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Lord Mayhew of Twysden: My Lords, I am grateful to the noble Lord for giving way; I have been listening with care to his argument. But did he not begin by saying that he accepted that the noble and learned Lord, Lord Donaldson, had only to show that there was a reasonable doubt? The noble Lord has been helpfully explaining his view that there is no doubt. But having regard to the weight, calibre and character of the authorities that take a different view--they are helpfully set out in the Lords' Library research paper--surely the noble Lord must accept that there may be a doubt here and that the purpose of avoiding doubt is very valuable when it is expressed either by the parliamentary draftsman or by the author of a Bill itself.
Lord Goodhart: My Lords, I am grateful to the noble and learned Lord, Lord Mayhew--he is learned and I am not in your Lordships' House--for his intervention. But I am reminded of something that the courts have said on a number of occasions; that is, the fact that a point has been argued at great length in the courts does not mean that it is an arguable point.
The fact that this particular argument has been put forward by three distinguished academics--though in the case of Sir William Wade only to a qualified extent--does not mean that, if it is exposed to the full light of day in argument, it shows there is sufficient force behind it to justify the introduction of anything in the nature of this Bill.
I also take the view that the Bill is not desirable. The passage of the Bill would throw doubt on the legitimacy of a Bill passed under the 1949 Act. It would be thought that there was enough doubt about that to justify an Act of Parliament. One wonders whether, for example, Parliament could retrospectively validate the election of members to the European Parliament, a body formed under the treaties of the European Union and not under domestic legislation.
The noble and learned Lord, Lord Donaldson, says that the courts will not judicially review an Act which has already been passed after the elapse of a certain amount of time. But I have to ask the noble and learned Lord: does he agree that, if there was a new prosecution, for example under the War Crimes Act, the person who was charged with the offence would clearly not be out of time in applying for a stay of prosecution on the grounds that that Act had not been properly passed? The noble and learned Lord indicates his assent.
Let me turn briefly to the technical provisions of the Bill. We object strongly to subsection (b) of Clause 2. In the present unreformed or only partially reformed state of your Lordships' House it would be inappropriate to give your Lordships' House a veto over any variation in its composition or powers. That is true even in view of the slightly more legitimate present status of your Lordships' House.
New paragraph (c) of Clause 2 is perhaps of minor importance but it seems to me to be totally unworkable. How would it be possible to decide what constituted full discussion and consultation on the Bill? I also have a feeling that it is inappropriate for a Bill introduced in your Lordships' House to tell the other place how to handle its own proceedings.
I turn briefly to the wider issues which appear to lie behind the Bill. The underlying issue is the powers of your Lordships' House. It can be regarded as an attempt to claw back some of the powers that have been taken away by the Parliament Acts. The Bill seeks to raise doubts about the validity of the Parliament Act 1949. It proposes to recognise the validity of that Act and of Acts subsequently passed under it in exchange for the surrender of powers under both the 1911 and 1949 Acts for the House of Commons to override the veto of your Lordships House on the constitution and powers of the House. As I have indicated, that is an objective which we would not support.
Lord Campbell of Alloway: My Lords, I am obliged to the noble Lord for giving way. This is the second time that the noble Lord has referred to the veto of this House. To what exactly does the noble Lord refer?
Lord Goodhart: My Lords, I refer to the fact that apart from the Parliament Act, this House has a veto on any legislation because it cannot be passed without the consent of this House in the same form as the Bill which has been passed in the House of Commons. That seems to me to be plainly a veto.
In accordance with the customs of your Lordships' House it is not our intention to oppose Second Reading of the Bill, but we are unable to support it.
12.22 p.m.
Lord Kingsland: My Lords, unlike the noble Lord, Lord Goodhart, I find the arguments for Clause 1 of the Bill, as set out to your Lordships by the noble and learned Lord, Lord Donaldson, compelling.
At common law, from which statute derives its authority, the participation of your Lordships' House is essential to make valid legislation. The 1911 and 1949 Acts, by contrast, introduced a special procedure with a differently defined legislative body to achieve certain objectives which are set out in the two Acts.
