§ 2.45 p.m.
Lord HARMAR-NICHOLLS rose to call attention to the Second Report from the Select Committee on Practice and Procedure of last Session (HL 256) with special reference to tacking; and to move for Papers. The noble Lord said: My Lords, my Motion is:
To call attention to the Second Report from the Select Committee on Practice and Procedure…".
Stated baldly like that, this may have the appearance of being a formal, dry-as-dust examination of the detailed operation of the machinery of Parliament, and this may
put a lot of people off. But on this occasion, despite the title, nothing could be further from the truth as regards it being as dry as dust.
§ The matter involved here is a matter of high principle, and I believe that it truly affects the status of the House of Lords in the formulation of general legislation affecting the whole of the country. Moreover, as will be seen, I think, at the end of this debate, I believe it can have the effect of interfering with the freedom of the individual in our society and can interfere with the law on trespass; and I believe that, if this can be established, then this is a matter of full Parliamentary concern. What I mean by "full Parliamentary concern" is that they are matters which ought to be debated in detail through their Second Reading, Committee stage and Third Reading by both Houses of Parliament, so that everything may be taken into account on this matter of individual freedom and the law of trespass.
The wording of my Motion is,
To call attention to the Second Report from the Select Committee on Practice and Procedure of last Session … with special reference to tacking; …
The key to the argument that I wish to present, the significance of it, is in those words at the end of the Motion,
with special reference to tacking".
"Tacking", in its Parliamentary sense, means an attempt by the Government of the day to tack on to a tax Bill or a Money Bill proposed legislation which is not strictly a tax-levying matter. That is what tacking is, and it is with that meaning in mind that I wish to pursue the matter.
For tacking to be done—and I believe it has been done on two occasions within the last five years: not deliberately, not with any ulterior motive; I think it has been done perhaps inadvertently, and through a certain amount of carelessness—is contrary to Standing Order 49, under which we work. Standing Order 49 spells out very clearly:
The annexing of any clause or clauses to a Bill of Aid or Supply, the matter of which is foreign to and different from the matter of the said Bill of Aid or Supply, is unparliamentary and tends to the destruction of constitutional Government".
One could not have stronger words: that that which is outlawed may possibly
bring about the destruction of constitutional Government.
§ Since 1671, any legislation to do with the levying of taxes has been the sole prerogative of the House of Commons— and that is right. They are the elected Chamber; they are the ones who have to answer to the citizens for any taxes they levy upon them; and they possess the prerogative in terms of bringing forward anything which involves the taxation of our people. The House of Lords has no power at all to amend any such tax legislation. That is the situation which is accepted and which, as a basis, is perfectly correct. We can refuse in this House to pass a Finance Bill, refuse to pass it as a whole; but we cannot amend part of it. The House of Commons can. Indeed, over the last week we have seen where the House of Commons has amended three times the Finance Bill which is at present in front of them. So, we cannot amend and they can amend.
§ If we cannot do that, then whatever powers have been given to us ought to be looked at very jealously and very carefully. We can refuse the whole Finance Bill; but to do that would bring a great deal of disruption to the running of the country. It would mean that eventually the tortuous Parliament Act procedure would have to be used to get the Bill through as a whole. That is why, quite properly, your Lordships and your Lordships' forebears in this House have been very reluctant—indeed, it has been very rarely contemplated—to refuse a Finance Bill as a whole. It is because the Parliament Act procedure is so tortuous and because our passing of the Bill has become a mere formality—and it has—that one approaches the Finance Bill on its entry into this House on the basis of, "We have no powers on this; we must go through it in order that the procedure should be correct to the letter" Because of this, it has been treated as a formality over many years.
§ My Lords, there has been (and is) a risk that, taking it as a mere formality, and for pragmatic reasons, the House of Lords either did not notice or was prepared to turn a blind eye to the fact that we have had a Finance Bill passed which, while it was mainly a tax-levying instrument, has had tacked on to it a matter of principle which affects the citizen, his freedom and 9 his general way of life. If there is such an element tacked on to a tax Bill, I believe we should not be doing our duty if we did not tighten up the procedures which make it more difficult, or impossible, for this to happen; because such a Statute—one that affects freedom and trespass—should not be passed without going through the sieve and examination of both Houses of Parliament.
§ It is because this can happen and, in my submission, most likely has happened in 1974 and 1976, on the significant matters of freedom and trespass, that I balloted for this debate, and I use it now as an opportunity to ask the noble Lord the Leader of the House, in his capacity as impartial, non-partisan Leader of the House, to take steps to see that the protection afforded to the status and standing of this House by Standing Order No. 49 is complied with both in the spirit and in the letter. That is the purpose of pursuing it (as I have) through a Select Committee, through Questions in this House and through this special debate today—and I am delighted that the noble Lord, Lord Peart, among his many other duties, has felt it important enough to come here in person to listen to the arguments and, I hope, as a consequence, possibly to do something about it.
§ Your Lordships may remember, as is reported in col. 1225 of the Official Report of 7th July, 1976, that I objected to the 1976 Finance Bill because, in addition to its tax proposals, it gave, in Schedule 6 to that Bill, power to revenue officials to break into private premises, into private desks, to open private safes and cupboards and take away papers and possessions in order to arrive at an individual's or company's tax assessment. That is what was tacked on, in my submission, to what was otherwise a clean Finance Bill.
§ My Lords, these are powers which are not even possessed by the police in their role of crime detectors; and any powers that the police have have had to go through very rigid examination by both Houses, where all of their aspects and those of the consequences that might flow from them have been taken fully into account. So that when this was brought in as part of the Finance Bill, I argued in this House that it was tacking; and that such powers should be given only if they had been 10 approved and passed by both Houses. I am not arguing on this occasion whether such powers ought to have been given at all. There are many arguments for and against that; and I would tend to think that there are more against it than there are for it. But that is not the purpose of my argument today. I am merely saying that, even if it is considered and accepted that such powers are desirable, they should not be tacked on to a Finance Bill which cannot be discussed or amended by your Lordships' House; but that they should be brought forward in a separate Bill which can have that proper watch-dog attention given to it that only both Houses can give.
§ It may be interesting to remind your Lordships that originally a Finance Bill was not a consolidated Bill such as it is today. Originally, a Finance Bill had a separate Bill for all of the parts of it which brought about any alteration in our laws and legislation; and it meant that when they came as separate Bills, your Lordships could discard one without intefering with the other. But under usage and generally accepted procedure today, it is all brought together in a Finance Bill so that we are in a position that we cannot deal with one section of it without having to turn out the whole of' it—which could cause the disruption that none of us would want or would contemplate.
§ I argue—and I believe I would have your Lordships' support on this—without in any way being critical of the other place, that when freedom within the law and trespass are involved (as I claim they have been on these two occasions) and when questions of that sort are involved, then detailed examination in this House in many ways is more authoritative than in the House of Commons. I say that because in this House we possess the learned Law Lords, we possess experienced administrators from a wide range of Government Departments, with years of experience behind them in a way that the other place has not got nor could it have. On matters of this sort, therefore, it is not only a matter of preserving the rights, the status and the standing of this House; it does so happen that, so long as we exist, the formation of this House is such that we are in a position to give more authoritative examination of these things than perhaps the other place can give.11
§ My Lords, at that time, in 1976, I suggested that this infringement of Standing Order No. 49 might justify refusing the Finance Bill altogether, reluctant though one is to do so. But because of the possible disruption to vital tax collection needs, I was prevailed upon to accept the promise of the noble Lord, Lord Shepherd, then-Leader of the House, that he would have the whole matter looked into, and that he would have Standing Order No. 49 and its relationship to this particular problem examined by the Select Committee on Practice and Procedure. True to his word, this was done on 12th July 1977; and in the report of that Committee, dated 26th July 1977, on page 21, there is set out in detail my evidence to them upon which my case today is based. I do not want to repeat that. The generality of it I have given in paraphrase; but if the noble Lord, Lord Peart, wants any extra support for the plea that I am making to him to try to carry the protection of this House and its rights a bit further, then the reading of the Select Committee's Minutes of Evidence and report may be worth while.
