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Lord Peston: My Lords, I am grateful to my noble and learned friend for giving way. He must have heard a different debate from the one to which I have been listening. I was astonished by the high degree of consensus among noble Lords. I hesitate to ignore my noble and learned friend for the moment, but if we

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were asked to sit down together I believe that we would come up with a solution to the whole set of problems. I have no doubt that there was considerable consensus.

Lord Falconer of Thoroton: My Lords, I believe there was a consensus that something should be done but not as to what that should be. The noble and learned Lord, Lord Simon of Glaisdale, for example, said, "Don't do anything; just rely on your power to reject". Other noble Lords said, "We have to get rid of our power to reject and delay". Other noble Lords said that we should delay in different ways. Yet other noble Lords, of whom the noble Lord, Lord Dahrendorf, is the best example, said, "Take a whole new model"; namely, the National Assembly of Wales. To say that there is a consensus on the way forward seems to me, with respect, optimistic. What was being said was simply that there should be a way forward.

Lord Norton of Louth: My Lords, I am grateful to the noble and learned Lord for giving way. Perhaps I may offer a suggestion. Can the Minister identify any noble Lord who argued against changing the process and introducing a sifting committee?

Lord Falconer of Thoroton: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, said that we should simply rely upon our power to reject. The approach of the Government to the Royal Commission chaired by the noble Lord, Lord Wakeham, is that we would wish to hear detailed comments on its proposals. This debate has been a useful way of dealing with and receiving such comments, though I accept that it will not be the only way.

In my remarks, perhaps I may not address the particular proposals made by the House--this is a useful listening debate from our point of view--but address the way forward in the mean time. That raises the question of the current position in the present interim House. The Government believe that there is, and should be, a convention that this House does not reject secondary legislation. I should like to draw to your Lordships' attention two definitions of a constitutional convention which I believe are relevant. The first is found in Marshall and Moodie, Some Problems of the Constitution, which states:

    "Conventions are rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution, but which are not enforced by the law courts".

In Dicey's Introduction to the Study of the Law of the Constitution, he stated:

    "The general rule that the House of Lords must in matters of legislation ultimately give way to the House of Commons is one of the best-established maxims of modern constitutional ethics".

Lord Simon of Glaisdale: My Lords, I am grateful to the noble and learned Lord for giving way in a time-limited debate. A great many years have passed--in fact, a century-- since Dicey wrote that. How can the Minister possibly stand up now and say that there is no convention when that was expressly asserted in 1994 and expressly acted on within this very year?

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Lord Falconer of Thoroton: My Lords, I shall come to that, if I may. I shall deal with the 1994 position and the February 2000 position. As has been agreed in the course of the debate, the House has rejected secondary legislation only twice since the war: on Rhodesian sanctions and on arrangements for the London mayoral elections earlier last month.

Lord Simon of Glaisdale: My Lords, I am sorry to interrupt the noble and learned Lord again. It is true that only twice have the votes been carried to a negative Division. But during the sixties and seventies, I think the noble and learned Lord will agree that both parties repeatedly voted against secondary legislation without necessarily carrying it in the Division Lobby.

Lord Falconer of Thoroton: My Lords, I agree that from time to time people voted against secondary legislation. But, apart from the two occasions to which I have referred, those were the only occasions when secondary legislation was defeated by a fatal motion. The fact that between 1945 and the year 2000 Members of this House voted in a way inconsistent with the Salisbury/Addington convention does not mean that there was not a Salisbury/Addington convention which prevailed, and still prevails, in this House.

As your Lordships know, when secondary legislation is actually defeated by this House, the other place cannot overrule your Lordships because the concurrence of both Houses is required. Perhaps I may deal with the 1994 debate initiated by the noble and learned Lord, Lord Simon of Glaisdale. There was no vote taken. As the then Leader of the House--

Lord Simon of Glaisdale: My Lords, again I am sorry to interrupt the noble and learned Lord. There was no vote taken because the resolution was carried nem. con.

Lord Falconer of Thoroton: My Lords, that is absolutely right. What was the basis on which it was carried? Perhaps we may refer to the words of the then Leader of the House, the noble Viscount, Lord Cranborne. When the issue was debated, he said that this sat very ill with your Lordships' role as a revising chamber--that is, to defeat secondary legislation--whose power should be one of asking the other place to think again, not to defy it.

