§ 11.8 a.m.
§ Lord Donaldson of Lymington
My Lords, I beg to move that this Bill be now read a second time.
As your Lordships know, the Parliament Act 1911 gave the other place power to secure the enactment of Bills with which this House disagreed. However, the power was subject to conditions.
In the case of a Money Bill, the Commons had only to pass it once, and wait one month to see whether this House would agree. If the House did not agree, the Commons could forthwith submit the Bill to the Monarch for enactment.
In the case of any other Bill to which the Act applied, the Commons could submit it for enactment only if they had passed it on three occasions and two years had elapsed between the first Second Reading and the third occasion on which it was passed by that House. The 1911 Act expressly provided that the new procedure could not be used in the case of a Bill which made provision for extending the life of Parliament beyond five years.
In 1949, the then government took the view that the timetable in the 1911 Act imposed too long a delay. They wished to substitute a requirement for the Bill to be passed by the Commons on two, instead of three, occasions and for only one year, instead of two years, to have elapsed. The other place supported that proposal. For reasons which escape me, as I thought it a reasonable proposal, this House disagreed.
The Bill as enacted by the Commons expressly stated that this was done on the authority of the 1911 Act. If that had been the case, matters would have been fine. There was, however, a fatal flaw. As your 1309 Lordships well know, it is a fundamental tenet of constitutional law that, prima facie, where the sovereign Parliament—that is to say, the Monarch acting on the advice and with the consent of both Houses of Parliament—delegates power to legislate, whether to one House unilaterally, to the King or Queen in Council, to a Minister or to whomsoever, the delegate cannot use that power to enlarge or vary the powers delegated to him. The only exception is where the primary legislation, in this case the 1911 Act, expressly authorises the delegate to do so. In other words, there has to be a Henry VIII clause.
The 1949 Act purported to vary the powers delegated to the Commons by curtailing the timetable. This could have been authorised by a Henry VIII clause in the 1911 Act, but there was no such clause. It follows that the other place, in enacting the 1949 legislation, exceeded its authority.
What is the result? That Act is not void; nor is it a nullity. But is flawed. As it is subordinate legislation—that is to say, legislation under delegated powers—the courts can be asked to exercise their power of judicial review. If, as in my view is undoubtedly the case here, the 1949 Act was made in excess of authority, the courts have the power to set aside the Act itself or anything done in reliance upon it. But—this is important—unless and until the courts take action, the flaw does not matter. Life goes on as if nothing were amiss.
That brings me to the very important question of whether the courts would grant an application for judicial review. Their power is discretionary. They will refuse to exercise it if the applicant has no personal interest in the matter; that is, if he would not be personally affected one way or the other whatever the court decided. In other words, the court will give no assistance to busybodies. They will also refuse judicial review if the applicant could have been expected to have applied to the court sooner. This is because third parties are entitled—and, indeed, bound—to treat the legislation as valid until they are told to the contrary. If they are not told very promptly, they may have acted to their detriment and may not be able to extricate themselves.
I should not expect the courts at this time to grant any application for judicial review of the 1949 Act, or of any of the legislation enacted on the basis of its amended timetable. They would say that it was all too late, or that the applicant had insufficient interest, or both.
However, a wholly different situation would arise if the other place again legislated without the consent of this House using the 1949 Act timetable and if that new legislation—I have little doubt that this might happen—were challenged promptly by someone with a sufficient personal interest. I know from long, bitter personal experience how difficult it is to say with certainty what a court will do, unless of course you are the judge! Even then, there is a substantial risk that an appellate court will lose its way. But making allowance for all of that, I would forecast that the court would set aside the new Act on the basis that the 1949 Act was 1310 flawed and could not be relied upon to authorise a new Act using that timetable. This would leave the 1949 Act on the statute book, but it could never thereafter be relied upon by the other place to justify legislation using its timetable.
As I say, I cannot forecast when that challenge will come. But, at present, the front-runner must be the Hunting (with dogs) Bill, if and when it is rejected by this House for a second time and one year has elapsed since its first Second Reading. But let me make it abundantly clear that the mischief at which this Bill is directed is not the Hunting Bill, or any other change in the substantive law.
What has troubled me and given birth to this Bill is something wholly different. One of the foundations of our unwritten constitution is a respect for the separation of powers. This involves Parliament avoiding criticising judicial decisions—and quite often it does so—and vice versa. The courts are also very strict about not criticising parliamentary decisions. Unfortunately, the scenario that I foresee will involve the judiciary being obliged to pass judgment on one aspect of the work of the other place. There will be no escape, even if it is only an application for leave to move for judicial review; indeed, no escape whatever. It will be misrepresented by the media and by some politicians as a major constitutional crisis.
I want to avoid that situation. Clause 1 achieves just that aim. It "confirms" the 1949 Act and everything done under its authority. The use of the word "confirm" will, I hope, satisfy those who, like me. are wholly convinced that the 1949 Act is deeply flawed. It will convince us that the flaw has been repaired. I hope that it will satisfy those who could not detect the flaw that all doubts on the part of others have been silenced. Either way, if this Bill becomes law no question of judicial review will arise in the context of the use of the 1949 Act timetable—either in the past or in the future. I should emphasise that I am speaking about the timetable.
In the Explanatory Notes to the Bill, I appear to have misunderstood and, therefore, misrepresented, the position of Professor Sir William Wade. I have received a letter from him in which he says that he agrees that the 1949 Act is subordinate legislation. He also says that my Bill is needed. However, he appears to think that the only limit on the delegated authority is the term relating to extending the life of Parliament. I have the greatest possible respect for his views on any matter of administrative law, but I simply cannot follow his reasoning.
There are two bars—two conditions—in the 1911 Act: one relates to extending the life of Parliament and the other relates to a timetable. If the House of Commons, acting unilaterally, can vary the timetable, so, equally, I should have thought that it could vary the provision about extending the life of Parliament. I cannot see the distinction between the two.
In the interests of freedom and human rights in the broadest sense, the true scope of primary legislation empowering subordinate legislation needs to be scrutinised with very special care. It is not sufficient 1311 that the literal wording of primary legislation appears to confer very wide authority if, when viewed in its legislative context, its purpose must have been more limited. This would arise in an acute form and the courts would be bound to become involved if, hereafter, the government of the day were to seek to vary the constitution or powers of this House using the Parliament Acts procedure. It is not a question of timetable; it is fundamental.
Subject to correction, I believe that the historical background to the 1911 Act was that in November 1909 this House rejected the "People's Budget", as it was called, introduced by the Liberal Government. Thereafter, the Government won two General Elections in 1910 focusing on that aspect and secured a promise from King George V if necessary to create sufficient new Peers to secure the passage of the Parliament Bill which by its terms enabled the House of Commons to enact a Money Bill within a month of its passing notwithstanding any objections by this House. It also ensured that this House could not delay the coming into force of other Bills to which it applied for more than two years.
