§ 3.10 p.m.
§ Lord Simon of Glaisdale
rose to call attention to the Parliament Acts and the Salisbury convention in the light of recent constitutional developments; and to move for Papers.
The noble and learned Lord said: My Lords, in rising to move this Motion, I record my gratitude to my noble friends on the Cross Benches who chose it for 265 debate and for their encouragement to me to move it. We believe that we are vindicated when we look at the list of distinguished speakers today.
I take as my point of departure matters which I believe are in general agreement throughout political society here: first, that we value our parliamentary democracy and wish to further it; secondly, that we agree that there should be a two-chamber Parliament; and, thirdly, that the essence of our constitution is not a separation but balance of powers, as the noble and learned Lord the Lord Chancellor frequently made clear during debates in the previous Session. Since it is a question of a balance of power, one immediately calls to mind the observation of Lord Acton that power tends to corrupt. More often than not, the first sign of corruption is a desire for greater power which immediately causes a dislocation in the balance.
In favouring parliamentary democracy we do not mean that it is an ideal system of government; indeed, there is no such thing, because all systems of government have to make do with the crooked timber of humanity. Nor is parliamentary democracy the only way to promote democracy. On the contrary, the biggest revolution in recent years has been the vindication of the market economy which is now accepted by all except a small minority. In effect, it means that each shopping day is a general election; every purchase is a cross made on the counter in favour of one of the candidates paraded for approval.
Obviously, Parliament cannot constitute an executive because it is unwieldy for the purpose. However, it grants great power to an executive, both political and civil service. But if parliamentary government means anything—the tercentenary of the glorious revolution just over a decade ago was widely celebrated in Parliament and throughout the country—it means that Parliament can effectively call the executive to account. I emphasise the word "effectively" because often it is merely a nominal calling to account.
I emphasise that once an individual is elected to Parliament he becomes a member of an elite. That arises because it is now widely—perhaps universally—accepted that Burke was right when he said:Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion".That means that Parliament quite often claims to know better than the electorate to which it owes its being. That was perhaps vindicated by Parliament's insistence on the abolition of capital punishment when every poll appeared to show that that was not the general opinion of the country.
I said that a two-chamber Parliament had been widely accepted in all the constitutional debates on parliamentary reform. But that means that whenever there are two chambers differences between them are apt to arise. If they are to be complementary and not merely duplicatory, those differences are bound to arise and methods must be found to resolve disagreements. I refer to only two of several methods: first, the Parliament Acts which were passed partly 266 because of an impasse over the Budget. The famous Budget of Lloyd George contained proposals which went far beyond mere fiscal matters. Goaded by that, the opposition threw out the Budget and so withheld supply from the Government, which for centuries had been accepted as the exclusive role of the House of Commons.
What the Parliament Act did was, first, to make fiscal matters the exclusive concern of the other place. The necessity of that was emphasised in the row in Australia between Gough Whitlam and Mr Knox where the Senate, having power over supply, forced the government which enjoyed the support of the lower chamber to go to the country. I believe your Lordships accept that the vouchsafing of fiscal authority to the other place is a necessary conclusion. Secondly, the Act imposed powers of delay. Thirdly, ultimately it gave power to the other place to override decisions of your Lordships. I say "ultimately" because it could not be done as a matter of routine. If it was done as a matter of routine it would mean that in effect we would have unicameral legislation, which nobody now advocates.
Further, the Parliament Acts do not touch secondary legislation which in our time is of increasing importance, or at any rate increasing scope. The Wakeham report recommended that a difference of opinion should be dealt with by a three-month delay. However, the justification for secondary legislation, apart from dealing only with minor details which do not need delay, is the urgency that it calls into question. If it is urgent it does not appear that a three-month delay is advisable.
The next matter of resolution is the Salisbury doctrine. When that was enunciated there was a large Labour majority in the other place and a large inbuilt Conservative majority in your Lordships' House. There was no doubt that the main Labour proposals of nationalisation had been firmly before the electorate in the preceding general election.
For decades Clause 4 has been part of the constitution of the Labour Party. So it seems entirely reasonable that the Salisbury doctrine should be enunciated in the terms that it was. There was always something unreal about it in its reference to a manifesto, because a manifesto does not contain just a list of proposals which are committed for approval to the electorate. One can have an election of that kind. Many American states do. But a manifesto in this country is certainly not a list for which the approval of the electorate is asked individually.
However, the great thing about the Salisbury convention is that it works. Generally, that is enough in this country. I think it is quite enough. The last comment to make about it is that it is a constitutional convention and not constitutional law. In other words, it is binding only politically and morally but not legally, and only so long as it is convenient.
The first constitutional development to which I want to refer is that there is no longer an inbuilt Conservative majority in your Lordships' House. The second is the increasing domination of the other place 267 by the executive. That is not new but is fast increasing. The third matter was one referred to forcefully by the noble Lord, Lord Shore, last Friday; namely, the acceptance of the referendum as part of our constitutional system.
There is a story which has come down from the days before 1914 of Lloyd George goading Asquith and saying, "The Tories are disliked. They have recommended a referendum as a resolution of differences between the Houses". Asquith merely said with a show of a foreign accent "referendum?" and Lord Lloyd-George went happily away. Perhaps that still subsists because where referendums were referred to in the previous Session, the plural used was the English "referendums" and not the Latin of "referenda". Nevertheless, it is fairly accepted now.
The question arises, do we still need the Parliament Acts? It would be a major task, a major proposal, to repeal them. One could, of course, rely on the admitted common privilege so far as concerns fiscal matters, but the mere fact that the Parliament Acts have been used promiscuously more by this government than ever before does not mean that they may not be necessary in certain respects.
The abuse of the Parliament Acts can be rectified by a self-denying order by, in particular, the Prime Minister. It is only if he needs to have his own way in everything that we need it.
As the Salisbury convention is a convention only, it would be advantageous to leave it for its residual use when it might turn out to be necessary. I beg to move.
§ 3.26 p.m.
§ Lord Peston
My Lords, I am deeply honoured to be the first speaker after the noble and learned Lord, Lord Simon of Glaisdale. I congratulate him both on the excellent topic he has chosen for us today and on the admirable way in which he introduced it. When I first arrived in your Lordships' House some 14 years ago he was a great figure. He confirms today what a major contribution he makes to our deliberations. He is always intellectually stimulating and, unusually for those of us who try to be that, says much of great practical value.
Perhaps I may also follow him on two general themes. On the question of parliamentary democracy, I have always taken the view that Winston Churchill got the matter about right; namely, any analysis of parliamentary democracy would show how imperfect a system it is and any analysis of any other system would show how much worse that system is. Therefore, we all regard ourselves committed to parliamentary democracy.
One minor word on economics. I do not want to talk about the market economy per se, but we need to recognise—as it is not recognised, I fear, chiefly by people in the other place rather than in your Lordships' House—the enormous power of global economic forces. In the other place, particularly, they delude themselves about the power of governments, let alone Back-Benchers. It is about time this country 268 faced up to the world in which we live. We should not continue to make trivial remarks about sovereignty, the power we can exercise and so on.
I am not an expert on these constitutional matters. I look forward to hearing what the experts say. The first principle from which we start is rather ahead of the Salisbury convention and the Parliament Acts: a government, in broad terms, are entitled to get their business through Parliament. Therefore, the so-called Salisbury/Addison rules have a role to play because the Government have been elected on the basis of—whether one calls it a manifesto or some broad set of propositions—what they propose to do. It is entirely reasonable in a parliamentary democracy that within those broad terms that is what the Government should at least be given a chance to do.
Logically, whether we have these or some other Parliament Acts, we need some kind of legislation which helps towards that end. We had an excellent debate, although I was only a listener, last Friday when the noble and learned Lord, Lord Donaldson, introduced some material on the Parliament Acts. He has nothing to offer me so I can say this with ease: I thought that my noble and learned friend the Attorney-General dealt with the question of the Parliament Acts in an entirely satisfactory way in explaining why they did not interfere fundamentally with what we should do. That is about the only nice remark that I think I shall make for the rest of the afternoon.
The real point we are guided to by the noble and learned Lord, Lord Simon, is how this is connected with the role of your Lordships' House. It seems to me that if we are to have a revising Chamber—in other words, if we are not to be unicameral—the revising Chamber has to revise. That seems to follow perfectly logically. If the other place, either via the Salisbury/Addison convention or the Parliament Acts, simply said, "You have had your say, but forget it. We are still going to do what we intend to do", the easiest thing would be to get rid of us, which would also save a certain amount of public money. That is not the same as saying that we must always get our own way, but we must certainly be listened to. A test of whether we have any value is that something must quite frequently change as a result of our contribution.
Therefore, neither the Salisbury/Addison rules nor the Parliament Acts should be used in ways that end up, de facto, with our making no contribution. If that is its view, the other place really ought to bite the bullet and say, "Thank you very much for several hundred years of history, but goodbye". That seems to me perfectly obvious, given our present composition. We are all nominated. Some of us are distinguished. Others of us, as I always emphasise, are party hacks, and I have never minded being a party hack. The fact is that we are not elected. We have privileges and a role to play, but on our side we expect to be listened to and hope that things will change. However, if in the end we have been listened to sympathetically and occasionally do get our own way, we also have to get used to the idea that sometimes we do not. That is enormously important.
269 I have referred to the present composition of your Lordships' House. I turn to consider what would be the position if we were to move to a hybrid House. As your Lordships may be aware, I am extremely doubtful about the value of a small elected element. I can see little point to it. The more I try to analyse the consequences of an elected element, the more absurd it seems. I do not believe that having a small elected element in your Lordships' House would change anything that I have just said. It seems to me that a small elected element does not make us very much more legitimate and does not give the other place any reason to take us any more seriously.
There is another matter that particularly troubles me about a small elected element. One of the admirable features of your Lordships' House is that we are all Peers and all equal. It is one of the aspects that I most like about this place. I am very troubled that, if we get stuck with a small elected element, someone will somehow invent the doctrine that their votes count for more than the rest of our votes. If that happened—and if I were alive to see it happen—I would vigorously oppose it.
