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Lord Hardy of Wath: My Lords, I do not think that the noble Viscount fully appreciated the point I was making. It may well be that the freepost has served its purpose. It was designed to stimulate and persuade people to vote; and, indeed, to remind them that they should vote. Turn-out has dropped dramatically. That is the matter which should be exercising the minds of politicians today.

Viscount Cranborne: My Lords, with great respect to the noble Lord, who I well remember with affection from another place, I understood from his original argument that he equated the introduction of the freepost with the decline in turn-out at general elections. But, as I understand him now, he has slightly modified that argument. However, that is not something with which I wish to bore your Lordships this afternoon.

In view of the excellent way in which my noble friend deployed his arguments, I shall not attempt to repeat them. However, I have two questions for the Government. The first relates to the assertion, which was made much of by colleagues of noble Lords on the Government Bench in another place during the course of consideration of this order; namely, that it was really outrageous that an unelected House should have anything to do with consideration of electoral law. If I

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am right, that was the centre piece of the oratory of the Leader of another place. I am glad to see the noble Lord, Lord Whitty, shaking his head; indeed, it means that he at least sees the inherent weaknesses of his right honourable friend's argument. If that is so, it is rather curious in that, as my noble friend said, the Government are portraying a rather cavalier view of the constitutional place of a second Chamber in our system.

As former colleagues of mine can bear out, I have long agreed with the proposition that your Lordships' House badly needs reform. It seems to me that the reason for such reform is, above all, to give it the independence and authority with which to carry out its central constitutional role, which seems to me to be very clear: to ensure that another place does its job properly. That role is not to challenge the ultimate authority of the other place, but to have enough independence and authority of its own to insist that it should not put up with the sort of sloppy legislation that governments of both parties have got away with because of their dominance of another place, even when they have not enjoyed a majority as, indeed, the government of whom I was a part did not in the dying days of 1996-97.

It is very clear that a government with an enormous majority who wish to act in a high-handed manner are able to do so--the evidence that they are doing so is all too clear from the glum faces on their own Back Benches, both in this and another place, when considering this proposition--unless and until your Lordships' House at least puts up its hand and says, "We ought to think about this again". Therefore, my first question to the Government is as follows: if there is to be any sort of parliamentary control in the present circumstances of a high-handed government's actions, who, apart from this House, is in a position to exercise at least a measure of warning? If I understand the constitutional position correctly, it is surely not only the right but also the duty of your Lordships' House to do just that.

My second question for the Government is quite simply this. The noble and learned Lord, Lord Simon of Glaisdale, talked with his usual authority on the matter of conventions. I was Leader of this House when the noble and learned Lord introduced his celebrated Motion. He was kind enough today to point out that I accepted his assertion contained within that Motion without demur. I have been pleased to see that not only he but also the noble Earl, Lord Russell, have acknowledged that fact. My question arises out of your Lordships' acceptance--and, indeed, my own--of the noble and learned Lord's Motion; namely, what is the nature of constitutional conventions? They are not embodied in law. Is it not true that we have found that constitutional conventions that are universally accepted can, arguably, have greater force and staying power than legislation? But surely those conventions, by definition, can apply only if they are universally accepted.

I suggest to noble Lords that there are probably only two conventions in our present constitution that are immutable. The first is that the Sovereign always signs

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legislation put before her after its passage through both Houses of Parliament; and, secondly, that a government will resign and call a general election after they have been defeated on a vote of confidence. Apart from those two, I suggest that it is really impossible to sustain that a convention exists if a large part of Parliament--either House--refuses to accept it. I wonder, therefore, whether it is fair for me to ask the Government whether they agree with the implied analysis in that question.

If I am correct in that respect, surely it is fair to say that, when he announced that he no longer regarded that convention as applying in the new House, my noble friend Lord Strathclyde was in fact perfectly within his rights to abrogate any adherence he may have had to the convention in the first place. Indeed, he actually had the courtesy in that speech before Christmas to give the Government plenty of notice about his intentions. Therefore, in view of what I said about your Lordships' position as a check on an over-mighty government who dominate another place, and bearing in mind what the noble and learned Lord said about the nature of conventions, especially this one, it seems to me to be perfectly sensible for us to make an independent judgment about the rights and wrongs of what the Government propose in this order. Surely this House is within its rights to vote against the order if its judgment tells it that that is what it ought to do.

Lord Whitty: My Lords, before the noble Viscount sits down, I wish to make something clear and to put a question to him. These Benches have never contested that this House has a right to vote on secondary legislation. Whether it is wise or prudent to do so is another matter. My colleagues have addressed that point. However, we question the propriety--given the noble Viscount's vast experience, I should be interested to hear his view--of threatening to vote down secondary legislation on a ground entirely extraneous to that secondary legislation. That, I suggest, takes us into new constitutional territory where neither convention nor constitution gives us any guidance. I hope that the noble Viscount will respond to that point.

