Brexit Negotiations

Lord Mackay of Clashfern Excerpts

Monday 11th December 2017 Lords Chamber

[Baroness Evans of Bowes Park]

My noble friend is absolutely right. We are indeed in an unprecedented position of starting with the same rules and regulations in our discussions and will of course maintain our unequivocal commitment to free trade and high standards.

[Lord Mackay of Clashfern (Con)]

My Lords, it may be of help to think of the implementation period as one during which, knowing what the ultimate position is going to be, we prepare to reach it.

[Baroness Evans of Bowes Park]

My noble and learned friend is right.

European Union (Notification of Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, being number 40 on the list reminds me that I was some 45 years outside the European Union, and I remember well some of the service that was done, as has been mentioned, in bringing us into the European Union and the difficulties involved.

I voted for remain and was fairly enthusiastic about the referendum on the basis that the people were entitled to say whether or not they wished to be in the European Union. We know the answer and, so far as I am concerned, the Government and Parliament are bound to give effect to that answer. Perhaps the most obvious and dramatic indication of that was Mr Cameron’s resignation the morning after, when he said that having led the argument to stay, he could not lead the country out of the European Union.

So here we are, and now the question has arisen of whether the Government can initiate negotiations under the royal prerogative. The royal prerogative is well recognised as completely free in the negotiation of treaties and diplomacy generally. It is generally accepted that that is the right way to do it—Ministers should be responsible for that. There is a quotation from the 18th century that was quoted in the judgment in the Miller case. Blackstone, the great exponent of English law, explained the practical reasons for the prerogative managing international relations. He said:

“This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and despatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government; and to unite those several wills, and to reduce them to one, is a work of more time and delay than the exigencies of state will afford”.


The only reason that the prerogative was not operated to start the negotiations in connection with the European Union was because of the effect of the European Act in 1972. The fundamental rule is that the prerogative cannot affect individual parliamentary rights and therefore, to the extent necessary to open the negotiations, that authority needed to be given by an Act of Parliament. That is what the Supreme Court decided. It did not decide, and gave no countenance to the idea, that thereafter Parliament should control the negotiations. It is certainly true that ultimately the negotiations, whatever they are, will require examination. There is a distinct possibility that the implementation of what has been negotiated will, in the end, require an Act of Parliament. If that is the case, of course, Parliament will be fully involved. In the meantime, it seems much better that Ministers should have the responsibility to negotiate, because negotiation is primarily the issue here, until a final issue is reached. As I said, the judgment of the Supreme Court supports that very strongly.

Issues have been mentioned in the debate that will certainly occupy Ministers. I should like to believe that Ministers will be looking for the best possible agreement they can achieve in the interests of all the people, young and old, living in the United Kingdom—England, Wales, Scotland and Northern Ireland. I do not want to forget Gibraltar either, where the problems must be quite severe but different, in a way, from Northern Ireland. Those of us who have visited Gibraltar realise how tenuous the system there is and how this may affect it. Ministers have a responsibility to deal with all that and it is best for us to leave it to them to do so without trying to interfere, or put our finger in the pie, until they have finished the negotiations.

Therefore, I am all in favour of Second Reading and of the Bill being confirmed as it is. I hope that will be the outcome from this House, not because I am an unelected person—indeed, I am not the only unelected person in the British constitution. No member of the Government is elected to his or her position. Most of them are, of course, elected to the House of Commons but not to their position in government. I want to vote for the Bill not because I am unelected but because the decision is right.

House of Lords: Size

Lord Mackay of Clashfern Excerpts

Monday 5th December 2016 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I entirely agree with a good deal of what the noble Lord, Lord Butler of Brockwell, said. I believe that an Act of Parliament is ultimately necessary. It is true that we can do quite a lot, but a Select Committee examining this would find that some essential aspects require to be dealt with by an Act of Parliament. The most important of these, of course, is the prerogative of the Prime Minister in appointing Peers to this House.

