DELEGATED LEGISLATION (Hansard, 20 February 1973)

HL Deb 20 February 1973 vol 339 cc68-101 68

§ 5.50 p.m.

§ EARL JELLICOE rose to move, That this House takes note of the Report of last Session of the Joint Committee on Delegated Legislation. The noble Earl said: My Lords, I beg to move the Motion which stands in my name on the Order Paper. First, may I say how much I welcome the opportunity once again to draw attention to the valuable Report of the Brooke Committee, the Joint Committee on Delegated Legislation, so ably chaired by my noble friend Lord Brooke of Cumnor. The Government, and indeed 69 both Houses of Parliament, are very much indebted to the Committee for the exceptionally thorough way in which they considered this difficult and exceedingly intricate matter. As your Lordships will know, the Committee have been reappointed this Session and will be studying further aspects of this complex problem, but more of that in a moment.

§ Perhaps I should begin by sketching in briefly something of the background to the appointment of the Brooke Committee. During the summer of 1971 the Commons Procedure Committee studied the whole process of legislation, and in the course of that study they paid particular attention to matters connected with subordinate legislation. With the agreement of our Procedure Committee, four noble Lords, the noble Lords, Lord Shackleton and Lord Byers, the Lord Chairman of Committees and I, gave evidence to the Commons Procedure Committee on four matters: first, the question of the balance of legislation between the Houses—something which I hope has advanced a little since then; secondly, pre-legislation committees; thirdly, post-legislation committees and, fourthly, the matter with which we are now concerned, the question of the appointment of a Joint Scrutiny Committee to consider Statutory Instruments.

§ My Lords, the subject of delegated legislation has not been examined in real depth for 40 years, since the Donoughmore Committee reported. During those 40 years the amount of subordinate legislation has grown vastly, and as a result a great many oddities, anomalies, and indeed seeming absurdities, have crept into our Parliamentary procedures. Each House has different procedures for the technical scrutiny of Instruments. Some Instruments are subject to certain Parliamentary procedures while others are not. Some Instruments require Affirmative approval and others Negative approval and it is not often quite clear why. Some Instruments are laid in draft and others are laid after being made. There are also considerable variations in the amount of time available to Parliament in which to take the necessary Parliamentary action, and so on.

§ I think that everyone was agreed—certainly the Government agreed—that a good hard look should be concentrated 70 on this subject without delay, hence the Brooke Committee. In their Report the Committee have shown that they have completed their study of the system of control over the technical form of Statutory Instruments in both Houses of Parliament and the difficulties experienced in another place in finding time to debate Prayers. They have not yet reported on a number of questions and I understand that this is part of the work on which my noble friend Lord Brooke and his colleagues are now engaged. There is the question whether' any further classification or analysis of the character of Statutory Instruments, which might ease the simplification or improvement of Parliamentary control, would be practicable. I must say that I hope that will prove to be the case because at present it is a sort of Hampton Court maze. In addition, I understand that they wish to consider some ancillary matters; for example, the appropriateness of the forty-day Praying period, Special Procedure Orders, and hybrid Instruments. I have no doubt that their further Report on all these matters will be as valuable as the one we are considering now.

§ My Lords, the aspect of the inquiry with which the Government were particularly concerned was to see how more time might be found in another place for the debating of Prayers against Negative Instruments in view of the many other pressures on the time which could be devoted to matters on the Floor of the House. Some noble Lords know extremely well from first-hand experience that it has been a regular feature of Business Questions in another place that the Leader of the House has had to explain why it has not proved possible to find time for a particular Prayer to be debated; and under the present procedures, if Prayers cannot be taken on the Floor of the House they cannot be debated at all. This is one of the problems which greatly concerned the Government.

§ I think the other primary source of concern to us was the advantages which we felt might accrue to Parliament in particular, and to each House individually, if subordinate legislation could be scrutinised on technical grounds by a Joint Committee of both Houses rather than by individual Committees of each House, each with different terms of reference. In our evidence to the Brooke 71 Committee my right honourable friend Mr. Carr and I made clear our view that a Joint Scrutiny Committee of both Houses and a Merits Committee in the House of Commons would be a welcome reform of our Parliamentary procedures. The noble Lords, Lord Shackleton and Lord Byers, both put in memoranda to the Committee and they both recommended the appointment of such a Joint Scrutiny Committee. Perhaps I may quote from Lord Byers' evidence: The present situation whereby each House carries out its own scrutiny of subordinate legislation in a haphazard and peaceful manner seems to me to be unsatisfactory"—

§ LORD SHACKLETON
"Piecemeal", my Lords.

EARL JELLICOE
Did I say "peaceful" my Lords? Well, then, "haphazard, peaceful and piecemeal". I think the noble Lord said "haphazard and piecemeal": There exist overlaps between the work of the present Statutory Instruments Committee in the House of Commons and the Special Orders Committee in the House of Lords which are obviously illogical. My Lords, I happen to agree with this view and I know that the noble Lord, Lord Shackleton, made clear in his evidence that he also agreed with it. Neither of the noble Lords referred in their evidence to a Merits Committee in another place and possibly it would not have been altogether appropriate for them to do so as it affects another place.
As your Lordships will see from their Report, the Brooke Committee accepted the evidence they received from many quarters and recommended a Joint Scutiny Committee to check the technical propriety of Statutory Instruments, including vires. They also accepted the recommendation that a number of people put forward, quite apart from the then Lord President and myself, that a Merits Committee should be established in another place. I understand that consideration of the terms of reference of the Commons Merits Committee is now well advanced and that that Committee will shortly be set up and be functioning. So far as I am aware, no evidence was received by the Brooke Committee that a Merits Committee was required in your Lordships' House. Indeed, my evidence to the Committee was that, at least at 72 present, there was no similar time problem in respect of debates on the Floor of your Lordships' House as exists in another place; or, in any event, a problem of such a nature as would prevent your Lordships praying against a Statutory Instrument if you so wished. In fact, there have been only 14 Prayers in this House in 11 years which seems to bear out my feeling that at present—I will not go further than that—there is no particular problem in this regard. In any event, my Lords, I announced, in a Written Answer to my noble friend Lord Nugent of Guildford on December 6 last, that the Government agreed that it would be desirable to adopt these recommendations; and some weeks ago my noble friend Lord Aberdare moved a Motion on my behalf seeking your Lordships' agreement to the proposal to establish a Joint Scrutiny Committee.
My noble friend briefly indicated the advantages, as we on this Bench see them, which would flow from such a Joint Committee. I will recapitulate them briefly. It will allow both Houses to pool their resources. It should therefore economise in that scarce commodity, Parliamentary manpower, since the proposed Joint Committee will be smaller in numbers even than our existing Special Orders Committee. There are other advantages. First, as most of us know, there is much overlapping at present—and this would be avoided—between the Statutory Instruments Committee and our Special Orders Committee. Secondly, the Commons Committee examine Negative Instruments and our Committee does not, and it seems sensible to bring both Houses into line. Thirdly, both Houses have in the past sometimes taken a different view on the technicalities of some piece of subordinate legislation. That seems undesirable and it will be avoided by a Joint Committee. Fourthly, the amount of domestic subordinate legislation is likely to increase rather than diminish. It has been increasing. Northern Ireland led to a further increase. Our membership of the European Economic Community will lead to yet further increase. For all these reasons—doubtless they are in the minds of the House—your Lordships agreed that it would be desirable for us to use the resources of both Houses in the future together. Perhaps I can 73 just touch on two or three points of comparative detail—

§ LORD HALE
My Lords, before the noble Earl leaves that matter, would he be good enough to deal with one question? The Group Committee had a good deal of evidence about delegated legislation arising from the activities of the European Economic Community. Will it be the responsibility of any Committee, in considering delegated legislation put before the House in pursuance of a direction of the Commission, or on a judgment of the International Court at Luxembourg, to advise the House whether the delegated legislation fully complies with the direction or judgment?

