European Union (Withdrawal Agreement) Bill
Lord Howarth of Newport ExcerptsMonday 20th January 2020
(4 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
Lord Tyler (LD)
My Lords, I am a co-signatory, with the noble Baroness, to Amendment 3, which leads this group. There is little that I need to add to what she has already said or, indeed, to what was said in the debate last week. However, I would like to raise one or two points with the Minister.
Looking at this as dispassionately and objectively as one can, one wonders whether Clause 21 was drafted before there was any confidence that there would be a new devolved Administration in Stormont. The impression is given that everything was going to have to be decided in London still, whereas since then there has been a very dramatic and welcome change in Northern Ireland—I give credit to the Minister and his colleagues for the part that they played in that. However, it looks as if this was thought through before that element was fully appreciated. It makes much better sense to go through the proper process of primary legislation and not to divert into secondary legislation for this purpose.
Last week, I quoted the noble Lord, Lord Anderson of Ipswich, who referred to this clause as being, “Henry VIII on steroids”. It is the most egregious example of a really powerful use of a Henry VIII power in the whole Bill. There are several others, but this is the most obvious one because, as the noble Baroness has already said, it allows the change in the statute to be made without a reference to Parliament fully in its role as scrutineer. The Minister will recall that, in a powerful recommendation, the Delegated Powers and Regulatory Reform Committee said:
“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”
The Bill should spell out how the power should be used, rather than the House just getting assurances from the Minister.
In last week’s debate, the Minister was kind enough to refer to this issue in the following terms:
“It would be very easy for me to say: ‘You have just got to trust me’. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland.”—[Official Report, 14/1/20; col. 639.]
As the noble Baroness has said, there is apparently such a letter: I have not seen it. I took part extensively in that debate. I was in the Committee until almost the last moment on Thursday; I was in the House again this morning at 9.30 am. I cannot be accused of being absent on leave; I have been around. Why did that letter not come to me? From what the noble Baroness said, I can assume that there is an attempt to justify this part of the Bill. I have huge respect for the Minister and his respect for this House is well known, but, frankly, it is not satisfactory for Members of your Lordships’ House to be given that sort of undertaking from a Minister. It makes it very difficult for me and, no doubt, other Members who attended that debate but did not take part, if they have not seen the justification given in the letter.
Given that the House has now voted to amend the Bill, it is going to the Commons, even if it is for a very short time. There must surely be an opportunity for the Minister to explain on the record—not just with a letter, which may go astray—why the exceptional use of Henry VIII powers which I have described is being made at this juncture. That is all I need to say at the moment, but I shall listen with great interest to what the Minister may say. Perhaps he is going to read us the letter.
Lord Howarth of Newport (Lab)
The noble Lord, Lord Tyler, refers to this as an “exceptional use” of Henry VIII powers. I wish I could be comforted to that extent, but it seems to me that the use of Henry VIII powers is an endemic vice in government, and I wonder why Ministers and officials never learn. The Henry VIII powers taken in relation to Clause 21 are very extensive indeed. I certainly accept what the Minister says, that it is not their intention to amend the devolution settlement, which ought to be amended by primary legislation. It is, none the less, offensive in principle to take such powers: it does not need to be done. The Government seem to think it is expedient, but it is actually very bad for trust between Parliament and the Executive, and, I think, bad for trust between politics and the people.
The Minister and I had a brief exchange in Committee on this, and on the particular question of whether the powers that the Government propose to take to themselves to alter primary legislation, or even abolish primary legislation by statutory instrument, would be subject to the affirmative or the negative procedure. He said his advice from his officials was that they would be subject to the affirmative procedure, and I agree that that is indeed the case where Clause 21 is concerned, but when we come to Clause 41, which is the most all-embracing, there is a socking great Henry VIII power. It is an almost megalomaniac provision and there is no such assurance available. As I understand the legislation, and as the Delegated Powers and Regulatory Reform Committee, more significantly, understands the legislation, the exercise of those powers under Clause 41 would be by the negative procedure. That is even more offensive, and it would be very helpful if the Minister would comment.
I hope the Minister will accept that, as a matter of general principle, the use of Henry VIII powers is objectionable; that if they are to be taken, they need to be defended in very clear and specific terms, as they have not so far been in the consideration of this legislation; and that the offence is compounded where the proposal is that the exercise of those powers should not be subject to the affirmative procedure.
Baroness Butler-Sloss (CB)
My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:
“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”
That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)
Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.
As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.
At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.
The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.
Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.
I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.
The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.
The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.
The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.
On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.
The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.
I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.
There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.
I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.
The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.
I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.
Lord Howarth of Newport
Before the Minister sits down, will he explain why the very extensive and potentially arbitrary powers the Government propose to take under Clause 41 are not subject to the affirmative procedure?
Lord Duncan of Springbank
I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.
