HL Deb 23 April 1990 vol 518 cc326-51

3.32 p.m.

The Lord Privy Seal (Lord Belstead)

My Lords, I beg to move that the Commons reasons and amendment be now considered.

Moved, That the Commons reasons and amendment be now considered. —(Lord Belstead.)

On Question, Motion agreed to.

COMMONS REASONS FOR DISAGREEING TO CERTAIN OF THE LORDS AMENDMENTS AND COMMONS AMENDMENT IN LIEU OF ONE OF THE LORDS AMENDMENTS

[References are to HL Bill 35 as first printed by the Lords, The Commons reasons and amendment are printed in italics.]

LORDS AMENDMENT

1 Clause 1, page 2, line 18, at end insert: (7) A draft of the first regulations to be made under this section or Schedule 2 to this Act shall be laid before each House of Parliament; and if either House of Parliament passes a resolution requiring the draft to be amended the Secretary of State shall withdraw the draft and shall prepare a draft in substitution for the one which is withdrawn. (8) No resolution shall be passed by either House of Parliament under subsection (7) above in respect of a draft after the expiration of the period of 40 days beginning with the day on which a copy of the draft was laid before that House; but for the purposes of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. (9) If, on the expiry of the period of 40 days mentioned in subsection (8) above, no resolution requiring amendment of the regulations has been passed by either House of Parliament, the darft shall not come into force until it has been approved by resolution of both Houses of Parliament. (10) Where the Secretary of State withdraws a draft under subsection (7) above, he shall lay an amended draft before Parliament and the amended draft shall not come into force until it has been approved by resolution of both Houses of Parliament.

2 The Commons disagreed to this amendment for the following reason —

Because it would unacceptably delay the implementation of the student loans scheme.

MOTION MOVED ON CONSIDERATION OF COMMONS REASON

2A Earl Russell rose to move, That the House do insist on their amendment numbered 1 to which the Commons have disagreed for the reason numbered 2.

The noble Earl said: My Lords, I first tabled this amendment because it appeared to a number of noble Lords on both sides of the House that the form of this Bill was somewhat unusual. I remember very well my noble friend Lord Addington saying in the debate on the humble Address that when he first collected the Bill from the Printed Paper Office he thought that the middle had fallen out of it. The House may recall also the remarks by the noble Lord, Lord Beloff, on the same day and those of the noble Lord, Lord Rippon of Hexham, on 21st December.

Those remarks concerned the form rather than the substance of the Bill. In the long term one might be more concerned about defects in form than defects in substance. If this House should pass a bad Bill, it would not be the first time in the history of Parliament that that had been done. Also, I fear that there will be many more. However, if Parliament passes a Bill which is defective in form, it is setting a precedent which may be harmful to the drafting of many future Bills. A bad precedent may be worse than a bad Bill.

As my honourable friend Mr. Beith remarked, this Bill consists of almost nothing but the power to make regulations. That fact inevitably restricts any parliamentary contribution to the necessary revision and scrutiny of any such measure.

I know that there has been improvement in that respect. I warmly welcome the amendment moved by the noble Baroness, Lady Young, whose success delighted me. That ensures that Parliament will have the power to debate regulations made under this Bill. However, although I welcome that, with respect, it is not enough by itself. This House is a revising Chamber. Its revising functions are properly exercised by means of amendment. That is the jewel in the crown of the powers of this House. In normal circumstances this House does not amend regulations.

Therefore, we have here an exceptional Bill and an amendment moved in the opinion that the Bill was exceptional and because it was exceptional. The Secretary of State has made some objections to this procedure. He pointed out that numerous amendments had been tabled and debated at great length. Of course, that is true. However, with respect, I believe that it was because the Bill was so difficult to amend that the process took so long. I am vividly reminded of the phrase used by the noble Lord, Lord Kilmarnock, on Second Reading about the difficulty of making amendments purchase on the slippery surfaces of this Bill because in many cases what people wanted to amend was not even mentioned in the Bill itself. Noble Lords tried to table amendments to get at a point at all sorts of different places in the Bill. Therefore, not for the first time in the history of Parliament, attempts to save time resulted in taking up more of it. Therefore the fact that a lot of amendments were tabled does not prove that the Bill was in a satisfactory form to be amended.

The Government also say —and I am sure that we shall hear it again in a few moments—that they have committed themselves to monitoring the progress of the legislation. One must welcome that as far as it goes, but, judging by the repeated promises which we have heard to monitor the Social Security Act 1986, one feels the need to say that monitoring one's own work is usually a rather less searching procedure than having it monitored with assistance from other people.

In fact, if we go on passing Bills like this, that will put the process of parliamentary government into jeopardy. Indeed, it will at least threaten honouring in the breach as well as in the observance the basic principle that in this country the government do not make the law and Parliament does. In this country, we do not have legislation by ministerial decree. It is not enough to have consultation about legislation in the process of debate on regulations under the affirmative resolution procedure, welcome though that is. This House is not a press conference but has revising powers, and they matter.

Of course, it is important to say that powers such as are specified in this amendment should not be used lightly, wantonly or ill-advisedly. They should not be made a general and normal method of scrutinising regulations. There is a proper place for enabling legislation and it must be accepted that, with the passage of time, that place grows. As there is more business, it is inevitable that more will go into regulations.

What many of us deplore is putting, in effect, the body of the Bill into regulations. The point of this amendment is that if the Government put the Bill into regulations, then we may use this procedure in order to treat the regulations as if they were a Bill.

The procedure used in this amendment is laid down on page 546 of Erskine May. It has been there for a long time and has been used in exceptional circumstances when it was felt that there was a need for it. My honourable friend Mr. Beith drew attention to the fact that he had used the powers to amend regulations under the Census Act 1920. A similar procedure is used under the Emergency Powers Act 1920. If your Lordships look at the list drawn up by the Joint Committee on Delegated Legislation, you will see that there is a clustering of uses of that power, round about the 1920s, when there was a particularly intense concern about the growth of enabling legislation.

In the past year we have heard such concern repeated many times in this House. It seems to me appropriate that as it returns so we should turn to the procedure which is the appropriate way to deal with the matter. It is one of the glories of parliamentary procedure that, like the common law, it tends to produce for each mischief an appropriate remedy. We have here unusual mischief but I believe we have set out in Erskine May a perfectly appropriate remedy and I think that this is a proper occasion for its use.

If we insist on this amendment there will be a number of beneficial effects. As my honourable friend Mr. Beith suggested, it will mean that the regulations are better drafted. Regulations drafted in the knowledge that either House of Parliament may table a Motion to amend them will be drafted with a good deal of care. It is possible, as my honourable friend also pointed out, that some of the amendments could be government amendments. It is not unknown for governments to need to have second thoughts. There has been a need for such thoughts on this Bill. If the provisions of the Consumer Credit Act 1974 had been thought of just two weeks later than they were, one could imagine a situation in which Ministers may have been very glad of a power to amend their own regulations. In fact it could have been of considerable convenience to them.

The important point is that if we insist on the amendment we shall be avoiding a future mischief; we shall be avoiding the suggestion that this is a proper way of legislating which can be used in the future. That is a great deal more important than any of the specific provisions in the Bill under discussion. The principle of parliamentary scrutiny of legislation is one of which we should not let go lightly.

