§ 3.2 p.m.
§ The Chairman of Committees (Lord Boston of Faversham)
My Lords, I beg to move the Motion standing in my name on the Order Paper.
The first report from the Procedure Committee covers four matters. First, the committee has given further consideration to the report of the Group on Sittings of the House in the light of the views expressed in the debate on 2nd November. The committee has made the eight recommendations set out in the report. The underlying aim of this package of recommendations—most of which are experimental—is to enable the House to rise earlier, which I imagine that all your Lordships will welcome. 87 Secondly, the committee has recommended a relaxation in the sub judice rule to bring the position in this House more closely into line with the position in another place. At present the sub judice rule prevents reference in the House to any case before a court. In another place there is an exception in relation to civil cases for certain matters involving ministerial decisions or issues of national importance. This exception is at the discretion of the Speaker who must be satisfied that there is no real and substantial danger of prejudice to the proceedings.
In the absence of a direct counterpart in this House to the Speaker in another place, the committee recommends that a similar discretion should be exercised by the Leader of the House, whose decision would be made on advice and after consultation. This arrangement is novel in so far as it gives the Leader a role going beyond advising the House. But the committee—
§ The Earl of Longford
My Lords, is the noble Lord the Leader of the House aware that this is completely unconstitutional to give the Leader of the House a position he has never occupied before? I think it would be quite pernicious.
§ The Chairman of Committees
My Lords, perhaps it would be for the convenience of the House if matters of that kind were to be dealt with following the moving of this Motion when I feel sure that in your Lordships' customary way your Lordships will take into account any matters which are raised by any noble Lord. Perhaps I should start the last sentence again so that I do not lose your Lordships. I am sure I am never in any danger of doing that, but I might lose myself in the process.
This arrangement is novel in so far as it gives the Leader a role going beyond advising the House, but the committee agreed that the House should have the benefit of the less restrictive rule which applies already in another place and felt that this was the best way of achieving this aim. Thirdly, the committee has approved a new edition of the Brief Guide to the Procedure and Practice of the House. In doing so, the committee decided to clarify three customs of the House which are not always adhered to.
First, maiden speakers should normally be congratulated by the following speaker only. It is desirable that noble Lords should not leave the Chamber during those congratulations. Secondly, noble Lords taking part in debates are expected to attend as much of it as possible, including the end of the debate. Noble Lords who become aware in advance that they are unlikely to be able to stay until the end should normally remove their names from the list of speakers.
Thirdly, the time for Back-Bench questions and comments on Statements is now limited to 20 minutes and the committee considers that the same limit should also apply to Front Bench speakers. Finally, the committee has considered the practice in relation to Questions for Written Answer which have not been answered when the House adjourns for a Recess. At present such Questions remain unanswered until the House resumes. The committee recommends that in future answers should normally be sent to the noble 88 Lord concerned within a fortnight, and then printed in Hansard for the next Sitting day, with a reference to the date on which they were answered.
Moved, That the First Report from the Select Committee be agreed to (HL Paper 9).—(The Chairman of Committees.)
Following is the report referred to:
ORDERED TO REPORT:
1. SITTINGS OF THE HOUSE
The Committee has given further consideration to the Report (HL Paper 83, Session 1993–94) of the Group on Sittings of the House, in the light of the views expressed in debate on 2 November.The Committee recommends:2. THE SUB JUDICE RULE
- (1) That further opportunities should be found for the use of Special Public Bill Committee procedure, in particular for Law Commission bills but also for other bills introduced into either House.
- (2) That, as an experiment, a suitable bill should be considered by an informal committee along the lines described in paragraphs 8 to 17 of the Report.
- (3) That, as an experiment, a suitable bill should be committed to a committee of the whole House off the floor of the House, as proposed in paragraphs 18 to 23 of the Report. There should be no divisions in the committee.
- (4) That no action be taken on the suggestion, discussed in paragraphs 24 and 25 of the Report, that some public bills might be carried over from one session to the next.
- (5) That there should be a time limit of 1½. hours for all unstarred questions, other than those taken in dinner breaks (which are already limited to one hour). Time limits on speeches should be applied in the usual way, allowing at least 10 minutes for the Lord asking the question and 12 minutes for the Minister's reply, for both 1-hour and l½-hour unstarred questions. It follows that unstarred questions should be asked only on matters where a limited number of Lords are likely to wish to speak.
- (6) That the House should sit on Fridays when the pressure of business requires and when there is a realistic expectation that a Friday sitting will enable the House to rise earlier on other days that week.
- (7) That no starred questions should be taken on Fridays.
- (8) That whenever possible business should be arranged so as to avoid the need for the House to sit beyond an agreed time, say 10 p.m. The Committee recognises that a significant improvement in the hours of sitting of the House can come only with general support throughout the House, and by agreement through the usual channels, and not by any decision of the Committee.
The Committee has given further consideration to the rule governing reference to cases sub judice. While the House agreed in 1963 that the practice should be similar in both Houses of Parliament, the practice has in fact been different since 1972 when the Commons gave the Speaker discretion to allow reference to matters sub judice which "relate to a Ministerial decision which cannot be challenged in Court except on grounds of misdirection or bad faith, or concern issues of national importance such as the national economy, public order or the essentials of life".The Committee recommends that a somewhat similar relaxation of the rule should be adopted in this House, and that the discretion whether a matter may be raised should be vested in the Leader of the House whose decision would be made on advice and after consultation. In contrast to the practice in relation to Private Notice Questions, where the Leader's preliminary decision may be challenged in the House, the Committee recommends that the 89 Leader's decision should not be subject to challenge as otherwise inappropriate cases might be raised on the floor of the House under the guise of a challenge to the Leader's ruling.The reference in the Commons' rule to ministerial decisions "which cannot be challenged in Court except on grounds of misdirection or bad faith" is no longer appropriate in view of the development of judicial review since the Commons' rule was adopted, and the Committee recommends that those words be omitted from the rule in this House.The Committee accordingly recommends that the following proviso should be added to the paragraph in the Companion (page 52) dealing with cases before civil courts:This is subject to the proviso that, where a ministerial decision is in question, or a case concerns issues of national importance such as the national economy, public order or the essentials of life, reference may be made at the discretion of the Leader of the House, who must be satisfied that there is no real and substantial danger of prejudice to the proceedings. The Leader of the House should be given at least 24 hours' notice of any proposal to refer to a matter which is sub judice. It is undesirable that the exercise of his discretion should be challenged in the House.3. BRIEF GUIDE TO THE PROCEDURE AND PRACTICE OF THE HOUSE
The Committee has considered and approved a draft new edition of the Brief Guide to the Procedure and Practice of the House of Lords, which will be made available at the same time as the new edition of the Companion to the Standing Orders.The Committee noted certain customs of the House which at present are too often not adhered to and which are to be clarified in the new Brief Guide. They are as follows:(1) Maiden Speeches
Maiden speakers should normally be congratulated by the following speaker only whose congratulations are on behalf of the whole House. It is accordingly desirable that Lords should not leave the Chamber during such congratulations.
(2) Attendance at debates
Lords taking part in a debate are expected to attend as much of it as possible, in particular the opening speeches, the speeches immediately before and after their own, and the winding-up speeches "below the gap". Lords who become aware in advance that they are unlikely to be able to stay until the end should normally remove their names from the list of speakers.
The period for back-bench questions and comments on statements is now limited to 20 minutes. While there is no formal limit on front-bench speakers, the Committee considers that they too should seek to be brief and that the time for front-bench questions and comments and the Minister's reply should not normally be longer than the period for back-benchers.
4. QUESTIONS FOR WRITTEN ANSWER: ANSWERS DURING RECESSES
At present a question for written answer which has not been answered when the House adjourns for a recess remains unanswered until the House resumes. The Committee recommends that in future answers should normally be sent to the Lord concerned within a fortnight, even when the House is not sitting. Answers would, as at present, be printed in the Official Report for the next sitting day, with a reference to the date on which they were answered.