EARL JELLICOE
My Lords, I think that is one of the matters which the ad hoc Select Committees of both Houses are studying at the present time. Possibly it would be a mistake for me to prejudge it.

§ LORD SHACKLETON
My Lords, with respect, it is not long since that we either amended our Standing Orders or did something to enable the Special Orders Committee to consider Orders made as a consequence of action at Brussels where in fact a Statutory Instrument was necessary. It may be that when the noble Earl comes to reply he can confirm that. As I understand it, there are a number of items which are provided for in the relevant Act and which have to be implemented by Statutory Instrument. These are ones that are not self-executing. These will presumably have to be considered as to their vires in the ordinary way, as distinct from the Committee that is considering how to deal with proposals.

EARL JELLICOE
My Lords, the regulations, yes. It is Directives which are at the moment falling within the purview of the two Select Committees.

§ LORD SHACKLETON
Proposals?

EARL JELLICOE
Proposals for Directives.

§ LORD SHACKLETON
Or for regulations?

EARL JELLICOE
My Lords, perhaps it would be better, rather than for the noble Lord to interrupt me from a sitting position, if—

§ LORD SHACKLETON
The noble Earl ought to do his homework.

EARL JELLICOE
My Lords, I have heard that question of doing homework put forward previously by the noble Lord the Leader of the Opposition. It is becoming rather a parrot cry. I think it would be more sensible, rather than conducting a running exchange of this fluent badinage on the part of the noble Lord the Leader of the Opposition, if I were able to speak again. I hope I shall do so briefly, and, if the noble Lord agrees with that, I will come back to this point when I answer the debate.
If I may revert to the points of comparative detail on which I was going to touch, the first is this. Your Lordships will recall that the Brooke Committee recommended that the Chairman of the Joint Scrutiny Committee should initially be a Member of another place, but that thereafter the Joint Committee should be free to choose their own Chairman. After a good deal of thought, the Government have come to the conclusion that it would better if the chairmanship of the Committee were always to lie in another place. The principal reason for that is that the Commons half of the Joint Committee will have to consider Instruments which are not laid before your Lordships House for reasons of financial privilege. In these circumstances, it seemed to us more sensible that the Chairman of the Commons half of the Committee should also be Chairman of the Joint Committee. I note that my noble friend explained to your Lordships the reasons behind his Committee's view that in due course the Joint Committee should be free to choose their own Chairman. However, my noble friend was gracious enough to say that he sympathises with the views expressed in another place on this matter and that he did not consider that his Committee's Report was in any way damaged by the Government's being unable to accent this recommendation. I think it was fairly evenly balanced, but in terms of political practicalities I am very much inclined to feel that we have come to the right conclusion.
Secondly, my Lords, the Government also feel that the Party balance represented in another place should be reproduced in the composition of the Joint 75 Scrutiny Committee. This is perhaps a more debatable issue in certain respects. Some of your Lordships perhaps feel that we are prejudicing one of the unique characteristics of our Special Orders Committee, which was that the memberships of our Committee never attempted to represent Party balance in this House or the Party in power. All I can say is that I am personally confident that the tradition of our Special Orders Committee and the now extinct Statutory Instruments Committee of another place—namely, that they do not approach these matters of technical scrutiny in a Party political sense—will in fact be found to be reproduced in the Joint Scrutiny Committee.
There is one provision of our Standing Order 216 on the Special Orders Committee which I should perhaps mention here and which indeed the Brooke Committee recommended should be followed in both Houses under the new arrangement which I am commending to your Lordships now: that is a provision that no Affirmative Resolution can ever be moved in this House without the Instrument's having been considered and reported on by the Special Orders Committee. The Brooke Committee found this an attractive proposition and recommended that this safeguard should continue in this House and also be taken up in the Commons in respect of the Joint Scrutiny Committee. The Government have thought again rather carefully about this point and have come to the conclusion that, so far as the House of Commons is concerned, they cannot go along with this particular recommendation. They will of course do all they can to ensure that the Joint Select Committee will have the opportunity to examine Affirmative Orders before they are taken on the Floor of the House of Commons. Nevertheless, we consider that there could, in rather exceptional circumstances, be occasions of either extreme urgency or, for example, at the beginning of a Session before Committees are established, when an absolute requirement of this kind would be hard to accept. This obviously poses a problem for your Lordships' House. What I would suggest is that so far as this House is concerned the Government accept the Brooke Committee's recommendation, namely, that 76 we do not change our existing procedure, although we may have to look at it again in the future if the Joint Scrutiny Committee is not as flexible in its meeting arrangements as our present Special Orders Committee is. We should keep this matter under review. I shall be glad to know what the noble Lord the Leader of the Opposition, the noble Lord, Lord Byers, and other noble Lords think about this.
My Lords, may I turn, in conclusion, to touch on the question of technical amendment? My right honourable friend the then Lord President and I were invited to submit evidence on the question of whether or not a Joint Scrutiny Committee should be given powers to remedy technical defects in Statutory Instruments. We felt, on balance, although of course we expressed the view that we naturally wished to consider carefully any recommendations that the Joint Committee might wish to make, that technical amendments on the whole would not be desirable. For one thing, we felt that it would be extremely difficult to decide when an amendment was purely technical or when it might impinge on policy or the merits of an Instrument. Also it will be agreed that the present lack of power of amendment carries with it the need for Ministers to take ultimate responsibility for the exercise of delegated powers—in one sense a rather valuable discipline on Departments in making them take care that Instruments are properly drafted in the first place. The Brooke Committee accepted our views on this matter, and in their Report have recognised the difficulty of granting to a Joint Select Committee of Parliament the power of making amendments in this way. They give full reasons for this in paragraph 88 of their Report.
Those are the matters I wish to draw to the particular attention of your Lordships' House. Subject to those few reservations, the Government believe that the recommendations made in the Brooke Committee's First Report should lead to a real improvement in Parliament's arrangements for their scrutiny of delegated legislation, and indeed to a not altogether insignificant extension of the opportunity for scrutiny of that legislation. We believe this to be desirable. Once again I should like to express our gratitude to the Brooke Committee for 77 their work. In doing so, I would say that I, for one, am confident that their next instalment will further help us to unravel this whole perplexing web of supporting legislation. I beg to move.