§ I have to say here, as is quite clear, that there is no element of Party bias in this. I think that it is confirmed by the fact that in addition to my objection to what I would call one-Chamber legislation by the present Government relating to the 1976 Finance Act, I am equally suspicious that the Standing Order 49 protection was also brushed over by the previous Government in 1974, when they gave similar powers to those to which I am objecting now, regarding the collection of value added tax.
I was not a Member of your Lordships' House at that time, but I must say that I believe it was a pity that, in what then took place, someone did not object to the possibility of the infringement by tacking in 1974. If it had then been done, such an alert may have prevented a repeat of what I think is the dangerous monstrosity that is now being unfolded flowing from the 1976 Finance Bill. If we had looked at it in 1974, we may have avoided the current apprehensions regarding the unfair pre-publicity which may well undermine justice in the William Press and Company case which is now under investigation, and an injustice,
which was well underlined by the debate initiated by the noble Lord, Lord Houghton of Sowerby, the report of which begins at column 2019 of Hansard for the 27th April. Perhaps it would help if I read a note which I received from the noble Lord, Lord Houghton. It is dated 11th May and he says:
I have to be in America and Canada for three weeks so I will not be able to give you support in the short debate on tacking. Had I been there, I would certainly have joined in, and I hope you make progress".
§ The feelings in 1974, plus Lord Houghton's debate and the letter which I have quoted, clears away any suggestion that there is any partisan approach to this. It is strictly and properly a matter of whether or not your Lordships are preserving—as it is our duty to preserve—the rights and powers of this House in watching over the correctness of the legislation which is forced upon the people of our country.
§ However, on 12th July, in giving my evidence to the Select Committee, I asked them to support three suggestions as to the way of dealing with it because there is not much point in complaining about anything unless one has constructive ideas as to how such complaints can be dealt with, or, at any rate, the results flowing from it can be minimised. I suggested to the Select Committee that every Finance Bill must have the Certificate of Mr. Speaker to designate it as a Money Bill, to make certain it was a correctly worded tax Bill. If this were mandatory, if Mr. Speaker had to give a Certificate to every Finance Bill, it would at least ensure that it had been impartially looked at by Mr. Speaker.
§ I have to tell your Lordships that, rather surprisingly, since 1911 fewer than half of the Finance Bills have carried the Speaker's Certificate. Fewer than half of the Finance Bills have shown that at any rate they have had this impartial view of them by Mr. Speaker, who we know would be objective in his general outlook. So I ask first that we should find some way—and I am afraid that this is a task for the Leader of the House—of prevailing upon another place to insist that, in taking away from us the right to examine these matters in detail, they see that Mr. Speaker looks at every Finance Bill before it comes to us. Secondly, Mr. Speaker should have the assistance of two officials, similar to the 13 Examiners which decide whether or not a Bill is hybrid, in order to make certain that if there has been tacking, and it has been done in an intricate and difficult way, there are expert minds on these matters to help him come to a decision. At present, Mr. Speaker may call in two assistants, who are Members of his Chairman's Panel, but they are just laymen in the sense that they are ordinary Members of Parliament. They are very able, I have no doubt, and are desirous of being objective and impartial; but without the expertise that the Examiners would have. We experienced recently the problem of a Bill which came to this House which was eventually judged hybrid because the Examiners' panel was strengthened in order for experts to look at the Bill.
§ Thirdly, I asked the Select Committee that an attempt be made to negotiate the right for a Member of your Lordship's House, who suspects tacking on a Finance Bill, to have access to Mr. Speaker to put forward his point of view. This is not to interfere with the Speaker's ultimate decision and not to have any power other than to be able to ensure that a point of view has been submitted to Mr. Speaker for him to decide what weight to attach to it once he has heard about it.
§ Your Lordships may remember that I tried to do this in 1976. I was considered perhaps a bit of a nuisance in hanging on to this when the Finance Bill was before this House. It was sent back again to Mr. Speaker. Up to that point he had not given his Certificate. I went along to try to argue a point which I think was justified and which would not be easily taken into account by cursorily looking at the Bill. That is in the Select Committee's Report which can be examined if your Lordships find it a point of interest. I was not allowed to see Mr. Speaker, very properly, because the general procedure was that Mr. Speaker could not be approached. I did not object to that. I am merely saying that in instances of this kind it could well be that it would be in the interests of good government and sound interpretation of our Rules if one had access. Following Lord Shepherd's promise—I am afraid too late to do anything about the 1976 Finance Act—the Select Committee met, I submitted evidence and made the request that I have just outlined to your Lordships.14
§ Sadly, at that time—and I like to feel perhaps it would not be so today, and we may learn something—the Select Committee did not agree to support the three suggestions that I made. They contented themselves with complimenting me on my assiduity. I remember a similar incident when I was a local councillor. I tried to do something similar, and the chap with whom I was dealing on that occasion silenced me at once. He said: "You have given me a basin of broth and hit me on the head with a spoon".
§ I did not feel that the Select Committee had hit me on the head with a spoon, but I hope that my children's children will feel that the compliment was worth something. I should much rather have had the Select Committee's support on that occasion. That may be there now. Since then, three events have happened which I think justify this new request to the Leader of the House to take up my first three suggestions plus others which arise from my new understanding of the position—an understanding not known to me when I gave evidence to the Select Committee.
§ The new points that I should now like to underline to the noble Lord, Lord Peart, in addition to the ones about which I have already informed him and which were in front of the Select Committee, are as follows. The first, as I have said, is the danger to justice shown by the unsavoury pre-publicity of the William Press and Company Limited case. We cannot disregard that. Before coming into your Lordships' Chamber, I was reminded that a Member of this House has had a similar experience which may well interfere with his being able to present his case to the Inland Revenue when the matter has to be examined.
§ The second point is the strength of feeling from all sides of the House, as recorded in the debate initiated by the noble Lord, Lord Houghton, on 27th April. That showed it could well be that the House as a whole would not come to the same conclusion as the Select Committee did, that the three suggestions I made were not worthy of being pursued in some way. The third matter—which I think is perhaps the most important and which represents knowledge that I had not got at the time—is that I now discover that Mr. Speaker's Certificate, designating the 15 Finance Bill as a Money Bill or a tax Bill, does not necessarily, if at all—I do not know which is right: it may be that he cannot—take into account whether tacking has taken place or not.
§ I thought, when I submitted my evidence to the Committee, that when the Certificate of the Speaker was attached that denoted (a) that a Bill was a tax Bill and (b) there was no tacking. But now I discover in fact that the investigation by Mr. Speaker in giving that Certificate does not necessarily—and in fact I do not think it does —take into account whether or not tacking has taken place. I discovered that the only custodians of the Lords protection in regard to tacking in Clause 49 are the officials of the Public Bill Office. They are expected to scrutinise Bills for the purpose of seeing that they are "clean" as regards tacking.
§ I do not think, in the light of recent happenings, that this is a good enough protection. I am not being critical of the Public Bill Office; I am merely saying that with the cursory way in which it is now done, because of this general acceptance of our having no powers and of our being almost prepared to accept that, this protection of the Public Bill Office is not strong enough. I believe we have to strengthen it in some way so that we are not in a position of having to lock the door after the horse has bolted, as happened in 1974 and 1976.
§ Therefore—if I may have the noble Lord's attention, because I think this is perhaps the most significant suggestion I want to make—I suggest that, as in the case of the Examiners and the recent hybrid Aircraft and Shipbuilding Industries Bill, the Clerk of the Parliaments or some similar official in the House of Lords should have access to the Public Bill Office, with the express responsibility of giving advice in order to avoid tacking. I believe that, in the light of what has happened, and in the light of the special powers that Governments now seem to have to take over people's rights and freedoms, we cannot go too far in seeing that at any rate the rules which are laid down to prevent excesses are adhered to.
§ I know that I am pushing at an open door when I put these points to the noble Lord, Lord Peart. I know that, as Leader of the House, he is as jealous as any of us 16 of the rights and privileges of this House. I can think of no more doughty champion to deal with the matter, if he feels that in some way there is something amiss, than the noble Lord. It is in his impartial role as Leader of the House as a whole that I ask him to try to find some way of providing safeguards now clearly seen to be necessary, and to do so in the knowledge not only that it is a matter of preserving the privileges of this House—though that is important enough—but that in doing so we are looking after the freedom of ordinary citizens and preventing unnecessary pain and harassment.