Lord Pannick (CB)
My Lords, I declare an interest as a practising barrister. I have signed Amendments 12 and 13, tabled in the name of the noble Lord, Lord Beith, but I am very happy to support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern. The reason is that Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply. These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.
Perhaps I may briefly respond to the points made by the noble and learned Lord, Lord Keen, the Minister in Committee, because I anticipate that the noble Lord, Lord Callanan, will make the same points as his substitute today, as we have heard from the noble Lord, Lord Beith. The first point that the noble and learned Lord, Lord Keen, made was that we are not, as he put it, in “novel territory”, because Section 6 of the 2018 Act has already looked at which courts should have this power. The simple answer is that what is novel is a delegated power for Ministers, which I have described.
The noble and learned Lord’s second point was that there are safeguards because Clause 26 requires Ministers to consult the judiciary. That does not reassure me; it is still Ministers who will decide these important matters. His third point was that the power would, as he put it,
“be employed in a way that is consistent with our own constitutional norms and traditions”.—[Official Report, 15/1/20; col. 691.]
I suggest that it is no answer to the conferral of unacceptably broad powers to have Ministers assure us that they will exercise those powers reasonably. The objection is to the powers being conferred on Ministers, because once they are conferred the political and legal constraints if they decide to act unreasonably are limited.
The noble and learned Lord’s fourth point was that there are diverse views on the question of which courts should be able to depart from Court of Justice decisions, but this is not a new issue. We debated it at length on the 2018 legislation. Ministers have had plenty of time to consider whether the solution adopted in 2018 requires amendment. If Ministers want more time, and want to consult, the answer is not for them to take unacceptably broad powers. The answer is to bring a short Bill before Parliament, in a month or so, proposing such amendments—and then Parliament can decide.
These amendments raise issues of considerable constitutional concern and importance. As the noble Lord, Lord Beith, said, they have absolutely nothing to do with the merits of Brexit, the terms on which we leave the EU or the timetable for Brexit. It is, I suggest, our constitutional responsibility, when a Government bring forward a provision as constitutionally objectionable as Clause 26, to ask the House of Commons to think again. That is particularly so when, as the noble Lord mentioned, the Government have been in two minds—to put it politely—on this issue today.
Lord Howarth of Newport
The noble Lords and noble and learned Lord who have already spoken have advised us, rightly, that there are extremely important constitutional issues raised in Clause 26. They have dwelt upon the manner in which Ministers would trespass upon the proper responsibility of the judiciary. I simply add the thought that by taking powers to deal with these matters under regulations, Ministers are also trespassing upon the proper responsibility of Parliament, because Parliament would not be able to give adequate consideration to what could be very important policy decisions by Ministers. They might be seeking to require the courts to consider different tests where environmental policy, or workers’ rights policy and law, are concerned. These must be matters for Parliament to be able to consider fully and deal with in primary legislation.
The adoption of these powers by the Government would be doubly offensive in constitutional terms. The noble and learned Lord, Lord Mackay of Clashfern, has proposed a partial remedy at least that is, as always, both wise and practical. I simply say to the House that if we approve the amendment that he has tabled, and I hope we will, it is no more than damage limitation and does not undo all the mischief that this clause provides.
Lord Carlile of Berriew
My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.
I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.
My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.
The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.
Lord Howarth of Newport
The noble Lord, Lord Hannay, has remarked on the fact that the ambition and scope of this amendment are quite modest compared to the amendment that we debated last week in Committee. The redrafting has been wise. Gone is the requirement that Parliament should approve the negotiating mandate and stance of the Government and in effect give them their marching orders in the negotiations. The Executive must be allowed to do their job and in turn Parliament should do its job, and we should respect the separation of powers. It is for the Executive to negotiate the future relationship and it is for Parliament to hold the Executive to account. Parliament has numerous means of holding the Executive to account in the form of Questions, debates, Select Committee inquiries and many other procedural resources, and I anticipate that it will use that array of resources very extensively in the months to come.
I would add that I do not think that it is appropriate for parliamentary procedure to be prescribed in statute, and it is particularly inappropriate that this unelected House should make proposals of this nature to the House of Commons, which I suspect will not take very kindly to being told how to do its job.
All in all, I welcome the modification of the approach that is reflected in the amendment and I congratulate my noble friend and her colleagues who have thought it wiser to proceed on this basis rather than the one proposed the other day.
Lord Wallace of Saltaire (LD)
My Lords, this is an unusual Bill in a number of ways. We were debating in Committee that it has a clause which restates that parliamentary sovereignty has been established, so we are talking about some fairly fundamental constitutional issues. The relationship between Parliament and the Government is one about which I have heard Ministers make a number of self-contradictory comments in the days and weeks since the election in the rather triumphalist tone they have adopted. One Minister referred during the Committee stage to restoring the “normal relationship” between Parliament and the Government, by which I think he meant a nice safe majority in the Commons so that it does not criticise too much what the Government want to do.