§ Moved, That this House takes note of the Report of last Session of the Joint Committee on Delegated Legislation.—(Earl Jellicoe.)

§ 6.12 p.m.

§ LORD SHACKLETON
My Lords, I am very glad that your Lordships are debating this Report. I must apologise to the noble Earl for having had to bring a good deal of pressure on the Government to ensure that the Report was debated. From a Parliamentary point of view, we have now before us one of the most important Reports that we have had in years. The fact that it is also a very good Report is another reason why we should in fact examine it and give full credit to the noble Lords, Lord Brooke, Lord Diamond and others who participated.
I speak on this matter as a Member of the House of Lords and not from a Party point of view. My noble friend Lord Diamond will also speak, and it may be that he will agree or disagree with some of the matters I want to bring forward; but I must emphasise to your Lordships' House that this is a matter of tremendous importance. Noble Lords like Lord Boothby, Lord Brooke, Lord Molson and many others, who were in another place in the 1945–1950 Parliament will probably remember the great concern that arose from the increase in delegated legislation. Now we all take it for granted—on the whole, we take it so much for granted that much of it never gets examined, except technically. Therefore the efforts of the Committee to ensure that further opportunities for examination should be provided are important. I think we should be greatly mistaken if we did not take this matter very seriously indeed, because there will be an increase in the number of Orders.
If I may refer to the brief interchange I had with the noble Earl, I hope he will forgive me, but he and I have spent many hours debating the Community legislation and I thought that at least I understood it and I rather thought that he did. As I understand it, in addition to 78 the legislation we are getting now, we shall have Statutory Instruments giving effect to decisions taken at Brussels but requiring action, either by way of a Treaty or by some form of Instrument which will be made, if I remember rightly, under Section 1 or Section 2 of the Act. I do not know how many there will be, but I believe that the Brooke Committee estimated at some point that there might be 60 or 70. These will presumably—and this is the point I should like the noble Earl to confirm when he comes to reply—come before the Joint Scrutiny Committee and be subject to all the procedures of subsequent examination by a Merits Committee in another place. If I may correct the noble Earl, this of course has nothing to do with the examination by a Select Committee of this House presided over by the noble Lord, Lord Maybray-King, or by an ad hoc committee on how to sift and scrutinise proposals. I mention this only to indicate that there will be more, rather than less, work to do.
I am bound to say that I am getting more and more concerned—and indeed depressed—about the ability of Parliament to exercise the scrutinising and controlling functions for which it has traditionally been responsible in the past. We have the addition now of all these Northern Ireland Orders. It may well be that some other solution will be found, but I believe we are all conscious of perhaps not doing our job properly. It is important for us to recognise that. I would go so far as to say that there are constitutional implications which, sooner or later, some Government or other will have to face.
Against that background, I believe this to be a most valuable and clear Report. If I disagree with one or two of the Committee's conclusions, it is because the issues are of such importance that they should be fully discussed. Perhaps I should begin by quoting from an earlier document which said: A joint committee might also be set up to exercise the combined scrutinising functions of the Special Orders Committee and the Statutory instruments Committee, but with a smaller and combined membership. All statutory instruments could then be referred to this committee for scrutiny, with the exception of financial orders, which would he considered only by the Commons' representatives and would be reported only to that House … 79 I am quoting, my Lords, from the ill-fated White Paper, House of Lords Reform. At least this is a part of the procedure which could easily have been developed in a reformed House: that a more joint procedure would come to pass.
I wish to deal briefly with one or two other points. First of all, the noble Earl referred to the chairmanship. I am bound to say that I thought the Brooke proposal that it should be for the Committee itself to choose its Chairman in future was in fact logical and sensible. After all, the noble Lord, Lord Brooke, presided very successfully over this particular Committee, and it might well be that there will be another Lord Brooke, or someone coming from another place, who might be thought appropriate. Nevertheless, I believe that the noble Earl and the Government were quite right to accept the realities of the political situation and to agree that the decision should be in the Commons.
Another point that was discussed at very considerable length by the Committee concerned technical amendment. I am bound to say that, whether the Amendment is a technical or a "merit" one, I sense that the Committee gave a good deal of thought to this matter, finally coming to the decision that there should not be a right to amend Orders. But they did not arrive at that decision too easily. I personally hope it may be possible to consider this matter further—perhaps not immediately but at some other stage—particularly in the light of the very interesting evidence which was given in the memorandum by the Reading Clerk of the House of Lords, Both the noble Lord, Lord Byers, and I thought that it would be valuable if it were possible to achieve some power to recommend amendments. I accept that there can be difficulty in distinguishing between technical and what may be called "merit" amendments. This is something which has been given to committees before. In the Reading Clerk's evidence there is a list of Acts which confer on Parliament the right to amend, modify or adopt delegated legislation. Therefore there is precedent, although the precedents are fairly tenuous. This would have been a bold reform, and even though it is not part of the present set of 80 propositions, I hope that some further consideration may be given at a later date by a further Committee. If there is one thing that emerges from the Brooke Committee's Report it is that in future there will be need for a great deal more consideration by similar committees on our procedures for dealing with these matters.

§ LORD MOLSON
My Lords, if I may interrupt the noble Lord, I take it that there will be nothing to prevent the Scrutiny Committee from drawing attention to faulty drafting or some technical defect, and to invite the attention of both Houses to it? If it proved to be something substantial, the Government could withdraw the Order, as has happened on a number of occasions in the past, and they could lay a new and amended Order.

§ LORD SHACKLETON
My Lords, we shall be coming on to the actual Orders and, presumably, if there is something significant regarding the rules for the Joint Statutory Instruments Committee this could be a matter to which they could draw attention. I should be interested to hear how the noble Lord, Lord Brooke, interprets these.
The noble Lord, Lord Byers, and I went further, because we considered the possibility of amendments of substance. Although I am not pressing this today, we ought not to dismiss it out of hand. The noble Earl quoted the evidence of the noble Lord, Lord Byers, and I was rather jealous that he had not quoted mine. The evidence of the noble Lord, Lord Byers, was better drafted. I did my own drafting—but perhaps that is an unfair remark. I was wholly with the noble Lord, Lord Byers, in this matter.

EARL JELLICOE
My Lords, may I intervene to say that I noticed that the noble Lord had done his own drafting because in part of his evidence he got a year wrong.

