House of Lords Bill (Hansard, 26 October 1999)

HL Deb 26 October 1999 vol 606 cc169-292 169

§ 3.24 p.m.

§ [Interruption.]

§ Read a third time.

§ Clause 2 [Exception from section 1]:

§ The Lord Chancellor moved Amendment No. 1:

§ Page 1, line 9, leave out ("no more than").

§ The noble and learned Lord said: My Lords, this is the amendment which we heralded at Report stage when we said that we were prepared to accept by-elections as the mechanism for filling vacancies among excepted Peers in the unlikely event that the transitional House lasts beyond the end of the first Session of the next Parliament. Time and again we have emphasised that the Bill itself is a transitional measure providing for a transitional House. That is why we have always believed that the so-called "fastest loser" system, provided for in the first Standing Order under Clause 2 and agreed by your Lordships' House on 26th July, remains the most sensible and the most flexible way of filling vacancies for the entire duration of the transitional House.

§ The transitional House will be of short duration, but let us proceed on the hypothetical assumptions that it might last for more than two or three years and that the "fastest loser" system might have outworn its effectiveness by that time. That being so, our amendment provides that after such time any vacancy due to the health of an elected excepted Peer should be filled by means of a by-election.

§ The amendment itself does not spell out what is to be the constituency for these by-elections. The detail is left to the Standing Order. However, for the sake of clarity and completeness, perhaps I may repeat what was said at Report stage. If a vacancy occurs among any of the 75 Peers elected by the respective parties and the Cross-Bench group, then the voters will be the excepted Peers in the relevant grouping. If the vacancy occurs among the 15 office holders, then the electorate will be the entire House. That reflects the constituencies in the initial elections to be held this week and next. But one thing is clear and is common to all constituencies; and that is that no hereditary Peer who has been excluded from the House at the end of this Session will have a vote. Such excepted Peers may stand but not vote and the electorate will be those who remain in the relevant grouping.

§ Your Lordships will see that we have also brought forward an amendment to provide a fixed number of 90 excepted Peers rather than a maximum of 90 as currently provided for in Clause 2(2). This is to address the concern that was raised by several noble Lords 170 opposite in Committee, that the language might permit fewer than 90 so that vacancies need not be filled. That was never the intention.

§ The Standing Orders make it plain that "vacancies shall be filled". The difficulty with making that plain on the face of the Bill arose because there could have been doubts about the validity of proceedings in the House if the number of excepted Peers fell temporarily below a number fixed in statute: for example, if for administrative reasons there were a gap in time before the vacancy was filled. However, now that we have a provision for by-elections, it is acceptable to have the fixed number of 90 in statute. That is because, although there may still be times when the number of excepted Peers falls below 90, as a result of this amendment it will be plain on the face of the Bill that just that state of affairs is contemplated and that it is possible for the number to drop below 90 perfectly lawfully while the procedure for filling vacancies contained in Standing Orders or the by-election procedure is completed.

§ So in bringing forward the by-elections amendment, the Government have honoured the commitment made on Report, as we have honoured all our commitments throughout the passage of the Bill. I am confident that the noble Lord the Leader of the Opposition will welcome this amendment; it is one for which he himself previously argued. I beg to move.

§ 3.30 p.m.

§ Lord Strathclyde
My Lords, perhaps I may say at the outset what a pleasure it is to hear the noble and learned Lord the Lord Chancellor. He always creates a slight frisson in the House, but perhaps not quite the one he expected this afternoon. These are two important and welcome amendments. They are a substantial step forward from the original drafting of the Bill. I thank the Government for the way in which they have responded positively to our pressure on this point.
The original wording in the Bill left it open to the suspicion that the number of excluded hereditary Peers might be allowed to decline below 90. I accept that that was not the intention and that fears over that point were largely technical. None the less, it is an important change to make.
Although important, the proposal is not nearly as significant as that in Amendment No. 6, to which the noble and learned Lord referred. Again, we discussed the matter in some detail on Report. The system that is proposed is not the most satisfactory, or indeed the most ideal. I myself might have wanted some of the details to be different. But I believe that it is one that will work and will command support on all Benches, including, I hope, this time the support of the Liberal Democrats.
The agreement of the Government to a by-election after the first three years or so of the duration of this legislation is notable and important. It is notable because the Government thereby accept the principle of a continuing representative hereditary peerage; and it is important because the Peers brought in will have 171 that extra authority and legitimacy which the Leader of the House herself said recently would come from their being elected by their peers. Indeed, they will be the only elected Peers in this House. So I welcome the Government's acceptance of the case that we have put and I commend the amendment to the House.

