On a point of order. I seek your help and guidance, Mr. Irving, in the somewhat complicated situation in which the Committee finds itself, in respect of documents promised by the Government. If I may recapitulate, there appear to be three documents involved. There is what the Secretary of State for Social Services called "our" document, which at c. 1837 of HANSARD, as long ago as 26th February, he said he would consider making available, first of all, to his hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon), and then to the Committee as a whole.
Secondly, there is the document deposited in the Library of this House on behalf of another place which, as disclosed by the hon. Member for Ashton-under Lyne, was deposited there on a confidential basis. After some discussion the right hon. Gentleman again stated—the reference is c. 296 of the 18th March—that he would take steps to have that made available. Thirdly, there is the document which the right hon. Gentleman the Leader of the House told us during the business questions last Thursday was then in the Vote Office; of which I have a copy, headed "Lords Attendances".
It is clear, for a reason which I will briefly submit, that this document—the document which we actually have—is not, and cannot be, either of the two documents which we have been promised. The reason is that this document bears on the face of it the statement that it is a Return to an Order of the House of Lords dated 28th March.
I understand that the hon. Gentleman wishes to put the case before the Committee, but I cannot help him. If he seeks to elaborate the matter, the Chair would not be able to help him.
If you will hear my argument, I hope to be able to persuade you that it is indeed a matter for the Chair. I submit that the document which we have cannot be the document which we have been promised because it owes its origin to an Order of another place dated 20th March, that is to say two days after the second of these documents was both admitted to exist and promised to us by the Government.
The point on which I seek your help is this. What protection has a Committee of this House, which has been promised successively by members of the Government two separate documents and is then given what is plainly, on the face of it, not either of them? This raises a point of order, for it goes to the root of the confidence between the Government and the Committee of the House of Commons.
I have listened to the right hon. Gentleman, but I cannot add anything to what I said to him before. His only course is to reject the Question before the House. I am afraid that we must get on to that Question before he can do that.
On a point of order. I have two points of order in fact. The first is one with which you are somewhat familiar, and it concerns the selection of Amendments. I have from time to time maintained during the course of these debates that we are present on a unique occasion where there are no precedents on which one readily can rule and, as a result of that, in any selection——
The hon. Gentleman has made his position clear to the Committee on a number of occasions. If he has nothing further to add, I am afraid that I cannot allow him to go on.
With the selection of Amendments as it is, I wanted to point out that, this being a unique occasion, we are laying down precedents for future occasions and that this should be borne in mind.
My second point of order is one which greatly concerns this Committee, since it deals with the document which has now supposedly been presented to this Committee. I agree with the right hon. Gentleman the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) that this was not the long and complicated document which we expected to receive, but it contains some of the matters which I wanted.
The hon. Gentleman is dealing with precisely the same point which the right hon. Gentleman sought to raise and which I ruled was not a matter for the Chair. The hon. Gentleman must come to the point quickly.
By way of introduction I wanted it to be clear that the point I was discussing was this document, which has now been presented to this Committee for the first time, and its impact on the debate on which we shall be engaged this afternoon. My point of order is that in discussing this document, limited though it is, for the first time we will be covering a certain amount of the ground which should have been covered in the previous Clauses. If this is so I wish to set a marker.
On a point of order. The point I was seeking to make, obviously with no great success, was that at some future stage, if there is evidence of a new kind which is going to be presented to the Committee, we may well need to ask for a recommittal of certain stages of this Bill. At this point I was seeking to put down a marker. In relation to the Question, That the Clause stand part of the Bill, and the debate upon it which is now to take place, my point is that at some stage my right hon. Friend——
On a point of order. I want to appeal to you, Mr. Irving, as the custodian of the rights of the Committee in this matter. It will be within your recollection that there was a long debate about a document which was in the Library. Subsequent to that debate, Mr. Speaker ruled from the Chair that the House of Commons was entitled to all documents that went in the Library. This is the point of order I wish to raise, because it is relevant to the discussion which this Committee is now to have.
Subsequent to Mr. Speaker's Ruling, this document, which is one of the documents to which my right hon. Friend referred a few moments ago, has now disappeared from the Library and is no longer available for the Committee to have to form a conclusion upon. It seems to me that the Speaker having ruled that the Committee of the House is entitled to all these documents, we have the right to ask for your protection to ensure that forthwith, before we proceed with further discussion upon the Bill, this document is made available in order that we shall have the information, information to which Mr. Speaker said we are entitled.
I desire to raise a point of order, which I do at the earliest opportunity as it has arisen since the last Sitting of the Committee. I refer to expressions used in another place by the Government spokesman who was there making a statement on behalf of the Government. The noble Lord, Lord Shackle-ton, referring to the proceedings of this Committee, said:
… there is some discussion going on in another place, perhaps not always on the Bill"—
that is the Parliament (No. 2) Bill—
but on matters that occasionally may be related to it …"—[OFFICIAL REPORT, House of Lords, 20th March, 1969; Vol. 300, c. 1023.]
I submit that if expressions of that kind were used in this House they would immediately be regarded—and rightly regarded—as a reflection upon the Chair.
Erskine May, at page 453 of the 17th Edition, makes clear what should be the relationship in this respect between the two Houses:
It is obviously unbecoming to permit offensive expressions against the character and conduct of Parliament to be used without rebuke … If directed against the other House, and passed over without censure, they would appear to implicate one House in discourtesy to the other …
I submit that the expression which I read out, and which I am sorry to say was passed over without censure, amounts to a reflection in another place upon the conduct of yourself, Mr. Irving, in the Chair in this place. I do not think that that is a matter which the Committee or this House ought to overlook.
I should be grateful, as I am sure would the Committee, for your guidance on the steps which we ought to take in these circumstances to protect ourselves and to restore the proper courtesy and comity which ought to exist between the two Houses, even unreformed.
Further to that point of order raised by the right hon. Member for Wolverhampton, South-West (Mr. Powell). Is it not the case that such a matter as has been raised by the right hon. Gentleman should be dealt with now? Otherwise it might lead to a different course of events in the debate which is now coming upon us. If it is accepted that we are to tolerate such language being used in another place without any rebuttal from us, it means that we might seek to reply in kind and that might lead to questions of order. I therefore submit that, this question having been raised on the first appropriate occasion, it should be dealt with in Committee, and that would be proper for you, Mr. Irving, to say that you deeply regret that such words should have been used and that you hope that no Members will retaliate in kind. If such words are not used from the Chair, presumably it will be open to us, in the course of the debate, to discuss what has been said in another place on this matter, and that, I submit, raises the serious question of a constitutional clash between the two Houses.
Order. I cannot really allow the debate to continue on this matter. The Standing Orders and the practice of the Committee do not give me any power to deal with a matter of this kind. I must rule it out of order.
On a point of order. As we now have this particular document, Lords Attendances, in front of us, is it not clear that it includes new matter which we have not had an opportunity of properly discussing?
Order. I cannot help the right hon. Member for Barnet (Mr. Maudling). I hope that the hon. and learned Member for Northampton will not proceed with the matter that I have ruled out of order.
The point that I wish to make is very simple. The point raised by the right hon. Member for Wolverhampton, South-West (Mr. Powell) was not a point of order; it was a point of privilege. As a point of privilege, and a highly important point of privilege, it is a matter which requires Mr. Speaker to be sent for.
If, as I understand—and it is difficult to understand anything at the moment—your observations just now, Mr. Irving, in answer to my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) were to the effect that the kind of complaint that he was making was a matter for the House and not for the Committee, a matter on which Mr. Speaker should adjudicate, not the Chairman of Ways and Means, which I understand may be the position, then I ask, in order that the matter——
The submission that I desire to make arises out of the Ruling that you, Mr. Irving, have just given. You have ruled that, as Chairman of Ways and Means, you have no power to deal with the matter raised by the right hon. Member for Wolverhampton, South-West (Mr. Powell). I respectfully agree. I submit that it is a matter for Mr. Speaker, who is the protector of the rights and privileges of this House. Therefore, in order that Mr. Speaker may deal with it—
Order. I have made it clear to several hon. Members that I cannot advise or help in this matter. The right hon. and learned Member must find other means to deal with the matter.
On a point of order, other than those which have been raised, though arising indirectly out of the one raised by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). May I ask your permission, Mr. Irving, on grounds which I hope you will allow me to explain, to move, That the Chairman do report Progress and ask leave to sit again?
May I draw attention to page 631 of Erskine May:
Complaint of breach of privilege. If complaint is made in Committee of the whole House of a breach of privilege which has been recently committed and requires instant attention, the chairman leaves the chair on an order to report progress.
I would respectfully ask whether, if the complaint made by the right hon. Gentleman the Member for Wolverhampton, South-West (Mr. Powell) is in effect a complaint of breach of privilege, you can advise the Committee that this procedure is the appropriate one for the Committee now to adopt.
May I with the utmost possible respect remind you that when the right hon. Gentleman the Member for Wolverhampton, South-West raised this matter with you he indicated quite clearly that it was the first possible opportunity he had had to bring it to the attention of the Committee. In view of that, I wonder whether you would reconsider your decision.
On a point of order. I wonder if you could help us. I believe we all appreciate the very difficult burden the Chair has to carry in presiding over the discussion of such a Bill as this. But this afternoon your attention has been invited to three separate points of order. First, there is the very important point of privilege on which you have obviously found yourself in some difficulty and have said you are unable to help the Committee. There was secondly a point of—[Interruption.]
I am afraid the hon. Gentleman cannot reiterate what the Committee has already dealt with and the Chair has disposed of. [Interruption.] Order. The hon. Gentleman must come to his point of order rather more quickly.
I am coming to it with as much speed as I possibly can. With regard to the document, which is not the document we wanted to see, you have said, "I am afraid I am unable to help the Committee." There was the even more important point raised by the hon. Gentleman the Member for Ashton-under-Lyne (Mr. Sheldon), which he did not develop.
With respect, I do not see how you can possibly say that when I have got out only half a sentence on this particular point. What I am endeavouring to explain is the real difficulty that the Committee must be under if it does not have before it at the beginning of the afternoon at any rate some knowledge of the matters it is going to discuss.
I understand the hon. Gentleman's difficulty. I have ruled that this is not a matter for the Chair. The hon. Gentleman can discuss these problems in the discussion on Clause stand part. He cannot raise a point of order on this when I have already disposed of the matter.
If it is not within your responsibility I do not see that it is a matter for the Committee as to what Amendments we are to discuss. The question of what selections are made must surely be a matter for the Chair. It seems to me that when you said you were unable to help the Committee you were putting modesty a little too high, because the Committee is, after all, immensely dependent upon your ability to see fair play; and one goes back to the point of the House of Lords—[Interruption.]
The point of order I wish to raise is this: how can any Member of this Committee have a point of order if his point of order is never reached if you interrupt him before he reaches it?
I endeavour to treat all hon. and right hon. Gentlemen as fairly as I can. What the Chair cannot do is to allow elaboration. It is a principle and practice of the House that hon. Members must come to the point as quickly as possible.
I fully appreciate the difficulty in which you find yourself, and you have told us that you really have no power to deal with this matter. Could I ask you to convey to whoever you think it is right to convey it that I believe that this whole matter is ridiculous; and if I may say so with very great respect, if you really have not any power and cannot send for anybody to give you any power, then this procedure is making Parliament ridiculous, and I dislike it.
Order. I am desperately anxious not to be discourteous to the hon. Lady, but I have dealt with this matter. It is a longstanding practice of the House that this is not a matter for the Chair, and her remarks must be addressed to the Government.
If the hon. Gentleman is submitting that this is not a matter that I can decide, it is therefore not a matter for the Chair, and I am wondering what point of order he is raising.
I feel that time would be saved if you permitted one to make a point. The procedure here is very ancient and very clearly laid down. A point of privilege has priority over all other business and over all Orders of the Day. When a point of privilege is raised in Committee, since the Chairman cannot deal with it, a Motion is then proposed to report Progress and Mr. Speaker is sent for. This is very well established and is among the most ancient practices in the House. In my respectful submission, the House ought to adhere to it.
I really cannot pursue the matter any further. The reference which the hon. Gentleman gave me is concerned with matters in Committee. The hon. Member ought to have raised the matter, if he wished, in the House at the earliest possible moment.
On that point, may I make a brief and respectful submission? In the passage from Erskine May of which the hon. Member for Harrow, East (Mr. Roebuck) has just reminded the Committee, the reference is to a matter of privilege being raised in a Committee of the whole House at an early opportunity. You will be aware, Mr. Irving, as we all are, that for Mr. Speaker to rule upon a question of privilege as a matter of priority it is necessary that it should be raised at the first opportunity. On the other hand, I submit to you that it must be significant that in the context of such a matter being raised in a Committee of the whole House the wording in Erskine May is different, and presumably deliberately different. Therefore I submit to you, Sir, as I respectfully suggest I am entitled to, that having at an early opportunity—and I feel that that is undeniable—raised a matter which prima facie does apear to concern the privileges of the House, a matter on which you, with respect, have correctly told us that you in the Chair of the Committee cannot help us, we are bound, in accordance with the Rules of the House, as laid down in the passage of Erskine May, to turn ourselves again into the House itself so that we may deal with it.
I am afraid the hon. Gentleman is misreading the Erskine May reference. This is to matters in Committee to be dealt with at the first moment. As the right hon. Gentleman has said, this is a matter between the two Houses, and the appropriate time to raise it was in the House at the earliest possible moment. I am afraid I cannot help him nor ought I to entertain further points of order on this matter. I hope the Committee will be able to come to the discussion on the Question that the Clause stand part of the Bill since a number of the matters which have been put to me are matters which could more appropriately be dealt with in that discussion.
On a point of order. Earlier I sought to move, That the Chairman do report Progress and ask leave to sit again, but I was not able to do so. Quite plainly, it is within your discretion as Chairman either to accept or to refuse to accept a dilatory Motion. What troubles me is that you would not let me move it because you stood up and thereby forced me to sit down. Had I not done so, I would have appeared to be discourteous by continuing to stand while you were standing. After you rose I did my best by persisting——
Order. I understood that the hon. and learned Gentleman was making a submission. I heard him make it. The point was that I was unable to accept it at that point in time.
It would not be in order to criticise you for your unwillingness to accept a Motion. That is not the point. What troubles me is that although I emphasised I was not making a submission, that I was asking leave to move a Motion, I was not allowed to do so, and the right hon. and learned Member for Ipswich (Sir Dingle Foot) had great difficulty in trying to do the same thing. I respectfully put it to you that hon. Members should not be put in peril of being discourteous to the Chair by being forced to sit down when they are doing something within the rules of order, even though what they are doing is not something to which you can subsequently give the accolade of your blessing.
On a point of order. I have the most enormous sympathy for you in the Chair, and I am glad that fate has not put me in the position of having to reach this decision, but I think that we are dealing with a matter of tremendous constitutional importance. The hon. and learned Member for Northampton (Mr. Paget) raised the question that a privilege Motion is dealt with immediately——
Order. I am grateful to the hon. Gentleman for his sympathy, but I hope that he will help me by endeavouring to get the Committee on to the Clause stand part. I have ruled on a submission made by the hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell) and disposed of that. The hon. Member was seeking to speak further on that matter, and I cannot hear him.
Order. The hon. Member is entitled to his view, and he may wish to hold it, that I was wrong in accepting the submission, but I have accepted it, and that disposes of the matter.
Order. I am trying to make it clear that I have disposed of the point, and therefore the hon. Member cannot speak further to it because it has been disposed of. I am sure he will realise that that is the practice of the House.
On a point of order. Without in any way wishing to incur your displeasure or asking you to re-open a matter on which you have given a ruling, however much I want to come to your defence against the scandalous statements which have been made about the Chair in another place, could you give us some guidance or clarification on the matters to which you have referred, because this is of importance to the Committee, so that we may thoroughly understand the position? If I might refer again to page 631 of Erskine May——
I have advised the Committee that this is not a matter that I can deal with anyway. If I cannot give advice, I cannot see how the hon. Member can proceed further on this matter. I hope that the Committee will come to the Question, That the Clause stand part of the Bill.
