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Lord Jenkins of Hillhead: My Lords, the noble Lord, Lord Richard, feels great anger at the way in which the Government are riding rough-shod over the Opposition and over the normal conventions of this House. I in no way dissent from the noble Lord in that respect; indeed, I endorse what he said. However, I feel one emotion which is perhaps even stronger than anger--namely, that of surprise. I feel almost astonishment at the "unwisdom", if their own arguments are accepted, for such extraordinarily small stakes which is being displayed by the Government.
As is well known, there is at present a shadow of uncertainty over the future of your Lordships' House as at present constituted. The desire of the present Government--and no doubt many of their supporters--is to resist change. In those circumstances, I should have thought that tactical prudence alone would have suggested a period of restraint, of keeping the hereditary cavalry as far away as possible from the field of battle and of showing that your Lordships' House is a very special place where we work by mutual accommodation and consideration, where arguments count as least as much as Whips and where time is given for reflection. Yet we have seen, and are seeing, in the splurge of this final fortnight, the reverse of that.
I cannot really understand what dementia has come over this tottering government. I cannot decide whether the noble Viscount the Lord Privy Seal, whose leadership has at times shown a sure touch, is an enthusiastic agent or a reluctant messenger of this foolishness. In any event, it is a sad end. This hot July will, I believe, be looked back on as the weeks of unwisdom for which a heavy price may be paid.
Lord Harmar-Nicholls: My Lords, I do not know what the fuss is about. I am all for the usual channels easing the business of the House through its normal stages. It is a useful practice when it can be agreed. But what does the practice mean when one examines it? It means that a problem of the House is handed over to Members of the three Front Benches. That is what "the usual channels" boils down to. If the Members of the three Front Benches cannot agree, for good or bad reasons, then the usual channels procedure will not work. What is wrong with the whole House making the decision that has to be made?
My noble friend gave reasons for wanting to follow this procedure. I was not impressed with the reasons why the noble Lord, Lord Richard, did not wish to agree on this occasion. But he is entitled to do so. I see no special merit in coming to this House and always handing over decisions to Members of the three Front Benches who sometimes hold views diametrically opposed to what I think are the best interests of the country.
Lord Richard: My Lords, before the noble Lord sits down, perhaps I may put this point to him. He is from time to time a fair minded man. He states that if the usual channels cannot agree then the usual channels cannot agree. I accept that. But if they cannot agree
Lord Harmar-Nicholls: My Lords, that shows how stodgy the noble Lord is. If one can guarantee that all circumstances through every age will be identical, then one can have a book which lays down what one should do. But things change.
I am saying that if a decision is the responsibility of the House, let the House take up its responsibility. It is a pity that Members of the three Front Benches are so awkward within themselves that they cannot sometimes ease something through.
Lord Wallace of Saltaire: My Lords, this morning I was reading some British constitutional history. I began with Dicey, who remarked that constitutional conventions are the constitutional morality of the United Kingdom. The Companion of this House is not to be torn up and thrown away quite so easily if this is indeed an unimportant matter.
I then turned to Ivor Jennings--I had not noted this before--who remarks that there is no basis in the British constitution for resisting a Conservative Government when they wish to act in an authoritarian fashion and can command a majority in both Houses.
I noted last night the admission by the noble Earl, Lord Howe, that he was advised that the defect in the statute was discovered around mid-April--some three months ago. The noble Viscount the Leader of the House tells us that we cannot wait another three months before the matter is rectified. I checked this morning. The background notes which the Office of Public Service kindly provided for the Bill states:
We are told that the Government now wish to rush the matter through, having had an entire Session during which they could have brought it to the House. If that is the case, the arguments for disregarding the Companion and our constitutional conventions simply do not exist.
Lord Skelmersdale: My Lords, I have a vested interest in this matter as a member of your Lordships' representation on the Joint Committee for Statutory Instruments. The noble Lord, Lord Jenkins, rather made my blood boil when he described my noble friend the Leader of the House as acting in a high handed manner for small stakes. As a member of that committee, I do not find these stakes small. It is quite clear to me that the Opposition are labouring under a misapprehension. Indeed, the noble Lord, Lord Richard, confirmed as much last night. He described the Bill as one,
"I have never believed that. I believe it even less tonight".--[Official Report, col. 1364; 23/7/96.]
I am sure that my noble friend the Leader of the House will tell us exactly what the timetable for that was, but I have no doubt in reconciling what we have just heard: that the investigation was started in September and the result as regards this illegality was not discovered until April.
However, to be fair to the noble Lord, Lord Richard, he has a point. But now I must part company with him. This Bill does not privatise the Stationery Office. It stands or falls on its own. Now that the illegality has been discovered, it must be dealt with, and quickly. For the future that is easy. All we have to do is to legislate to allow HMSO to contract out statutory instruments putting their vires beyond doubt. The Bill does just that.
But how do we deal with the very doubtful vires of those thousands of SIs which have been contracted out for printing over the past 30 years? This Bill validates them all retrospectively. I should have thought that it was a rather neat solution.
Lord Skelmersdale: My Lords, it is a neat solution. What is the alternative? During the course of the two debates, last night and now, we have heard no alternative. Are we to reprint the whole wretched lot, stacks of them a mile high? Are they to be the property of the small piece of HMSO which remains in the public sector? No alternative has been offered.
Do we really want those statutory instruments to be open to challenge in the courts? They could be challenged at any time. The noble Lord, Lord Richard, is a lawyer. He surely cannot want that. There is urgency. The challenge could come next week, next month, next year or in 10 years' time. The Government are absolutely right in seeking to remove the danger as soon as humanly possible. If this matter comes to a vote, they will have mine.
Earl Russell: My Lords, I have listened with a great deal of care and interest to the noble Viscount the Lord Privy Seal. I think he understands that for many centuries, practically since the beginning of printing, a document bearing statutory force has been recognised by the mark of the King's printer. If this Government have been so careless of the majesty of the state that they have allowed purportedly statutory instruments to appear in print without that mark, I do not see why they should ask the Opposition to pull their chestnuts out of the fire. It is a little like the behaviour of the young lady who once took her boyfriend to Johannesburg Zoo, threw her glove into the lions' den and said to him, "Go
I can understand the Government's problem. However, there are many different kinds of statutory instruments creating many different types of reaction around the House. I do not understand why we should be asked immediately, by retrospective legislation, which is not to be used lightly, wantonly or unadvisedly, to validate the lot. The noble Lord, Lord Skelmersdale, asked whether we are expected to reprint the whole lot. The principle on which I brought up my children is that you clear up your own mess. I commend that principle to the Government.
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