My Lords, this is in the nature of being a semi-probing amendment. I want to test the extent to which we have arrived collectively at answers to each of the four questions that I have developed through the currency of this Bill, and see whether my noble and learned friend the Minister can satisfy us, in his conclusions, that each of the tripwires and pitfalls that we have seen are now capable of being avoided. I come to this very much in the spirit of the finest executive I ever had the privilege of working with, who used to say, “Don’t give me people around me who know all the answers. I want the people who know all the questions”. It is in that spirit that I come, even though I stand here as somebody without any shred of qualification. I do not even have an 11-plus pass. Given that circumstance, it might be said that I have a right nerve to stand up here and ask these questions today in such an intensely legal affair but then, on the other hand, somebody has to.
In all this, I start by expressing my appreciation to my noble and learned friend the Minister for the considerable time, and the enormous patience and care, that he has given to answering each of the questions that I have raised directly with him. He has been absolutely splendid. My noble and learned friend will not be surprised to hear that while I have read
every word he has written with great care, that is not the same as agreeing with every word I have read. It is clear that the principal point of difference between us is that he believes that I am relying on the entrenched status, as such, whereas it is the status and ordinary meaning of the statute law as it now stands, and as it relates to our duty and the Crown’s duty, that concerns me. I repeat: our duty and the Crown’s duty, which I do not believe are the same thing.
I was grateful to the Bill Office for agreeing to write to the Clerk of the House of Commons to ask what basis of interpretation it had placed on the use of a delegation of the royal prerogative in addressing its own debate on this subject. If I understand the very complicated answer correctly, it is along the following lines. The Crown cannot delegate something that it does not posses; it can delegate only the authority that it has, in which case it can delegate the power to us to give an opinion as to whether we want a Bill to pass and say “Content”, but it cannot delegate to us the authority to give it assent. That is retained by the Crown in all cases.
However, the Crown has to adhere to that in strict accordance with the coronation and proclamation oaths which precede it. Those oaths, passed through the Declaration of Rights in 1689, relate to all the powers that the Crown rightly held before the revolution. It ensured that the Crown could no longer deny that it was bound by the statute law with explicit changes to the coronation oath, made by enacting the Coronation Oath Act 1688. The settlement has been said by her Majesty, on the occasion of the 300th anniversary of that great document, to be the sure foundation of our constitution. I am sure that Her Majesty would take that same view without any amendment today. It will be interesting to see, when and if the Bill passes to her for Royal Assent, how she will interpret that obligation in the context of those oaths.
The vulnerability here would arise if the passage of the Bill was deemed to represent a precedent by which to justify far more draconian changes than could be permitted to the established laws of this land under the Bill of Rights and to the detriment of the rights and liberties of the subject. By relying on such a precedent, in theory it is possible to introduce arbitrary power with a Bill of no greater apparent significance than this, to reintroduce the use of judicial torture or repeal the principle of “no taxation without representation”. These are, clearly, highly undesirable outcomes.
If this Bill is enacted with the addition of the amendment that I have proposed, from the next accession and beyond we would have the satisfaction—albeit that there may be a vulnerability prior to that accession —of knowing that the fundamental rights and liberties of the subjects have been restored absolutely. As such, I commend my measure as an opportunity that we ought to take. It is like a deep third man, in cricketing terms, by sweeping up all the bits that might otherwise trickle through. I commend my measure as an opportunity that we ought to take to hope, and later ensure, that no precedent might arise from this to the detriment of the rights and liberties of the subject. If we pass the Bill we risk setting a precedent with the potential for the
worst possible outcome in the fullness of time, not knowing what future Governments and future authorities might wish to be brought to bear.
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The Minister and I do not disagree on everything; he has quoted some words with which I wholly agree. They are:
“Parliament has also, for the time being at least, limited its own powers… It is possible that other qualifications may emerge in due course”.
