Lords Sitting of 20 October 1994

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Norwich.

Youth Training
Earl Russell Earl Russell asked Her Majesty's Government:
Whether, further to the answer of Viscount Goschen on 8th February 1994 (Official Report, col. 1497–1499) and the answer of the Viscount St. Davids on 20th July 1994 (Official Report, col. 232–235), they have any plans to improve the information available to them on 16 and 17 year-olds not in education, youth training or employment throughout the United Kingdom.
Lord Ingle wood: My Lords, the Government are satisfied that the Labour Force Survey provides regular and reliable information on the labour market and education status of 16 and 17 year-olds.
Earl Russell: My Lords, are not the Government rather easily satisfied? Is the Minister aware that the two previous questions to which I refer in today's Question show that the Government are in considerable ignorance of the existence of Large numbers of 16 and 17 year-olds who are not in education, youth training or full-time employment? Further, are the Government aware that if they are not concerned about the matter, most of the rest of us are?
Lord Inglewood: My Lords, I believe that the noble Earl is perhaps being a trifle unfair to say that we are ignorant. The Government are aware of many sources of information relating to the kind of matters to which he refers. I mention especially the work provided for the Government by the heads of the Careers Service offices which is made available and about which additional information can be provided to your Lordships upon request. I understand that in the contracts currently being made with the Careers Service it will be stipulated that such information should be made public.
Baroness Turner of Camden: My Lords, can the Minister tell the House what happens to young people who fall through the net and who are not in full-time education, in training or in employment? Does the Minister understand that this is not simply a statistical exercise? We are worried about what happens to such young people. We are concerned that young people are sleeping rough and that young girls are also living on the streets. How can the situation be monitored unless there is reliable statistical information? What are the Government doing about it?
Lord Inglewood: My Lords, it is true to say that throughout the House there is considerable concern about the young people to whom the noble Baroness referred. The Government are currently working on a cross-departmental basis to try to look further into the
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problem to ascertain what further steps might be taken As I said, the information derived from the Labour Force Survey, which, after all, is carried out on the ILO methodology, is the starting point for the Government's analysis of the state of affairs. Moreover, as I also pointed out, there is further information available to the Government, and to others, to enable them to look further and more deeply into the matter. I should not like to pre-empt any findings that may emerge from any work that the Government could be undertaking at present.
Lord Cledwyn of Penrhos: My Lords, when the matter was discussed previously during Question Time, as the noble Lord will remember, I referred to the problems which existed in South Wales. On that occasion, the noble Lord's predecessor undertook to raise the matter with the Secretary of State for Wales. Can the noble Lord tell the House the result of those negotiations?
Lord Inglewood: My Lords, as the noble Lord, Lord Cledwyn, points out, that undertaking was given. As I said, a cross-departmental investigation is being carried out to ascertain the best way forward and the steps that can be advanced to try to improve the present state of affairs.
Baroness Faithfull: My Lords, does my noble friend the Minister agree that on the last occasion the matter was debated in the House it was pointed out that if the kind of job that a boy wanted was not available in the area where he lived, consideration would be given to his being—I was about to say transported, but perhaps not—given the chance to move to another town where there was the opportunity for him to follow what he wanted to do? That is what the French do. Moreover, I understood from the department that the matter was being looked into. Is that the case?
Lord Inglewood: My Lords, I thank my noble friend for posing that question. I do not believe that even the Government's critics have suggested that we transport people. It is true that TECs can contract across their boundaries for various forms of training if that is appropriate and if it is not provided in the area of the TEC involved. I gather that that is still the practice.
Lord Ewing of Kirkford: My Lords, will the Minister take account of his own situation as distinct from that of other young boys in the country who, having failed to obtain employment, experience great difficulty in even transferring to another area or finding a job? Having been defeated during the recent European elections, the noble Lord now finds himself as a government Minister answering Questions at the Dispatch Box. Can I give the Minister a list of at least 1 million young boys in this country who would gladly change places with him?
Lord Inglewood: My Lords, as regards the first personal point that the noble Lord made, I am fully aware of the fortunate position in which I find myself. I have always endeavoured to bear that in mind when considering these matters. If the noble Lord, or any noble Lord, has particular examples of where the

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Government have not met the guarantee that is given to 16 and 17 year-olds, I very much hope that they will draw them to the department's attention, and also to the attention of the TECs concerned, in order that that can be remedied as soon as possible.
Lord Northbourne: My Lords, does the Minister accept that young people in the categories described in the Question are disproportionately represented among the figures for juvenile crime and substance abuse, and that this is therefore a matter of the greatest importance to society as a whole as well as to the young people concerned? Does he also accept that voluntary organisations, and particularly the budding Foyer movement, have an important role to play in making contact with such young people?
Lord Inglewood: My Lords, the noble Lord is quite right. This is a matter which is of wide general concern to society as well as obviously to the individuals concerned. As regards assistance, I am sure that the Government and everyone else will agree that this is a matter for all interested parties. Collectively we can achieve a great deal more than we can individually.
Baroness David: My Lords, may I ask the Minister whether the Government are thinking of community service for some of these young people who perhaps cannot find a job or a place at the moment? I understood that that was being favourably looked on in government circles and I hope that it is being followed up. Can the Minister tell us anything about it?
Lord Inglewood: My Lords, as regards 16 and 17 year-olds, a commitment has been given to provide youth training. That is the way in which the Government believe it is appropriate to proceed in the case of the 16 and 17 year-olds.
Baroness Elles: My Lords, will my noble friend ensure that local authorities are encouraged to make access facilities available for youth movements and youth groups who could help many of these young people, even if they are not in full-time training during the day?
Lord Inglewood: My Lords, I thank my noble friend. That is obviously a good suggestion. We will do all that we can to try to ensure that that occurs.
Lady Kinloss: My Lords, is the Minister aware that the citizens advice bureaux continue to receive visits from large numbers of young people who are registered for youth training but fail to receive youth training places? Can the Minister say what help the Government plan to help those whose needs are not being met?
Lord Inglewood: My Lords, it is obviously part of the Government's purpose, as well as part of their commitment, to ensure that the youth training places are made available. As at the end of September, only 1,601 people had applied for youth training places who had not received them. As a proportion of the total of just over 1.3 million 16 and 17 year-olds in the country, it is a small proportion. I return to the reply I gave earlier; namely, that where any noble Lord has an example of
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the system going wrong, I hope that he will draw it to the attention of the people concerned, including the department, because that is the best and the quickest way to resolve the difficulty, which, thanks to the endeavours of the Government, is being reduced all the time.
Lord Elton: My Lords, given that this Question is on the narrow issue of the availability to the Government of information, is my noble friend aware that most of us are astonished by the amount of information he has on the subject? That information goes far beyond the Question on the Order Paper and it shows that the Government are particularly well informed.
Lord Inglewood: My Lords, I have already said that we are very concerned about this matter.
Earl Russell: My Lords, may I ask for clarification of the Minister's reply to my first supplementary question? He said that the information was available on numbers of 16 and 17 year-olds not in education, employment or youth training. If that is so, why, in the two previous cases to which I have drawn attention in the Question, did the Government give me Written Answers stating that it was not available?
Lord Inglewood: My Lords, I thank the noble Earl for his Question. I have endeavoured to discover what the position is and to give the information as I understand it. As the noble Earl will recall from the earlier questions, the information has become available only quite recently.

Wandsworth Borough Council: Housing Policy
3.17 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What change has occurred since 20th July (when they answered a question on this subject) to cause them to withdraw consent to certain sales of council housing by Wandsworth Borough Council.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, no consent has been withdrawn specifically from Wandsworth Borough Council. On 12th September 1994 the general consents, issued in 1981, under which local authorities in England may voluntarily sell housing for owner occupation were replaced by fresh consents.
Lord Dean of Beswick: My Lords, I am sorry to say that on this occasion I do not think that the Minister has answered the Question. I asked what had caused the Government to change their mind because, as stated in a previous edition of Hansard of July, the Government were forcefully in favour of this situation. I made the point that, according to the figures issued in an Institute of Housing magazine of July, some £5 million had been lost in rent by Wandsworth since the introduction of this policy in 1990. If the Government have withdrawn

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permission now, there must be something wrong. Should not the district auditor be brought in to determine whether the law has been broken?
Viscount Ullswater: My Lords, I said that the consents had been replaced by other consents. It is up to the local council if it feels that it should suspend its sates schemes. It will be for individual local authorities to consider whether they need to make any changes to their sales schemes in order to conform with the new consents.
Lord Jenkins of Putney: My Lords, is the Minister aware that there is some feeling that Wandsworth is following in the steps of Westminster in arranging its housing affairs so as to preserve its political existence? Will the Minister see that this matter is looked into by the district auditor?
Viscount Ullswater: My Lords, if there are any objectors to the policy of the local council, then it is right that the district auditor should be involved, but it is a matter for the district auditor.
Lord Finsberg: My Lords, does my noble friend agree that the granting of consents to the sale of council houses—I was a Minister when the first one was introduced—has been beneficial to the inhabitants of Wandsworth, whose citizens have constantly re-elected a Conservative council in that borough?
Viscount Ullswater: Yes, my Lords. I believe that the council tax payers are best placed to judge the situation. In municipal elections earlier this year they showed that they were well pleased with the council's overall performance.
Lord Williams of Elvel: My Lords, on a matter of information, is it not the case that there has been a new notice from the Department of the Environment specifically revoking the previous government consents under which Wandsworth operated its priority group sales scheme, voluntary sales to sitting tenants and sales on the open market? If that is the case, and I believe it to be the case, how can the Minister justify the first reply to the Question on 20th July that the policies and decisions of Wandsworth Borough Council are a matter for council tax payers? The Government have intervened.
Can the noble Viscount confirm that my understanding is right? Secondly, are the council tax payers in charge in Wandsworth, or are the Government?
Viscount Ullswater: My Lords, I thought that I had made clear that the consents which have been issued since 1952 and were updated in 1981 needed technical update. They were all withdrawn and replaced by new consents to every local authority, not only Wandsworth,
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on 12th September. It is up to the councillors to decide whether the policy that the council is following is the right one.
Lord Williams of Elvel: My Lords, in that case why is a Wandsworth "spokesperson"—a word which I do not like—quoted in the journal which my noble friend mentioned as saying:
"Our way of doing things surely meets the objectives of the government better than the one the DoE is proposing"?
Viscount Ullswater: My Lords, the council has made representations to the DoE, and obviously we are considering them. As I have already indicated, the council thought it appropriate at the moment to suspend its sales scheme. It is up to the council to make certain that any sales will be compatible with the authority's statutory duties to other people in housing need.
Lord Ennals: My Lords, is this not obviously a matter which should be considered by the district auditor?
Viscount Ullswater: My Lords, of course the district auditor would be involved if there were any objectors.
Lord Strabolgi: My Lords, is the noble Viscount aware that, in contrast to what my noble friend Lord Jenkins of Putney said, it was not Wandsworth which was studying what Westminster did in this disgraceful affair but Westminster which sent officials to Wandsworth to see how it could be done?
Viscount Ullswater: My Lords, that is way outside the scope of this Question.
Lord Dean of Beswick: My Lords, is the Minister not aware that in the article which was printed in Inside Housing, the magazine of the Institute of Housing, on 23rd September it is stated clearly that:
"Wandsworth LBC has been forced to abandon its priority group sales scheme by the DoE because people who do not live in the borough are buying homes which could be sold to tenants under the right to buy"?
Is that not the reason why the scheme has been stopped? Why does the Minister not admit it instead of skirting round the question?
Viscount Ullswater: My Lords, many councils use general consents to make these voluntary sales, including Camden, Sheffield, Birmingham, Manchester, and many other urban areas.

Education Funding Councils
3.34 p.m.
Baroness David Baroness David asked Her Majesty's Government:
Whether they are satisfied that the education funding councils are supporting adult non-vocational courses adequately.
Lord Lucas: Yes, my Lords. The further education funding councils are responsible for securing the provision of many courses which are not vocational, including basic skills and academic courses. The Higher Education Funding Council for England is continuing to provide funding for "liberal adult education". It is local

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education authorities which have the duty of securing adequate provision for all further education other than that secured by the further education funding councils, and they are funded for that purpose.
Baroness David: My Lords, first, I should like to congratulate the noble Lord on his first appearance to answer a Question at the Dispatch Box. Is he aware that there have been substantial cuts—in the region of 25 per cent. to 30 per cent. in many places—in the provision of non-vocational courses? There are very strong feelings of outrage among a great many people who are feeling the loss of these courses. The quantities of letters I have received and copies of letters to the Secretary of State bear this out.
Is the noble Lord further aware that local management of schools means that schools now have to charge for the letting out of rooms for adult education courses, which used not to happen and is a further burden on LEAs which have to provide funding? I understand that one authority—Hounslow—has had to pay £100,000 in hiring charges. Also, schools may not have space available in the daytime for courses which particularly suit the elderly and some refugees and ethnic minorities, some of whom cannot get out in the evening. Can the noble Lord please persuade the Secretary of State if possible to make a little more money available to LEAs, which may wish to spend more but do not have the money, so that they can provide these courses which are of infinite value to a great many people, not only for themselves but also as a possible means of progressing from non-vocational to vocational education?
Lord Lucas: My Lords, I thank the noble Baroness very much for her kind words. We very much share her opinion of non-vocational adult education. It is a very important part of our educational provision, and that is why we fund LEAs to provide it. We believe that there is a substantial move by adults to pursue courses which end with a qualification and which therefore might be termed vocational. That is one of the main reasons why there appears to be a drop in the take up of non-vocational courses. I point out to the noble Baroness that there has been a substantial rise in the total number of adults pursuing educational courses. That is something which we welcome.
So far as concerns the particular examples which the noble Baroness mentioned, I should be very grateful if she would provide me with the information so that I can take them up.
The Earl of Onslow: My Lords, is it not rather a good thing that we seem to be able to provide some more money for schools in the form of rent and more adult education? It is unusual for a Tory Government to be able to claim some successes. They should be congratulated.
Lord Lucas: My Lords, I thank my noble friend for his kind words.
Lord Dormand of Easington: My Lords, I add my congratulations to the noble Lord on his well-deserved appointment to the Front Bench. However, I am sad that
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he has been given such an evasive answer on this important matter. That remark comes right from the heart, I assure him.
When are the Government going to take this matter seriously? It is at the centre of adult education and leads to a whole variety of educational courses, as the Minister will know, including university degree courses. Perhaps most important of all is the fact that it stimulates people who would normally not take any educational course of any kind at any time. Does he not agree that this is the best value for money that we have in adult education?
Lord Lucas: My Lords, again I thank the noble Lord for his kind remarks. Yes, we do regard this as a very important part of educational provision, but we are placing emphasis on courses which result in a qualification and which can offer people who take them something at the end of the day. Many of those courses share most of the characteristics of what used to be called non-vocational courses and the fact that people prefer to take those courses is to be welcomed.
Baroness Seear: My Lords, perhaps the noble Lord does not realise what a lifeline adult education courses are to many people: people who do not want and for whom there is no point in seeking a qualification; people who look after other infirm people and get out one afternoon a week and would go mad if they could not do so; older people who are at last able to pursue interests which they have wanted to pursue all the time they were working but were not able to do so. Does the noble Lord accept that there is a large section of the community whose social needs are met not through taking vocational courses leading to a qualification which they will never use but who are pursuing interests and ideas they have not had the opportunity to explore earlier?
Lord Lucas: My Lords, in substance I agree entirely with the noble Baroness. Adult education courses are extremely important. They continue in large numbers. They are supported by LEAs. The LEAs will continue to be funded by the Government in order to support them. I pointed out to the House that the appearance of decline in that area is principally due to people choosing to take vocational courses rather than purely leisure courses.
Baroness Young: My Lords, does the Minister agree that many in the House welcome what he said about the importance of the adult vocational courses and the importance to individuals to be able to train and retrain for the jobs available in a rapidly changing world? Does he agree that it ill becomes speakers on the Opposition Benches to complain about what is happening today unless they propose to spend a great deal more money in that area? We should all like to see more courses. However, if one is realistic and responsible one must look at the costs.
Lord Lucas: My Lords, I thank my noble friend for that question. Yes, of course, we place particular emphasis on vocational qualifications. However, I

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emphasise that we: continue to fund LEAs to provide non-vocational courses. We have no intention of reducing or ceasing that.
Earl Russell: My Lords, does the Minister agree that many of us in this House have learned from experience that the distinction between the non-vocational and vocational is not always easy to make?
Lord Lucas: My Lords, yes, I entirely agree. I believe that that is why many adults are able to move to courses which are "vocational" without in effect changing what they are studying.
Lord Monkswell: My Lords, can the Government advise the House when they will start to abide by their philosophy? Is it right that the Government have for the past 15 years said, in effect, that they are not in a position to back winners and losers? Is the Minister aware of the person who undertook a flower arranging course—I believe that such a course is considered to be non-vocational—who went on to found an international business in a very entrepreneurial manner? Surely it is that kind of activity which the Government should support and not relegate to the second division.
Lord Lucas: My Lords, we do not regard such courses as a second division; and we continue to support such activity.
Lord Judd: My Lords, perhaps the Minister will also accept my best wishes for his future in his new role after his long and assiduous apprenticeship on the past two Education Bills. Will the Minister take the opportunity to clarify the situation? We need vocational education for a strong economy. Does the Minister agree that we need a strong economy so that we can have a decent, civilised society? Does he also agree that in a decent, civilised society education can be an important end in itself and that adult education has a distinguished record in this country in contributing to the quality of our lives? Will the Minister give us a categoric assurance that adult non-vocational education will not slip to second place but will remain as high a priority as vocational education?
Lord Lucas: My Lords, I am particularly grateful for the noble Lord's welcome to me at this Dispatch Box. I have listened to him with great pleasure over several years.
Yes, I am happy to state that adult non-vocational education will remain a high priority with us.
Baroness David: My Lords, finally, if the Minister believes that the LEAs have enough funding, perhaps I may read one sentence from one of the many letters that I have received. It states:
"I believe that every pound saved on adult education will end up being spent, probably twice over, on health and social services".
I believe that to be true.
Lord Lucas: My Lords, we do not seek to save money on adult education. Indeed we are spending more on it every year.

Procedure of the House: Select Committee Reports
3.35 p.m.
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move the Motion standing in my name on the Order Paper.
The Motion covers two reports from the Procedure Committee, the first of which was made by the committee as long ago as 23rd May. The delay in bringing the report before the House relates to the main item in it, namely the report of a sub-committee on the procedures to be adopted for scrutinising deregulation orders made under the special procedures laid down in Part I of the Deregulation and Contracting Out Bill. The Motion has been delayed while the Committee and Report stages of that Bill have been taken, and I am glad to be able to say that the sub-committee's recommendation for a change in the Bill—namely that there should be a 60-day period for scrutiny of proposed orders—has been adopted by means of an amendment agreed to in Committee.
The other recommendations made by the sub-committee are based on the assumption that Chapter I of the Bill will pass into law. Briefly, it is proposed that in the first instance the Delegated Powers Scrutiny Committee should take on the task of scrutinising proposed orders and that the same committee should take on the functions of the Joint Committee on Statutory Instruments in relation to final drafts of such orders. It would be open to any noble Lord to table a Motion in respect of the report of the committee on a draft order. Such a Motion would be taken immediately before the Minister's Motion to approve the draft order and the two Motions would be debated together. If the outcome were a resolution of the House to the effect that the order should not be approved, the Motion to approve the order would not be moved.
I should like to express the Procedure Committee's warm thanks to the noble Lord, Lord Aberdare, and his fellow members of the sub-committee for their expeditious but thorough completion of their task. I hope that the House will agree that the sub-committee's recommendations, which have been endorsed by the Procedure Committee, provide a good framework for enabling the House to exercise effective scrutiny of and control over orders proposed to be made under this novel procedure. The other recommendations contained in the committee's two reports are much more limited and I shall touch on them as briefly as possible.
The committee has recommended that three procedures which have operated experimentally should be made permanent. First, there is the procedure for postponing business without notice. This was introduced as long ago as 1985 and has been used only twice. Its main use is on those rare occasions when the dinner hour is reached before the House has reached the business which was planned to have been interrupted. On such an occasion the new procedure is undoubtedly useful, and so the committee has recommended that it be made permanent.