On a point of order. This really is a separate point of order. I, and I think most Members of the Committee, are worried that as a result of your Ruling we are likely to proceed with our discussion knowing that there was a Motion of censure on you personally in another place. I do not think that this is in accordance with the dignity of the Committee or of the House. There is a constitutional issue involved here, and I think that the matter ought to be cleared up before we proceed with our discussions, otherwise the Chair will be under a censure Motion of no confidence from another place.
I thought that at the outset you had put the Question, and therefore I was in the middle of my speech.
Since we embarked on this Clause less than six weeks ago we have talked mostly about how frequently peers ought to attend to be allowed to vote, and we have ranged from those who want peers to attend much more to those who do not want peers to attend at all.
When we last met we wound up on the rather surprising note from the Under-Secretary of State for the Home Department that the House of Lords was to be run on commercial lines, rather like the Royal British Bank. I am a afraid I have to tell the Committee that the Royal British Bank was blown off course, and indeed that it suspended payment, for ever as it proved, in 1856. I wish the House of Lords, in whatever form it emerges as a result of our deliberations, better luck than that.
I should like to explain, by way of preamble, which is now so fashionable, and indeed because it is so long since we directed our attention to it, my point of view about this Bill and this Clause which is central to the reform of the other place. To my mind the idea that the House of Lords will ever be allowed any power, which is what the Clause in particular is about—it is about voting—is an illusion. It is an illusion that it will have any power, any more than we have here. Its history and its name are too emotive. It is much better, and we should be better if we agreed to this, to settle down to the idea—and as such it is extremely useful—that it is a high-grade debating society, or a Press conference. In my view it is perfectly suitable the way it is for those purposes. It is in a way a high-class version of Speakers' Corner.
This Clause is about voting, and it therefore seeks to give the House of Lords effective power which, as I have said, to my mind is an illusion——
I promise to keep in order on this Clause if it is the last thing I do.
What we have not discussed is whether there is any natural relationship between voting and attendance. What possible connection can there be? There is none here. Many hon. Members opposite, among them those who have taken part in our discussions here, are the most conscientious attenders. They even speak; and then, at the last moment, they abstain. At the same time, many other hon. Members opposite who have not attended at all pour in and vote. Many hon. Members vote without attending. I do myself; because it is impossible to work satisfactorily in this building with its entire absence of facilities or accommodation for the work which we have to do. I have to work in Smith Square. I have to pay for a connection to the Division bell, the price for which, I may say, has recently greatly increased——
Despite the affirmation which the hon. Gentleman made about keeping in order, I am afraid that he has not got into order at all yet. The Bill has granted a vote to certain peers and this is merely a restriction, on grounds of non-attendance, of that vote. The hon. Gentleman really is not addressing him, self to the Question, That the Clause stand part of the Bill.
I think that we must discuss the relationship between attendance and voting. Presumably, the requirement to attend is designed as a sanction against those who do not attend: they will be deprived of their voting rights. But my point is, if attendance is to be a sanction, will it work as such. Do peers want to vote? Very often, here, we do not want to. To find that out it seems pointless to have an elaborate series of attendance figures, even this famous document, which I thought was in any case a very slight affair and did little except highlight the astonishing attendance record of Lord Airedale.
I could not imagine why the Secretary of State for Social Services made such a fuss about it. He said that it did not exist, that he had done these calculations, involving four unknowns, in his head. I had no idea that he was such a mathematical strong-man. One would not derive any evidence of that from his earnings-related social security scheme. He asked us to believe that these complicated figures, with four unknowns, were communicated between himself and his colleagues in the Cabinet by a process of magical affinity. Then, in the end, he said that the document did exist but that it was trivial and of no importance, and also that it was very complicated.
He gave us all the excuses which I once got many years ago in Leningrad when I wanted to see a particular picture. I was told that it was being studied by a team of professors; that it was on tour; that it was in another part of the gallery; that it was never shown to foreigners—and, of course, all the time it had been bought by Andrew Mellon in the 'twenties. That was the approach of the Secretary of State to this irrelevant document.
What we do need a document about is how peers have voted, and we shall need this more as the Bill proceeds. Are we offering them a carrot which is not the sort they want to eat? Whether one wishes to attend and whether one wishes to vote are quite unrelated wishes, and one does not influence the other. Therefore, in my opinion, it will not prove an effective sanction and will have consequences to which I shall come later.
A more logical connection would be between attendance and pay. Indeed, this connection exists in the minds of many hon. Members at present. The Lords are on piece work at the moment. They are paid by the number of times that they turn up. More logical still would be a connection between voting and pay, which is what we all fear; or a connection between voting and speaking or, to be madly Utopian, between listening and voting.
The connection should be not between attendance and voting, as it is in the Clause, but between voting and voting. The nation does not care whether peers attend. What they should care about, especially if they have to pay for it, is whether and how they vote. Surely, if we are to give, as we are told we are giving under the Bill, better powers to the House of Lords, it is the voting that we should be concentrating on. The connection, therefore, should be between voting and voting.
This, of course, will raise problems for the cross-bench peers. I doubt whether we need cross-bench peers of such superhuman impartiality that they can never bring themselves to enter a Division Lobby. If it is only a question of attendance rather than voting, they will not exist unless the Press notices them. They would be much better off if the requirement for voting was one's voting record; the cross-bench peers could then vote in both Lobbies. They would then have the agreeable sensation that we have, of being a bit of a devil and finding ourselves in the same Lobby as people with whom we completely disagree. That would have been a much more practical and beneficial way to arrange matters than this connection between attendance and voting.
The Clause, further, is much too loose. This matter of attendance is like the rules of order, and we all know how closely they can be scrutinised. The Bill has been drafted on the snobbish assumption that the Members of the House of Lords can always be relied on to do the right thing, that it is all very cosy and that everything will turn out right on the day; but I think that it should be drafted like a Finance Bill, with every loophole in mind. There are a number of unworkable provisions in the Clause——
On a point of order. With great respect, I just heard my hon. Friend say that there were many faults in the drafting of the Clause. When we are discussing the Question, That the Clause stand part of the Bill, what, with respect, could be more germane to the argument than that?
I was saying, as my hon. Friend the Member for Yeovil (Mr. Peyton) so aptly pointed out, that the Clause is loosely worded and will not work. I will give an example. If a peer falls into this trap and loses his voting rights, his voting declaration is withdrawn at the end of the Session; but it is renewable at his opinion at the beginning of each Parliament. Therefore every time there is a General Election a perverse-minded peer could get a year's salary whether he turned up or not. All legislation must encourage loopholes, just as the Finance Bill does, so the Clause should be much more closely worded if it is to stay in the Bill at all, as I think it should not.
Next, who will watch out for backsliding peers, analyse the attendance records and work out the percentages? Who will report them, and to whom? Will the person who performs this unpleasant task be paid?
We read in paragraph 45 of the White Paper:
… if … it were found at the end of a session that he had not during that session attended the necessary number of sittings he would be deemed to have surrendered them.
That is, his voting rights. "If it were found"—who is to do the looking to find what has been happening? The Parliamentary Secretary said in an earlier debate that this matter would be decided by a small committee. If the House of Lords is to be meaningful, I cannot believe that it will accept this matter being settled in that way. In this Chamber if we could "nick off" a Member for non-attendance, we would. I am sure that noble Lords will want to do the same.
The Clause also assumes that peers will be so incompetent that they will not remember to give notice that they will be absent. They must make their voting declaration within one month of the issue of the writ. No leniency is given to them about that. Why the Government think that they should be incompetent in other respects I do not know.
The exemption is in favour of peers who are ill or away on public business. This raises the interesting point that as long as one is ill or absent on public business one can count that as though one were there, whether or not one would in fact have attended. Thus, the more ill or more absent on public business one is, the less risk one runs of losing one's vote.
Taking this to its logical conclusion, the House of Lords will consist predominantly of absentees. Those who turn up and do their best to serve the upper Chamber will gradually fail to meet the attendance requirement. It seems that only by being incurably sick or by having a busy job on a public board will one retain one's voting rights. Towards the end of a Parliament, Divisions will consist of a handful of peers, all recovering from long illnesses or having just returned from world tours.
If the House of Lords is to be a positive Chamber, we should not care why a peer is away. If he is absent he is no use to the Lords in any debate that is taking place in his absence. The whole idea of giving people leave of absence and letting that count towards their attendance for voting purposes is wrongly conceived.
The Clause is bound to affect the size of the upper Chamber. The White Paper recommends a House of 230 peers. I discovered to my astonishment that that is the average attendance now, which means that the Government consider the House of Lords as it is all right. But so far only three of the variables—the attendance requirement, the size of the House and the age of retirement—have been mentioned. More important perhaps is the age at which peers will be created. If they are to be created at a reasonable age—say, at my age [Laughter.]—there will be an insufficient turn-over of peers. They will not retire quickly enough to keep the size of the House in line with what the Government want. This will be aggravated by the attendance requirement.
For these reasons—because there is no natural relationship between attendance and voting, because of the rules about absence, and because no account has been taken of the age at which peers are to be created, I urge hon. Members to reject the Clause. It will not produce the type of peer the nation needs.
It is not by chance that the Secretary of State for Social Services is in charge of the Bill. This is simply a piece of outdoor relief. It is a method of providing for a few old boys to clock in and remain on the payroll even if they are away; that is, as long as they can produce a decent excuse for their absence. We can all think of peers whose attendance only once a session would be well worth while. They will be prevented from playing an active rôle in the Upper Chamber. I hope, therefore, that my hon. Friends and our companions opposite will oppose the Clause.
I agreed with everything said by the hon. Member for the Cities of London and Westminster (Mr. John Smith). However, I wish to approach the subject from a different standpoint.
Four years ago we celebrated the 700th anniversary of Parliament. In the 700 years from 1265, when Simon de Montfort summoned the first Parliament, many useful and necessary Measures have been passed; the Bill of Rights, the Act of Succession and various education Acts, to mention a few. A number of harmful Meaures have also been passed, such as the Statute of Labourers, the repressive legislation introduced when the younger Pitt was Prime Minister and the Act passed in the days of Sir Robert Walpole to impose stage censorship, which we got rid of only last Session. But this is quite the silliest Bill that has come before Parliament in those 700 years, and this is the silliest Clause.
Of course, I must try to make that statement good. This is an attempt to ensure the attendance of members of another place. But that is quite unnecessary. The position is fully covered by existing law. The question of attendance
is dealt with in a statute, without an exact title, passed in the fifth year of the reign of Richard II. I recall this to the recollection of the Committee. It reads:
Item, The King doth will and command, and it is assented in the Parliament by the prelates, lords and commons, that all and singular persons and commonalties which from henceforth shall have the summons of the Parliament, shall come from henceforth to the Parliaments in the manner as they are bound to do, and have been accustomed within the realm of England of old times. And if any person of the same realm, which from henceforth shall have the said summons, be he archbishop, bishop, abbot, prior, duke, earl, baron, banneret, knight of the shire, citizen of city, burgess of borough, or other singular person or commonalty, do absent himself, and came not at the said summons, except he may reasonably and honestly excuse him to our lord the King, he shall be amerced, and otherwise punished, according as of old times bath been used to be done within the said realm in the said case …
That is still part of our law. It has never been repealed or amended. So we do not need this Clause. All we need to do is to send a summons to a peer and he is under a statutory obligation to attend. If he does not attend, he is open to the penalties set out in the passage I have read.
I think the hon. Member will find that as a result of the Act of Union this applies to Scottish peers as to other peers. That may be a matter for argument, and I shall be interested to hear anything that the hon. Member may say on this point later in the debate. All that we need to do is to issue a summons and nothing more. Certainly we do not need this Clause.
I come to the imperfections of the Clause. The point I make is perfectly serious. I think there are great difficulties ahead if the Clause passes in this form. I particularly refer to the words "or other public business." Subsection (2)(b) reads:
in the case of a peer who, at any time during the Session, is absent with the leave of the House on account of ill-health or of Parliamentary or other public business, or is disqualified to sit in the House any days when he is so absent or disqualified.
I invite the attention of the Committee to the words "or other public business". At present there is no difficulty about the situation in either House. It is a procedure to which we do not often resort, but it is open to either House to grant leave of absence to one of its members. For example, if we send members of this House on a Commonwealth delegation to convey a copy of Erskine May and a Mace to a new Parliament, we grant them leave of absence. It is open to another place to grant leave of absence for any reason it thinks fit. That is the existing situation, but if we put this into a statute the position will be entirely different. It would then become not a matter for the discretion of the House itself, but a matter of law, a matter for judicial interpretation.
There is no guide whatever in this Measure to what is meant by "public business". One can imagine many things which could come under the heading of "public business". If a member of another place serves on a Royal Commission or a Select Committee I suppose no one would hesitate in saying that that is public business. But does "public business" simply mean State business or official business? Hon. Members of this House, and no doubt members of another place, concern themselves in many ways with public business in a wider meaning.
For example, only a few weeks ago my right hon. Friend the Member for Llanelly (Mr. James Griffiths) and Lord Brockway went together to Biafra and Nigeria and came back and reported their conclusions to both Houses. That in the wider sense was public business, but they had not been appointed to do it by anyone; they had not got leave to do it. They simply went on their own initiative.
Some hon. Members manage to combine service in local government with service in this House. Some even serve on the Greater London Council and seem to spend most of their lives sprinting to and fro across Westminster Bridge. Is that public business, or is it not? One of my hon. Friends not long ago was Lord Mayor of Manchester. He managed to combine his duties to the citizens as lord mayor with his duties to his constituents in this House, I gather to the complete satisfaction of both. Would this fall under the heading of official business?
We may take the example of someone such as Lord Canon, who was a leader in the trade union world. There might be someone appointed who is still a serving trade union official or a member of a trade union executive. It might be of great importance in the wider sense that he should continue to fulfil his duties in the trade union world. Would that come under the heading of "public business"?
I give two examples affecting myself. Last year I had two particular tasks to perform. I was invited by the Foreign Office to preside over a United Nations seminar on freedom of association. There were representatives from 26 different countries who sat there for a fortnight. I was not doing any business related to this country, but I was carrying out a form of public duty. Would that be public service within the meaning of the Clause? I am a Bencher of my Inn and last year I had the honour of being Treasurer, which is rather like being a mayor for a year. That involved many public duties, but I cannot imagine that it would fall under the heading of public business within the meaning of this Clause.
There is a more fundamental objection. It is the effect which this will necessarily have on the character of another place.
I am sure the Committee is much indebted to the right hon. and learned Member for the opinion he is expressing. From his very wide knowledge of the law, will he deal with this point? What does he think of the significance of the words "or other" between "Parliamentary" and "public business"? Will he say whether there is some connection which limits public business to something under the aegis of the State?
I think there is a good deal of substance in that. It is a nice question of interpretation. It might be that if the courts were asked to interpret those words they would interpret "or other public business" ejusdem generis with the word "Parliamentary". I think the courts would be bound to give this a limited interpretation. There may be all kinds of public service in the wider sense in which a member of another place might very well and very laudably engage which would not come within the meaning of those particular words.
I think that my right hon. Friend was not present when I started to address the Committee. I dealt with that point then, saying that at present it is open to the other place, as it is to us, to grant leave of absence for any reason it thinks fit. If that power is put into a Statute it is not a matter for the House to decide but necessarily becomes a part of the law and a matter for judicial interpretation. That is one of the difficulties I see about the Clause.
It has always seemed to me that the great strength of this House is that we are not an assembly of professional politicians. We have hon. Members with first-hand experience, in many cases recent or current, of all walks of life. We have hon. Members from the Services, business, the law, journalism, the teaching profession, the mine, the field and the shop floor. This wealth of experience is the greatest strength of the House. We are not representative simply in the sense that we are elected by the constituencies. We are representative in a much wider sense; we represent almost every strand of experience in this country.
If that is desirable here, it is still more desirable in the other place, which should have the widest possible experience. Debates there have improved enormously since the introduction of life peers. The merit of debates in another place has been that there may be some member who has very special experience or knowledge upon which he can draw. He is not likely to go very often, but when he speaks he will be heard with great attention. Lord Montgomery, Lord Goodman, Lord Shawcross and Lord Soper are only four examples of peers who bring their experience to the debates in the other place.
