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Earl Russell: My Lords, I am most grateful but I really must not claim credit which is not due to me. That was a Motion of the noble and learned Lord, Lord Simon of Glaisdale.
Lord Mackay of Ardbrecknish: My Lords, I stand corrected. The noble and learned Lord, Lord Simon of Glaisdale, has always pursued this matter with vigour. When I was a government Minister and the noble and learned Lord, Lord Simon of Glaisdale, rose to speak, I always paid close attention to what he said and, at best, quickly agreed to take away and study whatever point he was attempting to make, as the chances were that he was probably correct and my brief was probably wrong.
My point was that the Companion makes it clear that there is an unfettered freedom to vote, and that is important. The noble Earl, Lord Russell, used his
ingenuity to tempt the party opposite, when it was in opposition, to join the Liberal Democrats in the Lobbies. I have no doubt that he will attempt to tempt us to join him in the Lobbies. I am sure that the noble Earl will welcome the idea that we may be tempted. The passage of the House of Lords Act 1999 has changed things in quite a dramatic manner. Even the Government accept that. In the November edition of the Parliamentary Monitor, the noble Baroness the Leader of the House had this to say. As an aside, I am surprised that neither the noble Baroness, as the Leader of the House, nor her deputy, the noble and learned Lord, Lord Williams of Mostyn, is replying. After all, this is about the business of the procedures of the House. With all due respect to the noble and learned Lord, Lord Falconer, with whom I enjoy exchanging comments, it has nothing to do with the Cabinet Office, which is concerned with getting through Government business and not with the procedures of your Lordships' House or with the Dome. I do not believe that the Dome yet has responsibility for the procedures of your Lordships' House.I return to the noble Baroness the Leader of the House. She said that the House,
- "will be able to speak with more authority ... A decision by the House not to support a proposal from the Government will carry more weight because it will have to include supporters from a range of political and independent opinions. So the Executive will be better held to account".
So how do we hold the Government to account and do so better? We believe, as I have said, that the Front Bench convention that we should never vote on secondary legislation is now at an end in the new House. How we deal with secondary legislation in the future must be subject to discussions within the House so that we can in fact subject secondary legislation to proper scrutiny.
I am currently involved in considering the Nuclear Safeguards Bill. It is a measure that we all agree on. It is quite short, with 12 clauses and nine pages. But the meat of the Bill is in the regulations, which run to 21 pages. So if I wanted to pray against the regulations I could not amend any part of the detail. Yet because I have the draft regulations to hand--I am grateful for that--I could table an amendment putting the draft regulations in as a schedule to the Bill and then proceed to amend them. That is rather complex and I do not believe that that is the right way to go about it.
To use the words of the noble Baroness the Leader of the House, it would not be wise to better hold the Executive to account only by accepting or rejecting an order in its entirety. Surely it would be much much wiser to seek a new procedure by which we could also amend secondary legislation, thus giving the Government the opportunity to take on board the amendment and get their secondary legislation. Again, to repeat the Leader's words,
- "the Executive will be held better to account".
As regards secondary legislation I believe that that is what we should do in future.
10.18 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, perhaps I may join with other noble Lords in thanking the noble Lord, Lord Dean of Harptree, in giving the House through this Unstarred Question the opportunity to debate what I believe to be a very important issue. Perhaps I may also join with other noble Lords in congratulating the noble Lord, Lord Rogan, on his maiden speech. It was very impressive. I believe that the House will greatly benefit from his knowledge of affairs in Ulster and that it will undoubtedly benefit from his great courage in putting forward his views. I welcome him as warmly as possible to this House. I also join with the noble Earl, Lord Russell, in expressing my deep personal regret that the noble and learned Lord, Lord Simon of Glaisdale, is not in his place today. All noble Lords would acknowledge his great personal experience and his clarity in relation to these issues.
Perhaps I may start my reply by setting out what I believe the present position to be. It is important that the Government should set out clearly what they say is the position. Before the passage of the House of Lords Act 1999 I think it would be generally accepted, pace the noble Earl, Lord Russell, that there was a convention that the House would not by means of any effective Motion reject secondary legislation. I say that accepting, of course, that in theory the House had the power to vote down such secondary legislation, just indeed as it has the power to vote down at Second Reading primary legislation, even though voting down such primary legislation would be in breach of what has come to be known as the Salisbury/Addison Convention. The fact that in both cases the House has the power does not mean that there is not a constitutional convention which, in effect, involves the House in accepting that it will not use that power.
