Voting Rights of Ministers and Other Officers

Orders of the Day — PARLIAMENT (No. 2) BILL – in the House of Commons at 12:00 am on 2nd April 1969.

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Amendment proposed: No. 31, in page 4, leave out lines 30 to 32.—[Mr. John Lee.]

Question again proposed, That the Amendment be made.

4.15 p.m.

Photo of Mr Robert Sheldon Mr Robert Sheldon , Ashton-under-Lyne

On a point of order. You may not be aware, Mr. Irving, that during the course of your predecessor's remarks on a point of order during this morning's sitting he stated that he would oppose any criticism of individual peers. That is as I understand it. This is a matter of considerable importance to me and, I am sure, to other hon. Members, because as a result of our being given a document giving particulars of the attendance of Members of the House of Lords we are now aware of the number of attendances of individual peers.

My interest in this, as, indeed, in other matters dealing with the behaviour of individual peers, was not to draw attention to any failings or otherwise that they might possess but, rather, to deduce from the actions of such peers certain patterns of behaviour which might guide us during the course of the debates on the Bill. That was my intention, and the ruling of your predecessor seemed to cast some doubt on the question whether we could proceed in that manner. Having considered this question during the luncheon interval I thought that I should raise it at the earliest opportunity, in order that the Committee might hear your Ruling.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

The Chair would be concerned only with personal criticism. If the hon. Member is going to use the information as he suggests it will be quite in order.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

The Amendment raises a very important point, and the Committee is indebted to the hon. Member for Reading (Mr. John Lee) for bringing it before us. It concerns the position of the Law Lords. I hope that I shall not incur your displeasure, Mr. Irving, if I say that I have the highest personal admiration for all the Lords of Appeal in Ordinary. They are all men of the highest intellectual distinction, and render considerable service to the country. Some of us have recollections of some of them individually as hon. Members on both sides of the House.

The question posed by the Amendment concerns their position in the new upper Chamber contemplated by the Bill. It seems clear that in the present upper House they very properly exercise the full rights of Lords of Parliament as well as the special duties imposed on them under various Acts setting up the position of Lord of Appeal. It seems right that they should have the right to exercise their discretion both to speak and to vote on the issues that come before the House. It is necessary that they should exercise considerable discretion when issues of political controversy arise, since the last thing any of us would wish to see is the embroiling of the highest level of the judiciary in controversial party politics.

Having said that, however, we have to consider whether what seems to be right in the context of the present upper House would necessarily continue to be the case if we ever set up the sort of Chamber contemplated by the Bill. Indeed, the words which the Amendment seeks to delete not only secure that the learned lords concerned shall have the same rights and be in the same position as other voting peers; they go further and place them in the exceptionally privileged position which the Bill accords to Ministers of the Crown.

The Bill does not propose that they should have the right to apply for a voting declaration and go through the procedures and limitations which apply to other peers of first creation; it exempts them from that necessity, and provides that they alone, with Ministers, shall be included among what the Under-Secretary, in his somewhat unfortunate observation on an earlier Amendment, described as first-class or first-grade peers. It therefore not only maintains their present position but picks them out for inclusion in the special category that does not have to comply either with the attendance requirement or with the requirement that peers should retire on passing the magic age of 72.

Photo of Sir Ronald Bell Sir Ronald Bell , Buckinghamshire South

I saw both the Under-Secretaries of State for the Home Department looking unhappy and I thought that my right hon. Friend might like to correct what he said. I think that what the Under-Secretary said was that the other were second-class peers.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

I would not like to add the smallest fragment of additional unhappiness to that which the two hon. Gentlemen have to endure in seeing this Bill through, almost entirely without support from senior Ministers, whose absence indicates more clearly than words their increasing boredom with the Bill and their desire to find a way to abandon it. Therefore, I am very anxious not to attribute to them anything that they have not said, although I should have thought that it was a matter of fairly simple reasoning, as I hope my hon. and learned Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) will agree, that, if all the other peers are second-grade or second-class peers, there must be a first class and that that first class must be occupied by those who are not second-class. If the Under-Secretary of State wishes to enlighten me, I should be glad to hear him.

Photo of Mr Merlyn Rees Mr Merlyn Rees , Leeds South

No, I should not like to comment on that. I was going to say that, if there is any sign that our senior and right hon. Friends are not here so much, it simply shows their supreme confidence in their juniors.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

They have much more reason for confidence in their juniors than they have for confidence in themselves. I am sure that I carry at least their juniors with me in saying that. That is always how junior Ministers feel, and sometimes they are right.

But I must return to this point. The words which it is proposed to leave out would put the law lords in this special, or first, category or class who do not have, as other voting peers have, to comply with the attendance requirements and, equally, are protected from having to retire under the age limits. This, therefore, poses very directly the question whether the law lords should, in the new House, be in this specially privileged voting position or, as a secondary argument, be voting peers at all.

I have some grave doubts as to whether, under this system, they should be voting peers. We are abandoning—or we should have to abandon if, by an unhappy chance, the Bill passes on to the Statute Book—the present concept of the Upper House as a place with a large membership of wholly independent persons attending only when they thought that they had something to contribute and exercising very high moral authority because of the immense width of knowledge which their membership represents.

Instead, we are to have this much smaller Chamber consisting of the private armies of the Prime Minister and the Leader of the Opposition and the even more private army of the absent Leader of the Liberal Party. These are to be set up in carefully constituted party political proportions which are supposed to be balanced by a limited number of cross bench peers and—although apparently not taken into account—a limited number of Lords of Appeal in Ordinary and a very limited number of bishops. Neither of these two come in the 30 cross bench peers with which it is proposed to start.

It is very doubtful whether the Lords of Appeal, as members of the ultimate tribunal in our judicial system, fit into that picture of voting peers. It might be a great embarrassment for them to have to cast their votes in ways which might well be decisive as between the votes cast by the organised parties into which another place will be divided under these proposals. The risk of their being drawn into controversial and political matters would, in such circumstances, be very much greater than under the present system. Therefore, it is doubtful whether they will be voting peers at all.

Strictly, that point does not necessarily arise on the Amendment. If the Amendment were accepted, it would still be possible for them to be voting peers if they took the initiative of making the voting declaration and then complied with the necessary conditions of Clause 4. In these circumstances, it is unlikely that many of them would make the declaration. They might well feel that it would be right in the circumsances which I have described that they should not take part as voters—but that would be for them. If we take out these words, it will at least leave the matter to them and expose them equally to the same conditions as all other voting peers, so I think that the right step, leaving open the issue whether, for instance, they should be voting peers, would be at least to take out the words which make them "conscript" voting peers without apparently any choice in the matter, and, equally, voting peers who are exempted from these age restrictions.

I do not accept that a member of another place will be unfitted to discharge his duties after the age of 72 or after the General Election following his 72nd birthday, but if there is any force in the provision—the Government must think that there is, or they would not have included it—should it not apply equally to noble and learned Lords? Is there any medical evidence that distinguished lawyers mature more slowly, become senile later, than other sections of the community?

If a noble and learned Lord is going to be able to go on legislating after the age of 72, should not the same apply to other members of another place? Indeed, the late Mr. Disraeli, when asked once why he had not taken up a legal career said that he had not done so because it meant "port and bad jokes till you are 50, then, with the greatest possible success, gout and a coronet." You would call me to order, Mr. Irving, if I argued whether the consumption of large quantities of port tended for or against expectations of longevity, but there is this association between the law and such agreeable things. Is it to be assumed that, as a result, learned Lords retain their faculties to a later age than non-learned Lords?

Equally, is there any reason why they should not attend with equal frequency? They receive a very proper salary as members of the supreme tribunal, which meets on these premises. It is probably easier for them to comply with the attendance requirements than it would be for noble Lords who earn their livings in geographically more remote situations.

Therefore, on neither head has a case been made out for exempting them from the conditions applied to other noble Lords. I am not arguing that either of these conditions is good. On the contrary, at appropriate stages of the Bill I propose to argue that they are very bad, but it does not lie in the Government's mouth to say that they are good for everybody else but not for Ministers or for law Lords. Surely, if they are good for the rest of the other place, they should be applied equally to the law Lords, or they should be withdrawn in respect of them all. This is very important point.

Whatever rôle is played in the present upper House by the Lords of Appeal, it is inappropriate that in the future politically-orientated House—the "working House", as the Government call it in the White Paper—which it is proposed to set up they shall, whether or not they wish, be enrolled as voting peers. It is equally wrong to free them from the restrictions which the Government are seeking to impose on every other member of that Chamber, other than members of their Administration.

We are often told that another place is a bastion of privilege. It is curious that the present reforming Government should be creating an inner keep of privilege within that bastion.

4.30 p.m.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

It might be of assistance if I intervened at this stage to reply to some of the points that have been made.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

In view of the Under-Secretary's opening words and in view of the manner in which a recent Amendment was disposed of, would he make it clear that his formula means that there will be an opportunity for the Committee to consider what he intends to put before it and that the Government will then reply to the points which, in the light of the hon. Gentleman's speech, hon. Members will make?

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

That is not a matter within my gift. [HON. MEMBERS: "Oh."] I shall seek to deal with the Amendment in anticipation of the arguments that might have been adduced by the right hon. Member for Wolverhampton, South-West (Mr. Powell) and others—[HON. MEMBERS: "Shame."] If it is then necessary for me to reply, and provided that that is coincident with the business of the Committee, I shall do so.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

On a point of order. I cannot recall a Committee stage, Mr. Irving, when a Minister, having anticipated what might have been said, has not agreed that hon. Members should have an opportunity to make their views known. Should not my hon. Friend be listening to our views and is it not out of custom for him to proceed in the manner he has indicated?

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

It is for the Minister to decide the stage at which he addresses the Committee.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I thought that it would be of assistance if I spoke at this stage.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

The hon. Gentleman said that he would reply to the arguments which my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) would make but that the future course of the debate was not a matter for him. As he is the Minister in charge on this Amendment, is it conceivable that anybody would seek to terminate the proceedings without his consent? Does he anticipate one of my hon. Friends moving the Closure?

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I was not referring to that, but to the jurisdiction vested in the Chair to call an hon. Member who wishes to speak. I cannot anticipate whether the right hon. Member for Wolverhampton, South-West will be called or whether I shall be called to speak again.

Photo of Mr Tom Iremonger Mr Tom Iremonger , Ilford North

On a point of order. The Under-Secretary must be aware that that is sheer humbug. If he gets to his feet he is called. Our fear is that, having been called, he is making the last speech on the subject.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

That is not a matter for the Chair.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I have no desire to be discourteous to the Committee. I shall address my remarks mainly to Amendment No. 31 and I shall briefly refer to Amendment No. 236, which is also being considered.

Photo of Mr Robert Sheldon Mr Robert Sheldon , Ashton-under-Lyne

The Under-Secretary is replying to the debate so far. He will be aware that the arguments adduced so far have been lawyers' arguments. While I have nothing against that, since this is a matter concerning the rights of lawyers in another place, other hon. Members wish to express non-legal arguments. Although my hon. Friend may have considerable powers of anticipation, he cannot anticipate the arguments which non-lawyers may wish to adduce on the Amendment. Will he, therefore, delay replying to the discussion?

