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Lord Mottistone: If we are going back to the Civil War, does that mean that the Queen has nothing to do with her armed forces and regiments of which she and her family are in many cases colonel in chief. It seems to me very unsuitable to carry on the traditions of Oliver Cromwell--if that is the origin--at this late date. I have never met another Bill which talks about Parliament and the authority of both Houses in quite such terms. I believe there is a case for amendment, although perhaps not in the short run.

Lord Williams of Elvel: I am grateful to the noble Lord, Lord Mottistone, because that is precisely the point I am making. I believe that the expression "Parliament" does derive from some Bill or other put forward by the Lord Protector for whom I have a high regard in history but whose legacy we perhaps need now, in the 20th century--indeed, coming up to the 21st--to look at again. If there is something called Parliament, personally I would like to see an expression of how Parliament authorises these things and have the position brought into line with other legislation so that we get away from the legacy of the Lord Protector, however much I admire him.

Earl Howe: I am grateful to the noble Lord, Lord Williams for airing the issue. It has been an extremely interesting debate. I do, however, have a major difficulty with the amendments, which I will explain. Control of the maximum numbers of the reserve forces is inextricably bound up with the voting of sums of money for the maintenance of the armed forces. The statutory authority for the numbers of the reserve forces and expenditure on them is the Appropriation Act, a supply measure which, by convention, is not debated in your Lordships' House.

Lord Williams of Elvel: If I may interrupt the noble Earl, if that is the case I am perfectly happy with authorisation by the House of Commons. If it is a supply matter, a matter of money, then I am perfectly happy that the House of Lords, this House, understands that it is the House of Commons that deals with supply. Nevertheless, the Bill here, as drafted, refers to "Parliament" and, as I understand it, that means the Parliament of the two Houses.

Earl Howe: The term "Parliament" is defined in this context by "the laying of documents before Parliament (Interpretation) Act 1948" as meaning both Houses. The amendment, and Amendment No. 33 which alludes to this question as well, would lead to confusion over the meaning of the term when used elsewhere in the Bill and indeed in other legislation. The central point is that the Appropriation Act is a supply measure which, by

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convention, is not debated in your Lordships' House. This amendment, if it were accepted, would effect a major constitutional change and I suggest that this Bill would not be an appropriate vehicle for that.

If I may just clarify a point that was raised by my noble friend, the armed forces are governed by a mixture of the Royal prerogative and statute, and that is the exercise of the authority of both Crown and Parliament. It is not a question of living in the age of the Lord Protector. We have brought the law up to date and I believe that it is fairly reflected in the procedures that are now adopted.

Lord Shaughnessy: Will the Minister explain why in Clause 3(1) Parliament is the operative word, and then in Clause 4(1) it is Her Majesty's name that appears? Is there some distinction between these two clauses?

Earl Howe: The noble Lord's question refers directly to the point that I have just made. It directly reflects the mixture of authorities that apply to the armed forces, namely, the Royal prerogative and statute. That is the reason for the difference.

Lord Williams of Elvel: I still have not had an explanation from the noble Earl about how Parliament fixes these numbers. The noble Earl says that it is a matter of supply and therefore it is a matter for the House of Commons, but Parliament is more than just the House of Commons--it is the House of Commons and the House of Lords. Indeed, every year we have a debate on the Defence Estimates and there is a Motion to approve the Defence Estimates. Presumably that is not a supply Motion which is being approved or disapproved as the case may be. The White Paper is produced by the Ministry of Defence, by the Secretary of State, and I cannot see why the numbers of the reserved forces should not be incorporated into such a Motion.

It is not a question of supply, in my view, but if it is a question of supply then I do not see why we should not have a slightly different procedure in either House of Parliament. All I am doing is raising the question, which I hope the noble Earl will take seriously, that I do not believe that Clause 3 of this important Bill, which begins "Parliament", without any definition of how Parliament arrives at the definition, is a very satisfactory position for us to be in.

Earl Howe: I accept that the Appropriation Act is enacted with the consent of the Lords Spiritual and Temporal. The actual mechanics of setting the numbers of the armed forces is this: there is a Motion under Standing Order 52 in another place with the Spring Supplementary Estimates--that is how it is done.