There will be some discussion on whether we should insist on an amendment in the face of the opposition of another place. We have done so before. The last time was barely over a year ago with regard to eye tests. It is a power which has been freshly pushed to a Division. It is not a power which has been out of use for any length of time. There is some similarity between the position, functions and powers of this House and those of another place in the early years of the 17th century. The purpose of both Houses is to provide a check on the basic principle of the legitimacy of the constitution. That is a very difficult job; it is also a very necessary one.

The point that power corrupts does not wither by reputation. Power needs to be checked, but that is also very difficult, particularly because our power of parliamentary scrutiny is held by the grant and sufferance of those whom it is designed to check. That means that the powers that we have are as they were spelt out by another place. There are limits within which we must very carefully stay because basically our title to do anything is that the elected Chamber has willed to give us that power. However, so long as it has done so we should have no compunction about exercising that power.

We have a trust for the elected Chamber to revise legislation and ensure that it is properly and democratically conducted. In discharge of that trust we should insist on this amendment. I beg to move.

Moved, That the House do insist on their amendment numbered 1 to which the Commons have disagreed for the reason numbered 2. —(Earl Russell.)

3.45 p.m.

Baroness Young

My Lords, I listened very carefully to the noble Earl. Before attending the House this afternoon I took the opportunity to reread what he said at Report stage when this matter was debated. He referred to the amendment which I moved, which was supported by my noble friend Lord Rippon of Hexham and the noble and learned Lord, Lord Simon of Glaisdale, and to which the Government agreed. He welcomed it, as I think the whole House did; it was a major improvement to the Bill.

I very much agree with the noble Earl concerning the importance of the House of Lords as an amending Chamber. A great many amendments have been tabled and for a Bill of this length and size a great many have been accepted, not only the one that I moved but the amendment relating to the increase of the access funds, which is of immense value. That reflects great credit on your Lordships' House and the expertise that it brings to these matters. It is therefore right to set this issue in its context.

As the noble Earl also said, the Government have said repeatedly that the legislation will be monitored. I do not think that this is an exact analogy with the Social Security Bill. Social security legislation is vastly wider and more complex. I have no doubt that whatever may or may not be the case we are addressing a very articulate and vocal audience who are concerned with the Bill. They will certainly be able to make their views clear as the legislation is put into effect. We shall then know exactly how it is working out.

There seem to me to be two specific objections to accepting the Motion of the noble Earl to insist on the amendment. The first is that, were the House to amend the regulations and the Bill were to go back to another place, as inevitably it would, we would not know whether another place would agree with the regulations. That would produce a situtation of dispute between the two Houses. I am by no means a constitutional expert, but I am not at all clear as to whether there is any satisfactory way of resolving such a dispute.

However, I suspect that it is the second objection made by another place which is important, that is, Because it would unacceptably delay the implementation of the student loans scheme". The amendment imposes a delay of 40 days during which draft regulations can be made. If then an amendment were to be passed, that too would be subject to 40 days' delay and there could then be another amendment subject to 40 days' delay. That situation could go on indefinitely. I am sure the noble Earl will say that that is not the intention and I do not suggest that it is, but the truth is that that is how it would be seen to work in practice. It would therefore have the effect of negating the Bill altogether.

The noble Earl might like to consider that that would produce considerable constitutional difficulty in the future or on any other legislation. I speak as a former Leader of your Lordships' House when I say that it is very important that the proprieties between this House and another place are carefully maintained. In those circumstances, when your Lordships have already included in the Bill a number of important amendments, to insist on something which will unquestionably lead to delay, even if not indefinite delay, opens up a very major new principle. As the noble Earl indicated, that principle has not been used for 70 years and that suggests that there are very good reasons why it has not been used for 70 years. It could produce severe difficulties between the two Houses.

Earl Russell

My Lords, if the noble Baroness will forgive me, I did not say that this procedure had not been used for 70 years. It was last used in the Education (Scotland) Act 1962.

Baroness Young

My Lords, I beg the noble Earl's pardon; I misheard what he said. The fact is that allowing the amendment would be an unfortunate course upon which to embark. I hope, as I am sure he will, that when my noble friend the Leader of the House replies to the debate he will fully set out the constitutional position so that we may be sure about it. I hope that the House does not insist on the amendment; that we stand by the amendment that has been agreed and leave the position as it is.

Lord Simon of Glaisdale

My Lords, there were two powerful reasons which spoke in favour of the amendment moved by the noble Earl that I confess caused me to favour it at the time. The first was that this is in a sense an enabling Bill. The noble Earl has dealt with that cogently today and there is no need to expatiate on it. However, I do not believe that your Lordships' disapprobation of a Bill of this type —a disapprobation that has been clearly voiced in all parts of the House—need be vindicated by this unusual provision which has many disadvantages.

The second reason was that your Lordships accept—or at any rate are said to accept—the convention whereby we do not vote against a statutory instrument. In my view, it is by alteration of that convention, which does not really bear much examination and which is in any case a weak convention, by deciding that your Lordships should exercise your undoubted powers to vote against subordinate legislation, that this matter is best resolved.

In saying that, I do not altogether agree with all the reasons put forward in another place for disagreeing with your Lordships' amendment. I agree that delay would be involved and that is a powerful reason in the way that it was put by the noble Baroness, Lady Young. However, I venture to disagree that it would lead to an unresolvable conflict between the two Houses. This procedure has been used before. As Erskine May states, a procedure needs to be in each case evolved to resolve any difference between the two Houses.

That was done, for example, on the pre-war India Acts when proceeding through this House by way of a Select Committee and in the other place. The problem is no more difficult than any situation where the two Houses disagree. In the end, if it cannot be resolved in any other way, a joint committee of the two Houses is appointed to argue out the matter.

The other argument on delay, even though in some respects I thought it was exaggerated in the other place, has some cogency. If some other means can be found to meet the point made by the noble Earl then, in my respectful submission, it should be used. That other means is that your Lordships should unhesitatingly, as I said, assume your Lordships' undoubted right to vote against subordinate legislation.

There are a number of reasons why that; convention is not particularly convincing. In the first place, it does not bear much constitutional sense. The proper analogy, surely, is that if your Lordships should vote against subordinate legislation it should, on analogy with the Parliament Act, be open to the other place, after the lapse of one year, to present it again for your Lordships' consideration. That is the correct constitutional analogy.

The second reason is that this is a weak convention. Your Lordships know very well that conventions of the constitution, which are far more important in our constitutional system than the legal rules, can vary considerably in strength. For example, there is the convention that has been observed for well over 150 years that noble Lords who are lay people do not interfere with a report of the Appellate Committee. Not even the noble Lord the Government Chief Whip removes his iron fist from his velvet glove to beckon forward a majority to vote down a recommendation of the Appellate Committee which is inimical, as it often can be, to the Government. Nor indeed, for that matter, do Lords of Appeal who have not heard the argument interfere with a recommendation of the Appellate Committee. That is a very powerful convention.

The reason why it is powerful appears from another convention from the other side of the Atlantic. It was a convention from the very start of the United States that the President should not enjoy more than two terms in office. That convention was observed right up to our own time. It was powerful enough to prevent President Grant standing for a third term. However, that convention did not prevent Roosevelt from standing for a third and, indeed, a fourth term. It was vindicated, as any strong convention will be, by subsequent legislative action. The United States Congress subsequently enacted legislation, as your Lordships know, that no President should enjoy more than two terms in office.