That leaves open the question of whether the category which I have termed "other Bills" is limited to Bills designed to change substantive law or whether it extends to something which is fundamentally different; namely, changing the parliamentary legislative framework by varying the constitution or powers of this House. It is in my view a question which is decisively answered by the recitals to the 1911 Act. They read:Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation"— that is a masterpiece of understatement—And whereas provision will require hereafter"—"hereafter" is important—to be made by Parliament"—"Parliament" is important; it is not the House of Commons—in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords".Quite clearly just as the 1911 Act was an Act of the Sovereign Parliament, so it was envisaged that any further limitation or definition of the powers of the new Second Chamber should also be enacted by the Sovereign Parliament and not by the House of Commons acting unilaterally. It is in that context that the phrase,provision will require hereafter to be made by Parliament",can have no other meaning.
The 1911 Act restrictions on the powers of this House, to which this House consented, were an interim measure to enable the King's government to be carried on effectively pending a constitutional change. It did not authorise constitutional change at the sole wish of 1312 the other place. In a word, the 1911 Act contained the agreed terms of an armistice. The terms of a peace treaty were to come later. Part of those terms were agreed in 1999. I would not hazard a guess at when the process will be completed.
In Clause 2 of the Bill I have made express only what I believe to be implicit in the 1911 Act. Thus, for example, I have not suggested that the Parliament Act procedure can be used only for "manifesto commitments". There is no support whatever for such a proposition in the 1911 Act. Furthermore, even at that time it must have been clear that any such restriction had no logical basis. Voters do not in fact approve or disapprove of everything which is contained in a manifesto. A political manifesto is simply a prospectus upon the basis of which Members of Parliament are elected and a particular political party is entrusted with the government of the country. As time goes on the Government may think that the national interest requires some new initiative which was not contemplated at the election and did not make even a fleeting appearance in the manifesto. If it is considered to be sufficiently important, the Government must be able to use the Parliament Act procedure in order to change direction. However, it certainly should not be used on every occasion; it should be used only when a matter of grave importance arises.
Clause 2 of the Bill contains one exception to my self-imposed approach of not seeking to use this Bill to vary the existing law, and that is contained in paragraph (c) of Clause 2. This provides that the Commons shall have an opportunity fully to consider this House's views before it can proceed to pass an. Act without our consent. If this proves controversial, I shall be perfectly happy to abandon it. As I say, it is designed to ensure that timetable Motions in the other place do not deny that House an opportunity of fully discussing and considering the views of this House before imposing its own view. At the same time it was necessary to avoid providing a charter for Members of the other place seeking to mount a filibuster. I took the view that it was impossible to draft a precise definition of "fully discussed and considered" which would be appropriate in all circumstances. The concept was clear enough but its detailed application called for judgment rather than legislative precision.
Conveniently, Section 2(2) of the 1911 Act requires the Speaker to certify that the provisions of the section have been duly complied with. If the present Bill becomes law, he would need, before certifying, to exercise his own judgment as to whether there had been full discussion and consideration of all the provisions of the Bill concerned at a stage when the views of this House would be available. Section 3 of the 1911 Act provides that the Speaker's certificate shall be conclusive for all purposes and shall not be questioned in any court of law. I am aware that while there has been one case (Annisminic v Foreign Compensation Commission) where the courts have held that such a clause did not prohibit all judicial intervention, I am confident that they would not seek to review the Speaker's certificate.
1313 I now turn briefly to the other provisions of Clause 2 of the Bill which are, I hope, largely self-explanatory. The exclusions in Section 2(1) of the 1911 Act concerning Money Bills and Bills containing provisions for extending the life of Parliament are removed, but reinserted by paragraphs (a) and (e). This has been done in order to provide a more intelligible lay-out. If there are about seven exceptions in a sentence, one cannot understand what it is all about. Paragraph (b) entrenches this House's constitution and powers, subject, of course, to the omnipotence of the Sovereign Parliament. Paragraph (d) is designed to prevent some ingenious soul seeking to unravel all the protective provisions of this Bill by using the Parliament Act procedure to amend this Bill if it becomes law or to amend the 1911 Act.
As I said at the beginning of my remarks, I stress that this Bill is designed to remove doubts as to the past and to avoid doubts for the future. It is designed to avoid a collision between the courts and the other place. I commend this modest, but constitutionally very important, Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Donaldson of Lymington.)
§ 11.27 a.m.
§ Lord Strathclyde
My Lords, we should naturally be indebted to the noble and learned Lord for having raised this issue. However, this is the second time he has raised it. He published a Bill at the end of the previous Session which has now been resurrected with some amendments in the measure before us.
It is ironic that I do not think we would have discussed this matter if it had not been for the fact that since 1997 the Government have either used, or threatened to use, the Parliament Act as frequently as they have done. That action has led to this debate.
Why is this occasion so important? It is because this Bill goes to the very heart of the issue of bicameral government in our parliamentary system. There is no point in an upper Chamber if the executive dominating the other place is not prepared to listen to it and sometimes change its mind.
A century ago this issue would have grasped the attention of political commentators, academics, newspaper editors and, indeed, the general public. But, so anaesthetised do we seem to be by the daily trivia of government spin, that, until this week, the matter has barely broken the surface. Now, thanks partly to the initiative of the noble and learned Lord, Lord Donaldson, and partly to the threats of the Government over the Hunting Bill, that is beginning to change. Only this week those of us who read all the papers will have seen major pieces by, for example, Hugo Young, Peter Riddell, Donald Macintyre and Paul Routledge. These are not House of Lords "groupies" or, indeed, fanatical hunters. They are people who care about liberty. They are disturbed by the growing tendency of this Government to use, or 1314 threaten to use, the Parliament Acts. They are concerned about the growing intolerance of the Government.
But still many people seem too ready to take the Government on trust with regard to the constitution. That is the very area where, if I may say so, they have shown themselves least worthy of such trust. Of course, I do not throw that charge at the noble and learned Lord the Attorney-General but at the people in the heart of the command and control centre inside No 10. If nothing else, I hope that the Bill, introduced by such an authority as the noble and learned Lord, Lord Donaldson of Lymington, will open more people's eyes to the risks of the executive exerting untrammelled power to override this House.
Let me come directly to Clause 1 of the Bill. I am sure that the noble and learned Lord, Lord Donaldson, is right to wish to clarify the position on the authority of the 1949 Act. During the passage of the House of Lords Act 1999 I was approached by a number of people, including some Members of this House. They referred me to the constitutional guidance of a number of authorities, including Sir William Wade, Professor Zellick and others. As I understood it, they said that law made by using the Parliament Act 1949 was unsafe law. They suggested—and the noble and learned Lord suggested it again—that specifically to use the 1949 Act to enable another place to impose radical change on this House unilaterally was invalid. They asked me to urge your Lordships to take the House of Lords Bill (as it then was) through a two-year battle and force use of the Parliament Act so that its validity could be tested in the courts.
I am no lawyer and I recognise that there are conflicting opinions on this point. But I felt that there was some merit in those arguments. I saw a case for testing that opinion in the courts. But, as is now widely known, I decided not to pursue that option, and to recommend to my colleagues that we did not do so. And why? At what cost would that have been to the standing of this House? We would have had years of conflict in Parliament—years in which the motives of your Lordships' House for resisting change would have been traduced by the Government and their spin doctors.