I entirely agree with the view that, for various reasons, including very irrelevant ones, the size of this House has become an obstacle to the fulfilment of our task with the degree of acceptance in the community that it should have. Our fundamental task is to revise legislation that has been passed by the House of Commons. It is true that, from time to time in the past, and indeed this year it has been so, some Bills have started in this House. That is a perfectly reasonable way of proceeding in some cases. For example, I had responsibility for the embryo Bill that came here, and which was discussed by eminent experts who knew all about these matters, before it went to the House of Commons. I am glad to say that on the essential issue—namely, when embryo research should be allowed—the House of Commons accepted the view that had found favour here. If you go for a completely free vote, as we did on that Bill because of its nature, you are always risking that the House of Commons and the House of Lords might take different views. But that worked extremely well, and it is a very important piece of legislation in an area that is outside the ordinary scope of legislation that we have to pass.

The fundamental job of this House is the revision of legislation, with the exceptions that I have just mentioned. Over the time that I have been here, which is now a long time—I would immediately pass any retirement age that could reasonably be thought of so I would not object to one being suggested, although I think it is for someone else to do so rather than myself—the House of Commons, which I was never in, has found itself more and more subject to very heavy tasks arising in constituencies; so many people have problems that Members have to deal with. One of the results of that, I think, judging from afar, is that they do not have so much time or possibly so much inclination to revise the detail of Bills in Parliament. After all, those of us who do this know that it is not a particularly attractive task; in fact, it is rather a grind. But it is mightily important, because if legislation goes out of here wrong, it can do terrific damage to a lot of people.

I think we have found a way to try to deal with that, and often with quite contentious matters. As I say, I was never in the other place, but there is an atmosphere in this House of trying to get the right answer irrespective of any sort of political consideration. I have relished the atmosphere here since I came here a long time ago, and that atmosphere continues in an attempt to find a satisfactory answer that will do right for all manner of people. Even if we are not judges, we still try to do right to all manner of people in accordance with the usages of this realm. And it seems to me very important that that role is preserved, and that the people who are willing to undertake it, and to do so in a fairly comprehensive use of their time, are here to do it.

My noble friend Lord Caithness talked about coming from a distance. I live in Inverness, which is quite a distance from here, but it is possible if one is devoted to it that one should come and try to carry out one’s responsibilities. When one has a certain amount—a little, maybe—experience in this area, I find it a responsibility to come for as long as I can come: not every day or every week but as often as I possibly can, and certainly to matters which seem to be on something I know about, such as the universities Bill tomorrow. It is extremely important that we should have people here who have that mission, and I believe that a lot of people here do have it. I do not wish to show myself as unwelcoming to the people who have recently come; on the contrary, many of them may be much better than me at doing just that.

I want to mention just at the end that if we are to succeed in reducing the membership of this House we have to have a statutory cap on that membership; that is the only way in which we can control the size after it is reduced. It is one thing to reduce it and another to keep it reduced. I believe that a statutory cap is necessary. Of course there are complications about that, and I think it would be appropriate for a Select Committee to consider them. There are statutory complications: for example, when people in this House change their religions. Occasionally they move from being in the Conservative Party to the Cross Benches—more often, perhaps, from some other parties.

These are difficulties, but I do not think that they should be obstacles to our carrying out this fundamental task of having the House reduced in a permanent way to a size that is accommodating to the important task that has to be undertaken.

Leader of the House of Lords

Lord Mackay of Clashfern Excerpts

Monday 28th July 2014 Lords Chamber

[Baroness Scotland of Asthal (Lab)]

My Lords, I intend to be brief. There are two salient things that have come out of this debate. The first is that the House is united in its approval of the noble Baroness and her appointment, united in its esteem for the noble Baroness as our Leader. The second is that on all Benches there is clear agreement that that which has now transpired in relation to the noble Baroness’s appointment was wrong, was a mistake and should be changed with immediate effect. Every single Member who has spoken agrees, in essence, with the Motion of the noble Baroness, Lady Boothroyd, that we approve of the noble Baroness but also want to send a very clear message to the Prime Minister that that which he has done has not been well done. Whether it was a mistake or no, it has caused concern, offence and anxiety about our constitution across the House. If there needs to be a message, it needs to come from the whole House that this is not a party-political issue but a constitutional issue which this House will not be silent about and must now speak about.

