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Lord Shore of Stepney: My Lords, it is both; it is partly political and it has a constitutional element. The original treaties went so far in the transfer of sovereignty that every new treaty enables us to draw a line if only we have the will and sense to do so.
Lord Kingsland: My Lords, I accept that that is the noble Lord's view but I do not believe that it alters the simplicity of the constitutional solution. However much power the institutions of the Community accumulate, at the end of the day its effect will be removed from the United Kingdom by the repeal of the European Communities Act 1972.
The issue of entrenchment is more challenging and intractable. Our constitution says that Parliament is supreme--except that it cannot bind its successors. Therefore, however one seeks to entrench an Act--for instance, by special majority provisions--a subsequent Act, even passed by a simple majority, would repeal it. That applies even to the European Human Rights Act which was passed by the Parliament two years ago. The passage of a future Act of Parliament by a simple majority would remove its effect entirely from the United Kingdom law.
One way of achieving that end might be to devise an Act which dealt with an important constitutional issue; entrench that Act by, say, a two-thirds majority in both Houses; and then stipulate that if, despite the requirement of a two-thirds majority, a subsequent
Act of Parliament sought to repeal that Act by a simple majority, then before the Monarch gave assent an individual could seek an injunction in the courts in order to prevent the Bill receiving Royal Assent. That course raises questions about another part of our constitution--the separation of powers. However, such a way forward might be a way of providing real entrenchment.Without the doctrine that no Parliament can bind its successor, Parliament could reshape the constitution of this country and could require all Bills to be passed only by the Commons and Royal Assent. Let us hope that that never happens.
12.33 p.m.
The Attorney-General (Lord Williams of Mostyn): My Lords, when I was in gainful employment as a member of the Bar I had the pleasure of appearing before the noble and learned Lord, Lord Donaldson, when he presided with such distinction as Master of the Rolls in the Court of Appeal. On none of those occasions was I able to say that I respectfully disagreed with his Lordship's view of the law. But times have changed.
The Bill deals with two issues relating to alleged doubts about the validity of the Parliament Act 1949 and the scope of the 1911 Act. First, as has been rightly said, the 1949 Act and its validity are reaffirmed, together with specific Acts passed by the Parliament Act procedure. Secondly--this aspect was fully and carefully developed by the noble Lord, Lord Lucas--it deals with the scope of any further changes using the Parliament Act procedure.
Perhaps I may set out our position; it is coincident with that of the noble Lord, Lord Goodhart. There is no ambiguity in the Parliament Acts which needs to be corrected. The Parliament Act is a valid Act of Parliament and has been for the past 51 years. It is not, I suppose, coincidence that doubts are presently raised after 51 years--that would be an extremely unworthy thought which I hasten to put out of my mind.
I turn briefly to the 1911 Act. These issues were discussed in the House of Commons and in your Lordships' House when the Parliament Act went through both Houses. In relation to an amendment which had an effect similar to Clause 2(d) of the Bill, the then Prime Minister, Mr Asquith, said that the Government did not wish to see,
- "the liberty of a future House of Commons in any way impaired or restricted by the means of an exception proscribing any Amendments which experience may show to be necessary".
- "the possibility of our not being able, whatever experience we may show, to amend in particular this measure".--[Official Report, Commons, 24/4/11; cols. 1473 and 1494.]
Indeed, in your Lordships' House a similar amendment was proposed and then withdrawn. The mover plainly said that the amendment, if carried,
- "would have the effect of keeping out any amending Bill to lessen the suspensory period of two years".--[Official Report, 29/6/11; col. 1184.]
Lord Mayhew of Twysden: My Lords, I am grateful to the noble and learned Lord for giving way. I was a little ruffled by his amusing assertion that there might have been an ulterior political motive in the bringing forward of these matters now. I notice in the Explanatory Notes that the argument was first adduced by Professor Wade in 1955 in the Cambridge Law Journal and was adverted to subsequently in other publications. Therefore, the matter has been on the chitty, as it were, for at least the past 45 years.
Lord Williams of Mostyn: My Lords, of course it has in academic circles, but I do not remember it being introduced as a Bill in your Lordships' House. With great respect, that is the point I am making. I ought also to have mentioned that I had the infinite pleasure of being taught by Professor Wade and similarly on those occasions was not able to say, "I think you have got it wrong, professor", but I am saying it now.
Lord Wedderburn of Charlton: My Lords, as my noble and learned friend is on the point of scholarship in this area, perhaps he will agree that on the question of delegated legislation, this small group of eminent but tightly-knit scholars is in a small minority among a large amount of equally eminent scholarship of recent times.
Lord Williams of Mostyn: My Lords, my noble friend is right and a number of those eminent authorities are cited in the paper to which the noble and learned Lord, Lord Mayhew, referred.
I hope that I have dealt with the issue of the validity of the 1949 Act. We come to the issue of exceptions. The noble Lord, Lord Kingsland, said that he was questioning the supremacy of the Commons in respect of some money Bills.
