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Lord Campbell of Alloway: My Lords, with the greatest respect, we are going adrift. Clause 101(2)(a) of the Political Parties, Elections and Referendums Act 2000 prohibits either House from resolving that there should be a referendum. It says that referendums must be ordained and called by the Government.
Lord Falconer of Thoroton: My Lords, as I understand it, having regard to parliamentary sovereignty, there would be nothing to prevent this House amending a Bill so that it could come into force only after a post-legislative referendum. If the noble Lord suggests that the Act that he referred to has entrenched provision, he is enunciating a new constitutional doctrine.
Our second argument is that the Bill is inappropriate. By that I mean that it is wrong that this House should have such a power of initiative over the use of a referendum. Thus far, the use of a device that some still regard as alien to our constitutional arrangements--that feeling was reflected in the debate--has occurred only in response to government proposals for change. The Government have justified the use of the referendum on a case-by-case basis. We believe that that is the best approach. Specific legislation will enable a referendum to be held on the particular issue.
The approach suggested by the noble Lord, Lord Campbell of Alloway, is fraught with risk. First, there is a risk that this House and the Government will disagree on whether a measure is suitable for a referendum. The Government believe that the use of the referendum should be exceptional. Leading on from that and looking at the situation in a practical, realistic light, that can mean only a great likelihood of disagreement between the two Houses. The same could occur if this House inserted a clause in a Bill providing for a referendum, but I venture to suggest that a dispute in which this House had some special power of initiative, as the Bill implies, would be significantly more acute than one that arose from the normal legislative process. The Bill would give the House of Lords a special place. Although it says that the other place has to agree, it would give rise to a more acute constitutional issue than a simple disagreement over an amendment to a Bill.
Let us imagine that the Government place before Parliament a measure, foreshadowed in the party's manifesto, that has broad constitutional overtones but is not suitable, in their view, for a referendum. The House of Lords might take a different view on the appropriateness of a referendum and use the powers accorded under this Bill to resolve that there should be
one. If the other place then rejected that view, as Clause 2 would entitle it to do, where would we go from there? It would be a dead stop.That brings us to the related issue of the Salisbury/Addison convention. In the case of a major disagreement of principle over government legislation, the Government would argue that the Commons must have its way under the Salisbury convention. I beg leave to doubt that any government would act differently.
The House knows the noble Lord's response. He spelled it out last Wednesday in the debate on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, on the subject of the Parliament Acts and the Salisbury convention. He said:
- "The achievement of parity voting potential constitutes a fundamental change of circumstances which deprives the Cranborne convention as such of any justification today".--[Official Report, 24/1/01; col. 284.]
Lord Campbell of Alloway: My Lords, I should correct this before there is a misunderstanding. The quotation that the noble and learned Lord gave is right. I am fully prepared to reaffirm it today. However, that does not mean that an updated version of the Salisbury convention, which the Royal Commission recommended, ought not to be arrived at and agreed by consensus. I certainly do not adhere to and have never expressed the view attributed to me that, by and large, the Government ought not to have their business.
Lord Falconer of Thoroton: My Lords, I am slightly confused. The noble Lord, Lord Campbell of Alloway, explicitly said that what he called the Cranborne convention had gone. He did not say what should take its place, except that, in principle, the Government should have their business. We have no idea what the position of a manifesto Bill would be. Is that part of the Government's business? Does it go wider or not so far as the Salisbury/Addison convention? If the approach of the noble Lord, Lord Campbell of Alloway, were to be adopted, we would be left in a total constitutional limbo.
I return to my earlier point. If one follows what the noble Lord, Lord Campbell of Alloway, said, one is left with the need to rely on the Parliament Act--the constitutional nuclear weapon, as the noble Lord, Lord Strathclyde, described it both in the debate started by the noble and learned Lord, Lord Donaldson of Lymington, and that initiated by the noble and learned Lord, Lord Simon of Glaisdale. The reason why the Parliament Acts attract such a
dramatic image is that their use has been rare. That has been true because the House has accepted the Salisbury convention, going rather further--
Lord Simon of Glaisdale: My Lords, the noble and learned Lord must be oblivious to recent political history. The Parliament Acts have been used quite promiscuously and routinely on such matters as the Criminal Justice (Mode of Trial) Bill, the European Parliamentary Elections Bill, and one other Bill. I am so sorry. If the noble and learned Lord has finished, I shall continue with my remarks. The Parliament Acts have not been kept in reserve for major matters as a nuclear weapon or nuclear strike; recently they have been used routinely when the Government have wanted to get their way following a difference of opinion between the two Houses.