§ Lord Monkswell
rose to move, as an amendment to the Motion, at end to insert ("with the exception of item 2 (The Sub-Judice Rule) which shall be referred back to the Select Committee for further consideration).
The noble Lord said: My Lords, this amendment in effect asks the Select Committee to have another look at the issue of the sub judice rule. I hope to explain to 90 your Lordships why this may be useful, but before I do I wish to pay a tribute to the Select Committee. I am sure I speak for all of us when I say that we owe a debt of gratitude to the hard work of the Select Committee and in particular to the noble Lord the Chairman of Committees for the exemplary way in which he has introduced this report.
I should also like to express my gratitude to the powers that be for enabling consideration of this report to be taken now rather than before the Christmas Recess. That has enabled us to consider the report at our leisure and digest the implications. That is useful. I wish to say a few words about the background to the report, then to consider the implications of the recommendations and suggest an alternative way of dealing with them.
As the noble Lord the Chairman of Committees has already explained, section 2 of the report effectively sets a precedent in the way in which we conduct ourselves. Two of the very real strengths of this House are that every Member of your Lordships' House is able to contribute to our debates and offer their advice to the Government. Also, virtually all our business is taken on the Floor of the House. In this respect we are rather different from the other place and I think we need to recognise that difference and revel in it, if I may say that.
We must recognise that in the other place there are 650 Members, all of whom want to speak and contribute and raise issues. Over the years they have evolved a system of rules and they have empowered their Speaker to control their debates and determine who shall and shall not speak. But we do things rather differently in this House. I have spoken on previous occasions about the risk that we run in taking business off the Floor of the House and dealing with it upstairs. I do not wish to elaborate on that except to say that in this report we must be careful—I am sure we will be—about recommendations (1) and (3) in section 1.
However, in section 2 on the subject of the sub judice rule we run a new risk. Here I must stress that nothing in my remarks should be construed as a wish to interfere with the judiciary in the discharge of its functions in a court of law. I am sure that I speak for all of your Lordships when I say that we should have no right, nor should we seek to interfere, in the practice of a court of law.
The rules of sub judice should not be used to prevent Parliament offering advice to Government Ministers in the discharge of their discretionary functions. As the committee has advised the House, it is right that issues of national importance should be raised.
In 1963, as the report makes clear, it was agreed that the practice in this House should be similar to the practice in another place. I stress "similar", rather than the same. It is eminently sensible that the committee should be able to raise issues which are in theory sub judice. However, the committee goes much further and suggests that the Leader of the House should have the power to determine what should or should not be discussed on the Floor of your Lordships' House and, unfortunately, to suggest that the decision of the Leader of the House should not be challenged on the Floor of the House. 91 I suggest that that recommendation raises a number of problems. First, it places one of our number in a superior position in determining what may be raised in the House. It also gives that Member the ability to determine what another noble Lord may or may not say in the House. It places the Leader of the House in a very difficult position by calling on him to make a judgment about whether another member of the Government of which he is a member may be called into question on the Floor of the House. It also suggests that the Leader of the House may not be challenged on the Floor of the House in the exercise of his judgment.
I suggest that that is not the way we do business in this House; nor is it a way in which we should do business in the future. It is a major departure from precedent and sets a precedent which may do us harm in the future. Nowhere in the Standing Orders nor in the Companion do we give such power to the Leader of the House.
It has been suggested that the issue of Private Notice Questions is a precedent. I argue that it is not. As Standing Order 33 makes clear, and the Companion elaborates on page 81, there is no bar on a Private Notice Question being asked and the House can insist on the Government giving an immediate reply. That is completely different from giving the Leader of the House the power to prevent an issue being raised and to prevent the House from challenging his judgment.
I have also learned that there has been some concern among noble and learned Lords on the subject of your Lordships raising cases that are sub judice because of the possible risk of this House trying to influence the decision of a court of law. We must recognise that we have a special responsibility because of our relationship with the highest court in the land. I suggest that there are probably Members of your Lordships' House who would have dearly liked to influence a court of law, but we do not do that. I am sure also that if anyone in this House tried to do so there would be a very swift Motion from any quarter of the House that such a noble Lord should no longer be heard.
Where do we go from here? I suggest that we use the precedent that has already been established. I refer to the case of Miss Sue Hagan and Miss Sally Croft. That case was raised in this House on 31st March, 13th April and 6th June last year. On at least two of those occasions the case was sub judice because it was before a court of law. It is interesting and significant that at no time did any Member of your Lordships' House try to influence a court of law, but there was a concerted effort from all sides of your Lordships' House to influence the Home Secretary in the exercise of his discretion in that case.
On one occasion during those debates it was moved that a noble Lord be no longer heard because it was felt that he might transgress the sub judice rule. On that occasion the Motion was withdrawn. The House was adjourned for five minutes and when it reassembled the debate continued.
I suggest that the way in which that case was raised and debated in your Lordships' House showed your Lordships' House at its best. It demonstrated that, even when passions are roused and the rules appear likely to be broken, self-regulation by your Lordships works. In 92 saying that I must pay tribute to the noble Lord, Lord Wakeham, who, as Leader of the House at the time, demonstrated true capacities of leadership which enabled the House to work to its own rules by accommodating our current sub judice rules with the will of the House expressed in 1963 that our practice should be similar to that of the other place while maintaining our self-regulatory climate. I see no reason for not using that precedent to frame a modification to the Companion to enable debate in this House that would enable us to give advice to government Ministers and prevent us attempting to influence courts of law.
To summarise, there is a need to change our sub judice rules in line with the practice in the other place. In the other place the Speaker controls the business. In this House we control our own business. It has been suggested that the Leader of the House should assume the role of Speaker in this case, but he is a member of the Government and not a servant of the House. We have a proud and good record of controlling our own debates without a Speaker. My amendment would enable the procedure Committee to look at the subject again and frame changes to our sub judice rules which would preserve our self-regulatory regime, allow us to offer advice to Ministers and prevent interference in the conduct of cases before a court of law. I beg to move.
Moved, as an amendment to the Motion, at end to insert ("with the exception of item 2 (The Sub-Judice Rule) which shall be referred back to the Select Committee for further consideration).—(Lord Monkswell.)
§ 3.15 p.m.
§ Lord Harmar-Nicholls
My Lords, my first instinct was identical to that expressed by the noble Earl, Lord Longford, in his short intervention a few minutes ago. The rest of the report may be reasonably satisfactory, but trying to install a pseudo Speaker in your Lordships' House would be not only the wrong thing to do but a stupid thing to do. In terms of wanting to copy the other place, if any copying is to be done the other place ought to copy our procedures and our standards. Anyone who has sat in both Houses will be familiar with the nonsense of the points of order which arise from the interpretation of what is right or wrong. Our system works, and it works well. Whatever happens to the rest of the report, I hope that it is not too late to alter the suggestion that there should be a Speaker—whether it is the Leader of the House or anybody else—giving judgment of that sort.
Our strength is our complete independence to work to our own rules. The system has worked well. Any alteration in the direction which is suggested in terms of making the Leader of the House a pseudo Speaker will tie us up in bureaucracy which will interfere with the effectiveness of this House.
I do not know whether the right way to give effect to what I suggest is by voting for the amendment. I shall give more thought to that in the light of what other noble Lords may say. However, whether it is through the amendment or by some other means I hope that the complete freedom of this House to adhere to its own self-control will not be interfered with. 93 I have sat in your Lordships' House under Leaders from different parties, so there is no question about the individuals involved. Indeed, I can think of no one I would rather follow almost without question as Leader than the present Leader of this House. However, that is not the point. To enter into the bureaucracy which would flow from an individual dictating—and being legally able to dictate—how the House shall conduct itself would be a retrograde step. I hope that at this stage we shall find some way to avoid moving down that road.
