Hybrid Instruments: Select Committee (Hansard, 2 December 1993)

§ The Chairman of Committees (Lord Ampthill)
My Lords, I beg to move the first Motion standing in my name on the Order Paper.

§ Lord Simon of Glaisdale
My Lords, this Motion generally goes through on the nod, but in view of what happened during the last Session on the Railways Bill it may be desirable to pause for a moment. The Hybrid Instruments Committee is a constitutional organ peculiar to your Lordships' House. It was set up for the purpose of safeguarding individual rights and interests which might be affected by subordinate legislation. It is idle to set it up if, whenever it may be of use, it is set aside by a statutory provision suspending the Standing Orders of your Lordships' House in that regard.
The hybrid instruments procedure arose out of an attempt to evade the hybrid Bill procedure. As your Lordships know, a hybrid Bill is in general a public Bill, in other words affecting the public generally, but containing some provision which adversely affects a. particular individual or body, their interests or rights, in the way that a private Bill does.
When the independent examiners of Bills certify that the Bill is hybrid, it goes to a hybrid Bill committee in both Houses. That is, of course, inconvenient for administrators, who want to get on with the job. A public Bill, with all its stages in both Houses, is bad enough; the hybrid Bill procedure adds an extra stage with private rights and interests apt to become inconvenient for administrators wanting to lay down a broad general line which will do justice in the overwhelming mass of cases.
Thus, what was done, ingeniously, was to put the hybrid provisions—those affecting particular bodies—not into the Bill itself but into subordinate legislation under the Bill. In view of that, your Lordships' House alone set up the Hybrid Instruments Committee which each Session scrutinises hybrid instruments that might infringe individual rights and interests. The procedure was considered by the Joint Select Committee on Delegated Legislation of 1972–73. It said: This procedure has for nearly 50 years"— that was 20 years ago— provided valuable safeguards for private interests affected by delegated legislation, and should be retained". Notwithstanding that recommendation—the report was accepted by both Houses of Parliament—there have been repeated recent provisions obviating the procedure by statutory intervention. They culminated last Session in the Railways Bill. There was a late schedule dealing 667 with pensions. In effect, it gave the Minister, being a party to the contract, the right to re-write the contract relating to pensions. As a sub-paragraph, that would probably not, in the ordinary way, have been seen. Fortunately, however, your Lordships had set up the Delegated Powers Scrutiny Committee which was such a success last Session. It drew your Lordships' attention to the provision, signalling reasonably loudly that it ought to be primary legislation and very loudly that if it were still delegated legislation, the hybrid instruments procedure should not be suspended. Your Lordships allowed it to be done by subordinate legislation but objected strongly, through an amendment moved by my noble friend Lord Henderson of Brompton, to the suspension of the Standing Orders of your Lordships' House.
The matter went to a Division, which the Government won by a majority of one as the Tellers reported it but which resulted in an even vote of 124 each, according to the Clerks. It is worth while comparing that Division with the one that took place last night. What happened was that a considerable number of noble Lords who support the Government voted against them on the previous occasion and even more abstained. The Cross-Benches voted overwhelmingly for the amendment.
With that Pyrrhic majority, I doubt very much whether any department would try it on again. But the message should go out that your Lordships will be more vigilant than ever to vindicate the procedures of your Lordships' House.
There is a further point. Valuable as the scrutiny committee has proved, it only operates once a Bill has been published, in effect after Second Reading. But once a provision has been put into a Bill, a department is liable to fight very hard—as it did on the Railways Bill—to preserve that provision. That indicates the need for two further steps. The first is that parliamentary counsel should be responsible to the Law Officers. At the moment, they are nominally responsible only to the Prime Minister. So, in fact, they are irresponsible. Their responsibility to the Law Officers was recommended by Sir Robert Andrew, a very distinguished civil servant, who was asked to report on the Government's legal services. His recommendation has more recently been endorsed by the magisterial Hansard Society report on the legislative process.
The other step that is needed, coincidentally, is that the Legislation Committee of the Cabinet should resume its former role of scrutinising legislation critically before it is introduced, not merely as a business committee, as it now does, and refer objectionable Bills back to the department. In the meantime, in setting up this committee again, your Lordships are, in my submission, establishing that your Lordships are adhering to your legitimate, necessary and recommended role in this regard.

§ Lord Shepherd
My Lords, I have a great deal of sympathy with what the noble and learned Lord, Lord Simon, says. However, in the light of further business I do not seek to amplify it. I understand that the Leader of 668 the House recognised the genuine unsatisfactory state where there is a clear division between the Houses but a small majority on a matter which is of importance to this House as part of Parliament.
My hope was that the Leader of the House would set up a committee to look not only at that sort of matter but also at other matters concerning the Procedure Committee. Can the noble Lord the Leader of the House say whether that committee is likely to be set up and when; and whether the matter that was raised by the noble and learned Lord, Lord Simon of Glaisdale, will be placed on the agenda to be examined by that committee as a matter of urgency? We do not know, in terms of legislation that may be put before this House, whether we may be faced with the same difficulty and conflict. If the noble Lord can give those assurances, many of us would be content.

§ The Chairman of Committees
My Lords, the House will perhaps be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for reminding us of recent history, with particular reference to the Railways Bill. This is a matter about which the House feels extremely strongly, as was evinced by the closeness of the vote which took place on that occasion. The setting up of this committee is obviously something which the House would wish to do. I believe also that the House is extremely grateful for the existence of the Delegated Powers Scrutiny Committee, which pointed out very clearly to the House the points which were raised in the Railways Bill. I remind the House, however, that the Railways Bill was precedented in this case by quite a number of Acts now upon the statute book: the Airports Act 1986; the Wages Act 1986; the Local Government Finance Act 1988; the Official Secrets Act 1989; and the Local Government Act 1992, all of which contain—

§ Lord Simon of Glaisdale
My Lords, does the noble Lord not recognise that that means that the fault that took place last Session was compounded and that repeatedly there have been inroads on the privileges of this House?

§ The Chairman of Committees
My Lords, I am not prepared to accept that the situation has been compounded. I am, however, prepared to agree that the event was yet another illustration of government wishing to push through matters which this House does not care very much to have happen, evinced, as I said, by the vote which took place on the Railways Bill. There is no doubt that this House would like to retain for itself the right that exists according to standing orders that in these events we should be allowed to look at such matters. That is a right which I believe this House will probably fight for. I am assured by the Leader of the House that in setting up the committee, which he is forming to look at our procedures, the working party which is in his mind will undoubtedly examine the matter raised by the noble Lord, Lord Shepherd.
Obviously, I shall not have succeeded in totally satisfying the noble and learned Lord, Lord Simon of Glaisdale. I believe that the whole House shares to a great degree the feelings that he expressed. But the vote went the way that it did. The House, reluctantly perhaps, has to accept that. I beg to move.