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Lord Coleraine: My Lords, I am grateful to the two Front Bench spokesmen who have spoken in the short debate. I do not need to detain the House for very long now. The main objection to the amendment is that it deprives the House of the flexibility which the Front Benches feel it should have. On the other hand, my argument in favour of the amendment is that there should not be that kind of flexibility in the way that Parliament conducts its business. I have no doubt that the Weatherill amendment may go along very neatly for a long time without change, but any change should be a matter for Parliament, not just for this House. In those circumstances, I cannot agree with what has been said and I seek the opinion of the House.

On Question, amendment negatived.

Viscount Bledisloe moved Amendment No. 21D:

Page 1, line 20, at end insert--
("( ) If, at any time, there shall have been, for more than 30 days, fewer than 90 people excepted from section 1 pursuant to subsection (2) above, the Lord Chancellor shall thereupon take all such steps as may appear to him to be necessary to seek to ensure that the number of people so excepted becomes 90 as soon as may be reasonably practicable.
Provided that the validity of anything done by the House of Lords shall not be in any way affected, or open to challenge, by reason of the fact that, at any time, there are less than 90 people so excepted.")

The noble Viscount said: My Lords, Amendment No. 21D stands in my name and those of the noble Lords, Lord Chalfont and Lord Lucas. I propose the amendment with the greatest confidence for two reasons. First, it gives effect to the policy expressed by the noble and learned Lord the Lord Chancellor when we debated this matter in Committee on 25th May; and, secondly, it is brought forward pursuant to the express invitation of the noble and learned Lord the Lord Chancellor. I should at the outset say that, in the light of what the noble and learned Lord said in answer to Amendment No. 21, it may well be that if he can give me sufficient assurance it will not be necessary to press the amendment at this stage.

In Committee, the noble Lords, Lord Strathclyde and Lord Lucas, moved two amendments designed to ensure that the 90 was not just a maximum number but was a number to be maintained at all times. In answer, so far as concerns policy, the noble and learned Lord the Lord Chancellor gave the most categorical answer. He said:

But the noble and learned Lord went on to say--quite rightly, in my humble and respectful opinion--that in the form in which they were drafted the amendments

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were unacceptable, particularly the amendment moved by the noble Lord, Lord Strathclyde, which forbade any one of the 90 to die at any stage. It was a little optimistic of him to think that even legislation could achieve that. In answer, the noble and learned Lord the Lord Chancellor said:

    "In my view, until someone comes forward with something better than this amendment, it should be left on that basis".--[Official Report, 25/5/99; col. 879.]

This amendment is my attempt to come forward with something better than that basis.

The amendment merely provides that if a vacancy has existed for more than 30 days, the Lord Chancellor shall take such steps as may appear to him to be necessary to seek to ensure that the number goes back up to 90. He has to take only such steps as he considers necessary when the vacancy has existed for more than 30 days. If, for example, a vacancy occurs during a Recess, he may consider that no steps are necessary because the matter will be resolved as soon as someone comes back to do the work. He has only to seek to ensure that the number is topped up; therefore if no one is willing to serve, he has not in any way failed in his duty.

The noble and learned Lord was also concerned that if too absolute a duty was placed on the Bill, there could be some challenge to procedure of the House when the full 90 did not exist. For the avoidance of doubt, I have sought in the second paragraph to make it absolutely plain that that could not apply.

I therefore venture to hope that this amendment is acceptable both in principle and in technicality, because it does not place on anyone an onus to do that which is difficult or impossible, and it makes the position on validity totally clear.

It may be that when the noble and learned Lord returns with an amendment at Third Reading, as he has undertaken to do to in reply to the noble Lord, Lord Strathclyde, that of itself will make it plain that the 90 have to be topped up. If the noble and learned Lord can now assure me that the amendment that he brings back at that stage will make it plain that the 90 have to be topped up and that there is some mechanism for doing that, I shall be content. I have no commitment to any particular method; I merely want to ensure that there is a mechanism at all times for keeping the 90 topped up.

The noble and learned Lord may say that this is all academic, stage two will happen very soon and this provision will never be needed. One fully accepts that it is his intent and wish that stage two will happen soon. I suspect it was the intent and express wish of the authors of the 1911 Act that stage two of that legislation should happen soon. But minor difficulties, such as a near-revolt in Ireland and then World War One, blew them off course. So one can never know whether the Government will achieve that result. The noble Earl, Lord Onslow, in speaking to an earlier amendment, pointed out other reasons why stage two may not happen as soon as it is hoped. There was some debate about how likely that was; but that is not the basis on which we legislate. We legislate to cover all the circumstances and to be sure that the intent is provided. Therefore,

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I commend the amendment to the House; or at least, I invite the noble and learned Lord to say that he will deal with this matter in his amendment to replace Amendment No. 21.