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Secondly, the committee recommends that the arrangement whereby Unstarred Questions may be taken in dinner breaks should be made permanent. The procedure has proved valuable in providing an additional opportunity for Unstarred Questions to be taken, when otherwise the House might simply have adjourned during pleasure, and the time limit of one hour has been respected.
Thirdly, the committee recommends that the arrangement whereby the fourth Starred Question each Thursday is a topical question, chosen by ballot on the previous Tuesday, should be made permanent. This procedure too has worked satisfactorily, although it did not in fact occur today.
In three areas the committee has recommended no change. First, the committee considered a proposal for an Early Day Motion procedure along the lines of that which exists in another place. The committee concluded that such a procedure was less appropriate in this House, where points of view are customarily expressed in debate rather than in the terms of Motions.
Secondly, the committee considered a proposal for a restriction on references to members of the European Parliament along the lines of the restriction on references to Members of another place. In the absence of any similar restriction in other Parliaments, and of any restriction in the European Parliament on references to other Parliaments, the committee concluded that it would be inappropriate to introduce any formal restriction.
Thirdly, the committee considered a proposal for modifying the procedure governing the presentation of public petitions to the House. In another place petitions are referred to the relevant government department, while in this House no action is taken after the petition has been presented to the House. The committee noted that it was open to the noble Lord presenting a petition to send a copy to the relevant department where appropriate and recommend no change.
The committee has also considered the problem which may arise when a Commons Private Member's Bill is before this House and it appears that any amendment made to it may prevent the Bill being enacted because of lack of time in another place. The committee was informed of arrangements to ensure that there was adequate time for Bills to be amended by this House before the last opportunity for consideration in another place. These arrangements seem to have worked as there has been no difficulty this Session.
The committee has concluded that a vote cast in a Division by a noble Lord who has not taken the oath should be treated as invalid and that such a noble Lord should be excluded from the record of those attending the House. The committee has recommended that Standing Order 67, governing the laying of statutory instruments, should be amended so that they may no longer be laid on a Saturday. This would bring the House into line with another place.
Finally, the committee has reviewed the operation of the Special Standing Committee on the Law of Property (Miscellaneous Provisions) Bill and made some
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observations and recommendations, including a proposal that in future such a committee, which is in no way a Standing Committee, should be termed a "Special Public Bill Committee".
I commend the Motion to your Lordships.
Moved, That the second and third reports from the Select Committee be agreed to (HL Papers 58 and 81).—(The Chairman of Committees.)
Following are the reports referred to:

Second Report
ORDERED TO REPORT:
1. DEREGULATION AND CONTRACTING OUT BILL
The Committee referred to a sub-committee the question of the procedures which the House should adopt for making use of the additional opportunity for scrutiny of proposed orders made under Chapter I of the Deregulation and Contracting Out Bill in the event of the relevant provisions being enacted.
The Committee has received the report of the sub-committee, which is printed as an Annex to this Report. The Leader of the House has informed the Committee of the tabling of a Government amendment, at report stage in the House of Commons, providing for the 40-day scrutiny period laid down in the Bill as introduced to be extended to 60 days when a committee of either House reports that there are special reasons why it will be unable to complete its consideration within the 40-day period. This does not affect the sub-committee's recommendation (xi) that the period should be 60 days in all cases.
The Committee endorses the recommendations in the report, subject to the assumption that Chapter I of the Bill will pass into law.
2. POSTPONEMENT OF BUSINESS WITHOUT NOTICE
In its First Report, Session 1984–85, the Committee proposed the introduction on an experimental basis of a procedure for postponing an item of business on the Order Paper without notice until later the same day. The procedure was for the item of business to be called on by the Clerk and then, in the absence of any dissentient voice, for a member of the Government to move that it be postponed to later the same day. Thus the Lord moving the motion would use the formula "My Lords, unless any noble Lord objects, I beg to move …".
In its Second Report, Session 1987–88, the Committee returned to the matter and recommended that the experiment should continue.
The procedure has since been used once, on 29 March 1990, when it worked smoothly. While it is not expected to be needed often, it is likely to be helpful to the House on those occasions when it is used. The Committee accordingly recommends that the procedure be made permanent, by means of the following amendments to Standing Orders:
Standing Order 37
At beginning insert "Except as provided in Standing Order No. 40(3),".
Standing Order 40
At end insert:
"(3) Business may, on motion, be postponed to later the same day without notice: provided that the question shall not be put on any such motion if a single Lord objects."
3. EARLY DAY MOTIONS
The Committee has considered whether a procedure should be introduced in this House along the lines of the "Early Day Motion" procedure in the House of Commons.
That procedure provides an opportunity for members to draw attention to an issue by tabling a motion, normally with no intention of holding a debate on it, and to demonstrate support

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for a point of view by adding names. In Session 1992–93 (a long Session) there were 2,574 Early Day Motions tabled. The total cost to public funds of printing and publishing Early Day Motions during 1993 has been estimated by Her Majesty's Stationery Office to have been £2,290,000.
There are two reasons why the use of such a procedure is less appropriate in this House than in the House of Commons. First, in this House any member may speak to any motion so that points of view are customarily expressed in debate rather than in the terms of motions, which are normally motions for papers or motions to "take note". As the Committee stated in its First Report, Session 1985–86, "the unwritten convention of the House has long been that the wording of such motions should be, so far as possible, short and couched in terms avoiding provocative or tendentious phraseology. The character of such motions has not been understood to inhibit Lords from advancing controversial points of view in the course of debate." In the House of Commons, however, the time of the House, and opportunities for speaking, are more tightly controlled, and the Early Day motion provides back-benchers with a means of expressing a point of view which they might otherwise have no opportunity to express.
Secondly, members of the House of Commons have the responsibility of representing their constituents, and Early Day Motions provide a means of raising constituency issues. Members of this House have no similar responsibility.
For these reasons, and bearing in mind the cost and practical difficulties of introducing such a procedure, the Committee does not recommend the introduction of Early Day Motions in this House.
4 REFERENCES TO THE EUROPEAN PARLIAMENT
The Committee has considered whether there should be any restriction on references in the House to the European Parliament. At present there are restrictions on references to the House of Commons and its members but none in relation to the European Parliament.
It appears that no other Parliament has any such restriction, nor does the European Parliament have any restriction on references to other Parliaments. The Committee has accordingly concluded that it would be inappropriate to introduce any formal restriction.
5. AMENDMENTS TO COMMONS PRIVATE MEMBERS' BILLS
The Committee has considered the problem which may arise when a Commons private member's bill is before this House and it appears that any amendment made to it may prevent the bill being enacted because of lack of time for the amendment to be considered in the House of Commons.
The problem arises because consideration of private members' bills in the House of Commons is normally limited to certain Fridays, and it is necessary for bills to be returned to the Commons before the last such Friday in a session if Lords amendments are to be considered. The Leader of the House has informed the Committee that at his request the Leader of the House of Commons has agreed that the last Friday for private members' bills this session will be 15 July. This is as late as possible before the summer recess and is eight weeks after the previous such Friday on 20 May. This means that there will be adequate time, without any breach of the normal minimum intervals between stages, for any bill passed by the House of Commons by 20 May to complete all its stages in this House in time for amendments to be considered on 15 July.
The Committee is grateful to the Leader of the House for his action in dealing with this matter. The Committee would remind Lords who take charge of Commons private members' bills of the need to avoid delay in taking the second reading and subsequent stages so that, in the event of amendments being agreed to, the bills can be returned to the Commons in time. The Public Bill Office is available to offer procedural advice to such Lords in order to ensure that undue delay does not arise inadvertently.
The Committee attaches importance to this House having the opportunity to act as a revising chamber in relation to Commons private members' bills and deprecates amendments being resisted
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on the ground that their acceptance will prevent the bill in question from being enacted. Provided that there is no undue delay, there should be sufficient time to return bills to the Commons in time for amendments to be considered.
6. EFFECT OF FAILURE TO TAKE THE OATH
Under the Parliamentary Oaths Act 1866 it is a statutory offence for a Lord to vote or sit during any debate without having taken the oath. The Committee has considered the question whether failure to take the oath invalidates anything done by the Lord concerned.
A select committee considered this matter in 1907 but recommended only "that before the opening of a new Parliament a circular be sent to every Peer, calling attention to the grave consequences of sitting or voting in the House without having taken the Oath, and that a similar circular be sent at the beginning of every Session to Peers who are on the list of those Peers who have not taken the Oath." Since then it appears to have been the practice, in those few cases where Lords have voted without taking the oath, to allow the vote to stand and the attendance to be recorded in the Journals.
The Committee has been advised that there is a good case in law for treating votes cast in such circumstances as invalid. Earlier Acts which were replaced by the 1866 Act would have invalidated a vote as well as imposing a penalty, and the 1866 Act, in re-enacting the penalty, must implicitly have re-affirmed that voting or sitting before taking the oath is unlawful. On that basis the argument that a vote before taking the oath is invalid remains. Support for this view is provided by the preamble to the 1866 Act, which recites only that it is expedient that one uniform oath should be taken by members of both Houses on taking their seats in every Parliament.
The Committee has accordingly concluded that Lords who attend the House without having taken the oath should not be recorded in the attendance lists in the Journals, and that votes cast by such Lords in divisions should be treated as invalid.
7. LAYING OF STATUTORY INSTRUMENTS ON SATURDAYS
Standing Order 67 makes provision for statutory instruments to be laid before the House at times when it is not sitting. The hours when they may be deposited include Saturdays, between eleven and one o'clock. There is no corresponding arrangement in the House of Commons, and it appears that no statutory instrument has been laid on a Saturday for some years. A member of staff continues, however, to attend the House on Saturday mornings. The Clerk of the Parliaments has recommended that this should cease.
In cases of urgency, the proviso to section 4(1) of the Statutory Instruments Act 1946 allows for statutory instruments to come into operation before they are laid. Moreover, at a time of national emergency, the House would doubtless be recalled anyway, and papers may be laid at any time when the House is sitting.
Standing Order 67(2) is at present in the following terms:
"(2) For the purposes of this Order, a Statutory Instrument may be deposited on any day except a Sunday, Christmas Day, Good Friday or a bank holiday, between Eleven and One of the clock on a Saturday or Eleven and Five of the clock on any other weekday."
The Committee recommends that it be amended to read as follows:
"(2) For the purposes of this Order, a Statutory Instrument may be deposited on any day except a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday, between Eleven and Five of the clock."
ANNEX: REPORT FROM THE SUB-COMMITTEE ON DEREGULATION ORDERS
Introduction

(a) The Procedure Committee appointed us just before Easter, with the following task: assuming that Chapter I of the Deregulation and Contracting Out Bill ("the Bill") is passed in more or less its current form, to recommend what special procedures the House might adopt for Orders under Clause 1 ("Deregulation Orders").

(b) We make no comment as to the merits of the Bill; they will be considered by the House, with assistance from the Delegated Powers Scrutiny Committee. It would however be naive to deny that this report has a political angle: whether the House is content to grant to Ministers the powers set out in Chapter I may depend partly on how far the procedures proposed are seen to safeguard the balance of power between Parliament and the executive.

(c) We have received assistance in writing from the Leader of the House, Lord Rippon of Hexham (Chairman of the Delegated Powers Scrutiny Committee), the late Bob Cryer MP (Chairman of the Joint Committee on Statutory Instruments, whose tragic death occurred during our inquiry) and the Joint Committee on Statutory Instruments itself, the Department of Trade and Industry (DTI), the Clerk of the Parliaments, Counsel to the Chairman of Committees and the Clerk to the European Communities Committee. We also sought contributions from the Leaders of the Opposition parties, and from Lords at large. We have held discussions with the Leader of the House, Lord Rippon and the Clerk of the Parliaments; and we have noted the report and evidence of the Procedure Committee of the House of Commons on Parliamentary Scrutiny of Deregulation Orders (HC 238), and the Government's response presented on 9th May. We are grateful to all those who have assisted us with our inquiry.

(d) We note that the Labour Peers support the decision of the Labour Party in the House of Commons not to give evidence to the Commons Procedure Committee on Deregulation Orders, on the ground that the Bill was inherently objectionable; and that the participation of a Labour Lord in this inquiry does not represent any change in that position, but only a wish to ensure that, if the Bill is passed, all possible procedural safeguards will be provided.

Deregulation Orders
(e) Deregulation Orders will be a special class of affirmative instrument. They may be made by any Minister, to amend or repeal any enactment of primary legislation with a view to removing or reducing any "burden", if the Minister is of the opinion that this can be done "without removing any necessary protection".
(f) "Burden" is defined in Clause 1(5) as including a restriction, requirement, condition, fee or sanction. The DTI identified for us four categories of burden: requirements for licensing, requirements to submit information, prescribed fees or time limits, and prescribed administrative procedures. "Necessary protection" is deliberately undefined (Commons Standing Committee F Hansard, 15th February, col. 26).
(g) The Bill sets certain limits on the scope of Deregulation Orders. They may not be used in respect of Northern Ireland legislation or Acts passed in future Sessions. There are restrictions on the extent to which they may create or vary criminal offences, criminal sanctions and powers of entry.
(h) The Bill also imposes special procedures on a Minister minded to make a Deregulation Order. First, he must consult representatives of affected interests. He must then lay before Parliament a document, containing the proposed text of the Order, and setting out the burden, the necessary protection (if any) and how it is to be preserved, the anticipated cost savings and other benefits, and (subject to confidentiality) the course and outcome of the consultation.
(i) The Bill then provides for a "period for Parliamentary consideration" of 40 days (including weekends but not recesses or sittings for judicial business only) after the laying of the document but before the laying of the final draft Order. It further provides, in Clause 4(4):
"In preparing an order… to give effect, with or without variations, to proposals in a document laid before Parliament…, the Minister concerned shall have regard to any representations made during the period for Parliamentary consideration, and in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document."
(j) "Have regard to" does not mean "comply with". In Standing Committee in the Commons, the Government undertook to table an amendment to require the Minister to produce with the final draft a statement of any changes arising from the 40-day period (Hansard 24th February, col. 232 & 241); but he could fulfil the requirement to have regard without making any changes at all.
(k) When the 40 days are up, the Minister will be free to lay a final draft Order, for approval by resolution of both Houses. Neither Commons Financial Privilege nor the Parliament Acts would apply to Deregulation Orders, any more than to other delegated legislation; the powers of the two Houses in respect of such orders will therefore be theoretically equal.
(l) The provisions for a period for parliamentary consideration of a preliminary draft, and for the Minister to have regard to any outcome of that consideration, are unprecedented and form the basis of this report.
(m) What procedures are appropriate will depend partly on how the Government use their proposed powers. The DTI regard deregulation as "a continuing process", which may last for years, and have already published 57 proposals for Deregulation Orders, representing 30–35 Orders of between one and ten pages each (Commons Procedure Committee QQ 135, 150). The Government have undertaken "to set up a Whitehall mechanism to … ensure that the Committees are not asked to consider too many proposals at any time" (Government proposals for parliamentary scrutiny, paragraph 6), and to "ensure that sufficient information is provided to the Deregulation Committee to enable it to plan its programme of work" (Government response to Commons Procedure Committee, paragraph 7). Ministers have said that they do not intend to use Deregulation orders to make sweeping or controversial changes, but rather to do the minor things which get crowded out of the primary legislative programme (e.g. Leader of the House of Commons to Commons Procedure Committee, 16th February, QQ 16–19). Brief accounts of the Orders already proposed can be found in the recent DTI publication "Deregulation: Cutting Red Tape".
Recommendations
(n) On the assumption that Chapter I of the Bill will pass into law, we recommend the following procedures in respect of Deregulation Orders:
The period for parliamentary consideration

(i) The House should refer proposals for Deregulation Orders to a Select Committee ("the Committee").

(ii) The Committee should in the first instance be the Delegated Powers Scrutiny Committee. That Committee is in being; it is willing to take on this additional task; should this arrangement at some later stage prove unsatisfactory, the task might be transferred to a new Select Committee.

(iii) The terms of reference for the new task should be broad, leaving it to the Committee to establish a modus operandi. Proposed terms of reference are in the Appendix.

(iv) The Committee should have power to co-opt, to set up Sub-Committees and to appoint Specialist Advisers.

(v) The composition and chairmanship of the Committee should remain a matter for the Committee of Selection under SO 61.

(vi) In order that its work should not be unduly interrupted by Prorogation, the Committee should be a Sessional Committee for the purpose of SO 62.

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(vii) As with any Select Committee under SO 63, Lords not named of the Committee or co-opted should be permitted to take part in the taking of evidence, but not in deliberation except by invitation, and not in voting.

(viii) The Committee has power under SO 64 to take evidence; it should be expected—though not instructed—to offer the Government a chance to give evidence before making an adverse report.

(ix) The Committee should be expected to develop close co-operation with the corresponding Commons Committee. It has power under SO 64A to meet concurrently or to empower a Sub-Committee to meet concurrently; it should be expected to use this power when appropriate.

(x) The House must have the option of debating the Committee's reports within the period for parliamentary consideration. It is not to be expected that this would often be done since the House would normally accept the Committee's advice, but the final word must rest with the House, not the Committee, and Clause 4(4) of the Bill explicitly allows for a resolution of the House within the period.

(xi) The Bill should be amended to provide 60 days for parliamentary consideration rather than 40. In cases where evidence is called for, 40 days will not be enough, especially if the House is to have an opportunity to debate the report; and Deregulation orders by their nature are unlikely to be urgent The Commons Procedure Committee recommended an optional extension to 60 days by order of the Leader of that House on application from the Committee, and the Government have accepted that recommendation "in principle". We recommend instead a general extension to 60 days: this will be easier to put into the Bill and more straightforward to operate.

After the prescribed period
(xii) Final drafts of Deregulation Orders should be referred to the Committee for a further report.
(xiii) For economy of effort, final draft Deregulation Orders should be excluded from the terms of reference of the Joint Committee on Statutory Instruments; the JCSI's functions in respect of such Orders should be given instead to the Committee which should have the assistance of Counsel currently afforded to the Joint Committee. (The House of Commons Procedure Committee has recommended similar action, and the Joint Committee has agreed; the Government "is minded to accept the recommendation". As it happens, Counsel who currently advises the Joint Committee on affirmative instruments already also advises the Delegated Powers Scrutiny Committee.) SO 69 should be amended to provide that no motion to approve a final draft Deregulation order may be moved until the Committee has reported on it.
(xiv) It should be open to any Lord to table a motion in respect of the report of the Committee on the draft Order. Such a motion should be placed on the Notice Paper immediately before the Minister's motion to approve the draft Order (this would require amendment of SO 38), and would be amendable; the two motions should be debated together. If the outcome were a resolution of the House to the effect that the Order should not be approved, the motion to approve the Order should not be moved, though without prejudice to the right of the Minister to bring his proposals back before the House in the form of a Bill.
Review
(xv) The Procedure Committee should review the new procedure after a year.
APPENDIX: TERMS OF REFERENCE
To consider any proposal for an Order laid under section 3(3) of the Deregulation and Contracting Out Act 1994 and to report whether it should proceed as proposed, or with variations or not at all;
To consider any draft Order laid under section 1(4) of the Act and to report whether any motion to approve it should be agreed to;
And to perform in respect of such an Order the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

Third Report
ORDERED TO REPORT:
1.SITTINGS OF THE HOUSE
The Leader of the House laid before the Committee the report of the Group appointed by him to "consider the practices and procedures of the House in so far as they affect sittings of the House". The Committee took note with approval of his intention to arrange for the report to be printed and published with a view to the holding of a debate in the spillover period after the summer recess after which the Committee will consider the report in detail together with the views of the House expressed on it in the debate.
2. THE SPECIAL STANDING COMMITTEE ON THE LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) BILL [H.L.]
The Committee has considered a report on the experimental Special Standing Committee on the Law of Property (Miscellaneous Provisions) Bill [H.L.].
In its First Report, Session 1992–93, the Committee endorsed the view of the Government that two or three Bills might be considered in this way, with the Committee thereafter assessing the results of the experiment. The Committee will accordingly make a full report when one or two more Bills have been dealt with in this way. At this stage the Committee makes the following observations and recommendations:

(1) The procedure has already proved a valuable addition to the scrutiny function of the House.

(2) The relevant Department should be invited to produce with each Bill a summary of consultation undertaken, with an indication of representations received and changes made.

(3) The twenty-eight day period within which the Committee may take evidence should in future run from the date on which the Committee is appointed instead of from the Second Reading of the Bill and should be extended in the case of any adjournment of the House for more than three days.

(4) Although the consideration of evidence has to be completed within the twenty-eight day period, the Committee need feel under no obligation to hasten the subsequent proceedings in the Public Bill Committee.

(5) The formal Minutes of Proceedings of the Committee should continue to be published as an appendix to the Minutes of Proceedings of the House.

(6) The name "Special Standing Committee" is misleading because such a Committee is in no way a Standing Committee. In future the term "Special Public Bill Committee" should be used.

