Exclusion of Peers by Succession

Part of PARLIAMENT (No. 2) BILL – in the House of Commons at 12:00 am on 19 February 1969.

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Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale 12:00, 19 February 1969

I thought it was 1935. It is very interesting if it is 1919. I have not had time to look up the 1919 Act since last night, but I am very doubtful whether there was any reference in that Act itself to any of the proposals. However, there may have been. It may be the case that the Preamble there referred to the operation of the provincial councils, but there was nothing in the Act which did. If that were so, it might be a precedent, although, there again, it was obviously intended that Parliament should legislate again later. I should think that it is very likely that anybody who had the time to examine the 1919 Act would find that my belief is right. It is certainly true of the Government of India Act, 1935, that these matters were incorporated in some form of legislation; and, therefore, these were matters which were capable of being incorporated in legislation.

If that is so, that precedent must also fall, because the question of how the Prerogative is to be exercised to appoint people to sit in the other place is not a matter that can be incorporated in legislation. That is why it is not in the Bill. That is why it is put in the Preamble.

There are only three precedents. We were told yesterday by my right hon. Friend the Leader of the House that the Attorney-General would come here this morning weighed down with precedents. We have had three. Those three do not stand up to examination and do not deal with the situation which touches on the further and more important question of what are the legal consequences of this declaratory act.

Before coming to that aspect of it, I want to take the question about its being a key to the understanding of the Bill. The words of the Preamble do not even state exactly how the Prerogative is to be exercised. They do not incorporate the whole of the White Paper. It could have been done more explicitly in those terms, although it would have been extremely clumsy; because, if all the passages of the White Paper which are not incorprated in the Bill had been incorporated in the Preamble, the Preamble would have been three times as long as the Bill, but it would at least have set out the position accurately.

As it is, the Preamble is not a clear declaration. If the purpose is that it should be a key to our understanding of the Bill, the key does not fit the lock—it does not turn. The key describes only in the very vaguest terms what the understanding is. To discover what the key means we must examine the speech of the Attorney-General. Those who in years to come may be examining this matter will have to examine my right hon. and learned Friend's speech. They will then be referred back to the White Paper. Then people will ask, "What is the binding nature in any sense whatsoever of a White Paper?"

Although a declaration in a preamble may be slightly more imposing than a declaration in a White Paper, it is certainly not legally binding in any sense. All of us, including the Attorney-General, are agreed about that.

So if it is said, as it must be said, that what is in the White Paper is not binding, and if it is also admitted that what is in the Preamble is not in any sense binding, we are confronted with what could be a serious clash between legislation passed in the House of Commons and the exercise of the Prerogative. It is no good somebody saying in the British House of Commons in the year 1969 that the Prerogative will always be exercised in a particular way. I could not on the spur of the moment recite the definition of "Prerogative", but I presume that it means something like that one does not have to refer to anybody else in order to exercise it. I would not be bound by that definition; but the whole point about a Prerogative is that one is not bound by somebody else: it is an arbitrary act, which is no doubt carried out following representations.

What we are trying to do but failing to do here is to incorporate in some form of legislation how the Prerogative is to be exercised. It is impossible to do that. It is like trying to catch hold of an eel—it cannot be done. We should not attempt it. It is very foolish to attempt something which is impossible of achievement.

10.30 a.m.

What we are trying to do is to specify how the Prerogative can be exercised, but the House has not the power to write it down in these terms. I wish we could. I am in favour of a republic. I believe that it would be more satisfactory. It would be one way of clearing up these disputes. But, as long as we have a system under which a Prerogative is exercised, it is not possible for the Government of the day to say that they will lay down in a White Paper or a Preamble how that Prerogative will be exercised for all time.

The most famous example of the creation of peers is that which arose at the time of the Parliament Act, 1911. On an earlier occasion a large number of creations were threatened over the Irish Home Rule question. Another famous occasion occurred in 1711, when the House of Lords was a more radical assembly perhaps than it is today. It had a Whig majority. In order to force through Tory legislation at the time to put through the Treaty of Utrecht, Queen Anne created 12 new peers. It was a shameful episode.