The noble and learned Lord, Lord Keen, talked about the dualist approach to international negotiations whereby treaties, once they have been agreed, have to be transposed into domestic law and thus Parliament comes in, as it were, after the event. Given the importance of this negotiation, if one does believe in the principle of parliamentary sovereignty, the Government need to carry Parliament with them. That is the constitutional set of issues here, and we look forward to further discussions on what the constitution commission the Government are going to set up will be about. If it has the sort of forethought and consideration which was shown in the suggestion thrown out this weekend that the House of Lords might move to York, I have to say that it is not going to be a very good commission because it is quite clear that there was no thought behind that whatever.
It is not just the constitution; it is also about wisdom. Some of us heard the noble Lord, Lord Wilson of Dinton, remark in Committee that in his long career he had noted that it is when Governments are most self-confident and convinced that they can survive criticism that they are most likely to make mistakes. Here we are after an election in which the Government have established a majority on less than 45% of the vote, but it is a majority in the Commons according to our current antiquated rules. The wisdom of carrying the public and Parliament with them as they negotiate—particularly if they are going to negotiate for as hard a break with the European Union as the Chancellor has suggested—seems to me very powerful.
While I was at Chatham House, I was much involved in the various discussions about establishing the single market, and I remember all the talk then about why the Prime Minister was persuaded that the single market was in Britain’s interest and the extent to which we were taking our regulations for a large number of industrial and other standards from the United States extraterritorially. The Government are now suggesting that we will establish our own independent standards. An editorial in the Times this morning said that maybe we should not exclude chlorinated chicken, so we can begin to see that, if we move away from European standards, we will move under American standards, and that will be part of what emerges from the US/UK trade agreement.
I support this amendment on constitutional grounds and on the grounds of political wisdom. Parliament deserves to be carried along with the Government and the Government need to explain and justify their objectives as they proceed.
European Union (Withdrawal Agreement) Bill
Lord Howarth of Newport ExcerptsTuesday 14th January 2020
(4 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-II Second marshalled list for Committee - (14 Jan 2020)
Baroness Finlay of Llandaff (CB)
My Lords, I suppose I should declare an interest as regards Clauses 21 and 22 because I live and work in Wales, so the stability of the devolution settlement is therefore important to me personally, especially as my work is in areas of the devolved competences.
I should point out that, along with a clear majority, I was alarmed at the prospect of a no-deal Brexit and therefore relieved when the Prime Minister and the EU negotiators managed to agree a process for an orderly EU withdrawal. Clearly, the Northern Ireland protocol is critical to that, and I am sure that no one wishes to imperil the withdrawal agreement by wilfully obstructing the implementation of that protocol.
Nevertheless, the Henry VIII powers in respect of doing so are wholly unrestricted—something which other Members have quite understandably expressed disquiet over. The concern is that such powers would enable Ministers of the Crown unilaterally to amend the devolution settlement as laid down in the Government of Wales Act—and the equivalent legislation for Scotland and, indeed, Northern Ireland itself—or to enable Ministers to make such changes without any scrutiny by the legislature.
I understand that Ministers may conclude that it is necessary to adapt devolved competences; for example, to underpin the unfettered access of Northern Ireland agricultural produce to the market in Wales, even if it fails to meet the standards which have been adopted in Wales itself or across Great Britain as a whole. I also understand why they might not want to follow the cumbersome route of primary legislation to achieve this.
But where the National Assembly—or Senedd, as it will be known—agrees with changes to its own competence, there is a perfectly acceptable route, as the noble Baroness, Lady Hayter, has said, via a Section 109 Order in Council to achieve this without primary legislation. I would argue that any attempt to proceed in a matter of this kind without securing the agreement of the devolved Government and legislature in question would be likely to ignite a major constitutional conflict. No one should underestimate the tensions there are at the moment around the devolution settlements.
The aim of the amendment is therefore to promote an exception to this power in respect of the Government of Wales Act and, for the sake of logical consistency, the equivalent legislation in respect of Scotland and Northern Ireland. If the Minister does not concede, or at least provide reassurance, that these powers will not be used to change the devolution settlements without consultation and agreement by the institutions affected, it will inevitably fuel suspicions, as has already been said, that the UK Government want the power to make changes to the devolution settlements even when the National Assembly and Welsh Government are opposed to such changes.
As I said at Second Reading, it is about ensuring consultation, not veto. In many areas the item of negotiation is very likely to straddle devolved and reserved competences. The use of an overriding Henry VIII power—rather than a Henry VIII power in conjunction with a Section 109 Order in Council, or simply the Order in Council—would be completely inappropriate. It would ride roughshod over the settlement we currently have. It would appear to be a potential abuse of power. I am not saying that this Government intend to abuse their power, but we have to be concerned that whatever we put in legislation now could produce unintended consequences in the future.