Therefore, however we select the second Chamber, it is desirable that it should be drawn from the widest possible area of recruitment. But the effect of the Clause must be to narrow that area, which will be confined, if the Clause is passed, to people who can give up a certain modicum of time. Some will be able to do it, but if they are expected to turn out so often during the Session many people whose experience would be of the greatest value in the other place would not be able to comply with the conditions. I cannot imagine any Clause better designed to impoverish the second Chamber.
The Clause does not deal with genuine attendance at all but simply with the number of appearances a member of the other place must put in. He can put in an appearance perhaps just for a minute or two, signing his name, making his bow in the Chamber or whatever it may be. That does not mean that he is genuinely attending and taking part in the business of the day. It merely means that he has clocked in and satisfied the rules.
I return to where I began. This is one of the most foolish Bills ever brought before Parliament, and the Clause is the most foolish Clause of all.
The right hon. and learned Member for Ipswich (Sir Dingle Foot) speaks with peculiar authority on another place, because I think he is the only Member of this House with two brothers who are very active members of another place. It is therefore particularly interesting when he describes, with that very direct experience, the Clause as being the silliest Clause of a silly Bill, words that I do not think any of us can better.
It is indisputable that the effect of the Clause must be to narrow—I suggest to narrow very seriously—the basis of recruitment for a Chamber which, if it is to be of any use and to have any authority, should recruit over a very wide basis of experience and achievement. I fully share the desire the right hon. and learned Gentleman expressed that this Clause at least should be excised from the Bill.
We start our discussion of the Clause under a number of handicaps. There is, first, the very serious handicap that, despite repeated promises, we have not had produced for us the two documents which the Secretary of State for Social Services told us were relevant and undertook to provide. Unless I am challenged by Ministers, I do not wish to repeat the recitation of the facts which I submitted to Mr. Irving on a point of order earlier this afternoon. Suffice it to say that the document which we now have on Lords attendances cannot, by reason of the relevant dates, be either of the documents we were promised. According to Ministers, they were in existence on 18th February and 18th March respectively.
The document that we have was called into being by a Motion in another place moved on 20th March by the Lord Privy Seal, instructing the Clerk of the Parliaments to collect, prepare and submit this return, which that functionary appears to have done on 26th March, when it was ordered to be printed. Whatever this document may be, and whatever value it may have, it is not either of the documents we were promised. Therefore, it is not either of the domuments on which the Government based their decision to include the Clause, linked with their decision to start with a House of 230 Members. These propositions are linked, and unless the Government simply proceeded on the basis of "think of a number" it is quite clear that there existed, and exists, some material relating to these matters which the Government are anxious not to show the House, and which was contained in the Government document—"our document", in the words of the Secretary of State—or in a document apparently so explosive that when it was entrusted to the Library of this House it was entrusted under confidential cover to be shown only to the research officers of the House and not, apparently, to us indiscreet Members.
This is a highly unsatisfactory situation in which we are called upon to discuss a highly unsatisfactory Clause. There are other thoroughly unsatisfactory features. The right hon. and learned Gentleman, who speaks with the authority on the law of one who recently held the high office of Solicitor-General, advises that the words in line 13 on page 4
… or of Parliamentary or other public business …
would be likely to be interpreted under the ejusdem generis rule, and, therefore, somewhat restrictively. It will be within your all-recalling memory, Mr. Gourlay, that on 19th March the Under-Secretary
of State for the Home Department advised the Committee in a precisely contrary sense. It is important that we should know what is the considered view of the Law Officers of the Crown. With great respect to the hon. Gentleman, for whom I have the greatest admiration, one will not take his opinion on law against that of a recent incumbent of the office of Solicitor-General.
I am sure that the right hon. Gentleman would not wish to misquote me. What I said on the matter, which was raised without any notice, was that I did not think that the ejusdem generis rule would apply. Then I said that I was sure that hon. Members would be advised by one of the Law Officers.
I am obliged to the hon. Gentleman for that assurance, and we shall wait to hear what the law officer concerned has to say. I am sure that the Committee, in the light of the opinion of the right hon. and learned Member for Ipswich, will undoubtedly wish, if any difference of view is expressed—and I do not necessarily expect that—to hear legal argument as to which of these high legal luminaries is right. I also hope that, in view of the undertaking now given by the Minister, there will at that stage be no curtailment of the debate.
That is not a matter for me, but my hon. and learned Friends on this side of the Committee include so many eminent practitioners in the law that it might be a little invidious if I were to suggest that one rather than the other should assist us in our deliberations. It is certainly my experience of my hon. and learned Friends in general that they are not backward in coming forward.
I want to come to the main issue of principle which the Clause raises and which I think you, Mr. Gourlay, said at an earlier stage is a matter which could and should be discussed on this Motion. This is the question whether there should be an attendance qualification at all in another place. I suggest, first of all, that it is an extremely demeaning provision to insert. One can imagine the problems for the occupant of the Chair if any legislation were brought forward by any Government to apply such a rule to this House. The problems of the Chair on this Bill would be of the utmost simplicity compared with those which would confront it on such a Measure.
The fact that all of us regard this as an unsuitable provision for application here should surely cause us to pause before applying it to another place. The idea that a legislature entrusted under this Bill not with many but with some powers, a body which, if we are to set it up at all in this form, should have respect and standing, should be subject to a mean little provision of this kind—"If you do not punch the clock sufficiently frequently, out you go"—is really astonishing for the Government to propose applying to the Upper House of the Parliament of the United Kingdom.
It ignores the real strength of another place at the moment, which is that a great many of its Members do not attend. I do not mean that in any ironic or offensive sense. But the fact is that, apart from a number of assiduous noble lords who conscientiously man the two Front Benches, the great majority of those who take part do so only occasionally. They go when there are subjects on which they feel able to contribute, and they then contribute to those debates. That is why the standard of debate, particularly in recent years—and I agree with the right hon. and learned Member for Ipswich here—since the Government of which I was a member created the system of life peerages, has been very high indeed, whether it be on economic or social or defence matters, or, as the right hon. and learned Gentleman said, the infinitely difficult subject of immigration.
My right hon. Friend the Member for Flint, West (Mr. Birch) is a much greater authority on the subject than I. I leave it to him to pursue that matter.
It is, of course, the strength of another place that the attendances are for most peers, apart from those on the two Front Benches, not regular. I call in aid of that proposition a rather surprising source, the Lord Privy Seal himself, in a speech an unfortunate passage in which will undoubtedly be a matter of further proceedings in this House. The noble Lord referred to the issue I am talking about in clear and effective terms. He said:
Furthermore, a noble Lord might be assiduous in his attendance on some occasions and then, for reasons of public duty or ill-health, or indeed because it is the custom of the House,"—
I ask the Committee to note that—
might not wish to attend except occasionally. Therefore, it is necessary to indicate that, whereas one has a high regard for those faithful Members of the House who do attend regularly, one should not attribute infidelity"—
perhaps this deals with the point put by my right hon. Friend the Member for Flint, West after all—
to those who do not attend regularly. This is part of the freedom and the value of your Lordships' House, and I think we can say with some certainty that we have no skeletons to conceal in our 19th century Gothic cupboards."—[OFFICIAL REPORT, House of Lords, 20th March, 1969; Vol. 300, c. 1024.]
There, clearly set out by the Leader of the House of Lords, appointed by the Government introducing this Bill, is a powerful exposition of the merits of the present House which this Clause proposes to destroy. It is a remarkable example of the tangle into which the Government have got themselves that this should be so.
The right hon. and learned Member for Ipswich referred to the effects on recruiting generally, and I began by saying that I agree with him. But there is a special point in respect of recruiting of cross-bench peers. Does anyone think that the great figures in another place—people of high achievements formerly in this House, for example, and now in high positions in universities or industry—are going to take the job on the terms that they have to punch the clock one in three or be expelled? Does anyone think that people with wide outside responsibilities, who are exactly what the Government want, or should want, for membership of the Upper House, will take the job on these terms? I do not want to quote examples, but people of such standing as Lord Butler, for example, are really not going to take the job on on such terms. Inevitably, the Government will weaken the upper House wholly unnnecessarily because of this wholly unnecessary provision.
Will my right hon. Friend bear in mind also that this clocking in process would be rejected with indignation even on minor local authorities? The only possible sanction against a member of a local authority who does not attend is that at the end of six months his membership is called into question if he has not been at all. Even then, his fellow members can overlook it if they think that he has good reason for absence. Why should people in another place be subjected to discipline which would be intolerable in a small local authority?
I am obliged to my hon. Friend. His intervention emphasises what I am saying—that this is a degrading provision. One would almost think that the purpose was to ensure that no self-respecting person accepts membership under the new terms. How is it going to work? What is the definition of attendance? I know that there is a working rule for the purpose of the modest allowance paid to those noble Lords who attend under the present system, but that is an ordinary working rule which is no doubt worked perfectly smoothly by the officials of the House. This provision is another matter altogether. It would be a statutory provision which would have to be interpreted, and, so far as I can see, there is no definition of attendance for this purpose in the Bill.
If the courts have to interpret "attendance" they will do so without any guidance from the Statute. What does it mean? Does it mean, as has been suggested, dropping in for a drink between the office and going home? Does it mean walking into the Chamber, bowing to the Lord Chancellor and walking out? Does it mean a minimum period? Does one have to clock out as well as clock in, and what is "attendance" for this purpose? The Government have not realised that in transmuting the attendance provision for a working rule in respect of a modest expenses payment into a statutory condition of continued membership they have altered the whole basis. If they really want to apply this condition they must put a proper definition on it. Otherwise this is a matter upon which the noble Lords themselves will be in some doubt, and upon which, undoubtedly, sooner or later, the courts will have to pronounce. That is not a satisfactory position in which to leave this Measure.
I know that it is not very rewarding to appeal to this Government on any issue in the Bill. I know that for the moment, at any rate, they are dead set on going through with this Committee stage and avoiding a Report stage at all costs. Whether the absence of the Home Secretary has any wider significance in this context it might be indelicate to speculate on. While the Home Secretary remains a member of the Government, if he does, and no one knows whether he will—including, I imagine, himself—it appears to be the policy to try to force this Bill through without amendment so as to avoid a Report stage. I wonder whether those Ministers now on the Treasury Bench cannot free themselves for a little from their trammells and sit back and look at this Clause in the context of the Bill. They want this Bill to be a success; they do not want the Chamber it sets up to be an enduring memory to their folly and arrogance. Can they really believe, after what they have heard so far and after what they will hear about this provision, a provision which they could cut out without altering the structure of the Bill at all, that by retaining this Clause they will get a satisfactory upper House?
If they do think this, then they are in a very small minority. Not only hon. Members on both sides of the House, but increasingly the Press and the country, informed public opinion, are deeply critical of the Bill, and rightly so. They have fastened on to this provision as one of its worst features. If Ministers want to make the Bill—not one that they could be proud of, because it is beyond that—one which they need not spend the rest of their lives explaining away, they will take their courage in their hands and say "cut out this provision, and at least give us a chance to recruit for our new upper House men of self-respect, quality and ability".
I begin by referring to some of the points raised by the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). It is the case that the Committee suffers under a number of hardships, particularly in dealing with this Clause, as with the rest of the Bill. I hope we will find some method in our procedure for properly discharging our duties in regard to this matter. First of all, there is the question of how we are to be able to refer to the other place and whether we are to proceed on the basis that the statement made in the other place, to which the right hon. Member for Wolverhampton, South-West (Mr. Powell) referred, should be tolerated by this House.
We must discover some way of dealing with this question, because otherwise it will influence the whole course of the debates subsequently and the atmosphere in which they continue. It will therefore influence the nature of the Bill leaving this House. It is the duty of the Committee to discover a way in which to deal with this problem, in some form or another. There is also the immediate question of these various documents, one of which we have and the others of which we have been told about. Like all those who have followed these debates very carefully, I was astonished at the nature of this document that has been presented.
I think that we were all expecting a document of a different character. We expected that partly from what had been said by my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon), who will no doubt later elaborate further on this matter, which he has made so particularly his own. It was through his introduction of this matter that the Committee was able to discuss it. I am sure that the Committee will await with great interest what he has to say.
We must pursue the question of the documents further and seek to get the other two if we can. We must also seek to get them in a form in which we can make full use of them—and of this document. This is a document which we can use fully if we have access to the other documents. At present we are debating with inadequate information and this only lengthens our proceedings. Questions asked may be superfluous if we had these other documents. There is, for example, the question of the average daily attendance emerging from the reports in the document. The average daily attendance for the Session 1967–8 was 225; for 1966–7, 241; 1965–6, 191; 1964–5, 194; 1963–4, 151. Why was it that the last figure, rather than the first figure, was selected by the Government as the basis of the average daily attendance? Why have the Government not selected 1967–8 as the period? We are entitled to an explanation why they should have preferred 151 as the basis on which they worked out their calculations.
I will not return to the elaborate arguments of the interlocking nature of the figures presented to us. The presentation of this document raises those figures once again, and poses the question why the Government fixed on this particular figure. This is the most extraordinary White Paper I have ever seen presented to the House. It does not have any explanation, it does not have any explanation of the figures. It does not say what the figures were used for. Even in matters of style it is a unique White Paper. The style is barren and austere, almost to the point of being staccato. We have none of the luxuriant cotton-wool effect, which is the essence of Whitehallese. This is a document of quite extraordinary austerity, and it has been presented solely because the House of Commons insisted on having it. I will listen on this aspect to my hon. Friend the Member for Ashton-under-Lyne, as I am sure the rest of the House will, with great care.
I come now to the question with which we are chiefly concerned and which was examined fully by the right hon. Gentleman. That is, whether there should be incorporated in a Bill such as this any restrictions or provisions about attendance. Amendments have been put down during debate on the Clause designed to tighten, to specify more clearly or to stiffen the provisions which their Lordships would have to observe if the Measure were passed. By putting down those Amendments we have tried to patch up the Bill and to ensure that the institution should be made more respectable, more reputable and more workable. But, the more we seek to do this, the more we will achieve the opposite result, because the difficulties of fixing an attendance level, or of moving it up or down, arise from the futility of the Measure. We are seeking to do impossible things. We are seeking to make an utterly subordinate second Chamber into an independent Chamber, and it is partly to achieve that result that the Government, in agreement with the Front Opposition bench and the leaders of their lordships' House, have agreed to this attendance provision which so many of us find degrading and mean, and I tend to agree with that view.
The Government, the Front Opposition Bench and the two Front Benches in the other place have agreed to this degrading provision precisely because they think it is the only way to make the subordinate House independent or the independent House subordinate, one or the other. It is one provision which they think it is necessary to incorporate to ensure that they shall get the figures right and that there shall be exactly that degree of subordination and independence which is necessary to make it work. This is a bad Bill and we are faced with having to decide whether we should incorporate this provision.
I have listened to all the debates on the Clause, and the more I listen the more I am persuaded that it is degrading and mean to incorporate such a Clause. I do not think that any House in the legislature should be composed of part-time Members. Members should be able to make a steady contribution to the House in either case. The more I look at them, the more I think that these provisions are unworkable and likely to lead to the most invidious results, if people could be persuaded to go to the other place.
The right hon. Member for Kingston-upon-Thames has made a most remarkable statement. He says that so degrading is this provision that no self-respecting person in future will be prepared to go to the other place under these terms. That is a strong statement, and I trust that we will not live to see that he is correct. I hope our arguments during Committee will be sufficiently powerful to change this state of affairs. That is not a statement lightly made by the right hon. Gentleman, and I am sure it is what he believes. Why should we not believe it? We are proposing to impose upon persons serving in the other place restrictions which we ourselves would never dream of accepting. There is no escape from that. Let us consider the matter from this point of view. In setting up another branch of the legislature and in considering the attendance provisions which the House collectively imposes upon individual Members surely we should take into account what happens in our own Chamber.