§ Lord Goodhart
My Lords, the Leader of the Opposition has raised a question regarding the Liberal Democrat view on this issue. We made it clear on Report that we were strongly opposed to the idea of by-elections. It creates all kinds of anomalies, including the fact that when one of the two elected Labour Peers dies, the other will have a personal and individual power to appoint the successor to that Peer. There are a number of other anomalies, but the matter was discussed at length on Report. We certainly do not support it, but we do not on this occasion intend to oppose it.

§ Lady Saltoun of Abernethy
My Lords, perhaps I may ask for clarification. We have heard a great deal about the situation that would arise on the death of one of the 90 Peers. What would the situation be if one of those 90 Peers is unable to continue as a result of illness or difficult family or financial circumstances? Will that Peer be replaced?

§ The Lord Chancellor
My Lords, vacancies arise only on death.

§ On Question, amendment agreed to.

§ Lord Clifford of Chudleigh moved Amendment No. 2: Page 1, line 10, leave out ("anyone") and insert ("those peers").

§ The noble Lord said: My Lords, to refer first to my Amendment No. 3, I respect the fact that Members of this House may have had the opportunity to read and consider the report of the Committee for Privileges and its findings on the Treaty of Union 1707. Its influence on House of Lords reform is obvious. No matter what may have been the opinion of individual Peers, I would argue that Amendment No. 3, and Amendment No. 4 relating to the Privy Council, have a common bond. Both the Officers of State and the Privy Counsellors are the monarch's representatives. They bear that honour and responsibility either by succession or by personal choice of our current monarch, Her Majesty the Queen.

One would be naïve to believe that Privy Counsellors, 28 of whom are hereditary Peers, would have achieved that title without the positive recommendation of Her Majesty's Government, whichever government it may have been, who select the names for that esteemed position, which is held by Letters Patent. I beg to move.

§ Lord Mackay of Ardbrecknish
My Lords, Amendments Nos. 2 and 3 are quite separate from Amendment No. 4. Perhaps I may speak briefly to the first two.
172 We have been advised that the inclusion of this provision in the Bill would make it hybrid. I do not know whether the Minister will confirm that. As the House reached a judgment on that issue last week, it would seem to us a mistake knowingly to attempt to import hybridity into the Bill—that being despite the fact that the Grand Offices of State of Scotland could certainly bring a speech out of me if your Lordships particularly wished it. But probably your Lordships do not, so I shall leave the matter and turn to Amendment No. 4.
Amendment No. 4 invites the Government to consider the inclusion of all the current members of the Privy Council who are hereditary Peers and have not been "caught" by other measures taken in the Bill. Membership of the Privy Council is a high and singular honour. I say that with some feeling, being a member myself. Fortunately, I am a life Peer, so I do not fall into this category. There are, however, a number of distinguished noble Lords who are members of the Privy Council and who have either decided not to stand for election or are doing so and, as is possible, may not be elected. For example, a group of former Leaders of the House fall into that category. I refer to the noble Lord, Lord Shepherd, my noble friends Lord Jellicoe, Lord Cranborne and Lord Belstead are all members of that group. My noble friends Lord Denham and Lord Ferrers are two hereditary Peers who have given long and distinguished service to the House. They are Privy Counsellors who would, so to speak, fall by the wayside if they were not to be elected by their colleagues. My noble friend Lord Carrington is a distinguished former Foreign Secretary. He will not be a Member of this House. He will be the only former Foreign Secretary who will not be a Member of one or other of the Houses of Parliament. It is perhaps even more ironic that my noble friend is a former Secretary-General of NATO and will leave this House almost at the same time as Mr George Robertson is appointed Secretary-General of NATO and the Government have felt it important to send him to your Lordships' House. I would have thought that what is sauce for the Robertson goose is sauce for the Carrington gander. Perhaps the Government will look seriously and sympathetically at this issue.
I have not mentioned all the members of the Privy Council, but that does not mean to say that I do not believe they have a good case for retaining membership of your Lordships' House having been given that honour by Her Majesty. In particular, those whom I have underlined illustrate the force of the case for special consideration to be given to this particular group.

