—Took the oath.

asked Her Majesty's Government:

My Lords, the National Health Service provides a range of interpreting services in the many and varied settings in which healthcare is delivered. Interpreting services are provided on both a planned and emergency basis to support the delivery of effective and culturally-sensitive healthcare. The NHS is committed to addressing communication barriers that prevent black and ethnic minority patients from receiving the care and treatment which they need.

My Lords, I thank the Minister for her reply. The aims are clearly excellent. I should like to know why lower standards are accepted for translation and interpreting in the health service than in the criminal justice system where there is an agreement that, by the year 2001, all the interpreters in all sections of the criminal justice system will be members of the national register of public service interpreters.

My Lords, I am not sure whether it is lower standards or different challenges that we face in the health service. This year, for the first time, the formula used to inform allocations to health authorities included an English language difficulties adjustment of £10.9 million. That was to reflect the extra costs of providing interpretation, advocacy and translation services to ethnic minority patients who experience difficulties with the English language. I believe it important that we recognise the variety of situations in which healthcare is delivered and the need not only to deal with simple issues of speaking a different language but to make sure that services are accessible to communities who may not easily gain access to them.

My Lords, it is not very clear exactly what the Minister is saying. Does the department acknowledge the value of the use of trained interpreters and has it commissioned a report into the use of those interpreters, which I believe to be the case? Does it have any intention at all of following the excellent example of the criminal justice service?

My Lords, I should not like in any way to devalue the work which has been done in the criminal justice service. Indeed, some of the training utilised by health authorities is the same as that for interpreters within that service. The noble Lord is right that a piece of work is being carried out at the moment, undertaken by the King's Fund, to map in London a comprehensive picture of the provision both of health advocacy link work and interpreting services. As I said, I think the issue is broader than that of simple interpreting. The report will cover all the Greater London NHS trusts and health authorities as well as voluntary organisations representing the minority ethnic and refugee communities in the capital.

My Lords, the National Health Service is no more immune from racism than any other organisation; and I include every organisation with which I am associated. What steps are being taken to ensure that all patients and staff are treated with equal respect?

My Lords, the noble Lord rightly points out the two different strands of work that we have to undertake. We have to provide equal opportunities for staff within the NHS. We have launched a national plan of action about tackling racial harassment in the NHS, and through the positively diverse programme we are engaged in a service-wide policy of encouraging recruitment and development of staff from local communities.

We also have to consider the provision of services which are sensitive to the needs of minority groups. For example, as regards the uptake of screening programmes it is important to have locally-based services within communities which have the best insight into how to encourage women, in the example I give, to take up the services available.

My Lords, the Minister says that about £10 million is being devoted to this issue. In order to achieve better value, has consideration been given to encouraging interpreters also to act as health assistants and to seeking volunteers from the community groups to which the noble Baroness referred? The National Health Service is desperately in need of every penny it can obtain.

My Lords, some schemes are based on using volunteers. It is important to recognise the need to ensure confidentiality and standards. I believe that that motivation lay behind some of the questions about training. Volunteers must be properly trained and equipped. None of us wants volunteers to be the small children who interpret for parents. There is an area of work there. Traditionally, the NHS has used staff who speak other languages to interpret in emergency situations. Again, we need provision for standards. However, in the employment of link workers and patient advocates, people can take on a dual role rather than simply interpreting.

My Lords, the needs of deaf people who require sign language are just as great as those who are black, from ethnic groups, or who depend on foreign languages. Perhaps I may make a declaration of a non-pecuniary interest. I am the president of the Royal National Institute for the Deaf (RNID). Although the Minister's initial Answer about the provision sounded marvellous, in fact it is not that marvellous. The RNID recently conducted a survey of doctors' surgeries. It found that 39 per cent of individuals had to rely for interpretation on families and friends; and when they left the surgery 37 per cent did not know the diagnosis or treatment. Does the Minister agree that the health service should ensure that all patients—deaf, black, ethnic, foreign, or whoever—should be told clearly the diagnosis and treatment?

My Lords, my noble friend rightly points out that the barriers to receiving high quality care are not simply those of speaking a foreign language. When we consider health inequalities, we realise that a number of factors—they may involve speaking or hearing language, or socio-economic deprivation—may stop people receiving services. That is why work in health action zones and health improvement programmes is important.

I am not sure that I said everything was marvellous. I said that we sought to make progress in this area. There are some innovative schemes. In one of the beacon sites recently commended, which involved primary care, a telephone link with a hand-free conference facility is being used where the patients of a GP speak many different languages. It has been well received by both professionals and patients.

My Lords, does the Minister agree that employment of advocates and interpreters was a short-term replacement for the employment of bilingual workers across the health service? Can some of the good practices in areas such as Tower Hamlets and Newham be examined? Some interpreters have had the opportunity of NVQ experience, a factor which might address the Question asked by my noble friend Lady David.

My Lords, yes, we can learn from, and spread examples of, good practice. The King's Fund exercise will help us to do that.

asked Her Majesty's Government:

My Lords, the independent evaluation of the pilots has taken longer than originally expected. We hope to have a final report after the summer. Publication will follow as soon as possible after that.

We also commissioned research into why pensioners do not claim their entitled income support, which we hope to publish before the pilot evaluation.

I suppose better late than never. When the Minister leaked the report during our debates on the Welfare Form and Pensions Bill, she told us that it indicated that certain of the pensioners whose incomes were low enough to qualify them for income support had savings too high to qualify them. Is it therefore going to be the policy of this Government to penalise thrift, and will she say in future to would-be savers among the lower income groups, "You might as well go and have a spending spree"?

My Lords, today's publication of the Rowntree report suggests that pensioners are doing precisely what my noble friend suggests. They are the new rich and are deciding to spend their money. As regards my noble friend's substantive point, there was no leak; I was giving my noble friend the best information I had. As I have more information, I shall be happy to share it with her in the House.

The number of people who we believed might be entitled to income support is somewhat lower in part because many have substantial savings. Half of those disqualified from income support because their incomes are below income support level have capital of more than £20,000, and 200,000 have capital of more than £50,000. It is questionable whether we should ask taxpayers to support people in boosting their incomes if they have capital on which they can draw.

The other reason we overestimated the number of pensioners who may be entitled to income support, which may be fresh to my noble friend, is that since the early 1990s surveys have incorrectly disregarded the private occupational pensions which widows inherit on their husbands' death and therefore they have an income higher than originally anticipated.

My Lords, will the Minister confirm that the limits on capital are low—£3,000 is sufficient to receive a reduced level of income support, but nothing over £7,000? Will the pilot studies give us a precise assessment of the extent to which people do not claim because they have levels of capital of that order?

My Lords, we have those statistics on a national basis. However, I recognise the problem raised by my noble friend and the noble Lord. The Government are seriously considering the situation of capital limits.

My Lords, will the Minister remind the House when the capital limits to which she referred were last uprated for inflation?

My Lords, in about 1988.

My Lords, do the investigations expose people who have not claimed? Will there be any element of retrospection?

My Lords, no, except in so far as there is the usual backdating, which is a month or up to three months, depending on whether it is an income-related benefit or a contributory benefit. My noble friend raises the key question of how we ensure that people receive the benefits to which they are entitled. That is the point about the pilot schemes. We estimate that 500,000—perhaps 700,000—mainly older, single women who have become widowed are failing to claim on average £15 a week.

Those people are entitled to claim. They do not have capital, and they are failing to claim. Our research shows that that is due to a mixture of ignorance about the benefits system, worries about what may happen to them, the fact that, on claiming for benefit in the past, they were not eligible and therefore refused to claim again, and that their memories are at fault. However, a good piece of news from the findings is that, among those who are eligible but are failing to claim, two years on 25 per cent have gone on to claim. Obviously, we must build on that and ensure that people receive the money to which they are entitled; they cannot afford to go without that money, and we should not let them.

My Lords, will the Minister give an undertaking that the Government will immediately review the capital limits to which she referred, which have not been reviewed for 11 years, and uprate them?

My Lords, we are keeping them under review. I can give only the answer that is correct. I am sure that noble Lords would not wish me to give false hopes to the House that I or anyone else can subsequently deliver.

My Lords, whatever the merits of the pilot schemes, will the Minister agree that an immediate increase in the basic pension to £75 a week will be a far more effective way of dealing with pensioners' poverty?

My Lords, I am afraid that I do not agree with my noble friend. It would cost more than £3.5 billion. Some of it would go to the very rich, as the Rowntree report indicated, and the poorest—those on income support—would see not a penny. Frankly, I do not support a policy which would spend a considerable sum of money—£3.5 billion—on aiding the better off and doing nothing at all for the poorest off.

My Lords, does the Minister propose to take any steps to ensure that the same problems do not return when the Government introduce their minimum pension guarantee?