§ Lord Cocks of Hartcliffe
My Lords, I should like to support what has been said by the noble Lord, Lord Harmar-Nicholls, and my noble friend Lord Monkswell because all that is being asked for is further consideration. I very much hope that the Chairman of Committees will feel able to say that that is appropriate and that my noble friend Lord Monkswell will withdraw his amendment. Anything to do with procedure really ought to go through by general consent because it is the framework within which our deliberations are conducted.
There really is no rush for this because at heading 3 we are told that,The Committee has considered and approved a draft new addition of the Brief Guide… and a new edition of the Companion to the Standing Orders".I obtained those documents from the Printed Paper Office today. They appeared in 1989. I cannot believe that there is any great rush to replace them.
I understand that the Procedure Committee has established a sub-committee to consider the question of Peers' interests. I shall be grateful if the noble Lord the Chairman of Committees will explain to the House the sub-committee's remit. The sub-committee could well suggest one or two changes. They would have to be sent out as addenda to the newly printed editions of the Brief Guide and the Companion. For the sake of a few months' delay we are really losing nothing.
When the question of interests is being considered, I would like to draw attention to two points. One concerns the position of EC Commissioners. In this House we are privileged to have former Commissioners in our midst. To peasants like myself, representative of the great unwashed, to be led by the hand through the labyrinths of the EC by those Commissioners is a great privilege. However, I would ask whether our Pharisee Commissioners should not declare an interest if they are in receipt of a pension from the EC. In the interests of pruning the budget, they may well eschew the pension, in which case I congratulate them. But otherwise I believe that there is a specific interest there.
The other point is important because I do not believe that anyone has realised the situation which has evolved. During the debate on 2nd November on the Liaison Committee report I drew attention to a portion of the report which stated:The Liaison Committee has considered a proposal for a Select Committee to scrutinise legislation for consistency with the European Convention on Human Rights'".—[official Report, 2/11/94; col. 844.]94 I said that I suspected that that proposal had come from a pressure group. After the debate I wrote to the noble Viscount the Lord Privy Seal asking for the origin of the proposal. I was told that it was put forward by four Peers, one Conservative, one Labour, one Liberal Democrat and a Cross-Bencher. That leads us on, does it not, to the phrase which is so helpful,support in all parts of the House".But all those four Peers were barristers. It seems to me that where substantial changes in the law are being made which will generate a great deal of work in the courts, that factor is just as much an interest as any other interests which are declared in your Lordships' House. I hope therefore that the Committee will consider that aspect.
It is not an academic matter because in the Sunday Telegraph I noted a report headed, "£150m bill for NHS blunders". The article refers to a memo from the Department of Health to the Treasury revealing that damages for medical negligence will cost the National Health Service £150 million this year. Officials predict that claims will rise by more than 20 per cent. annually. That does not mean that the medical services are becoming more negligent by 20 per cent. every year. It means that the legal profession is touting for business to try to encourage people to take cases. I am sure that noble Lords have seen advertisements in newspapers asking people whether they would not be eligible for claims. The article states:Officials … predict that claims will rise by … 20 per cent. annually, with American-style litigation against doctors crippling the Health Service".It is a serious matter and sooner or later, if we are not to go the way of the United States, this country has to face up to the problem. I suggest that the sub-committee would be doing a service—
§ Lord Cocks of Hartcliffe
My Lords, I suggest that the sub-committee may well be doing a service if it had a look at that problem.
§ Lord Campbell of Alloway
My Lords, if I am not intervening—or am I?—perhaps I may briefly oppose this Motion, albeit that I happen to be a member of the Bar. Having raised the subject on a previous occasion in your Lordships' House, and having been present at the rather unfortunate affair which arose at which my noble friend Lord Ferrers—I see that he is in his place—was present when the question of sub judice arose, I wish to say shortly that it seems to me that the proposed proviso affords a relevant, reasonable and wholly satisfactory resolution of the problem on the basis of 24 hours' notice in which to seek advice and entertain discussion. It surely could not be intended that no one could, so to speak, query the advice or the decision of the Leader of the House; but, by and large, surely as proposed it is a sensible resolution on the face of it. I oppose the amendment.
§ The Earl of Longford
My Lords, the case for reconsideration of the proposal to give this strange 95 revolutionary new power to the Leader of the House has been so well expressed by both sides of the House that I need hardly say much. However, I have been Leader of the House, and I have also been moved out of order in this House. That is, I suppose, a unique sequence of events; I cannot envisage the noble and learned Lord, Lord Hailsham, being moved out of order.
§ The Earl of Longford
I therefore have certain credentials for taking part in the debate.
There was a real problem last summer. The more one went into it, the more acute the problem was. On the one hand, it could be argued that nothing must be done to disturb the judiciary in their work. On the other hand, the moment that the judiciary had decided on an issue, a couple of ladies were going to be extradited to America and at that time it seemed—mercifully it has not turned out that way—that they would be in prison for a year before trial. That was the difficult situation.
I quite agree that the noble Lord, Lord Wakeham, handled the matter with dexterity, as was expected of him. I have no doubt that the present Leader of the House would have handled it in the same fashion. But I would not say that the result was perfect. I therefore feel that it is only right that we should have another look at the issue.
However, I cannot agree that it would be right for the Leader of the House to be put on the same footing as the Speaker of the House of Commons. It would be totally unlike anything that has happened in this House before. I remember the days when the noble and learned Lord, Lord Hailsham, was Leader of the House. Lord Stansgate kept chivying him with what seemed to him tiresome questions. The noble and learned Lord finally became irate and said, "The noble Lord knows that I have my remedy". Lord Stansgate, enjoying the situation, replied, "If the noble and learned Lord has his remedy, he had better use it". The noble and learned Lord also enjoying it, said, "I will use it", and he moved that the noble Lord be no longer heard. But the noble and learned Lord, Lord Hailsham, would be the last to suggest that on that occasion he should have been able to move Lord Stansgate out of order.
The proposal is the thin edge of the wedge. I very much hope that anyone who has love for the House and its traditions will agree to the matter being handed back to the committee for further consideration.
§ Lord Stoddart of Swindon
My Lords, I understand both points of view. I understand that the House of Lords should not be in any different position from the House of Commons in matters relating to the sub judice rule. On the other hand, I also understand the arguments of the mover of the amendment and those who have spoken in favour of it. Once again, the proposal would hand over power from the elected body to someone who is, after all, in one way a bureaucrat. We must always be careful about that.
The noble Lord the Chairman of Committees made two points. The first was that any decision of the Leader of the House would be taken after advice. Presumably that would be advice from the Clerks. Secondly, he said 96 that it would be taken after consultation. I should like to know with whom the consultation will take place. Will it take place with the Leader of the Opposition alone, or with all the parties, including the Cross Benches? I think the House is entitled to know the answer to the two questions: where will the advice come from, and with whom will consultation take place? If the amendment is put to a vote, I think that the decision of many Members will depend upon the answers to those questions.
There are two other points I wish to make since the noble Lord the Chairman of Committees did not deal with them. First, as regards Unstarred Questions, a time limit is suggested for speeches. It is also proposed that Unstarred Questions which will take longer than one-and-a-half hours should not be put down. However, we shall not know how many speakers wish to speak perhaps until the very day before the debate and that will raise some difficulty. The final question I wish to ask is: why is it felt necessary to remove Starred Questions from the agenda when we sit on Fridays?
