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Lord Strathclyde: What has surprised me in this short debate on a rather humble amendment is the degree of excitement that it has caused to noble Lords opposite. The situation as I have always understood it is that they are committed to a two-stage process, which will, in its final stage, lead to a more representative House; and that the stage one House, including the provisions of the Weatherill amendment, will cease to be. I take it as a matter of trust that that is what the Government want. I believe it and accept it.

But we are being asked to legislate. All I am asking is that we should do something which, as noble Lords opposite accept, will never need to happen because they will introduce their stage two Bill. So how can they possibly object to this humble and helpful amendment, which we should like to see in the Bill, and which they need never see in action because they will have proposed their stage two Bill. The noble and learned Lord the Lord Chancellor has failed to answer that question.

The noble Lord, Lord Richard, said it was ridiculous to assume that in seven or eight years' time the hereditaries could be asked to elect one of their number, that they will not have seen anyone in action. But the onus would be on them to keep in touch and to discuss among themselves whom they would like to represent them. As my noble friend Lord Ferrers said, is that not a far better system than relying on an election process that will have taken place seven or eight years earlier?

The noble Lord, Lord Desai, says that we are all painting fanciful scenarios. But none is more fanciful than the one he himself paints. The noble Lord said that the Labour Party had only 18 hereditary Peers, and asked about the future. At that stage, the Labour Party may well have attracted the support of more hereditary Peers, who are well represented on the Benches opposite. There is no reason why, in the future, hereditary Peers may wish to take the Labour Whip outside this House so that when one of the

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representative Peers dies they can stand as a replacement. It shows little faith on the part of the Labour Party if it does not believe that anyone will wish to support it in the future.

The noble and learned Lord the Lord Chancellor proposes an even more intriguing prospect. He says that it may well be that we should allow the representative hereditary Peers to be the electorate to choose Peers outside this House. That is a perfectly viable alternative, although not one to which I subscribe.

The point is that we have an opportunity to prevent uncertainty. Surely one of the tasks for Parliament is to make sure that we have got rid of uncertainty. This is a valuable opportunity, a valuable method of reducing uncertainty. That is why when we return at Report stage, having considered the reply from the noble and learned Lord the Lord Chancellor in more detail, we shall seek the opinion of the House and seek to provide for violations in the future. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 and 34 not moved.]

Lord Strathclyde moved Amendment No. 35:

Page 1, line 19, leave out ("Clerk of the Parliaments, whose certificate") and insert ("Committee for Privileges of the House of Lords, whose decision")

The noble Lord said: This is a humble amendment, even more humble than the last one. What we are trying to do here is to provide, on page 1, line 19, that it is the Clerk of the Parliaments who issues a certificate which shall be conclusive as to who is to be elected. I have no problem whatever with the Clerk of the Parliaments, but I wonder whether it is right that the House should put him in the position of deciding who should and who should not be elected to the House.

I propose that it should be the Committee for Privileges of your Lordships' House that makes the decision and the decision is conclusive. It is what happens at the moment with disputed hereditary peerages. All hereditary peerages go through the Committee for Privileges, therefore I hope that this is a nice cleaning up amendment which the noble and learned Lord will be able to accept, without my having to come back at a later stage. I beg to move.

The Lord Chancellor: I am not convinced and I rather think the Standing Orders as at present drawn have got it right. I am not convinced that the Committee for Privileges is the right body to consider the mechanics, the nuts and bolts of the operation of Clause 2 and the Standing Order.

The committee deals and will continue to deal with the question of whether someone is a hereditary Peer at all. That is a proper function for the Committee for Privileges. These proposals will have no effect whatever on the traditional jurisdiction of the Committee for Privileges.

Paragraph 6 of the draft Standing Order provides that the Clerk of the Parliaments may refer to the Committee for Privileges any perceived or alleged malpractice in the electoral process. That seems to me to get the

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balance right between the two committees. I do not begin to be convinced that the minutiae of the routine electoral procedures should be a matter for this most senior of our committees, the Committee for Privileges.

It is necessary, in the interests of efficiency, to work out what is the proper role for the Procedure Committee and what is the proper role for the Committee for Privileges. It is perfectly sensible to put mechanical matters, nuts and bolts matters, validation matters in the hands of the Clerk of the Parliaments and provide that the certificate of the Clerk shall be conclusive. He will be responsible for the electoral arrangements, but he can refer any question of propriety to the Committee for Privileges. There is therefore already a role for the Committee for Privileges in the process when issues arise which are related, akin to its present functions.

But Clause 2(5) has three purposes which seem to me to be perfectly sensible. First, it allows the Clerk to administer the elections and, as the returning officer, to certify who has been elected. I cannot see what on earth that has to do with the Committee for Privileges.