Those of us who have had the privilege of attending Cabinet understand absolutely the difference between being a full member and merely an attending participant. No matter how great the noble Baroness’s talents—and they are considerable indeed—they will not be capable of being overcome in such a way as to represent this House as every single Leader of our House has had to do. We know, and we have spoken a little about it tonight, how difficult it is sometimes to get the other place to understand the reality of getting business through this House. The Leader will have to challenge the Government because that is what every single Leader of this place has always had to do. So, in commending the noble Baroness for her courage, for her acuity and for her skill, we need to say to the Prime Minister that up with this we will not put.

It is not because he is a Conservative Prime Minister. If any Prime Minister had had the temerity to do that which this Prime Minister has done, we would have given him the same message—or her, because this is not an issue about gender. I hope that when this House comes to speak, we will speak with one voice.

If I may, I say to the noble Baroness our Leader that she should remember always that we are with her and that when she speaks, she will speak with the force of all of us behind her—but that her leadership role differs from any other role in that Cabinet. We are of the view that we need to have a Leader who is a full member of Cabinet, so that when she speaks, the Prime Minister and the other Cabinet Ministers will have to listen.

[Lord Mackay of Clashfern (Con)]

My Lords, I entirely agree with almost all that the noble and learned Baroness, Lady Scotland, has just said. It would be most unfortunate if we were not to deliver a unanimous view on this matter. The only difficulty I have with the precise terms of the Motion moved by the noble Baroness, Lady Boothroyd, is that, as the noble Lord, Lord Butler of Brockwell, has pointed out, the options for the Prime Minister might take a little time. Therefore, if she was prepared to say “as soon as possible” as the conclusion, I think all of us could wholeheartedly agree with her.

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Boothroyd, for providing the opportunity for us to have this debate this evening. She is, it goes without saying, a distinguished Member of this House, and I have listened carefully to her and, indeed, to all noble Lords who have spoken tonight. I am very grateful to all noble Lords for the supportive comments that have been made about me personally. I am also grateful to the Constitution Committee under the chairmanship of my noble friend Lord Lang of Monkton which, contrary to how some of us have sought to portray it, has set out, in my view, a helpful and factual report that has been constructive in explaining how the relevant legislation has come into play on this occasion. The legislation that we are talking about is, of course, the Ministerial and other Salaries Act 1975.

I am the Leader of this House. While noble Lords may be concerned about my ministerial rank, nothing changes that simple fact. Nothing has changed in practice about how I represent this House within government, and I will do the job of Leader in exactly the same way as all my predecessors. Even though nothing has changed in practice, the Prime Minister has made clear that he shares the House’s view, expressed passionately again tonight, that the Leader of the House of Lords should,

“as a general rule, always be a full member of the Cabinet”.

He has confirmed that he sees the current situation as a purely temporary one that he will want to rectify at the earliest opportunity, and that he will certainly do so immediately after the general election if he is returned as Prime Minister and no opportunity has arisen to do so before then. I note that the noble Baroness, Lady Royall, said that if the Opposition are elected, they too would change the situation at that time.

The principle at the heart of the Motion moved by the noble Baroness, Lady Boothroyd, that this House should be properly represented within government at the highest level—that is to say, in Cabinet—is therefore not in dispute. We are all agreed on that point. The question we are debating tonight is how and when this temporary situation might be corrected and what problems, if any, this temporary situation creates.

A significant problem that the noble Baroness, Lady Boothroyd, and some others have identified is a risk, which was also identified by the Constitution Committee, that my status might detract from my authority in an intangible way and affect my ability to represent this House in the Cabinet. I will respond to that point as directly as I can. As I said during our short debate soon after my appointment, judge me on what I do and how I do it. My effectiveness in the job will rest on the quality of my arguments and my ability to put forward my case. If my arguments are no good and I cannot present a good case, it will not matter whether I am a full member of the Cabinet.