3.UNSTARRED QUESTIONS IN DINNER BREAKS
In its Third Report, Session 1992–93, the Committee recommended that, on an experimental basis, Lords should be able to table Unstarred Questions to be asked during the one hour's dinner break.
This procedure has now been used on twelve occasions (excluding one instance when the main business was in the event concluded before the planned dinner break). The Committee believes that it has been worthwhile in creating an additional opportunity for Unstarred Questions to be asked, and recommends that the procedure be made permanent. As in relation to the experimental procedure, the Committee recommends a time limit of one hour, with 10 minutes set aside for the questioner, and 12 for the Government response.
4. TOPICAL QUESTIONS
In its Fourth Report, Session 1992–93, the Committee recommended that, for an experimental period, the fourth Starred Question each Thursday should be a Topical Question, chosen by

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ballot on the previous Tuesday. The Committee has now reconsidered the matter in the light of experience so far and recommends that the procedure should be made permanent.
5.PUBLIC PETITIONS
The Committee has considered the procedure governing the presentation of public petitions. In the House of Commons such petitions are referred to the relevant Government Department. In this House no action is taken after the petition has been presented to the House.
The Committee recommends no change to the present procedure; it is open to the Lord presenting a petition to send a copy to the relevant Department where appropriate.
6.THE SUB JUDICE RULE
The Committee has considered whether the rule limiting reference to matters sub judice should be modified in view of the fact that the House has agreed that the practice should be similar in both Houses but has never adopted an amendment to the rule agreed to by the House of Commons in 1972.
The Committee has concluded that some revision of the rule is called for and will consider the matter further at its next meeting.
3.45 p.m.
Lord Bruce of Donington: My Lords, I wish to pass one or two observations on the report which was published on 23rd May, in particular on paragraph 4, headed:
"References to the European Parliament".
I see from it that:
"The Committee has considered whether there should be any restriction on references in the House to the European Parliament".
I am mildly curious as to why the committee should have considered that at all since, so far as I am aware— subject to checking the records of the House—the only person in your Lordships' House who has made any reference in detail to procedures in the European Parliament has been myself. Therefore, I must assume that someone somewhere is getting nervous about the matter. I am grateful for that because any attention paid to the proceedings of the European Parliament is tremendously welcome to me. I welcome the extra publicity that has been given to the matter by the committee.
I am a little curious about the reasons that the committee arrived at the conclusion in paragraph 4 that:
"It appears that no other Parliament has any such restriction, nor does the European Parliament have any restriction on references to other Parliaments. The Committee has accordingly concluded that it would be inappropriate".
The noble Lord himself said that in the absence of any such measures in other parliaments the committee decided not to take any action. Are we to assume from that that, were other parliaments in the European Community to adopt some restrictions on references in their parliaments to the proceedings of the European Parliament, the Government would then reconsider the matter? I sincerely hope that I may receive the reply that the whole matter will be considered on its merits.
I am glad about that conclusion in view of the observations of the Prime Minister on the relevance and status of the European Parliament. If I may say so, it was expressed in almost more explosive terms than those in which I myself ventured to address the House. The Prime Minister does not consider it to be a
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parliament at all comparable with our own Parliament. I sincerely hope that that view will continue to prevail and that, notwithstanding any provocation that I myself may give to your Lordships by unflattering references to the proceedings of the European Parliament, the matter will not be raised again.
Partly as a result of that, I now pass to Early Day Motions. I am a little puzzled by the reasons that are given for not following the procedure of the Commons in the matter. The first and predominant point is that Her Majesty's Stationery Office has notified us that the costs of the procedure in the other place have been £2¼ million. I am a little dubious, if I may say so as a professional accountant, about the way in which Her Majesty's Stationery Office arrived at those extraordinary estimates at the request of the Government. Personally speaking, taking a look, as I do from time to time, at the printed proceedings of the other place, including Early Day Motions, I query whether this small amount of printing every day on the limited number of Order Papers that are available for circulation will amount to that sum. I therefore invite your Lordships to disregard that consideration as one which should take precedence over the convenience of Parliament as a whole.
My next point is on the remark that:
"As the Committee stated in its First Report, Session 1985–86, 'the unwritten convention of the House has long been that the wording of such motions should be, so far as possible, short and couched in terms avoiding provocative or tendentious phraseology'".
My experience in trying to get Motions on the Order Paper in this place has regrettably been that unless the motion is completely bromide it does not stand a hope in hell of getting on the Order Paper, let alone being provocative or tendentious. I do not think that the House should pass this by lightly. Why should not a Member of your Lordships' House who believes quite sincerely in what he says put down a Motion which is controversial but not necessarily provocative or tendentious? Those words have been interpreted, if I may say so, by the officials of the House —for whom I have the utmost personal regard—as that Motions must not be controversial. I think that that ought to be reconsidered by this Select Committee of your Lordships' House, or if not that committee by the House as a whole.
The report continues:
"Secondly, members of the House of Commons have the responsibility of representing their constituents, and Early Day Motions provide a means of raising constituency issues. Members of this House have no similar responsibility".
Of course, no one would expect any Member of your Lordships' House—notable people as noble Lords are— to put Motions on the Order Paper congratulating Manchester United on its victory over whatever team it happens to have been playing the previous night. Such matters have appeared on the Order Paper in another place. In other words, the very absence—
Lord Tordoff: My Lords, I am sorry but the noble Lord is misinformed. The match was a draw: two all.
Lord Bruce of Donington: My Lords, that is a perfect illustration of the point I was seeking, however inadequately, to make.
One does not expect any Member of this House to put down a Notice of Motion which is frivolous or represents a constituency interest—as is correctly stated in the report, we have no constituencies.
However, I think it would be permissible for the House to allow a serious Motion to be put down by any Member of this House covering a matter of policy or substance and of course excluding the vast number that would otherwise be presented in relation to constituency matters. We ought to take another look at this question before we come to any final decision. The Order Paper might occasionally be enlivened by the appearance of, let us say, perhaps 10 Notices of Motion on serious matters of a controversial nature, not of a bromide nature, to take not; of some issue or other.
Finally, perhaps I may use this occasion to bring a further matter to the attention of the House. There is apparently a rule, confirmed by the Companion to the Standing Orders, which mentions the practice of rotating members of various sub-committees or Select Committees, particularly in my case the European Select Committee. Apparently, according to the Companion to the Standing Orders, that means a rotation every three years. I should like to know when that received the official sanction of this House because in the Standing Orders themselves, as distinct from the Companion, there is no reference to that rotation.
I am well aware that many Members may perhaps grow jaded or become uninterested and bored in respect of the proceedings of the committees to which they belong. But there are quite a number of members of all shapes and sizes, ages and sexes, who do take a very great interest in the committees upon which they serve and whose continued presence there would very much add to the effectiveness of those committees rather than their being shoved off after a period of three years.
Therefore, the first question that I have to ask the chairman is: where is that stipulation incorporated in the Standing Orders themselves as distinct from the Companion? If it is not in the Standing Orders, what validity has it? And secondly, are they really so stuck on this that they are not prepared to be flexible and take the maximum amount of advantage of the skills in various fields which are the characteristic of practically every Member of this House?
3.53 p.m.
Lord Boyd-Carpenter: My Lords, I am sure that my noble friend the Lord Chairman will reply to the very pertinent points which have just been raised by the noble Lord, Lord Bruce of Donington. I want to express some unhappiness about these two reports of the Procedure Committee because they do not seem to touch on the really important issues that affect the proceedings of this House. One of those is of course whether we should resume sittings on Fridays as a regular practice, thereby diminishing the need for very late sittings on other days
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of the week. The second is the problem of what length of speeches should be permitted in a time-limited debate when a subject is chosen which is of great interest and which therefore attracts a very large number of speakers.
I appreciate that certainly we shall have an opportunity of discussing the second point on 2nd November, when, as I understand it, we shall debate the extremely interesting report submitted by my noble friend Lord Rippon of Hexham and his colleagues. However, it seems to me unfortunate that the Procedure Committee in both its second and third reports should pass these subjects by entirely without comment. If I may say so with respect, it does suggest that the Procedure Committee is not wholly geared up in its understanding of the needs of this House. I am left, I am afraid, with the uneasy suspicion that it is probably more geared up in regard to the needs of the usual channels and of making things easy for the management of the House. That may be an unworthy suspicion but the way that the committee has conducted itself over these reports certainly gives some grounds for holding it.
As a result of the Committee's failure to deal particularly with the two major issues to which I have just referred, there are only a number of quite small matters on which it has reported on which I wish to comment. First, why abolish the right to put in a statutory instrument on a Saturday? It is a right that has been exercised for a considerable number of years, and there may well be occasions, particularly perhaps towards the end of a Session at a time like the present, when it may be very convenient. Why abolish it? There is no reason or argument given for doing so.
Then the committee is a little unsteady over the suggestion that there should be a 60-day period of notice in respect of these instruments. I am sure that in all cases the maximum should be 60 days. One might have expected the Procedure Committee to have recommended that firmly.
I should also like to ask my noble friend for an interpretation: when there is a period of 60 days permitted for the tabling of these instruments, do those 60 days count in respect of days during the Recess or do they apply only when Parliament is sitting? That is important. There are some occasions, particularly during the long Recess in the summer, when the House is up for 60 days. Therefore theoretically, if non-sitting days are to be included, one such order could be tabled at a time when there was no opportunity of taking any action at all in respect of it. I am sure that there is a clear answer to this but it is not set out in any of the documents that I have seen. I would therefore be particularly grateful if my noble friend would deal with that point.
The main issues will arise from the debate on 2nd November. I hope that my noble friend the Lord Chairman will indicate that the Government will approach that debate with an open mind. Some of us feel extremely strongly about both the provision for a Friday sitting and a provision for securing that, if important subjects are selected for a time-limited debate, there should be at least 10 minutes of time during which individual speakers would be able to address the House.

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I do not, of course, ask my noble friend to accept either of those proposals in advance. But I do ask for an indication that the Government will listen to the arguments, will read the very considerably skilful drafting of the report of the noble Lord, Lord Rippon, and will be prepared to give it very serious consideration; and that they will also give serious consideration to the views that noble Lords will express in the debate on 2nd November.
Lord Mishcon: My Lords, I promise the House faithfully that my contribution will be short, non-critical and only inquisitive. It arises on the last item of the Third Report which is headed "The Sub Judice Rule". It is only a short paragraph. Perhaps I may be permitted to read it out.
"The Committee has considered whether the rule limiting reference to matters sub judice should be modified, in view of the fact that the House has agreed that the practice should be similar in both Houses but has never adopted an amendment to the rule agreed to by the House of Commons in 1972.
The Committee has concluded that some revision of the rule is called for, and will consider the matter further at its next meeting".
The reason why I am inquisitive is that that decision may give an opportunity, if the noble Lord the Chairman of Committees will be good enough to afford it to us, of knowing the thinking of the committee before it makes its decision and possibly making some comment at this session of the House. Is there any reason at all that the committee so far has considered why the rule should not be precisely the same in both Houses? Where is the difference of opinion?
4 p.m.
Lord Monkswell: My Lords, I thank the noble Lord the Chairman of Committees for the admirable way in which he presented both reports. I do not intend to go into the detail of what will be a very interesting debate on the Rippon Report the week after next. Although I wish to give a broad welcome to the reports of the Select Committee, there are a number of items with which I must take issue and on which I should like to say a few more words.
First, I must mention the continual pressure that seems to be exerted by the behind-the-scenes negotiators to try to take business off the Floor of the House. I am sure that the country, as well as the House itself, feels that one of the great strengths of this Chamber is that it debates issues on the Floor of the House where every Member has the opportunity to contribute.
Another subject raised by the report is one which I am sure your Lordships will accept I cannot agree with; namely, the reports as they relate to the Deregulation and Contracting Out Bill and the changes to procedures that are recommended. I feel that it would be wrong for those of us who take a principled objection to the changes envisaged by the Bill to agree to procedural changes in the way in which this House deals with matters.
I should like to touch particularly on the reference to Early Day Motions. I take a slightly different view from that of my noble friend Lord Bruce of Donington. It may
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be quite useful to have controversial topics to debate, but I am not sure that that is a path I wish to go down further. One of the difficulties in this House is to know the strength of feeling about a subject that may be a matter for future debate and how many noble Lords from all sides of the House would wish to contribute to such a debate. I wonder whether the Select Committee could have another look at this matter, not with a view to setting up a procedure which would be the same or similar to that in the other place, but to putting in place a procedure which would be distinctive and reflect the character of this House.
I am mindful in particular of the different facets of this Chamber. The three major political parties are represented and there is a large body of Cross-Benchers. There is a high degree of expertise on all sides. For example, perhaps the No Day Named Motions could have names attached to them of Peers who wish to indicate their desire to speak on that particular subject. I am sure that it is not beyond the wit of this House to devise a procedure which is not expensive, is simple to operate and yet provides Members of the House and— dare I say it—the usual channels, with information as to those Peers who would indicate their desire to speak on a particular subject. I hope that the committee could take another look at that aspect of our affairs and maybe come back with a report in the future.
Let me make one other point. The practice that seems to be evolving of debates on a particular subject that the Procedure Committee is minded to consider is very useful. I hope that the debate on the Rippon Report will be instructive for the committee in its further deliberations of its work.
My very last point is to note that the committee has done a very good job, given the difficult fist that it has been handed by the Government. When we discuss the procedures of this House, it is important that we should arrive at a consensus which can be shared right across the Chamber and not a view which may be in the interests of one part of the House or another.
Lord Campbell of Alloway: My Lords, I should like to ask whether, under the sub judice rule, the revision being considered—what it is I am not sure—is in any way concerned with the difficulties, the very real difficulties as noble Lords will remember, that arose when my noble friend Lord Ferrers, answering for the Home Office, seemed to get into a somewhat awkward position. I am trying to use totally neutral language. Is this revision related to that matter? I do not want to take up time and seek only information.
Lord Brightman: My Lords, perhaps I may correct what may be a misapprehension arising from something said by the noble Lord, Lord Monkswell. The effect of taking a matter off the Floor of the House and referring it to a committee is not to debar Members of the House from speaking. At a Public Bill Committee or a Special Public Bill Committee, every one of your Lordships is entitled to address that committee.
Lord Howie of Troon: My Lords, I want to come to the support of my noble friend Lord Bruce of Donington, in part at least. I do not share his obsession

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with Europe and the European Parliament, interesting though it is. I always listen to him with intense care when he speaks on those matters. I want to agree with him about the Early Day Motion. The Early Day Motion, as it exists in another place, is a means of demonstrating a body of opinion.
My noble friend was quite right when he said that he did not wish it to be an opinion about a trivial matter. If we adopt such a procedure, as I hope we shall, that procedure would have to be of such an order that it obviated triviality. We do not want the kind of thing that happens elsewhere at its worst; we want something which happens elsewhere at its best.
My noble friend Lord Monkswell came somewhat near the answer when he spoke of the No Day Named Motion, or whatever it is called. But the weakness of that is that it is merely the opinion of one Member of this House. As yet, there is no way of assessing whether that opinion or concern, as it may be, has any other adherents or supporters. There must be some way in which we can combine the procedure of the No Day Named Motion, which we already have, and the Early Day Motion of another place, provided that triviality is excluded.
In conclusion, I strongly welcome the comments on the timing of speeches mentioned by the noble Lord, Lord Boyd-Carpenter. He is absolutely right. It is surely correct that we must have timed debates; but it is surely incorrect that our timed debates are of such an order that we are obliged to speak for five, six or seven minutes only. That must be wrong. We must find a way of curbing our exuberance, but at the same time permitting a sufficient length of time for appropriate ideas to be properly presented to this House.
4.10 p.m.
Lord Simon of Glaisdale: My Lords, I wanted to speak almost entirely on what is common ground between this Motion, in so far as it relates to the deregulation procedure, and the next Motion which stands in my name. But before I do that, perhaps I can say one or two words about the Public Bill Committee procedure. Many of us feel anxiety lest it be used as an opportunity to load still more legislation on your Lordships' House involving Parliament generally. Otherwise my noble and learned friend Lord Brightman is right; any Member of your Lordships' House can address a Public Bill Committee. Nevertheless, that opportunity is taken extremely rarely.
With regard to the deregulation procedure, the first thing to say is that we are deeply in debt to the Procedure Committee. It is not the first time by any means that your Lordships have been profoundly indebted to the noble Lord, Lord Aberdare, and I suspect that it will not be the last.
The background to both debates is the advance of bureaucracy that we have seen in recent years. I refer only to one or two high spots. Perhaps the most extreme example was on the Statutory Sick Pay Bill when it was introduced into the other place. The Bill reduced the repayment to employers of the statutory sick pay from 100 per cent. to 80 per cent. But it then went on to say that the Minister could, by regulation, alter that figure
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of 80 per cent. What is more, that was subject only to the negative resolution procedure. That meant that by a Henry VIII provision the charge of, in effect, a tax on the individual citizen, and as a result of mat the charge on public funds, could be altered by a Henry VIII provision by negative resolution. In the other place the Government accepted that there should be affirmative resolution but they fought strenuously for the Henry VIII provision and it only disappeared on a Division which was carried against the Government in your Lordships' House.
That did not stand alone. There was persistently an attempt to downgrade parliamentary scrutiny by taking matters by negative resolution that should have been taken by affirmative resolution and, indeed, taking matters by subordinate legislation that should have been taken by primary legislation. So firm were your Lordships that when the Jellicoe Committee came to consider the recommendations it recommended the Scrutiny Committee, which we now have and which has been such an extraordinary success. But it was significant that of all the recommendations of the Jellicoe Committee, that was the one about which the Government expressed a reservation. We must be grateful to the Procedure Committee for having brushed aside that reservation and to the Committee of Selection for the choice it made of the Scrutiny Committee, which has been an acknowledged success.
There are two dangers in the procedure recommended in relation to deregulation. The first is that it is extremely "cumbersome"—the word used by the noble Lord, Lord Wakeham, then Leader of the House, in a letter to me about the matter which I surmise the noble Lord the Lord Privy Seal has seen. It is indeed cumbersome. There are two reasons for that.
One feels that behind the deregulation Bill there was a ministerial compromise—(he President of the Board of Trade, one suspects, wanting to move wholesale by Henry VIII provision and the Leader of the House saying that there was no chance of your Lordships agreeing to that. When one has a ministerial compromise it always tends to produce an odd result. One Minister holds that anybody shall be allowed to scratch his ears if they itch; another Minister is firmly opposed to any such practice. A Cabinet committee is then set up under the chairmanship of the Lord Privy Seal and it comes up with the compromise that right ears may be scratched provided the left hand is used.
I fear that the cumbersome proposal is partly due to that sort of background, but it is also due to something else. It was expressly designed to protect the so-called convention that your Lordships should not vote on subordinate legislation. That was said in your Lordships' House expressly by the noble Lord, Lord Strathclyde, in relation to the deregulation Bill and the noble Lord, Lord Wakeham, repeated it expressly to me in the letter to which I referred.
The Government have changed their mind on that convention. The noble Viscount, Lord Cranborne, indicated that the Government will accept the next resolution. But it is far too late to go back and ask the Procedure Committee to review the situation in the light of that change of policy. After all, the procedure was

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thought to be workable by the other extremely brilliant members of the sub-committee of the Procedure Committee and that was endorsed by the Procedure Committee itself. From what we have seen of the Scrutiny Committee I have little doubt, speaking for myself, that it will make a workable job of it.
When the deregulation Bill was introduced it was admitted that it was an extraordinary constitutional innovation. The noble Lord, Lord Peston, roundly denounced it as a constitutional outrage. But the majority of your Lordships thought that the only way to obtain the necessary deregulation in substance—the removal of unnecessary burdens on industry and commerce—was to follow, so far as the Bill went, the Henry VIII procedure.
However, the desire was expressed that there should be three safeguards. The first, unfortunately, has gone by the way. That was the three-year term. The noble Lord, Lord Rodgers of Quarry Bank, introduced an amendment in Committee which the Government appeared to be looking at sympathetically but which, unfortunately, was dismissed at the Report stage. That has gone. The second safeguard was that there should be an alternative scrutiny of the procedures under the deregulation Bill. That we have got, that we are considering and that we welcome. The third safeguard was that your Lordships should have finally the power to reject any subordinate legislation submitted for your consideration. That has now, I understand, been conceded and is the subject of the next Resolution.
I conclude as I began by saying how indebted we are to the noble Lord the Lord Chairman of Committees for the way he has introduced these reports and for the work of his committee and to the noble Lord, Lord Aberdare, and his sub-committee.
4.21 p.m.
Lord Finsberg: My Lords, what a fascinating hors-d'oeuvre ready for the entrèe that is to follow. I should like to say a few words about Early Day Motions, a subject introduced to this discussion by the noble Lord, Lord Bruce of Donington. Early Day Motions in the days when he was in another place were somewhat different. When I came to the other place in 1970 there were a very limited number of Early Day Motions. They grew like paper clips until the other place had to bring in a change so as to provide that after a certain time the Early Day Motion was not printed day after day. That produced some kind of improvement.
As for saying that Early Day Motions represented the views of those people who signed them, I fear that that was not the case. One could wander around the tea room in the other place, put a piece of paper in front of a colleague and he would sign it without reading it— rather like the petitions one sees in the streets of our country for and against abortion or licensing. People will sign something put in front of their faces. It does not matter what it is.
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I would caution very strongly against any kind of introduction of an Early Day Motion procedure in your Lordships' House. The Procedure Committee has got it absolutely right and I think that the less we have to do with the idea the better.
4.23 p.m.
Lord Stoddart of Swindon: My Lords, I had hoped to speak for only one minute flat but in the light of what the noble and learned Lord, Lord Simon of Glaisdale, said I may have to take two or three minutes.
My first point concerns topical Questions. I see that the committee recommends that the procedure should be made permanent. I am not at all sure that that decision should be taken at this stage. I have noticed that on a number of Thursdays we have been reduced to only three Questions. Because we have been reduced to only three Questions people who may have wished to table a standard Question, if I may so call it, have been denied that opportunity. Today noble Lords will have noticed that there were only three Questions on the Order Paper. I do hope that we have a little more experience before a final decision is made and the procedure is made permanent.
I say to the noble and learned Lord, Lord Simon of Glaisdale, that I had the honour to be a member of the sub-committee which recommended the provisions that should be applied to the deregulation Bill. I am extremely glad that the Procedure Committee was able to accept our recommendations. But I have to tell the noble and learned Lord that our recommendations in no way undermine the right of any Member of this House to vote against an order. I have to tell him that I and other members of the sub-committee were absolutely clear in our minds that, although we were making a recommendation that instead of amending an order the House might wish to make a comment on the order for the Government to consider, in no way did any member of that committee accept that that would be taking away the right of Members of this House to vote against an order. I hope that that has made the matter absolutely clear to him and to your Lordships and perhaps I may tell the House that I would never agree to such a procedure.
4.25 p.m.
Lord Richard: My Lords, as a member of the committee perhaps I may intervene. I do so not to take over the job of the Lord Chairman who has to reply to the debate but to make only two or three points.
I have come to the conclusion that Early Day Motions would not fit in very easily with the procedures of the House. I listened to what my noble friend Lord Bruce of Donington had to say about paragraph 3. I read it as he was talking. I listened to my noble friend and read it again. I have to say that my reading of paragraph 3 is somewhat different from my noble friend's reading of paragraph 3. As I understand it, paragraph 3 is saying that because Motions in this House are generally expressed in wide terms people can say virtually anything they like. In the House of Commons the opportunities for saying anything you like on the Floor of the House are much more limited and therefore the

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opportunities to express your views if you are a Member of this House are correspondingly greater. That is how I read it. If I am wrong, perhaps the Lord Chairman can tell me. But that is one of the arguments against the Early Day Motion.
Again on the Early Day Motion argument, the point that impressed me most of all was the cost of £2,290,000. If we were talking about tuppence-ha'penny and Members of this House having an opportunity to express a view cheaply, so be it. But to engage in massive expenditure of that kind merely to allow expressions of view to be gathered, which is quite often the effect of an Early Day Motion, would not be justified. On the other hand, I listened to what my noble friend Lord Monkswell had to say and his suggestion about no day named Motions is well worth considering. If Members of this House could put their names to a no day named Motion in order to express an opinion on that Motion that would perhaps achieve some of the objectives of having an Early Day Motion procedure but without having some of the greater difficulties attached to it. So I hope that the Procedure Committee will consider that.
I thought it was a little ungracious of my noble friend Lord Bruce of Donington to castigate the committee for doing something of which he obviously clearly approved; namely, that there should be no restriction on the way in which people in this House refer to the European Parliament. I noticed that this issue was coming up before the Procedure Committee. I was not quite sure why it came up—presumably because someone wanted to raise it. But I should have thought that the result would be something of which he and the House as a whole would certainly approve. I hope that the fact that he approves of something the Procedure Committee has done will not prove a massive argument on his part for wishing to vote against it.
The main issue before us this afternoon is what we should do about deregulation orders. I wish to make two general points and one specific one. If the Bill goes through there has to be some kind of procedure for dealing with what the Government wish to try to achieve. The issue for the House this afternoon is whether the procedure set out in this report is, broadly speaking, sensible. I had a good look at it and came to the conclusion that the House needs a mechanism for dealing with the deregulation Bill. It also seemed to me that this procedure is, on the whole, as reasonable as one can get.
However, I have one point of detail. At page 6(viii) the report states:
"The Committee has power under Standing Order 64 to take evidence; it should be expected—although not instructed —to offer the Government a chance to give evidence before making an adverse report".
I am not suggesting that the converse should apply totally; namely, that the Opposition should be expected to appear whenever the committee makes a positive report. But if there is a major issue being discussed in front of the committee in which the Government are going to be given an opportunity to make representations as to the kind of report which the committee produces, there should be some way or other
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in which the views of the Opposition can also be fed into the committee at the same time otherwise one gets a certain imbalance. That is not an argument against the whole structure but it is a point which I hope the committee will take on board and on which the Lord Chairman can perhaps smile favourably this afternoon.
4.30 p.m.
The Lord Privy Seal (Viscount Cranborne): My Lords, a very interesting and unexpected debate has developed during the course of the afternoon although why I use the word "unexpected", having had some; experience of your Lordships' House, I do not know.
The two reports before us today contain a number of interesting recommendations. On the whole, I commend them most warmly to your Lordships. I believe too that it would be remiss of me if I did not say how grateful I feel, and I am sure the House also feels, to the Lord Chairman of Committees, to the Chairman of the committee and the Chairman and members of the sub-committee for what I believe the House, on the whole seems to feel is a thoroughly helpful and constructive report.
With your Lordships' permission, in the main I should like to confine my remarks to the procedures for the scrutiny of deregulation orders since these represent a very substantial change in our procedures and have rightly been the subject of intense scrutiny in both Houses of Parliament.
I was astonished at the profession of surprise expressed by the noble Lord, Lord Bruce of Donington, who suggested that some nameless civil servants and Government business managers might be nervous of what he said. That does not in the least surprise me in view of the noble Lord's remarks. The remarks of my noble friend Lord Finsberg on the subject of Early Day Motions in another place struck a very powerful answering chord with me. I endorse most warmly the warning that he gave on that front.
Returning to the question of deregulation and so forth, the Government recognise that the deregulation order-making power would allow a very exceptional type of secondary legislation for which special parliamentary scrutiny arrangements would be wholly appropriate. We welcome the prompt and thorough report of the Procedure Committee and we believe that the procedures that it proposes are appropriate under the circumstances.
That has enabled us to hold this debate in advance of the Third Reading of the Deregulation and Contracting Out Bill next week. It is clearly sensible that your Lordships should have a clear idea of how the scrutiny procedures would operate before finishing consideration of the Bill itself.
During the various debates in this House on the deregulation order-making power, the Government have explained the need for the deregulation power and the significant safeguards we built in for the use of that power. The provisions in the Bill itself provide a statutory framework within which each House will put in place the procedures it thinks appropriate for scrutinising the proposals under this power.

