Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Howell of Guildford Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Richard]

My Lords, the whole Bill has had some sense of unreality about it since it started. The more that one looks at it, the clearer one issue becomes. Whatever we do with the Bill, it will not operate in the lifetime of this Parliament. I have never come across a situation in which, in the first year of a new Government, legislation is introduced that is designed to affect not the current Government but the next one. We have had assurances from the Government that none of the issues that will provoke a referendum will happen in this Parliament because the Government will make sure that they do not. What on earth are we playing at? Shall we seriously sit down and produce the details of a major constitutional change against the background of a Government saying, “Don’t bother about it too much, although it may be a major constitutional change”, which moving from a parliamentary system to one of referenda clearly is? The Government are saying to us all, “It’s not going to happen. It will happen only in the next Parliament, but we shall legislate now so that it is on the statute book when the next Government come in”. Frankly, that is unreal and unfair and should be resisted.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, the noble Lord speaks with great authority and I listen closely to what he says. However, he has asserted several times that the Bill will not operate in this Parliament. It will. A treaty is in the pipeline, with which we will deal next summer—the European stability mechanism treaty. Admittedly, it is exempt under Clause 4(4), but the operation of the Bill applies as much to that treaty change as it may to others. It is not the desire of the coalition or of any member state of the European Union to promote new treaties or rid ourselves of more vetoes. The Bill binds from the moment it goes on the statute book. That is the reality.

[Lord Richard]

Yes, but the Government have assured us time and again during the course of the Bill that there will be no further transfers of powers to Brussels from the United Kingdom and there will be no change in the issues which can be dealt with by majority voting as opposed to those which at present require unanimity. None of that is going to happen in this Parliament, yet the Bill is drawn in such a way that legislation is now being passed in relation to those matters. I do not think that makes any sense at all. If this is a parliamentary system of government, as it is supposed to be, surely it is for the next Parliament to decide whether it wishes this structure to continue. If we go on with this legislation, it seems to me only right that we should have some kind of sunset clause which demands that the next Government, when they come in, have the opportunity to decide whether they wish to go on with this. In those circumstances, I strongly support the amendment.

--- Later in debate ---

People have playfully talked about the record of the noble Lord, Lord Kerr, as a civil servant rather as though that should frighten rather than inspire us all. He put the question broadly in these terms: does each Parliament want to see its authority revoked and, therefore, does each Parliament want to conclude that it does not want to see its authority revoked? It may or it may not—I do not know the answer to that either—but it would be a very bizarre understanding of the authority of successive Parliaments in the constitution, unwritten as it is, of our country for that not to be something that a Parliament would be entitled to consider when it was considering constitutional change of this kind. A sunset clause gives that opportunity.

[Lord Howell of Guildford]

My Lords, I am, as I have said, in danger of repeating myself in these long debates. As I said in Committee, however, it would be completely unprecedented to bring a sunset clause into this kind of legislation, which has constitutional implications and addresses constitutional developments of a kind which have already gone on in the past. The noble Lord, Lord Triesman, in his eloquent summing-up from his side, talked about profound constitutional change. For many people that has already recurred. That is the problem. That is where we are. That is where the disconnect begins. That is where people feel that great changes have taken place but that Governments have not give them adequate assurance that they were in their interests. It is to give people in this modern age of changed patterns of democracy—still a very democratic age, still a very powerful parliamentary age—a say in profound constitutional change that we are putting forward this Bill and seeking to construct something for the longer term.

A sunset clause, I have no hesitation in saying, would terminate that say. It would seriously undermine our attempt to reconnect the British people with the European Union and with the whole European project as it evolves. It would weaken the whole momentum that we all want to see maintained—and I have been involved in European Union affairs probably as long as anybody in this House—in order to have a healthy European Union that has the popular support and consent in the 21st century which at the present it evidently and dangerously lacks. We need to focus on that point again and again unless we want this trend to grow worse.

The view has been expressed again and again, in this amendment and in previous discussions, that the Bill is an attempt to bind future Parliaments. I have to say again—I am not just saying this as a debating point—that that is simply not so. It is not just an exaggeration, it is a canard. It is a well established constitutional principle—to which we have rarely adhered over some say 200, some say 300 years—that no Parliament can bind its successor. It will always be open to future Parliaments to repeal some of the provisions of a Bill, including this Bill, through primary legislation, just as it is possible for this Parliament to seek to repeal or disapply any existing legislation which may well have been painfully and sincerely built up by previous Administrations. In fact this Administration, the coalition, have inherited many aspirations and some excellent work from the 13 years of the previous Labour Government. It has been done. We did not at the time sit over there and say, “You mustn’t pass these laws because although we like them it would be binding future Parliaments”. That is absurd. I will return in a little while in more detail to the non-validity of the whole line of thought that somehow there is a binding of future Parliaments in the Bill.

If the Bill were to have disastrous effects on the UK’s relations with the European Union and tie our Ministers’ hands—all of which effects also are canards because they simply do not begin to match with the reality, which is of course that Ministers will be absolutely free to negotiate, deal and involve ourselves in the many articles under the enormous competencies at present available to the European Union—there is a remedy: the Bill can be amended or repealed. In fact, the Government resisted amendments in the other place that would have entrenched the provisions of the Bill and made repeal more difficult.

So although we hope that the provisions of the Bill will become an enduring part of the UK’s constitutional framework—that is a perfect, sincere, legitimate and well founded aim and ambition—we did not think it right to single this Act out to be entrenched. However, we do think that it is right that any repeals or amendments should have to go through the same rigorous process as the original Bill. We do not think it right that the powers that the Bill gives to the people and to Parliament should just be snatched back or taken away in a cavalier fashion by minor arrangements. In other words, amending or repealing parts of the Bill should be done through a further Act of Parliament, which is the usual approach for primary legislation. I make that point at the beginning because we have seen common misconceptions run through Committee day after day, and they are not founded on fact, reality, present practice or past experience.

Another misconception repeated today—I was bold enough to intervene when the noble Lord, Lord Richard, was speaking about it—is that the Bill will not apply until the next Parliament. I do not understand how that idea has crept into the debate and gets repeated and repeated, because it is simply not the case. Within three months of the Bill coming into force, as I hope it will, we will use its provisions to make a statement on whether the recent European Union treaty change to Article 136 constitutes a transfer or power competence. As we think that it does not, we will then introduce a Bill to ratify that change. Without the EU Bill, none of that would happen.

The noble Lord, Lord Triesman, is right: that will not trigger a referendum because of the items under Clause 4(4). However, the Bill will certainly operate and apply in this Parliament to a treaty change that goes through the necessary procedures in this Parliament. It is true that we do not expect to hold a referendum under the Bill during this Parliament, because the coalition Government have said that that they will not agree to any treaty or passerelle that could transfer competence or power from the UK to the EU in this Parliament. However, the existence of the Bill is still a binding force. It is binding on this Government and their actions and views. What I have stated is a political view and an intention of the coalition. It is not the will of Parliament or some entrenched and deep unavoidable force. It is the will of the Government. As we know—perhaps I should not add this point—it is possible for the will of the most determined Government suddenly to go into little U-turns and reverses from time to time. It has happened to us all.