Draft House of Lords Reform Bill

Lord Morris of Aberavon Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Morris of Aberavon]

My Lords, when the House debated its proposed reform on 21 June last year, I commented on a single issue: the Parliament Acts. I will do the same today. There are now two issues. The first is whether the Parliament Acts can be used to drive through a House of Lords reform Bill without its consent—the antithesis of a consensual approach. Secondly, there is whether the Parliament Acts will continue to be effective once the second Chamber has an elected element in it.

I proposed to the House and later suggested to the committee that the Attorney-General’s advice be sought. The Attorney-General declined, in the main on the grounds that it would not be,

“appropriate for the Law Officers to advise Parliament on issues relating to the Government’s legislative programme”.

The Attorney-General was not asked to advise on the programme but on a particular draft Bill. I would have thought it highly desirable for the law officers, who can call on the widest possible resources upon which to formulate their views, to assist Parliament as requested. The committee quite bluntly states that it,

“regrets that the Attorney General felt unable to assist the Committee to understand his reasoning in respect of such an important matter”.

If I was Attorney-General, I would be very unhappy to have such a weighty Joint Committee of both Houses pass such strictures. Perhaps the Attorney-General would think again if a specific Bill were brought to his attention. His interpretation, in addition to the weighty legal opinions that he points out exist within this House, would be extremely beneficial to our proceedings.

I set out in my earlier speech the caveats entered into in the opinions of Law Lords in the fox-hunter case, Jackson v Attorney-General, on possible limitations to the use of the Parliament Acts. Despite the caveats, I concluded that,

“the weight of opinion … may well lead towards recognising a considerable supremacy for Parliament”.—[Official Report, 21/6/11; col. 1188].

By “Parliament”, I mean the House of Commons. This preliminary view is reinforced by the more deeply researched and persuasive views of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Goldsmith.

That aspect in itself was not my main concern, as I said in my letter to the committee. Since the issue is justiciable, courts at different levels have been known to disagree with each other and, in the words of the noble and learned Lord, Lord Steyn,

“the courts have a part to play in defining the limits of Parliament's legislative sovereignty”,

does Parliament wish to run the risk in such litigation of the possibility of at least the perception of politicising the courts? I leave it at that.

The second issue, which is more germane, is whether there is any reason why the Parliament Acts could not be used if we had an elected House of Lords. Both the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, commented on that and raised their concerns, to put it mildly. The noble Lord, Lord Pannick, said in his evidence that,

“the better view is that the 1911 Act would not apply in the event that the upper Chamber were wholly or mainly elected”.

As the noble and learned Lord, Lord Goldsmith, says,

“the vague and general provisions of the proposed Section 2 … do not seem … adequate for that purpose”.

The committee, having considered the matter, concludes:

“If the Government wish to ensure that the Parliament Acts apply to a reformed House, they should make statutory provision for it”.

The alternative report reaches a similar conclusion, and I agree with it. The Joint Committee reports that,

“the Government … placed great reliance on the fact that the Acts will continue in force, and may be used with more frequency, even after the reform is in place”.

This is one of the important building bricks to underpin the thesis that, despite this House being elected, the primacy of the Commons will prevail. If so, why on earth are the Acts not referred to in the draft Bill? This is a startling omission and either the Government do not mean what they claim as regards primacy or it is sheer incompetence. I strongly suspect that the Attorney-General was not consulted on this. I commend the overwhelming view that the Bill should be specific and state that the Acts will continue to play their part as the committee maintains if the reforms proposed ever come about.