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Lord Carter: My Lords, in answer to the noble Lord's first question, we work harder. It is as simple as that. The answer to his second question is that the chance of your Lordships cutting any corners is very slim indeed.

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Colchester Borough Council Bill [H.L.]

3.7 p.m.

Read a third time.

Clause 2 [Interpretation]:

The Chairman of Committees (Lord Mackay of Ardbrecknish) moved Amendment No. 1:

    Page 3, line 22, leave out ("(51(46.12'N, 01(02.07'E)") and insert ("(51(46.1'N,01(02.7'E)").

The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. Both amendments have been proposed by the promoters and are available in the Printed Paper Office in the usual way.

The first amendment is needed to correct an inaccuracy in one of the sets of co-ordinates describing the seaward limits of the harbour and to achieve consistency in the expression of each of the co-ordinates to the first decimal place.

The second amendment clarifies the terms of agreement arrived at between the council and one of the petitioners. It was agreed that the council should keep the power to maintain the footways as well as the riverbanks and the word "footways" was accidentally omitted from the amended Bill. This amendment corrects that omission. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Enactments repealed]:

The Chairman of Committees moved Amendment No. 2:

    Page 14, line 5 in column 2, after ("any") insert ("footways and any").

On Question, amendment agreed to.

On Question, Bill passed, and sent to the Commons.

Business of the House: Debates this Day

The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the debates on the Motions in the names of the Lord Simon of Glaisdale and the Lord Northbourne set down for today shall each be limited to two-and-a-half hours.--(Baroness Jay of Paddington.)

On Question, Motion agreed to.

Parliament Acts and the Salisbury Convention

3.10 p.m.

Lord Simon of Glaisdale rose to call attention to the Parliament Acts and the Salisbury convention in the light of recent constitutional developments; and to move for Papers.

The noble and learned Lord said: My Lords, in rising to move this Motion, I record my gratitude to my noble friends on the Cross Benches who chose it for

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debate and for their encouragement to me to move it. We believe that we are vindicated when we look at the list of distinguished speakers today.

I take as my point of departure matters which I believe are in general agreement throughout political society here: first, that we value our parliamentary democracy and wish to further it; secondly, that we agree that there should be a two- chamber Parliament; and, thirdly, that the essence of our constitution is not a separation but balance of powers, as the noble and learned Lord the Lord Chancellor frequently made clear during debates in the previous Session. Since it is a question of a balance of power, one immediately calls to mind the observation of Lord Acton that power tends to corrupt. More often than not, the first sign of corruption is a desire for greater power which immediately causes a dislocation in the balance.

In favouring parliamentary democracy we do not mean that it is an ideal system of government; indeed, there is no such thing, because all systems of government have to make do with the crooked timber of humanity. Nor is parliamentary democracy the only way to promote democracy. On the contrary, the biggest revolution in recent years has been the vindication of the market economy which is now accepted by all except a small minority. In effect, it means that each shopping day is a general election; every purchase is a cross made on the counter in favour of one of the candidates paraded for approval.

Obviously, Parliament cannot constitute an executive because it is unwieldy for the purpose. However, it grants great power to an executive, both political and civil service. But if parliamentary government means anything-- the tercentenary of the glorious revolution just over a decade ago was widely celebrated in Parliament and throughout the country--it means that Parliament can effectively call the executive to account. I emphasise the word "effectively" because often it is merely a nominal calling to account.

I emphasise that once an individual is elected to Parliament he becomes a member of an elite. That arises because it is now widely--perhaps universally--accepted that Burke was right when he said:

    "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion".

That means that Parliament quite often claims to know better than the electorate to which it owes its being. That was perhaps vindicated by Parliament's insistence on the abolition of capital punishment when every poll appeared to show that that was not the general opinion of the country.

I said that a two-chamber Parliament had been widely accepted in all the constitutional debates on parliamentary reform. But that means that whenever there are two chambers differences between them are apt to arise. If they are to be complementary and not merely duplicatory, those differences are bound to arise and methods must be found to resolve disagreements. I refer to only two of several methods: first, the Parliament Acts which were passed partly

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because of an impasse over the Budget. The famous Budget of Lloyd George contained proposals which went far beyond mere fiscal matters. Goaded by that, the opposition threw out the Budget and so withheld supply from the Government, which for centuries had been accepted as the exclusive role of the House of Commons.

What the Parliament Act did was, first, to make fiscal matters the exclusive concern of the other place. The necessity of that was emphasised in the row in Australia between Gough Whitlam and Mr Knox where the Senate, having power over supply, forced the government which enjoyed the support of the lower chamber to go to the country. I believe your Lordships accept that the vouchsafing of fiscal authority to the other place is a necessary conclusion. Secondly, the Act imposed powers of delay. Thirdly, ultimately it gave power to the other place to override decisions of your Lordships. I say "ultimately" because it could not be done as a matter of routine. If it was done as a matter of routine it would mean that in effect we would have unicameral legislation, which nobody now advocates.