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I am at the service of the Committee. I have no doubt that the "numbers game" will be invoked in relation to the Amendment and that long lists of figures and complicated calculations will be produced to show what decision should be arrived at. I thought that it would be convenient at this stage for me to make the position clear.

The effect of Amendment No. 31 would be to make holders of high judicial offices subject to the age and attendance requirements of Clauses 3 and 4 respectively. The age requirement cannot be a matter of such absolute importance as one might have gained from the speech of the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). Since the passage of the Judicial Pensions Act, 1959, and particularly Section 2 of that Measure, it is necessary for holders of such offices appointed since 1959 to retire from such positions on reaching the age of 75.

Much has been said to tempt me into alluring by-ways of argument. For example, the hon. Lady the Member for Hamilton (Mrs. Ewing) gave a dissertation on the shortcomings of Scottish lawyers. I regret that she is not in her place because the thought struck me that Dr. Johnson, who was no great friend of Scotsmen or of lawyers, might have found her case an ideal one. She might have provided a new victim for his invective.

We are not discussing the question of whether or not law lords should sit in the House of Lords or whether they should exercise a vote. That matter was disposed of when we dealt with Clauses 1 and 2. We are here dealing with a much narrower issue. Are we to accept that if, by chance, the judicial activities of certain persons holding judicial office mean that it will be difficult, if not impossible, for them to qualify under the conditions of Clause 4, they should be deprived of their voting rights?

In other words, the attendance of the Lord Chief Chancellor, the Master of the Rolls and Lords of Appeal in Ordinary, who are Members of the Judicial Committee of the Privy Council, which meets outside the House of Lords, would not count towards the one-third level set in Clause 4. Is it right that such an arbitrary line should be drawn between them and their brother judges whose judicial business happens to be carried out in the House of Lords? That is the real issue that faces the Committee in considering the Amendment.

Photo of Sir Douglas Glover Sir Douglas Glover , Ormskirk

Perhaps I may be permitted, with great humility, to correct the hon. Gentleman on one point. He said that we had finished with Clauses 1 and 2. I respectfully point out that we are in Committee; and that our arguments on this Clause may quite easily cause the Government to alter their mind at a later stage.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

If the hon. Gentleman checks my words, he will find that I said that the Committee had disposed of Clauses 1 and 2. I made the point only in the context of the Committee.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

I understood the Under-Secretary to say that these Lords attending for judicial business would not have such attendances counted towards their score. Am I correct in understanding that he is answering in the affirmative the question which I put yesterday on Clause 4(2)? Is he saying that the words in the subsection … (other than days on which it meets for judicial business only) … qualify "days" in line 3 of page 4 as well as "days" in line 4? The hon. Gentleman will recall my putting this point to the hon. and learned Solicitor-General. I am just seeking to ascertain whether he is now by implication settling that question one way or the other.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

Far be it for me to try to animadvert on such a complicated matter, despite the fact that the humble opinion I gave on the ejusdem generis rule was upheld, as it were, on appeal yesterday.

When the Judicial Committee of the Privy Council meets, and I understand that it does not meet in the House of Lords, Lords of Appeal in Ordinary attending it would find that such attendances did not count towards their total of one-third attendances required by Clause 4, but other Lords of Appeal in Ordinary attending the Appeals Committee of the House of Lords, and doing business which is quite comparable with the business of the Judicial Committee of the Privy Council, would find that their attendances did so count.

The real issue in this Amendment, casting aside, for a moment, the question of age and fact that law lords retire at 75 rather than at 72 under the provisions in Clause 3, is whether it is right that an arbitrary line should be drawn between judicial business carried on in the House of Lords and very similar judicial business carried on a short distance away outside the House of Lords.

Photo of Mr Eric Heffer Mr Eric Heffer , Liverpool, Walton

I want to get one thing clarified. Are these law lords included in the total of 230, or are they in addition to the 230?

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I have no instructions which lead me to believe that the holders of high judicial office who are peers of first creation will be additional to any calculations that have already been described but, with the greatest respect——

Photo of Mr Ian Gilmour Mr Ian Gilmour , Norfolk Central

Those who sit in the House of Lords are usually the same as those who sit in the Judicial Committee of the Privy Council. Therefore, when they sit in the House of Lords they will get a perfectly adequate tally, and so need not be exempted in this Clause.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

By and large, one would find that very often they were the same people, but there could be instances of Lords of Appeal in Ordinary who for a disproportionate part of their time served on the Judicial Committee of the Privy Council, meeting, as I understand that Committee does, in Downing Street. They would find that they would not qualify under Clause 4 but, by sheer accident, those whose judicial business was in the House of Lords would find that they did qualify. I do not think that there is anything more to the Amendment than that.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

On a question of principle which is, I think, similar to a point put by the right hon. Gentleman the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), is it not the case that this provision puts law lords in a privileged position, in the sense that in every category of people who will be eligible to sit in the other place it will be more convenient for some to attend than for others to attend but that in the case of the law lords it is said that we shall overcome that distinction by saying that they can sit in circumstances not applicable to other categories? In that sense, is not a privileged position being provided for law lords as against the majority of those who sit in another place?

Photo of Mr Robert Sheldon Mr Robert Sheldon , Ashton-under-Lyne

If my hon. Friend would allow me——

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I really must be allowed to reply to that intervention first, otherwise it will be impossible to carry on our debate.

Provision has been made already in the Bill for public business, and we have spent many hours in dissertating on the merits and demerits of such a proposal. But, in this case, the similarity between judicial business carried on a few hundred yards from the House of Lords and judicial business carried on in the House of Lords—and carried on in both cases by Lords of Appeal in Ordinary—is such as to create an arbitrary distinction between one holder of high judicial office and another.

Photo of Mr Robert Sheldon Mr Robert Sheldon , Ashton-under-Lyne

The Under-Secretary of State told my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that the law lords were included in the total number of members of the House of Lords, but paragraph 48 of the White Paper states: Assuming a total voting House of 230, the figures which would be appropriate in the present parliament axe: government 105, main opposition party 80, other opposition parties 15 and cross benchers 30"— and then it states: (these figures again exclude law lords.. It is therefore clear that these people are supplementary, and the information which the Under-Secretary gave to my hon. Friend seems to be in error.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

In all humility and contrition I must admit that my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) has made a clean catch, and I heartily congratulate him. There is no question of their being counted towards that figure.

Photo of Sir Douglas Glover Sir Douglas Glover , Ormskirk

I am grateful to the Under-Secretary of State for again giving way, but what has come out of the interchange is very important. The membership of 230 for the other place is calculated rather as the scales of justice would work, so that another hair on one side would upset the balance. If, now, the law lords are to be counted in addition to that basis, the balance ceases to exist.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

If the hon. Gentleman listens to the rest of my remarks with rapt attention, he will find that I have an argument on that point, too.

I should like now to deal with one or two points raised in this morning's debate. My hon. Friend the Member for Reading (Mr. John Lee)—and I believe that one or two other hon. Members fell into the same trap—seemed to be under the impression that all business that was non-judicial was automatically controversial political business. It is, perhaps, a shattering glimpse of the obvious to say that there is a wide range or business that is, on the whole, non-controversial, and where the contribution of persons highly skilled in the law is extremely valuable. I am sure that many hon. Members are aware of the contributions made by the law lords, particularly with regard to Home Office matters.

Photo of Mr Hugh Fraser Mr Hugh Fraser , Stafford and Stone

What the hon. Gentleman says is perfectly correct at present, but the nature of the House of Lords, because of this proposed nicely balanced system, will make it much more open to controversy in the initiation of legislation. To base the argument on the present position is not merely farfetched but misleading.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

The right hon. Gentleman is seeking to make a debating point, and I doubt whether there is anyone here who believes that the sea-change can be that severe.

Several Hon. Members:

rose

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I appreciate the intention and aims of hon. Members to assist me in my speech, but I should prefer to carry on in my own imperfect way.

The law lords in the present day are discharging much the same functions as their predecessors, the legal assistants, discharged in a previous age. It was not unknown for the House of Lords to seek the views of judges. That is not necessary in a day when there are law lords in the other place. I am sure that their contribution is one that is accepted and one which can be assessed objectively.

For that reason—this brings me to a second point made by my hon. Friend the Member for Reading—I do not think that it was necessary that their views should have been canvassed officially as in the case of the bishops. After all, the Lord Chancellor is their natural spokesman and is in a position to represent their views.

Photo of Mr John Lee Mr John Lee , Reading

It is a novel doctrine that the Lord Chancellor is a kind of spokesman or leader in this context. In so far as we are encouraging by implication, in the provisions of the Bill, those concerned to continue to be involved, if only marginally, in controversial—perhaps politically controversial—matters, we may embarrass them in the fulfilment of their judicial office. Would it not have been better—this was the whole gravamen of my speech—to have taken advantage of the Bill, if we are to have a Bill at all, and excluded them from the whole arena of political controversy?

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

Perhaps the term "spokesman" was too technical a term for me to have chosen in relation to the Lord Chancellor in this context. I will put it in another way. I do not think that the Lord Chancellor is an inappropriate conduit for the views of the holders of high judicial office in this connection.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

He is the branch secretary.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

The hon. Lady the Member for Hamilton (Mrs. Ewing) raised with great fervour the question of the representation of Scottish lawyers in the House of Lords. I remind the hon. Lady, albeit in absentia, that by convention two Lords of Appeal in Ordinary are Scottish judges and they sit upon and determine Scottish cases. As there are at the moment ten Lords of Appeal in Ordinary, as the population in Scotland is roughly one-tenth that of the United Kingdom, and as the two Scottish Lords of Appeal in Ordinary represent one-fifth of the total number of Lords of Appeal, I do not think that the hon. Lady has a great deal to complain about in regard to Scottish representation.

The rationale underlying the objection to the Amendment is the supposition that by giving the holder of a high judicial office performing a valuable function in the other place as a spokesman upon highly technical legal matters the right to vote one automatically brings about a metamorphosis in his character and makes him a partisan political advocate. In view of what has been said, I will not anticipate the no doubt very full argument of the right hon. Member for Wolverhampton, South-West on Amendment No. 236 but will await what he has to say, if he has the good fortune to catch the eye of the Chair.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

I am glad to be able to satisfy so soon the wishes and expectations of the Under-Secretary. As we are considering two Amendments together, I hope that the Under-Secretary and the Committee will forgive me if I do not entirely confine my remarks to Amendment No. 236 which stands in my name and that of my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter).

Throughout, the Government have shown an insufficient appreciation of the constitutional importance of these Amendments, as of the Clause to which they apply. The Clause is in a sense subordinate to Clauses 3 and 4, because Clauses 3 and 4 set up the two major qualifications for membership of the voting House. In Clause 5 we are dealing with two classes of persons who are to be exempted from the necessity to comply with those requirements.