Viscount Cranborne: My Lords, if I understand the noble Lord aright, he accepts that this House has the right to exercise its judgment--as I suggested a moment ago--as to whether or not to vote against a piece of secondary legislation. If I understand the implication of the second part of the noble Lord's remarks, he is resurrecting what I think has now been demonstrated to be a canard during the course of this debate; namely, that this House is doing something which it is not allowed to do because the primary legislation on which this secondary legislation depends does not mention the question of free post. I believe that that is what the noble Lord is saying. If so, I assume that the noble Lord will refer to the Law

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Officers the question of whether the Government acted ultra vires in the matter of Scotland and Wales, and whether they ought to sue themselves.

Lord Whitty: My Lords, I am sorry to pursue this but I should stop this canard too. Section 11 of the Government of Wales Act and Section 12 of the Scotland Act provide for legislation which could apply the parliamentary provisions to elections for the Scottish Parliament and the Welsh Assembly. The Greater London Authority Act has no such provision. Therefore, what the noble Lord, Lord Mackay, proposes is actually to ask the Government to act ultra vires in respect of current legislation. I query the propriety of that.

4.42 p.m.

Lord Peston: My Lords, I rise--

Lord Campbell of Alloway: My Lords--

Noble Lords: This side!

Lord Peston: My Lords, one would have thought that after about five interventions someone on this side might get a chance to speak. I rise with the normal glum expression on my face to say a few words in favour of the Government for a change. We seem to be debating three topics, one of which I was quite unprepared for; namely, a rather scurrilous attack on the democratic credentials of the Labour Party.

Noble Lords: Oh!

Lord Peston: My Lords, looking at the Conservative Party and having sat in this House unreformed for many years I find it most odd that the Conservative Party of all people should attack us on the ground of parliamentary democracy. For some time I have been intrigued by its commitment to democracy. I did not see a sign of it in the years when I sat on the Opposition Front Bench. Although I am willing to discuss the history of our great parties at some point, I believe that such scurrilous remarks ought to be held for another occasion.

In my second topic I pour oil on troubled waters. It seems to me that, as regards the question of the mail shot, a reasonable person could come to the view that the noble Lord, Lord Mackay of Ardbrecknish, takes. I do not regard his view as completely unreasonable; namely, that there could be a free mail shot, or that £5, £10, £15, £20 or £30 million should be spent. However, I ask him to consider that an equally reasonable person--if he can conceive of a person equally as reasonable as he is--could come to the opposite view. I am relatively open-minded on the matter. I am certainly not accusing him--as I often do--of being an idiot on these matters. As I say, one could take the view that there should be a free mail shot.

However, I am afraid that I belong to the school of thought of my noble friend Lord Hardy of Wath. I regard these mail shots as junk mail. My heart sinks at the thought that, if the Opposition were to get their

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way, more of it would arrive through my letter box. As I say, the Opposition do not hold an impossible view but I ask them to accept that this side does not hold an impossible view either.

The main topic I wish to debate concerns what your Lordships have a right to do and what they should do with respect to secondary legislation. When I first came to your Lordships' House I rapidly became a member of the Opposition Front Bench. I knew nothing about the conventions of your Lordships' House. I did not know much about Parliament anyway, and certainly not much about your Lordships' House. I reasonably pronounced that we had better divide against an order that I did not like.

The Leader of the Opposition at that time, the noble Lord, Lord Cledwyn, said, "Under no circumstances can you do that. If you so much as suggest that you will not be on this Front Bench anymore or ever again." I inquired why that was and I was told, "There is a convention that we do not do that sort of thing." My noble friend Lord Richard replaced my noble friend Lord Cledwyn as leader of the opposition and this subject arose on more than one occasion. Even as regards some measures that we considered monstrous we were told about the convention that I have mentioned. The question did not arise as to whether we had a right to divide on these measures--that is the point to which the noble and learned Lord, Lord Simon of Glaisdale, adverted--but whether one should do that. As regards the academic point, I have no doubt of the right to do it. My point is that, until recently, I was under the impression that we simply did not do it because that is not the way that your Lordships behave.

When my noble friend Lord Barnett and I gave evidence to the Wakeham Commission we included in that evidence the proposition that the convention I have mentioned should change and that in the new, reformed House of Lords noble Lords ought to scrutinise secondary legislation as effectively as primary legislation. We were fairly moderate in our view; namely, we felt that we should be able to vote on it once in order to send it back to the other place for reconsideration. If it helps the noble Lord, Lord Mackay of Ardbrecknish, and others, I should say that that is still my view. However, it is also my view--I ask the noble Lord, Lord Mackay of Ardbrecknish, and others to think about this--that we should do that only when we have had a proper debate in your Lordships' House on how your Lordships' House should behave in the new phase in which it finds itself. We should not do it in an ad hoc manner on an amendment of this kind for no specific reason--

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