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Lord Simon of Glaisdale: My Lords, not for the first time your Lordships are deeply indebted to the noble Viscount for bringing forward a Bill of profound constitutional importance in a constructive way and for explaining it with exemplary clarity. In the noble Viscount, we have the advantage of a former member of the Cabinet, a former Leader of the House and, particularly important in this context, a former Member of another place. I do not suppose that he will expect all of us to agree with everything in his Bill. That is hardly necessary to secure a Second Reading. Indeed, I shall be anxious to see how far my noble and learned friend the Lord Chancellor is enthusiastic about the preamble, or the proposal that newly appointed Cabinet Ministers should submit themselves to a by-election. That was formerly the practice, and it provided a great deal of innocent fun--fun that was not always so innocent, as it was a wonderful opportunity for the electorate to give a jolt to a government.

Parliamentary representative government is not, as I have ventured to submit in discussing the House of Lords Bill, the sole method of democracy. The great achievement of the previous government was their vindication of the market economy, whereby every shopping day is a general election, every shop a polling booth, and every penny laid out on the counter a vote for the various candidates for custom.

Nor is one limited to the economy for democracy. If the decision which affects the individual can be vouchsafed to the individual, if we vindicate the old proverb that every Englishman's home is his castle, if we can vindicate subsidiarity, which was the great achievement of John Major, inscribing it in the Maastricht Treaty, if we can apply subsidiarity, like charity, to begin at home, we shall have gone a very long way towards establishing a democratic society.

But that is not to say that representative government is not important. It is true that there are many things the individual cannot decide himself. The late Lord Jay was probably right when he said that the man in Whitehall does know best. However, there is one thing the man in Whitehall does not know: it is where the shoe is pinching when other people are wearing it. That is why we give influence in politics not only to the mandarin on his high horse, but also to the footsore pedestrian. We do it by representative democracy.

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The preamble indicates a number of concerns about the way representative democracy works at the moment. The noble Viscount mentioned the Glorious Revolution which we celebrated a decade ago. The revolution was glorious because it vindicated parliamentary government against executive government. The modern equivalent is presidential government. The Glorious Revolution managed to see off a government that legislated by ordinance, by decree, by executive order. The noble Viscount's Bill deals importantly with that matter. Today a great deal is done by subordinate legislation. There have been notorious examples with this Government, but perhaps the worst was the Child Support Act of the previous government, which was virtually a skeleton Bill and worked out disastrously.

The noble Viscount puts us in a debt by bringing forward in a constructive way various methods by which representative government can be improved. It would not be right to be entirely pessimistic. There have been some valuable and positive developments; the select committees in the other place, the development of judicial review, and so on.

On the other hand, there is the deplorable but characteristic example of the European election measure. It was deplorable in two ways. First, the party list meant that power was in effect taken away from the electorate and vouchsafed to the party managers. Secondly, a whip was imposed in the other place and afterwards the Parliament Act was invoked. Many Members of the other place who disagree entirely with the party list method must have been profoundly disturbed by what was done. They were whipped into the Lobby, and the Parliament Act was imposed on a measure for which it was entirely inappropriate.

Having said that, there is much in the Bill which is of value. I attach great importance to the proposals on subordinate legislation. It is now so important that Parliament should have the power to amend it. I imagine that that is a breaking point with the Civil Service. On the other hand, the noble Earl, Lord Russell, has achieved a way of getting round it; and, having conceded his method, we may as well face directly the right of Parliament to amend subordinate legislation.

This is not the time to go through the Bill in detail. I regard with some hesitation the proposal not only that Cabinet Ministers should submit to re-election but also that senior civil servants and the very senior part of the judiciary should go before a parliamentary committee and be approved by the committee. It is limited to the Appellate Committee of your Lordships' House, the Lords of Appeal in Ordinary. Even so limited, it would be deplorable if our judiciary felt that they were being subjected to a political test. One saw the damaging and humiliating experiences of two judges, candidates submitted by the President for the American Supreme Court. One had to withdraw his candidature after a press campaign against him. The other, Justice Thomas, went through a most excruciating and improper grilling before the Senate Judiciary Committee.

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Despite all the hesitation on detail, we can wholeheartedly welcome the proposals which the noble Viscount lays before us, which will be a valuable source of discussion.

11.40 a.m.

Lord Renton: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has given us the advantage of his judicial experience and constitutional wisdom. I do not believe that I have ever said--I should have done--that I and members of the Committee on the Preparation of Legislation, of which I had the honour to be chairman, are deeply indebted to the noble and learned Lord for the way in which a quarter of a century ago at this time of year he welcomed the report of that committee and has supported it frequently ever since. His reference today to the Preamble to this Bill reminds me that what we most wanted parliamentary draftsmen to do was to state the purposes and principles of Bills so that the contents could be better understood by everyone and more easily interpreted by the courts.