It is a serious matter of constitutional importance, if we are setting up a new Chamber and have laid down the ground rules, that we should then say, "There are the following two classes of persons who are exempt from the ground rules and who will as such be voting Members, full Members, of the new small, allegedly carefully constructed, Chamber which we are setting up".

I imply no disrespect to the Under-Secretary who has just spoken, or to his colleague who has been so assiduous with him, when I say that it is quite wrong that the Committee should on matters of this importance be left for hour after hour, indeed for day after day, without the presence of any Cabinet Minister, any Minister who in the full sense of the term is responsible. I believe that this betrays either a misappreciation of the importance of these issues or a deliberately contemptuous attitude towards the Committee.

Photo of Mr John Peyton Mr John Peyton , Yeovil

Has a third alternative occurred to my right hon. Friend, namely, that they might possibly even at this late stage have become ashamed?

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

It could be that they are considering together how to extricate themselves from the labyrinth into which they now must realise they have penetrated. A further difficulty is that not only have we not had the presence of the Cabinet Ministers concerned but the two Under-Secretaries who have been in charge have not had the assistance of any of the Law Officers. We have found ourselves over and over again in the position—it happened again just now in your hearing, Mr. Irving—of having to guess, with the good will and assistance, but still the unqualified assistance, of the Under-Secretaries, at vital issues of legal interpretation which affected the argument and affected the decision upon the Amendments.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

Before the right hon. Gentleman leaves the point about colleagues whose absence we all deplore, will he not also refer to the right hon. Members for Barnet (Mr. Maudling) and for Enfield, West (Mr. Iain Macleod), who are equally absent and who could be very helpful to us, because they have been in on the bargaining all the time?

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

There is, however, this difference, that their names are not on the back of the Bill. The result of this has been that more than once we have actually and admittedly been mis-advised by Ministers and a correction has had to be made.

5.0 p.m.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I hope that the hon. Gentleman was not referring to his interpretation of the ejusdem generis rule. Further, as regards Clause 4(2), that is not a matter which we can discuss on this Amendment.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

No. I was referring to the fact that, at an earlier stage, the hon. Gentleman had to retract an interpretation which he had given of the applicability of the conditions in Clause 4(2)(b) and had to admit that it had been ill-considered. I suspect that, before the deliberations of this Committee are much further advanced, we shall find that other opinions which have been put to us upon the interpretation of wording in this Clause may similarly have to be revised. Therefore, although we should wish to share in the view of the other Under-Secretary of State that the absence of senior Ministers is due to their supreme confidence—I noted his words—in their juniors, I wonder whether the affliction of hubris did not for a moment beset the hon. Gentleman with its usual consequence that it tends to be followed by ate in the form of punishment. However, before ate overtakes me at your hands, Mr. Irving, I shall come from those preliminary remarks to the second of the two classes from whom the Clause removes the necessity of fulfilling the qualifications for membership of a voting House which have been thought necessary in the Clauses which we have so far added to the Bill.

It is important to be clear on what the effect of this Amendment would be. It would not disable law lords from being Members of the voting House, of the House of 230-plus, and to that extent the general question whether law lords as such ought to be members of that voting House does not fall strictly within the ambit of the Amendment. But we are obliged to consider whether it is right that the two qualifications, age and attendance—age not more than 72 by the end of a Parliament, and attendance at one-third of potential sittings—ought to be lifted en bloc for the holders of judicial offices as defined in subsection (1)(b).

Photo of Mr Tom Iremonger Mr Tom Iremonger , Ilford North

There is another disqualification, that of failing to make a voting declaration within one month, and negligence in that respect.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

On a later Amendment which, I think, you have selected, Mr. Irving, there will be opportunity to discuss the making of the voting declaration, and it may well be that my hon. Friend will be able in that connection to hear and take part in discussion on that point. But I shall take successively these two qualifications, age and attendance, and consider what may be the justification for not insisting upon them where law lords, as here defined, are involved.

I take, first, the qualification of age. In order to form a judgment upon this, we must decide what is the reason why the age qualification is otherwise insisted upon. Here, there is a serious conflict of evidence which has so far not been resolved. The Solicitor-General, on 25th and 26th February, gave it to be understood on more than one occasion that the age limit here had the same significance as the age limit in other professions and circumstances, namely, that it was the age at which, broadly, and upon average, a person might be regarded as having ceased to be fit for the full performance of the duties involved. For example, on 25th February, when the Solicitor-General was interrupted by my right hon. Friend the Member for Flint, West (Mr. Birch), who asked: Am I to understand that the age of 72 has nothing to do with a judgment about the competence of an average person of that age and whether he is capable of doing his job, but that mathematical juggling has produced a certain effect?"— the Solicitor-General replied: I do not accept that account. Competence at a particular age was taken into account."—[OFFICIAL REPORT, 25th February, 1968; Vol. 778, c. 1670.] So there we have the Solicitor-General stating that the reason, or at any rate one of the reasons, for the age limit of 72 is suitability, is competence at that age. Again, on 26th February, the same hon. and learned Gentleman said: The intention is to set an age which will not exclude a large number of active and potentially valuable Members …"—[OFFICIAL REPORT, 26th February, 1969; Vol. 778, c. 1781.] In other words, one view of the reason for the age qualification is that it is intended to ensure that peers do not remain Members of the voting House beyond a point at which, upon average, they would be fully competent and fit to perform what are expected to be the duties. That is one view. But there is an entirely different view, namely, as my right hon. Friend put it, that this has been a matter of mathematical contrivance. Speaking in another place on 21st November last year, the noble Lord, the Lord Privy Seal, made clear that his view was that that was the reason for the age of 72. He said: In those studies we examined a number of variables and considered such ages as 80, 75 and 72; and 72 was indicated by those studies. It is arranged"— and so on. The purpose of this is to 'bunch' these retirements so that, in the event of a change of Government, the numbers can be adjusted without too great difficulty."—[OFFICIAL REPORT, House of Lords, 21st November, 1968; Vol. 297, c. 1086.]

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. I am having a little difficulty in seeing how the right hon. Gentleman relates what he is saying to the Amendment. He may well come to it, but it seems to me that he is a little slow in doing so.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

May I explain, Mr. Irving? We are concerned with an Amendment which would remove a provision under which a law lord, unlike other lords, can be a Member of the voting House although over the retiring age of 72. We cannot come to a conclusion on the validity of that provision without knowing why the retiring age of 72 is there, since, until we know why it is there, we cannot know whether it ought to apply to a law lord. I am sorry if I had not previously made that clear in my argument, but I apprehend that it must be relevant to the decision which the Committee has to take.

The alternative interpretation of the retiring age of 72 is the one which was put forward in another place, as I have explained, by the noble Lord, the Lord Privy Seal, who made quite clear that they had not looked at the ages of 80, 75 and 72 from the point of view of physical or mental fitness but had looked at them on mathematical grounds to see what the results of those alternative ages would be upon the size of the House, Parliament by Parliament. I seek now to apply the two alternative explanations of the retirement age to the question which the Amendment poses.

I quite see that it could be argued that, if the retirement age of 72 is intended merely to have a mathematical effect, is intended merely to restrain the total size of the working House within given limits, in that case it has no relevance to the law lords since the law lords, as the Under-Secretary of State was reminded by his hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon), do not count in the little party sum which adds up to 230. Therefore, the extent to which their numbers may vary, may wax and wane with the successive Parliaments, will not be a matter of concern, since they are outside the 230 calculation. I give that to the hon. Gentleman.

If, on the other hand, we accept the explanation which was given by the Solicitor-General, namely, that the age of 72 is chosen with a view to fitness to participate in the work of the working Chamber, then I do not see how this provision can be justified, for we are then presented—and I will not go over the ground traversed so effectively by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter)—with the monstrous proposition that a law Lord as such is more likely to be a fit Member to take part in the work of the Upper House than any other kind of Lord.

However, the fact remains that neither age nor the quality of a law lord has been taken into account by the Government in their calculations. Their detailed calculations are based upon the table on page 5 of the White Paper, which has been referred to more than once in these debates in which we find that the law lords are included, and so are peers over the age of 72. So that in applying their model of the House of 230 which was to exclude law lords, the Government inadvertently utilised a table for their detailed calculations which had no retirement qualification, which included lords over 72 and also included law lords, for they are included in the detailed figure in the left-hand column on page 5. So, however we view the age qualification, I cannot agree that there is a valid reason why that qualification should be applied to other lords but not, as a matter of principle, to law lords as here defined.

I then come to the attendance qualification. I can quite see the justification for eliminating it in the case of the other class of person, the Ministers, with whom we were dealing previously, because obviously it is part of their business to attend in the House of Lords, and at any rate it would be supererogatory to insist on an attendance qualification on their part. But why, for the purposes of general as opposed to judicial business, should a law lord be entitled to take a full part in the work of the Upper House with a much lower attendance than any other kind of lord? I agree that we should do nothing to disable him from taking part in the judicial business, but that can be easily met by making such a special provision for judicial business as comes later in the Clause. But where we are concerned with the general business of the other House I see no reason why a law lord who can put in an attendance, or chooses to put in an attendance, only for one-eighth or one-tenth of the time should be put in this specially privileged position.

5.15 p.m.

The Minister referred to the public business provision in Clause 4. But it seemed to me that the argument cut in exactly the opposite direction. We think it necessary in Clause 4 that a special leave of absence should be given if a peer is to continue to qualify as a voting peer despite not putting in one-third of the attendance on grounds of public business. Why should we ipso facto exempt from that requirement to obtain leave of absence a lord because he is a law lord? If the circumstances arise which the Minister gave, there will be no possible difficulty in a law lord's demonstrating that it was because of public business that he was unable to be present. What could be more simple than for him to comply with exactly the same requirement as any other lord to obtain leave of absence for that business? So, we are left with a distinction which is invidious and unjustified, whether we look at the age qualification or at the attendance qualification.

Now I want to come to the second of the Amendments, which relates to line 7 on page 5. A further distinction between two classes of person arises in this subsection (3) as drafted. The subsection refers to Lords of Appeal. Lords of Appeal are to the law lords as defined in subsection (1)(b) as the greater is to the less, that is to say, all who are in subsection (1)(b) are Lords of Appeal, but not all Lords of Appeal fall within subsection (1)(b), and the difference between the two, the residue when we subtract those who are provided for in subsection (1) from those in subsection (3), are the former holders of judicial offices who are still Lords of Appeal. It is, therefore, the former holders of judicial office who are specially and effectively the subject of subsection (3), which enables them to qualify as voting peers only for judicial business.

So we set up yet another distinction, a distinction between one set of Lords of Appeal and another set of Lords of Appeal. Those Lords of Appeal who are former occupiers of high judicial office do not have the same privilege as the other law lords. They must try to qualify as voting peers like anyone else, except for judicial business. I apprehend that it will be virtually impossible for them to qualify in the ordinary manner, since they will in any case almost always be beyond the retirement age. But that renders all the more invidious the distinction which is here drawn.

