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There is another aspect of the elective dictatorship that has not been touched on, yet it is fundamental to the question of what those conventions, which is how they can be described, include—namely, the Whip system. In practice, the elective dictatorship comes about through the convention of the Whip system. In a debate on the reform of the House of Lords some years ago, I asked whether the Whip system had got out of
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control. It is because of that point that there is a more justifiable case for the House of Lords periodically to put its foot down. It is perfectly apparent that, because of the Whip system and Standing Orders, we end up not considering legislation properly in this House, which confers legitimacy on the House of Lords.

Parliament consists of two Houses, which affects the consideration of legislation. It is extremely important to remember that the House of Lords is, as the hon. Member for Somerton and Frome and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said, part of the parliamentary process, although it has acquired different functions. The two Houses cannot be separated, although they have evolved in different ways over time—the beneficial intrusion of democracy in the mid-19th century made a fundamental difference.

If there were to be a new House of Lords with a significant elected element, it would not be possible to apply the Salisbury-Addison convention—even if it is a convention—because the Lords would acquire legitimacy for its decisions on the basis that the voters had expressed their view. I wonder whether the reference to the Salisbury-Addison convention should be abandoned in the context of considering the practicality of codifying what have been described as the key conventions. I doubt whether those conventions are the key conventions, because I could mention many other conventions—for example, the convention of comity is an important aspect of the relationship between the two Houses.

For those who are interested in what some would regard as a fairly abstruse subject, the issue of conventions has been at the heart of many of the biggest constitutional crises that this Parliament has experienced over the past several hundred years. That question arose in the context of the Canada Act 1982, with which I happened to be involved because I advised Quebec on that matter in a professional capacity. The ultimate decision taken by the Supreme Court of Canada turned on the application of conventions in this House, because under the British North America Act 1867 the lexis of the constitution of Canada was not in Canada, because it was resident here. Those considering the case had to consider the application of the Statute of Westminster, and in doing so were governed by the conventions of this House. The question of what are the key conventions between the two Houses is a matter of very great importance. I am not satisfied that the assertion that they are those in the motion is at all accurate.

My next question concerns the meaning of “codification”. The hon. Member for Somerton and Frome alluded to that a few moments ago. The Whip system has a direct relevance to the House of Lords. After all, in respect of comity and the practical application of relationships between the two Houses, we know, if we have been in the shadow Cabinet or on the Back Benches, that discussions take place between the Whips and the leaders’ offices of both Houses to decide the extent to which, for example, the ping-pong between them is going to continue. That is governed by conventions, and it can be incredibly important. It is also governed by the conventional manner in which the Whip system and the usual channels operate, either within the House or between the two Houses.

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I am interested in how codification would apply in relation to Standing Orders if that becomes the basis on which decisions are taken and it is not just left to float off into the ether. According to the sources I have read, in 1866, when the great battle took place in this House over home rule, Lord Randolph Churchill and two or three others spent the entire latter part of the Session on the one question of whether the Speaker’s rules should, by consensus and by a carve-up between the Front Benches, be transferred from the Speaker to the Executive. A very distinguished former Clerk of the House of Commons goes so far as to allege that when that was codified into Standing Orders, it reduced the power of the House of Commons to such a low point that until it was reversed there would never be the kind of authority that the House of Commons ought to have by virtue of its elective system. People refer to the elective dictatorship, but it is not that at all. It is a dictatorship by the Whip system enforced by various methods such as cajoling and various other things—sometimes a bit of a threat here or there. I have experienced some of that in my time over the years, and resisted and sometimes rejected it.

We should be very careful about what “codification” is likely to mean. The attempt to have a discussion, which is embedded in the motion and the debate, about whether there is a practical way of progressing, has some sense. However, I am apprehensive about where it would be likely to lead if the consequence was, by the back door, to put a straitjacket on the way in which, for example, an elected House of Lords could operate, or to undermine the freedom of debate and the democratic basis on which this House operates.