The Preamble to the Bill states vividly the purposes as matters of principle. We have not had Preambles as a regular matter for over 70 years. However, I believe that in this particular case it has been an advantage to us to have the Preamble. One hopes that the noble and learned Lord the Lord Chancellor, with whom one disagrees on some matters but who has some good ideas about the drafting of legislation, will bear in mind that advantage.

My noble friend Lord Cranborne, who was an admirable Leader of the House and Leader of the Opposition, has done valuable service to our parliamentary democracy by introducing this Bill. I need hardly mention, although we should bear in mind, that we have a flexible and "unwritten" constitution. I put that word in inverted commas because parts of our constitution have passed into statute and therefore can be said to be partly written. That differs from so-called "written" constitutions which, thank God, we do not have. It is difficult to reach agreement on their amendment and they fail to keep up with changing times, and if possible we should avoid them. Our constitution, being flexible, can change as experience requires or public opinion desires. By proposing various detailed changes my noble friend's Bill would help to bring our parliamentary government up to date.

Clauses 1 to 12 in Part I aim to improve our primary, devolved and delegated legislation and give us the control that we need over Community legislation. Those changes will no doubt be discussed in detail in Committee, but perhaps I may make a general comment. Our legislation needs to be improved in the way suggested by my noble friend, and the Government should seriously consider that. I draw attention only to Clauses 6 to 8 which suggest ways in which subordinate legislation should be considered. As the noble and learned Lord, Lord Simon of Glaisdale, said, the Government use delegated legislation more than it has been used in the past, certainly, as far as I can remember, since World War II. In war time it must be used; it cannot be avoided. But it is most unfortunate that neither House of Parliament has power to amend

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delegated legislation. The practice in both Houses is to debate these matters either late in the day or early in the night when they have much less chance of being properly considered; and they cannot be amended.

In Part II Clause 13 proposes some useful strengthening of the powers of the Committee of Public Accounts to consider recommendations of the Comptroller and Auditor General. I regard that as one of the most important provisions in the Bill. But, alas, as I have told my noble friend, I cannot agree with Clause 14. That clause requires parliamentary approval of a wide range of important public appointments, including Law Lords, ambassadors and chairmen of many important public bodies. For years all of these appointments have been made by members of the Cabinet, each with his own responsibility, who happen to be politicians. But those appointments are made after consultation with civil servants and others who can give advice as to the best people to fill those posts. Some of the appointments require Royal approval. I consider that the present system works well. If party politicians, especially those in another place, had to give their approval all kinds of undesirable pressures would arise, and that is something to be avoided. The administrative cost of making these appointments would also be considerably increased. At Committee stage I intend to move to omit Clause 14 and the schedule from the Bill.

Part III proposes a commission to review government administration. That is a very sensible proposal. Part IV is a bit controversial in places, but I shall try to keep an open mind until Committee stage and I have heard further justification from my noble friend for his proposal. Meanwhile, I doubt the need for by-elections after the appointment of new Cabinet Ministers. That, too, would add to the cost to the taxpayer.

Clause 21 in Part V requires the BBC to broadcast proceedings of each House. That is an excellent proposal, for it means that people can be better informed. We used to be reasonably well informed by The Times, Daily Telegraph and Guardian, but regrettably those newspapers have not performed that task for many years. I hope that I shall not be thought to be too egocentric if I say that I fought and won 10 general elections and never had a majority of less than 5,000. Looking back to those times, it occurs to me that no more than one third of those who voted had a real understanding of the issues. I doubt whether today the proportion is any higher, because people do not have an easy opportunity of becoming well informed. If the BBC had an obligation to broadcast the whole of our proceedings, democracy would be much improved, and people would be better informed and more able to make a judgment. I regard that provision as being of great importance.

I believe that my noble friend has done a great service in putting forward the Bill. I know that it is late in the Session, but I hope that we shall have the Committee stage very soon. If, as some would say, a miracle occurs--I believe that it is a necessity--and the Bill reaches the statute book, it would be in the interests of our parliamentary democracy.

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11.49 a.m.