Further, the Parliament Acts do not touch secondary legislation which in our time is of increasing importance, or at any rate increasing scope. The Wakeham report recommended that a difference of opinion should be dealt with by a three-month delay. However, the justification for secondary legislation, apart from dealing only with minor details which do not need delay, is the urgency that it calls into question. If it is urgent it does not appear that a three-month delay is advisable.

The next matter of resolution is the Salisbury doctrine. When that was enunciated there was a large Labour majority in the other place and a large inbuilt Conservative majority in your Lordships' House. There was no doubt that the main Labour proposals of nationalisation had been firmly before the electorate in the preceding general election.

For decades Clause 4 has been part of the constitution of the Labour Party. So it seems entirely reasonable that the Salisbury doctrine should be enunciated in the terms that it was. There was always something unreal about it in its reference to a manifesto, because a manifesto does not contain just a list of proposals which are committed for approval to the electorate. One can have an election of that kind. Many American states do. But a manifesto in this country is certainly not a list for which the approval of the electorate is asked individually.

However, the great thing about the Salisbury convention is that it works. Generally, that is enough in this country. I think it is quite enough. The last comment to make about it is that it is a constitutional convention and not constitutional law. In other words, it is binding only politically and morally but not legally, and only so long as it is convenient.

The first constitutional development to which I want to refer is that there is no longer an inbuilt Conservative majority in your Lordships' House. The second is the increasing domination of the other place

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by the executive. That is not new but is fast increasing. The third matter was one referred to forcefully by the noble Lord, Lord Shore, last Friday; namely, the acceptance of the referendum as part of our constitutional system.

There is a story which has come down from the days before 1914 of Lloyd George goading Asquith and saying, "The Tories are disliked. They have recommended a referendum as a resolution of differences between the Houses". Asquith merely said with a show of a foreign accent "referendum?" and Lord Lloyd-George went happily away. Perhaps that still subsists because where referendums were referred to in the previous Session, the plural used was the English "referendums" and not the Latin of "referenda". Nevertheless, it is fairly accepted now.

The question arises, do we still need the Parliament Acts? It would be a major task, a major proposal, to repeal them. One could, of course, rely on the admitted common privilege so far as concerns fiscal matters, but the mere fact that the Parliament Acts have been used promiscuously more by this government than ever before does not mean that they may not be necessary in certain respects.

The abuse of the Parliament Acts can be rectified by a self-denying order by, in particular, the Prime Minister. It is only if he needs to have his own way in everything that we need it.

As the Salisbury convention is a convention only, it would be advantageous to leave it for its residual use when it might turn out to be necessary. I beg to move.

3.26 p.m.

Lord Peston: My Lords, I am deeply honoured to be the first speaker after the noble and learned Lord, Lord Simon of Glaisdale. I congratulate him both on the excellent topic he has chosen for us today and on the admirable way in which he introduced it. When I first arrived in your Lordships' House some 14 years ago he was a great figure. He confirms today what a major contribution he makes to our deliberations. He is always intellectually stimulating and, unusually for those of us who try to be that, says much of great practical value.

Perhaps I may also follow him on two general themes. On the question of parliamentary democracy, I have always taken the view that Winston Churchill got the matter about right; namely, any analysis of parliamentary democracy would show how imperfect a system it is and any analysis of any other system would show how much worse that system is. Therefore, we all regard ourselves committed to parliamentary democracy.

One minor word on economics. I do not want to talk about the market economy per se, but we need to recognise--as it is not recognised, I fear, chiefly by people in the other place rather than in your Lordships' House--the enormous power of global economic forces. In the other place, particularly, they delude themselves about the power of governments, let alone Back-Benchers. It is about time this country

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faced up to the world in which we live. We should not continue to make trivial remarks about sovereignty, the power we can exercise and so on.

I am not an expert on these constitutional matters. I look forward to hearing what the experts say. The first principle from which we start is rather ahead of the Salisbury convention and the Parliament Acts: a government, in broad terms, are entitled to get their business through Parliament. Therefore, the so-called Salisbury/Addison rules have a role to play because the Government have been elected on the basis of--whether one calls it a manifesto or some broad set of propositions--what they propose to do. It is entirely reasonable in a parliamentary democracy that within those broad terms that is what the Government should at least be given a chance to do.

Logically, whether we have these or some other Parliament Acts, we need some kind of legislation which helps towards that end. We had an excellent debate, although I was only a listener, last Friday when the noble and learned Lord, Lord Donaldson, introduced some material on the Parliament Acts. He has nothing to offer me so I can say this with ease: I thought that my noble and learned friend the Attorney-General dealt with the question of the Parliament Acts in an entirely satisfactory way in explaining why they did not interfere fundamentally with what we should do. That is about the only nice remark that I think I shall make for the rest of the afternoon.

The real point we are guided to by the noble and learned Lord, Lord Simon, is how this is connected with the role of your Lordships' House. It seems to me that if we are to have a revising Chamber--in other words, if we are not to be unicameral--the revising Chamber has to revise. That seems to follow perfectly logically. If the other place, either via the Salisbury/Addison convention or the Parliament Acts, simply said, "You have had your say, but forget it. We are still going to do what we intend to do", the easiest thing would be to get rid of us, which would also save a certain amount of public money. That is not the same as saying that we must always get our own way, but we must certainly be listened to. A test of whether we have any value is that something must quite frequently change as a result of our contribution.