That was not the right route then, but it does not mean that the law does not need clarification. And it does not mean that if the Government continue to use these Acts—as twice they have; as they plan to do on jury trial, and threaten to do on hunting—that someone else may not challenge the validity of the law in the courts. That would cause constitutional confusion. If that were to happen, it is a problem the Government would have brought on their own head by using what was intended as a constitutional nuclear weapon as a new Labour convenience. Distasteful though some measures that would be confirmed by this Bill are, I therefore urge the Government to support the line that the noble and learned Lord suggests.
1315 I turn now to Clause 2 which clarifies and toughens restrictions on the use of the Parliament Acts. At the very least, this is an issue which merits urgent discussion. First, it entrenches what has been understood to be the position: that the Parliament Acts could not be used to pass a Bill to extend the life of a Parliament beyond five years. Can there be anyone in your Lordships' House who would not agree that that is a thoroughly sensible and prudent provision?
Secondly, it would provide that the Parliament Acts could not be used to amend the Parliament Acts, or, indeed, this Bill. As the noble and learned Lord explained, the 1911 Act was used to carry the 1949 Act, which is the origin of the doubt that the noble and learned Lord identified. Given that it is unlikely that any executive would want to impose additional powers on an unwilling House of Lords, that the Wakeham Commission was against any change to the Parliament Acts to weaken the powers of this House, and that we on the Conservative Benches want a stronger, not a weaker, Parliament, I support the proposals of the noble and learned Lord on this point.
Thirdly, the Bill provides that the Parliament Acts could not be used to carry a Bill to,vary the constitution or powers of the House of Lords",or a Bill,not all of whose provisions have been fully discussed and considered by the House of Commons in the last Session … before being presented to Her Majesty".I agree with the noble and learned Lord that constitutional change affecting this House should not be imposed unilaterally by a single party. Arrogant exertion of executive will is no basis for lasting constitutional change. I also agree that we have seen some deplorable examples of a willingness to override your Lordships' House in the past three years. One has only to remember the discredited system for choosing MEPs, or the important amendments which were carried in this House at the end of the last Session on the sexual offences Bill and which the House of Commons was denied the opportunity to debate: the action of the Home Secretary in laying a No. 2 Bill in the other place in order to be able to use the Parliament Acts to by-pass the principled objections of your Lordships to the restriction of jury trial; and now the threats this week to use the Parliament Acts to the unprecedented level of applying them from one Parliament into the next in order to impose a total ban on foxhunting. To do that would be to defy a settled constitutional convention of almost a century: that notwithstanding the provisions of the Parliament Act each Parliament would begin anew and what was not passed at the end of a Parliament would be lost.
None of those issues to which the Government have applied, or have threatened to apply, the Parliament Act was in the Labour Party's manifesto. None of them is central to the Government's programme. None of them is essential to the safety and well-being of the realm. This Government have moved use of the Parliament Act on to a new plane. That is why the noble and learned Lord is so right to lay these issues before us.
1316 I look forward to debating the specific details of Clause 2 in Committee, if we reach that stage. There are issues to tease out. What, for example, comprises full discussion of a Bill? Should that have included discussion of this House's amendments to the sexual offences Bill, for example? I think that it probably should, but that needs to be clarified. But there is no doubt that the noble and learned Lord has accurately identified a danger, a creeping and worrying presidentialism in the making in which Parliament is expected to acquiesce, not in the small print of the manifesto but in the mood and convenience of the hour, or else be rolled over. I believe that we must find a way to deal with this.
My party in government would not be afraid to accept the consequences of a stronger Parliament. I trust that the noble and learned Lord the Attorney-General will agree with me. I suspect that he will be tempted to tell the House that all this must wait until a stage two reform of this House is in place. We have not heard that argument from the Government in the case of the Neill inquiry, procedural change, or as regards the new arrangements for appointing Cross-Benchers.
I hope that the noble and learned Lord the Attorney-General will not put forward that argument. If he does, we should reject it. The case for safeguarding Parliament against the abuse of power is made not on what might happen in the future but on what the Government have done and are threatening to do. The danger is clear and it is present. We should act now. I hope that the Government will support the motives and principles underlying the Bill. I congratulate the noble and learned Lord on bringing forward the Bill and very much look forward to debating it in detail.
§ 11.38 a.m.
§ Lord Shore of Stepney
My Lords, I am sure that the House and the country will be grateful to the noble and learned Lord for giving us an opportunity to discuss a matter of fundamental importance.
Basically, the issue is not simply the relationship between the two Houses of Parliament, to which the noble Lord the Leader of the Opposition referred, but the proper constraints which can be imposed in the 21st century upon the unbridled will of the House of Commons—what is appropriate and what is not. That is a bigger issue even than the scope of the Bill.
Having listened to the noble and learned Lord, I find no difficulty in following his guidance and advice on Clause 1 of the Bill. If there is doubt, anxiety and uncertainty, if we do not want to be faced with unnecessary challenges to future legislation under the 1949 Parliament Act, let us clarify. I believe that that is virtually uncontroversial. However, in Clause 2 we are on to the big stuff: we are at the very heart and nature of the distribution of powers between the two Chambers, and more widely. That is the issue on which I wish to comment. The Bill reaffirms the constraints that we are accustomed to, including the provision that this House has only one month to deal with money 1317 Bills, as certified by the Speaker. We do not seek to challenge that provision and nearly everyone accepts it. As the House changes in composition and the constitution changes, it is always possible for such matters to be reopened, but for the moment I take that provision more or less for granted.
There is also one clear limitation on the elected Chamber—it cannot, on its own, extend the life of a Parliament. That is crucial to our democracy, because even the elected Chamber has to have constraints imposed on it. That is the great precedent. I think that I am right in recalling that, during the war, the elected Parliament was renewed with the consent of the Lords, for perfectly sensible reasons, given the great crisis that our nation then faced.
Those two items are not currently under challenge. However, the three additional items that the noble and learned Lord wishes to bring into the special category are more difficult. In Clause 2(1)(b), he wants to exempt further legislation affecting the powers and constitution of this House from the normal procedures of the Parliament Act 1949. That implies an unacceptable rigidity about the role of the second Chamber. Nevertheless, there are reasons why unusual procedures should be resorted to when we are dealing with further changes to the constitution. I shall come back to that in a moment.
Paragraph (c) refers to Bills that have not been considered properly by the House of Commons. We can all recall a large number of candidates for that description in recent years. I am not terribly opposed to that proposal. The Speaker must be the only person who has the right to make such a declaration, acting impartially and doing his or her best in the interests of the House and the country.
Paragraph (d) would entrench the present situation too much, preventing the use of the normal provisions of the Parliament Act to amend or repeal this Bill or the 1911 and 1949 Acts. The only Bill that I am conscious of having been slightly involved in personally was the 1949 Act. We thought that it was right to reduce the delaying power of this House from two years to one. I can envisage circumstances in which further adjustment might be needed. I should not like those Acts to be wholly exempted from the procedures of change, which ultimately assert the authority of the elected Chamber.
