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Lord Graham of Edmonton: Always anxious to avoid the noble Baroness, Lady Miller, shaking her head as vigorously at me as she did at the noble Lord, Lord McNally, I shall use different words but ones which carry the same message. The Government have got themselves into a mess on this Bill. They have not been frank enough to say so, but when one looks at a situation such as that outlined by the noble Lord, Lord McNally, one realises that it could have been avoided. From last November until now the need for this legislation was patently clear. We on these Benches can understand why, when things are examined afresh, one must be extremely careful. We are conscious of the fact that it is not a question of looking to do damage or of damage limitation.

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When the Government drew to our attention the desirability of having such legislation, we immediately saw the problems and we are still as unconvinced as noble Lords on the Liberal Democrat Benches that there is no relationship between the privatisation of HMSO and this Bill. Those who are bidding for the tender for the privatised HMSO are bound to have some interest in whether there is a contingent liability which may explode in their face before, during or after any court case.

We can well understand the Government's desire to sell the business and to make arrangements for that. Indeed, the contract has been passed by the House this afternoon. We can well understand that the Government are anxious to make the asset as clean and as sweet as possible.

The Minister is not part of the usual channels. This is very much a question of the Whips and the business managers trying to reach a modus operandi. When the Liberal Chief Whip and I were faced with this matter, it would have been perfectly possible to extend the time which this House could devote to the Bill, but the Minister well knows that that would have been at the cost of a row, which would perhaps more than somewhat damage a delicate situation.

The noble Lord, Lord McNally, made the crucial point that because we on these Benches--that is, the whole of the Opposition Benches--are far from convinced that there is no link between the privatisation which is proceeding and this Bill, we want to exercise the rights that we do have. Let us be fair about this. Last week my noble friend Lord Richard on behalf of these Benches challenged the Leader of the House at the Dispatch Box to make it absolutely certain that this week, before the Recess, we would have to deal only with the Committee stage of this Bill. Since then we have been advised that it is perfectly proper and in order, in the event of no amendments being carried, for the Report stage also to be dealt with this evening. Again, we have no objection to that--with the caveat that has been there all along: we believe that this House should be able to return to this matter on Third Reading on 15th or 16th October. There could very well be happenings which will be of interest to this House.

We on these Benches fully understand that these things happen. We are constantly torn between those who say that we should never ever shorten the gaps between legislative stages and those who say that if the Government ask for something, they are entitled to have it. The Government are, of course, entitled to get their business through. It is unheard of that the Government do not get their business through under normal procedures without the full collaboration of all the Benches. There may be disagreements about the content of the business, but the Business Statement on the next week's business cannot proceed unless by consensus. That has been the position up to now and I believe that it will continue to be the position after tonight. If the amendment, which we support, is defeated and if the Motion that the clause should not stand part of the Bill is debated but the clause remains in the Bill, this House will still have had its opportunity.

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As the noble Lord, Lord McNally, pointed out, it is a great sadness that matters of crucial importance are spatchcocked into the last few days of the Session rather than being dealt with at some other time. I make no complaint about the Minister because the noble Earl is always courteous and anxious to please. He will give a full account of his department. Nevertheless, it is a great sadness that more time could not be found. We had a two-day debate on the future of the constitution and the House of Lords during a very slack period. Better management of our time might have provided some more time in which perhaps more than one amendment could have been tabled on this important and serious issue.

I am grateful to the noble Lord, Lord McNally, for having tabled the amendment which has provided us with the opportunity of this debate. More importantly, it has provided the Minister with an opportunity to explain the non-link between the Bill and the privatisation of HMSO and the reason why the Government would have wished all stages to be taken tonight. Let us be clear about it: that was their first proposal. I am not breaching any secret in saying that. The Government would have preferred all the business on this Bill to be taken in one stage. We support the Liberal Democrat Benches, who have taken a keen interest in this matter, in trying to ensure that this House is given a fair crack of the whip. I look forward to hearing what the Minister has to say.

Earl Howe: I confess to being absolutely astonished by what I have just heard from the noble Lords, Lord McNally and Lord Graham of Edmonton. It is as though the Second Reading debate did not take place. It is as though the full explanation that I gave of the need for the Bill has not even been considered by noble Lords.

The noble Lord, Lord McNally, asked why there was urgency with regard to the Bill. I must advise the noble Lord that he was a little late in saying that because he could have mentioned any objections when I moved the Motion that the House do now resolve itself into Committee on the Bill. In a nutshell, there is urgency about removing a palpable threat of obstruction to the courts and possibly even of technical acquittals in the courts as a result of an anomaly, a potential loophole, that has recently been discovered. Indeed, that loophole has been in existence for the past 30 years but we have not known about it. That has nothing to do with this Government's actions. We have discovered it only recently, but the practice--

Lord Harris of Greenwich: Can the noble Earl tell us on what date that was discovered?

Earl Howe: Yes, I am coming to that. Having drawn attention to the defect in the statute, it is absolutely necessary to resolve it as speedily as possible. I believe that the only responsible course of action is for your Lordships and the other place to rectify it as soon as possible.

The noble Lord, Lord Graham, professed himself to be unconvinced that there is no relationship between this Bill and the privatisation of HMSO. The noble Lord referred to a possible contingent liability for bidders.

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There would be no contingent liability for bidders whatever because if the Bill is not passed, all that would happen would be that all the printing of statutory instruments would be carried out by the public sector, by the so-called "residual HMSO". As I explained the other day, that is perfectly possible, although it would be an expensive course of action which would be likely to increase the cost of statutory instruments.

The noble Lord, Lord Graham, said that the Government have got themselves into a mess, echoing the noble Lord, Lord McNally, who said that we have known for well over a year that something is wrong. I am absolutely astonished by both of those statements. The Government have not known for well over a year. The Government identified a potential problem in preparing for the privatisation. We then took legal advice on the best solution available. As soon as that solution was identified--namely, the need for primary legislation--the intention to legislate was announced and the Bill was presented to Parliament. There was absolutely no delay whatever.

Perhaps I may turn to the amendment. As I understand it--

Lord Harris of Greenwich: I am grateful to the noble Earl for giving way. I hoped that he would address himself to the question that I put; namely, on what date did the Government first discover that there was a problem? I did not ask when they had taken legal advice but on what date this matter became clear to them.

7 p.m.

Earl Howe: I shall obtain a precise answer for the noble Lord, Lord Harris, if it is available. I am glad to answer questions in as much detail as I can. But I do not have the precise date in front of me.

Perhaps I may turn to the amendment. As I understand it, the intention is to remove from the Bill the retrospective powers in the Bill, to put beyond doubt the evidential status of copies of statutory instruments not printed directly by HMSO. But, it will leave intact the future power of HMSO to contract out SI printing. Any copies printed in the future by third parties would be valid, but those already printed would not be. I find that odd both because this would seem to be a pointless and inconsistent measure and also because we have hitherto enjoyed broad cross-party support for the retrospective elements of the Bill both in your Lordships' House and in the other place.

This amendment is a recipe for chaos. The debates on this Bill in your Lordships' House and the other place have inevitably drawn attention to the defects in current arrangements for printing SIs and to the possible technical defence in proceedings for breaching them. It can only have increased the chance of arguments about the status of SIs obstructing the courts and possibly of defendants being acquitted on a technicality. That is why the Government have sought urgent passage of the Bill, which would eliminate the problem if passed unamended.

However, if the amendment were to succeed, the Bill would not resolve the problem. On the contrary, it would draw attention to it. We would have highlighted

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a defect in statute and then failed to correct it, an approach which may not be seen in all quarters as entirely responsible.


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