Lord Rathcavan: My Lords, with due humility in the presence of so many noble and learned Lords, I intend to make only a brief contribution to the debate on the Bill which I broadly welcome. From these Benches, I often admire the nimble footwork of the noble Viscount, Lord Cranborne, on legislative matters on which he has as much experience and historical knowledge as anyone here today. I do not see any hidden agenda, however, in the Bill. It is clear what it intends to achieve: more democratic government, which we badly need at present; more accountability; more parliamentary control; and more scrutiny of government and in particular the scrutiny of the devolved assemblies and Scottish Parliament.

I wish to speak in particular on Clauses 4 to 8 which are concerned with parliamentary control over the delegation of legislative powers and the exercise of those powers in Scotland, Wales and my own province of Northern Ireland, and which would require the Northern Ireland Assembly, for example, to send all its Bills to Parliament here for scrutiny at the least.

During the few years in which I have been a Member of your Lordships' House I have had the advantage and experience of being a member of Sub-Committee D of the European Communities Committee to which government give the informal power to scrutinise and comment on any legislative measures or directives from Europe before they are agreed by the Council of Ministers. In Clause 9 the Bill goes much further, and I very much welcome that. The sub-committees of the European Communities Committee do not have power at present, but I hope and believe that we have influence. Government take into account our recommendations, as they have done recently on the report produced by Sub-Committee D on genetically modified crops and food. More important perhaps is what would happen if the scrutiny process of the committees was not there to request government to account for what they are doing and to debate the issues involved.

In the case of the Northern Ireland Assembly and the Scottish Parliament there is no revising chamber and no scrutiny reserve. There are concordats which I understand are written but which are informal arrangements concerning departmental matters, produced more often by officials than Ministers, such as, for example, on the rules for competition on inward investment incentives between the different regions and the DTI--a very contentious issue. But if I remember correctly, the Government, at least at Third Reading of the Northern Ireland Bill, rejected any legal obligation to lay these concordats before Parliament. In Clause 5 the Bill would require the Northern Ireland Assembly and the Scottish Parliament to send all Bills to the Delegated Powers and Deregulation Committee for scrutiny and a report to be laid before the Assembly or the Scottish Parliament. It is a reasonable enough request and a move towards the checks and balances and public discussion which should take place.

At one extreme one can imagine a coalition in Northern Ireland of the Presbyterian ethic with the abstemious style of Sinn Fein to introduce prohibition

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in the Province. That reminds me of my time as a young member of the editorial staff of the Irish Times when that paper published an April Fool's day editorial during a general election criticising the inclusion in the manifesto of the Fianna Fail party of a proposal to introduce prohibition for the Republic of Ireland. This led to a serious sense of humour failure by the Fianna Fail party which accused the Irish Times editorial of being in the hands of crypto red communists.

On a more serious note, I urge the Government to take more seriously now the Bill's proposals and to take this opportunity to make the regional assemblies and the Scottish Parliament more accountable and more open to scrutiny by central government and Parliament, which is, after all, providing most of the money for them to spend, as the noble Viscount mentioned. Perhaps it requires a beefing up of the Public Accounts Committee. That is covered in Clause 13.

I congratulate the noble Viscount, Lord Cranborne, on introducing the Bill. I strongly support the themes of the Bill and look forward, I hope, to the Committee stage when the Bill can even be improved.

11.54 a.m.

Lord Norton of Louth: My Lords, I, too congratulate my noble friend Lord Cranborne on introducing the Bill. It is an important Bill and I join in welcoming the fact that it is the noble and learned Lord the Lord Chancellor who is to reply for the Government and my noble friend Lord Strathclyde for the Opposition.

The Bill deals with the fundamental relationship at the heart of our political system. There is an inherent conflict within that relationship. Most members of the elected Chamber are returned to support and sustain the Government, yet they are Members of a House expected to subject to scrutiny the actions and measures of that very Government. The nature of this inherent conflict raises two important questions. First, what are the most effective means of parliamentary scrutiny? Secondly, how can those means be put beyond the immediate reach of the majority which exists to sustain the Government, a Government which may not be too keen on being the subject of close and sustained scrutiny?

The Bill deals with the means of scrutiny and the form of protection. I shall address each briefly. On the content, I very much welcome many, indeed most, of the provisions of the Bill. I congratulate my noble friend especially on the provisions for strengthening the role of Parliament in the scrutiny of primary and delegated legislation. I welcome Clause 1 providing for the publication of Bills in draft. I acknowledge how far the previous administration went and how far the present one has gone in providing for the publishing of some Bills in draft. But I believe that it is vital to lock the provision into the system and not leave it to the discretion of Government.