The essence is to have a safeguard against the misuse or abuse of power in the House of Commons. In the famous agreement not to extend its life over more than five years, we have accepted that that is a danger. We are entitled to give that serious consideration. I am not sure the Bill's proposals are best devised for achieving the noble and learned Lord's aim. Our constitutional defences lack a way of differentiating the procedures that we have adopted under the 1911 and 1949 Acts from what might be called ordinary legislation—I think that the noble and learned Lord called it "substantive" legislation. I have no objection to that, because, however distasteful the use of the 1949 Act may be—I have voted against one or two of the more recent uses of that power—it is possible for ordinary 1318 legislation to be repealed. A subsequent government who do not like what has gone through can remove it, but they have to be patient, because governments do not always change frequently.
However, surely there must be a distinction between Acts that can be repealed and other major decisions by the House of Commons that could affect the structure of our Parliament and our constitution or—noble Lords may be expecting me to make this point—the rights of our people in the transfer of their powers from Parliament to foreign institutions. That is the greatest challenge that we face today. How can we go on being a sovereign Parliament in either House when we are constantly bombarded with legislation devised by officials in a foreign country and approved generally by the majority votes of a group of foreign Ministers? That is very serious. We have to find new constitutional protections.
Referendums have been developed gradually as a protection over the past few years, but they have not been brought to centre stage. That is the third element of democracy: we have the Commons and the Lords, but the ultimate authority and sovereignty must rest with the people. Society today is very different from that at the beginning of our democracy, or even a century ago. With the availability of mass communications, television, radio and the Internet, we have a much more educated population than we had before, despite certain failings. If we believe in democracy, more basic decisions must be endorsed by the people.
I disagree with the thrust of the Bill on that. The noble and learned Lord thinks that big issues—although he did not touch on the last one that I mentioned—should be dealt with by writing exemptions or restrictions on the Commons in a revised Parliament Act. That may be so. I am not happy that constitutional Bills should go through in the same way as some of the ordinary, substantive legislation to which the noble and learned Lord referred. There is a lacuna here. The House of Commons ought not to be easily able to make constitutional changes, as distinct from other changes, which, although we may find them disagreeable, we know that we can repeal.
We need to find a defence against those constitutional changes which alter the whole structure of the game—the practice of parliamentary democracy. It is not good enough that that should still be part of run-of-the-mill legislation. Therefore, I urge that further consideration be given to the matter. It will not be easy to rectify it.
Further, we should think seriously about the use of the referendum in particular and about the transfer of power from our Parliament and our people to international and European bodies.
§ 11.50 a.m.
§ Lord Campbell of Alloway
My Lords, it is a privilege to follow the noble Lord. I do not believe that I am competent to follow his thoughts about parliamentary democracy.
1319 The House will be grateful to the noble and learned Lord, Lord Donaldson of Lymington, for his masterly exposition. Having appeared before him in all his judicial capacities at the Bar, fortunately I agree with his erudite construction in relation to very difficult matters. If I did not, I would not presume to say so.
One purpose of the Bill, in Clause 2, is to amend the Parliament Acts and to seek to restore a delay of three Sessions and two years under the 1911 Act before another place—
§ Lord Campbell of Alloway
My Lords, if the effect of Clause 1 is to retain the existing timetable, so be it. I apologise to the noble and learned Lord for having thought otherwise. However, the debate raises the question of the difficulties of securing Royal Assent to government Bills, whether or not mandated, and the application of the Salisbury Doctrine. In a sense, this debate raises the curtain on the debate which is to take place next Wednesday on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, and on the Parliamentary Referendum Bill, which has its Second Reading on the 31st of this month. Therefore, one must assume a consistency.
I am unable to support a proposal to amend the Parliament Acts. Indeed, I should prefer that resolution of these difficulties is not dealt with by legislation but, in a manner devised by Lord Salisbury, by new practical ad hoc arrangements which would include some self-denying ordinance as to insistence.
The other purpose of the Bill in Clause 1 raises matters which are of serious importance. The House is very much indebted to the noble and learned Lord for providing an occasion on which these matters can be discussed. It is true that the preamble to the 1911 Act envisaged amendment. However, I wholly agree with the noble and learned Lord that it did not envisage unicameral amendment, such as that introduced by the 1949 Act, no doubt to secure immediate enactment of nationalisation of the steel industry.
There was no express provision to confer unicameral amendment to the 1911 Act as distinct from any other enactment. It is not proposed to consider whether a provision could have arisen by a surrender of sovereignty or by usage. This Bill has the great merit of laying the ghosts of the Grove Academe which have haunted the validity of the 1949 Act. The ghosts will now be exorcised and laid to rest. That, on any showing, is the great merit of this Bill and it is a matter worthy of consideration not only of your Lordships' House but of another place.
With regard to Clause 2(b), I wonder whether the noble and learned Lord, Lord Donaldson of Lymington, would consider an extension beyond "powers" to include the "functions and composition" of this House. Only the other day in The Times one read of a proposal for a 70-year mandatory retirement age for Members of this House. That would be a form of retrospective legislation with which I would not 1320 suppose for one moment the noble and learned Lord, Lord Williams of Mostyn, would be happy, although he might be constrained to support it. However, the presumption that we all go "gaga" at 70 and are troublesome at that age could not arise for many years in the case of the noble and learned Lord.
One difficulty which has arisen is a point which I made on the fifth day of the Address on the gracious Speech. I said that I believed that routine resort to the Parliament Acts to achieve the passage of Bills to be an abuse of that procedure. In a way, that has started to engender a form of routine insistence which is not at all desirable.
I would not have considered that this Bill as such would have pre-empted stage two substantive reform. However, there is a case for suggesting that perhaps it should not take effect before it. Generally, the merits of this Bill are such that they fully justify that it should be read a second time.
§ 11.59 a.m.
§ Lord Lucas
My Lords, I believe that our watchword in considering this Bill should be "respect". We should have respect for the constitutional position and democratic origins of the House of Commons. In some aspects, I do not believe that this Bill pays sufficient respect to the House of Commons. The House of Commons should have respect for our constitutional role. I believe that in their treatment of the Sexual Offences (Amendment) Act last year they showed insufficient respect for our role. They should have allowed the Bill to complete its passage in this House and dealt with it having had the benefit of our consideration. I hope that that precedent will not be repeated. We should all respect the constitution.
We should not let the Bill leave the House if it contains clauses that propose changes to our constitution. Those changes should come principally from the House of Commons. If they are to originate in this House, they should at least have the Government's agreement. I do not at all mind suggesting changes to the constitution. Potentially, many improvements could be made to the Parliament Acts. We might update the concept that lies behind Clause 2(b) of the 1911 Act, which was born out of conflict. We might examine the way in which conflict is resolved, with a fresh and more co-operative approach. That would ensure that, rather than the will of the Commons prevailing in a rather crude way, the best would be done for the Bill and the country, without incurring any extra delay. One could go on about possible improvements; we may have an opportunity to do so in Committee. We in this House should not pass Bills that change the constitution in such a manner if we cannot obtain the Government's agreement.
