Government's Legislative Performance

HL Deb 11 December 1991 vol 533 cc740-72

3.9 p.m.

Lord Jenkins of Hillhead rose to call attention to the Government's legislative performance in this Parliament; and to move for Papers.

The noble Lord said: My Lords, this Parliament is now certain to be the longest Parliament since 1945, with the sole exception of that of 1959, which the noble Lord, Lord Home of the Hirsel, seeing no previous opportunity of avoiding a major defeat, wisely allowed to run to within four weeks of its legal limit and then lost only by a sliver. As I intend to make a fairly controversial speech by your Lordships' standards perhaps I may begin on a non-controversial note and say how much we have missed the noble Lord, Lord Home, from this place over the past year, and send him a message of affection and greetings.

The noble Lord went to the limit of time, but he did not haver and hover about an election in the somewhat undignified way that Mr. Major did in the summer and autumn of this year, although I suppose it could be argued that he was not doing much more than following a precedent which the noble Lord, Lord Callaghan, had set at the same season of 1978. The noble Lord, Lord Home, made his intentions clear in the early spring of 1964, so there was no argument after that.

What, however, there is in common between his Government and that of Mr. Major is that in both cases there had been a change of Prime Minister but not of party for the last third of the Parliament. That has two effects. First, it makes the new Prime Minister quite keen to enjoy his office for a little time. It was famously said that it is a damned fine thing to be even if it lasts for only two months. But most occupants of the office coming to it afresh think it would be better if it lasted for two years or perhaps even 10 years, though it is generally a mistake to go longer than that. The second effect is that it tends, the wish here perhaps being father to the thought, to cast a miasma of forgetfulness over the first two-thirds of the Parliament when the previous Prime Minister held sway.

Part of the object of this Motion is to get behind that miasma and to look at the legislative record as a whole of this long Parliament, for such it is. We must, today of all days, recognise that Mr. Major is not Mrs. Thatcher, and give thanks for the fact that, while there is room for great doubt about his negotiating priorities, to which we shall come later in the afternoon, he has at least the benefit of some friends in Europe and of a temperament which has enabled him to avoid the petulant histrionics of last autumn in Rome.

Nonetheless when we come to look at the legislative record of this Parliament we cannot pretend that it began not in June 1987 but in November 1990, and we cannot forget that it was broadly the same Ministers, perhaps a little reshuffled—like the noble Lord the Leader of the House—and the same parliamentary majority which supinely tramped through the Lobbies of the other place—less reliably here, I am glad to say, in spite of the best efforts of the noble Lord, Lord Denham, and his successor—in order to put upon the statute book those triumphs of sagacious statesmanship, the Local Government Finance Act 1988—the poll tax in other words—the Broadcasting Act, the Football Spectators Act and the War Crimes Act.

It is a record of almost unbelievable folly and I cannot help noticing with regret, for I have a good deal of affection for that department over which I twice presided, that a high proportion of the foolishness emanated from, although did not, I think, originate in, the Home Office. I read that there is currently a Whips' Office joke that the worst job in the Government is always that which Mr. Kenneth Baker did last. I must say to the noble Lord the Leader of the House that he, with his innate sense of fairness, did his best to make it apply for once to the job which Mr. Baker is going to do next. But let us start with the measure which was not a Home Office responsibility—the poll tax.

I can think of no other example in British parliamentary history, post-1832 at any rate—I neither need nor wish to exaggerate my case—when the Government have repealed in the course of the same Parliament their own major legislative measure of the Parliament, the flagship measure as it was called, with perhaps appropriate echoes of the "Titanic", at an earlier stage. When we had alternating governments in the 1960s and 1970s there used to be a good deal of concern, which I shared quite strongly, about the uncertainty caused by successive governments and successive Parliaments repealing the measures of their predecessors. It happened with the nationalisation of steel. It happened with pensions schemes. It happened with various bodies given different names and new offices to deal with prices and incomes; and rather a farce it made of the theory of consistent government, within the framework of which business and individuals could get on with their own jobs with certainty. But to have complete reversal from the same party within the same Parliament introduces an entirely new dimension of turbulence.

What have been the costs of this farcical excursion? Is the figure £8 billion or £10 billion? It may even be £15 billion. If the Government do not like the bandying about of figures—those are very large figures—they have a plain duty, which is to publish a White Paper setting out a comprehensive official—official, please, not ministerial—tabulation of the total cost of the exercise. I guarantee that that will not happen, for the most obvious of reasons. What is certain however is that if anyone in local government had been able to pursue their dogmas with a tenth of the reckless determination of the former Prime Minister and her accomplices, a few of them dogmatic but most of them merely feeble, they would have been surcharged to and over the edge of personal bankruptcy.

Then we come to the Broadcasting Act. We all know that under it the system of awarding contracts has defied reason. Some companies have been penalised for bidding too high; some have been penalised for bidding too low. Some have won rich provinces to exploit for practically no money; others have paid so much as gravely to weaken their financial strength and the prospect of their providing good programmes. The results have been indefensible and even the former Prime Minister has apologised. Yet the Bill was driven through. The experience with those two Bills in particular greatly increases the scepticism of some of us when we hear arguments in a different context about the need to preserve the supreme, unfettered sovereignty of an independent British Parliament. The sovereignty is, in practice, much more that of the Government Whips Office operating under the instructions of the Executive. If the House of Commons will pass those two Bills, it will pass anything that it is told to pass.

Before I leave the broadcasting issue, there is one further point which makes it even worse. There is widespread appreciation in other countries across most of the developed world that one of the things at which Britain has been outstandingly good, and continues to be so, is producing quality television. Most of the other things for which we were previously renowned have now, alas, gone. The cleanliness or even the safety of our streets, the efficiency of the London Underground, and the integrity of business dealings in and around the City of London are just a few variegated examples. But, so far, television quality has more or less survived.

However, the Government propose—and this affects the current and not just the deposed regime of 1979 to 1990—having created chaos in the independent sector, to turn their attention soon to destabilising the BBC. Surely the era of restless, destructive dogmatism ought now to be over. There might even be a little time for allowing some of the virtues of what is worth conserving to reassert themselves.

I shall deal only briefly with the smaller monsters of the Football Spectators Act and the War Crimes Act. The former was a supreme example of legislation by rush of blood to the Executive head, accompanied by a total unwillingness to listen to any informed advice. It ended up with the Government being rescued from their own foolishness only by the tragedy of the Hillsborough disaster and the authoritative good sense of Lord Justice Taylor. Nevertheless, it leaves another monument to legislative imprudence, like an empty yet ugly building disfiguring a hillside, upon the statute book.

Much the same can be said as regards the War Crimes Act. Although a few million pounds have been wasted—but that is cheap in relation to what we have hitherto been discussing—I gather that nothing has happened. In respect of that Act your Lordships' hands are, happily, wholly clean.

I shall conclude with a comment on an extraordinary remark made by the noble Earl, Lord Ferrers, of whose lapidary jokes I am, in general, a considerable admirer. During Question Time last Thursday we were discussing proportional representation for the European Parliament on which there is obviously room for different opinions. The noble Earl was adopting a very jaunty defence of the present position. When it was pointed out that a Bill to amend had gone through all its stages in this House, not just formally but after considerable debate, he said, "So what?". He subsequently said that he was sorry if he had upset me. He had not upset me. If I were to be upset by the unwisdom of my opponents I would be in a continuous state of nervous perturbation.

However, what the noble Earl had done was to surprise me by the frivolity of his approach to the legislative procedures of this House, of which he is, after all, Deputy Leader. If that is still, on reflection, his attitude, he may find it a little more difficult to get us to take seriously his appeals for government legislation, especially when we take into account the remarkable foolishness of the measures from the Home Office and elsewhere which he has commended to us in the past.

The Government's record in proposing and that of the House of Commons in swallowing such legislation certainly suggests that greater independence on the part of this House could do nothing but good both for our own reputation and for the health of the country. The noble Lord, Lord Waddington, who is a former Chief Whip in another place, a former and recent Home Secretary and now Leader of this House has a remarkable vantage point from which to survey the legislative record of the past four-and-a-half years. When he replies, I hope that he will apply himself especially to the four jewels in the Crown to which I have drawn attention. I beg to move for Papers.

3.25 p.m.

Baroness Denton of Wakefield

My Lords, I should like to make a brief contribution to the debate from what I believe is a unique standpoint among today's speakers. For most of the period I was outside of your Lordships' House, at the sharp end operating in the climate and situations created by the Government's legislative programme. It certainly gave me a different viewpoint from the one that I have just heard. Contrary to what we have heard, we were, and still are, going forward.

In industry we are working and working together. I remember at Austin Rover being told by the chairman that he had been glad in the 1970s that the shop stewards were running the company because no one else was. It was certainly not going anywhere. Since then, with much legislation in the industrial relations field culminating in this Parliament with the requirement for secret ballots for the election of union officials, the end of the closed shop and irresponsible secondary picketing, the Rover company has seen its first year without a single's day's stoppage. This year it is able to introduce innovative working practices which will allow the company to compete with the best in the world.

The company was not unique. In the 1970s, when the party of the noble Lord, Lord Jenkins, was in office, on average 13 million days were lost. In 1990 1.9 million days were lost. That is still too many, but what a difference. In 1990 there were 558 stoppages in Britain—in the 1970s there were four times that number each year. No wonder few people could sell overseas with that risk to delivery dates. In the past years we have been able to talk product to overseas customers and not do a selling job on our industrial abilities.

