected hereditary peer excepted from section I 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 a by-election conducted in accordance with provision made by virtue of this section.")

The noble Lord said: The purpose of this amendment is both direct and simple. It is to provide for the hereditary Peers elected by this House to be representative Peers in this Chamber, if and when the Bill becomes law, to be replaced at by-elections. It does not lay down the procedures for those by-elections—although that was done. and done in statute, for the Irish representative peerage, even down to the method of breaking of a tie, which was achieved by the Clerk of the Parliaments drawing a name from a glass jar placed on the Table of the House.

There is thus nothing impossible about either envisaging or enacting a by-election system. It has been done before and it operated successfully for generations. The Government did not have to invent or even re-invent the wheel; they could have dusted down what we have. But they did not do so. Some of your Lordships may have found that, in itself, to be significant.

However, I do not propose to ask that this should all be set out in statute. I recognise the will of the Government and, perhaps, the will of the House, that much of the detail may be provided in Standing Orders, although I have never hidden the belief of these Benches that more should be on the face of the Bill. I am content to allow much of the details of the by-elections to be carried through in our discussions on Standing Orders. However, I feel very strongly that the principle of by-elections should appear on the face of the Bill. It is the proper way to provide for membership of a House that may have to endure for a long time.

It has been said before in our debates—and, indeed, by the noble and learned Lord the Lord Chancellor—that we do not need to think through the long-term future of the House. It is said that there will be a second House of Lords Bill before too long, although it is impossible to see such a Bill being presented before the end of this Parliament. Therefore, it is said that it is reasonable to allow hereditary Peers to be replaced on their deaths from the preference list that will follow the first election when this Bill becomes law.

In my amendment, I have come to meet the noble and learned Lord and to accept that viewpoint for the immediate future. I judge that that may be for the convenience of the House. I have even gone so far as to allow for one further Session at the beginning of the next Parliament when this top-up system may be used, but that will take us to the year 2001 or perhaps even to 2002. However, we cannot go on topping-up the House on the basis of elections held three or four years previously. In time, some of those Peers may become less qualified in the eyes of their colleagues, disinclined to serve or be otherwise engaged. Under these proposals, the government of that time, whether Labour or Conservative, will have an opportunity to bring forward reform proposals over three or perhaps four parliamentary Sessions. After that, I believe that the matter needs to be set on a proper and lasting footing.

We are not dealing here with a short-term fix; we are seeking to legislate in proper order. Legislation for the membership of a Parliament must be securely and clearly based and, in subscribing to these arrangements, the House must ensure that it is not open to be tampered with for the passing advantage of any party or combination of parties.

I do not believe that this should be an issue of principle between us and the noble and learned Lord. I am sure that it ought to be possible to find a way forward. Indeed, I should point out to him that there can be nothing that would more convince hereditary Peers on these Benches of his good faith than that he should open his mind further in this respect.

We heard today that the Liberal Democrats openly want to end the Weatherill peerage; they want to see it wither away. The House is not so full of well-wishers towards a representative hereditary peerage that we must rely only on the good faith, which I, for one. wholly accept, of the noble and learned Lord. However, if it is left only to Standing Orders, the fear is that the latter may be changed—and changed far more easily than primary legislation—by a new majority in an interim House and that there would not be the kind of security and stability that arrangements for the membership of this House require.

I know that the assurances of the noble and learned Lord are given in good faith, but I also think that we need more. I hope that he will be able to be even more positive in his reply than he has been to some of the previous amendments discussed this evening. I conclude by re-emphasising what I said at the beginning; namely, that we attach a great deal of importance to this amendment. It can come into force only when such time has elapsed that there is no stage two Bill. It is therefore in the hands of the Government—under the control of whichever party—to decide whether or not those by-elections should take place. I beg to move.

Viscount Cranborne

I have often, and gratefully, alluded during the course of our debates on this Bill—some people may feel they are endless debates—to the extraordinarily agreeable atmosphere which pertained during the course of the negotiations between the noble and learned Lord and myself what seems aeons ago. The noble and learned Lord was kind enough to suggest that the joint memory—agreeable as it is—that he and I have of those negotiations is the right record of the details of the agreement. I am flattered that he should feel that I am adequate witness to that. I hope that he will feel equally flattered when I say that to this moment he has entirely accorded with my memory of what we discussed.

Therefore I venture with some trepidation into making an assertion. I think that we both felt that it was impossible for us to cover every detail of the mechanics that would flow from this agreement and it was for that reason that we suggested that a committee of representatives from the Government and from all groups in this Chamber should convene to consider the detailed mechanics under the guidance of the Clerk of the Parliaments. I think that the entire Committee is familiar with the conclusions that that group reached.