§ Finally, having argued against tacking, may I tack on to my plea a point of view which I know the noble Lord, Lord Molson, would have made had he been present. Indeed, I promised that I would say a few words on the submission that he made to the Select Committee. The suggestion that I think he would approve is that the noble Lord the Leader of the House should take early steps to implement the Select Committee's suggestion regarding Lord Molson's submission on 28th January 1977; namely, to put his point of view to a Joint Committee of both Houses for it to be dealt with. Indeed, I am eager to tack on something which I know the noble Lord, Lord Molson, will find helpful, for this reason. It could well be that in submitting his point to a Joint Committee of both Houses, the points that I have put to your Lordships could also be submitted. That would mean that the matter could be looked at with the minimum of administrative preparation, because the two things could be taken together.
§ The words on the Order Paper sound technical, but I believe that my Motion is much deeper and much wider than merely protecting a narrow rule. In this fast-moving day and age, where interference with the way of life of ordinary people (with very good intentions behind such interference), in the shape of new legislation, is growing every day, I believe we have a greater responsibility than ever to see that the fullest possible examination is made, as laid down in the Rules of your Lordships' House and in another place. I have confidence that your Lordships will be able to indicate in some way to the Leader of the House that they think there is some merit in this argument, and that such an indication will result in his being 17 able to give the protection which I think, in the interests of good government, is really vital. I beg to move for Papers.
§ 3.16 p.m.
§ Lord O'HAGAN
My Lords, we have two short debates today which look quite different but which are in fact linked. They are about the liberty of the subject and they both underline the need for updating our Parliamentary procedure and making sure that it is still flexible enough to cope with the complexity of modern life. I would submit that the case put forward by my noble friend Lord Harmar-Nicholls underlined once again that, if we wish to secure the fundamental freedoms that we need to make sure that our democratic system survives, then the best guardian of those freedoms is an active and vigilant Parliament, with procedures that can cope with all the increasing complexities (and sometimes absurdities) that legislation seems to bring upon us.
I should like to thank my noble friend Lord Harmar-Nicholls for bringing the attention of your Lordships to the Second Report of the Practice and Procedure Committee. I should like to thank him for what he said and for the way he said it, because I think he was looking at this subject from a broad non-partisan point of view, attempting (and succeeding in the task) to stress some of the longer-term goals that we must keep in our minds when looking at the way this House works. I cannot thank the Committee whose report we are now debating because I was a member of it, although I must confess that I was not as active in my attendance during the part of its proceedings which dealt with the matters we are discussing today as I was in the earlier part of the Committee's activities. But perhaps I may say that I am very glad that the chairman, the noble Lord, Lord Shepherd, with his own experience as a Leader of this House in recent times, is joining in today's debate.
I say that because it is essential that, when we are examining this matter of tacking, we should not be content to assume that because matters appear to have gone reasonably well in the past they will always continue to do so in the future. We must look at the Rules and at Standing Order No. 49; we must look at the protections that have been evolved 18 over the years. I often find it intriguing to see the different dates in the Companion to Standing Orders, showing how some of them have been there for four hundred or five hundred years, whereas others are of recent origin. We must continue that process of looking at the way we govern ourselves in this House, if we are to make sure that there is a proper balance in the Parliamentary duties that are discharged by our two Houses. We must keep our eyes on new things as they emerge, when these developments call for a development in our own procedure in response.
This Second Report of the Select Committee on Practice and Procedure is not only about tacking, as my noble friend said, and I should like to leave my remarks about tacking to the end of what little I have to say. That is because there are two other matters on which your Lordships may wish to know the feelings of the Government as to how they should develop, if at all. This is something on which I shall certainly welcome the views of the noble Lord, Lord Peart.
My noble friend Lord Harmar-Nicholls has mentioned the submissions of my noble friend Lord Molson. These are extremely intricate subjects. They are a kind of potpourri of Private Bill procedure, planning committees, planning inquiries and a whole range of matters which, it might be thought, deserve a complete debate in your Lordships' House. But what I shall restrict myself to doing is this. As I understand it, what my noble friend Lord Molson is concerned about is the occasions on which local public inquiries and administrative decisions, particularly those relating to planning applications, give rise to problems and concerns of more than regional or local interest.
There are occasions when a local matter suddenly assumes national, regional or even international importance and interest, and my noble friend has campaigned for years, particularly when we have been discussing in this House the provision of new reservoirs and other extensions of land acquisition, through the Private Bill procedure, that there should be a mechanism for giving Parliament a better look at these matters. Without my going into this subject in great detail, I hope that the noble Lord, Lord Peart, can use today's debate to give us a 19 progress report on the thinking of the Government.
This is a subject to which I am sure the noble Lord, Lord Shepherd, will want to refer, so I shall not go into it in any more detail. But can the Government give us a cleat statement about their views on the proposals of my noble friend Lord Molson; how do they respond to the Clerk of the Parliaments' Paper about these proposals, and what is their attitude to the recommendations of the Select Committee on Practice and Procedure, which have already been mentioned by my noble friend Lot d Harmar-Nicholls?
As my noble friend who introduced this debate said, these matters sound dull, dreary and dry, but they are not. They affect the lives of hundreds of thousands of people. They can alter the way our country looks, if some of these planning decisions are of enormous environmental consequence. So when we are looking at the functions of Parliament, and seem to be deciding that certain functions may be devolved, it may be right to say at the same time that there are certain matters at which we need to ensure that Parliament can look, if and when, in the very rare cases that it is necessary, a Parliamentary procedure is needed to confirm a planning inquiry.
As I said, today's debate provides an opportunity for the noble Lord, Lord Peart, to bring us up to date on the thinking of Her Majesty's Government on this subject. I hope that they have been thinking about it, because this report came out on 26th July 1977, so that there has been time for a thorough study and examination of the ways of proceeding with the next stage of this difficult problem.
Another subject in this report is the examination of a proposal by the noble Lord, Lord Kennet, for setting up a Foreign Affairs Committee of your Lordships' House. I do not want to go into the merits of this proposal, because I feel that it is better to look at the development of the Select Committee structure of this House as a whole. I do not think that a piecemeal examination of one subject after another for Select Committee scrutiny is necessarily the best way of approaching these matters. But I would stress to the noble Lord, Lord Peart, 20 that there is a huge expertise in this House, which he himself knows very well, particularly on foreign affairs, with political experience, diplomatic experience and commercial experience.
Bearing in mind the success—and I must declare a Parliamentary interest, if not a financial interest—of the EEC Scrutiny Committee, when there were many predictions that it would interfere with the process of negotiation, or cause embarrassment to our officials abroad and tie the hands of the Government, may I ask whether the Government, and the noble Lord, Lord Peart, in particular, are likely to be able to come forward with some constructive proposals in this field when the House of Commons Select Committee has reported? I understand, as the Committee itself recommended, that one cannot examine these matters in detail until the House of Commons have reported. But has the noble Lord any idea when the House of Commons Committee will report, so that we can have a proper debate about how we can develop our Select Committee structure and match it with theirs, so that, if possible, there is more overlapping? There are already the successful beginnings of joint work in the EEC Scrutiny Committee. Again, it would be very useful to know how the Government feel about a wide range of these matters, and not necessarily merely about the proposal put forward by the noble Lord, Lord Kennet.
I turn to tacking, and I am not sure whether there is anything left for me to say. I certainly do not want to attempt to interfere in the expertise of those from another place, who are familiar with the way in which Mr. Speaker works, and I am a little hesitant, standing where I now am, of tying myself in knots in attempting to understand and interpret all the intricacies and procedures of another place; for example, as to how Bills are certified to be Money Bills and vice versa. So that I am simply not in a position to begin to compete with the knowledge of my noble friend on this subject. He has studied it for many years and knows a very great deal about it.
