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""the previous year income" has the meaning given by section 7(5),"
Page 25, line 17, at end insert "(for the purposes of child tax credit) or by regulations under section 10(4) (for the purposes of working tax credit)"

On Question, amendments agreed to.

On Question, Whether Clause 44 shall stand part of the Bill?

Lord Higgins: It would be helpful with this clause to take all the clauses that are listed in the grouping which is available to the Committee, which suggests that we should leave out not simply Clause 44 but a whole string of other clauses and schedules. This debate seeks to bring out the point to which we have referred on previous occasions; that is, the problems arising with regard to scrutiny of the Government's legislation and, in particular, the way in which your Lordships' House seems now to be assuming the role of the major scrutiniser of government legislation because of the so-called "modernisation programme" that is taking place.

In making my remarks I in no way wish to criticise the other place; I wish to criticise the Government. If one looks at the events that followed the Second Reading of this Bill on 10th December in col. 683 in another place, one will see a heading which appears as "Tax Credits Bill Programme". It then sets out various provisions which shall apply to the Tax Credits Bill. Those were such that the Opposition felt it appropriate to vote against the programming motion. They were, perhaps not surprisingly, defeated by 314 votes to 155, reflecting the size of the Government's majority.

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The reality is that the debate on these matters was so heavily curtailed that, I think without exception, the clauses that I have listed were not debated at all in another place. The matter comes to this House completely raw from that point of view. That is a very serious situation indeed.

The Government are programming the proceedings in a way that in times past would have been regarded as a guillotine. Guillotines have been imposed in the past only when there has been an obvious filibuster from the Opposition, of whatever party, or for some other very extreme reason, as my noble friends who have been in another place will well remember. That was possible only after a full half-day's debate on the need for the guillotine.

The programming of those proceedings, which affect the Bill as it now stands, involved no debate. The Motion was simply moved and the House divided forthwith, so there was no opportunity for the House to debate the matter and suggest that the amount of time that had been made available was inadequate. The programme was very stringent indeed, curtailing very considerably the proceedings in Standing Committee and the consideration on Report, for which it was said that consideration, so far as not previously concluded—that was pretty optimistic—be brought to a conclusion at 9 p.m. on the day on which the proceedings were commenced, or, if that day was a Thursday, at 6 p.m. This Bill has rightly preoccupied your Lordships here in the Committee for a considerable period of time, and is likely to do so again on Report and Third Reading, yet its consideration on Report in the Commons was restricted to a one-day debate terminating at 9 p.m. The Third Reading was also given a very short period of time, to conclude at 10 p.m. on the day on which the proceedings were commenced, or, if it was a Thursday, by 7 p.m. That was a wholly inadequate provision of time.

There is no indication of any filibuster in the report of the Committee and Report stages in another place. On the contrary, Conservatives and Liberal Democrats sought to give the matter reasonable time for the debate and they did not have time available to look at the matter properly. Had they done so, we might not have had what I can only describe as the fiasco with the drafting of the Bill. Inevitably, given the pressures on Ministers, when they know that the Bill is going to be programmed they do not give it the attention that they might otherwise do because they have other priorities. As a result, the serious flaws in the Bill that have been so apparent during the course of our proceedings were not detected until the day before we were scheduled to start our proceedings in this place.

It is also worth noting paragraph (2) of the Commons programme Motion:


    "All proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) shall be programmed."

Given how tight the original programming was, that is a very stringent and inefficient provision. If the Government continue to proceed in that way, despite the efforts of your Lordships' House, the result will be

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badly drafted, inadequately scrutinised legislation, with serious consequences that will result in revision subsequently.

Of course it can be said that the Government's programme is heavy and that restraints on parliamentary time are limiting. However, if one looks along the corridor today, one is bound to say that one does not see an immense amount of activity. The other place is on holiday this week; we are not. Time could have been spent on scrutinising the clauses to which I refer. We shall need to consider, at some stage, whether this has not got out of hand and whether we need to reappraise the way in which Parliament is now being compelled—by the use of a large government majority—to consider legislation.

We could consider various aspects of the individual clauses and no doubt we shall wish to do so when we come to Report stage. However, I shall take only one example, that of Schedule 5, which is included in the list before us. The schedule contains important provisions allowing the disclosure of information which otherwise would be in breach of the Data Protection Act, raising important issues with regard to the Human Rights Act 1998 and whether it is consistent with that legislation. No doubt we shall wish to return to this and other points when we come to our deliberations on Report.

Having said that, one must consider why the Commons did not have an opportunity of raising that matter, along with the various ways in which the Human Rights Act may be contravened despite the attention to the matter given by the Minister herself in her remarks.

