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Sir Nicholas Winterton: My hon. Friend is making a wonderful philosophical case and, although I disagree with him about the House of Lords, I think that the points that he is making are excellent. However, is it not a fact that, until the House of Commons takes more control of its time, he will never achieve what he wants to achieve? The advantage of the Lords is that they, and not the Government of the day, are in charge of their time. They can therefore debate more issues that are closer to the people than the House of Commons can.
Mr. Shepherd: I am making a case for Parliament and I accept that Parliament is both Chambers. I am proud to be a Member of this House. It was an aspiration. It is part of the history of my country that we, the people, control the Government. But remember: if we have another Chamber that also has the authority of election, with the checks and balance that I seek, we have a tension. I welcome that, as I said earlier. That tension makes for better and more rational government. I have heard the word—it was much used in the ’80s when one looked at reform—“gridlock”. Why should we fear that? The United States may or may not be going into gridlock. The essential relationship between two institutions—the Lords and the Commons—is one of politics. Most people, in the spirit of comity, will negotiate. That is what we want. No one can now negotiate with a Government with a large majority in the House of Commons. In this House, we do not consider proposed legislation any more to any effective purpose. We claim that the only duties of the upper House are revising and improving, and yet when there are matters of principle, I now look to the Lords to look after my civil and political liberties. That is an extraordinary proposition. We, the people, are less attentive to many of the important things.
I give a cheer for this interesting report. If I were back at the London School of Economics, it would be part of the constitutional law course. Set out in the greatest clarity are the actual conventions as understood today by Members of both Houses of Parliament. However, as others have said, that is a moving feast. A convention for today may not be appropriate for tomorrow. We used to say that it was conventions that made the institutions work. In that spirit, I hope that when the Leader of the House introduces his White Paper, we will have a proper debate that does not just take place between the parties, but is wider than that, because most of us are not in the teams that lead those negotiations. We have views and opinions and what I like about the dynamic of a debate such as today’s is that one hears the voice of considerate, thinking, careful Members of Parliament, seeking an ideal: the sovereignty of Parliament.
6.14 pm
Mr. William Cash (Stone) (Con):
Having listened to the debate and read the report, which my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and I believe should be noted with interest, rather than approval, I think that the fact that we forced a vote when we previously considered the subject, when the
result was about 411 to 20, has been justified. The reflections of the Committee, which comprised Members from both sides of the House, having examined the wording that my hon. Friend and I challenged at that time—I think that our challenge caused the Leader of the House to run down the corridor to get to the Chamber on time because no vote was expected—demonstrate that this House operates by behaviour as well as by rules, which is the essence of conventions.
On the previous occasion, we alighted on the curious question of codification as a matter of considerable concern, so I was glad that the hon. Member for Cambridge (David Howarth), a distinguished academic lawyer who has examined these matters through the prism of jurisprudence, understood what we were getting at and spoke strongly on the subject, as did the hon. Member for Somerton and Frome (Mr. Heath). The process could otherwise have easily been hijacked, with everything going through on the nod. If we had not taken such action, I am not entirely convinced that we would have been in the happy position where the matter received the responsible consideration that it has been given today.
By reference to other constitutions throughout the rest of world, many of which were born out of, or spawned by, our constitutional experience, the situation is pretty extraordinary. There are Commonwealth countries that have written constitutions, which we do not have. However, I should add that Canada applies the doctrine of conventions. Before I became a Member, I was involved in the patriation proposals with respect to Quebec, which I advised professionally for several years. It was on the question of the Statute of Westminster that the Supreme Court of Canada decided that there had been no illegality regarding the patriation proposals for the Canadian constitutional settlement. Although there had been no breach of the legal rules, however, there had been breaches of convention because the provinces had been insufficiently consulted before representatives came to Westminster to ask whether the constitution should be repatriated.
Huge matters can thus turn on conventions. Indeed, the relationships between the sovereign and the Cabinet and the Prime Minister and the Cabinet turn on conventions. Such
“non-legal rules of the constitution”,
as constitutional conventions have been described, give rise to the Rubik’s cube in which we operate. One of the great virtues of the British constitutional arrangement is precisely that it is unwritten. Many fundamental matters turn on the application of constitutional conventions.
Is it not strange that we should have conventions that are rules, yet are effectively modes of behaviour? They are not enforceable by the courts. They are not legal, or even obligatory. They do not have to be subscribed to, but they are. In a sense, that takes us back to the very question of who we are and what we are in this House of Commons when convened as a Parliament. In practice, we are pragmatic for much of the time. That was why I asked about the Whip system in an intervention. I am afraid that the Whip system is not subject to much in the way of conventions. We rely on the extremely good-natured attitude of many Whips in
dealing with Members. Even during the Maastricht debates, I remember that one of the Whips—it would be embarrassing if I revealed who it was—
Mr. Cash: If hon. Members knew who it was, they would be even more surprised by what I am about to say. He said, “Well, Bill, you’ve got your job to do, and I’ve got mine.” I thought that that was an interesting indication of behaviour, in a way, although that perhaps contradicts my point about the Whip system.
