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Lord Dean of Beswick: My Lords, I should like to draw attention to paragraphs (2) and (3) under heading 1 of the report. Paragraph (2) states that,

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".

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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.

Noble Lords: Oh!

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

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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

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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

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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

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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

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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.

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