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I say to the noble and learned Lord, Lord Simon of Glaisdale, that I believe the whole House agrees that the Government have listened to the committee with very great care. As evidence of that we have accepted without reservation all the recommendations of your Lordships' Procedure Committee. Indeed, it is our intention that deregulation orders should, where necessary, be subject to rigorous and thorough scrutiny. We have accepted the Procedure Committee's view that a 60-day period is appropriate and we have amended the Bill accordingly. I draw the attention of my noble friend Lord Boyd-Carpenter to Clause 4(3) of the Bill in which it is provided that in reckoning the period at 60 days no account shall be taken of any time in which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
The Procedure Committee recommended that the House should refer proposals for deregulation orders to a Sessional Select Committee; in the first instance, the Delegated Powers Scrutiny Committee. That committee would have all the usual powers of a Select Committee including the power to co-opt members, set up sub-committees and to appoint specialist advisers. We fully accept that recommendation. We believe it is entirely appropriate that there should be an opportunity for proposals to be scrutinised in detail where necessary. The Delegated Powers Scrutiny Committee clearly commands the confidence and respect of this House. I for one see no reason why it should not take on the job. I understand that the committee is happy to increase its workload in this way and I believe that the House should be extremely grateful to it for that.
The committee would be able to scrutinise the proposal line by line if it so chooses. If it wished, it could examine witnesses and those witnesses need not be confined to those who have already been consulted. It can call for evidence from the appropriate department and consider any other representations that are made. I can assure the House that the Government will co-operate in every way with the committee and in particular will regulate the flow of proposals coming forward at any time to ensure that the Delegated Powers Scrutiny Committee is not overwhelmed. In the light of the first batch of proposals which may be coming forward, that is perhaps an undertaking which your Lordships will appreciate.
The Procedure Committee has recommended that it should develop close co-operation with the corresponding Commons committee, using the power to meet concurrently as they feel to be appropriate. The Government agree that that will avoid duplication and will help to ensure that in most cases evidence is taken once only.
Once the inquiry has been completed the committee would then report its findings to the House, making whatever recommendations it considers appropriate. I was interested to see that the Procedure Committee stressed that, if it wished, this House could at that stage have the opportunity to debate the committee's report and let its views be known to the Government. We are very happy to agree to that suggestion although in practice I suspect that your Lordships' House would
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wish in most cases to await the Minister's consideration of the committee's report. I reiterate to your Lordships that the Government will consider the committee's views with the utmost seriousness in deciding whether to proceed with the draft order and, if so, whether to revise it in any way.
The Procedure Committee recommended that the committee should then consider the draft order again and report on it to the House before any Motion to approve the order would be moved. Again, the Government concur that it would be appropriate to give the committee a further opportunity to consider the order in its final form.
To make that easier we amended the Bill in another place to require that when the Minister lays the final draft order he must also lay a statement setting out any changes made. For economy of effort the committee would also take on the functions of the Joint Committee on Statutory Instruments in respect of the draft order itself.
Finally, the Procedure Committee recommended that it should be open to any noble Lord to table a Motion in respect of the report of the committee on the draft order. Such a Motion would be amendable and would be debated immediately before the Motion to approve the draft order. I can assure your Lordships unequivocally that if, on that Motion, the House resolved that the draft order as laid should not be approved, the Motion to approve the order would not be moved. The Government would reconsider and either lay a revised draft, bring forward the proposal as primary legislation instead or withdraw the proposed altogether.
In conclusion, I feel confident that the framework in the Bill, underpinning the unique scrutiny arrangements proposed by your Lordships' Procedure Committee, addresses pretty thoroughly the exceptional nature of the deregulation order-making power and, indeed, that it ensures that it will be used in an appropriate and effective manner. We have accepted the committee's recommendations without reservation and stand ready to co-operate in making the necessary changes to Standing Orders to reflect those special arrangements. I hope that the Government's views on this extremely important matter will be of some help to the House in coming to its conclusions on the committee's reports.
4.40 p.m.
The Chairman of Committees: My Lords, I am grateful to all Members of your Lordships' House who have taken part in this debate and in particular — naturally—to the Lord Privy Seal who has answered every question which has been put to him on the matter of deregulation. That relieves me of the burden of so doing. I am also extremely grateful to the noble Lord the Leader of the Opposition who has done part of my-job for me.
Perhaps I may take the individual points that were raised by noble Lords during the debate. The noble Lord, Lord Bruce of Donington, was concerned about the reference to Members of the European Parliament and wondered why the committee had felt that it was necessary to deal with that matter. I cannot honestly

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remember who brought that matter before the committee, but the point was one that should be discussed; namely, that we have rules and conventions about how we treat Members of another place and it was felt that in the circumstances which now prevail it was right to consider whether we should have any rules about how to treat Members of the European Parliament. In the light of what has already been said in the report, I do not think that I need to go further into that. It seemed to us that, as nobody else minds what we say about them and they do not have to care what they say about us, we should let matters rest.
On Early Day Motions, I was deeply grateful to the noble Lord the Leader of the Opposition and to the noble Lord, Lord Finsberg, who felt that the committee had got it right. The matter was given a great deal of consideration, but had only one supporter in the committee and he was speaking slightly half-heartedly, I think, on behalf of someone who is not a member of the committee. We came to the conclusion without any difficulty at all that Early Day Motions would serve no useful purpose. It really came down to asking ourselves, "Where would they get us?", and, "Where do they get Members of another place?". That is why we took the decision that we did, and I hope that the House will be prepared to endorse; it.
The rotation rule was the third point raised by the noble Lord. He is quite correct that it is not in the Standing Orders as such, but it is in the Companion and it is in the Companion as a result of decisions of the Procedure Committee dating from the 1970s. It is constantly reviewed. Occasionally it causes unhappiness to Peers who have a specific knowledge and who feel that it is a pity for the committee on which they serve to lose the benefit of that knowledge. Nevertheless, it has to be right to allow new blood an opportunity to serve on those committees. Obviously, that applies only to certain committees about which there is great enthusiasm. Other committees, such as the Joint Committee on Statutory Instruments, do not necessarily have a queue forming to do what is nowadays an extremely arduous job given that the number of statutory instruments grows like Topsy. Those are the three points which the noble Lord raised and I hope that he is satisfied with what I have been able to tell him.
The noble Lord, Lord Boyd-Carpenter, properly recognised that his main point is a subject that would be better debated on 2nd November. Therefore, I hope that he will excuse me for not making any comment on that aspect now. There will be an opportunity on 2nd November for a full discussion on the subject of the Sittings of the House. It would be wrong for me to try to pre-empt that discussion now. On his other points—
Lord Boyd-Carpenter: My Lords, before my noble friend leaves that point, I asked whether he would give an assurance that the Government would listen to the debate on 2nd November with an open mind as to what decision should finally be taken.
Viscount Cranborne: Yes.
The Chairman of Committees: My Lords, I feel quite certain of that, given that the Lord Privy Seal has
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just muttered "Yes" in my ear, but it is not for me to commit the Government on the line that they will take. However, I believe that the noble Lord can rest assured that it will be all right.
The noble Lord was disappointed that the report contains no reference to the length of speeches or the timing of debates. Again, those matters will come up on 2nd November. Not every meeting of the Procedure Committee goes over the ground which has been covered so frequently at previous meetings. If that were to be the case, the meetings would go on for day after day. I know that the noble Lord feels deeply about the length of debates and the curtailment of debate, but: again that is a matter for 2nd November rattier than now.
The noble Lord was unhappy about the abolition of the laying of statutory instruments on a Saturday. As one has not been so laid for many years now, it seems rather unkind, if not extravagant, to induce an official to come in here to sit and do nothing on a Saturday when statutory instruments cannot be so laid in another place. As no useful purpose would be served, it seems unkind to compel an official of the House to do that.
The noble Lord, Lord Mishcon, is distressed—as we all are —that we have not yet made a great deal of progress on the sub-judice rule. One of the problems— the main one, I believe—is that this House has no Speaker. Another place has a Speaker who can exercise his or her discretion as to whether a matter can be raised. This issue has now taken up quite a lot of time in the Procedure Committee and we are greatly indebted to the noble and learned Lord, Lord Mustill, who has taken it upon himself to try to devise a formula which would meet that different situation. I think that the noble Lord will recognise that there is a difference because of the different way in which we do things. The noble and learned Lord has put forward a preliminary' report but has asked for further time. He wishes to have consultations with other Law Lords on the matter. Apparently, the matter has been under discussion for over 20 years, so it is not a new issue. We sincerely hope that we shall move a little more briskly than that and reach a conclusion. However, those are the explanations for the delay that has come about.
I thank the noble and learned Lord, Lord Brightman, for having dealt for me with the point raised by the noble Lord, Lord Monkswell. As one would expect, the noble and learned Lord was right.
The noble Lord, Lord Howie of Troon, was preoccupied with Early Day Motions and I hope that he will be satisfied with what has been said. We see the point, but we do not think that it is a good idea.
Lord Howie of Troon: My Lords, I would not expect the attitude of Members of this House towards something like an Early Day Motion to be quite the same as that of a Member in another place.
The Chairman of Committees: My Lords, it might well be very different indeed. It may well be that there is an opportunity which should be taken and that Peers' names could be added to a No Day Named Motion. I now give an assurance that I shall invite the Procedure Committee to consider that route. Of course, I cannot say whether the Committee will look favourably on it.

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However, that might be a move in a direction which would appeal to the noble Lord. In my opinion, the original proposal is a non-runner.
Lord Bruce of Donington: My Lords, returning to the question of Early Day Motions, is the House to understand that the noble Lord endorsed as being applicable to this House the view that was put forward by his noble friend that Members in the Commons sign papers merely if they are shoved before them? Perhaps I may clarify the point by saying that I was assuming that all Members of your Lordships' House would diligently examine anything before signing it and would not behave as the noble Lord alleges that Members of the House of Commons behave.
The Chairman of Committees: My Lords, as the noble Lord is aware, I have no experience of another place. I must also remind him that, although I have the highest possible regard for him, the noble Lord, Lord Finsberg, does not qualify in our terms as my noble friend because, if the noble Lord recollects, I am a Cross-Bencher, so I cannot speak for either side.
I move on to the noble and learned Lord, Lord Simon of Glaisdale. The Special Public Bill Committee point is exercising him. I believe that he is content with the way that things are going, but we shall take note of his observations.
The deregulation matters have already been dealt with extremely well by the noble Viscount the Lord Privy Seal. Therefore I need not respond to that point. I should like to endorse what he said about the Delegated Powers Scrutiny Committee under the chairmanship of the noble Lord, Lord Rippon of Hexham, whose work I believe is admired in every corner of the House. It has been a remarkable success, and we are deeply grateful that the committee has indicated its willingness to take on the additional burden which is now being put upon it.
Lord Campbell of Alloway: My Lords, was the situation to which I referred on sub judice the problem that arose when my noble friend Lord Ferrers was answering for the Home Office? Was that point considered by the Procedure Committee?
The Chairman of Committees: My Lords, that point has been considered by the committee. The whole matter is still in the melting pot. It is one of immense complexity. As a lawyer, the noble Lord will be aware of the difficulties that we face. Every endeavour is being made, especially by the noble and learned Lord, Lord Mustill, as I have said, and I am sure that a conclusion will be reached as quickly as possible.
I repeat my gratitude to everyone who has taken part in the debate. I hope that I have answered the questions that have been put to me.
Lord Stoddart of Swindon: No, my Lords, the noble Lord has not. He has not answered the one that I asked about the Thursday point.
The Chairman of Committees: My Lords, I ask forgiveness of the noble Lord. He is right. I drew attention in my opening remarks to the fact that today is Thursday and we have only three Questions down.
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The explanation for that probably is that we have been back from a very long Summer Recess for only 10 days and people have not had the urge to put down a Question because something has cropped up that has caused that to happen. On most occasions they have been put down. If the procedure is made permanent it will not be the end of the world because it can be changed by the House at any time if it so wishes. It has worked most of the time. There have been a few occasions—I concede that there have been a few—but they have been very few. As people get to know of the procedure, it will be found to be of help to the House. I hope that the noble Lord agrees.
On Question, Motion agreed to.

Subordinate Legislation: Voting Freedom
4.53 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale rose to move to resolve, That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.
The noble and learned Lord said: My Lords, the purpose of the Motion, as your Lordships will have gathered, is to make clear that there is no convention which precludes your Lordships from voting on subsidiary legislation. I was glad to hear what the noble Lord, Lord Stoddart, said about the view that he has expressed in the sub-committee, and which I gather received general consent there.
I put down the Motion because it appears that there has been some attempt by members of the Executive to argue that your Lordships were inhibited in the way that I suggested. On Second Reading of the Deregulation and Contracting Out Bill, having referred to the Procedure Committee, whose report your Lordships have just been considering, the noble Lord, Lord Strathclyde, said:
"In this way, the House need not depart from its convention that it does not divide on secondary legislation".—[Official Report, 6/6/94; col. 956.]
What the noble Lord, Lord Wakeham, wrote to me was in virtually the same words. Under those circumstances, it appeared to be necessary to resolve the matter in the way the Motion seeks.
As I understand it, a constitutional convention is a rule of practice on the part of some organ of the constitution which it regards as more or less binding, according to the length of subsistence of that practice, according to its acceptance on behalf of the organ, its general recognition by authorities, such as leading text books, and, above all, by its practical convenience. On all those criteria there is no such convention as it would seem was sought to be asserted. I should add that, although it is regarded as more or less binding, according to the criteria which I have suggested, it will never be regarded as absolutely binding as a rule of law is binding.
In the light of that, it may be convenient to compare the asserted convention with some undoubted conventions of the constitution both here and abroad. A very powerful convention was the United States

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convention that no president should enjoy more than two terms. That dates from the very first presidency and was asserted in terms by President Jefferson very soon afterwards. It was recognised almost universally. It was powerful enough to prevent President Grant and then President Theodore Roosevelt from standing or enjoying a third term, as; they wished. But being only a convention, it did not prevent, in the exigencies of the Second World War, Franklin Roosevelt from enjoying a third term, and, indeed, entering on a fourth, which shows that even a very strong convention yields to convenience.
The second example I can give shortly. It is the convention as to resignation when a government are defeated at the polls. During the 18th century and most of the 19th century, the Government resigned only after meeting Parliament and being refused a vote of supply, or its equivalent, a vote of censure. But at the end of the last century, both Gladstone and Disraeli, after some hesitation, resigned on defeat at the polls, and that was practised by every government up to 1923. But in that year there was a hung Parliament and the Prime Minister, Mr. Baldwin, waited to meet Parliament. That was the convenient course for a hung Parliament. Thereafter, the former Gladstone/Disraeli practice was resumed and has gone on ever since, although I do not doubt that if we had another hung Parliament, it might well be considered convenient for the government defeated at the polls to meet Parliament and to see what happens.
The third convention I can mention very shortly; it is the Salisbury Convention. I need not go into that because it was debated at length in your Lordships' House and its parameters were canvassed on the Maastricht Bill and on the transport Bill. It was an acknowledged convention, an acknowledged limitation on the powers of your Lordships' House, and has been recognised as such. I hope that I shall not be thought impertinent if I say what a pleasure and privilege it is for us to have a scion of that famous house again leading your Lordships' House. What the noble Viscount has done in relation to this resolution bodes very well for the future of your Lordships' House.
On those criteria, how does the asserted convention measure? It has existed for only a decade or so. During the 1970s, both parties in opposition voted against statutory instruments, the last occasion being with regard to the Rhodesian sanctions. Therefore, the rule of long-subsisting practice entirely fails.
As to its acceptance, I can find no evidence of its acceptance by your Lordships who, after all, are at the receiving end. I see that the noble Lord, Lord Stoddart, bears that out. Nor is it recognised by any of the authorities that I have been able to find. I have looked at Shell on the House of Lords, at Erskine May, at Griffiths and Ryle on Parliament, which had the participation of one of the Clerks of your Lordships' House. None of them mentions any such convention; nor does the leading authority on constitutional conventions—Marshall on Constitutional Conventions—mention it. On the contrary, they all
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mention the instances on which your Lordships' House did vote against subordinate legislation. Therefore, there is no consensus there.
If more were wanted, it is really inconsistent with the terms in which subordinate legislation is enacted:
"No order shall be made … unless a draft of that order has been laid before and approved by a resolution of each",
—I emphasise—
"House of Parliament".
The two Houses are co-equal in that respect. It does not refer to, "approval by the other place and rubber stamping by your Lordships' House". On the contrary, your Lordships have the full power of approval which involves disapproval too.
Also, it is inconsistent with the Standing Orders of your Lordships' House. Standing Order 55, which deals with quorum, states:
"If … on a Division upon a Bill or upon any Question for the approval or disapproval of subordinate legislation",
and so on. That is quite inconsistent with there being any such convention as appears to be asserted.
In view of that, I suggest that we can proceed very rapidly to approve this Motion. I should add two other considerations: first, the increasing importance, both in scope and in substance, of subordinate legislation. Before his greatly lamented death in a road accident, Mr. Cryer, the very much admired chairman of the Joint Select Committee on Statutory Instruments, wrote to the Leaders of both Houses complaining that subordinate legislation was now going well beyond what he, in his homely phrase, called the "nuts and bolts" of legislation; in other words, putting the final and subsidiary finishing touches on a mechanism which is plainly blueprinted in the principal legislation. If the principal legislation lays down clearly the scope of the subordinate legislation, there should be no question of the sort of matters of which Mr. Cryer complained.
The second additional reason I put forward with some diffidence; that is, most unfortunately for parliamentary government, the other place is held increasingly in low esteem. Certainly it would be inconsistent with comity between the two Houses to spell that out or expatiate upon it, but your Lordships must take account of that if there is any proposal to limit your Lordships' legislative powers over subordinate legislation.
The other place seems to be increasingly under the hand of the Executive. With regard to the negative procedure, frequently the orders are not reached at all and that being so, it seems to me that for the future of parliamentary government, a burden rests on your Lordships' House to make sure that parliamentary purposes are still performed adequately, principally in regard to countervailing the power of the Executive.
Having said that and having asserted that there is no such convention as was sought to be asserted, I should add that I do not believe, if your Lordships' accept the Motion, that voting against subordinate legislation will be an everyday concern. In the 1960s and 1970s, when your Lordships on both sides voted against subordinate legislation, that happened only in relation to an average of two orders per Session. I should expect that to be very much diminished if your Lordships pass the Motion

