My Lords, I am relieved that Clauses 44, 45 and 47 are being removed from the Bill. They were constitutionally improper and a constitutional aberration. They subverted the rule of law. As we have known for centuries, and was summed up by a former Lord Chief Justice in the 17th century, Edward Coke, the rule of law is our “safest shield”.
The way in which the debate over the Bill unfolded perhaps reminded us of something else, something which perhaps noble Lords do not need to be reminded of, but needs occasionally to be drawn to the attention of the Executive: we are a Parliament of two Chambers. The Executive has no sovereignty; Parliament has sovereignty. Of course, the Commons is the first, the prime, the pre-eminent, the most significant and the most important part of the two Houses of Parliament, but that does not mean that this House is without some modest power.
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This was summarised in the debate at Second Reading by the noble Lord, Lord McNally, when he drew our attention to the Cunningham committee, which looked at and went past the Salisbury/Addison convention in 2006 and said this about the powers of the House of Lords:
“Nothing in these recommendations would alter”,
I emphasise, the
“right of the House of Lords, in exceptional circumstances, to vote against the Second Reading or passing of any Bill”.
These are exceptional circumstances. Of course, they involve huge caution and responsible respect for the function of the other place, but this power, justifiably, can and should be exercised when proposed legislation, as we had in Clauses 44, 45 and 47, is constitutionally aberrant.
I still like to think—although the Minister has not said so, and we have had a letter about it today, 9 December—that the Government have recognised the strength of feeling throughout this House, across all parties and none, not least some giants of their own party, that those clauses simply would not do. I also hope that the Government wisely discerned a settled determination that the House would never agree to them and would be prepared to exercise its right under the government Bill convention. I hope so, but whether I hope so or not does not matter. What matters is that I welcome the Government’s decision to abide by the decisions of this House on Clauses 44, 45 and 47.
When the time comes, we will have another look at Clause 45 and the amendments that are put before the Commons. We wait for them in the confident expectation that they will not be offensive to the rule of law because, if they are, I have no doubt that we will take the same line as we have with Clause 45, as it now stands.
I agree with the Minister on Clauses 42, 43 and 46. We proceeded in earlier stages in the House based on their being tainted by the unconstitutional clauses—as I describe them. Now that those clauses are being removed, these are no longer tainted and, therefore, do not need to be exorcised in deference to constitutional principle.