Secondly, it gives a means by which an excepted Peer can prove that he is excepted. That is a procedural matter, it is a matter for the Clerk. Thirdly, it prevents any court or the House from questioning whether an excepted Peer has been excepted. It provides a means to deal largely with routine matters which are not suited for the Committee for Privileges, but the Committee for Privileges is brought in when it is right that it should be troubled. As at present advised, I believe that the Standing Orders have got the balance right. It cannot be right that everything should be given to the Committee for Privileges in an area that is utterly inappropriate for a committee of that seniority. I hope that the noble Lord the Leader of the Opposition will consider what I have said and, in the light of it, decide not to press his amendment either now or later.

11.30 p.m.

Lord Strathclyde: All I seek to ask the noble and learned Lord is whether, if a Peer disagrees with a decision of the Clerk of the Parliaments, he or she can take it to the Committee for Privileges. Is that precluded by virtue of subsection (5), which provides that the decision of the Clerk of the Parliaments is conclusive? Is there a role for the Committee for Privileges to take a view or is the decision of the Clerk of the Parliaments final, in which case it puts him in a slightly awkward position? If he believes that there is some doubt but decides not to send it to the Committee for Privileges that gives no right of appeal to a Peer who feels hard done by. If the noble and learned Lord does not have an answer to that question now, perhaps he will give it consideration before we return to the matter at Report stage.

The Lord Chancellor: I shall certainly give it further thought. It is not contemplated that there should be a right of appeal from the Clerk of the Parliaments to the Committee for Privileges but that there should be a reference by him to that committee where it appears to him that there is an allegation or suspicion of

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malpractice or something of that kind. But it is intended that purely administrative matters should be left with the Clerk of the Parliaments for the last word without any right of appeal. If it is suggested that for some reason the Clerk of the Parliaments cannot be relied upon in this area and therefore there should be an appeal to the committee--which would have to be defined in some way; otherwise the Committee for Privileges would just constitute a pure rehearing--we would be willing to give thought to it. However, as at present advised, we believe that the balance in the Standing Orders is about right. If a credible proposal is made falling short of a complete rehearing in all cases by the Committee for Privileges, we shall give thought to it.

Lord Strathclyde: I shall study that response carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Pearson of Rannoch: It is always daunting to address your Lordships' House, especially late at night, but it is even more frightening when one proposes that a clause which the House has approved by 351 votes to 32 a fortnight ago should not stand part of the Bill. Yet it seems to me that the so-called Weatherill amendment, or Clause 2 of the Bill as it now is, has so many defects that an attempt must be made to remove it and replace it with something very much better at Report stage. After all, although the vote was decisive it was not a very big vote for an issue of such constitutional importance. Some 775 Peers either abstained or did not attend the House that day.

Also, the clause has been recommitted for a whole day's debate in Committee today and so presumably can be amended, even radically. The trouble is that, as we have heard, the deal which gave birth to the Weatherill amendment was a compromise. Compromises by their nature have a habit of not suiting everyone, as the noble and learned Lord the Lord Chancellor has reminded us. But a compromise becomes a bad compromise when it does not suit anyone; and it becomes a very bad compromise when it is actively disliked by everyone, which is what the new Clause 2 manages to achieve. Worse still, and not surprisingly, the new clause does not set up the best possible interim House, which is surely what the national interest requires us to attempt to do.

Part of the problem lies in the provenance of the deal itself. As the noble and learned Lord the Lord Chancellor confirmed today, the Weatherill amendment, now Clause 2, is the result of a private deal struck with the Government and my noble friend Lord Cranborne when he was our Opposition leader in your Lordships' House and with the Convenor of the Cross Benches, the noble Lord, Lord Weatherill, and two eminent Cross-Bench Peers in the shape of the noble Lord, Lord Marsh, and the noble Earl, Lord Carnarvon.

The Cross Benches were not party to the deal before it was struck. Nor was the Conservation Opposition, to judge by the reaction to it of my right honourable friend

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the Leader of the Opposition. Nor were the Liberal Democrats, as they have told us today. But of course they would not have agreed to it anyway.

I should go no further without paying tribute to the noble Lords who reached the deal with the Government and to the Government themselves. They were all undoubtedly acting in good faith to achieve what they saw as being in the best interests of your Lordships' House and of the nation. Indeed, my noble friend Lord Cranborne even put his job on the line and lost it because he could not get the agreement of our Front Bench in the Commons to the proposed deal and because he went ahead and made it anyway.

But with hindsight and the benefit of our Committee proceedings, I have to submit that the resultant clause is fundamentally flawed and that it should be replaced. One has only to recall the atmosphere in your Lordships' House after Question Time last Tuesday, when the usual channels had clearly broken down, to see that that is so.