A very weak convention was the convention that when a party was defeated at the polls the government should immediately resign. That was entirely consonant with the legal theory of the constitution whereby Parliament is supreme. That was observed right up to the end of the last century. Disraeli and Gladstone both resigned on being defeated at the polls. In other words, they were following the political sovereignty of the electorate. However, in 1923, when there was a hung Parliament, Baldwin met Parliament before resigning. He was defeated in Parliament. It seems to me that if we should have, as is likely, another hung Parliament the Prime Minister of the day would be well justified in meeting Parliament before resigning. In other words, that convention, like the one in question on affirmative resolutions and subordinate legislation in general, so far as your Lordships' voting is concerned is a weak convention to be applied when it is convenient. In fact, it has not been invariably applied.

Your Lordships voted against the Rhodesia sanctions order. It was withdrawn and re-presented in a not very seriously amended form. In my respectful submission this problem that the noble Earl has so cogently identified would be far better dealt with by your Lordships asserting that you are no longer bound by a convention that does not carry any conviction; namely, not to vote against subordinate legislation.

The noble Earl, Lord Caithness, appeared to concede that when the noble Earl moved his original amendment. I hope that the Lord Privy Seal will indicate in his reply that there is no reason why, whenever it is convenient and should your Lordships wish it, your Lordships should not vote against any subordinate legislation that is presented for consideration. That seems to me far more convenient as a means of achieving what the noble Earl wishes to achieve, but I cannot at this stage—however initially attracted I was to it—vote in favour of what he proposes.

4 p.m.

Lord Butterworth

My Lords, whatever view we take, it seems clear from everything that has been said today that a convention has been developed to regulate procedure in relation to statutory instruments. Over a long period of time there has been a continuous move to prevent the chaos that would result from the creation of different forms of statutory instruments to meet particular situations. The Statutory Instruments Act 1946 made the most determined effort to introduce general provisions for statutory instruments, to promote uniformity of procedure and avert the chaos which might otherwise result.

In order to achieve this generality of practice in dealing with regulations, one of the most important rules is that while each House can, by the appropriate procedure, reject a statutory instrument, it cannot amend it except in rare circumstances where that amendment is authorised by the parent Act.

It is quite clear that power can be taken to do this. The interesting point is that it has very rarely been applied. As the noble Earl, Lord Russell, explained, there was a group of such provisions way back in 1920: the Emergency Powers Act 1920, Section 2(4) which has now been repealed; and, as the noble Earl mentioned, the Census Act 1920, Section 1(2).

It does not seem to me appropriate that this House should use a precedent which has been so rarely applied. We should this afternoon abide by the general principle. The Government have sufficiently recognised the importance of this legislation by agreeing that the regulations shall be subject to the affirmative resolution. Therefore I do not believe that we should precipitate a division of view with the other place by seeking to extend the effect of an affirmative resolution by exceptionally attempting to give both Houses the power to amend these regulations.

Baroness Seear

My Lords, there is no question whatever that we have a right to insist on this amendment. It is within the constitutional position of the House that this should be done. The special reason that we on these Benches take such a strong line on the Bill is the nature of the Bill itself and also the importance of the matter which is left to be dealt with in regulations. Therefore we believe that it is extremely important. As the noble Earl, Lord Russell said, if we are to use our amending powers properly—which is the purpose of this House—we cannot do so in a Bill which contains so little that effective amendment is almost impossible.

The noble and learned Lord, Lord Simon of Glaisdale, with his great constitutional knowledge, has made it quite clear it is within our powers to do this. As I understand it, his reason for not supporting the amendment was a purely practical one—the problem of delay. Some of us think that this ill thought out provision might be improved by some degree of delay. We have never understood why there was such a tremendous hurry to bring in student loans by October, ill thought out and ill prepared as the legislation has been.

Despite what the noble Lord, Lord Butterworth, said, I accept that in his lucid explanation the noble and learned Lord, Lord Simon, has provided us with a second line of defence of the weakness of the convention. If, contrary to what I hope, my noble friend's amendment is not accepted, I put the House on notice now that I have not the slightest doubt that we on these Benches will take advantage of the lead given by the noble and learned Lord, Lord Simon of Glaisdale, to recognise the weakness of the convention and to act accordingly when regulations come.

I am not greatly impressed by the fact that the amendment of the noble Baroness, Lady Young, was accepted, valuable though that amendment was. We must remind ourselves that it applies only to the first round of regulations. That leaves a very great deal still to be settled without parliamentary control by the exercise of executive power. Throughout recent months we have repeatedly complained about the excessive extent to which the Government use regulations where, in our view, primary legislation is required, and therefore grossly diminish parliamentary control over the Executive. That must be fought and fought again.

Lord Renton

My Lords, the statement by the noble Baroness that your Lordships have the right to insist on the amendment is one which I think needs to be qualified. True, we have the right to ask another place to think again. However, I should have thought that the constitutional position is that another place must have the last word in the matter. So long as we understand that, the noble Baroness's word "insist" might be accepted for the time being. Does she wish to intervene?

Baroness Seear

My Lords, only to say that I accept the correction from the noble Lord. I mean our right to return the amendment to the Commons for further consideration.

Lord Renton

My Lords, speaking for myself I hope that we do not ask another place to think again about this. We debated it fully when the Bill was before us on the first occasion. We have had the advantage of further opinions expressed for and against the amendment this afternoon. I should have thought that the right course for us now is to say that the Commons amendment should be accepted. I speak as one who wants the Bill. I do not wish for delay. Therefore I think that the crux of the matter is as expressed in the Commons reason that: it would unacceptably delay the implementation of the student loans scheme". I do not wish to see the scheme delayed. That is the principal reason for agreeing with the Commons—accepting their disagreement on this amendment.

However, I have listened with great interest to what the noble and learned Lord, Lord Simon, and others have said regarding what he called the weak convention of the constitution that your Lordships do not reject statutory instruments, with or without amendment—and it is rare that we have the opportunity to amend. I believe that is a convention which we should not lightly attempt to change. If it were to be changed, I think it should be changed in a more general context rather than for the purposes of this Bill.

Lord Beloff

My Lords, as some people may believe, I differ from my noble friend who has just spoken in that I have never wished to see this Bill operational. I still prefer that it should be delayed in the hope that even at the last possible moment the Government will see the folly of their ways.

On the consitutional issue now before us I would make one specific point in adhering to my general view, which I think is the view of all noble Lords, that we should as rarely as possible challenge the legislative authority of another place.

This is a very special case because when our amendments, which were considerable and important, went back to another place a proper opportunity was not given to debate them. A guillotine —a timetable —was imposed. I know from Members of another place that there was considerable objection to the way in which the Government's objections to the Lords' amendments were railroaded through. It was just another example of what we have witnessed again and again in the passage of this Bill —an extraordinary determination to push things through as rapidly as possible, where necessary in defiance of accepted conventions. Therefore it seems to me that on this occasion and for that reason we are not bound by what I would normally regard as the binding convention to agree at the first opportunity with the Commons reason.

I have only one other point to make in respect of which I crave illumination. I am not clear that there is a real distinction between the view expressed by the noble and learned Lord, Lord Simon of Glaisdale, and the amendment supported by the noble Earl, Lord Russell. The amendment does not suggest that we would engage ourselves in the arduous business of amending regulations, which in their nature would be long, complicated and so on, but merely that the House would have an opportunity to suggest that the Secretary of State amend the regulations in the light of whatever considerations had been adduced either in this House or elsewhere and brought to his notice. I cannot see that it is very different to say that we should ask to have the statutory instrument amended, and that we should, as the noble Lord, Lord Simon of Glaisdale, suggests, simply reject it outright. I should be glad to be informed on that point.