Noble Lords already have evidence that I can deliver without status and regardless of rank. I led one of the most contentious pieces of legislation in this Parliament through your Lordships’ House when I was no more senior than any Whip. In so doing, I hope I demonstrated that successful negotiation with other Ministers and senior civil servants is not all about rank.

David Cameron is the second Prime Minister and the third party leader with whom I have worked closely. I have never in my professional career shied away from giving unpalatable advice or expressing an opinion that those on the receiving end did not want to hear. I will continue to do that where I believe it is necessary for me to do so. If noble Lords do not believe me, they may speak to any of my former male bosses. Some of them are also members of your Lordships’ House.

I am an independent woman and a single lady. Noble Lords might want to think of me as the Beyoncé of your Lordships’ House. I none the less recognise that this is ultimately not about me. I understand the serious concern expressed about diminishing the standing of this House of Parliament. This House has already shown that it need not be affected by this temporary situation. In the days after my appointment, this House debated the Bill of the noble and learned Lord, Lord Falconer, on assisted dying. The following day the Telegraph commented:

“Yesterday’s discussion in the House of Lords was an example of Parliament at its finest”.

The Times headlined a similar editorial with two words: “Model Parliament”. All that said, the situation is temporary and the PM is committed to rectifying it by May next year at the latest if he is re-elected. The noble Baroness, Lady Boothroyd, talked, however, of the Prime Minister having careless disregard in the matter of my appointment. The noble Baroness, Lady Symons, also raised the constitutional concern.

It is important for me to remind noble Lords that it was the previous Government who removed the certainty of a full Cabinet member being in the House of Lords when they removed the Lord Chancellor from this House. The comparison by the noble Baroness, Lady Hayman, of this current, temporary situation to a permanent change is not one that I can accept. That change, the change of removing the Lord Chancellor from this House, has a profound impact. Indeed, the Constitution Committee’s report says:

“At the time of the 1975 Act it would have been assumed that at least the Lord Chancellor would always be a peer in the Cabinet”.

That change has had a profound impact on the membership of the Cabinet in terms of its representation from your Lordships’ House.

I turn now to some of the potential solutions that noble Lords have put forward tonight. I refer specifically to that which my noble friend Lord MacGregor made.

European Union (Referendum) Bill

Lord Mackay of Clashfern Excerpts

Friday 31st January 2014 Lords Chamber

[Lord Turnbull]

My Lords, this has been another hour and a half—but I do not begrudge that—of very interesting discussion. I am grateful to noble Lords who have spoken, overwhelmingly in support of the amendment. There are certain common themes. First, we are faced with a momentous decision. That was made very clear by the noble Lord, Lord Triesman, in his intervention during discussion on the previous amendment. Secondly, the matter is immensely complex. I am particularly grateful to the noble Lord, Lord Shipley, for giving us a sight of the trade implications and for making the link with the Electoral Commission in that one has to understand not only the question but the implications of the question. It was also agreed that we as a Parliament and supporters of democracy owe it to the electorate to give the best possible information on which to make such an informed decision. Of the arguments against, one was that such an assessment was unnecessary because it was going to happen anyway. I think that our debate yesterday showed a Government campaigning for a change and not making preparation for plan B. The noble Lord, Lord Dobbs, argued that it was inconceivable that such an assessment would not be supplied. If it is inconceivable, what is the harm of putting it in the Bill? More importantly, however, the noble Lord said that we should rely on the arguments coming forward from the yes campaign and the no campaign. Each of those documents will be partisan, because they will try to make a particular case, whereas the assessment required by the amendment would establish some factual ground.

What is the difference between this amendment and the amendment passed last week? The noble Lord, Lord Hannay, made this clear. It falls exclusively to the government of the day to make the assessment. They will have to cope with the consequences of a no vote and they should set out what they think those consequences should be.

