---

'(2) Holders of hereditary peerages shall be entered on to the electoral register at the end of the Session of Parliament in which this Act is passed and at any time after the end of Session of Parliament in which this Act is passed the holders of hereditary peerages shall be entitled to vote in elections to the House of Commons.'.

The Second Deputy Chairman of Ways and Means (Mr. Michael Lord): With this, it will be convenient to discuss the following amendments: No. 32, in page 1, line 17, leave out 'such'.

No. 34, in page 1, line 19, leave out 'or the European Parliament'.

No. 33, in page 1, line 19, leave out 'as he considers appropriate' and insert

'in order to give effect to section 2 of this Act.'.

No. 7, in page 1, line 23, leave out from 'enactment' to end of line 3 on page 2 and insert--

'(5) No order under this section shall be made unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.'.

Mr. Letwin: After the shock of that terrible defeat, let me move on to the next group of amendments. We have so far debated the great question to which clause 4(1) gives rise about the relationship between stage 1 and stage 2 and the Government's desire and ability, or otherwise, to move on to stage 2. This group of amendments deals with the remainder of clause 4. I can relieve the Leader of the House and the Committee by saying that we have no problem with the entirely anodyne and welcome aim of clause 4 to restore the right of hereditary peers, who will no longer be able to sit and vote in the House of Lords, to vote at parliamentary elections. Members on both sides of the Committee have waxed eloquent on the propriety of peers having those democratic rights, and we wholly subscribe to the view that they should. There is nothing between the Conservatives and the Government on that aim. The problem, however, is the way in which clause 4 seeks to achieve that aim in subsections (2), (3) and (4). I doubt whether Ministers intended to do anything improper or unusual in the drafting of clause 4. The Leader of the House may find my remarks surprising, believing that the drafting was not out of the ordinary. I suspect that the genesis of those three subsections was

3 Mar 1999 : Column 1149

that people who are learned in these matters--the Government's legal service and the parliamentary draftsmen--sought to achieve the aim given them by the right hon. Lady to restore the rights of hereditaries to vote. They produced clause 2, and they were told to produce some transitional provisions. Alas, in carrying out their task, they have displayed just about every constitutional and juridical vice possible. None of those vices is unprecedented, but the clause is a textbook case. It is a sort of Christmas tree on which have been hung all the ghastly presents passed down by draftsmen past. If we are not careful to say something about that--or, better still, to do something about it--those presents will become subject to the hereditary principle; they will be handed down to the next set of draftsmen and they will appear in other Bills, in which their effects may be much wider, in circumstances in which the aims are less laudable than those of clause 4. First, let me deal with a minor point. I apologise in advance to the Leader of the House in case I have made an error. If so, I shall be happy to be corrected. I believe that clause 4(3) contains a technical defect, in that their lordships already have the right to vote in European elections. The provision of that right is therefore unnecessary. That is a minor point, and I do not seek to criticise anyone or to pay much attention to the point. My other points are more serious. Subsection (3) also contains the widest possible order-making power. It states:

"The Secretary of State may by order make such transitional provision . . . as he considers appropriate." That may appear to be a perfectly normal piece of drafting, but the final words are there for one purpose and one purpose only--to give the Secretary of State the widest possible latitude in designing the order. That is the opposite of what Parliament ought to seek to do in passing primary legislation: we ought to constrain the powers of the Secretary of State as far as we can. In case the Leader of the House or any of her hon. Friends intends to leap in to tell me that previous Governments, including those of my own party, have been guilty of taking wide order-making powers, I am happy to admit that there has been that tendency. However, I do not wish--and I hope the right hon. Lady does not wish--to repeat the sins of the past. Now is as good a time as any to try to put matters right. Clause 4(3) is an example of the worst kind. If that were all, because such powers have been so frequently taken, and although I have made it my practice on every possible occasion since my election to the House to point such matters out, I must admit that my case would not be strong. Alas, clause 4(4)(a) contains the next ghastly legislative vice--the famed Henry VIII clause. The Secretary of State will not only be allowed to make such provisions as he considers appropriate. He will be allowed to


"modify the effect of any enactment or any provision made under an enactment". Who knows how judges will see such powers now that they have multiplied out of all proportion? I attach some significance to the fact that the powers are being built into a major constitutional Bill that will attract the attention of the courts and the constitutional commentators. Taken at face value, clause 4(4)(a) allows the Secretary of State to do by order just about anything to just about any previous enactment so long as he--and this is

3 Mar 1999 : Column 1150

the test--considers the action appropriate. We would not want that if we were starting with a clean piece of paper and considering what primary legislation a responsible House of Commons should pass. I regret that that is not the end of the matter. Having given the wide powers, including the Henry VIII provision, clause 4(4)(b) adds the third vice of which we have seen all too much--and again in the context of a major constitutional Bill. As the Secretary of State was being given the widest possible powers, including the power by order to modify an enactment--something dreadful that has crept into our legislation--one might have thought that there would have been an attempt to create an element of constitutional or juridical decency by allowing the House of Commons to vote the thing in before it became an order. Not a bit of it! Clause 4(4)(b) provides for the order to be made by negative resolution. We all know what that means: on the whole, such orders go through on the nod. I do not say that these provisions will, because they are matters of great moment. Someone may pick them up and they may be debated. However, there is no point in negative resolution procedure unless the Government want to weight things in favour of their going through on the nod. This is a major constitutional Bill that does something of importance in conveying a democratic right to a set of people, but it is done in a way that exhibits each of the three tendencies--the negative resolution procedure; the power to repeal and change Acts by order; and decisions being governed only by an appropriateness test--that have most bedevilled primary legislation over the past five, 10 or 15 years. Those tendencies started their sorry journey into legislative history 20, 30 or 40 years ago. If they were absolutely necessary, I suppose that we could understand it, but they are not. Amendment No. 22 is designed to resolve the problem cleanly and clearly. It would put straightforwardly into statute provisions equivalent to the admirable clarity of clause 2. It would compel the entry into the electoral register of the names of those who need to be given democratic rights, with no orders, no negative resolutions and no Henry VIII clauses. That would end the need for the rest of clause 4. We cannot see the slightest reason why it should prove inoperable or why the Government should resist it. In fact, this is where the whole thing begins to be interesting rather than merely a sorry tale. We have much scratched our heads asking ourselves why, given that the Leader of the House did not ask for it to be done in this way, it was done in this way. Why did all the learned, clever people employed by the Government to think these things through choose to display in a major constitutional Bill all the vices in a compact Christmas package? Perhaps it was oversight, but we doubt it. On reflection, we think that there is a reason, which has to do with the ghost in the machine that we see in the whole Bill and to which we have often alluded.

8.15 pm

We think that the problem is this. I should be delighted if the right hon. Lady told me that I am wrong. So far as it goes, clause 2 is fine. Unfortunately, in another place, after the Government have perhaps accepted the Weatherill amendment, clause 2 will cause some difficulty. Hereditary peers will not be disqualified from voting, but they will

3 Mar 1999 : Column 1151

have a rather remarkable franchise. They will have the right to elect not a Member of Parliament but a Member of the upper House--by rumour, 90-odd such Members. They will have that right not as part of a constituency of 60,000 or 70,000 electors but as one of 500 electors. Under those circumstances, the Secretary of State may wish to do all sorts of things to make transitional provisions that do not allow those who are in one way or another taking part in the Weatherill election to take part also in a normal democratic election, such as one to the House of Commons. We have no idea whether that is the case because we--I assume like the Leader of the House--do not know what the Weatherill amendment contains or may contain. Perhaps it will not even be moved.

---