Lord Boyd-Carpenter

My Lords, we have had a long and, constitutionally, very interesting discussion on this amendment. But one curious feature will have struck a number of noble Lords.

The very interesting question of our powers in respect of statutory instruments has been raised. However, it is notable, if one looks at the Marshalled List, that it was not apparently on any such ground that another place rejected our amendment. It is stated very plainly, "The Commons disagree to this amendment for the following reason: Because it would unacceptably delay the implementation of the student loans scheme". That is the reason stated by another place for rejecting the amendment which your Lordships put into the Bill. It is therefore surely on those grounds that one ought to consider the matter.

I have a great deal of sympathy with my noble and learned friend Lord Simon of Glaisdale and his attitude to voting on statutory instruments. The present so-called constitutional position is quite unsatisfactory and will need to be reviewed. But, with respect, it does not arise today. We have before us a simple issue. Is what your Lordships considered an improvement to the Bill to be rejected because, if it remained in the Bill, it would unacceptably delay the progress of the Bill? With some Bills with which your Lordships deal the question of time is urgent. I refer to the Bills of an annual nature which have to be through if the constitutional machinery of the country is to work. That, with respect, does not apply to this measure.

I commented at an earlier stage on the apparent urgency from the Government's point of view of getting this measure through. I have frankly been puzzled. Your Lordships may recall that, so far from achieving any reduction in public expenditure, the Bill will, if it becomes law, for the first 10 years or so actually produce an increase in public expenditure. Therefore, from a public expenditure point of view, the urgency which the Government seem to attach to it seems a little difficult to follow. But the question for your Lordships is the question which the Commons posed to us. Does the urgency, real or supposed, of getting this measure into law so that it will operate this autumn counterbalance the very interesting argument as to what would be a good procedure to be followed in future?

The procedure set out in your Lordships' amendment applies beyond the time when any question of delaying the putting of the Bill into operation arises. Therefore, what the House is being asked to do, as I understand it, is, on the grounds of supposed urgency, abandon the proposals which, in the view certainly of some of us, would have made the Bill somewhat more acceptable not merely in its first phase but later on. It is therefore very much a matter for your Lordships. I shall be interested, as I am sure all noble Lords will be, to hear my noble friend the Leader of the House indicate what is the degree of urgency which makes the sacrifice of what must be assumed to be a better procedure worthwhile in the interests of saving time.

4.15 p.m.

Lord Belstead

My Lords, at the Report stage of the Bill the Government accepted the principle of an amendment which had been previously moved by my noble friend Lady Young. It provided that when the regulations were first made to establish the student loan scheme those regulations would be subject to the affirmative resolution procedure. It was a significant change to the Bill as we had received it from another place, and, understandably, it is fair for me to claim that the amendment for the affirmative resolution procedure was welcomed on all sides of the House. However, the first amendment on the Marshalled List today, on which the noble Earl, lord Russell, has moved a Motion to insist, would enable either House to vote to amend the regulations. The Secretary of State would then have to prepare new regulations and bring them back for approval again.

Under the affirmative procedure, if either House were to vote against regulations—that is as far as I am prepared to go this afternoon in respect of the noble and learned Lord, Lord Simon of Glaisdale—the Secretary of State would also have to take the regulations away, return with fresh regulations and seek approval once more. And so to that extent the first amendment does not add a very great deal to the Bill. But I think that the noble and learned Lord, Lord Simon of Glaisdale, was absolutely correct to say that the amendment is a most unusual provision. It would add a serious complication. Under the amendment, what is to happen if one House proposes an amendment which conflicts with an amendment proposed by the other House? Whose views would take precedence?

In moving that the House should insist on the amendment the noble Earl referred to Erskine May. What the noble Earl did not say was that Erskine May makes it quite clear that some kind of machinery would have to be improvised to resolve such disagreement between the two Houses. There is a further problem. The amendment imposes a delay of 40 days during which the draft regulations can be amended. But, as my noble friend Lady Young quite rightly said, the procedure goes a good deal further. If an amendment were to be passed during the 40-day period, fresh regulations must be presented, another 40-day period would begin and more amendments could be made.

Therefore, I put it to your Lordships that Amendment No. 1 has constitutional implications because the process of amendment and representation could continue indefinitely. The noble and learned Lord, Lord Simon of Glaisdale, advised in his most interesting speech that if put to it the two Houses could sort out the matter. However, I am bound to say that the noble Earl, Lord Russell, in moving the amendment has not offered any machinery for resolving the problem of conflicting amendments. My response to my noble friend Lord Boyd-Carpenter is that it is hardly surprising that another place has given "unacceptable delay" as its reason for disagreement, although I should say that it could mean the prospect of almost indefinite delay.

My noble friend Lord Beloff complained that the Lords' amendments were, so to speak, railroaded through the other place. As I understand it, that was one of the grounds why he felt he would wish to vote for the amendment. I should point out to your Lordships that as six hours were given for consideration of the Lords' amendments in another place—and I am happy to say that 14 of them were accepted —and this particular amendment was debated for close on an hour, I do not exactly agree with my noble friend.

The Government have tried to be as reasonable as possible in the matter. We have shown our willingness to agree to affirmative resolution and that is now on the face of the Bill. It was most warmly welcomed by your Lordships. But this amendment could carry it with the very unwelcome risk of conflict between the two Houses. That is something we should not be in the business of provoking during the final stages of the Bill.

I therefore hope that the noble Earl will not press his Motion (2A) to insist upon Amendment No. 1. However, in the event that he does so, I must ask your Lordships to oppose the Motion.

Lord Cledwyn of Penrhos

My Lords, before the noble Lord sits down, I think that it would be of interest to the House if he could say whether he believes that the delay which another place has described as "unacceptable" would in fact be in breach of the 1911 Act as amended by the 1948 Act?

Lord Belstead

My Lords, I do not think that either I or another place has suggested any such thing. In answering my noble friend Lord Boyd-Carpenter I merely put my own construction on the words "unacceptable delay", which have been used by another place.

Earl Russell

My Lords, we have had a very interesting and excellent debate, to which I have listened with great care. The noble Lord, Lord Boyd-Carpenter, put his finger on the key issue: is this to be regarded as "unacceptable delay" and, if so, for what reason? I entirely accept what the Secretary of State said. Since the Bill has been through both Houses, the student loans scheme should come into operation at the earliest practical moment. However, in my view the adjective contained in that statement deserves weight as well as the noun. The question as to what is the earliest moment which is practical is one on which others as well as the Secretary of State may be entitled to an opinion.

The Department of Education and Science is a department which has shown some signs over the past two or three years of being inclined to be in a hurry. If we reflect on some of the other measures emanating from that department which have been before the Chamber, they have on occasion been measures where the department itself might have benefited from some delay. Delay is not always automatically bad if it can lead to an improvement in the measures presented so as to make them more capable of working. On reading the Secretary of State's remarks on this amendment made in another place, I was a little surprised that he alluded to "this i unnecessary and wasteful process of amendment". I shall not enlarge upon those words, but I shall say that, in deciding whether an amendment is either unnecessary or wasteful, the Secretary of State was setting himself up as judge and jury in his own court. Of course he thinks that his Bill is properly drafted; indeed, he would not have put it forward if he had not thought so. But it is a question upon which the ultimate authority lies with the two Houses of Parliament.

