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House of Lords: Reform

My Lords, my purpose today is to seek an undertaking from the Government that, if any Bill is sent up to your Lordships' House to create a wholly elected Chamber, such a Bill will contain a specific provision to repeal the Parliament Act 1911. Without such an undertaking, your Lordships' House should not concur with the wish of another place for a wholly elected House. It can be implied, and I would do so, that the repeal of the Parliament Act 1911 took place with the passage of the House of Lords Act 1999, which removed the hereditary Peers from your Lordships' House. I am grateful to my noble friend Lord Kingsland for his legal erudition on this matter. I draw your Lordships’ attention to section 80 of Bennion’s Statutory Interpretation, which describes the doctrine of implied repeal: "““Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them””." In his commentary on the code, Bennion states that: "““If a later Act cannot stand with an earlier, Parliament (though it has not said so) is taken to intend an amendment of the earlier. This is a logical necessity, since two inconsistent texts cannot both be valid without contravening the principle of contradiction. If the entirety of the earlier Act is inconsistent, the effect amounts to a repeal of it””." The inconsistency between the Parliament Act 1911 and the House of Lords Act 1999 is evident from examination of the recitals to the 1911 Act, which clearly describe the intention of the Parliament Act. It was, as we all know, to restrict, "““the existing powers of the House of Lords””." Shall we ask ourselves what the motive was behind that intent? The record seems to show that the motivation and raison d’être of the Parliament Act 1911 arose from the then hereditary nature of your Lordships' House. Commending the Parliament Bill to the House of Commons on its Second Reading on 2 March 1911, the Liberal Prime Minister, Mr Asquith, said: "““Take the hereditary principle. What can we get out of it? Hon. Gentlemen opposite have got a great deal out of it . . . a working instrument to frustrate and nullify the functions of this House when there is a Liberal Government in power . . . That is what the right hon. Gentleman””—" he was referring to Mr Balfour, the leader of the Conservative Opposition—““gets out of it””. Then the Prime Minister spelled out the motive for the Parliament Bill. Speaking of the hereditary principle, he said: "““Let it not be our master. So say we. It is because it has been our master . . . because it enslaves and fetters the free action of this House, that we have put these proposals before the House and we mean to carry them into law".—[Official Report, Commons, 2/3/11; col. 584.]" Winston Churchill, campaigning for the Parliament Bill around the country, asked: "““Why should their children govern our children? Why should the sons and the grandsons and the great grandsons have legislative functions?””." He said he hoped that the Bill would be, "““fatal to the hereditary House of Lords””." The recitals to the Parliament Act 1911 make it clear that the offence complained of—in other words, insufficient respect from your Lordships' House for the elected House—was an offence committed by an hereditary House of Lords. That offence, against what we now in common parlance call the primacy of the House of Commons—the phrase has been used many times in this debate—was to be remedied, as we know, by strict time limits on our delaying power, a blanket disqualification of your Lordships' House in public finance, and the vouchsafing of all fiscal authority to another place, so that with regard to all money Bills we could look but not touch. In effect, the Parliament Act 1911 ultimately gave power to another place to override decisions of your Lordships. We know that the House of Lords Act 1999 made this House not hereditary. According to the then Leader of the House, the noble Baroness, Lady Jay, it made it ““more democratic, more legitimate””. Thus it can be argued that according to the doctrine of implied repeal, that made the Parliament Act 1911 obsolete. So either the 1911 Act has already been repealed by virtue of its inconsistency with the later Act of 1999, or else it should be repeated in any future Act that puts our House on to an elected basis. The 1911 Act sought a House of Lords constructed on a ““popular, not hereditary basis””. We are now not hereditary. It is of course arguable whether we are popular; I would say that we are, but it is debatable. It is certain, however, that the creation of a new elected House, being both popular and not hereditary, will render the 1911 Act redundant. That is why I urge every noble Lord considering voting for an elected House tomorrow to insist before they vote on an undertaking from the noble and learned Lord the Lord Chancellor that any Act which comes before us to create an elected House will contain a specific provision to repeal that most iconic of all Acts of Parliament, the Parliament Act 1911.