My Lords, we already have a minimum pension guarantee in so far as we have a minimum income guarantee. In that sense, the noble Lord's question is misdirected. However, we are seeking to ensure that pensioners are claiming the money to which they are entitled and it forms a minimum income guarantee for pensioners. It may be that, as a result of the findings of the pilot schemes, we shall need to repackage it, relaunch it, rename it in order, so to speak, to dissociate it from its income support background. In that respect there is a real issue for us to address.

Will the Minister ensure that when a report is published it contains a figure of the cost involved in funding the pilot schemes?

My Lords, yes.

asked Her Majesty's Government:

My Lords, the treaty has not yet come into force because a number of key states have yet to ratify it. I can confirm to my noble friend that the Government will indeed exercise their right, as one of the countries which have ratified the treaty, to call a special conference this autumn to consider ways to accelerate its entry into force. The United Kingdom has been leading international preparations for this event for nearly a year.

My Lords, I am pleased to receive so affirmative a response from my noble friend the Minister. However, may I suggest that if the Government want to accelerate the process still further towards their aim of the elimination of nuclear weapons, they should consult the noble and gallant Field Marshal, Lord Carver, who will show them a better way?

My Lords, perhaps I may take the opportunity to wish my noble friend a very happy birthday.

Hear, hear!

My Lords, I am sure that he deserves the congratulations of the whole House on reaching the splendid age of 91. My noble friend, even in his 92nd year, is as assiduous as ever in pursuing these issues. I am delighted to talk to whoever in your Lordships' House is able to offer help, guidance and advice on how to get the Comprehensive Test Ban Treaty into force as quickly as possible. We cannot formally call the conference until September, but we are organising for it. It will take place in Vienna on 6th to 8th October. Its importance lies in the political message which we hope it will send to those who have not yet signed the treaty and to those who have signed the treaty but not yet ratified it.

My Lords, what indication does the Minister have that India and Pakistan will sign the treaty before the third anniversary of the treaty's opening for signature, particularly in the light of the statement of India's foreign minister that India will not sign the treaty before the general election there? Furthermore, will the Minister kindly inform the House what initiatives the Government have taken to urge the Indian Government to fulfil their commitment made last year? Can she confirm that it remains the Government's policy that India must sign the treaty without conditionality?

My Lords, it remains our policy that everyone must sign the treaty without conditionality. Of course, we have received welcome assurances from both India and Pakistan that they intend to sign the treaty. India has said that it will not test again before such signing takes place. It is very important that that is done on an unconditional basis. We have welcomed opportunities to reaffirm with the Indian and Pakistani Governments that these are their intentions.

My Lords, bearing in mind that the conference to which my noble friend refers will take place during the Recess and the spillover period, and bearing in mind also the reputations in this field of my noble friend Lord Jenkins of Putney and the noble and gallant Lord, Lord Carver, will the Minister consider taking them along as advisers to the UK delegation?

My Lords, the list of those attending the conference has still to be fixed. I consulted the advisers in the department today about the level of representation that will be available. It will be very senior representation. I thank my noble friend for his wise suggestion about other sources of wisdom which may be available to the Government on this occasion.

asked Her Majesty's Government:

My Lords, as a member state, the United Kingdom has obligations to implement this directive. In Scotland, the Scottish Office, the water authorities and the Scottish Environment Protection Agency co-operated to end the dumping of sewage sludge at sea and to provide tertiary treatment for discharges into sensitive areas by the end of 1998. Considerable progress has been made towards installing secondary treatment at appropriate locations.

From 1st July 1999 implementation of the urban waste water treatment directive in Scotland is a matter for Scottish Ministers.

My Lords, first perhaps I may express the hope that this is not the Minister's last appearance at the Dispatch Box. Is he aware of the considerable problems caused by the directive to the fish processing industry, particularly in Aberdeen? Is he further aware of the report currently being worked on to find a solution which would enable the industry to meet its obligations without incurring the huge costs currently proposed by the North of Scotland Water Authority?

If the Scottish Executive comes forward and asks the Government to speak to Brussels and suggests that perhaps they should stay their hand to allow the Cordah project to come to fruition, can I, together with the fish processors, have an assurance that Her Majesty's Government, who are responsible for these matters in Europe, will intercede or intervene with the European Commission, if necessary?

My Lords, I am aware of the difficulties faced by the fish processing industry in implementing this directive, particularly in the north east of Scotland. It is non-negotiable in that there is a strict requirement to put secondary treatment in place by the end of the year 2000. It may be remembered that the directive was adopted in 1991 and transposed into British law in 1994. The industry has had a considerable period of time in which to prepare for the implementation. However, I accept that it is now looking keenly at what to do. I am aware of the Cordah report, which I believe is due at the end of August. I am also aware that Aberdeen City Council and Aberdeenshire County Council have proposed a waste treatment solution which could significantly reduce the costs falling upon the industry.

My Lords, I am sure that the Minister is aware that the fish processing industry is a vital industry in the north east of Scotland. It also serves the fishing industry largely based at ports in that area. It is now confronted with a massive increase in charges for disposal of effluent. Wilt the Government take action as suggested by my noble friend vis-à-vis the European Union, if necessary to obtain more time to consider more alternatives, especially on a day when consumers in England and Wales are learning from their regulator that prices south of the Border will be reduced?

My Lords, perhaps I may again point out the dates I gave previously. The urban waste water treatment directive was adopted in 1991 and became transposed into British law in 1994. Since 1989 the various water authorities have been in dialogue with the industry to warn them of the problem they face. I regret that it is only relatively recently that the industry has responded positively. It would be difficult to argue for delay. It is clear that at present the Commission is taking a long, hard look at Italy and Belgium as two member states who have not proceeded to implement the directive timeously. Clearly, there is the problem of infraction proceedings being taken against the United Kingdom Government. As the noble Lord knows, such proceedings could result in fines measuring hundreds of thousands of pounds per week or even per day. The Scottish Executive will be aware that if that should happen, the responsibility for paying the fine would fall upon the Scottish Executive.

My Lords, was the order for cleaning up the Wheal Jane mine in Cornwall made in accordance with this directive? If not, why not?

My Lords, although I know quite a lot about the problems facing the fish processing industry in the north east of Scotland, I know nothing about the Wheal Jane issue.

My Lords, is it not the case that it is not only the fish merchants in the north east of Scotland who are bearing these heavy charges? I understand that the fish merchants of Grimsby and Hull are equally outraged at the high levies being introduced. Does the Minister not find it strange that some "Johnny-come-lately" should now be complaining bitterly about excess charges which they must have known about during the negotiation of this treatment for water charges?

My Lords, my noble friend is right. This does not just affect the north east of Scotland; it affects Grimsby and other fish processing centres throughout the United Kingdom. I accept that this is a very real issue. The increases in charges will be very real. I shall not use the words which I was invited to use by my noble friend. However, this is a settled policy of successive United Kingdom Governments dating back to 1991. It does no good to try to pretend that if we put our heads in the sand it will somehow go away; it will not.

My Lords, in an earlier Answer, the Minister led us to understand that the Commission is invigilating the way that this directive is enforced by other governments. Is there any more precise and transparent means by which industries loaded with heavy costs by European legislation can satisfy themselves that the equivalent costs are being borne by their competitors in other European countries?

My Lords, during my period as a Minister in an area responsible for implementing European directives, I have learnt that just about every country I go to complains that their government requires them to implement it down to the last detail, and that every other government is somehow "dodging". We have to take such accusations with a pinch of salt. However, I am aware that the Commission gives a high priority to ensuring that this directive is implemented. I have already mentioned two member states where the Commission is looking closely at what is being done.

My Lords, I do not wish to minimise the difficulties of implementing this directive. However, does the Minister agree that it is a good thing in general that the European Union is legislating to safeguard the environment and the quality of drinking water, and that that is a measure that the citizens and consumers of Europe welcome?

My Lords, indeed it is a very good thing that we legislate to protect the environment, both at European and member state level. It is also a good thing that we do all we can to protect jobs and industries.

My Lords, is it not also necessary that all United Kingdom governments, of whatever political complexion, should examine proposed European legislation far more thoroughly than they have done in the past or, as far as I can see, are likely to do in the future?

My Lords, I would not accuse the previous administration of not examining the proposal in detail. It was subject to a great deal of negotiation and scrutiny as it evolved and developed. We reached a stage at which there was agreement in this country and throughout the European Union on an appropriate way forward to protect the environment, which is our priority.