Lord Howarth of Newport (Lab)
My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.
If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.
Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.
Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.
Lord Thomas of Cwmgiedd (CB)
I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.
This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.
The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.
Lord Howarth of Newport
Is the Minister therefore saying that the Delegated Powers and Regulatory Reform Committee is incorrect? Paragraph 9 of its report notes that Clause 41
“contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament … Such regulations are made pursuant to the negative procedure.”
Lord Duncan of Springbank
To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.
We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.
It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:
“Do you feel lucky, punk?”
and “Make my day.” I am not sure either one is particularly relevant.
In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.
On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.
Brexit: Workers’ Rights
Lord Howarth of Newport Excerpts(4 years, 7 months ago)
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Lord Duncan of Springbank
My noble friend makes an important point, which I will answer in two ways, if I may. First, in this country, we have very much a service-based economy. In making rules and laws that affect workers, we can tailor them carefully to the needs of the people of this country. My noble friend also made a point about the situation with regard to the laws and rights that exist in the EU at present. As I recall, for many decades the Benches opposite opposed almost every aspect of what was going on inside the EU, because they felt that it was servicing big business rather than individual workers. We must make sure that our laws are fit for our people.
Lord Howarth of Newport (Lab)
My Lords, of course this country ought to maintain, and indeed pioneer, the best standards on workers’ rights—but, since the whole purpose of Brexit is to restore parliamentary government to the United Kingdom, how could it make sense for us to pre-commit to endorsing whatever legislation the EU might in future choose to bring in? Should we not have confidence in our own democracy?
Home Ownership
Lord Howarth of Newport Excerpts(6 years, 7 months ago)
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Lord Bourne of Aberystwyth
My noble friend is right. The intergenerational fairness to which I referred does not apply just to housing; there is a similar issue in relation to pensions. A lot of work has been done on this, and the Government are looking at it very seriously. He is right that we need to do far more. I should point out that this is against an expanding population so, although the percentage is static at the moment, that still means we need an increased number of homes because the population is still expanding. Yes, there is a massive challenge and the intergenerational fairness issue is not limited to questions of housing.
Lord Howarth of Newport (Lab)
My Lords, the Minister says that the Government are seeking to diversify supply, but surely they are not doing nearly enough to increase supply. If Harold Macmillan, as Housing Minister, was able to build 300,000 houses a year in the early 1950s in a country far poorer than ours is today, why can the Housing Minister in today’s Government not do as well or better?
Lord Bourne of Aberystwyth
The noble Lord is right about the size of the challenge but I think, in fairness, he should acknowledge that the £2 billion recently announced begins to address the sort of issue that we are looking at. It is not about just extending home ownership, although the Government are committed to that; it is about diversifying supply, and that £2 billion, in addition to the money that is already there, will make a considerable difference.
Localism Bill
Lord Howarth of Newport Excerpts(12 years, 7 months ago)
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Lord Best
My Lords, perhaps it would be valuable to noble Lords to hear the views of the Local Government Association. I declare my interest as its president. The LGA believes that sustainable development can only be defined locally. Indeed, sustainable development makes sense only at a local level, as set out in the definition of sustainable development at the beginning of the national planning policy framework. There must be a balance between economic, environmental and social issues and locally elected councillors must have the flexibility to make the necessary trade-offs locally. In relation to guidance from central Government, the LGA maintains that the NPPF should make clear that it will be for the local plan to set out what sustainable development means for the local area and for the development that it will require.
Lord Howarth of Newport
My Lords, the noble Lord, Lord Best, and the LGA are surely right that sustainable development must be interpreted locally and in the end you can only determine what it means in relation to local circumstances. However, I agree with both noble Lords who have spoken in the debate that it is important that the Government should fill out their definition, or at least their understanding of what is intended by sustainable development. The Brundtland definition is so high level that it leaves too much scope for varying interpretation. In the absence of specificity and rather fuller detail in the way in which the Government have set forth this policy, there is space for all sorts of anxieties to grow. Those anxieties have been intensified by what the Chancellor of the Exchequer said in his Budget speech when he referred to the planning system as being a “chronic obstacle to growth”. That is a profoundly misplaced analysis. Whether or not the planning system has played some part in obstructing growth over the years, what matters now is that a lot of people in this country are anxious about the Government’s intention. While they may possibly acquit CLG of desiring to concrete over the countryside and so forth, they have anxieties about the Treasury’s reading of the situation and intentions. I think that they feel the Treasury would be too ready to see the protections that the planning system has historically given to our countryside to prevent inappropriate development being swept aside. The more desperate we become to achieve economic growth the more reckless they fear the Government may be over those protections.