Therefore, neither the Salisbury/Addison rules nor the Parliament Acts should be used in ways that end up, de facto, with our making no contribution. If that is its view, the other place really ought to bite the bullet and say, "Thank you very much for several hundred years of history, but goodbye". That seems to me perfectly obvious, given our present composition. We are all nominated. Some of us are distinguished. Others of us, as I always emphasise, are party hacks, and I have never minded being a party hack. The fact is that we are not elected. We have privileges and a role to play, but on our side we expect to be listened to and hope that things will change. However, if in the end we have been listened to sympathetically and occasionally do get our own way, we also have to get used to the idea that sometimes we do not. That is enormously important.

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I have referred to the present composition of your Lordships' House. I turn to consider what would be the position if we were to move to a hybrid House. As your Lordships may be aware, I am extremely doubtful about the value of a small elected element. I can see little point to it. The more I try to analyse the consequences of an elected element, the more absurd it seems. I do not believe that having a small elected element in your Lordships' House would change anything that I have just said. It seems to me that a small elected element does not make us very much more legitimate and does not give the other place any reason to take us any more seriously.

There is another matter that particularly troubles me about a small elected element. One of the admirable features of your Lordships' House is that we are all Peers and all equal. It is one of the aspects that I most like about this place. I am very troubled that, if we get stuck with a small elected element, someone will somehow invent the doctrine that their votes count for more than the rest of our votes. If that happened-- and if I were alive to see it happen--I would vigorously oppose it.

I therefore again emphasise that the revising role should be given great weight. However, I do not think that we need to wait for the next stage of whatever the Government put forward in order for the other place to take more seriously what we do. There is a responsibility on both Houses to take the other seriously. The noble and learned Lord, Lord Simon, referred to balance. I believe that balance is very important here, although ultimately we defer to the other place.

If this House were 100 per cent elected, which is another matter, the whole world would change. In that case, the Parliament Acts would have to disappear, because they would have no meaning, neither would the Salisbury/Addison doctrines. In my judgment, if this were a 100 per cent elected Chamber, it would have to be equal to the other Chamber. It would be as legitimate as the other Chamber, and if it were elected according to certain alternative rules, I would regard it as even more legitimate than the other Chamber. However, I do not believe that that is what the noble and learned Lord, Lord Simon, is guiding us towards today. My judgment is that, in terms of the doctrines we are considering, we can set aside the question of what would happen if we had a 100 per cent elected Chamber. But certainly it would follow that, in those circumstances, all these doctrines would have to go.

We have 10 minutes. I, happily, hope to conclude inside nine. I have one final remark. Whenever these topics have been debated in the past year or so, I have felt obliged to speak. Every time I speak, nothing happens and I say to myself, "Surely you have better things to do". I felt that it was my duty to speak today. However, I ask myself, "Am I wasting my time yet again?" For once, I hope that that is not true.

3.35 p.m.

Viscount Cranborne: My Lords, it is always a very great pleasure to follow the noble Lord, Lord Peston.

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As so often happens in debates covering subjects of this kind, I find myself very substantially in agreement with the burden of what he has said, though I suspect that there are, as always, differences of emphasis.

I start by underlining how much I agree with the noble Lord's remarks about the logic of this House having a function and, therefore, needing to have some sort of power to convince people that that function is useful. Without power, we will be ignored. If I may be impertinent enough to say so, I believe that the noble Lord is entirely right about that.

I should also like to say that, not for the first time, we are greatly in the debt of the noble and learned Lord, Lord Simon. His Motion has been creeping up the Order Paper for some time now. With his usual good judgment, he has introduced it, timed to perfection. This Motion is concerned with the balance of power between this House and another place, as has been emphasised in both speeches made so far during the course of the debate. We all know that reform of this place is unfinished business. Many people do not believe me when I say so, but it was the reason behind the infamous deal that I concluded with the noble and learned Lord the Lord Chancellor some years ago. It is clear that all the political parties are split over what powers we should confer on a fully reformed House, and therefore what composition should flow from that reform.

I find the Government's silence rather ominous, as I suspect does the noble Lord, Lord Peston, for the same reasons that he gave in his concluding remarks. I fear that the Government, for all their fine words, intend to stuff into their manifesto what in the trade has come to be known as "Wakeham B" and ram it through under the Salisbury convention, should they win in May. With great respect to my noble friend Lord Wakeham, I confess that I do not find that "Wakeham B" remotely begins to answer the urgent need--and I believe that the noble and learned Lord is right in saying this--to rebalance the relationship between the two Houses, which is what I think should inform any attempt at an effective reform of this place.

If successful, such a rebalancing would, in my view, greatly contribute to restoring Parliament's effectiveness as a whole and, paradoxically, by making this place more powerful, increase the power and standing of another place as we ensure that it does its job a great deal better. I believe that this reason is now very nearly universally acknowledged by anyone genuinely interested in these matters, apart perhaps from the members of the present Government. I certainly acknowledged that--before an obvious rejoinder comes from the noble Lord, Lord Barnett--before as well as after the last election.