My Lords, at a convenient moment after 4.30 p.m., my noble friend Lord Williams of Mostyn will, with the leave of the House, repeat a Statement that is being made in another place on the funding of political parties.

rose to move, That the Question whether the House of Lords Bill (as amended on Report) would, if enacted, affect the right of those hereditary Peers who have answered to their Writ of Summons before the Bill receives Royal Assent to continue to sit and vote throughout the Parliament in which the Bill is enacted be referred to the Committee for Privileges.

My Lords, as I understand it, the Government propose to deprive hereditary Peers of all representation in the legislature at least until the next general election. In asking whether or not that is legal, I want to draw attention to a slightly different point from that raised by my noble friend; that is, whether or not it is legal on the basis of the laws of human rights by which we are all bound.

A year ago, in the context of the elections to the European Parliament I was drawn to Article 3 of the first protocol of the European Convention on Human Rights which states that all members undertake to ensure the free expression of the opinion of the people in the choice of the legislature. A year ago the Minister, speaking in this House, said that it was within the convention for Britain to disenfranchise the Gibraltarians, even though they are part of the European Union. Early this year it turned out that he was wrong and the Strasbourg Court found against the British Government.

I support the Motion before your Lordships' House today because I believe that the Government are about to make a similar mistake. I put it to your Lordships that under the Convention on Human Rights "the people" means "all the people". Just as it did in the case of the Gibraltarians, it means the people not minus a few thousand Gibraltarians or minus a few hundred hereditary Peers. Nor should those hereditary Peers be deprived of their right to choose the legislature simply on the basis that they are to be disenfranchised only for two or three years until the next general election.

One vote of course is not very much. But that is not the point and that is something noble and learned Lords may wish to take into account. It is a small part of the opinion of the people. It may have been enough in the past as a quid pro quo over a period of time to give Peers the right to vote directly in this House instead of indirectly for another place, even though we are subordinate to the main legislature with no right to insist on amendments or control over financial matters. But it cannot be right to leave us without any vote at all, even for a short period of time. I cannot take seriously the proposal that we are compensated by being allowed to vote for a small number of Members of this House to represent us in the subordinate legislature.

This year the Government lost one case in the European Court of Human Rights on a question of universal suffrage. I hope that they will not be forced to fight another one. To lose one case in the Strasbourg Court may be counted as misfortune, but to lose two in one year begins to seem like carelessness. I hope too that noble Lords on the Lib Dem Benches, who voted rather illiberally a year ago to disenfranchise the Gibraltarians, will not make the same mistake again today. On that basis I support my noble friend and his Motion.

My Lords, what this Motion proposes is, frankly, a waste of time. There can be no doubt that Parliament has the power by statute to terminate the effect of a current Writ of Summons issued for that Parliament. Indeed, the noble and learned Lord, Lord Mayhew of Twysden, did not challenge that. I believe there can be no doubt whatever that Clauses 1 and 7(2) of this Bill are intended to do, and obviously do, just that.

There is of course a precedent for the cancellation of a Writ of Summons during its currency; that is, the Titles Deprivation Act 1917. That applied to three German princes holding British Royal dukedoms and to one Irish viscount. Perhaps not altogether surprisingly, none of them challenged the question of whether or not they were entitled to continue to sit for the duration of the Parliament then sitting.

That of course is the question raised by this Motion. It is a question to which there is only one possible answer and it is therefore pointless to ask it. Nevertheless, it is clear that some Members of your Lordships' House are going to find some forum in which to ask it, and so the question is: how should it be dealt with?

The question is a pure question of law; one of interpretation of statute. One would have thought therefore that it was a matter for the courts rather than for the Committee for Privileges. The Committee for Privileges is most suitable for deciding questions of fact concerning the rights of individuals to a peerage, as it did for example in the Moynihan and Arlington cases recently. But out of the 30 members of that committee, only four are Law Lords. I recognise that a number of others are lawyers, but it remains an unsuitable body for deciding a pure question of law.

There is a particular problem in this case which renders the Committee for Privileges clearly unsuitable for deciding this question. Hereditary Peers have an interest in the outcome which disqualifies them from taking part in a decision of the committee, which is a judicial decision. That might not apply to hereditary Peers who have already been elected as one of the 15 Deputy Chairmen at the time when the committee is considering that issue, but it certainly applies to any unelected hereditary Peer and I also believe it applies to any of the 75 hereditary Peers who are elected by the other hereditary Peers in party groups because they are representatives of unelected hereditaries who themselves have a direct interest.

That knocks out four of the five Conservative members of the Committee for Privileges, leaving only the noble Lord, Lord Campbell of Alloway. In addition it may be argued that all party Peers, as opposed to Cross-Benchers, are disqualified, because if they are Conservatives they have a clear political interest in maintaining the predominance of their numbers in your Lordships' House. If they are government or Liberal Democrat Peers they have an interest in ending that predominance. So we would then potentially end up with four Law Lords and three Cross-Bench life Peers eligible to sit.

If the Committee for Privileges decided that Writs of Summons were valid until the end of the Parliament, there would of course be a serious constitutional crisis. That decision, taken by that committee, would be regarded as self-interested. There would be an immediate conflict between the two Houses of Parliament and between your Lordships' House and the Government. The outcome of that could be extremely serious especially if government legislation were blocked or delayed in your Lordships' House by the votes of hereditary Peers.

Any decision, to have legitimacy, needs to be taken by the courts and not by your Lordships' House. However, the present constitutional position seems to be that it is for the Committee for Privileges or an equivalent body in the other place to decide on the rights of claimants to sit as Members of either House of Parliament. The courts will apparently not overrule that decision. That was decided, in relation to the House of Commons, in 1883 in the case of Bradlaugh v. Gossett. That is a well known case in which the House of Commons refused to allow the well known free thinker, Charles Bradlaugh, to take the Oath that he was required to take before he could take his seat. That case involved the interpretation of the Parliamentary Oaths Act 1866. The High Court said that it could not overrule the decision of the House of Commons even if it had wrongly interpreted the statute.

So far as your Lordships' House is concerned, the power to interpret an Act of Parliament was assumed without argument in the Viscountess Rhondda's case, when the Committee for Privileges decided the effect of the Sex Disqualification (Removal) Act 1919. That was procedurally a curious case and an unhappy precedent. The case was originally decided by the Law Lord members of the Committee for Privileges alone. They were in favour of the Viscountess. Your Lordships' House referred the case back to the committee for reconsideration and, by 22 votes to four, it voted against Lady Rhondda and its report was accepted by your Lordships' House.

There is another more helpful and more recent precedent. In 1957, the question arose whether the issue for a writ for libel against George Strauss, a well known Labour Member of the House of Commons, in relation to the contents of a letter written by him to a Minister, would be contempt of the House of Commons. That question involved the interpretation of the Parliamentary Privilege Act 1770. That question was referred by Her Majesty the Queen on an Address from the House of Commons to the Judicial Committee of the Privy Council under Section 4 of the Judicial Committee Act 1833. That question was duly heard by seven Law Lords sitting in the Judicial Committee who gave their report. It was published as Command Paper 431 of 1958.

If the question that is now being considered has to be decided at all—I do not believe that it does—that is the way to do it. We therefore oppose the Motion, both on the ground that the issue is too clear for argument and on the ground that, in the circumstances, the Committee for Privileges is not the appropriate body to decide that question. We might have taken a different view on the Motion if it had been a Motion to refer the question to a Judicial Committee of the Privy Council. That would have been an appropriate body to hear such arguments as may be put forward but, as it is, we are referring a question that does not need to be asked to a committee that is unsuitable to decide it.

My Lords, I wonder whether, despite the charm and persuasiveness with which the noble and learned Lord, Lord Mayhew, moved his Motion, it is any more than another attempt to sabotage the Bill. I ask the noble and learned Lord the Lord Chancellor not to flinch—as we know, from the reform legislation that he has driven through the House, he is not a man for flinching—from saying categorically that if this Motion were passed, the whole of the Weatherill amendment would fall to the ground.

My Lords, I do not speak because the noble Lord, Lord Goodhart, mentioned my name. I have no interest in this to declare. As a member of the Privileges Committee I can say that it is non-political and that we always defer to the Law Lords. It makes wholly objective determinations, without any political interest or extraneous motives whatever. That has always been the case.

As for the suggestion made by the noble Lord, Lord Goodhart, that this is a matter for the courts and not the Privileges Committee, the noble Lord, with respect, is totally mistaken. The courts, before enactment, could not entertain this matter, because of parliamentary privilege. It is only after enactment that they may do so.

On the reference, there are inevitably two related questions for determination: judicial determination of the highest order, akin to that of your Lordships' Appellate Committee, or by the Privy Council. The first question is the one dealt with by my noble and learned friend Lord Mayhew. It is the question of legal construction as to the entitlement under the Writ of Summons.