At its heart, the Bill does not do that. It starts by trying to avoid a conflict that the Government have set themselves on a course to meet. By applying the Parliament Act 1949 to the right to trial by jury, and, potentially, to the Hunting Bill, the Government will create for many people the right to judicial review of 1321 the 1949 Act. People will effectively be denied the right to trial by jury under the provisions of that Act. That appears to involve sufficient damage to apply for judicial review. Those who are deprived of the right to go fox-hunting will certainly feel the same.
Under those circumstances, it is highly undesirable for us to be riding into this enormous fence on a horse that does not have the ability to jump it. We should certainly take Clause 1 of the Bill extremely seriously and ensure that the 1949 Act remains a viable piece of legislation and that laws that are enacted under it cannot be questioned.
Some of the consequential rewriting in Clause 2 is also desirable. New paragraphs (a) and (e) merely repeat what was in previous legislation. New paragraph (d) should perhaps make it clear that the process for amending the 1911 Act must, in future, be a matter of consent. The provisions in Clause 1 and new paragraphs (a), (d) and (e) in Clause 2 would not in any way affect the constitution; they merely restate the constitution and underpin a piece of the foundations of our constitution that is beginning to feel shaky and which is likely to have a bulldozer run at it if we do not do something to reinforce it.
I have considerable concerns about new paragraphs (b) and (c) in Clause 2. The noble and learned Lord argued that Clause 2(b) is implicit in legislation that already exists. Yes, I share that argument, but it is extremely difficult to express it in the way in which the noble and learned Lord did. What is a,provision to vary the constitution or powers of the House of Lords"?Who is to make the judgment on what that is? With the Government's help, we might well devise something to clarify the situation. A procedure might be agreed with the Government that would make that possible. It would in effect make open what is implicit, as the noble and learned Lord said, in the 1911 Act. However, that needs to be agreed with the Government. We are also considering a position that was agreed in 1911, but which is really not acceptable now. It is not acceptable now for the House of Lords to have an absolute right to refuse to reform itself or for the House of Commons to have the absolute right to change anything about this country's constitution under the Parliament Acts.
I very much support the comments of the noble Lord, Lord Shore, on referendums. As the Commons slides more and more towards being an assembly rather than a parliament, it is important to get people's opinions on constitutional change through referendums. That might be an appropriate way to go. I am happy to discuss that with the Government, but I do not think that the Bill should contain a clause that would impose it on them.
I am very unhappy about Clause 2(c), which is an entirely new provision. Yes, I agree about the iniquity of what was done during the last Session. The House of Commons should show us the respect that we think is our due, and properly listen to the arguments we have made and the amendments we have agreed to. However, we in this House should not be trying to pass 1322 legislation regulating the way in which the House of Commons behaves. We can try to persuade, but we should not be trying to legislate.
The Bill has my support, if we can remove a couple of its provisions. I hope that it will enjoy the Government's support on the same basis. It would be extremely undesirable to allow the workings of Parliament to be questioned in the courts in the way that will inevitably happen if we do not pass a Bill such as this one.
§ 12.6 p.m.
§ Lord Goodhart
My Lords, the noble and learned Lord, Lord Donaldson of Lymington, raised an interesting and important issue for debate, although it is possibly an issue that is more suitable, at this stage, for an academic seminar than a debate in your Lordships' House.
An issue of fundamental importance is involved. If the argument advanced by the noble and learned Lord is correct, four Acts would be invalid, or were not validly enacted. Among other consequences, that could have the result that Members of the European Parliament elected from the United Kingdom in 1999 were not validly elected and, at least theoretically, were not entitled to sit in the European Parliament. However, I accept, as the noble and learned Lord said, that there is a question about whether that issue is now capable of judicial review, because of the time that has passed.
I also recognise that in order to justify the Bill the noble and learned Lord does not have to show that his argument is correct; he has to show only that there is a significant chance that the Parliament Act 1949 and the legislation enacted under it were invalidly passed. If that chance exists, it is obviously common sense to take corrective action now.
The argument for the invalidity of the 1949 Act has strong academic support. Professor Sir William Wade, Professor Hood Phillips and Professor Zellick are all academic lawyers of the highest distinction. Indeed, Professor Wade was my director of studies for two years when I was an undergraduate at Trinity College, Cambridge. He is undoubtedly a brilliant lawyer and teacher. It is true that ultimately the decision will have to be taken by judges. not academics. The Bill, and the argument in favour of it, were moved by one of the United Kingdom's most distinguished judges in recent decades.
Why is it, then, that I remain unconvinced of the need for and desirability of the Bill? The real reason is that I believe that the whole of the argument rests on a narrow and untenable base; that is, the argument that Parliament does not have unfettered power to change the procedures by which it enacts statutes. Plainly, Parliament has the power to change its own composition and to exclude Members. It did so most recently in the House of Lords Act 1999, which excluded most hereditary Peers. It did so in 1917 by excluding a number of Peers who were found to have been fighting on the German side in the First World War. It did so by the Welsh Church Act 1914 which 1323 excluded from your Lordships' House bishops holding sees in Wales. That part is particularly significant because Sir William Wade suggests that a change in the composition of your Lordships' House cannot be brought about by a Bill passed under the Parliament Acts. The Welsh Church Act was passed under the Parliament Act 1911 and, if that argument is correct, then Welsh bishops are still entitled to sit in your Lordships' House.
More important, of course, even than the composition of your Lordships' House is the identity of the sovereign. By the Act of Settlement of 1700 Parliament conferred the Crown, in succession. on to Queen Anne when she succeeded King William III, on the Electress Sophia of Hanover and her heirs.
The identity of the sovereign plainly goes to the bedrock of the constitution. It is as significant, if not more significant, than any restriction of the powers of your Lordships' House. But there is no suggestion that the assent to legislation of a monarch who owes his or her Crown to the Act of Settlement is in any sense delegated legislation or that the Act of Settlement itself could not be changed by an Act of Parliament assented to by a sovereign who owes his or her Crown to the Act of Settlement itself.
The Parliament Act 1911 was passed by the full constitutional process of Lords, Commons and Royal Assent. The argument that this is delegated legislation depends on the conclusion that Parliament, despite its theoretically absolute sovereignty, cannot formally exclude a requirement for the consent of your Lordships to the legislation and that therefore the Parliament Act 1911 can be supported only by a constitutional fiction—it is plainly a fiction—that it was delegating its powers to the Crown and the House of Commons to the exclusion of the House of Lords.
Any conclusion that the legislation passed under the Parliament Act 1911 is in any sense delegated legislation is simply fanciful. If Parliament can change the descent of the Crown, why cannot it enable the Crown and the Commons to enact legislation having fully equal validity to legislation enacted by the normal processes? I am afraid that I see no room for the argument that Parliament cannot create an alternative process to the enactment of legislation in a way which gives legislation enacted under the new process equal validity with legislation passed under the old process, including power to amend the Act which created the new process.
It is true that the exclusion from the Parliament Act process of power to extend the life of Parliament was not entrenched in the sense that that power can itself be removed by legislation passed under the Parliament Act. Perhaps it should have been entrenched; there is a strong argument for that. I confess that I have not read the debates in 1910 and 1911 to see whether that issue was raised and, if so, why this particular power was not entrenched. I suspect that the probable reason is that, as the preamble makes clear, the Parliament Act was seen as an interim step leading shortly to a full revision of the composition and powers of your Lordships' House. I do not believe for one moment 1324 that those involved in the Parliament Act 1911 thought that Acts passed under it were in any sense second-class legislation.