The noble Lord the Leader of the House called me to task for not quoting the words of Erskine May: namely, that, where the Houses disagree, machinery must be evolved for reconciling the differences. I used those words when I originally moved the amendment. I refrained from so doing on this occasion simply out of a desire not to waste your Lordships' time by repeating myself I agree that there must be a machinery for reconciling the differences, but, as I understand it, the procedure is no different from that used on any occasion when this House or another place chooses to insist upon an amendment. Procedure exists for dealing with the situation. If one says that one cannot have two Houses expressing opinions because they might disagree, in the end that is either a nugatory argument or an argument for single chamber government, which I would regret.

I listened with a great deal of care and interest to the remarks made by the noble and learned Lord, Lord Simon of Glaisdale. I entirely agree with what he said about a weak convention. I think that the time will come when the convention of not voting against statutory instruments will have to be broken, as indeed it has been 20 times since 1968. It is a convention which has already been very much honoured in the breach. Since 23rd November last I have wondered a great deal whether that was the correct route to use on this occasion. I have been in two minds about that for some time. What made me decide, tentatively I admit, to prefer this procedure which I am now defending, is the fact that very often this House makes some of its most valuable contributions by changing small points. The House has a very good eye for small points.

The procedure for voting against the whole body of regulations because you want to change small items in them is inevitably a cumbersome one. I thought—possibly wrongly; but the view is not an indefensible one—that the procedure suggested in the amendment had the advantage of being rather less cumbersome and of producing rather less reproach to regulations which after all might be 95 per cent. competently drafted and questionable in only 5 per cent. I should be sorry to see a situation where we could not improve the 5 per cent. because we did not want to cast too much doubt on the 95 per cent. The noble Lord, Lord Butterworth, said that this was a rare precedent. It is; it is a rare Bill. If one thing matters to me more than another in all this it is the hope that it will remain so.

As I said, I listened with a great deal of care to all the remarks which have been made. However, I have not heard anything which makes me think that I should change my mind. Therefore, I ask the House to insist on their amendment to which the Commons have disagreed.

4.28 p.m.

The Chairman of Committees

My Lords, the Question is that the House do insist upon their Amendment No. 1 to which the Commons have disagreed for reason numbered 2?

Their Lordships divided: Contents, 68; Not-Contents, 119.

DIVISION NO. 1
CONTENTS
Addington, L. Kilmarnock, L.
Adrian, L. Kirkwood, L.
Airedale, L. Lawrence, L.
Aylestone, L. Leatherland, L.
Beloff, L. [Teller.] Lloyd of Kilgerran, L.
Blackstone, B. Mais, L.
Blease, L. Meston, L.
Bonham-Carter, L. Molloy, L.
Bruce of Donington, L. Monson, L.
Butterfield, L. Mulley, L.
Carter, L. Nicol, B.
Cobbold, L. Phillips, B.
Dacre of Glanton, L. Porritt, L.
David, B. Ritchie of Dundee, L.
Davies of Penrhys, L. Rochester, L.
Donaldson of Kingsbridge, L. Russell, E.
Ely, M. Russell of Liverpool, L.
Ezra, L. Sainsbury, L.
Falkland, V. Seear, B.
Flowers, L. Shaughnessy, L.
Foot, L. Stedman, B.
Galpem, L. Stoddart of Swindon, L.
Gladwyn, L. Strabolgi, L.
Graham of Edmonton, L. Thomson of Monifieth, L.
Grey, E. Tordoff, L. [Teller.]
Hampton, L. Turner of Camden, B.
Hanworth, V. Wallace of Coslany, L.
Harris of Greenwich, L. Walston, L.
Hayter, L. Wedderbum of Charlton, L.
Hunt, L. Wigoder, L.
Hutchinson of Lullington, L. Wilberforce, L.
Jeger, B. Willis, L.
Jenkins of Putney, L. Winchilsea and Nottingham, E.
Kearton, L.
Kilbracken, L.
NOT-CONTENTS
Airey of Abingdon, B. Elliott of Morpeth, L.
Aldington, L. Erroll of Hale, L.
Alexander of Tunis, E. Fanshawe of Richmond, L.
Allerton, L. Ferrers, E.
Annaly, L. Forbes, L.
Arran, E. Eraser of Kilmorack, L.
Balfour, E. Gainford, L.
Belhaven and Stenton, L. Gardner of Parkes, B.
Bellwin, L. Geddes, L.
Belstead, L. Gray of Contin, L.
Blatch, B. Gridley, L.
Blyth, L. Havers, L.
Boardman, L. Henderson of Brompton, L.
Brabazon of Tara, L. Henley, L.
Brougham and Vaux, L. Hesketh, L.
Butterworth, L. Hirshfield, L.
Campbell of Alloway, L. Hives, L.
Campbell of Croy, L. Hood, V.
Carnegy of Lour, B. Hooper, B.
Carnock, L. Hylton-Foster, B.
Cockfield, L. Johnston of Rockport, L.
Colville of Culross, V. Joseph, L.
Constantine of Stanmore, L. Kimball, L.
Cottesloe, L. Lauderdale, E.
Cox, B. Liverpool, E.
Crickhowell, L. Long, V.
Cullen of Ashbourne, L. Lyell, L.
Daventry, V. McColl of Dulwich, L.
Davidson, V. [Teller.] Mackay of Clashfem, L.
Denham, L. [Teller.] Macleod of Borve, B.
Eden of Winton, L. Malmesbury, E.
Elibank, L. Manton, L.
Ellenborough, L. Margadale, L.
Elliot of Harwood, B. Marsh, L.
Massereene and Ferrard, V. Sempill, Ly.
Merrivale, L. Simon of Glaisdale, L.
Mersey, V. Skelmersdale, L.
Milverton, L. Strathcarron, L.
Montgomery of Alamein, V. Strathclyde, L.
Mountevans, L. Strathcona and Mount Royal, L.
Munster, E.
Murton of Lindisfame, L. Strathmore and Kinghome, E.
Nathan, L.
Nelson E. Strathspey, L.
Norfolk, D. Sudeley, L.
Norrie, L. Swansea, L.
Nugent of Guildford, L. Swinton, E.
Onslow, E. Terrington, L.
Orkney, E. Teviot, L.
Orr-Ewing, L. Thomas of Gwydir, L.
Pender. L. Tranmire, L.
Portsmouth, E. Trefgame, L.
Pym, L. Trumpington, B.
Reay, L. Ullswater, V.
Renton, L. Vaux of Harrowden, L.
Renwick, L. Vinson, L.
Richardson, L. Westbury, L.
Romney, E. Whitelaw, V.
St. Davids, V. Wise, L.
Sanderson of Bowden, L. Young, B.
Selkirk, E.

Resolved in the negative, and Motion disagreed to accordingly.

4.38 p.m.

Lord Belstead

My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 2.

On Question, Motion agreed to.

LORDS AMENDMENT

3 Schedule 2, page 3, line 40, at end insert: "(1A) No student in receipt of a loan payable in accordance with regulations made under this paragraph shall be ineligible for Housing Benefit during his period as a student whether as a consequence of such regulations or of the provisions of or regulations made under this or any other enactment."