The question of the provisions which Members are entitled to impose collectively on individual Members of the House of Commons goes to the roots of British freedom; it goes to the roots of freedom in this House. We have certain arrangements which influence the attendance of Members. There is the operation of the Patronage Secretary and of the Whips. Although I quarrel with the operation of the Whips in many respects, I have never quarrelled with the idea of having Whips. It is a convenience for all Members of the House, and it would be extremely difficult to operate a Chamber of 600 Members, divided into political parties, without Whips to organise the arrangements whereby people know about the critical Divisions. I have never objected to the operations of the Whips in that sense, but I have objected to the illicit exercise of pressure by the Whips on how Members should vote, and that is a different matter.
Most of us accept that there should be some form of moral pressure or convenient arrangement whereby we accept the influence of the Whips on our attendance, and that is perfectly proper. We also accept, as we are bound to because we cannot avoid it, the collective pressure of the influence of other Members on whether we attend to our duties. I am not saying that attendance is a test of that. Many Members discharge their duties outside the Chamber as effectively as those who discharge them inside. One of the unique qualities of the British House of Commons is that Members can discharge their duties to it in about 600 different ways, and by a combination of different forms of service to the House.
We also have to accept the decision of our electors. They are perfectly entitled to discover how we vote, and great battles are fought to ensure that this should be discovered. They are entitled to discover how we speak. They can weigh those factors in the balance when deciding whether or not to send us back. We all accept those forms of collective pressure.
The history of the British House of Commons shows that at essential moments it has been the decision of a single Member to defy the whole House of Commons. Some of the liberties the House possesses were achieved by an individual Member, or perhaps four or five Members, defying almost the whole House of Commons, and in the year when we celebrate the anniversary of John Wilkes and the protests against the behaviour of the House of Commons, it would be foolish for us to say that the collective pressures of the House of Commons must always prevail against an individual determination to fight a particular cause. The freedom of people to know what happens in the House of Commons was decided by the determination of Wilkes to fight the case through to the end. He said that he would not be dictated to by the collective will of the House of Commons on the question of attendance in the House or on how he should behave himself in the House. The only people to whom he said he was answerable in the end were the people who sent him here, and eventually the people who sent him here continued to send him with such regularity that the House of Commons had to bow to his individual will, because it was wiser than the collective decision of the House of Commons. It is for these reasons among others that I say it is quite wrong for any self-respecting legislative assembly to insist that it can decide how many attendances a member shall have.
It is more difficult in the case of the second Chamber, because some of the collective pressures are to be removed from there. This is one of the reasons why proposals for attendance levels are put into the Bill. The collective pressure will be removed, however much the Whips think differently, because people cannot stay hipped once they are sent there. No doubt they will make their applications from here, but once they get up there they may behave like free men—who knows? Therefore, the collective pressure will be greatly weakened. Moreover, as they will have no constituents, there will be no collective pressure from them. The only collective pressure which will remain will be the common sense or general will or opinion of the other place, and that is a very diminished pressure compared with the pressures which operate here. No doubt because they thought the process had to be regularised in some way, the Government have inserted this attendance provision to provide a substitute for the collective pressures which operate here, but which will not operate there.
My conclusion in the matter is that the Government have not reached a satisfactory result. There will still be the degrading effects which the right hon. Gentleman mentioned. The first possibility is that people of substantial quality will not go there, and the second is that if they do go there they will not be governed by these attendance rules because they will be able to get around them. Certainly, if we are going to send hon. and right hon. Gentlemen from this House who know how to operate these flimsy regulations, they will find plenty of loopholes. There are those who have plenty of practice here. For example, if there should be a Lord Marples of Wallasey, he would find his way around such attendance provisions. Or Lord Grimond of the Shetlands and Orkneys, or even Lord Donnelly of Doublecross in the County of Pembroke-shire, would be able to find their way around such attendance provisions. Therefore, nobody should think that these provisions will be binding.
What they will be, if they are effective at all, is a constant source of irritation and humiliation, a constant reason for making people believe that the second Chamber which we have established after all this trouble is an extremely ramshackle affair which does not deserve to be a proper chamber at all. Alternatively, we shall set up such a rigorously defined Chamber that those in it will be determined to assert their rights and to push their claims. Indeed, in some respects that has been my fear all through. I think the second likelihood is greater. But, whichever it is, it is not a solution which this House should be prepared to tolerate.
Here I join most strongly in supporting what the right hon. Gentleman said about whether it is possible to amend this Bill. It would be a most extraordinary state of affairs if the understanding of the Government was that, solely to suit their convenience, they were going to push through a most complicated and difficult Measure without permitting any amendment. It would be a constitutional outrage if that were to occur. It would be most improper for the Government to come to the House and say, "We are going to set up this second Chamber in precisely the form which we will lay down at the beginning, whatever may be the arguments presented in the House of Commons." That is the implication if, in order to avoid a Report stage, the Government insist that no Amendments are to be accepted. This important constitutional Measure contains provisions which are novel, so far as this House is concerned, and novel, indeed, so far as any legislature in the world is concerned. I have always been in favour of wiping the second Chamber out of existence, because I have never been able to see how one could set up a satisfactory second Chamber which accorded with any democratic principles at all. But if we are to have such a Measure, it is utterly improper that the Government should seek to get it through without Amendment purely to suit their convenience.
I quite appreciate that, and I was solely seeking to support what the right hon. Gentleman had said, which I thought was strictly in order, because he had argued that it appeared that the Government were adopting the attitude that they would not agree to any Amendment and were resisting the powerful arguments that had been put, precisely because of a procedural decision of their own that they did not want to have a Report stage.
We should have the advice and view of the leaders of the Opposition. This is not at all a trivial matter. It is most discourteous to the right hon. Member for Wolverhampton, South-West, to the right hon. Member for Kingston-upon-Thames, and even to the hon. Member for Yeovil (Mr. Peyton), that we should be told there is to be no comment on these matters. There is to be no comment about a process which is degrading. It appears from what we have seen so far that this Bill is to pass through its Committee stage, and we are not going to have any view stated from the opposite Front Bench.
I have tried to think of a reason for it, because it is a phenomenon that I have never seen before. The only reason which seems to explain it is that the Opposition Front Bench has come to the conclusion that the passage of this Bill is an embarrassment to the Government anyhow—"The Government are in trouble with their timetable, so why not sit back and let them stew in their own juice?" That seems the most likely explanation and I can understand it on general party grounds. My usual view is that all is fair in love, war and Parliamentary proceedings. Therefore, I am not making a great high moral denunciation of it. But the Opposition leaders must not think that they can escape from their obligations over this.
If this Bill goes through in its present form, with these degrading implications in it—and I use the words of the right hon. Member for Kingston-upon-Thames—it will not only be the Government who will be responsible. The Opposition Front Bench will be responsible. They will have shown equal responsibility with the Government. They cannot do a Pontius Pilate act over a major constitutional Measure of this kind.
If it goes through unchanged by the Government, all the attacks and criticisms powerfully presented from both sides will be washed aside, and the responsibility will rest as much upon the Leader of the Opposition, the right hon. Member for Barnet (Mr. Maudling), the right hon. Member for Enfield, West (Mr. Kin Macleod) and other members of the Opposition Front Bench. They will have to share the full responsibility for it. It will be no good their saying to the 1922 Committee, "We need not worry about this Bill. It will be awkward for the Government, so we suggest that we let it go ahead."
I invite the right hon. and learned Member for Epsom (Sir P. Rawlinson) to report to his companions that many hon. Members think that it would be a courtesy to the House if his right hon. Friends came here and told us what they think about detailed provisions in the Bill and, in particular—I know that it is a great deal to ask—to tell us what they think about a provision in the Bill which some eminent members of their party have described as "degrading". If they have nothing to say about it, do not let them complain afterwards about the Bill. They are as much parties to the way in which the Bill is going through as the Government. By their silence, they become accomplices more deeply.
This is a serious matter. I say that it is their duty, if they are to sit on the Opposition Front Bench, to tell us what is their view about the Measure now passing through this House.
I do not think that the hon. Gentleman has appreciated the situation. I suggested first that the Government's desire was to get this Bill through without Amendment, for their own reasons. I was saying that, if they are doing that, it reinforces an argument which is already in existence for demanding that the Opposition Front Bench should state their views about it. It is no good the hon. Gentlemen saying that they cannot express their views. They can give us their views, if they have any. I repeat that I am not attempting to taunt anyone into saying something which they do not want to say. However, I believe that all hon. Members have responsibilities about this Bill. It is an extremely important Measure because, in my judgment, it will alter the nature of the British constitution for many years to come and perhaps for decades. For leaders of the Conservative Party to say that they will abdicate their responsibilities on such an important piece of legislation is a matter upon which we are entitled to remark.
Hon. Members on this side who have been resisting this Measure are bitterly opposed to it. We have given warning after warning that we would fight it with all our power. I hope that the Government are now beginning to learn that we have quite a lot.
On a point of order. Mr. Gourlay. I think that I am right in saying that, when your predecessor was in the Chair, a very important point of order was raised. My right hon. and learned Friend the Member for Ipswich (Sir Dingle Foot) raised it in the first instance. It was to move to report Progress and ask leave to sit again. The Chairman said that he was not prepared to accept it at that time——
Order. I happened to be in the Chamber when my predecessor was in the Chair, and he did not use those words. In any case, I am unable to accept any Motion at this stage.
Further to that point of order, Mr. Gourlay. I thought that you might have heard what I proposed to say, because this question was raised with regard to a possible fresh approach——
Mr. Gourlay, I am grateful to you for calling me. I have failed to get called in this debate for the last three days and that, for a Privy Councillor, is a hideously lacerating experience. It must have made your heart bleed. That stain below your breast pocket may be the result.
I agree entirely with the hon. Member for Ebbw Vale (Mr. Michael Foot). It is scandalous to try to force through a Bill like this without amendment. However, we have not seen the end of it. I think we shall get a Report stage, if we ever get there.
The Committee is beginning to browse gently on the lower foothills of the Bill. The higher foothills are to come. Some weeks or months hence we may see the north face of the precipice that we have to scale. We have hardly started yet, but there are certain points that I want to make on this Clause which I think are very important.
The first point concerns the documents. I took no part in the argument about them and, therefore, I was not entirely apprised of their importance and, particularly, the points made by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter).
When Mr. Speaker gave his Ruling saying that the Lords would be called upon to produce the document, there was some lifting of my heart. But it was a euphoric day. It was the day of the crowning mercy of Anguilla. People were dancing in the streets. Total strangers were caressing each other in doorways, and even the Anglican Bishop of South-wark smelt sweeter. But I was wrong.
The desperate feature of this Clause is that we are doing something that no other country in the world would be so silly as to attempt. Its intention is to set up a paid second Chamber without the faintest idea how many people will have to be paid. It makes me tremble. Many sound reasons have been given for thinking that it will be far larger than this blotting paper figure thought up by the Government. I am concerned that it should not be too large.
I believe that what will attract people to the second Chamber is not only the pay but the fact of being called a lord. I referred to this point on Second Reading. I agree with my right hon. Friend the Member for Kingston-upon-Thames when he says that these paid members of the other place having to clock in are basically in a degrading position, and their degradation should therefore be public. They should be known not as lords but as paid nominees. The Earl of Longford, for example, will be "Paid nominee Pakenham (H.W.)", showing the man who nominated him. More euphoniously than Lord Longford——
Order. I am sorry to interrupt the right hon. Gentleman in the full flood of his oratory, but there is nothing about the payment of peers in the Clause.
May I remind the Committee of the rules? They are that those parts of the Clause which have not been covered by Amendments are open to debate on the Question, That the Clause stand part of the Bill. Hon. Members must assist the Chair in ensuring that the rules of order are kept.
I am endeavouring to assist the Chair. The payment is one of the factors. I was saying that another factor affecting the number of people who may attend is their nomenclature.
Still more euphoniously than Lord Longford, my noble Friend, Lord Carrington, would become "Paid nominee Smith (E.H.)", being nominated by my right hon. Friend the Leader of the Opposition. The preux chevalier of the cross benches would be Lord Boothby. He would then become "Paid nominee D.K."—for "Don't Know"—"Boothby (H.W.)". If this were done, one might achieve a dramatic sifting out of the numbers in another place. This ought to be considered.
I am not suggesting the abolition of titles. Some great act of state must be rewarded. We all know who the future Earl of Anguilla and Viscount St. Kitts will be. That just reward must not be forgone. People in this degrading status should be so labelled that one can know what sort of people they are.
If I may be a little serious, I want to oppose the Question, That the Clause stand part of the Bill, because the Clause adds confusion upon confusion. The Bill is in any case a bad Bill, and if the Clause remains the Bill will be even worse.
It is important for the Committee to look seriously at the Bill's intentions, even if we accept the basis upon which the Government and the Opposition originally made their famous, or infamous, agreement. We were told in the White Paper "House of Lords Reform" that the introduction of the Bill was directed towards prompting the more efficient working of Parliament as a whole. The whole idea of the Bill is to increase the efficiency of Parliament; there were a number of other reasons, but this was the central reason which was given for the Bill.
Leaving aside the question whether the overall method is right or wrong and concentrating upon the matter of efficiency, I submit that the Clause detracts from the objects which were set out in the White Paper and which are now contained in the Bill. The Clause will not increase efficiency but, on the contrary, will leave the situation in a reformed other place precisely as it is at the moment.
Paragraph 45 of the White Paper, on page 18, says:
It would be a condition of the right to exercise a vote that a peer should attend not less than one-third of sittings of the House in each session (attendance at committees would count for this purpose as attending the House).
The same point is made in the Bill itself in Clause 4(2):
The minimum attendance requirement in any Session is attendance at the sittings of the House (or sittings of committees of the House) …
It is, in fact, one-third.
We have heard that attendance at the House at present is approximately 230 at one-third of the sittings. The proposals in the Clause will continue the existing situation within the new reformed House of Lords. If the Clause is accepted, the position in regard to the attendance and the period of attendance of members of the other place will be precisely as it is at the moment.
Why is the Clause considered essential in a Bill which seeks to reform the House of Lords but which leaves the situation precisely the same? I believe that the Clause is unnecessary and irrelevant to the Bill.
My right hon. Friend in his statement to the House referred to the paper which we all wanted as being "long and complicated". I do not know whether it is long, but it is certainly not complicated. I cannot believe that it is the same paper to which my right hon. Friend was referring. Nevertheless, it is the paper which we have in front of us, and it gives the individual attendance of every Member of the other place. It bears out the point which I was making. The period covered by the paper is five Sessions of Parliament.
The figures prove very little. They prove, first, that a minority of peers are very good and regular attenders of the House of Lords. Second, they prove that another minority—a fairly large minority—of the other place rarely attend at all. The third thing they prove is that the bulk of peers put in an attendance more frequently but nevertheless cannot be considered to be regular attenders of the other place.
That is all the document proves. It adds nothing to the knowledge which we already had. I cannot understand why there should be any reason for the document not to be in our hands. There may be another document about which perhaps there are very good reasons for our not seeing.
The House of Lords Attendance Record which gives all the details bears out what is said in paragraph 11, page 4, of the White Paper:
Of the present potential membership of over 1,000, between 350 and 400 did not attend at all during the session for 1967–68 up to 1st August: most of them were either on leave of absence or had not received writs of summons. Of the 675 or so who did attend, rather less than 300 attended reasonably often (more than 33⅓ per cent. of the sittings of the House or of its committees); rather more than 200 attended from time to time (between 5 per cent. and 33⅓ per cent. of the sittings); and about 175 attended rarely (5 per cent. or less of the sittings). Of the 320 or so created peers about 290 attended the House; of these, about 150 attended reasonably often, about 100 attended from time to time and about 40 attended rarely. The average daily attendance for 1967–68 up to 1st August was about 230: this figure compares with 140 in 1963 and 92 in 1955.
There is the magic figure of 230. All the way through we have wondered where it came from. It is clearly there.
The Clause does not seek to change that. In fact, it seeks to make it part of the law of the land. It is like the position in industry where there is what is called custom and practice. This operates throughout industry the whole time. One goes to see the manager and argues about custom and practice, and it is accepted. The problem always arises when somebody seeks to write custom and practice into the rules to make it obligatory. This is precisely what we are doing. We have the custom and practice that about 230 peers attend the House of Lords for a third of the time and it is now to be written into our legislation. I do not think that is a very sensible thing to do. Therefore, I think we should chuck out the Clause.