§ LORD SHACKLETON
That is very likely, my Lords. I submitted my evidence to expert scrutiny and nobody spotted the error. Perhaps the noble Earl will tell me the correct year later. None the less, I do not want to be distracted too much, and I ask noble Lords to look at the evidence given by the Reading Clerk. I should be very interested if either my noble friend 81 Lord Diamond, or the noble Lord, Lord Brooke, feel like commenting on that. I fully take the remarks of the noble Lord, Lord Molson.
I am suspicious of arguments which are beloved by Departments that somehow it is good discipline for a Minister to have to get it right first time. This is a splendid argument. I do not believe it. They ought to try to get it right first time whatever happens. It is arguable, if it could be amended, that they might try even harder. That is a good argument but it does not carry very much weight. May I refer to a proposal for a Merits Committee in another place? One of the statements in the Report, which was accurate but, in a sense, misleading—and the noble Earl repeated it today—was that there are no time difficulties in debating Statutory Instruments in this House. It was mentioned that there had been, I think, only 14 Prayers over a number of years. It is not that there is plenty of time; it is partly due to a shortage of manpower and the fact that if we reject an Order in this House we produce a constitutional crisis.
Both the noble Lord, Lord Byers, and I—the noble Lord had a slightly different emphasis on this—contemplated the possibility of some form of delaying power where it was appropriate. I personally favour an earlier recommendation that we should be able to reject an Order so that another place would have to consider it again. Thereafter we would accept it. But the success of the arrangement that the noble Lord, Lord Byers, proposed will depend on the further scrutiny that the Brooke Committee are giving to this matter so that they may be able to identify particular categories of Order. This further scrutiny is very important. I would not rule out the possibility, if we have the manpower, that we may wish at some stage, even if we do not have a permanent merit committee, to set up a committee for examination of particular Orders. I can visualise an Order about which people are worried, and on which they would like an examination. We ought not to exclude the possibility of the formation of such a Select Committee, not automatically doing the work that they are doing in another place, but doing it on a more limited basis in particular instances. I do not expect the Government to commit themselves, 82 but none the less it is a matter which I hope will be borne in mind. Incidentally, I have a note here which says, that there are sixty or seventy Instruments from the European Community that the Scrutiny Committee will have to look at.
May I now say a word about hybrid Special Orders? I take it that the new Joint Scrutiny Committee will examine these Orders notwithstanding that in this House—and this emerges from the Motion in the name of the Chairman of Committees, on Special Orders—our own Special Orders Committee may, in the meanwhile, wish to treat an Order as a hybrid Order. It is possible that both our own Special Orders Committee, which survives in order to deal with hybrid Orders, will deal with a hybrid Order which has already been dealt with by the Joint Scrutiny Committee. This is a somewhat confusing situation. Perhaps we shall have to live with it until the noble Lord, Lord Brooke, has completed his further consideration of hybrid Orders.
The noble Earl referred to the recommendation of the Brooke Committee that no Motion for an Affirmative Order should be moved until it has been considered and reported on by the Joint Committee. This was not acceptable in another place. If I understand it correctly, except in the rarest of circumstances where there is a real emergency, we intend that we shall not take any Orders in the House until they have been before the Joint Scrutiny Committee. I hope it will move as rapidly and flexibly as our own Special Orders Committee has done in the past. The noble Earl will remember that we had some special emergency Orders with regard to Northern Ireland; the Special Orders Committee met almost within a couple of hours and did whatever was necessary. I take it that noble Lords will no longer be able to drop in on the Joint Scrutiny Committee in the way that they could, if they wished, on the Special Orders Committee. I am not quite sure whether this is right. It has been the practice that any Member can participate in our Committees. There has always been a slight obscurity on this, and we may need to look a little further into this point.
My Lords, may I end on this point? This subject is of such importance that 83 we ought to be prepared at a later stage to review progress. I hope therefore that the House will assume that procedure of this kind is of great concern to us and that we ought not just to assume—the House is inclined to assume and to take things for granted—that what goes through the House rapidly must somehow be all right. I am sure we must be vigilant; we are going to have to be more vigilant in future. My Lords, I repeat the commendations I have given to the Brooke Committee, who have rendered a very real public service and one for which we should be extremely grateful to them.

§ 6.31 p.m.

§ LORD BYERS
My Lords, I could not have wished for a better ending to the speech of the noble Lord, Lord Shackleton, because I would reiterate very strongly from these Benches our deep gratitude to the noble Lord, Lord Brooke of Cumnor, and his Committee for the diligence with which they have carried out their investigation and for the clarity of their Report. It was not, I take it, very difficult to recognise the disadvantages of the present system, but I am glad to see that they have rejected those possible solutions which would have involved separate scrutiny by each House and a good deal of continuation of duplication of effort. I am going to try to avoid treading on the same ground as that gone over by the two noble Lords who have preceded me. As the noble Earl the Leader of the House said, I made clear in a memorandum that I hoped that the Joint Scrutiny Committee would be recommended. I did this for several reasons. First, I am a great believer in trying to get more co-operation with another place. I believe that where there is a natural opportunity for a co-operative effort of both Houses, instead of an imposed or artificial one, a great deal is done for better mutual understanding if we take that opportunity.
My second reason is that there is a good deal of well-qualified talent in this House. Although the workload on a number of Members of this House is severe, I do not believe that we use to its full capacity the talent which we have as a contribution to the general Parliamentary system. My third reason is that the demands being made on Members of 84 another place are already great, and, in view of the new responsibilities which are being placed on the Parliamentary system in Western Europe, are bound to increase. I see a Joint Committee as one means of helping to relieve some of this pressure. I agree with the noble Lord, Lord Shackleton, about the question of technical Amendments and believe we must look very carefully at the workload we are putting on Members of this House and of another place.
I want now to turn to another question with which I do not think the Committee dealt—at least, I could not find it dealt with in the Report; it was a matter which I believe both the noble Lord, Lord Shackleton, and I dealt with in our respective submissions. That is the delaying power or veto possessed by the Lords. It may be that this matter was outside their terms of reference; perhaps it is going to be dealt with in what is Brooke Phase 2. But I am still far from happy about this aspect of the matter, which we dealt with when we considered House of Lords reform. The point that concerns me is that when a Conservative Government are in power this matter hardly arises, but if a Government of another complexion come into power then we have a latent constitutional crisis built into our system. The time to remedy this is during the time of a Conservative Government because that is the time when we can get down to it sensibly without having any sensation of crisis. I believe that the power of the Upper Chamber to impose some delay is important, just as the power of the elected Chamber to have its own way after a period of reflection also is important. I would hope that perhaps some further thought could be given to this problem before the end of this Parliament—unless it is going to end in the next few weeks.
The Committee also dealt with the question of dealing with the European Communities. On this there is some confusion. The noble Lord, Lord Shackleton, referred to the estimate given in the Brooke Report of 65 Instruments. If one looks, I think one sees that there are 65 subjects on which action may be required, but the number of actual British Instruments may be less than that because several of them can be dealt with in one Instrument. As I see it, the Select 85 Committee under the noble Lord, Lord Maybray-King, is really dealing with the scrutiny of draft legislation before it becomes a fact from the Council in Europe, so that this House and another place, and the Legislatures of the other eight countries, can all look at what is proposed and have their say. I hope they will suggest or propose a Joint Committee of both Houses to highlight the principles of the Instruments, the areas in which there may be controversy and so on; but I take it that when that debate has taken place, and everybody has had an opportunity of giving views on the draft legislation, then, when the Instrument is handed down from the Council, it will come through our normal Parliamentary system as an Instrument, as we have known Instruments in the past. This is the way I see it working; I do not know whether that is right. However, I end as the noble Lord, Lord Shackleton, ended, in renewing my thanks for the very important work which the noble Lord, Lord Brooke, and his Committee have contributed to this House.