4 The Commons disagreed to this amendment for the following reason—

Because it involves a charge on the public revenue and the Commons do not offer any further reasons, trusting that the above reason may be deemed sufficient.

Lord Belstead

My Lords, I beg to move that the House do not insist on their Amendment No. 3 to which the Commons have disagreed for the reason numbered 4. With your Lordships' agreement, at the same time I should like to speak to Amendment No. 7 with reason numbered 8.

The amendments passed by your Lordships at Report stage of the Bill would prevent students in receipt of a loan or attending a post-graduate course being disentitled from housing benefit. The reason for the other place disagreeing to both the amendments—that is, Amendments Nos. 3 and 7 —is that of privilege. Because another place has asserted its financial privilege I believe it would be wrong for your Lordships' House to insist on these amendments.

I trust that your Lordships will acquit me of discourtesy if I advance no other reason in support of the Motion than that I am now making. In saying that I do not wish to prevent any noble Lord discussing the subject of the amendments, but our decision at the end of the debate should be reached on one ground alone. That ground can best be set out by quoting the Companion to Standing Orders, which reads on page 122: If the Commons disagree to a Lords amendment which infringes their financial privileges, the disagreement is made on the ground of privilege alone …. In such cases the Lords do not insist on their amendment". Your Lordships will recall that when these amendments were discussed on Report my noble friend Lord Caithness advanced arguments against them and the House rejected those arguments. I wish to emphasise that your Lordships' House was entirely within its rights to do so. Indeed the Companion to the Standing Orders also makes it quite clear that each House is the guardian of its own privileges. It alone may invoke those privileges, and until either House does so the other House is free to act as it thinks fit.

However, on this occasion another place has now invoked its financial privilege. Therefore, although I am advising your Lordships that these two amendments should now be decided on the single point of financial privilege asserted by another place, I firmly believe that, procedurally, your Lordships' House has exercised its powers hitherto absolutely correctly. Your Lordships have asked another place to think again about a provision in this Bill and another place has done so. Members in another place have confirmed their original decision and have concluded that this is an area of policy which, by long constitutional practice, belongs to them alone. I beg to move.

Moved, That the House do not insist on their Amendment No. 3, to which the Commons have disagreed for the reason numbered 4.—(Lord Belstead.)

Lord Adrian

My Lords, I do not propose to question the decision of Mr. Speaker on the two amendments concerning housing benefit. I fully understand that his decision was in accordance with precedent. However, I am relieved to discover that your Lordships' House did not act beyond its appropriate powers in attempting to prevent the removal of housing benefit for students. Nevertheless your Lordships' House was persuaded to exert its influence in order to retain the existing entitlement to housing benefit for students and for graduate students. One may wonder how wise it was to prevent another place from reconsidering the issues in the light of your Lordships' arguments and their decision. At the very least I believe it looked as if the Government were fearful that the arguments of your Lordships might have carried weight in another place as well as here. However, we shall never know whether that is the case because another place has not been allowed to reconsider the issue.

One should always hesitate before accusing Her Majesty's Government of high-handedness. However, I must confess to hesitating less and less in respect of the present Government. But what other accusation can one make of a government who deny another place the right to discuss and reject arguments that have been successfully made in this House?

The wider world will not take great interest in constitutional and technical niceties but it will look more directly at the consequences of this unhappy incident. Your Lordships' amendments on housing benefit gave the Government the opportunity to enlarge their loans scheme. At present it is one which in due course will relieve the Government and better-off parents of a large part of their obligation to help with student maintenance. If the Government had accepted your Lordships' amendments, the loans proposals would have continued to do that, but there would also have been continuing specific help for students who had to live in expensive accommodation. In respect of the last rejected amendment, there would also have been help for graduate students who are not eligible for the loans scheme.

The Government have now made it plain that their principal aim is to diminish the parental obligation for maintenance and to transfer a substantial part of the parental contribution as well as the Government's maintenance grant to graduates by imposing a charge on their future earnings. Indeed the Government see no reason to continue with the existing targeted housing benefit for graduate students, or indeed for any students whose accommodation is costly. It is to be discontinued in favour of the more meagre resources provided by the access funds. However, the doubling of the access funds will make a partial contribution to that problem.

Some 20 years ago this country was considered to be one which had an outstandingly well trained post doctoral research manpower. A substantial number of excellent industrial research facilities was set up in the UK. This is or was especially true in the pharmaceutical industry where major companies are frequently multinationals. Today I am afraid that the perception of that industry is one of increasing difficulty in recruiting research staff of adequate calibre. That is certainly in accordance with the experience of universities which have found that fewer able students now want to train for research careers. Other countries are now seen as better bets as regards providing new industrial laboratories.

Students themselves, and perhaps equally importantly industry, dependent as it is on well-trained and high calibre research staff, will not misunderstand the Government's thinking and the hidden and perhaps partly subconscious thoughts that have informed so much of their advocacy of this Bill. It will be seen that the Government's support of increased access—we have to realise that is only relatively recent —is only halfhearted. They will be the end but not the means. It appears that the Government are more concerned with and are doing more to help the finances of the children of social groups one, two and three. They appear to consider that graduate students, who will be tomorrow's research workers and tomorrow's university staff, can fend for themselves on the grounds that they had better get used now to the poor rewards that they will receive in the future.

4.45 p.m.

Lord Boyd-Carpenter

My Lords, it is beyond dispute that where Members of another place claim privilege because an amendment carried by your Lordships' House imposes a charge, their word has to stand. However, I rise simply to ask my noble friend to give an explanation of the circumstances in which that process has occurred in this case. As I understand it, housing benefit is still payable to students and will remain so, at least until this Bill becomes law. If that is so, it does not seem to me self-evident that the action of your Lordships' House in taking out of the Bill something which takes away that right necessarily impinges upon the privilege of the House of Commons.

As I understand it, the effect of your Lordships' amendment is simply to retain the status quo and not to impose a charge where none exists at present. I have not had time to look up the precedents and it may well be the case that my noble friend can demonstrate that to take away something which otherwise was going to reduce a charge amounts to imposing a charge. However, I would say to my noble friend that that is not self-evident. As I understand it, all that your Lordships' amendment sought to do was to preserve the status quo and not to impose a new and additional charge. If that is correct, perhaps my noble friend can tell me whether there is any precedent for that situation being treated as the basis of a claim for House of Commons privilege.

Lord Henderson of Brompton

My Lords, I wish to speak briefly at this stage partly because of the fact that the propriety of proceedings in another place has been questioned. First, I should say that I entirely agree with the substance of the speech made by my noble friend Lord Adrian. I voted with the majority in the House in the clear conviction that the House had a right to vote as it did. However, I must unfortunately disagree with the first remarks of my noble friend Lord Adrian when he blamed the Government for disallowing discussion on this subject in the House of Commons. It had nothing to do with the Government. It was the Speaker's decision entirely and the Speaker's decisions cannot be questioned.

I point out to the noble Lord, Lord Boyd-Carpenter, that in Commons Hansard of 4th April, at col. 1261, the Speaker reconsidered his decision and gave the reasons why he stood by his decision. I do not need to repeat the reasons. They are there for all to read. I do not wish to defend the Speaker in any way but his decision to invoke Standing Order No. 76 cannot be challenged in this House. In general it is not appropriate for either House to question the proceedings in the other place.