But will the noble Lord, Lord Peart, accept that it is necessary for this procedure to be constantly examined to make sure that it works? Is he satisfied that, 21 as the nature of Bills has evolved, as they have become consolidated and have tended to have more and more delegated legislation inherent within them, with more and more Statutory Instruments flowing from them, that the present procedures to cope with tacking are adequate? Also, will he ensure that the proposals which have been put forward by my noble friend, with considerable care and after obvious thought and due consideration, are given a thorough examination? I do not think that this is a matter which can be dismissed as a peripheral subject.
As my noble friend rightly said, it is vitally connected with the liberty of the subject, and if your Lordships' House does not continue to act as a watchdog, as a scrutineer, and as a focus of examination on the implications of some of this legislation, as it charges through Parliament with ever-increasing rapidity, then we are beginning to deny one of our most essential functions. As well as a detailed reply on the particular subject of tacking, I should like to hear, and my noble friends would, the attitude of the Government to the matters raised in this Second Report.
We had a good debate (if I may use a phrase sometimes used by the noble Lord opposite) on 5th July 1977 on the First Report from the Practice and Procedure Committee. That was a most enjoyable occasion, even if it was not as promising as it might have been in the commitments to which it lead at the end of the debate, friendly though it was. When the noble Lord is winding up and dealing with the points which have been raised in the debate today on the Second Report of the Practice and Procedure Committee, could he bring us up to date on what has happened on the First Report? I must express I am sure a quite unjustified anxiety because, in spite of the heart-warming and benevolent words of the noble Lord the Leader of the House on 5th July,There is evidently a strong current of opinion in favour of an experiment to try out the Select Committee's recommendation for scrutiny procedure"—and then later on—I am prepared to accept the proposal for an experiment and that the recommendations should go to the Procedure Committee for detailed consideration …",22 I am still unaware of what has happened. Has anything happened at all? If nothing has happened could we be told when it is going to happen?
This is a subject about which it is extremely tempting to indulge in all sorts of endless ramifications without coming to a real point, and I want to avoid that danger. My noble friend Lord Harmer-Nicholls has rightly spotlighted a particular and vital role of your Lordships' House as a second Chamber, as a revising Chamber, as a Chamber which must look in detail and with greater leisure at the intricacies of our constantly growing volume of legislation, particularly finance legislation. In so doing he has given your Lordships an opportunity to look at the report which is an indicator of some of the ways in which we need to develop this House in order to make it work as a Parliamentary assembly in the latter half of the 20th century. It may at first blush be a little inward-looking; it may be rather incestuous to spend an afternoon talking about our own procedures. But I think that these two criticisms are very trivial compared with the much more serious obligation which I believe we are discharging this afternoon. That obligation is constantly to re-examine our way of working as a deliberative Assembly, to look at the way we make our procedures work.
I believe that the debate initiated by my noble friend Lord Harmer-Nicholls will provide the Government with an opportunity of saying how they feel that the process should go on, and for making a Statement about the particular points which the Practice and Procedure Committee looked at. I shall quite understand if all the points raised are not capable of being answered today; perhaps the noble Lord the Leader of the House would like to make a Statement later on, or perhaps write to noble Lords, though I hope he will not indulge in that procedure more than he needs to. My Lords, I end on that note because I want to emphasise once again that we are not today indulging in part of the Party political football game. The need is something we all share. It is part of our constant endeavour to make sure that this House continues to provide a useful Parliamentary function for the people of this country.
§ 3.35 p.m.
§ Lord AIREDALE
My Lords, the noble Lord, Lord Harmar-Nicholls, in the course of sounding loud and clear his warning notes this afternoon, has paraphrased the compliment which the Practice and Procedure Committee have paid to him in their report. Their actual words in paragraph 26 were that,… they take the view that Lord Harmar-Nicholls has performed a service to the House …My attention was drawn to that because I had intended to quote the immediately preceding words where the Committee say that theyconsider it is necessary for the House to guard its privileges …".In saying that I do not believe that the Committee were thinking of the House guarding its privileges from any sense of vanity or jealousy or self-satisfaction, but from a sense that the House has been entrusted with a duty to perform on behalf of the people and shows a determination not to be obstructed in the performance of that duty entrusted to it. I suppose that the underlying mischief which has brought about this debate is the continual tendency on the part of the Executive to be chipping away, gaining power for itself at the expense of Parliament on the one hand, and the courts on the other. In passing, it is worth bearing in mind that Parliament has to fight both these battles, because it is to Parliament that the courts have to look for the preservation of their jurisdiction against inroads made by the Executive. The example given by the noble Lord, Lord Harmar-Nicholls, of the Inland Revenue being given power to enter people's homes and ransack their papers is found also in delegated legislation; that being so, if it is necessary for Money Bills to be scrutinised for instances of tacking, in the same way do the Statutory Instruments need to be scrutinised from the same point of view.
The Statutory Instruments share with Money Bills this quality of not being subject to amendment in your Lordships' House. That being so, I think I may be permitted very shortly to refer to one of the reports of the Joint Committee on Statutory Instruments, to one Statutory Instrument upon which they reported, to show that the kind of thing that goes on in Statutory Instruments is somewhat akin to the example given by the noble Lord, 24 Lord Harmar-Nicholls. In any event, it is not much good sweeping the floodwaters away from the front door if the waters are flooding in at the same time through the back door.
The Joint Committee on Statutory Instruments in their 15th report referred to the Seed Potato Regulations of 1978, which was Statutory Instrument No. 215, and criticised some of the expressions used in those regulations. They criticised the expression:.… where the Minister is satisfied that certain conditions have been fulfilled …",which was used instead of saying:… where the Minister is reasonably satisfied …".This means that the court has its hands tied if a case ever reaches the court. The court is able to decide only whether the Minister, in so far as he considered the matter, was acting in good faith. Unless the word "reasonably" is introduced, the court is virtually prevented from itself examining the facts upon which the Minister made his decision in order to decide whether the Minister went deeply enough into those facts.
The committee further criticised the expression, "any disease or pest considered by the Minister to be harmful" and the expression, "grades of seed potatoes acceptable to the Minister If I may quote a few words from their report, they say:The committee consider that both these examples would enable the Minister to legislate by circular or otherwise outside the scope of Statutory Instruments, which is particularly serious since there is no appeals procedure provided for in the regulations. Decisions can be taken under the regulations by reference to circulars issued by the Minister, decisions taken by the Minister or opinions held by the Minister—for instance, as to the harmfulness of a particular disease or pest—which are not specified in these or any other regulations. Indeed, there is no statutory obligation to publish or publicise such circulars or decisions".That is the kind of problem one comes up against in the course of considering Statutory Instruments. We need, therefore, to be thankful for the diligence and hard work shown by the Joint Committee on Statutory Instruments. And when it comes to Money Bills and the device of tacking, we should be thankful for watchdogs like the noble Lord, Lord Harmar-Nicholls. Both he and the noble Lord, Lord O'Hagan, used the word, "watchdog". If it were in any noble Lord's 25 mind to say that, with a name like mine, I ought to be a pretty good watchdog, too, I apologise for taking the words out of his mouth.
§ 3.42 p.m.
§ Lord SHEPHERD
My Lords, I intervene only for a few moments as chairman of the Select Committee on Practice and Procedure and also because I had to deal with the noble Lord, Lord Harmar-Nicholls, in 1976 when I was Leader of the House and responsible for the Finance Bill.
Both the noble Lord, Lord O'Hagan, and the noble Lord, Lord Harmar-Nicholls, referred to the memoranda that had been submitted to the Select Committee on Practice and Procedure by the noble Lord, Lord Molson, and I very much regret that he is not present today. The memoranda which the noble Lord submitted were identical to those which he submitted to the Joint Select Committee on Delegated Legislation in 1973. Both committees felt that what the noble Lord, Lord Molson, was putting forward was of very great importance, but neither committee could proceed because it was a matter for both Houses.
Although there is a Committee for Practice and Procedure in another place, they could not consider this matter unless their terms of reference were altered. Certainly nothing could be done unless the Government undertook to introduce legislation. Therefore, we hope to hear from my noble friend the Leader of the House what the Government have in mind in this important respect. I do not know what the position is in regard to our sister Committee on Practice and Procedure in another place, but this matter is worthy of very careful consideration by both Houses.