It was asked why we should not have a similar document on the consequences of a yes vote. There are two reasons why I have not included that in the amendment. The first is that the Prime Minister has promised us his view of what the consequences of a yes vote would be after a renegotiation. The second is, as was perceptively pointed out by the noble Lord, Lord Davies of Stamford, that there is an asymmetry of information. A lot more will be known about being in and staying in than about moving out and something is needed to rectify that imbalance.

I lived in hope that the noble Lord, Lord Dobbs, would accept the proposal from the noble Lord, Lord Wigley, and others. I hoped that he would accept the principle of it and come back with something better. He complained that this is not a perfect amendment. He has had the opportunity to take it away and improve it but he has decided to spurn that. On that basis, I do not think we can take this argument further.

[Lord Mackay of Clashfern (Con)]

Before the noble Lord sits down, can he indicate whose intention he has in mind? The amendment refers to the “intended relationship”. Whose intention is at issue?

[Lord Turnbull]

That would be the responsibility of the Government who inherit the responsibility for negotiating the terms of separation. I beg to move.

Press Regulation

Lord Mackay of Clashfern Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Gardiner of Kimble]

As I have just replied to the noble Baroness, the membership and indeed the chairman of that committee will be announced very shortly. It will be for that committee to ensure that its work is rigorously applied given the legal opinion that has been given.

[Lord Mackay of Clashfern]

My Lords, is there any particular reason why the membership of a committee of the Privy Council should contain only members of the Cabinet?

[Lord Gardiner of Kimble]

With regard to the membership of this committee, I had hoped to be helpful to your Lordships and to have been able to give the information this morning, but it will be announced very shortly.

Death of a Member: Baroness Thatcher

Lord Mackay of Clashfern Excerpts

Wednesday 10th April 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, reference has already been made to Margaret Thatcher as a scientist and to her strong religious beliefs. However, there is yet another aspect to her experience that we should have in mind. She was a member of the Bar, having been a pupil to Lord Brightman, who many of your Lordships will remember from when he served here as a Member of this House and did tremendous work in committees of the House in various ways and in various subjects. She was a trained barrister.

My first personal contact with Margaret Thatcher was when she phoned me in Edinburgh on the Monday after the election in 1979, inviting me to become the Lord Advocate. A period of intense legal activity followed. At that time, the Lord Advocate was a member of the UK Government, but now, of course, he no longer is. He is a member of the Scottish Government, and the office of the Lord Advocate is to a great extent replicated in the office held by the noble and learned Lord, Lord Wallace of Tankerness. I was invited by Michael Havers, the Attorney-General, to co-operate with him in advising the Government on a lot of different matters. The ones that stick particularly in my mind are the European matters, because it was a time of great struggle in Europe in relation to the contribution that the United Kingdom had to make, which many thought was excessive. There were suggestions that we could refuse to make our contribution, and a lot of advice was sought about that.

The thing I remember particularly about Margaret Thatcher was that she was most careful on no account to do anything that was contrary to the legal advice she had received. From time to time, of course, she probed the soundness of that advice but, assuming the probing had been unsuccessful in dislodging it, she never went beyond it. Although that work was, in a sense, just legal work, it had an effect on the way in which she was able to negotiate, without the need to stop paying, the reduction in our contribution that she achieved. Many people thought that it was with the handbag; I believe that it was with really strong arguments that had been developed in the months before she went.

By 1987 I had become a Lord of Appeal in Ordinary. I was sitting in this House listening to a debate about extradition when I received a call to come over to see the Prime Minister on Monday afternoon at about 5 pm. To my intense surprise, the Prime Minister told me that Michael Havers had resigned earlier that day for the reason of ill health, and she invited me to become the Lord Chancellor. She said that she was very anxious to have it on the news at 7 pm, so the time for decision-making was not ample, but that is what happened. Her decision in that respect must be regarded as very courageous.

Her courage in other fields has been spoken of, and it was beyond any question, but her courage in this field was pretty remarkable because a very highly placed legal authority said that if he had been asked to take on the controlling of the Scottish legal system, he would have liked to have known something about it before he did it. I think your Lordships will know what was intended by that.