My memory—I hope that the noble and learned Lord will be able to confirm this—is that during the course of our conversations we did not cover the question of by-elections until a late stage indeed. I remember that I suggested to the noble and learned Lord that the matter of by-elections was important. The noble and learned Lord poured what I shall describe as a modest amount of cold water on that suggestion. I hope that he will also confirm that I emphasised to him that I attached great importance to this matter for exactly the reasons that my noble friend the Leader of the Opposition has suggested. If we subscribe—as I certainly do—to the theory that the principal reason for the existence of the 92 hereditary Peers in the transitional Chamber is that it is a continuing incentive for the government of the day to progress to a full stage two reform, then evidently it is of interest to maintain that full number so long as a full stage two reform has not taken place.

As my noble friend Lord Strathclyde made clear, it does not seem practical that we should hold by-elections if a full stage two reform takes place within the timescale that the Government have suggested they would like. I think we all accept that that is fully what the Government intend. However, we also know that governments can conceivably and very occasionally—even this Government perhaps—find themselves blown off course by events, pressure and perhaps even by successful oppositions. Were that to happen, it might just be possible after the next election for the new Conservative government to be blown off course as well. Therefore, I would suggest that my noble friend's amendment is not a partisan amendment; it is a further incentive for whatever government take office after the next general election. Since my party is now fully committed to the cause of reform, a little sand in their shoe would be at least as welcome as the sand we are now suggesting would be welcome in the Government's shoe as well.

Therefore, it seems entirely reasonable, if we are to make sure that the 92 fulfil their primary purpose and to act as an incentive for reform for whatever government are in power after the next election, that there should be some provision for maintaining their number in a satisfactory manner over and above the proxime accessit which is at the moment suggested by the noble and learned Lord. That is perfectly splendid in every way for the short time scale that the noble and learned Lord and the Government have in mind, but it is not so satisfactory if any government are blown off course.

If my memory of our conversations is accurate—and I hope that the noble and learned Lord will agree that it is—I hope that he will look very seriously at the suggestion of my noble friend the Leader of the Opposition, if only to ensure that whatever government are in power realise that so odious, despicable and unacceptable thing as a hereditary peer should not sully the House of Lords for longer than absolutely necessary.

11 p.m.

Lord Richard

Not for the first time, I am grateful to the noble Viscount, Lord Cranborne, for what he has to say. He has lifted a little at least of the veil covering the agreement between him and my noble and learned friend the Lord Chancellor. From what he said it is perfectly clear that there was no agreement between the two of them as to the issue of filling vacancies by by-elections.

Viscount Cranborne

Obviously, I was not clear, as usual. There was absolute agreement about the question of filling a vacancy from the proxime accessit to start with. Where we did not agree was on what was to happen if by some misfortune stage two was delayed.

Lord Richard

I think it is my turn to apologise. I obviously did not express myself very clearly. As I understand it, there was no agreement about the possibility of holding by-elections from within the constituency of all the hereditary Peers in the event that after the initial stages of the arrangement it should continue and there should be a vacancy caused by death or disqualification. I think that is right, and I think it is what the noble Viscount has said.

Two possible alternatives have been adumbrated. One is that the next in line should take over and the other is that there should be a by-election. The first seems to me to have all the merits, and the second seems to me to have an immense number of demerits.

Let us postulate what the noble Viscount was hinting at. Suppose that this arrangement is still in existence, because a government have been blown off course, or whatever phrase one wishes to use, in seven, eight or nine years' time. What is seriously suggested is that when one of the 90 representative Peers, as they are now quite clearly going to be called, dies, the other 660 will be wheeled out, brought back and asked to judge, presumably in the electoral colleges of their own parties or the Cross Benches, who should replace the individual. After such a period, or a decade even, of absence from the House of Lords, they would be the last people who could possibly judge the worth of who should take over.

The noble Viscount shakes his head. He will know, and my noble and learned friend knows full well, that I am not exactly enthusiastic about the Cranborne/Weatherill/Irvine compromise, arrangement, concordat or whatever it has been called in the course of this debate. But I accept it; I accept it as a matter of convenience between the parties for the purposes of getting legislation through.

However, I am bound to say the idea that somehow to wheel out all the hereditary Peers, as someone said in one of our earlier debates, dust them down, put them in their Bath chairs and wheel them in to take a decision as to who should now become the new representative seems to me to be absolutely incredible.

Viscount Cranborne

I apologise for interrupting the noble Lord for a second time but we dust down the electorate once every four or five years in exactly the same way.

Lord Richard

With great respect, the electorate outside has had the opportunity of seeing what the Government have been doing for five years. It would seem to me that somebody who has not been inside this House for a period of five, six, seven years or a decade, will really not be in the best position to decide precisely who should take over to fill the vacancy.

This is meant to be a temporary arrangement. That is the basis upon which many Members on this side of the Committee and I have accepted it. If it is a temporary arrangement, it seems to me that the best way to deal with it is by having one election; all groups have their electoral colleges and decide who their representatives are to be; and that election having taken place, the next on the list moves in if there is a vacancy by death or disqualification.

The Earl of Onslow

Peradventure this temporary arrangement lasts for 10 years. Let us then assume that of the 10 runners-up, seven are dead and three are dotty.

A noble Lord

We will take the three!