§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
My Lords, these amendments fall into two parts. First, they seek to reserve a place in the transitional House for the Lord High Constable of Scotland, this time accompanied by three of his fellow Great Officers of the Royal Household. Secondly, they seek to preserve a place for any hereditary Peer who is also a Privy Counsellor. I believe that the second of the 173 two proposals would affect 20 individuals, not including hereditary Peers of first creation who will be offered a life peerage, hereditary Peers who are also life Peers or members of the Royal Family.
As quickly as possible, I shall deal first with the Scottish office-holders. As my noble and learned friend Lord Williams of Mostyn made plain in reply to the earlier attempt by the noble Duke, the Duke of Montrose, to save the Lord High Constable of Scotland, the reason why the Earl Marshal and Lord Great Chamberlain are excepted in Clause 2 is that both have ceremonial functions in relation to your Lordships' House. They are responsible for the conduct of royal affairs in the Palace of Westminster, for such ceremonies as the State Opening of Parliament and the Coronation. That is why it is proposed that they should retain their places here.
As my noble and learned friend also made perfectly clear, the role and functions of the office of the Lord High Constable of Scotland have nothing whatsoever to do with Parliament. The same is true of the other office-holders named in the amendment. The principal role of the Lord High Constable of Scotland is to ensure the personal protection of the sovereign north of the Border. The role of the Bearer of the Royal Banner is to carry the Royal Banner in the army of Scotland, that of the Bearer of the National Flag of Scotland is to bear the royal insignia in Scotland and so on. I suggest to your Lordships that it is wholly inappropriate to consider allowing those officeholders to remain, given that their offices have nothing whatsoever to do with the work of your Lordships' House.
The noble Lord, Lord Mackay of Ardbrecknish, has touched on one last point. The House authorities have indeed advised the noble Lord, Lord Clifford of Chudleigh, that the inclusion of the Scottish hereditary office-holders would make the Bill hybrid because [the traditional office-holders] do not constitute a class that is germane to the Bill. Accordingly, this amendment would affect the private interests of some hereditary Peers differently from the private interests of other hereditary Peers". We went into the issue of hybridity in some detail last Wednesday when we debated the Motions in the name of the noble Lord, Lord Clifford of Chudleigh, and the noble Duke, the Duke of Montrose, to refer the Bill to the Examiners. It was clear from that debate, as the noble Lord, Lord Mackay of Ardbrecknish, rightly said, that your Lordships' House had no desire that the Bill should be hybrid; nor, we were assured, any desire to invoke the procedure to deal with hybridity merely for the sake of delaying the passage of the Bill. I hope that none of these arguments has lost any force since last week.

The Earl of Erroll
My Lords, perhaps I may be allowed to intervene. I understood from the debate on 174 hybridity that there were no private interests, only public duty, involved in this matter. Therefore, that argument can hardly be used.

§ Lord Falconer of Thoroton
My Lords, as I understood it, the point which was made in debate was that the last thing your Lordships' House wanted was that the Bill should become hybrid.
The second part of this amendment enables hereditary peers who are Privy Counsellors to remain Members of the transitional House. I accept that your Lordships' House benefits from the accumulated knowledge, wisdom and experience of the Privy Counsellors among its number, whether or not they are hereditary Peers. It would be invidious to name names, and I do not intend to do so. However, I must remind the noble Lord, Lord Clifford of Chudleigh, and those who support his amendments of the one and only purpose of this Bill, which is to remove the hereditary principle as the basis for membership of your Lordships' House. It does this regardless of the individual merits of those who happen to be hereditary Peers. The Government have always made it clear that they value the contributions of hereditary Peers and the 75 to be elected by their fellow hereditary Peers, but they are the only hereditary Peers, together with the 15 office-holders and two hereditary office-holders, who will be elected by the whole House and will remain.
There is nothing to stop a Privy Counsellor standing for election to become an excepted Peer, and I am heartened to see that a considerable number have put their names forward for election. But for our part we have no intention of accepting any additional provision over and above the agreed number enshrined in Clause 2 as presently drafted. In those circumstances, I urge the noble Lord, Lord Clifford of Chudleigh, not to pursue his amendments any further. To do so would be a clear breach of the agreement and would make the Bill hybrid.