The second question is whether, in context with that entitlement, Clause 7(2), as amended by Amendment No. 68A on Report, imports hybridity on to the face of the Bill by conferring disparity of treatment on the Weatherill hereditaries that is not afforded to the general class or category. That is the very situation that was sought to be avoided by resort to Standing Orders.

It is essentially a matter for judicial determination. Without the reasoned advice of the four Law Lords, one of whom always presides and to whom the lay members, such as myself—I have served on the committee for more than 15 years—always defer, I do not understand how your Lordships may resolve such questions on Third Reading. Should the Bill be amended and, if so, in what form, before it do pass? Indeed, should it pass? The question of the entitlement of the hereditary Peers to seek declaratory relief from the courts exists. Without the advice, can your Lordships have any assurance that the Bill is not defective?

I have no conclusion about the answer to either of those two questions. All I beg your Lordships to accept is that, in accordance with the advice of Treasury counsel, this is a matter that is worthy of investigation by the only forum that is suited, competent and appropriate to consider it. I support the Motion.

My Lords, the noble and learned Lord, Lord Mayhew, has explained very clearly the argument that he, or some leading counsel, would wish to address if this matter were duly referred to the Committee for Privileges. He has not told us about the appropriateness of the procedure that he has proposed. I am concerned that it is a wholly revolutionary procedure that would give rise to a dubious precedent if it is allowed. It might mean that every Bill would end up being construed before it was passed.

The curious thing about the noble and learned Lord's Motion is that he is seeking an interpretation of a Bill that has not yet been enacted and may not be enacted in its present form. Normally, as your Lordships know, if a Bill that might be passed would, on a certain construction, affect the rights of individuals, they wait until the Bill is passed and then seek a declaration from the appropriate court or tribunal about the proper construction of what is, by that time, an Act. So far as I am aware, nobody has ever sought a declaration as to the meaning of a Bill that may or may not be passed.

I wish to ask three questions, on which I hope that either the noble and learned Lord the Lord Chancellor or the noble and learned Lord, Lord Mayhew, or perhaps as a bonus both of them, will enlighten us. First, if the Bill had been enacted and a hereditary Peer wished to say that it did not deprive him of his right to sit, would that be a matter which would go to court, as suggested by the noble Lord, Lord Campbell of Alloway, or would it then be a matter for the Committee for Privileges as the right tribunal? That is important, because if the noble Lord, Lord Campbell, is correct, the Committee for Privileges might say that the Bill had meaning A—namely, that it did deprive people—but then, after the Bill had been passed, the matter might be challenged in the courts, which might come to a different conclusion.

Secondly, we know that a court will not normally decide a hypothetical point and certainly will not pronounce upon the construction of a Bill which may or may not be passed. I ask therefore whether there is any precedent in all our history for a reference to the Committee for Privileges to decide in advance what would be the effect of a Bill if it was enacted.

Thirdly, if the Motion is passed, does it oblige the Committee for Privileges to decide the matter, even if when the committee considers it it would think that because it was hypothetical it was inappropriate to answer it? Normally a court would say, "We will not answer your point because it is hypothetical". However, if this House has referred a matter to the Committee for Privileges, does the committee, as a committee of this House, have to answer it even if it does not think it is appropriate? I look forward to enlightenment on those three points.

My Lords, the noble and learned Lord, Lord Mayhew of Twysden, is not only a distinguished public servant, he is also—which I regard as a much greater honour—a good House man. As always, I have listened to him with interest, respect and pleasure. The noble and learned Lord is also a distinguished advocate. However, I believe he suffered today from the one fate which a distinguished advocate finds most difficult to handle: I believe that he has been inadequately briefed.

I have read the opinion to which the noble and learned Lord referred. It touches on many points which are clearly within the scope of my professional knowledge. I know many of the quotations upon which that opinion relies, but I do not read them as does the opinion. That of course is a fate with which all scholars are familiar. It happens to all of us. Quoting out of context is by definition what one's opponent does. So I record the fact only to indicate that there is ground for argument.

I have checked other quotations which appear to me to be material to the argument. Again, I find that I do not read them as does the opinion. Your Lordships may wonder why I have the temerity to challenge a distinguished legal opinion. Partly, because it is in areas where I believe that my opinion as an historian is as relevant as the opinion of a lawyer and partly because I have the comfort of knowing that I am in agreement with Her Majesty's judges. While it is not always the case that the law is what Her Majesty's judges say it is—if it were, the Appellate Committee of this House would be redundant—the opinion that the law is what Her Majesty's judges say it is is one which at least deserves a hearing.

In the case of Mr Anthony Wedgwood Benn, as he then was, the judges were faced with an argument similar to the one put by the noble and learned Lord—the distinction between the hereditary peerage and the Writ of Summons. Mr Benn relied extremely heavily on the claim that the Crown was entitled to refrain from issuing a Writ of Summons. Therefore, contrary to what the opinion says, the judgment of the court on that occasion that the Writ of Summons was an inescapable incident of the hereditary peerage was not, as the opinion suggests, obiter; it was directly on the matter of the case.

In my opinion, for what it is worth, the wording of Clause 1 of the Bill is correct. Halsbury's Laws of England, states that,

"a hereditary peer of the United Kingdom is entitled to receive, in virtue of his peerage, a writ of summons to sit and vote in the House of Lords".

The gap between those words and the words of Clause 1 of the Bill is very narrow indeed. Before I sit down, I hope I may close it.

The noble and learned Lord relied heavily on the opinion of Lord Chancellor Cranworth. However, in the judgment of the Lord Chancellor, Viscount Birkenhead, which I read last night—I may say that a Liberal quoting F.E. Smith feels a little like the devil quoting scripture: but on this occasion F.E. Smith happened to be right:

"The doctrine that the King, having created a peer, cannot direct that he shall not be summoned to Parliament had become settled constitutional law in the course of the seventeenth century".

He also said, and this passage is worth reflection:

"It is easy to see what use George III could have made in the eighteenth century of a constitutional position in which the right to determine whether writs should issue to particular peers depended upon the Royal will and not upon hereditary descent".

Here is why I believe not merely that the opinion is mistaken but that it would be dangerous to refer it to the Committee for Privileges. It would open a can of worms which has been very securely closed ever since 1640. If, after that length of time, you open a can of worms, the smell is rather unpleasant. Moreover, that can of worms has been closed for a very good reason. As soon as we separate the Writ of Summons from the hereditary peerage, we open the way to the suggestion that the Crown has a discretion to give or withhold the Writ according to whether it likes a noble Lord's face. That is a doctrine which the Crown has attempted in the past to argue and has been defeated. It is very dangerous indeed to encourage the Crown to try again.

When we consider the reflections of Lord Birkenhead—the danger of allowing the Crown that power—the danger is no less if the Crown exercises that right on the advice of its Prime Minister. The one strength of the hereditary peerage is its independence. As soon as the Crown has a discretion to give or withhold a Writ of Summons, that independence is seriously threatened. That has been the position since 1640, when Charles I attempted to deny a Writ to Lord Mandeville. The Lord Admiral's secretary expressed great dismay. Two days later, Mandeville got his Writ. He then presented the Lord Admiral with five pounds of Bermuda oranges in the middle of the procession of the State Opening. I would love to know what happened to those oranges. I am sure the Lord Admiral did not have a Waitrose bag to put them in.

That was a political decision, and so indeed was the decision to send for Baldwin and not Curzon in 1923. Both of them have given rise to a practice which has remained unchanged ever since. I am not aware of any case since 1640 where the Crown has denied a Writ of Summons to a Peer suitably qualified; that is, not in certain well-defined categories of exception: a minor, an alien, a traitor, a felon or, until 1958, a woman. Those categories are laid down, or were laid down, in common law and statute. Parliament may change those categories in the exercise of its sovereign power. However, as soon as we say that the Writ of Summons, independent of the hereditary peerage, is the sole ground of membership, we open the door to a discretion which I believe is extremely dangerous to us all. That is why I hope that this case will not be referred to the Committee for Privileges; and I would not say that if I did not also believe that there is no case to answer.

My Lords, rather uncharacteristically, your Lordships may feel, I shall not detain the House very long. I was provoked by the reference of the noble Earl, Lord Russell, to a can of worms. During the course of the early debates at Committee stage of this Bill, the Government made it perfectly clear that they were wholly confident in their interpretation of the matter of the writ in Clauses 1 and 7. As I understand it, the Government Front Bench has, from that time to this, maintained its confidence that its interpretation is solid.