§ 6.37 p.m.

§ LORD DIAMOND
My Lords, it would be wrong of me to detain your Lordships for more than a moment or two as I had the privilege of sitting on this Committee, and therefore I cannot offer comment on what the noble Earl said as to whether the Report was valuable. What I can pick up immediately and gladly, however, are his kind words about our Chairman. I can say that from having served with real pleasure under him for the whole of the sessions in that Committee, which I enjoyed enormously. It is right, both having regard to what I am going to say shortly and in this context, to say that it is a tribute to him that anybody going into the room could not have said which Member came from which House or from which Party.
It was a great privilege to serve on the Committee because it was tackling two important topics. The first was: How to maintain democratic Government at a time when our people expect a Government to intervene more and more in their daily affairs? It is not a question that Governments seek necessarily always to extend their powers; it is a case that Governments are continually being 86 pressed to take upon themselves more intervention, more guidance, more help for the community at large. And how to cope with that ever-increasing work, with fixed institutions which have shown their great value and have enormous traditions and sturdy roots, presents, in my view, a man-sized problem. If the Report of the Committee helped in enabling the delegation of legislation to take place without Parliament's losing its grip on essentials, in spite of the enormous increase in Parliamentary work arising from the circumstances I have described, then it was a useful contribution.
The second issue was of course that of functioning as a Committee of both Houses and demonstrating, as the noble Lord, Lord Byers, so aptly said, that the talent does not rest, nor could it be expected to rest, in one House only; nor does the time; nor does the experience; and that it is surely essential, if we want to produce the finest example of government, that no available talent should go unused. Therefore I thought this evidence, the evidence of a Joint Committee working well and happily and, if I am to believe what the noble Earl said, usefully, very relevant to our current situation, and I hope it will not be forgotten as an example when other similar difficult issues have to be worried out by an appropriate Committee—issues affecting Parliament as a whole and not one House in particular.
I finish, therefore, by saying that these two issues merge in the challenge which we are now facing of European instruments and the functioning of our two Chambers in relation to our new responsibilities as a member of the Community. It is a challenge which affects us for two reasons: first, that the original Six Members of the Community, to be frank but not discourteous, have not met this challenge in any real serious way. The difficulty remains unresolved so far as those six national Parliaments are concerned. In spite of what the Dutch are doing, which I have followed carefully; in spite of what the Germans are doing, which I have read carefully, I think it is reasonable to say, not in any patronising way, that this issue remains to be solved by us and we cannot pick on a ready-made precedent and say, "There it is: do what your predecessors in the Community have 87 done and you will be all right". The second reason is that if we have a great contribution to make to the Community, as I believe we have, it is surely in the form of experience in democratic methods of government. The challenge which arises out of the two matters I have mentioned is well worth taking up. I am sure that those members of the Committee who have been privileged to serve under the noble Lord, Lord Brooke of Cumnor, and he himself, will welcome everything that has been said by your Lordships and the gracious way in which you have received this Report.

§ 6.42 p.m.

§ LORD CHORLEY
My Lords, I think it is only right that at least one—and I observe another—of those of your Lordships who speak from the Back Benches should take part in the discussion to-night, if only for the sake of adding to the tributes which the Front Benches have paid to the work of the noble Lord, Lord Brooke of Cumnor, and his Committee. As my noble Leader said, this is a very important subject indeed, and I had put my name down on the earlier occasion when we were to debate it. I did not expect to be here to-day, and indeed I have left at home my notes, which I had prepared for the earlier occasion; therefore I shall detain your Lordships only for a few moments.
I think it is impossible to over-emphasise the importance of this Report. I remember well the tremendous importance which the constitutional lawyers and historians in the universities placed on the Report of the Donoughmore Committee when it was published. The name "Donoughmore" was a name to conjure with for quite a long time. In fact, as the Brooke Committee pointed out, the Donoughmore Report did not solve the difficulties which had been weighing on constitutional lawyers and historians during that period immediately after the First World War; but the reason for that was very largely that a great part of their recommendations were not put into practice. That is the main reason why in the year 1973 we are still left with such a complex, tiresome and indeed dangerous situation as that which exists. Therefore I hope that the Motion which will be passed, both here and in the other place, will carry this matter as far as 88 Lord Donoughmore himself would have wished it to be carried and that the result will be not only a clarified but a much improved situation.
The Brooke Report is a little deficient in some ways, and it may well be, as the noble Lord. Lord Byers, suggested a moment or two ago, that in their next Report the Brooke Committee will fill in a number of what some of us feel to be gaps in the present Report. May I just take one which I think is important. They point out that it is only certain types of Order which require scrutiny and which come under the control of Parliament at the present time. There is a long list of very important types of Statutory Instruments and Orders by Ministers which obtain the force of law as soon as they are made, and some of them are just as important as those which have to come before Parliament itself. There are Road Orders, for example. We have had good examples of that several times in recent years, when most important Orders in connection with the trunking of roads and the driving of what are in effect new roads through National Parks are taking place simply on the fiat of a Minister, without having to be laid before either House of Parliament, either for Affirmative Orders or to be prayed against by Negative Orders. That is all wrong, because in many ways the Orders which are left out at the present time are just as important as those which are within Parliamentary control. Looking at the proposals on the Order Paper a little later on, I gather that these considerations are going to be considerably extended. I hope that is so. It is rather complicated drafting and it is not particularly easy to follow, but I hope, for example, that in future Road Orders will be looked at.
That leads me to the next point. While in the past the business of scrutiny has been almost entirely a technical one, it looks as if in future, at any rate to some extent, merits will be looked at as well. In actual practice, although merits are supposed to be left out, prayers against Orders have very often, and very largely been taken up because of the absence of merits, or the demerits of those particular Orders. Considering the importance of the matters which are dealt with in these Orders, I think it is absurd to leave reports simply on the basis of 89 the Orders being technically in order. A good deal of attention has been paid in the past to merits and still more attention will be paid to them as time goes on. It is a pity that this matter was not faced resolutely in the Brooke Report, because a proper, systematic procedure for looking at the merits of some of these Orders should be devised. I do not want to take up more of your Lordships' time, but I think this subject is of great importance and I very much agree with what has just been said about the importance of our coming back to it from time to time and looking at the situation anew—particularly, of course, when the next Brooke Report comes out.

§ 6.49 p.m.