I believe that we still have considerable work to do in industry itself to improve communication between management and workforce or, perhaps better put, between different members of the team. But the Government have created a climate whereby over half of the Japanese inward investment into Europe in the first quarter of this year chose—I repeat the word "chose"—to come to Britain. Industry's job has been made much easier by the ports legislation. In earlier years: you built it, you sold it; but you could not count on delivering it overseas.

Electricity privatisation has transformed opportunities for industry. The companies can now negotiate individually for supply. It has brought much discipline to the nuclear industry—a matter of which I know as a director of BNFL. There has been a change from costs plus, and pass the pain on to the customer, to negotiated fixed-price contracts and much more realistic assumptions about the costs of waste management and decommissioning.

Steel, telecommunications and water have all been put in a position to manage long-term for the future, not annually for the Treasury. How does a nationalised company find the necessary capital investment for technological change, or manage funds efficiently, if there is no cost of money? We do not even collect bad debts.

There were significant signs of overseas companies being ready to cream off these markets had we not seen the Government's privatisation programme go through. There is still work to be done to balance competition and regulation. But I wonder why it is assumed that if a piece of legislation shows a need for further adjustment it is considered a failure. Is there anyone in your Lordships' House who feels that he could commission and build a new home and not want to change something in it the minute it was finished?

In education, we are back on the right track. However happy the educationists were, it was evident as an employer that the systems were not delivering a quality product. Now, with the national curriculum, a focus on primary education and a teachers' pay review body, we can feel change. In training, the establishment of TECs has improved opportunities for employers and employees. As a member of the Health Service Policy Board, I know that major reforms in health have dealt with the foundations of the NHS, an institution much loved and admired. The indications now are that the books are balanced and more patients are being treated. Even junior doctors' hours have been tackled.

We have seen a legislative programme that has created a climate whereby the individual has rights and the opportunity to exercise them. We have ombudsmen; the Citizens' Charter; The Patient's Charter and the Parents' Charter. What use is legislation if it is for the benefit of the few?

I have been used to people aspiring to promotion, by fair means or foul, producing papers which detail not just what they believe is wrong, but what they would do as an alternative; what it will cost; from where the money would come; and how they would be measured. Today, the noble Lord, Lord Jenkins, got as far as part one, with four parts to go. Is it any wonder that I feel more comfortable with the present management?

3.30 p.m.

The Earl of Longford

My Lords, I must leave to my colleagues the task of replying to the interesting party points made by the noble Baroness. I hesitate to congratulate her warmly, because that is dangerous nowadays. If one says anything nice to a lady, it is called sexual harassment, although there may be an escape clause for octogenarians. She must take that as an expression of my good intention.

I am of course pleased to take part in a debate initiated by the noble Lord, Lord Jenkins of Hillhead. A number of self-appointed critics—I was among them—have selected his memoirs as the book of the year. I referred to his elegance of expression, some examples of which we have had today. What impressed me most about his memoirs was his honesty. That is not unique among people who write their memoirs, but it is rare. In his memoirs he said that his greatest triumph was when he appointed Lord Mountbatten to undertake an inquiry into the escape of George Blake. Later he admits that as a result he may have leant too far towards security. I am afraid that penal reformers regard that as being the case. Nevertheless, we cannot expect more than elegance and honesty in a public man, and we seldom get as much.

I am pleased that the Leader of the House, a respected member of that very select club, should have decided to reply to the debate. In a way, I am sorry that the noble Earl, Lord Ferrers, will not be replying, because after I last spoke he wrote and said that I had made an impressive speech. I felt there was something wrong there. That has never been said to me before, and certainly not by a Minister. I have obviously been leaning over too far in the direction of the Government and I shall try to rectify that now.

Surprise, surprise! I shall say a few words about penal affairs. I recently ventured to quote a former Conservative Home Secretary, Lord Templewood, who many years ago in the House said: We know what we ought to do but we do not do it. That is a fair description of the Government's performance in the penal field, as in others. The publication of the Woolf/Tumim Report has left them no excuse for not knowing what needs to be done. Ten years ago, the noble Viscount, Lord Whitelaw, showed himself to be full of enlightened purpose. He then went to the Conservative Party conference. I do not know how many noble Lords attended that conference but the noble Viscount went there and got the "bird". After that he soon packed up his penal reforms. That was this Government's record for a number of years after 1981.

Time went on and we advanced. In 1988, the Government produced what I considered to be a forward-looking Green Paper Punishment, Custody and the Community. I applaud that Green Paper. Penal reformers did not like it because it seemed to give the probation service a rather more regressive role. That was a progressive, imaginative Green Paper. Where do we find ourselves now? The whole purpose of that Green Paper was to reduce the numbers of people in prison. Its idea was to find a more constructive way of dealing with offenders outside prison.

A little later we had the horrifying events of the Strangeways and other riots. I say "horrifying", because people were killed, many people were injured and much brutality was shown. I am not being exclusively fair to the Government this afternoon, but in this case I must be fair to them and say that they set up the Woolf/Tumim inquiry. I give the Government credit where possible. A report was then produced. It is probably the most important report ever produced on the penal service. I do not know whether the former Home Secretary, the noble Lord, Lord Jenkins of Hillhead, will agree with me on that. It left the Government with no excuse for not knowing what they should do. But what happened? Two things have happened. There has been a White Paper. As a result of it, no one now believes that there will be fewer people in prison than there were previously.

We have also had the Criminal Justice Bill. It was an enormous Bill and it was discussed at great length in the House. No one believes that there will be fewer people in prison as a result of that Bill. People may say the numbers were going down. That is true; they were going down. But in the past year, according to my figures—I may be corrected, but I do not think I am far wrong—the prison population has increased by 2,500 people. It does not seem as if the Woolf/Tumim Report, the Criminal Justice Bill or any of the tremendous developments there have been have had the right impact.

I am afraid one has to say that a tremendous opportunity has been missed. The year 1991 was the year of the Woolf/Tumim Report and the Criminal Justice Bill. The Government knew what they should do, and they did the opposite.

I was not present at the time, although I existed, but I remember when President Wilson went to Versailles and everyone treated him as a saviour. They said that he was going to put the whole world right. He said: What I seem to see, with all my heart I hope that I am wrong, is a tragedy of disappointment". If I am asked to sum up this Government's recent record, I shall say that it is a tragedy of disappointment.

3.38 p.m.

Lord Simon of Glaisdale

My Lords, as I have my back to the Clock, I should be grateful if any noble Lord within hailing distance would alert me if I speak for as long as nine minutes so that I can bring my remarks to a close. I cannot hope that any observation from the Cross-Benchers will find unreserved acceptance from any partisan during the present hectic electioneering mood.

Looking at the Government's record as a whole, and not selectively, it seems to me that it is not justly to be condemned. On the other hand, your Lordships have seen in recent years a surge of bureaucratic aggrandisement which matches what we saw earlier which broke at Crichel Down.

As concerns the first matter, the general record of the Government, may I say three things? First, much of the legislation has been a continuance of earlier policies. The noble Baroness gave us a number of examples. Secondly, over decades the ship of state was borne far out on the port tack and it required great nerve, courage and resolution to turn the helm. The Government and their Ministers were vilified at the time, but—and this is the third point—much of what was then achieved is now common ground. Under those circumstances, it seems unreal to criticise in general terms the legislative policies of the Government.

I come to the second main theme, the aggrandisement of the Executive at the expense of Parliament and the courts, as well as at the expense of individual rights. Practically everything I have to say, except one point, was exemplified in the so-called Child Support Act of the last Session. However, that is only one example of the matters I shall mention.

First, we have seen a proliferation of Henry VIII clauses: the power of a Minister to amend by regulation an Act of Parliament without going through the normal parliamentary processes. Side by side with that, we have increasingly seen government by regulation in place of Act of Parliament. Again, the Child Support Act was a notorious example with over 100 regulation-making powers, of which only about a dozen are subject to affirmative resolution procedure. So that is the third point: the down-grading of parliamentary control over regulations—the use of the negative resolution procedure in place of the affirmative resolution procedure, in defiance of the recommendations of the joint Select Committee of 1972 and 1973, accepted by both Houses of Parliament over latter years.

Side by side with that aggrandisement at the expense of Parliament, there has been an aggrandisement of the Executive at the expense of the courts. Individual officials have been given the power to make decisions which were formerly made by courts of law, with appeals not to courts of law but to administrative tribunals. Side by side with both those tendencies one has seen a direct assault on individual rights.

Perhaps I ought to have mentioned, under the parliamentary heading, that Parliament has devised the hybrid Bill procedure in order to safeguard individual rights when they are affected by a Public Bill. In a Bill currently before your Lordships, that procedure is ousted in favour of executive regulations. However, we have also seen things like the right of entry into private premises, the right to interrogate one's employers and fellow employees. That is a serious invasion.

In addition, and again on the Child Support Act, there is the whittling away of age-old safeguards against abuse of the harsh remedy of distress. It has been whittled away in favour of officials. In effect, officials have in a number of respects been placed above the ordinary law of the land.

These are very much matters for your Lordships' consideration because noble Lords are in a true sense today the watchdog of the Constitution. It is highly important that your Lordships should not find yourselves prejudiced in exercising that watchdog duty by the pressure of business, and business fixed for highly inconvenient hours.