I therefore again emphasise that the revising role should be given great weight. However, I do not think that we need to wait for the next stage of whatever the Government put forward in order for the other place to take more seriously what we do. There is a responsibility on both Houses to take the other seriously. The noble and learned Lord, Lord Simon, referred to balance. I believe that balance is very important here, although ultimately we defer to the other place.
If this House were 100 per cent elected, which is another matter, the whole world would change. In that case, the Parliament Acts would have to disappear, because they would have no meaning, neither would the Salisbury/Addison doctrines. In my judgment, if this were a 100 per cent elected Chamber, it would have to be equal to the other Chamber. It would be as legitimate as the other Chamber, and if it were elected according to certain alternative rules, I would regard it as even more legitimate than the other Chamber. However, I do not believe that that is what the noble and learned Lord, Lord Simon, is guiding us towards today. My judgment is that, in terms of the doctrines we are considering, we can set aside the question of what would happen if we had a 100 per cent elected Chamber. But certainly it would follow that, in those circumstances, all these doctrines would have to go.
We have 10 minutes. I, happily, hope to conclude inside nine. I have one final remark. Whenever these topics have been debated in the past year or so, I have felt obliged to speak. Every time I speak, nothing happens and I say to myself, "Surely you have better things to do". I felt that it was my duty to speak today. However, I ask myself, "Am I wasting my time yet again?" For once, I hope that that is not true.
§ 3.35 p.m.
§ Viscount Cranborne
My Lords, it is always a very great pleasure to follow the noble Lord, Lord Peston.
270 As so often happens in debates covering subjects of this kind, I find myself very substantially in agreement with the burden of what he has said, though I suspect that there are, as always, differences of emphasis.
I start by underlining how much I agree with the noble Lord's remarks about the logic of this House having a function and, therefore, needing to have some sort of power to convince people that that function is useful. Without power, we will be ignored. If I may be impertinent enough to say so, I believe that the noble Lord is entirely right about that.
I should also like to say that, not for the first time, we are greatly in the debt of the noble and learned Lord, Lord Simon. His Motion has been creeping up the Order Paper for some time now. With his usual good judgment, he has introduced it, timed to perfection. This Motion is concerned with the balance of power between this House and another place, as has been emphasised in both speeches made so far during the course of the debate. We all know that reform of this place is unfinished business. Many people do not believe me when I say so, but it was the reason behind the infamous deal that I concluded with the noble and learned Lord the Lord Chancellor some years ago. It is clear that all the political parties are split over what powers we should confer on a fully reformed House, and therefore what composition should flow from that reform.
I find the Government's silence rather ominous, as I suspect does the noble Lord, Lord Peston, for the same reasons that he gave in his concluding remarks. I fear that the Government, for all their fine words, intend to stuff into their manifesto what in the trade has come to be known as "Wakeham B" and ram it through under the Salisbury convention, should they win in May. With great respect to my noble friend Lord Wakeham, I confess that I do not find that "Wakeham B" remotely begins to answer the urgent need—and I believe that the noble and learned Lord is right in saying this—to rebalance the relationship between the two Houses, which is what I think should inform any attempt at an effective reform of this place.
If successful, such a rebalancing would, in my view, greatly contribute to restoring Parliament's effectiveness as a whole and, paradoxically, by making this place more powerful, increase the power and standing of another place as we ensure that it does its job a great deal better. I believe that this reason is now very nearly universally acknowledged by anyone genuinely interested in these matters, apart perhaps from the members of the present Government. I certainly acknowledged that—before an obvious rejoinder comes from the noble Lord, Lord Barnett—before as well as after the last election.
The reason is very clear. It has already been stated by the noble and learned Lord. It is that another place is, to all intents and purposes, the agent of the government of the day. It is true that a small majority, a great issue that divides the governing party, or growing unpopularity in the country as a whole, diminish that dominance. But, in the absence of a general election, even the weakest government, as we 271 have found, can get most of their business through. Furthermore, another place, and the inhibiting factors that I have just listed, have no beneficial influence whatever on the quality of legislation passed by such a government, which is also a test of the quality of the work of another place.
I therefore believe that the central purpose of a properly reformed upper House should be to deter governments from getting away with it. Knowing that we were vigilant and effective here would, I suppose, not only make governments more careful about how they behave but would, curiously enough, encourage more independence in another place. The fact that we were prepared to use our powers—and I return to the point made by the noble Lord, Lord Peston—would be an incentive to resolving disagreements by negotiation rather than by constant confrontation, which was another matter alluded to by the noble and learned Lord. As such, our day-to-day role as a House of influence rather than a House of power would, desirably so, be confirmed rather than undermined.
I hope that your Lordships have followed my argument so far, paradoxical though it may be. In order to perform the role which I have ventured to describe, I believe that this place will need to develop more teeth. We are beginning to do so already. I am, for instance, full of admiration for the way in which this Government have generally followed our example and accepted the strictures of the Select Committee on Delegated Powers and Deregulation, under the chairmanship of my noble friend. We are perhaps well on the way to developing a new convention which acknowledges that governments are obliged to do just that.
I am equally sure that the House was right to follow the advice of my noble friend Lord Strathclyde—this point may be a little more controversial in the view of the Government—of the noble and learned Lord who initiated the debate, and of the noble Earl, Lord Russell, to overturn the more recent convention, dating from 1968, that we do not vote against secondary legislation. I need not add any more to what the noble and learned Lord said in that respect. I found myself greatly in agreement with him.
There is one other matter which this House would do well not to forget. I believe, as I have tried to make clear in debates held at the instigation of the noble Lord, Lord Owen, and of my noble friends Lord Dean of Harptree and Lord Campbell of Alloway, that this House should have the right to insist upon a post-legislative referendum before an Act is brought into force. A well-reformed House would have the authority to exercise its judgment as to what issue was important enough in character, and effectively so irreversible in its nature, as to warrant an increasingly well-educated and aware electorate giving its approval specifically to what was proposed.
An upper House of the character I imagine would exist to exercise its judgment, a matter emphasised by the noble and learned Lord, a quality which is by its nature indefinable. If that House were to perform these functions adequately, its membership would 272 need independence and authority in equal measure. We certainly had the independence in the previous, unculled House; we lacked the authority. I suspect that we may have a little more authority now, but, semi-reformed as we still are, we still lack the authority that we need.
Would the authority of a fully reformed House be enhanced by the suspension of the Salisbury convention? I listened to the noble and learned Lord with great care, as I always do, in view of the deep respect in which we all hold him. I was not quite sure whether he implied that we should abolish the Salisbury convention. I do not think that he did. If that is true, I again find myself in agreement with him, and not merely for reasons of grandfilial piety.
As the noble and learned Lord said, the Salisbury convention did not begin as a convention at all but rather as an agreement between my grandfather and the then Leader of the House, Lord Addison. The noble Lord, Lord Peston, was quite right to refer to it as the Salisbury/Addison convention rather than merely the Salisbury convention. It was designed for exactly the same reasons as the noble and learned Lord gave, and, as he said, it worked. But since then this temporary agreement has been transmogrified into a convention.
When I first became Leader of the House in 1994, it seemed to me, on inquiry, that it was not entirely clear what the convention said. I was given a number of different definitions, including one from my noble friend Lord Carrington, which was, predictably, infinitely the most satisfactory one. So, in a rather lengthy and boring speech and in exchanges before and after the 1997 election débâcle, I rather impertinently tried to define what it said. As no one actually disagreed with my efforts at definition, I came to the conclusion that I was not too far out. The convention says that the House will not vote at Second Reading against a manifesto Bill or pass a wrecking amendment during the remaining stages. After consultation with the learned Clerks, I understand that, in the final analysis, it is for this House to determine what constitutes a wrecking amendment.
Although, rather like the noble and learned Lord, I am sceptical about the doctrine of the manifesto, I find it difficult to see that it would be wise for this House, reformed or not, to oppose a specific commitment which formed part of the election platform of a new government. Equally, in purely practical terms, I think it is a little silly for us to vote at Second Reading against a Bill which we wish to delay. After all, it sets the Parliament Act clock ticking rather earlier than would otherwise be the case.
My time is well up. As far as concerns the Parliament Act, I hope that the Government will look again at the speech last Friday of the noble and learned Lord, Lord Donaldson—the noble and learned Lord had some extremely sensible things to say—if only to clarify the workings and the legality of the Act. I am very pleased to see that the noble and learned Lord the Attorney-General is to answer the debate. He may want to add a little more to what he said last Friday.
273 It is an important debate. I hope that it will be the first of many and that it will inform those who should develop proposals for a full stage two. On that subject, I hope that the Government and both the main opposition parties can co-operate in a public rather than a private forum—perhaps the proposed Joint Committee of both Houses—to try to build consensus for a full reform at stage two rather than indulging in a cosmetic exercise. Such consensus will, I hope, produce something a good deal better than the "Wakeham B" element, with which I fear we may be landed.
§ 3.46 p.m.
§ Lord Dahrendorf
My Lords, we most certainly owe a debt of gratitude to the noble and learned Lord, Lord Simon of Glaisdale, for giving us the opportunity to discuss the powers of your Lordships' House at a time when, although there is no immediate proposal before us, manifestos, I suspect, are being drafted.
This debate has given me the opportunity to read a great deal of recent, and not-so-recent, literature on the subject. I wish that I had the time to read more of the fruits of that exercise to the House. I shall, however, refer to an article in The Times by one of my favourite columnists, Simon Jenkins, with whom I often strongly agree and sometimes, like today, strongly disagree. Our debate last Monday, in my view, showed your Lordships' House at its best, precisely because of the combination of scientists, "ethicists", lawyers and thoughtful lay people. Mr Jenkins did not like that. He wrote:On Monday night, British stem cell research was left in the hands of a group of people with no democratic, professional or territorial legitimacy".He added:On the whole I prefer to be ruled by those for whom I vote. I did not vote for any of this lot".I would be surprised if he voted for any of the other lot, at least its majority, and I am surprised that he did not notice that we were actually letting the other place have its way. But it gives me a welcome opportunity to say a few words about the vexing issue of legitimacy, notably in relation to the Salisbury convention and the primacy of the House of Commons.
