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Lord McNally: My Lords, I feel that it is right to respond to the very serious point raised by the noble Lord, Lord Peston. His argument is based on the convenience of government not the rights of Parliament. I argue that what we are talking about are the rights of Parliament.
Lord Peston: My Lords, I do not want to interrupt the noble Lord because he probably has a lot more to
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say, but "convenience" is an understatement. I think we are discussing something much deeper than the convenience of government; we are discussing the rights and wrongs of the position of this House relative to the other place when we have done our scrutiny job. And no one could accuse us of not doing our scrutiny job.
Lord McNally: My Lords, I understand now and I can follow the noble Lord's argument even better.
It was very interesting to hear the intervention of the noble Lord, Lord Gould. It was nice to see the sorcerer's apprentice in the flesh, telling us how these things are done. On the substance of the argument, voluntary means voluntary and compulsory means compulsory. I invite the noble Lord, Lord Gould, to tell us whether one of his focus groups tested those two words before the general election. I suspect it did. The reason that "voluntary" went in the Bill, as the noble Baroness, Lady Anelay, pointed out, is that it is a softer and more acceptable word.
I took part in writing four manifestos and fought on two, so I know a little about them. Some are kept, some are changed and some are quietly forgotten. The issue here, as the noble Lord, Lord Peston, has rightly said, is the relative responsibilities of our two Houses. I do not accept that the Salisbury convention stands any more. It is absurd that a convention set up 60 years ago between a Labour government with 48 per cent of the electorate behind them and a wholly hereditary, Conservative-dominated House of Lords should still apply, with a Labour Government elected by 34 per cent of the vote and Labour now the largest party in the House.
Baroness Scotland of Asthal: My Lords, I wonder whether the noble Lord can tell us what percentage he believes one should have to govern this country?
4.30pm
Lord McNally: My Lords, clearly they have the right to govern this country on 34 per cent, but I think it is a very dangerous percentage—a very dangerous percentage from which to appeal to manifesto commitments and a very dangerous percentage from which to ask this Parliament to start giving away some of its powers.
Lord Carter: My Lords, I am obliged to the noble Lord for giving way. Surely the argument of the noble Lord, Lord Phillips of Sudbury, was that the House should accept the words in the manifesto. That is the Salisbury doctrine. The noble Lord is therefore picking and choosing, as we would expect him to do, those items in the manifesto with which he agrees and which he will therefore support. He will then say that the Salisbury convention does not apply to the items that he does not support.
Lord McNally: My Lords, I am not saying that at all. I am saying that legislation is either well written or badly written. To start relying on a 60 year-old doctrine rather than the argument to get your legislation through—particularly when you have
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changed the wording to which you committed in the manifesto—is the last refuge of legislative scoundrels. What we are really debating today is what this House should do at this point.
I know that the Minister has two means of addressing this House: sometimes she is charming, and sometimes she is scary. I suspect that this afternoon we are going to get "scary". We will be told what this House should not do, what it must not do and what it dare not do. But I suggest that the powers of this House were not given to it by James I or Charles II. They were given less than eight years ago by the democratic House of Commons. Included in those powers was the power to reject part or all of legislation. If we do not retain that sanction, then ping-pong becomes mere shadow boxing. All Ministers have to do is to sit pat, knowing that they will ultimately have their way. I therefore think it is very important in the relationship between the two Houses that this House retains the right to say no.
The noble Lord, Lord Foulkes, has intervened about 12 times today. He makes me think of an American footballer from Chicago a few years ago called the Refrigerator. He was not very good at American football but he used to fall on opponents from a great height. I always think of the noble Lord, Lord Foulkes, as the Refrigerator of the government Benches. The fact, however, is that we have the Parliament Act. That ensures the right of the elected House to have its way. But this House must retain the right to say, "Not in our name". That is the process, and that is the process we are going through today.
Lord Carter: My Lords, the Parliament Act has been used four times since 1949. Three of those occasions were on free votes, not whipped votes. The only occasion when it was used on a whipped vote was the European Parliamentary Elections Bill. I will not go into detail, but that was a very special case and an arrangement between the parties. Since 1949, however, the Parliament Act has always been used on a free vote.
Lord McNally: My Lords, I shall end on the Parliament Act and the power of this House to say no. Last time, the noble Baroness, Lady Anelay of St Johns, quoted Wakeham, which sent me back to a document that we greatly underestimated on its publication. I am glad that she drew our attention to it. Perhaps I may quote from it at greater length:
"to refer issues back for consideration or to impose a delay could, if exercised with restraint and only when occasion clearly demanded it, have a substantial political impact. If a reformed second chamber"—
and we are a reformed second Chamber—
"were to express concern about a particular Government proposal and exercise whatever powers of delay or referral were available, that would lead to (renewed) public and media interest in the issue, with opportunities for the concerns to be set out. It would force the Government to reconsider the issues in light of that interest, and it would give members of the House of Commons an opportunity to revisit the issues and make the final determination in the light of all relevant information. The Government of the day
- would have to take such powers and their consequences into account in drafting its legislation in the first place as well as seeking to put it on the statute book".
That is my argument. The government of the day cannot come to the Dispatch Box at a late stage and say, "Whoops, sorry, it was infelicitously drafted".
Baroness Scotland of Asthal: My Lords, is the noble Lord, Lord McNally, therefore saying that we have now reached a pass where this House is entitled to veto the will of the other place?
Lord McNally: No, my Lords. The Minister will see that the machinery was in the 1998 Act. If this House says no, as it did over fox hunting, the other place—the democratically elected House—can and should prevail. But it has to take the consequences of that. When it comes to legislation as important as this—one of those rare occasions to which Wakeham referred—we have the right to say no. It is not a veto; it is this House using the powers that it was given by the democratically elected House. If you take that power away, you are left with an emasculated House of Lords and a House of Commons that is dominated by an over-powerful executive which was elected on a very small majority of votes. That is a very dangerous way to run a democracy. Lord Hailsham described it 30 years ago as an elective dictatorship. We are the barrier to that today.
Lord Richard: My Lords, perhaps I may respond directly to the noble Lord, Lord McNally. His argument fell into two parts: first, that the House of Lords has the power to say no; and, secondly, that in this case it ought to say no. The argument would be nonsense if the second part were not taken in with the first. Let us examine the first part—that the House of Lords has the right to say no. I expect that it does. I do not have statutes in front of me, but I expect that what the noble Lord says about the legal position between the two Houses is probably right. But it is not a question of rights; it is a question of judgment. It is a question of whether it makes any sense in the operation of the British constitution for this House to insist on something which twice has been rejected by the House at the other end of the corridor.
I am bound to say, looking at that part of the Opposition—not that part of it, but that part of it—that when they were in government they would conceivably—
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