Hybrid Instruments: Select Committee (Hansard, 28 November 1994)

§ The Chairman of Committees (Lord Boston of Faversham)
My Lords, I beg to move the first Motion standing in my name on the Order Paper.
481 Moved, That a Select Committee be appointed to consider hybrid instruments and that, as proposed by the Committee of Selection, the following Lords together with the Chairman of Committees be named of the Committee—

V. Craigavon,

L. Gallacher,

L. Murton of Lindisfarne,

V. Oxfuird,

L. Wade of Chorlton.—(The Chairman of Committees.)

§ Lord Simon of Glaisdale
My Lords, this Motion is generally passed on the nod; but in view of what happened last Session, and in view of continued efforts to bypass the procedure of your Lordships' House and to suspend its Standing Orders, I hope your Lordships will allow me to say a word or two.
The hybrid instrument procedure is itself the result of attempts to bypass the hybrid Bills procedure. As your Lordships are well aware, certain Bills which are generally speaking Public Bills, in other words affecting the public generally, occasionally include provisions which affect adversely particular individuals or groups of individuals in contradistinction to the public generally. They are examined by the independent examiners of Bills, who certify such measures as hybrid. They then go before the hybrid Bill committees of each House.
That procedure is highly inconvenient to administrators. One ought to understand their concern. Administrators generally are concerned with laying down general rules which will do justice in the generality of cases.
Private interests and rights are apt to be of considerably less concern, and indeed may sometimes be felt to stand in the way of speedy and orderly administration. Therefore, departments faced with the inconvenience of the hybrid Bill procedure ingeniously decided to put the hybrid provisions —namely, those which affected adversely individuals and bodies—not into the Bill itself but into subordinate legislation under the Bill, thereby escaping the hybrid Bill procedure.
In 1924 your Lordships' House alone countered that by setting up the hybrid instruments procedure whereby a hybrid instrument—one adversely affecting individuals or groups of individuals—would be considered and grievances heard. That procedure was considered nearly 50 years later by the Joint Select Committee on Delegated Legislation under the chairmanship of the late Lord Brooke of Cumnor. The Committee found that the procedure was valuable and that there was nearly 50 years' of proof of its value in safeguarding the interests of individuals who might be adversely affected by delegated legislation. The Committee recommended that it should continue. It also recommended that the procedure should be extended to the other place, but that has not yet been found possible.
That being so, departments tried to get round the hybrid instrument procedure as well. They did that by inserting into Bills the stipulation that the regulation 482 should not be subject to the hybrid instrument procedure, notwithstanding the Standing Orders of your Lordships' House.
Your Lordships will remember that matters came to a crunch with the Railways Bill of two Sessions ago. That Bill included a schedule dealing with railway pensions. Railway pensions were statutory contracts between the Minister and the pensioners, the railway servants. That Bill took the power for the Minister, in effect, to re-write those contracts. If ever there was a case for the Hybrid Instruments Committee it was that. Nevertheless, the Bill proceeded to try to eliminate the hybrid instruments procedure of your Lordships' House. That was challenged, and my noble friend Lord Henderson of Brompton moved an amendment to eliminate that provision which interfered with the Standing Orders of your Lordships' House. The Government won the Division by one vote, according to the tellers although according to the Division Clerk there was an even division of votes. Your Lordships will remember that Disraeli said that a majority is the best repartee. However, your Lordships may think that a government majority of one in your Lordships' House is not particularly brilliant repartee.
The matter was raised again at the beginning of the last Session. Also in the last Session, your Lordships' Procedure Committee considered hybrid instruments procedure. It quoted what was said by the Brooke Committee, endorsed it and recommended that the procedure should continue. Notwithstanding that recommendation, in two Bills last Session there were renewed attempts to try to do away with it. One was the Local Government (Wales) Bill and the other was the Police and Magistrates' Courts Bill. In the case of the Welsh Bill the Minister agreed with an amendment which allowed the provision to be eliminated. So far as concerns the English police Bill, the Minister seemed sympathetic. He took an amendment away to consider it, but in the end turned it down.
That is how the matter stands now. In effect, it comes to this. It is idle to accede to this Motion and to go to the trouble of setting up the Hybrid Instruments Committee if departments are allowed to interfere in the measures they put forward in order to eliminate the procedure.
I hope that the noble Viscount the Leader of the House—because I think that this is more a matter for him than for the noble Lord the Chairman of Committees—will be able to assure your Lordships that the departments of the Government will be instructed, if they have not already been, that they should not make any further attempt to interfere with the procedures of your Lordships' House in this regard except in an overwhelming case. That case will always be limited, as the Brooke Committee suggested, to where there is an alternative method of considering the grievance of the private citizen whose rights are being invaded.

