You can't expect condemned men to behave

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The Independent Online
FOR THOSE of us who take an interest in these matters, it has been a fascinating week. Even more normal members of the human race have had much with which to engage their attention. We are not in the middle of a constitutional crisis: the Government has deservedly lost a thoroughly bad Bill. But we have been subjected to a good deal of misleading constitutional talk. Some of this has come from my colleagues in the press, much of it from Mr William Hague and Lord Cranborne, saying slightly different things. But most of it has come from Mr Tony Blair and his hangers-on.

From the moment the House of Lords effectively rejected the European Parliamentary Elections Bill for the fourth time, the Government's tactics were obvious: to turn the argument from one about closed lists as a means of proportional representation into one about the misuse of the powers of the hereditary peers. Mr Blair shamelessly went further, showing a disregard for the truth which is, alas! becoming a characteristic of his tenancy of No 10.

He claimed that the Lords' behaviour violated what is known as the Salisbury Doctrine, deriving from the marquess of that name. This states that their lordships have no right to refuse to pass legislation which was foreshadowed in the election manifesto of the governing party. Mr Blair says that closed lists in European elections were so announced. As Sir Bernard Ingham used to put it, bunkum and balderdash! All the manifesto says is: "We have long supported a proportional voting system for elections to the European Parliament."

Mr Blair may reply that, now that the Lords have triumphed and the Bill has fallen, the only alternative is the old first-past-the-post system. This is not so. True, the Government could reintroduce the Bill for closed lists in the new session and the Lords would certainly reject it all over again. But the Government could introduce a new Bill, whether providing for open lists or for the somewhat dauntingly named "Belgian system", a mixture of both open and closed lists. The Lords would almost equally certainly pass such a measure. It could be on the statute book in time for the European elections.

But this would be to admit defeat, to accept humiliation, even though it would fulfil the manifesto pledge, if pledge it be - for, as the quotation shows, the words are more an expression of opinion than a promise of action. It would also deprive Mr Blair of the control which he would enjoy under the closed list system. Therefore he will revert to or, if you prefer, retain the old voting system. This will please, among many others, Mr Jack Straw, who has not been converted to proportional representation of any kind and has given the impression of regarding the proceedings of the last few months as one huge joke, as they may well have been.

Lady Jay has tried to make their lordships' flesh creep by threatening them with the Parliament Act, which enables the Commons to override the Lords. This suggests that the new leader of the upper House does not know her Act from her elbow. The delaying power of the Lords, except where Money Bills are involved, is 13 months, which means that no Bill can be forced through in time for the elections in June 1999.

The present hurdles - the dual criteria - of two sessions and one year from second reading in the Commons, making up the 13 months, were erected in 1949; under the 1911 Act they were higher, three sessions and two years. Though there were two Acts, they are usually referred to as the Parliament Act. Only four statutes have been passed under the procedure: the Welsh Church Act 1914, disestablishing the Church in Wales; the Government of Ireland Act 1914, providing for home rule for Ireland but never implemented owing to the outbreak of war; the Parliament Act 1949; and the War Crimes Act 1991, enabling a handful of old men to be prosecuted retrospectively.

But though the Act is not much use for the European elections, it will certainly have to be wheeled on when the Government kicks out the hereditary peers. Now here we come to the strangest part of last week's proceedings. For everyone has been carrying on as if those peers were in the position which they occupied before May 1997.

Thus we are told, by Mr Blair and the Prig Press alike, that it is not merely a question of the Salisbury Doctrine. This may apply, or it may not (as here it manifestly does not). But, over and above this, the Lords have a kind of residuary duty not to frustrate the will of the democratically elected Commons. In reality, as we know, the closed vote system would be rejected on a free vote of the lower House. What we are in practice talking about is the will of the Cabinet or, as the Cabinet now has little collective will of its own, of the Prime Minister and a few chums.

No matter. It is the way our system of government has worked for some time. Indeed, under that system it has been understood that, quite apart from the Salisbury Doctrine, the Lords may warn the Commons (in practice, the Government) and may even temporarily frustrate them but cannot ultimately deny them, except over a Bill to prolong the life of a parliament - which is laid down in the Parliament Act itself. But the reasoning behind their lordships' final compliance had less to do with any adherence to democratic principle than with the preservation of their own position.

It was a typically dishonest British constitutional device whereby everyone was left in a false position, of nudges, understandings, occasional embarrassments, over rural buses or Sunday traders. The Parliament Act was the cane in the cupboard, rarely brought out, only four times in over 80 years. There was also the more terrible threat of expulsion. There was no need to exert discipline because the boys were mostly reasonably behaved.

But from May last year there was no reason for the boys to behave themselves any longer. For they were going to be expelled. Whatever happened, however well they chose to conduct themselves, they were still to be cast into outer darkness. The constitutional convention, such as it was, had lapsed. It no longer fulfilled any purpose. In these circumstances it is silly of the Prig Press to call on their lordships to behave themselves. It is futile for Mr Blair to proclaim great rage and to threaten all manner of unspecified pains and penalties. The punishment was fixed last May: death. It is astonishing that the lads have behaved so well since this draconian sentence was handed down.

It is always gratifying when those set in authority over us slip on a banana skin or, better still, are given a bloody nose. What ought to be the party of freedom has not been active in this enterprise. On the contrary: Mr Paddy Ashdown is more royalist than the king. Now he has been given a fleeting glimpse of the black suspenders of power, there is no holding the lad. He is besotted with what our great tabloid papers would call his latest squeeze. There is nothing he would not do for Toni.

He is joined by the less susceptible Lord Jenkins who, having come down against closed lists in his report on electoral reform, marches through the lobbies in support of them, accompanied by such noted chatterers as Lords Annan, Bragg, Dahrendorf, Desai, Hutchinson, Lester, Puttnam and Taverne. God bless the hereditary peers!