§ LORD HALE
My Lords, I did not put my name down to speak and I have no intention of making a speech, but the courtesy of the noble Earl, the Leader of the House, in replying to my question and virtually inviting me to expand it slightly permits me to apologise to the noble Lord, Lord Hacking, for detaining him for two or three minutes at the most. May I say first, arising out of the debate, that the complaint made by the noble Lord, Lord Chorley, about the elimination of certain documents from consideration was a result of the recommendation of the Select Committee on Procedure in the House of Commons, of which I was a member. It was taken after a lot of consideration to try to reduce the burden by eliminating matters which had never been complained about, a procedure which, to an extent, has been taken in by the Brooke Committee I read the Brooke Committee Report and I found nothing with which to disagree. It was for that reason that I did not seek to put my name down to speak. It was an excellent Report, admirably drafted, and the report of the Reading Clerk was a delightful piece of political information.
I did not understand the observations made by the noble Lord the Leader of the Opposition about "dropping in". I did not think that he was accusing the noble Lord of excessive sociability on this occasion, although we would not acquit him of being generally very sociable and courteous. In the other place we used to have an ad hoc committee, a Statutory Instruments Committee, which purported 90 to consider all the Statutory Instruments, although obviously it did not. We managed it in the following way. It was a Labour Party committee, purely a Party committee. We circulated a notice on the Whip asking Members who had matters on Statutory Instruments to call the attention of the Committee to the fact that here was a Statutory Instrument that they wanted to be considered. Therefore, whether we drop in or not, I suggest and hope that it will be so, that it will be open to any Member of this House to submit a written memorandum to that Committee, or to his Chairman, calling attention to any problem he has in mind in relation to a piece of delegated legislation which has been laid on the Table and to submit comments in writing. I believe that would be a useful measure.
The question about which I rose was this vexed matter of Common Market legislation. Both the noble Lord the Leader of the House and the noble Lord, Lord Byers, have referred to the evidence given to the Brooke Committee which I think, although I do not have the Report before me, was given last May by civil servants who had considered the amount of legislative activity of the Commission and deduced from that the likely number of documents which would come for consideration. My own impression from what we now know was that they grossly underestimated the number, though not deliberately, because we had not then appreciated some of the conflicts of legislation which will result.
The point I want to raise is that The Times reported last week, as noble Lords will know, two or three Common Market decisions of the Luxembourg Court. One of them seemed to suggest that the whole of our tied house law—I use the words "tied house" in respect of licensed premises and not agricultural cottages—might be invalid in the terms of the Treaty of the European Economic Community. I certainly read the very brief, compressed, but able Report as clearly indicating that. That would not be a matter for delegated legislation but would be a matter for major legislation. But one is still left wondering who is to decide whether a decision of the Court of Luxembourg, made after January 1 last in respect of proceedings which were initiated, I believe, in 1967 and which have been going through a process of 91 "battledore and shuttlecock" from the courts in Belgium to the Court in Luxembourg, and to the Consultative Committees and so on, is now embodied in our law or, if it is not, how it takes effect and how it is to be done? I can think of no one who can consider this but the Committee that we are proposing to appoint in the Motion coming before the House in a moment. I was a little sad to think that those labours will be imposed on a Committee which may consist of two Members of another place only, or two Members of this House only, or one Member of each House. I do not want to press the question of the quorum because your Lordships' House itself is modest in its requirements for a quorum. There was a moment when I was myself suffering from considerable apprehension as to whether, in a debate initiated by me, we should be able to fulfil even those modest requirements.
The second of the cases reported in The Times produced a quite different problem. There is a previous record of this as it has happened before. It was a case in which the Commission had made a Directive, approved by the Council of Ministers, which came into operation. The Italian Government adopted a policy of masterly inactivity in respect of an Order of substantial importance which required budgetary provision. After six months or so, the Commission called the attention of the Italian Government to the fact that they had had no reply. They still got no reply. Finally, after the best part of a couple of years, the case came before the Court of Luxembourg to decide whether the Italian Government were bound by that Directive. The Luxembourg Court found that they were bound and ordered the Italian Government to pay the costs. But nothing in The Times suggested what the next step should be, or by whom it should be taken or could be taken or what should be done.
While we are in this difficulty, I am grateful to the noble Lord the Leader of the House for saying that he thought—I am not quite sure whether he was certain but I understood him to express a certain confidence—that that was one of the matters which will be considered by the Committee in the future. I hope that 92 it will, and I make this intervention only to draw attention to some of the considerations which some committee has to consider in relation to delegated legislation. Somebody has to decide whether delegated legislation made in respect of the Directive complies with the Directive or not, or whether the whole time of the House is being wasted in passing a piece of delegated legislation which will be promptly overruled—not promptly, as nothing apparently occurs promptly in the Common Market, but in due course will be overruled—by the Commission, on application to the Luxembourg Court, as not complying with the Directive that they gave.

§ 6.57 p.m.