The Government would do themselves a good turn and would allay a great deal of anxiety that I am sure in reality is needless if they would undertake to clarify and amplify their intentions in committing themselves to promoting sustainable development. Like other noble Lords I do not think that it is appropriate to attempt a full definition on the face of primary legislation because, as we have noted, the understanding of sustainable development has itself developed over the years and will surely continue to do so. It seems that the right place for that is guidance, whether in an expanded section of the NPPF or perhaps in greater detail in fuller supplementary guidance that I continue to hope the Government will issue to support the NPPF because, admirable as I believe most of its tendencies to be, it is too high level and leaves too much scope for ambiguity and doubt.
There is not only anxiety but the danger of legal conflict and uncertainty among all concerned. I think that it would be very helpful if the noble Baroness were able to say that the Government have made up their mind firmly that they will provide a fuller explanation and definition of what they intend by sustainable development.
Baroness Hanham
My Lords, in the previous debate I promised to go away and think about what should be done and whether sustainable development should find itself in legislation or in the national planning policy framework. It has been clear throughout the passage of the Bill that this matter has demanded careful consideration. It has been raised over and over again. We discussed this very thoroughly on Report, and I think we established that there was a good degree of agreement between us about the outcome that we are trying to achieve. I said then that there should be no doubt about the Government’s commitment to securing sustainable development through planning and to meeting environmental, social and economic needs in a balanced way. Those are the three legs of the stool that reference the planning side. It has been apparent from the debates we have had on the Bill and in the House that we need to be clear and to go further in setting out how our commitment can be achieved.
Having agreed to go away and come back with our view on whether the Bill could be amended to effect this aim or whether it could be part of the consultation on the draft national planning policy framework, it is appropriate to say more on that. I appreciate that the amendment put forward by the noble Lord, Lord Greaves, and his colleagues is designed helpfully to probe our intentions on this, and I accept that the noble Lord, Lord McKenzie, was trying to do the same thing. I hope I can provide reassurance.
We now have the benefit of the consultation responses and the draft NPPF. As noble Lords have said, there are 14,000 replies, and many of them are going to address this specific issue. We also have the evidence given to the environmental audit committee, so there is quite a lot of external thought coming on this. Of the responses that we have been able to look at so far, many have made a cogent case for defining sustainable development in more detail in the NPPF. Noble Lords have also voiced strong views about what should be included. Clearly, we need to tailor our definition in the light of all the views we have received. This is something that we intend to do as we revise the document. The explanation will not be a legal requirement in the Bill but will address the policy issues in the policy framework.
We cannot finalise our policy on the NPPF until we have considered all 14,000-plus responses, so I am not going to try to pre-empt that, but important themes are emerging that we want to take into account as we refine our approach. In particular, we know that we need to address the way in which the definition works alongside the presumption in favour of sustainable development, so it is clear that what we want to see through the presumption is that development is sustainable. The planning system should help to secure net benefits for present and future generations, including promoting strong, vibrant and healthy communities together with protecting and enhancing our natural, built and historic environment—we have always had a commitment to that, but I think some of it got skewed during the early part of the consultation process, almost before it had started—in situations in which there could be limits to the environment’s ability to accept further development without irreversible damage. We will carefully consider what noble Lords and noble friends have said about building on and explicitly referencing the principles that underpinned the 2005 UK sustainable development strategy, which is the relevant strategy. We are crystal clear—as the noble Lord, Lord Greaves, pointed out, my honourable friend Greg Clark, who has been managing this Bill, is clear—that sustainable development has the three legs that we have spoken about: environmental, economic and social dimensions. The purpose of the planning system as a whole is to achieve a balanced outcome—I hope that this to some extent addresses the question asked by the noble Lord, Lord Howarth—that actually reflects all three of these points.
Lord Greaves
My Lords, I congratulate the Labour Party on writing such a brilliant amendment. The interesting thing about transitional arrangements is that when the Bill came to your Lordships’ House, they were not being talked about at all. The view was that in six months it could all be sorted out. The more it has been discussed in this House and with Ministers, the more it has become clear to everyone, including those of us who raised it tentatively at first, that it is an extremely important issue. Getting it right is crucial to the transition from the present system to the new system. The good news is that I believe that the Government, particularly the planning Ministers, now understand that. The bad news is that they have not yet produced a clear plan for that transition and how it will work. I believe that it is being thought about seriously across government.
Whether or not it should be in the NPPF is an interesting question. Originally, we were told that it did not need to be in the Bill because it could be in the policy framework. The more some of us think about it, the more complex it is and the policy framework may not be the best place for it—certainly not for most of it. It is so complex and requires so much detailed and substantive guidance to planning authorities on how to cope with the transition that it probably will need separate guidance. I do not think that this would in any way undermine the Government’s wish to bring the total of planning policy guidance down to around 50 pages, although I think that it will be a bit more than that when it comes out. The point is that, by its very nature, guidance on the transitional process will be temporary; it will come and then it will go. That is another reason why perhaps it should not be in the NPPF but should be separate guidance to local planning authorities in some detail as to how to cope.