The noble Lord, Lord O'Hagan, also referred to the Foreign Affairs Committee of the House of Lords. Again your committee felt that this matter is worthy of very careful consideration, but they would much prefer to wait until another House has reported. The noble Lord, Lord O'Hagan, is quite right in saying that there is a great wealth of experience in your Lordships' House, and since the publication of this report I have wondered whether we need to wait for the setting up of a Select Committee.
26 During my period as Leader of the House I was under very great pressure to set up a Select Committee on Defence. Like all good Leaders of the House, I resisted that pressure to the hilt. However, I did suggest—because I was, I hope, a constructive Leader of the House—that if the feeling was that there should be a committee on defence, there was nothing to stop noble Lords from setting up an all-Party unofficial committee. That is what has happened.
From all that I have heard, this committee has played, not only to itself but to the House as a whole, a very notable performance. It has been able to receive both military and political personalities whom I suggest to your Lordships might not have been willing to appear before a Select Committee of this House. I wonder whether an American general would have been willing to appear before a Select Committee of your Lordships' House? That American general was, however, perfectly willing to appear before an all-Party Committee of your Lordships' House. Therefore, I wonder whether those who are interested in this matter should consider whether this is a better approach in the short term—although in the long term it may perhaps prove to be better to continue in the other way—in order at least to get started in this field.
I turn now to the noble Lord, Lord Harmar-Nicholls. The noble Lord said that he is a nuisance. I am sure that it will come as no surprise to him to hear that to some he is known as a damned nuisance. The noble Lord is persistent. But that is what the noble Lord, Lord O'Hagan, has said Parliament is about. Since I have been chairman of the Select Committee on Practice and Procedure I have become very concerned—or my concern has become crystallised—about the imbalance that exists between Government and the Executive and Parliament. It is true that Parliament still remains sovereign but, as the noble Lord, Lord Airedale, said, unless the watchdog can bark it is of very little use.
I believe that last year I said that one cannot help but feel that over the last 10 or 15 years the balance has swung quite appreciably against Parliament regarding its control and examination of Government and the Executive. The balance has swung for one reason, and 27 the noble Lord, Lord O'Hagan, touched upon it: that Parliament resists any change in its procedure. It is only through its procedure that Parliament can exercise its sovereign right of control over the Government, but Parliament does not like change.
I join with the noble Lord, Lord O'Hagan, in asking my noble friend the Leader of the House what has happened to the proposals made by the Select Committee on Practice and Procedure. I know that those proposals were sent to the committee. Some noble Lords may know from experience that there is no better way of quietening and submerging any proposal than by sending it to either the Select Committee on Privileges or the Select Committee on Procedure. But it is no good talking about this imbalance unless Parliament is willing to do something about it, and, thank goodness! there are people like the noble Lord, Lord Harmar-Nicholls, who will continue, and persistently continue, to be a nuisance.
May I say to the noble Lord, Lord Harmar-Nicholls, that I agree with him. I have an increasing worry about the powers that Government and the Executive take to themselves or give to their officers. Only some 14 days ago there was a debate on a Bill in your Lordships' House with which all noble Lords could agree; namely, the protection of children from pornography. The whole House was on the side of the noble Baroness, Lady Faithfull, and it turned with great hostility on a speech of very great courage that was made by my noble friend Lord Houghton of Sowerby. He referred to setting the safeguards for perhaps one or two children against the tremendous power that one would be giving to the police to enter any individual's home because somebody had reported to the police that perhaps photographs were being taken of a child who was undressed. Your Lordships were hostile to my noble friend, but I think that he raised a very serious point regarding freedom.
So far as your Lordships' Committee was concerned and so far as I as Leader of the House was concerned, the question was whether, first, the proper procedures had been gone through in regard to the Finance Act 1976 and, secondly, whether 28 the existing Standing Order of your Lordships' House is adequate. I must say, as I did in 1976—and I had to examine it carefully as Leader of the House, and since as Chairman of the Committee—that I believe that the procedures in another place are adequate, provided Members are vigilant. I think it would be wrong for us to suggest to the Speaker, who is the servant of another place, what steps he should take in the way in which he arrives at his judgment, whether he has Assessors or Examiners to assist him. In the end, as I am sure the noble Lord, Lord Harmar-Nicholls, will agree, it would have to be the Speaker's decision; it could not be anybody else's. Therefore, whatever decision he comes to, it is as a servant of another place, and he must take his advice as best he can.
§ Lord HARMAR-NICHOLLS
My Lords, if I may intervene, does the noble Lord give any weight to the last point I made, that I discovered that it is not Mr. Speaker who actually decides on tacking, but an official? So the considerations the noble Lord has in mind, with which I agree, do not apply when it is the Public Bill Office and not the Speaker.
§ Lord SHEPHERD
My Lords, the noble Lord knows more about this than I do, since I have never had the privilege of being in another place. My understanding is that when a Bill is introduced it is looked at and examined to see whether it comes within the wording of Erskine-May, that there is no foreign matter within it, but if it is challenged a decision is then taken by Mr. Speaker.
The noble Lord, Lord Harmar-Nicholls, wondered whether there should be some mechanism by which Members of your Lordships' House, who have Standing Order No. 49, might make representations to Mr. Speaker. I have to say to the noble Lord that I would regard that as utterly unacceptable, just as I would have regarded it as utterly unacceptable when I was Leader of the House, or now that my noble friend Lord Peart is Leader of the House, to receive representations from a colleague, no matter how senior he may be, as to what your Lordships' House should be doing and what advice, as Leader of the House, I or he should give to this House.
29 My Lords, Standing Order No. 49 has stood the test of time; it has not been open to challenge since, I think, 1807. I do not believe that the case which the noble Lord has made in any way infringed Standing Order No. 49. It may be that the powers taken in the Finance Act are powers that ought to be considered separately; but if they are in the Bill, so far as your Lordships' House is concerned, provided that they meet the Rules of another place and our own Standing Orders, then we have to find other ways in which they can be debated and examined. As the noble Lord knows, there are ways and means by which it can be done. Your committee looked at the case made by the noble Lord, Lord Harmar-Nicholls; we reached a view, and I see no reason to depart from it.
My Lords, the noble Lord said that we patted him on the back for his assiduity. It was not done lightly. The noble Lord taught me a lesson, because I have to be frank with him. Until he raised the question of tacking and Standing Order No. 49 in 1976 I had heard of neither of them. So, as Leader of the House, perhaps there is something to be said for the vigilance of a Back-Bench Member so that an important Standing Order can be drawn to the attention of the authorities, because that, I am sure, is the only way in which we can maintain our rights and privileges.
I think it was the noble Lord, Lord Airedale, who spoke about the privileges of this House. We speak rather lightly of them, but so long as we are part of Parliament the privileges of this place are the privileges of Parliament as a whole. I would hope very much that in the next few years we can see a greater move in the field of procedure, not only by adhering to our Standing Orders but looking at the way in which we process legislation, the way in which we examine the great issues. Unless we do that, then Parliament slowly will ebb against the power of the tide of Government.
§ 3.58 p.m.
§ Lord HALE
My Lords, I have known the noble Lord, Lord Harmar-Nicholls, even long before he became a noble Lord; and he and I have worked without much dissent, or at least without much expressed dissent. I would not go so far as the 30 noble Lord, Lord Shepherd, in thanking the Deity for him as an especial favour. I have my own views about that; it may be that if we referred to whatever gods may exist we could select whichever one is responsible for controversy. I should also like to say this: I regarded this as likely to be a pleasant historical discussion but, if we are going to speak about the rights of individual Peers and so on, we could start by not producing Instruments for discussion on the day they are printed, by not asking Back-Benchers to try to deal with a mass of Amendments which they have never had a chance of seeing until an hour or two before the debate commences, and really considering some of the procedure of this House which is open to objection.
I say to the noble Lord, Lord O'Hagan, with whom I very rarely find myself in disagreement, that it is perhaps overstating the matter to say—I quote from memory, and probably from an inaccurate memory—that he suggested that it was essential that we should now begin to refer to a matter about which, so far as I know, no serious question has been asked since 1911. Finance Bills have come and Finance Bills have gone. Some of them have contained other matters and some of them have not.