Unlike the noble and learned Lord, Lord Donaldson, I believe that nothing in the Parliament Act 1911 suggests that it could not be used for a Bill to alter the composition and powers of the House of Lords. As I indicated, that was done once in the Welsh Church Act. I believe therefore that the Act is unnecessary because the argument that legislation passed under the Parliament Act is delegated legislation is simply not tenable.
§ Lord Mayhew of Twysden
My Lords, I am grateful to the noble Lord for giving way; I have been listening with care to his argument. But did he not begin by saying that he accepted that the noble and learned Lord, Lord Donaldson, had only to show that there was a reasonable doubt? The noble Lord has been helpfully explaining his view that there is no doubt. But having regard to the weight, calibre and character of the authorities that take a different view—they are helpfully set out in the Lords' Library research paper—surely the noble Lord must accept that there may be a doubt here and that the purpose of avoiding doubt is very valuable when it is expressed either by the parliamentary draftsman or by the author of a Bill itself.
§ Lord Goodhart
My Lords, I am grateful to the noble and learned Lord, Lord Mayhew—he is learned and I am not in your Lordships' House—for his intervention. But I am reminded of something that the courts have said on a number of occasions; that is, the fact that a point has been argued at great length in the courts does not mean that it is an arguable point.
The fact that this particular argument has been put forward by three distinguished academics—though in the case of Sir William Wade only to a qualified extent—does not mean that, if it is exposed to the full light of day in argument, it shows there is sufficient force behind it to justify the introduction of anything in the nature of this Bill.
I also take the view that the Bill is not desirable. The passage of the Bill would throw doubt on the legitimacy of a Bill passed under the 1949 Act. It would be thought that there was enough doubt about that to justify an Act of Parliament. One wonders whether, for example, Parliament could retrospectively validate the election of members to the European Parliament, a body formed under the treaties of the European Union and not under domestic legislation.
The noble and learned Lord, Lord Donaldson, says that the courts will not judicially review an Act which has already been passed after the elapse of a certain amount of time. But I have to ask the noble and learned Lord: does he agree that, if there was a new prosecution, for example under the War Crimes Act, the person who was charged with the offence would clearly not be out of time in applying for a stay of prosecution on the grounds that that Act had not been properly passed? The noble and learned Lord indicates his assent.
1325 Let me turn briefly to the technical provisions of the Bill. We object strongly to subsection (b) of Clause 2. In the present unreformed or only partially reformed state of your Lordships' House it would be inappropriate to give your Lordships' House a veto over any variation in its composition or powers. That is true even in view of the slightly more legitimate present status of your Lordships' House.
New paragraph (c) of Clause 2 is perhaps of minor importance but it seems to me to be totally unworkable. How would it be possible to decide what constituted full discussion and consultation on the Bill? I also have a feeling that it is inappropriate for a Bill introduced in your Lordships' House to tell the other place how to handle its own proceedings.
I turn briefly to the wider issues which appear to lie behind the Bill. The underlying issue is the powers of your Lordships' House. It can be regarded as an attempt to claw back some of the powers that have been taken away by the Parliament Acts. The Bill seeks to raise doubts about the validity of the Parliament Act 1949. It proposes to recognise the validity of that Act and of Acts subsequently passed under it in exchange for the surrender of powers under both the 1911 and 1949 Acts for the House of Commons to override the veto of your Lordships House on the constitution and powers of the House. As I have indicated, that is an objective which we would not support.
§ Lord Campbell of Alloway
My Lords, I am obliged to the noble Lord for giving way. This is the second time that the noble Lord has referred to the veto of this House. To what exactly does the noble Lord refer?
§ Lord Goodhart
My Lords, I refer to the fact that apart from the Parliament Act, this House has a veto on any legislation because it cannot be passed without the consent of this House in the same form as the Bill which has been passed in the House of Commons. That seems to me to be plainly a veto.
In accordance with the customs of your Lordships' House it is not our intention to oppose Second Reading of the Bill, but we are unable to support it.
§ 12.22 p.m.
§ Lord Kingsland
My Lords, unlike the noble Lord, Lord Goodhart, I find the arguments for Clause 1 of the Bill, as set out to your Lordships by the noble and learned Lord, Lord Donaldson, compelling.
At common law, from which statute derives its authority, the participation of your Lordships' House is essential to make valid legislation. The 1911 and 1949 Acts, by contrast, introduced a special procedure with a differently defined legislative body to achieve certain objectives which are set out in the two Acts. The contents of the 1911 Bill are wholly valid because it was an Act passed by the other place, your Lordships' House and, at that time, the King. That was not the case for the 1949 Act. Is there some other basis upon which the 1949 Act can find its validity? The noble and learned Lord, Lord Donaldson, gave 1326 the answer to that in his speech. He said that the answer is no, because the 1911 Act does not contain its own amending power. There is no way in which the Commons and the Monarch can amend the contents of the 1911 Act because there is no express power, in the Act, for them to do so.
If that chain of argument is accepted, it must follow that the contents of the 1949 Act are invalid, both for that reason and because the 1949 Act seeks to go beyond the procedures laid down in the 1911 Act. I suspect that if the noble and learned Lord the Attorney-General was faced with just Clause 1 of the Bill, he might be tempted by it. It would provide certainty in a world where there is clear serious doubt about what has become a fundamental instrument in the hands of the present Government. These days, the 1949 Act is almost constantly on their lips.
I turn to Clause 2. Once again, I agree, in large measure, with the various proposals put forward by the noble and learned Lord, Lord Donaldson. As regards Clause 2(1) I think I might be inclined to go a little further than the noble and learned Lord. I entirely accept that the rate and incidence of taxation is a proper and exclusive matter for another place. However, I wonder if that should be any longer the case as regards the remainder of tax legislation. My noble friend Lord Saatchi has been giving that issue a great deal of thought recently. As finance Bills become more complex and more difficult to decipher for those who have to suffer from their contents, it seems to me to be clear that they deserve better scrutiny than they receive in another place. Why should not money Bills, apart from those parts concerned with the rates and incidence of taxation, receive the same treatment as any other Bill in Parliament? I would, in short, be bolder than the noble and learned Lord, Lord Donaldson, about Clause 2(a).
As far as Clause 2(b) is concerned, I agree with the noble and learned Lord but wonder whether the paragraph is really necessary. As he said when reading out the preamble of the 1911 Bill to your Lordships, it clearly states the intention that any change in the composition of a new House of Lords would be a change determined by Parliament, by which we mean another place. your Lordships' House and the Queen—not just another place and the Monarch.
I regard Clause 2(c) as an admirable provision. It may be that on only one of the two occasions on which the Bill in question is being considered it would be necessary to require a full, unguillotined debate in another place. The noble and learned Lord, Lord Donaldson, has allowed for two occasions. I might be prepared to accept that. Perhaps I have misunderstood the noble and learned Lord.