Going back to another anecdote, I am reminded of the following phrase, which I learnt from Professor Danny Dorling:
“Anecdote is the singular of data”.
In this case I think it genuinely is.
I am about to read from a Pendle Council press release, not for special pleading but because I believe it is typical of the position that very many local planning authorities are in at the moment. I received the press release on Tuesday, headed “Six week consultation on Pendle’s most important planning document”. It says:
“It’s the final chance for Pendle residents to comment on a document that will influence how Pendle changes in the years to come. A six-week consultation starts on Friday 28th October on the Core Strategy”.
Then it explains what is in the document and what its purpose is. It continues:
“Between now and Monday 12th December you can view a draft version of the Core Strategy”,
at various council outlets and libraries throughout Pendle or, alternatively, on the website. It goes on to say:
“During the six-week consultation, planning officers will be attending a series of drop-in sessions in different parts of Pendle”.
That is what that glossy leaflet was all about. I think there are 10 or 12 of those taking place. It is a big consultation operation and exercise. It then says:
“A display will also be available to view at Nelson's Number One Market Street”—
which is the council’s call-in centre—
“for the full six weeks”.
The councillor who looks after planning issues in Pendle says:
“‘The Core Strategy will set out the overall approach for planning and development in Pendle for the next 15 years, so it's essential that residents make their views known before it's finalised … This is your final chance to help shape the future of Pendle’”.
Then I thought: this is all going ahead. The council quite rightly, I think, decided to continue going ahead with the production of its local plan as quickly as possible despite the presence of the Localism Bill casting a shadow over all these operations. This is really localising and turning into an anecdote some of the broad questions that the noble Lord, Lord McKenzie, asked. Will Pendle Council and lots of other councils around the country have to start again when this Bill comes into effect? To what extent will they have to go back and revisit their evidence base for their local plan? To what extent will they have to go back to the core strategy—which is 200 to 250 pages thick, I would guess—and rewrite it? To what extent will the whole process now be put back by six or 12 months? Will this quite intensive consultation process all have to be done again at this time next year perhaps? Those are the kinds of practical questions that councils all over the country are facing. They need very clear guidance on the transitional period from the Government as quickly as possible.
I think that this is my last speech on this Bill. There may be sighs of relief around the House. I have already thanked the Minister, her colleagues and the civil servants on the Bill team for their great kindness and for the assistance that I and my colleagues have had. I also want to thank people around the House. I thank the noble Lords, Lord McKenzie and Lord Beecham, on the Labour Front Bench for their very sensible and constructive approach to the Bill. I may be doing severe damage to their career prospects within the Labour Party by saying that, but I think it needs to be said. We have worked with them and discussed things with them. We have not always agreed, but the amount of co-operation that there has been around the House on the Bill has been to the advantage of the House and to the advantage of the Government in that when the Bill leaves very shortly now, it will be a very much better Bill than when it came.
Lord Howarth of Newport
My Lords, it is a great strength of the Government’s policy that it commits us to plan-led and sustainable development. It follows from that that it would be extremely unfortunate if there were to be possibly a long interval—a black hole—in which possibly half of planning authorities, maybe even all, did not have a valid plan. During that period there would be real danger of abuse and bad, inappropriate development gaining permission, and perhaps even being built, which would contradict the Government’s proper objectives. Unless the Minister is able this evening to give clear-cut reassurance that there will be firm and legally binding transitional arrangements, I fear there could be consequences that the Government do not want. I also fear that there will be needless public anxiety—or, possibly, even justified public anxiety—and it would be sensible and helpful if the Minister could finally allay our anxieties on this point.
Baroness Hanham
My Lords, I am not going to be able to reassure everyone on everything. When we discussed this in the past, I pointed out the Government’s concern that there had been transitional arrangements on previous occasions which had resulted in only 40 councils having local plans, with some of the remainder being on tap and others having some being prepared. Transitional arrangements are a bit of a worry. In response to a question today, I said to the noble Lord, Lord McKenzie, that this is very much in our minds and I can confirm that that is the situation. We are looking very carefully at transitional arrangements, particularly in respect of the analysis of the NPPF and what that will throw up. We have listened also to the views of the Local Government Association and others and will be taking them into account.
We place an enormous amount of importance on up-to-date local plans and we will put in place transitional arrangements that advantage plan making to reflect the fact that the national planning policy framework is all about putting local communities in control of planning decisions through their local plan. As I have said previously, the framework is policy not legislation and legislative measures are unnecessary as the Secretary of State can deliver transitional arrangements more appropriately through policy or guidance. That clearly will be part of the discussions and talks we are having about how much of that is required.