There has been no attempt to raise the question of tacking. The only time that we have rejected it was, I think, in 1966, although that was not a Finance Bill in any sense of the word. The word "tacking" of course is philologically obscure and difficult and has a number of meanings, all of which seem to have become disreputable except the navigational meaning, which I believe caused some trouble for Sir Thomas Lipton during one of the America Cup contests; but generally speaking it is a navigational practice which has some advantages. In law it meant the wholly objectionable rule that by acquiring a third mortgage on property one could amalgamate it with a first mortgage and squeeze out the second mortgagee. That was abolished in 1874, although some less objectionable parts were included in an Act in the following year.
The noble Lord, Lord Shepherd, suggested that the Standing Order had not been challenged since 1807. At any rate it was made, and, so far as I know, 31 has lasted continuously since 1702. The gravity of tacking is exemplified by the precise circumstances in which that Order was made. William III, after returning triumphantly from signing the Treaty of Ryswick, overburdened with work, undergoing bitter hostility, found himself confronted, as the Report states, with a threat from the faithful Commons to tack on the essential Land Tax Bill, as it then was—a Bill for considering William III's distribution of the confiscated Irish estates which even Macaulay, the great defender, admits were certainly on an appalling scale and threatened almost to anticipate Bismarck's solution of the Irish problem. Bismarck is reported to have suggested that if the Dutch would re-populate Ireland and the Irish would re-populate Holland two great European problems would be solved, because the Dutch would make a garden of Ireland and the Irish would forget to repair the dykes. But in the circumstances which prevailed in England at that time this was a bitter threat, a bitter fight—a fight which brought William III to make arrangements to leave the country for good. But his health was already impaired and the Tack Bill was accepted. The report of the hostile commissioners was the subject of bitter controversy and Parliament was dissolved. Then in November 1700 the whole history of Europe changed in a few months with the solitary horseman's ride to Fontainebleau bearing news of the death of the Spanish King and of Louis XIV's acceptance of the Spanish throne on behalf of his grandson, having repudiated his word (not for the first time) in the Treaty of Ryswick.
When James II died in the Palace of St. Germain, all within 18 months, and when Louis XIV again repudiated his word after saying that the Pyrenees had been destroyed for ever, he was guaranteeing support for James II and, on his death, for his heirs, and when William III died in March 1702 it was not surprising that in the first few months of the reign of Queen Anne, which some historians tell me was very glorious, the House of Lords enacted this Standing Order which has remained ever since. It is an important Standing Order, but it has to be considered in the light of today.
I think the noble Lord, Lord Harmer-Nicholls, slightly over-estimated its present 32 importance, as I think the Committee did. During the evidence of the noble Lord, Lord Harmar-Nicholls, the Committee might have been recalling from time to time, as I was thinking during his speech, the familiar observation of Talleyrand: "Surtout, pas trop de zèle". In some of the observations that have been seriously made today, one may think we are slightly disregrading some of the practical and general implications. They were raised in a recent debate.
With his great ability and in a very fine speech, the noble Lord, Lord Houghton, raised some of the implications of the provisions which were incorporated in the Fianance Act of 1976, which had partly been on the Statute Book before the enactment. I supported him without any qualification. We were examining the matter with conspicuous reticence, because we had no desire to criticise people who were temporarily under accusation on account of reports in the Press which might or might not have been greatly exaggerated, and we received an admirable reply from the Minister responsible for Home Office affairs, who is always conscious of the needs of liberty. But the question of what can or cannot be incorporated in the Finance Bill is naturally a considerable constitutional difficulty, and most certainly rendered rather oddly apt by the strange events which have been happening in another place.
Ignoring all threats, and showing, in my view, much more wisdom than they did sometimes in the past in possible constitutional conflicts with another place, the Lords have been pursuing with unexampled diligence many of the problems that divide the nation and many of the constitutional problems which have been rather suddenly and, as some think rather unnecessarily imposed upon us. Their Lordships have certainly won acclaim for their labour in the European Economic Community. Possibly they were, in the event, justified in having some temporary conflicts with another place. I am thinking, for example, of the Aircraft and Shipbuilding Industries Bill. Not for the first time I probably voted on the wrong side. I often vote with the Government which involves a good deal of voting on the wrong side these days! I am just beginning to wonder how long that process can continue.
33 However, the Committee has admirably presented to the Commons the question raised by the noble Lord, Lord Harmar-Nicholls. It is being dealt with before a Committee and there are matters for temperate discussion. There are many Members of the other place who I am sure realise—indeed I have heard them say so— that the life of a Member of the House of Commons these days is one of complexity and difficulty. Constituency problems manifestly occupy a great deal of time. To discharge one's duty fully is as wholly impossible for a Member of another place, as it is for a Member of this House, especially when one considers the Order Paper which we receive every day containing items about which the most learned, able, active and supporting Member can have little or no knowledge.
We can only do our best as Members of the other place can only do their best and we do so in the best of spirits. In that sense I support what the noble Lord, Lord Harmar-Nicholls, has said. He has shown a perspicacity and a discernment as regards this matter which the Court of Appeal once declared was rarely to be found upon the county court bench.
Of course, there are bigger issues involved—for example, the disappearance of the equitable outlook. It may well be that before long our problems will present matters in which some measure of co-operation between the two Houses will be essential and should not be lightly impaired. I should like to quote a passage which I have extracted from the works of two writers of great distinction on the law—Levy Ulmann and Allen in the last half-century. They are talking about equity which once brought something of great value to the courts:The root is dead, the stalk is dry, the leaves withered, the fruit rotten. Les oiseaux s'envolent et les fleurs tombent.The latter talked of equity having reached a rigor aequitatis.
I regard it as a great privilege to take part in this debate. I hope that I have done so with commendable brevity. I shall listen with great interest to what my noble friend has to say, for it will not be easy for him to reply.
§ 4.14 p.m.
My Lords, I must ask your forgiveness for intervening in this 34 debate without putting down my name on the list of speakers. However, I shall be very brief. We owe a great debt of gratitude to the noble Lord, Lord Harmar-Nicholls, for raising this very important issue. I wish to make the point that Standing Order No. 49 of your Lordships' House, has, in fact, been emasculated by the Parliament Act 1911. Standing Order No. 49 states:The annexing of any clause or clauses to a Bill of Aid or Supply, the matter of which is foreign to and different from the matter of the said Bill of Aid or Supply is unparliamentary and tends to the destruction of constitutional Government".That is quite unequivocal, as is the Parliament Act 1911 which reflects the same spirit when it states:A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission alteration or regulation of taxation".Unfortunately it goes on to say:or subordinate matters incidental to those subjects or any of them".That is the key.
I maintain that that is an immense power for a unicameral parliament and it is under that power that we have seen what I consider to be certain abuses which have been pointed out by the noble Lord, Lord Harmar-Nicholls. As Erskine May quite rightly states in the 19th edition, page 791:The scope of Finance Bills is not limited to the imposition and alteration of taxes for the purpose of adjusting the revenue of the year. It normally includes many provisions of a permanent character for the regulation of fiscal machinery and other purposes".I think that the central point that the noble Lord, Lord Harmar-Nicholls, has raised—namely, that a unicameral Chamber has this statutory power to impair the freedom of the individual—is a vital point which needs very careful consideration.
§ 4.17 p.m.
§ The LORD PRIVY SEAL (Lord Peart)
My Lords, I can only say to the noble Lord, Lord Morris, that we have a bicameral system and it is working. I should say to my noble friend Lord Hale who implied—
§ Lord PEART
My Lords, I allowed the noble Lord, Lord Morris, to make a short intervention and he made it very well. I hope that he will not delay my speech. My noble friend Lord Hale implied that a great many matters come before the House without proper notice. As Leader of the House I have always discouraged the late tabling of Amendments to Bills. Also, no other Papers come before the House late, except in very unusual circumstances, when discussions always take place through the usual channels. However, I enjoyed the speech of my noble friend. I was glad that he defended both Houses and advocated co-operation. I do not want confrontation.