In paragraph 61 of the White Paper the Government explain why they are so keen that the law lords should in any case be Members of the new House. They say: Their knowledge and experience should continue to be fully available to the reformed House for its non-judicial business … That is the view of the Government, that the knowledge and experience of any law lord as such at present and in the future should be able to be fully available to the reformed House for its non-judicial business, its general business. If that is the ground, then what reason is there for supposing that the knowledge and experience of those Lords of Appeal who are ex-holders of high judicial office will not be equally valuable to the House? If the Government say, "Oh well, they can give their advice, but they do not need to vote", then so say we in relation to the Lords of Appeal generally. So, one way or the other, it is unjustified to make this distinction between the Lords of Appeal in toto and the law lords as defined more narrowly in subsection 1(b).

When we put down our Amendment, my right hon. Friend and I by no means disagreed with Amendment No. 31. We hold, and I believe that the Committee generally holds so far as one can judge from the debate, that this creation of a privileged class is unjustified and that it arises, like so much else, out of this clockwork construction upon which the Government are engaged. But he and I say that if the Government are going to insist on having this unjustified privileged class, they should include in it all who are Lords of Appeal.

That brings me finally to what is again the main case here—whether and why a kind of superior class ought to be created from the outset in the new House. It is in that connection that it is relevant to debate whether or not, if we are making a small House of 230 Members, law lords as such should be Members at all. This is a matter which, in that context, is very doubtful. If it is debatable in that context, surely it is much more debatable, surely it is very hard to assert, that law lords as such should have a preferential right over everyone else except Ministers to be permanent, automatic Members of the Upper House.

The question arises of how this happened. How is it that a provision so difficult to explain let alone justify comes to be in the Bill? I am afraid I believe that this is one of the inducements offered to another place to make this Bill acceptable. After all, law lords are very influential Members of another place. They were an interest that had to be consulted and I believe that what happened was that those who concocted this scheme said to them, "Do not worry. We will make it all right for you. Never mind about age or attendance qualifications. It will be all right for you. Automatically you shall have a place in the new Chamber, so please stand out of the way, keep off the grass and let the thing go through".

This is in the nature of the inducements which we have discovered as we have examined one part of this Bill after another and by which—I must be careful of the expression I use here; I was about to use the word "suborned" but I take it back before it is uttered—Members of another place were induced to give an assent to these proposals, which I believe that this Committee is in no way minded to match.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I promised to seek to intervene following the remarks of the right hon. Member for Wolverhampton, South West (Mr. Powell). I somewhat anticipated his argument but I am afraid that he was not quite as elaborate as I had thought he might be on this occasion. After very lengthy and, if I may say so, magniloquent complaining which was liberally laced with chastisements of my hon. Friend and myself as Under-Secretaries of State at the Home Office, he developed the argument that there was here a fundamental inconsistency between the provisions which made it necessary for all other peers, apart from Ministers under Clause 5, to lose their voting rights at the age of 72 and that this therefore was a fundamental and glaring inconsistency.

I am sure that this is linked with the right hon. Gentleman's failure, as he admitted, to understand why subsection (3) is in the Bill at all. I am sure that there are many hon. Members who appreciate the very great services given by retired Lords of Appeal in Ordinary when occasion so demands, when they are invited by the Lord Chancellor to sit upon judicial matters—normally when illness occurs among their legal brethren who are still actively engaged as Lords of Appeal in Ordinary.

This process has been going on a very long time and it would seriously affect the judicial process if it were now to be discontinued. I am sure that the right hon. Gentleman agrees that, in these circumstances, it is very proper for the Lord Chancellor to turn to these gentlemen, who are skilled and experienced and who are so able to discharge their functions in that respect, and to agree that they should exercise their voting rights.

But I think that the answer to the right hon. Gentleman's argument concerning inconsistency is that, in so far as it is right and proper to have an age limit with regard to a working House—something which the Committee has already disposed of—the argument in favour of that is the general argument, and there are obviously many people, wherever we set the age limit, who will be clear exceptions to such a general rule.

This subsection deals not with a general exemption but with exemption in specific cases—that is, with exemption in cases in which the Lord Chancellor turns to a retired Lord of Appeal in Ordinary and say, "I am aware that you are able to carry out your functions. So-and-so is ill and we should be grateful if you would help us out". That, in my submission, is in no way inconsistent with the general rule because it is a specific exemption which turns upon the specific circumstances of the case.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

I hope that my hon. Friend will not look at me too clearly when making his points because I have not had an opportunity to put my views to the Committee on the subject as yet and I trust that he will extend to me precisely the same courtesy as that which he has given to the right hon. Member for Wolverhampton, South-West (Mr. Powell).

My hon. Friend said in his previous speech that he would prefer to speak earlier in the debate in order to be able to speak later and to reply to what was said by the right hon. Gentleman. I think that it would be an invidious arrangement if there were any suggestion by my hon. Friend that he would accord facilities to the Opposition which are not being accorded to his own side. I invite him seriously to consider that, if he wishes to see the smoothest possible progress of the Committee, he should take what I have said into account.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

If one wished to parody a rather well-known phrase, one might ask, "Who is my opposition?" Be that as it may, it is the rôle of my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) to ask questions rather than answer them. I am sure that he has a claim on many grounds to special recognition and status in this Committee, but the only reason I replied particularly to the right hon. Member for Wolverhampton, South-West was that Amendment No. 236 stands in his name. What happens later in the debate is not a matter for me.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

I am not asking for special rights. I am asking for exactly the same courtesy which my hon. Friend, quite properly, extended to the right hon. Gentleman. I invite him to consider that.

5.30 p.m.

Photo of Mr John Lee Mr John Lee , Reading

On a point of order. This problem has arisen more than once. At various times, you, Mr. Irving, and other occupants of the Chair have been asked whether it was appropriate for the Closure to be moved, and you and your colleagues have ruled that it was not a matter for the Chair. The point is now being put to the Minister in charge of the Bill, and he says that it is not a matter for him. What we wish to know is for whom it is a matter if it is not a matter for the Chair.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

The Chair can answer only for the Chair.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

The rules of order are obvious to all in this respect; it is for any hon. Member if he so wishes to move the Closure, but it lies only with the Chair whether to accept it. I am sure that nothing I say can in any way alter that rule.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

On a point of order. You will remember, Mr. Irving, that I addressed you on a point of order a short time ago when it had first been intimated by the Under-Secretary that he would speak early and anticipate the arguments of hon. Members who had not yet spoken. More recently, he said that he had abandoned that policy and would listen to what other hon. Members had to say. Surely it is for you to protect the rights of Members to be heard.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

That is not a matter for the Chair.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

Further to that point of order. I must press this——

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. I have ruled that the hon. Gentleman is not addressing me on a point of order. It is not a matter for the Chair.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

On this point of order. I have not in any way——

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. I ruled that in addressing me the hon. Gentleman was not addressing me on a point of order, that it was not a matter for the Chair.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. The hon. Gentleman may not address me on a point I have dealt with.

Photo of Mr John Mendelson Mr John Mendelson , Penistone

On a new point of order concerning this matter. You and I, Mr. Irving, and many other hon. Members share the experience of Committees, both of the whole House and Standing Committees, of the established tradition that either the Chairman or the Minister in charge should deal with such questions. We must have one or the other.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

That is not a matter for the Chair.

Photo of Mr John Smith Mr John Smith , Cities of London and Westminster

On a point of order. It is the Deputy Leader of the House who should protect us, but as in another capacity he keeps moving the Closure, would it not be possible——

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. This is not a matter for the Chair.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I am sure that the Committee appreciates that the effect of the Amendment would be to allow retired Lords of Appeal in Ordinary to exercise a vote for the rest of their lives. We all appreciate the absolute sincerity of the right hon. Member for Wolverhampton, South-West (Mr. Powell) in his absolute opposition to the Bill. After all, we well know the adulation in which he holds the idea of government by an aristocratic oligarchy. But what has surprised me and many other hon. Members is that he has been so absolutely selective.

He mentioned distinctions which he thought invidious and unjustified, but why should it be the privilege of a law lord more than any other lord to exercise a right to vote in the other place for the rest of his days? There is no provision in the Bill for peers to exercise a vote all their lives. I therefore respectfully put it to the Committee that although the arguments put forward by the right hon. Gentleman were interesting——

Photo of Mr John Mendelson Mr John Mendelson , Penistone

On a point of order. May I respectfully point out to you, Mr. Irving, that it has always been agreed by Chairmen, including yourself, that you have a duty to keep a balance between the two sides of the Committee? In the last 60 minutes we have had the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) speaking from the Opposition side of the Committee, then we had the Under-Secretary and then we had another right hon. Gentleman, the right hon. Member for Wolverhampton, South-West (Mr. Powell), from the Opposition side of the Committee. This is absolutely unprecedented.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

The hon. Member must not challenge the selection by the Chair.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I recollect an occasion when for two hours and 20 minutes all the speeches about the Bill came from my side of the Committee.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I hope that the Under-Secretary will not proceed in that vein.

Photo of Mr Eric Heffer Mr Eric Heffer , Liverpool, Walton

Because it will happen again.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I am sure that the Committee appreciates that the community needs the services of retired law lords; hence the justification of and the necessity for subsection (3). It is right that when they are called upon to act, they should exercise the right to vote, but it would be invidious if, on account of the fact that they were ex-Lords of Appeal in Ordinary or retired Lords of Appeal in Ordinary, they were to have the right to vote when not carrying out judicial business.

Several Hon. Members:

rose

Photo of Mr Charles Grey Mr Charles Grey , City of Durham

Mr. Charles Grey (Treasurer of Her Majesty's Household) rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