As he put it,

    "It is clear that the exercise of this crude power could result in stalemate between the two Houses with little scope for resolution"--[Official Report, 20/10/94; col. 361.]

It is clear that when the noble Viscount, Lord Cranborne, indicated that the Conservative Party would not vote against the resolution proposed, everybody accepted that the power was there to vote against secondary legislation--

Lord Simon of Glaisdale: My Lords, I do not think that even the noble and learned Lord can assert that the reason the vote was not carried by the Conservative Party was because the resolution was understood to mean precisely the opposite of what it said.

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Lord Burlison: My Lords, perhaps I may remind noble Lords that this is a timed debate. I should like the Minister to have time to reply.

Lord Falconer of Thoroton: My Lords, I am being too provocative; I apologise. The reason I assert that that was why the Conservative Party, or indeed anybody, did not vote against the resolution is because that is the true meaning of what the noble Lord said. Nobody disputes that the power exists to vote against secondary legislation, just as nobody disputes that the power exists to vote against legislation in breach of the Salisbury Convention. The question is not: is the power there to vote against it? The question is: is there a convention that says constitutionally we should not do it?

I do not deny that, procedurally, as was resolved in the 1994 debate, noble Lords have the power to defeat secondary legislation; but I say that that is no different from their power to defeat legislation in breach of the Salisbury Convention.

Much secondary legislation is now very important as a means of delivering government policies. Sometimes, of course, it is simply detail or transitional but on other occasions it is crucial to the smooth process of government that secondary legislation should be used.

I think it unlikely that matters would ever come to the point that rejection would occur on small matters of detail. The fact that the power has been used or even invoked so rarely points to that. Therefore, almost by definition, the question of defeat of a statutory instrument will arise only when it deals with an important matter of policy. The question, therefore, is: should the House of Lords be able to prevent the elected government from doing things they wish to do, and which the elected Commons agrees they should do as a matter of important policy, where that policy requires secondary legislation for its implementation?

The question therefore is: should the House of Lords be able to prevent, for example, the fixing of a minimum wage at the level that the Commons want? Or should it be able to prevent the mayoral elections from going ahead altogether? When I say "prevent", I mean prevent altogether. That is the power that it is said exists in this House in relation to secondary legislation; in effect, a power to override the elected other place in relation to matters of high policy. If one looks at the history of this issue, the matter never arises in relation to detail. That is usually dealt with by agreement. The answer to the question must be and is, "No". The unelected Chamber should not be able to prevent the elected Government and Chamber from doing, as a matter of principle, what the other place decided to do.

This unelected Chamber is not the equal of the elected Chamber. Noble Lords opposite are rather given to claiming that, now that the House is more legitimate than it previously was, it has somehow acquired that right. That is nonsense. This House is indeed more legitimate than it was because all of its Members have in one way or another earned their

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place. But in democratic terms it is still not as legitimate as the other place. Therefore, it is not right that it should exercise a power which actually sets aside and makes of no effect the wishes of the other place on important issues of policy, which decision cannot be reversed by the other place. This Chamber is a scrutinising Chamber. That is accepted. It is not one where important matters of principle are to be resolved as a matter of finality.

The prime power of this Chamber is to make the Government think again. This it already has the means to do, even on secondary legislation, by various devices drawing attention to concerns about individual instruments which fall short of outright rejection. For example, noble Lords may agree a Motion setting out the amendments they would ideally like to see made to an order. Noble Lords with more experience than I will know all of the non-fatal means by which this House developed mechanisms to draw to the attention of the executive or the other place what they would like to see in secondary legislation.

It is sometimes suggested that if the Government attach so much importance to something with which they cannot contemplate not proceeding, they ought to deal with it by way of primary legislation, thus leaving open the possibility of using the Parliament Acts to overrule your Lordships' House. That is a mistaken view on both constitutional and practical grounds. Everyone accepts that there are matters which are entirely properly dealt with by secondary legislation. Secondary legislation does not emerge from the ether at the whim of the Government. In every case where it is used, it is under powers which have been conferred in primary legislation.

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