I can think of at least one matter that was most emphatically not in the governing party’s manifesto—the European constitution. The question of whether there should or could be a referendum was determined by the Prime Minister’s saying that it caused no fundamental change. The Leader of the House and I spent the best part of a year debating that. Ultimately, the Prime Minister decided that it meant fundamental change after all—perhaps to some extent because of my arguments—to primacy. We must be careful when we decide what affects the conventions because many of the most important matters that are discussed in the House do not appear in manifestos.

Many of the most difficult issues that arise in the Chamber and Parliament as a whole depend on the flexibility that the conventions afford. The problem with other constitutional arrangements, even in the United States, is that they cannot move easily with the times because they operate on a fixed set of rules that have been codified. Our advantage is that we can be more organic and flexible and respond to the practical requirements of the time.

I am dubious and concerned about the proposal. I appreciate that it states,

but the case for that is not made on the basis of the necessity of maintaining flexibility.

Mr. Bone: There is no point in setting up a Committee if its purpose is to codify what is best left uncodified, as a convention.

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Mr. Cash: My hon. Friend summarises the case—that is exactly my anxiety. I smell a rat. I believe that the motion and the arrangements are trying to reduce flexibility, just as, in 1886, the Speaker—foolishly, if I may say so, with all respect to Chair—allowed the Speaker’s rules to be taken away and given to the Executive. In those days, there were only about six Speaker’s rules. We now have approximately 170 Standing Orders. Almost every time a new Standing Order has been imposed through the Whip system, it has been at the expense of hon. Members and their ability to debate freely.

I am extremely concerned and I would be pleased if, by one means or another, it was decided that the arrangement should not proceed.

9.5 pm

Mr. Andrew Turner (Isle of Wight) (Con): When this debate began, I smelled a rat. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said that he smelled a rat, but the Leader of the House assured him that there was no rat. I have to say that the more I hear of this debate, the more I am convinced that there is a rat, although it might be a different rat from the one that I originally smelled.

Everything hinges—as so many of these matters do—on what the motion means. My right hon. Friend the Member for Maidenhead (Mrs. May) drew to our attention the terms of reference of the proposed Committee, which are

so I shall not go over that territory again. I asked earlier what was meant by the word “codifying”. I am now beginning to understand that it means more than simply writing down the conventions. It means writing them down as though they would acquire some force as a result of being written down. That seems to be the interpretation that many hon. Members on both sides are putting on the motion. I started by thinking that, while it would not be particularly constructive to approve the Committee, it would not be particularly damaging to do so either. However, I am now beginning to think that it might be damaging to approve the Committee, particularly if it takes its terms of reference as being to codify rather than merely to consider the practicality of codifying.

The original rat that I smelled involved the development of the code in a way that the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth)—who is no longer in his place—described as discussing what was acceptable and what was not. That interpretation of the motion was shared by the hon. Member for Ellesmere Port and Neston (Andrew Miller) when he said that he hoped to change the arrangements. The hon. Member for Rhondda (Chris Bryant) then said something rather similar, with which the Leader of the House agreed. There was some confusion, certainly on the part of Labour Back Benchers, about the intention behind the motion. Perhaps that was because they had read their manifesto rather than the motion or, more likely, because they had read neither and simply accepted the assurances given to them by the Whips—if, indeed, they needed any assurances.

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So rat No. 1 involves the question of whether there is to be an interpretation and a further development of the conventions. Rat No. 2—a more recent and more lively rat, it has to be said—involves the question of whether codifying implies giving some kind of force to the conventions.

A Committee of politicians is singularly ill suited to doing anything other than arguing about how things should develop. It is almost inconceivable that a group of right hon. and hon. Members of this House and noble Lords from another place will simply sit down and write down in an academic way what the present position is. There are two reasons for that. First, I do not think that there is much agreement on what the present position is. That is certainly true of some of the claimed key conventions set out on the Order Paper. Secondly, politicians much prefer mission creep. In fact, it is almost part of our nature to try to drag the debate into the areas in which we are interested, rather than the areas in which the Government, the Opposition Front Bench or even—dare I say it?—the House of Lords are interested. I am convinced that the rat of developing or trying to shape the future of the conventions is alive and well too; it might not be as smelly a rat as it was at the beginning, but that is because it is alive and well, not because it is not there.