Division No. 148.]AYES[5.38 p.m.
Albu, AustenGriffiths, David (Rother Valley)Morris, John (Aberavon)
Anderson, DonaldGriffiths, Eddie (Brightside)Moyle, Roland
Archer, PeterHamilton, James (Bothwell)Oakes, Gordon
Bagier, Gordon A. T.Hannan, WilliamOgden, Eric
Beaney, AlanHarper, JosephO'Malley, Brian
Bishop, E. S.Harrison, Walter (Wakefield)Page, Derek (King's Lynn)
Boyden, JamesHart, Rt. Hn. JudithPalmer, Arthur
Bradley, TomHaseldine, NormanPannell, Rt. Hn. Charles
Bray, Dr. JeremyHazell, BertPavitt, Laurence
Brooks, EdwinHerbison, Rt. Hn. MargaretPeart, Rt. Hn. Fred
Brown, Bob (N'c'tle-upon-Tyne, W.)Hooley, FrankPentland, Norman
Buchan, NormanHoughton, Rt. Hn. DouglasProbert, Arthur
Callaghan, Rt. Hn. JamesHowie, W.Rees, Merlyn
Cant, R. B.Hoy, JamesReynolds, Rt. Hn. G. W.
Carmichael, NeilHuckfield, LeslieRichard, Ivor
Castle, Rt. Hn. BarbaraHughes, Hector (Aberdeen, N.)Roberts, Rt. Hn. Goronwy
Chapman, DonaldHunter, AdamRoberts, Gwilym (Bedfordshire, S.)
Coe, DenisIrvine, Sir Arthur (Edge Hill)Robinson, Rt. Hn. Kenneth (St. P'c'as)
Concannon, J. D.Jenkins, Rt. Hn. Roy (Stechford)Rodgers, William (Stockton)
Crosland, Rt. Hn. AnthonyJohnson, James (K'ston-on-Hull, W.)Ross, Rt. Hn. William
Crossman, Rt. Hn. RichardJones, Rt. Hn. Sir Elwyn (W. Ham, S.)Silkin, Rt. Hn. John (Deptford)
Dalyell, TamJudd, FrankSkeffington, Arthur
Davidson, James (Aberdeenshire, W.)Kelley, RichardSmall, William
Davies, Ednyfed Hudson (Conway)Kenyon, CliffordSteele, Thomas (Dunbartonshire, W.)
Davies, Rt. Hn. Harold (Leek)Lawson, GeorgeStonehouse, Rt. Hn. John
Davies, Ifor (Gower)Lee, Rt. Hn. Frederick (Newton)Taverne, Dick
Delargy, HughLipton, MarcusThomson, Rt. Hn. George
Dobson, RayLoughlin, CharlesTinn, James
Doig, PeterLuard, EvanUrwin, T. W.
Dunnett, JackLubbock, EricVarley, Eric G.
Dunwoody, Mrs. Gwyneth (Exeter)Mabon, Dr. J. DicksonWainwright, Edwin (Dearne Valley)
Eadie, AlexMcBride, NeilWalker, Harold (Doncaster)
Edwards, Robert (Bilston)McCann, JohnWallace, George
Ellis, JohnMacColl, JamesWatkins, David (Consett)
Ennals, DavidMacdonald, A. H.Wellbeloved, James
Evans, Fred (Caerphilly)Mackenzie, Gregor (Rutherglen)Wells, William (Walsall, N.)
Evans, Ioan L. (Birm'ham, Yardley)Mackintosh, John P.Whitaker, Ben
Fernyhough, E.Maclennan, RobertWhite, Mr. Eirene
Fitch, Alan (Wigan)McMillan, Tom (Glasgow, C.)Whitlock, William
Ford, BenMacPherson MalcolmWilley, Rt. Hn. Frederick
Forrester, JohnMallalieu, E. L. (Brigg)Williams, Alan (Swansea, W.)
Fraser, John (Norwood)Mallalieu, J. P. W. (Huddersfield, E.)Williams, Alan Lee (Hornchurch)
Freeson, ReginaldManuel, ArchieWilson, William (Coventry, S.)
Gardner, TonyMarsh, Rt. Hn. RichardWinnick, David
Garrett, W. E.Millan, Bruce
Ginsburg, DavidMiller, Dr. M. S.TELLERS FOR THE AYES:
Greenwood, Rt. Hn. AnthonyMoonman, EricMr. Charles R. Morris and
Gregory, ArnoldMorgan, Elystan (Cardiganshire)Mr. Ernest G. Perry.
Grey, Charles (Durham)Morris, Alfred (Wythenshawe)
NOES
Allason, James (Hemel Hempstead)Farr, JohnMurton, Oscar
Atkins, Humphrey (M't'n & M'd'n)Fraser, Rt. Hn. Hugh (St'fford & Stone)Nabarro, Sir Gerald
Bell, RonaldGilmour, Ian (Norfolk, C.)Neave, Airey
Biffen, JohnGlover, Sir DouglasNewens, Stan
Biggs-Davison, JohnGoodhart, PhilipNorwood, Christopher
Birch, Rt. Hn. NigelGoodhew, VictorOnslow, Cranley
Black, Sir CyrilGrimond, Rt. Hn. J.Osborn, John (Hallam)
Body, RichardHeald, Rt. Hn. Sir LionelPage, Graham (Crosby)
Booth, AlbertHeffer, Eric S.Page, John (Harrow, W.)
Boyd-Carpenter, Rt. Hn. JohnHooson, EmlynPark, Trevor
Brewis, JohnHughes, Emrys (Ayrshire, S.)Percival, Ian
Bruce-Gardyne J.Iremonger T. L.Perry, George H. (Nottinghom, S.)
Bullus, Sir EricJeger, Mrs. Lena (H'b'n & St. P'cras)Peyton, John
Campbell, B. (Oldham, W.)Jenkins, Hugh (Putney)Powell, Rt. Hn. J. Enoch
Corfield, F. V.Kerr, Mrs. Anne (R'ter & Chatham)Prior, J. M. L.
Costain, A. P.Kimball, MarcusPym, Francis
Crouch, DavidLewis, Arthur (W. Ham, N.)Rawlinson, Rt. Hn. Sir Peter
Dean, PaulMcAdden, Sir StephenRhys Williams, Sir Brandon
Dickens, JamesMaclean, Sir FitzroyRidsdale, Julian
Drayson, G. B.Macmillan, Maurice (Farnham)Rodgers, Sir John (Sevenoaks)
Driberg, TomMcNair-Wilson, PatrickRussell, Sir Ronald
Eden, Sir JohnMaude, AngusSheldon, Robert
Elliott, R. W. (N'c'tle-upon-Tyne, N.)Mendelson, J. J.Smith, Dudley (W'wick & L'mington)
Ewing, Mrs. WinifredMonro, HectorSmith, John (London & W'minster)
Eyre, ReginaldMorgan, Geraint (Denbigh)Steel, David (Roxburgh)

The Committee divided: Ayes 142, Noes 84.

Stodart, AnthonyWiggin, J.
Temple, John M.Williams, Donald (Dudley)TELLERS FOR THE NOES:
Wainwright, Richard (Colne Valley)Winstanley, Dr. M. P.Mr. Michael Foot and
Walker-Smith, Rt. Hn. Sir DerekWood, Rt. Hn. RichardMr. John Lee.
Whitelaw, Rt. Hn. WilliamWright, Esmond

Question put accordingly, That the Amendment be made:—

Division No. 149.]AYES[5.45 p.m.
Bell, RonaldHeald, Rt. Hn. Sir LionelPage, John (Harrow, W.)
Biffen, JohnHeffer, Eric S.Park, Trevor
Biggs-Davison, JohnHooson, EmlynPercival, Ian
Birch, Rt. Hn. NigelHughes, Emrys (Ayrshire, S.)Perry, George H. (Nottingham, S.)
Black, Sir CyrilIremonger, T. L.Peyton, John
Body, RichardJeger, Mrs. Lena (H'b'n & St. P'cras, S.)Powell, Rt. Hn. J. Enoch
Boyd-Carpenter, Rt. Hn. JohnKerr, Mrs. Anne (R'ter & Chatham)Ridsdale, Julian
Brewis, JohnKimball, MarcusRodgers, Sir John (Sevenoaks)
Bruce-Gardyne, J.Lewis, Arthur (W. Ham, N.)Russell, Sir Ronald
Bullus, Sir EricLubbock, EricSheldon, Robert
Campbell, B. (Oldham, W.)McAdden, Sir StephenSmith, Dudley (W'wick & L'mington)
Corfield, F. V.Maclean, Sir FitzroySmith, John (London & Westminster)
Costain, A. P.Macmillan, Maurice (Farnham)Steel, David (Roxburgh)
Davidson, James (Aberdeenshire, W.)Maude, AngusStodart, Anthony
Dean, PaulMendelson, J. J.Temple, John M.
Drayson, G. B.Monro, HectorWainwright, Richard (Colne Valley)
Driberg, TomMorgan, Geraint (Denbigh)Walker-Smith, Rt. Hn. Sir Derek
English, MichaelMorrison, Charles (Devizes)Whitaker, Ben
Ewing, Mrs. WinifredMurton, OscarWiggin, J.
Farr, JohnNabarro, Sir GeraldWilliams, Donald (Dudley)
Fraser, Rt. Hn. Hugh (St'fford & Stone)Neave, AireyWinstanley, Dr. M. P.
Gilmour, Ian (Norfolk, C.)Newens, StanWright, Esmond
Glover, Sir DouglasNorwood, Christopher
Goodhart, PhilipOnslow, CranleyTELLERS FOR THE AYES:
Goodhew VictorOrme, StanleyMr. Michael Foot and
Grimmond, Rt. Hn. J.Page, Graham (Crosby)Mr. John Lee.
NOES
Albu, AustenGregory, ArnoldMcMillan, Tom (Glasgow, C.)
Anderson, DonaldGrey, Charles (Durham)MacPherson, Malcolm
Archer, PeterGriffiths, David (Rother Valley)Mallalieu, E. L. (Brigg)
Bagier, Gordon A. T.Griffiths, Eddie (Brightside)Mallalieu, J. P. W. (Huddersfield, E.)
Beaney, AlanHamilton, James (Bothwell)Manuel, Archie
Bishop, E. S.Hannan, WilliamMarsh, Rt. Hn. Richard
Boyden, JamesHarper, JosephMillan, Bruce
Bradley, TomHarrison, Walter (Wakefield)Miller, Dr. M. S.
Bray, Dr. JeremyHart, Rt. Hn. JudithMorgan, Elystan (Cardiganshire)
Brooks, EdwinHaseldine, NormanMorris, Alfred (Wythenshawe)
Brown, Bob) (N'tle-upon-Tyne, W.)Hazell, BertMorris, Charles R. (Openshaw)
Buchan, NormanHerbison, Rt. Hn. MargaretMorris, John (Aberavon)
Callaghan, Rt. Hn. JamesHooley, FrankMoyle, Roland
Cant, R. B.Houghton, Rt. Hn. DouglasOakes, Gordon
Carmichael, NeilHoy, JamesOgden, Eric
Castle, Rt. Hn. BarbaraHuckfield, LeslieO'Malley, Brian
Chapman, DonaldHughes, Hector (Aberdeen, N.)Page, Derek (King's Lynn)
Coe, DenisHunter, AdamPannell, Rt. Hn. Charles
Crossman, Rt. Hn. RichardHynd, JohnPavitt, Laurence
Dalyell, TamIrvine, Sir Arthur (Edge Hill)Peart, Rt. Hn. Fred
Davies, Ednyfed Hudson (Conway)Jenkins, Hugh (Putney)Pentland, Norman
Davies, Rt. Hn. Harold (Leek)Jenkins, Rt. Hn. Roy (Stechford)Probert, Arthur
Davies, Ifor (Gower)Johnson, James (K'ston-on-Hull, W.)Rees, Merlyn
Delargy, HughJones, Rt. Hn. Sir Elwyn (W. Ham, S.)Reynolds, Rt. Hn. G. W.
Dobson, RayJudd, FrankRoberts, Rt. Hn. Goronwy
Dunnett, JackKelley, RichardRoberts, Gwilym (Bedfordshire, S.)
Dunwoody, Mrs. Gwyneth (Exeter)Kenyon, CliffordRobinson, Rt. Hn. Kenneth (St. P'c'as)
Eadie, Alex
Edwards, Robert (Bilston)Lawson, GeorgeRodgers, William (Stockton)
Ellis, JohnLee, Rt. Hn. Frederick (Newton)Ross, Rt. Hn. William
Ennals, DavidLipton, MarcusSilkin, Rt. Hn. John (Deptford)
Evans, Fred (Caerphilly)Loughlin, CharlesSkeffington, Arthur
Evans, Ioan L. (Birm'h'm, Yardley)Luard, EvanSmall, William
Fernyhough, E.Mabon, Dr. J. DicksonSteele, Thomas (Dunbartonshire, W.)
Fitch, Alan (Wigan)McBride, NeilStonehouse, Rt. Hn. John
Ford, BenMcCann, JohnTaverne, Dick
Forrester, JohnMacColl, JamesThomson, Rt. Hn. George
Fraser, John (Norwood)Macdonald, A. H.Tinn, James
Freeson, ReginaldMackenzie, Gregor (Rutherglen)Urwin, T. W.
Garrett, W. E.Mackie, JohnVarley, Eric G.
Ginsburg, DavidMackintosh, John P.Wainwright, Edwin (Dearne Valley)
Greenwood, Rt. Hn. AnthonyMaclennan, RobertWalker, Harold (Doncaster)

The Committee divided: Ayes, 74, Noes 133.