I shall begin with the Salisbury convention and add one or two points to the important statements made by the noble Viscount, Lord Cranborne. Its thrust is, in the words of the noble Viscount's ancestor in 1945, that,it would be constitutionally wrong when the country has expressed its view, for this House to oppose proposals which have been definitely put before the electorate".The noble Lord, Lord Carrington, a former Leader of the House, whom I am delighted to see in his place, repeated in similar terms more than 40 years later that this House should not,wreck any measure which the Government had made plain at a General Election they proposed to introduce",because,the country had, by implication, given its verdict".274 Fifteen years later, the Wakeham report went even further, saying that,where the electorate has chosen a party to form a Government, the elements of that party's general election manifesto should be respected by the Second chamber".Most of the time, this view is taken almost as a constitutional dogma. Even the Constitution Unit, in its research paper on reform of the House of Lords, states:Although the Convention rests on the debatable assumption that measures included in a Government's general election manifesto are de facto approved by the public at large, its force remains".Does it, though? I suggest that there is quite a progression of completeness in the "debatable assumption" moving from the notion of "proposals which definitely have been put before the electorate" through measures on which "the country had, by implication, given its verdict", to "elements of the general election manifesto" which, in practice, means the text of a manifesto, lock, stock and barrel.
One must be allowed, in following this line, to raise a few obvious questions. What is the exact status of such manifestos? Who has prepared them? How democratic is their base? What role do manifestos play in election campaigns? To what extent can it be assumed that voters are in fact familiar with them, or even with their elements? What do we know about voter motivation? How can it be shown that the implication that voters have given a verdict on manifestos is actually correct? To say nothing of the most complex question: in these fast-moving times, how should we constitutionally deal with changing priorities and preferences on the part of the electorate? Would it not be more democratic and legitimate at times to set aside the manifesto and start again?
Earlier authors were perhaps less precise but also more plausible on this score. To quote Bagehot on this point:I answer that the House of Lords must yield whenever the opinion of the Commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. Whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which practical questions are decided".Admittedly, this "common way" begs a number of questions, but I would argue quite strongly that neither snapshots of public opinion nor elections for five-year terms provide all the answers. To be sure,the people are the only legitimate fountain of power".But James Madison, who coined the phrase, starts his argument from this point and does not end it there. In his view it follows that the different powers, admittedly in the American case and therefore separate—legislative, executive and judicial—have to derive their legitimacy from the people by different channels. General elections are but one such channel and one that is, for example, inappropriate for the judiciary.
It is most certainly not my intention to devalue elections, but there is a kind of fallacy of misplaced concreteness in the uncritical identification of the will of the country with a party manifesto, and in that of legitimacy with majorities constituted by, say, 43 per 275 cent in general elections. If we go back to the sources of the modern constitution of Britain, we encounter less mechanical and hence more plausible views which remain relevant.
What conclusions should we draw from such reflections? I suggest, not very dramatic ones. However, it seems to me that we must not turn the Salisbury convention into the dogma of sacred party manifestos nor should we doubt the right of your Lordships' House, as constituted today, to scrutinise, amend and, from time to time, reject legislation. The plurality of talent and experience assembled in this House, the patent independence of many of its Members, the way we conduct our business and the restraint we exercise in our relations with the other place are themselves sources of a legitimacy which transcends the simplistic concepts sometimes used even in distinguished newspapers.
§ 3.56 p.m.
§ Lord Norton of Louth
My Lords, I welcome the debate and congratulate the noble and learned Lord, Lord Simon of Glaisdale, on initiating it. So far this has been an excellent debate, which is another way of saying that I agree with virtually every word that has been spoken. I agree wholly with both the noble Lord, Lord Peston, and with the noble Lord, Lord Dahrendorf. The only qualification I have is in relation to the speech of my noble friend Lord Cranborne, who knows that my views on referendums are not quite the same as his. Otherwise, I found myself in complete agreement with the points that have been made. In my comments I wish merely to reinforce those points.
The Parliament Acts have to be considered in the context of our constitutional arrangements. I believe that the constitution that evolved in the last half of the 19th century—what is often termed the Westminster model—has served us well. It may not be perfect, but it has proved preferable to the alternatives. It has delivered a number of attributes that cannot be delivered by other systems on offer. It delivers, among other things, accountability, coherence, flexibility and effectiveness.
It is the element of accountability that I wish to emphasise. This is a core, a fundamental, attribute of our political system. Our system ensures that one body—the party in government—is responsible for public policy. Electors can choose between parties based on their electoral programmes. If electors disapprove of the policy adopted by the party in government, they can sweep it out at the next election. There is no dispute as regards who is responsible for public policy. The party in government may be powerful between elections, but come election time, it knows that the ultimate power rests in the hands of the electors. There can be no buck passing, no hope of staying in office, in the face of electoral rejection.
Our constitutional arrangements deliver that accountability. The electoral system facilitates accountability. So, too, does the relationship between 276 the two Houses of Parliament. The second Chamber is complementary to the first. This House fulfils a number of functions and, in my judgment, it fulfils them well. It fulfils them in a way that is qualitatively distinctive. As such, it adds value to the political process. The relationship is, I believe, fundamentally sound, allowing accountability to reside in the elected first Chamber. The second Chamber can question, but can neither block nor override the first Chamber if the first Chamber insists on getting its way. We can ask the other place to think again; we can offer amendments to legislation; we can force government to justify what they are doing and we can raise issues that otherwise might be neglected. As a House of experience and expertise, we can fulfil those tasks in a way that complements a Chamber of elected, full-time and, increasingly, career politicians.
The Westminster model has been challenged in recent years. It has been challenged by the changes made to the constitution. These, to some extent, have undermined the Westminster model but have not destroyed it. In part, this may be because the Government, though intent on change, have no coherent alternative model to offer. Constitutional changes have been disparate and viewed essentially as discrete reforms. The Government knew on entering office what they wanted to do, but had no idea as to where they thought they were going.
The second challenge has come from attacks on the remaining relationships within our constitutional arrangements. One of these challenges has been to the role of this House and its relationship with the other place. As we have heard, that relationship is governed largely by the Parliament Acts and by the principles on which those Acts rest.
I believe that the relationship between the two Houses, governed by the Parliament Acts—I shall come to the Salisbury convention in due course—is about right. We can, if we choose, vote against a measure, forcing the other place to think again. If the other place, the elected House, decides that it wishes to proceed with a measure, it is entitled to do so. I believe that is right. I believe that it is fundamentally democratic in a way that two elected Chambers would not be—I very much follow the point made by the noble Lord, Lord Peston—and I believe that the present arrangement serves the nation well. It retains the fundamental attribute of accountability while injecting into the process a body of expertise and experience, something that is not on offer in other systems. I believe that is a very real plus to the political process.
For those reasons, I am keen to retain the present relationship. I believe that those who challenge the position of the Parliament Acts are doing this House—and, more especially, our political system—no favours. I am appalled when Ministers or Members of the other place say, in advance of any discussion in this House, that a particular measure must not be rejected by your Lordships. This House is perfectly entitled to exercise its powers. Some people may disagree with the judgment made by your Lordships, but that is no reason for challenging the power exercised by this 277 House. It is, rather, a case for saying that those who disagree should engage in a reasoned debate on the substance of the issue.
Similarly, I would caution against condemning the other place for deciding to exercise its powers under the Parliament Acts. I agree that it should do so on a discriminating basis, but it is entitled to do so if, after reflection, it decides that it wishes to insist on its original measure. It is the elected House; it has the legitimacy to exercise that power.
There is no qualification contained in the Parliament Acts as to when the other place may or may not exercise its powers under the Acts. We may disagree with the decisions of the other House—we may regard its decisions as outrageous—but that is not the same as saying that its actions are constitutionally outrageous. Its reasons for exercising the power may be outrageous, but the exercise of the power itself is not constitutionally illegitimate. The distinction is an important one to draw.
Given that the relationship is, in my opinion, about right, what then flows from that in terms of where we go from here? I am opposed to fundamental change. I see no reason for an elected second Chamber. I see even less reason for a part-elected/part-appointed Chamber. That would be a purposeless institution, the worst of both worlds. I have argued that case before. I do not want to digress on it today.
My focus here is the Parliament Acts. I see no convincing case for any reduction in the powers of this House. Hence, I do not believe that the capacity to delay legislation for a Session should be reduced. The other place needs time to think again. Indeed, I think this House needs the leverage of a one-Session delay if it is to ensure that the other place pays attention to what it says.
Conversely, I can see the objection to extending the powers of this House. I believe that the Royal Commission, chaired by my noble friend Lord Wakeham, got it about right in arguing that the provisions of the Parliament Acts should be left as they are. The only qualification made by the Royal Commission, that the Parliament Acts themselves should be protected from amendment by the Parliament Acts, is eminently sensible and I agree with it. The conclusion reached by the Royal Commission applied to the reformed Chamber, but it applies equally well to the Chamber as presently constituted.
Perhaps I may turn now to the Salisbury doctrine—although, following the point of my noble friend Lord Cranborne, at the time it was not a convention. Indeed, it was not even produced by the then Lord Salisbury; it was of course produced by, as he was at the time, Lord Cranborne. So, rather than the Salisbury convention, what we really had was the Cranborne doctrine, which was enunciated in 1945.
There have been significant developments since its enunciation. The Parliament Act 1949 was subsequent to the enunciation of the doctrine. Since then, of course, there have been the Life Peerages Act and the House of Lords Act. This House is now predominantly 278 a body of life Peers. No one party has an overall majority and it is constrained by the provisions of the 1949 Act.
Given that the Parliament Acts, on my argument, get it about right, I ask the same question as others: do we still need the Salisbury doctrine? On balance, I think, yes—but in modified form. The Government are elected; we should normally defer to the other place. But we should not offer a blank cheque. I am not persuaded that we should ever have done so, But now I think that we are in a position where the new constitutional arrangements provide a peg on which we can reflect on what the position should be. In my view, the Salisbury doctrine should constitute what I would describe as a second-order, or a soft, convention of the constitution.
There are exceptional circumstances in which we should be prepared to divide on Second Reading and, if the House so decides, to refuse a Second Reading. I agree with the argument advanced by the Royal Commission. We need to review the doctrine and, in effect, generate criteria—or, if you like, guidelines—as to the circumstances in which that might occur. The Royal Commission, I think correctly, said that no concrete dividing line can be drawn between when it would be acceptable and when it would not. But we need some criteria, some reference point. Indeed, I refer back to the debate in your Lordships' House in 1993, initiated by the noble and learned Lord, Lord Simon of Glaisdale, when he identified two criteria that might be employed. We should build on those.