The reason is very clear. It has already been stated by the noble and learned Lord. It is that another place is, to all intents and purposes, the agent of the government of the day. It is true that a small majority, a great issue that divides the governing party, or growing unpopularity in the country as a whole, diminish that dominance. But, in the absence of a general election, even the weakest government, as we

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have found, can get most of their business through. Furthermore, another place, and the inhibiting factors that I have just listed, have no beneficial influence whatever on the quality of legislation passed by such a government, which is also a test of the quality of the work of another place.

I therefore believe that the central purpose of a properly reformed upper House should be to deter governments from getting away with it. Knowing that we were vigilant and effective here would, I suppose, not only make governments more careful about how they behave but would, curiously enough, encourage more independence in another place. The fact that we were prepared to use our powers--and I return to the point made by the noble Lord, Lord Peston--would be an incentive to resolving disagreements by negotiation rather than by constant confrontation, which was another matter alluded to by the noble and learned Lord. As such, our day-to-day role as a House of influence rather than a House of power would, desirably so, be confirmed rather than undermined.

I hope that your Lordships have followed my argument so far, paradoxical though it may be. In order to perform the role which I have ventured to describe, I believe that this place will need to develop more teeth. We are beginning to do so already. I am, for instance, full of admiration for the way in which this Government have generally followed our example and accepted the strictures of the Select Committee on Delegated Powers and Deregulation, under the chairmanship of my noble friend. We are perhaps well on the way to developing a new convention which acknowledges that governments are obliged to do just that.

I am equally sure that the House was right to follow the advice of my noble friend Lord Strathclyde--this point may be a little more controversial in the view of the Government--of the noble and learned Lord who initiated the debate, and of the noble Earl, Lord Russell, to overturn the more recent convention, dating from 1968, that we do not vote against secondary legislation. I need not add any more to what the noble and learned Lord said in that respect. I found myself greatly in agreement with him.

There is one other matter which this House would do well not to forget. I believe, as I have tried to make clear in debates held at the instigation of the noble Lord, Lord Owen, and of my noble friends Lord Dean of Harptree and Lord Campbell of Alloway, that this House should have the right to insist upon a post-legislative referendum before an Act is brought into force. A well-reformed House would have the authority to exercise its judgment as to what issue was important enough in character, and effectively so irreversible in its nature, as to warrant an increasingly well-educated and aware electorate giving its approval specifically to what was proposed.

An upper House of the character I imagine would exist to exercise its judgment, a matter emphasised by the noble and learned Lord, a quality which is by its nature indefinable. If that House were to perform these functions adequately, its membership would

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need independence and authority in equal measure. We certainly had the independence in the previous, unculled House; we lacked the authority. I suspect that we may have a little more authority now, but, semi-reformed as we still are, we still lack the authority that we need.

Would the authority of a fully reformed House be enhanced by the suspension of the Salisbury convention? I listened to the noble and learned Lord with great care, as I always do, in view of the deep respect in which we all hold him. I was not quite sure whether he implied that we should abolish the Salisbury convention. I do not think that he did. If that is true, I again find myself in agreement with him, and not merely for reasons of grandfilial piety.

As the noble and learned Lord said, the Salisbury convention did not begin as a convention at all but rather as an agreement between my grandfather and the then Leader of the House, Lord Addison. The noble Lord, Lord Peston, was quite right to refer to it as the Salisbury/Addison convention rather than merely the Salisbury convention. It was designed for exactly the same reasons as the noble and learned Lord gave, and, as he said, it worked. But since then this temporary agreement has been transmogrified into a convention.

When I first became Leader of the House in 1994, it seemed to me, on inquiry, that it was not entirely clear what the convention said. I was given a number of different definitions, including one from my noble friend Lord Carrington, which was, predictably, infinitely the most satisfactory one. So, in a rather lengthy and boring speech and in exchanges before and after the 1997 election debacle, I rather impertinently tried to define what it said. As no one actually disagreed with my efforts at definition, I came to the conclusion that I was not too far out. The convention says that the House will not vote at Second Reading against a manifesto Bill or pass a wrecking amendment during the remaining stages. After consultation with the learned Clerks, I understand that, in the final analysis, it is for this House to determine what constitutes a wrecking amendment.

Although, rather like the noble and learned Lord, I am sceptical about the doctrine of the manifesto, I find it difficult to see that it would be wise for this House, reformed or not, to oppose a specific commitment which formed part of the election platform of a new government. Equally, in purely practical terms, I think it is a little silly for us to vote at Second Reading against a Bill which we wish to delay. After all, it sets the Parliament Act clock ticking rather earlier than would otherwise be the case.

My time is well up. As far as concerns the Parliament Act, I hope that the Government will look again at the speech last Friday of the noble and learned Lord, Lord Donaldson--the noble and learned Lord had some extremely sensible things to say--if only to clarify the workings and the legality of the Act. I am very pleased to see that the noble and learned Lord the Attorney-General is to answer the debate. He may want to add a little more to what he said last Friday.