Wallace, GeorgeWhitlock, William
Watkins, David (Consett)Williams, Alan (Swansea, W.)TELLERS FOR THE NOES:
Wellbeloved, JamesWilliams, Alan Lee (Hornchurch)Mr. J. D. Concannon and
Wells, William (Walsall, N.)Wilson, William (Coventry, S.)Mr. Ernest G. Perry.
White, Mrs. Eirene

Photo of Mr Hugh Fraser Mr Hugh Fraser , Stafford and Stone

On a point of order. The Committee has been genuinely distressed by the discourtesy shown to the hon. Member for Ebbw Vale (Mr. Michael Foot). It is a breach of courtesy by the Minister that he should reply to my right hon. Friend and not give an opportunity to the hon. Member for Ebbw Vale to make his speech to which there should have been a reply. This makes it difficult for the Committee to conduct itself in a good tempered way.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

The hon. Gentleman may be right, but it is not a point of order for the Chair.

Photo of Mr Hugh Fraser Mr Hugh Fraser , Stafford and Stone

This arises on the Closure; it is a very important point. It has been made perfectly clear that the Minister is not——

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. I cannot discuss now the question of the Closure.

Photo of Mr John Peyton Mr John Peyton , Yeovil

On a point of order. Will you, Mr. Irving, indicate to that body of men who constitute the Government Whips that when they move the Closure, when they try to administer the humane killer to the discussion, they should do so in audible tones and should not be overcome by their well-justified and no doubt profound sense of shame? They should stand up like men and commit their horrid crimes in the full public gaze so that they can be heard.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Happily, this is not a point for the Chair.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

I beg to move Amendment No. 235, in page 5, line 1, leave out from 'session' to end of line 3.

The words which I am proposing to leave out are these: or within such extended period as the House may for special reasons allow. There is raised by the Amendment both a narrower point and one which is of wider significance. The words which I am proposing should be left out do not occur here for the first time. Precisely the same words occur in Clause 3(4) at the end of the subsection, where again we read the words: or such extended period as the House may for special reasons allow. In that context when that Clause was before the Committee, I raised with the hon, and learned Gentleman the Solicitor-General the question of what interpretation should be put upon this phrase. It seemed to me that there were two alternative interpretations. One was that the House, that is the reformed House of Lords, could take the view that there were special reasons prevailing at that time. It might decide that there were special reasons relevant to the circumstances of the time for allowing the voting declaration to be made out of time. Alternatively, the phrase might mean that the House was to apply itself to special reasons relating to the particular person who was attempting to put in a voting declaration. In other words, is this provision ad hominem, special to the persons or is it of wider application? What is the nature of the discretion which this phrase leaves to the House of Lords?

[Mr. HARRY GOURLAY in the Chair]

The hon. and learned Gentleman the Solicitor-General, thorough and courteous as always, took up my query in the debate on 26th February and replied to me as follows: The right hon. Member for Wolverhampton, South-West (Mr. Powell) earlier in the course of our consideration of the Clause asked me whether the extended period was intended to be of general application or a concept to be applied, by contrast, ad hominem. I have already communicated with him about this matter … Perhaps I should say, Mr. Gourlay, that this was in no sense a secret or private communication which the Solicitor-General had with me. It was limited simply to a courteous intimation by the hon. and learned Gentleman of his view and that he would state that view in Committee. He went on to say: … but I venture to offer to him and to the committee the view that, on a true construction, the provision is intended to be ad hominem and has that effect."—[OFFICIAL REPORT, 26th February, 1969; Vol. 778, c. 1818.] We know at least what were the intentions of the Government, presumably, in Clause 3 and what they are in Clause 5; that the special reasons for which the new House of Lords may allow a voting declaration after a longer period than would otherwise be the case are special reasons referring to that particular applicant. But, although we know the Government's intentions, it does not follow that they have carried them out. As a layman, I confess that I see nothing in the expression "for special reasons" which ensures that those special reasons are related to the circumstances of the applicant.

6.0 p.m.

Since the intention of the Government is clear, I think that it would have been at least advisable for the draftsman to make doubly sure. There could have been no objection to inserting words which would render it quite clear what the intention was. I hope, therefore, that note will be taken of this narrower point that I am making. I presume that the intention is the same in both Clauses, and I think that, before we leave this stage, the Government should introduce such words as will make it clear that the special reasons are special reasons relating to that applicant.

After all, we are not in the same position as a Committee which is passing ordinary legislation. When we are passing the great mass of legislation and we are advised by a Law Officer of the Crown that, on his interpretation, a given meaning attaches to a Clause, unless there are strong reasons to the contrary, generally we will rest satisfied. We know that it will be a court of law which will interpret the application of whatever Clause may be under consideration, that, having once interpreted it, the courts ever after will be bound by precedent, and that if, thereafter, that interpretation is to be altered, it will be necessary to come back to this House for new legislation.

That is not the position with this Bill. In effect, it is law which the new House of Lords will itself administer. If the new House of Lords takes a different view from that which the Solicitor-General has put to the Committee, and if the House of Lords takes a different view of the interpretation on one occasion from that which it takes on another, I see very little possibility of a recourse to the courts of law. This is probably a matter of great legal difficulty, but I am doubtful how recourse could be had to the courts of law if the House of Lords were to admit a voting declaration on one interpretation of these words, that being a different interpretation from that given to this Committee in passing the Clause.

In connection with this Bill, therefore, we are under a special obligation to make assurance doubly sure and to make certain that the meaning and intention conveyed to this Committee are so unambiguously spelt out on the face of the Clause that there cannot be any dubiety if and when it comes to be applied by another House, and that there cannot be any question of another House first interpreting it in one sense and then in another.

In this matter, I assume that the House of Lords would not necessarily be bound by its own precedent. I believe that it is not even bound by its own precedent when it is engaged on judicial business. I apprehend that certainly it would not be bound by its own precedent on the interpretation which it gave to this expression in admitting or not admitting a voting declaration from one of its Members.

I hope that the Government will see the necessity of writing words into this Clause which will express the intention on the face of it. I suggest that they might say … for special reasons relating to the circumstances of the applicant", or the like.

That it what I have to say upon the narrower issue raised by these words. It is not unusual to express a request for clarification by moving to leave out words. In terms of a request, I ask that assurance should be made doubly sure by any necessary Amendment.

Now I come to the larger matter which the Amendment raises. I drew attention to the fact that this formula had occurred before in the context of a voting declaration. In Clause 3(4), we have the provision that, after a peer has received a writ summoning him to Parliament, he has a month in which to decide whether or not to deposit a voting declaration. He is given a month after receipt of the writ, subject to this let-out phrase: … or such extended period as the House may for special reasons allow. "That is a provision applicable to peers generally, and it runs from the date of the issue of the writ for the particular Parliament.

Here we are dealing with a different situation which relates to ex-Ministers or ex-law lords as defined in subsection (1)(b). In order not to weary the Committee, I will take only one of those cases, because both raise the same point.

We have debated already the preceding provisions of this Clause in connection with the first Amendment which was called, but I apprehend that we shall need to consider them more at large when we come to decide whether the Clause should be added to the Bill. Dealing with the case of ex-Ministers, under those preceding provisions, if a peer is a Minister he does not need to put in a voting declaration. He is a voting peer, he is one of the 230 Members of the working House, by virtue of being a Minister. But Ministerial office does not last for ever. It does not even last for ever during the tenure of the same Administration or during the course of one Parliament. There are reshuffles. It can happen that the most blameless and efficient member of an Administration can be, as that cruel, brief word has it, "dropped".

We are now dealing with the fate of Ministerial peers who are axed, dropped, reshuffled, or however in our Parliamentary argot we may prefer to describe it. It is the predicament of a peer who has just ceased to be a Minister to which this subsection relates.

Photo of Mr Merlyn Rees Mr Merlyn Rees , Leeds South

Perhaps I might remind the right hon. Gentleman that that traumatic experience does not happen only to members of the Government but to members of the Shadow Cabinet.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

I do not want the hon. Gentleman to think that I am not willing to enter with him into a discussion of the consequences there, too, but I do not believe that they are germane to the provisions of subsection (2). That is the only reason why I decline to enter into judgment upon that subject with the hon. Gentleman.

So we come back to the subsection and find ourselves contemplating the sad, though not necessarily sad—it may be joyous, and in the case of this Administration I think it would be joyous—situation of a peer who has just ceased to be a Minister. He is lucky compared with others. He continues to be qualified as a voting peer to the end of that current Session. That gives him time for consideration which might, theoretically, be anything up to 12 months or more. Anyway, it is likely to be of considerable duration. He is not just pitched out of the voting House there and then; he remains a member to the end of the Session.

Photo of Mr Victor Goodhew Mr Victor Goodhew , St Albans

A cooling-off period.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

I am obliged to my hon. Friend for that happy intervention. We might describe this as a cooling-off period. Indeed, if the Bill had been so drafted that this subsection was a separate Clause—I know from experience how convenient it is to include as many provisions as possible in one Clause, and thus minimise the number of occasions for debate on Clause stand part—"Cooling-off period" would be a very suitable marginal annotation and title.

Not only does such a peer remain a qualified member of the voting House until the end of the Session; he still has the Recess afterwards and a month after the beginning of the next Session. So he is on clover, as it were, compared with any ordinary peer who has just received a writ and has to make up his mind, subject to the discretion of the House, within one month from that date.

Photo of Mr John Lee Mr John Lee , Reading

Not only are these provisions included, but, as it were, on the other side of the coin the Bill is silent about the position of a Minister who resigns or is dismissed and then is subsequently reappointed. We do not know whether this abrogates the need for a special reason or whether he would subsequently need another leave of absence, another exeat, if there were a subsequent resignation.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

That is great fun, too, though I am not sure it is not covered by—my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) says subsection (2,a). I had been looking at subsection (2,b), but (2,a) and (2,b) between them should deal with the case proposed by the hon. Member for Reading (Mr. John Lee).