§ Lord Dean of Beswick
My Lords, I should like to draw attention to paragrphs (2) and (3) under heading 1 of the report. Paragraph (2) states that,a suitable bill should be considered by an informal committee along the lines described in paragraphs 8 to 17 of the Report".If your Lordships agree to the committee being formed, I take the view that that committee will almost act in the capacity—
The Lord Privy Seal (Viscount Cranborne)
My Lords, perhaps your Lordships will feel it appropriate to adjourn the House for five minutes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 3.33 to 3.38 p.m.]
§ Lord Dean of Beswick
My Lords, there are two or three points I wish to raise. I have some anxiety about whether paragraphs (2) and (3) will be productive. It is suggested that,as an experiment, a suitable bill should be considered by an informal committee along the lines described in paragraphs 8 to 17 of the Report".Paragraph (3) states that,as an experiment, a suitable bill should be committed to a committee of the whole House off the floor of the House, as proposed in paragraphs 18 to 23 of the Report. There should be no divisions in the committee".In my view—members of the committee may tell me that I am wrong—this is to enter upon the Standing Committee procedure of another place. When a Bill is sent to a committee, the committee will process the Bill. At Report stage in another place, the Bill returns to the Floor of the House and may still be amended.
Paragraph (3) states:There should be no divisions in the committee".What is proposed is a debating society on particular Bills which will not produce anything. Why do I say that? Paragraph 8 of the report, after reference to formal amendments, states:Where an acceptable case has been made, hopefully the Government would make concessions".97 I have been privileged to sit on the Opposition Benches in this House since 1983. Along with colleagues generally on this side, including members of the Liberal Party, and those in other parts of the Chamber—even, sometimes, some of the Government's own supporters—I have spent hour after hour trying to persuade the Government to be reasonable, to see the light of day and to accept cases in relation to which, if the debate set the criteria for what was to be in the Bill, this side and those in opposition to the Government would have won hands down. The only time in all those years that the Government ever conceded beforehand and refused to process a part of a Bill or bring it back when it had been altered here against their wishes was when they knew that they were on a hiding to nothing. I remind the Government that in respect of one of the reverses they suffered here—on the War Crimes Bill—they invoked the Parliament Act to override noble Lords. I do not argue the points of that Bill. I merely say that that was what the Government did. They trod all over this House, brought the Bill back and made it law. So where do we get—
§ Lord Strabolgi
My Lords, I must interrupt my noble friend. The War Crimes Bill was given a free vote in another place.
§ Lord Dean of Beswick
Yes, my Lords, that is correct. However, noble Lords eventually voted against it and then the Government insisted on it. That is my point. I believe that we are both correct.
§ Lord Dean of Beswick
I do not believe that the noble Lord is more correct than I am. The last time the Parliament Act was invoked by this Government—the only time, I believe—was in relation to the War Crimes Bill. It is not within my memory that the Government have, with good will, conceded to the opposition—I am not talking only about my own party—anything of a major character where the case has been proved.
The report states that hopefully the Government would make concessions. If that position is accepted but the Government say, "We will not be reasonable; the Bill remains as it stands; we have spent so many hours on it in Committee; we are not altering anything", and it is then brought into this Chamber on Report, effectively a Committee stage is started at Report stage here. In effect, the Bill would be gone through for the first time with voting powers to alter it in this Chamber and not upstairs. I wonder whether we might not be getting involved in a spurious exercise in going through a Bill without opinion being taken by means of a vote being cast at the end of debate on some very important issues.
I want to follow what my noble friend Lord Stoddart said regarding the matter of Unstarred Questions. I would want to see only a minimum of interference in the procedure of this House in respect of what Back-Benchers, more than anyone, value tremendously; namely, the right to bring an issue before the House, debate it and receive a ministerial Answer. That is far better than what happens in the other place by means of 98 the half-hour adjournment debate, which does not mean much at all. I believe that it would be stretching things a little even to say that we will make it the practice for the dinner hour to be taken up with Unstarred Questions. I believe it was my noble friend Lord Stoddart who made the point: how do you know how many names will be put down on the list of speakers? That could be known only at 12 o'clock on the day of the debate. I recall within the past few months the noble Earl, Lord Longford, putting down a Motion on some matter which resulted in a list of between 12 and 18 speakers. Who is going to turn round and tell noble Lords, once their names are down, that they cannot speak because the debate is over-provided for? We have to be very careful when we tinker with that. It should not be forgotten that Unstarred Questions do not trespass on the time of the House in terms of legislation. It is Members' own time that is being used; all that is required is that a Minister is present to answer the debate.
The suggestion has been made that this House is full of self-discipline. It is fair to say that most of the time it is. I have been in this Chamber and have limited myself to 10 to 12 minutes in introducing an Unstarred Question. I believe that the maximum time I ever took was 15 minutes, and I was quite rightly ticked off by my Chief Whip after the event. However, I was followed by a member of my party who spoke for 25 minutes. For the House to accept the proposed rulings on procedure for Unstarred Questions and to expect every Member of this House to give an undertaking to speak for 10 minutes and no more is a complete nonsense.
The Unstarred Question procedure in this place is very valuable. Often a Back-Bencher brings to the notice of the House an issue which ought to be given a place on the Order Paper but the time factor acts against. He or she therefore takes a personal initiative in bringing a matter before the House that is of great significance. A Member once tabled a Question on passports for those from Hong Kong. There was no legislation going through Parliament that could cater for the matter. Back-Benchers brought the issue forward. Those who promote restriction on the time taken up by Unstarred Questions would do well to look at the matter again. It is a retrograde step. We have a very valuable asset. I would be opposed to any alteration. As I say, I reluctantly accept that there may be a case for using the dinner hour to debate some matters; but for most subjects one hour is far too short a time.
§ 3.45 p.m.
§ Lord Richard
My Lords, perhaps I may say one or two words merely on one issue that is before the House; namely, the amendment which I had thought we were in process of debating relating to sub judice. I have listened closely indeed to what has been said. I wish to pose the dilemma, as I see it, with which the Procedure Committee was faced.
After the case, to which reference has been made, of the two ladies who were sent back to Oregon and the prohibition that seemed to apply to my noble friend Lord Longford when he tried to raise certain issues of ministerial discretion in relation to the case, despite the fact that it was in front of the court I took the view that 99 our rules in relation to sub judice were too restrictive. I had reason to look at the position taken by the House of Commons. It was perfectly clear that the position there is easier from the point of view of someone seeking to raise an issue than it is in this place. There are various historical reasons for that into which I need not go. The fact is that in another place the Speaker now has a discretion to allow much wider debate on an issue that is before the courts than apparently is the position here. I therefore felt it was right that the Procedure Committee should look at the issue and see whether we could move our procedures nearer to those of the House of Commons, particularly as there is a resolution of this House that, so far as is reasonably practicable, the procedures of the two Houses should be in accord.
After discussion in the Procedure Committee it was concluded that there was indeed a good case for altering the position in this House so that noble Lords could raise issues of ministerial discretion which, up to now, they have not been able to do. Therefore the question is one of mechanisms: how does one achieve a situation in which a noble Lord is entitled to raise the issue without it being raised in such a way as to prejudice the case going on in front of the courts?
The Speaker in the other House has the power to take that decision. On the face of it, nobody in this House is capable of doing it. Somebody has to take the decision. It seems to me that, by definition, there cannot be discussion on the Floor of the House as to whether the issue that one wants to raise and which is in fact being discussed at that moment on the Floor of the House will or will not prejudice the proceedings. By then the issue has been raised. Once the matter is out, the damage has been done—if indeed damage is to be done. Therefore, somehow, a body, an individual or a group of people who could take that decision has to be found.