It would also be helpful if I made it absolutely clear that the status of local plans will not change when the Bill is enacted and the final national planning policy framework comes into force. Local plans will continue to be part of the development plan and the plan will remain the first point of reference for decisions on planning applications and appeals. It is, of course, for local councils to decide when they should update their local plans—it is entirely a matter for them and their communities—but it is important that we help them through the process. We are supporting councils by simplifying the process of preparing plans. This will help provide flexibility so that councils can concentrate on issues that matter to them and their communities.
On the question about the Planning Inspectorate, we are working closely with it to make sure that the examination process can be quicker and that, if necessary, only parts of a local plan need to be reconsidered. It is a flexible arrangement and we are sure that the Planning Inspectorate will be able to help with that appropriately.
As we have discussed before, if there are policies and regional strategies that councils wish to incorporate in local plans they can do so by undertaking a review focusing on those policies. Councils can also continue to draw on evidence that informed the preparation of regional strategies to support local plan policies, supplemented, as needed, by up-to-date local evidence. The availability of an existing body of evidence will also help councils through the local plan review process and, consequently, transition.
The NPPF offers councils the opportunity to seek a “certificate of conformity” with national policy which will help them identify which of their existing local policies are consistent with the framework. We expect that many elements of local plans will conform with the direction of national policy. Where issues are indentified, councils should attempt to address these through reviews undertaken as quickly as possible. We will, of course, be considering any representations made on this point in the current consultation.
House of Lords Reform Bill [HL]
Lord Howarth of Newport Excerpts(12 years, 7 months ago)
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The Earl of Caithness
My Lords, I would like the clause to remain in the Bill. I say that on a straight point of principle because in 1999 many of us who disapproved of much of the House of Lords Act 1999 were assured that 92 hereditary Peers would remain in this House until there was a major reform of the House of Lords. Clearly, this Bill does not satisfy that criterion. When we last debated this last year, my noble friend Lord Steel argued that it did. He said that he had the support of the noble and learned Lord, Lord Irvine of Lairg, who was the Lord Chancellor in 1999, who had said that this Bill met the criteria that he had in mind for the second phase of reform of the House of Lords. However, my noble friend Lord Strathclyde pointed out that, notwithstanding that, it would have been unlikely that an agreement such as was reached in 1999 would have been reached with my noble friend had he known that this Bill would have constituted the desired reform.
Things have changed since then, because my noble friend Lord Steel has changed his mind about the Appointments Commission. There is a misunderstanding about the Appointments Commission. In a couple of conversations that I had during the Division, people who voted for my noble friend’s Motion were of the opinion that the Appointments Commission would not be discussed. It will. It is in the Bill. There are amendments to it. Regardless of whether it comes first or last, it will still be discussed. If my noble friend succeeds in removing Part 1, which covers the Appointments Commission, this will certainly not be a Bill to reform the House of Lords. That goes quite against the 1999 agreement. We agreed to that important principle—with hindsight, some of us against our better judgment; I should not have agreed; I should have continued to fight the cause of a proper reform of the House of Lords, a full reform to an elected Chamber, which is what I support. A number of very good working hereditary Peers left this House on an agreement. That agreement will be breached today if the clause is removed from the Bill. To me, that is totally unacceptable.
Lord Howarth of Newport
I recognise the grievance expressed by the noble Earl, Lord Caithness, and the noble Lord, Lord Trefgarne. I understand why they feel as strongly as they do. Indeed, they erect their grievance into a point of principle. With great respect to them, I do not think that it really is a point of principle, but even if it is, there is a more important point of principle: a principle that we were reminded of a little earlier by the noble Viscount, Lord Tenby. We need to consider the reputation of this House. I speak as someone who holds individual hereditary Peers in enormous respect and personal affection. I recognise the quality of the work that they do as working Peers in this House, but I believe that the people of this country cannot see a rational justification in 2011 for the hereditary principle as a basis for membership of the legislature. It is 12 years since that agreement was made. In the interests of the reputation of this House, we need to reconsider the position. That is why the noble Lord, Lord Steel of Aikwood, has been entirely right to include the provisions in the Bill.
I also note that the Bill would treat hereditary Peers who are Members of this House with the respect and courtesy that is proper. There is no suggestion that they should all be swept away in one fell swoop. The proposition is that over time, as nature takes its course, the hereditary Peers would disappear from the legislature. That is a decent, practical and proper way to proceed. I very much hope that the House will agree with the noble Lord, Lord Steel of Aikwood.
Lord Elton
My noble friends Lord Trefgarne and Lord Caithness have made points that resonate strongly with me and with several other noble Lords. It is perfectly true that we are now in this position by the consent of a large number of our former noble friends—they are still our noble friends but they are no longer Members of this House—on the strict understanding that the rearguard would remain until a satisfactory position had been reached. That is a point of principle. The noble Lord, Lord Howarth, said very nice things about hereditary Peers, but fine words butter few Peers. We are here on an honourable understanding built on the understanding of many others who served this House for a very long time.