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It is an important debate. I hope that it will be the first of many and that it will inform those who should develop proposals for a full stage two. On that subject, I hope that the Government and both the main opposition parties can co-operate in a public rather than a private forum--perhaps the proposed Joint Committee of both Houses--to try to build consensus for a full reform at stage two rather than indulging in a cosmetic exercise. Such consensus will, I hope, produce something a good deal better than the "Wakeham B" element, with which I fear we may be landed.

3.46 p.m.

Lord Dahrendorf: My Lords, we most certainly owe a debt of gratitude to the noble and learned Lord, Lord Simon of Glaisdale, for giving us the opportunity to discuss the powers of your Lordships' House at a time when, although there is no immediate proposal before us, manifestos, I suspect, are being drafted.

This debate has given me the opportunity to read a great deal of recent, and not-so-recent, literature on the subject. I wish that I had the time to read more of the fruits of that exercise to the House. I shall, however, refer to an article in The Times by one of my favourite columnists, Simon Jenkins, with whom I often strongly agree and sometimes, like today, strongly disagree. Our debate last Monday, in my view, showed your Lordships' House at its best, precisely because of the combination of scientists, "ethicists", lawyers and thoughtful lay people. Mr Jenkins did not like that. He wrote:

    "On Monday night, British stem cell research was left in the hands of a group of people with no democratic, professional or territorial legitimacy".

He added:

    "On the whole I prefer to be ruled by those for whom I vote. I did not vote for any of this lot".

I would be surprised if he voted for any of the other lot, at least its majority, and I am surprised that he did not notice that we were actually letting the other place have its way. But it gives me a welcome opportunity to say a few words about the vexing issue of legitimacy, notably in relation to the Salisbury convention and the primacy of the House of Commons.

I shall begin with the Salisbury convention and add one or two points to the important statements made by the noble Viscount, Lord Cranborne. Its thrust is, in the words of the noble Viscount's ancestor in 1945, that,

    "it would be constitutionally wrong when the country has expressed its view, for this House to oppose proposals which have been definitely put before the electorate".

The noble Lord, Lord Carrington, a former Leader of the House, whom I am delighted to see in his place, repeated in similar terms more than 40 years later that this House should not,

    "wreck any measure which the Government had made plain at a General Election they proposed to introduce",


    "the country had, by implication, given its verdict".

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Fifteen years later, the Wakeham report went even further, saying that,

    "where the electorate has chosen a party to form a Government, the elements of that party's general election manifesto should be respected by the Second chamber".

Most of the time, this view is taken almost as a constitutional dogma. Even the Constitution Unit, in its research paper on reform of the House of Lords, states:

    "Although the Convention rests on the debatable assumption that measures included in a Government's general election manifesto are de facto approved by the public at large, its force remains".

Does it, though? I suggest that there is quite a progression of completeness in the "debatable assumption" moving from the notion of "proposals which definitely have been put before the electorate" through measures on which "the country had, by implication, given its verdict", to "elements of the general election manifesto" which, in practice, means the text of a manifesto, lock, stock and barrel.

One must be allowed, in following this line, to raise a few obvious questions. What is the exact status of such manifestos? Who has prepared them? How democratic is their base? What role do manifestos play in election campaigns? To what extent can it be assumed that voters are in fact familiar with them, or even with their elements? What do we know about voter motivation? How can it be shown that the implication that voters have given a verdict on manifestos is actually correct? To say nothing of the most complex question: in these fast-moving times, how should we constitutionally deal with changing priorities and preferences on the part of the electorate? Would it not be more democratic and legitimate at times to set aside the manifesto and start again?

Earlier authors were perhaps less precise but also more plausible on this score. To quote Bagehot on this point:

    "I answer that the House of Lords must yield whenever the opinion of the Commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. Whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which practical questions are decided".

Admittedly, this "common way" begs a number of questions, but I would argue quite strongly that neither snapshots of public opinion nor elections for five-year terms provide all the answers. To be sure,

    "the people are the only legitimate fountain of power".

But James Madison, who coined the phrase, starts his argument from this point and does not end it there. In his view it follows that the different powers, admittedly in the American case and therefore separate--legislative, executive and judicial--have to derive their legitimacy from the people by different channels. General elections are but one such channel and one that is, for example, inappropriate for the judiciary.

It is most certainly not my intention to devalue elections, but there is a kind of fallacy of misplaced concreteness in the uncritical identification of the will of the country with a party manifesto, and in that of legitimacy with majorities constituted by, say, 43 per

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cent in general elections. If we go back to the sources of the modern constitution of Britain, we encounter less mechanical and hence more plausible views which remain relevant.

What conclusions should we draw from such reflections? I suggest, not very dramatic ones. However, it seems to me that we must not turn the Salisbury convention into the dogma of sacred party manifestos nor should we doubt the right of your Lordships' House, as constituted today, to scrutinise, amend and, from time to time, reject legislation. The plurality of talent and experience assembled in this House, the patent independence of many of its Members, the way we conduct our business and the restraint we exercise in our relations with the other place are themselves sources of a legitimacy which transcends the simplistic concepts sometimes used even in distinguished newspapers.