The Earl of Onslow

You will take the three, I accept that. Peradventure that arrangement lasts not for 10 years but for 20 years. It is no good the noble Lord raising his eyes towards heaven and saying that it will not happen. We must assume that it will happen, not because we wish it to happen but because we must make certain that what comes into place is workable. We all assume that it will be a temporary House but it must be a workable temporary House. The last temporary House has lasted for 88 years. Every single Member of the 1911 House of Lords is dead. If it lasts slightly longer, how on earth are we to manage that arrangement?

Lord Richard

Perhaps I may answer the noble Earl. He asks me what will happen. It is quite a simple proposition. He forgets that the Government have the right, and, indeed, the duty to attempt to legislate and that Parliament can pass laws. If there is a difficulty in six, seven or 20 years' time, that is the time I would expect a government to look at that problem; to acknowledge it is a real one; and to do something about it. Until that time, it should be treated as a temporary arrangement—and frankly, a somewhat unwelcome temporary arrangement—and accepted as such.

The Earl of Onslow

It seems to me a ridiculous proposal to say that when there is a difficulty which is foreseeable now, we duck it and we should only do something if the problem arises, as it will inevitably, in 20 years' time. With respect, that is not an intelligent proposition.

I want the place to be reformed and I want it to have real influence and power. But I want to make certain, as far as I possibly can, that the interim House is a stand-alone interim House. If there is no method for replacing those people, it is deeply flawed as an Act of Parliament. The problem is visible now and. therefore. we should address it now. We should not say, "Oh well, it will go away because it is inconvenient". That is not an intelligent way to act.

Lord Mackie of Benshie

Does the noble Earl not agree that if the 1911 Act had in it the same sort of provision for a successor not to succeed, then the whole problem would have been resolved and now we should not have any hereditary Peers? Therefore, there is a certain advantage to that secondary method.

The Earl of Onslow

It is not for me, as a Tory, to enter into the mind of Lloyd George. That is perhaps better coming from the Benches from which the noble Lord has just spoken.

Lord Desai

One the absurdities of these fanciful scenarios of the transitional House lasting eight, 10 or 15 years is a very simple arithmetical one. Perhaps I may illustrate. There are only 18 Labour hereditary Peers; there will not be an electorate very soon. I know that some of my noble friends are young and hearty but, as we are drawing hypothetical pictures, it is conceivable that the whole thing will fail. Two Labour Peers must be elected and we may not reach the 90. The Act says that there has to be two hereditary Peers from the Labour Party. There may not be two left. Then what will we do?

As my noble friend Lord Richard said, when we come to those difficulties we will pass another Bill. We will have to trust the Parliament of the day to do it right. It has always happened that way; there has never been eternal legislation.

The Earl of Onslow

The Bill does not say anything about numbers of people; it just says 90. If one reads Clause 2, one will find that it says nothing about that at all. If it lasts longer than only next Wednesday, we have to make certain that it lasts properly. That is all I am suggesting. If the Government cannot see that that raises difficulties, God help us; that is all I can say.

Lord Coleraine

The arguments advanced by my noble friends are what the noble Lord, Lord Peston, referred to earlier as "ingenious arguments"; that is to say, if I understood him, that they are designed mainly to keep alive the faith of our Benches in the everlasting nature of the Weatherill amendment. That is something that my noble friends are perfectly entitled to believe. It seems to me that there is a possibility that at the end of this Parliament we shall not have had a second Act and the Weatherill amendment will not have been spent by then. It seems to me to be perfectly sensible to deal with that situation when it arises. We should then follow the advice in the Memorandum of the Clerk of the Parliaments that when the scheme exists for such a length of time that the standing order provision becomes unworkable, the House will be able to consider alternative methods of filling vacancies and amend the standing order then if necessary.

Lord Elton

The noble Lords, Lord Richard and Lord Desai, and now my noble friend Lord Coleraine, have all said that we will be able to deal with this difficulty when we arrive at it. The difficulty will be that we have arrived there because it has been impossible to legislate. The difficulty will not exist if phase two comes in. Phase two will only fail to come in if Parliament has not been able to legislate. To say the difficulty will be resolved by legislation therefore flies in the face of logic. Parliament will already have not been able to legislate or the difficulty would not have arisen.

I do not want to prolong the debate. It seems to me that there are two merits in the Weatherill amendment. One is that it perpetuates a motive for successive Governments to bring in phase two; the other is that when phase two comes in there will be an element in the House, which is neither appointed nor elected, to put its four-penn'orth into the argument, which will be a valuable thing to have. I believe that that is generally accepted.

Noble Lords opposite suggest that it is not necessary to provide for the possibility that Weatherill will have faded because all candidates will have been exhausted by the effluxion of time. The Government opposite have expressed their alarm at aeroplanes travelling a great distance to London, intending to arrive at Heathrow, with insufficient fuel on board. They are alarmed because the aircraft might not have been able to land there and would have had to go somewhere further off. That is exactly the principle we ask the Government to apply to this Bill. There should be sufficient fuel on board in the form of elected representative hereditary Peers, even if they cannot touch down in the three to seven years envisaged. That seems to me an entirely reasonable proposition. I hope that the Government will give careful attention to my noble friend's amendment.