The noble Earl, Lord Russell, referred to a can of worms. I believe that this is precisely the point that your Lordships need to address this afternoon. I, mercifully, am no lawyer. I have no idea whether the arguments advanced by the noble Earl, Lord Russell, the arguments advanced by my noble and learned friend Lord Mayhew or the arguments advanced by any of the other distinguished lawyers on both sides of your Lordships' House this afternoon are accurate. However, what is perfectly clear to me is that during the course of the last few months a great deal of doubt has been cast, as my noble friend explained, on the Government's interpretation, of which they have told us they are so completely certain. I believe that that is the can of worms that your Lordships ought to be addressing this afternoon. It is a can of worms that has already been opened rather than the can of worms to which the noble Earl, Lord Russell, referred which he fears will be opened.

If this Bill were to be passed without this matter being resolved, I believe that there will be a legacy of bitterness which would be extremely unfortunate to leave in the mouths of your Lordships if and when this Bill is finally passed. Therefore, from the point of view of good order and from the point of view of good government, it seems to me sensible that the can of worms that has been opened should either be closed or, if there is indeed a case to answer, that that case should be laid before your Lordships before the Bill is passed rather than afterwards. That seems to me to be the great merit of what my noble and learned friend Lord Mayhew has laid before your Lordships this afternoon.

For that reason, it is right, as my noble friend Lord Campbell of Alloway has made clear, that we should find a tribunal which is made up of the highest judges in the land, in which those of us who are members of the Committee for Privileges are merely handmaidens. It is right that that body should be able to determine whether the can of worms has been opened or whether it remains closed, as is suggested by the Government. It is for that reason that my noble and learned friend Lord Mayhew has indeed performed a considerable service to your Lordships today in proposing this Motion.

The Government have made it clear that they still believe they are right in their interpretation of Clauses 1 and 7. If that is so, they should have nothing to fear. If it is not so, it is better that we should know it before the Bill is passed. Whatever the rights and wrongs of the legal case, I suggest that that is not a question for your Lordships this afternoon. The question is whether we want this matter to be settled once and for all, so that we can either address a fault in the Bill before the Bill is passed or dispose of an issue which turns out to be, as was suggested by the noble Lord, Lord Goodhart, a non-issue. I venture to suggest that your Lordships would be wise to refer that question to a committee of experts before the Bill is passed. We are fortunate indeed that a committee of experts exists in the form of the Law Lords who sit on the Committee for Privileges.

My Lords, I would like to say a few words against this Motion. I am always impressed by the Conservative Party when it is in full operation. I have heard this afternoon from the noble and learned Lord, Lord Mayhew, that this is totally non-political. It is a highly objective analysis of a legal and difficult constitutional situation which deserves examination by the Committee for Privileges and in particular by the four Law Lords who will sit on it.

I am impressed by the number of your Lordships who have arrived this afternoon to engage in this objective examination of the issue. There is a large number of people beyond the Bar whose acquaintance shall be very pleased to make after this debate! Assuredly, I have not made their acquaintance to date, despite having been in the House for nine-and-a-half to 10 years. It is impressive to see such an array of people here, all concerned with the constitutionality of this Bill.

I make two points. The noble Viscount, Lord Bledisloe, was devastating in his critique of this proposal, as indeed was the noble Lord, Lord Goodhart. There is no precedent for it. It is clearly politically motivated. Whatever the noble and learned Lord, Lord Mayhew, may say, it is a transparent political device to attempt to delay the coming into operation of the Bill in respect of which we have now been engaged for a long time. If it is not, why on earth has it been left for so long? If this is a genuine attempt to obtain an opinion from four Law Lords in this rather extraordinary way, I am surprised that the issue has been raised at the last minute before the Bill receives its Third Reading. Transparently and obviously, it is a political device to delay the coming into operation of the Bill. I oppose it.

My Lords, the fact that something has not been done before as a reason for not doing it now is hardly a principle which applies to Labour government.

First, I believe that the remarks of the noble Lord, Lord Annan, and the noble Lord, Lord Richard, with respect to the motives behind the tabling of this Motion today by my noble and learned friend Lord Mayhew are, frankly, misplaced and unfair. Those who have followed this debate from its outset at Committee stage, and through Report stage to today's Motion, will know that right from the very outset my noble and learned friend Lord Mayhew has sought to obtain from the Government clarification of the meaning of what are now Clauses 7(2) and 1—and has totally failed to do so. It should, therefore, come as no surprise to your Lordships that the Government are faced with this Motion today.

The Opposition believe that there are three areas of doubt about this Bill which deserve consideration by the Committee for Privileges. Incidentally, I should say to the noble Lord, Lord Goodhart, that when the Committee for Privileges comes to consider this matter, it will be the views of the Law Lords alone which determine the interpretation of the Bill.

My Lords, I am most grateful to the noble Lord for giving way. Would he accept that that was not the case in the Rhondda decision?

My Lords, whatever has been the case in the past, that is certainly the position that the Opposition both understand and abide by in relation to this matter.

There are three elements of doubt in relation to this Bill. The first applies to Clause 7(2). Clause 7(2) concerns the effect of Writs of Summons. As my noble and learned friend Lord Mayhew has pointed out, when your Lordships receive a Writ of Summons and obey it and return it, the Writ ceases to have effect; it is physically cancelled. From that moment on, your Lordships have a right to sit and vote in the House. How, therefore, can Clause 7(2) make Writs of Summons cease to have an effect when they have already ceased to have an effect, except in relation to those noble Lords who have received writs but not have not yet returned them? If that interpretation is correct, and I know not whether it is—

My Lords, could it be that this Bill causes the Writ of Summons to cease to have effect in exactly the same way as an act of attainder has always caused a Writ of Summons to cease to have effect?

My Lords, surely the Labour Government would not be considering retrospective legislation!

If that interpretation of Clause 7(2) is correct, it is my submission that the Government would have to fall back on Clause 1. Clause 1 states that no one should be a Member of your Lordships' House by virtue of an hereditary peerage. As my noble and learned friend Lord Mayhew so devastatingly pointed out, nobody is a Member of your Lordships' House by virtue of an hereditary peerage. Your Lordships are Members of this House only as a result of receiving, obeying and returning the Writ of Summons. Those are two of the three areas of doubt to which I referred.

I turn now to the final area, which was raised by my noble friend Lord Bethell. The Government have certified the Bill as conforming with the European Convention on Human Rights. Your Lordships do not have a vote in general elections; your Lordships have an arrangement whereby, in return for not voting in a general election, noble Lords in receipt of a Writ of Summons represent themselves in your Lordships' House. What is the position if, halfway through a Parliament, your Lordships cease to be allowed to represent yourselves in your Lordships' House?

For those years that remain, from the moment of secession until the next general election, your Lordships will neither represent yourselves in your Lordships' House nor will your Lordships have authorised the activities of those who might have represented your Lordships in the House of Commons had your Lordships had the vote which your Lordships have given up. I believe that this is also a perfectly proper matter to put before the Committee for Privileges.

When judges in our nation's courts consider legislation, which seeks to remove the rights or liberties of citizens, they are particularly careful to ensure that the intention of Parliament to do so is clearly set out on the face of the Act. This is pre-eminently a Bill which seeks to remove rights of certain citizens in our country; namely, your Lordships. However, the matter goes even further than that, because the rights that those of your Lordships who receive a Summons by virtue of being hereditary Peers have is not just an individual right; it is a right to be part, and to comprise part, of this nation's sovereign authority.

In my submission, it is quite unacceptable that an Act should go on to the statute book which throws doubt on exactly what the composition of the sovereign power of this country is. That is the doubt which will open up if this Bill becomes law without a clear interpretation from the Committee for Privileges of your Lordships' House.

My Lords, perhaps I may be direct about the Motion before the House—

My Lords—

Order! Leader!

My Lords, I shall start again. Perhaps I may be direct about the Motion that we are considering this afternoon. The Government—I say this with all due respect to the noble and learned Lord who was tasked with the role of moving the Motion—regard it as time consuming, potentially wasteful of public resources and irrelevant to the passage of the Bill. In other words, it is, frankly, both frivolous and irresponsible. Further, implicit in the Motion, underlying the arguments which have been advanced for it, is the extraordinary suggestion that Parliament may not be sovereign in the government of this country.

The full resources of the Cabinet Office have been unable to discover any case where the courts, or the Committee for Privileges, have been called upon to construe a Bill—a Bill currently before Parliament. That may, I hope, be helpful to the noble Viscount, Lord Bledisloe. Case law suggests that the courts would decline to consider a Bill if the matter were put to them; for example, the courts have said:

"It roust be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act".

Why should there be one rule for the courts and another for the Committee for Privileges? In effect, the Motion seeks to obtain from the Law Lords in committee a decision that could not be obtained from the courts.