In doing that, it does no harm to the constitution. The Parliament Acts are in place; this House can bring to bear its experience and expertise. If absolutely convinced that there is a case for rejecting a measure—if there is a solid intellectual case and there is evidence that supporters of the Government in the other place share the misgivings of this House—we should not be afraid to use those powers under the constitution to ask the other House to think again. I put it in general terms. We need to refine it further.
The effectiveness of the relationship between the two Chambers, if it really works well, would be shown by the fact that we do not need to refer to the Parliament Acts and the Salisbury convention. But they do need to be in place.
I have overrun my time. I shall conclude with one final observation. The debate on the reform of this House has demonstrated that generally there has been an absence of a capacity to engage in constitutional discourse. We used to have that capacity in this country; we lost it in post-war decades and we have never really regained it. We talk about changes to the constitution but really do not have the capacity to talk about the constitution as a constitution. We need to regain it if we are to discuss the role of this House in the serious manner that it deserves.
§ 4.8 p.m.
§ Lord Desai
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, in introducing the debate, said that we did not have a separation of powers; we 279 had a balance of powers. I should like to argue that the balance of power has now been disturbed. We can no longer be satisfied that our current arrangements are ideal. They are not. We should think hard about all these various problems—and this is a good occasion on which to do so.
The 1911 Act was passed at a time when the franchise was limited. Much has happened to the franchise, even since the 1949 Act. The development in party political structures, in voting patterns and so on has meant that, more than ever before, the danger of the excessive power of the executive is today the major problem of the British constitution. It is not that the other place should not be sovereign; that we concede. But that does not mean that the executive should get away with as much as they do get away with. That is a problem that we have failed to address in the past 50 years or so.
The "Cranborne doctrine", as it is called, was very helpful in 1945. I say that because, as the noble and learned Lord said, the 1945 Labour Party came into power determined to change fundamentally the nature of property ownership in this country. That actually challenged a very basic part of the constitution. It had to be accommodated because it had won the people's support. I see the Cranborne doctrine as saying that this House, which, in the imagination of the people and in fact, represented the property classes more than any other place, will not stand in the way of a popular government who mean to attack property.
However, we no longer have a party that will attack property—sadly, or happily, as the case may be. So we are no longer in that situation. But I also believe that the Cranborne doctrine 2 has made the Cranborne doctrine 1 somewhat irrelevant. The reform of your Lordships' House has meant that we shall never again have a situation in which one party with an inbuilt majority has the ability to frustrate legislation time and again in a kind of wanton fashion.
We must ask ourselves whether the Salisbury doctrine 1 is now of any relevance. As everyone else has said that it is, I shall say that it is not. I do not say so perversely, but once you move away from a fundamental difference—namely, what the 1945 Labour Party represented in terms of the notion of property ownership—the Salisbury doctrine I becomes a further limitation on the powers of this House; in other words, it is not part of 1911 nor part of 1945. It is a further restriction; in other words, that this House will not do certain things, which it perfectly legitimately can do. I heard the noble Lord, Lord Norton, say that, in a sense, Salisbury or no Salisbury, we must exercise our powers, limited though they are, to the full.
By and large, this House has been shy in exercising its full powers. I have been in this place for only 10 years, but I have many times heard people say, "We cannot actually go against the other place. They are the elected Chamber, so we really ought to concede. If they have rejected our amendments, we should not insist upon them". We have done so because we have that additional doubt about our legitimacy. Again, the 280 reform of your Lordships' House has at least diminished our illegitimacy. We are slightly less illegitimate than we used to be, but I do not know whether or not we are more legitimate. My own preferred solution would be a fully-elected Chamber, but that will never happen so we may as well not worry about it.
We must decide upon the precise nature of our function. Although we are supposed to be a revising Chamber, and so on, I gather from what my noble friend Lord Peston said that there is a mild air of, as it were, ineffectualness hanging over us—we do various things but no one takes a blind bit of notice. If, occasionally, we do something that is important, people like Simon Jenkins criticise us for being effective. The problem is that our powers and abilities are not used efficiently under the current arrangements.
One of the matters that one should raise in a legitimate and open way and which should be reconsidered is the restriction in the 1911 Act on the Finance Bill. If we are not able to amend it, we should at least be allowed to discuss it. There is no reason why this House should not be able to discuss the Finance Bill in great detail. We know that we cannot amend it, but we are not even allowed to discuss it. I believe that to be a great waste of the talents that we have in the House. If we are to have no power to change any legislation and we are going to be allowed to exist, I believe—I have argued this point before—that we may as well become a committee of the other place; that is to say, we would discuss all the Bills and, as it were, amend them, but our amendments would have no force until they were agreed by the other place. That would be a much better use of our time. Any Bill from there would come to us after Second Reading. We would then discuss it thoroughly, much better than those in the other place could do, and then we would send it back to them in an improved fashion. We would not need to engage in this legislative fight all the time.
Either this House has powers that it exercises and is taken seriously, or we have no powers. At present, our powers are limited by one or other convention, or some bullying, and we may as well not bother. There is a kind of constitutional confrontation to be had here. We ought to forget or rescind the Salisbury doctrine. We should have slightly more edge in our debates.
I do not believe that manifestos are serious documents. I have spent much time during many elections at polling stations and knocking on doors on behalf of my party, but I cannot say that I have read any of the manifestos since 1970. I doubt that anyone else has done so, not even Members of Parliament. They are not serious documents. Indeed, the doctrine of the Labour Party when I was, as it were, in the rank and file was that, basically, every Labour Government flouted the manifesto upon which they were elected. There is a great belief in that respect in the conference; indeed, the conference derives its moral energy from knowing that a government are about to betray their manifesto. Therefore, I do not believe that we can take manifestos seriously, unless, as the noble and learned 281 Lord, Lord Simon of Glaisdale, said, they consist of propositions that the government in question intend to embody in law and put to the people either by way of referendums or in clearly demarcated pieces of legislation.
On many occasions during the debate on the reform of this Chamber mention was made of the fact that, when people were asked, only 2 per cent of them had noticed that the reform of this House was part of the Labour Party manifesto. But, to me, that was neither here nor there. Whether or not people read the manifesto is not the problem: in our constitution the party in power gets its way. The only question is whether it should get its way arbitrarily, wantonly and without caring to listen to us. If the government are to be made to listen to us, we should have fewer, rather than more, restrictions on how effectively we can exercise our powers. The more that we can push our right to make them think to the limit, the better the constitution will be. Therefore, I believe that the Salisbury convention has had its day; it should be retired.
§ 4.18 p.m.
§ Earl Ferrers
My Lords, it is always fascinating to speak after the noble Lord, Lord Desai. If I may say so, he talks an enormous amount of common sense and it is always fun to listen to him. I enjoyed his mea culpa, in which he said that he had not read any party manifestos since 1970. Of course, if I were unkind, I might suggest that, had he done so, he might not be sitting where he is today. However, I shall not say that.
I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this debate because it is on a fascinating subject, as well as being topical. There is no one in this House—or, indeed, very few other people—who could surpass the noble and learned Lord in knowledge of the constitution. I do not wish to consider what the composition of this House should be or what might happen in the future. Those matters are for another day. But I believe that my noble friend Lord Cranborne was right when he differentiated between the powers of the House and the authority of the House. They are two totally different issues. Of course, if you want power, it must be an elected Chamber. But I personally would be wildly against that because, although it may be democratic and all that jazz, we would take on a major confrontation with another place, which would be perfectly disastrous.
I was interested in the Salisbury convention to which the noble and learned Lord's Motion refers—or the Salisbury/Addison convention, as we are now told it should be called. This has been passed down like a royal diadem from generation to generation, even though it started only in about 1940.
§ Earl Ferrers
My Lords, I beg my noble friend's pardon. If he had just kept quiet a little longer, I would have said that, but I do so on his prompting.
282 The Salisbury convention has always been treated with respect and dignity and great efforts have been made—with success—to ensure that it is not infringed or tampered with. As your Lordships know, it was introduced first by the grandfather of my noble friend Lord Cranborne when the House of Lords was a very different place from that which it now is. Your Lordships' House then consisted mostly of hereditary Peers, the sons of their fathers, most of whom, but not all, were Conservatives. Some new Labour hereditary Peers were created, but for some extraordinary reason their sons usually became Conservatives. In those days there were no life Peers and no women Peers. So, however hard the powers that be tried to tip the balance of the House away from being predominantly Conservative, like a gonk it always came back upright again. That caused complications.
It was in that scenario that the late Lord Salisbury, with the late Lord Addison, devised the Salisbury/ Addison convention, which states that if a Bill is introduced by a government which has been foreshadowed in the manifesto, the government are deemed to have a mandate for the Bill and the House of Lords should not oppose a Second Reading, nor put down wrecking amendments. That has, as we all know, worked exceedingly well. But the question which the noble and learned Lord's Motion suggests is: should that principle still continue? After all, in the days of the inception of the Salisbury/Addison convention, the House of Lords was a largely hereditary House, largely Conservative, with some Bishops and some Law Lords. We now have life Peeresses or life Peers and women Peers. The majority of the hereditary Peers have been vaporised.
The composition of the House of Lords is—and let us not forget it—a composition which is exactly what the Government wanted. They said that they wanted all hereditary Peers to go—"It is in the manifesto", they said. All was set to get rid of all hereditary Peers. Then the Government changed their mind and said, "No, we want to retain 100". So the engines were put into reverse and 100 hereditary Peers were retained. The House of Lords is, therefore, now a House the composition of which is exactly what the Government wanted and what the Government chose.
Someone said to me yesterday, after we had the debate on the possibility of changing the Wednesday debate to a Thursday, "Of course, you would be against any change". I was rather miffed by that remark, particularly as I voted with the majority. I replied, "I am not against change, I am in favour of good change". Like the noble and learned Lord, Lord Simon of Glaisdale, I question whether now is not the time for change.