The Procedure Committee decided to recommend to the House that the person who should have to take that decision should be the Leader of the House. He sits in a dual capacity: he is a political figure and a member of the Cabinet but he also represents the House. As Leader of the Opposition in this House, I believe that in that second capacity the Leader of the House is capable of taking a decision in the interests of the House. I know that there are political problems. I accept that. Sometimes it is very difficult for a politician to be sufficiently schizophrenic in his approach to his duties to be able to cut himself off and say, "I am not doing this in my political capacity; I am doing it in my capacity as Leader of the House". I observe only that judges have to do that in the courts almost every day. If a judge's mind is capable of being divided, I do not see why the mind of the Leader of the House should not be equally capable of making that kind of distinction.
That is the position at which we arrived. It seems to me that the debate today has established two things, at least so far as I am aware. One is that there is a feeling in the House that the Leader of the House is not the right person to take the decision. In answer to that, I ask "If not him, who?" and there is no reply to that. The second point that seems to have been made is that this matter should be referred back to the Procedure Committee. I am not necessarily against that course. If 100 the House wishes it to be referred back, so be it. I observe only that the dilemma which the Procedure Committee faced when it considered the matter a month or so ago remains precisely the same. It does not change because there has been an airing of the issue on the Floor today. We shall still have to face exactly the same issues and problems and try to find an acceptable solution.
I suppose that one other possibility today is for the mechanism to be put in place; we try it for a year or so to see how it works; and if it works (or not) it must come back to the House for the House to say yea or nay on whether noble Lords feel that giving such discretion to the Leader of the House is a good or bad thing. If that were the feeling of the House today, I should certainly not stand in the way of it.
Finally, I believe that on the whole it has been helpful that this issue has been raised. My noble friend Lord Monkswell was perfectly entitled to raise it. He raised it in what I consider to be a moderate and sensible way. The House should be grateful to him for giving us the opportunity to have this debate.
§ 3.55 p.m.
§ Lord Simon of Glaisdale
My Lords, I should like to say a few words about the sub judice rule. The purpose of that rule is to ensure that the system of justice is not interfered with by any extraneous source. It is a counterpart of the rule in the courts that they will not countenance any inquiry into how Parliament—either House of Parliament—conducts its business. The two are complementary, in order to prevent collisions between the judiciary and legislature such as occurred, unfortunately, before those rules were crystallised.
As the noble Lord, the Leader of the Opposition explained, the purpose of the Procedure Committee's proposal was to bring our procedure closer to that of the other place. I respectfully agree with him that if that is to be done, what is proposed by the Procedure Committee is the only practical course to bring it about.
The noble Lord, Lord Stoddart, asked: with whom should there be consultation? I apprehend that it would be with the party leaders and perhaps, occasionally, with some Cross-Benchers. The difficulty about the latter is that it would produce a wide variety of opinion. The advice, I should have thought, would be from the Clerk of the Parliaments and possibly the Counsel to the Chairman of Committees. One other consultation seems to me highly desirable; namely, between the Leader of the House and the Speaker of the other place, to ensure that the practice is not different in any particular case.
It is a long time since I had direct experience of this procedure in another place but I have tried to follow it. So far as I can see, the present practice in the other place works extremely well. The most recent case of importance arose during the debate on the Maastricht Bill because there had been an application to the High Court for judicial review which would, in effect, have invalidated that Bill. It was rejected at first instance. It was then appealed and the Speaker had to make her decision. She decided that the rule should be waived. I 101 have seen no criticism at all of that decision; nor do I have any reason to think that it does not operate perfectly satisfactorily.
The difficulty arises in the next stage. There was no appeal from the Court of Appeal to your Lordships' House. But it is there that the difficulty arises because the judicial decision of your Lordships' House is the decision of the whole House. That is the legal position. So often, the conventional, real situation is slightly different—or very different—because the Appellate Committee operates like a court of law, is seen to do so and approved of so operating. On the other hand, it is well over 150 years since the lay Lords attempted in any way to influence a decision of the Appellate Committee—long before there were Lords of Appeal in Ordinary. In my view, it would be highly improper for any Lord of Appeal, whether or not a Lord of Appeal in Ordinary, to express any view on the merits of any case which was pending in your Lordships' House. If that were improper, as I think it would be, from any legal Member of your Lordships' House, it would be still more improper from a lay Member in view of the history to which I adverted. It would be extremely improbable therefore that the Leader of the House would ever advise the waiver of the rule in any case that was pending before your Lordships' House. It would need to be a quite exceptional circumstance and one to which I cannot at the moment advert.
It seems to me that there is no reason to refer this report back, as the noble Lord, Lord Monkswell, put it with his usual calm persuasiveness. On the other hand, the question arises of keeping our own procedure in line with that of the other place. The Procedure Committee may like to give that point further consideration. But for that, it is not necessary to refer the matter back, and I hope that it will not be so referred.
§ 4 p.m.
§ Lord Jenkins of Hillhead
My Lords, as is so often the case the noble and learned Lord, Lord Simon of Glaisdale, shone a special and clear searchlight on this problem. We are all grateful to him for that. We are grateful also to the noble Lord, Lord Richard, who outlined the issues with such clarity. I am even more grateful though I slightly differ from him in his conclusions.
What emerges from the debate is that there is a certain conflict between two desiderata. If we can, we want to bring our procedure in relation to the sub judice rule into line with that of the Commons. But we do not want to turn the Leader of your Lordships' House into anything like the Speaker of the House of Commons. I am not worried about individual decisions that he may make, on ex officio or ad hominem grounds. I do not believe that there would be conflict between his political stance and his functions as Leader of the House. I am sure that he would give the fairest possible decisions in which I would have total confidence.
However, the problem arises of taking him down the road of possessing a unilateral power equivalent to that of the Speaker which may have certain repercussions in the future. I incline to the view, as the noble Lord, Lord 102 Richard, said, that there is no other way round the situation. But the doubts expressed were sufficient—to my mind at any rate, speaking as a member of the Procedure Committee and bearing a responsibility for the recommendations—to persuade me that it would be courteous to the House and perhaps produce a better solution if the Procedure Committee, with great expedition, looked again at the matter. I do not think that we should lose much by that. It may well be that after that further meeting we would come back with the same recommendation. But I believe that the matter should be looked at again in light of the views expressed fairly widely around the Chamber.
§ Lord Cledwyn of Penrhos
My Lords, I rise not to make a speech but to make a brief point. I am surprised that no one mentioned the possibility that there is another solution. It is not an absolute solution but it is a suggestion which should at least be put to the House; namely, that we have a Speaker in the Lord Chancellor. The noble and learned Lord the Lord Chancellor is also the head of the judiciary, in addition to being a Member of the Cabinet. While I have every faith in the noble Viscount, and have great sympathy with everything said by my noble friend, nevertheless, the Lord Chancellor is a figure of great significance in our constitution and in this House. We should therefore consider the possibility of referring cases to him.
§ Viscount Mountgarret
My Lords, on the point just raised by the noble Lord, Lord Cledwyn, there is little to distinguish—from a political point of view—the position of the Lord Chancellor and that of the Leader of the House. It is still a political appointment. If the Lord Chancellor were appointed in the same manner as the Speaker of another place, perhaps the argument would have greater significance.
I listened to the various arguments put forward and understand that a number of your Lordships hold strong views about change. We are animals who, from time to time, have a reluctance to change. However, the suggestion put forward by the noble Lord, Lord Richard, must appeal to most of your Lordships. In this matter we are taking a step in the dark. We are not certain of what the knock-on effect of this would be. I agree with my noble friend Lord Harmar-Nicholls when he said that it would be a retrograde step. I share his view. It may well be a retrograde step but we do not know that. If, without commitment, your Lordships' accept the proposal put forward by the Procedure Committee and incorporate it in a trial period of, say, two or three years with the Procedure Committee keeping the matter under review, the matter may be brought back to your Lordships' House at a later date when we could assess the views of your Lordships. That may be the best way forward.