11.15 p.m.

Earl Ferrers

My noble friend Lord Elton said that he did not wish to prolong the debate for very much longer. I do not wish to prolong it for very much longer either other than for the duration of the modest speech which I propose to make if your Lordships will be kind enough to listen to it.

I think that the noble Lord, Lord Richard, has done the Committee a great service because he has showed what a total farce the whole position is. The noble Lord asked whether one could imagine a situation whereby in seven, eight, nine or 10 years' time all the hereditary Peers would be wheeled out—people who have not been here at all—to vote for their new representatives. That is a totally farcical position. But it is equally farcical to say that after that length of time one ought to choose from the runners-up of an election that happened 10 years before. That is a farce.

My noble friend Lord Onslow makes some remarkable speeches from time to time. Some of them are sensible and some of them are less so. This evening he was in sensible mode. He is quite right: if you can foresee something, for goodness' sake, legislate for it; do not wait to see what happens. The noble Lord, Lord Desai, said that when there is a real problem you can legislate for it and that if you legislate now, you make a mess. That is what has happened to the Government with this Bill. They are making a mess of it because they are legislating in a hurry. If we see something that could go wrong, for goodness' sake, let us put it right now and not wait for the thing to blow up in our faces in 10 years' time.

Lord Lucas

Perhaps we could have hereditary representatives of the hereditary peerage.

The Lord Chancellor

Having listened to the debate, I think the key question to ask is whether this is really a transitional measure or whether on its face the Bill should give effect to some principle about a continued right on the part of the hereditary peerage outside the House to be associated with decisions about who in the future may be a Member of the House.

Noble Lords on the Opposition Benches hope—there is no shame in this—that the Government will be blown off course and that what is intended to be transitional will prove to be permanent. That is why they stray into the language of saying that the 90 excepted Peers should stay on as representatives of the hereditary peerage and therefore that the entire hereditary peerage should have a continuing role in deciding who should fill the vacancies. That is what underlies these arguments. I have to say to noble Lords that such an approach could not find favour with us and certainly would not find favour with the other place.

I acknowledge that the noble Lord, Lord Strathclyde, has revised his earlier proposal and has conceded in his new amendment that the top-up system should not last just for the remainder of this Parliament but for the first Session of the next as well. I take the point made by the noble Lord, Lord Elton. We have to consider all possibilities and we have to start from a premise that there will be no stage-two legislation—for if there was, this problem would not arise; that is to say, if the stage-two legislation came within the time-scale demarcated by the noble Lord, Lord Strathclyde, in his amendment for the top-up system to continue to apply.

The noble Lord, Lord Coleraine, indicated that the Procedure Committee has given its answer, which is that, if the scheme exists for such length of time that the Standing Order provisions become unworkable, the House will be able to consider alternative methods of filling vacancies and to amend the Standing Order if necessary. The House could, for example, take the view that the relevant hereditary group in the House should elect the replacements itself. That would be a perfectly tenable view to take. Another view is that, if the whole of the hereditary peerage was in the relevant group—if that could be identified—after ceasing to subscribe to a party Whip because hereditary Peers were excluded from the House, that alternative might also be tenable. My present inclination is to express that view, which is consistent with much that has been said before by others.

The more that we put on the face of the Bill, the more this. House throws itself at the mercy of the other place. But if we leave these matters to standing orders to be dealt with as circumstances and need arise, then the discretion to determine the most effective method of replacements, should it prove necessary, remains with this House. Therefore, that is the route down which I continue to urge the Committee to go, and not to tempt the other place by seeking on the face of the Bill an apparently permanent role for the hereditary peerage excluded from this House to determine in the future who may sit in this House.

Lord Strathclyde

What has surprised me in this short debate on a rather humble amendment is the degree of excitement that it has caused to noble Lords opposite. The situation as I have always understood it is that they are committed to a two-stage process, which wild, in its final stage, lead to a more representative House; and that the stage one House, including the provisions of the Weatherill amendment, will cease to be. I take it as a matter of trust that that is what the Government want. I believe it and accept it.

But we are being asked to legislate. All I am asking is that we should do something which, as noble Lords opposite accept, will never need to happen because they will introduce their stage two Bill. So how can they possibly object to this humble and helpful amendment, which we should like to see in the Bill, and which they need never see in action because they will have proposed their stage two Bill. The noble and learned Lord the Lord Chancellor has failed to answer that question.

The noble Lord, Lord Richard, said it was ridiculous to assume that in seven or eight years' time the hereditaries could be asked to elect one of their number, that they will not have seen anyone in action. But the onus would be on them to keep in touch and to discuss among themselves whom they would like to represent them. As my noble friend Lord Ferrers said, is that not a far better system than relying on an election process that will have taken place seven or eight years earlier?