I am well aware of the authority of the Committee for Privileges and of the extent to which this House reserves to itself the right to determine questions relating to its membership and privileges. But, as far as I am aware, that has always been in the context of a decision of whether an individual who claims membership of the House or privileges as a Member of the House is, indeed, entitled to that membership, or those privileges, in the existing state of the law. Even the case of the Earl of Bristol, which we considered extensively in Committee when debating this point previously, added the rider to its ruling that a Peer could be excluded from the House if there was some judgment of Parliament or other legal judgment making him incapable of sitting. After all, if the law of peerage is judged immutable, then—I am happy to make a sexist point here—hereditary Peeresses would never have been enabled to sit in your Lordships' House.

Your Lordships know very well the power of precedent in this House. I would advise the House to be wary about the consequences for the future conduct of legislation if this device is accepted as proper in relation to this Bill. After all, the Committee for Privileges has, up until now, had no advisory role in relation to Bills; its function is to advise the House on matters concerning its privileges. Although this Motion asks about a privilege of hereditary Peers, it also seeks an opinion about a Bill. That is, properly, a matter for Parliament to debate, as it has already done and as those noble Lords who have been present for our extensive and—I would say—exhaustive debates on some of these subjects, will know. The Committee for Privileges is not the appropriate forum within Parliament to debate this issue and the Motion goes well beyond its established competence. I would ask your Lordships to consider this Question with the same: clarity as you would apply to any other Bill.

The Motion suggests that it is right for this House to invent a new step in the process of legislating—and that, I have to say, in the context of the self-interest of certain Members of this House. It suggests that it can ask the Law Lords to sit in judgment on a piece of legislation before Parliament has considered and finished its consideration. I find this a profound and disturbing proposal.

The noble and learned Lord, Lord Mayhew of Twysden, said that he was only seeking to help the Government by clearing up a matter on which doubt had been cast. He said that his purpose was limited to this useful, indeed neutral, end. Of course, there are conventional parliamentary methods of bringing such questions to the attention of the House, of having them debated and decided. They are called amendments to a Bill—amendments to any Bill. There have been many amendments tabled to this Bill and many, many debates.

On this particular subject my noble and learned friend the Lord Chancellor and my noble friend Lord Williams of Mostyn have replied patiently and conclusively, both in Committee and on Report. I refer your Lordships to Hansard at cols. 166 to 172 and 281 to 282 on 27th April, and cols. 222 and 232 on 15th June. They are the most prominent examples.

I do not intend to repeat the detail of those expert, legal and parliamentary opinions this afternoon. But, suffice it to say, briefly and once again—and perhaps for the benefit of those noble Lords who have not been present to hear these arguments put on several occasions—Clause 1 of the Bill is the operative clause. The Government are certain that it is effective. It does not concern Writs of Summons because they are only the mechanism which enables a Peer to take his seat in this House. The crucial issue is who is entitled to receive a Writ. The entitlement for hereditary Peers depends on inheriting a peerage. In future, that entitlement will only cover the so-called! "excepted Weatherill Peers", and that limited entitlement will soon be ended.

The Government, of course, understand the obvious point that, today, hereditary Peers may be in possession of Writs of Summons to this Parliament who will not be Weatherill Peers; indeed, the vast majority will in fact be excluded. That is the point of the Bill. They will be excluded because, once the Bill becomes law, they will have no right to their Writs because their rights to membership of this House is membership by virtue of an hereditary peerage and that will be removed. Perhaps I may use a straightforward, everyday analogy, which is slightly different from the very interesting historical example cited by the noble Earl, Lord Russell. If someone loses his citizenship, he will have no right to use a passport even though that passport may not have yet expired.

It is interesting and, in view of the comments of my noble friend Lord Richard, relevant to this debate that, although the Motion before the House today stands in the name of the noble and learned Lord, Lord Mayhew of Twysden, it was originally tabled in the name of the shadow Lord Chancellor, the noble, Lord, Lord Kingsland. Therefore it is a little unclear who are the true authors of today's proceedings. Are we indeed seeing genuine concern from a distinguished Back-Bencher, or are we seeing a deliberate ploy by the Opposition Front Bench trying yet again to spin out proceedings on the Bill?

We know that the Official Opposition did indeed table an amendment to Clause 1 in Committee. Then they withdrew it without pressing it to a vote. They have never themselves attempted to amend what is presently Clause 7 to explore the issues which are now supposedly to be addressed. Clause 7 refers to Writs which have been issued, whether or not they have been responded to. Nor, having listened to the views expressed by the Government on several occasions in the debate on their Committee stage amendment, did the Opposition Front Bench return to the issue on Report, as, of course, they would have been entitled to do. Instead they have chosen to pursue this novel device. I have to say that I am sceptical about their reasons for doing so.

Perhaps we discover reality in all this when we consider the comments made outside your Lordships' House rather than—if I may say so—the rather pious expressions of assistance to the Government that we have heard in the Chamber this afternoon. I draw your Lordships' attention to a small column in The Times newspaper of Friday 9th July. It was written by a reporter who in my experience is usually accurately briefed about the Opposition's intentions in relation to this Bill. The article stated, in part,

"The move is ostensibly helpful to the Government because it would clarify a legal uncertainty in the Bill. But, in practice, it forms the latest stage of the Tories' qualified opposition to the measure".

The Daily Telegraph on 22nd July similarly stated that the move was intended,

"to delay the Government's plans to reform the House of Lords".

I have no doubt that those are more accurate descriptions than some of the professions of help we have heard.

As the noble Lord, Lord Annan, said, this takes us all into dangerous waters. The Government have no intention of delaying this Bill. Equally, we have no intention of disrupting the important business before us in the last three days before the Summer Recess by seeking immediately to move Third Reading simply to stymie this particular manoeuvre. I must say again to your Lordships, as I have said consistently since last October, that the Government believe that all the legislation before us—including now the important food standards agency Bill, which will have its Second Reading on Friday 30th July—is at least as important as House of Lords reform. I am delighted to say that 12 Bills will be presented for Royal Assent later today.

I restate the Government's intentions. I do this particularly for those noble Lords who are present in such numbers this afternoon but whom we rarely see when we consider other aspects of the Government's legislative programme. The Government intend the House of Lords Bill to reach the statute book before the end of the current Session. We shall move Third Reading in the spill-over Session which starts in October.

I also state what the consequences will be if the Opposition seek to obstruct that Third Reading. I am careful to say this in my most reticent and well modulated tones. I seek to avoid being unjustly accused—as my noble and learned friend the Lord Chancellor has been—of bullying and threatening. I believe that last week the noble Lord, Lord Strathclyde, used the words "sulphur and brimstone". Therefore I say calmly, but definitely, that attempts to frustrate the Third Reading of the Bill by the Opposition will be seen by the Government as a clear breach of the understandings reached between the noble and learned Lord the Lord Chancellor and the noble Viscount, Lord Cranborne. For the candidate Weatherill Peers, all those hours spent last week discussing the method for their election may prove to be for nothing. All those election addresses, so despised by the noble Earl, Lord Ferrers—who, sadly, is not present this afternoon—may well prove unnecessary.

In those circumstances—I say this simply for information—government Ministers in this House will advise our colleagues in another place to remove the new Clause 2 of the Bill. I must tell your Lordships that that will not be unpopular advice. Meanwhile we are faced this afternoon with this Motion which seeks to ask for an interpretation of a law which Parliament has yet to make; to challenge the basic constitutional arrangement that common law can always be overturned by statute—effectively, to challenge the sovereignty of Parliament. What your Lordships are being asked to agree to is unprecedented. It is frankly selfish and it is wasteful of public funds. Informed calculations of the legal costs alone are in excess of £100,000. I urge the House to show common sense, to be realistic and to reject the Motion.

But whatever happens, the Government will press on with our timetable for the House of Lords Bill. On this side of the House we become daily more certain that this is an essential, excellent Bill. It is long overdue and it will reach the statute book by the end of this Session.

My Lords, I know that your Lordships wish to get on. I feel obliged to detain your Lordships only for a few minutes out of deference—if I can put it like that—to the speech that we have just heard from the noble Baroness the Lord Privy Seal. I rather hope that it is a speech without precedent from a Leader of the House because I found it rather surprising to be charged with being a johnny-come-lately in this issue when, as I thought I had tried to explain, I had raised this issue at the earliest opportunity in Committee on 27th April. For the noble Baroness then to say that I did not come back to it on Report was frankly wrong. I have the Report stage here. I know how unpopular it is to quote—

My Lords, I obviously was not clear in what I was saying. Of course I realise that the noble and learned Lord has been involved in this matter. However, many of his colleagues were not present. I said that the Opposition Front Bench amendment which was moved in Committee was not returned to on Report.