§ LORD BROOKE OF CUMNOR
My Lords, I feel some diffidence in taking part in this debate, considering that the Joint Select Committee has been recently set up again and is now at work trying to complete its task within the next few months. I hardly dare to hope that its final report will be as well received as its first one has been, but I should like to thank your Lordships on behalf of all members of the Committee and also, if I may, on behalf of the two clerks of the Committee, for the extraordinarily kind words that have been spoken about it from both the Front and the Back Benches. We ourselves have found it a fascinating, though somewhat testing experience. I am particularly grateful to the noble Lord, Lord Diamond (who was good enough to take the Chair when I was absent), for the words he spoke.
There is one point which has not been mentioned in the debate, but which is very significant in my eyes, and that is that your Lordships' House have had a Special Orders Committee for a period of 48 years, the other place has had a Statutory Instruments Committee for a period of 29 years and in all those 29 years nobody until now has had a look at the two systems of control, putting them side by side, comparing them and establishing what overlap there is, what gaps there are, or what anomalies there are. That is the most important contribution that the setting up of this Joint Select Committee has made to Parliamentary history. All of us on the Committee from both Houses were a little surprised at discovering some of the 93 gaps and some of the anomalies. I hope that our recommendations may deal with them and smooth them out.
Several noble Lords have referred to the amendability of Instruments. That is a very difficult question and I would dare to say, in my own capacity and not as Chairman of the Committee, that the noble Lord, Lord Shackleton, has taken the very wise line that this is something which should be kept under review and reconsidered from time to time. In paragraph 8 of the Committee's Report a number of reasons were given for not making Statutory Instruments amendable on technical grounds. The Committee proceeded to say on that: Your Committee recognise that there is some force in these arguments. Those words were carefully chosen to indicate that though the Committee did not propose to recommend amendability they were not wholly convinced by all the arguments put before them. I think that your Lordships will recognise the dilemma we were in when I invite your attention to the evidence at the end of the Report, which showed that there was a clear and deep cleavage of opinion between the officers of the House of Commons on the one side and the officers of the House of Lords on the other. I think no member of the Committee would object to my saying that the general feeling of the Committee was that, as there is no great difficulty or delay in the Minister withdrawing an unsatisfactory Instrument and replacing it, it would be better not to complicate our Report by deciding this question of amendability, if there was a greater likelihood of the main recommendation of the Report, the Joint Scrutiny Committee, being accepted without amendability. I should certainly regard it as a subject which should be kept under review.
As regards the Motions which we are about to be asked to approve, I think it is right to say that that concerning hybrid Instruments is really of a transitional character. Until the Committee has made its report on hybrid Instruments I doubt whether your Lordships' House would wish to change the existing arrangements whereby the Special Orders Committee can proceed in a unique way with the examination of hybrid Instruments. If there had been no Motion on the Order Paper to preserve the Special Orders 94 Committee in so far as hybrid Instruments are concerned, the special power of the House of Lords, and indeed the special service it can give to members of the public affected, might be removed temporarily until the Joint Select Committee had made its final recommendations and those had been considered by the Government and Parliament. So I hope nobody need feel anxiety about this small Motion relating to these elusive hybrids, because I am sure its effect is of a purely transitional character.
If I may take up one point which the noble Lord, Lord Hale, raised, as I conceive it the duty of what is now going to be the Joint Committee on Statutory Instruments will be to examine the vires of each Instrument, whether it emanates from Europe or not. I think that the work of the new Joint Committee will be exactly the same whether the Instrument originated with some decision by the Council or some part of the European Community, or whether it was just one of the ordinary Statutory Instruments to which we are so much accustomed. It does not seem to me that it would be right for this Joint Scrutiny Committee to go back behind the action of the Minister in laying an Order. The essential point is that the only Orders which would come before the new Joint Committee are Orders which have been laid on the Table by a Minister, and it would be necessary for the Committee to examine whether he had power to make such an Order, and was right in making it so far as the technical form of the Order is concerned. I am speaking unbriefed, and no doubt my noble friend Lord Jellicoe will be able to put this in much more precise language. But I think that everything that happened at earlier stages will be more likely to fall within the terms of reference of the Select Committee, of this House alone, which is now sitting under the chairmanship of the noble Lord, Lord Maybray-King, and on which Lord Diamond and I have the privilege of serving.
The noble Lord, Lord Chorley, raised the question of road Orders. If all local Orders were brought within the purview of the new Joint Committee, I really think it would be submerged. He will find in the course of the Report that something over 1,000 local Orders are made each year. The present Statutory Instruments Committee of another place 95 examines annually about the same number of Statutory Instruments, about 1,000.

§ LORD CHORLEY
My Lords, would the noble Lord not agree that it would be possible to classify these—for example, roads going through National Parks, especially if they were trunk roads—into a very small number which would not require very much time to scrutinise?

§ LORD BROOKE OF CUMNOR
My Lords, possibly we shall come to that in the examination we are going to make of possible analyses or classifications of orders. But up to now I have personally accepted the view that all Parliament can manage to deal with is about 1,000 Statutory Instruments each year. The Statutory Instruments Committee examines all the general Instruments. If it were also to examine all local ones, its work would be doubled, and I doubt whether there would be sufficient reward from the work. The noble Lord, Lord Chorley, has made a novel suggestion, that maybe local Orders can be classified into those which are more important and those which are less important.

§ LORD SHACKLETON
My Lords, may I interrupt the noble Lord. It is not for me to add to his work, but I assume that these particular Orders will not come within the purview of his Committee, because the Orders to which my noble friend Lord Chorley referred with such considerable force are not required by Act of Parliament to be subjected to this sort of procedure. To subject them to it would, I think I am correct in saying, call for an Act of Parliament.

§ LORD BROOKE OF CUMNOR
My Lords, with great respect, I do not think the noble Lord is absolutely correct, but I am not sure that I shall get it any more correct. The Statutory Instruments Committee of another place at one time examined all general Orders that had to be laid before Parliament and were subject to some form of Parliamentary procedure. Its terms of reference were then enlarged, and it has in recent years been reviewing all general Statutory Instruments, whether or not any Parliamentary procedure attaches to them, whether or not they have to be presented to Parliament at all. So the present scope is wider 96 than one would think. But I fancy that the inclusion of any number of local Instruments would really submerge and drown the Committee. That is a point which came out so strongly for all of us from both Houses on the Joint Committee: that in another place they are really overwhelmed with the pressure of work. Your Lordships' House is not yet overwhelmed, but might be, and certainly would be under much greater pressure if more noble Lords decided to pray against Instruments; it is significant that so few have done. Meanwhile, we have some resources to spare, and I am quite sure that this Report is important in indicating how the work done by Members of your Lordships' House, and the Parliamentary and other experience that they possess, can be utilised to make Parliament as a whole more efficient.
The only other matter I wanted to refer to was what was said by the noble Lords, Lord Shackleton and Lord Byers, about the possible delaying power that the House of Lords might be given over Statutory Instruments. That arises, of course, from the paragraph in the White Paper on House of Lords Reform, four or five years ago, where the question is raised, whether any classification of Statutory Orders into urgent and less urgent could be devised.
As noble Lords will remember, paragraph 58 went on to suggest that the whole subject of subordinate legislation ought to be considered by a Joint Select Committee of both Houses; and the further suggestion was made that it might he possible, and useful, for such a Committee to see whether Statutory Instruments can be classified in alternative ways so as to improve Parliamentary procedure. Unless I receive a directive from your Lordships' House, I shall not allow the present Joint Select Committee on Delegated Legislation to get lost in the waters of reform of the House of Lords. Nevertheless, it may well be that the Committee will feel that, as part of the investigation into classification of Statutory Instruments, which is certainly within its terms of reference, it should examine whether urgency and non-urgency is one of the possible divisions that can be made. While I do not know, and I am doubtful about that, I think I can assure your Lordships that we shall complete our work as quickly as possible, and that we shall not 97 be tempted to say anything in our final Report about House of Lords reform.

§ 7.11 p.m.