Lord Williams of Elvel: I am grateful to the noble Earl for his explanation. I believe that it is something that we will have to take up at a different stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Orders and regulations concerning the reserve forces]:

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Lord Williams of Elvel moved Amendment No. 4:

Page 2, leave out line 20.

The noble Lord said: I beg to move Amendment No. 4, standing in my name and that of my noble friends. I have also put down a Motion to oppose Clause 4 stand part, but I think it is appropriate that it should be grouped with the amendment that I am now putting forward, because essentially, the point is: does Clause 4, as drafted, override any of the provisions of Clause 3? The noble Lord, Lord Shaughnessy, quite rightly pointed out in the previous discussion that Parliament does something and then Her Majesty in Clause 4 does something else, obviously under the hand of the Secretary of State. Furthermore, Her Majesty may, under the hand of the Secretary of State, make orders with respect to,

    "(b) all other matters and things relating to that force".

In other words, as I read the Bill, whatever Parliament may decide about the numbers and this, that and the other, there may be an order by Her Majesty, signified under the hand of the Secretary of State, changing all that--which gets back to the Royal prorogative about which the noble Earl spoke so eloquently earlier.

I just ask myself, and I ask the Committee: is this really a sensible way to proceed? I recognise that I am trespassing perhaps on territory that is more properly dealt with in the Armed Forces Bill than in the Reserve Forces Bill which is before this Committee. Nevertheless, there seems to me a conflict here between the Royal prerogative and Parliament. I should be grateful if the noble Earl could explain to me exactly how that conflict should be resolved. I beg to move.

Earl Howe: The short answer to the noble Lord, Lord Williams, is that the Bill has to be read as a whole. The effect of this amendment would be to narrow the scope of the power set out in Clause 4. That power, as expressed in the Bill, is necessarily wide. It is not possible to anticipate and specifically provide for all the circumstances in which the power will be needed. Were one to go down the route that he has suggested through the amendment, the clause would be left as far too narrow to permit orders and regulations to be made under some of the other provisions in the Bill which rely on Clause 4.

Lord Williams of Elvel: Will the noble Earl explain why it should not be made more narrow? Why should it be so broad?

Earl Howe: I am trying to do that and, with great respect to the noble Lord, I hope that he will allow me to do so. An example of this is the form of declaration of employment status in Clauses 29 and 30. But it is worth noting that the power in Clause 4 is not totally unfettered. It is limited by its context as indicated by paragraph (a) of subsection (1). The most important rights of reserves, such as the right to early discharge under Clause 16, are set out on the face of the Bill and they could not be altered by regulations. For what it is worth--and I anticipate the noble Lord's response--the powers in Clause 4 are well precedented and we should bear in mind that the Delegated Powers Scrutiny Committee accepted in its report of 13th December that

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the delegation of powers in Clause 4 is not inappropriate. That in itself should be sufficient assurance for the noble Lord to be content with the Bill as drafted, but I am sorry if he is not. I come back to the point that I made at the beginning: the Bill has to be read as a whole. It is not a question of one part competing against another. One has to see the broad context in which each part is written.

4 p.m.

Lord Williams of Elvel: I am grateful to the noble Earl as far as he goes. I find the whole construction of the Bill to be somewhat flawed in terms of the modern day society and in terms of the constitutional monarchy and relations with Parliament that we have today. The noble Earl anticipated my response. The fact that this is precedented in previous legislation and hallowed in history does not seem to me to be a good reason why the Committee should not scrutinise it with the accuracy which your Lordships normally do.

To be honest, I find that explanation somewhat odd. Nevertheless, I accept that the noble Earl has looked very carefully at the matter because these were points which we discussed some time ago. I do not want to use the nautical expression "rock the boat" too much. I am prepared to accept that the Government may have a point, but nevertheless I hope that into the thinking of the Government machine may be fed the thought that perhaps we ought to bring this kind of legislation up to date with modern circumstances, rather than just simply rely on precedent.

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