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Secondly, it was suggested that the report had rejected the idea that the House had previously defeated Labour Governments more than it had defeated Conservative Governments. The evidence is overwhelming, to which I shall refer noble Lords. For example, between 1975 and 1979, the Labour Government were defeated 240 times. Between 1979 and 1983, the Conservative Government were defeated 46 times. That is an indication of there being a bit of a different approach. I fully accept, as does everyone in this House, that things have changed in this House because there is no longer a built-in Conservative majority. It may be that in going forward things will change. But the suggestion that this House in the 1970s was just as charitable to the Labour Government as it was to the Conservative Government in the 1980s is completely without foundation.

I am simply picking up on these points of detail before I turn to the main point of contention. Thirdly, the noble and gallant Lord, Lord Craig of Radley, peddled the myth that the Human Rights Act prevents the police publishing pictures of convicted criminals who have absconded from prison. It has nothing to do with the debate, but every time I get an opportunity to scotch these myths, I will.

Fourthly, I completely agree with the noble and learned Lord, Lord Howe of Aberavon, that codification is completely inappropriate. Perhaps I may draw your Lordships’ attention to the fact that the noble and learned Lord has had a distinguished part of his career promoting the codification of the tax statutes. I draw your Lordships’ attention to that simply to make the point that codification in some cases is sensible, as for example in tax statutes and, as I submitted at the time, in the Constitutional Reform Act. But I completely agree with him that it is not sensible in relation to this area.

Lord Howe of Aberavon: My Lords, does the noble and learned Lord recognise that codification in the tax field is simply an endeavour to transform a jungle of unintelligibility into an area of comparative lucidity without making changes, whereas the codification of conventions in fact has the opposite effect?

Lord Falconer of Thoroton: My Lords, codification is sometimes a very good thing and at other times it is not.

Perhaps we may we go to the point of disagreement because there appeared to be no disagreement about the report, and in approving it we are approving of paragraph 61. It states that if there is compositional change in the House, the convention will have to be re-examined. That is plainly right and there is absolutely no dispute between anyone in the debate that what the Joint Committee has described is what the conventions are in the current House, and if the House changes, the description it gives will no longer apply. The Government have made it clear that they accept that but it is their contention that a new House of a different composition should behave broadly in the same way as this House now does.



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The noble and learned Lord, Lord Howe of Aberavon, rightly said that the House does well at the moment and performs its role extremely effectively. I agree, but the question that is posed—one which is not for answer today—is whether it is possible to have a House that performs the complementary function that this House does, as defined in the report of my noble friend Lord Cunningham of Felling, if there was an elected element. There are noble Lords who say that that is impossible—someone used the words “pie in the sky”—and that once there is an elected element in the context of the relationship between the Commons and the Lords, you can never have the relationship that currently exists. That is the issue. It is not resolved by the Joint Committee. It will have to be resolved when the debate takes place on the free vote.

However, the suggestion that my right honourable friend Mr Jack Straw and I are in any disagreement on this is completely wrong. I had assumed that so joined in consensus on this issue are we that, in order to get up an unnecessary row, it was necessary to try to create a row between myself and him. There is no dispute between the Government and this House over what the effect of the report would mean. The noble Viscount, Lord Bledisloe, was absolutely right to say that there is no dispute in relation to it.

My noble friend Lady Symons of Vernham Dean asked when the re-examination is to take place. The Government will put forward their case on the role and powers of the future House when the free vote takes place, and it will be for this House and the other place to decide whether such a House is deliverable at the time the free vote on composition occurs. That is the crucial time when the issue will be joined, but it is not today because what we are debating today is the current relationship between the Commons and the Lords.

Lord Barnett: My Lords, my noble and learned friend has constantly reiterated that there will be a free vote. Will Her Majesty’s Government and he accept the result of that free vote?

Lord Falconer of Thoroton: My Lords, of course. We would have to look at the results in both Houses, but if the result that emerges from both Chambers is no to change, obviously we will have to accept that. We need to see the result of the vote.

Noble Lords: Oh!

Lord Falconer of Thoroton: I do not know why noble Lords find that remotely amusing, my Lords. It seems to me to be perfectly straightforward.

Baroness Symons of Vernham Dean: My Lords, I thank my noble and learned friend for the clarification he is seeking to give, but perhaps I may put this to him. The point I made was that that is not the point of decision—he has said that the point of decision would be after a free vote in both Houses; that would be the decision and he has just explained that he would accept it—but rather, as the report says, should any firm proposals come forward to change

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the composition of the House, the conventions would have to be re-examined. So I sought to say that the point at which the White Paper is published is the point at which firm proposals would have come forward, and it is at that point that the conventions need to be discussed, otherwise we would have a discussion about the future role of the House of Lords without knowing what the powers of this House would be.

Lord Falconer of Thoroton: My Lords, that is right, and there would be a discussion at that point. But there cannot be final conclusions like those reached in the committee report of my noble friend Lord Cunningham. It will be a judgment for each House as to what will happen because, as every noble Lord who has debated the issue today has said, what may happen when the new House is set up is not predictable. That discussion can be held only at the time of decision. There is no alternative, given how the position has been put.

My noble friend Lord Sewel went through the list of noble Lords—himself, my noble friend Lord Barnett, the noble Lord, Lord Higgins, and others who I cannot remember—

Noble Lords: Most of us!

Lord Falconer of Thoroton: The view of what I would call, without any disrespect, “that lot” is that you could never have a House of this effectiveness as a revising Chamber and have an elected element. That, it seems to me, is the issue which needs to be addressed by both Houses when they come to consider whether or not they want compositional changes.

Lord Higgins: My Lords, perhaps I may say again to the noble and learned Lord that the objection here is that he has jumped the gun. He is saying that this is something to be discussed later, but in the Government’s written response to the report, they seek to pre-empt

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that by setting out their arguments in advance. They have not waited until the later stage; they have done it now, and that is what we object to.

Lord Falconer of Thoroton: My Lords, if it is the case that we should not have mentioned it, I apologise.

Lord Maclennan of Rogart: My Lords, some of us who in the course of the debate did draw attention to the difference between Mr Jack Straw’s paper and the Lord Chancellor’s introduction will have taken comfort from the words the noble and learned Lord has used to associate himself with Mr Jack Straw in his reply. That is because he spoke clearly of a situation in which there was an elected element, whereas Mr Jack Straw has spoken of his belief that the relationship described by the Joint Committee is one,

That must appear to most fair readers to be a nonsensical proposition, because an all-elected upper House would never accept conventions of the kind we regard as appropriate today.

Lord Falconer of Thoroton: My Lords, I referred to the elected element because that is the lead-in to paragraph 61. This debate, enjoyable as it is and however much pleasure it gives noble Lords, should not distract us from what we have achieved this afternoon. Should the House now approve the report, we will have provided ourselves and equipped Parliament with what I described in my opening remarks as a bible setting out the relationship between the two Houses. I do not dissent from what was said by the noble Lord, Lord Dean of Harptree, which was that the report is brilliant, a joy to read, and is a very significant constitutional document. I commend it to the House.

On Question, Motion agreed to.


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