§ Lord Wigoder
My Lords, I agree totally with what the noble and learned Lord, Lord Simon of Glaisdale, has just said. I should like to add one observation. I suggest to the noble Viscount the Leader of the House that it goes far beyond the principles of the comity that 483 should exist between the two Houses of Parliament that the other House should present to us for our consideration Bills in which it has deliberately included clauses designed to prevent this House from operating its own Standing Orders.

Viscount Cranborne
My Lords, it may be for the convenience of the House if I intervene briefly before the noble Lord the Chairman of Committees answers the remarks of the noble and learned Lord and the noble Lord.
In principle, it is always open to your Lordships to examine all questions of procedure and all questions of legislation that are laid before the House. That would include the question of hybrid Bills and hybrid instruments. Equally, I point out to your Lordships that it would perhaps not be desirable to go through hybridity procedures merely for the sake of doing so where it was the opinion of your Lordships' House that that was not necessary. Indeed, in terms of subsidiary legislation, we have a very good example before us in the recommendation of my noble friend Lord Rippon, and indeed the Delegated Powers Scrutiny Committee, for the examination of secondary legislation under the Deregulation and Contracting Out Act.
I listened with very great attention to what the noble and learned Lord, Lord Simon of Glaisdale, said. I always listen to the noble and learned Lord. Indeed I have been warned that if I do not I shall live to repent it. I can assure the noble and learned Lord that given the safeguards that already exist and the clear watchdog element who flourish so sensibly in your Lordships' House, there is absolutely no reason to suppose that hybrid instruments of one kind or another will not be put before your Lordships for consideration in the coming Session. I note what the noble and learned Lord has taken the opportunity to say on the Motion. I have no doubt, however, that we should proceed to appoint the committee as usual. If we did not, the noble and learned Lord might be even more upset with me than he possibly already is.

§ The Chairman of Committees
My Lords, I thank the noble Viscount the Leader of the House for his helpful intervention. I am also grateful to the noble and learned Lord, Lord Simon of Glaisdale, and to the noble Lord, Lord Wigoder, for their interventions. In particular I thank the noble and learned Lord for having given notice that he proposed to raise the matter. Even with that notice, I am afraid that I am not in a position to match the entertaining historical allusions of the noble and learned Lord.
So far as concerns my own responsibilities, the Hybrid Instruments Committee needs to be re-appointed because a large number of Acts on the statute book contain powers to make statutory instruments which may be and, in some cases are bound to be, hybrid. For example, as the noble and learned Lord will know, orders establishing urban development areas, and urban development corporations, made under Section 134 of the Local Government, Planning and Land Act 1980 are inevitably hybrid.
Indeed, I have reason to believe that later this very week I shall be reporting to the House as hybrid two instruments of which my counsel has had advance notice. Therefore the noble and learned Lord, Lord Simon of 484 Glaisdale, agrees, I am sure, that the Hybrid Instruments Committee should be re-appointed for this Session. I beg to move.

§ Lord Dean of Beswick
My Lords, perhaps I may intervene before the Chairman of Committees sits down. He said that he would be reporting two hybrid instruments, I believe, this week. What powers would be left to this Chamber if the committee declares a decision on any of those hybrid instruments? Will any power still be vested in your Lordships' Chamber to deal with those instruments?

§ The Chairman of Committees
My Lords, if the Motion is agreed to this afternoon, the Hybrid Instruments Committee will be set up. It will then have an opportunity to consider the submissions about the two instruments which I have reason to believe will be reported upon. Then, of course, as always in subsequent proceedings it is a matter for the ultimate decision of your Lordships' House.