In that connection, perhaps I may ask the noble and learned Lord one question. He has said, and I am pleased to hear, that we shall consider the report of the Procedure Committee before Third Reading. But the concept of Amendment No. 21 suggests further Standing Orders to deal with by-elections to fill vacancies. It seems to me that it is putting rather a lot on the Procedure Committee to hope that it can deal not only with the first-off election, the one that is to take place soon, but also with the subsequent by-elections, and have its report before the House by, let us say, the middle of July. Is the intention that the Procedure Committee should report to the House on both those issues; or is the intention that the subject of subsequent by-elections shall be left over so that the committee has a more mature time to consider the matter and does not have to work under quite so much pressure? I beg to move.

5.30 p.m.

Lord Strathclyde: My Lords, perhaps I may intervene briefly. I have every sympathy with the amendment. It may be that the Government can accept it. It follows on from the debate that we had in Committee, when I suggested that a floor should be placed under the number of hereditary Peers excepted under the Bill. Then, the noble and learned Lord was concerned that to omit the words "no more than" from the Bill and to insist on leaving 92 Weatherill Peers in the House might invite some to question the validity of the House if the numbers were under 90.

This amendment ingeniously shoots that particular fox. It asks only for the places to be filled as soon as possible. It further puts beyond doubt any question that the House could not act validly if the numbers of excepted Peers fell below 90. So I strongly endorse both parts of the amendment, which clearly should have support in all parts of the House. It may be that the Government will follow the argument of the noble Viscount, Lord Bledisloe, and agree that their response to Amendment No. 21 has changed the ground rules. If so, this is also an opportunity for the noble and learned Lord to say that. I should certainly welcome that.

Perhaps I may deal also with the final point raised by the noble Viscount on Standing Orders. It is my understanding, which is probably right, that the Procedure Committee should meet in order to agree Standing Orders for all these procedures, and that the House should then take a view on the advice of the Procedure Committee. Again, I hope that the noble and learned Lord will be able to give a positive response to the noble Viscount.

The Lord Chancellor: My Lords, let me first respond to the noble Viscount, Lord Bledisloe, by saying that it is certainly my objective, without putting anyone under an excessive burden, to ensure that the Procedure Committee can prepare Standing Orders for consideration by the House, which will address both the

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initial elections and by-elections; and that the committee should do that, if at all possible, before Third Reading. I therefore endorse the remarks of the noble Lord the Leader of the Opposition. It would not be feasible for the Procedure Committee to achieve that before the end of this Report stage.

The noble Viscount, Lord Bledisloe, will appreciate that I do not want to anticipate the precise terms of the amendment which, pursuant to my undertaking given to the noble Lord the Leader of the Opposition in reply to his Amendment No. 21, the Government will bring forward at Third Reading. However, he may find it reassuring that I at present contemplate that the words "no more than" in Clause 2(2) should be elided, so that the subsection would read, "At any one time 90 people shall be excepted"; then the provision for the filling of vacancies by means of by-elections would show that the statutory purpose was to procure that the 90 were topped up. That in itself, as the noble Viscount anticipated, may be sufficient to satisfy him. As he reminded the House, I certainly said previously that the figure of 90 is both a ceiling and a floor. So far as the Government are concerned, vacancies must be filled.

I am not, as at present advised, satisfied that the amendment brought forward by the noble Viscount is the right one. Let me say right at the outset that I am grateful to him for taking the trouble to write to me in detail to explain the thinking behind his proposal. Let me also make it absolutely clear that I accept that he seeks to be constructive and helpful, and nothing else.

However, looking at the terms of the amendment, I have grave doubts whether the obligation that is sought to be imposed on the Lord Chancellor is justiciable. How could it be enforced? I also have even graver doubts whether this is a matter in relation to which it is appropriate to impose an obligation on the Lord Chancellor as distinct from the House.

Further, it appears to me to remove flexibility for the relevant groupings to decide how long they require in order to determine which candidates are to come forward and what time they need for them to be appraised by the electorates within a by-election system.

I believe that on any view 30 days is too short a period. I understand that in the other place all parties now accept that a new Writ should be issued within three months of the death of a Member. Many might think that to proceed with the filling of a vacancy arising from a death within a period as short as 30 days is somewhat unseemly.

For all those reasons, I invite the noble Lord to withdraw his amendment. I hope that he will be sufficiently satisfied with the amendment which I have already undertaken that the Government will bring forward on Third Reading to deal with the by-election issue.

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