HL Deb 05 November 1970 vol 312 cc455-62

3.16 p.m.

THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)

My Lords, I beg to move that this Report be now considered.

Moved, That the Report be now considered.—(The Earl of Listowel.)

On Question, Motion agreed to.

The Committee's Report was as follows:

The Committee considered the memoranda laid before them by Sir Robert Speed. Counsel to the Speaker of the House of Commons, and Mr. T. G. Talbot, Counsel to the Chairman of Committees, House of Lords, and also a note on the procedure of the Special Orders Committee, on which they heard evidence. They have in particular considered the questions that are asked of the Committee set out in Standing Order 216 which, in effect, form the terms of reference of the Special Orders Committee and the basis of its reports. For the reasons set out below the Committee are of opinion that the questions are such that the answers given by the Special Orders Committee to them are generally of little value to the House. The questions that the Committee are required to answer are set out in the Standing Order as follows:—

"The Special Orders Committee shall consider:—

  1. (a) whether the provisions raise important questions of policy or principle;
  2. (b) how far the Special Order is founded on precedent;
  3. (c) whether, having regard to the answers to the two preceding questions and to any other relevant circumstances, the Order can be passed by the House without special attention or whether there ought to be any further inquiry before the House proceeds to a decision upon the resolution, and, if so, what form that inquiry should take, and shall report to the House accordingly."

Regarding the first question, all Public Special Orders involve decisions of policy and, therefore, it is the word "important" that is the key word contained in the first question.

The question of "importance" is bound up with the later question (c) whether the Order can be passed by the House without special attention and the implications of this question will be examined later in the report.

The form of the second question (b) though concerned with Public Special Orders is probably to be explained by the fact that in its early history the Special Orders Committee was principally concerned with Private Special Orders. This is one of the questions that is asked by a Select Committee considering a Private Bill. If an Order gave one company certain powers, it would have been capricious to refuse another Order giving a second company similar powers.

However, this question is now interpreted by the Special Orders Committee to mean whether the Order is or is not the first exercise of the power conferred by the Act under which the Order is made. In the Committee's opinion the answer to this question as interpreted above is of little relevance or assistance to the House. What the House wants to know is whether it has approved an Order in similar terms before and what difference, if any, there is between what is now proposed and what was previously approved.

As to the third question (c) a requirement that "special attention" must be given to a Public Special Order is meaningless since the object of the affirmative resolution procedure is that the House should give its attention to the Order; this is in contrast with negative resolution procedure where the House will give attention only if a member prays to annul the Order.

The second part of the third question, that is "whether there ought to be any further inquiry before the House proceeds to a decision upon the resolution, and, if so, what form that inquiry should take." cannot usefully apply to Public Special Orders. The only form of machinery to carry out a further inquiry that the House has at its command is a Select Committee and the Special Orders Committee has never recommended the reference of a Public Special Order to a Select Committee. It must not be forgotten that a Select Committee and the House have in general no power to amend a Special Order.

For these reasons the Committee are of opinion that the three questions in the Standing Order set out above should be replaced by a requirement that the Committee should be required to report to the House on every Order referred to it either that it had no comment to make or that the vires of the Order was in doubt or that there was some other matter that the Committee wished to draw to the attention of the House.

The Committee considered whether they should express an opinion or make a recommendation to the House as to what are the other matters to which the attention of the House should be drawn, and whether these should be included in the terms of reference of the Special Orders Committee or in the Standing Orders regulating its procedure. They were aware from the memorandum submitted by Sir Robert Speed that the terms of reference of the Statutory Instruments Committee of the House of Commons sets out such a list. However, after careful consideration the Committee came to the conclusion that it is not necessary to set out these points either in the terms of reference or in the Standing Orders. Nor was it desirable on procedural grounds for the Special Orders Committee to have an internal list of matters requiring attention which it would apply to Orders referred to it.

The Committee are of opinion that it should be left to the Special Orders Committee to decide to what points it should draw the attention of the House when it reports on an Order.