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because I believe that the Executive, in particular its bureaucratic aspect, will be much more cautious as to what may happen in your Lordships' House.
At the moment I can think of only three matters on which your Lordships may wish to vote against subordinate legislation. One is really contained in, as I mentioned, Mr. Cryer's advice; namely, when the subordinate legislation goes beyond nuts and bolts and trenches on policy. The second is an aspect of the latter. Noble Lords will want to be prepared—and certainly consider themselves free—to vote against subordinate legislation when the Joint Select Committee draws attention to one aspect, especially one which it finds to be an unusual or unexpected use of a delegated power.
I have an example which I believe I ought to give to your Lordships so that it will be seen that what I say is not theoretical. It occurred under the Child Support Act 1991 of unfortunate memory. That was found despite the warnings of your Lordships. Indeed, for all the warnings, it turned out most unfortunately for the citizens and, I dare add, for the Government. So great was the clamour of protest that the department rapidly brought in a modification; but it did so under a power to make transitional provision. The transitional provision was to alter some assessments which had already been made and taken legal effect under the main Act. Unsurprisingly, the Joint Select Committee referred to that as an unusual and unexpected use of the power. In fact, although dealing with the constitutional aspect, your Lordships did pass the regulations because they went some way towards mitigating the mischief which this House had anticipated when discussing the legislation.
In those circumstances, there is perhaps one more example and one which we considered during consideration of the deregulation Bill. I believe that there is a lacuna which was identified by the noble Lord, Lord Rodgers of Quarry Bank, last week. He moved an amendment to close it. However, your Lordships felt that the lacuna would be closed if the House accepted the Motion on the Order Paper today.
I do not believe that approving the Motion—and I hope your Lordships will do so—will create an open invitation to the House to trammel with every subordinate instrument that is present; on the contrary, it must be quite exceptional.
Moved to resolve, That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.—(Lord Simon of Glaisdale.)
5.13 p.m.
Viscount Cranborne: My Lords, I am sure that the whole House will be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for, once again, not only giving us the occasion to consider the constitutional role of your Lordships' House but also for giving us what I know the whole House feels to be the very real pleasure of hearing the clarity of his exposition in such matters.
We are indeed fortunate that the House continues to take such an interest in procedural and constitutional matters. Although the arguments may sometimes seem
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a little abstruse to outsiders, it seems to me that it is only the interest at the level shown by your Lordships that keeps our own constitutional machinery in good working order. For that reason alone, I welcome the initiative of the noble and learned Lord. I shall do my best to set out as clearly and as concisely as I am able my own views on the issue under discussion today, both as Leader of your Lordships' House and on behalf of Her Majesty's Government.
At the outset, I should say that I entirely accept the Motion of the noble and learned Lord. Indeed, during the previous debate, the noble and learned Lord gave us a bit of a trailer for what I would say. I am grateful to him for exciting additional interest in my speech. The House undoubtedly has a constitutional right to vote on any subordinate legislation. I do not believe that there is any doubt about that fact. Our position in that respect certainly remains as stated by my noble friend Lord Hesketh, who was then the Government Chief Whip, in a debate on 19th May 1993, to which the noble and learned Lord referred. My noble friend said:
"The power to do so certainly exists. It would be open to your Lordships to use that power".—[Official Report, 19/5/93; col. 1811.]
Of course, I would in no way dare to disagree with my noble friend, especially on such matters.
Therefore, there is no question whatever of our opposing the Motion or, indeed, seeking to resist it. However, I should also like to remind your Lordships why the House has rarely chosen to exercise that freedom. I was most pleased to hear what the noble and learned Lord said in his concluding remarks. It seems to me that perhaps—as I had guessed—he and I are not all that far apart on the "buts" that I might introduce in the course of my remarks.
As noble Lords know better than I, this House has very broad powers; indeed, there are very few formal constraints. The manner in which the House chooses to exercise such powers is crucial. We all know that the proceedings of the House depend in large part on a foundation of agreement as to what is and what is not an appropriate course to pursue. The House could not function so effectively without such consensus—that is, without general agreement to observe the various conventions which regulate our activities. Those conventions range from the self-restraint which I know your Lordships always intend to observe in the length and frequency of speeches, to wider questions of what is procedurally or constitutionally appropriate. Moreover, it is always open to noble Lords to change their practices.
Of course, there are always exceptions, just as there clearly is an exception, as pointed out by the noble and learned Lord, Lord Simon of Glaisdale, over the number of terms that a president of the United States may serve. The convention in that country is clearly that no president may serve more than two terms. Indeed, that convention is still in force, despite the exceptions that the late President Roosevelt represents. Therefore, I wholly accept the example chosen by the noble and

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learned Lord as being entirely appropriate for the purposes of today's debate. I see that the noble Lord, Lord McIntosh, wishes to intervene. I give way.
Lord McIntosh of Haringey: My Lords, I am much obliged. It was following the example of President Roosevelt in being elected for a third and, indeed, a fourth term that an amendment to the constitution of the United States was carried which formally limits the tenure of presidency to two terms.
Viscount Cranborne: My Lords, I thank the noble Lord, Lord McIntosh, for reminding me of that fact. Of course, that is perfectly true. But, as we all know, although it may be rather a long and cumbersome procedure, the constitution of the United States is open to amendment. Indeed, I can think of a number of occasions when that has taken place.
However, I do not wish to put too much weight on that particular piece of ice, except to say that I would counsel some caution as to the exercise of our unfettered right to vote. Most of our practices and conventions were developed for good reason and, I believe, serve the House well. They represent a great deal of accumulated wisdom which it would be rash for us to ignore.
One such convention is certainly what we are discussing today; namely, that although noble Lords have the right to do so, they do not vote directly on subordinate legislation. I know that the noble and learned Lord disputes whether that convention exists. However, in my view, there is some clear evidence to suggest that it does. If that is so, there would have to be a very powerful reason for discarding it. It does not, as someone suggested, suit the purposes of the government of the day, but is perhaps constructive for your Lordships' House as a whole. After all, this House is in large part a revising Chamber. Indeed, on re-reading the letter which my noble friend Lord Wakeham sent to the noble and learned Lord (to which the noble and learned Lord referred) I noticed that that was a point made by my predecessor.
It is up to us, and it is indeed another unfettered right which I have noticed has been exercised—very often to this Government's discomfiture—with some abandon in your Lordships' House of late, to cause another place to think again. Yet we and another place have identical powers in respect of subordinate legislation, simply to accept or reject. I would submit to your Lordships that this is a crude, inflexible power, at odds with our role as a revising Chamber. I suspect that the noble and learned Lord, Lord Simon, would agree with that, in view of what he said about the infrequency with which he anticipated this power should be used. Therefore it is clear that exercise of this crude power could result in stalemate between the two Houses with little scope for resolution.
That is why, instead of exercising the power which the House undoubtedly has, your Lordships have chosen rather to develop other means of making known your views on the subordinate legislation submitted for your consideration. The House has chosen to voice its opposition without making an outright challenge to another place, which in almost every case will have already debated the instruments before us. These other
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means—there are many of them—have included Motions calling on the Government to make amendments to the legislation, or Motions to adjourn consideration of it. Your Lordships will be well aware, too, that time is always made available to debate a Motion or a Prayer on an instrument. The House therefore has more opportunity to debate instruments than does another place where they are usually taken in a committee and where Prayers are very rarely taken at all.
Some of your Lordships may suggest that the convention which we are discussing is a lately-grown one. Again I would draw the noble and learned Lord's attention to this. He implies that it does not exist at all and others have implied that this is a relatively recent development. However, I think I am right in saying that the only occasion since 1945 on which your Lordships; have voted down a statutory instrument was on that famous occasion on 18th June 1968. Already it was; clear that your Lordships were, at least arguably, breaking a long-standing habit—I use the word cautiously in view of the noble and learned Lord's strictures a little earlier. Indeed, the late Lord Wade, speaking for the Liberal Party, as it was then called, said,
"custom has rightly grown up that we in this House do not reject an Order".
Since 1982 there has been no Division on a Motion to approve an affirmative instrument or on a Prayer to annul a negative instrument. In the 30 years preceding that I think I am right in saying that there were only about two dozen occasions on which such a Division was called. It therefore seems to me that your Lordships have for some time regarded this as an unusual step and chosen instead to seek other ways of recording your views. I suspect again, from what the noble and learned Lord said, that if we are not to use this power often, perhaps we are not as far apart—and indeed my predecessor and he were not as far apart—as we had feared.
Lord Renton: My Lords, I wonder whether my noble friend will give way. I express my apology for interrupting, but I think it would be of very great interest if he were able to tell us on how many of those two dozen occasions the government of the day were defeated. It is rather important to know that because sometimes there might be what one might call a maverick vote rather than a vote on which there were strong feelings across the House.
Viscount Cranborne: My Lords, as always I ought to tremble before giving way to my noble friend Lord Renton. My researches have been far too superficial to be able to answer that question, which I acknowledge is an important one, off the top of my head. I wonder whether he would allow me to answer it in writing and perhaps put a copy of the response in the Library of the House because it is an important point. I apologise for not being able to answer it off the top of my head.
The noble and learned Lord, Lord Simon of Glaisdale, described three classes of case, of which I am glad to say he has very kindly given me notice, in which he considered it appropriate that the convention might be

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disregarded, and the House invited to vote outright on subordinate legislation. I have already today given a clear and unequivocal undertaking that the Government would not seek to pursue any deregulation order to which the House had expressed its opposition on a Motion on a report of the Delegated Powers Scrutiny Committee. I would submit therefore that there would be no need for your Lordships to vote against such an order. The Government also always attach great importance to the reports of the Joint Committee on Statutory Instruments. In particular we regard with the utmost seriousness any finding that an instrument constitutes what I believe is called "unexpected or improper use" of the powers delegated by the parent Act. Again, Henry VIII clauses make me all too well aware of how rusty I am on what I believe was the statute of proclamations of 1539 which gave rise to Henry VIII clauses in this context.
The noble and learned Lord's other class of case was where the order went beyond what the late lamented Bob Cryer called the "nuts and bolts" and raised a point of policy. The provisions of the parent Act would of course be crucial here. If they did not provide for such a use of the delegated power, then the order would no doubt be reported on by the Joint Committee as being ultra vires. If at the time the power was granted by primary legislation it was thought to be inappropriately wide, I am sure it is something to which the Delegated Powers Scrutiny Committee would draw your Lordships' attention. It seems to me that we are fortunate in having two such thorough watchdogs. I am pleased that in view of the substantial change that the deregulation Bill represents, such watchdogs have had, if anything, their powers enhanced as a result of the debate that we had a little earlier this afternoon.
I hope I have made clear the position of Her Majesty's Government. We of course acknowledge your Lordships' power to vote on subordinate legislation, but support the constructive way in which your Lordships have shown restraint in the exercise of that power. However, I believe that there is something else we ought to be aware of, and I hope that the noble and learned Lord can follow me here too. The existence of our unfettered right is not, in my view, otiose, even if we do not use it. The very existence of the power surely gives force to the other means which your Lordships have developed for expressing your views on subordinate legislation and so causes those views to be given full consideration should any unconstitutionally-minded government even think of not doing so. As I say, I am grateful to the noble and learned Lord for moving his Motion today. I am also grateful to him for moving it from last week when he originally proposed to raise this question because it seems to me that our business today fits naturally together as a result, particularly in view of the business which the noble Earl, Lord Russell, is about to raise in the House. We
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do not always achieve such coherence as business managers and I particularly look forward to hearing the views of the House on this as on all other subjects.
5.27 p.m.
Lord McIntosh of Haringey: My Lords, the House is of course, grateful to the noble and learned Lord, Lord Simon, for raising this important matter and for the way in which he did so; and indeed for his timing. We are also grateful to the noble Lord the Leader of the House for taking the opportunity to express the Government's views at the beginning of the debate rather than letting the debate take its course before replying to it. I am sure that was a wise decision.
This could be a trivial debate, an interesting debate, or it could be an important debate. It would be a trivial debate if we spent any time at all on the literal wording of the Motion to resolve. It is clear that the Motion to resolve is correct and that the House has an unfettered right to vote on any subordinate legislation submitted for its consideration. That, I suggest, is not the issue with which we should be concerned if we are concerned with the future procedures of this House. It would be an interesting debate, but possibly no more, if we were to spend a great deal of time considering the semantics of the word "convention". The noble Lord the Leader of the House has talked about conventions, but of course there are all sorts of levels of convention. There are conventions which find their way eventually into standing orders. There are conventions which find their way into the Companion to the Standing Orders; like, for example, the Addison Rules. There are conventions such as the Salisbury Rules which do not appear in the Companion but appear in learned texts expounding the meaning of the Companion and the ways in which this House operates. There are also conventions which have grown up without ever being written down and yet have, by virtue of their own coherence and plausibility, achieved the support of the House as a whole.
The Delegated Powers Scrutiny Committee referred to the convention on statutory instruments as being a weak convention. I do not know whether a weak convention is a category in itself or whether it is more or less than an understanding. I do not very much care. What is important is that we should move from this interesting, semantic discussion to consideration of the much more important issue of the need for and future of delegated legislation and what action this House should take if it is accepted that delegated legislation should continue.
Various committees which have been set up by your Lordships over the years have considered certain aspects of this question. The Donoughmore Committee of 1932 considered in detail Henry VIII provisions. That committee has had occasion to be referred to in debate on a number of occasions, mostly by the noble and learned Lord, Lord Simon of Glaisdale, but also by other noble Lords over the years as governments have attempted to impose Henry VIII legislation.
In 1973 the Brooke Committee considered the question of negative and affirmative resolutions and attempted to make some distinction as to the occasions on which one procedure should be adopted in preference

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to another. The Renton Report of 1975—and we are delighted to have the noble Lord in his place and among the speakers today—considered what I believe to be the much more important issue of what should be contained in clauses, what should be in schedules and what it was permissible to include in delegated legislation. The report contained a great deal more, but for our purposes today that is the important issue.
Therefore, over a considerable period there has been consideration of what it is proper for Government to seek to put into subordinate legislation. I regret that in its report last year the Delegated Powers Scrutiny Committee felt unable to take that consideration further. I also regret that the committee found itself agreeing with the Government that the rights or wrongs should be considered case by case in each specific context.
I should have thought that as subordinate legislation grows —and there is no doubt that that is the case, and Bob Cryer's letter confirms what we all know—there is increasing need for proper consideration and analysis, and for the establishment of rules concerning what can and should be contained in subordinate legislation. That need has grown in recent years as a result of the degree to which European legislation needs to be considered by Parliament in subordinate legislation under the European Communities Act 1972 and subsequent European legislation. The need has increased further this year in view of the special provision which has had to be made for the deregulation Bill.
Therefore, there is no doubt that delegated legislation is a feature of government which will not go away. It deserves and needs to be analysed, categorised and considered carefully by this House if we are to take our responsibilities seriously.
Then we have to look not only at the degrees of delegated legislation but at the degrees of remedy. The extreme remedy is the remedy of rejection. It has been rightly said that that remedy has been adopted only in 1968 on the Orders in Council relating to Rhodesian sanctions. I cannot avoid saying from this Dispatch Box that we only come close to such rejection because we have a House which is fundamentally non-Labour, and indeed anti-Labour. It is, in fact, Conservative in its composition, although I am always contradicted when I say that. We come close to the point of rejection—not merely moving a Motion for rejection but having rejection carried—only when there is a Labour Government. Therefore there is a real party political issue to be considered here. It would be wrong for me to approach this matter without taking the view of the next Labour Government. The next Labour Government simply cannot afford the same degree of insouciance in relation to the powers of this House to deal with delegated legislation as a government which have very nearly, unless they make huge mistakes, a built-in majority in this House. There are other remedies which we shall have to take to deal with that built-in majority, and we shall use them. In the meantime, we have to consider the position of the House as presently constituted and our responsibilities.
One of those responsibilities relates to the issue of negative and affirmative resolutions. Again, I very much regret that the Delegated Powers Scrutiny Committee
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agreed with the Government that there was; no finite rule as to what should be dealt with by affirmative resolution or by negative resolution. A great deal of the detailed consideration of legislation in this House in recent years has taken the form, failing other means of amendment, of debate on whether what the Government propose should be dealt with by means of negative resolution or should be subject to the affirmative resolution procedure. Any government will always resist increasing the pressure on the House by having a larger number of affirmative resolutions.
Yet at the same time, in our business over the period of a Session we find a large number of orders arising from earlier legislation which are subject to affirmative resolution but are never challenged. For example, paralytic shellfish regulations arise every year, but I do not believe that it can be said that those are matters of the highest political significance which deserve the prolonged attention of your Lordships.
Lord Graham of Edmonton: My Lords, they are to the shellfish.
Lord McIntosh of Haringey: My Lords, I suspect that the shellfish are past it by that time.
If we were systematically to remove from our statute book the requirement for earlier, unnecessary, affirmative resolutions would it not be possible for the Government to be a little more flexible in permitting subsequent affirmative resolutions? There would be no net increase in the burden on the House, and our political effectiveness would be increased.
The other issue with which we have to be concerned, and some noble Lords will be, is the power of amendment. I have heard the view expressed on all sides of the House that subordinate legislation should be capable of amendment in the same way as primary legislation. Those who have no prospect of participating in government will find that a very attractive argument. Those who do have a prospect of participating in government will never find it an attractive argument, because in effect it promotes secondary legislation to become primary legislation. We have too much legislation as it is, and to increase the amount of legislation tenfold (there are some 2,000 orders a year which might be capable of amendment) would be to destroy the effectiveness of this House, or of any legislature, as a revising body. Therefore, speaking on behalf of Her Majesty's Loyal Opposition, I am bound to say that the House cannot expect a Labour Government to permit amendments to subordinate legislation.
There are also degrees which may be used in expressing opposition. The noble Earl, Lord Russell, is very skilled in finagling those degrees. He finds new words each time he puts down a notice of Motion for saying, in effect, that while the House will not overturn regulations it will very nearly do so and the Government are dreadful if they persist regardless. On occasions his Motions have been carried and the Government have ignored them. The wording does not matter. The point is that unless one actually overturns the Motion, then expressions of disapproval are no more than just that:

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expressions of disapproval. They are not binding on the Government. It will be interesting to see what happens on the Motion of the noble Lord, Lord Meston.
This House must continue to preserve the unfettered right. However, the use of that unfettered right must be a last resort. From the point of view of the House as a revising Chamber, it is far preferable that we use all our influence on the Government to control the amount and type of delegation in legislation, the extent to which Ministers are able to use that right to extend policy rather than to implement relatively minor changes in existing policies which have been approved by Parliament, and to a lesser extent the degree to which this House has the ability to express its views on that subordinate legislation. However, above all the issue is the control of delegation.
5.41 p.m.
Lord Rodgers of Quarry Bank: My Lords, this is the third of the important debates initiated by the noble and learned Lord, Lord Simon of Glaisdale. We are greatly indebted to him again.
Perhaps I may describe what I believe to be the common aim of the debates. It is not so much to define the frontier of the powers of the House (that is established by statute) but to explore the no man's land—which is the way in which I describe the significance of convention—and (in the words of the noble and learned Lord today and on previous occasions, and my understanding of the issue) to narrow that ground.
I have been disturbed by the remarks of the noble Viscount the Lord Privy Seal and the noble Lord, Lord McIntosh of Haringey. The noble Viscount the Lord Privy Seal was very careful indeed in saying what I believe to have been obvious from the beginning: that the Government accepted the Motion. They never had any choice whatsoever. But he then introduced an important "however" which we all know is an indication of a change of direction. He referred to accumulated wisdom. He stated that it would be rash to ignore past views. Indeed, he reasserted the use of convention in such a way as to negative the approval of the Motion which he had indicated in advance.
I was also bothered by the remarks of the noble Lord, Lord McIntosh of Haringey. He said that it was trivial to spend time on the Motion. I do not believe that it is. I believe that the content of the Motion is important, as the noble and learned Lord, Lord Simon of Glaisdale, indicated is the case. However, the noble Lord, Lord McIntosh, then used what I considered—I hope that he will forgive my using this word—a slightly menacing approach to the issue of subordinate legislation: that this House cannot expect a Labour Government to permit amendments to subordinate legislation. That may be a statement of fact; we must wait and see. But the very tone in which the view was expressed suggests to me that we cannot expect any change of direction from a Labour Government. With regard to the House today,
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and to the extent to which subordinate legislation will take the place of primary legislation, that concern will not be diminished by any change on the Front Bench.
Lord McIntosh of Haringey: My Lords, the noble Lord has had the privilege, which I have not had, of serving in a Labour Government. When he was a member of a Labour Government, did he urge at any time that there should be the power to amend subordinate legislation?
Lord Rodgers of Quarry Bank: My Lords, I do not believe that I did because at that time, as has been stated many times in this House, subordinate legislation was not the considerable consideration that it is today. Further, I was not a Member of this House; and we are debating the procedures of this House today. I rest my point there. I simply say that it is the role of this House always to scrutinise the intentions of government and to carry out its proper role within the constitution, irrespective of the government in power.
However, I agree with the noble Lord, Lord McIntosh, when he referred in passing to the inhibition that we all feel. There is a certain inhibition within the House: that it is not seen to be legitimate; it is not accountable. In the debate of 19th May 1993 the noble Lord, Lord Renton, stated:
"There is no great clamour for revision of the composition of your Lordships' House".—[Official Report, 19/5/93; col. 1794.]
I have to say that I rather agree with him. Although it is not for me to say, I believe that it would be a mistake for any government to make the reform of the House of Lords the centrepiece of the first parliamentary Session. There is a great case for reform of our constitution, of which reform of this House should be part. But there cannot simply be a change to the composition of the House when we have so many urgent and important problems concerning poverty, unemployment, health, education and homelessness. The idea that we should be close to the people by taking up the first Session of Parliament on reform of this House—perhaps I may speak in a personal capacity—I believe is nonsense.
Indeed, I add—the view may be unpopular—that while the rational case is overwhelming on a democratic ground, if we are to restrict or get rid of the power of the hereditary peerage, those of us who are Life Peers must also look at our position. Life Peers are the product of arbitrary decisions. That does not enable us easily to claim a distinction which the hereditary element in this House does not possess. When reform of the composition of the House arises, I hope that attention will be paid to the question of how Life Peers are chosen and not only the situation regarding hereditary Peers.
I should like to see a reform of this House which more accurately reflected the composition of the electorate as indicated at general elections. Indeed, if the House contained 33 per cent. Conservative voting Peers, 27 per cent. Labour voting Peers and 15 per cent. Liberal Democrat voting Peers, and if other parties were represented by a group of 15 per cent., it would leave 22 per cent. for the Cross Benches, who could represent those people who do not vote at general elections. I