Lord Renton

My Lords, before the noble Lord sits down, can he confirm my recollection that any question of privilege of the kind that we are discussing is a matter for the decision of the Speaker and he has the last word?

Lord Henderson of Brompton

My Lords, yes. I entirely agree with what the noble Lord has said. He has reiterated what I have just said.

Perhaps I may take the opportunity to say a very brief word about the discussion on the previous amendment, in which I failed to intervene. However, I find it relevant now. The noble Lord, Lord Renton, said that it was a convention that in an exchange between these two Houses the House of Commons had the last word. I know of no such convention.

I also wish to say the same of the speech of the noble Lord, Lord Beloff. He indicated that it was normally the case and amounted to a convention that this House agreed with the House of Commons when There was an exchange between the two Houses. That is not correct. I may add that I have reservations about all of the speeches in the previous discussion except those of the noble Baroness, Lady Young, and the noble Lord the Leader of the House. I agreed with every word they said.

Lord Adrian

My Lords, before the noble Lord sits down, perhaps I may say that he has just very kindly put me in excellent company since he had reservations about my speech and all the other speeches. I was aware of the point that he made and I apologise if I made any implications about the Speaker. I did not intend to do so.

Lond Peston

My Lords, perhaps I may thank the noble Lord the Leader of the House for his original statement on these matters. In particular I thank him for reassuring the House that we followed the correct procedure at all times in dealing with the amendment. As the author of the amendment, I was always worried about whether the amendment was procedurally correct. I was amazed that at no point did it turn out to be procedurally incorrect and I was delighted that we accepted it.

I do not suggest that we should go against the Speaker's ruling. It would be entirely wrong for your Lordships to do so. However, I should like to make one or two other points which may be helpful. One is that the regulations dealing with the eligibility of students, and particularly postgraduate students, for housing benefit are not part of the Bill. They will be introduced as regulations in the ordinary way. Therefore there will be an opportunity to debate them. The suggestion that the other place has been prevented from debating these matters is incorrect. Perhaps the noble Lord the Leader of the House, who knows the rules, can confirm that.

My second point—and I say this not entirely to make mischief—is that the Government are not obliged even at this late stage to exclude students, and particularly postgraduate students, from eligibility for housing benefit. We have passed our amendment. The other place was not prevented from knowing what that amendment was and is perfectly well aware of our views, and of most enlightened opinion on the matter. It is still possible for the Government to decide not to go along this route. Perhaps the Government will listen to the cogent remarks of the noble Lord, Lord Adrian, in particular with regard to postgraduate students, for whom the matter is of overwhelming significance. Even at this stage, and even if they continue to follow the line that they say they are following, it would be possible for the Government not to proceed with the proposed ineligibility regulations, particularly regarding postgraduate students.

I do not at this point accept that all is lost. As the noble Lord, Lord Boyd-Carpenter, said, even on the question of the Bill itself the Government do not have to race ahead. Even if the Bill becomes law the Government could still reconsider. I therefore conclude by saying that this is an excellent example of your Lordships' House doing precisely the job which justifies its existence—namely, exercising its power to clarify an issue, to put the arguments clearly and to carry an amendment on the issue under consideration. Honourable Members and right honourable Members in the other place were given every opportunity to learn our views. They will still have the opportunity to debate them. In particular, the Government still have the opportunity to see sense on the matter and not to proceed further.

I have taken the opportunity to add a few words to the debate. I should like to end by saying that of course one must accept the Speaker's ruling and that is that.

Baroness Young

My Lords, I should simply like to add my support for the last remark of the noble Lord, Lord Peston, regarding the importance of standing by the ruling of Mr. Speaker. Were your Lordships' House to question that ruling not only should we find ourselves constitutionally very incorrect but it would also make the workings of Parliament impossible were we to conduct ourselves in that way.

I listened with great interest to my noble friend Lord Boyd-Carpenter, who made a rather beguiling speech setting out what he has always believed to be the substance of the matter. For my own part I believe that in view of the Speaker's ruling it would be quite improper to discuss the substance of the amendment. I do not intend to do so. I strongly suspect that my noble friend the Leader of the House will feel that he cannot do so either.

I was immensely flattered that the noble Lord, Lord Henderson, felt that my earlier remarks were correct. However, I believe that there are certain constitutional issues which it is extremely important that we in this House should observe. Tempting as it is to stray outside those constitutional procedures it would be a mistake to do so. It would be seen not only to be wrong constitutionally but also to make relationships between your Lordships' House and another place impossible in the future. For that reason I recognise that we should not insist on the amendment.

Earl Russell

My Lords, I hasten to reassure the noble Baroness, Lady Young, and the noble Lord, Lord Henderson of Brompton, that I should not for one moment dream of questioning the Speaker's ruling, either on grounds of authority or on grounds of competence.

I am interested chiefly in understanding precisely what it is that Mr. Speaker has said in order not to fall foul of any such ruling in future. Like the noble Lord, Lord Boyd-Carpenter, I had believed that we were covered by the principle of Erskine May that one does not require a new money resolution to continue an existing charge.

Lord Henderson of Brompton

My Lords, perhaps the noble Earl will give way. Perhaps I can discourage him from proceeding with what appears to be criticism of the Speaker of another place. I believe that it is highly unwise to do so. I should hate to move that anybody should be no longer heard in this House but I should have thought that it was not advisable to criticise the Speaker. I beg the noble Earl to desist from doing so.

Lord Russell

My Lords, perhaps I may reassure the noble Lord most urgently that my next sentence was going to be in full agreement with Mr. Speaker, as was everything else that I intended to say. I was merely interested in what exactly it was that Mr. Speaker said. He said that Lords amendments were not covered by the money resolution in respect of the Bill. He also said that they would have been out of order if they had been moved in another place. That is rather more far-reaching than the simple matter of the ordinary Commons financial privilege, which is a door on which we may knock and another place may open if it chooses.

If I understand Mr. Speaker right —and I hope to be put right if I do not —he said that we were doing this on the wrong Bill. If that is so, I simply wish to say that I regret that it was so and to ask whether I am correct in understanding that what Mr. Speaker has said is not meant to discourage us from raising the matter in another place where it is covered by an appropriate money resolution.

Before leaving the subject, I should like to say that this matter will come before us again. I regret the policy that the Government are following. They have their sums wrong. They think that they are increasing the amount of money available for student support. In fact, they are reducing it.

5 p.m.

Lord Harmar-Nicholls

My Lords, is there any way of preventing this from happening again in the future? The problem that we are now discussing and upon which my noble friend the Leader of the House based his speech in moving the amendment arose from the fact that the Bill started in this House and we had no way of knowing what the reaction of the Speaker and his advisers would be.

I agree with the noble Lord, Lord Peston. He said that he had his doubts as to whether we were within our rights when we discussed the matter and I must confess that I did too. Is there no way that my noble friend can ensure that on similar occasions in the future, when a Bill starts in this House and we do not have the benefit of Mr. Speaker's decision because he is not here, we avoid the risk of a possible clash between the two Houses?

Lord Simon of Glaisdale

My Lords, I find myself in entire agreement on the substance of what your Lordships, including my noble friend Lord Adrian, did at Report stage with regard to graduate students. However, it seems to me quite unarguable that the decision of the Speaker on whether to apply a standing order of another place cannot possibly be questioned in your Lordships' House.