Thus, it seems to me that the Government can be vindicated on the general case made against them today by the noble Lord, Lord Jenkins. However, there are matters of grave concern which demand not vilification of officials—by no means—but constant vigilance of Parliament.

3.47 p.m.

Lord Bonham-Carter

My Lords, your Lordships have heard a formidable indictment of the Government's legislative record from my noble friend Lord Jenkins of Hillhead and from the noble Earl, Lord Longford, in respect of the possibilities of reforming our penal system which has been so shamefully neglected. I wish to congratulate the noble Baroness, Lady Denton, on being the only person on the Government's side who was prepared to defend their record, even if she chose the adventurous course of defending their record on manufacturing industry. It was a most courageous and—if I may say so— quixotic exercise. I thought she would continue by trying to defend their economic record: our balance of payments, inflation and a few other matters which the noble Lord, Lord Young of Graffham, used to tell us with such enthusiasm were an unmitigated success.

I propose to concentrate on a particular measure which seems to me to exemplify the failures of the Government in the legislative field on a magnificent scale. As my noble friend said, some of the measures which he mentioned were taken in haste. Some, however, were only introduced to this House and Parliament after long and apparently careful preparation.

The Broadcasting Act about which I wish to speak falls into the latter category. It was a major piece of legislation, the culmination of a carefully planned campaign supported, with the utmost loyalty, by News International in particular, five leaders in The Times and by the advertising lobby. It was a campaign designed to reduce the authority and perhaps even the autonomy of two institutions: first, the BBC and then the IBA which represented much that Mrs. Thatcher's government found most abhorrent. They were independent, devoted to the public service and they were largely immune to government pressure. Above all—and I am sorry that the noble Lord, Lord Wyatt of Weeford, is not here—they were impartial. It seemed to me, as I said on 13th December 1988, when we debated the White Paper on broadcasting, to produce an ownership of television and broadcasting much like that of the press; that is, overwhelmingly controlled by the supporters of the Government.

In the course of the Committee stage of the Broadcasting Bill the noble Earl, Lord Ferrers—he was the Minister taking the Bill through the House—accused me of being infected, by the pessimistic virus prevalent on the Opposition Benches when I criticised the Bill. When I look through those debates and when I consider how the legislation emerged, I believe we were unduly optimistic. Far from being pessimistic, we underestimated what a thoroughly rotten bit of legislation the Broadcasting Act was. We overestimated the improvements which were conceded in the course of the Committee stage.

I ask your Lordships to examine the claims made for the Bill and what in the end emerged. On 18th December 1989 the noble Lord, Lord Waddington, said in another place: First, we want to establish a fairer and more objective system for awarding franchises than the present one".— [Official Report, Commons, 18/12/89; col. 41.] We have now seen how that pious hope worked out. It left Mrs. Thatcher in tears. The new and more objective system saddled the ITC with an even more difficult job than that of the IBA. My noble friend Lord Thomson of Monifieth said as regards the latter organisation that there must be a better way of doing things.

Miraculously the Government found an even worse way. The ITC had to make three judgments. First, it had to judge the initial quality of all applicants. That is in line to some extent with what the IBA had to do. Secondly, it had to judge the quality of money as well as of programmes; that is, it had to second-guess the market. I thought this Government were devoted to the market. Thirdly, it had to judge when and how to apply the provisions covering exceptional circumstances.

Such judgments are inevitably subjective and they become even more suspect if they are made in private and behind closed doors. As my noble friend Lord Jenkins said, the results were truly bewildering. Carlton wins London Weekday with a cash bid of £43 million ousting Thames, one of the famous and most reputable of the companies. Central holds on to east, west and south Midlands—one of the largest areas—with a cash bid of £2,000. There is an example of the market working with complete fairness and clarity.

Some bids, such as that from TV South, are rejected as being too high while others, such as the bid from TV-am, are rejected as being too low. No one is saying that Mr. George Russell was not doing his best, but he was set an absolutely impossible task. Whatever decision he reached was bound to appear subjective, arbitrary and inexplicable. He did not have to explain that decision, nor could he have done so.

The epitaph on this huge bungle is, as predicted, litigation. I note in today's Financial Times that another case is being brought. It is quite possible that, as a result, the new ITV network will not be in place by the beginning of 1993. Another consequence of the whole affair —or rather another epitaph on it—is the statement by the person who inspired the whole business, Mrs. Thatcher. That epitaph is more eloquent than any other. She wrote to TV-am: When I see. how some of the other licences have been awarded I am mystified that you did not receive yours, and heartbroken. You of all people have done so much for the whole of television. There seems to be no attention paid to that. I am only too painfully aware that I was responsible for the legislation". That is a handsome apology, even if it is the only one she has ever made.

On the matter of ownership the noble Lord, Lord Waddington, said in another place: If we are to enjoy high standards and diversity, there must be ownership rules… There is no chance whatsoever of British broadcasting falling into the hands of a bunch of tycoons". —[Official Report, Commons, 18/12/89; col. 42.] So far, so good. However, that did not cover the case of Mr. Rupert Murdoch who was exempt from the 20 per cent. rule. Within 48 hours of the Bill receiving Royal Assent, Sky had de facto control of BSB. All through the parliamentary debates, the Government resolutely rejected all attempts to avoid that gross anomaly.

Let us now discuss the famous so-called lighter touch. We were promised that broadcasting would be administered with a lighter touch. How did that turn out? When the Conservatives came to power in 1979, there were two regulatory bodies and two codes, one for programmes and one for advertising. Today there are five regulatory bodies and seven codes. Liz Forgan of Channel 4 estimates that broadcasting regulation costs £21 million a year. That is £4 million more than the combined cost of regulating British Gas, British Telecom and the electricity companies. Is that really and truly a good definition of administration with a lighter touch?

There is no evidence that the Broadcasting Act will offer more choice. There is, however, a good deal of evidence that it will lower the standards of programme quality. I predict that the new system of allocating franchises will never be used again. The loophole in the provisions covering cross-media ownership remains a scandal. If that is an example of the Government's legislation, nothing that my noble friend Lord Jenkins said was an exaggeration. If anything he understated the total incompetence that has been revealed in major pieces of legislation which have been deliberately introduced by a government governed by doctrinaire dogmas.

3.57 p.m.

Lord Macaulay of Bragar

My Lords, even at the tail end of the Government's term of office, this is a debate that is well worth introducing. I congratulate the noble Lord, Lord Jenkins of Hillhead, on doing so. I wish to speak from a Scottish point of view. I am sure the general observations made in the debate will be dealt with by my noble friend Lord Cledwyn of Penrhos.

So far we have heard criticism of what the Government have done. I wish to discuss what the Government have not done. It has become apparent recently that this Government in particular are incapable of providing a legislative forum for Scotland in which to deal with issues of particular importance to Scotland.

Scotland received one sentence in the gracious Speech in relation to a Bill which reflects a Bill for England and Wales but takes account of differences in the Scottish education system. The Government act in a contradictory way. Scotland was the guinea pig for the poll tax and a separate Bill was introduced to levy the poll tax in Scotland. As regards the new government Bill to introduce the so-called council tax, protests have been made that Scotland has been lumped into the Bill that applies to England and Wales. However, those protests have fallen on deaf ears and the guillotine has fallen upon the Bill.

The Secretary of State for Scotland seems to say one thing in one place and do something different in another. The Financial Times of 24th April 1991 stated: In Scotland the new council tax will operate in the same way as planned for England and Wales… However, while the discount, rebate and transitional arrangements would be the same, some details of the tax might be varied to meet Scottish circumstances". If that is the opinion of the Secretary of State, why have the people of Scotland not been given the advantage of a separate Bill that would enable this important piece of legislation to be debated in detail? The legislation affects every family in the land. Perhaps the hypocrisy of this Government is even more evident in a speech made by Mr. Lang preaching to the converted at the Conservative Party Conference when he said: We must demonstrate that care and common sense. We must do more to explain our policies, to consult, to listen, to respond to people's anxieties". If that is his view, why have proper Bills not been introduced and debates held to reflect those professed principles?

If we cannot have full debates because this Government's legislative train has run into the buffers why do the Government not constitute and man the Select Committee for Scottish Affairs which has lain inert since 1989 because the Government cannot man it?

Those issues are creating a sense of grievance in Scotland, which was used as a guinea pig for the poll tax and is lumped in with England and Wales for the purposes of the council tax, despite the recognised differences in bandings. This Government claim to be a government of union. Any more behaviour of that kind and they will become a government of disunion. Their failure to constitute the Select Committee and their approach to the poll tax and the council tax have led to feelings of resentment in Scotland and have already given rise to a demand for a form of devolution to deal with Scottish matters. We on this side of the House shall deal with that issue when we win the next election.

The Government do not rule out the prospect of some form of devolution after the next election. That is a classic case of political fudge. There are already waverers within the Government's party wanting them to do something for Scotland, but in their own intransigent and unique way the Government refuse to do anything. One gains the impression that the Government have effectively written off Scotland as a unit in which they have any great interest.

What of the Select Committee? Standing Order 130 for another place requires a Select Committee to be set up for 14 different areas of government. The Scottish Office is the only one which does not have a Select Committee. It is the only office of state—and the Scottish Office administers a wide range of matters in Scotland—which is not being monitored as it should be under the inquisitorial system of the Select Committee to show where the Government may be doing the right thing or where they are going wrong. The Labour Party has put no obstacles in the way of the Government in constituting and manning the Select Committee, but the Government do nothing.