The contents of the 1911 Bill are wholly valid because it was an Act passed by the other place, your Lordships' House and, at that time, the King. That was not the case for the 1949 Act. Is there some other basis upon which the 1949 Act can find its validity? The noble and learned Lord, Lord Donaldson, gave
the answer to that in his speech. He said that the answer is no, because the 1911 Act does not contain its own amending power. There is no way in which the Commons and the Monarch can amend the contents of the 1911 Act because there is no express power, in the Act, for them to do so.If that chain of argument is accepted, it must follow that the contents of the 1949 Act are invalid, both for that reason and because the 1949 Act seeks to go beyond the procedures laid down in the 1911 Act. I suspect that if the noble and learned Lord the Attorney-General was faced with just Clause 1 of the Bill, he might be tempted by it. It would provide certainty in a world where there is clear serious doubt about what has become a fundamental instrument in the hands of the present Government. These days, the 1949 Act is almost constantly on their lips.
I turn to Clause 2. Once again, I agree, in large measure, with the various proposals put forward by the noble and learned Lord, Lord Donaldson. As regards Clause 2(1) I think I might be inclined to go a little further than the noble and learned Lord. I entirely accept that the rate and incidence of taxation is a proper and exclusive matter for another place. However, I wonder if that should be any longer the case as regards the remainder of tax legislation. My noble friend Lord Saatchi has been giving that issue a great deal of thought recently. As finance Bills become more complex and more difficult to decipher for those who have to suffer from their contents, it seems to me to be clear that they deserve better scrutiny than they receive in another place. Why should not money Bills, apart from those parts concerned with the rates and incidence of taxation, receive the same treatment as any other Bill in Parliament? I would, in short, be bolder than the noble and learned Lord, Lord Donaldson, about Clause 2(a).
As far as Clause 2(b) is concerned, I agree with the noble and learned Lord but wonder whether the paragraph is really necessary. As he said when reading out the preamble of the 1911 Bill to your Lordships, it clearly states the intention that any change in the composition of a new House of Lords would be a change determined by Parliament, by which we mean another place, your Lordships' House and the Queen--not just another place and the Monarch.
I regard Clause 2(c) as an admirable provision. It may be that on only one of the two occasions on which the Bill in question is being considered it would be necessary to require a full, unguillotined debate in another place. The noble and learned Lord, Lord Donaldson, has allowed for two occasions. I might be prepared to accept that. Perhaps I have misunderstood the noble and learned Lord.
Lord Donaldson of Lymington: My Lords, I believe that the noble Lord is looking at the Bill that I introduced last Session.
Lord Kingsland: My Lords, I am grateful to the noble and learned Lord. I turn to Clause 2(e). The noble and learned Lord expressed his view that the 1949 Act effectively amends the term in the 1911 Act
concerning the attempt to extend the maximum duration of Parliament beyond five years. He also, very generously, as I would expect of him, informed your Lordships that Professor Wade disagrees with him on that point. From the quick look that I have had at the Bill on this point I am not sure that I am clear about whether the noble and learned Lord is right or whether Professor Wade is right. Given that there is doubt, I believe, for the sake of clarity, that the noble and learned Lord is right to include Clause 2(e).The noble Lord, Lord Shore of Stepney, made a number of interesting remarks about constitutional Bills and the desirability of entrenching Bills of importance in our political system. In the course of doing so, he also gave your Lordships the benefit of his reflections on the constitutional relationship between the United Kingdom and the European Community. The answer to his latter problem is perhaps easier than that to the former problem on entrenchment. There is a simple answer to the problems he outlined about the European Community; that is, to repeal the European Communities Act 1972. If Parliament repealed that Act, all the adverse effects of our membership of the European Community, which he outlined to your Lordships, would disappear at a stroke.
In a sense, the European Communities Act 1972 gave the institutions of the Community delegated powers in the United Kingdom, which will be removed from them once that Bill is repealed. I suggest to the noble Lord, Lord Shore, that the problem is not constitutional but political; and as yet Parliament has not been inclined to produce a majority to repeal that Act.
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