Earl Russell: My Lords, I do not know whether the noble and learned Lord remembers, but the power to vote down a Bill at Second Reading was last used as recently as January of this year. I do not believe that the Government were very angry.
Lord Falconer of Thoroton: My Lords, all noble Lords are aware of the circumstances under which that occurred. In some respects that led to a speedy resolution of what might otherwise have been a tricky problem. Equally, I do not believe that any noble Lord in the Chamber tonight or in the House of Lords would regard the position as being wrongly expressed if I said that the Salisbury convention, although it does not detract from the power of the House to vote down Bills at Second Reading, is a convention that the House respects. Furthermore, it reflects the view of Dicey in The Law of the Constitution, which states:
- "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".
I believe that all noble Lords would accept that what the then Viscount Cranborne and Viscount Addison were reflecting was the acceptance by the House of Lords of the primacy of the House of Commons.
The then Viscount Cranborne set out the approach of the Conservative Opposition in the Lords in 1945 when establishing the basis of the doctrine by saying that:
- "Whatever our personal views, we should frankly recognize that these proposals were put before the country at the recent General Election and that the people of this country, with full knowledge of these proposals, returned a Labour Party to power. The Government may, therefore, I think, fairly claim that they have a mandate to introduce these proposals".--[Official Report, 16/8/1945; col. 47.]
Lord Falconer of Thoroton: My Lords, I was analysing the position by setting out the circumstances before the House of Lords Act 1999, and asking whether the Act will change those circumstances. I believe that the noble Lord, Lord Campbell of Alloway, suggested that, because there is no longer a Conservative hegemony in this House, that somehow changes the basis of the Salisbury convention and, presumably, the convention in relation to delegated legislation. With great respect, that does not for one moment repay examination.
The then Viscount Cranborne set out the reason for the Salisbury convention as being the democratic will of the people having been expressed. It would be wrong for this House to reject that democratic will. What possible difference could it make that the will of the people was rejected by the Conservatives or the Labour Party in this House, or a combination of any other parties? With respect to the noble Lord, Lord Campbell of Alloway, there is absolutely no logic whatsoever in his position.
Lord Campbell of Alloway: My Lords, with respect, there is no logic in that reply. If an Opposition in this place--be they Conservative, Whig or whatever--have an effective voting majority, there is no substratum for the Salisbury convention.
Lord Falconer of Thoroton: My Lords, with the greatest respect, that does not answer the point. The point which the then Viscount Cranborne was putting forward was that we should not reject the will of the people. It does not seem to me to matter whether a Conservative majority, a coalition majority or a Labour majority rejects it. Therefore, with respect, the noble Lord's point does not change one jot the basis of that convention.
The basis of the delegated legislation convention must be the same; indeed, even more strongly so. As the noble Earl, Lord Russell, accepted in his speech, there is plainly no power under the Parliament Act, as there is in relation to primary legislation, to force delegated legislation through. So there is a conundrum. Should this House reject delegated legislation, whether because it wants it amended but is forced to reject it or on some other basis, the consequence is that this House defeats for ever, if it wants, the purpose of the views of the House of Commons. The noble Earl, Lord Russell, accepted that that could not be the case. He said that there would have to be an amendment to the Parliament Act. That being the case, it would appear to be accepted, at least by the noble Earl, that one cannot move at this stage to a position that we break with the convention that the House can defeat secondary legislation.
That brings us to this point. There is a convention that this House should not take on the elected Chamber. It exists in relation to primary legislation of the kind described in the Salisbury convention. It exists equally in relation to secondary legislation, as, in effect, the noble Earl, Lord Russell, accepted. Before we break with that convention we would need to make a number of changes.
What is at the heart of the position of the noble Lord, Lord Dean of Harptree, is that we should refer the question of what to do about delegated legislation to the Liaison Committee, or an ad hoc procedure committee, or whatever the appropriate committee might be. With the greatest respect to the noble Lord, that does not seem to be sensible when the noble Lord, Lord Wakeham, has been appointed chairman of a Royal Commission tasked in part with considering what should be done in relation to this House and delegated legislation. What is more, that commission has received evidence from the Delegated Powers and Deregulation Committee as to what should be done. I can think of nothing less sensible than this House expressing views in relation to that matter before it has heard from the noble Lord, Lord Wakeham.
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