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leave those thoughts with your Lordships' House as a rather neat way, I believe not previously canvassed, in which the problem of composition could be solved.
Lord Monkswell: My Lords, perhaps the noble Lord will give way. Dots he suggest that future Members of the House of Lords should vote in terms of the way that their party or non-party dictates rather than from their own knowledge, wisdom and experience and from having listened to the debate?
Lord Rodgers of Quarry Bank: My Lords, I neither said that, thought that, nor implied it. I simply speculated on how it might be possible in a simple way to solve some of the problems of composition which I believe inhibit the House in using its powers to the full. I believe that that has to be said. In the back of the minds of us all is the extent to which there is an illegitimacy in the second Chamber which means that, whatever our powers, there must be further conventions restraining our behaviour.
I even have some reservations about the Salisbury doctrine, of which the House as a whole seems to approve—at least as it was defined by the noble and learned Lord, Lord Simon of Glaisdale, in the debate of 19th May of last year. As I understand it, it suggests that Bills foreshadowed in an election manifesto are not Bills that the House should vote against. However, people vote in general elections despite manifestos and not because of them. Some of the worst Bills in my knowledge have been those included in manifestos— and some of the better ones were those thought up by governments thereafter. So to that extent I think that I must be a distant voice.
Perhaps I may come now to the main substance of the debate. I go back to what was said in the debate on the Deregulation and Contracting Out Bill on Tuesday of last week by the noble Lord, Lord Henley. It was that text that I had in mind when I heard what the noble Viscount said today. In the circumstances which were described by the noble and learned Lord, Lord Simon, the noble Lord, Lord Henley, said in the course of the debate that the Government would be accepting the Motion before them but he then continued:
"I think most parts of the House would accept that there is a convention against this House voting against subordinate legislation".—[Official Report, 11/KV94; col. 867.]
He then referred further to the convention,
"which has been respected for some time by this House".
Thus I say again that I think that the remarks of the Lord Privy Seal were hedged around in a way which at least causes me concern and takes the edge off my welcome to the approval that the Government have given to the Motion.
Perhaps I may refer briefly to two occasions concerning secondary legislation which are examples of what I think the House should be anxious about. I understand that a Statement is likely to be made in the House about the future of local government reorganisation in England. I do not know its terms, but I would not be at all surprised if the House were told that the Government had wisely, and in response to what has been said in this place, decided to abandon the larger part of that reorganisation for an indefinite period.
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However, at the same time, we may well be told that statutory instruments will come before the House with respect to certain parts of the United Kingdom. As noble Lords will recall, we have spent a great deal of rime discussing reorganisation in Scotland and Wales on the basis of primary legislation. But is it not strange that, having discussed Scotland and Wales on the basis of primary legislation, when it comes to England we are not allowed to amend any of the proposals or seek to amend any of the proposals put before the House? That gives me cause to wonder whether in those circumstances we should exercise restraint and not be prepared to vote against subordinate legislation in the form of statutory instruments unless we are going to place consideration of England well below consideration of what is proper in Scotland and Wales.
Again, I have seen a letter which I take for granted must be public property from the then Government Chief Whip to the Chief Whip of the main Opposition party dated 7th November 1991. It states:
"We are all agreed that we disliked procedural rows on the floor of the House, and that we would stick to the understanding that notice would be given before the Whip went out each Thursday, of any intention to divide on any motion relating to subordinate legislation in the following week".
If any attempt were made from the Back Benches to divide on a Motion,
"the front benches would indicate to the House that they could not support the intention to divide in such a way".
I said that that letter causes me concern because, not only is it the custom of the House, but it is surely part of our role in debating amendments to hear what is said from the Government Front Bench. There are times when assurances are given which are accepted by those seeking to move amendments. At other times the House is called to a Division. But it now appears that the understanding between the two Front Benches is that the House should not be free to exercise its judgment about whether to vote on a statutory instrument in the light of the discussion which has taken place, or if, indeed, Back-Benchers have in mind to do so, they will be discouraged from doing so on the grounds that the previous week it had not been indicated to be the intention of Members of this House to divide.
Lord McIntosh of Haringey: My Lords, the noble Lord makes assertions about what has been agreed between the two Front Benches. I have had the opportunity of looking at that letter, but the phrase which the noble Lord, Lord Hesketh, used meant, I think we are all agreed, that it was agreed with the Liberal Democrats, or whatever they were called at that time, as well as the two Front Benches.
Lord Rodgers of Quarry Bank: My Lords, I am sure that it was agreed between the Chief Whips, although the letter was exchanged between the Government Chief Whip and the Chief Opposition Whip. I speak if need be in a personal capacity. But I have to say that I believe that all Members of this House must be wary about anything which restricts their power of scrutiny. I cannot dispute an understanding which may have been reached, but surely I have the right—I hope all Members of the House have the right—to express concern. I do so. I took it for granted that the

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letter was in the public domain and referred to it because I think it strengthens the view that the House should be concerned about the way in which we deal with subordinate legislation.
We shall bring this debate to a conclusion later this evening. Notwithstanding what was said by the Lord Privy Seal—which was a re-statement of what I understood to be the historic, if not the conventional, position—I greatly welcome the Motion and the speech of the noble and learned Lord, Lord Simon of Glaisdale, as an antidote to the view expressed by the Lord Privy Seal and the view held by both Front Benches and all governments in power.
I was asked by the noble Lord, Lord McIntosh, what my position would have been in government. Those of us who have served in government have sometimes made mistakes. That is why it is good to change a government from time to time, because there is a vanity of power, an arrogance which comes from wanting to get your own way and trying to persuade Parliament against its judgment to do things which the Government would find convenient. Whether or not we have been fortunate enough to be in government, we must speak our minds. My mind is to assert the power of Parliament against the Executive, whoever that Executive may be.
5.57 p.m.
Lord Renton: My Lords, my noble friend the Lord Privy Seal, with his usual courtesy, has passed me a note saying that, alas, he has to go to an important meeting at 6 o'clock.
Perhaps I may first say that I do not agree with the noble Lord, Lord Rodgers of Quarry Bank, in his interpretation of what was said by my noble friend this evening, who I thought made an open-minded speech in which he reaffirmed your Lordships' constitutional right and power to vote against subordinate legislation, if we think it right to do so. I shall give one or two reasons why I think that this power is one which we should not hesitate to use.
The noble Lord, Lord Rodgers, mentioned a very important power which may come up in the next Session and that is on the question of orders made in relation to local government in England. To me, it is unthinkable that we should not vote against those orders if we think it right to do so.
The noble and learned Lord, Lord Simon of Glaisdale—who, alas, is not in his place at the moment—has done an important service in raising the matter and has given rise to a debate which, so far, has been very interesting indeed and wide-ranging. He said that the practice—I do not think that one should call it a convention; I agree with the noble Lord, Lord McIntosh, when he said that we must be careful of the semantics. The word "convention" generally means something much stronger than the mere practice of restraint which your Lordships have exercised with regard to subordinate legislation and not voting on it. The noble and learned Lord, Lord Simon, said that the practice had existed for only 10 years. I have been a Member of your Lordships' House for 15 years and during that time, within my recollection there has certainly not been any
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vote against subordinate legislation. The restraint therefore goes back as far as 15 years. But I hope that in future we shall exercise our constitutional responsibility to a greater extent. We are free on all primary legislation, except Finance Bills, to amend it. It is an absurd anomaly that we can ask the Government and Members of another place to think again on amendments to primary legislation but not do so, when we feel it right and necessary, on secondary legislation.
I have to tell noble Lords, having spent 34 years in another place before I came here, that on some secondary legislation, as well as the primary legislation under which it is made, we are better qualified to pass judgment than are Members of another place. On some matters there are many noble Lords who have knowledge, expertise and experience that cannot be found in another place. I think particularly of judicial matters, defence and forestry; and I feel bound to say, because of the splendid work that is done by our European Communities Committee, that there is a depth of understanding among many of your Lordships on European affairs which just does not prevail in another place. That is in itself a very strong reason why we should be prepared to vote on secondary legislation when we feel it is right to do so.
Another reason why we should be free to consider it and vote upon it is—and I speak here from experience— that when it comes to considering either a negative resolution or an affirmative resolution in another place, it is generally listed at the end of the day's business— that is, after 10 o'clock, when most Members have gone home and the House is almost empty. For that reason, the contents of the secondary legislation and whether it should be passed are largely ignored. I really feel that because we have more time to consider it, and a greater opportunity to do so, as well as, as I said, perhaps greater skill in doing so, then we should use that power.
Reference has already been made to two important recent developments which I believe increase the need to use that power when we think it right. There is the question of the Scrutiny Committee alerting us to the use of Henry VIII clauses in primary legislation at an early stage when Bills have just come before the House. Now another situation will arise under the Deregulation and Contracting Out Bill: we are bound to have orders put before us which will require very careful consideration because they will amend primary legislation. We may be against those orders; we may think that they are wrong in principle and that they raise fresh questions of policy—it is not just a question of "the nuts and bolts", as the noble and learned Lord, Lord Simon of Glaisdale, rightly said, that arise when we consider secondary legislation; it can and does raise questions of policy from time to time. I mentioned a third reason earlier in answer to the noble Lord, Lord Rodgers of Quarry Bank; namely, the question of local government reform in England. Those are three strong reasons.
The noble Lord, Lord Rodgers, tempted me to follow up what he was saying by going into a further discussion on the Constitution. But I would just say this: thank goodness we do not have a written constitution! We have an ever-changing Constitution. We let it evolve.

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We are not rash and quick to change it. But when new circumstances arise that require us to change it, then we do not hesitate to do so after careful consideration. We are now in a situation when we should evolve in the way that is suggested by the noble and learned Lord.
Finally, I feel bound to say—it was hinted at by the noble and learned Lord, Lord Simon of Glaisdale, and by my noble friend the Lord Privy Seal—that, when we do vote against subordinate legislation, I am quite confident in my own mind that your Lordships will do so responsibly. I hope and believe that people will not regard it as just part of the Party game. That is not how we operate in this House—thank goodness! The Government will be fortified when they win a vote in favour of subordinate legislation. Therefore I would not have thought that they would object very strongly to a vote, if they are fairly confident that it is right. It is only if, across the House, there is a strong feeling that the Government and the House of Commons should be asked to think again that we should on quite rare occasions vote against it.
Those are my reasons. Before I sit down—I did say that was the final point and it was certainly my main point—perhaps I may just refer to a kind reference that was made by the noble Lord, Lord McIntosh of Haringey, about the committee of which I had the honour to be chairman. I am glad to say that another member of that committee is about to follow me at once; namely, the noble Lord, Lord Henderson of Brompton. I have not in recent weeks or even months discussed this matter with him, but I am sure he will bear me out when I say that we were very careful to advise Parliament as to what should go into clauses, and advised that the broad intentions of Parliament should be clearly stated in Bills, whether or not there had to be detail in the legislation. We suggested that the detail should go largely into schedules.
It is now many years since the committee sat; but when we were sitting, we had not reached the stage in the evolution of our parliamentary affairs that we have now reached, so we did not make any particular reference to the question of what should go into statutory instruments. We were certainly against Henry VIII clauses; that was pretty clear. But taking it in the broad, I believe that we now have to resolve in our own minds that we have a constitutional power to use and when necessary, we should not hesitate to use it—and no government need be afraid.
6.9 p.m.
Lord Henderson of Brompton: My Lords, it is a great pleasure for me to follow the noble Lord, Lord Renton, under whose chairmanship I sat on the committee that bears his name and which reached unanimous conclusions under his guidance. I am very glad to acknowledge that that was so. I differ from the noble Lord, Lord Renton, on only one of the points that he made; namely, that he hoped that in future the House would resort more frequently than it has in the past to direct opposition to subordinate legislation issuing from the Government. I shall explain why I think so and give one particular reason.
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Before so doing, I want to say that, like so many other Members of this House, I am very happy indeed to accede to the Motion of the noble and learned Lord, Lord Simon of Glaisdale. He has done the House a service to emphasise that we are not in fact constrained except by—I shall not say "convention"—the practice of the House and what I shall call general political caution or the exigencies of politics from doing so, except as a last resort. To that extent I am in entire agreement with the noble and learned Lord, Lord Simon of Glaisdale.
I take the same view as the noble Viscount the Lord Privy Seal, the Leader of the House, whose speech I thought admirably and impartially reflected the practice of the House in this regard. That practice goes back a very long period of time. It should not lightly be disregarded.
I come to the particular point that I wish to make. If the House votes successfully against an order, whether it be an affirmative or negative instrument, it puts an unnatural constraint on the Government. By the "Same question same Session" rule, they cannot reintroduce the same Motion after it has been rejected without breaching that fundamental parliamentary rule. Perhaps I may quote from Erskine May as to what that rule is:
"A Motion or Amendment may not be brought forward which is the same in substance as a question which has been decided in the affirmative or negative during the current Session".
As I said, that is a fundamental rule.
It would be absurd if one House or the other voted against the Second Reading of a Bill and the Government came back the next day and voted for it. It stands to reason that that is something which we must respect. If we vote against subordinate legislation, whether it is affirmative or negative, we put the Government into a very difficult situation. Either they have to amend it, in which case they can bring in an amending order because that is not the same question, or they can be obstinate and lose their business for the Session, which is a very serious matter for the Government, depending on the importance of the subordinate legislation.
In my opinion, no government of whatever complexion would be prepared to lose their business for the remainder of the Session. So they find themselves in the position of having to breach the "Same question same Session" rule. We should not put the Government into that position.
The locus classicus is the Southern Rhodesia (United Nations) (Sanctions) Order 1968. That was an order of the highest importance. It was a matter on which the Government had committed themselves; namely, to implement the United Nations sanctions order. They could not conceivably have let it slide for the remainder of the Session; nor could they amend it. They had only one alternative, which was to table a Motion which rescinded the previous order. In doing so, they broke the "Same question same Session" rule.
I submit that we do not want to tamper with the fundamental proceedings of Parliament in this way and should not do so except in extreme emergencies and as a last resort. I certainly believe that it is a position that the House should be entitled to take as a last resort but

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not otherwise. I myself cannot believe that, on reflection, anybody would wish to place the Government in a straitjacket of that kind. It cannot be right that they should lose their business for a Session in subordinate legislation whereas they cannot lose their business, all things being equal, in main legislation.
For that reason alone I suggest that the convention or practice of the House, whatever we may agree to call it, should be scrupulously observed. For instance, the Motion by the noble Earl, Lord Russell, to be discussed later this evening should be preferred to the Motion by the noble Lord, Lord Meston. The one is acceptable to our way of proceeding and the other is not. I hope that, if there is to be a Division, it will be on the Motion of the noble Earl, Lord Russell.
As to what should happen in the future, that convention or practice has stood the test of time. On many occasions it has allowed proper debate on an expression of opinion which does not wreck the subordinate legislation and in many cases it has averted a clash between the two Houses. Political consideration was quite rightly introduced by the noble Lord, Lord McIntosh of Haringey. Without that note of realism, this debate would have been floating in the air. He brought us down to the ground and it really matters.
In order to preserve comity—that is a word used by the noble and learned Lord, Lord Simon of Glaisdale— between the two Houses, we should endeavour to uphold this convention. It is a very elastic convention. Each Motion falling short of absolute reversal of the Government's proposal can be tailored to the occasion, as has been done. It has been a kind of safeguard or letting-off of steam, which has allowed expression of opinion without fear of confrontation between the two Houses and between this House and the Government.
For that reason I very much hope that a Motion directly opposing subordinate legislation should be eschewed except as a last resort.
6.17 p.m.
Lord Monkswell: My Lords, it is always a great pleasure to follow the noble Lord, Lord Henderson of Brompton. He brings very wise counsel to your Lordships' House. I thank the noble and learned Lord, Lord Simon of Glaisdale, for introducing this subject and giving us the opportunity to debate it. We have the opportunity to state the rules as they pertain today. It gives us the opportunity to reflect on the origins and history of those rules and on the current situation and allows us to give some advice as to what might happen in the future.
It may be useful to reflect on the basis of why we are here at all. We are all summoned to give our advice to Her Majesty on the arduous affairs of state. I paraphrase the Writ of Summons. I am sure we all recognise what it means. We give that advice individually, as individual Members speaking our minds, and we also give it collectively, either through our Front Bench spokesmen or by going through the Division Lobbies and standing on one side of the Question or the other.
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The noble and learned Lord, Lord Simon, is right. This House does have the right to divide on statutory instruments, which effectively, is what we are talking about. But what is the purpose of that? Over the years in the development of our parliamentary system there have been shifts of power; first, from the divine right of kings to the land and property of feudal barons; and, more recently, from effectively the House of Lords to the House of Commons. That reflects the value our current society places on the importance of each and every individual member of society through the democratic process of elections to the House of Commons.
Our situation is rather like that of a family and I suggest that it is wrong for us, as the elders of the family, to seek to dictate to our younger family members. But we have a duty to provide wise advice. While we retain the right to provide our advice in the strongest terms—by dividing the House and trooping through the Lobbies as I mentioned earlier—surely it is far better, and our advice will be taken much more seriously, if it is uttered softly with no hint of threat.
When I came into this House I wanted my individual advice on the Prevention of Terrorism Act to be heard; I felt strongly as an individual that the Act was wrong and ought not to be renewed. I felt that the way to achieve that was to cause a Division in this House against the renewal of the Act. But year after year when I tried to cause a Division I did not even find a seconder. It is curious to think that when someone in your Lordships' Chamber asserted the right to divide the House and give Members the opportunity to vote on the issue—some Members were in favour of the Prevention of Terrorism Act and did not want to vote against it— those Members of your Lordships' House (younger, dare I say?) who could see the evils of the Act felt that it was more important to abide by the convention that we do not divide. I suppose over the years I have listened to the counsels of my colleagues and now realise that my advice may be better received by reasoned argument than by shouting, screaming, forcing Divisions and trooping through the Lobbies.
We would do well to ponder that point. Our advice is important. The noble Lord, Lord Renton, mentioned the whole range of qualities that individual Members of this House bring to it—the expertise, the knowledge, the background, the understanding. It would be a pity if that expertise and advice were denied the Government because it was offered in the wrong way.
Other factors come into this debate and the noble Lord, Lord Henderson of Brompton, was right when he referred to the contribution made by my noble friend Lord McIntosh of Haringey. He injected into the debate an important note of political realism. It is worth reflecting on why we have subordinate legislation; why we have these statutory instruments—the 2,000 a year that come before both Houses of Parliament. One reason is because progressive governments who want to change things are faced with a conservative House of Lords and that conservative House of Lords has sought over the years to deny progress; to prevent governments moving society forward and reflecting the needs of modern society.

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Parliament has therefore evolved a mechanism of enabling legislation. We give power to Ministers and circumscribe that power around by statutory instrument. We say in legislation that a Minister may do something subject to affirmative resolution or negative procedure. But the reason for those powers being used in that way is because of the conservatism of this House. We must be careful in the way that we use our powers. We must not persuade Members of the House of Commons and the Government of the day that was democratically elected to say that we cannot cope with the conservative element within our legislature that is holding us back, preventing the progress that our people need and therefore to take the powers that we have away from us. I would counsel therefore that we should seek to use our ability to advise the Government of the day rather than dictate to it.
6.25 p.m.
Lord Mottistone: My Lords, it is always interesting to follow the noble Lord, Lord Monkswell. I must say that I liked much of what he said. He was saying that as we stay longer in this place we learn more about how we can contribute effectively. I agree with him strongly on that. I certainly have experienced that. But then he came on to the fact that the Conservatives, as he saw it, were stopping all progress and I do not believe that that is at all right. It is nothing to do with the debate, but the amount of progress we have made over the past 10 or 15 years has been staggering. It may not be progress he wants.
Lord Monkswell: My Lords,—
Lord Mottistone: My Lords, I shall not give way because we all want to get on with the debate. I strongly support the Motion and thank the mover for tabling and moving it. Much has been said about how important it is. Indeed, I am most reassured by the reaction of my noble friend the Lord Privy Seal that there is no question of the freedom to vote being taken away from your Lordships.
I should like to spend a few minutes following up the point raised by the noble Lord, Lord McIntosh, regarding the need to study how secondary legislation should be handled in the future. I have no quarrel with how affirmative orders are handled as such. I have no quarrel with the majority of the negative orders laid and no quarrel with the need for Peers to be ever more vigilant over not missing any that should be prayed against. Indeed, I have no quarrel with the time being given to me, at appropriate times of day, whenever I wish to pray against an order so as to publicise my disquiet at it. I just hope that that situation continues into the foreseeable future.
My problem—I believe it is "our" problem—is that secondary legislation is constantly increasing, and that trend could be incompatible with the steps that may be taken to reduce the formal activities of both Houses of Parliament. My concern with secondary legislation therefore is not so much how it is handled, but the fact that we cannot amend it. Sometimes Ministers are helpful and circulate draft orders before they are laid. They may make some amendments as a result of
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subsequent suggestions and then lay another order. That is most helpful. But the initiative is with the Government.
As my noble friend Lord Renton suggested, in the report to the House that we have been debating and in HL Paper 83 which we shall be debating later, there are the beginnings of a suggestion as to how we may incorporate amending secondary legislation in the arrangements for the procedures that are to be introduced by the deregulation orders, as discussed on the Motion earlier today. Perhaps the procedures for informal committees off the Floor of the House, as outlined in paragraphs 8 to 17 of HL Paper 83, are going in the direction of making it possible for the relevant legislation to which they refer being handled off the Floor of the House but with the right of all Peers, if they so wish, to attend. Suitably adapted, one or both of those procedures might be changed and adopted for affirmative orders whenever requested by any Lord. If there is no request for handling in that special way, there is no point in wasting the time to do it. Very nearly all of the negative orders go through without question and the affirmative ones go through very readily. If that works with affirmative orders, we could consider a similar approach for those negative orders against which noble Lords wish to pray.
I strongly believe that changes of this nature should be gradual and experimented with first, and should always safeguard the basic rights of all noble Lords to debate all the matters that come formally before the House, whether in the Chamber or whether in committee rooms outside. If those safeguards are incorporated we could come to an arrangement by which we could have amendments, when needed, to secondary legislation without waiting for Ministers to be kind enough to give us draft orders in advance.
I hope that there will be such progress through these various committees. I am heartened by their looking at these matters. In the meantime, I trust that the House will accept the Motion.
6.32 p.m.
Lord Shaughnessy: My Lords, your Lordships have indulged in a long session in introspective self-examination this afternoon and I do not propose to prolong that except for a very brief comment indeed. I should state, at the outset, that I do not speak as a member of either the Joint Committee on Statutory Instruments or your Lordships' Committee on the Scrutiny of Delegated Legislation but in a wholly private capacity, so to speak. I join with other noble Lords in thanking my noble and learned friend Lord Simon of Glaisdale and congratulating him on moving this Motion today. We all know that he is a vigilant guardian and a protector of the rights of Parliament and, if I may say so, in particular, the rights of your Lordships' House. He has brought to our attention on countless occasions the importance of this House properly examining and handling subordinate legislation. We are all grateful to him for his assiduous attention to this subject.