I also strongly support the other provisions of Clause 1. I have long advocated the use of evidence-taking committees, especially in the other place, as standard practice; the provision that Bills automatically stand referred to such committees, unless the House resolves

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to the contrary, will, I believe, serve to increase enormously the quality of parliamentary scrutiny, offering as it does the potential for more informed and less partisan examination.

I am delighted by the attention given to delegated legislation and would probably wish to go further and to incorporate more of the proposals contained in the report from the Procedure Committee in another place in its Fourth Report in the 1995-96 Session. I very much endorse what the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Renton said. The legislative process in Parliament is still the weakest area of parliamentary scrutiny and anything that serves to strengthen Parliament in its scrutiny of public legislation is to be applauded.

I congratulate my noble friend on the proposals for greater use of the National Audit Office, itself of course established through the medium of a Private Member's Bill. The provisions of Clause 2 are novel and potentially far reaching. I recognise that there are important implications in terms of resources for the National Audit Office, but the provisions merit serious consideration.

I also welcome and strongly support Clause 12 dealing with uncommenced legislation, and have great sympathy with what my noble friend seeks to do in respect of European legislation, public appointments, the number of Members of the House of Commons in Cabinet, and the broadcasting of proceedings, although I take the view that a reduction in the size of the Cabinet should be a consequence of reduction in the size of the House of Commons rather than the other way round. I am not sure that I necessarily agree with the detail of each proposal, but I think that my noble friend has got the principle right in each case.

Where I part company with my noble friend is in respect of Clause 3 providing for referendums on legislative provisions which affect substantially the constitution. I have a practical objection to subsection (1) and I am opposed in principle to the provisions of subsection (2). The practical objection is that it is not always possible to distinguish clearly between a measure which affects substantially the constitution and one that does not. There is an enormous grey area. There can also be a marked difference between a Bill which affects substantially the constitution and a Bill which has an important and contested impact on the constitution. I note also that the Bill does not define a constitution.

I turn to my more fundamental objection. I have a longstanding and principled objection to referendums. The best argument against referendums was made by my noble friend Lady Thatcher in her first major speech as Leader of the Opposition in 1975. Although she may have changed her opinion since, I have not. She recognised that referendums conflict fundamentally with the concepts of parliamentary sovereignty, collective responsibility and a representative of Parliament. As another Labour Member said in that 1975 debate, a referendum perpetuates a confusion of government by

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debate, thought, reflection and decision in the House of Commons with a head count of the people. Although I recognise that there is a counter argument, I subscribe to the view that referendums undermine crucially and perniciously the very notion of parliamentary control that my noble friend seeks to protect by this Bill. Clause 3 is the equivalent of a computer virus and if it is left in, it will serve to wipe out and destroy the valuable provisions embodied in the other clauses. I should like to see it eliminated.

I turn now to the form of the Bill. I very much welcome what my honourable friend seeks to achieve by embodying the mechanisms of parliamentary scrutiny and control in statute. By putting the provisions in statutory form, they are protected from the passing whim of a majority in either House. They can be changed only by another statute, not by a simple vote to change or suspend a Standing Order. Given the power at the disposal of the government of the day, such protection helps to ensure a more balanced relationship between the Executive and Parliament.

I can anticipate the argument that the Government will employ against using a Bill for this purpose; namely, that it is too rigid. In some countries, provisions of the kind embodied in this Bill are to be found not in statute but in the constitution. That, I think, is to provide for a little too much rigidity. This Bill lies between the two extremes. It is not overly rigid and it is not too flexible. It provides for a modest degree of statutory protection. For the reasons I have given, I believe that it is necessary protection.

Although I oppose certain provisions of the Bill, I very much support its purpose and I believe that my noble friend has done a great service by introducing it. I often tell my students that the real value of Private Members' Bills is to be found in the debate they generate. They can bring issues on to the political agenda. They can prompt the Government to act. They can help to keep important issues to the fore. I hope that my noble friend's Bill will serve to do all these and more.

Finally, good government needs an effective Parliament. A confident government will have no difficulty in embracing the spirit of this Bill. A government lacking in confidence will not embrace it. I look forward to the response of the noble and learned Lord the Lord Chancellor.

12.2 p.m.

Lord Weatherill: My Lords, I, too, welcome the opportunity to discuss this important matter on a Friday morning. However, I am not totally convinced that we need a Bill to make Parliament more effective. In saying that, I do not disagree with many of the suggestions made by the noble Viscount. What I believe is wrong is the way in which we are using Parliament at present. There is not much wrong with the institution of Parliament in itself.

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The noble Viscount, Lord Cranborne, mentioned that the only effective power in the other place at the moment are the Whips' Offices. I fully agree. I was a Whip for some 12 years--

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