I merely add that there is a certain amount of euphemism in this matter. The noble Lord the Lord Privy Seal talked of asking the other place to think again as we often do. But it is no such thing. The decision is purely that of the Government. If they had wished to accept my noble friend's amendment, the Government could perfectly well have tabled a supplementary financial resolution.

In these circumstances it is pure euphemism to speak of the other place being asked to think again, particularly in this case when it was given no opportunity to express any view at all. It is the Government who make the decison and it would be very much better for constitutional reality if we recognised that.

Lord Belstead

My Lords, before briefly replying to the debate, I should like to refer once again to the right of your Lordships' House to ask another place —if I may use the expression after the speech of the noble and learned Lord —to think again. Your Lordships do that on many Bills and, as I said on the first amendment, a good many amendments to the Bill have been accepted by the House of Commons. After the speech of the noble Lord, Lord Adrian, I felt slightly embarrassed. Perhaps I sounded a little pompous when I spoke at the beginning of the exchange talking about the procedural rectitude of this House, but I thought that I should put on record that my understanding and the advice that I received are that we have done everything right, even though life has not been made easy for the Government. It is our constitutional duty to revise and therefore to send amendments back to another place.

However, the Commons has now disagreed with Amendments Nos. 3 and 7 on the grounds of financial privilege. My noble friend Lord Boyd-Carpenter asked if I would explain the circumstances of the claim for financial privilege. I must not attempt to look behind the Speaker's ruling. I simple record that, at col 1261 of the Commons Hansard of 4th April, Mr. Speaker reiterated that the ground for disagreement was that both amendments are not covered by the money resolution in respect of the Bill. In the face of that claim of financial privilege, our Companion says that the Lords do not insist on their amendment. I therefore ask noble Lords not to insist on Amendment No. 3, which the Commons have disagreed to for the reason numbered 4.

On Question, Motion agreed to.

LORDS AMENDMENT

5 Schedule 2, page 4, line 10, at end insert: "(4) Regulations made under this paragraph shall allow special conditions to be set in respect of repayment of loans for disabled students or graduates."

6 The Commons disgreed to this amendment but proposed the following amendment in lieu thereof—

Page 3, line 40, at end insert — "(B) Regulations under sub-paragraph (1)(b) above shall make such separate provisions as the Secretary of State considers appropriate with respect to the repayment of loans by borrowers who are disabled."
Baroness Blatch

My Lords, I beg to move that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 6 in lieu thereof.

The amendment which left this House was disagreed to in another place. However, those in another place have proposed a slightly different amendment which has much the same effect. This is a government amendment. The Government accept the principle of the amendment made at Third Reading in this House, and their alternative is essentially tidying up to ensure that the change to the Bill more effectively expresses noble Lords' intentions.

Both amendments are intended to give the force of primary legislation to the requirement that disabled people repaying loans should have their particular circumstances considered. My right honourable friend explained in another place that there are weaknesses in the drafting of the amendment inserted by this House. The government amendment rectifies those faults. The original amendment did not, for example, clearly impose a duty on the Secretary of State, although that was what noble Lords no doubt intended, and the government amendment does so. The government amendment also removes the reference to students who will not be repaying loans and substitutes the reference to borrowers. It makes clear that it is the regulations themselves which should contain that separate provision for the disabled.

The Government have already announced on 19th March that there will be special repayment arrangements for disabled borrowers. Those arrangements take the form of a disregard of disability-related benefits for the purpose of assessing a disabled graduate's income for deferment.

That provision will be implemented under the government amendment. It will be included in regulations subject initially to the affirmative resolution procedure. The amendment is therefore a safeguard ensuring the continued provision of special arrangements but not necessarily identical ones.

Moved, That the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 6 in lieu thereof.—(Baroness Blatch.)

Lord Henderson of Brompton

My Lords, perhaps I may express a word of gratitude to the noble Baroness for what she has said. I entirely agree that the form of words which the Government propose and which are now before the House are an improvement on the form of words which I moved in this House. I am grateful to the Government for acceding to the amendment and improving on its wording.

Perhaps I may ask one question. I regret that I have not given the noble Baroness notice, but the matter was raised in the House by, I think, the noble Earl, Lord Russell. Will the Government consider making provision in the regulations for those who are subsequently disabled? When they are graduates and subsequently become disabled, it may be very hard for them to repay the loan. That provision should be considered by the Government and, if possible, incorporated in the amendment which covers the special conditions for disabled students regarding repayment of their loans.

Baroness Phillips

My Lords, perhaps I may first say that my remarks are not intended to reflect on the other place, the Speaker or anyone else. I wish no discourtesy to the other place. But I also want my remarks on record. It seems that one cannot make even a simple speech now without being accused of discourtesy to the other place. I wish that those in the other place were as careful about what they say about this Chamber. I read Hansard and no doubt we could challenge them at some time, but that too would probably be out of order.

I merely want to ask the Minister to explain what is different about the amendment put forward by the Government which they have rewritten because it concerns money. Is there any reason why the other one could not have been rewritten and presented by the Government?

Lord Addington

My Lords, I am very glad that the Government have at least accepted the principle behind the amendment that was agreed by this House. I am also pleased that they have now decided to take into account the great variety of students and of repayment systems. I hope that any further and subsequent consideration of the Bill and its consequences will take into account that one does not necessarily have to be disabled to receive such special consideration. I hope this means that other aspects of the Bill will be considered in a wide and open manner.

Baroness Blatch

My Lords, I am grateful for most of the comments that have been made in this short discussion. Perhaps I may first answer the query of the noble Baroness. I gave two reasons for the minor but important changes. First, a requirement is put very specifically on the Secretary of State each year to carry out the requirement to give special consideration. Secondly, the original amendment was rather restrictive in that it referred only to students. It is important to refer to borrowers who may be disabled. That simply widens the category of people. I hope that the noble Lord, Lord Henderson, accepts that these are tidying up changes.

With regard to the noble Lord's specific question about graduates who become disabled, I am assured that they will receive special consideration. I believe that the spirit, and specific objectives, of the original amendment of the noble Lord, Lord Henderson, have been met by this amendment.

I should like to assure the House that the Government are committed to including in regulations special arrangements for repayment by disabled people. We accept the concern that specific reference should be made to that on the face of the Bill. Therefore we are willing to comply with the intention behind the amendment passed in this Chamber, subject only to the minor changes that I have outlined.

I commend the Government's amendment to the House. In the light of those comments I hope that the noble Lord, Lord Henderson, will also accept it.

On Question, Motion agreed to.

LORDS AMENDMENT

7 Schedule 2, page 4, line 10, at end insert: "(4) No student attending a course of supervision in connection with a postgraduate degree who is for any period of such study not in receipt of a loan payable in accordance with regulations made under sub-paragraph (1) above shall be ineligible for Housing Benefit during that period whether as a consequence of such regulations or of the provisions of or regulations made under this or other enactment."

8 The Commons disagreed to this amendment for the following reason —

Because it involves a charge on the public revenue and the Commons do not offer any further reason, trusting that the above reason may be deemed sufficient.

Lord Belstead

My Lords, I beg to move formally that the House do not insist on their Amendment No. 7.

Moved, That the House do not insist on their Amendment No. 7 to which the Commons have disagreed for the reason numbered 8.—[Lord Belstead).

On Question, Motion agreed to.