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Lord Callaghan of Cardiff: I hope they have not forgotten them.

Earl Howe: I am grateful to the noble Lord. If he will allow me to conclude, I believe he will find that I have taken his point on board.

If there were an emergency requiring recall in large numbers, the numbers authorised might be exceeded, and in theory those recalled could not therefore be accepted into service until Parliament had made special provision for them. Noble Lords will appreciate the difficulty that that might create.

The recall powers apply only if it appears to Her Majesty's Government that national danger is imminent, a great emergency has arisen or in the event of an actual or apprehended attack on the United Kingdom. Parliament would then be recalled and would therefore be able to debate any concerns over the numbers of the regular forces. Clearly recall happens only in cases of national emergency and impending attack. I do not believe that the provisions of the Bill are inconsistent with that fact.

On the specific point that the noble Lord made, Parliament has not taken statutory control over the numbers of the regular naval and marine forces, and so they are not mentioned here. The persons concerned in Part VII are not members of the reserve forces but people who are recalled to the regular services.

Lord Bramall: I am extremely confused about this subsection. I do not know whether I should be supporting the amendment of the noble Lord, Lord Williams of Elvel, to leave out subsection (5), or whether it should be left in. This is partly because I do not understand what it means. There should not be any problem as regards the noble Lord's amendment because if there are two bottles--one of the reserves and the other of the regulars--and you take something out

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of the reserve bottle and put it into the regular bottle, one will go down and the other will go up; and presumably at the end the amount is the same.

What worries me--and this is why I am not sure whether I can support the noble Lord's amendment--is that we must be extremely careful that, if these people come across to the regular forces and there is suddenly a surge in regular recruiting, we might for a short time exceed the numbers laid down for the regular Army. Obviously the regular Army was not big enough; otherwise we would not have wanted the reserves in the first place. Therefore someone in the Treasury may start using the word "substitution" instead of "addition". And once there is talk of substitution, we are in dead trouble. It means that recruiting gets turned off and the unit which has accepted reservists is not allowed to recruit the number that it would have needed before it recruited the Territorials.

If subsection (5) allows the regular forces to over-bear for a short period while they have reservists with them, I would approve of it remaining in the Bill. Perhaps the noble Earl can explain exactly what it means. I am still not very clear.

Earl Howe: Clearly there is some confusion here and I will do my best to elucidate. I hope that noble Lords will forgive me if I repeat myself. The individuals dealt with in this part of the Bill are not reservists; they are individuals who are civilians in peace and are not subject to statutory control at all. They are recalled to the regulars. That is very different from the reserve forces who are called out as members of their reserve force. That is why I emphasise that recall is only possible in the most serious crisis. I explained in my opening remarks why the clause was structured as it is to enable us to do this: because persons who are recalled are deemed to be enlisted in the regular services.

Lord Callaghan of Cardiff: On a different point, I am hopelessly out of date I know, but I was surprised to hear that Parliament does not have to give its assent to the numbers of men in the Royal Navy. When I was Parliamentary Secretary in 1950 we used to submit those returns every year. Do we no longer do that? If not, why not?

Earl Howe: My understanding is that Parliament does vote a number, but there is no statutory provision to oblige it to do so.

Lord Callaghan of Cardiff: Good heavens! I wish I had known that a long time ago.

Lord Williams of Elvel: I am grateful to the noble Earl and all who have participated in this debate. I take it, in the light of our previous discussions in Committee about the powers of Parliament to set the numbers of reserve forces, that if and when the Armed Forces Bill comes before your Lordships from another place that may be an argument we will need to have about the regular forces. Were this Committee, or both Houses, to decide that the view of my noble friend Lord Callaghan

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is liable to be set into an Act, then this subsection would be amended accordingly. Am I right in thinking that? I imagine I am.

Earl Howe: Obviously I have not had an opportunity to consult the lawyers, but I would imagine that what he says is correct on the supposition he makes.

Lord Williams of Elvel: This has raised a number of interesting and rather complicated issues. I propose to the Committee that we study rather carefully what the noble Earl said, and, if necessary, come back at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clauses 66 and 67 agreed to.

Clause 68 [Recall for national danger, great emergency or attack on the UK]:

Lord Judd moved Amendment No. 38

Page 38, line 21, after ("Majesty") insert ("on the advice of the Secretary of State").

The noble Lord said: I beg leave to move Amendment No. 38 standing in the names of my noble friends Lord Williams of Elvel and Baroness Turner of Camden and myself. It may be for the convenience of the Committee if I speak to Amendment No. 39 at the same time.

We have debated both of these issues already in our considerations. These amendments are designed to clarify the situation. Under Clause 68(1) Her Majesty would make such an order on the advice of the Secretary of State. So that everybody knows where we stand, it is probably just as well to say so in the Bill. We hope that the noble Earl will now feel able to accept that point.

On the point in Clause 68(10), it is of course the issue on which we finished our last day's proceedings in this Committee. The simple point is that it does not deal with the issue of what would happen if we were in the middle of a General Election. Therefore, to include "if not dissolved" covers the point, although it does not leave us any the wiser as to what would happen if we were in the middle of a General Election. It would be very helpful if at some stage we could hear the noble Earl's views on that. I beg to move.

Earl Howe: Perhaps I may deal first with Amendment No. 38. The amendment would not make any change to the current position. By convention Her Majesty would not act in these circumstances, except on the advice of her Ministers. If the noble Lord cares to look at Clause 68(9) he will see that a recall order must in any event be,

    "signified under the hand of the Secretary of State",

so that in practice that gives effect to the sense of his amendment. I hope the noble Lord will agree with me that the amendment is unnecessary.

Turning to Amendment No. 39, as the noble Lord indicated, we debated around this subject at some length last Thursday. As I said then, in theory if Her Majesty were obliged to make a recall order while Parliament was dissolved, then it is true there would be no

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Parliament to which the making of the order could be reported. But Parliament would not be dissolved without a date being fixed for the sitting of a new Parliament, so it is most unlikely that there would be any substantial interval which would delay reporting the making of the order.

As I said last week, it may also be fair to imagine that we would not be subjected to a national danger or a great emergency without having some warning of it. In those circumstances one presumes that Parliament would not be dissolved.

I say again that I think the problem envisaged by the noble Lord is perhaps more apparent than real. I shall nevertheless reflect on the problem he has posed, as I promised that I would, and if there is any further comfort I can give him, perhaps I may write to him between now and Report stage.

Lord Judd: I thank the noble Earl for his response. I am glad to see there is no issue of principle between us. It seems to me that, while of course I hear what he says about the conventions, for everyone reading the Bill and understanding it, it would be clearer to make plain that Her Majesty acts on the advice of the Secretary of State rather than just to suppose that everyone reading the Bill has constitutional knowledge and information which would cover that point. It is not a major issue, but in a Bill which, as my noble friend Lord Callaghan said, has been drafted with so much care and attention to detail, it is just a pity that this point has not been covered.

On the second point, if the noble Earl will forgive my saying so, I notice that we return to the language of "We presume that things will be in such a fashion or not in such a fashion". Presumption is not a very strong mode of thought in the drafting of legislation. It is much better that legislation should cover foreseeable eventualities, even if they are not very likely. As I always tremendously enjoy receiving letters from the noble Earl, because I find they are written with so much care and attention to detail, I very much look forward to seeing a letter from him on this point before we move forward to the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Clause 68 agreed to.

Clauses 69 to 71 agreed to.

Clause 72 [Period of service and release]:

On Question, Whether Clause 72 shall stand part of the Bill?

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