§ Lord Donaldson of Lymington
My Lords, I believe that the noble Lord is looking at the Bill that I introduced last Session.
§ Lord Kingsland
My Lords, I am grateful to the noble and learned Lord. I turn to Clause 2(e). The noble and learned Lord expressed his view that the 1949 Act effectively amends the term in the 1911 Act 1327 concerning the attempt to extend the maximum duration of Parliament beyond five years. He also, very generously, as I would expect of him, informed your Lordships that Professor Wade disagrees with him on that point. From the quick look that I have had at the Bill on this point I am not sure that I am clear about whether the noble and learned Lord is right or whether Professor Wade is right. Given that there is doubt, I believe, for the sake of clarity, that the noble and learned Lord is right to include Clause 2(e).
The noble Lord, Lord Shore of Stepney, made a number of interesting remarks about constitutional Bills and the desirability of entrenching Bills of importance in our political system. In the course of doing so, he also gave your Lordships the benefit of his reflections on the constitutional relationship between the United Kingdom and the European Community. The answer to his latter problem is perhaps easier than that to the former problem on entrenchment. There is a simple answer to the problems he outlined about the European Community; that is, to repeal the European Communities Act 1972. If Parliament repealed that Act, all the adverse effects of our membership of the European Community, which he outlined to your Lordships, would disappear at a stroke.
In a sense, the European Communities Act 1972 gave the institutions of the Community delegated powers in the United Kingdom, which will be removed from them once that Bill is repealed. I suggest to the noble Lord, Lord Shore, that the problem is not constitutional but political; and as yet Parliament has not been inclined to produce a majority to repeal that Act.]
§ Lord Shore of Stepney
My Lords, it is both; it is partly political and it has a constitutional element. The original treaties went so far in the transfer of sovereignty that every new treaty enables us to draw a line if only we have the will and sense to do so.
§ Lord Kingsland
My Lords, I accept that that is the noble Lord's view but I do not believe that it alters the simplicity of the constitutional solution. However much power the institutions of the Community accumulate, at the end of the day its effect will be removed from the United Kingdom by the repeal of the European Communities Act 1972.
The issue of entrenchment is more challenging and intractable. Our constitution says that Parliament is supreme—except that it cannot bind its successors. Therefore, however one seeks to entrench an Act—for instance, by special majority provisions—a subsequent Act, even passed by a simple majority, would repeal it. That applies even to the European Human Rights Act which was passed by the Parliament two years ago. The passage of a future Act of Parliament by a simple majority would remove its effect entirely from the United Kingdom law.
One way of achieving that end might be to devise an Act which dealt with an important constitutional issue; entrench that Act by, say, a two-thirds majority in both Houses; and then stipulate that if, despite the requirement of a two-thirds majority, a subsequent 1328 Act of Parliament sought to repeal that Act by a simple majority, then before the Monarch gave assent an individual could seek an injunction in the courts in order to prevent the Bill receiving Royal Assent. That course raises questions about another part of our constitution—the separation of powers. However, such a way forward might he a way of providing real entrenchment.
Without the doctrine that no Parliament can bind its successor, Parliament could reshape the constitution of this country and could require all Bills to be passed only by the Commons and Royal Assent. Let us hope that that never happens.
§ 12.33 p.m.
§ The Attorney-General (Lord Williams of Mostyn)
My Lords, when I was in gainful employment as a member of the Bar I had the pleasure of appearing before the noble and learned Lord, Lord Donaldson, when he presided with such distinction as Master of the Rolls in the Court of Appeal. On none of those occasions was I able to say that I respectfully disagreed with his Lordship's view of the law. But times have changed.
The Bill deals with two issues relating to alleged doubts about the validity of the Parliament Act 1949 and the scope of the 1911 Act. First, as has been rightly said, the 1949 Act and its validity are reaffirmed, together with specific Acts passed by the Parliament Act procedure. Secondly—this aspect was fully and carefully developed by the noble Lord, Lord Lucas—it deals with the scope of any further changes using the Parliament Act procedure.
Perhaps I may set out our position; it is coincident with that of the noble Lord, Lord Goodhart. There is no ambiguity in the Parliament Acts which needs to be corrected. The Parliament Act is a valid Act of Parliament and has been for the past 51 years. It is not, I suppose, coincidence that doubts are presently raised after 51 years—that would be an extremely unworthy thought which I hasten to put out of my mind.
I turn briefly to the 1911 Act. These issues were discussed in the House of Commons and in your Lordships' House when the Parliament Act went through both Houses. In relation to an amendment which had an effect similar to Clause 2(d) of the Bill, the then Prime Minister, Mr Asquith, said that the Government did not wish to see,the liberty of a future House of Commons in any way impaired or restricted by the means of an exception proscribing any Amendments which experience may show to be necessary".He added that it would be reasonable not to submit the Government to,the possibility of our not being able, whatever experience we may show, to amend in particular this measure".—[Officiai Report, Commons, 24/4/11; cols. 1473 and 1494.]In other words, at that time he had the foresight to think 36 years ahead to 1949. The issue was perfectly well ventilated then and perfectly well understood.
1329 Indeed, in your Lordships' House a similar amendment was proposed and then withdrawn. The mover plainly said that the amendment, if carried,would have the effect of keeping out any amending Bill to lessen the suspensory period of two years".—[Official Report, 29/6/11: col. 1184.]Again, it was perfectly well understood and I submit that there is no doubt about the validity of the 1949 Act.
§ Lord Mayhew of Twysden
My Lords, I am grateful to the noble and learned Lord for giving way. I was a little ruffled by his amusing assertion that there might have been an ulterior political motive in the bringing forward of these matters now. I notice in the Explanatory Notes that the argument was first adduced by Professor Wade in 1955 in the Cambridge Law Journal and was adverted to subsequently in other publications. Therefore, the matter has been on the chitty, as it were, for at least the past 45 years.
§ Lord Williams of Mostyn
My Lords, of course it has in academic circles, but I do not remember it being introduced as a Bill in your Lordships' House. With great respect, that is the point I am making. I ought also to have mentioned that I had the infinite pleasure of being taught by Professor Wade and similarly on those occasions was not able to say, "I think you have got it wrong, professor", but I am saying it now.
§ Lord Wedderburn of Charlton
My Lords, as my noble and learned friend is on the point of scholarship in this area, perhaps he will agree that on the question of delegated legislation, this small group of eminent but tightly-knit scholars is in a small minority among a large amount of equally eminent scholarship of recent times.
§ Lord Williams of Mostyn
My Lords, my noble friend is right and a number of those eminent authorities are cited in the paper to which the noble and learned Lord, Lord Mayhew, referred.
I hope that I have dealt with the issue of the validity of the 1949 Act. We come to the issue of exceptions. The noble Lord, Lord Kingsland, said that he was questioning the supremacy of the Commons in respect of some money Bills.
§ Lord Kingsland
My Lords, I am grateful to the noble and learned Lord for giving way. Perhaps I may say that I did not question the supremacy of the Commons in relation to the incidence or rates of taxation. Indeed, I did not question the supremacy of the Commons in any way. I simply said that matters involving taxation which did not fall into those two categories ought to be dealt with in the normal way.