Photo of Sir Douglas Glover Sir Douglas Glover , Ormskirk

I wonder whether my right hon. Friend realises that these Ministers, contrary to everybody else, keep their voting rights for the remainder of a Session and that in fact upsets the balance. It means that any Prime Minister could shuffle, to use my right hon. Friend's expression, 15 new non-voting peers in and the others remain voting. Therefore, the whole balance has gone up the pole.

Photo of Mr Enoch Powell Mr Enoch Powell , Wolverhampton South West

There is a proverb, which in Latin would be somewhat lengthy to try the patience of the Committee, but which says something about people who speak our own ideas before we get to speaking them ourselves. That, indeed, is what my hon. Friend the Member for Ormskirk (Sir D. Glover) has done. With his customary penetration he has gone right to the underlying essential point here and thus anticipated me. But, with his leave, I should like to come to that presently because I am still concerned with the individual ex-Minister peer deciding whether to put in a voting declaration.

My point is that he is in a different situation from that which arises where this latitude was previously allowed in Clause 3(4). There it was a month and done: writ, a month's grace, and after that dependence upon the special allowance of the House. In the case of the ex-Minister there is the rest of that Session, the interval between that Session and the next, and a month after the beginning of the next Session. So we are really putting these ex-Ministerial peers in an advantageous situation compared with their colleagues.

6.15 p.m.

It may be that the theoretical case will be posed: that there could be a reshuffle just before the beginning of a Session. I agree that in that case the position of the ex-Ministerial peer would approximate to the situation of the peer covered by Clause 3. Nevertheless, I submit that, once again, we are giving altogether too much latitude—and we have no knowledge how it will be exercised—to the other House in regard to ex-ministerial peers.

Apart from the drafting point which I made earlier, we have no idea what individual grounds another place might take into account. We have no idea what sort of period it might envisage. Is it just a few days after the month's grace? If someone has been away for a year on a voyage round the world, will it be able to say—I imagine that it will—"That is all right, he can still put it in"? I do not believe that this is a justifiable allowance in the case of these ex-ministerial peers.

I now come to the point raised by my hon. Friend the Member for Ormskirk. From the beginning, the excuse for this exercise on which we are engaged is that it will enable us to construct a delicately balanced House which would neither be able to oppose too much nor too little—the House of 230 with the sort of composition set out in paragraph 48 of the White Paper.

I want the Committee to consider the situation that would arise following a Government reshuffle involving a number of Ministers in the upper House. Let us assume that the Ministers in the upper House have been on the Government's ration and that half a dozen have gone—one senior Minister, perhaps, and five junior Ministers. That is not unknown in Parliamentary experience. They are replaced in the House of Lords by a different senior Minister and junior Ministers who may not necessarily already be members of the voting House. It might well be inconvenient that they should be. So far, at best, we are all quits. If they were all members of the voting House already there has been no increase in the Government's ration.

But what about the ex-Ministers? They are in the situation to which this part of the Clause relates. They are men with time on their hands. They are possibly somewhat discontented men, ripe for mischief, desiring to be employed, desiring to take an active part in the work of the House to which they belong and in which, as Ministers, they have been acting. They will, quite probably, sooner or later put in their voting declarations. The result will be that there will automatically be that much addition to the Government's ration. Immediately, this beautifully contrived balance is upset. So the simplest provision for exempting Ministers from the general qualifications for being voting peers, when we follow it through, we find in the end drives a coach and horses, or perhaps a coach and pair, through the scheme which is the alleged justification for what we are doing.

On grounds of drafting, on grounds of fairness as between one peer and another, and on grounds of the absurd result of an attempt to contrive in this way the working of the House of Lords with a specific balance, I believe that we should mark these three matters by leaving these words out of the Clause until something more sensible can be put into their place.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

The right hon. Member for Wolverhampton, South-West (Mr. Powell) has shown quite convincingly that there are again large questions of principle involved in the Amendment, and I propose to come to some of those matters in a moment.

I should like, first, to refer to matters that we discussed on the previous Amendment. I know that it would be improper to debate them, but the previous Amendments are connected with this Amendment in the sense that the two categories that we have discussed in the previous Amendments, the Ministers and the law lords, are those who have the benefit from this Clause which the right hon. Gentleman seeks to remove, and therefore in that sense I believe that reference to some of the things that were said—of course, not recapitulation of the whole debate—is in order.

Had I been able to catch the eye of the Chair earlier I was proposing to say that the two Ministers who have dealt with this matter from the Government Front Bench—and I say this in, I hope, no patronising sense—have done so in the most courteous manner. I think that they have sought to reply to all the questions which have been raised, and I think that we owe them a great deal of gratitude in that respect. Indeed, I would go so far as to say that their courtesy has increased in almost exact proportion to the invalidity of their arguments. When we finally see them enraged we shall know that they are on a strong point. So far they have not got to that situation.

I suggest that to enable the proceedings of the Committee to be conducted in the manner that we all desire Ministers should adopt the old-fashioned custom that we have here, that there should be speeches from one side of the House and then from the other side. I do not know how this old custom grew up, but there is something to be said for it. It is an old custom, too, that Ministers have found it advisable over the years—and I dare say if we look back over 700 years we shall find this to be the case—to treat their own back benchers with at least the same courtesy as they extend to those on the opposite side. If we are not to have any diversions from the smooth progress of the Bill through the Committee I hope that Ministers will take that into account on future occasions.

Fortunately it has been arranged by our ancestors that there are many alternative methods of conducting business in this House, many alternative methods of discussing matters, not merely on the Bills that are before us. There are other methods by which legislation can be discussed and dealt with. I hope that Ministers will take that into account, and that no Minister will in future suggest that the time when he seeks to intervene in a debate has no influence on the course of the debate.

The status of the Minister on the Treasury Bench should govern the debate. The Minister, whether he is a Prime Minister, a Minister, a Secretary of State, or a Minister of State——

Photo of Mr Harry Gourlay Mr Harry Gourlay , Kirkcaldy District of Burghs

Order. We are discussing Amendment No. 235 which deals with deleting certain words from Clause 5. I do not think that we are discussing the procedures of the Committee.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

Mr. Gourlay, you are perfectly correct, and I leave the point which I hope I had made, but I trust that I shall never have to refer to it again.

I do not propose to deal with the lesser point to which the right hon. Gentleman referred. It is an important point, and I am sure that the Minister will give us an explanation about it.

I propose to deal with the larger question of principle which the right hon. Gentleman has raised. The further we proceed with the Bill, the more extraordinary is the revelation that we get. I invite all hon. Members to read carefully the Clause and the subsection that we are discussing. If those who have not followed the Bill quite as closely as some of us have were to read the Clause they would be astounded at the meticulous nature of this provision.

Here we are setting up a second Chamber. There have been debates on the previous four Clauses, which I shall not recapitulate now. Here we are dealing with major matters covering the structure, nature, and size of that assembly, and on all these discussions we have come to the conclusion that the provisions in the Bill are extremely vague, that we cannot pin them down, that it is impossible to specify exactly what they mean. But when we come to this Clause and to this Amendment we discover that those who have drafted the Bill and organised it have been so meticulously careful in their arrangements that they have not merely made special provisions for protecting Ministers in the new Chamber that is to be established, they have not merely made special provisions for exempting them from attendance, they have not merely made special provisions to govern the way in which Ministers may vote, they have not merely made special provisions by which law lords will be able to be exempted from the provisions which apply to other people, they have not merely decided what is going to happen when those law lords are actually operating in the other place, but they have gone on to decide what is to happen to those law lords and what is to happen to those Ministers if by some misadventure they lose their jobs.

In fact, they have gone even further than that. Not merely have they made all those elaborate arrangements for ensuring that ex-Ministers shall have special privileges when they are Ministers, that is, privileges which distinguish them from the others in the other place, not merely have they arranged that law lords shall have advantages which are not distributed amongst the other lords, but they have decided that those persons shall have special advantages when they are pitched out. Over and above that, if by any chance the special privileges which they are to be accorded when they are pitched out are not satisfactory for them, there is some obscure arrangement, but an arrangement which is presumably meant to be advantageous to the Ministers or to the law lords, to come to their assistance.

I make no comment upon the rest of their conduct, but this seems to me to be incredible for a Government whose foresight has not been infallible in dealing with the Bill. They have not foreseen exactly the nature of the discussions we might have. They have not foreseen exactly the timetable that we might have to execute to get the Bill. They have not foreseen some of the complications which some of us have sought to point out. I think that that would not be an exaggerated way of describing our debates. However contemptuous some of us may be of the debates which we have had, no one will say that all that we have raised has been foreseen, and therefore the Government cannot claim that in this Bill they have been able to foresee everything that might occur.

For a Government who have not been notable for their foresight to have gone into such detail to try to ensure that no injustice shall befall some future law lords, or some future Ministers, who might lose their office in another place is the most extraordinary event, the most extraordinary development, or feature, of the Bill that I have yet come across.

6.30 p.m.

Photo of Mr Cranley Onslow Mr Cranley Onslow , Woking

Has it occurred to the hon. Gentleman that it is possible that the plight of hon. Members who may lose their office is the only question about which Members of the Government are capable of thinking?

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

I should not like to resort to any such uncharitable explanation, but I intended to search for the explanation at a future point. I was not proposing merely to pose the problem and leave it in the air. I wanted to examine the question why we had reached this situation.

I do not think that anybody could contest my submission that this is an extraordinary state of affairs. It may be justifiable, but we have heard no justification so far. We do not know why we should be invited by the Government to consider these distant and elaborate complications and eventualities that might conceivably occur in some hypothetical future. It is like the architect setting out to build a house who says, "I am very sorry; I cannot tell you how many rooms it will have, or what size it will be, or how we shall get the roof on, or how the place will be heated, but I can assure you that we have decided the precise shade of the wallpaper in the scullery and the colour of the lavatory seat". When we are faced with such an extraordinary phenomenon and are presented with a Bill of this nature it is natural that we should seek the explanation as the hon. Member for Woking (Mr. Onslow) said.

I am driven to the same conclusions—although I would hesitate to use such violent language—as the right hon. Member for Wolverhampton, South-West. He used the word "inducements" and the word "suborn"—although he withdrew that hastily. Again, for the benefit of hon. Members who may not have been in the Committee at the time, the right hon. Gentleman was suggesting something extremely serious, especially for one who weighs his language so carefully.

The word "inducements" is a very strong one. The suggestion was that precisely the people with whom we are dealing in the Amendment—the law lords—had entered into some deal with those who constructed the Clause and, in particular, the subsection. The suggestion of the right hon. Gentleman—it is not mine; I shall say later whether I agree with it—was that in order to ease the passage of the Bill and to make it appeal more to Members of the other place certain discussions took place. I am merely spelling out the inference in the speech of the right hon. Gentleman.