The noble Lord, Lord Desai, says that we are all painting fanciful scenarios. But none is more fanciful than the one he himself paints. The noble Lord said that the Labour Party had only 18 hereditary Peers, and asked about the future. At that stage, the Labour Party may well have attracted the support of more hereditary Peers, who are well represented on the Benches opposite. There is no reason why, in the future, hereditary Peers may wish to take the Labour Whip outside this House so that when one of the representative Peers dies they can stand as a replacement. It shows little faith on the part of the Labour Party if it does not believe that anyone will wish to support it in the future.

The noble and learned Lord the Lord Chancellor proposes an even more intriguing prospect. He says that it may well be that we should allow the representative hereditary Peers to be the electorate to choose Peers outside this House. That is a perfectly viable alternative, although not one to which I subscribe.

The point is that we have an opportunity to prevent uncertainty. Surely one of the tasks for Parliament is to make sure that we have got rid of uncertainty. This is a valuable opportunity, a valuable method of reducing uncertainty. That is why when we return at Report stage, having considered the reply from the noble and learned Lord the Lord Chancellor in more detail, we shall seek the opinion of the House and seek to provide for violations in the future. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 and 34 not moved.]

Lord Strathclyde moved Amendment No 35:

Page 1, line 19, leave out ("Clerk of the Parliaments, whose certificate") and insert ("Committee for Privileges of the House of Lords, whose decision")

The noble Lord said: This is a humble amendment, even more humble than the last one. What we are trying to do here is to provide, on page 1, line 19, that it is the Clerk of the Parliaments who issues a certificate which shall be conclusive as to who is to be elected. I have no problem whatever with the Clerk of the Parliaments. but I wonder whether it is right that the House should put him in the position of deciding who should and who should not be elected to the House.

I propose that it should be the Committee for Privileges of your Lordships' House that makes the decision and the decision is conclusive. It is what happens at the moment with disputed hereditary peerages. All hereditary peerages go through the Committee for Privileges, therefore I hope that this is a nice cleaning up amendment which the noble and learned Lord will be able to accept, without my having to come back at a later stage. I beg to move.

The Lord Chancellor

I am not convinced and I rather think the Standing Orders as at present drawn have got it right. I am not convinced that the Committee for Privileges is the right body to consider the mechanics, the nuts and bolts of the operation of Clause 2 and the Standing Order.

The committee deals and will continue to deal with the question of whether someone is a. hereditary Peer at all. That is a proper function for the Committee for Privileges. These proposals will have no effect whatever on the traditional jurisdiction of the Committee for Privileges.

Paragraph 6 of the draft Standing Order provides that the Clerk of the Parliaments may refer to the Committee for Privileges any perceived or alleged malpractice in the electoral process. That seems to me to get the balance right between the two committees. I do not begin to be convinced that the minutiae of the routine electoral procedures should be a matter for this most senior of our committees, the Committee for Privileges.

It is necessary, in the interests of efficiency, to work out what is the proper role for the Procedure Committee and what is the proper role for the Committee for Privileges. It is perfectly sensible to put mechanical matters, nuts and bolts matters, validation matters in the hands of the Clerk of the Parliaments and provide that the certificate of the Clerk shall be conclusive. He will be responsible for the electoral arrangements, but he can refer any question of propriety to the Committee for Privileges. There is therefore already a role for the Committee for Privileges in the process when issues arise which are related, akin to its present functions.

But Clause 2(5) has three purposes which seem to me to be perfectly sensible. First, it allows the Clerk to administer the elections and, as the returning officer, to certify who has been elected. I cannot see what on earth that has to do with the Committee for Privileges.

Secondly, it gives a means by which an excepted Peer can prove that he is excepted. That is a procedural matter, it is a matter for the Clerk. Thirdly, it prevents any court or the House from questioning whether an excepted Peer has been excepted. It provides a means to deal largely with routine matters which are not suited for the Committee for Privileges, but the Committee for Privileges is brought in when it is right that it should be troubled. As at present advised, I believe that the Standing Orders have got the balance right. It cannot be right that everything should be given to the Committee for Privileges in an area that is utterly inappropriate for a committee of that seniority. I hope that the noble Lord the Leader of the Opposition will consider what I have said and, in the light of it, decide not to press his amendment either now or later.

11.30 p.m.

Lord Strathclyde

All I seek to ask the noble and learned Lord is whether, if a Peer disagrees with a decision of the Clerk of the Parliaments, he or she can take it to the Committee for Privileges. Is that precluded by virtue of subsection (5), which provides that the decision of the Clerk of the Parliaments is conclusive? Is there a role for the Committee for Privileges to take a view or is the decision of the Clerk of the Parliaments final, in which case it puts him in a slightly awkward position? If he believes that there is some doubt but decides not to send it to the Committee for Privileges that gives no right of appeal to a Peer who feels hard done by. If the noble and learned Lord does not have an answer to that question now, perhaps he will give it consideration before we return to the matter at Report stage.

