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Lord Marsh: My Lords, I hesitate to become involved in an argument between two lawyers as eminent as those who are speaking at the present time. I take totally the important point which my noble and learned friend Lord Simon has made on this issue.

However, those of us who have been at one or the other end of the building over the past 40 years or so will know that debates have taken place which were cringe-making in the extent to which they were clearly wrong in relation to proceedings which were before the courts. The provision--my noble and learned friend does not disagree with the broad provision--that we are discussing is, I believe, something which most, if not all, noble Lords would support.

The issue raised by my noble and learned friend Lord Simon is a real one. However, I suggest that it is one with which this House is already familiar. I consider that the position that is suggested for the noble Baroness the Leader of the House under the new provision is analogous to the position of the noble and learned Lord the Lord Chancellor in that he also is a Member of the Cabinet and a party Member. He is able to separate those two situations when dealing with matters where there is a potential conflict of interest.

In recent times the traditional dual role of the Leader of the House has been almost identical to the role we are discussing; namely, that of a party politician who at the same time is an Officer of the House as a whole and loyal to the House as a whole. In my limited experience I do not believe that that has normally been challenged and nor has it caused great problems. I believe that there is a need to qualify the provision we are discussing, but unless we decide to have a Speaker, which I personally would deeply regret, I believe that it could work perfectly well with the Leader of the House continuing to--I was about to say "wear two hats", but for ladies that would be offensive--act in those two capacities of being a party politician (we understand that totally) and being perfectly competent to undertake the responsibility I am discussing.

Lord Strathclyde: My Lords, I had no intention of speaking in this debate. My only qualification to do so is not a legal one but my position as Leader of the Opposition. I also had no intention of speaking in the debate because the Motion gives effect to a Motion which has already been agreed by this House on a

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Procedure Committee report, which gave effect to a decision made by the Joint Committee which has already been mentioned.

However, as the noble and learned Lord, Lord Simon of Glaisdale, has raised the extremely important matter of the role of the Leader of the House, it is right that I should say a few words which are broadly in agreement with the comments of the noble Lord, Lord Marsh.

Having said that, as this Motion is not time-critical, I am sorry that the noble Baroness the Leader of the House is not present to move it. I do not mean that comment to be at all offensive. I am simply sorry that the noble Baroness is not present to say that she understands her position to be that described by the noble Lord, Lord Marsh, which is also my perception. If the Deputy Leader of the House, the noble and learned Lord the Attorney-General, says that that is the position, he will be putting words into her mouth. I rather regret that; I think it would be better if the noble Baroness had been able to say that herself.

The noble Baroness as Leader of the House has a dual role as a Cabinet Minister--she is also Minister for Women--and as the Leader of the Whole House. I believe, and certainly hope, that she has no difficulty in fulfilling that role.

On the matter of her discretion, I ask my next question purely for clarification. Am I right in thinking that she will seek advice from the Law Officers on this matter--perhaps the noble and learned Lord the Attorney-General himself, or, indeed, the noble and learned Lord the Lord Chancellor? On matters of political importance, which perhaps concern a ministerial decision, or another body in which the Government have a role or responsibility, will the noble Baroness widen the consultation to take into account the views of the usual channels or of the Opposition? It would be useful to be given a view on that. If the noble and learned Lord the Attorney-General has difficulty in answering that question--I am sure that that is not the case and that he will have discussed the matter with the noble Baroness--I should be happy to receive a reply in writing.

Baroness Carnegy of Lour: My Lords, before the noble and learned Lord replies, I hope that I may ask two simple questions which I think relate to this discussion. First, do the rules of the Commons include 24-hours' notice, as do these rules? Secondly, what happens if the Leader of the House takes a different decision from the Speaker? I ask this because, if I remember rightly, when the Pinochet case arose there was an attempt to raise the matter in this House and the House was told that it was sub judice. On that same day the Commons discussed it. I may be wrong but I think that is what happened. I wonder whether the two decisions could diverge and, if so, what happens?

Lord Elton: My Lords, on the 24-hour matter I have a small, practical question to ask as regards exactly how strictly that will be interpreted. If it is strictly interpreted, a question could not be raised after three

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o'clock on a Wednesday in a normal working week until the following Monday. That gives a 92-hour blanket of silence. As matters of public order are specifically listed, and public order is most imperilled, as a rule, at weekends, that may be a relevant consideration.

Lord Williams of Mostyn: My Lords, the present rule requires the 24-hour notice to be given in respect of a much more limited discretion. Of course the 24-hour notice question is proposed to be included in the new edition of the Companion. I dare say that there will be an opportunity for the question to be raised on that occasion.

I return to the matter on which I tried to be helpful when the debate began. As the noble Lord, Lord Strathclyde, pointed out a moment ago, the House has already made the decision we are discussing. What I move today simply concerns the means whereby the decision, which has already been assented to, may be put into effect.

The noble and learned Lord, Lord Simon of Glaisdale, raised some questions which are plainly of importance, as the noble Lord, Lord Marsh, pointed out. But all these issues are very fully ventilated and debated, should your Lordships wish to see them, in volume 1 of the report of the Joint Committee on Parliamentary Privilege, which of course your Lordships regard with a good deal of respect. It was printed on 30th March this year and in it your Lordships can see the whole of the debate referred to by the noble and learned Lord.

The Joint Committee concluded in paragraph 201 that, bearing in mind a degree of difference between the Speaker in the Commons and the Leader of the House here, the Leader of the House,

    "would therefore probably be the appropriate person to exercise such a general power of waiver".

It is a very full, comprehensive document, and I shall not weary your Lordships with any further citation from it.

Lord Simon of Glaisdale: My Lords, the report of the Joint Select Committee is an eminent constitutional document to which we should pay tribute. But I think the noble and learned Lord will agree that it did not address the specific question which I ventured to raise before your Lordships.

Lord Williams of Mostyn: My Lords, all the relevant issues were fully debated and discussed by the committee, which was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead. The next step--I shall be as brief as possible, bearing in mind that we have other important business--was that on 4th April this year the Select Committee on Procedure discussed the issue. Present were the noble Lords, Lord Strathclyde, Lord Mackay of Ardbrecknish, Lord Henley, Lord Harris of Greenwich, Lord Rodgers of Quarry Bank, my noble friend the Leader of the House and myself. The Select Committee came to its decision. It made its recommendations to this House, and this

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House has already approved them. I repeat: I am simply moving today the mechanical device for giving effect to something that has already received assent.

The noble Baroness asked about the possibility of a difference of view between the Speaker and the Leader of the House. The possibility of a difference or divergence of view already exists. I stress: we are widening the opportunity for this House to discuss matters so that it is coterminous with the opportunities in another place for discussing similar topics.

The noble Lord, Lord Strathclyde, asked whether advice would be taken from the Clerks in cases of difficulty. That is the convention. The question of whether the Leader of the House would consult colleagues was raised. That is a matter for the Leader of the House on any particular occasion. If I may say so, there is a perfect analogy. The noble and learned Lord, Lord Simon of Glaisdale, referred to the position that I hold at the moment. He will know as well as I that, on occasions, an Attorney-General is entitled to seek the views of colleagues, but it is within his discretion as to whether he takes their views--and it is absolutely within his discretion as to whether he acts upon them. It is the Shawcross doctrine that in many circumstances an attorney will not wish to take the view of his colleagues but in many circumstances he would be a fool not to do so. That is quite blunt language.

I stress that all the issues have been gone into at great length and with great thoroughness, if I may respectfully say so, by the committee of the noble and learned Lord, Lord Nicholls. I think I have answered all the questions that have been raised.

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