The Committee conclude that certain changes are desirable in the procedure of the Special Orders Committee when it reports to the House on Public Special Orders it has considered and to achieve them the Committee recommend that Standing Order 216 be amended as follows:—

Leave out from the beginning of line 57 to "and" in line 66 and insert:

  1. "(a) whether they have any doubt that the Order is intra vires;
  2. (b) whether there is any other matter in the Order or in the enactment under which the Order is made to which they think it expedient to call the attention of the House."

Line 111, leave out "(7) In the case of every Special Order".

Line 112, leave out "the Order" and insert "an Order such as is referred to in paragraph (3)(b) above".

THE EARL OF LISTOWEL

My Lords, I beg to move that this Report be now agreed to. I think I should explain briefly to the House the Report from the Select Committee which I am asking the House to agree to this afternoon. The Report is concerned with the procedure of the Special Orders Committee; that is to say, the Committee to which are referred all Statutory Instruments which require an Affirmative Resolution of the House.

The terms of reference of the Select Committee were limited to those Statutory Instruments which are in the nature of public legislation; that is to say, to Public Special Orders. The Special Orders Committee have taken the view for some time that their Reports to the House could be made more helpful and interesting if they were not confined to answering the three specific questions set out in Standing Order 216. The Select Committee agreed with this view. They recommended that the Special Orders Committee should be required by the Standing Order to report to the House on every Order referred to them, either that they had no comment to make or that the vires of the Order was in doubt, or that there was some other matter that the Committee wished to draw to the attention of the House. The Select Committee also recommended that it should be left to the Special Orders Committee to decide to what points they should draw the attention of the House when they report on an Order.

I believe that the agreement of the House to this Report will add to the effectiveness of the Standing Order and to the value to the House of the Reports made by the Special Orders Committee. If the House agrees to the Report of the Select Committee, I shall propose at an early date the necessary amendments to Standing Order 216. I am sure the House will join with me in thanking the members of the Select Committee for their Report. My Lords, I beg to move.

Moved, That the Report be now agreed to.—(The Earl of Listowel.)

LORD ROYLE

My Lords, I am sure that the whole House will be indebted to the Chairman of Committees for his explanation of this Report, and we all have some gratitude for the Select Committee who have given us the Report. But, speaking for myself, as a member of that Special Orders Committee (I do not know whether my colleagues on the Committee agree with me on this point) I, for one, am becoming very concerned about the extraordinary, tremendous powers and responsibilities which the Committee are going to lose! We have sat for hours in deliberation on these matters and have had the opportunity of deciding from time to time whether an Order before us raises important questions of policy and principle. When we have decided that the Order does raise important questions of privilege, we invariably find that the House does not agree that they are important; and if we decide in the Committee that they are not important, it would appear that from time to time the House disagrees with us and your Lordships find that they are important.

Also when it comes to the question of precedent or whether the Special Order under consideration is founded on precedent, in like manner we have often found that it has been without precedent, but the House has never taken the slightest notice of it and the Order has gone through "on the nod". As to whether an Order requires special attention, there is a complete contradiction, because invariably when the Special Orders Committee have decided that special attention needs to be given, not a word is uttered in your Lordships' House; but if the Special Orders Committee decide otherwise, that an Order does not require special attention, an hour's debate in your Lordships' House may ensue. These are matters that I do not understand at all, and I am very concerned that our great powers and responsibilities in this respect are being taken from us.

And what, my Lords, are we getting in return? We have an alternative: we can either say that the Order is intra vires or, alternatively, we can come to your Lordships' House and say that we have not got a thing to say about it. So that is the situation, and what conclusion do I reach? The longer I have been on that Committee, my Lords, the more I have wondered why I continue to be a member of it, and I have definitely come to the conclusion that it is time the Committee was scrapped and that your Lordships did your own work.

