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Viscount Cranborne: My Lords, will the noble Lord explain why the Government did not recognise the weakness of the Scotland and Wales legislation which also failed to give the same powers in the same circumstances; and why they did not object to their own drafting?

Lord Borrie: My Lords, I cannot answer that question. As I am not a Minister, I cannot say that I will ask my officials to advise me and that I will reply in writing to the noble Viscount. No doubt Ministers will take account of what was said in the intervention by the noble Viscount, Lord Cranborne.

Earl Russell: Perhaps I may assist the noble Lord. The question of freepost was raised in Commons Standing Committee A on 28th January 1999 by my honourable friend Mr Davey and by Mr Eric Forth. The Minister's reply was:

Under the circumstances, does the noble Lord agree that those remarks deserve the "William Waldegrave award for honest evasion"?

Lord Borrie: My Lords, in so far as I understand the noble Earl, I am sure that he is right.

I turn to the election rules which we are also debating at this time and refer to the new constitutional doctrine, as it seemed to me, enunciated by the noble Lord, Lord Mackay of Ardbrecknish. He

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indicated by reference to speeches by my noble friend Lady Jay of Paddington that whatever conventions there may have been--I hope I am not misconstruing what the noble Lord said--this is a new House. That phrase was certainly used. He said that it is more legitimate; will therefore carry more weight; and that more account should be taken of what this House says. I hope that the noble Lord has covered himself as he is a Deputy Leader and I know that the Leaders and the Deputy Leaders of the Opposition have to consult Mr William Hague in order to be sure that everything is all right.

Lord Campbell of Alloway: On the point which he was making, will the noble Lord accept that irrespective of what is provided in primary legislation, here we are faced with two orders? Does he accept that we have the absolute entitlement to reject them and the question is whether we do or whether we do not; and that if there is some reason which appears to us to be just, sensible and reasonable, we are entitled to do so without creating any precedent?

Lord Borrie: My Lords, what I was about to say will certainly provide something of an answer for the noble Lord, Lord Campbell of Alloway.

I was going to consider the convention as it has grown up. This House is dealing with a Motion to annul an order which is subject to the negative resolution procedure which has not been annulled by the other place. I notice that the noble Earl, Lord Jellicoe, is in his place. I wanted to refer to him and to Lord Salisbury. In the 1960s, which some noble Lords here today will remember and of others will know from their knowledge of political life in the past 20 years, there were important debates on orders concerning Southern Rhodesia. Important statements were made in this House by Members from different parties as to the circumstances in which it was legitimate for this House to go against the elected House on these matters.

The noble Lord, Lord Carrington, who is not in his place today, said that, certainly, the House of Lords may go in defiance of the elected Chamber. He said that the House was certainly entitled to do that, but he said that surely no government could passively accept such an adverse vote.

During the debates on the Southern Rhodesia order, some noble Lords had argued that they should vote against an order in exceptional circumstances and that it was legitimate for the House of Lords to do that. But they limited that to certain special circumstances. One was the circumstance mentioned by the noble Earl, Lord Jellicoe, during the debates and he was Deputy Leader of the Opposition. He said that the House would be within its constitutional rights in going against the elected House and thus affording the government and the opposition a period of reflection. That cannot apply in this case because we are talking about the election rules which, as the Minister explained, deal with the nuts and bolts of the London mayoral and assembly elections and there is nothing there which requires further reflection. They have been agreed by all the various parties.

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The other case for this House legitimately going against the views of the elected Chamber was where the House of Lords might be regarded as being better in step with public opinion. During the debates on the Southern Rhodesia order, Lord Salisbury argued that that was an occasion on which the views of the electorate might not be reflected in the House of Commons and, thus, the second Chamber should not feel constrained in voting against the order.

It is impossible to suggest that the election rules here dealing with the nuts and bolts of the London mayoral and assembly elections do not reflect public opinion. As we all know, there was a referendum after the election of the Labour Government on 1st May 1997 indicating that the public felt that there should be such elections. These rules merely facilitate that.

The noble Lord, Lord Mackay of Ardbrecknish, indicated that, whatever conventions there may have been in the late 1960s, those conventions are now out of date. It seems to me that something is being evolved on the hoof here by the noble Lord, Lord Mackay of Ardbrecknish. It deserves to be discussed.

Lord Campbell of Alloway: My Lords, I am obliged to the noble Lord for giving way. It is not on the hoof. Has not the noble Lord read paragraph 739 of the Wakeham report? That says that, as of today, this House has an absolute right of veto and therefore every entitlement to support the Motion of my noble friend. Does not the noble Lord understand that?