My Lords, with the permission of the House, perhaps I may say that this has been an extremely interesting exchange. It has taken rather longer than perhaps any Member sitting in the House expected. But I agree with the noble Lord, Lord Richard, we should thank the noble Lord, Lord Monkswell, for raising a matter of considerable interest to your Lordships' House, and rightly so. Perhaps your 103 Lordships will allow me briefly to put my own gloss on this debate. I do not wish to speak to the matters raised by the noble Lord the Chairman of Committees in his opening remarks. I wish to speak more particularly to the amendment tabled by the noble Lord, Lord Monkswell.
I am extremely conscious that the Leader of the House enjoys no more privileges than any other Member of your Lordships' House. That is not only the immemorial custom of your Lordships' House, but it is also right that it should be so. Many of your Lordships—I believe everyone who spoke this afternoon—recognised that that is the right and the position. I would be the last in any way to seek to undermine that position. It is fundamental to the way your Lordships' House is organised and self-regulation should be the watchword of how we conduct our affairs.
I therefore have the greatest sympathy with the dilemma put with such clarity by both the noble Lords, Lord Richard and Lord Jenkins, concerning the sub judice rule. The difficulty is clearly set out in paragraph 3 of the report. By virtue of a matter being raised as to whether or not it is sub judice, the noble Lord who raises the point is immediately entering into discussion on a matter which may subsequently and retrospectively, after that discussion, be thought to have been sub judice, thereby, in a circular way, defeating the very object of having a sub judice rule in the first place.
The last thing in the world I want to do—indeed it would be invidious for me to do so—is to put the Leader forward as a quasi-Speaker in this matter and in this matter alone. But the difficulty is, as the committee recognised, and indeed as the noble Lord, Lord Richard, recognised in his remarks, that at some point somebody must give a ruling if we are to avoid the matter being raised and thereby prejudicing the case in hand.
The noble Lord, Lord Cledwyn, suggested the Lord Chancellor as someone who might, with advantage, be proposed for this role. I am very far from being against that suggestion. However, I would ask the noble Lord to consider page 17 of the 1989 edition of the Companion to the Standing Orders. If the House would allow me, I should like to quote from that:The Lord Chancellor is Speaker of the House of Lords ex officio. It is his duty ordinarily to attend as Speaker, to sit on the Woolsack and to preside over the deliberations of the House, except when it is in Committee. He puts the Question on all Motions which are submitted to the House, but he has no power either to maintain order or to act in any way as the representative or mouthpiece of the House".That is qualified by the phrase,unless the House confers the necessary authority upon him".
§ Lord Cledwyn of Penrhos
My Lords, the Lord Chancellor holds another very important office; namely, he is the head of the judiciary and he sits as a judge. He is one step away from the Cabinet as far as that is concerned.
My Lords, I wholly accept that point. The difficulty, it seems to me—as always, in all matters, but in this matter particularly, I am in the hands of your Lordships—is that the Lord Chancellor, who would undoubtedly be a better judge in these matters 104 than I as Leader of the House, would find it difficult to enter into the regulation of your Lordships' House. The noble Lord, Lord Cledwyn, might like to take that point into account.
§ Lord Stoddart of Swindon
My Lords, I am obliged to the noble Viscount for giving way. The noble Viscount is the Leader of the House. The Lord Chancellor is not the Leader of the House. That is a difference. In one sense the Leader of the House is our man. The Lord Chancellor, apart from being outside of the House, is the judiciary's man. He is the leader of the judiciary. Therefore, he has an interest, unlike the Leader of the House. That surely disqualifies the Lord Chancellor from making any decision as to whether a matter is sub judice.
§ 4.15 p.m.
My Lords, as is so often the case, the noble Lord, Lord Stoddart, has anticipated what I was going to say, although he perhaps puts it more forcefully and more elegantly than I could have done. The Lord Chancellor and the Leader of the House, as the noble Lord, Lord Richard, and indeed the noble Lord, Lord Jenkins, pointed out, have to lead a somewhat schizophrenic existence in your Lordships' House, both as members of the Cabinet and in performing a rather less partisan function. I feel that any competent Leader of the House must regard his or her position as Leader of the House as one in which he or she is Leader of the whole House and is not a partisan figure in that capacity. Many former Leaders of your Lordships' House are still Members of your Lordships' House. By common consent, they have been extremely effective and forceful Leaders of the House who have respected and indeed adorned that tradition. The noble Earl, Lord Longford, is a very good case in point.
There is a case for the Leader of the House to be given this task in spite of the caveats entered by the noble Lord, Lord Monkswell. I understand wholly what he says particularly as, if this change were to be made, it would be I, as Leader of the House, who would take on a function which would be a new departure for your Lordships and therefore would be all the greater a responsibility for me to discharge.
It might also be worth saying that the pronouncements of the Leader over whether a matter should be sub judice would be characterised in particular by two considerations. First, it is very clear that any pronouncement by the Leader on whether a matter is sub judicewould be in the direction only of a relaxation of debate rather than a prohibition. That, in terms of the freedoms of your Lordships' House, would be most important for your Lordships to understand.
The second point has been made by many of your Lordships during the course of this afternoon's exchanges. The Leader would not pronounce in a personal capacity. He would take advice. I listened, as always, with particular attention to the words of the noble and learned Lord, Lord Simon of Glaisdale. I suspect that it would not be appropriate for the Leader to take the advice of the Opposition leaders or indeed the Convenor of the Cross-Bench Peers because they, 105 inevitably, are purely political figures, however much they may be leaders in waiting. What would be sensible is for the Leader to take the advice of the Counsel to the Chairman of Committees and indeed of the learned Clerk of the House.
As such, primed with their advice and a suitable degree of notice before having to pronounce to your Lordships on sub judice matters, he would be rather like what I understand the Pope would be like when he pronounces on a matter of doctrine, in which he is, I am told, infallible. I am not a Roman Catholic myself but I understand that if he pronounces ex cathedra, he is suitably primed with all the advice and panoply which followers of that faith believe gives him the authority he would need. In this case that kind of advice would bolster the Leader's position as an independent figure representing your Lordships as a whole rather than representing the party of the government of the day.
I am extremely conscious that I have spoken for rather longer than I intended to, which perhaps is one of the penalties of speaking unprepared. I should like to suggest to your Lordships that there are two alternatives. The first is the alternative proposed by the noble Lord, Lord Richard, which is that we should try the recommendation of the committee for a period long enough to give us some experience of the workings of the proposal and that we should then review it after perhaps two or three examples of this happening. Then, if the House expressed itself dissatisfied with how the experiment was working, it would be open to the House to reject it.
The other alternative, which was proposed by the noble Lord, Lord Jenkins, was that this matter should be referred back to the Procedure Committee, which would then take note of the exchanges this afternoon and make a further recommendation to your Lordships. I am entirely, as always, in the hands of your Lordships' House. I have to say—this is no more than a matter of judgment in which I could be proved entirely wrong—that I would strongly suspect, having listened with close attention to the deliberations of the Procedure Committee when it discussed this important matter and indeed the consultations that occurred before that committee sat, that the committee would find it very difficult—there are many members of the committee present today who might disagree with me on this—to come to any different conclusion from the one it has already come to.
Therefore, if the House were to ask me to make a recommendation, the recommendation that I would feel constrained to make, in spite of the very sensible and understandable reservations expressed by noble Lords on all sides of the House, would be for a relatively short period of experiment. If the experiment is manifestly a failure, or if there are any doubts at all about the propriety of the way in which the experiment has been handled, or indeed the safeguards that are put in place, it is open to the House to refer it back to the Procedure Committee or indeed to revert to the status quo.
However, I believe that the House will be well aware of the difficulty to which so many of your Lordships have already alluded this afternoon. Quite simply, it 106 does not make sense for Parliament, in the form of both its Houses, to labour under different sub judice rules. We are talking about the pragmatic effects of matters which are not being allowed to be discussed in one House and then being discussed in another. No matter where it is discussed, and in whichever House of Parliament, the person accused or the civil case under discussion, will find itself prejudiced in a way which would be against the best traditions of British justice and of this House.