Departing from the purely political area, I should like to raise two other matters. The first is the question of the implementation of Scottish Law Commission reports. I am glad to say that as a result of some pressure the Government have taken on board the possibility of constituting some form of committee or other method for dealing with English and Scottish Law Commission reports. That is very much to be welcomed. However, Scottish Law Commission reports of some antiquity have still to be dealt with.

In the case of a report entitled Civil Liability—Contribution, in a letter dated 1st October 1991 the Scottish Office said that it may have to be brought forward as a Government Bill. The Minister said: I would expect it to feature at some future stage as a Government Bill". However, there was no mention of it in the gracious Speech. The report on the question of divorce disappeared with the ill-fated Law Reform (Miscellaneous Provisions) (Scotland) Bill. The important matter of the introduction of DNA testing in civil proceedings, which was also included in that Bill, also disappeared as a result of political chicanery in the other place. There are many other such matters waiting to be dealt with.

The final matter which I wish to raise is the implementation of the Kincraig Report on parole and related issues. That was a very important report. The committee was set up in December 1987, the Government recognising the importance of parole and related issues. The committee reported very quickly, in March 1989, and the Government issued their response in 1990 asking for further observations by September 1990. The Secretary of State indicated at a recent meeting that he intended to implement the parts of the Kincraig Report with which the Government agreed, but where are they? That did not appear in the gracious Speech. That is a crucial piece of social legislation which has no hope of discussion or implementation because of this Government's failure in the legislative process. It is no encouragement to people such as Lord Kincraig, who are asked to take on such tasks, that once they report and the Government make their views known the Government do nothing.

The only hope for having Scottish legislation dealt with properly will be to have a Scottish assembly dealing with Scottish affairs, as is proposed by this side of the House. We look forward to the removal of this doctrinaire Government and their replacement by one who will get on with the legislation needed to deal with the social, legal and industrial issues affecting the country which have been virtually ignored. We look forward to a government who will unite the nation rather than divide it.

4.5 p.m.

Lord Mayhew

My Lords, what is the explanation for the extraordinary silence of Government Back-Benchers in the debate this afternoon? We have heard one interesting but very short speech from the noble Baroness, Lady Denton, which did not refer to the legislative programme of the Government. Apart from that there is nothing. Yet we know that opposite there are many resourceful and courageous speakers. We have heard them often, asking supplementary questions and speaking on the most delicate and difficult subjects. They are all silent. I suppose that there are some briefs at which even the most courageous advocate pales. That is the only possible explanation. Perhaps when he winds up the debate the noble Lord the Leader of the House will attempt to defend the Government's legislative record, but that is not at all certain. We await his remarks with interest. Otherwise the case has gone completely by default.

One speech after another has criticised the legislative record of the Government. The only answer put forward by the noble Baroness, Lady Denton, was to defend the poll tax and its replacement using the analogy of someone who buys a new house and, having lived in it for a time, naturally wishes to make some alterations.

Baroness Denton of Wakefield

My Lords, perhaps I may say that I did not mention the poll tax. I mentioned the legislative record of the Government in industrial relations, health and education.

Lord Mayhew

My Lords, if the noble Baroness did not intend to draw an analogy between changing the poll tax and buying a new house and subsequently altering it, then I misheard her and I withdraw my remark. Nevertheless, my basic point is an interesting one. The House will note that of speaker after speaker in the debate—excluding the Minister there are 12 speakers—only one, the noble Baroness, Lady Denton, supports the legislative programme of the Government.

My noble friend Lord Bonham-Carter picked four very bad Acts of Parliament out of a very wide field. He could have chosen more and other speakers have selected others. My noble friend picked out the Broadcasting Act, which he pulled to pieces, the poll tax and the Football Spectators Act. Which of those is the worst? Though it may not have been the most politically important, I believe that the worst Act passed by this Government was the War Crimes Act. In that regard, as my noble friend said, this House has clean hands. We refused on two occasions to pass the Second Reading. Bad as the Act looked at the time it received Royal Assent, it looks even worse now. One reason for that is the passage of time. The Hetherington inquiry, on which the legislation was based, said in its recommendations: Given the age of the suspects and witnesses we consider that any proposed legislation should be introduced and brought into force as quickly as possible". That was two and a half years ago. When the inquiry team visited East Europe to make its investigations, it said: The greatest difficulty we encountered was simply the age of the suspects and of the witnesses". That was written three and a half years ago. The pressure for the legislation began to mount and the names of suspects were leaked and published in the papers more than five years ago. The alleged offences were committed some 50 years ago.

It may well be that charges will be made soon. I do not know. I invite the Minister who is to wind up to tell us. Of course, the defence will then take time to prepare its case. It will need to visit East Europe and, with the help of translators and interpreters, it will have to search for witnesses and examine the archives and records. I am no lawyer, but that will take a great deal of time if it is to be done properly. When the trial at last takes place, all kinds of unprecedented points of procedure will arise and the trial will take months and months. By the time the verdict is reached, how old will the accused be? How many years will have passed since the alleged offences were committed? In spite of the appalling nature of the charges that are likely to be brought, the passage of time has made it not only unfair but indecent to bring charges under the War Crimes Act.

There are other reasons why the Act looks even worse today than it did at the time of Royal Assent. A major objection regarding the dangers of false identification was made at the time by noble Lords of great legal experience. Since Royal Assent there has been a spectacular demonstration of the dangers involved. In the course of 12 years of investigation, a Ukrainian born American, Mr. Demjenjuk, was identified as Ivan the Terrible, a war criminal who committed unspeakable acts of cruelty in Treblinka concentration camp. On those grounds, he was deported from the United States to stand trial in Israel. In the course of the trial, five survivors from Treblinka identified him as Ivan the Terrible. The trial was televised. It was a staged trial and, like me, noble Lords may have seen witnesses identifying the man as Ivan the Terrible. No one can doubt their sincerity or their passionate honesty, but they were wrong. Subsequent evidence has shown—it is not contested by anyone—that that man was not Ivan the Terrible, but identification persuaded the court and it must have persuaded the viewers. That shows the terrible danger of which the House and the Government were warned when the Bill was before us.

Perhaps I may deal briefly with another new development which has further undermined the Act. The Hetherington inquiry reported that virtually all the atrocities with which it was concerned were perpetrated in one of the Baltic states, the Ukraine or Belorussia. Since that time, all five countries have become independent and have made substantial progress towards the rule of law. If the Government persist in their foolish intention of reviving the process of retribution 43 years after it was ended with the agreement of all parties, and if they find evidence against a suspect, it would still be absurd to invoke the provisions of the War Crimes Act and to try the people in this country rather than let the suspects be tried in the countries in which the alleged crimes were committed.

In conclusion, there is little doubt that the Government, under their new Prime Minister who opposed the War Crimes Act and did not vote for its Second Reading, very much regret that they ever embarked on that legislative process. However the juggernaut is nevertheless rolling on. The £10 million a year that the Government promised is being spent. I read in the newspapers that a Scottish team of police and investigators flew to Moscow recently to investigate allegations against a Scottish suspect and that a much larger specialist team has been established by the Metropolitan Police but has not yet visited the scenes of the crimes.

Thus, the Act has so far enabled the Government to devote money and police and security personnel, which could be employed in the immediate anti-terrorist role in the United Kingdom, to investigating atrocities committed 50 years ago in remote parts of East Europe by people who were not then British. It is hard to imagine a more perverse sense of priorities than that. When we make a list of the bad Acts of Parliament passed by this House, the War Crimes Act should come top of the list.

4.16 p.m.

Earl Russell

My Lords, the proverbial maid, in excusing her baby, said that it was a very little one. Unfortunately, that excuse is not open to the noble Lord the Lord Privy Seal when he replies tonight. The Government's legislative programme is not a very little one; would that it were.

I agree profoundly with the case that was argued yesterday by the noble and learned Lords, Lord Simon of Glaisdale and Lord Hailsham of Saint Marylebone; namely, that the size of the statute book has increased, is increasing and should be diminished. That is fundamentally a non-party matter. All Governments have been guilty. This Government have been particularly guilty, even as regards the number of pages. They have certainly been particularly guilty regarding, as they would choose to put it, the radical quality of the legislation that they have introduced. That has involved great upheaval and they have shown and are still showing the itching urge to reform whatever is all right and to leave alone whatever is all wrong, which is the hallmark of the true Thatcherite.

Yesterday's debate showed that there was a general sense in many quarters of the House that we are reaching the point at which Parliament is unable to exercise a competent scrutiny of legislation. The constitutional implications of that are very profound because, if we cannot scrutinise legislation effectively, still less can we adequately control the Executive power as exercised by Ministers. Indeed, I am beginning to wonder whether we need a Dangerous Ministers Registration Bill.

I cannot gild the lily in respect of what my noble friend Lord Jenkins of Hillhead said about the poll tax, but it is not the only patently impossible measure which has been through both Houses under this Government. When the football membership Bill went through this House, it was my impression—necessarily, I cannot put it more strongly than that—that we knew that we were passing something impossible. When the Government were defeated on an amendment moved by the noble Lord, Lord Harmar-Nicholls—need I say more to condemn the legislation than that the Government were defeated on an amendment moved by that noble Lord—I looked at the faces on the Government Front Bench. Perhaps they have particularly good poker faces, but they did not look particularly depressed. Appearances were probably not deceptive.