Both the White Paper and the Lords attendance paper lead back to the fact that we have about 230 peers attending for a third of the sittings. That is precisely what the Clause is proposing. It does not in any way improve the efficiency of the House of Lords or of Parliament as a whole. Yet this is one of the basic reasons for the Bill.
I now come to the second reason why I oppose the Clause. Left as it is, the Clause can lead to tremendous confusion, especially subsection (2)(b). I feel that this should be clearly spelt out, so I will read it:
… in the case of a peer who, at any time during the Session, is absent with the leave of the House, on account of ill-health or of Parliamentary or other public business, or is diqualified to sit in the House, any days when he is so absent or disqualified.
I believe that this lays the basis for a great deal of confusion, especially the words "or other public business".
I agree with my right hon. and learned Friend the Member for Ipswich (Sir Dingle Foot). Consider the case of a peer who is a member of a local authority. Is local authority attendance public business?
My only comment on that point is that I doubt whether it is possible to find any hon. Members who really support the Bill. If there are any, they certainly hide away in places that I cannot find. I am also disappointed that on this occasion what I say is not heating up the atmosphere.
The question of "other public business" is very important indeed. A member of the other place might be a member of a local authority. If the Clause is left as it stands, I can imagine the arguments that may develop about what precisely is "public business". Is attendance at a local authority meeting "public business"? That is not defined in the Clause. I have looked carefully to see whether it is defined in any other part of the Bill, but I cannot find any definition. Nowhere does it say precisely what "public business" is. Therefore, there could be enormous arguments about definition arising out of the Clause.
A member of the other place might feel that in a sense the opening of a bazaar was public business. I submit that that is ridiculous. But it certainly could be considered Parliamentary business, because as Parliamentarians we all get invitations to open bazaars. I am sure we are not invited because people like our faces—[HON. MEMBERS: "Oh."] I very much doubt it. I believe that a Member of Parliament is invited to these functions because he is an M.P., not necessarily because he is Mr. So-and-so. Therefore, it is Parliamentary business, and the Clause refers to
Parliamentary or other public business".
There could be a long argument because Lord So-and-so might say, "But I feel that opening that bazaar is part of my Parliamentary or public business." It might be said, "But it is not," and he will say, "But it is." There will then be a long argument about what is public business.
It is absolutely absurd to have a Clause like this in the Bill when "public business" is not defined. It leaves the Bill suspended in mid-air, and that is not very sensible.
We must also consider attendance on the board of a nationalised industry in relation to "public business". Is that public business? Again it is not determined in the Clause. What about attendance at, say, the Council of Europe or the Western European Union? This could legitimately be argued as Parliamentary business.
This is the whole point. The member of the other place concerned might think that it was and could probably put up a very good case. It would certainly be part of his public duty. Many difficulties would arise.
Consider again the member of the other place who was on a local authority. Obviously if there is to be argument about attendance at a local authority meeting, which could be during the day if it is a big authority or during the evening if it is a small authority, it is possible that the two right hon. Members who make the nominations would automatically eliminate anybody on a local authority. Is that right? Is it right that somebody with vast knowledge and experience of local authority work, which he has assimilated over many years, should not be nominated because it could lead to arguments whether attendance at local authority meetings was public business on the basis of his attendance record? We have to pose the question to realise how unfair and stupid it is.
Taking it a stage further, there is the question whether we should get proper regional representation, because part of regional representation, surely, must be that people will be away in their regions on public business. We could then have a tremendous argument whether a visit to a region at a particular moment was public business or not and whether a peer should be marked down as having attended another place when he was not there. One sees the immense difficulties that could arise as a result of this provision.
There may be other difficulties. Some peers who may be director on boards not necessarily connected with the Government could possibly argue that they were on public business. The whole thing is open to great argument and vast difficulty, and it is pretty clear therefore, even using the basis of the Government's arguments about efficiency, that this in no way helps the efficiency of Parliament and its operations.
Let us come to another point, the question of ill-health. We should examine this carefully because the Clause is not clear. Suppose a peer is suffering from an ordinary cold or perhaps three-day influenza, something a little more than a simple cold. What should he do? Should he telephone and say, "I have a cold and shall not be coming in today"?
The position of the crossbencher would be difficult because he is not on either side. But suppose it is established that there is somebody whom a peer can telephone. Does he telephone and say, "I am ill and am not coming in"? Suppose the man at the other end is suspicious and thinks the peer is going to have a day off for a fiddle round the country, or to go horse racing. What does the peer then have to do? Must he get his local doctor to supply him with a certificate and send it in? This is perhaps what a factory worker does. I am not saying that he should but this is what he does. But we do not do it. If we are ill do we have to send a certificate to the Government Whip or the Opposition Whip to say we are ill? No, we telephone and say that we are not coming in. But here we are saying that peers must do something of that kind to establish that there is ill health, because if we lay it down clearly in written words in legislation then obviously there is some obligation on the peer to establish whether or not he is ill. We should not have this kind of rubbish in legislation going through this House.
Is not the position more difficult than that? Clearly, the Clause says that even if the peer is ill his absence must be with the leave of the House. It is as though an hon. Member in this House had not merely to satisfy his Whip, which in all conscience may be hard enough, but should also get a Resolution of the House to say he has a cold and can stay away.
I agree, and this leads me to my next point, because if we are to suggest that members of another place are to be subjected to that treatment I do not believe there are going to be any volunteers for the job. The other week I was arguing that on the basis of what one might be paid and so on, one should be arguing for the Bill so as to go to another place as quickly as possible to get a safe job. But I do not believe that on this basis anybody will volunteer. That is another reason why this Clause should be eliminated.
There is a further point, that if this peer is in the seat at £2,000 a year and his attendance record depends upon his possibly telling an untruth, even a person who might be reasonably truthful might be tempted to stretch a point when he realises that he will lose that £2,000 a year for the rest of that Parliament if his attendances fall below the level of one-third of the sittings.
I hate to interrupt my hon. Friend because if I do so I may inadvertently give him ammunition to enable him to continue longer than he would wish, but he has mentioned that a peer may perhaps not be sick but may want to go horse racing. Is he aware that there are about half a dozen peers in the other place who can legally and legitimately claim under this Clause that they are going horse racing on Government business? That is quite genuine. Does that assist my hon. Friend to make a few further remarks.
It may not assist me but it would certainly assist those members in another place who may argue that they are absent on legitimate Government business. At the same time, it would not assist those who could not make that claim; and that shows the tremendous unfairness there could be between one peer and another. I do not think we should accept this provision at all.
I come back to the point of Parliamentary business. I have given the example of the argument that could arise about the opening of a church fete or a bazaar, that it could be argued that that was Parliamentary business. I would argue that if one is invited to open a church bazaar as a Member of Parliament, in a sense, that is Parliamentary business. If a member of another place was invited as a voting peer to open a bazaar or judge a beauty contest, I suppose he could quite legitimately argue that that was Parliamentary business. The whole position opens itself up. I have looked at the Bill and the White Paper to see whether public business is defined. Clause 18 ought to cover just about every supplementary point and I thought I might find some clue there, but it does not help. Hon. Members who read right through Clause 18 will find that it does not help at all. It gives no definition. Therefore, we should not agree to this Clause, because its meaning is ill defined. No definition of public business is given. In any case, it is destructive, even from the Government's point of view, of the Bill itself.
The Clause raises one or two other problems and possibly unfair practices which ought to be considered.
Before my hon. Friend moves on to other points, which I am sure will be most important to the Committee, is he saying, in effect, that the result of the Bill may well be that non-voting peers would be opening bazaars and that voting peers would not be able to do so? Could he just enlarge a little on the problems there might be in relation to the three-day waiting period for unemployment benefit in this instance?
I am not really saying nonvoting peers would be able to open bazaars and voting peers would not. I am only saying that if the voting peer claimed that doing that was Parliamentary business in order that he might get paid—if there was some payment, as we know there will be at the appropriate time—that would cause a great deal of argument. That is the point I am trying to make.
Perhaps my hon. Friend will let me develop this point a little further.
I want now to discuss the phrase in subsection (2),
other than days on which it meets for judicial business only.
Judicial business is defined in Clause 18 as:
proceedings falling within section 5 of the Appellate Jurisdiction Act 1876 as extended by any subsequent enactment.
Section 5 of that Act says:
An appeal shall not be heard and determined by the House of Lords unless there are present at such hearing and determination not less than three of the following persons, in this Act designated Lords of Appeal; that is to say,
I do not know why that phrase should be used—
(1) The Lord Chancellor of Great Britain for the time being;"—
(2) The Lords of Appeal in Ordinary to be appointed as in the Act mentioned; and
(3) Such Peers of Parliament as are for the time being holding or have held any of the offices in this Act described as high judicial offices.
These peers are naturally enough given voting rights.
I hope that hon. Members will have grasped the point that I am getting at. Are these law lords to be placed in a worse position than other peers? For example, will they have to attend one-third of the ordinary sittings, which have nothing to do with the judicial functions of the other place, and then have to attend to their judicial business in order to be voting peers? There may be a simple answer to this. If there is, I hope that the Minister will tell us what it is.
I know that the next Clause says that such peers are automatically voting peers, but this is a little confusing, and we have the right to ask what exactly will be the position of these peers. If I were a law lord—which I never shall be—I should want to know my position, and how I stood in relation to my fellow peers. Will these peers be expected to attend one-third of the ordinary sittings in addition to doing their judicial work?
The hon. Gentleman is talking about judicial offices and the holders of those appointments. Will he direct his powerful mind to this position. In the past—and I dare say this will happen in the future—there have been peers who, although not law lords, have had permanent jobs of another sort, as puisne judges, as recorders in the great cities, or something of that sort. They are permanently away on what must be regarded as public business. That being so, they will be allowed to retain their voting rights although they are never in the other Chamber. Does not that strike the hon. Gentleman as rather a paradox?
Order. I think we are getting on to rather dangerous ground, because this matter is covered fairly thoroughly in Clause 5(1)(b) and it involves a lot of reference to Clause 18. I am prepared to allow some reference to that because without it we cannot adequately discuss this Clause, but I do not think we should get too much involved with the law lords at this stage, having regard to the fact that we shall be discussing them later.
On a point of order. I was discussing those peers who were not law lords. The law lords are provided for in Clause 5(1). I am discussing lords who carry out duties as lower judges, puisne judges, recorders, and so on, but who are not law lords. They are permanently away on other public business, and therefore are not required to attend the other place, but they nevertheless retain their voting rights.
I am obliged to the hon. and learned Gentleman. I think that there is substance in what he has said, and I shall therefore allow some discussion on that matter.
The hon. and learned Member for Darwen (Mr. Fletcher-Cooke) has emphasised and reinforced my argument. There is humour even in tragedy, and we are in a tragic position with regard to the Bill. If we are to have this provision, a person in this position must know where he stands and precisely what his position is.
My last objection—I know that others wish to speak, and I have no intention of preventing them from doing so—relates to subsection (5), which I believe contains an extremely arbitrary decision. Apart from anything else, it offends against the reality of existence. Whether we like it or not, each day ends at midnight. From one minute after that we are in another day, but apparently the Lords are not to be. The subsection says:
For the purposes of this section attendance on a day on which the House sits until after midnight shall be treated as attendance on one day only.
How long is a day? If the sitting lasts beyond midnight, apparently the Lords will still be in the first day. This is an absolute absurdity. I have never in my life heard anything like it, but this is to be included in the Bill as a sensible proposition.
If it is not within his recollection, perhaps it is within the hon. Gentleman's knowledge of history, that when the calendar was changed Parliament abolished 11 whole days. So it can be done.
I am not denying that Parliament can do anything it likes. To abolish 11 days is all right, but to have it written into the Bill that midnight does not end the day is an absurdity. If that were a permanent feature of our legislation, we should be the laughing stock of the world. Apart from anything else, we cannot accept the Clause on that basis alone. This is unreal and unkind to the Members of the other place. It is also intolerant—
Is my hon. Friend saying that we should have half-time members of the other House on full-time pay and also that, under the Bill—I am very grateful for his lucid explanation of it—we should have double-time Members on half-pay? I am sure that, as a trade unionist, he would be very much against this. I wonder whether he could solve the problem.
My solution would be double-time members for half-time work, but that solution is not in the Bill.
This may seem a great joke, but if I were a member of the other place and this House told me—we know that they will have a chance to debate the Bill—that my day did not finish at midnight, I should think that it was an infernal cheek. Whether one agrees with the idea of nominated peers or not, one cannot accept that. I would chuck the Bill out on that basis alone. We would not tolerate it for five minutes, and they should not. They are not second-class citizens, and we should not make provision as if they were.
Let the House picture the situation. It is two or three minutes to midnight, after which their lordships will have to finish the business, and still be in the same day. Naturally they want to finish before midnight so that they can go home and come back and get their attendance in. They are debating whether we should go to war, and their vote could be very important in influencing us here. At two minutes to midnight the decisive speech which will mean peace is about to be made, but the fellow says, "I am not going to make it, because I want my next day's pay." So he does not make it and we go to war.
We could be in this position. The Bill to legalise euthanasia was a classic example. I am glad that the Lords threw that out, but if the decisive speech to sway the House against the Bill was not made just before midnight because of the circumstances that I have described, we should be left with a Bill that we did not want. This is a fantastic situation.
Because of all these contradictions, the Clause is so absurd, ridiculous and contrary even to the Government's own ideas and so sins even against the White Paper's objectives that it is our duty to throw it out.
My first thought on rising to take part in such an auspicious debate must be for absent friends. There are supporters of the Bill who vote for it but who are never present to hear the discussions. One can only imagine that, so diminished is their confidence in the rightness of their attitudes, that they dare not expose themselves to the risks of hearing the arguments. One must also number among absent friends the Secretary of State for Social Services, who, we understood at one time, was sponsoring this Measure. It is odd that he should show so little interest and take such a detached view during our protracted debates.
My right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson), who is on the Opposition Front Bench, is occupying an uncomfortable and invidious position. I hope that he can assure his right hon. Friends of the paucity of argument adduced by those who spoke in favour of the Bill. Every now and then, some unfortunate spokesman has to rise from the Government Front Bench and express a view nominally in favour of this wretched Measure. If my right hon. Friend were to communicate to his colleagues the wretchedness of the arguments and the small number of advocates——
I am not sure how we should accept a word with such a military significance injected into Parliamentary procedures. It could often lead to disarray, particularly in the ranks on the Government benches, when, of course, they are occupied.
Perhaps I may finish that sentence. If my right hon. and learned Friend will communicate these interesting facts to his colleagues, I am sure that they will readily appreciate that they need feel no commitment towards continuing even a neutrality towards so wretched a Measure. I share the doubts that have been expressed about the way in which it will be decided that a peer should lose his voting rights through non-attendance. I do not know how this ignominous progress will be clothed with dignity. Who will make and announce the decision? Who will adjudicate in the event of a dispute?
Much has been said about the self-respect which peers can hope to enjoy. For example, my right hon. Friend the Member for Flint, West (Mr. Birch) suggested that peers should carry the mark of their nominator. I suppose that those who carry the brand mark "Harold Wilson" will be somewhat discouraged in that they will not feel that they are carrying a great honour. One wonders how the ignominious and humiliated second Chamber will accord with the lofty views and aims of the Prime Minister. I believe that the right hon. Gentleman merely wants a well-disciplined, dull House of Lords comprised of ancient and docile former Members of this Chamber who, having exhausted their silent usefulness here, can be pushed along the corridor on trolleys and enjoy, as animated bodies, the municifence which the Prime Minister thrust upon them. I dislike the Measure because it is indicative of the contempt which the Government have for the institution of Parliament. The new House of Lords will merely be a docile shadow of the House of Commons.
If a peer is to be excused from attendance on the ground of ill-health, somebody must go through the process of certifying that fact. It may be inconvenient for a peer to obtain the services of a general practitioner or he may not be in this country when he became ill. Who will prove that a peer is unable, through ill-health, to attend?