EARL JELLICOE
My Lords, one often gets up to reply to a debate like this saying that it has been a valuable debate. I am going to repeat this, because I think that it has been a valuable debate. If any of us had any doubts about its usefulness, those doubts have been resolved by this discussion. If there are those—and I think that the noble Lord, Lord Shackleton, took due credit for himself—who had no doubts about its usefulness, their judgment has been fully justified. Apart from anything else, it has given us the valuable opportunity of hearing from two members of the Joint Select Committee, the noble Lord, Lord Diamond, and the Chairman, my noble friend Lord Brooke, and that too has been valuable.
As we have devoted quite an amount of time, usefully and with justification, to this subject, I think that I should be brief. I should like to deal quickly with some of the less important subjects that have come up in the course of this discussion. I shall take them more or less seriatim as they came up. As to the question of chairmanship, like the noble Lord, Lord Shackleton, I found that there was considerable logic in the recommendation of the Brooke Committee. Like him, too, I believe that the reality of the situation is weighted in the direction in which the Government have come down. It was big of the noble Lord, Lord Shackleton, to recognise this, and not least because part of the reality has been pressure from the Opposition in another place.
On the question of amendability, there is a balance here. On the whole, the Government feel that the balance is against even technical amendability, but I would agree with what my noble friend has said referring to the noble Lord, Lord Shackleton; that is, that this is an area which can be kept under review. The same applies to suggestions that from time to time we might have a Select Committee to deal with a particular Statutory Instrument along the lines of the Commons Merit Committee. I must say that at the moment I do not feel that this is particularly appealing, and that is because I take my stance rather on paragraph 92 of the Brooke Committee's Report, when they state: 98 Your Committee are satisfied that it is unnecessary to alter the present arrangements in the Lords for debating the merits of delegated legislation. That is a clear-cut and categorical statement, but situations change and this is a matter which we could well hold under review from time to time.
On the question of hybrid Special Orders, I have nothing to add to what my noble friend Lord Brooke has said about his elusive hybrids. If there is anything further to add I will leave it discreetly to the noble Earl, the Lord Chairman of Committees, because he is shortly going to move his Motion dealing with interim arrangements for hybrid Special Orders, and I am sure that his expertise in this field is even greater than my own. On the question of what the noble Lord, Lord Shackleton, rather loosely labelled "dropping in", I would only say that this has become a very complex matter indeed. There is a recent Report of the Commons Procedure Committee recommending that Members of another place should be excluded from deliberative sessions of Select Committees, and indeed that they can be excluded from other sessions of such Committees on a Motion of that Committee.
My understanding is that the other place has yet to reach a conclusion and a decision on this particular matter, and that therefore the situation which would obtain in the Joint Scrutiny Committee, when it is set up, is a little unclear. In this House all Peers are entitled to attend and speak during proceedings in the Committee, but they are not allowed to vote. I should very unwillingly depart from this liberal and, I think, useful rule. I understand that this means that Members of your Lordships' House could indeed "drop in" on the proceedings of the Joint Scrutiny Committee when it is set up. But if Joint Committees are to be common, or if the Commons are going to rule in another sense, then quite clearly we shall have to look at this particular matter, as we could get into a rather anomalous position. I am not quite certain whether I heard the noble Lord, Lord Hale, aright, but on the question of quorum it would be two from each House. Two plus two equals four, and therefore the quorum would be a total quorum of four. The Motion that I am about to move refers purely to the 99 Lords' membership of the proposed Joint Scrutiny Committee.
Those are the not unimportant but more minor matters connected with this. May I turn briefly to two more major matters? First, there is the question of powers. I noted from my noble friend that he is not proposing to be carried off downstream in the roaring waters of Lords reform. I commend him for his discretion, and I think that in this case it is probably the better part of valour. I shall not go over familiar ground on this subject, but I have my own rather strongly held views. It is very difficult indeed to dissociate a consideration of the powers of your Lordships' House over subordinate legislation from consideration of its more general powers, and indeed from a consideration of composition. Be that as it may, the process of categorisation or classification, which I believe the Brooke Committee are now engaged on, could provide useful material for progress in this mater should your Lordships decide that it would be desirable to take a further look at this particular area.
On the other matter, the impact of this on our Community obligations, this again is a matter with which I would deal rather summarily now, although not because I underestimate its importance. I hope that I have made it clear time and time again in discussing our membership of the European Community that I attach considerable importance to the involvement of both Houses of our Parliament with the processes of the Community, and with the obligations that flow from our membership of the Community. But my understanding is that all Statutory Instruments made by a Minister in pursuance of our Community obligations and subject to Parliamentary procedings will go to the Joint Scrutiny Committee and that that Committee will be able to report to your Lordships' House on any of the grounds set out in the terms of reference of the Motion which stands in my name on the Order Paper. If I may say so—and I think this is the easiest way of summarising my argument—I entirely agree with the interpretation which my noble friend Lord Brooke has placed upon this aspect.
If I was unclear in my viva voce reply to the noble Lord, Lord Hale, I apologise. 100 My understanding of the principles is very much the same as his. The volume of subordinate legislation with which the Joint Scrutiny Committee is likely to be faced is very close to that suggested by the noble Lord, Lord Byers, but the figure of 65 may have been rather exceptional because of the year from which it was taken. This, again, is a matter which should be, and will be, kept under close review. The noble Lord, Lord Shackleton, rather suggested to me—I may have misinterpreted what he said—that this responsibility placed upon the Joint Scrutiny Committee was likely to lead to a great strain upon its resources. That was not the conclusion to which the Brooke Committee came. If I may just quote the words in paragraph 142 of their Report, just before the summary of recommendations, they stated: Your Committee believe that it should become possible for Parliament to maintain a watch over delegated legislation stemming from a decision to join the European Communities, without over-straining the Parliamentary machinery.

§ LORD SHACKLETON
My Lords, I was probably speaking loosely. I was really speaking about the total quantum of work of all kinds.

EARL JELLICOE
My Lords, I fully accept that. It is growing, but I do not think that the extra burden flowing from examination of the subordinate legislation which will fall within the purview of this particular Joint Scrutiny Committee will be intolerable at all. That said, I should like to apologise for my loose use of the phraseology "the ad hoc Committee". I was of course referring to the Select Committee which I have appeared before and which is sitting under the chairmanship of the noble Lord, Lord Maybray-King. If I fell into that loose phraseology, it was merely through pressing month after month to try to get something going.
May I just make three points in conclusion? First, I entirely agree with, and should like to endorse, what the noble Lord, Lord Byers, has said about co-operation between the two Houses of Parliament in this and other matters. I believe that this is an admirable field for co-operation, and this has been admirably demonstrated by the Report of a Joint Select Committee, the Brooke Committee, which is now before your 101 Lordships' House. We may not be a House of all the talents, but we are a House which embraces very considerable talents which could be very usefully deployed in this field. Secondly, I would agree entirely with the noble Lord, Lord Shackleton, and with many other noble Lords who have spoken on this Motion, that it is really impossible to overemphasise the importance of this area. Perhaps it is one that we have unduly neglected in the last decade or so. That does not mean giving attention to subordinate legislation or Statutory Instruments only when they come before us. It also involves, I believe, as my noble friend believes, keeping a running watch over Parliamentary procedures in this area as a whole. I agree very much with what the noble Lord, Lord Shackleton, has said in that respect.
Finally, it would be wrong for me to sit down without repeating a tribute, paid by my noble friend Lord Aberdare when this matter was before your Lordships early in December, to our own Special Orders Committee. As my noble friend Lord Brooke said, it has been in existence since 1925 when it was set up under the chairmanship of Lord Donoughmore, so it has been in existence for 48 years—which, incidentally, is almost twice as long as the parallel Committee in the Commons. This House owes a great debt to our Special Orders Committee, and I am very glad to pay this tribute in the presence of its Chairman the noble Earl, the Lord Chairman of Committees.

§ On Question, Motion agreed to.