All the speakers in the debate, other than the noble Lord, Lord Desai, have, I think, inferred that the Salisbury convention is good and should be kept. I could see the antennae of the noble and learned Lord the Attorney-General bristling against such reaction. I am fascinated by that. I shall look forward to the noble and learned Lord agreeing with me when he replies to the debate. He is a great moderniser. He would change anything, whether it moved or did not move, provided 283 that it constituted a change and provided also that it did not involve taking on the parliamentary draftsmen on anything so fundamental as changing an "a" to an "an". I came across that on the House of Lords Bill when I tabled an amendment to refer to an hereditary Peer rather than to a hereditary Peer. All the powers of the noble and learned Lord came to the fore. He said that my amendment was completely wrong because the parliamentary draftsmen had said so. Therefore, one can alter anything other than matters on which the parliamentary draftsmen have made a pronouncement, even when that is a matter of adding an "n". I do not think that that amendment was too much for the noble and learned Lord's intellectual powers but I think that it may have been too much for his gladiatorial powers.
I am therefore excited at the prospect of having the noble and learned Lord on my side and on the side also of the noble Lord, Lord Desai. I can assure him that that is more comfortable than having him against us. The real and simple point is that if the House has changed so much, is it right now to keep the regulations and practices which were appropriate for a bygone era when the House and its composition were totally different? If the House is now—to use that awful phrase which the noble Baroness the Leader of the House used—more legitimate and more authoritative, do the government of the day need to be protected from the forces which are no longer here?
I can see the argument. I shall wait with fascination to hear it trip off the tongue of the noble and learned Lord; namely, that if a government had just been elected it would be a bore to see the House of Lords throw out a Bill which had been in the manifesto. I can understand that but I doubt that it would happen all that often.
But if the House of Lords is to be, as the noble Baroness the Leader of the House told us, a check on the executive, should it not be given the freedom to do that? It is, of course, a democratic fallacy—I agree with the noble Lord, Lord Desai, on this—that anyone who votes for a candidate of a political party accepts, holus-bolus, everything that is in the manifesto of that party, which almost certainly is never read.
There is an argument that the Salisbury convention has served the House and the Parliament well, so let us leave it alone. The noble and learned Lord might think that that is a good old Conservative argument. But I am beginning to think that there is a greater argument; namely, that times have changed, conditions have changed, the composition of the House has changed and the time has come for that particular convention to change too.
§ 4.27 p.m.
§ Lord Campbell of Alloway
My Lords, the House will be grateful to the Cross Benches and, indeed, to the noble and learned Lord for having introduced this timely debate. Surely the question is whether the recommendation of the Royal Commission that some new consensual arrangement should be devised to re-establish practical working relationships between the 284 two Houses without amendment of the Parliament Acts should be adopted, or whether some statutory provision is to be imposed to debilitate the delaying power of your Lordships' House.
As the noble and learned Lord, Lord Simon of Glaisdale, said, abuse of the Parliament Acts can be redressed by a self-denying ordinance. Albeit that we debate under the long shadow cast by stage two, as heralded by the White Paper, the electorate is surely entitled to know the answer of each political party to the question that has been put either in the manifesto or in a perfectly clear statement of policy in the election campaign.
I only intend to refer to two recent developments: achievement of parity voting potential and the routine resort, or threat of resort, to secure Royal Assent of government Bills under the Parliament Acts (whether mandated or not) which has generated a form of resistance in this House not only in the manner of speeches but also in a new dimension of insistence which has to be addressed by the spirit of the doctrine—the approach of Lord Cranborne—not by the convention as such.
The achievement of parity voting potential constitutes a fundamental change of circumstances which deprives the Cranborne convention as such of any justification today. The routine resort to the Parliament Acts is said to have arisen on account of a single example—the War Crimes Act—on a non-mandated Bill. But the fact of the matter is that the Cranborne convention, which related only to mandated Bills, was observed from 1911 until the advent of this Administration. In any event I believe that this Administration would have extended it to non-mandated Bills. It is just unfortunate that the single example should have been used as a convenient precedent.
The purpose and substance of the Cranborne convention no longer exists, but the spirit of the doctrine was no more than a self-denying ordinance. As Lord Shackleton said in the bench-mark debate of 19th May 1993,Lord Salisbury produced a solution that made it possible for this House to function … as well as it could under difficult circumstances …it … is not recorded officially anywhere".—[Official Report, 19/5/93; col. 1786.]The convention has always been implemented by a series of ad hoc arrangements on government mandated Bills. The Royal Commission's recommendation 4.21/4.35 favours an updated version of the Cranborne convention—it calls it the Salisbury convention—which would represent a new balance of political authority as between the two Houses and reconsideration of the mandate doctrine. As was pointed out by Lord Rippon of Hexham in the bench-mark debate, manifestos are long, turgid and rarely read by the electorate; and the manifesto doctrine should apply to policy which has been made perfectly clear at a general election.
What kind of new arrangement can be devised by consensus in the interests of the orderly conduct of the practical working of this House and the retaining of comity as between the two Houses? It is by convention, 285 not by codified and defined amendments to the Parliament Acts which would import inflexibility and denigrate the ethos of independence. Is it not the approach of the Cranborne doctrine (in other difficult circumstances) which is of commanding fundamental importance? Is it not the only approach compatible with our largely unwritten constitution for bicameral government under the Queen in Parliament?
Perhaps the acknowledged function in a new form of convention for the House to delay Bills by rejection or amendment where the nation is substantially divided should be expressly reaffirmed. Perhaps on Bills which substantially affect the constitution—here I have to declare an interest—it should be for Parliament and not the government to decide whether there should be a referendum. Perhaps the sovereignty of each House over its own rules and procedures should be firmly entrenched—in so far as one can entrench anything under our constitution. Perhaps there should be some reappraisal of the exercise of our right to insist. Perhaps some accommodation could be had enabling the government, save in exceptional circumstances, to have their business irrespective of any mandate at a general election. I take on board much of what was said by the noble Lord, Lord Peston, in that regard. But I also take on board the views expressed by the noble Lord, Lord Dahrendorf, concerning the mandate. With respect to the House, what he said seems entirely right.
§ 4.35 p.m.
§ Lord Barnett
My Lords, I begin by adding my congratulations to the noble and learned Lord, Lord Simon of Glaisdale, on introducing such an important debate. There would obviously have been many more Members present if the debate had taken place on a Thursday. We shall hear from all the parliamentary leaders in this House. I hope, therefore, that we shall have some answers. When I refer to "leaders" I include potential leaders.
There has been little constitutional change; I am sure that some hereditary Peers may not agree. We had what might be called the Cranborne deal—a deal between the noble Viscount and the Lord Chancellor. The noble Viscount did very well to get that deal. He did so well that he was sacked by the leader of his party.
We are assured that it is a slightly more legitimate House—but only slightly. There is still not real reform. I am delighted to note the agreement of the noble Viscount, Lord Cranborne. The assumption is that we shall have real reform. I am delighted to see that the noble Lord, Lord Strathclyde, agrees. I await his speech with great interest.
I speak briefly as I have spoken often on this issue. I turn to the two main issues: composition and powers. On composition, I understand that what the Government have in mind—as I am sure we shall be told—will be based largely on Wakeham but with perhaps an even smaller number of elected Peers. I want to make this clear, as have other noble Lords. I agree strongly with the noble Lord, Lord Norton. I 286 should be utterly opposed to any smaller number of elected Peers in your Lordships' House. A hybrid House would not be helpful to anyone. I hope and believe—the Government should be so aware—that if such legislation were brought before us it would be opposed strongly from all sides of your Lordships' House
One has only to consider the matter to realise that it is something of a nonsense. My noble friend Lord Peston referred to this. How would this small number of Peers be elected? How would it be done? Would they represent constituencies or regions? Would election be by the PR system? Would they be independent Peers; and, if so, how? Would they stop political parties putting up candidates?
Another important factor is the size of your Lordships' House. As at 15th January this year there were 691 Members of your Lordships' House. Under the deal agreed by the noble Viscount, Lord Cranborne, there could be another 32 Labour Peers. That would take the figure to well over 700. There will be a few new independent Peers. We already have more than 160 Cross-Bench Peers. We shall have some elected Peers. So we may have nearly 800 Members of your Lordships' House. I hope that your Lordships will agree with me that to proceed along those lines would be raving mad. Perhaps we could have some voluntary retirement as The Times suggested. I am not sure how to describe what the noble Lord, Lord Strathclyde, implies by his action: that for Members to retire voluntarily could be well paid! We are assured by the Leader of the House that it is not true.
Perhaps there could be not voluntary but compulsory retirement. Rarely do anywhere near 700 Members of your Lordships' House vote. In the major and very good debate on Monday just over 300 voted. I know that there will have been some genuine abstentions, but we very rarely have more than 400 voting. Perhaps we should have some voluntary or compulsory retirement. I am not sure whether 75 is an appropriate age—perhaps it should even be a little younger. That would mean losing some important Members of your Lordships' House. We heard from the noble Lord, Lord Roll of Ipsden, earlier, and there would be many others. I certainly would not want to lose the noble and learned Lord, Lord Simon of Glaisdale. The real issue of composition has not been considered seriously.
I reiterate what a number of noble Lords have said about powers. It is vital that real powers are given to a second Chamber, if only to provide a check on what the noble and learned Lord, Lord Hailsham, described as the elected dictatorship. We have that now in another place, with a government majority of more than 170. The noble Lord, Lord Pym, was sacked for daring to suggest such a thing to the noble Baroness, Lady Thatcher.
Although an elected government will have their way in the main—and so they should—surely we must all accept the right of a second Chamber to revise and, if necessary, seriously work to delay legislation introduced by a government with a substantial 287 majority in another place and to ask the other place to think again—or, as the noble Viscount, Lord Cranborne, said, to deter a government from getting away with it.