My Lords, I hear what the noble Baroness says. I am grateful for her interruption. The point is whether this is a device—as has been alleged by the noble Baroness and her predecessor as Leader of the House—to delay this Bill, not to say to sabotage it, or whether it has been from the outset expressed as a genuine attempt to secure clarity. As she has referred to the Report stage, I wish to point out that I stated, in relation to applying for a Writ,

"It is common ground that until one has gone through that procedure one cannot fulfil one's duty to attend, speak and vote in this House. If one cannot fulfil the duties of a Member of the House of Lords there must, surely, be a sensible argument, to put it no higher, that one is not a Member".—[Official Report, 15/6/99; cols. 218–219.]

I believe that the noble Baroness may perhaps have done her cause better justice had she not made those aspersions. In my case—I speak for no others—this represents a genuine attempt to attain clarity in legislation where, if the present uncertainty is maintained, it will fall to the private expense, risk and stress of individual noble Lords to put it right in their own instance. Why is this made necessary? Why is this forced upon us? I venture to say that it is done only out of the most extraordinary commitment to language which could perfectly easily be changed if the Government only replicated the language of their own manifesto.

The noble Lord, Lord Goodhart, said that the members of the committee were to have an interest in this matter. I feel that that is hardly a becoming point. He said—seriously, I thought—that the matter should be left to the courts. I suppose that is an argument that one might expect a lawyer to advance. But how much better to get the matter cleared up now in time for Third Reading, which need not be held up, than to put on the statute book something which is uncertain. The rest of the argument makes it self.

The noble Lord, Lord Annan, said that I was a charming saboteur. I hope that I have dealt with that point. This has nothing whatever to do, incidentally, with the Weatherill amendment. The noble Viscount, Lord Bledisloe, asked three questions. I think that the courts would be extremely unwilling at any stage to have anything to do with this. The noble and learned Lord the Lord Chief Justice said a few months ago in the Select Committee for Privileges, of which I have the honour to be a member, that the courts would do well to preserve a decent reticence in matters parliamentary and that it ought to be a reciprocal reticence. I believe that that is the answer. This is not a hypothetical question. I do not know whether or not the committee can refuse to deal with it. I hope that it would not.

I turn to the noble Earl, Lord Russell. I thank him for the kind remarks that he made about me at the outset. I was waiting with increasing tension for the "However" clause—and in due course it came, in that familiar style which must make him such a fascinating lecturer and so fearsome and terrifying a tutor. Unfortunately—and very uncharacteristically—he proceeded upon a wrong premise. I am not arguing that there should be a discretion as to whether a member of the hereditary Peerage should be entitled to a Writ; I am arguing that until one actually applies for and answers a Writ, turns up here and goes through all the business, one is not entitled to be a Member of the House of Lords. That is the point. The question is really: what is the position of a Peer who does not answer?

The Motion has been described as frivolous, irresponsible, revolutionary, without precedent and so on. One bears all those epithets with as much philosophy as one can. Having listened with gratitude to everyone who has spoken, I put the issue in this way: if there may be a doubt as to what the clauses mean and what the Bill does, surely it is better to have that doubt allayed now. The time has come to seek the opinion of the House. I believe the matter should be referred to the Committee for Privileges.

My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

• Finance Act,
• Disability Rights Commission Act,
• Adoption (Intercountry Aspects) Act,
• Company and Business Names (Chamber of Commerce, Etc) Act,
• Commonwealth Development Corporation Act,
• Football (Offences and Disorder) Act,
• Access to Justice Act,
• Youth Justice and Criminal Evidence Act,
• Pollution Prevention and Control Act,
• Criminal Cases Review (Insanity) Act,
• Employment Relations Act,
• Local Government Act.

rose to move, That the Question whether the House of Lords Bill (as amended on Report) would, if enacted, breach the provisions of the Treaty of Union between England and Scotland be referred to the Committee for Privileges.

My Lords, to my mind, it is unthinkable that hereditary Peers of Scotland should be treated differently from all the other Peers who would be affected by this House of Lords Bill. But a very strange technical position arises, and I think that my noble friend Lord Gray is right to draw attention to the rather strange position, technically, of the Scottish Peers.

To my mind, that position is due to the fact that, although some provisions of the Act of Union have been repealed, especially the repeal resulting from the Peerage Act 1963, other provisions have not been repealed and which seem to indicate that the Scottish Peers have certain constitutional rights. I will not weary your Lordships with all the detail, but I think I should just make a brief reference to the articles concerned in what is technically called the Union with Scotland Act 1906. Article XXII was repealed, but not until the Statute Law Repeals Act 1993 got rid of it. Therefore, our minds are at ease on that matter.

As far as concerns Article XXIII, that was only partially repealed. The heading refers to the privileges of the 16 Peers of Scotland. Since the Peerages Act 1963, the number has not been limited to 16. Without troubling your Lordships with all the detail, Article XXIII of the 1706 Act preserves various privileges for Peers of Scotland. The two other relevant provisions are contained in paragraphs VI and VII of Article XXV of that Act. The sidenote reads:

"Recital of Acts of Parliament of Scotland for settling election of the 16 Peers and 45 Members for Scotland".

Very strangely, that has not been repealed. The last reference reads:

"The said Act declared valid as if it had been part of the said Articles of Union".

Again, that refers to the 16 Peers and 45 MPs to represent Scotland.

If the Committee for Privileges had not been required anyway to consider the Motion that has just been passed by a majority of your Lordships, I would have been reluctant to support my noble friend Lord Gray. But as that committee is to consider the matter, perhaps even during the Summer Recess when it will have plenty of time to do so, it is only right that it should consider the unusual position, technical though one may think it to be, of the Peers of Scotland under the Act of Union of 1706. For that reason, I support my noble friend. The Committee for Privileges may well reach the conclusion that there should be introduced into the House of Lords Bill a schedule to repeal those parts of the Act of Union to which I have referred.

My Lords, we have discussed the issue of Scottish Peers and the interplay between the Bill to abolish the right of hereditary Peers to sit in your Lordships' House and the Treaty and Act of Union. My noble friend Lord Renton has just explained that in 1963 some provisions of the Act of Union were repealed, but I believe I am right in saying that there can be no repeals of the provisions of the treaty since the two bodies which were party to that treaty no longer exist. Therefore, as my noble friend Lord Gray said, whatever Parliament might have done in 1963, or may do today, the words of the treaty remain. Clearly, Article XXII makes clear the position of Scottish Peers.

One of the questions that must be asked is to what extent the words in the treaty were entrenched. In the treaty and the two Acts which followed it, one passed by the Scottish Parliament—the Union with England Act—and the other passed by the English Parliament— the Union with Scotland Act—some matters were certainly entrenched; some were clearly not entrenched; and on other matters there is silence on whether or not they are entrenched.

Previously, I quoted the judgment of Lord President Cooper in MacCormick v. Lord Advocate. I shall not recite all that I have quoted before because I do not believe that to be necessary. However, it is worth reminding noble Lords, and the Government Front Bench, of one sentence in the judgment of the Court of Session in 1953:

"Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provisions shall be fundamental and unalterable in all time coming, or declarations of a like effect".

The declaration in Article XIX setting up the Court of Session and the High Court of Judiciary states:

"That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom".

That is just a flavour of one of those areas where clearly something has been entrenched.

When we discussed this matter previously, the Government's case was that the provision for the 16 Scottish Peers was not entrenched. Interestingly, one can argue that the first part of Article XXII, which refers to the 16 Peers, is not related directly by non-entrenchment to the second part which is concerned with the method of election. Clearly, the method of election was not entrenched. One can argue that the first part dealing with the 16 Peers was entrenched.

The noble and learned Lord, Lord Falconer, who argued these matters so well at Committee and Report stages—I am glad that there is a measure of agreement from the Government Front Bench—pointed out that if the position of Scottish Peers had been entrenched, the 1963 Act would not have been possible. But the 1963 Act did not remove the right of Scottish Peers to sit here; it extended the right from 16 to whatever number then existed. There were not many more than 16 at that time, but the number was certainly greater than 16. Therefore, there was not a reduction, but an increase, in the number of Scottish Peers in your Lordships' House.

In this Bill we are faced not only with a reduction but the removal of that right in the Treaty of Union. There is no doubt that the Scottish Parliament would not have agreed to the Treaty of Union if the position of Scottish Peers in this House and of Members of Parliament in the other place had not been entrenched.

There are lots of Scottish life Peers in your Lordships' House. No doubt whoever answers the debate will point out that there are more than enough of us—perhaps sometimes too many—but that is not a very good argument. A future government may simply allow the Scottish resident life Peers to wither on the vine and may have a second Chamber composed wholly of Peers from England and Wales. I do not suggest that that will happen, but it could.

In conclusion, the Treaty and Acts of Union are not dull old documents of interest only to the noble Earl, Lord Russell, and a few other historians; they are the foundation stones of this kingdom and Parliament. We must ensure that we do not breach them. A powerful party in Scotland, represented in considerable numbers in Labour's Scottish Parliament, is determined not only to breach them, but to tear them up. We must not give those people any succour. They will not go away and will continue to be argued with.