§ 3.45 p.m.

§ Lord Clifford of Chudleigh
My Lords, I thank the noble and learned Lord. I disagree with his observations and those of the noble Lord, Lord Mackay of Ardbrecknish. This House voted on the hybridity of Clause 1. If noble Lords read, as I am sure they have, what I said following the noble Duke, the Duke of Montrose, they will understand that I did not make reference to Clause 1 on which the House divided. Having corrected the noble and learned Lord—the need to do so is most unusual—I ask the House to remember that when it divided on the Motion of the noble Lord, Lord Gray, that the matter dealing with the 1707 Act should go to the Committee for Privileges, 275 noble Lords supported him. I hope that that number will do exactly the same today.
These amendments are not inappropriate at this late stage in so far as they add to the list of excepted holders of great Scottish offices. I take into account the words of the noble and learned Lord. This corrects an apparent drafting oversight which, unless remedied, 175 devalues Scotland's place in the Union. We are concerned here with the United Kingdom despite devolution.
My third amendment goes on to except Peers who are members of the Privy Council because, by parity of reasoning, that particular batch of personal experience and distinction should receive the same recognition.
Obviously, I shall not divide the House on Amendment No. 2, but I wish to have the opinion of the House on Amendments Nos. 3 and 4. I beg leave to withdraw Amendment No. 2.

§ Amendment, by leave, withdrawn.

§ Lord Clifford of Chudleigh moved Amendment No. 3: Page 1, line 10, after ("Marshal,") insert ("Lord High Constable of Scotland, Master of the Queen's Household in Scotland, Bearer of the Royal Banner of Scotland, or Bearer of the National Flag of Scotland,").

§ The Chairman of Committees (Lord Boston of Faversham)
My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the. Not-Contents have it.

§ On Question, amendment negatived.

§ Lord Clifford of Chudleigh moved Amendment No. 4: Page 1, line 11, after ("Chamberlain,") insert ("or as a member of the Privy Council,").

§ The Chairman of Committees
My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.

§ On Question, amendment negatived.

§ Lord Monson moved Amendment No. 5: Page 1, line 13, after ("shall") insert ("have t he right to").

§ The noble Lord said: My Lords, in moving the amendment, the first point to emphasise is that it is only an enabling amendment. It does not oblige this Government or any future government of any political complexion to do anything they do not wish to do. However, should a future government wish to alter the rules so as to permit the Weatherill Peers who are no longer able for whatever reason to attend on a regular basis to retire and be replaced by other hereditary Peers, probably by means of by-elections, the Procedure Committee would be able to put that into effect, provided the amendment is agreed to, without the need for new primary legislation. I cannot believe that many people would look forward to the prospect of another House of Lords Bill.

§ The Government will doubtless argue that this is academic since stage two will come into effect in about two years' time. I do not doubt the Government's sincerity in saying this. However, Harold Macmillan has been quoted at least a hundred times in the past 12 months and I do so once again: It is "Events, dear boy, 176 events", that upset the best laid plans of women and men. I think that the Government must recognise this in their hearts. On "Despatch Box" on BBC 2 in the early hours of 22nd October, the noble Lord, Lord Bach, speaking on behalf of Her Majesty's Government, was asked by the interviewer when stage two would come into effect. The noble Lord replied—I am sure I took his words down correctly—"Within a few years, at the very most". I congratulate the noble Lord, Lord Bach, on the skilful way in which he hedged the Government's bets.