Why, therefore, do I support the Bill—as I do with a heavy heart? It seems to me that the real basic principle is not to do with undertakings that we have been given or the perception of the British public at the present time, it is the protection of the British people from their future Governments down the generations to come. The House of Commons, for various reasons, is now on occasion firmly in the grip of the Government of the day. We saw that very clearly in 2003. I would love to expand on that, but your Lordships want to get on.
The same circumstances would automatically arise if this were to be an elected House. We have to try to find a means by which an acceptable House remains without being replaced by an elected House. Reform is necessary, but it must not be a House made up of people who can be removed by the Whips of any governing party at their whim by deselection. That being so, we have to find something that is workable and acceptable. It seems to me quite possible that my noble friend Lord Trefgarne’s heroic efforts to forge something acceptable from the draft Bill at present before his Committee may fail. What emerges may not be acceptable; in fact I very much doubt that it will. That being so, the search will be on, if time permits, for something else. If that something else is already here and working, there is a good chance that it will last. Therefore, I have to swallow my pride in the past and my affection for the present and leave my loyalty to the British people and to this sad but necessary device.
Lord Howe of Aberavon
My Lords, one very short reason for refraining from supporting this proposition is the fact that the Welsh Assembly is known as Senedd, which has been adopted because it is the original meaning of the word senate. Senedd in Welsh means a “law-making Assembly”. If we were to become an English law-making Assembly, it does not seem to me suitable. Senedd and senate would be capable of confusion with each other, so let us for heaven’s sake stay where we are.
Lord Howarth of Newport
It seems to me that the term “senate” has a republican ring about it, and I am not sure that that is what the noble Earl, Lord Caithness, may seriously intend for the future.
Lord Elton
I may well be wrong, because my Latin is rather out of date now, but I think that the root of the word is the same as that for “senex”, which means an old man. That is very appropriate to this House.
Viscount Montgomery of Alamein
I very much agree with what the noble Lord, Lord Grenfell, said about age. He mentioned the Chinese. The Chinese believe very strongly that, as you get older, you get wiser. That may be the case with many people but, being well over the age limit, I am not sure that that is so in my case. We should consider this matter very carefully. Certainly an age limit of 75 is fairly absurd.
Lord Howarth of Newport
My Lords, at the age of 75, one would be too young even to be considered as a candidate member of the Chinese Politburo.
Lord Norton of Louth
My Lords, I sometimes make the point that teaching students makes me realise that I am not that young but being in the House of Lords makes me realise that I am not that old.
My noble friend Lord Astor made an appropriate point when he referred to the problem of the size of the House. However, he then went on to refer to Members who sit, as if the two things were the same. I would distinguish between the two. There is a problem with numbers, but I do not think we should focus on those who sit—that is, those who turn up and contribute to the work of the House. We are trying to deal with it at the other end rather than through those who make an active contribution.
I agree with the noble Earl, Lord Erroll, about leading figures in the House who have been over 75. One could add the names of Lord Wilberforce and Lord Simon of Glaisdale among those who have influenced the House in a number of the decisions that it has taken. Without them, the statute book would have been much the worse. Focusing on age is to come up with the wrong solution to what my noble friend has identified as a real problem.
The Earl of Erroll
If this Bill gets to the House of Commons, it might get through. We cannot tell what is going to happen and in what circumstances. We might, through the vagaries of the parliamentary process, end up with this measure being in place for much longer than we expect, in which case it has to have the “i”s dotted and the “t”s crossed. This is very good as a transitional measure at the moment as regards the independent appointments commission, but it has to be improved and tidied up if it is going to stand the test of time over a couple of decades. We need to sort that out. We should not just push this through and say that we are doing a brief tidying-up exercise. That is a sloppy way to legislate. Certainly, if I were a director of a company and behaved like this as regards company governance, I would be fired.
Lord Wallace of Saltaire
My Lords, we have 40 minutes to decide whether we wish to send this to Report stage or not. Some may be happier to do that than others. I stress that the Government are neutral on this Bill, as noble Lords know. The consensus of the House appears to be that this is a housekeeping Bill. It is not the case that nothing else is happening. The Government have put forward a draft Bill that proposes a much more comprehensive scheme of reform. There is now a Joint Committee sitting on that which has held its first two sessions. That includes the proposal for a statutory appointments committee, so things are moving on a much broader and more comprehensive front. I have carefully noted that a number of the hereditaries who have spoken in this debate have declared their passionate enthusiasm for an 80 per cent or 100 per cent elected House. I look forward to them giving enthusiastic support to the Government’s comprehensive scheme when that comes before us.