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Lord Clinton-Davis: My noble friend has been extremely generous in his response to this debate. I do not for one moment imagine that the noble Lord, Lord Renton, intended to be churlish about it, but that is how it appeared. I welcome the point made by the noble Lord, Lord Goodhart, and I am sure that my noble and learned friend will do his best to accommodate it. However, the important thing is to get it right.

There are subsequent stages at which we can consider the amendments my noble and learned friend proposes to table. If he is in a position at some time before Report

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stage to indicate what are his intentions, I am sure that he will do that. My overriding point is that it is extremely important to get the wording right. As has been recognised by the delegated powers legislation committee, if we were to make a mess of it, that would be the worst of all worlds.

Lord Campbell of Alloway: As the noble and learned Lord said, if these amendments are tabled substantially before Report stage, then assuredly justice can be done.

Lord Peyton of Yeovil: I feel slightly puzzled. I would be the last to say to the noble and learned Lord that I did not appreciate his effort to reach some measure of agreement and acceptability throughout the Chamber. However, I can recall on a number of occasions the volume of indignation which came from this side of the Chamber when government Bills had hardly been launched into Second Reading and were immediately deluged with government amendments. When noble Lords opposite were in opposition they were extremely cross about that, with some reason.

Lord Archer of Sandwell: Perhaps the noble Lord will forgive my intervention. We all listen with great respect to the noble Lord because he has had long experience here. However, is not there a distinction between amendments tabled by the Government in response to amendments tabled by other Members and amendments tabled by the Government because they had not thought the matter through and had had second thoughts? That is what was happening in the last Parliament.

Lord Peyton of Yeovil: The noble and learned Lord has great experience in these matters. He says that the Government had not thought it through. Perhaps one could say, "You too have not thought it through".

Here we have an important constitutional Bill which makes a great many far reaching changes. I must say that I was surprised by the immediate and generous response of the noble and learned Lord, but I wonder rather modestly why those responses to proposals which caused enormous unrest were not thought of before. We may say they are new, but judges delivered their opinions, the Bar Council delivered its opinions and still the Bill came.

In the Bill the noble and learned Lord is demanding a large number of powers. He cannot have thought that they would not be subject to objection. That is why I am on my feet--to say that I am genuinely surprised at the speed at which the noble and learned Lord met the objections launched to the Bill. It has not so far been the habit of this Administration to listen to their critics or their Cabinet.

Lord Ampthill: Should not therefore we be extremely grateful that the Lord Chancellor--I speak as a member of the Select Committee to whom he has been extremely kind and taken due note of virtually everything we said--proposes to do something about the objections? How he can do that before Report stage

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I fail to see. If we want a new purpose clause, as the noble Lord proposes in Amendment No. 1, we cannot go backwards at Committee stage. Therefore the whole Committee should be extremely grateful for the marvellous reception which the noble and learned Lord gave to the recommendations of the Select Committee and be thankful that note has been taken thereof.

Lord Lucas of Chilworth: Perhaps I can offer a suggestion following upon my noble friend Lord Renton's remarks. Notwithstanding the generosity of the noble and learned Lord, if Members of the Committee are concerned that they will not have an opportunity to discuss in full any amendments that he may put to your Lordships' House on Report because of the procedures that we adopt, would there not be an opportunity to have the clauses which may be affected re-committed to a Committee of the whole House?

Lord Lloyd of Berwick: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his very full reply to the amendment standing in my name, especially the observations he made on the wider aspects of the Bill which will prove to be the great issues at later stages of the Bill. He has gone a long way towards meeting the points that were in the minds of those proposing the amendment. We look forward to his fresh proposals as soon as they are available. I hope that that is a neutral way of expressing our view. Obviously, the sooner we have the proposals the better.

The amendment has served the purpose for which it was tabled. It has had support from all sides of the Committee. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

4.15 p.m.

Lord Simon of Glaisdale moved Amendment No. 3.

Page 1, leave out lines 18 to 20.

The noble and learned Lord said: In moving the first of a series of amendments, I apologise to your Lordships and particularly to my noble and learned friend the Lord Chancellor that the amendments are starred. However, I do not believe that that will cause difficulty because they are almost entirely probing amendments.

The amendments fall into two classes. The first explores the legislative powers that the executive is claiming and arrogating. The amendment goes beyond the matters referred to by the Select Committee. The fact that it has taken the report of the Select Committee to make the Government face what one would think are elementary constitutional principles is a little alarming. In that regard, I echo what has been said by other noble Lords.

The other amendments check the necessity for a number of provisions in the Bill. Even by present standards this is a very prolix Bill. It must not be thought that I blame the parliamentary draftsmen who are generally fine lawyers and people of great skill. They are working under very great pressure. Members of the Committee will remember that Bernard Shaw

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once apologised for writing a long letter because he did not have time to write a short one. Any draftsman in your Lordships' House - I see a number of eminent draftsmen - will know that it is much easier to draft loosely and discursively rather than economically. So your Lordships are fully entitled to satisfy yourselves that the provisions in the Bill are really necessary. I hope that I shall cover ground that my noble and learned friend the Lord Chancellor will undoubtedly have had under review generally.

Amendment No. 3 is to leave out lines 18 to 20 on page 1. The Bill states:

    "The Commission shall consist of- (a) not fewer than seven members, and (b) not more than twelve members;"
The words I question are:

    "but the Lord Chancellor may by order substitute for either or both of the numbers for the time being specified ... such other number or numbers as he thinks appropriate".
In other words, he does not regard himself as being bound by the statute. That is the power that is taken.

The wording may be less innocuous than it appears to be at first sight. The Lord Chancellor has enormous patronage. I drew attention to the extent of it in the last Parliament. My noble and learned friend Lord Mackay of Clashfern may remember. There are pages and pages of appointments which lie within the gift of the Lord Chancellor. In my respectful submission, we ought to scrutinise carefully a power to appoint more. I can guess why the Lord Chancellor would wish to have that power. At the moment I cannot even guess why he would want to adopt the minimum figure.

When the Lord Chancellor proceeds by order it is the negative procedure. As Members of the Committee know well, an order subject to the negative procedure, more often than not, is not reached in the other place and is dealt with perfunctorily in your Lordships' House. So I suggest, as this is the first of the matters on which the Government claim to legislate by statutory instrument, it should be closely scrutinised. I beg to move.

Lord Kingsland: I rise to speak to Amendment No. 4, which is in the same grouping. The amendment has the same purpose as Amendment No. 3, which is to probe.

In what circumstances does the noble and learned Lord the Lord Chancellor believe he would wish to increase the number of members of the commission from 12? I am not suggesting for a moment that the noble and learned Lord would, in any circumstances, wish to increase the number of members because the decisions they were making were unattractive to him, but I suppose it is possible to envisage an unattractive future and to imagine that some future Lord Chancellor might wish to use the power for that purpose. In those circumstances, it seems to me that the exercise of such a power should at least be subject to positive affirmation by this Chamber.

Perhaps I may make one more general point. Recent experience of the previous government has shown the relationship between government departments and

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so-called "independent agencies" can be an unhappy one. I refer particularly to the relationship between the Home Office and the Prison Service in its initial stages. The noble and learned Lord is establishing an independent agency to manage the provision of legal services. On the face of it, the agency will be independent with a mind independent of the Lord Chancellor's Department. In my submission, it is important that the basis of that relationship should be clearly set out on the face of the Bill.

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