If we want a memorial of the existing codes, it would be far better to leave it to an academic to write down what the codes are, obtain evidence and set out lots of footnotes—I am sure that an academic would follow me. The only problem is that it would take far longer than two months for an academic to do that work. That is the other reason why I do not believe that this work can be done effectively, even by a full-time Committee sitting for two months. As we have heard from my hon. Friend the Member for Stone (Mr. Cash), there are a huge number of conventions and something like 1,100 years of history behind the development of Parliament and the relationships between its two Houses.

As for whether the conventions exist, the Salisbury-Addison convention was of a different time, and as the hon. Member for Somerton and Frome (Mr. Heath) said, it was between two parties that were in very different positions in the two Houses. Even the Government have moved from time to time from the strict interpretation of the Salisbury convention, as we have seen not only with the Identity Cards Bills but, more significantly, with the smoking-related elements of the Health Bill. Under the Salisbury convention, the House of Lords was entitled to throw out the smoking-related elements of the Bill on the basis that they were not what the Government were elected to introduce. The manifesto said one thing, and the Government said something else. The Government do not adhere to the Salisbury convention; more and more frequently, they submit what I suspect is the rather one-sided convention that the Government are entitled to get their business through, or that the elected House is entitled to have its decision upheld in another place.

It is fair to say that my noble Friends on the Front Bench in the House of Lords have been careful to stick with the letter of the Salisbury convention, although I can sometimes detect a reluctance to do so. As far as I can tell, however, Liberal Democrat Members of the House of Lords are no longer signed up to the Salisbury convention, if they ever were. I do not see a
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reason to sign up to a convention between a hereditary House and an elected House when the elected House and the other House are in the exact form proposed by the Government. We have two Houses in a form that the Government, certainly at the time of invention—which in the case of the House of Lords was not long ago—approved of. Therefore, how can they conceivably argue that it is not doing the job that it was set up to do? I suspect that they did not know what job it was set up to do, and that they merely disagreed with its composition.

In other words, in the early years of this Government, form did not follow function at all; form followed prejudice. Perhaps the prejudice was justifiable, and perhaps not. It seems to me, however, that we cannot decide on the future form of the House of Lords without agreeing what its function should be. I think that its function is pretty much right at the moment, although I would like to propose some improvements. However, most of those improvements would not be upheld—and even the current functions would not be improved—by reducing the appointed element and increasing the elected element of that House. The hon. Member for Somerton and Frome accepted the fact that a House cannot scrutinise well in detail if it consists of people like us. That is not our métier.

Another key convention mentioned in the motion is the convention on secondary legislation, but that convention is under fire. I see no reason why a House of Lords in the form in which the Government created it should not have exactly the same ability to reject secondary legislation as we do. Indeed, I do not see why the House of Lords should not amend secondary legislation. Perhaps there are good reasons and perhaps there are not, but the House of Lords could perfectly well say, “If we are not allowed to amend it, we will reject it.” If not the House of Lords in its current form, the House of Lords in a future form could wield over the Government the big stick of rejecting all secondary legislation that it wished to see not rejected but amended. That would be the only way of forcing the Government to introduce revised secondary legislation in a form that the House of Lords would find acceptable. The convention will change if the composition of the House of Lords changes. Indeed, it could change without a change in the composition of the House of Lords should noble Lords wish that to happen.

I will say no more about the existing conventions, but there is an absence of conventions, and a deliberate—may I say—casting aside of conventions that worries me no end. Perhaps the Committee, if established, could examine the history of other conventions that have now disappeared.

Mr. Cash: Not only are there many conventions that are buried but nonetheless important, extant and necessary; there are the works of Jennings, Dicey and, in particular, Geoffrey Marshall. Sadly, Geoffrey Marshall died a few years ago. I think it would benefit the Leader of the House to read those works carefully as he proceeds with this matter.