The Bill refers to
… Parliamentary or other public business".
The right hon. and learned Member for Ipswich (Sir Dingle Foot), who only lately left the high office of Solicitor-General, made it clear that in his view the ejusdem generis rule would have the effect of limiting the word "public" to something connected with Parliamentary or State business.
I did not go that far. The hon. Gentleman put the point to me and I agreed that it might be held that the words "other business" would be read as being ejusdem generis with Parliamentary business. I did not go as far as saying that it would be so held.
I do not know if my hon. Friend realises that the Under-Secretary expressed the view when we last debated this matter that the ejusdem generis rule did not apply. In a brief intervention he forecast that we would be told by a Law Officer what the true position would be. I hope that such a declaration will be made by the Solicitor-General.
I hope that my right hon. Friend will have an opportunity to give the Committee the benefit of his wisdom on this matter.
I was about to comment on the division of opinion that exists on this important issue between the right hon. and learned Member for Ipswich and the Under-Secretary, for that unfortunate Minister said:
I do not think that the ejusdem generis rule would operate of necessity, or that 'other' need of necessity mean business analogous to Parliamentary business. However, if there is a debate on the Question, That the Clause stand part of the Bill, it might be better for hon. Members then to be advised by one of the Law Officers. I think that it is obvious that it is not governed by the word 'other' in that respect."—[OFFICIAL REPORT, 19th March, 1969; Vol. 780, c. 448.]
I hope that these doubts will be cleared up by an authoritative reply from the so far silent Solicitor-General.
I should be very interested to know whether the courts have ever in modern times been called upon to say what was meant by "Parliamentary business". If they have defined the phrase and if it is capable of definition, what is meant by the words "or other public business"? Does the ejusdem generis rule have the effect of limiting the scope of the words "or other public business", or does it not? If it does not, the words "or other public business" mean a veritably huge field of human activity. It would be possible to argue that anyone who was not conducting himself in the most secret and covert fashion was engaged in some kind of public activity. I hope that the Solicitor-General will be able to settle our doubts on that.
There is the extraordinary subsection (3).
Before the hon. Member leaves subsection (2) will he say whether he has any views on,
or is disqualified to sit in the House.
Does it not seem awfully odd that we should make provision that a peer who is in gaol for felony or is a certified lunatic should remain a voting peer?
The peer would not require leave of the House if he were a lunatic. As a lunatic he would be disqualified to sit in the House. Therefore, this Bill provides that he could be made a voting peer and would not require leave of absence. That seems odd.
Before my hon. Friend the Member for Yeovil (Mr. Peyton) so readily accepts the submission of the hon. and learned Member for Northampton (Mr. Paget), would he consider the case of a voting peer who later in the course of a Session becomes disqualified, for example by insanity? If this provision is not in the Clause it is not to be apprehended that the peer might be automatically disqualified as the wrong faction would then become applicable?
My right hon. Friend, as usual, has put a beam of light on a very dark place. I do not know whether he can claim that his x-ray glance at one particular piece of this Bill helps at all because it seems only to show that the Bill is full of dark places. Of course I realise that my right hon. Friend is not the most prominent supporter of the Bill. Nevertheless, every intervention made by so distinguished a debater can only serve to show what must be known to everyone except the Government, that this Bill is a lost cause and that there is no possibility of making sense of any of it.
Before my hon. Friend leaves dark places, will he deal with the problem of drink? Under the Bill it would be possible for someone to obtain leave of absence for a hangover?
I find myself in great difficulty in answering my hon. Friend on that subject. Knowing that he has very strong views on the subject of drink, which I believe he eschews altogether and wishes to influence large numbers to do the same, I would hesitate to carry on the argument with him at length. I hope that he will have the opportunity during this debate to put forward his view, because I recognise that it is one he holds to be very important. I am sure that many of his constituents would wish that he should have the opportunity to dilate upon it in this Committee.
Desiring to make progress with my speech, perhaps I may now come to the
next subsection of this Clause. We are told:
Leave of absence for the purposes of paragraph (b) of subsection (2) of this section may be given either before, during or after the period for which it is given, and either before or after the end of the Session to which it relates.
How soon is it permissible for a peer to request leave of absence? How long after the period is it permissible for the peer to ask for the same leave? The words,
either before or after the end of the Session to which it relates
give a latitude which I do not think has been accorded in any other rule.
I agree with my hon. Friends who have said that it will be a most ill-considered and humiliating institution in which it will be very unlikely that many people of distinction will find it possible or would be willing to take part. This rule must surely mean that leave will automatically be given whenever it is asked for and for however long. If this Clause is to mean anything there must be some kind of internal statute of limitations to make absolutely clear that observation of this rule will not be very loose indeed.
The Solicitor-General has not looked as if he is thrilled or alive with interest during the debate on the Motion, That the Clause stand part of the Bill. He has from time to time injected a certain amount of light and even merriment in our discussions earlier. During this debate we on this side of the Committee have had the advantage which hon. Members opposite have not had of following the right hon. and learned Gentleman's facial expressions and reactions to the arguments which have been deployed. I hope I do not do him an injustice, but I think that at no time has he evinced interest in the arguments for or against the Bill. I can pardon him for that, but he has shown no enthusiasm for his cause.
Probably it is very unfair to pick out the right hon. and learned Gentleman, but he is at present the only occupant of the Government Front Bench. I hope that the hon. Member for West Ham, North (Mr. Arthur Lewis), whose intervention I very much welcome, does not think I am being unfair to the right hon. and learned Gentleman. That is not my intention; I intended to express sympathy for him. The Solicitor-General finds himself in complete solitude with the ignominous rôle of defending something in which he does not believe and which he would find it difficult to defend even with all the eloquence and wisdom he can command.
Has my hon. Friend observed that the Home Secretary, whose facial expressions we should like to follow, has not been present throughout, although he has been seen round the building? It would seem most desirable that he should put in an appearance here, if only to give some support to his hon. and learned Friend the Solicitor-General.
On a point of order. With respect, Mr. Irving, surely it is in accordance with precedent for a complaint to be made when a Minister in charge of a Bill conspicuously absents himself from debate on it? That is frequently done. I hope that the Committee is not to understand your Ruling as preventing such a comment.
There is nothing I wish so much as your good opinion, Mr. Irving, and I would not dream of trespassing on your indulgence. I venture with great respect to point out that the hon. Member for Ebbw Vale (Mr. Michael Foot), whose brakes were not working particularly well this afternoon, went on at great length in a vehement attack on my right hon. and hon. Friends on the Front Bench. If I just allow myself the barest expression of good will towards, and sympathy with, the Solicitor-General in the invidious, horrid, uncomfortable and odious position in which he finds himself, I am only giving way to the urges of good nature.
My hon. and learned Friend tempted me further by mention of the Home Secretary. Naturally, this is not a matter on which I would wish to dwell this afternoon, because at all times I wish to avoid the tender areas of controversy, and I do not wish to give any offence to those who feel unduly nervous in such matters.
The hon. Gentleman touched on absence of peers on public duty. What about the peer who may have interests in one of the Commonwealth countries and carries out public duties there? Would he be allowed to get leave of absence to look after, say, his hotel in one of his Caribbean estates, or something like that? [Interruption.]
You will have noted, Mr. Irving, as will the whole Committee, the fertility with which ideas are springing from the minds of hon. Members who are normally the most loyal supporters of the Government, not that the Government do anything to deserve it.
I cannot find words to express my indebtedness to the hon. Gentleman, who will now be the object of envy of every member of the Committee because of the intense enjoyment of his afternoon. No wonder he is looking so pleased with himself now. To be in such company, examining such things as birds, must be an almost heavenly experience. I congratulate the hon. Gentleman.
I do not wish to detain the Committee in dealing with the points of detail raised by the other hon. Members who interrupted me so helpfully.
They were raising points that are highly germane to the Clause. If it is your wish, Mr. Irving, that should deal in detail with their interventions, I will gladly bow to your request, but in order to cut short my remarks I intended not to dwell at length on the very serious points they raised, which were concerned with the absence of peers. I hope that that may be helpful, but that the Committee will later have the benefit of their wisdom.
Before I sit down, I should like to make one or two comments on the document entitled "Lords' Attendances". Inside the first page, we are told that the cost of printing and publishing it is estimated by H.M. Stationery Office at £285. I imagine that this is intended as a rebuke to an inquisitive House of Commons. The document was offered to us only after a great deal of argument and after the Government had shown an almost unbelievable obstinacy in the face of what seemed to me a very reasonable request. Is it the first document which have ever come from the House of Lords at the request of the House of Commons, presented by a peer?
Before I close I should like just to repeat the expression of the feeling of disappointment already made by some right hon. and hon. Friends that we should have had so much difficulty in getting the document from the Government, and that it should clearly not be the document with which we were originally concerned. No one in his right mind could ever have claimed that there was something in it that merited the status of confidentiality. I find it difficult to understand what led the Government to be so difficult about it.
If you invite me not to pursue it, Mr. Irving, I shall, as always in obedience to your wishes, deny myself the luxury of yielding to the temptation offered by my hon. Friend. I hope that he will forgive me.
The Clause has been described as the silliest Clause in a silly Bill. I hope that when the time comes for the Committee to decide upon it it will be rejected overwhelmingly. The Government are making use of a docile majority, as they are obliged to do in this humiliating situation, and I only regret that those voting for it will not have heard the weight of argument adduced against it, nor will they be aware that until the Solicitor-General speaks not one word will have been expressed in its support.
On a point of order. I wish to seek your guidance, Mr. Irving, and hope that this is within the bounds of order. If my hon. and learned Friend is now to speak, would you advise the Committee that this does not presage the acceptance of a Closure Motion, bearing in mind that not only do many other hon. Members wish to speak but that the matters arising from the conflict of opinion already expressed should be open to further discussion if they are not fully elucidated?
Further to that point of order. Surely, you of all people, Mr. Irving, must be aware that this is a vital Clause for Scotland. Not a single Scottish hon. Member has spoken. Are we to have a Closure Motion before an hon. Member from Scotland has had an opportunity to speak?
This has been an interesting debate in which a great number of points have been raised. I am sorry that the interest with which I was regarding the points raised did not appear to manifest itself as I should have liked to the hon. Member for Yeovil (Mr. Peyton). I assure the Committee that his diagnosis of my disposition was misconceived.
I want first to come to the point which was first raised by the right hon. Member for Wolverhampton, South-West (Mr. Powell) but which has also been dealt with by others, including my right hon. and learned Friend the Member for Ipswich
(Sir Dingle Foot). This is the effect of the words in subsection (2)
… or of Parliamentary or other public business …
This excludes from the computation days on which a peer is absent, with the leave of the House, on account of Parliamentary or other public business. The right hon. Member for Wolverhampton, South-West asked in direct terms whether the expression "public business" was to be interpreted under the ejusdem generis rule is meaning similar to Parliamentary.
The rule is that, where a catalogue of items is followed by a general item which, as a matter of language, comprises the items previously described and others, the general item will be construed—or may be construed—as confined to items of the same class as those previously described. The modern tendency is to "attenuate" the application of the rule, and there is recent authority for the proposition that the rule is inapplicable to a phrase such as "dogs and other animals" in which only one specific item precedes the general item. The reasoning behind that tendency in the courts is that one species does not constitute a genus. [Laughter.] I am trying to deal straightforwardly with the point raised by the right hon. Gentleman. We are dealing with a concept which, in the courts, is becoming treated as of narrower application than was previously the case.
Even if the rule were to apply in such a case as the "dogs and other animals" case—it would not be, in my advice to the Committee, applicable here because there is no public business, with the possible exception of local government business, which is of the same kind or genus as Parliamentary business. What I am suggesting to the Committee—and it is my privilege to endeavour to enunciate the law on a matter of this kind—as the correct view is that, for the reasons I have indicated, the ejusdem generis rule is not applicable to the words in the Clause.
I appreciate, of course, that this leaves open the question of relevance in consideration of this Clause, to which I want now to have regard because the Committee, if it is not to be assisted by the ejusdem generis rule, will naturally want to know what I advise is meant by the phrase, "other public business". It seems to me that two separate questions arise at this point. The first is what are the kinds of business for which leave of absence can be granted; the second is what are the kinds of business for which leave will in fact be granted.
On the first of these questions, as I understand it, the term "public business" is not a term of art. It would certainly include certain matters and exclude others. It would include any engagement in the public service—that is, in the service of the Crown. It would, in my view, not include the business of a company incorporated under the Companies Act, whether private or public. I am endeavouring to indicate what, as a matter of law and construction of the statute, is the meaning I regard as being applicable to the language in the Bill. Whether the phrase would include the business of a local authority or the business of a nationalised industry is a question which, in my view, is more difficult to answer.
My hon. and learned Friend has given us a definition of a sort which leaves in doubt about the most important aspect raised in the debate—the position of the local authority. He has even had to qualify his definition of where the dividing line comes. Will he tell us now why no definition was put in the interpretation Clause?
My hon. Friend will realise that the responsible treatment of a matter of this kind is not consistent with crystallised and sharp examples of the kind he seems to expect and desire. That is my view on this point. It seems to me that so far as a local authority is concerned, one has, of course, in that respect a contrast between the local matters with which it is concerned and the national matters with which Parliament is concerned.
That is what I would say about the local authorities. As for the nationalised industries, they are for the most part expressly declared not to be agencies of the Crown. Perhaps the most that can be said about this, and this is what I will advise the Committee, is that, if the other place were to grant leave of absence for either of these purposes—that is attendance upon local authority matters or upon the business of a nationalised industry—it would be difficult to argue that it had exceeded its powers. That is the advice, as a matter of law and construction, that I offer the Committee. Whatever may be said about it, it takes account of the fact that we are dealing with a concept which calls for, and deserves, some flexibility. I regard that as inescapable.
I appreciate, as the Committee does, that the hon. and learned Gentleman has striven for great legal accuracy in his endeavour to help the Committee, and to indicate what could, in his opinion, legally be done under the words of the Clause. It leaves the Committee with an even more vital point, to which I hope he will address himself. Perhaps he will forgive my interrupting him to put it at this stage. Is this a question which it is the Government's intention to leave to the subsequent decision, which they cannot now foresee, of the House of Lords? After all, a House of Lords to which it was practicable for members of the boards of nationalised industries to belong, to which it was practicable for members of local authorities to belong, would be a substantially different House of Lords from the contrary.
The view of this Committee about whether to pass this Clause would be bound to be strongly influenced by that decision. If that is to be left to the House of Lords, surely this Committee is in an impossible position and is being asked to legislate blind. I hope that the hon. and learned Gentleman understands that I am not criticising his interpretation, but it is his interpretation which faces us with this difficulty.
Surely, once we have cast aside the ejusdem generis rule, the guide that we have as to the meaning of "public", we are then driven back to the dictionary definition which is:
Something is public to which the public is admitted and may take part.
I took the example of a race meeting. That clearly is something to which the public is admitted and is something in which it takes part. If someone takes part in the administration or management of that business, I should have thought he must be taking part in the management of a public business.
To take the point raised by my hon. and learned Friend the Member for Northampton (Mr. Paget) first, it is not right to say that when in construing a term in a Statute one finds that one is not assisted by the ejusdem generis rule one is then driven to no better help than the dictionary. As my hon. and learned Friend very well remembers, when one is considering, for the purpose of understanding the intention of Parliament as expressed in a Statute, a word of general application, what one does is to consider it in the context of the fitness of the Act and the purposes of the Act. This has a certain limiting and narrowing effect.
I turn to the question put to me with the greatest clarity and courtesy by the right hon. Member for Wolverhampton, South-West. It follows from the view I have expressed that at some future date there will have to be an interpretation of particular matters in another place, within the limits which I have indicated to the Committee apply. I do not regard the account that I have given of the proper interpretation of these words as leaving the matter of construction wide open. I have indicated, by taking specific instances, what my opinion is as a lawyer. I ask the Committee to consider the matter in that respect.