So why did so many of your Lordships agree to the amendment? The Government agreed it and voted for it, thus compromising their manifesto, because they believed that it would ensure that all their business would go through reasonably smoothly and that your Lordships' House would not use its undoubted power to frustrate the Government's legislative programme. Indeed, the Government have said that if their expectations are not met in this regard they will knock out the clause in the Commons. So that is why the Government voted for the Weatherill amendment.

The Conservatives voted for it, so far as I can understand, because they believed that 92 hereditary Peers in the interim Chamber are better than none, because it therefore makes a very bad Bill somewhat better, and because it was the only show in town.

The Liberals largely abstained in the vote on the Weatherill amendment, although they dislike it so much that one would have thought that they should have voted against it. Perhaps they shared the Government's hopes that it would have ensured a reasonably comfortable interim House.

So much for the unhappy provenance of Clause 2 of the Bill--nee, Weatherill. But it has some serious technical defects as well. For instance, as we have discussed today, it gives 42 of the 75 hereditary Peers who are to be elected by their fellow party hereditaries to the Conservatives. Only 28 go to the Cross Benches, three to the Liberals, and just two to Labour. This also means that the Government will have to create a large number of new Peers if they wish to achieve parity with the Conservatives, perhaps as many as 60. I mention this as a defect because one is aware that the attendance and voting record of those Peers appointed by the Government since the election is not perhaps quite what they had hoped it would be. It is not easy to find large numbers of good working Peers at short notice. The Conservatives will also presumably score a good proportion of the 15 hereditary Peers who are to be elected by the whole House as deputy speakers.

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Clause 2, if enacted, will give us a House of only 150 Cross Bench or independent Peers, regarded by many as perhaps the most valuable aspect of your Lordships' House, but with at least 212 Conservative Peers, 159 Labour and only 47 Liberals, plus the 15 for the Woolsack, and of course the Earl Marshal and the Lord Great Chamberlain. So Weatherill does little to address the Conservative preponderance in your Lordships' House which is just about the only thing that most people agree is really wrong with the present composition.

Clause 2 has other defects, all of which I suggest could be remedied with a different amendment. For instance, the new clause is not designed to last more than five years, as we have just considered under Amendment No. 32. That raises the longer term problem of by-elections which the clause does not address. Further, and more importantly, a number of excellent hereditary Peers will be removed completely, not even allowed to speak any more, whereas a large number of less than excellent appointed Peers will stay on with full powers. So, on that basis alone, the proposed interim House cannot really be the best interim House, which is what the national interest requires.

There is another very important fact which Clause 2 fails to address and which could easily be met in a well thought-out replacement. This is that the power to legislate lies entirely in the power to vote. It is, I submit, the hereditary Peers' power to legislate which the Government and others find so wrong. So it is their power to vote that is the problem. It is not their ability to contribute to your Lordships' debates, which many of them do with such wisdom and knowledge every day we sit.

This is not the time to rehearse the details of any replacement for Clause 2 of the Bill. There are a number of ideas in the air--or, rather, on the pages of Hansard--from Second Reading and our Committee stage. There is, for instance, the concept of weighted voting put forward by the noble Lord, Lord Randall of St. Budeaux. It is a pity that so many of your Lordships have shied away from this one because the mathematics--or rather the arithmetic--appear too daunting. I submit that this is not a good enough reason to rule it out if it would give us a more fluent and competent interim House than would the present Clause 2, as I am sure it would.

The debate on my own humble attempt at an alternative, Amendment No. 110E, can be found at cols. 43 to 59 of the Official Report of 17th May. That debate was very helpful to me at least because it forced me to appreciate the huge difference between voting and non-voting Peers in a way I had not done before. It enabled me to simplify the amendment considerably for Report stage. Indeed, it is now very simple and I believe that it meets most of the defects to be found in Clause 2 as drafted. It also meets the principles which I submit we must respect if we really do want to achieve the best possible interim House.

Briefly, it leaves all Peers with the right to speak. It then forms four electoral colleges of all Peers for each of the three parties and the Cross Benches to elect a

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given number of voting Peers from among their number. It thus avoids completely the problem of how many hereditary Peers should stay on because they would simply emerge from the electoral process. There might be more than 92 but there might be fewer. The pages of Hansard reveal that the noble Baroness the Lord Privy Seal did not pay quite her usual attention to my introduction of the amendment last Monday. I mean no discourtesy when I say that. I am full of admiration for the many hours that she spends listening and contributing to your Lordships' deliberations on this Bill and on other matters. But she is, after all, human--

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