3.56 p.m.

Lord Norton of Louth: My Lords, I welcome the debate and congratulate the noble and learned Lord, Lord Simon of Glaisdale, on initiating it. So far this has been an excellent debate, which is another way of saying that I agree with virtually every word that has been spoken. I agree wholly with both the noble Lord, Lord Peston, and with the noble Lord, Lord Dahrendorf. The only qualification I have is in relation to the speech of my noble friend Lord Cranborne, who knows that my views on referendums are not quite the same as his. Otherwise, I found myself in complete agreement with the points that have been made. In my comments I wish merely to reinforce those points.

The Parliament Acts have to be considered in the context of our constitutional arrangements. I believe that the constitution that evolved in the last half of the 19th century--what is often termed the Westminster model--has served us well. It may not be perfect, but it has proved preferable to the alternatives. It has delivered a number of attributes that cannot be delivered by other systems on offer. It delivers, among other things, accountability, coherence, flexibility and effectiveness.

It is the element of accountability that I wish to emphasise. This is a core, a fundamental, attribute of our political system. Our system ensures that one body--the party in government--is responsible for public policy. Electors can choose between parties based on their electoral programmes. If electors disapprove of the policy adopted by the party in government, they can sweep it out at the next election. There is no dispute as regards who is responsible for public policy. The party in government may be powerful between elections, but come election time, it knows that the ultimate power rests in the hands of the electors. There can be no buck passing, no hope of staying in office, in the face of electoral rejection.

Our constitutional arrangements deliver that accountability. The electoral system facilitates accountability. So, too, does the relationship between

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the two Houses of Parliament. The second Chamber is complementary to the first. This House fulfils a number of functions and, in my judgment, it fulfils them well. It fulfils them in a way that is qualitatively distinctive. As such, it adds value to the political process. The relationship is, I believe, fundamentally sound, allowing accountability to reside in the elected first Chamber. The second Chamber can question, but can neither block nor override the first Chamber if the first Chamber insists on getting its way. We can ask the other place to think again; we can offer amendments to legislation; we can force government to justify what they are doing and we can raise issues that otherwise might be neglected. As a House of experience and expertise, we can fulfil those tasks in a way that complements a Chamber of elected, full-time and, increasingly, career politicians.

The Westminster model has been challenged in recent years. It has been challenged by the changes made to the constitution. These, to some extent, have undermined the Westminster model but have not destroyed it. In part, this may be because the Government, though intent on change, have no coherent alternative model to offer. Constitutional changes have been disparate and viewed essentially as discrete reforms. The Government knew on entering office what they wanted to do, but had no idea as to where they thought they were going.

The second challenge has come from attacks on the remaining relationships within our constitutional arrangements. One of these challenges has been to the role of this House and its relationship with the other place. As we have heard, that relationship is governed largely by the Parliament Acts and by the principles on which those Acts rest.

I believe that the relationship between the two Houses, governed by the Parliament Acts--I shall come to the Salisbury convention in due course--is about right. We can, if we choose, vote against a measure, forcing the other place to think again. If the other place, the elected House, decides that it wishes to proceed with a measure, it is entitled to do so. I believe that is right. I believe that it is fundamentally democratic in a way that two elected Chambers would not be--I very much follow the point made by the noble Lord, Lord Peston--and I believe that the present arrangement serves the nation well. It retains the fundamental attribute of accountability while injecting into the process a body of expertise and experience, something that is not on offer in other systems. I believe that is a very real plus to the political process.

For those reasons, I am keen to retain the present relationship. I believe that those who challenge the position of the Parliament Acts are doing this House--and, more especially, our political system--no favours. I am appalled when Ministers or Members of the other place say, in advance of any discussion in this House, that a particular measure must not be rejected by your Lordships. This House is perfectly entitled to exercise its powers. Some people may disagree with the judgment made by your Lordships, but that is no reason for challenging the power exercised by this

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House. It is, rather, a case for saying that those who disagree should engage in a reasoned debate on the substance of the issue.

Similarly, I would caution against condemning the other place for deciding to exercise its powers under the Parliament Acts. I agree that it should do so on a discriminating basis, but it is entitled to do so if, after reflection, it decides that it wishes to insist on its original measure. It is the elected House; it has the legitimacy to exercise that power.

There is no qualification contained in the Parliament Acts as to when the other place may or may not exercise its powers under the Acts. We may disagree with the decisions of the other House--we may regard its decisions as outrageous--but that is not the same as saying that its actions are constitutionally outrageous. Its reasons for exercising the power may be outrageous, but the exercise of the power itself is not constitutionally illegitimate. The distinction is an important one to draw.

Given that the relationship is, in my opinion, about right, what then flows from that in terms of where we go from here? I am opposed to fundamental change. I see no reason for an elected second Chamber. I see even less reason for a part-elected/part-appointed Chamber. That would be a purposeless institution, the worst of both worlds. I have argued that case before. I do not want to digress on it today.