The Lord Chancellor

I shall certainly give it further thought. It is not contemplated that there should be a right of appeal from the Clerk of the Parliaments to the Committee for Privileges but that there should be a reference by him to that committee where it appears to him that there is an allegation or suspicion of malpractice or something of that kind. But it is intended that purely administrative matters should be left with the Clerk of the Parliaments for the last word without any right of appeal. If it is suggested that for some reason the Clerk of the Parliaments cannot be relied upon in this area and therefore there should be an appeal to the committee—which would have to be defined in some way; otherwise the Committee for Privileges would just constitute a pure rehearing—we would be willing to give thought to it. However, as at present advised, we believe that the balance in the Standing Orders is about right. If a credible proposal is made falling short of a complete rehearing in all cases by the Committee for Privileges, we shall give thought to it.

Lord Strathclyde

I shall study that response carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Pearson of Rannoch

It is always daunting to address your Lordships' House, especially late at night, but it is even more frightening when one proposes that a clause which the House has approved by 351 votes to 32 a fortnight ago should not stand part of the Bill. Yet it seems to me that the so-called Weatherill amendment, or Clause 2 of the Bill as it now is, has so many defects that an attempt must be made to remove it and replace it with something very much better at Report stage. After all, although the vote was decisive it was not a very big vote for an issue of such constitutional importance. Some 775 Peers either abstained or did not attend the House that day.

Also, the clause has been recommitted for a whole day's debate in Committee today and so presumably can be amended, even radically. The trouble is that, as we have heard, the deal which gave birth to the Weatherill amendment was a compromise. Compromises by their nature have a habit of not suiting everyone, as the noble and learned Lord the Lord Chancellor has reminded us. But a compromise becomes a bad compromise when it does not suit anyone; and it becomes a very bad compromise when it is actively disliked by everyone, which is what the new Clause 2 manages to achieve. Worse still, and not surprisingly, the new clause does not set up the best possible interim House, which is surely what the national interest requires us to attempt to do.

Part of the problem lies in the provenance of the deal itself. As the noble and learned Lord the Lord Chancellor confirmed today, the Weatherill amendment, now Clause 2, is the result of a private deal struck with the Government and my noble friend Lord Cranborne when he was our Opposition leader in your Lordships' House and with the Convenor of the Cross Benches, the noble Lord, Lord Weatherill, and two eminent Cross-Bench Peers in the shape of the noble Lord, Lord Marsh, and the noble Earl, Lord Carnarvon.

The Cross Benches were not party to the deal before it was struck. Nor was the Conservation Opposition, to judge by the reaction to it of my right honourable friend the Leader of the Opposition. Nor were the Liberal Democrats, as they have told us today. But of course they would not have agreed to it anyway.

I should go no further without paying tribute to the noble Lords who reached the deal with the Government and to the Government themselves. They were all undoubtedly acting in good faith to achieve what they saw as being in the best interests of your Lordships' House and of the nation. Indeed, my noble friend Lord Cranborne even put his job on the line and lost it because he could not get the agreement of our Front Bench in the Commons to the proposed deal and because he went ahead and made it anyway.

But with hindsight and the benefit of our Committee proceedings, I have to submit that the resultant clause is fundamentally flawed and that it should be replaced. One has only to recall the atmosphere in your Lordships' House after Question Time last Tuesday, when the usual channels had clearly broken down, to see that that is so.

So why did so many of your Lordships agree to the amendment? The Government agreed it and voted for it, thus compromising their manifesto, because they believed that it would ensure that all their business would go through reasonably smoothly and that your Lordships' House would not use its undoubted power to frustrate the Government's legislative programme. Indeed, the Government have said that if their expectations are not met in this regard they will knock out the clause in the Commons. So that is why the Government voted for the Weatherill amendment.

The Conservatives voted for it, so far as I can understand, because they believed that 92 hereditary Peers in the interim Chamber are better than none, because it therefore makes a very bad Bill somewhat better, and because it was the only show in town.

The Liberals largely abstained in the vote on the Weatherill amendment, although they dislike it so much that one would have thought that they should have voted against it. Perhaps they shared the Government's hopes that it would have ensured a reasonably comfortable interim House.

So much for the unhappy provenance of Clause 2 of the Bill—née, Weatherill. But it has some serious technical defects as well. For instance, as we have discussed today, it gives 42 of the 75 hereditary Peers who are to be elected by their fellow party hereditaries to the Conservatives. Only 28 go to the Cross Benches, three to the Liberals, and just two to Labour. This also means that the Government will have to create a large number of new Peers if they wish to achieve parity with the Conservatives, perhaps as many as 60. I mention this as a defect because one is aware that the attendance and voting record of those Peers appointed by the Government since the election is not perhaps quite what they had hoped it would be. It is not easy to find large numbers of good working Peers at short notice. The Conservatives will also presumably score a good proportion of the 15 hereditary Peers who are to be elected by the whole House as deputy speakers.