When we are dealing with the relationship between the House of Commons and the House of Lords, we are dealing with the way in which laws are formulated. To repeat what I said earlier, I am concerned about the fact that, these days, so little time is available in the House of Commons, because Standing Orders, which are codified rules, have been imposed on the workings of the House. That has enabled the Whip system to eliminate debate and scrutiny, as a result of which it becomes ever more important for the House of Lords to perform the excellent function that it so often does.
It is hardly surprising that, according to the evidence in the report, there has been an increase in the number of occasions on which the House of Lords, which is not entirely hereditary, has rebelled against what has been going on in the Commons, irrespective of the number of people appointed by the Prime Minister to the other House. The Lords know that if they do not examine the issues, they might not be examined at all, and that is a very good reason for the continued existence of the House of Lords.
The primacy of this House must be retained in relation to all the matters that we have discussed, especially taxation and government, which the hon. Member for Cannock Chase (Dr. Wright) so rightly mentioned. However, that must be done without prejudice to the question, “What is a manifesto?” On the manner in which conventions are meant to operate, one aspect of the report that has intrigued, puzzled and slightly worried me is the reaffirmation of the fact that the House of Lords should be expected to put through a manifesto Bill.
I see that there are references in the report to the fact that there should not be wrecking amendments. I have to admit to having tabled more than my reasonable share of wrecking amendments over the past 23 years, but I did so—some will doubt this—not just to be difficult or awkward, but because there were important questions that needed to be debated. On 10 May last year, in another debate on these same matters, I simply insisted, with 10 other hon. Friends and hon. Members, that the motion be put to a vote. In fact, it turned out that 20 people voted no in the deferred Division. We did so because we disagreed, at that time, with the way in which the terms of reference had been devised.
Fundamentally, we are dealing with the apogee of self-restraint. That is what the issue of conventions between the two Houses is all about. In due course, the House of Lords is more than likely to be turned into a hybrid Chamber, in which between 70 and 80 per cent. of Members are elected. I hear what other hon. Members say—they say that they have heard it all before and it will not happen—but I sense that it is more likely to happen than not, this time round. That
does not prevent or in any way inhibit the necessity of maintaining the conventions, because although the Salisbury reasons for the conventions will have gone, others are inherent in the existence of two Houses, one of which has to revise, and the other of which has to govern. We are therefore right to be concerned about the nature of those conventions. There is a wonderful expression in “Through the Looking Glass”:
“When I use a word...it means just what I choose it to mean...The question is...which is to be master—that’s all.”
That consideration applies to conventions, which mean what we choose them to mean. It is a question, too, of who is to be master, but the question of behaviour is at the heart of the matter. In my previous career, I looked at the conventions a great deal, and I was deeply impressed by the work of Geoffrey Marshall, who sadly died a few years ago. I had many discussions with him and he offered an excellent summary of conventions as
“non-legal rules of constitutional behaviour”.
Conventions have been described, too, as
“rules of constitutional behaviour which are considered to be binding by and upon those who operate the Constitution but which are not enforced by the law courts...nor by the presiding officers in the Houses of Parliament.”
That is an interesting addition to the definition, which ultimately depends on the way in which we approach the relationship between elected representatives and the strict rules that apply to the conduct of our affairs.
One of the most intriguing and worrying aspects of the proposals is highlighted by paragraph 9 of the Government’s response. It refers to paragraph 61 of the report by the Joint Committee, which states:
“Given the weight of evidence...should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again.”
That is obviously the case, and it raises the question of the nature of conventions. As has been said, a convention cannot exist until it is well established. Rules and behaviour are a matter of habit, practice and tradition, and it is extraordinary that the Government should suggest that
“further reform should not alter the current role of the Lords as a revising chamber, and that the conventions governing its relationship with the Commons are fit for that purpose.”
I understand what they are trying to say, but the change in the nature of the House of Lords is bound to have an impact on the application of the conventions. As I have tried to point out, the proposal to change the Lords to a semi-elected Chamber with different functions would not in itself prevent the conventions from continuing to operate.
It was odd that the Joint Committee should say that neither House of Parliament regularly rejects secondary legislation. It states, however, that
“in exceptional circumstances it may be appropriate for either House to do so.”
“Although we have offered a list of examples of exceptional circumstances...we do not recommend defining them further.”
It gives examples of statutory instruments that could be amended, such as those connected with skeleton Bills, which have been mentioned by several hon. Members. I pointed out in an intervention that under
the Regulatory Reform Act 2001, which covers not just burdens on business, but a vast range of departmental activities, it is clear that given the huge sphere within which the Act will operate, and the open-ended nature of its provisions, those orders and statutory instruments must be capable of amendment.
In an intervention on my right hon. Friend the shadow Leader of the House, I pointed out that only a few months ago, in June, the Opposition voted by whipping my amendment regarding that Act in order to ensure that we would be able to override the statutory instruments and other legislation that flow from the European Communities Act, and to require the judiciary, in particular the House of Lords, to comply with that subsequent Westminster legislation. That was endorsed by a further vote by my party in the House of Lords.
