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On 5 December 2006, my noble friend Lord Strathclyde endeavoured to cross-examine the noble and learned Lord, Lord Falconer, about this, with some success. My noble friend asked the noble and learned Lord to clarify whether it is a requirement, as the noble and learned Lord had said,

The noble and learned Lord replied, with his customary candour:

Striking a slightly different note, predictably, the noble Lord, Lord Goodhart, suggested that,

to which the noble and learned Lord replied:

We are entitled to ask, even if not to secure an answer, whether the consequence of that friendly dialogue between the leaders on the Front Benches, both apparently endorsing the need for consensus between the two Houses, is as we would understand it to be. I hope strongly—I cannot say that I believe—that at the end of today’s debate, we shall have it clearly declared from both Front Benches that the expression of opinion in this House will have exactly the same weight as that in the other place, and that great attention will be paid to it, because it should be.

5.22 pm

Lord Maclennan of Rogart: My Lords, it is a privilege to follow the noble and learned Lord, Lord Howe. It is particularly satisfying to be able to agree with his observation that this debate and this important report enjoy remarkable parliamentary consensus. Great credit is due to the chairman of the committee, the noble Lord, Lord Cunningham, for having wrought this subtle and intelligent report. It comes as no surprise from him; it is a remarkably precise and accurate description of the best of what we observe in the relationship of the two Houses of Parliament to each other.

It is perhaps also appropriate to recall that when this subject was first mooted for discussion and consideration, there was no expectation that this would be the outcome. There was considerable anxiety in some quarters that the opportunity would be taken by the Government to seek to constrain through the codification the very flexibility which may be equated to the concept of the sovereignty of Parliament. That that danger has been avoided is a matter of very great satisfaction. I say that as someone who has for a long time believed that fundamental and radical reform of the House of Lords and its relationship with the House of Commons is important not only for discussion but ultimately for decision, since our constitutional arrangements seem to me and, I think, to many observers to give too great authority to the Executive. Enhancing the power of Parliament to check the

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Executive properly means enhancing the authority of the House of Lords as well as of the House of Commons.

However, a number of speakers in this debate have made it clear that the thrust of this report is not the future composition or powers; it is about preserving the best of what we have. Had that been all there was to discuss I would have been reluctant to intervene at all, certainly by this time in the debate, but the Government have chosen to reply to the report not only in the eloquent speech of the Lord Chancellor, which evoked almost total agreement from me—that is not surprising, for I have found myself on many occasions on the same side as him on matters of constitutional reform—but in the prior issuance of a response from the Leader of the House of Commons, Mr Jack Straw, which was far from being as felicitous, subtle or intelligent as the response of our noble and learned colleague.

The great mistake of the Leader of the House of Commons was to advance this report as though it were something other than it is—namely, a description of the best of what we have—and to suggest that it ought to be the basis on which any reform of the House of Lords might be founded. In that, I have to say, he is entirely wrong. The committee made it abundantly clear in paragraph 61 of its report that it was not mandated to consider the future structure or powers of the House; indeed, it indicated at the very beginning of its summary that it was “instructed” to accept the primacy of the House of Commons. That was an entirely rational observation of the status quo. That situation would not be changed by the introduction into our Parliament of an elected element in this House.

It is important to make this distinction. An electoral mandate, which the House of Commons enjoys, would not flow to this House if there were an elected element in it. That will come about only if there is an elected upper House. If that were to come about, the situation would of course be entirely different. As a number of Members have indicated, notably the noble Lord, Lord Tomlinson, earlier in the debate, if members of the public were standing for election in that situation, they would not consider it appropriate to have their mandate restricted by any such rules or codifications of the conventions of the House as have been threatened in the past. Certainly, if we had a written constitution that defined the relationships of the two Houses, that would be an entirely different matter, but I have not heard many people call for that in this debate, or many members of the Government suggesting that they understand the case for that wider definition.

Suffice it to say that the committee was wise in sticking to the limited mandate and remit that it was given and the Government were unwise in trying to build a new constitutional structure on that limited base. The possibility of an upper House, all elected with an electoral mandate, challenging the House of Commons is at this time quite remote and it is starting at shadows for the Leader of the House of Commons, Mr Jack Straw, to suggest otherwise.

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5.31 pm

Viscount Bledisloe: My Lords, I am speaking because I thought that I was the only Cross-Bench member of the committee who was able to be here today. I understood that the noble Lord, Lord Wright of Richmond, was engaged elsewhere; I have to confess the longer that he remained in his place the more I kicked myself for being conned by a professional diplomat into taking the role of speaking rather than leaving it to him. But I was keen it should be plain that silence on our part did not convey any suggestion that he or I were in any way opposed to the report or to the Government’s reaction to it. Far from it, we strongly support the report and the Government’s response.