Reference has been made to the Salisbury/Addison convention. That was a deal. The noble Viscount's ancestors seem to have been good at striking deals. They struck one with Lord Addison and stopped him calling it the Addison convention. The problem is that it is based on manifestos. My noble friend Lord Desai said that he had not often read the manifesto. In many years of canvassing on the doorsteps, I have not yet found anyone who had read a manifesto of any political party, yet the Salisbury convention is primarily based on a manifesto that nobody has read. The noble Viscount, Lord Cranborne, likes what he calls the "flexibility" of the convention, although he conceded in a debate on 7th February last year that there were,some doubts as to what comprises its detail".—[Official Report, 7/2/00; col. 394.]The noble Lord, Lord Strathclyde, said in a Politeia lecture that the convention needed redefining. The noble Lord, Lord Wakeham, said in his report that the new House should pragmatically consider changes that might be needed, with a new convention. Even some real experts such as Dicey, Jennings or some of the experts in your Lordships' House cannot agree precisely on what the Salisbury convention means. Even the grandson does not really know what it means.
The convention is very uncertain. I prefer statutory certainty. I thought that the noble Earl, Lord Ferrers, agreed with me on that, although I doubt it. I do not want to provoke him, but he certainly seems to be in favour of some change. I hope that my noble friend the Minister will tell us that the Government's position is that in a future House, reformed under a new Labour Government, we shall have certainty.
In conclusion, I have some questions for the leaders who are to reply to the debate. Do they agree with the Wakeham commission that there should be a small number of elected Peers in a reformed House, which presumably would number nearly 800 in total? Will existing Peers have the right to voluntary retirement, as has been suggested? Will there be any reduction in the real powers of a second Chamber? I hope not. As has been said, a government with a majority in another place should have the right to get their business through generally, but that does not mean that we should not have powers to say and do something about it. Will all that be in a manifesto, so that we can base any new Salisbury convention on what is said in that manifesto?
I accept the need for a second Chamber and its vital role of providing checks and balances on the elected dictatorship in another place. I hope that we shall always have such a Chamber.
§ 4.45 p.m.
§ Lord Rees
My Lords, I add my thanks to the noble and learned Lord, Lord Simon, who introduced the 288 debate with impeccable timing one week after the noble and learned Lord, Lord Donaldson, enabled us to debate the Parliament Acts. Today we have concentrated more on what we must learn to call the Salisbury/Addison convention. I am sorry that time did not permit the noble Viscount, the present Lord Cranborne, to tell us a little more about the development of the thinking of his distinguished ancestor, the Prime Minister, on the issue in the 19th century and about the precise circumstances in which the convention was negotiated between his grandfather and Lord Addison. Perhaps it should more properly be called a pragmatic understanding that has stood the test of time. Given how long it has endured and its tacit, if not explicit, acceptance by all concerned, it has achieved the patina of a convention. There is some merit in its perpetuation, provided that it is recognised that, at least at the margins, it must adjust to changing circumstances. In extreme situations, it may need to be set aside. That cannot be done with legislation.
The convention, or understanding, rests on one or more fictions. The first is that the manifesto of the majority party in the other place must be treated as having received in its entirety the imprimatur of the electorate. The second is that, throughout its period in office, the majority party, presumably by its continued communion with the electorate, has achieved a legitimacy denied to other participants in the legislative process. A moment's reflection will show that neither proposition can be accepted without massive qualification. I see no reason why a second Chamber, as an institution, should not be accorded a measure of legitimacy acquired by time and the successful discharge of its functions. I like to think that the current House might qualify on that basis.
Be that as it may, the real question that the Salisbury/Addison convention endeavoured to address, with considerable success over many years, concerns the proper balance between the elected and the non-elected Chamber. We have been told by members of the Government in this Parliament that we are a subordinate House—sometimes they flinch from putting it quite so baldly to us, at least in this Chamber—and that we are a revising House. The House can provide a critically important constitutional role.
Majorities in the other place come and go, sometimes rather rapidly. This House, however composed, continues. We have a special duty to maintain the constitution and safeguard its working. The Salisbury/Addison convention does not deal adequately with that.
It may, for example, be our duty to give the electorate a chance to express a view on measures of deep constitutional significance emanating from the other place. In a sense, that thinking underlies some of the provisions of the Parliament Act 1911. I believe that the respectable argument which should be put forward from the Conservative Benches is that the electorate should be given greater opportunity to reflect on the constitutional implications.
289 I turn next to our revising role, which has been acknowledged—if in a rather patronising way, I am bound to say—by the Government. I acknowledge that the detail of legislation which is conceded to us may be important and that all too often neither the government in the other place nor the other place as a whole have much time to reflect on detail. An absurd position arose during the passage of one Bill when the Government tabled more amendments than the Opposition.
There has been a considerable increase in the number of guillotine Motions, by convention in the past resorted to sparingly, so that consideration of parts—perhaps important parts—of a Bill often have not been scrutinised before being received in this House.
Then there is the unattractive spectacle of Divisions taking place some days after the debates to which they relate. Of course, the procedures of the other place are not for us to debate. However, the revising role, which is ours, must take some account of the effectiveness of the scrutiny to which measures have been subject before they reach us. In that regard, we should give more attention to, for example, the details of finance Bills. I believe that that point was touched on by the noble Lord, Lord Desai, and my noble friend Lord Campbell of Alloway. I entirely agree, recognising of course that governments must be permitted to get their finance Bills in due time.
I hope that all those points will suggest that there is a busy and important role for us in this House and that anything less will weaken the control that the legislature—both Houses—should have over the Executive and, ultimately, the bicameral basis on which our constitution depends.
§ 4.52 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, first, I add my thanks to the noble and learned Lord, Lord Simon of Glaisdale, not only for initiating the debate but for choosing such an opportune moment for it. My perceptions have been sharpened by the debate, which is welcome; but I must admit that it has also weakened my certainties, which is always uncomfortable. I would almost prefer to go away and think about what has been said than to contribute anything of my own.
Given all the global factors today, I agree very much with the noble Lord, Lord Peston, about the exaggerated belief by governments in their power. I am worried by what the noble Lords, Lord Peston and Lord Norton, said about a partially elected House possibly being the worst of all worlds. I agree with the noble Viscount, Lord Cranborne, about the need to rebalance the relations between this House and the other place, and I shall say a word or two further about that. And I agree very much with my noble friend Lord Dahrendorf and the noble Lords, Lord Desai and Lord Barnett, among others, about the doctrine of the mandate and, in particular, the role of manifestos, about which I shall also say a few words.
Indeed, I suppose that I am most worried—in that I am trembling on the brink of a loss of faith—about what the next stage of reform should be and when it 290 should come about. However, I take it that on these occasions I do not have to speak with the authority of my party behind me but, rather, I can listen to what is said and judge it on its merits. My view is that we should wait for a while before further reform to see how the House settles down under its current arrangements. And I believe that we should spend much more time—this point is aimed at the Government—in seeking a consensus. When reform comes, it is more likely to be wise reform if it takes place in the second Session of the new Parliament and not in the first.
Meanwhile, I want to make some remarks about the question of the balance between the Lords and the Commons and also about the doctrine of the mandate. Initially, I believed that these would be mildly heretical remarks, tested against the conventional wisdom of the day. However, the conventional wisdom has been turned on its head, and now I find myself very much in support of—although, in some cases, perhaps a little beyond—views which have already been expressed.
I believe that in this House we all accept the description of the noble Lord, Lord Wakeham, that the Commons is the pre-eminent Chamber of Parliament. We refer in commonplace language to its primacy. However, primacy for the Commons arises from its evolution as a result of the extension of the franchise in 1832, 1867, 1884 and since. Its role, status and primacy stem from its elected and representative character, which earns it legitimacy, authority and respect.
The paradox which has been widely expressed is that much of the discussion about the future of the Salisbury doctrine before today stems from the fact that this House, as it now is, is, in the words of the Leader of the House, the noble Baroness, Lady Jay, more legitimate, more authoritative and more worthy of respect. In other words, the House of Commons has earned its primacy through change and through the advance of democracy, ultimately resulting in legitimacy. However, the argument now is that, because we are more legitimate, we should exercise less power. I do not believe that that is logical and I do not believe that we should accept it.
Indeed, I do not consider that the argument is about legitimacy at all; it is about the dominance of the House of Commons and about the fear of competition from this House. It is a conservative rather than a radical argument because, the more legitimate this House becomes, it is about either maintaining the status quo or redressing the balance. My fear is that the instinct behind this leans towards a unicameral system, with this House merely as an appendage of the kind that the noble Lord, Lord Desai, suggested.
The existing balance is not the only formula for constitutional peace in a democracy with a universal franchise. We all know that the United States has found a different method. That is a different system altogether and I would not argue in favour of its balance of power. However, the United States has an elected House of Representatives and Senate, and it is an effective parliamentary democracy by any standard.
291 Therefore, it should not be axiomatic that, as this House becomes more legitimate or representative, in whatever way, its powers or the use of them should be in any way diminished. Indeed, I argue that they should be more often heeded and this House more often trusted.
I turn to the question of the doctrine of the mandate. That has always seemed to me to be deeply flawed, and I believe that there is a need to approach it with the greatest caution. It is flawed because it is constructed in circumstances which do not enable the government of the day—particularly a new government succeeding one of a different political character—to know what they will find. All governments coming into power for a first time open the books and find something different to what they expected. In those circumstances, it is wholly flawed to pursue a course which may now be the wrong one.
It is also the case that all governments are thrown off course by war or disaster or, for that matter, by changes in world oil prices. There again, it would be quite wrong for a government to pursue a course which was no longer relevant because circumstances were different. The duty of every government is to do what is best for the country.
Standing against what is best for the country, the manifesto is a relatively small thing. Indeed, essentially the manifesto is a convenience for political parties. It is helpful to party management because the leadership of the party is able to make its policies at a time when the leadership's views are most likely to be accepted. It enables the leadership to go its own way in its manifesto if it chooses, or to find a way to reconcile factions. That is the essential purpose of a manifesto, and it is irrelevant to the government of a country.
For all governments, the motto is, "Heads I win, tails you lose". "Heads I win" is true if a government implement their manifesto, and "Tails you lose" is true because a government can choose to depart from it, for a reason that they claim is good and sufficient.
There is no basis for a doctrine such as the Salisbury convention to rest on the doctrine of the mandate. No election has been fought and won on the basis of a manifesto—elections are fought and won according to the state of the country, the opposition and the leadership of the parties. Elections are often won despite a party's manifesto. The Labour Party won despite the unpopularity of nationalisation; the Conservatives won despite the fact that no one trusted them with the National Health Service; and the Liberal Democrats often get support from those who are not as committed as that party is to adopting a strong view on Britain's role in Europe.