§ Lord Harmar-Nicholls
My Lords, before the noble Lord sits down, can he explain to me how the House can express itself on the two propositions which he has put? If the majority of us feel that the matter should go back to the committee, as suggested by the noble Lord, Lord Jenkins, how can we set about doing that? If we support the amendment on the Order Paper, what would be the procedure for getting the second alternative accepted rather than the one which my noble friend appears to favour?
My Lords, with the permission of the House, I know that the noble Lord the Chairman of Committees is waiting to reply. I say to my noble friend Lord Harmar-Nicolls that I hope that this is a matter which does not come to a vote because I suspect that matters of this kind are much better resolved by consensus and agreement. Therefore, I suggest that it is open to the noble Lord, Lord Monkswell, to decide whether or not to withdraw his amendment. If he wishes to withdraw it, that would imply that your Lordships as a whole would follow the inclination both of the noble Lord, Lord Richard, and of myself. However, if the noble Lord does not wish to withdraw the amendment, I would be reluctant to push the matter to a vote.
I suggest to your Lordships that if there is sufficient feeling in your Lordships' House, the second alternative open to us is the one that we can follow. It would be extremely unfortunate if we divided on this matter. A decision is much better arrived at by consensus. If we need to take a little time, so much the better.
§ The Earl of Onslow
My Lords, why cannot we do both? We can ask the committee to consider looking at it and to adopt the measure temporarily as it is. That seems to me to satisfy everybody's inclinations.
§ The Chairman of Committees
My Lords, I am very grateful to all noble Lords who have taken part in this significant debate this afternoon. As your Lordships appreciate, it would be normal courtesy for me to refer by name to all noble Lords who have taken part in this debate on the amendment of the noble Lord, Lord Monkswell, but I hope that they will forgive me if I do not do so because there have been a large number of speakers. I shall of course mention those noble Lords who have raised matters outside this particular issue.
In the few, brief references in this debate on the sub judice rule, I am very grateful to the noble Lord, Lord Monkswell, for his kind remarks at the outset of his speech, and also for having notified me before he tabled his amendment that he was proposing to raise this matter in some way in the House. 107 It has become evident in the course of this afternoon's debate that there is a point which has not been specifically mentioned but which I believe I should mention. I hope that I am not disclosing a secret which I should not disclose. The discussions in the Procedure Committee were very lengthy. It sat on three occasions considering the sub judice rule. Therefore, that is an indication in itself that the committee was taking the matter very seriously indeed. It considered all the points which have been raised by your Lordships this afternoon. Over quite a period of time the committee has been very conscious both of the difficulties and of the benefits of introducing a change to the rule.
A point which has not been raised is one which I believe I should mention; namely, the noble Viscount the Leader of the House accepted with some diffidence the role which was proposed in the recommendation from the Procedure Committee. It is not something which was overwhelmingly and instantly accepted with acclamation and great enthusiasm. But having been considered over a period of time, and for all the reasons which have been outlined this afternoon by the noble Viscount and the noble Lord, Lord Richard, in particular—the noble Lord, Lord Jenkins of Hillhead, referred to it as well—it has been accepted that that was really the only practicable solution which was open to the committee to recommend to your Lordships.
The only other points which I wish to mention are these: as has been stated in the debate this afternoon and in the report which is before your Lordships, that the decision of the noble Viscount the Leader of the House would be based on advice. It is perfectly true to say—it has not been spelt out in so many words—that those who have been suggested as the providers of that advice to the Leader are the very ones who, for example, were mentioned by the noble and learned Lord, Lord Simon of Glaisdale—that is to say, the Clerk of the Parliaments and the counsel to the Chairman of Committees in the principal place. In these circumstances, the Leader would need independent legal advice. The others who have been mentioned are the noble and learned Lords the Lords of Appeal and the Lord Chancellor.
I enter a note of reservation on that point. We have to be conscious, as the Procedure Committee itself was conscious—it could not be otherwise with two noble and learned Lords sitting on that committee; namely, the noble and learned Lords the Lord Chancellor and Lord Mustill—that that consultation would have to be carried out with some delicacy because noble and learned Lords may well find themselves sitting on the very cases which have come under consideration under the sub judice rule. I am sure that the noble and learned Lord the Lord Chancellor and the judiciary at that level generally would find a practical way of dealing with the situation, but we have to be conscious of it. That is why I mentioned that the principal, and initial at least, source of advice would be the Clerk of the Parliaments and the counsel to the Chairman of Committees.
I do not want to prolong matters, but there is one other point which I should like to mention in this connection. It was the clear wish of the Procedure Committee that there should be greater freedom in this House—and that cannot be over-emphasised in my 108 respectful submission—as there is already in another place, to refer in debate to matters which are technically sub judice but which are the legitimate concerns of Parliament.
I underline that by saying that the important feature of the new procedure proposed to your Lordships is that the Leader, in coming to a decision on one of these matters, can only relax the prohibition in debate; he cannot impose it. It is important for us to bear that in mind because it is a relaxation. It is an extension of the powers of the House to consider these matters.
In the light of all that your Lordships have said, I say this to the noble and learned Lord, Lord Monkswell—I am so sorry, my Lords, I should have said, "the noble Lord, Lord Monkswell". I shall have to try very rapidly to retrieve my awkward situation by saying that he presented his case so eloquently that perhaps your Lordships might feel that an accolade of that kind is not inappropriate in his case. If the noble Lord, Lord Monkswell, feels able to withdraw his amendment, I shall now give a firm undertaking to the House that after the limited period of experience of these matters, I shall invite the Procedure Committee to review the situation to see whether it is working or working as properly as we would wish.
In giving that very firm undertaking, I ask the noble Lord, Lord Monkswell, not to tie me down to a specific period because it may be that for the remainder of this Session we might have no sub judice matter to consider at all. In that case, there would be no point and it would be a time-wasting matter. If I may leave the matter in that way and not attempt to tie your Lordships down to a specific time, and say that within a reasonable period of experience, which might well be a Session and a half or even six months, that might best suit your Lordships' convenience.
So as not to have to intervene later, perhaps I may deal with the various other points that were raised. The noble Lord, Lord Cocks of Hartcliffe, dealt with new editions of the Companion and the Brief Guide. Before we rose for the Christmas Recess on 16th December, we had a report from the Procedure Committee and accepted amendments to the Companion. The new edition is in train. I well understand the points he made. They can be taken into account, and, if necessary, an appropriate addition can be made at a later stage.
§ 4.30 p.m.
§ Lord Brougham and Vaux
My Lords, perhaps I may interrupt the noble Lord for a second as he is on that subject. On maiden speakers, it has been drawn to my attention and to the attention of many other noble Lords that when maiden speakers are speaking people walk in as well as out. Could that point be inserted in the Brief Guide?
§ The Chairman of Committees
My Lords, I am grateful to the noble Lord for raising that point. As the House has taken a decision on the new edition of the Companion, it is open to me only to invite those concerned to make alterations on the basis of editorial discretion. That is something to which your Lordships have given approval in the past and which, I understand, 109 is a practice of the House. I shall be happy to consider that point to see whether it can be accommodated by that means.
On another point raised by the noble Lord, Lord Cocks, happily, Commissioners are not a matter for me. He also raised the subject of interests. I have no doubt that when the committee comes to consider Members' interests it will bear that in mind. Perhaps I may quote one sentence without prolonging matters unduly. The terms of reference of the sub-committee on this matter which is to be appointed state:To consider the practice of the House in relation to financial and other interests of Members and, in particular, the case for a register of interests; and to make recommendations".The points the noble Lord made are wholly embraced in the remit given to the sub-committee.
