Their Lordships’ duty
One of the most compelling arguments for the existence of the House of Lords is what political scientists, borrowing the language of biologists, call ‘redundancy’. We have two eyes and two kidneys in case one malfunctions. In the case of the repackaged EU Constitution — now called the Lisbon treaty — the House of Commons has malfunctioned badly.
As a sop to those furious that the government’s unambiguous pledge of a referendum had been broken, we were promised line-byline scrutiny of the treaty in the Commons, and an exhaustive debate by MPs that would answer the charge that the ratification was a stitch-up by a government frightened of the popular will. But a stitch-up is precisely what it has been. What ministers called ‘a whole-government approach to making a positive case for Europe’ turns out to have been stage-managed and hopelessly bland, with scandalously little time devoted to amendments. Huge areas of policy — transport, defence, social issues, border control — have been more or less ignored.
‘Themed debates’, the parliamentary equivalent of PowerPoint presentations, have supplanted genuine scrutiny, with the (intended) consequence that free and searching examination of this far-reaching treaty has been all but impossible. The government’s strategy is to bore us all into submission: a feeble ploy by a Prime Minister who, accepting the Labour leadership in May 2007, said: ‘The last ten years have taught me that the best preparation for governing is not meetings in Whitehall. The best preparation for governing is listening to the British people.’ In this context, the role of the House of Lords has rarely been more important. The Bill ratifying the treaty is expected to receive its third reading next week and then proceed to the second chamber, with the key votes likely in May and June. Their Lordships should think very carefully about the precise nature of their responsibility in this instance. Initial soundings suggest there is caution even on the Conservative benches in the upper house over taking on the Commons, on the grounds that there is not yet a popular ‘clamour’ for a referendum. If that is so, it is scarcely surprising, given the orchestrated torpor of the Commons debate. But the recent mini-plebiscites mounted by the I Want A Referendum campaign in ten marginal seats should give the Lords pause for thought: the levels of turn-out (36.2 per cent, higher than in most town hall elections) and of support for a referendum (88 per cent) are proof, at the very least, that this is an issue about which the public feel strongly when they are given a voice.
One of the fundamental traditions governing the relations between the Commons and the Lords is the so-called Salisbury Convention, which holds that the upper house will not reject a manifesto Bill at second reading, nor introduce a wrecking amendment to such Bills. The convention reflects two core principles, elucidated by two separate Salisburys.
The first, spelt out by the Victorian Salisbury, was the doctrine of the mandate. The view of the nation and the views of the Commons were not invariably identical. In Liverpool in 1882, he declared: ‘The House of Lords may possibly say, “No, this was not the ground on which this last election was conducted; we will not allow this thing to be done until the nation has been allowed to speak”. In so acting, I hold that the House of Lords will perform its true duty as a second chamber, its highest function as the last representative of the people in this country.’ The second principle was developed by his grandson, the fifth Marquess of Salisbury, after the second world war. Confronted with a Commons dominated by Labour, the Tory upper house accepted it should not frustrate measures that MPs had been elected to enact. That said, the Lords had to be more than an echo chamber. ‘It is clearly essential,’ Salisbury said in 1948, ‘that some machinery should exist which can enable great issues, on which the views of the people are not certainly known, to be adequately considered, and if necessary, referred back to the electors for their considered decision.’ In 1949, during the debate on the Iron and Steel Bill, he put the argument even more pithily: ‘I have always believed it is the function of your Lordships’ House not so much to interpret the will of the people as to give the people an opportunity of expressing their own views.’ In the case of the Lisbon treaty, the Lords finds itself in a deeply ironic position with regard to the Salisbury Convention, as Charles Moore points out on page 11. Traditionally, the convention has been invoked to constrain the Lords’ inclination to obstruct manifesto commitments that MPs have already approved. In this instance, however, the upper house has a quite different, and possibly unprecedented, duty.
It should use all its majesty to compel the Commons to enact the manifesto pledges its members were elected to implement. Labour promised: ‘It is a good treaty for Britain and for the new Europe. We will put it to the British people in a referendum and campaign wholeheartedly for a “Yes” vote to keep Britain a leading nation in Europe.’ The Lib Dem manifesto declared: ‘We are therefore clear in our support for the constitution, which we believe is in Britain’s interest — but ratification must be subject to a referendum of the British people.’ The upper house has a historic opportunity to expose a monstrous con trick and rectify its consequences. The government can claim otherwise as often as it likes, but the Lisbon treaty is self-evidently a reheated version of the EU Constitution, on which the British people were promised a referendum by all three parties at the 2005 election. Parliament does indeed have a clear mandate, and the Lords, as (in the words of the third Marquess) ‘the last representative of the people in this country’, has a responsibility to see that this mandate is not shirked. In democracy as in biology, when one eye fails the other must do all the work.
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