Not all of that great mass of legislation has been particularly well considered. Indeed, some of it has been distinctly half-baked. I remember on the Third Reading of the Education Reform Act asking a question about the abolition of academic tenure which was absolutely vital to most people in the profession.

Noble Lords will remember that tenure was to be lost on promotion. The question was whether or not a move from Scale A to Scale B for a lecturer, which happens to almost every member of the profession, constituted a promotion. The Secretary of State was asked that question from the very inception of the Bill. It made all the difference as to whether the provision applied immediately to a very few people or to almost everybody. At Third Reading in the second House, the Government did not know the answer. That is genuinely half-baked legislation.

Some Bills have been so big that they did not permit proper scrutiny. I have not forgotten the Second Reading in this House of the Water Bill and in particular the speech of the noble Lord, Lord Rippon of Hexham, who lifted up the Bill before the House and explained that it was in two volumes and weighed 2.2 lb. He let it drop on the Bench beside him. It fell with a thud so loud that, I am told, the security men outside in the Peers' Lobby started to attention.

But that is not the only way to get things wrong. Shortly after that the Government introduced the Education (Student Loans) Bill which noble Lords may remember was a particularly flimsy production. My noble friend Lord Addington, speaking in the debate on the humble Address, held up the Bill to show to the House and then let it fall. The Bill did not have sufficient gravity to fall direct to the ground. That was not the right way to approach matters either. That Bill was what the Government describe as a framework Bill. In fact it involved legislating almost entirely by regulation, which made the task of scrutiny in this House very much harder.

I have not forgotten a phrase of the noble Lord, Lord Kilmarnock, about the difficulty of amendments getting a purchase on the slippery surfaces of the Bill. So the growing use of regulation means the growing impotence of Parliament. We have indeed had some very big decisions brought in by regulation. So, in drawing attention to the Government's legislative programme my noble friend has been a little too abstemious.

We also need to draw attention to the Government's sub-legislative programme. To take one example, not many bigger decisions of principle have been taken by this Government than that of disentitling students to social security benefits. I said at the time that it would be a disaster. In the debate on the humble Address I said that the effects had proved a great deal more serious than I had expected. A few minutes ago I was told by representatives of your petitioners, the students of King's College, that the effects are a great deal more disastrous even than I thought. There was ample room for amendment in that legislation. It could have been done in many different ways and the approach perhaps modified. But because the changes were introduced by regulation this House could not act. I still believe that it was an abuse of the proceedings of this House.

I agree also with the noble and learned Lord, Lord Simon of Glaisdale, about the Government and the courts, which is particularly apparent in the field of social security. In the Social Security Bill of 1990 in different ways there were reversed no less than three court judgments. My noble kinsman, Lord Henley, explained carefully to the House that what the court had found was not Parliament's intention. But where there is the rule of law, the Government's intention is not the only matter to be considered. If the meaning of the law is not as the Government intended, it is not absolutely axiomatic that the Government must always alter the law to make it fit what they wished it to have meant.

I recall the Lambeth poll tax capping case. Noble Lords will easily believe that I do not speak with any admiration for the London Borough of Lambeth. When the borough won its case, Joan Tuelves remarked with some surprise that Lambeth was not used to winning cases in courts. When I heard that comment, I was very pleased. I thought that it might begin the process of political education, establishing that we have in this country not Tory judges but legal judges. Alas, no such thing. No sooner had the court given its decision than the Government introduced a Bill to reverse the judgment. That was a badly missed opportunity and a good example of the Government's attitude to local government.

Speaking at the Second Reading of the Further and Higher Education Bill, my noble friend Lord Grimond referred to the experience of having a local government Bill every year. He expressed the fear that we were about to have a university Bill every year. That set ringing not only the alarm bells, but the fire alarms and the air-raid warnings as well. Whenever the Government pay attention to a situation with such a degree of intensity, the matter to which they pay such attention ends up in great grief.

The Government have talked a great deal about parliamentary sovereignty. On these Benches we are aware of what Professor Austin called the external limits of sovereignty; in other words, sovereignty is affected by the fact that other countries exist. But as a means of controlling the Executive, whenever we can make it work we rather like it. But we do not seem to get very much co-operation from the other side of the House. My noble friend Lord Bonham-Carter quoted the former Prime Minister: "I was responsible". It was a denial that Parliament was responsible. That, I believe, is a great shame.

4.27 p.m.

Lord Mackie of Benshie

My Lords, I rise to my feet full of shame on behalf of my colleagues. They have been unbearably nasty to the Government. It was most unkind of them to point out all their faults when the Government contain very nice people who are doing their best. The fact that it is not enough is a great pity. But I must also congratulate the noble Baroness. She did a very brave thing and did it extraordinarily well. As has been said many times about this Conservative Government, she was the only man amongst them.

I have only a small matter of which to complain; namely, the Government's handling of the forestry situation. Forestry is extremely important to Scotland and to this country as a whole for commercial and environmental reasons. The Government were committed to making a great advance both in the quality and quantity of planting. They started that process and in 1989 they initiated new planting of 29,213 hectares. That figure was on the way to their target of 33,000 hectares. But they spoilt the effect by previously, in 1988, totally altering the conditions of taxation.

As I said, in 1989 the Government were on their way. But the 1988 Budget started to take effect. In the Budget—I shall not read out the passage, but will summarise it—they took away the income tax concessions, the allowances and so on that could be claimed by rich men who planted trees. They said that they would instead take forestry out of the tax situation altogether, and when the trees were sold there would be no tax to pay. When the ordinary person plants a tree it is a little hard for him to consider the benefits that he will receive in 60 years' time. Continuity within a family is not strong enough to make that benefit a great incentive.

There was a disastrous fall in the figures. In 1991 the total was about half the target; in other words, 18,951 hectares. To put it mildly, that is not good planning or administration. It comes ill from a Government who are supposed to understand those matters. In 1989 there was also a farm woodlands scheme which was supposed to encourage 12,000 hectares a year to be planted in farm woodlands. Although it was not a total failure, at the end of three years only 12,000 hectares—in other words, one-third of the figure—had been planted. The reason is that the incentives which replace the tax incentive are not good enough.

It is no good giving farmers half or even two-thirds of their costs for planting trees if they have little profit with which to produce from the other third. If the Government want trees planted they must use genuine incentives so that the tasks can be accomplished and some profit made for the farmer to live on.

I am told that the Government are not taking advantage of the EC money offered in that respect. I shall be pleased if the noble Lord the Leader of the House will assure me that they are doing so.

The results in the industry have been appalling. In 1989–90 50 million young trees were destroyed by nurserymen. That was the result of government measures intended to produce a decent forestry policy. In 1991 20 million trees were destroyed. That was no improvement; more trees had not been planted the previous year because of the state of the industry.

We in Scotland have had very welcome Scandinavian investment in processing plant. Not enough trees are now being planted to service those plants when they come into operation, with the result that trees will be imported for processing. That hardly seems good planning.

The charge of doctrinaire thinking by the Government is absolutely true. In 1979 the Forestry Commission planted 16,800 hectares of new planting. There were 3,600 hectares of replacement planting. Today the commission plants 4,000 hectares, with 7,800 hectares for restocking. The restocking figure is 9 per cent. below what it should be.

I regard those as devastating figures. Admittedly, they are a small part of the economy. However, they indicate that not only in major areas but also in lesser aspects the Government have not been competent. I hope that the noble Lord the Leader of the House will be able to reassure me that in future—in the unfortunate event of this Government returning to power—their thinking will be less doctrinaire and more practical.

4.35 p.m.

Lord Holme of Cheltenham

My Lords, in winding up for the mover of the Motion, I find myself thinking not without sympathy about the plight of the noble Lord the Leader of the House. Noble Lords who have served in the Army will remember that from time to time the duty officer has to move between the soldiers in the canteen asking if there are any complaints. Today, rather than relegating this duty to one of his junior officers, the noble Lord has gallantly undertaken to be duty officer. Our burden for him is the complaints which have come thick and fast. I do not refer simply to the magisterial catalogue of four Bills which the noble Lord, Lord Jenkins, mentioned at the beginning of the debate, but seven other issues which noble Lords raised during the debate. The noble Lord, Lord Waddington, has to reply to this catalogue of complaints.

It is tempting to attribute all the shortcomings of the Government's legislative record to incompetence and misjudgment. Some of us have yielded to that temptation today. However, although tempting, it is wrong. First, as the noble Baroness, Lady Denton, said, the Government have had their successes. It would be surprising if, in the course of almost 13 years, they had not had some successes. Secondly, not everything that goes wrong is the fault of the Government. Some of it is the fault of the system over which the Government preside—the governmental and legislative system of this country.

Let us consider the poll tax. My noble friend Lord Jenkins called it one of the jewels in the Crown. It baulks so large in the catalogue of complaints that it is almost the Koh-i-noor of the crown of the Government's record. It must be one of the greatest legislative fiascos of the century. Let us consider a tax which is not paid by over one in four of those eligible to pay. Out of 34 million tax payers due to pay the tax 8.5 million people have had to be summonsed for non-payment. Although of course the law must be obeyed —a point that has been made repeatedly in your Lordships' House—if the Government make an ass of the law it is difficult entirely to blame the electorate for turning on a tax which seems to have been so ill-conceived. I am sorry that the noble Lord, Lord Wyatt of Weedon, is not present. The poll tax is a measure that was described by him as the fairest scheme that could have been devised.