There is an assumption, in the drafting of the present Clause, that the upper House will in the course of time build up principles and practice which will apply to the matter of the granting of leave, with the general objectives of treating all Members alike and of excluding frequent or insubstantial applications. I invite the Committee to take the view that that is a perfectly sensible and appropriate method of approaching this matter. It takes account of the realities of a development of a concept of this kind. It is the fact that the draftsmen of this Clause have had that kind of development in view. It was right on their part that they should approach it in that fashion.
On a point of order, Mr. Irving. I rise now because it is obvious that a number of hon. Members on both sides want to intervene and ask the Solicitor-General questions. These interventions, by their very nature—because this is legal advice that the hon. and learned Gentleman is giving the Committee—are bound to be somewhat long and possibly strain the rules of practice and intervention. Could you assist us by indicating that an opportunity will be given to hon. Members by way of speech because the learned Solicitor-General has asked the Committee to consider—that was his phrase—a matter which has been put before us? There will be no opportunity for consideration if the debate is terminated at the end of this speech. I would therefore ask you, in order that we may be helped here, whether we should intervene, and to what extent we should intervene by interrogation, and to give us some idea of the way in which your mind is working.
Order. It is not a matter for the Chair when the Closure is moved, if it is moved, and the Chair does not give any hypothetical assurance as to what will be accepted when a submission is made.
May I put a fresh point of order, as it appears to me? I have missed a few minutes of the debate, and if it has been put earlier I apologise. It has a direct relationship with the point raised by the hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell). We have had a unique situation in this debate, in that we have had a White Paper presented to the Committee during the debate. I am submitting that on such a matter, which influences the scale and length of the debate which is bound to take place on the Question, That the Clause stand part of the Bill—particularly when a member of this Committee has been primarily responsible, as my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) has been, for securing the presentation of that White Paper to the Committee in such unique circumstances—if steps were taken in any quarter to prevent my hon. Friend from presenting his case to the Committee, or if the Chair accepted such a suggestion to prevent my hon. Friend, it would be a constitutional outrage.
Order. The Chair endeavours to take into account all the circumstances of the debate. I am afraid that I cannot give any assurances for the future. I have disposed of that point of order.
On a point of order, Mr. Irving. With the utmost possible respect, I and other members of the Committee are entitled to elucidation. Whereas it is clearly understood that whether or not the Closure is accepted is a matter totally for the Chair, what disturbs hon. Members is the Pavlovian reaction that when my right hon. Friend the Patronage Secretary comes in——
Order. The right hon. Gentleman is pursuing the same point of order. When the Closure is moved is not a matter for the Chair. Representation of this kind must be made elsewhere than to the Chair.
The Solicitor-General had given may to me in his courteous way when the point of order was taken. I was interested in what he said as to the construction of "other public business". I wonder whether the right hon. and learned Gentleman in giving his advice to the Committee had in mind paragraph 45 of the White Paper, which states that no account will be taken of periods during which a voting peer is absent with the leave of the House on account of ill-health, which does not arise here, or Parliamentary or Government business. Those words are plainly different from those used in the Bill, and I shall be grateful if the right hon. and learned Gentleman will tell us whether what he has said constitutes a change of mind by the Government since the White Paper was drafted, or whether he thinks that another place in exercising its powers under the Bill might be influenced by the expressed opinion of the Government in the White Paper. He will appreciate that the words used on the very point at issue are quite different.
In answer to the right hon. Gentleman, as a matter of law and construction in my view the expression "other public business" goes wider than "Government business".
I do not know whether I can properly do this, Mr. Irving, but perhaps I might be allowed to pay a passing tribute to the contribution my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) has made to our consideration of the provisions in the Bill. I for one would very much welcome the opportunity of hearing what he has to say about this.
I now turn to what I think was the substance of criticism offered on another aspect of the Clause, and that was——
On a point of order. I ask your guidance, Mr. Irving. The Solicitor-General has generously told as that he hopes to hear the views of the hon. Member for Ashton-under-Lyne (Mr. Sheldon), and we all agree with that. What I seek, Mr. Irving, is an assurance from the Solicitor-General that as he has shed entirely new light on the shape of the debate on this Clause he will seek to hear the views of both sides of the Committee on this point.
I was turning to the other line of comment which I felt has characterised the debate on the Clause, and that consists in the consideration and the treatment of the matter of attendance. The hon. Member for the Cities of London and Westminster (Mr. John Smith), for example, was critical about the lack of connection that he felt existed between attendance and voting rights. There was the further point mentioned by the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) that the concept of "clocking in" and the emphasis upon attendance were degrading—I think that was the phrase which he used. This attitude was shared by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot). Of course, I must have regard to criticism emerging from the unholy liaison that is represented by my hon. Friend the Member for Ebbw Vale and the right hon, Member for Kingston-upon-Thames being at one.
I suggest that on a correct view of this matter there is nothing degrading in attaching the importance that the Bill does to attendance and that if, broadly speaking, another place is sitting for perhaps half a calendar year and before voting rights are granted there is a requirement of one-third attendance of that half-year's session, there is not put forward in the Bill a proposal that is oppressive or which has the degrading character referred to by the right hon. Gentleman. It is a matter of judgment. I invite the Committee to take the view that the expression which the right hon. Gentleman applied to this proposal is unjustified and, with respect to him, much too strong.
It was suggested that under this dispensation men of outstanding attainments and abilities whose opinions it would be desired in another place to hear would be discouraged from attending, and it is true that there may be leaders of opinion and leaders of the State in the professions and elsewhere who will in the ordinary way give opinions of the very greatest weight and, at the same time, wish to do so only occasionally. But I ask the Committee to bear in mind that that kind of contribution, as this procedure develops, is likely to be made by the nonvoting peers in another place. When the opportunities are taken into account for non-voting peers to make the weighty and important contributions which have been referred to, then one looks upon the provisions of the Clause in a somewhat different light.
But, surely, if this condition is not in the view of the Solicitor-General degrading and, indeed, perfectly reasonable, why does not he seek to apply it in the House of Commons? Is not the fact that every hon. Member, including himself, would reject it absolutely in its application to the House of Commons an indication that he is wrong to apply it to another place? Will the hon. and learned Gentleman reflect that if the rule that only those who attended were entitled to vote had applied in Committee on this Bill he would have been in a hopeless minority?
There have been other occasions in the course of our debates on this Bill when I have pointed out to the Committee the differences that occur between our position in this House and the position of Members of another place. I believe that the differences that exist justify a different approach to this matter of attendance. As I have said before, in this place we have the privilege of being from time to time referred back to the electorate. That is not an experience which readily comes the way of Members of another place. That characteristic, with others which could be mentioned, makes it perfectly sensible and reasonable to introduce for another place characteristics and factors, like attendance, which it would not be thought appropriate to apply here.
I have indicated to the Committee the view I take of the non-applicability of the ejusdem generis rule to the provision that has been referred to, and also the view that I take upon the criticisms that have been directed to the treatment in the Bill of attendance. On the grounds that I have ventured to put forward I hope that the Clause may stand part of the Bill.
If I may say so, I think that the Government have been wise to decide that the debate on this Question should continue a little further, and that for two reasons. One is that of necessity the Committee is now better seized of the position of the interpretation of the Clause than it could be before the careful intervention which has just been made by the hon. and learned Gentleman.
But the other reason is that this is one of the most important Clauses of the Bill. We have been told, and I myself am convinced of it, that it is also one of the silliest Clauses of the Bill. But, be that as it may, its key importance is undeniable, because without the attendance qualification, which would disappear if this Clause did not stand part of the Bill, the new Chamber which the Bill seeks to create would be a substantially different one—probably a very different one—from that which the Government envisage and have been putting before the Committee. It is therefore impossible to dissociate the issue, first, of the voting qualification, and, second, of this specific voting qualification now remaining in the Clause, from that model for the new Chamber which the Government wish to use the Bill in order to set up.
In order to form a rational view as to that new Chamber, and as to the relevance to it of this voting qualification, we need two types of information. One type has been, at any rate, partially supplied as a result of the activity of the hon. Member for Ashton-under-Lyne (Mr. Sheldon); that is, more information about the actual behaviour in recent years of the present House. That is the sort of information which the hon. Member for Ashton-under-Lyne was seeking to obtain from the Library, and that, whether it be precisely the same or not, is the kind of information which has been eventually, and as a result of a most extraordinary and time-wasting recalcitrance on the part of the Government, supplied to this Committee in the form of the White Paper. Those statistics in themselves contribute one more piece of enlightenment which I believe could well modify the view which the Committee takes on the Question, "That the Clause stand part of the Bill".
I can best put that conclusion in the words of the noble Lord who speaks for the Government in another place, because when the Lord Privy Seal was answering an Unstarred Question in another place last Thursday, 27th March, he referred to the White Paper, to the statistics, which as a result of a Motion of that House had by then been prepared. He said this:
One of the most striking features which emerged from our work on the proposed reform was the change in the work and attendance in the House during the last four Sessions.
Then he went on to say:
I would warn noble Lords against simple extrapolation from patterns of attendance which exist at present."—[OFFICIAL REPORT, House of Lords, 27th March 1969; Vol. 300, c. 1485.]
It is very striking that although the model set up in the White Paper is based upon attendance in the Lords in the last Session available, 1967–68, the White Paper shows—and earlier this afternoon the hon. Member for Ebbw
Vale (Mr. Michael Foot) drew attention to this—in what a constant flux that pattern of attendance and behaviour has been even in the last four years. We are able most strikingly to see from this White Paper that we are not basing the new Chamber upon any firm foundation in taking the experience of the Session 1967–68. There was nothing specially permanent, there was nothing specially typical, about the experience of the Session 1967–68. It was one of a series which, even in so short a period as four years, had witnessed great changes. I think that an important conclusion which follows from the presentation of those statistics is that we should be extremely unwise to do what the Government have done, and that is to base calculations, and thus to base provisions, including those in this Clause, upon the composition, behaviour and attendance of noble lords in the Session 1967–68.
But the actual facts of recent attendance in another place are only one of the two major kinds of information which this Committee requires in order to arrive at a rational decision. The Government themselves used that information as the raw material for drawing up the proposals in the White Paper and in the Bill, and it is quite certain that in doing so they did not just apply their minds to one model; namely, the model which is in the White Paper and is partially implicit in the Preamble and in the Bill. It is perfectly obvious that they considered alternatives, that they considered several permutations and combinations, all of which except one they abandoned, and each of those permutations would have involved a different attendance qualification.
For all we in this Committee now know, some other permutations might not have involved an attendance qualification at all, for, as I shall show presently, the attendance qualification is very closely linked with one particular requirement of this model. Hence the importance of this Committee sooner or later getting at what has constantly been asked for, and that is some view of the calculations and alternatives which the Government had before them, because unless the Committee knows what are the principal alternatives and what are the implications of those alternatives—for example, in respect of attendance—we cannot arrive at a balanced judgment even on the Question, "That the Clause stand part of the Bill".
There is no doubt that such calculations were made in considerable variety, and the Solicitor-General has been perfectly clear and frank with the Committee about it. He referred to the calculations and careful studies which had been made of various permutations. He said, for example
… a whole number of variables have had to be regarded in these calculations.
Later, he said:
I have not referred to, any document. I have referred to calculations, and the calculations were made."—[OFFICIAL REPORT, 26th Feb., 1969; Vol. 778, c. 1780 and 1820.]
Of course, they were. The Government
As you, Mr. Irving, will remember, to the surprise of the Committee those figures proved not to be, as was originally stated, long and complicated. Originally, the calculations must have been long and complicated, but the eventual facts proved to be very simple and limited.
We approach this major question still suffering under very serious disabilities, and we have to look at the attendance qualification, therefore, solely in the light of the one model of which the Government have vouchsafed us a sight and solely in the light of the data given in the White Paper and by the Secretary of State for Social Services. The starting point of that model is a voting House of 230 Members.
There is no longer any mystery as to the origin of this voting House of 230 Members. That figure was the average attendance per day in the Session 1967–68 up till 1st August, 1968. It is a curious fact that, if the Government had happened to have available the figures in the recent White Paper for the entire Session, probably they would have been working on a House of 225 Members, which turned out to be the average attendance of the whole Session, and not the provisional figure of 230 which they had before them prior to the production of the White Paper.
So here was a starting point, a voting House of 230 Members, which would be as big as the average attendance in the House of Lords on an average day during this current Session. Immediately, the Government were faced with a severe problem. This average attendance in the other place of 230 is not afforded by 230 Members. They were faced with the problem of getting across from a House in which 230 Members attended on an average day to a House which consisted of 230 Members. After all, as can be seen from the table on page 5 of the White Paper, the average attendance of 230 in the last Session was provided by no less than 679 peers, some of whom attended on many days, some on fewer, and some on very few.
Between the average attendance of 230 per day delivered by a total of 679 different individuals and the desired voting Chamber of 230 Members, there yawned a gap which the Government had to cross. In Clause 4, we are considering the rickety bridge which they have erected across this statistical abyss. This was the device by which the Government attempted to get from an average attendance of 230 in a House like the present one to a voting Chamber of 230.
What they did was to look at the frequency of attendance which would roughly produce about 230 Members. They were cheered to discover that 291 Members had attended for at least one-third of the sittings of the House. "Hurrah", said the Government, "this is the way to do it. At least 230 of the present peers attended one-third of the time. There is our House of 230 ready made for us." As I shall show in a moment, they proceeded to work upon that left-hand column in the table on page 5 of the White Paper.
Unfortunately, they had made a very serious omission from their calculations, and it is one which is sufficient to invalidate the entire reasoning underlying Clause 4. At the time when they drew up the model, at the time when the While Paper was presented to the House and at the time when the White Paper was forced through this House, the peers were to be paid. The crucial factor of pay was present and, therefore, the Government had either failed to consider or they had taken as ineffective the factor of pay. They cannot get out of it. It is either one or the other. Either they concluded that peers who are paid would behave the same as peers who are not paid, in which case they were entitled to base themselves on the existing statistics on page 5, or they failed completely to take that factor into account.
Fortunately, the hon. Member for Ashton-under-Lyne, who has done a tremendous amount of work on the subject, has given us a glimpse into the significance of the factor of pay. Hon. Members will recall that on 18th March, following his investigations, he gave the Committee figures which showed how large would be the effect of pay upon the propensity of the present peers to attend sittings of the House. All the calculations underlying this one-third attendance rule, which necessitated or appeared to necessitate the attendance rule as a means of creating the desired House of 230, are blown sky-high.
The Under-Secretary of State for the Home Department was so unconscious of this that he actually produced the absence of pay as a reason for justifying the provisions in the Bill. On 18th March the hon. Gentleman justified the same provision which had been in the White Paper and which had been proposed when pay was envisaged. Justifying the same figure, he said:
Account must be taken … of the need for voting peers who are not paid to have private means or to be able to earn their living outside the House …".—[OFFICIAL REPORT, 18th March, 1969; Vol. 780, c. 359.]
The very absence of pay now becomes a justification for an attendance qualification which was previously thought necessary and right on the assumption that there would be pay. One cannot have a more devastating demonstration of the ropey nature of the calculations which originally underlay the proposals of the Government or of the precipitancy of their flight when they abandoned and left behind the proposal for pay.
The Government then found themselves with a House of approximately 230 attending, as they thought, one-third at least of the sittings. But then there arose another difficulty, that that House, thus constructed, would grow as the years went by to a much larger House. It would, with successive elections and with the process of the years, require ever more creations in order to maintain the desired balance, and thus the optimum figure of a House of about 230 would be progressively destroyed.
It was at that point that the Government thought up the retirement age as a means of keeping steady the average total size of their new Chamber. The Solicitor-General on one occasion assured me that this was indeed one of the functions of the retirement age of 72, and, indeed, it must have been precisely calculated to be 72 and not 70 or 75 in order to keep this artificial Chamber of 230 at approximately the same level one Parliament with another.
Unfortunately, having hit upon this device, the Government forgot it again in doing their calculations. In looking at the famous 77—that is the hereditary peers who will have to be converted into new-style peers in order to bring up the present peers of first creation to the total of 230—they worked directly on the left-hand column of page 5 of the White Paper, forgetting that a substantial proportion of the peers of first creation in that left-hand column were over 72 and would not be available anyhow. They used between 20 and 40 peers of first creation who, by their own provisions, were not available and thus vitiated the detailed calculations which they placed before the House.