Clause 2, if enacted, will give us a House of only 150 Cross Bench or independent Peers, regarded by many as perhaps the most valuable aspect of your Lordships' House, but with at least 212 Conservative Peers, 159 Labour and only 47 Liberals, plus the 15 for the Woolsack, and of course the Earl Marshal and the Lord Great Chamberlain. So Weatherill does little to address the Conservative preponderance in your Lordships' House which is just about the only thing that most people agree is really wrong with the present composition.

Clause 2 has other defects, all of which I suggest could be remedied with a different amendment. For instance, the new clause is not designed to last more than five years, as we have just considered under Amendment No. 32. That raises the longer term problem of by-elections which the clause does not address. Further, and more importantly, a number of excellent hereditary Peers will be removed completely, not even allowed to speak any more, whereas a large number of less than excellent appointed Peers will stay on with full powers. So, on that basis alone, the proposed interim House cannot really be the best interim House, which is what the national interest requires.

There is another very important fact which Clause 2 fails to address and which could easily be met in a well thought-out replacement. This is that the power to legislate lies entirely in the power to vote. It is, I submit, the hereditary Peers' power to legislate which the Government and others find so wrong. So it is their power to vote that is the problem. It is not their ability to contribute to your Lordships' debates, which many of them do with such wisdom and knowledge every day we sit.

This is not the time to rehearse the details of any replacement for Clause 2 of the Bill. There are a number of ideas in the air—or, rather, on the pages of Hansard— from Second Reading and our Committee stage. There is, for instance, the concept of weighted voting put forward by the noble Lord, Lord Randall of St. Budeaux. It is a pity that so many of your Lordships have shied away from this one because the mathematics—or rather the arithmetic—appear too daunting. I submit that this is not a good enough reason to rule it out if it would give us a more fluent and competent interim House than would the present: Clause 2, as I am sure it would.

The debate on my own humble attempt at an alternative, Amendment No. 110E, can be found at cols. 43 to 59 of the Official Report of 17th May. That debate was very helpful to me at least because it forced me, to appreciate the huge difference between voting and non-voting Peers in a way I had not done before. It enabled me to simplify the amendment considerably for Report stage. Indeed, it is now very simple and I believe that it meets most of the defects to be found in Clause 2 as drafted. It also meets the principles which I submit we must respect if we really do want to achieve the best possible interim House.

Briefly, it leaves all Peers with the right to speak. It then forms four electoral colleges of all Peers for each of the three parties and the Cross Benches to elect a given number of voting Peers from among their number. It thus avoids completely the problem of how many hereditary Peers should stay on because they would simply emerge from the electoral process. There might be more than 92 but there might be fewer. The pages of Hansard reveal that the noble Baroness the Lord Privy Seal did not pay quite her usual attention to my introduction of the amendment last Monday. I mean no discourtesy when I say that. I am full of admiration for the many hours that she spends listening and contributing to your Lordships' deliberations on this Bill and on other matters. But she is, after all, human—

Noble Lords

Oh!

Lord Pearson of Rannoch

I hope that she is, anyway. I fear that her attention appears to have wandered when my turn came. However, as I now conclude, I beg her, if it is she who is to answer the question, to listen carefully to the following five propositions about the Bill and to say whether she does not agree with any of them and why. These propositions emerged in our debate last week. I did not press her on the answers then, so I feel that I should do so now.

First, does she or the noble and learned Lord the Lord Chancellor, if he is to reply, agree that the power to legislate in your Lordships' House rests almost entirely upon the power to vote?

Secondly, does she agree that under Clause 2 as drafted a number of excellent hereditary Peers will be entirely excluded from your Lordships' interim Chamber while a large number of less excellent appointed Peers will stay on with full powers?

Thirdly, does she agree that one of the most unsatisfactory aspects about the present composition of your Lordships' House is the preponderance of Conservative Members and that Clause 2 does not solve this problem?

Fourthly, does she agree that we should respect as much of the Government's election manifesto for the interim House as the Government themselves now intend to do after they have conceded the principle that 92 hereditary Peers can stay on?

Fifthly and finally, and by far the most important, does she agree that we have a clear duty to the nation to set up the best possible interim House?

If the noble Baroness the Lord Privy Seal agrees with any of these propositions, particularly the last one, I humbly suggest that she and the Government should work with the House to find a clause which meets them all. Clause 2, as drafted, meets none of them.

11.45 p.m.

Lord Weatherill

The hour is late. I shall not rehearse again the background to the amendment which could properly be called the "Cranborne" or "Weatherill" amendment, whatever noble Lords wish. It sought, and seeks, to overcome a short-term problem which we all recognise; namely, to carry on the work of the House with regard to the contributions made by 75 hereditary Peers, particularly those who do such excellent work in the Committees of your Lordships' House, and by the further hereditary Peers who sit on the Woolsack or serve as Chairmen of Committees.

As we all know, this proposition was supported a fortnight ago by a majority—said to be the largest for many years, as was mentioned by the noble Lord, Lord Pearson of Rannoch—of 351 to 32. I hope, therefore, that Members of the Committee will agree to support it again tonight.