The noble Lord, Lord Stoddart of Swindon, asked about the one-and-a-half hour rule. I can assure him that that is a point with which the Procedure Committee grappled. It must be admitted that there is a difficulty. I invite him to accept that the best way forward is to see how it works. Most of the proposals are suggested experiments. Nothing is immutable. Nothing is cast in stone and cannot be altered. If necessary, the Procedure Committee will get to grips again with that matter.
§ Lord Dean of Beswick
My Lords, I am grateful to the noble Lord for giving way. On the same point, is the Chairman of Committees saying that the dinner hour Unstarred Question and the one-and-a-half hour limit are trials and will not be enforced rigidly at this stage?
§ The Chairman of Committees
My Lords, the one-hour limit for Unstarred Questions in the dinner hour is a matter which has been accepted by your Lordships. The new proposal is for a one-and-a-half hour limitation. That experiment is recommended in the Procedure Committee's report. I suggest that the experiment should be tried to see how it works.
§ Lord Dean of Beswick
My Lords, suppose there are seven names down, which would mean a one-and-a-half hour debate, and the last speaker rises after one hour and 28 minutes, will someone call him to order?
§ The Chairman of Committees
My Lords, no one would be able to call that speaker to order. What the noble Lord implies by his question is right. If the final speaker in such an Unstarred Question is the Minister, it has been thought that at least for the trial period an informal indication can be given by the Clerk of the Parliaments or the Clerk at the Table to the Minister that the time is running out. The matter can be brought to a satisfactory and civilised conclusion in that way.
§ Lord Boyd-Carpenter
My Lords, before my noble friend concludes, will he deal with recommendation No. (7)—no Starred Questions on Fridays? Why should there not be Starred Questions?
§ The Chairman of Committees
My Lords, with his customary perspicacity, the noble Lord has raised the very point upon which my index finger rests in my rough notes. The noble Lord, Lord Stoddart of Swindon, made the point about no Starred Questions on Fridays. 110 That too is a problem. I have to confess that the Procedure Committee grappled with a great many things. It saw both sides of the argument clearly. It was difficult to come to a conclusion. The main point of the proposal that there should be additional Friday sittings was that it would save noble Lords from sitting late on other days of the week. That was the prime purpose. Starred Questions come into that argument because they would take up a certain amount of time and so jeopardise some of the time that we are trying to save. That is one consideration.
There is another consideration which I feel free to mention and which neither the noble Viscount the Leader of the House nor the noble Lords, Lord Richard and Lord Jenkins of Hillhead, would feel so free to raise—it is a significant point, if I may say so—and it is that Ministers have other duties. If they are to do their job properly it is essential for them to get around the country to do other things in their departments and elsewhere and also to go outside the country. I may offend some noble Lords when I say that it is a consideration that to some extent Ministers need to be protected to that extent by us as a House.
I appreciate the point made by the noble Lords, Lord Boyd-Carpenter and Lord Stoddart, on the subject of Starred Questions. This too is something that I suggest should be tried out. It is something to which we can return if your Lordships are restive about the way the matter is going. If that is so, I shall have no hesitation in recommending that the Procedure Committee has another look at the matter. Again, it is an experiment. This is a package of experiments. I invite your Lordships to accept it in that spirit and in that way.
§ Lord Boyd-Carpenter
My Lords, perhaps my noble friend will allow me to intervene again. What he said about Ministers' time apparently does not apply in the Commons.
§ The Chairman of Committees
My Lords, I should be trespassing hazardously were I to venture an answer about procedure in the other place. Nowadays, if not in earlier years, there are no Oral Questions—I recall they call them that in another place—on Fridays.
I believe and hope that I have dealt with all the various matters, except on the sub judice rule, that noble Lords have raised. If not, they will of course approach me elsewhere, and I shall try to find an answer for them. It is in that spirit that I say that this is a series of recommendations which, although modest, is significant, and I invite your Lordships to accept it.
§ Lord Airedale
My Lords, before the noble Lord sits down, I have only one short point to make. I refrained from taking part in the general discussion on the Question that the amendment of the noble Lord, Lord Monkswell, be agreed to because I thought that a later opportunity would arise when the Question was whether the report itself should be agreed to. It is a very short point. It is simply on paragraph 3 and relates to maiden speeches. The noble Lord referred to the short sentence that says simply that only the next speaker shall 111 congratulate the maiden speaker. However, the custom seems to have grown up for the Minister replying to the debate to add his congratulations to the maiden speaker.
§ Lord Airedale
My Lords, no doubt that is of great satisfaction to the maiden speaker and the custom finds favour in the House.
If the words in the report are transferred into the new Companion to the Standing Orders, in future Ministers winding up will feel inhibited in adding their congratulations to the maiden speaker. That would be a pity. I understand that the new Companion goes to the printers in a week's time. I hope that even at this late hour some means can be found of making it clear that the Minister winding up the debate is free to add his congratulations to the maiden speaker, if he feels inclined to do so.
§ The Chairman of Committees
My Lords, the noble Lord, Lord Airedale, has raised a significant point. As regards his pessimism about the amount of time, I have no information that the new Companion is to go to the printers next week. I understand that there will be a little more time. Perhaps I may consider his suggestion and see whether the wording needs to be incorporated into the new edition. It would have to be done under the editorial discretion reservation. However, it might not be necessary to go so far as that because the recommended insertion reads:Maiden speakers should normally be congratulated by the following speaker only".I suggest that that amply accommodates any congratulations offered by the Minister in winding up. I wholly agree with the noble Lord, Lord Airedale, and the noble Lord, Lord Boyd-Carpenter—although not uttered from a standing position—that this is a desirable practice to be retained.
§ Viscount Waverley
My Lords, it is imperative that the Minister has ample time to answer an Unstarred Question, otherwise why have the Question in the first place?
§ The Chairman of Committees
My Lords, I agree that that is a consideration and, if your Lordships agree to the Motion today, a matter that we must look at closely in the course of the experiment.
§ Earl Russell
My Lords, having been under the same misapprehension as my noble friend Lord Airedale, perhaps I may ask the noble Lord one question. It relates to Front Bench time being limited to 20 minutes as regards Statements. I sympathise with the objective of that recommendation but I can recall cases in which Statements have lasted beyond 20 minutes. Will the principle be applied in conjunction with the principle of equal time?
§ The Chairman of Committees
My Lords, I am grateful to the noble Earl for raising that point because it gives me an opportunity to clarify the matter. The Statement is excluded from the time limit.
§ Lord Monkswell
My Lords, I thank all noble Lords who have contributed to the debate on my amendment. 112 There was support from all sides of the House. I do not intend to refer to all the speakers who took part—I am sure noble Lords will understand why—but I wish to refer to one or two points that were raised. The noble Lord, Lord Stoddart, asked whom the Leader of the House would consult in reaching a decision. The noble Lord, Lord Richard, said that someone must take a decision but, my Lords, in this House we collectively take decisions. There is no Member who must take decisions on our current Standing Orders and rules of debate. The noble Lord, Lord Cledwyn of Penrhos, suggested that an alternative person might be the noble and learned Lord the Lord Chancellor. It is interesting to reflect on the fact that the only Member of this House who is a servant of the House as opposed to a government Minister or Leader of the Opposition is the Chairman of Committees. It might be that in the further deliberations of the Procedure Committee the use of his position will be considered.
I am grateful to the noble Viscount the Leader of the House for his contribution. It clarified the exercise of this new function of his office. It is important to note that he said specifically that he would not consult through the usual channels but would take legal advice and advice on procedure. That is most significant and I welcome it. It means that the usual channels will not be compromised by the decision.
I was also grateful to the Chairman of Committees not only for his clear explanation and reply to the debate but for the assurances that he has given to the House that the proposal for the operation of the sub judice rule is for a trial period. On that basis, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.