Lords in waiting

THE CONSTITUTION ROBERT BLAKE

'We were beaten,' George Wyndham declared after the passing of the Parliament Act of 1911, `by the bishops and the rats.' Even as the history of nineteenth century France seemed to be a repetition, in slow motion and with conscious archaism, of the feverish years that immediately followed the Revolution, so too has the recent dispute over the House of Lords appeared as a pallid copy of the great crisis caused by Lloyd George's budget in 1909. The bishops and the rats did not quite succeed last Tuesday week, but they came near enough to success for the Conservative peers to feel that their victory was hardly worth win- ning. Nor does the parallel end there. Every- one knew that behind the events of 1909-11 lay the Irish question, and this has a number of resemblances to the problem of Rhodesia sixty years later. Mr Osbert Lancaster as usual hit the nail on the head in a recent car- toon of an elderly peer addressing his colleagues with the stirring words, 'Ulster will fight and Ulster will be right.'

In assessing the conduct of the House of Lords over the Rhodesian Order it is impor- tant to distinguish clearly between the merits of the Order and the constitutional case for rejecting it in the Lords. The Order is of course ridiculous and fraudulent. Like almost every- thing that has happened over Rhodesia from and including urn onwards, it is merely a gesture; the striking of attitudes has long been the besetting sin of both sides in this lament- able dispute. The rejection of the Order is in full keeping with this tradition, for the Govern- ment can go on retabling it in substantially the same form, and anyway Lord Carrington does not seem to plan any further opposition to it. The Conservatives were quite right to oppo,e the Order in the House of Commons. They ought to rescind it without hesitation when they come into power, and, if this is regarded as an affront to the ut.i that is just too bad. The idea that the British government is bound to observe resolutions passed by that dubious and irresponsible body is one that any Conservative of spirit is bound to reject with contempt. It is more open to argument whether the House of Lords ought to have rejected the Order. It has, of course, the constitutional

power to do so, and that power was re- affirmed, if only by the omission to tamper with it, less than twenty years ago when a Labour government carried the Parliament Act of 1949.

Some people consider that an Order in Council issued in pursuance of the Government's foreign policy has a different status from, e.g., an Order in Council confirming the site of Stansted as London's third airport. But it would be hard to sustain this distinction at all consistently and in practice there would be all sorts of borderline cases.

The chief objection to throwing out the Order is not a legal one. In the end the con- stitutional rights of the House of Lords, and indeed any other institution, are those rights whose exercise the public will tolerate. It is a safe guess that the public will tolerate this one, whatever its views on Rhodesia. since the rejection of the Order is not in fact going to make the slightest difference to the imposition of these futile sanctions. They will be imposed just the same—and will remain just as futile.

The episode is important not few its constitu- tional but for its party political implications, although it may be that the latter will lead to a crisis in which the constitutional problem really will be of importance.

For the great question is where 'we go from here. Mr Wilson has seized the opportunity of making his first speech for many months to be received with something other than frosty silence, sardonic laughter or angry hoots. By breaking off negotiations between the parties, which seemed on the verge of producing a sensible agreed reform of the Lords, he has won a modest measure of applause from the left. What is more, the association of an alleged constitutional issue about the Lords with the question of Rhodesia provides an uncovenanted bonus for Labour activists. If there are two things rather than any others on which they have felt themselves let down by their leaders, these are effective action against 'the Estab- lishment' and the identification of morality (iheir morality of course) with politics. In the eyes of the party workers and the Labour in- telligentsia Mr Ian Smith is a demon figure. Mr Wilson has been given an excellent chance of rallying, at least for the time being. the sup- port of the enthusiasts who took him seriously in 1966 but have become progressively dis- illusioned ever since. Such support is a sine qua non, though in no sense a guarantee, of electoral victory. The Conservative Shadow Cabinet is said to have had misgivings about rejecting the Rhodesia Order in the Lords: its doubts may be justified by events, although it is early to decide as yet.

There are now in effect three options open to the Cabinet. The first is do nothing at all. This, though often the wisest course, is one which politicians can seldom bring themselves to follow. It is safe to say that the Cabinet will feel obliged to do something. though it is equally safe to say that it would have felt thus obliged, even if the Rhodesia Order had never been touched. The second course, which has a good deal of support among the rank and file of the I abour party, is to abolish the House of Lords entirely. The third is for Labour to produce its own plan of reform and -try to pass it without consulting the Con- servatives and. if necessary, in the teeth of their opposition.

Complete abolition is fraught- with practical-

difficulties, quite apart from the doubts about unicameral government entertained by many members of the Labour party as well as the whole of the Conservative party. There is no space here to rehearse the well-known advan- tages of having an upper house of some sort. But even if we suppose that these did not exist and that the Government, backed by a unanimous party, wished to sweep away the House of Lords entirely, a grave constitutional question would arise. The Government can claim as a result of its 'platform' in the 1966 election some sort of mandate to reform the Lords. It can hardly argue that it possesses any sort of mandate to abolish it entirely. The Con- servatives would be entitled to use every weapon in an opposition's armoury to defeat such a move until the country had had a chance to pronounce on the matter at a general election.

What could they do? Presumably the Gov- ernment would endeavour to pass the measure under the provisions of the Act of 1949. The Lords could-- and would—use its power of delay to the full and hold the Bill up for twelve months. What is more, faced with such an in- tolerable threat it would be justified in holding up other Government measures such as the Prices and Incomes Bill. This would deal a grave blow to the Government's economic policy, and Mr Wilson might then consider the, possibility of riposting by advising the Queen to create enough peers to carry the abolition of the House of Lords forthwith. He would, of course, have to choose his men carefully in

case their coronets went to their heads (meta- phorically) and they decided to rat, but no doubt a suitable gaggle of hacks and toadies could be found to do it.

At this point, however, a major snag would almost certainly appear. Peerages cannot be granted without the So% ereign's assent. The Queen would have every right- -in fact it would be her positive duty—to refuse this until a general election had shown whether or not the country favoured single-chamber government. Indeed it could be argued --though this is more questionable—that even if Mr Wilson forced his Bill through under the provisions of the 1949 Act he would be behaving so much against the spirit of the Constitution that she would be justified in using the royal veto or some other method to force a general election.

But general elections are verdicts on a government's whole record. At what stage in the nearish future would Mr Wilson be ready to risk one, especially in such a doubtful cause?

It is therefore more likely that he will pro- pose reform rather than abolition, and the shape of that reform will probably be very similar to the one upon which agreement has so nearly been reached. The difference would be that it would be proclaimed not as a moderate compromise but as a bold radical transformation. The Conservatives could then oppose it with a clear conscience and the Labour rank and file support it. The leadership on each side would be relieved of much em- barrassment. Such an outcome might suit both Mr Wilson and Mr Heath quite well.