Some discussions must have occurred between those acting on behalf of the Committee which drew up the White Paper and the law lords. According to the inference of the right hon. Gentleman's speech, the law lords suggested to the Committee, or the Committee suggested to the law lords—it is equally unsavoury, whichever way it may have occurred—that a deal should be done. Perhaps the law lords said, "All right, if you make sure that the whole thing is made extremely convenient for us, so that we do not have to go through all this degrading business of proving that we are voting peers. We must not be subjected to that." It may be that the law lords themselves suggested that the best way to do this would be to insert a special Clause in the Bill which exempted them, or perhaps the Government or the Committee—acting also on behalf of the Opposition Front Bench—made the suggestion to the law lords.

That is what the right hon. Gentleman said. He said it in the debate on the previous Clause and he received no answer from the Government Front Bench.

Photo of Mr Elystan Morgan Mr Elystan Morgan , Cardiganshire

I thought that I had answered the point and tendered to the Committee the view that the reason was that it was necessary for retiring Lords of Appeal in Ordinary to help out when illness occurred, and that this had happened on many occasions and was the natural explanation for the presence of subsection (3) in the Clause.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

I believe that that referred to the position of the Lords of Appeal as compared with the other Lords. The reference of the right hon. Gentleman to inducements did not refer merely to the distinction he made between their Lordships in general and the Lords of Appeal. The question of inducements concerned the whole Clause. That may be a reinforcement of the argument. The right hon. Gentleman was saying that the main point that we were discussing on previous Amendments was the question why a privileged position was being given to the law lords—as to Ministers—that they should be able to vote even though their attendances did not come up to the necessary requirement.

The right hon. Gentleman was saying that the inducement offered to the law lords was that they should be exempted from what some of us regard as the indignities to which other lords are to be subjected.

Photo of Mr Harry Gourlay Mr Harry Gourlay , Kirkcaldy District of Burghs

Order. We are not discussing Clauses in the Bill; we are discussing Amendment No. 235, which is to delete certain words from the Clause. Perhaps the hon. Member will direct his remarks to that Amendment.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

I thought that I was directly doing so, Mr. Gourlay. I hope that I was. That was my intention. I am suggesting that this was part of the inducement offered to the law lords, in addition to others. In order to discover how this addition was made we have to discover the original sum, and how this inducement was added to the others. It is surely proper for us to do this, so that we may have the whole matter in perspective. I have not adopted the arguments of the right hon. Gentleman that this was the way in which it was agreed, but I should be glad if any hon. Member can give me an alternative explanation.

I return to the point that I was making, namely, that the Minister made no reply whatsoever to the charge that inducements had been offered. The charge therefore stands. The charge should be answered. As I have said on many previous occasions, it should be answered, among others, by the Leaders of the Opposition. They should answer it partly because they must be aware of the discussions that took place. I want to discover how it is that we should have been presented with the precise subsection which the right hon. Gentleman wishes to delete. How is it that the House of Commons is called upon to agree to a Clause which will provide not merely for the way in which the House of Commons is to be constituted, and not merely for special favours for particular groups, but also that those favours shall continue long after they have served the purposes for which they were originally given.

We can argue that special favours should be given for Ministers in another place. If I had the chance, however, I should like to put the contrary argument.

One can argue that special favours and a privileged position should be given to law lords. I oppose that, but I was not able to oppose it then and I cannot recapitulate the argument. But I cannot see why, after these proposals have been forced through the Committee, we should now have to agree to two different forms of special favour.

I should be out of order if I directed my arguments primarily to the first part of subsection (2)(b), because that is not the part directly dealt with by the Amendment, but it is remarkable that, in addition to saying that the special voting rights of ex-Ministers and ex-law lords should be sustained for a period of the Session after they have left their offices, there may be a further period in which they will be granted these favours on grounds which we do not understand and which no one has explained.

There is no explanation in the White Paper. Therefore, in the absence of any such explanations, we are driven back to the most unsavoury or sinister suggestions. The hon. Member for Woking suggested that the reason was a calculation of Ministers of the period in which they were most interested. He said that this had been put in by Ministers who thought that they might be affected by it. I do not believe that. That is to strain credulity much too far. But, somehow, this extraordinary subsection has got into the Bill and we want to know why.

Our experience not only on this Clause but on others is that there were discussions, in the other place, presumably, and with representatives of the other place, which went into great detail about how particular Clauses were to operate. They must have gone into detail. How did these proposals ever reach a Bill, otherwise?

This period has been called a "cooling off" period, a sort of safety net or probation period. We know of cases in British political history when Ministers have been pitched overboard but have made arrangements to land in a lifeboat and have been picked up at a very early date. There is the case of Sir Samuel Hoare and his resignation in 1935. He threw himself overboard and there was hardly a splash. We were not surprised when he climbed on board again a few months later in the risible guise of First Lord of the Admiralty. I can see how a probation period might have been of assistance then, because he would have had a guarantee of being able to exercise his voting rights in the other place for a period afterwards, and he would find that very convenient.

But if this is to be extended, as the right hon. Gentleman said, it disrupts some of the other calculations in the White Paper. It disrupts the calculations about the exact majority which is to prevail there. This is the most extraordinary affair. We shall later discuss again the Preamble and the arguments which we had earlier about that, but it is extraordinary that we cannot have in the Bill the methods by which the majority will be decided in the other place when we do have in the Bill what is going to happen to ex-Ministers or ex-law lords after they have exhausted the right of other lords to continue voting, despite the fact that they are not attending for a third of the time.

How is it possible for a Measure to be creditably presented in the House with such a contretemps as that? Either the Government should present the whole Bill in the same elaborate procedure, so that we know what we are voting on, or they should remove such Clauses as this. We are invited to pass on trust most of the measures which will govern the way in which the whole arrangement will run, but the meticulous details of how it is to operate must be pinned down in every Clause and subsection. There could not be a more extraordinary way of conducting our legislation.

As the right hon. Gentleman and others have said, this raises the whole question how the majority is to be obtained in the other place and of what is to happen if there is a dispute about voting rights or eligibility of members in the other place. We had some discussion earlier about what would happen if those who had voted in a Division were shown subsequently, because of their voting record, to have done so improperly. In the present situation, there may be a dispute about persons who could be people very much in the political eye at the moment—a Minister who had been sacked or a law lord who had shown that he wished to engage in politics more than they are supposed to, according to the Bill.

On previous Amendments, I should have liked to put the case why some of us believe that law lords should not be regarded as though they had no political affiliation. I do not see why they should be put in this special category and have these rights, but, in this subsection, we are providing, not merely that law lords should be given special rights to vote, indeed, encouraged to vote, on political questions. The White Paper deliberately says that the Government want law lords to vote on political matters: that is their view on the question. Also, by the implication of this subsection, the Government wish to give law lords who have ceased to hold office the chance of influencing decisive votes in the House of Lords long after, or at any rate a considerable period after, they have ceased to hold office.

Here again the Bill eventually lapses into vagueness, although it is meticulous in trying to protect these people. Who will determine what those "special reasons" are? We read in the Bill: … within such extended period as the House may for special reasons allow. Will this be referred again to the whole House? This raises the same questions as were raised over other parts of the Bill. Or will it be referred to this semi-quasi-judicial committee which will examine who has the right and who has not the right to vote?

Nothing could be more ridiculous than for us to set up a second Chamber in which the questions of who is and who is not to vote were left vague. Nothing could be more dangerous, particularly when, in another part of the Bill, a major objective is stated to be to make the Divisions in the other place much more narrow. One of the main purposes is to ensure that there is a majority for the Government in each Parliament, but that it is kept within limits as narrow as possible, or at any rate fairly narrow. I understand the reasons for that, but the more that this is done, the more significance must be attached to the vote of every individual lord, and the more, on critical occasions, a single vote this way or that can settle the whole question.

The Bill is vague in explaining whether law lords and ex-Ministers will, in certain circumstances, have the right to vote. This and other important matters have apparently yet to be decided and I do not know how the sub-committee which is to be established will clear up these problems. This sub-committee will have to solve some of the most obstruse political problems possible, such as who should be cross-benchers and whether the neutral peers are behaving as they should. It will also have to decide whether the absence of certain peers on business should count towards attendance. It might be difficult for the committee to decide whether an old Minister who has either been pushed out, for good or bad, or who has resigned should have the vote and, if so, in what circumstances.

We are setting up a second Chamber partly, it seems, for the purpose of exercising greater political power, yet a Chamber to be comprised of people whose right to vote will always be in doubt. We must consider what will happen when a Minister or law lord resigns in another place, whatever the reason. His view about the age of retirement may differ from that of the Government's. A crisis may be faced by the nation and the question whether people in this category should have the right to vote will arise; that is, after leaving their offices. This problem is bound to arise if the political situation is inflamed because the glare of publicity will be directed to whether people in this position should have the power to decide the effectiveness of the second Chamber.

In years to come people will look back to these debates to see how the House of Commons tried to solve these problems. I hope, in the meantime, that the other place will apply its mind with care to solving them. I have opposed the Bill because of the uncertainties written into every part of it, and notably into the provision with which we are concerned. These uncertainties are bound, sooner or later, to lead to the consequences which I have described.

When it comes to deciding the question whether certain law lords and others are covered by this provision and whether they should be allowed to vote, there could be a clash between the two Houses. Indeed, the Bill will result in a clash of this type should accusations of bad faith be made because we have not made it clear who should have the right to vote and the fashion in which they should vote.

These uncertainties derive from the attempt which has been made to make an independent House of Lords subordinate. Although I would wish to modify some of the extravagant language used by the right hon. Member for Wolverhampton, South-West in this respect—he referred to "inducements", to the law lords having been "suborned" and so on—there was some merit in his argument. I was searching for a more agreeable explanation for this situation.

There has been much talk about the sums of money that will be paid to the Lords, but we should realise that we are here discussing a political pension which will be attached to those who hold these offices in another place. We shall be telling them, "If you lose your jobs in the Lords, you will have a chance of continuing to influence the affairs of the other place for a longer period than others."

This question of how votes should be cast and who should be allowed to vote must be further considered, but when these matters receive further consideration, they will be out of our hands. Indeed, they may not even be matters for the other place to decide. We do not know how the sub-committee which will examine these issues is to be consituted.

Photo of Mr Ian Gilmour Mr Ian Gilmour , Norfolk Central

The position could be even worse in that, the highest court in the land being the House of Lords, some of these matters might have to be decided there, which would complicate things extraordinarily.

Photo of Mr Michael Foot Mr Michael Foot , Ebbw Vale

That is a possibility. The sub-committee which will examine these matters appears to become more powerful as we get deeper into the Bill. This body will have to clean up this legislation if we leave it in its present state. That is why we must scrutinise it carefully and make it more precise. At least the Amendment, if accepted, would do something to add precision.

It must be made clear that even if the Government accepted the Amendment the problems of the Clause would not be solved. Its offensiveness would still remain. The Amendment would not remove our objection to the fact that special advantage will be given to those who have been Ministers and law lords.

It being Seven o'clock, The CHAIRMAN left the Chair, further Proceeding standing postponed until after the consideration of Private Business set down by direction of The CHAIRMAN OF WAYS AND MEANS under Standing Order No. 7 (Time for taking Private Business).

Mr. SPEAKER resumed the Chair.