In those days, the position of Lord Chancellor to which I was appointed had a certain priority and protocol. Shortly after my appointment, my wife and I were invited to a state function at Buckingham Palace. At that time, the protocol was—it may still be, for all I know—that the first couple to greet the Queen and the royal guests from the other country was the Archbishop of Canterbury and his wife. The second couple to go in was the Lord Chancellor and his wife, and the Prime Minister followed. My wife could hardly contain herself at the idea of going in front of Margaret Thatcher into the royal presence. Mrs Thatcher just said to her, “This is what you have to do. On you go”. My wife had to do what she was told. Her character did not allow for much debate on that kind of thing.

While I held office, I was completely free from any interference whatever in the work of the Lord Chancellor’s Department from Margaret Thatcher. She never interfered. As your Lordships will remember, in those days the nominations for senior judicial appointments were made to the Queen by the Prime Minister on the advice of the Lord Chancellor. It has changed now, but that was the rule then. In no case did Mrs Thatcher ever interfere with any recommendation that I made for a judicial appointment. That was a sign of extraordinary confidence, which I very much cherish.

In those days, protocol gave the Lord Chancellor a status that sadly has been somewhat affected by recent changes. By the time Margaret Thatcher resigned as Prime Minister, it fell to me as a senior member of the Cabinet to express on behalf of her Cabinet our tribute to her. I have to say that I was greatly assisted in the preparation of that tribute by Sir Robin Butler, as he then was, because we did not have a lot of time in which to prepare this document, which we thought had some importance. She began to respond but, as those of your Lordships who were there will remember, she had some difficulty in controlling her emotions. Someone suggested that I should read her response, which of course she had written out. I said, “No, not at all”, which was enough to encourage her to carry on, because she got immediate control of her emotions and finished what she had to say. Your Lordships will also remember that later that day in the House of Commons, she made possibly one of the best parliamentary speeches of her life. I am glad to think that she was prepared by the earlier experience.

As I have said, my wife and I are very conscious of the tremendous support and kindness we received. I have just illustrated our experience at Buckingham Palace, but that is just one from a great number. I know that many people here and outside have experienced extraordinary kindness and thoughtfulness from a woman who was extremely great.

Leveson Inquiry

Lord Mackay of Clashfern Excerpts

Thursday 29th November 2012 Lords Chamber

[Lord Strathclyde]

The noble Lord was clearly wronged by elements of the press. He is right to say that Lord Justice Leveson has comprehensively exposed a failure in the PCC, which cannot continue any more. He largely absolves the police from blame, although he has made some important recommendations on certain changes relating to the relationship between the police and the press.

I know that there are a lot of speakers. I shall try not to make my answers too long so as to get in as many as we possibly can, but I remind noble Lords that there will be another Statement along in a minute.

[Lord Mackay of Clashfern]

My Lords, I shall try to follow that good example. When Lord Justice Leveson was appointed, I knew that we had an excellent judge to undertake this task. I knew from a certain amount of experience of being in Government in the past that he was dealing with an extremely difficult problem. We had the “last chance saloon” and so on over the time when I was in Government, so I know how difficult it is. Surely we have a unique opportunity at this time to go ahead with an extremely well thought-out system for giving the press the right of self-regulation that is seen to work in the public interest. The only purpose of the statutory arrangement is to ensure that that self-regulation will be properly independent in the sense that Lord Justice Leveson explained. I would have thought that the sooner we can get all-party consent to this, the better. There will be a certain amount of discussion about detail, but the principles and essentials of the legislation can surely be put in place very quickly. We owe it to people like those who have been referred to to do it as quickly as possible to prevent that kind of thing happening again.

[Lord Strathclyde]

My noble and learned friend has a great deal of experience and knowledge on this subject, and I agree with him that what we asked Lord Justice Leveson to do was extremely difficult—yet what he has done is to bring his intellect to bear and publish an extremely impressive report and analysis. I agree with much of what my noble friend said; there is an opportunity for us to work together on a cross-party basis to bring about some extremely good results as quickly and effectively as possible.