That is an anchor and a huge opportunity. After all, we are on record as saying that we want to change the social chapter, for example, and I can think of many other examples among the huge raft of legislation emanating from the European Community and the European Union. The European Constitution has effectively gone for the time being, although Mrs. Merkel is re-introducing it today. My comments do not in any way absolve the Leader of the House of my train fare to Blackburn, in the light of what he said earlier.
The necessity for us to assert the supremacy of this House lies at the heart of the relationship between ourselves and the electorate, and derives from it. It is also a matter of deep importance in the relationship between the two Houses. In relation to European legislation or devolved legislation or, for example, in relation to the question of Scottish independence, which is being raised by the Scottish nationalists, in the arrangements in the Scotland Act 1998 the question arises whether legislation should be passed in this House, as I suggested in a letter in The Daily Telegraph yesterday, to provide for a referendum of the whole of the United Kingdom with respect to the future relationship between ourselves, Scotland and the Scottish Parliament, and also in respect of Wales and our membership of the European Union.
With reference to the relationship between the two Houses, the question whether the legislation that will be needed is capable of being overridden by using the reserve powers of Westminster as against the Scottish Parliament to legislate could turn out to be extremely contentious. A matter of such huge constitutional importance could turn into a battleground not about a matter as irrelevant as the Hunting Act 2004, important as it was from a social and a countryside point of view, but about whether the Scottish nationalists, if they took control of the Scottish Parliament, could hold a referendum in Scotland as a devolved power. An issue of such major constitutional importance could have implications for the relationship between this House and the House of Lords. That would bring into high profile the conventions that apply between the two Houses. The issues raised in the report are of great interest. I am glad that the Committee came up with so many useful recommendations. I hesitate to say that I approve of all
of them, because some matters remain unconsidered and will develop further in future. On the whole, this is not an occasion when one would feel it necessary to divide the House, but there were important reasons for doing so when the process began.
In the past, it has always been understood as a matter of convention that if the House of Lords did not ultimately accept a subordinate role when confronted with the determined will of the House of Commons, it knew that its remaining legislative powers would be cut back still further. That is why it has backed off on so many occasions when ping-pong has gone on, sometimes on extremely important matters. Ultimately, that gives rise to the question of the way in which the Parliament Acts operate. Several Members who spoke about that legislation perhaps overlooked the fact that it is not entrenched. People think that it is more entrenched than it really is. It was born out of a massive row in 1911—but we have had massive rows for the past 400 years. Both Houses operate best when they are acting on the basis of mutually understood good behaviour as between one another.
That pragmatic self-restraint could be put under a great deal of stress in future, particularly if there is to be an elected, or largely elected, House of Lords, which I happen to think would be a good thing. If we get the balance between the functions of the two Houses right, and if we have a different electoral cycle and system, we can avoid clashes, but we cannot avoid the necessity of maintaining the conventions in a way that prevents the unnecessary stress and tension that could otherwise arise. I look forward to hearing what the Leader of the House says by way of conclusion.
6.38 pm
Mr. Straw: It is always a pleasure to follow the hon. Member for Stone (Mr. Cash), but I regret to have to tell him that under the rules of “Strictly Come Blackburn” he has nul points. The deal was that if he held himself back and did not mention the European Union in the context of this debate, I would provide him with a free ticket to Blackburn. He managed to do that until relatively late in the evening, but then I am afraid that he faulted himself and fell back into the condition that used to drive the Conservative Whips completely demented during the latter years of the Major Government. I am sure that the noble Lords Goodlad and Ryder will be delighted to hear his exoneration of the Whips’ behaviour when they were seeking metaphorically to break his legs, but I remember that the atmosphere at the time was not quite as benign. Whips are Whips—they are there to deliver a majority for the Government.
I say to the hon. Member for Cambridge (David Howarth) that, unless we tore up our constitutional arrangements and had a presidential system with a separation of legislative and Executive functions, as happens in America and several European countries, it will always be the case that, if the Executive are drawn from the legislature, they must have a means of delivering their majority and their legislation.
It has been a good debate, which reminds me—as happens every time I stay for a whole debate—of an important value of the Chamber: listening to colleagues from all parties, thinking about what is said
and following the shift and flow of the argument. It is the only way in which we can make effective decisions and changes in this place for the benefit of society.
There is widespread approval of the report. I do not detect that there will be a Division this evening. That enables me to repeat my opening comments that the report is important and a tribute to the work of all members of the Joint Committee, some of whom were present throughout the debate. I thank them for their work and the wisdom reflected in the report.
It was ungraciously suggested that the Government had decided to set up a committee on conventions because we wished somehow to restrain the powers of the other place. Had that been the case, I would have owned up to it, but it was not. The provenance of the Joint Committee—the second Cunningham committee—was our manifesto commitment to set up such a committee to establish a baseline and, if possible, an understanding, which has been achieved, between parties at both ends of the building about what the current conventions mean, thus forming a foundation for further discussions on the reform of the other place, to which all three parties are committed.
The hon. Member for North Southwark and Bermondsey (Simon Hughes) mentioned the Liberal Democrats’ commitment. We spelled out our commitment at the beginning of volume 1 of the report. It is worth reminding hon. Members that the Conservative party manifesto stated:
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