I have only very little to say and I shall avoid the temptation, to which most of my immediate predecessors in the list have succumbed, of speaking about the future reform of the House rather than limiting myself to the topic of the Motion before us. I join in giving hearty thanks to our chairman, who was so ably supported by the two clerks and exercised great skill in leading us to a unanimous conclusion. He deserves our praise and thanks for so doing. I should like also to join those who have mentioned Lord Carter. I sat on a number of committees with him and became increasingly impressed by his almost unique understanding of the ways in which the House worked and his enormously perceptive analysis of the interesting facets of the House. The committee and the whole House owe a great debt of gratitude to him.

The paeans of praise that have been heaped on this report should not lead us to think that there is anything very novel or startling in it. It sets out what was there to be known before, but it has synthesised it extremely well. What is new and a real step forward is that, assuming that today’s Motion is carried, it will no longer be open to any Member of the House to say that the conventions in it do not apply to them. Let me briefly look at one of those conventions.

Whatever it is in future called, the Salisbury/Addison convention will now no longer be a deal between two party leaders binding only on their parties or only those on the Front Benches of those parties. Henceforward it will apply to us all equally. We will of course be free to depart from it and take a conscious decision to do so, but if we do that we will have to acknowledge precisely what we are doing and not say that it does not apply to us because it was just some Tory and Labour leader doing a party deal.

The other thing which I hope the report and its acceptance by the Government and, I hope, the whole House, will achieve, is to make clear the extent and limitations of each convention. Again, I refer to the Salisbury/Addison convention. All too often one hears Members of the House invoking the Salisbury/Addison convention as if it was some sort of magic spell that ruled out any amendment to any Bill whose topic matter had a passing mention in the Government’s manifesto. If the report is read carefully, it can be seen that the convention does no such thing. A Bill is a manifesto Bill only if its core proposals have been,

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That is a quote from both the then noble Viscount, Lord Cranborne, and the noble Baroness, Lady Jay, so I am taking no particular side.

If all the manifesto says is that the party in question will bring forward proposals on national health, let us say, no particular health Bill can on that be given the protection of the convention. The manifesto must spell out what it is going to do, and only something that contravenes that manifesto is a breach of the convention. As this House now very seldom rejects entire government Bills, the real issue is whether a specific amendment to a manifesto Bill is a wrecking amendment. If it is, it contravenes the convention—and the test for that is whether the Bill, if amended in the way proposed, would still be a measure that answered the description in the manifesto. If it would no longer be, as so amended, a Bill that was the measure described in the manifesto promise, then but only then is that a wrecking amendment. You have to be able to say, “If you do that, the measure no longer corresponds to the one in the manifesto”. I hope that henceforward those who wish to invoke the mantra of the Salisbury/Addison convention, or whatever it is hereafter called, will recognise that the onus lies on them to demonstrate that the amendment comes within that category, and that only then will they invoke the convention.

On another issue, I deprecate the attempts of those who seek to find a conflict between the report and the Government’s response on the effect of an alteration to the composition of the House. I do not believe that conflict exists. The report says that it will be open for reconsideration if the composition of the House is changed. The Government accept that, but then go on to express their own view that after consideration it will be found that no change is needed. That is not going against the report but merely saying what their personal conclusion is as to the effects of the reconsideration.

In my personal view, the Government’s view is perfectly acceptable. Others may not agree, but that does not mean that the Government and the report are in conflict. I personally tend to think that the House does not lack powers. What it has perhaps lacked in the past is the confidence and will to exercise those powers.

5.40 pm

Lord Sewel: My Lords, at this stage in the debate there is a certain temptation merely to say, “Line me up with the noble Lords, Lord Higgins, Lord Tomlinson, Lord Wakeham and Lord Barnett, and the noble and learned Lord, Lord Howe” and sit down. However, I am afraid that I shall resist that temptation this evening. Many of the contributors so far have given the report complete praise and endorsement. However, on the Government response, many would say to the Government, “Take it back. You could do better. In fact, you must do better”.

I welcome the report and congratulate my noble friend Lord Cunningham and his colleagues on it. It is a model of what a report on this subject should be. It is exceptionally well structured. The structure of

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the report is important as it helps to develop the argument. The report’s real power lies in the fact that it recognises the interaction between role, powers and composition and puts conventions in that context, recognising that they are dynamic, that they will change and that they have to be flexible. The whole business of role, powers and composition will have an inevitable bearing on how conventions change.

That was spelt out most clearly in paragraph 61, which states:

Others have identified that paragraph. It is one of the most central and important paragraphs in the whole report.

The difficulty is that the Government effectively reject that argument in paragraph 9 of their response, which states that,

Quite honestly, that is pie in the sky. It is unrealistic. Advocates of a partly or wholly elected chamber—I notice that the noble Lord, Lord Maclennan of Rogart, nods—recognise that the conventions will change if you get an elected element and if you change the relationship with the House of Commons. There is an inevitable interaction there.

The Government’s proposition in paragraph 9 flies in the face of British constitutional history, which is primarily about a struggle for power, initially between the Monarchy and Parliament, then during the latter part of the 19th century and virtually the whole of the 20th century, between the Commons and the Lords. The inevitable outcome of that was the primacy of the Commons. The basic underpinning argument and claim for that primacy is the elected nature of the House of Commons. Disturb that, remove that element and you do not open up completely the issue of primacy, but you change the relationship between the two Houses.