As an ex-Member of another place, and, indeed, as an ex-Leader of another place, I believe that this House, of which I am now, and have been for nearly a year and a half, a Member, makes a major contribution to our democratic life in the best sense. I mean that and I think that that view was echoed by the noble Lord, Lord O'Hagan, who I thought made a very effective speech not only in defence of his noble friend (with whom I shall deal) but—and I do not wish to sound patronising—as a young Member of the House. I thought that he was quite right in his concept of Parliamentary democracy and the role which we play.
Noble Lords will recall that the First Report of the Select Committee on Practice and Procedure was debated on 5th July last year. The Second Report was not published until later in that month, and consequently it has not, until now, been debated in the House. I am sure that the House will agree that the opportunity provided by this short debate serves as a useful postcript or addendum to the debate of last summer. The report covers three subjects, all of which have been discussed this afternoon; but perhaps I may begin by taking the last part of the report first and commenting upon the proposals of the noble Lord, Lord Harmar-Nicholls, on tacking.
I should like to congratulate the noble Lord, Lord Harmar-Nicholls, on making a first-class speech. He has taken a great interest in this subject and, quite rightly, from a Parliamentary point of view he has raised it. He has been assiduous; he appeared before the Select Committee, 36 even though it did not quite accept all he said. However, we admire him for it. The noble Lord was good enough to indicate in advance of this debate the suggestions which he intended to put forward today, in addition to those which he had already proposed in his oral evidence to the Select Committee.
In order that we can be quite clear what we are talking about, I should like to say what I mean when I refer to tacking. I mean the annexing of any clause or clauses to a Bill of aid or supply, the matter of which is foreign to and different from the matter of the Bill. As we are dealing with a technical subject, I think that it is important to be precise, and noble Lords will have observed that I have followed the words of Standing Order No. 49 in this definition. This Standing Order has been quoted by several of our noble friends today.
I should like to make one other general comment before discussing the proposals of the noble Lord, Lord Harmar-Nicholls. As will be clear, we are talking about Bills which are about money, whether or not they are certified as Money Bills by the Speaker; for as the noble Lord, Lord Harmar-Nicholls, has pointed out, more than half the Finance Bills in recent years have not been so certified. At the risk of stating the obvious, I should like to emphasise that when discussing such Bills we should always be most scrupulous in respecting the financial privilege of another place. I say this not because I wish in any way to inhibit the debate of financial issues in this House. Far be it from me as Leader of the House to do so. No, it is my belief that this House is respected when it discusses such matters, precisely because it is recognised that noble Lords acknowledge the special authority of the elected Chamber in matters of supply.
I see on the Opposition Front Bench the noble Lord, Lord Soames, who was a distinguished Minister in my old Department. No doubt he will add his authority to what I have said, because an order was raised by the noble Lord, Lord Airedale, affecting Ministers of Agriculture and their desire to push matters through quickly and effectively. I thought that that was no criticism of good Ministers of Agriculture, who I think use these orders —especially the one in connection with, I think, seed potatoes—very well and 37 effectively. No doubt the noble Lord, Lord Soames, must have done so on many occasions, as I did when I was a Minister like him.
Therefore, I should like to preface my comments on tacking by saying that I am very strongly of the opinion that (and here I am quoting from Erskine May at page 802):as for the modern equivalents of Bills of aids and supplies namely Consolidated Fund and Finance Bills the Rules of Order of the House of Commons exclude the possibility of foreign matter being tacked to such Bills by way of amendment; and respect for constitutional practice prevents the inclusion of such matters among their original provisions".I am sure I am doing no more than giving expression to the established wisdom and practice of this House in saying that I could not affirm too forcefully that it would be improper for any Member of this House to suggest that the procedures of another place, or their exercise, are in any way inadequate. Having said that, I shall now comment on the proposals of the noble Lord, Lord Harmar-Nicholls.
As I understand it the noble Lord, Lord Harmar-Nicholls, does not feel that the House of Lords should rely solely on the procedures and conventions of the House of Commons to protect it from tacking. It is his contention that, if Standing Order 49 is to be properly observed, some machinery must be established by the House of Lords to make it effective. He has made a number of proposals in this connection.
The noble Lord proposed that the Public Bill Office of this House should scrutinize Finance Bills while they are still before the Commons in order to consider and advise on possible tacking. It is open to any Member of this House or, indeed, of the public to examine legislation in another place and the proceedings upon it. However, I do not think it would be appropriate to require the Clerks in our Public Bill Office or the Clerk of the Parliaments to give an opinion on financial legislation which is before the Commons. I believe that this would constitute an intolerable interference with the privileges and procedures of another place and would, in my opinion, do great damage to the relations between the two Houses. Of course when such a Bill reaches this House our Clerks will be available in the usual way to give advice on whether 38 Standing Order 49 appears to have been infringed, though any decision on the matter would be for the House itself. I hasten to add that the role of the Clerk of Private Bills as an Examiner does not provide a meaningful analogy with the role the noble Lord proposes for the Public Bill Office. Each Examiner is an Officer, as he knows, of both Houses and, therefore, has an established role in relation to each.
So far as the noble Lord's remarks on Mr. Speaker's Assessors are concerned, I can only say that it would be impertinent of me to cast any aspersion on their combined abilities and the resources of Mr. Speaker's Office. I would doubt very much whether any change in the present procedures of the House of Commons in scrutinising financial legislation is needed. I certainly do not think it would be appropriate for such changes to be proposed in this House.
I hope that the noble Lord will not think that I am being unnecessarily destructive if I take a similarly unaccommodating view of his suggestion that Peers should have a special right of access to Mr. Speaker in connection with the certification of Money Bills. I realise that the noble Lord feels that he is on the horns of a dilemma. On the one hand, there is no machinery to enable this House to express a view on financial legislation before it reaches this House. On the other hand, as the noble Lord has recognised, it is perhaps closing the gate after the horse has bolted to try to do anything after the Speaker has certified the Bill and it has reached this House. Nevertheless, the noble Lord will know as well as I do, as we were both Members of another place for many years, that Mr. Speaker comes to his decision without consulting Members of another place except his two Assessors. He has the expertise and advice which he may require at his disposal. I am sure that the noble Lord does not mean to imply that the Speaker's decision is ever ill-founded. As this is the case, there is no need for Members of this House to have access to him, even if this was appropriate.
The noble Lord has also suggested that all Bills of aid and supply should be endorsed with the Speaker's certificate. My Lords, Section 1(3) of the Parliament Act 1911 defines what is a Money Bill for 39 the purposes of the Act. I do not see how a certificate could be applied to a Bill which was not a Money Bill within the terms of the Act. I certainly could not accept that there is any need to amend the Act to enable Mr. Speaker to certify all Supply Bills.
I have felt it right to deal with the various proposals which the noble Lord has put forward. However, I wish to stress that I, like the Practice and Procedure Committee, am satisfied with the position as it is at present. In addition to the points he raised with the Committee, I have commented on his further suggestions put forward today. I should like to thank the noble Lord again for giving me advance indication of these new suggestions. I do not accept that the noble Lord's anxieties are well founded or that any measures need to be taken to protect the interests of the House in this area. I am sure that we can rely on the regard which Mr. Speaker and Officers of the House of Commons have for constitutional and Parliamentary proprieties to prevent the occurrance of tacking. But like the Select Committee—and I say this to him sincerely—the noble Lord has performed a valuable service by reminding the House of the provisions of Standing Order 49.
May I now deal very quickly with Lord Molson's proposals dealing with local public inquiries. I have spoken at some length on tacking, and I should now like to turn to Lord Molson's proposals—I am sorry that he is not here, but they were raised by the noble Lord, Lord O'Hagan— on local inquiries. The Select Committee recommend that the Government should give careful attention to these proposals, and recommend a course of action for Parliament. The Government recognise the importance of the issues raised by Lord Molson, and I should like to pay tribute to his skill in discussing them and his insight into matters of public concern, which are all too easily obscured by complex Parliamentary procedures.
He has drawn attention to the need to ensure that amenity societies have proper access to Parliament to put their views on local matters of national importance. He has also thought very carefully about the procedures which apply to Private Bills, Provisional Order Confirmation Bills, and Special Procedure 40 Orders. I will not pretend to be master of these procedures, and I do not propose to evaluate now the detailed remarks of Lord Molson and the Memorandum submitted by the Clerk of the Parliaments to the Select Committee.