I will not proceed further with this line of argument. It seems to me to be amply sufficient to demonstrate that Clause 4 is a device hit upon to produce one particular model of House, that it does not even do that because several important facts have been ignored, and that this Committee would not be justified in passing this Clause and writing into the Bill this attendance qualification upon the information which we have before us. Indeed, what we should be doing would be to authorise and accept
a Chamber and legislation based
We then come to the qualifications written into the Bill, the excusals. Much of today's debate has been concerned with examining the grounds on which the fulfilment of the one-third attendance qualification might be excused to Members of the new House. But here was another problem, because the Government's calculations had not taken account of any excusals. In their House of 230, or in their basic assumed starting point of the House of 1967–68, we do not know how many they thought—if they thought about it at all—would succeed in getting excused. This simple factor, which could be quite a large factor—I shall come to this in a moment—is sufficient by itself to disturb all the other calculations. Yet, having introduced an attendance qualification, in all conscience and reasonableness they had to lay down the circumstances in which it could not apply. Thus, they found themselves drafting the latter subsections of Clause 4 and also Clause 5, to the absurdities of which we shall be coming perhaps later this week.
At this point I want to draw attention to what may be no more than a drafting point. But, since we could conceivably not have a Report stage, it is surely the duty of hon. Members to draw to the attention of the Government even minor points of drafting which it might be possible to put right at a later stage. If the Government were accepting any Amendments at this stage—even their own Amendments—so that we could have a Report stage, it might not be necessary to dwell upon these points with the same thoroughness; but, placed as we are, I feel that we are bound to go into them.
I refer to page 4, line 5. Subsection (2) reads:
The minimum attendance requirement in any Session is attendance … on a number of days equal to not less than one-third of the total number of days on which the House meets during the Session"—
and then follow the words in brackets to which I refer—
(other than days on which it meets for judicial business only).
The drafting point I want to put to the hon. and learned Gentleman, who I am sure will note and consider it, is whether that qualification
other than days on which it meets for judicial business only,
should apply to days in line 3 as well as to days in line 4. I apprehend that at the moment it qualifies only days in line 4. There could possibly be only a limited number of circumstances, but I think there could be some, which we shall arrive at when we examine the position of Lords of Appeal in Clause 5, in which this would be a material point. I think the intention of the Government is to ensure that the numerator and the denominator are on the same basis. I therefore ask the hon. and learned Gentleman, in passing, to look at that point, which I know he has apprehended.
That brings me to the more substantial question of the basis of excusal on grounds of
Parliamentary or other public business.
The hon. and learned Gentleman's speech enables me to be briefer than I could have been had I spoken before he intervened. Nevertheless, I think it is incumbent upon the Committee to decide what the circumstances are in which a Member of the new upper House could remain a voting Member and yet be absent for substantial periods. It is for us to make up our minds what sort of Chamber it will be, and it will be very different according to whether voting Members of that House can spend a large amount of their time absent on various kinds of what might turn out to be public business. Therefore, I make no apology for considering the various possibilities. On some of them we are fairly clear already, because we have had the assistance of the Under-Secretary during the previous debate and the Solicitor-General during this debate.
In the debate on 19th March the Under-Secretary gave the examples of membership of a Royal Commission or a departmental committee. He went on to say that difficult cases may arise, and some of his difficult cases were absence at the Council of Europe or the United Nations Assembly, or an inquiry not directly sponsored by the Government. Those were circumstances which it seemed to the Under-Secretary might or might not be covered by "public business". But, of course, there are very much bigger areas than those, areas much more politically sensitive and vital, which have not been mentioned at all by the Under-Secretary. One of them is membership of various public boards; and these may be not only nationalised industries.
There is a whole range of statutory and quasi-statutory boards on which many members of the present Upper House give long and useful service today. They are sometimes the very kind of members we would wish to have in a reformed House if it is ever to be set up. It simply is not good enough for us to slap this Clause into the Bill and say, "Oh well, we have no idea whether those members will be able to remain members of a voting Chamber. That will be decided in two or three years' time", or, as even more practices are to be built up, as we are told, by decisions of another place, "That will be decided as the years go by." But a voting House in which the lords who are paid members of boards of nationalised industries have a vote as integral members of that House would be very different from a House in which they had only the right to speak and not to vote.
That is a question in which this House or Committee ought not to interest itself—whether a person paid for a full-time job on a public board is or is not to be a voting member in another place under a reformed House of Lords. As the Committee knows, there have been difficulties from time to time which have arisen over the mere power of noble lords who were in that position on public boards to address the House of Lords. It has often been argued that it could be extremely embarrassing for them even to intervene in debates in another place.
While the right hon. Gentleman is dealing with this important matter, will he also refer to a kindred area of uncertainty? He interrupted me on 19th March, on an Amendment, on the question of the extent to which the validity of proceedings might be called into question; for example, if a Measure was passed by a small vote which was less than the number of Members whose membership qualifications might be suspect at that time, and the effect that that might have on legislation.
The anxiety of the hon. Member for Reading (Mr. John Lee) was quite unnecessary. That whole question forms a subsequent part of my speech. As he has said, having raised it myself on the previous occasion I was not proposing to neglect it tonight. Nevertheless, I am grateful to him both for the attention with which he is following my argument and for the acuteness of his recollection. But for the moment I am concerned with the essential effect upon the very character of this new House that we are setting up of what is going to be meant by "public bodies".
I have referred to public boards and nationalised industries. Then there is local government. I thought that the hon. Member for Liverpool, Walton (Mr. Heffer) had a very telling point when he said the new House is to be regionally representative. It is to be a different but still a true representation of the various parts of the kingdom. Hon. Members of this Committee know that noble Lords over the years have done very great service, service which it is not within the power of those like ourselves, with our commitments, to do upon local government bodies. Are we, or are we not, saying that a peer in the new Chamber ought to be able to serve as a member, or even as chairman, of a local authority and still be a full member of the new House? The answer to that question will colour the view that we take of the new House, and it is not good enough to shuffle the issue off by saying that that will come out in the wash. We have to make up our minds on what our intentions are.
I do not want to elaborate examples—it is very easy to do so—but there is one further example which I should like to give to show how sensitive and important this is. I can carry on through the continual conversation of the Home Secretary. The right hon. Gentleman need not think that he will abbreviate my speech by talking through it. I can talk through his conversation. I may be a little slower in doing so, but I can still do it. If that assurance saves the right hon. Gentleman any trouble, he is welcome to it.
The example which illustrates the importance of the penumbra of this term "public business" which we are leaving undefined is the Territorial Army. One of the many services which many noble Lords perform out of doors is the raising and maintenance of the reserve forces of this country. It is here that they have rendered perhaps the greatest service in the last half century. We really ought to know whether service on a T.A. organisation—and this can involve for many noble Lords, as it does now, many days of work a year on the T.A. council—will disqualify such a noble Lord from full membership of the other House.
We cannot allow this Clause to stand part of the Bill unless we are satisfied "Yea" or "Nay" what kind of House it is to be. Is it to be an inward-looking House, checking all the time on the clock? Or is it to be a House whose members continue to serve in all these capacities right through the public business of this country? The Solicitor-General has told us quite frankly that he does not know, and we are indebted to the hon. and learned Gentleman. He did not try to fluff it over. He said that there were the outer limits—and everything that I have mentioned in the last 10 minutes has been within the outer limits—but he does not know whether those activities will be inside or outside them, which is as good as saying that he does not know what the new House of Lords will look like, that he does not know what its character or quality will be, or what its relationship will be with the active membership of the present House.
Is my right hon. Friend aware that in the White Paper one of the arguments for the Bill was that the lords would be appointed specifically to represent regional interests? Does my right hon. Friend appreciate that this would involve their spending a great deal of time in the regions? Would this be counted as Parliamentary work? The Solicitor-General did not deal with that.
That is yet another area of uncertainty, and a very important one. I wanted to limit my argument to the area of uncertainty which the Government have admitted, but I agree that it would be absurd to treat as non-public business many of the activities on which peers would be occupied both in the regions and outside the country.
Yes. I hope that that will not be a regular performance.
How did the Government get themselves into this jam of specifying a ground of excuse without having any notion of how it would work out in practice? The answer is that they were bound to their numerical model and for its sake they had to write an attendance qualification into the Bill—or they thought they had—and then they had to qualify the qualification and they do not know what the qualification of their qualifications means. That is how they got into this. It is the same crazy attempt to set up a kind of cardboard, clockwork model of a theoretical House which involves us in all this trouble.
"Well", said the hon. and learned Gentleman, as did the Under-Secretary of State for the Home Department a week or two ago, "the Lords will sort this out themselves. They will have a committee on it and gradually we shall come to know the answer which gets itself given to the question that we are entitled to have answered". This proposition is an insult to the Committee. Of course we are all used to the case of a Government presenting a Bill, and, in answer to questions about the interpretation of words in that Bill, saying, "This is our intention; we believe that these words fulfil that intention. We have drafted them as best we can to fulfil that intention, but in the last resort it will be for the courts to interpret".
No hon. Member can take objection to that proposition, but it is quite different when the Government say, "We have deliberately not made up our minds on this. We are deliberately leaving it to somebody else to make up our minds for us". What should we think of other legislation if they were to say, "We will leave the judges to decide that"? It would lead to a great simplification of our procedures if the Government were entitled to say, "We do not know what this Clause is meant to do, but the judges will work out case law as the years go by, and, by and by, you will know what it means".
That is what they have been saying about this provision—"We have not made up our minds what sort of provision it will be. Ask us whether members of nationalised boards will be Members of the House of Lords. Search us: we do not know, but somebody else will work it out for us in years to come". That really is, in the time-honoured phrase, no way to treat the House of Commons.
I now come to the point of which the hon. Member for Reading reminded me—the fact that the leave of absence can be given not only prospectively but also retrospectively, but that the retrospection can extend not merely to the end of that Session but into the next Session. I can see why the Government arranged it that way. They were faced with the position of a cause of absence beginning towards the end of one Session and running over to the early part of the next, so that, unless they allowed for it all ways, it would have been possible for us, in discussing the Clause, to point justly to grounds of absurd unfairness which might arise.
Nevertheless, as usual, they have created for themselves more problems than they have solved. The Under-Secretary of State, who has not only the agreeable qualities of his and my race to which he referred in the earlier debate, but has also the impetuosity which is characteristic of the Welsh, offered at one stage a limitation of the retrospective provisions. Replying to my hon. Friend the Member for Ormskirk (Sir D. Glover)—it turned out that my hon. Friend was more correct than the Minister—the Under-Secretary said:
Does not the hon. Gentleman realise that subsection (3) deals with the retrospective granting of permission to leave in two cases where a person could not have foreseen that he would be absent? The first is illness.
I grant that. Some of us have a premonition of illness, but we would not wish regularly to apply for leave of absence for illness in advance. There might arise some difficulty over certification, in both senses of the term. The Under-Secretary realised the trap that stared him in the face, and he stepped boldly in:
The second is when he is called away suddenly on public business. It"—
does not deal with anything beyond that. Permission would be given beforehand in other circumstances.
I sympathise with the hon. Gentleman. He was following a rational line of thought. He wanted to limit the application
of retrospection to cases where leave could not reasonably have been sought in advance. However, that was not what the Bill did. There were then frantic messages passing to and fro and eventually the hon. Gentleman handsomely withdrew what he had said and added, after pointing out that he had previously unduly limited the application of retrospection:
… it would be wrong for me to seek to put any restrictive gloss upon the interpretation of those words.
We are, therefore, clear that for illness or absence on public business—whatever that may mean—leave of absence can be as validly sought afterwards, and for an undefined period afterwards, as before.
I come to the problem in which the hon. Member for Reading and I have interested ourselves. Suppose it turns out after all that leave of absence is not forthcoming and that, therefore, a Member of the voting House has participated in a close Division when, in the event, he was not a voting Member? This could occur in the second session when two sessions are involved. On this interesting matter the Under-Secretary commented:
This is a complicated question on which I should not like to give a definite opinion without carefully studying the rules of order of the other House …"—[OFFICIAL REPORT. 19th March, 1969; Vol. 780, c. 433, 448, 451.]
We are supposed to be legislating. We do not want to be running to the other House to find out what is in its rules of order to see whether or not it is sensible to decide retrospectively whether somebody was or was not a Member of the new House.
At last I succumb to the temptation to intervene, which is probably what the right hon. Gentleman has been baiting me to do. He should know as well as anybody else that for many centuries the other place has had the right to grant leave of absence according to its discretion. The Clause merely limits that discretion in this case, although it still allows the other place to place whatever gloss it wishes on the interpretation of the words "other public business".
As a crusted Tory and an adherent of tradition, my heart warms to the hon. Gentleman. Here is a Government introducing a widespread reform so far-reaching that it has justly been described as the destruction of a present House to substitute a Chamber of nominees, and when we ask about some of the details for which we are to legislate in this new model House we are told they have a long tradition in another place; we must trot along the corridor and find what they are doing. I am very willing to let sleeping dogs lie and to see this long tradition more wonderful and beneficient than could have been predicted go on evolving, but that is not what is happening in this Bill. If that were the point of view of the Government we need not have been troubled with this Bill; we could have been doing something for the merchant seamen.
In this long tradition has any case been found of permission for absence being given retrospectively? My right hon. Friend, if anyone in this Chamber, could answer that question.
I am afraid that my detailed knowledge—I was going to trouble the Committee a little later with more reference to this—does not carry me beyond the Middle Ages. I do not think these rules of leave of absence, if they had been fully formulated at that time, are known to us today. The substantial point I am on—it is a very serious one indeed—is that we do not need to undertake to legislate, but if we do we ought to legislate to produce a sensible result.
If someone points out that one of the consequences of the legislation is absurd, is to cause embarrassment, is to cause uncertainty, we cannot then take refuge in the excuse: "Oh, but this is a traditional procedure. One never knows how it will be applied. Anyhow, that is a matter for another place. It is a matter for another place how it is constituted; how they may vote; in what circumstances they may vote". Then, what are we doing here night after night considering this Bill?
I come again to the inherent absurdity in so legislating that it could turn out that a relatively small number of Lords on whose power a decision had turned were not in fact at that time qualified to be voting peers. Those of us who take parties round the Palace of Westminster probably frequently pause, as I do, at the mouth of the Division Lobby to tell the story of the passing of the Habeas Corpus Resolution, in 1679 I think it was, when the Resolution on which so many of our subsequent liberties have been built was carried as a result of a joke made by one Teller at the expense of another being taken seriously.
True it is that that vote, although clearly it was a false vote, was accepted by the House of Lords as valid and has become part of our law, but I must confess that this characteristic and rather charming feature of our Parliamentary history is not sufficient to persuade me that we ought to set out to legislate—shall I say, for the case of the fat Lord—that we ought to set out to legislate into existence a position in which there would always be uncertainty as to whether those voting or whether all those voting were qualified to be Members at all.
Here again one sees how the Government were trapped in their own little clockwork contrivance. This absurdity of the retrospective leave of absence arose out of the necessity of recognising a leave of absence, and the necessity of recognising a leave of absence arose in turn from having a specific attendance qualification, and the specific attendance qualification arose in turn from the peculiar, special, unique, gimcrack contraption, which they had erected on what I have previously demonstrated to be an inadequate and ill-calculated basis.
But attendance itself, the very thing that the Clause is about, is meaningless for the purpose for which the Government intend it. Attendance applied to another place, unless we are to have further legislation on this subject, does not mean what is normally understood by attendance. Attendance in another place means to have been seen by the Clerk at the Table while the House is in session. By a remarkable chance, we happen to have the actual list of Lords on which those attending were pricked off by the Clerk at the Parliament of Carlisle in 1307. The Clerk had before him a list of the Lords who were expected to attend, and as soon as a Lord came in he was pricked with a particular sign. At that time, they used the same list for several days running and had different symbols. In the more expansive age of the 15th and 16th centuries, they had a different list each day. I have no intention of entering into the antiquarian details in greater length——