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I really have nothing additional to add to the comments made by previous noble Lords on this subject. I wholeheartedly support the Motion moved by my noble and learned friend. Your Lordships should continue to be ever vigilant in the examination of delegated legislation and have no hesitation in properly exercising your powers in that respect. But, equally, I also believe, in agreement with my noble friend Lord Henderson of Brompton, that in the interests of good and also efficient government we should do so with a suitable degree of discretion and restraint. If we were not to exercise an appropriate duty of care your Lordships' reputation in this respect would be badly diminished. This House has been for a great many years, and continues to be, a bulwark against the exercise of excessive political authority. We need only look above us in this Chamber at the statues of 16 Peers and two Archbishops who prevailed upon King John to sign the Magna Carta, to realise how long this has been going on and to reinforce our determination to keep on doing our job in a prudent manner.
6.37 p.m.
Lord Harding of Petherton: My Lords, I put down my name to speak to this Motion under a misapprehension that the procedure of the House would in practice prevent it from voting on deregulation orders under the terms of the Deregulation and Contracting Out Bill. I only read the report of the Select Committee on Procedure, published on 23rd May, just before the debate and realised that I was out of date. I am satisfied—I hope I am right to be satisfied—by the remarks of the Lord Privy Seal today that this House will have both the right and, equally important, the means to be able to debate and vote on deregulation orders. I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for moving the Motion as I support it absolutely.
On the powers and composition of the House, I should like to take issue with the noble Lord, Lord McIntosh of Haringey, who is not in his place at the moment. I do not know the facts and figures but I think that the House of Lords has given much more trouble to Conservative Governments, especially recently, than ever it has to Labour Governments.
6.39 p.m.
Earl Russell: My Lords, I too should like to thank the noble and learned Lord, Lord Simon of Glaisdale, for introducing this Motion. If it is true, as I think it is, that the price of liberty is eternal vigilance, the vigilance of the noble and learned Lord is one of those for which we have most cause to be grateful. We have also heard two speeches of quite exceptional quality, from the noble Lord, Lord Renton, and the noble Lord, Lord Henderson of Brompton, each of them putting, I think as well as it can be done, the case on either side of the Motion.
My case for supporting this Motion is, in its essence, very simple. Parliament makes the law: regulations have the force of law. Therefore we must have the right to consent to regulation. The right to consent must include
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the right to dissent. We do not want to have a formula like the famous conge d'èlive issued by King Henry II to the Dean and Chapter of Winchester: "We order you to hold a free election. Nevertheless, we order you not to elect anyone save Richard, our Clerk Arch-deacon of Poitiers". That is not what we in this House understand by consent.
I was most grateful to the noble Lord the Lord Privy Seal for his recognition that the power exists. So with that recognition we are now debating the wisdom of exercising that power and it is to that point that I shall address my remarks.
I do not agree with the noble Lord, Lord Henderson of Brompton, that the convention we are discussing has stood the test of time. Even during the short time that I have been here—which, in the history of this House, is a very short time indeed—I have seen time wasting away some of the props of that convention. When I first arrived here I used to be told, usually by the Department of Social Security, that regulation was for minor matters.
Conventions are interlocking things. I had been going to say that convention was a two-way street, but I believe that that is a gross understatement. I believe that in fact convention is a roundabout and one person neglecting the rule of the road can make the whole lot break down.
The big change here, as I know the noble Lord, Lord Henderson, agrees, is the increasing press of business. It is that increasing press of business even more than the arrogance of power which is making governments use regulation for matters which cannot by any stretch of the imagination be described as minor. If I were to make a list of 100 measures introduced since I have been here to which I have found it most difficult to consent, I believe that something like 20 per cent. of those would turn out to be matters which have been introduced by regulation. If I were to make a list of the 10 measures to which I have found it most difficult to consent, at least one of those has been introduced by regulation.
When regulation is used for matters of major political controversy of this sort it becomes increasingly difficult to sustain a convention that we consent to these things without voting on them. I too should like to join in the welcome to the Lord Privy Seal who is, I believe, the fifth member of his family to hold this position. I should like to draw his attention to a remark made in this House in 1610 by Robert Cecil, the first Earl of Salisbury and also the first Viscount Cranborne: "When the King extendeth his uttermost authority he loseth his power".
So, as regulation comes to be used for more and more important matters, any convention of not voting against it becomes more difficult to observe. I listened with great care, and a large measure of agreement, to what the noble Lord, Lord Henderson, said about the use of the Motion to Resolve which, after all, is a procedure which I hope to use in a few minutes. That has the very great advantage that it need not preclude the reintroduction of the business in an amended form during that Session. I give that very great weight but again we are on a roundabout.
I would find the argument of the noble Lord, Lord Henderson, more persuasive if the Government had taken any action in response to the Motion which he

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himself moved and carried in this Chamber on 6th July 1992 about a premium for those in bed-and-breakfast accommodation. That was an important issue. Since I am making a critical remark I should like to say that, on the other hand, I want to express great gratitude to Mr. Alistair Burt for the care and courtesy with which he has listened to arguments on this matter. He is a Minister of great quality. But in the last resort care and courtesy is not a substitute for actual change and of that we have, as yet, had none.
That is the sort of thing which makes the use of the convention of the Motion to Resolve rather more difficult than it need otherwise have been. Were that not to be the case, I should be very glad indeed. I do not know what it is going to be. The noble Lord the Lord Privy Seal said that the power to vote down a regulation was a crude power. I agree with him and I regret it. But that is in the nature of the concept of regulation itself. Whatever the noble Lord, Lord McIntosh of Haringey, may say, I do not believe that it is just the attitude of a future Labour Government that stands between this House and amending regulations. It is, as my noble friend Lord Tordoff put it, talking to me earlier this afternoon, the nature of the beast.
It is of the essence of a regulation to be unamendable. So if one believes that a regulation should be amended, it is essential that discussion should begin in private and confidentially well before the regulation reaches the Floor of the House. Here again I am back with the point that convention is at roundabout. If we are not to vote down regulations, then it must be possible to discuss the chance of changing such regulations many weeks before that actually occurs on the Floor of the Chamber. There would have to be give and take on that.
The other point is that we are concerned about the acceptability of what we do in the world outside. The ultimate nightmare of another place for many years when it voted taxes, has been that "they will not pay in the country what we give". Similarly, it should be a nightmare here that some day they may not accept the laws that we pass. Respect for the law is not as strong as it was. I regret that. When we think of respect for the law we should understand that in this country there is an indissoluble association between voting and consent and it is quite right mat there should be. So if a major, controversial piece of policy is introduced here in a form which we feel we cannot vote on, then it is harder for the world outside to consent to it. That is a very great pity and it is a conclusion which all of us should seek to avoid.
The noble Lord, Lord McIntosh of Haringey, told us that we are not going to get away with doing this sort of thing under a Labour Government. He reminded me a little of John Lilburn in 1646 saying, "My Lords, when you unhorsed the King you intended only that you should mount us and ride us in his stead". I say to the noble Lord that there is one remedy available to any government which cannot get their business through this House. That remedy is the creation of Peers. If a Government of which the noble Lord is a member does not use that remedy, then that is their responsibility and not ours. I hope that I shall not need to say that again.
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The question of reintroduction in the same Session was one on which the noble Lord, Lord Henderson, had a great deal to say. What exactly is a reintroduction and what is an introduction of a slightly different measure, is a point on which there is room for debate. I would hope very strongly that in cases such as the Southern Rhodesia Sanctions Order, where there is clearly urgency, there would on all hands be flexibility in interpreting the rules.
I understand the concern, especially of the Whips, that the power to vote down orders makes business intolerably slow to get through. Like the noble Lord, Lord Renton, and for very much the same reasons, I do not think that that would happen. Since. I have been a Member of your Lordships' House I have once or twice been suspected—unjustly, I hope—of wasting the time of the House. That is a very painful suspicion. This is a place which depends on the relationship between us. If one is doing something which the House feels to be unacceptable, one does not increase one's effectiveness—and anyone with any sense at all knows that. That has been the quality of this House for many centuries. I do not think that it is going to change, so I do not think that we need to worry too much about restraint. The noble Lord the Lord Privy Seal talked about restraint. I cannot help but be reminded of Roy Campbell's On Some South African Novelists:
"You praise the firm restraint with which they write— I am with you there, of course: They use the snaffle and the curb all right, But where's the bloody horse?"
I hope that we will not live to have that said of this House.
6.51 p.m.
Lord Simon of Glaisdale: My Lords, I am most grateful for the way in which this Motion has been received and for the contributions that have been made to this debate. I think that it is now clear that there was an attempt to assert a convention that your Lordships would not vote against subordinate legislation. I gave only two examples of that. The noble Lord, Lord Rodgers of Quarry Bank, gave others, including something that was said only last week by the noble Lord, Lord Henley. I must say that when I heard the noble Lord say what he did I thought that his brief had probably been pre-cooked because it was already out of date by the concession which the Lord Privy Seal has made.
It would be impossible—indeed, it would be impertinent—to refer to all the matters that have been raised in this debate, but I know that your Lordships would wish me to put on the record our pleasure at the return to your Lordships' debates of my noble friend Lord Henderson of Brompton after his indisposition. Perhaps I should include the noble Lord, Lord Rodgers of Quarry Bank, in that. I knew that the noble Lord could not stay until the end of the debate even if he were to speak in it, but then I heard that he was unable to attend because he had injured himself severely while gardening. There came to my mind the fact that the noble Lord had disregarded Hilaire Belloc's words:
"It is the business of the wealthy man To give employment to the artisan".

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If the noble Lord was gardening, he was taking the bread out of somebody else's mouth and it serves him right if he was injured.
There are only one or two points to which I should like to refer briefly. The first is that raised by the noble Lord, Lord Rodgers; namely, local government orders. I found it difficult to gainsay what the noble Lord said. It may be that local government orders ought to be added to the three categories that were identified as those where your Lordships would be justified in voting against a statutory instrument.
The second is the point that was raised by the noble Lord, Lord McIntosh of Haringey, and other noble Lords; namely, affirmative and negative resolutions. Affirmative resolutions are undoubtedly a far better and more effective method of parliamentary scrutiny of subordinate legislation. On the other hand, they take up time every time that they are laid because a debate must then take place. I thought that the noble Lord was right in suggesting that we ought not to prostitute, so to speak, the affirmative resolution procedure unless it is really justified. There is also this to be said: the Scrutiny Committee has been extremely discriminating on the subject of affirmative and negative resolutions. Its discussion with departments carefully probed the basis on which a department claims that something is a proper area for parliamentary scrutiny. The Scrutiny Committee signals by bold type where it thinks that the department in question has gone too far. I venture to suggest that a practice is now developing which is very valuable.
The other point is amendability. I venture to agree with the noble Lord, Lord McIntosh of Haringey, that that is a breaking point. I cannot conceive of any government submitting to their subordinate legislation being amended because, as the noble Lord said, in effect, it means promoting subordinate legislation to the status of primary legislation.
In opening the debate, I should have drawn attention to the alternative technique which the noble Earl has developed and which is exemplified by the next Motion on the Order Paper; namely, presenting an argument for amendment. That seems very valuable. An alternative was suggested by the noble Lord, Lord Mottistone; namely, that we could use more widely the scrutiny procedure which has been worked out in relation to the Deregulation and Contracting Out Bill. That seems well worth exploring.
Finally, although the matter of the composition of the House has been raised, it goes well beyond the scope of this debate. However, I venture to suggest with all respect that in a debate where such notable contributions have been made by the noble Viscount and the noble Earl, we should not dismiss too readily the political and constitutional intuition that seems to be developed by a political culture that is handed down from generation to generation. I commend the Motion to the House.
On Question, Motion agreed to.

Income-related Benefits
7 p.m.
Earl Russell Earl Russell rose to move to resolve, That this House takes note of the report of the Social Security Advisory Committee (Cm. 2609), and calls on Her Majesty's Government not to proceed with the Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1994 and to lay amended regulations which neither penalise British subjects returning to their own country, nor infringe European law.
The noble Earl said: My Lords, I am sorry to take up your Lordships' time once again. I have said that the body of legislation is increasing and is being used for more and more important matters. I am sorry that it has to be me who brings that to your Lordships' attention.
The regulations to which I am calling our attention originate from a speech by the Secretary of State at the Conservative Party Conference in 1993 directed to the phenomenon of what has come to be known as benefit tourism —people from other countries within the European Union coming here and taking advantage of the benefit system, in effect, it is alleged, to have a free holiday. The language of that speech is something that it is not necessary for me to touch upon now; but I will say that it is agreed that the content needs to be taken seriously. If such a thing is taking place, we are prepared to agree that it is a mischief and that appropriate steps, if possible, should be taken to relieve it. But the tests that those steps should pass are that they should be practically workable and should not create a mischief worse than that which they prevent.
The difficulty which immediately faced the Government when they contemplated taking action to implement the Secretary of State's speech was the basic principle of European law: that we cannot introduce a measure that legally discriminates among the countries of the European Union. So whatever was done to French and German nationals would have to be done also to British nationals. That produced an original set of proposals which were referred to the Social Security Advisory Committee, which recommended, most unusually, that they be not proceeded with. That is a strong recommendation.
The Social Security Advisory Committee made three major criticisms: first, on the application to the Irish, upon which the Government have changed their mind, and I congratulate them on doing so; secondly, on refugees, upon which the Government have also changed their mind, and I congratulate them on doing so. But because of that principle of European law the Government felt themselves quite unable to retreat on the application of the proposal to British nationals.
The proposals are intended to introduce a test of habitual residence for eligibility for all the main means-tested benefit. income support, housing benefit and council tax benefit. Habitual residence is a difficult concept in law. There are a great many tests to be applied, and some of them are tests of intention. Well, everyone who has tried to test intention in court knows that it can be tricky, and if one has to test it by several different tests which may provide contrary indications it becomes even more complicated.

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We just do not know—and this, I believe, the Government do not dispute—whether British subjects who have been many years abroad, when they come home, perhaps in misfortune, perhaps having lost their jobs, will be found to be habitually resident and eligible for benefit or whether they will be found to be resident somewhere else and therefore not eligible for benefit.
So there is a major uncertainty in the heart of the system, and it is even worse than that, because it is not necessary in law that one should be habitually resident anywhere. I think that everyone has an entitlement to one country which they can call their own, where they can go back and feel that they are entitled to relief, help and support in an emergency. But if you are found to be habitually resident nowhere, you do not have that right anywhere. You are put in a position like a stateless person where you are sent, like the Flying Dutchman, around the world for ever and ever —and, incidentally, the KLM captain who christened his plane "The Flying Dutchman", I think, did not know what he had done.
I should like to ask the Minister, granted that there is a mischief here, why it was not possible to proceed by the use of the actively-seeking-work test, because it seems to me that that would have met the mischief fairly exactly, the mischief being that people were claiming benefit here who were not seeking work in this country. So if the appropriate remedy already existed, as I believe it did, why not use it?
This is not the first time that this type of proposal has been introduced in Parliament. It was introduced as an amendment to the Social Security Bill 1986 by Mr. Roy Galley, when it was defeated in Committee in another place by 23 votes to two, the other vote in favour being that of Mr. Harvey Proctor. The Minister on that occasion happened to be Mr. John Major, who said that the Government had considered such a proposal but that they had modified it;
"That is to say, we dropped it".
He said that if put into effect the proposal was capable of being extremely cumbersome and an administrative nightmare. He said that it would affect many British subjects who had a valid and understandable expectation that they would receive assistance from our social security system and who might have been excluded from that test. He further said:
"Upon reflection, we decided that it would be too rigid and too cumbersome and … would have enormously disproportionate administrative costs".—[Official Report, Commons, Standing Committee B, 27/2/86; col. 536.]
That is a point that the Government might well bear in mind.
British subjects, for good or ill—I think more often for good—have for a long time had a habit of travelling about the globe and involving themselves in business in other countries. That is likely to become more frequent because in the global market which is now developing, and in an increasingly deregulated labour market, it is increasingly likely that many people will be employed— perhaps by British companies—working abroad on contracts which last for several years and may be out of a job at the end of it.
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The CBI has authorised me to say that, if the regulations should make it harder to achieve the mobility of labour which that demands, it would be extremely worried. I cannot see how it could be otherwise. If you are going to work for many years abroad, losing contacts, in a job which may not be permanent, I cannot see how you can regard that as tempting unless you know that there is behind you a home to which you can return and where you can rely on support. It will also affect people who marry foreigners, as many do, and who find that they are unable to come back.
Let us take, for example, a case which has arisen since the regulations came in: a woman of 63 has returned from the United States. Her marriage has broken up. She is suffering from a terminal illness. She cannot afford American health care and she no longer wishes to live in the country she associates with her estranged husband. She returned to Britain. She was found not to be habitually resident and was refused income support. That is an injustice. It is an injustice which under the regulations might have happened to any of your Lordships' sisters.
The regulations may also work unjustly for members of ethnic minorities who often belong to extended families, divided between different countries. Let us take for example a case that I remember my noble friend Lady Seear telling me about: a woman born in this country who was brought up by her grandmother in Nigeria. When she came back to this country it was a toss up as to whether she was going to be found to be habitually resident.
Let us take the effect of the regulations upon children taken abroad by their parents in circumstances for which they can take no responsibility who try to return to their own country looking for jobs and are found ineligible for benefit. I was telephoned a few hours ago by someone in that position. His step-father took him to New Zealand when he was 10. The family has now ceased to be employed in New Zealand and has come home. He wants income support while he looks for work. He has two job interviews next week, so he is looking for work. He has been found not to be habitually resident and therefore ineligible for benefit. Those cases are an injustice. The injustice will extend to certain professions which habitually travel around the world— aid workers and missionaries—and perhaps the Minister will enlighten us as to the effect of the regulations on members of the Armed Forces.
Also there is considerable ambiguity in the regulations as to whether they will apply only to the claimant or whether they will apply also to the claimant's partner and children. All those are mischiefs. I do not usually shout about my attachment to my own country. Between friends, I hope that that is unnecessary. But it does not mean that that attachment is any less intense. A sense of having one's own country and a home to which one can return, to be entitled, as one's passport says, to the protection of Her Britannic Majesty, is something of very great importance. If we are seeing that devalued, as I believe we are, under these regulations, I regret that very deeply indeed.

