10 Schedule 13, page 126, line 5, at end insert—
(5BC) For the purposes of this section, the community charge additional element shall be calculated by deducting amount D from amount E, where—
§ 11 The Commons disagreed to this amendment for the following reason:
§ Because the amendment involves charges on public funds and affects local taxation, and the Commons do not offer any further reason trusting that this reason mat' he deemed sufficient.
§ 11A The Earl of Caithness rose to move, That the House do not insist on their Amendment 10 to which the Commons have disagreed for the reason numbered 11.
§ The noble Earl said: My Lords, I beg to move.
§ Moved, That the House do not insist on their Amendment No. 10 to which the Commons have disagreed for the reason numbered 11.—(The Earl of Caithness.)
11B Lord McIntosh of Haringey rose to move, as an amendment to the above motion, at end to insert—
but regrets that Her Majesty's Government are seeking to oppose Lords amendment 10 not on its merits but on the ground of Commons financial privilege, notwithdstanding that the Commons have in the past generally waived their privilege on issues relating to local government finance, and have done so in relation to other amendments made by this House to the Local Government Finance Bill.
§ The noble Lord said: My Lords, I rise to move formally Amendment No. 11B because this is the only opportunity I have to respond to the remarks that were made. I do not believe that it would have been in accordance with the procedure of your Lordships' House to intervene more than once. I wish to make as strongly as I can the point so helpfully made by the noble Lord, Lord Renton. I am making 187 a political protest and not a constitutional one. The noble and learned Lord, Lord Hailsham, recalled other parts of Erskine May and I certainly would not wish to contradict him on any of them. I draw his attention to one point I made where the noble and learned Lord appeared to be claiming that my reference referred only to private Bills. He may recall from his omniscient knowledge of Erskine May that the Commons has a Standing Order 191 which refers to local rates in private Bills. My references were to public Bills and not merely to private ones.
Erskine May goes on to make what I believe is the important substantive point at page 850:
The Commons in dealing with amendments by the Lords to bills for the administration of local and other rates and charges, which touched matters of privilege, have been influenced by recognition of the fact that, if the Lords amendments dealt with legislative and not fiscal objects, a rigid adherence on the part of the Commons to their privileges might exclude the Lords from the practical consideration of such Bills".
In essence that is the point I wish to make. Over the decades, going back as far as 150 years, it has been possible, as the noble Lord, Lord Chelwood reminded us, for this House to take an active part in consideration of all aspects of local government finance. That possibility is now at risk because of the changes to the system of local government finance. It is that perfectly legitimate political decision—in our view a very wrong one—which we are protesting against.
§ Moved, That the House do not insist on their Amendment 10 to which the Commons have disagreed for the reason numbered 11, since when an amendment has been moved to insert the words at 11 B on the Marshalled List. [Lord McIntosh of Haringey.]
§ Lord Simon of Glaisdale
My Lords, I do not wish to go over the constitutional points which have been so exhaustively discussed. I agree entirely with the noble Lord, Lord McIntosh, and the noble Lord, Lord Renton, that this amendment does not affect the Bill. Nevertheless, its terms are a motion of censure. It is the normal form of censure appended to the Queen's Speech when any Opposition wants to challenge the policy of government. If a vote of censure is carried then, if the government are defeated in the other place, they resign. What is being censured is the government's reliance on a privilege which is now accepted as a privilege though it may be expressly, covertly and implicitly waived.
A privilege may be waived so consistently as to disappear entirely. For example, it is the privilege of both Houses not to have their proceedings reported, but that has been waived so consistently that it can no longer be asserted constitutionally. However, this privilege has not been so consistently waived. It has been very frequently waived, as the noble Lord, Lord McIntosh, pointed out, but not consistently waived.
When I intervened earlier I ventured to quote what was said by Mr. Herbert Samuel during the proceedings on the Parliament Act 1911. This made it quite plain that the privilege was not being permanently waived. It was being kept in existence and could be waived on any particular occasion. Therefore, because this amendment is framed in the terms of a vote of censure and censures the 188 Government for advising the other place to insist on what is accepted as its privilege, I venture to hope that the noble Lord will not press it.