A full inquiry into the matters raised by these proposals would, I believe, be a considerable undertaking. It would be necessary to receive evidence from a wide range of local authorities, Government departments, and other interested bodies. It would also be necessary for both Houses to conduct the inquiry jointly, as the proposals would require legislation and the alteration of procedure in both Houses. Circumstances in the immediate future do not appear very auspicious for an inquiry of such complexity. The present Session has seen Parliament engaged on three major constitutional Bills. The first elections to the European Parliament will be held next year. Subject to the passage through Parliament of the Scotland and Wales Bills, and subject to the results of the referendums, devolved Assemblies will be in their infancy and Parliament and local and central Government will be adapting to devolution.
In short, my Lords, we will all of us have a great deal to digest and adapt to. For these reasons, I can only say to noble Lords that I do not think that I can hold out much hope that either House, or the Government, would wish to embark upon such an inquiry in the immediate future. Nevertheless, these proposals ought to be carefully looked at, and I pay tribute to Lord Molson for conducting his campaign so assiduously and for his work on the Select Committee.
Let me turn to a proposal by the noble Lord, Lord Kennet: the setting up of a Foreign Affairs Committee. I know a number of other noble Lords—Lord Avebury, Lord Bethell, Lord Greenhill of Harrow, Lord Kennet and Lord Weidenfeld—have proposed this. I should like to say only that I concur with the recommendation of the Select Committee, which suggested that it would be sensible to defer any decision until the House of Commons' Committee has reported, in view of the possibility of setting up a Joint Committee on Foreign Affairs.
My noble friend Lord Shepherd came back to proposals which we debated last 41 year: the need to have monitoring committees, with or without Public Bill Committee functions. I know that he feels disappointed that we have not really come to grips with that, but no doubt he will pursue it again and we will have to come to it. This Session the House has been extremely busy.
§ Lord SHEPHERD
My Lords, which hare do I pursue? The Leader of the House? The Chairman of Committees? Who?
§ Lord PEART
My Lords, speaking as one who is not a hare, I would say my noble friend can make his choice. I think he should take it to the Select Committee. I think that that would be sensible. I hope that my noble friend will not think that I am pouring cold water on his suggestions. I agreed in principle on the last debate we had, and I hope that it will be followed up. But, as he will appreciate, the House has been extremely busy on this matter.
The noble Lord, Lord Harmar-Nicholls, referred to a case. I hope that he will give me the information, and I shall look into it and write to him. Again may I say in reply to another point which was raised, that tacking is examined as a matter of course in the Commons. In this House the Public Bill Office will advise on any question raised about tacking. Mr. Speaker's certification of a Bill as a Money Bill depends on whether the Bill contains only provisions about taxation, or matters subordinate to it. If the noble Lord looks at paragraph 10 of the Clerk of Parliament's memorandum, page 40 of the report, he will see that that is discussed there. If other matters are contained in the Bill it cannot be certified as a Money Bill.
The Public Bill Office, like all the procedural offices and officers of another place, work under the authority of Mr. Speaker. I find it hard to believe that Mr. Speaker would not be aware of their opinion on such an important question. The noble Lord, Lord O'Hagan, also asked me about the Government's thinking on Lord Molson's proposals. As I have said, the Government are considering public local inquiries in the light of the public interest, which has grown recently, in planning decisions. Matters like Windscale, which I know well because it is in my old area of Cumbria, have excited controversy. We shall carefully look at 42 this. I cannot go beyond that at this point.
A question was asked about an experiment on the lines of the First Report on Practice and Procedure. This Session would not have been a good Session for an experiment because of the devolution Bills. I think that we have had a good debate. It has served a useful purpose. Procedure can be an extremely dry subject, but it is the stuff of politics. It is important, and noble Lords have made excellent contributions.
§ 4.38 p.m.
§ Lord HARMAR-NICHOLLS
My Lords, even if he tried very hard indeed the noble Lord, Lord Peart, could not avoid being very courteous. Even if he tried he could not avoid giving the appearance—indeed, not only the appearance, but the fact—of being very friendly. It is in the nature of his make-up and general stance, that modest sort of feeling that "Everything is all right. You needn't bother your head about it." That is one of the most dangerous things that can happen on a topic such as this.
The noble Lord has advised your Lordships that nothing ought to be done about this question; that it is not important enough, and it is all right. I am going to invite your Lordships not to accept that. I am going to invite your Lordships to use every opportunity to have this matter looked at, because the facts really disprove the satisfaction that the noble Lord has expressed. It is a fact that under the guise of a tax Bill, under the guise of a Budget, which can only be discussed by another place, there has been legislation put on the Statute Book which enables people to walk into your house, break into your desk or your safe, and have more power than the police in conducting a criminal investigation. That was done without your Lordships being able in any way to amend it or to mitigate its consequences. As long as that is the situation, I invite your your Lordships not to accept the guidance given by the noble Lord.
§ Lord PEART
My Lords, may I have permission to intervene? I hope that noble Lords will remember that this was discussed by our own Committee here, and the Committee say that they do not endorse any of the suggestions made by 43 the noble Lord, Lord Harmar-Nicholls, hut they pay tribute to what he did.
§ Lord HARMAR-NICHOLLS
My Lords, I was going to deal with the chairman of the Committee because he comes into a similar category. I remember the noble Lord as Leader of the House. He was very forceful, and he had the skill which resides in the Leader. Was it MacGregor who said,Wherever sits MacGregor, there is the head of the table"?Likewise, where e'er sits the noble Lord, there is the head of the table, and he was certainly at the head of the table on this Committee. He forcefully joined in the giving of evidence and expressed a point of view that was very impressive. Then I learned, about half an hour ago, that he was almost not aware of Standing Order No. 49 and the protection necessary until the matter was raised. That is the sort of thing I am afraid of and I hope noble Lords will bear it in mind.
Because this protection has been in operation for two or more centuries, and because it worked when the government of this country was on a different plane and was conducted at a difference speed from today's, one can be cajoled into thinking that it is working today; but it is not, and the evidence of what a Conservative Government did under that Act and what the Labour Government have done under the 1976 Act cries out loud for something to be done. The noble Lord, Lord Shepherd—I respect his view —did not think my suggestions were the right way of going about it, and of course I accept his view. I do not know whether or not they are. Nevertheless, I believe that some way should be found to look at this and to bring up to date the protection that Standing Order No. 49 should give us. Indeed, that is all I wanted Lord Peart to do. He does not feel able to do that at present, and I respect his point of view, but I hope noble Lords will find every opportunity to try to make him change his mind.
It is suggested that by even looking at the issue we are in some way attacking the powers of the other place. I have made it clear that they are powers which they should have. Indeed, I do not think your Lordships are entitled to have anything to do with the taxing of the people of this 44 country because we cannot be dismissed if we do the wrong thing, whereas the Members of another place can. Therefore, as they must carry the responsibility, they should have all the powers necessary, and I am not concerned with that point. However, I say that if they use those powers, which have been properly given to them, to tack on things which should not be completely within those powers—I refer to such matters as freedom and items which this House should look into—then we should make certain that the protection that was built in when they were given those powers is used. At present it is not being used. I am not saying that that is happening deliberately or michievously; it may be happening inadvertently, or perhaps because they cannot find the time to change it. I believe we should find the time to do something about it, otherwise we may find other things coming through. Perhaps the very fact that one almost tried to persuade your Lordships to throw out the Finance Bill 1976, and the fact of this debate, have drawn to the attention of a few people the need to look at things more carefully than was the case before we had this exchange. Although that may be making a contribution, I do not think it will be enough.
There is no question of attacking Mr. Speaker; he is absolutely superb and his impartiality and objectivity is above question. The House of Commons can look after itself and it is for your Lordships to look after yourselves. They have the power to do all these things. It is written in our Standing Orders that we can have the power certainly to look after freedom and trespass if we wish to do so. At present the protection is not being used. I hope the Leader of the House has not heard the last on this. My Lords, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.
§ Brought from the Commons; read 1a, and to be printed.