My focus here is the Parliament Acts. I see no convincing case for any reduction in the powers of this House. Hence, I do not believe that the capacity to delay legislation for a Session should be reduced. The other place needs time to think again. Indeed, I think this House needs the leverage of a one-Session delay if it is to ensure that the other place pays attention to what it says.

Conversely, I can see the objection to extending the powers of this House. I believe that the Royal Commission, chaired by my noble friend Lord Wakeham, got it about right in arguing that the provisions of the Parliament Acts should be left as they are. The only qualification made by the Royal Commission, that the Parliament Acts themselves should be protected from amendment by the Parliament Acts, is eminently sensible and I agree with it. The conclusion reached by the Royal Commission applied to the reformed Chamber, but it applies equally well to the Chamber as presently constituted.

Perhaps I may turn now to the Salisbury doctrine--although, following the point of my noble friend Lord Cranborne, at the time it was not a convention. Indeed, it was not even produced by the then Lord Salisbury; it was of course produced by, as he was at the time, Lord Cranborne. So, rather than the Salisbury convention, what we really had was the Cranborne doctrine, which was enunciated in 1945.

There have been significant developments since its enunciation. The Parliament Act 1949 was subsequent to the enunciation of the doctrine. Since then, of course, there have been the Life Peerages Act and the House of Lords Act. This House is now predominantly

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a body of life Peers. No one party has an overall majority and it is constrained by the provisions of the 1949 Act.

Given that the Parliament Acts, on my argument, get it about right, I ask the same question as others: do we still need the Salisbury doctrine? On balance, I think, yes--but in modified form. The Government are elected; we should normally defer to the other place. But we should not offer a blank cheque. I am not persuaded that we should ever have done so. But now I think that we are in a position where the new constitutional arrangements provide a peg on which we can reflect on what the position should be. In my view, the Salisbury doctrine should constitute what I would describe as a second-order, or a soft, convention of the constitution.

There are exceptional circumstances in which we should be prepared to divide on Second Reading and, if the House so decides, to refuse a Second Reading. I agree with the argument advanced by the Royal Commission. We need to review the doctrine and, in effect, generate criteria--or, if you like, guidelines--as to the circumstances in which that might occur. The Royal Commission, I think correctly, said that no concrete dividing line can be drawn between when it would be acceptable and when it would not. But we need some criteria, some reference point. Indeed, I refer back to the debate in your Lordships' House in 1993, initiated by the noble and learned Lord, Lord Simon of Glaisdale, when he identified two criteria that might be employed. We should build on those.

In doing that, it does no harm to the constitution. The Parliament Acts are in place; this House can bring to bear its experience and expertise. If absolutely convinced that there is a case for rejecting a measure--if there is a solid intellectual case and there is evidence that supporters of the Government in the other place share the misgivings of this House--we should not be afraid to use those powers under the constitution to ask the other House to think again. I put it in general terms. We need to refine it further.

The effectiveness of the relationship between the two Chambers, if it really works well, would be shown by the fact that we do not need to refer to the Parliament Acts and the Salisbury convention. But they do need to be in place.

I have overrun my time. I shall conclude with one final observation. The debate on the reform of this House has demonstrated that generally there has been an absence of a capacity to engage in constitutional discourse. We used to have that capacity in this country; we lost it in post-war decades and we have never really regained it. We talk about changes to the constitution but really do not have the capacity to talk about the constitution as a constitution. We need to regain it if we are to discuss the role of this House in the serious manner that it deserves.

4.8 p.m.

Lord Desai: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, in introducing the debate, said that we did not have a separation of powers; we

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had a balance of powers. I should like to argue that the balance of power has now been disturbed. We can no longer be satisfied that our current arrangements are ideal. They are not. We should think hard about all these various problems--and this is a good occasion on which to do so.

The 1911 Act was passed at a time when the franchise was limited. Much has happened to the franchise, even since the 1949 Act. The development in party political structures, in voting patterns and so on has meant that, more than ever before, the danger of the excessive power of the executive is today the major problem of the British constitution. It is not that the other place should not be sovereign; that we concede. But that does not mean that the executive should get away with as much as they do get away with. That is a problem that we have failed to address in the past 50 years or so.

The "Cranborne doctrine", as it is called, was very helpful in 1945. I say that because, as the noble and learned Lord said, the 1945 Labour Party came into power determined to change fundamentally the nature of property ownership in this country. That actually challenged a very basic part of the constitution. It had to be accommodated because it had won the people's support. I see the Cranborne doctrine as saying that this House, which, in the imagination of the people and in fact, represented the property classes more than any other place, will not stand in the way of a popular government who mean to attack property.

However, we no longer have a party that will attack property--sadly, or happily, as the case may be. So we are no longer in that situation. But I also believe that the Cranborne doctrine 2 has made the Cranborne doctrine 1 somewhat irrelevant. The reform of your Lordships' House has meant that we shall never again have a situation in which one party with an inbuilt majority has the ability to frustrate legislation time and again in a kind of wanton fashion.