§ Lord Hailsham of Saint Marylebone
My Lords, I should like to associate myself with what has fallen from my noble and learned friend on the Cross-Benches. Where the Commons has disagreed with this House on a matter which is the subject of privilege, the Government have no option in the Commons but to insist on it on privilege grounds. It is done invariably. It always has been done. The amendment of the noble Lord, Lord McIntosh of Haringey, suggests that the contrary position could be taken by the Government; that is to say, they could disagree on the merits but not insist on the privilege. To my knowledge that has never been done.
I made four references to my recollection when I first raised the question of constitution on the first amendment in Committee. It is quite unprecedented for a government who disagree in the Commons on a matter which is uncontestedly now a question of privileges not to raise privilege. If they failed to do so they would be failing in their duty to the House of Commons. The privilege is not the privilege of the Government. It is the privilege of the House of Commons.
Where the Commons insists on an amendment, whether on the merits or any other grounds, contrary to what has been moved and passed through this House, it is the duty of any member of the Government to insist on the privilege on that ground and to give no further reasons. It would be absolutely unprecedented so far as I know for a member of any government of any persuasion on any difference on a matter incontestably of privilege to take any other course. I therefore suggest with great respect to the noble Lord, Lord McIntosh of Haringey, whose ingenuity I applaud but with the propriety of whose amendment I disagree, that he should not press it for the reason I have given.
§ 5.15 p.m.
§ Lord Henderson of Brompton
My Lords, on this occasion I am happy to agree with both noble and learned Lords and join them in trying to dissuade the noble Lord, Lord McIntosh, from pressing the amendment to a Division and in asking him to withdraw it.
I would put it like this. Although we know that it is the Government who have prevailed upon the House of Commons to disagree, the form is that it is not the Government who are disagreeing with the House; it is the Commons which is disagreeing. Therefore when the noble Lord regrets,that Her Majesty's Government are seeking to oppose Lords amendment 10 not on its merits but on the ground of Commons financial privilege",it is the Commons which, in accordance with its ancient custom and privilege, is disagreeing.
Although the Commons has argued on the merits it is disagreeing formally when it sends a message to this House on grounds of privilege. I should be very upset indeed if this House were to lend its name to any attempt to interfere with a time-honoured 189 formula that the Commons adopts on this occasion when it offers a hint of privilege and trusts that this hint will be deemed to be sufficient in the eyes of this House. I have great respect for the financial privilege of the House of Commons. I have great respect for the forms which are used between the two Houses and I should not like to see them changed.
§ Lord McIntosh of Haringey
My Lords, I share the respect expressed by the noble Lord, Lord Henderson, for the financial privilege of the House of Commons. It will not be unknown to the noble Lord, Lord Boyd-Carpenter, that I agree with the Labour Party manifesto of 1983. I am in favour of the abolition of the House of Lords. However, while it is here we have to make it work, have we not? I confess that my amendments in this respect are my second choice.
§ Lord Boyd-Carpenter
My Lords, the noble Lord says that, but will he explain why it was not included in the last Labour Party manifesto?
§ Lord McIntosh of Haringey
My Lords, ohne mich is the only way I can answer that.
These amendments were my second choice. I looked again in Erskine May and found, as the noble Lord, Lord Henderson, has quite correctly pointed out, that the hint of privilege is generally accepted by the Lords and the amendment is not insisted upon. On some occasions, however, when the Commons has rejected amendments on the ground of privilege and has indicated the fact in its formal statement of reasons, the Lords have not insisted on the amendments but have asserted by a resolution that they made no admission in respect of any deduction which might be drawn from the reasons offered by the Commons and did not consent that these reasons should thereafter be drawn into a precedent. There are examples of that in Erskine May from 1890 until 1921.
I did not pursue that tactic because under our rules of debate such a resolution would have been taken after the consideration of the Housing Bill in Committee rather than at the proper stage now. It is quite true that a resolution of that kind would have been more consistent than the amendments I have put down. Indeed, if I had been able to use the wording used by the Marquess of Lansdowne in 1909 they would have been a good deal more elegant.
That option was not open to me. I repeat that what I am doing here is making a political protest about the absorption of local government finance into our central taxation system. That is what we are complaining about. I believe that the protest has been made, and I am content to beg leave to withdraw the amendment.
§ [Amendment No. 11B withdrawn.]
§ On Question, Amendment No. 11A agreed to.