It is difficult fully to comprehend the size of the disaster that the poll tax represents. We are not yet distant enough from it. Financially, the cost runs into at least hundreds of millions of pounds. The financial effects will be felt in 1992–93. Those effects will make it more difficult for the Government's new council tax to be successful because it will be carrying the mortgage burden of past mistakes with it. In the civil area, the cost of the poll tax can be measured in lost confidence in the system of local government finance. Politically we all know the ending of the story which led to the loss of the Prime Minister who promoted that unhappy tax.

The poll tax represents a lesson from which, potentially, we can learn. Rather than simply treating it as a stick with which we on this side of the House can beat the Government, what lessons can be learnt from the episode of the poll tax? Are there not conclusions that we can draw now that would help the progress of future legislation? The poll tax sprang from a rash and last minute manifesto commitment to abolish the rates. It was fertilised by one of those think tanks full of zealous teenage scribblers which sprung up around this ideologically-led Government. It was adopted by a Minister anxious to ingratiate himself with his leader. It was seized upon by his leader, the Prime Minister, who forced it upon the Cabinet, which in turn imposed it upon a reluctant Conservative Party, which forced it through an even more reluctant Parliament. Noble Lords will recall—and I was not here at the time—the appearance of several well loved but unfamiliar faces in this Chamber in order to ensure a majority.

That process of forcing through legislation ended up on the doorsteps of a stunned and a completely incredulous electorate which was unable to believe that a tax so far divorced from what seemed fair and efficient should be imposed upon them.

I believe that the poll tax episode must represent the absolute apotheosis of elective dictatorship—that scourge to which the noble and learned Lord, Lord Hailsham, introduced us; namely, something forced through from the top, unacceptable to the people of this country. There was no question of analysing the structures and functions of local government before arriving at an analysis of the correct form of finance. There was no question of establishing a Royal Commission which could have deliberated because Royal Commissions were out of fashion and deliberation unacceptable. There was no question of consulting fully with local government because it might have been pointed out that the emperor had no clothes and that the tax would not work. There was not even the extremely sensible expedient of waiting to see how and whether the tax would work in Scotland, where it was first introduced. The noble Baroness spoke about business. Any business which had a new product and was able to try it out on a test market would wait to see the results of that test market before indulging in a rash judgment.

More fundamentally, I ask whether such legislation could have emerged from a Cabinet that was functioning properly. It is worth reminding ourselves that that was the issue upon which Mr. Heseltine resigned from the Cabinet; that is, that Cabinet was not functioning properly. Could such legislation have emerged from a fully representative Parliament in which public opinion in the country was fairly represented in the House of Commons? Could it have emerged from a more open system of government with full negotiation and discussion as there is on the Continent?

We are discussing this subject on the day after Maastricht. I was interested to read this morning a description in the Financial Times by Mr. David Curry who has been both an MEP and an MP, and who is a Minister in the Government. He defined the difference between the legislative system in Europe and in this country He did it very fairly. He said: Our system is that you define the differences and decide which option you are going to take". That is a good description of the British system of government. How does it take place? It takes place in secret. When the difference has been defined, the Government—and this is called strong government—impose it through its Whips on an unrepresentative Parliament and in turn on the country.

Mr. Curry contrasts the British system—he does not reach a conclusion as to which is better—with the European ideal, which is, in his definition: Everyone is able to come aboard". As we become part—as we clearly shall after yesterday—of a more united Europe, we must be ready to learn from our continental neighbours who, on the whole, proceed on the basis of negotiation which involves people, rather than a process of doctrinaire and hasty imposition. Doctrinaire and hasty legislation is the price we pay for our secretive adversarial process.

That is fuelled by manifesto madness—a warning to parties on this side of the House. The late Lord Rothschild defined the first few months of government intoxicated by victory as a mixture of the madness of Mardi Gras and auto-da-fé. That temptation is open to all new governments. We may have a new government. Let us hope that a new government will not indulge in the same rush to judgment which has been the characteristic of their predecessors.

A number of issues have been raised to which I hope the noble Lord will respond. No government will have an unblemished record of success but the incidence of legislative failure on the part of the Government is not just a matter of men and measures but is also a matter of the system. We need a system which is more open, rational and deliberative, with less dangerous reactive populism and more judicious good government. That is not merely an issue of politics and partisanship, for everyone in Opposition will be critical of the Government. That is the nature of the process. However, as the noble and learned Lord, Lord Simon, and my noble friend Lord Russell have reminded us, it is a constitutional issue. When the noble Lord the Leader of the House replies, I hope he will address himself also to that issue.

4.45 p.m.

Lord Cledwyn of Penrhos

My Lords, we are grateful to the noble Lord, Lord Jenkins of Hillhead, for raising this important subject and for his interesting speech. The noble Lord supported his case with powerful arguments and other noble Lords have made constructive speeches. The one speech for the defence by the noble Baroness, Lady Denton, was a gallant effort.

As we frequently remind ourselves, since 1911 this has been a revising Chamber. We justify our existence by the efficiency and thoroughness with which we examine Bills which come before us. In the post-war period the volume of Bills and their complexity has increased and this House has taken its duties seriously in that time. The words in "Iolanthe" that: The House of Peers,…

did nothing in particular,

And did it very well, are certainly not accurate today. The House does an immense amount of work and does it very well. The pressures on our colleagues in another place mean that there is no guarantee that legislation which comes before us is in a fit and proper state to enter the statute book. Therefore, it is the duty of this House to examine and improve legislation because the public will suffer if it is flawed.

It is against that background that we must analyse this Motion and express our anxiety at the manner in which this House has been treated during this Parliament. Excluding the present Session, the legislative programme listed in gracious Speeches is far too heavy. We have pointed that out on each occasion. I know that governments of all parties want to get their mandated Bills through quickly but, as the noble Lord, Lord Jenkins, has shown, the present Government have gone over the top time and time again.

I believe strongly that Government should plan and allocate their legislation far more carefully over a period of time. Normally there is a four year period in which to do that, and there is no reason whatsoever why Cabinet committees should not be set up to ensure that legislation is treated and processed properly over the period available.

To come back to this House, I find that I have registered numerous complaints about the overloading of the legislative programme. In July 1990, in opposing the Motion to suspend Standing Order No. 44 which lays down that no two stages of a Bill be taken in one day I said: I have spoken on this issue at this time of the year for the past four or five years … The country realises that there is far too much legislation—more legislation than can be digested by the courts, dealt with by the draftsmen and properly explained by noble Lords opposite". [Official Report, 18/7/90; col. 864.] Since the general election, several Bills has been rushed through and absurdly large lists of amendments have been tabled by the Government for the last stages. Examples of the latter include Bills mentioned by the noble Lord, Lord Jenkins; namely, the Education Reform Act, the Companies Act, the Broadcasting Act—delicately dissected by the noble Lord, Lord Bonham-Carter—and the Planning and Compensation Act. On those and other occasions I have complained of inadequate time for the House to scrutinise complex and controversial legislation. That is what we are here to do. Too often we are prevented from performing that duty.

I should like briefly to raise a number of points. First, the unhealthy trend of some of the legislation. A range of Bills have been used to attempt to restructure local government, placing far too much power in the hands of Ministers and gravely undermining local democracy. We deplore that trend which culminated in one of the most disgraceful and expensive Acts of Parliament of this century; that is, the so-called poll tax. I much admired the splendid epitaph to that Act composed by the noble Lord, Lord Jenkins. The effect of such ill-judged legislation is far reaching. When the public suspect that the law is inadequate the Government must take responsibility.

That leads me to my second point; namely, the quality of the legislation which comes to this House. Noble Lords know that Bills have been rightly criticised because of their increasing length and poor drafting, resulting in numerous government amendments and the dangerous trend towards reliance on secondary legislation. I refer Ministers to the debate initiated by my noble and learned friend Lord Simon of Glaisdale on 31st January 1990. He summarised the problems in an excellent speech and was equally impressive in his speech today. It is in the interests of parliamentary democracy that we limit government by order and by secondary legislation.

Furthermore, we are unhappy about the Government's handling of legislation in this House and in the other place. There the guillotine has restricted debate on crucial issues. Thus far we are not scarred by that ruthless instrument but have been subjected to steamrollering tactics; for example, when the Community Charge General Reduction Bill was swept through this House in one day. It is much to the credit of this House on all sides that its revising function has withstood those tactics. Indeed, the Government have been defeated 68 times since the last election. That may embarrass the Government, but it is a good thing for democracy that time is given to pause and think on issues which this House believes deserve further consideration.

Another area of anxiety is the cost of the Government's mismanagement of legislation. I mentioned the poll tax Bill, which resulted in wasted time and money for Parliament and local authorities. Other Bills mentioned by the noble Lord, Lord Jenkins, like the Football Supporters Bill were never implemented, while the Landlord and Tenant Bill was finally withdrawn after lengthy debate and much wasted parliamentary time.

The Government must clearly take responsibility for their conduct of our legislative machinery over the past decade. However, in fairness we must look beyond that. The time may have arrived when we should examine the legislative system and see whether reforms and improvements can be made. The other place is currently considering those matters; for example, by changing the working hours or reducing the sitting days. It may be that this House should also examine its procedures. There are days when this House rises at five or six o'clock and others when we sit beyond midnight, as has happened twice this week. Noble Lords on all sides have told me that they regard that as unsatisfactory. If we ourselves do not make changes it may be that others will make them for us.

If I criticise the Government I must also pay tribute to successive Leaders of the House in my time who have made real efforts to take account of the views of the House as a whole. I hope that this debate may lead to some new thinking and ultimately to much needed reform.

