§ Lords amendment: No. 1, in page 3, line 29, leave out "shall" and insert "may".
§ 6.20 p.m.
§ The Under-Secretary of State for Health and Social Security (Mr. Michael Meacher)
I beg to move, That this House doth agree with the Lords in the said amendment.
§ Mr. Deputy Speaker (Mr. George Thomas)
With this amendment we are to take the following:
Lords amendments Nos. 2 and 6.
§ Mr. Meacher
These three amendments, which firmly establish the Government's commitment to the principle of variation in rates of child benefit, merely put into an appropriate form the amendments tabled by my hon. Friend the Member for Stockport, North (Mr. Bennett) on Report. At that time, when accepting my hon. Friend's amendments, we explained that they were technically defective and would need revision in another place. I am advised that the amendments as redrafted have the precise meaning and the same degree of force as the original amendments. I hope they will commend themselves to the House.
§ Sir George Young (Ealing, Acton)
My hon. Friends and I are thoroughly confused by the action of the Government in connection with Lords amendment No. 1, and indeed its predecessors. To describe what they have done as a series of somersaults would be flattering, because to perform somersaults requires a certain amount of agility. It would be more correct to say that what they have done is, tediously and incoherently, execute a series of U turns.
The Lords amendment to which we are invited to agree relates to Clause 5(2). This deals with age-related benefits. As 91 the subsection was sent to this House, it read:Different rates may be prescribed in relation to different cases, whether by reference to the age of the child in respect of whom the benefit is payable or otherwise.Hon. Members thought that that wording did not ascribe a sufficient degree of urgency into the introduction of age-related benefits, and six amendments were discussed in Standing Committee A on 19th June. There was one vote, on an Opposition amendment, and it was defeated.
The Committee discussed Amendment No. 24 in the names of the hon. Members for Stockport, North (Mr. Bennett) and Walsall, South (Mr. George) which proposed that the word "may" be deleted and the word "shall" substituted. This would have reflected a higher degree of urgency to introduce age-related benefits. The hon. Member for Stockport, North said:Will he look, therefore, at Amendment No. 24? I am advised that, in legal terms, the substitution of 'shall' for 'may' is not so important. But will he consider on Report, agreeing to the strengthening of Clause 5 to provide that different rates 'shall' be prescribed instead of that different rates 'may' be prescribed? "—[Official Report, Standing Committee A; 19th June 1975, c. 106–7.]In the winding-up speech to that debate is was never suggested that the amendment was technically defective. Normally that is a Minister's first line of defence, but it was not deployed on that occasion. Instead the Minister fell back on his second line of defence and said that if he entered into detailed discussions and consultations with his hon. Friends who had put forward such a firm view for which he had infinite respect and sympathy, perhaps they would be courteous enough to withdraw the amendment. His hon. Friends obliged. The Committee heaved. The Committee whip heaved a sigh of relief and the Committee moved on to Amendment No. 25.
Before Report, discussions and consultations clearly took place, because when the Report stage of the Bill was taken on 7th July Amendment No. 24 reappeared, this time under the alias of Lords amendment No. 6. It was called with Amendment No. 7, which gave the Secretary of State the privilege of appointing the day on which age-related benefits 92 were to be paid. Amendments Nos. 6 and 7 proved to be acceptable to the Minister because he said:…I am certainly prepared to accept Amendments Nos. 6 and 7 in the name of my hon. Friend the Member for Stockport, North as a means of providing reassurance, not just to the House but to interested organisations outside, that it is not intended to continue with flat-rate benefit indefinitely.The Minister then went on to make a rather curious statement:The amendments as drafted are defective.This is curious because the Minister had had discussions with his three hon. Friends between the Committee and Report stages but he had not apparently been able to furnish them with an amendment which was not defective. This strikes me as curious because so far as other Bills are concerned, when Opposition amendments have been acceptable the Minister has made sure that the amendments were not technically defective, and I am surprised that he does not render the same service to his hon. Friends as he renders to the Opposition.