§ The longer stage one drags on the more likely it is that a significant proportion of the Weatherill 90 will become less active or even totally inactive. This applies especially to the Deputy Speakers, who need plenty of stamina. Those who, unhappily, die will of course be replaced in accordance with the formula which has already been agreed upon. But those who merely become incapacitated will not be replaced as the Bill stands.

§ Let us take the example of the noble Lord, Lord Foot, whose death most of us were extremely sorry to read about a week or so ago. He used to be an extremely active Peer on the Liberal Benches. I remember this well as he was often helpful and supportive of me on various amendments that I moved in the late 1970s and early 1980s. Indeed, he once backed a Private Member's Bill of mine. The noble Lord, Lord Foot, attended the House on 120 occasions in the 1985–86 Session; on 116 days in the 1987–88 Session; and indeed on 119 days as recently as the 1992–93 Session. But in the last four years of his life he was able to attend only on five days in four years. And that is not an isolated instance. Your Lordships can think of many similar examples of distinguished people whom it would perhaps be unseemly to name at this moment. Not everyone is blessed with the health and vigour of the noble Earl, Lord Longford, or the late Douglas Houghton.

§ Nor is it simply a matter of advanced age. People can be struck by accident or severe illness at any age. Alternatively, they may be obliged to move house a long way from London, possibly abroad, for the sake of their wives' or husbands' health. Again, younger Peers may be offered the chance of a lifetime to go abroad to work in Singapore, Sydney or San Francisco for five-years or more. No one can afford to turn down the chance of such a valuable career move in the competitive age in which we live.

§ The Scottish and Irish representative Peers with whom the Weatherill 90 were frequently compared at earlier stages by both the Government and Conservative Front Bench were, I understand, elected for five-year terms. So, in effect, are honourable Members in another place. If they feel no longer up to the job, they have the option of standing down at the next election. They even have the option of applying for the Chiltern Hundreds in between elections.

§ This modest amendment would allow the same humane principle to be applied to the representative Weatherill 90. I would also contend that it is fully in the spirit of the Weatherill agreement.

177

§ The leader of the Conservative Party, Mr William Hague, recently called for more common sense in Government and in our affairs generally. This is a common sense amendment. I trust, therefore, that your Lordships will support it. I beg to move.

§ Lord Strathclyde
My Lords, I understand and to some degree sympathise with the points put by the noble Lord. Certainly if Parliament wishes to keep in its counsels 92 hereditary Peers it would be unfortunate if that effective number were lower because of infirmity.
On the other hand, that has always been the way of this House. It is the way with the hereditary peerage. It is the way with the life peerage also. There are some among our number, always at any time, who are not able to be with us as often as they would wish on ground of infirmity. We do not require their replacement and we accept that as part of the way of this House.
Having carefully thought through what the noble Lord said, and knowing that this amendment would arise this afternoon, I believe that we should therefore treat the Weatherill Peers in the same way as we treat all other Peers in this House. They are representative Peers. But they are also hereditary Peers; and the whole essence of hereditary peerage is that, except in the exceptional circumstances of a renunciation shortly after inheritance, it is held for life. Even where a peerage is renounced no one else can take that place so long as the one who has renounced it lives.
There are many these days who decry the hereditary principle, but I do not. It is the way of family inheritance, of property, of the passing of hereditary titles, and of course of the monarchy itself. I do not think that we should muddy or change that. For that reason, I am sorry to tell the noble Lord that I cannot support his amendment.

§ Lord Coleraine
My Lords, I have listened with respect to the retrospective constitutional view of my noble friend Lord Strathclyde. However, I believe that in a reformed House it will not be practical to fail to permit Peers—life Peers—to renounce their peerages. This will follow essentially from the political nature of the new House and the importance of maintaining a political balance. I am, therefore, pleased to say that I would go along very strongly with the feelings expressed by the noble Lord, Lord Monson.