4.53 p.m.

The Lord Privy Seal (Lord Waddington)

My Lords, I am grateful to the noble Lord, Lord Jenkins of Hillhead, for proposing the subject for debate today. I am not just being polite. It is useful to review the legislative work of a full Parliament and to see whether there are lessons to be learned from it. The debate also provided an opportunity, equally welcome, to revisit a number of general anxieties about our legislative processes as well as allowing the noble Lord, Lord Jenkins of Hillhead, to have a bit of fun and polish up some rather good jokes.

I do not believe that any of us expected the noble Lord, Lord Jenkins, to resist the temptation to refer to the Local Government Finance Act. He said that he was going to be controversial, perhaps rather more controversial than is usual on these occasions, and therefore he would not expect me not to refer by way of reply to the obvious defects of the Liberal Democrat proposals for financing local government. For local income tax to raise the same amount of revenue as the community charge in 1990–91 would cost each taxpayer what in effect would be an extra 7.4 pence on income tax. That would virtually cancel out all the reductions in income tax since 1979. I am bound to say that it is difficult to think of a more inane proposal.

As well as the Local Government Finance Act and the other Acts mentioned by the noble Lord, Lord Jenkins of Hillhead, in this Parliament there have been many other measures. Some were great reforming measures like the Children Act; and there has been legislation of great social significance like the Human Fertilisation and Embryology Act. We had the Courts and Legal Services Act; there have been measures like the Food Safety Act to protect the consumer. There has been legislation to give improved protection to the environment, and legislation to protect workers. There have been three Employment Acts, carrying forward what I suggest are great reforming steps in the field of trade union law. Indeed, it is difficult to find anybody in the country today who would dream of returning to the chaotic situation prior to 1979 in the field of industrial relations.

My noble friend Lady Denton talked of those matters and of the enormous improvement in industrial relations in this country since 1979. She spoke of the comparatively few days lost in strikes compared with the millions of days lost in the 1970s. My noble friend referred also to the effect that these improved industrial relations and the improved economic climate generally have had on inward investment to the immense benefit of this country.

I believe that it was the noble Lord, Lord Mayhew, who thought he made a good point when he said that my noble friend Lady Denton had alone spoken from the Government Back Benches. I am bound to say that I think that was a typical example of one good speech being more than a match for a clutch of bad ones.

The noble and learned Lord, Lord Simon of Glaisdale, talked of the nerve it took to bring about the changes in industrial relations. Indeed it did take nerve. Many people in 1979 did not believe that our proposals would work. They looked at the tentative attempts made by the Labour Government at the back end of the 1960s; they looked at our attempt to bring about reform at the beginning of the 1970s. Although they knew that what we were doing was right, they wondered whether we would achieve it because of the difficulties that previous governments had faced. But we did achieve it. It is a record of which we can be enormously proud.

There have been Acts to allow parents to play a bigger part in the management of schools; measures to enhance the rights of disabled people; there have been important Criminal Justice Acts, not all wholly opposed by the noble Earl, Lord Longford. He must have greatly welcomed the proposals in the Criminal Justice Bill 1990 designed to keep less serious offenders out of prison.

The Earl of Longford

My Lords, since the noble Lord mentions my name, perhaps I can point out that in 1991 the number of prisoners has increased by 2,500. It does not look as though any measures introduced by the Government have reduced the prison population.

Lord Waddington

My Lords, that was not my point and I am sure that the noble Earl knew that it was not. My point was that he applauded that part of the legislation at the time it was going through the House. He was quite right to be cautious today in criticising that part of the Government's legislative programme All that legislation—and I have not yet mentioned the various privatisation measures, also spoken of by my noble friend Lady Denton—has brought about an enormous change for the better in life in Britain today.

One has to go on and look at this Session's measures. This Session's measures alone, which certainly do not bear the stamp of a Government which have run out of steam, will directly benefit millions of people. There have been measures to raise standards in our schools and remove the artificial distinction between universities and polytechnics; measures to raise standards in the public service so that members of the public get a better service; measures to set up a new way to pay for local government; to reform the structure of local government; and an Asylum Bill and a Charities Bill.

The noble Lord, Lord Holme of Cheltenham, seems to think that they deal with legislation more satisfactorily on the Continent. I do not have any first-hand experience of that, but I am sure that the noble Lord will agree with me that many of us have been alarmed at the lack of discussion in parliaments in the other 11 countries in the run up to Maastricht. I do not know how they deal with legislation, but they certainly do not deal with issues as adequately as we do here in Britain so far as concerns general discussion before their country is about to enter into solemn international undertakings.

Lord Holme of Cheltenham

My Lords, I thank the noble Lord for giving way. It may be that the relative lack of discussion in the Continental parliaments is because there is a much greater degree of unity on the European future that they want to adopt than has been the case in the Conservative and Unionist Party.

Lord Waddington

My Lords, I do not believe that to be the case at all. In the last days before the meeting at Maastricht it became increasingly obvious that members of certain parliaments had woken up rather late to the gravity of the decisions that were just about to be thrust on them by their governments. Some day somebody may have to pay the consequences for that lack of discussion and any effort to educate their own citizenry as to the nature of the obligations into which they were just about to enter.

There were some interesting speeches which touched on the War Crimes Act. I remind noble Lords, although I am sure they need no reminding, that the Bill could hardly be described as a party political measure. It was introduced following a careful inquiry by a most distinguished former Director of Public Prosecutions and his Scottish opposite number. It was on the recommendations of the Hetherington-Chalmers Report that the legislation was introduced.

The present Prime Minister certainly did not embark on legislation in the sense of introducing it for the first time, as was suggested in one speech. After that Bill had been first presented to the House of Commons and it had gone through all its stages in the other place with very large majorities, and it had then been rejected in this House, I cannot see how in those circumstances the Government could have failed to introduce it again and give this House the opportunity to think again.

In that context I have pondered long on the argument of the noble Lord, Lord Jenkins, which he advanced at the time of the Second Reading of the War Crimes Bill, that it was wrong to use the Parliament Act in that case. Quite frankly, I cannot understand a word of the argument which he advanced. I have read the passage in Hansard more than once. According to his lights, it is wrong for the elected House to get its way when in two successive Sessions it votes for a measure with a vast majority on a free vote, but it would be entirely right, according to the noble Lord, Lord Jenkins, for a government to force through a measure with a Commons majority of two in the dying years of a parliament, provided that the measure was in the government programme and had clearly been forced through the other place by arm-twisting Whips, if there are such things, which I very much doubt.

I can tell the noble Lord, Lord Mayhew, what is going on at the present time. The Metropolitan Police are conducting a major investigation. The War Crimes Unit was established on 28th May 1991 under the direction of the Commissioner of Police for the metropolis. It consists of 11 police officers and five civilian staff. Active inquiries are progressing. They started in this country and they are continuing in a number of foreign countries. An Answer was given to a Private Notice Question by my right honourable friend the Attorney-General in another place the other day. It is not possible for me to give any further information as to when any prosecution might be brought.

The quantity of legislation was criticised by the noble Earl, Lord Russell, and also by the noble Lord the Leader of the Opposition, Lord Cledwyn of Penrhos. Quite clearly, a great deal of legislation does not indicate good government. But the converse is not true either. Legislation can mean less and better government. A great deal of the legislation in this Parliament has been directed to that end. To use the words of the noble Earl, I am glad that we have the itch to make changes. Privatisation—contracting out—means less government and not more. More opportunities for the citizen to play a part in the management of schools means less direction from the centre and less government.

The noble Earl may not like it, but that is his political taste. But I do not believe that it is very easy to argue philosophically that the measures that we have taken have in each case resulted in more government; in many cases they quite plainly resulted in the reverse. The National Health Service Trust hospitals mean more devolution of management and less government from the centre.

Comparisons with the past do not paint a picture of a vastly overloaded legislative programme. That may come as something of a surprise to people. Between 1968 and 1979, 917 Bills were passed; between 1980 and 1991, 722 Bills were passed; between 1974 and 1979, Parliament produced 186 Bills; between 1979 and 1983 there were 159 and between 1983 and 1987 there were 137.

Lord Simon of Glaisdale

My Lords, it is true that there were fewer Bills but they were very much lengthier than before.

Lord Waddington

My Lords, that may indeed have been the case, but many of them were very complicated and I suggest very important reforming measures. I refer, for example, to the Education Reform Act and the privatisation measures. I believe that any of us who had anything to do with the run up towards the privatisation of water, electricity and gas soon learned how enormously complicated those exercises were. However, I suggest that they were still very beneficial exercises.

One criticism is that there is too much legislation; another is that it is not properly considered by Parliament and that there is insufficient opportunity for this House to exercise to the full its responsibilities as a revising Chamber. But simply because we are only a revising Chamber, and it is not our job to set out to thwart the will of the elected House of Commons in major matters of legislation, I do not believe that it is reasonable to argue, as some do from time to time, that significantly more extensive parliamentary scrutiny would produce a radically different outcome so far concerns the key parts of a particular government's programme.

For example, perhaps we may consider the Act setting up the community charge. It is the principle of the flat rate charge for each user of local services, not the detail of the Act, which has led to its rejection. No amount of extra scrutiny here would have removed that principle because it was determined by the Government which had a mandate from the electorate for it. We know, because of the whipping system, that the Bill would have gone through in all its essentials however much time had been made available for scrutiny in this place.