This is a reflection of the extent to which the Government are seeking to ride roughshod over the parliamentary process, something which is greatly to be deplored. At some stage we need to reappraise the overall way in which this House is carrying out its duties and the way in which the Government are effecting their procedures in another place.

Earl Russell: I thank the noble Lord, Lord Higgins, for introducing a subject which is, indeed, overdue for consideration. If I may say so, it is something in the region of four centuries overdue for consideration.

The primacy of another place is an historical myth. What happened in 1688 was not that Parliament gained control of the executive, but that the executive, by an increase in its revenue from under £1 million to over £5 million, gained the power of patronage which allowed it to buy a majority in another place. Ever since, another place has come increasingly under the influence of the executive. When people refer, during discussion of the reform of this House, to the primacy of another place, what they really mean is the primacy of Her Majesty's Ministers as rubber stamps in another place. That dependency goes right back to the days of Sir Robert Walpole and probably well before. So this matter is certainly overdue for consideration.

I know perfectly well that large parts of the Bills that come before us have never been considered in another place. The first Bill I considered here, the Education

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Act 1988, dealt with my profession in a great many issues vital to myself and all my colleagues as a matter of survival. Out of 11 amendments I tabled to deal with those issues, only one touched on a clause which had been so much as discussed with a syllable in another place. There is nothing new in the idea that another place does not consider legislation.

That said, I believe the problem does wider than simply the over-aggrandisement of the executive. The amount of business necessarily grows. That has been true for a long time. If one traces the statute book back to its earliest years—except for a blip under Henry VIII when it grew at the same speed as his waistline—it reveals a more or less steady exponential growth, getting faster as time goes by.

The noble and learned Lord, Lord Simon of Glaisdale, had the statistics at his fingertips. I regret to say that I do not. But they are quite important. So something is going on here beyond simply governments accruing more power. Of course, life is getting more complicated and there are more things about which it is necessary to legislate and there are more things which become the responsibility of government—often rightly—and one cannot complain about that.

There are, however, other reasons why the other place produces so much material, a great many of which are, to my mind, extremely persuasively set out in the report of the committee chaired by the noble Lord, Lord Renton—to whom I have often listened with profit and interest on this subject—on the preparation of legislation. That report was delivered in 1974.

The noble Lord, Lord Richard, and the noble Lord, Lord Henderson of Brompton, were members of that committee. It was a high-powered committee. It stressed—the Minister is no doubt very familiar with my arguments but they are worth perhaps a little of the Committee's time—the tendency of governments to legislate in over great detail; the tendency of governments to treat a Bill like a toddler in leading reins and not to let it grow up and develop and take its form as it is shaped through judicial interpretation, but to insist, as the Committee put it, on controlling the interpretation, pre-judging the judgment of the judge in a case which has not yet arisen or been imagined.

That leads to these catch-all clauses which take up much of our time. In a great many cases it leads to an attempt to proceed—the CSA in all its incarnations is a clear example of this—by over-exhaustive, total enumeration of detail. As soon as you attempt to proceed in that way, then you have to have another Act of Parliament in order to undo the last Act of Parliament.

The noble Lord, Lord Bassam of Brighton, remembers this point being made in our discussion on transport regulations in the Chamber. He had the kindness to say that he thought much of what I said was right. This tendency towards over-prescriptive, over-detailed, over-fussy legislation is one which makes the problem of pressure on parliamentary time a great deal worse than it should be. We should be

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prepared to leave a higher proportion of the task of legislation to the judges and to express points instead—as the committee of the noble Lord, Lord Renton, suggested—in terms of a general principle, which could then be applied, interpreted and fitted to the facts of a case—which a draftsman could not possibly foresee because it has not happened—as matters evolve. In that way, the statute wire, as it were, would be carrying a great deal less electric current and it would take up a great deal less time of the House. In that way we might all get on a great deal faster. Meanwhile, until that happy day arrives, it means that this House—equipped with power and teeth—is more essential than ever.

6.00 p.m.

Baroness Hollis of Heigham: I simply refuse to get into a debate, much as I would on another occasion—an Unstarred Question or whatever—about the relative roles and responsibilities of this House to the other. From the two speeches it would appear that the argument is for the House of Lords to increase its duties and responsibilities for scrutiny because, from different positions, both noble Lords seem to think that the House of Commons is defaulting on that same obligation. They seem to be arguing that if the House of Commons Back-Benchers fail to scrutinise the executive then they want a stronger House of Lords in order to do that.

I simply do not accept that argument. It may be regrettable in the eyes of the noble Lord, Lord Higgins, and, for all I know, the noble Earl, Lord Russell, that the Opposition in the House of Commons is not more effective in holding the Government to account than it is. But if that is due to its numbers, that is because of the will of the electorate; and if it is due to its competence, that is because of the will of its own membership. In neither case would it be proper for someone like myself to comment.


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