Queen’s Speech

Lord Mackay of Clashfern Excerpts

Thursday 10th May 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the Queen’s Speech contains a number of important constitutional matters. The matter of the royal succession is important and requires to be carefully negotiated with all members of the Commonwealth so that the unity of the Commonwealth, which has been so conspicuous under Her Majesty’s reign, may continue. There are also the proposals on electoral registration. I am disturbed by any suggestion that that should be motivated otherwise than by trying to achieve the fullest possible registration of voters in a proper way. I hope that that would be the motivation of any reform that is put forward. We are faced also with a major constitutional matter in relation to the independence of Scotland and possibly of other parts of the United Kingdom if that should occur. We need to consider those matters with great care.

However, I intend to restrict my remarks specifically to the House of Lords proposals and the proposal to deal with its composition. When William Hague was leader of the Conservative Party, he invited my noble friend Lord Hurd of Westwell and me to consider options for reform of the House of Lords with a view to achieving some kind of consensus. That is now rather a long time ago. I invited, as I was empowered to do, the noble Lord, Lord Richard, and the late Lord Russell to join us, but neither felt able to do so, with Lord Russell explaining that the leadership of his party at the time felt that it might not be desirable. I can well understand those responses because we had been appointed by the leader of the Conservative Party, which had recently suffered a rather severe defeat in the general election. But my noble friend and myself, with the help of Douglas Slater, a clerk here with great experience, considered the various options. The report has been published for a long time and was available to the Government and the Joint Committee, and was no doubt carefully considered.

My central point relates to the relationship between the two Houses. I have no doubt whatever that the primacy of the House of Commons, recognised in taxation particularly since 1671 or so, is founded on the fact that the House of Commons has over the years been elected—no doubt with a rather restricted electorate to start with, but gradually evolving into a general electorate over the whole country. That has given the House of Commons the responsibility, in accordance with the maxim that there can be no taxation without representation, for full control of taxation matters.

Since 1911 and 1949, the House of Commons has also achieved a primary position on general legislation. The true position now is that the elected House can prevent anything going on the statute book with which it does not agree and, after a reasonably short delay, can put on the statute book anything that it steadfastly believes should be there. Sometimes, as we know, as a result of consultations and consideration in this House, it wisely decides not to proceed further, as happened in relation to the process whereby people were detained without any particular procedure being followed. That process was eventually abandoned. However, generally speaking, the House of Commons—the elected House—gets its own way on posited legislation and prevents the enactment of any measure that it does not want. Therefore, I do not see that the undeniable governance difficulties in our country have anything to do with the democratic deficit, as it is sometimes called, whereby ordinary people cannot exert influence through their representatives on the laws which govern them.

The proposal for a fully elected second Chamber requires that the second Chamber, being fully elected, should have democratic accountability and democratic legitimacy. Therefore, I do not see why it should not be given the same authority as the other House, which is directly elected. That seems to me a fundamental point, which is well made by the Joint Committee. I say to the noble Lord, Lord Richard, who is now in his place, that I very much appreciate the clarity of the Joint Committee’s report, which constitutes an important development. The same sentiments apply to the alternative report, which was compiled by members of the same committee. It is not possible to print it as a government paper because of the desire for unanimity by the House of Lords, if possible. However, it was printed using government resources and is available in the Library. It seems somewhat unnecessary to make a distinction in this regard. Indeed, my remarks about the clarity and utility of the main report apply also to the alternative report. We are all extremely grateful to the members of the committee for giving a great deal of their time, effort and expertise to frame the report.

The report records the opinion of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, that the Parliament Acts would not affect the situation if the House of Lords—the second Chamber—became a fully elected Chamber. I firmly agree with that opinion as you have only to read the preamble to the 1911 Act to appreciate that the House of Lords did not operate on a popular basis at that time. I have no doubt that if it were fully elected it would operate on a popular basis, and we would have two fully elected Houses with full democratic mandates, given that we have universal suffrage throughout the nation. The Joint Committee recommended that if this were to happen it would be right to introduce legislation to distinguish clearly between the powers of the two Houses. I entirely agree with that but legislation needs to be based on reason. I see no reason for legislating to restrict the democratic authority of the second House, if it has a full democratic mandate, but to leave untouched the democratic authority of the first House.