We should put beyond doubt the impact of the present Bill on the Treaty of Union and the Acts of Union. As my noble friend Lord Renton said, because other matters; are to come before the Committee for Privileges, it seems right and proper that noble Lords should agree with my noble friend Lord Gray and ask that committee to look also at this matter and to reach a judgment so that we may all know that the Bill is entirely consistent with the important building block that makes up the United Kingdom.

My Lords, the noble Lord, Lord Gray, is correct when he says that this Bill kicks away the guaranteed representation of Scotland. However, I have a slightly different concern. There is no doubt that this Bill removes the special protection that was negotiated with such difficulty during the spring and summer of 1706 with the English Whig government—I say this perhaps with a degree of surprise—led by the Earl of Godolphin.

Earlier in our proceedings on this Bill I tabled an amendment which called for a replacement group—in fact the amendment called for 8 per cent of life Peers to be domiciled in Scotland. It was rejected by the Government. I can express my concern in a single question: how much more of the treaty can be violated before it folds? I can think of no more central part of the treaty than the representation. I suppose that my watchword should be "no legislation without guaranteed representation". I hope to hear that there will be new treaty negotiations in the light of the successful passage of the Bill.

My Lords, I shall not detain the House long on the second Motion standing in the name of the noble Lord, Lord Gray. All that I have said in the previous debate about the dangerous precedent of the Motion moved by the noble and learned Lord, Lord Mayhew, applies even more to this Motion. Indeed, I suggest that it is in itself an example of the dangers of establishing the idea that recourse to the Committee for Privileges during the passage of a Bill should be accepted as part of the consideration of a Bill—

My Lords, I am most grateful to the noble Baroness for giving way and I apologise as the House wants to move on. The noble Baroness said that she had tried this argument out on the best minds of the Cabinet Office. That is a most impressive origin for this argument. But perhaps she might care to look at the argument again. After all, if I am right, she is implying that every Bill, no matter what its subject, would come within the remit of the Committee for Privileges if this precedent were followed. I thought that the remit of the Committee for Privileges was matters appertaining to Peerages in this House.

My Lords, although neither the noble Viscount nor I are lawyers, it is perfectly understandable to me—and I am sure that if it is understandable to me, it will be clear to him—that the role of the Committee for Privileges has heretofore been to consider individual claims of Peerage within the context of an existing law. The point relating to the present reference suggested by the Motion of the noble Lord, Lord Gray, is to establish the role of the Committee for Privileges in the legislative process and to consider a Bill, which, as 1 attempted to explain in my response to the noble and learned Lord, Lord Mayhew of Twysden, is unprecedented. I do not believe that that is a matter which I need to refer again to the Cabinet Office. I shall ask it once more, but I believe that that is fairly well established.

I would say to the noble Lord, Lord Renton, that one of the problems relating to the second Motion is that it begins to follow a precedent while the result of the Division which achieved the first reference to the Committee for Privileges is still hot off the press. To that extent, it is in a sense even more inappropriate. To add the reference to the Scottish Peers and to the points raised by the noble Lord, Lord Gray, in his comments on his Motion, cannot be easily added to the Committee for Privileges' consideration of the points made by the noble and learned Lord, Lord Mayhew of Twysden.

My Lords, I am most grateful to the noble Baroness. She keeps saying that this is in character a total departure from anything that the Committee for Privileges has been invited to do in the past. But I draw her attention to the Companion, which says that:

"The Committee hears and makes recommendations upon any matter of privilege, or claim of peerage, referred to it by the House",

and on the preceding page, it states:

"The following are aspects of privilege of Parliament: Freedom from interference in going to, attending at and going away from Parliament".

I can think of no more substantial interference with that than being told that you are shut out by an Act the validity of which you question.

My Lords, I am sorry that I am evidently being extremely unclear in my point on that matter. All the points referred to by the noble and learned Lord relate to individual claims and not to a Bill, or, potentially, a statute passed by the sovereign Houses of Parliament. As I said in reference in my previous reply to the case of the noble Marquess, Lord Bristol, it was specifically stated in the ruling on that particular case that any interpretation of peerage law could be overcome by a statute of the sovereign Parliament. That is a simple point and it is one on which I rest. I do not believe that the point made by the noble and learned Lord, Lord Mayhew of Twysden, about individual cases is relevant to that point.

I should like to continue with a number of points I have to make relating to the Motion moved by the noble Lord, Lord Gray. The first point is that we have extensively debated the issues which he now seeks to refer to the committee, both in Committee and on Report. We have calculated that we have already spent some four and a half hours discussing the question of the rights of Scottish Peers in relation to your Lordships' House. I must say that, having listened with attention to the points made this afternoon both by the noble Lord and from the Opposition Front Bench, I have not heard novel points which were not considered during those debates.

That form of debate is, of course, the right and legitimate way of raising those issues, as I have already commented in relation to the Motion in the name of the noble and learned Lord, Lord Mayhew. I am certainly not complaining about that. However, I should remind the House that we have not only exhaustively debated the question, but we have voted on it. The noble Lord, Lord Gray, moved one of his amendments to a Division. It began with the words,

"In order to continue the effect of Article XXII of the Treaty of Union".

Are we now to establish a situation by these types of Motion where noble Lords who dislike the decision of the House, whether in Committee, on Report or at another stage of the Bill, are to be permitted to seek an opinion of the Committee for Privileges in an attempt to overturn a decision by the House?

Secondly, the reference in the Motion is extremely broad. At least the Motion which we discussed before, in the name of the noble and learned Lord, Lord Mayhew, had the advantage of being fairly specific about the question which the Committee for Privileges was to discuss. The Motion from the noble Lord, Lord Gray, simply asks whether the Bill as a whole is compatible with the treaty as a whole.

I believe that that unwarrantedly stretches the jurisdiction for the Committee for Privileges. It asks the committee of this House to decide whether a proposed piece of legislation is compatible with a treaty. He may say—and indeed, he did so—that the point on which that turns is on the rights of a branch of the peerage, although my recollection from our earlier debates is that the noble Lord has been very insistent that the rights of the Scottish Peers to membership of your Lordships' House have always been statutory and not established by custom or common law. But that is not the question which he seeks to put to the committee. He is effectively seeking a ruling from the committee of this House that this Parliament is not sovereign.

My noble and learned friend Lord Falconer has explained at length, and on several occasions during the four and a half hours in which we have debated these points, that the Government are entirely confident that the Bill does not breach the Treaty of Union, and certainly cannot breach the Acts of Union, as the relevant provisions of those two Acts of Parliament have been repealed. It is interesting that the noble Lord, Lord Mackay of Ardbrecknish, said on 22nd June that he was persuaded that what the Government are doing in the Bill does not infringe the Treaty of Union. On that basis, he withdrew an amendment in his name and that of the Opposition Front Bench. I am interested that he has now changed his mind on the matter. I wonder whether that goes back to the points which I was making earlier about the intent behind the Motions which we have before us this afternoon.

If the noble Lord, Lord Gray, insists on pressing his Motion to a Division, I hope that on this second occasion your Lordships will see the sense of not burdening the Committee for Privileges with the matter and will not support the Motion.

My Lords, before the Minister sits down, if I heard her correctly, she was saying that the treaty between England and Scotland in 1706 was a treaty between two countries, but not an Act of Parliament. But in the Union with Scotland Act of 1906 which I have obtained, as amended, from Volume 10 of Halsbury's Statutes, on constitutional law, we find that the treaty is embodied in that statute and is therefore still part of the law of the United Kingdom. We cannot escape that fact.

My Lords, as I said when replying to the original points made, I am not a lawyer. I hear precisely what the noble Lord says. But I and the Government Front Bench are advised—it is a point we have made consistently throughout the nearly five hours of discussion on this issue throughout the stages of the Bill—that the relevant Acts and treaties are not inapplicable in relation to the Bill.

My Lords, I am grateful for the contributions from my noble friends Lord Mackay of Ardbrecknish and Lord Renton, and for that: of the noble Earl, Lord Mar and Kellie. I am sorry that the accord that the noble Baroness the Leader of the House and I established on Amendment No. 77 at Report stage has not carried over to my Motion.

As regards the length of time we have spent on the issue, it would be fair to say that much of that time has been taken with speeches on representation in other areas of the country which were way off the amendments being discussed at the time, although perfectly proper within the general context.

I believe that the Committee for Privileges will be perfectly able to understand the Question I put. When the time comes, it will be for someone else to argue the case. I need say no more today. I think that it would be best if I merely say that I commend the Motion to the House.