§ Lord Williams of Mostyn
And, my Lords, they would therefore not be susceptible to any limitation presently existing in our constitutional arrangements.
§ Lord Kingsland
My Lords, that is not so. The 1911 and 1949 Acts would in the normal way apply to tax matters other than those dealing with the rate and incidence of taxation.
§ Lord Williams of Mostyn
My Lords, I hear what the noble Lord now says. I shall check his earlier remarks. If I have misunderstood the position, so be it. I do not believe that I did misunderstand his earlier proposition.
We turn next to Clause 2. As the noble and learned Lord, Lord Donaldson, pointed out, paragraphs (a) and (e) simply recite the present constitutional position. However, I believe that paragraph (b) is entirely objectionable. That provision is related to the constitution or powers of this House, for example numbers and the manner in which Members get here. That means that if the Salisbury convention were not abided by—to paraphrase, I hope fairly, the observations of the noble Lord, Lord Strathclyde, sometimes there are whispers that it may not be regarded as intact for all purposes—an elected government, even with a manifesto commitment to reform, could be endlessly defied by your Lordships' House on any of their proposals, however often endorsed by the electorate at however many successive general elections. I am aware that many believe that your Lordships' House in its present form is as perfect as man's intellect can devise, but I am not sure that that basis of perceived perfection is a useful constitutional guide. That would be the consequence of paragraph (b). I readily recognise that some noble Lords may applaud it, but I respectfully disagree.
I do not believe that paragraph (c) is workable. There is nothing in the Bill to require a Speaker's certificate. I understand that the proposal of the noble and learned Lord, Lord Donaldson, is that perhaps in due time there should be such a certificate.
§ Lord Donaldson of Lymington
My Lords, Section 2(3) of the 1911 Act contains in terms the requirement for a Speaker's certificate. It requires him to certify that the whole process is in accordance with the 1911 Act. If one amended paragraph (c) to include an additional requirement, the Speaker's certificate would have to cover that as well.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble and learned Lord. I do not believe that that deals with the point raised by the noble Lord, Lord Lucas, that this House should have full regard and respect for the mechanisms by which the Commons conducts itself. It may well be that in circumstances of urgency, with which we are already familiar, Bills would not be susceptible to the Speaker's certificate. There might well be an argument between both Houses as to the validity of the Speaker's certificate, if it had been given. Therefore, I do not believe that the "Lord Lucas" point has been dealt with.
When one considers paragraph (d) one returns to absolute veto by this House if it wishes to be stubborn and/or mulish. I do not believe that that would be acceptable either to the country at large or to most people who vote in elections.
This has been an interesting debate, not least in the wider context of whether our constitutional arrangements should be looked at again. Some of the speeches tended, perhaps to the surprise of those who 1331 uttered them, to support a written constitution. It may well be that that argument will develop, although recognise that today is not the occasion to try to do that.
The noble Lord, Lord Goodhart, is quite right that by convention we do not refuse a Second Reading to a Private Member's Bill. If it were not for that, I would advise the House not to agree to a Second Reading. While I do not take that course, if the Bill reached another place we would invite our colleagues there to vote against it. I repeat our gratitude to the noble and learned Lord, Lord Donaldson, for providing this stimulating debate.
§ 12.44 p.m.
§ Lord Donaldson of Lymington
My Lords, I express gratitude to those who have attended on an extremely chilly Friday morning to debate this matter and my sympathy for those who did not come to hear me, particularly my noble and learned friend Lord Lloyd, who is to contribute to the Psychotherapy Bill, which has been postponed.
I am not wholly surprised, but very disappointed, that the Attorney-General should express such opposition to my modest Bill. I am amazed to hear the noble and learned Lord say that there is no doubt about the validity of the 1949 Act. I know that there are people who have no such doubts, of whom he is one. In order to make clear that others are wrong, including myself, I have suggested in this Bill that it be confirmed. I am surprised by the suggestion that the fact that the Prime Minister in 1911 decided not to put in a Henry VIII clause means that it is implicit in the 1911 Act. That is an astonishing constitutional innovation. As to paragraph (c), I do not know that the noble and learned Lord has entirely understood it, but it does not matter. I shall happily remove it if it causes the slightest hiccup in any quarter.
One matter that troubles me slightly—it is a criticism of me arid no one else—is that one or two parts of the speeches suggest that the speakers do not understand what I am at. All I am at is the removal of doubt about the law as it exists. I have expressed the view that there are doubts about the 1949 Act and the scope of the 1911 Act which I want to remove.
When I considered this Bill I was approached by the noble Lord, Lord Kingsland, who said that he would like to put—
§ Lord Goodhart
My Lords, I am most grateful to the noble and learned Lord for giving way. Does not this Bill go well beyond merely settling doubts? I have in mind particularly Clause 2(b) which would exclude any Bill,to vary the constitution or powers of the House of Lords",not only from the 1949 Act but also the 1911 Act.
§ Lord Donaldson of Lymington
My Lords, no. There are doubts, which are not shared by the Attorney-General, as to whether the 1911 Act authorises the other place to make changes to the constitution of this House. I propose to remove those doubts by simply saying that the other place cannot do it. But it is clearly 1332 recognised that in the longer term one cannot have a situation in which this House can sit on its hands and prevent any reform of its constitution or powers. That is why I stress the limited scope of the Bill which merely seeks to produce certainty until we move on to the next stage.
It was suggested by the noble Lord, Lord Shore of Stepney, that there should be provision for a referendum. So be it. However, that is not the intention behind this Bill. Overnight I pondered what could be done about this. One obvious possibility is that this House and the Commons should pass a sovereign parliamentary Act to provide that the other place can amend the powers and constitution of this House provided that, say, a Bill to that effect is passed in two Parliaments and x years have elapsed at the moment the powers of the other place come into existence. That is a very interesting field to be debated, which may happen soon. However, this Bill is of limited scope.
I raise only one other matter, because time marches on and many noble Lords will also want to march. The noble Lord, Lord Goodhart, said that I cast doubt on whether Welsh Bishops might still be Members of this House. I cast doubt on the validity of MEPs' membership of the European Parliament. Not so. I tried to stress—obviously inadequately—that it is a fundamental part of administrative law that subordinate legislation is good until challenged and set aside. That applies not only to subordinate legislation, it applies to judges' orders.
It was said on behalf of the noble Lord, Lord Baker of Dorking, when Home Secretary, that it was all right for him to ignore an injunction because it was wrongly made. I sat in the Court of Appeal which heard the appeal from that. We did not say that we entirely agreed with him that it was wrongly made, but we pointed out that it was a perfectly good order until it was set aside on appeal of the whole right. Otherwise there would be chaos, because whenever a judge made an order which people did not like, they would say, "Well, it was made without jurisdiction and therefore we are entitled to ignore it". It does not work that way. Therefore, I regret to say that Welsh Bishops will not be able to come to this House and MEPs will continue to be Members of that parliament.
I repeat my thanks to all noble Lords who have taken part in this debate. I give particular thanks to those who have been nice to me and modified thanks to those who have not.
On Question, Bill read a second time, and committed to a Committee of the Whole House.