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Lord Higgins: I support Amendment No. 14 moved by my noble friend Lord Elton. I support the views expressed by my noble friend who has just spoken.

I did not intend to speak in this debate. I am perhaps a little prejudiced in some ways after 33 years in another place and having chaired the Procedure Committee there on a number of occasions and been chairman for well over a decade of the Liaison Committee which co-ordinates the Select Committees. However, I am somewhat puzzled—perhaps the noble and learned Lord the Leader of the House can help me—by the way in which we are proceeding. For example, I am not clear why it is that we have before us only the extracts from the minutes of the proceedings of the committee rather than the whole proceedings. I am not clear why, as I would normally expect, the evidence was not printed with the report or at least made available to the House. There clearly was some evidence, as one of the amendments refers to the memorandum by my noble friend Lord Norton of Louth.

I am also not clear what some of the amendments made are. I leave on one side the fact that in one Division it was said that there were Contents 2, Not-Contents 21, when the list of Not-Contents was 22; whether it was 21 or 22 I do not know. At all events, it is not clear at the end of the annex where it says that,

what the amendments were—we have no idea.

That brings me to my main point: it is resolved that the report as amended be the report of the committee. What we are doing today is amending the report of that committee, but the committee has already agreed what the report is. I would have expected today that a

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Motion would have been tabled to agree with the report or to disagree with some parts of it and that amendments would be moved to agree or disagree with it. Surely it is common sense that we cannot amend the report of the committee which, in the clearest possible terms, has been decided on as the committee's report? We are not the committee; we are the whole House. I hope that the Minister can help me on that issue.

Having said that, I support strongly the amendment in the light of the experience a few days ago on the Tax Credits Bill. It arrived from another place in an appalling state. It had been programmed all the way through, and understandably in those circumstances, as the Opposition know that they cannot deal with all the detail in the time allocated, they make general points.

Particularly worryingly, the Bill arrived in this House in such a state that a huge number of amendments had to be tabled by the Government the night before we were due to go into Grand Committee. We had to delay the Grand Committee because they were tabled so late. It was clear not only that the other place had not looked at the Bill in detail, but also that the Minister herself did not understand it, and, as became apparent in the proceedings in this House, did not understand that it was completely unworkable in the way it came to this House from another place.

We then sat in Grand Committee. For the reasons set out in my noble friend's amendment, the procedures in Grand Committee are highly unsatisfactory. The Opposition cannot move amendments and vote on them, but if a government amendment is moved, unless one objects to it, it goes into the Bill. The effect is that unless one objects all the way through to a series of amendments—which effectively aborts the whole procedure in Grand Committee—then, if one wants to return to those points on Report, one has to table an amendment to reverse what went through on the nod in Grand Committee. That is a totally unsatisfactory situation.

If some clauses in a Bill are controversial, then, for the reasons set out by my noble friend Lord Jenkin of Roding, we should divide the Bill so that the controversial clauses are taken on the Floor of the House. They should not be taken in Grand Committee upstairs, where the situation is completely wrong. In responding to the debate, I hope that the Leader of the House will accept these overwhelming arguments and agree to my noble friend's amendment.

Lord Brooke of Sutton Mandeville: My name is attached to Amendment No. 14 in support of my noble friend Lord Elton. Unlike my noble friend Lord Higgins, who has made a qualitative speech, mine will be essentially quantitative. It was as a consequence of a speech of mine on the Nationality, Immigration and Asylum Bill that my noble friend Lord Elton took an interest in the subject. I have established a self-denying ordinance that I would allude only once during the Committee stage of any Bill to the fact that we were dealing with clauses that had not been debated in the House of Commons.

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The issue arose originally on the Education Bill, when it was a matter of some importance. A number of inter-related clauses had gone undebated, so we had no report of the Government's view of the connections between them. Before we broke this evening to consider Commons amendments to the Education Bill, the noble and learned Lord the Lord Privy Seal said that he had marked up the Justice (Northern Ireland) Bill with the initials "ND" against clauses. I inferred that stood for "not debated". There were certainly a number of such clauses in that Bill as well.