§ Lord Falconer of Thoroton
My Lords, arguing the proposition advanced by the noble Lord, Lord Strathclyde, that the excepted Peers should be treated in no way differently from any other Member of the House, as is proposed by this amendment in the name of the noble Lord, Lord Monson, no Member of your Lordship's House has the right to relinquish his or her membership. That is the current position and will remain the position in the transitional House.
There is no reason why excepted Peers should be any older, any more sickly, or any less able to attend your Lordships' House than life Peers. Indeed, it could be 178 argued that they may well be younger, healthier, keener and more active than any of the rest of us, as no doubt these are some of the criteria that will apply and carry weight with the Weatherill electorate.
The terms of Clause 2 are perfectly clear in this matter. Subsection (3) states: Once excepted from section 1, a person shall continue to be so throughout his life (until an Act of Parliament provides to the contrary)". That means that once a hereditary Peer has been excepted under the elections to be held this week and next, his or her continuing membership of your Lordships' House may only be ended due to death or to stage two of reform. This accurately reflects the compromise agreement reached between the parties and encapsulated in the amendment brought forward by the noble Lord, Lord Weatherill, and others and overwhelmingly endorsed by your Lordships' House as a whole. I do not think that there can be any question of altering the terms of that agreement.
I should make one matter clear. In the unlikely event that the amendment in the name of the noble Lord, Lord Monson, were to find favour with your Lordships' House, unless the Standing Orders also agreed by your Lordships' House were changed, it opens up the possibility of the number of excepted Peers being allowed to dwindle below 90. As your Lordships' House may recall, Standing Orders under Clause 2 currently reflect the agreed policy that vacancies should be filled due only to death, not retirement or any other reason.
We have had a fair amount of debate at earlier stages of the Bill about the possibility of a retirement age. I do not believe that it is worthwhile to go back over those debates now. We have made it plain that this Bill is a single purpose Bill to end, and now to restrict, membership of the House of Lords by virtue of a hereditary peerage. There is no intention on our part to change any aspects of the terms, conditions and other arrangements of your Lordships' House. These may all be matters for stage two, but we are not here to decide them now.
In all the circumstances, I urge the noble Lord to withdraw his amendment.

§ Lord Monson
My Lords, I am very grateful to the noble Lord, Lord Coleraine, for his solitary support.
I believe that the noble Lord, Lord Strathclyde, has missed the point. With 751 hereditary Peers, it does not matter too much if a few, through no fault of their own, drop out and become inactive. There are plenty more where they came from, so to speak. However, it is extremely important where there are only 90. Every diminution in numbers has an effect.
As regards the point made by the noble and learned Lord, Lord Falconer of Thoroton, it is right to say that Standing Orders would have to be changed. That is a point that I believe I tried to make at the beginning of my speech. I am sorry if I did not make it with sufficient clarity. Of course they would have to be changed. There would have to be a belt and braces 179 arrangement to ensure that nothing could happen without the consent of the Procedure Committee, which is absolutely as it should be.
For obvious reasons, I am not privy to the Government's innermost secrets, but I assume that they held one of two attitudes to the Cranborne and Weatherill amendment. The first is, "We do not like the idea that 90 active hereditary Peers should remain in this House, but we agreed in order to get the Bill through and will therefore abide both by the letter and by the spirit of the agreement". The alternative attitude was, "We do not like the idea of 90 active hereditary Peers remaining in this House, but we are obliged to stick by the letter of the agreement. However, the spirit is expendable. If there is any loophole via which the agreement could be effectively watered down so as to reduce the number of active hereditary Peers, we will exploit it to the full". Sadly, it seems that the Government have opted for the second alternative.
If I had had more support, I would have divided the House without hesitation. As I have not had such support, unless other noble Lords indicate otherwise, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 4 p.m.

§ The Lord Chancellor moved Amendment No. 6: Page 1, line 14, at end insert— ("( ) Standing Orders shall make provision for filling vacancies among the people excepted from section 1; and in any case where—

(a) the vacancy arises on a death occurring after the end of the first Session of the next Parliament after that in which this Act is passed, and
(b) the deceased person was excepted in consequence of an election.

that provision shall require the holding of a by-election.").

§ On Question, amendment agreed to.

§ Lord Coleraine moved Amendment No. 7: After Clause 2, insert the following new clause—

cc179-84