It is not possible to claim that manifesto promises, especially those at the bottom of the pile, receive any meaningful approval. They may not have concerned the majority of voters at all. A referendum is not a referendum on each item contained in a party's policies.
292 The helpful Library Notes referred to the remarks that Lord Salisbury made in 1964. He referred to the Salisbury doctrine as a "broad guiding role". That is exactly what it should be, and how we should approach it. We should do so in the light of the deeply flawed doctrine of the mandate, and exercise our own judgment about when it is, and when it is not, appropriate to carry out the letter of what it suggests.
My current fear is that the Government, after inadequate consultation, will put into their manifesto detailed proposals for the next stage of reform, including proposals as to the number of elected Members, and that they will leave only the nuts and bolts of parliamentary procedure to the cross-party committee of both Houses, which has been promised. They will claim that the doctrine of the mandate gives them the opportunity to carry out what they have put into that manifesto. I hope that my fear will not prove to be justified.
§ 5.3 p.m.
§ Lord Strathclyde
My Lords, we are rightly indebted to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this debate. He is an example to us all for having brought the matter to our attention. He has always been a zealous defender of the rights of this House. Indeed, he is one of the most formidable parliamentarians of modern times.
The noble and learned Lord may be the last Member of this House to hold senior Treasury office and later to become a Law Lord. His is a unique constitutional voice.I hope that he will grace us with his presence for many years to come and is not lured into early retirement—we read about this in the press—by the bounty offered by the noble Baroness the Leader of House.
This debate is the second movement of a duet, of which the first part was played—very persuasively, I thought—by the noble and learned Lord, Lord Donaldson of Lymington, last Friday. When two distinguished former Law Lords touch on the same issues, I sit up and listen. Indeed, as a junior Minister, whenever I saw the noble and learned Lord even stirring, I knew that I had better sit up and listen; otherwise, I would be in trouble. I shall be interested to hear the reply of the noble and learned Lord the Attorney-General.
I hope today that the noble and learned Lord will be less dogmatic—he is at his least attractive when he is being dogmatic—than when he swatted away the noble and learned Lord, Lord Donaldson of Lymington. He declared then:There is no ambiguity in the Parliament Acts which needs to be corrected".—[Official Report. 19/1/01; col. 1328.]No, it was the former Master of the Rolls who needed to be corrected.
If only I could be as sure of anything as the Government have been on the constitution. Some might say that they have been too clever by half. New Labour has asserted that our well-tested constitution has no place in a modern Britain and that hereditary Peers are indefensible. The Human Rights Act 1998 is 293 treated as the Holy Grail and closed lists for European elections are unchallengeable. Even if the noble and learned Lord the Attorney-General is so sure about those matters, will he accept that the most radical change in this House for 350 years casts at least some doubt on the relationship between this House and another place? That is the proposition that lies behind this debate, and I agree with it.
I shall not repeat what I said last Friday about the Parliament Acts. Suffice it to say that, like the noble and learned Lord, Lord Donaldson, I think that there is room for doubt about the validity of the Parliament Act 1949. The Government, by their ready resort to the use, and the threatened use, of the Parliament Acts, have moved those Acts on to a new plane. They have used them in relation to details that were not in a manifesto—they did so with closed lists. They also used the Parliament Acts on a moral issue to stop your Lordships' amendments being discussed in another place. They now threaten to use the Parliament Acts in relation to hunting and trial by jury. That unhealthy enthusiasm to press the constitutional nuclear button itself justifies this debate.
I turn to the Salisbury convention. It was born in the old Britain that New Labour set out to sweep away and in an entirely hereditary House which was wholly dominated by the Conservatives. It was a gentleman's agreement but it served us well. Indeed, it became, as my noble friend Lord Cranborne declared in 1996—he has been unduly modest about his role in this regard—a settled part of the old constitution. My noble friend was right—it was a long speech, but it was not a boring speech. That declaration ensured that major government business that was set before the people at a general election was not wilfully wrecked by this House. It was never intended to stop this House from improving legislation. It never envisaged that this House must bow down, like Pavlov's dogs—or, dare I say, like poodles—before another place on matters outside the manifesto, on details of legislation or on great moral issues, which should always be subject to a free vote.
However, by passing the House of Lords Act 1999 the Government tore up the old rules and deliberately altered the terms of trade between the two Houses. It is hard to argue that one must do away with the old House but keep the old conventions. The conventions that the Government seek to sweep away are those that act as checks and balances on executive power. The conventions that they want to keep are those that suit their purposes. However, in November 1999, New Labour brought into being a new House, backed by overwhelming majorities in both Houses. As the Jay doctrine put it, they created a House that would be "more legitimate", that would "carry more weight" and that would keep the "executive better held to account".
It has not always felt like that. When the noble and learned Lord the Attorney-General sums up, I hope that he will answer two specific questions. First, does he agree that on subjects such as NATS and trial by jury, in relation to which the Government tried to do what they pledged they would not do before the 294 election, this House has an unfettered right to throw out the relevant legislation? Does he agree that no government should use the Parliament Acts in such circumstances?
Secondly, does the noble and learned Lord accept that using the Parliament Acts across two Parliaments, although allowed by Clause 2 of the 1911 Act, would break all constitutional practice since 1911? Every government at the end of every Parliament have dropped unfinished business and left it to the next Parliament to decide its course. Until the threats over hunting, I thought that that had become, by usage, an established part of our constitution.
Perhaps the Government thought that the 1999 Act would change nothing other than the names on the pegs downstairs. In a speech in the autumn of 1999, which was referred to by the noble Lord, Lord Barnett, I warned that that simply could not be the case because the Government were changing the constitutional ground. They could not expect change not to follow. The old certainties had gone and we cannot know where things will end. All the relevant factors—the powers, composition and functions of this H ouse—are inextricably involved in the settlement that will evolve. That is why we have consistently argued that the Joint Committee of both Houses must look at composition as well. It would be extremely helpful if the noble and learned Lord the Attorney-General could tell us when that Joint Committee will be set up, because if he can do so, then the prediction made by the noble Lord, Lord Peston, that we are all wasting our time might, on this occasion, not be correct.
I do not believe that even this new House has the right to challenge the other place on Second Reading or by tabling wrecking amendments to core manifesto items of legislation. In a modern world, only an elected House could do that. But given the new composition of this House, the Salisbury convention deserves to be reviewed and this debate is part of that process.
The upper Chamber is no longer as it was in 1945 and the pace of politics itself has changed. Today, the global economy moves much faster than politicians imagine. It is difficult to reconcile an absolutist approach of total compliance by this House over five years with the modern world.
And I totally agreed with the noble Lords, Lord Dahrendorf and Lord Desai, and, in fact, almost every other noble Lord who spoke on this subject, when they referred to the status of manifestos. Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?
While the case for giving manifesto promises a relatively easy ride in the first few Sessions of a government's life is largely unassailable, subject only to Parliament's overriding duty to safeguard the constitution, it does not mean that that should automatically extend to the whole five years.
295 In the view of the noble and learned Lord the Attorney-General, are there no limits to a manifesto promise or, indeed, non-manifesto proposals that this House can be made to accept? Does the noble and learned Lord think that the 1999 Act changed anything? Will New Labour observe the Salisbury convention as it understands it, exactly as agreed in the 1940s, when they come back into Opposition; or is its view that a new doctrine now applies, perhaps the one explained by the noble Baroness the Leader of the House on "Question Time" last week? On cloning, she implied that this House must not challenge the vote of the elected House. The noble Baroness then weakened her case by stating that she would vote differently from another place on hunting. Perhaps the doctrine applies to Members of the House but not to the Leader.
But be that as it may, what is the position as the noble and learned Lord now understands it? Do the Government believe that this House must invariably defer to a vote in the elected House? If that is the case, then Mr Blair expects far more of this House than Mr Attlee or Mr Wilson expected of the hereditary peerage. It shows less legitimacy, freedom and respect for the distinguished people who have been put in this place than was owed to the despised ranks of noble Dukes, Marquesses and Earls.
Surely the Government cannot seriously claim that the votes of this House must echo the votes of another place on every issue, under threat of the Parliament Acts. That way unicameralism lies. I was delighted to hear the noble Lord, Lord Rodgers of Quarry Bank. He too has spotted the dangers of that or, even possibly, the New Labour plot. Lurking behind unicameralism is a threat of a new presidentialism, with no effective containing power. That cannot be the way for Parliament.
I thank the noble and learned Lord, Lord Simon of Glaisdale, for initiating this important debate and I very much hope that the noble and learned Lord the Attorney-General will make it crystal clear that that is not the view of this Government, whatever the impression that has been given in the past.
§ 5.14 p.m.
§ The Attorney-General (Lord Williams of Mostyn)
My Lords, I thank all noble Lords who have taken part, but in particular I thank the noble and learned Lord, Lord Simon of Glaisdale, who, on this occasion and on these matters, has been our mentor, as so often in the past.
The noble Lord, Lord Strathclyde, said that 1945 was a different world. It was. It was a land of grinding poverty, gross inequality, no protection for women or minorities, inadequate education, no National Health Service, no Human Rights Act and vicious legal pursuit of those who had different sexual preferences from the alleged majority. So I am glad that we have moved on, and not all the work has been completed.
Quite a number of specific questions have been put to me and I shall do my very best to answer them in the 20 minutes only that I have.
296 The constitutional arrangements that we have in our country, as I see them, depend on a respectful balance between the powers of both Houses and that adjective I contend to be of great importance. However, it is not, and cannot be, contended to be an equal balance. It is a balance, as has been recognised by all of your Lordships who have spoken, in which this House must ultimately defer to the Commons.
One of the specific questions that I was asked by the noble Lord, Lord Strathclyde, is whether this House has the unfettered right to overturn, for example, measures in relation to NATS or jury trials. The answer to that is to be found in the Parliament Acts and the answer is plainly: no. That is what the law of our constitution provides. Therefore, this House has, literally, the inability continually to foil the determined, settled will of the Commons. That is what the 1911 and 1949 Acts provide, and they are quite independent, in that connection, of the Salisbury convention.