The Government’s response refers to the example of the Canadian Senate at paragraph 14, which states that,

That is very good but the Government ought to have looked at the conclusion of the evidence from the Clerk of the Canadian Senate, who stated at evidence 161:

The Government should reflect upon those words as they look forward to the reform of this House.

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Finally, the noble Lord, Lord Wallace of Saltaire, talked about the continuation of the primacy of the House of Commons in the context of reform. He said that that primacy was built basically on three pillars: the fact that the House of Commons decided the issue of confidence; that it had control over supply; and that the vast majority of Ministers were in the House of Commons. He identified those three elements. That is quite right. Even if there is reform on an elected element, primacy in those terms would remain, but there would still be a change in the relationship between the two Houses. You can have primacy but you will fundamentally change the relationship. This lot would become much more awkward, basically. In those circumstances I am afraid that the conventions will not and cannot hold.

5.47 pm

Lord Dean of Harptree: My Lords, it is a great pleasure to pay tribute to the noble Lord, Lord Cunningham, and his committee. The noble Lord and I served together at the other end of the Corridor. I regard the report as brilliant and—it is not always the case with reports—a joy to read.

I hope that I shall not embarrass the noble Lord if I quote two sentences from the report’s summary, which states:

In my view that is a classic definition of our parliamentary constitution. It rates along with Dicey, Bagehot and Erskine May. Long may it remain.

The conventions report has a full chapter on secondary legislation. We do not often discuss that; it usually empties the House, but it seems to me a good opportunity to consider it and the importance that the committee clearly attaches to it. Until recently Parliament has not caught up with the volume and importance of secondary legislation. We are now making rapid progress. In 1992, the Delegated Powers and Regulatory Reform Committee was set up. It examined all government Bills and, where appropriate, suggested that delegated legislation should be not quite as the Government of the day hoped. Normally, the Government of both colours accepted the recommendations. That was a good example of this House accepting more responsibility for delegated legislation. I had the great privilege to serve on that committee for some time, so I saw at first hand the value of the work that it did.

An important step forward has been the setting up of the Merits of Statutory Instruments Committee in 2003. It was charged with a duty to consider the merits as distinct from the vires of statutory instruments. It produced a very valuable report, The Management of Secondary Legislation, which was published last March. The most important of its recommendations are really a criticism of the management—or mismanagement—of the preparation of secondary legislation in Whitehall. Something that we in Parliament all know about became

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very clear to me; if Governments are to be held effectively to account, Whitehall and Westminster must work effectively together.

Where do we go from here? Now that we have a committee looking at merits, why not look at demerits? Perhaps we should consider the possibility of some members of that committee in particular, or the House as a whole, looking rather more carefully at what comes out of secondary legislation. There may be a few more occasions when orders might be prayed against. Dare I suggest the possibility of this House being able to amend secondary legislation? We have the power at the moment to refuse secondary legislation, but we very rarely do it. It is a blunt instrument, and it is against our conventions. Is there a possibility that, on suitable occasions, with the enormous experience we have in your Lordships’ House, one might suggest to the Government of the day a better way of dealing with a given situation? I suggest nothing more than that. There may be occasions, particularly with many of the distinguished lawyers in your Lordships’ House, when we might detect that something is not quite in accordance with the original Act. There may be occasions when there is just a possibility that your Lordships’ House may be able to improve its scrutiny of legislation.

I never speak for more than a short time, as your Lordships know. Although we are under rumours about the House being reformed and all that sort of thing, it is clear from the way in which your Lordships’ House functions at the moment that we have lost no zest for the scrutiny of legislation and for keeping the Government to account.

5.54 pm

Lord Roper: My Lords, like everyone else who has spoken, I begin by congratulating the noble Lord, Lord Cunningham, and those who helped him prepare this excellent report. I agree very much with it, and I am extremely glad that there was unanimity within the committee and that there was consensus. Rather like the noble Lord, Lord Dean, I believe that this document will be of great value for the future editors of Erskine May. I suspect that it will be quoted a great deal. As others have said, this is obviously an occasion when we very much miss Denis Carter. I learnt a great deal from him about the conventions when I worked with him on the usual channels.

I have very considerable respect for the noble Lord, Lord Hunt. I was therefore very surprised when a report came out before the last election including a number of suggestions about things that were not working particularly well in your Lordships’ House. One of the very helpful things that this report has been able to do has been to examine some of those possible questions, put them into context, and to come to a consensual response to them. That is a very great advantage.

Like very many who have already spoken—and I am afraid that I am going to quote the same paragraphs—I was far less happy with the written response from the Lord Privy Seal than I was with the

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report of the committee. I share the argument of the committee, which has been quoted by a number of noble Lords already, at paragraph 61:

The Lord Privy Seal made clear at paragraphs 8 and 9, and then at paragraphs 19 to 21, that this view was not shared by the Government. I was therefore, like many others, happier to find the formulations used by the noble and learned Lord the Lord Chancellor this afternoon, who suggested that perhaps there was a wider consensus. In the written response from the Government that point was very disappointing.

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