I have not done an exhaustive trawl of all the Bills that we have considered lately because it is self-evident under the programme Motions that the Government have in the Commons that great chunks of Bills will arrive in front of us undebated.

The case that I used as my bisque on the Nationality, Immigration and Asylum Bill was that at the end of the proceedings, when the Commons had run out of time under the programme Motion, there were 27 clauses still waiting to be debated. None of those clauses was debated in the Commons before the Bill came to us. Of those, eight had government amendments tabled to them, so there was clearly something to say about them. There were another 10 to which no amendments had been tabled, so one might make a reasonable assumption that they were not controversial. However, there were a further nine government new clauses that had been prepared in Committee in the Commons—which lasted for only 10 sittings—one of which was amended on Report, but not debated at that stage. We found ourselves discussing an important clause in Committee—I acknowledge that we were in Committee and not in Grand Committee, but the principle still applies—that had gone wholly undebated in the Commons and took a long time in this House. Had we been in Grand Committee, we would not have been discussing it in the way we did on the Floor of the House. There has been an alliance between the noble Lord, Lord Elton, and I to get the issue addressed. If such clauses are taken in Grand Committee, only when they arrive on Report will there be an opportunity in this House to vote on them.

As the preamble or prolegomenon to our recommendation states, that is an unsatisfactory way of dealing with a controversial issue.

Lord Campbell of Alloway: I apologise to the Committee for not being in my place when the amendment was moved, for not readily excusable reasons. I support it because it is relevant to the Motion that I have to move tomorrow after Question Time.

Lord Williams of Mostyn: The answer to the question of the noble Lord, Lord Jenkin of Roding, is yes, I confirm the observation to which he referred in paragraph 20. The answers to the questions of the noble Lord, Lord Higgins, are: the complete minutes are available in the Library; neither the working group nor the Procedure Committee took formal evidence of the sort that is normally printed with reports; the procedure that we have adopted today—I do not know

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whether the noble Lord was in his place at the time—is the result of a helpful suggestion made by the noble Lord, Lord Lucas, which I was happy to adopt and commend to the House, which agreed it without Division.

Lord Higgins: It may have been thought helpful to proceed in this way. It is too late to change it now. However, surely it is not a sensible way of proceeding. It is blatantly clear that we cannot amend the report of the committee. We ought to have a Motion to approve it and we could then agree or disagree with that approval. We cannot have a report of a committee and then try to change it as a report of the committee. It is not a report of the committee in those circumstances.

Lord Williams of Mostyn: I understand what the noble Lord says, but we had this discussion at about ten past three and approximately seven hours have now passed.

Lord Higgins: Can the noble and learned Lord explain why we should presumably treat this as a precedent so far as concerns future occasions?

Lord Williams of Mostyn: It is quite usual to do so and I believe that everyone understands what will happen. The proposals that are accepted will be put into effect. If any are defeated, they will not be put into effect.

Our duty here is to carry out our own work of scrutiny irrespective of what the Commons have done. Indeed, parts of the Justice (Northern Ireland) Bill had not been discussed in the Commons. We discussed them extremely fully, and everyone who participated in the proceedings on that Bill believed that we had done extremely well in that regard.

It is not our job to pass judgment on the quality of scrutiny in the Commons. We do not consider procedurally, but I accept that we consider politically whether scrutiny has occurred in the Commons. If, for example, excellent scrutiny had taken place in the Commons, would we then limit our scrutiny here? I think not.

There are many opportunities to consider a Bill. I quite understand that some of your Lordships do not like the idea of Grand Committees, but that is a different issue. What is said here is that, for whatever reason in whatever circumstance, if a clause has not been previously considered in a Commons Committee, it should automatically be committed to a Committee of the Whole House. I do not myself consider that to be a wise way in which to proceed.

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