Lord Rodgers of Quarry Bank

I do not want to prolong our discussion either. Whatever our previous intentions, we have no wish now to delay the further progress of the Bill. As we have been reminded, we shall have in due course a Report stage. The noble Viscount, Lord Tenby, among others, reminded us that there will be discussion in the Procedure Committee and then an opportunity for the House further to discuss the Standing Orders.

I would say only this to the Lord Chancellor for his consideration: one of our difficulties, which became very plain today, is knowing what the agreement between himself and the noble Viscount, Lord Cranborne, actually comprises. This evening, on the question of by-elections, the noble Viscount, Lord Cranborne, said, "If my memory is accurate". He was somewhat uncertain about what he and the noble and learned Lord the Lord Chancellor had agreed. At one stage, the noble Lord, Lord Richard, said that he was glad that the veil had been lifted a little on the agreement. It would be helpful to the Committee to know what was agreed; the matter on which there is little opportunity to improve, for the reasons we now understand: and what area is left for the scrutiny of the House and upon which the House will make its own decisions.

We take our medicine, the Weatherill medicine, under protest. However, there is still surely room, round and about that agreement, for the House to take a view of its own. Just before the dinner break this evening, I raised the question with the noble and learned Lord the Lord Chancellor and asked him to consider it. I do not ask for a reply this evening, but my question was very much focused on how far there was an agreement about how elections should take place in the separate groups. All the indications I have is that there was no such agreement. Therefore, that is a legitimate area on which the House can decide.

If we know what the original agreement was and may assume that it is not a moving agreement, being made up as things go along, it will be much easier when we reach the further stages of the Bill. Every Bill is capable of improvement. I believe that round the central core of that agreement there are improvements which your Lordships' House could still make.

Lord Monson

A great many noble Lords—mainly, but not exclusively, on the Government Benches—laughed when the noble Lord, Lord Pearson, asserted that a great many noble Lords had abstained in the vote on the Weatherill amendment. However, one reliable national broadsheet established that over 200 noble Lords who were present on the day abstained from voting; in other words, not just the Liberals. Taken in conjunction with the 32 who voted against, that perhaps shows that 40 per cent of those noble Lords who attend relatively regularly have some doubts about Clause 2 as it stands. I believe that is worth bearing in mind.

Lord Strathclyde

This is a rotten little Bill; it has always been a rotten little Bill and remains one now. However, it has been marginally improved by the insertion of Clause 2, formerly the Weatherill amendment.

It is still not too late for the Government to get this Bill right. But in order to get it right they should withdraw it; they should wait for the Royal Commission headed by my noble friend Lord Wakeham to make its recommendations; they should wait for Parliament to review those recommendations in a joint committee of both Houses. They should then, having had a great public debate and achieved broad consensus between the parties, come forward with a properly formulated Bill to reform this House, a reform for which we have waited nearly a century. That is almost certainly the best way of achieving a proper reform of this House.

My noble friend Lord Pearson may well, in a few moments, give us an opportunity to reconsider a decision that this Committee has already made on Clause 2. I hope that that decision is not reversed. If he does call a Division, I shall support my earlier decision to support this clause.

The Lord Chancellor

I welcome what came a moment or two ago out of the mouth of the noble Lord, Lord Strathclyde. I realise that at an earlier stage in his mercifully short observations, which I shall try to emulate for brevity, he had to go through the motions.

On 11th May we agreed to make the amendment that has now become Clause 2. We agreed to it by a massive majority of 351 to 32. Prior to debating the amendment, we considered a number of other amendments which suggested alternative ways of retaining the services of some hereditary Peers. Therefore, in debating Amendment No. 31 the Committee was well aware that further on in our business were a number of alternative amendments incompatible with Amendment No. 31. Among those amendments was an earlier version of the amendment of the noble Lord, Lord Pearson of Rannoch, which we finally debated on 17th May. If the Committee had been likely to be attracted to the noble Lord's amendment in preference to what is now Clause 2, then it would not have voted by the massive majority of 320 in favour of Clause 2. That vote was not only a vote for the sensible amendment of the noble Lord, Lord Weatherill; it was clearly a vote against every alternative that was on offer. The Committee therefore made its decision on 11th May and it should stand by it now.

Lord Pearson of Rannoch

I am grateful to the noble and learned Lord the Lord Chancellor. But have we been wasting our time today? Supposing the Committee had divided and agreed an amendment of any noble Lord which proposed devastating changes to the Weatherill amendment by way of increasing the number of Peers, would that have been possible? The Government may reply that they would have overturned it in the Commons. But I hope that our being here all day has not been a complete waste of time.

I must point out to the Lord Chancellor that he did not answer any one of the five questions that I posed to him or his noble friend the Lord Privy Seal. I feel once again that one is being told, "Bang, bang! You are dead and we are not playing". In those circumstances, for the moment I reserve my position to come back at Report stage.

Clause 2 agreed to.

House resumed: Bill reported without amendment.

House adjourned at six minutes before midnight.