Therefore, it is not a question of convention alone; it is enshrined in two statutes. The noble Lord and others referred to our debate on Friday on the Bill introduced by the noble and learned Lord, Lord Donaldson of Lymington. The purpose and entire consequence of the first part of the Bill—irony of all ironies to be savoured, bearing in mind what has been urged this evening—would have been to entrench absolutely the 1949 Parliament Act. My modest suggestion was that it was not needed because there is no ambiguity about the 1911 and 1949 Acts taken together. Whether or not I am right, the consequence of the Bill of the noble and learned Lord, Lord Donaldson, would simply have been to entrench absolutely, without any question of doubt, the power of the other place.
I am most grateful for the scrupulous, civil analysis of our constitutional arrangements which was put forward by the noble Lord, Lord Norton. The basis of the balance is the self-evident proposition that the Commons must be supreme because, as he said, of its periodic accountability to the electorate at an interval of not more than five years. I do not believe that any noble Lords addressed that simple proposition as he put it. I cannot think why that may have been.
It cannot be and it should not be an absolutist supremacy. Nevertheless, it is a supremacy that we need to recognise and in my case, for the reasons absolutely and clearly adumbrated by the noble Lord, Lord Norton, I applaud it. After all, the supremacy of the Commons must ultimately depend on the reflected virtue of their popular election. If your Lordships take a different view, let us hear it unambiguously because I have not heard it.
The basis of the Salisbury convention, therefore, does not change by virtue of any alteration in the composition of this House. That is the further question with which the noble Lord, Lord Strathclyde, asked me to deal.
Some of the descriptions of our arrangements which were put from various quarters did not, I think, recognise the true British nature of our constitution. I referred to the respectful balance but that balance does 297 change subtly and sometimes quite imperceptibly according to time, according to occasion, according to topic.
I shall give one or two recent examples. The noble Lord, Lord Dahrendorf, referred to the matter. On Monday we had a most extraordinary debate. Whatever one's private views or whichever way one voted, it was a classic. I was forced to agree with someone in the lobby who said that the Commons could not have matched it. Casting my mind further, I do not believe that there is another legislature in the world—I am sorry to be unduly chauvinistic—that could match it.
The point about the quality of the debate and the fact that plainly some votes were altered by debate, and not by preconceived settled prejudice, is that we had it in our hands to destroy the regulatory scheme. The Minister made the position plain. No one was unaware of the seriousness of our power, but on that occasion we decided that, although we had the power and the authority, we would not exercise it because we considered the issues on the merits.
That is why I have tried to say to the House—I hope respectfully—that I despise no duke, I despise no marquess and at least one earl is my very good friend. That is also why these rather bald descriptions of what may or may not be done do not meet the spirit or practice of this House as it is at present or as it will become.
I turn to an alternative example, which came from the noble Viscount, Lord Cranborne, that demonstrates the opposite. He spoke of the deep respect that we give to the Delegated Powers and Deregulation Committee and its reports. Your Lordships will remember that recently on sentencing powers the committee strongly urged the House not to accept the form of a Bill that I was introducing, in part, concerned with sentencing provisions. I shall not go into the details as your Lordships know them. On that occasion, I said that I would pay particular attention to what your Lordships thought and, as is known, we went away and reconstructed the Bill. It was a government amendment, but it was a government amendment with virtue.
That is an example not of the power of this House, but of the authority of the argument and of the quality of that committee. However, we all know perfectly well that that committee is of recent origin. It has developed its own authority and not its own power; it has its own influence on the minds of your Lordships and on the way in which debates are carried out. I draw on those two examples only to suggest that some of the descriptions in absolute terms have been mistaken because they do not go to the living heart of this place.
I turn to another proposition from the noble Viscount with which I disagree. He urged the extension of post-legislative referendums. I believe that if one thinks that through one will consider that the consequence would be bad for both Houses because it would take away from the authority of Parliament. I believe that to be wrong.
298 I do not believe that the Salisbury convention has fallen into disuse. What is it? It is a doctrine that has become accepted in constitutional circles so much so that it has come to be known as the "Salisbury convention". It has been raised in the language of politics to become a constitutional convention. That means that it is definitely part of our constitution. I certainly regard it as such and so does my party. In my view, it follows that it would be, in the words of a grandfather, "constitutionally wrong for any party or individual to suggest that, whatever the outcome of a general election, this convention would not hold".
Of course, that was not my grandfather but the grandfather of the noble Viscount. That is a quotation from the most interesting lecture that the noble Viscount delivered in 1996 in full expectation, first, of a general election and, secondly, it may have been—I have been reading John Major's excellent autobiography over Christmas—in the full knowledge of the likelihood of a Labour victory.
I turn to what was said about the manifesto. It seems that your Lordships despise manifestos and the doctrine of what I suppose I could call "implied acquiescence". The noble Lords, Lord Desai, Lord Barnett, Lord Rodgers. Lord Strathclyde and the noble Earl, Lord Ferrers, all seemed to be a little on the sniffy side in relation to manifestos. It reminded me of Mr Mervyn Griffith-Jones in the case of Lady Chatterley's Lover at the Old Bailey when he asked the jury whether that was the sort of material that they would want their servants or even their wives to read.
It may be that not everyone believes every dot and comma of every manifesto and it may be that I am the only person in your Lordships' House who can say with any shred of believability that I have indeed read the Labour Party manifesto. Of course, the election engages the public mind on perfectly known propositions. I suggest that whether people read manifestos or not is not really the point.
I turn to the sad state of the nation as exemplified by an hereditary Peer and an historian, the noble Earl, Lord Ferrers. He now seems to have taken to the revisionist and militant tendency. I believe I heard fall from his lips the fact that he actually wanted a change. I fell back in horror. Had I not been seated I would have fallen further.
The noble Earl and I have a good deal of regard for each other and fundamentally I do not believe that we disagree. I believe that we should maintain the Parliament Acts. If we have to look at the edges and the margins of the Salisbury convention let us do so. I do not believe in the unicameral system. The ability that we have, unsparingly exercised, is a powerful part of our constitution. But there are others.
If I may say so, generally it is foolish to overlook the other constituents of our constitution. We have a thriving free press that I am told sometimes brings about political consequences! We have the greatest Act of devolution of power from the central executive—namely, the Human Rights Act—that has occurred for the past 100 years. It is idle, because it is wrong and superficial, to say that we have a centralising 299 Government. Devolution to Scotland, to Wales, and if our hopes are fulfilled, to Northern Ireland, under the overarch of the Human Rights Act, is the greatest constitutional agenda that we have been able to contemplate for 100 years. That is not tinkering with the constitution. That is willingly putting on the executive the yoke of scrutiny by the courts.
That reinforces my proposition that this is an organic constitution because we do things differently here. I am aware of the constitutional arrangements in the United States and I do not find them as perfect because there has to be an election every two years and a rolling Senate which means that no one does anything apart from fund raise and stand for election. With great respect I believe that our arrangements are better.
There were a few specific questions about retirement age. The only retirement age that could possibly be contemplated is one five years beyond any period at which I presently found myself! The noble Lord, Lord Strathclyde asked whether there can be voluntary retirement. It is available at the moment in the form of leave of absence. It is not enormously popular but it is there. Will there be a small number of elected Peers? Time and again the Leader has said that the Government accept the broad thrust of the recommendations of the Royal Commission chaired by the noble Lord, Lord Wakeham.
Essentially nothing has changed that requires any modification of the Parliament Acts. I shall be deeply unpopular for, as I have said on earlier occasions, allowing fact to intrude, but a curious point is how sparingly that power has been used. It has been used very rarely indeed: sometimes because tempers cool; sometimes because compromise is available; and sometimes because an election intervenes. It is constitutionally available and under the Parliament Acts therefore constitutionally proper for carry-overs to occur. Whether they do or not is not for me to speculate.
It is sometimes a pity that speeches of criticism in this House—and even some areas of this institution are capable of improvement; for instance, having debates on Thursdays—do not recognise what is brought about in this country. Even the raising of issues, quite vigorously and often with a good deal of expertise, changes the course of public debate. I am told that our colleagues at the other end pay attention to public debate, particularly during periods such as this. The fact that we do not win every vote does not mean that we do not have influence. Some of the comments about the future were unduly doom-laden and reminded me of some of the gloomier passages in The Pilgrim's Progress. But cheer up, my Lords, the pilgrims succeeded.
My Lords, before the noble and learned Lord concludes, perhaps I may ask a question. As one who has won 10 general elections, I wonder 300 whether he is aware that the majority of voters pay far more attention to the candidate's election addresses than they do to the party manifestos.
§ Lord Williams of Mostyn
My Lords, some do and some do not, but I believe that in most organised political parties the candidates' addresses have something to do with the party manifestos.
§ Lord Barnett
My Lords, before my noble and learned friend sits down, perhaps I may ask about his reference to the future composition of your Lordships' House. He did not take note of my point that, unless major changes are made, there are likely to be 800 Members in the future. Would the Government be happy with that?
§ Lord Williams of Mostyn
My Lords, I have said that government policy is, by and large, to accept the general thrust of the Wakeham commission. That commission pointed to what it thought was an optimum figure. I did not want to intrude into private grief by suggesting compulsory retirement—even paid compulsory retirement—but, plainly, we need to address that matter. That gross figure is exactly that. Before the great reform of 1999 we had a notional attendance of well over 1,500. The interesting thing was that no one was sure of the number because some had not answered their Writs. Among the best jokes made was that by the noble Lord, Lord Steel, who said that this is the only legislature in the world which can function only on the basis that a good majority of its Members do not turn up.
§ 5.32 p.m.
§ Lord Simon of Glaisdale
My Lords, it falls to me now to make two comments. First, I thank those noble Lords who have spoken in the debate. I do so most heartily. With respect, the quality of the speeches abundantly justified the choice of my noble friends on the Cross Benches in choosing this subject for debate.
Secondly, I note that my Motion as it appears on the Order Paper calls for Papers. Your Lordships are inundated with papers—perhaps almost as much on the constitution as on stem cells. But my noble friend Lord Northbourne is also asking for Papers and I would not wish to deprive him of that or indeed anything else. Therefore, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.