This was with reference to the Europeans Communities Act and the Human Rights Act. It was also noted in the Countryside Alliance case. Others took the view that supremacy was no longer absolute in Jackson v the Attorney-General, with reference to the sovereignty of Parliament. There is definitely scope for divergence of opinion as to the legitimacy of the measure. If the Human Rights Act can affect the power of the law in force, it certainly cannot be said to be less significant than the Bill of Rights. There are duties emanating from the Bill of Rights and the Act of Settlement which require all in office not to breach their provisions. That is us, the Crown and its advisers.
There is an issue here that none of us noticed previously. There is no precedent for any Parliament ever proposing to a monarch a breach of a coronation oath without that Parliament resigning within the week. Is that seriously a risk this House would wish to take at present? I can see the looks of keen anticipation on the Benches opposite at that prospect but you cannot have governance and Parliament by accident, carelessness and oversight, which would be the case. We need to know what would happen.
The two instances in which Governments have been forced to resign in this case involved, first and most notably, a not insignificant prime minister called William Pitt the Younger in 1801. He had been in receipt of that enormous reorganisation document on the future order of battle and conduct of the British Army compiled by Sir John Moore, whose “corse to the ramparts” we bore in the poem. Sir John had written this far-reaching plan for the future of the British Army but had said, “This is ridiculous; we are wasting half the potential officer talent because we do not allow Catholics to be officers. Let them in”. Pitt said, “Great idea, let’s do it”. He went off to see the Crown, the Crown said, “Resign immediately”, and he did, despite the fact that there were 650,000 French troops on the shores at Calais waiting to invade under Napoleon.
Six years later, in 1807, almost the same thing happened again. This time it was a certain Sir Arthur Wellesley, the future Duke of Wellington, who with his usual forthright style had gone off to take the expeditionary force into Portugal. He had written to the Ministry of Defence and the War Office and said, “I am trying to fight a war against a Catholic army in a Catholic country and I have nothing but English schoolboys who are all well educated and stupid and all Protestants. I need some Catholic officers, please”. Lord Grenville, Prime Minister of the ministry of all the talents at the time, agreed, went back to the King and three days later he was out of power along with
the whole Government. Are this Government going to last the week? Do we want them to? Yes, we do; we want the orderly continuity. Has anybody considered this implication and what will happen?
Passing this Bill in its present form will represent a denial by this House of the words and intentions of the Bill of Rights and the Act of Settlement. This legal point is not reliant, in the words of my noble friend; the argument must therefore be that some statutes are of such constitutional significance that they cannot be amended or appealed. The solution I have proposed in this amendment was the Duke of Wellington’s eventual solution, by which he got Catholic officers, of which there are now a very large number, into the British Army. This was achieved as a means of providing a sort of stopgap whereby you could suspend the oath for a period and then re-establish it, and hope that nobody did anything to alter the law against the interests of the subject in the mean time.
I am deeply grateful to the Bill Office for helping me to write that. It has also added the excellent extra clause, which addresses a separate Scottish oath of allegiance at the Coronation, thereby removing the threat, of which I have previously talked, that the Bill in its present form shreds chapter 25 of the Act of Union and renders the referendum in Scotland unnecessary; they have gone already.
My concern is that the law commands us directly not to do these things, but entirely to uphold the Bill of Rights. That duty has not been and is not being repealed. If we set a precedent, and this is simply set aside and ridden over roughshod, we appear to be placing ourselves above and outside the scope of the present law. This is far and away beyond the intended scope of this simple and otherwise desirable Bill. If, however, your Lordships now resolve to be content with the Bill, I first ask noble Lords either to consider passing the amendment, which would be a solution to all four points, or to take their chances in passing it to the Crown and hoping that the Crown can do more correctly what we will have failed to do ourselves.
There can be no doubt as to the requirements and priority of the future protection of the rights and liberties of the people of this country. The alternative is that we get an answer from the Minister which writes into the record something to which future generations can look back with satisfaction and recognise as an absolute assurance that, in Her Majesty’s words, the Bill of Rights will remain “a sure thing”, and we can all benefit from it.