Lord Falconer of Thoroton: My Lords, I apologise to the noble and learned Lord for talking to the Clerk while he was speaking. I was trying to find out the number of occasions on which the Parliament Act has been used in recent years. The word that the noble and learned Lord used in his speech was "habitual". I strongly contest that.
Lord Simon of Glaisdale: My Lords, I believe that I said "promiscuous" rather than "habitual".
Lord Falconer of Thoroton: My Lords, the noble and learned Lord said "promiscuous" then and, in the course of his speech, "habitual". With respect, I suggest that that is an over-dramatic description of the number of times that the Parliament Act has been used. I do not know the precise number of occasions on which it has been used since 1st May 1997, but I have been prompted to say "twice".
Lord Simon of Glaisdale: My Lords, three times.
Lord Falconer of Thoroton: My Lords, it was not used in connection with the Criminal Justice (Mode of Trial) Bill. The noble and learned Lord may be right that it was three times, but let us assume it to be twice. It is hard to describe that as either "promiscuous" or "habitual". I prefer the description of the Leader of the Opposition in this House, which is that it has been used as a constitutional nuclear weapon.
If in future this House acted as though the Salisbury convention were no longer valid and rejected the philosophy of restraint that it has, in my view very wisely, accepted until now, assuredly the reaction from the other place to regular defeat applied to measures that have passed the House will be greater use of the Parliament Act.
Taking the views of the noble Lord, Lord Campbell of Alloway, on the obsolescence of the Salisbury convention together with the powers which his Bill proposes for this House, I would be genuinely concerned that the effect of the Bill would be to make disputes between the two Houses on issues of principle a good deal more likely. I cannot believe that it would be desirable for this House to seek to acquire powers
that might cause a clash with the government of the day on a point of fundamental principle over its legislative programme. Plainly, the Bill seeks an acquisition of power by this House.As I have said before, I recognise that your Lordships could insert a clause into any Bill which would call for a referendum on the legislation before it came into law. That would be an available use of your Lordships' power provided that the clause did not constitute a wrecking amendment, as the noble Lord's own amendment at the Committee stage of the House of Lords Act was in practice, although, I accept, not in intent. However, this measure invites your Lordships to take special powers over a class of Bill and, moreover, one not defined in advance. This is becoming all too close to taking power which, in effect, queries the primacy of the other place. I cannot believe that that is a step which your Lordships would wish to take.
In summing up, the Government view the Bill as unnecessary and believe that, at worst, it may lead to clashes with the other place which could only be harmful in the long term. Therefore, for the reasons given, the Government oppose the measure.
9.13 p.m.
Lord Campbell of Alloway: My Lords, I thank all noble Lords who have spoken in this debate. It has been an interesting and good-humoured debate and I do not want to spoil its atmosphere by indulging in an argument at this hour of the night with the noble and learned Lord, Lord Falconer of Thoroton.
If the Bill is given a Second Reading, we will have ample opportunity to deal with the Minister's misunderstanding of the Bill's principle and effect and of my approach to the Salisbury convention. It would not be appropriate for me to deal with that matter tonight; I simply place my concern on record.
I thank my noble friend Lord Norton of Louth, whom I asked to come along and oppose the Bill, which he did awfully well. One cannot, at this hour of the night, or at any hour of the day, deal with what is called root-and-branch principled opposition, which is blind to argument. Trying to do so is a waste of time. I am fully content to leave the matter to the sense and composite wisdom of the House in due course; the House will take the decision.
There is a considerable distinction between the attitude of the noble Lord, Lord Dahrendorf, who supports the principle of the Bill, and that of my noble friend Lord Norton of Louth, who opposes it. The noble Lord, Lord Dahrendorf, took the point about the frequency of occasions on which provisions in Bills affect the constitution. I totally agree with him; he gave all of the examples that were in my mind and made an important point. But the noble Lord said that that frequency meant that one should not have a referendum or any such mechanism. I say quite the contrary: the terror, the danger and the absence of control mean that there must be a mechanism, and the only mechanism is a referendum. So one gets into a circuitous argument which, again, one cannot pursue at this hour of the night.
According to my scribbled note, the noble Lord, Lord McNally, thought that there was an automatic trigger mechanism for a referendum. With respect, that is a misunderstanding of the Bill's intention and, indeed, of its drafting.
I thank the noble Lord, Lord Chalfont, and my noble friend Lord Dean of Harptree for supporting the Bill's principle and for arguing that a safeguard needs to be provided. In view of the changes of procedure in another place, there are no adequate safeguards.
I respectfully ask noble Lords to give the Bill a Second Reading, so that further debate may ensue on some of the matters that I have mentioned. That may perhaps allow for their constructive resolution.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
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