Mr. Turner: I suspect that it would benefit all of us to read those works—except those who have clearly
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read them already. But the convention that concerns me most, and which I hope the Committee will examine if it is established, is the convention that changes in the electoral system should be subject to a Speaker’s Conference before being presented to either House.

Mr. Bone: My hon. Friend is presenting the House with a powerful argument, in which he is revealing all the detail that will be involved if the Committee is set up—but how can we set it up when it must report by 21 July this year? That would be nonsensical.

Mr. Turner: If my speech is doing anything, it is persuading me—if no one else—that it is impossible for the task be undertaken successfully by 21 July 2006. The Committee will scrape the surface, but it will certainly not delve deep enough to reveal all the conventions to which my hon. Friend the Member for Stone referred, examine their origins and establish whether they continue to exist.

Like so many proposals that emerge from the vague words of a manifesto, the motion should have been examined in more detail before being presented to the House. I fear that the Committee will not find it possible to do what it is being asked to do in the time available. I fear that it will suffer from mission creep. I fear that it will be confused, as Labour Members have been, about whether form should follow function or function should follow form. Such work could better be done by an academic than by politicians, and interesting though it may well be, and necessary though it certainly is, it will need to be done again if the House of Lords is further reformed or reconstituted.

9.20 pm

David Howarth (Cambridge) (LD): As an academic and a politician, I rise with some trepidation after the speech of the hon. Member for Isle of Wight (Mr. Turner). The debate has centred on two terms—“codify” and “primacy”—and I want to say a few words about each.

The hon. Members for Stone (Mr. Cash) and for Isle of Wight have already pointed out some of the dangers of codification—that it can arrest development and be a way of reducing the power of an organisation or body to develop its own capabilities and long-term powers. There is another danger. French lawyers, who are very familiar with the idea of codification, have a saying, which, translated as crudely as possible, is: “To codify is to modify”. In other words, whenever one tries to codify practices, general principles, ideas and—above all—arguments, one takes away the essence of those various attempts to get at principles and ways of behaving, reducing them to rules and statements that start with the words “Whenever” or “If”. When a codification is attempted, what comes out at the other end is very different from what went in. My fear is that this attempt to codify will change and diminish the existing situation, and that it will be used to arrest future development.

I want to spend slightly more time—though not much more—on the word “primacy”. The debate began
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by considering that topic, but we seemed to have moved off it to some degree. The motion before us contains the phrase

The key question is: what does that mean and why is it so, if it is so? When there is ping-pong between this House and the other House—when a Bill goes backward and forward in different forms between the two—Ministers repeatedly say that, in the end, the elected House is entitled to have its way. That is the usual way of expressing the principle of primacy, but as Members have said, if the other House became an elected House, that version of primacy would cease to have any meaning. There would be no force behind it, and it would cease to be a reason for this House to have primacy. Indeed, if the other House were elected according to a different, more proportional electoral system, one could even argue that it would have the advantage in terms of democratic legitimacy.

The present situation is very peculiar, in that this House is accountable to the electorate but is far from being representative. The other House is accidentally representative, but it is not accountable. If the other House were also accountable, it would have the advantage over this one.

So if election is not the reason for primacy, what is? The hon. Member for Rhondda (Chris Bryant) expressed earlier a view that the Lord Chancellor also put to the Constitutional Affairs Committee. The hon. Gentleman said that primacy is the power of this House to make and break Governments: that if a Government were to lose their majority in this House—to lose its confidence—they would no longer be entitled to be the Government. However, if that situation occurred in the House of Lords, no such consequence would follow: the Government would continue to exist. The question then is what follows for the relationship between this House and the other place if that is the basis of primacy. What sort of relationship between the two Houses, especially when legislation is discussed, follows from the function of this House being to make or break Governments?

If we are to say that this House’s function is to be expressed in terms of making or breaking Governments, nothing follows for the function of the House of Lords in terms of legislation. The argument about primacy has come to a dead end. If the other House were elected and had democratic legitimacy, its right to discuss and modify legislation would be just as great as the right of this House to do so. All it would mean is that the two Houses had different functions.

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