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We have a mischief created by the regulations and we have a mischief which was to be avoided by the regulations. Therefore, we must address the question of priorities. That necessarily raises the scale of the problem.
Officials of the Department of Social Security have told me many times that the department would never introduce a policy based on anecdotal evidence. It ought to have made the Gilbertian qualification because this is the second time that I know it to have done so. The department told the Social Security Advisory Committee that it had no idea of the number of people involved in the mischief that it wished to remedy. But it said that Home Office figures "suggested" that it might be about 5,000. That is a very shaky foundation on which to rest policy.
In 1986 Mr. Major was slightly more certain about it. He said that "the problem is minute". I am inclined to the view that Mr. Major was right.
What will happen to those people who return to what they believe to be their own country? They cannot obtain work instantly and yet they will receive no benefit. The likeliest outcome is that they will do what they did before the benefit system existed: they will beg. That is not something that I wish to see and it is not something which the Prime Minister wants to see. What are we going to do to the people who have no means of support because of it?
I quote again from Mr. Major in 1986:
"What is clear from all our habits and history is that when people are in desperate need it has never been the fashion in this country— nor would it be the wish of my hon Friends—not to provide assistance that is sorely needed". —[Official Report, Commons, Standing Committee B, 27/2/86; col. 537.]
In the light of those words, I ask the Minister whether he will consider in urgent cases in need of relief making income support available to people caught by that trap or whether he will, even at this late stage, consider withdrawing the regulations altogether. There is a possibility that they might be struck down by the European Court and it would be much better to withdraw them ourselves before that happened. I beg to move.
Moved to resolve, That this House takes note of the report of the Social Security Advisory Committee (Cm. 2609), and calls on Her Majesty's Government not to proceed with the Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1994 and to lay amended regulations which neither penalise British subjects returning to their own country, nor infringe European law.—(Earl Russell.)
7.13 p.m.
Lord Carter: My Lords, the House is very grateful to the noble Earl, Lord Russell, for bringing to its attention what we feel to be a serious injustice. His speech has covered extremely comprehensively matters in hand and he has our full support from these Benches.
The noble Earl referred to the speech of Mr. Peter Lilley at the Conservative Party conference in 1993. I would only say that the juvenile xenophobia of that speech has unfortunately clouded discussion of a serious
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issue which should receive proper consideration. From these Benches we share the view of the noble Earl, Lord Russell, that the regulations that we are discussing do not deal with the problem in an effective, just and efficient way.
The noble Earl has covered the ground well, so I can be brief. As he said, we know that the Social Security Advisory Committee has recommended that in their present form the regulations should not have been laid. He referred to the words of Mr. John Major when he was speaking as Social Security Minister in the other place on 27th February 1986. I should like to quote some other sentences from the same speech which the noble Earl did not quote. Mr. Major said:
"We dropped the proposal because we decided that a blanket test would be too rigid, too cumbersome, and perhaps too unfair for the purposes we had in mind … It could have excluded people such as refugees, British citizens returning from abroad, United Kingdom citizens on work contracts returning home, and missionaries who may have had a long connection with this country but who have been abroad for a long time".
As the noble Earl said, Mr. Major went on to say:
"There is also a practical problem. The administrative burden of establishing status alone would be onerous, and if we refined the blanket test to exempt certain groups or in the light of our international commitments, it could become an administrative nightmare".—[Official Report, Commons, Standing Committee B, 27/2/86; col. 537.]
We have heard from Prisoners Abroad, which is a reputable charity. It has pointed out that the regulations are likely to cause considerable difficulties for a number of British ex-offenders who have returned from overseas having been released from detention. It goes on to say that the people for whom it cares are a particularly disadvantaged group. All are British nationals with British passports, but they face being denied benefit because they are regarded as not being habitually resident in the UK.
I hope that when the Minister replies he will deal in terms with the very powerful legal arguments which have been produced about this matter. The arguments are: the decision of the Secretary of State in this matter is unlawful because Regulation 4 of the Income-related Benefits Scheme (Miscellaneous Amendments) (No. 3) Regulations 1994 discriminate on the grounds of nationality, which is contrary to Article 6 of the EC Treaty; applicants have a right to an injunction to require the Secretary of State to afford to them the same facilities for free movement as are afforded to Irish nationals; decisions of the Secretary of State in this matter are in breach of natural justice; applicants have a right to damages for failure to implement Article 6 of the EC Treaty or, in the alternative, for breach of statutory duty.
Those arguments flow from considerations of natural justice, UK law and European law. I hope that when the Minister replies, he will not just brush them aside. Only today I received a letter addressed to my honourable friend in the other place, Mr. Frank Dobson, MP, from the Kentish Town Citizens Advice Bureau. It quotes from a reply which that bureau received from the Glasgow Benefits Centre about the habitual residence test. In the single month of September of this year 934 habitual residence test interviews took place in one

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district with the following results: of the UK nationals, 143 passed and 130 failed; of the European Economic Area nationals, 77 passed and 141 failed; of the other nationals, 76 passed and 367 failed.
It points out that local officers have been given no extra staffing to administer the new rules. In view of the fact that there wen; 934 cases in one month alone, does the Minister think it is satisfactory that no extra staff have been made available to deal with that?
The letter states—and it is extremely worrying—that,
"we understand that new instructions were issued last week that officers should interview all people who have entered the U.K. in the last 5 years including people previously treated as not affected, such as E.C. workers and people with exceptional leave to remain".
I hope that the Minister will be able to deal with that when he replies.
The letter also quotes the Glasgow Benefits Centre as saying that asylum seekers will also be given a "less wide-ranging interview". There is anxiety that people who are already going through the process of having their asylum application determined by the Home Office should have to be interviewed also about their always extremely distressing circumstances by other staff. The letter adds that it is extremely concerned that the new test: legitimises and institutionalises racism in the delivery of benefits.
Why have the Government changed their stance from that adopted by Mr. Major in 1986? If the Government insist on having their way in this matter, Mr. Peter Lilley may find, as Mr. Michael Howard has found, that making policy at the Conservative Party conference represents a singular lack of duty on the part of the Minister of the Crown. My party is as anxious as any other to prevent abuse of the benefits system. However, unlike the Government, we have an equal anxiety to prevent injustice.
7.20 p.m.
Lord Mackay of Ardbrecknish (The Minister of State, Department of Social Security): My Lords, I am grateful for the opportunity to explain the regulations and the problem that they address. While I may not be entirely able to convince the two speakers who have spoken, I hope that I shall be able to explain to them what lies behind the regulations and, perhaps, allay some of their fears.
I shall begin by pointing out that the problem with which we are faced is, to a certain extent, of our own making. Our benefits system is extremely accessible, and we have spent much effort in making it so. The rules are the same wherever one goes and are applied consistently. We have made it our business to simplify and to make the system transparent. We have no wish to put up barriers to our benefits.
Our desire to be straightforward has, unfortunately, led to some abuses which have been rather graphically described in press reports. For example—and this will perhaps explain to noble Lords the background to the regulations—I have with me an extract from the magazine Time Out of March 16th this year. It gives a number of examples under its headline "Continental
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Drift". At the risk of boring your Lordships, I should just like to read out the quote from Frederic, a 28 year-old Frenchman, who is described in the article as,
"the stuff of which Peter Lilley's nightmares are made".
To be fair, I think that I should read the whole quote from Frederic:
"I have been working since the age of 14. I have no training whatsoever and came to Britain in July 1993 to learn English and find a job. I am fed up with doing short-term dead-end work. I am on Income Support—£44 per week—and get my rent—£48 per week—paid by Housing Benefit. I also work on the side to get enough to make a decent living. I know it is absolutely illegal. Not only that but I also get French unemployment and housing benefit. It takes a lot of concentration to do both systems at the same time. I am now a specialist and it is almost a full-time activity".
The article continues to say that Frederic is well aware of the argument going on about "benefit tourism" and frauds committed by British nationals. He also says:
"I am well placed to compare both systems: the British system is far easier to defraud".
That is an example of why we have arrived at the present position. However, it is not only the press that have given such examples. I also have with me a copy of an article from a Spanish magazine called Tribuna of 25th July. The article is of course in Spanish, but I shall spare your Lordships my Spanish which just about rises to a,
"Gin and tonic, por favor!"
Translated, the headline of the article reads:
"Youth: A summer holiday with money, but without working".
It also has a subtitle which reads, "In England"—the Spanish have obviously not heard of Scotland—
"thousands of Spaniards are pretending to be poor in order to scrounge a living".
The article goes on to describe the many and varied ways in which young Spaniards and nationals from other European Community states cheat the British taxpayer through abuse of the income support and housing benefit system. For example, while large numbers of students at language schools learning English—
Earl Russell: My Lords, has the Department of Social Security finally abandoned its objections to anecdotal evidence?
Lord Mackay of Ardbrecknish: My Lords, I am attempting to give the background to what goes on. In fact, we have evidence from our benefit offices as regards what happens and I shall deal with that in a moment.
As I was saying, there are large numbers of students at language schools, many of whom unscrupulously take advantage of the safety net which we provide for people in this country. Moreover, the article to which I referred also advises potential claimants of the pitfalls to avoid when claiming such benefits. There is mention of young Luis from Madrid who says:
"It was just like living on 'Lucky Street', a madhouse, everyone having a good time all day long and without any financial problems".
I am perfectly sure—indeed, I am sure that the noble Earl, Lord Russell, conceded the fact—that that cannot be right. It is an abuse of our social security system. We need to protect the British taxpayer from paying

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income-related benefits to all-comers—I believe that the noble Lord, Lord Carter, will agree with that— especially when citizens of our own country would get fairly short shrift if they tried to carry out the same sort of operation elsewhere in Europe. I am sure that we are all at one in that respect.
The story elsewhere in Europe is quite different. The rights to safety net benefits, if they exist at all, often depend on holding a residence permit. Not unreasonably, one has to have lived and, in most cases, paid taxes in the country before one can claim benefits. Moreover, residence permits are normally granted only if one does not claim benefit. I suspect that that is pretty much a catch-22 situation. For example, in Luxembourg a residence permit cannot be obtained if one goes there looking for a job and social assistance is given only after one has been holding a permit for 10 years. Incidentally, one has to be over 30 years of age.
Similarly in France, getting a dole-out from the state depends on having a permit. The authorities there are not as strict as those in Luxembourg, because you can get a temporary permit after three years. The list is long and there are two countries which stand out as having very open systems; namely, ourselves and the Republic of Ireland. I hope that I have persuaded noble Lords that, so far as concerns the European scene, we are in many ways coming into line with the sort of rules and regulations, though not exactly, which apply in other countries.
I turn now to the regulations which are being prayed against this evening. The noble Earl is concentrating our attention on a particular issue involved in the regulations. The regulations provide that a person who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland has a nil applicable amount for the purposes of income support and is not entitled to council tax benefit and housing benefit. The noble Earl was kind enough to say that the Government had taken on board the point about the Republic of Ireland.
The regulations also make other exceptions. The main ones are as follows: EEA nationals who have the right to reside in the UK because of their "worker" status must have done significant work in the United Kingdom before claiming; people recognised as refugees under the United Nations Convention on Refugees by the immigration authorities—and I trust that that assists the noble Earl; people given exceptional leave to remain in the United Kingdom by the immigration authorities; and a person given limited leave to be in the UK by the immigration authorities whose funds from abroad have been temporarily interrupted. The regulations also provide protection for existing claimants.
The test itself is one that is fairly well known in European circles: the habitual residence test to determine entitlement to some government services; for example, education grants. Case-law is well established: a person's place of residence is where he has his centre of interest.
The adjudication authorities will be responsible for determining where that centre of interest is. They will want to know, for instance, where a person's stable
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employment has been and where are his ties, such as a family or a house; why has he come to the UK, how long has he been here, and his intentions; does he have a genuine commitment to living and working here, or are his established links and commitment to some other place?
All claimants need to be habitually resident, although in practice only those who come to the UK and claim benefit within five years of arrival will be tested. They will normally be asked to attend an interview to establish whether they are habitually resident in this country, or, if they are claiming because of their worker's rights, whether that work has been genuine and effective. Any decision to refuse benefit remains subject to appeal through the existing channels.
The noble Earl asked me a number of specific questions with which I shall try to deal briefly. Both the noble Earl and the noble Lord, Lord Carter, made a little play of some of the quotes from a speech made by my right honourable friend the Prime Minister when he was the junior Social Security Minister in 1986.I believe it is fair to say that the test referred to in that debate was, in fact, a test of immediate past residence and was very much tougher than the measures proposed in the regulations before us. Indeed, the Social Security Advisory Committee concluded that the 12 months' past residence test proposed in 1986 bears no resemblance to the new test. That conclusion is set out in paragraph 22 of the report.
The number of people involved has increased greatly since 1986. The chances are that with increased mobility around the world that figure could continue to increase. The noble Earl mentioned the figure of 5,000, which is the Home Office estimate. Evidence from our district offices shows that this problem is growing, and with the expansion of the EEA I think it is important that we have similar regulations in place to those in place in our fellow member states to prevent this kind of thing.
I do not believe the regulations are ambiguous. They apply only to the person claiming the benefit and I am satisfied that they are clear in that respect. That is also made perfectly clear in the guidance issued to local social security offices and local authorities, and our monitoring has revealed nothing to date to cause us concern in that regard. The noble Earl of course concentrated on the problem of returning UK nationals and quite rightly identified the difficulty we have, because of the impact of European law, in differentiating between fellow members of the European Union, and the European Economic Area in fact, and other people. We have to be on all fours, so to speak, or else we will fall foul of our obligations under the European Union.
These new regulations which we are discussing will change the arrangements for returning British citizens; there is little doubt about that. British citizens coming to the UK for the first time, and those returning home after residing abroad, will be affected. I think I indicated the way the regulations would operate and how that means that any British citizen who has come here to live within five years of claiming will have to show that he is habitually resident in order to be entitled to the benefits. As I said a few moments ago, I am afraid that

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the provision whereby the regulations could be changed so as not to penalise returning British citizens would conflict with European legislation and that is one of the reasons why we have to broaden it to encompass everyone who is coming into this country from overseas. I believe the noble Earl accepts that.
The noble Earl asked me about Armed Forces personnel. I find it hard to answer this question because if a member of the Armed Forces is returning home from a tour of duty, I do not believe he will be eligible for income support because he will be in remunerative work. Therefore, I do not think that situation will occur and the question is a totally fictitious one. Members of the Armed Forces would not be eligible for income support for entirely different reasons; but perhaps the noble Earl has a more fertile imagination—
Earl Russell: My Lords, did the noble Lord see the cartoon in the Independent recently showing the troops in Bosnia ducking as planes flew over them and saying, "Here come the P45s"?
Lord Mackay of Ardbrecknish: My Lords, the Government do not make policy as a result of cartoons, even cartoons in the Independent.
Noble Lords: It was in Time Out!
Lord Mackay of Ardbrecknish: My Lords, it was not a cartoon in Time Out; it was an article. I must take the noble Earl on a little. If he listened, as I am sure he did, to the point I made about the tests (I shall come to employment in a minute), he would appreciate that the fact that Armed Forces personnel were employed by the British Government would quite clearly mean they would pass the test with—dare I say it?—flying colours.
People have also been concerned about charity and voluntary workers. These people, like Armed Forces personnel, and indeed other people who work abroad for United Kingdom firms can, I believe, be swept up in the one answer. These people would remain liable for national insurance contributions, as are many workers who are posted abroad. This means that they should pay Class 1 contributions for the first 52 weeks of absence and then can pay either Class 2 or Class 3 contributions voluntarily in order to protect their pension position. A worker who has paid 52 weeks Class 1 contributions and who becomes unemployed or sick on return to the UK will be treated as having paid Class 1 contributions throughout his absence abroad and will therefore become entitled to unemployment or sickness benefit. Thus these people are protected.
Youngsters who, for example, give their services as volunteer development workers and people who go to work in a developing country for a voluntary organisation should pay Class 1 contributions for the first 52 weeks of absence if their earnings exceed the lower earnings limit which is currently £57 per week. If they are less, or the workers remain abroad after 52 weeks, they can pay voluntary Class 2 contributions which are set at a special low rate, currently £3.19 a week. If they pay these contributions, they protect their entitlement to all contributory benefits on return to the United Kingdom. This provision was introduced in 1986
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following requests from individuals and in particular from the voluntary organisation, Voluntary Service Overseas.
We have been monitoring the cases of returning British citizens found by the adjudication authorities not to be habitually resident for income support purposes. I can tell your Lordships that in the first month of the test 144 cases have been identified and this compares to 790 cases found to be habitually resident. I can assure your Lordships that none of them were businessmen returning from short-term contracts, none of them were former members of the Armed Forces or charity workers or people who had been away caring for sick relatives or the like. These people were strangers to this country and were certainly strangers to the Pay-As-You-Earn system, the tax system or the national insurance system. They are people who were born in Commonwealth countries of British parents some 20 or more years ago and who have not set foot in this country until now. They are people who left this country many years ago to make a new life in another country and who now return because the economic climate in that country has deteriorated. They are people who have settled elsewhere, have married citizens of that country and who come here either for medical treatment or for the birth of their child.
Some of these people were taken abroad when quite young and have grown up in another society and who now come here many years later to further their education, visit relatives, or because they allege their marriage has broken down. I shall give your Lordships a few examples. I could detain your Lordships for some time with examples of these cases. I have not picked my examples deliberately but rather quite at random. There is the case of a man aged 23 who was taken abroad to the Yemen by his parents when he was under two years of age who is now making his first visit since then to the United Kingdom. He has failed the habitual residence test. There is the case of a woman aged 17 who has been given a one-way ticket to the UK by her parents. She was born and brought up in Nigeria, has not worked here and has made no arrangements as to what she was to do when she arrived here.
There is the case of a man aged 19 who has spent the past 11 years with his parents in Australia. He arrived in the UK in June 1993 and by October had received an 18 month prison sentence. Surprisingly his parents want him to return home; but clearly he does not pass the habitual residence test. There is the case of a woman aged 23 who spent 17 years in Pakistan before coming to the UK in 1989. She was here for a couple of years before leaving for Pakistan again where she married. She is now pregnant and has returned to avail herself of the NHS before returning to her husband in Pakistan. These are just a few examples of the claims that have been made for income support and have been refused on the grounds that the claimants have not passed the habitual residence test.
Lord Carter: My Lords, I am extremely grateful to the noble Lord for giving way. I think he said that in the first month there were 1,100 cases that were tested. I have the figures from just one district which show that Glasgow alone had 934 cases in one month. It could be

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that the figures I have were not collected on the same basis as those of the noble Lord but it certainly seems rather odd.
Lord Mackay of Ardbrecknish: My Lords, I suspect that we are talking about two different sets of figures. I am talking about the cases of returning British citizens. I do not have the figure to hand which would include the kind of people who were mentioned in the Time Out article for example. I am concentrating on the point which I believe has caused noble Lords concern, and that is returning British citizens. Of course there may be teething troubles and that is why we are monitoring the cases which have been turned down for the habitual residence qualification. We accept that this is a new test, that it is complex and that in some cases it could be difficult to operate. We are taking care to monitor what happens.
Of course I understand that claimants who have come to this country will be extremely disappointed that they no longer have unrestricted access to these income-related benefits and find that they have to support themselves from their own financial resources. Although we have introduced the new test we have not removed the appeal procedure and the appeal system. The right of an appeal to an independent tribunal for people who are dissatisfied with the adjudication officer's decision is still there. The right to take one's case on a point of law to the Social Security Commissioner is still there. I know this right of appeal is being exercised by some people who the adjudication officer has decided are not habitually resident. A similar right of appeal exists in relation to housing benefit.
We cannot go back to where we were. I do not believe that further stories like those appearing in Time Out and foreign newspapers are acceptable to the British taxpayer. We as a Government—and the noble Lord, Lord Carter, indicated agreement—are committed to reducing abuse of the benefit system. I think that all Members of the House will agree with that objective.
Nor, as I have already indicated and as I believe the noble Earl accepts, can we construct the regulations differently. Our European obligations require us to face up to our responsibilities for equal treatment. To nod through returning UK nationals, no matter how tenuous their links with this country may be, but to apply the residence test to other European Community nationals who come here to look for work would put us in breach of those obligations and would lead to an early challenge through the courts.
I can guarantee to noble Lords who are concerned that we shall continue to monitor the policy. Case law will develop, and we shall monitor that too. We shall do all that we can to ensure that the regulations will disrupt as little as possible all those whose centre of interest does indeed lie in this country and to whom we should all be quite happy to see income support and housing benefit paid.
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I commend the regulations to the House as a means of preventing a small but annoying abuse of our income support system in this country.
7.40 p.m.
Earl Russell: My Lords, I have no wish to take issue with the Minister personally. He delivered his response very well, but it was not a reply to the argument of the Motion. Since the arguments of the Social Security Advisory Committee have been available to the Government for a good many weeks they cannot plead ignorance of the likely lines of attack.
When the Minister said that he was going to explain the situation I had an uncomfortable double take of a story of my great grandfather, which turned out, I fear, to be all too apt. My great grandfather was once at a reception and was chatting to the Duchess of A when he suddenly leapt out of his seat and rushed across the room and began to talk to the Duchess of B. His wife said to him afterwards, "Look, Johnny, why did you get out of your seat and rush across from the Duchess of A and begin to talk to the Duchess of B?". "Did I? Oh yes, I remember. It was too hot where the Duchess of A was sitting". "I hope you explained that to the Duchess of A". "What? Explain? No. But I explained to the Duchess of B".
It is in that sense that the Minister has explained the regulations to the House. He has given us a vast body of anecdotal evidence which is directed to a point which is not at issue. It has never been argued that if these things are taking place they are an abuse. He has not addressed the point of the scale of the phenomenon. He has not addressed the point of whether the problem could be tackled under existing powers. In particular, he has not said why it is not possible to use the actively seeking work regulations. Most crucially, he has not addressed the question of priorities which is at the heart of the debate.
The Minister says that there may be teething troubles and there may be adaptation. There cannot be too much adaptation, because if the Government enforce the regulations on British nationals in a more lenient manner than on European Union nationals they infringe European law and the regulations fall.
The Minister tried to make out that the people he mentioned had nothing to do with this country. He cited the case of a person who was taken abroad at the age of three and brought back a good many years later. That is a situation in which I have been myself. I would take it most amiss if it were argued that therefore I had no connection with this country. My father had a six-month contract in America which expired in September 1939. In the autumn of 1939 transporting elderly civilians was not the top priority for such merchant shipping as we had available. There will be other cases which will be caught in that situation.

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I believe that this is a fundamental failure in our obligation to give protection to British subjects. I believe that the Minister altogether failed to address that point. Therefore I commend the Motion to the House.
7.44 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 23; Not-Contents, 64.

Division No. 1

CONTENTS

Addington, L.

Haskel, L. [Teller.]

Airedale, L.

Holme of Cheltenham, L.

Avebury, L.

Lester of Herne Hill, L.

Carter, L.

McIntosh of Haringey, L.

Donaldson of Kingsbridge, L.

McNair, L.

Meston, L.

Falkland, V.

Monkswell, L.

Farrington of Ribbleton, B.

Morris of Castle Morris, L.

Foot, L.

Russell, E. [Teller.]

Gladwyn, L.

Seear, B.

Hamwee, B.

Tordoff, L.

Harris of Greenwich, L.

Young of Dartington, L.

398

NOT-CONTENTS

Abinger, L.

Inglewood, L.

Annaly, L.

Kimball, L

Arran, E.[Teller.]

Lane of Horsell, L.

Astor, V.

Long, V.

Balfour, E.

Lucas, L.

Blatch, B.

Lyell, L.

Brabazon of Tara, L.

Mackay of Ardbrecknish, L.

Brougham and Vaux, L.

Mackay of Clashfern, L. [Lord

Butterworth, L.

Chancellor.]

Cadman, L.

McColl of Dulwich, L.

Carnegy of Lour, B.

Miller of Hendon, B.

Carnock, L.

Monk Bretton, L.

Northbrook, L.

Chalker of Wallasey, B.

Oxfuird, V.

Colwyn, L.

Park of Monmouth, B.

Cox, B.

Pender, L.

Prentice, L.

Cumberlege, B.

Rankeillour, L.

Deedes, L.

Renton, L.

Denton of Wakefield, B.

Rodger of Earlsferry, L.

Dixon-Smith, L.

Rodney, L.

Elles, B.

Seccombe, B.

Elphinstone, L.

Shaw of Northstead, L.

Feversham, L.

Skelmersdale, L.

Finsberg, L.

Stewartby, L.

Fraser of Carmyllie, L.

Strathclyde, L. [Teller.]

Goschen, V.

Strathmore and Kinghorne, E.

Griffiths of Fforestfach, L.

Swinton, E.

Harding of Petherton, L.

Tebbit, L.

Henley, L.

Thomas of Gwydir, L.

HolmPatrick, L.

Torrington, V.

Hood, V.

Trumpington, B.

Howe, E.

Vivian, L.

Resolved in the negative, and Motion disagreed to accordingly.
House adjourned at seven minutes before eight o'clock.