Plenty of time is spent here scrutinising and criticising the detail of legislation. For example, the Broadcasting Bill in the 1989–91 Session led to well over 1,000 amendments being made in this House. A total of 46 hours was spent in Committee and 21½ hours on Report.

Earl Russell

My Lords, I am grateful to the noble Lord. I take his points about the principle of that Bill. But there were details which we did attempt to amend and which could have saved the Government some trouble—such as the attempt to collect the poll tax from students.

Lord Waddington

My Lords, the noble Earl may be right that if some amendments had been made the Bill might not have attracted quite as much criticism. But I think he would agree with me that the principal criticism has been the central framework of the legislation.

I could give many other examples of extensive revisions and improvements which this House has made in Government legislation in recent years. Indeed, the noble Lord, Lord Cledwyn of Penrhos, mentioned the number of defeats which the Government have suffered. The fact that improvements and revisions have been made in legislation which has been brought to this House reflects great credit on the House and on those on all sides who agree on the management of its business. We have concentrated the time available on what really matters.

Take for instance the 1990–1991 Session. With a State Opening on the 6th November and a full, indeed quite generous, quota of Recesses at Christmas, Easter and Whitsun and a shorter than usual spill-over, we have seen the enactment of 35 Bills, including some solid and quite contentious measures. I cannot remember—because it was my first year here as Leader of the House—any really late nights in the 1990–91 Session. In fact, I can remember only one and that was the Second Reading of the War Crimes Bill when a great number of noble Lords wished to speak; but there were no others. The Government did not have an easy ride, but there was extensive scrutiny of legislation without late nights. There were a number of Government defeats and a number of Government concessions. The programme was managed sensibly as the result of the co-operation of all sides of the House and as a result of the recognition by all sides of the House of the proper role of this place.

I listened with great attention to what the noble Lord, Lord Cledwyn of Penrhos, had to say. I would not wish to leave the House with the impression that I think no lessons can be learnt and that nothing can be done to improve the way we do our business. I should not like it to be thought for one moment that we are deaf to comments on the nature and scale of the legislation brought forward. In my recent evidence to the Jellicoe Committee—and we are all very grateful to my noble friend Lord Jellicoe for the work that he has done on that committee—I made clear the Government's willingness to consider with an entirely open mind any recommendations which the committee might make. With a strong base to build on and the successful arrangements we have for the consideration of European Community business and matters in the science and technology field, one possibility which was aired in evidence was that there might be new arrangements for handling measures of law reform. Law reform measures were mentioned during the course of the debate today.

As noble Lords who have been involved in the past in the preparation of legislative programmes will recall, law reform can all too often be the Cinderella and be left behind simply because the programme is packed with other measures.

I should perhaps have mentioned earlier in my remarks the speech made by the noble Lord, Lord Macaulay of Bragar, but I am just reminded that he made the point that there is much delay in dealing with Law Commission reports. That of course is a problem which is shared by England, Wales and Scotland. I shall not be tempted down the path which he walked, and talk not of the legislation that has been passed or introduced, but of legislation which might have been introduced. I only say that I cannot see that there is any ground for complaint if a Bill is introduced to deal with the whole of Britain rather than two Bills—one for Scotland and one for England—dealing with the same subject matter. The Local Government Finance Bill of course contains a quite separate Scottish part.

I listened to what the noble Lord, Lord Mackie of Benshie, had to say about forestry. Even if I was a master of the subject I could not possibly do justice to it in this short debate. I hope he will not mind too much if I promise to draw the matter to the attention of the Minister. If I glean any new information which may be of help I shall certainly write to him.

It will not have escaped the notice of the House that a Select Committee is also meeting in another place to look at procedural matters and that my right honourable friend the Leader of the House of Commons has, on a personal basis, submitted a wide range of ideas for consideration. I shall not go into the detail of those now, but some of them would, if adopted, lead to a smoother and more predictable flow of business and arguably better consideration of Bills in another place, all of which I am sure would he helpful in meeting some of the concerns which were expressed by noble Lords, including the noble Lord, Lord Cledwyn of Penrhos.

I must deal with the very important speech about the use of Henry VIII clauses. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for raising this matter which he has raised before. The Government's view on the use of such clauses is that in a limited range of circumstances a power to amend primary legislation by order may be justifiable. Ministers have undertaken that such powers will not be sought without the most careful consideration and they invariably attract the special attention and scrutiny of the House. They certainly never get past the noble and learned Lord, Lord Simon of Glaisdale. They attracted attention, for example, in our debate on 2nd December during the Committee stage of the Local Government Bill. The noble and learned Lord, Lord Simon, was as always assiduous in searching out and examining such a provision, and it was removed from the Bill.

Although they occur in other types of legislation, Henry VIII clauses tend to be of particular value in local government legislation where, in consequence of a reorganisation of some aspect of local government, detailed changes need to be made in primary legislation dealing with a wide range of matters. All of these cannot realistically be settled before the primary legislation is brought forward. Henry VIII clauses have been in all major local government Acts going back to the war. There was such a clause in the Local Government Act 1963.

I have to tell the noble and learned Lord that it would be impossible to guarantee that Henry VIII clauses would never be used in future. Such clauses may be justified on the grounds of flexibility. They may arise where a new statutory framework—for example, relating to the regulation of some public body—is being put in place, and it is acknowledged by the Government that in the light of future developments that framework may no longer remain entirely appropriate and may need amendment. In these circumstances a Henry VIII clause enables the necessary amendments to be made to the relevant primary and subordinate legislation without requiring the Government to return to Parliament for amending primary legislation each time the scheme in question needs amendment. We all know too well how difficult it can sometimes be to get a place in the legislative programme just at the time when there are very strong reasons for requiring a place.

By re-reading the intervention which the noble and learned Lord made in our debate on 2nd December, I am prompted to correct his recollection on just one point. He stated that until quite recently—from 1932 onwards, except for one isolated example at the beginning of the 1970s—there was no attempt to introduce Henry VIII clauses. I have not made an exhaustive check but quick inquiries revealed that there have been several other occasions in that period when such clauses appeared. There was one, for example, in Section 84 of the Local Government Act 1963 and there is a somewhat modified version in the Social Security Act 1980. There are at least three examples drawn from the 1960 statute book when I think that the noble and learned Lord, Lord Simon of Glaisdale, was the Solicitor-General. They are to be found in the Ghana (Consequential Provisions) Act 1960, the Cyprus Act of 1960 and the Payment of Wages Act 1960.

I have spoken for rather a long time. I think I should close now, although there are many other issues which I could raise. Perhaps I should mention one other point in the context of the speech of the noble and learned Lord, Lord Simon of Glaisdale. He complained about Bills ousting the hybrid procedure. I think he is referring to Clause 26(2) of the Local Government Bill. I gather that my noble friend Lady Blatch has talked to the noble and learned Lord about the matter and I hope that she may have been able to give some help.

Lord Simon of Glaisdale

My Lords, I am sorry to tell the noble Lord that neither has yet been able to convince the other.

Lord Waddington

I fear, my Lords, that, with the best will in the world and the best will on both sides, that often happens. The provision which appears in the Local Government Bill is well precedented. Recent examples can be found in Section 79(4) of the Airports Act 1986, Section 143 of the Local Government Finance Act 1988 and Section 14(3) of the Official Secrets Act 1989. Now I really have gone on for too long. Once again I am grateful to the noble Lord, Lord Jenkins of Hillhead, for allowing us to have a profitable and reasonably amusing afternoon.

5.21 p.m.

Lord Jenkins of Hillhead

My Lords, I do not in general believe that a second speech from the same speaker greatly advances the conduct of a debate, particularly when a third speech—or at any rate a third intervention from him—is pending, as it is very shortly from me on the Prime Minister's Statement on Maastricht. I shall almost confine myself to thanking those who have taken part in the debate and in particular thanking the noble Lord the Leader of the House for what I would describe as a courteous and spirited reply. I do not think he answered most of my points but he answered quite a few others, some of which were even relevant.

Of the four jewels in the crown that I mentioned he only really applied himself to one, the War Crimes Bill —I expect because it was closest to his heart—except in the case of the others to discuss the parliamentary handling rather than the merits of them. In regard to the War Crimes Bill I was frankly surprised that he appeared to suggest that the Government were bound —certainly almost bound—by a report from a former Director of Public Prosecutions. He certainly adduced it as a powerful argument. It is most extraordinary to take the view that such a report from a figure of quality, an upper middle grade legal official, should outweigh the vast weight of the most senior judicial opinion which was expressed in this House on that issue.

Lord Waddington

My Lords, when I was close to using terms like "almost bound" I was not referring to the first introduction of the Bill. I was saying that after the Bill had passed the House of Commons with thumping majorities and had been rejected here the Government were almost bound to ask this place to have another look at the matter.

Lord Jenkins of Hillhead

My Lords, in that case I do not see why the noble Lord brought in the report of the former Director of Public Prosecutions. However, in order that I may end on a fairly non-controversial note and also because I believe that debate should try to advance our minds and not be merely a repetition of statement, I thought the noble Lord probably had a point about a slight contradiction in my previous speech with regard to my view that mandated government Bills, heavily whipped, about which I have been rather sharp this afternoon, had a priority over those which came without mandates and on a free vote of the House. So I allow him one point but I thought that his points of merit on the Bill and a good part of his other speech were perhaps a little less valid. But I thank him. My Lords, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.