We must ask ourselves whether the Salisbury doctrine 1 is now of any relevance. As everyone else has said that it is, I shall say that it is not. I do not say so perversely, but once you move away from a fundamental difference--namely, what the 1945 Labour Party represented in terms of the notion of property ownership--the Salisbury doctrine 1 becomes a further limitation on the powers of this House; in other words, it is not part of 1911 nor part of 1945. It is a further restriction; in other words, that this House will not do certain things, which it perfectly legitimately can do. I heard the noble Lord, Lord Norton, say that, in a sense, Salisbury or no Salisbury, we must exercise our powers, limited though they are, to the full.

By and large, this House has been shy in exercising its full powers. I have been in this place for only 10 years, but I have many times heard people say, "We cannot actually go against the other place. They are the elected Chamber, so we really ought to concede. If they have rejected our amendments, we should not insist upon them". We have done so because we have that additional doubt about our legitimacy. Again, the

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reform of your Lordships' House has at least diminished our illegitimacy. We are slightly less illegitimate than we used to be, but I do not know whether or not we are more legitimate. My own preferred solution would be a fully-elected Chamber, but that will never happen so we may as well not worry about it.

We must decide upon the precise nature of our function. Although we are supposed to be a revising Chamber, and so on, I gather from what my noble friend Lord Peston said that there is a mild air of, as it were, ineffectualness hanging over us--we do various things but no one takes a blind bit of notice. If, occasionally, we do something that is important, people like Simon Jenkins criticise us for being effective. The problem is that our powers and abilities are not used efficiently under the current arrangements.

One of the matters that one should raise in a legitimate and open way and which should be reconsidered is the restriction in the 1911 Act on the Finance Bill. If we are not able to amend it, we should at least be allowed to discuss it. There is no reason why this House should not be able to discuss the Finance Bill in great detail. We know that we cannot amend it, but we are not even allowed to discuss it. I believe that to be a great waste of the talents that we have in the House. If we are to have no power to change any legislation and we are going to be allowed to exist, I believe--I have argued this point before--that we may as well become a committee of the other place; that is to say, we would discuss all the Bills and, as it were, amend them, but our amendments would have no force until they were agreed by the other place. That would be a much better use of our time. Any Bill from there would come to us after Second Reading. We would then discuss it thoroughly, much better than those in the other place could do, and then we would send it back to them in an improved fashion. We would not need to engage in this legislative fight all the time.

Either this House has powers that it exercises and is taken seriously, or we have no powers. At present, our powers are limited by one or other convention, or some bullying, and we may as well not bother. There is a kind of constitutional confrontation to be had here. We ought to forget or rescind the Salisbury doctrine. We should have slightly more edge in our debates.

I do not believe that manifestos are serious documents. I have spent much time during many elections at polling stations and knocking on doors on behalf of my party, but I cannot say that I have read any of the manifestos since 1970. I doubt that anyone else has done so, not even Members of Parliament. They are not serious documents. Indeed, the doctrine of the Labour Party when I was, as it were, in the rank and file was that, basically, every Labour Government flouted the manifesto upon which they were elected. There is a great belief in that respect in the conference; indeed, the conference derives its moral energy from knowing that a government are about to betray their manifesto. Therefore, I do not believe that we can take manifestos seriously, unless, as the noble and learned

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Lord, Lord Simon of Glaisdale, said, they consist of propositions that the government in question intend to embody in law and put to the people either by way of referendums or in clearly demarcated pieces of legislation.

On many occasions during the debate on the reform of this Chamber mention was made of the fact that, when people were asked, only 2 per cent of them had noticed that the reform of this House was part of the Labour Party manifesto. But, to me, that was neither here nor there. Whether or not people read the manifesto is not the problem: in our constitution the party in power gets its way. The only question is whether it should get its way arbitrarily, wantonly and without caring to listen to us. If the government are to be made to listen to us, we should have fewer, rather than more, restrictions on how effectively we can exercise our powers. The more that we can push our right to make them think to the limit, the better the constitution will be. Therefore, I believe that the Salisbury convention has had its day; it should be retired.

4.18 p.m.

Earl Ferrers: My Lords, it is always fascinating to speak after the noble Lord, Lord Desai. If I may say so, he talks an enormous amount of common sense and it is always fun to listen to him. I enjoyed his mea culpa, in which he said that he had not read any party manifestos since 1970. Of course, if I were unkind, I might suggest that, had he done so, he might not be sitting where he is today. However, I shall not say that.

I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this debate because it is on a fascinating subject, as well as being topical. There is no one in this House--or, indeed, very few other people--who could surpass the noble and learned Lord in knowledge of the constitution. I do not wish to consider what the composition of this House should be or what might happen in the future. Those matters are for another day. But I believe that my noble friend Lord Cranborne was right when he differentiated between the powers of the House and the authority of the House. They are two totally different issues. Of course, if you want power, it must be an elected Chamber. But I personally would be wildly against that because, although it may be democratic and all that jazz, we would take on a major confrontation with another place, which would be perfectly disastrous.

I was interested in the Salisbury convention to which the noble and learned Lord's Motion refers--or the Salisbury/Addison convention, as we are now told it should be called. This has been passed down like a royal diadem from generation to generation, even though it started only in about 1940.

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