Lord Borrie: My Lords, I do not regard that as giving this House a complete opportunity, in its present state of evolution on the road to whatever will follow in due course, or any greater right by constitutional convention than was the case in the 1960s in the examples I gave.

On grounds of constitutionality it is not appropriate for this Chamber to turn down the nuts and bolts detail of the election rules simply as a device to bring something new on to the agenda. There may be other, more legitimate ways, of doing that.

4.20 p.m.

Lord Simon of Glaisdale: My Lords, two questions arise on this amendment. The first, which has been raised for the first time by the noble Lord, Lord Borrie, is whether there is a convention that precludes your Lordships--and should preclude your Lordships--from accepting the amendment moved by the noble Lord, Lord Mackay of Ardbrecknish. The second question is whether, if there is no such convention, this is an appropriate occasion on which your Lordships should exercise a right to move against subordinate legislation.

The first question should not be necessary. It was decided with perfect clarity by your Lordships in 1994, long after matters such as the Salisbury convention were adumbrated; long after the Southern Rhodesia order. If it is necessary now, nevertheless, to pursue the matter, it is because freedom depends on eternal

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vigilance, because repositories of power are eternally seeking the aggrandisement of that power. That is one of the symptoms whereby the corruption of power can be measured. It is necessary therefore to now examine the position.

I mentioned that the matter had been decided. On 20th October 1994 a resolution was brought before your Lordships' House in these terms:

    "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".

That was explained immediately by the mover of the resolution--I have to say it was myself--in these terms:

    "the purpose of the Motion ... is to make clear that there is no convention which precludes your Lordships from voting on subsidiary legislation".--[Official Report, 20/10/94; col. 356.]

Nobody ever suggested that there was a legal rule but a number of Ministers suggested that there was such a convention, just as a number of Ministers are now suggesting that there is such a convention. But that is inconsistent with the resolution which your Lordships carried.

I refer to the measure because, as recently as 7th December of last year, the noble and learned Lord, Lord Falconer of Thoroton, repeatedly asserted that there was no such convention. It was a convoluted argument and selectively quoted, but I need not go into that because the conclusion was quite unacceptable. He finally said that, "The noble Viscount"--that is the noble Viscount, Lord Cranborne, who I am glad to see is in his place behind a splendid camellia and who can deal with this himself--

    "indicated that we [the Conservative government] accept the Motion, but on the basis that there is a convention that says that we do not vote against subsidiary legislation".--[Official Report, 7/12/99; col. 1266.]

The noble Viscount can no doubt explain that that is obviously incorrect. The Minister was arguing that the resolution was accepted by the Government on the basis that it meant precisely the opposite of what it said and what it was said to be intended to do.

So that is the constitutional background. There is absolutely no convention which precludes your Lordships from considering the merits of the amendment. I do not desire to say anything on that because the matter has been argued quite conclusively by the noble Lords, Lord Mackay of Ardbrecknish and Lord Goodhart, but it does fall within a slightly wider context.

The noble Lord, Lord Hardy of Wath, mentioned the falling off of voting figures; very worrying. I cannot presume to agree with him that that is due to the postal vote; that is an entirely fanciful idea. But there is no question but that parliamentary democracy is in a state of some crisis, because the present Government are a strongly centralising, aggrandising government. The phrase that is used is that they are "control freaks". So they are. To adopt the language of the noble Lord, Lord Bassam--I am glad to see him in his place--what has happened in Wales and what is happening in London is a shambles and that brings parliamentary democracy greatly into disrepute.

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In considering further constitutional questions, as your Lordships propose to do, it seems to me that the central issue will be the health of parliamentary government. Anything that derogates from that is to be guarded against very carefully. To me, the knowledge of issues among the people who are to vote--the people who will be affected by the issues--seems to be very near the fundamentals of parliamentary democracy. Therefore, if this matter is put to a Division, I shall vote for the amendment.

4.30 p.m.

Viscount Cranborne: My Lords, I should just like to say what a very great pleasure, as always, it is follow the noble and learned Lord. In what I hope will be a short intervention, I shall return to the central point of his argument. However, in view of the remarks made by my noble friend Lord Mackay of Ardbrecknish, I ought, first, to declare an interest in at least part of his argument as I am president of the Watford Conservative Association.

Like the noble and learned Lord, I was much impressed by the arguments put forward by my noble friend Lord Mackay. He so clearly embarrassed the Government that they had to persuade the noble Lord, Lord Hardy of Wath, to put forward what I thought, coming from him, was a very remarkable and ideological view. If I understood the noble Lord correctly, he was arguing that any form of public subsidy in elections was a disincentive to vigour and personal enterprise. If that is so, perhaps I may encourage the noble Lord to come across to these Benches because, at least ideologically, that argument would fit very well with some of what we have said. I give way.

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