[Lord Hunt of Kings Heath]

I am most grateful to the noble and learned Lord for giving way. If you accept the primacy of the Commons as the first base of the constitutional arrangement, it would still be possible to have two elected Houses provided you were able to set out their respective powers. However, inevitably, despite the universal mandate that would arise from the fact that people can vote for the second Chamber, it would none the less still be secondary to the primary Chamber, if it were so ordained through legislation.

[Lord Mackay of Clashfern]

I am saying that the legislation needs to have a reason behind it. It is all very well to legislate, and I know that from time to time we see legislation which some of us think does not have much reason behind it, but on the whole we regard it as rather important that legislation which reaches our statute book should be grounded in reason. If the democratic mandate is the same for both Houses, it is difficult to see a reason for distinguishing between their democratic authority.

[Lord Wills]

I am grateful to the noble and learned Lord for giving way. Is it not possible to conceive of a democratic mandate for a revising and scrutinising Chamber? That is precisely the reason for it. It is not necessarily an inferior role, just a different role. That is what needs to be placed in the legislation. I think that most noble Lords who have spoken so far agree with that.

[Lord Mackay of Clashfern]

That is tantamount to asking that the second Chamber be elected not to exercise full democratic authority but to have the authority only to do certain restricted things. That is not exactly an issue although it is certainly a possibility. I have never stood for election on the basis that we are discussing so I do not speak from great experience. However, I think that it must be a little difficult to stand for election if your election would result in your having very restricted authority. One could say, “My policies will not matter tuppence because the policies will be determined by the other electorate”. Such an outcome is possible in theory but would be difficult in practice. This issue has to be faced at some point and dealt with either by restricting the authority of those elected to the second Chamber in some way or by some other method. The other method one could use is that of introducing arbitration between the two Chambers, which has been hinted at in previous speeches. This is the absolutely fundamental and central point and has to be dealt with before we seek consensus when we are not sure what the consensus is supposed to be about.

Arrangement of Business

Lord Mackay of Clashfern Excerpts

Thursday 26th April 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, perhaps I am being naive again but I thought that the whole point of having this debate on Monday was so that we could make the case for a Bill not being included in the Queen’s Speech. My noble friend argues that there will be two more days to debate the Queen’s Speech—by then it will be too late. I thought that the whole purpose of the debate was for the Government to be informed. I have not put my name down to speak because, frankly, I did not fancy hanging around until 2 am. However, if my noble friend were to agree to the additional time, I would be happy to add my thoughts, which I am sure would be very helpful to the Government.

[Lord Mackay of Clashfern]

To say that two more days are available in the Queen’s Speech debate to discuss this question suggests that the Leader of the House thinks that it will be relevant to the Queen’s Speech so to do. I certainly understood that the Queen’s Speech was supposed to be a matter of mystery until it was delivered. It is not therefore reasonable to assume at this stage in our parliamentary progress that the future of this House would be relevant to a debate on the Queen’s Speech, so I find that argument rather difficult. Certainly, for my part, I am not going to take part in the debate on Monday, nor would I do so if it were to be extended to Tuesday. I have various views about it, but I had better not say. The suggestion that the debate should continue until 2 am or 3 am strikes me as absolutely absurd.

[Noble Lords]

Hear, hear!

--- Later in debate ---

[Lord Mackay of Clashfern]

I cannot see any difficulty in having the Prorogation ceremony fairly late on Tuesday. In fact, I have been a participant in Prorogation ceremonies that have taken place quite late. I do not remember the latest occasion, but they were certainly late in the evening. I can therefore see no difficulty in having a Prorogation ceremony on Tuesday, but still allowing substantially two days for this debate at this stage, before we know what is in the Queen’s Speech.

[Lord Brooke of Alverthorpe]

My Lords, if the Sunday trading Bill goes through without any great difficulties, will the noble Lord tell the House what time he is planning to hold the Prorogation on Tuesday?