Lord Kingsland: My Lords, I am grateful to the noble and learned Lord for giving way. Perhaps I may say that I did not question the supremacy of the Commons in relation to the incidence or rates of taxation. Indeed, I did not question the supremacy of the Commons in any way. I simply said that matters involving taxation which did not fall into those two categories ought to be dealt with in the normal way.
Lord Williams of Mostyn: And, my Lords, they would therefore not be susceptible to any limitation presently existing in our constitutional arrangements.
Lord Kingsland: My Lords, that is not so. The 1911 and 1949 Acts would in the normal way apply to tax matters other than those dealing with the rate and incidence of taxation.
Lord Williams of Mostyn: My Lords, I hear what the noble Lord now says. I shall check his earlier remarks. If I have misunderstood the position, so be it. I do not believe that I did misunderstand his earlier proposition.
We turn next to Clause 2. As the noble and learned Lord, Lord Donaldson, pointed out, paragraphs (a) and (e) simply recite the present constitutional position. However, I believe that paragraph (b) is entirely objectionable. That provision is related to the constitution or powers of this House, for example numbers and the manner in which Members get here. That means that if the Salisbury convention were not abided by--to paraphrase, I hope fairly, the observations of the noble Lord, Lord Strathclyde, sometimes there are whispers that it may not be regarded as intact for all purposes--an elected government, even with a manifesto commitment to reform, could be endlessly defied by your Lordships' House on any of their proposals, however often endorsed by the electorate at however many successive general elections. I am aware that many believe that your Lordships' House in its present form is as perfect as man's intellect can devise, but I am not sure that that basis of perceived perfection is a useful constitutional guide. That would be the consequence of paragraph (b). I readily recognise that some noble Lords may applaud it, but I respectfully disagree.
I do not believe that paragraph (c) is workable. There is nothing in the Bill to require a Speaker's certificate. I understand that the proposal of the noble and learned Lord, Lord Donaldson, is that perhaps in due time there should be such a certificate.
Lord Donaldson of Lymington: My Lords, Section 2(3) of the 1911 Act contains in terms the requirement for a Speaker's certificate. It requires him to certify that the whole process is in accordance with the 1911 Act. If one amended paragraph (c) to include an additional requirement, the Speaker's certificate would have to cover that as well.
Lord Williams of Mostyn: My Lords, I am grateful to the noble and learned Lord. I do not believe that that deals with the point raised by the noble Lord, Lord Lucas, that this House should have full regard and respect for the mechanisms by which the Commons conducts itself. It may well be that in circumstances of urgency, with which we are already familiar, Bills would not be susceptible to the Speaker's certificate. There might well be an argument between both Houses as to the validity of the Speaker's certificate, if it had been given. Therefore, I do not believe that the "Lord Lucas" point has been dealt with.
When one considers paragraph (d) one returns to absolute veto by this House if it wishes to be stubborn and/or mulish. I do not believe that that would be acceptable either to the country at large or to most people who vote in elections.
This has been an interesting debate, not least in the wider context of whether our constitutional arrangements should be looked at again. Some of the speeches tended, perhaps to the surprise of those who
uttered them, to support a written constitution. It may well be that that argument will develop, although I recognise that today is not the occasion to try to do that.The noble Lord, Lord Goodhart, is quite right that by convention we do not refuse a Second Reading to a Private Member's Bill. If it were not for that, I would advise the House not to agree to a Second Reading. While I do not take that course, if the Bill reached another place we would invite our colleagues there to vote against it. I repeat our gratitude to the noble and learned Lord, Lord Donaldson, for providing this stimulating debate.
12.44 p.m.
Lord Donaldson of Lymington: My Lords, I express gratitude to those who have attended on an extremely chilly Friday morning to debate this matter and my sympathy for those who did not come to hear me, particularly my noble and learned friend Lord Lloyd, who is to contribute to the Psychotherapy Bill, which has been postponed.
I am not wholly surprised, but very disappointed, that the Attorney-General should express such opposition to my modest Bill. I am amazed to hear the noble and learned Lord say that there is no doubt about the validity of the 1949 Act. I know that there are people who have no such doubts, of whom he is one. In order to make clear that others are wrong, including myself, I have suggested in this Bill that it be confirmed. I am surprised by the suggestion that the fact that the Prime Minister in 1911 decided not to put in a Henry VIII clause means that it is implicit in the 1911 Act. That is an astonishing constitutional innovation. As to paragraph (c), I do not know that the noble and learned Lord has entirely understood it, but it does not matter. I shall happily remove it if it causes the slightest hiccup in any quarter.
One matter that troubles me slightly--it is a criticism of me and no one else--is that one or two parts of the speeches suggest that the speakers do not understand what I am at. All I am at is the removal of doubt about the law as it exists. I have expressed the view that there are doubts about the 1949 Act and the scope of the 1911 Act which I want to remove.
When I considered this Bill I was approached by the noble Lord, Lord Kingsland, who said that he would like to put--
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