LORD SHACKLETON

My Lords, I am glad my noble friend raised this point. I think this very small change is a desirable one and I should have thought that it gave a little more opportunity to the Committee to raise matters in a way which is less constrained, rather than more so. But I was in any case going to say—and I am sure all noble Lords who have studied this matter will agree with me—that our Parliamentary procedures for dealing with Orders of all kinds are totally inadequate. One day Parliament will have to face this question, because no Government will reduce the number of Special Orders. Various Oppositions will complain, but when they go into Government they do not do anything about it. I am not getting at the present Government, because it was just the same with us. I hope your Lordships will forgive me for saying this, but if the late lamented reform of the House of Lords had gone through, this was one of the major areas in which we had hoped to persuade another place also to do its duty and to do it jointly with us.

At some time this problem, which is growing all the time, will have to be faced, although I am not quite sure how, because it is a fact that unless there is some special "sex appeal" to a particular Order—and I am using that term metaphorically—your Lordships on the whole pay very little attention. I am in no way criticising my successor or my predecessors in regard to this matter, but I hope your Lordships will realise that there are some very important points involved, and I do not believe that Parliament is doing its job.

3.23 p.m.

EARL JELLICOE

My Lords, I would say straight away that I have considerable sympathy with the noble Lord the Leader of the Opposition in what he has just said. It is my belief, and probably it is the belief of all those who have looked at this matter—and I had the opportunity of looking at it in the context mentioned by the noble Lord the Leader of the Opposition of the "late lamented" Lords Reform Bill—that how we deal with Orders is a matter which should be considered by this House, and indeed by both Houses of Parliament. It is something that I have in mind.

But, coming back from that and having noted what the noble Lord, Lord Royle has said, I would say that this Report, which has been clearly explained by the noble Earl the Chairman of Committees, should in my opinion be accepted by your Lordships. I am sure it is important that the terms of reference of the Special Orders Committee should reflect as closely as possible both the functions and the powers of the Committee, and these proposed amendments, which, as the noble Earl has said, are very small, I think achieve that purpose admirably. Therefore I hope your Lordships will be inclined to support the Motion moved by the Lord Chairman. I understand that the Lord Chairman will be replying to the noble Lord, Lord Royle, in a moment or two.

LORD CAWLEY

My Lords, as a member of this Committee for about ten years I think your Lordships ought to know what goes on. In the Middle Ages it used to be the habit of the judges to call in banc on the Lord Chancellor to ask him what Parliament meant by a certain Statute. The Special Orders Committee really are in the same position as members of the public or the judges. They are there, and they ask representatives of the Ministry what the Orders mean, and it gives a unique opportunity to cross-examine in private the civil servants responsible for the Orders. I can assure the House that a great many useful things have come out of this during the ten years that I have been a member of the Committee.

These Orders are often extremely clumsy; they occasionally contain incomprehensible provisions. The Committee are not slow to point out to representatives of the Ministry the nature of these defects, and usually in the next Orders that come before the Committee the Minister has seen fit to rectify them. Now those defects cannot really be brought out on the Floor of the House. They are small matters, but they are important in order to produce a good code of statutory instruments. I feel that that is one of the main points in favour of the existence of the Special Orders Committee. The noble Lord, Lord Royle, may not agree with me, but I am firmly of that opinion. It gives me great pleasure to support the noble Earl who moved the Motion, because I think it will crystallise the functions of this Committee in the House. But I hope the functions in private will continue in the same way.

THE EARL OF LISTOWEL

My Lords, I should thank all the noble Lords who have spoken, and particularly the noble Earl the Leader of the House and the noble Lord the Leader of the Opposition for their support. The noble Lord, Lord Royle, I think was a little anxious that the Report might change the powers and responsibilities of the Special Orders Committee. I can reassure him about that. There is no proposal in the Report to change the powers and responsibilities with which this Committee have been entrusted by the House. All the Report proposes is to alter the terms of reference, as the noble Earl, Lord Jellicoe pointed out, in order to make the Report which the Committee make to the House rather more interesting—the Committee hope—than it is at the moment. I think that is also the answer to the complaint made by the noble Lord, Lord Royle, that the House does not pay sufficient attention to these Reports. If the Reports were more interesting perhaps they would be more widely read by your Lordships. The noble Lord, Lord Cawley, speaking from much longer experience than I have of the Special Orders Committee, also gave the Motion his support.

On Question, Motion agreed to.