The Minister went on to say:I understand that the draftsmen will need to improve on my hon. Friend's efforts. But I am prepared to accept them this evening hoping that my hon. Friend will understand that they will need revision in another place."—[Official Report, 7th July 1975; Vol. 895, c. 231.]The House therefore amended the clause, "may" was deleted and "shall" was inserted.
The Bill then passed to the other place and we on this side of the House waited with bated breath to see how that word "shall" was to be made legitimate. But in another place the Government amendment was to delete the word "shall" and to insert the word "may"—a stroke of breathtaking ingenuity, which rendered totally redundant the amendment which the Government and the Opposition accepted on 7th July.
Moving the Government amendment. Lord Wells-Pestell said:The amendments put into an appropriate form amendments made in another place which, although acceptable in principle to the Government, were technically defective.However, their Lordships were not so gullible as to fall for this, and Baroness Elles said:I feel that the amendment does not seem to be quite in the spirit of the reply given in 93 another place that 'shall' is to replace 'may' in the Bill…Lord Banks agreed and Lord Wells-Pestell was under some pressure—
§ Mr. Deputy Speaker
I am afraid that the hon. Gentleman has come to the end of his quotation because Ministers only may be quoted from another place.
§ Sir G. Young
I apologise for inadvertently quoting someone whom I should not have quoted. I will endeavour to complete my oration without relying on my hon. Friends.
Lord Wells-Pestell, who is in the unhappy position of being a Minister, said:I am advised that it is much more appropriate to use the word 'may' than the word 'shall'. I recognise the force of 'shall', but we are advised that' may' is the more appropriate word."—[Official Report, House of Lords, Vol. 363, c. 535–8.]With all respect to the noble Lord, that is hardly a compelling argument. In both Houses we have been told that "shall" is technically defective but we have never been told why. The Government must do better today than merely say that "shall" is defective. If one goes through the Bill I doubt whether one finds any word appearing quite so often as the word "shall", apart possibly from the word "regulations." I accept that another amendment inserted in another place, namely Lords amendment No. 2, is relevant to our deliberations. This amendment says:
The power to prescribe different rates under subsection (2) shall be exercised as to bring different rates into force on such day as the Secretary of State may by order specify.
This, however, is not good enough because the power referred to is permissive and not mandatory. We on this side of the House find ourselves in the strange position of defending an amendment which the Government accepted three weeks ago from one of their own back benchers. We are happy to have this opportunity, and we propose to resist Lords amendments Nos 1 and 2.
§ The Minister of State, Department of Health and Social Security (Mr. Brian O'Malley)
I assume from the comprehensiveness of the hon. Gentleman's speech that he is practising to write the definitive biography of the new leader of his party. I think, however, that we should be grateful for his putting on the record in considerable detail the history of this affair.
All I would say is that, of course, it is the case that "may" is replaced by "shall" in Lords amendment No. 1. On the other hand, the word "shall" appears clearly in Lords amendment No. 2. The total result of all the amendments which we are discussing is to provide in proper legal form everything which my hon. Friend was putting forward in his amendment. We have, therefore, given the assistance of the Government draftsman to ensuring that this Bill, when it completes its parliamentary process, should be in the correct legal language. Nothing has changed except drafting since the Bill was in another place, and I do not know what the hon. Gentleman is making such a fuss about.
§ Question put, That this House doth agree with the Lords in the said amendment:—
§ The House divided: Ayes 261, Noes 251.99
§ Question accordingly agreed to. [Special Entry.]
Lords amendment agreed to: No. 2, in page 3, line 31, leave out from "otherwise" to the end of line 32 and insert:
(2A) The power to prescribe different rates under subsection (2) above shall be exercised so as to bring different rates into force on such day as the Secretary of State may by order specify."—[Mr. Meacher.]
§ [Special Entry.]