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Clause 5

Volume 897: debated on Monday 4 August 1975

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Rate Of Child Benefit

Lords amendment: No. 1, in page 3, line 29, leave out "shall" and insert "may".

6.20 p.m.

I beg to move, That this House doth agree with the Lords in the said amendment.

With this amendment we are to take the following:

Lords amendments Nos. 2 and 6.

These three amendments, which firmly establish the Government's commitment to the principle of variation in rates of child benefit, merely put into an appropriate form the amendments tabled by my hon. Friend the Member for Stockport, North (Mr. Bennett) on Report. At that time, when accepting my hon. Friend's amendments, we explained that they were technically defective and would need revision in another place. I am advised that the amendments as redrafted have the precise meaning and the same degree of force as the original amendments. I hope they will commend themselves to the House.

I should inform the House that privilege is involved in Lords amendment No. 1.

My hon. Friends and I are thoroughly confused by the action of the Government in connection with Lords amendment No. 1, and indeed its predecessors. To describe what they have done as a series of somersaults would be flattering, because to perform somersaults requires a certain amount of agility. It would be more correct to say that what they have done is, tediously and incoherently, execute a series of U turns.

The Lords amendment to which we are invited to agree relates to Clause 5(2). This deals with age-related benefits. As the subsection was sent to this House, it read:
"Different rates may be prescribed in relation to different cases, whether by reference to the age of the child in respect of whom the benefit is payable or otherwise."
Hon. Members thought that that wording did not ascribe a sufficient degree of urgency into the introduction of age-related benefits, and six amendments were discussed in Standing Committee A on 19th June. There was one vote, on an Opposition amendment, and it was defeated.

The Committee discussed Amendment No. 24 in the names of the hon. Members for Stockport, North (Mr. Bennett) and Walsall, South (Mr. George) which proposed that the word "may" be deleted and the word "shall" substituted. This would have reflected a higher degree of urgency to introduce age-related benefits. The hon. Member for Stockport, North said:
"Will he look, therefore, at Amendment No. 24? I am advised that, in legal terms, the substitution of 'shall' for 'may' is not so important. But will he consider on Report, agreeing to the strengthening of Clause 5 to provide that different rates 'shall' be prescribed instead of that different rates 'may' be prescribed? "—[Official Report, Standing Committee A; 19th June 1975, c. 106–7.]
In the winding-up speech to that debate is was never suggested that the amendment was technically defective. Normally that is a Minister's first line of defence, but it was not deployed on that occasion. Instead the Minister fell back on his second line of defence and said that if he entered into detailed discussions and consultations with his hon. Friends who had put forward such a firm view for which he had infinite respect and sympathy, perhaps they would be courteous enough to withdraw the amendment. His hon. Friends obliged. The Committee heaved. The Committee whip heaved a sigh of relief and the Committee moved on to Amendment No. 25.

Before Report, discussions and consultations clearly took place, because when the Report stage of the Bill was taken on 7th July Amendment No. 24 reappeared, this time under the alias of Lords amendment No. 6. It was called with Amendment No. 7, which gave the Secretary of State the privilege of appointing the day on which age-related benefits were to be paid. Amendments Nos. 6 and 7 proved to be acceptable to the Minister because he said:
"…I am certainly prepared to accept Amendments Nos. 6 and 7 in the name of my hon. Friend the Member for Stockport, North as a means of providing reassurance, not just to the House but to interested organisations outside, that it is not intended to continue with flat-rate benefit indefinitely."
The Minister then went on to make a rather curious statement:
"The amendments as drafted are defective."
This is curious because the Minister had had discussions with his three hon. Friends between the Committee and Report stages but he had not apparently been able to furnish them with an amendment which was not defective. This strikes me as curious because so far as other Bills are concerned, when Opposition amendments have been acceptable the Minister has made sure that the amendments were not technically defective, and I am surprised that he does not render the same service to his hon. Friends as he renders to the Opposition.

The Minister went on to say:
"I understand that the draftsmen will need to improve on my hon. Friend's efforts. But I am prepared to accept them this evening hoping that my hon. Friend will understand that they will need revision in another place."—[Official Report, 7th July 1975; Vol. 895, c. 231.]
The House therefore amended the clause, "may" was deleted and "shall" was inserted.

The Bill then passed to the other place and we on this side of the House waited with bated breath to see how that word "shall" was to be made legitimate. But in another place the Government amendment was to delete the word "shall" and to insert the word "may"—a stroke of breathtaking ingenuity, which rendered totally redundant the amendment which the Government and the Opposition accepted on 7th July.

Moving the Government amendment. Lord Wells-Pestell said:
"The amendments put into an appropriate form amendments made in another place which, although acceptable in principle to the Government, were technically defective."
However, their Lordships were not so gullible as to fall for this, and Baroness Elles said:
"I feel that the amendment does not seem to be quite in the spirit of the reply given in another place that 'shall' is to replace 'may' in the Bill…"
Lord Banks agreed and Lord Wells-Pestell was under some pressure—

Order. Is the hon. Gentleman quoting what was said in another place?

I am afraid that the hon. Gentleman has come to the end of his quotation because Ministers only may be quoted from another place.

I apologise for inadvertently quoting someone whom I should not have quoted. I will endeavour to complete my oration without relying on my hon. Friends.

Lord Wells-Pestell, who is in the unhappy position of being a Minister, said:
"I am advised that it is much more appropriate to use the word 'may' than the word 'shall'. I recognise the force of 'shall', but we are advised that' may' is the more appropriate word."—[Official Report, House of Lords, Vol. 363, c. 535–8.]
With all respect to the noble Lord, that is hardly a compelling argument. In both Houses we have been told that "shall" is technically defective but we have never been told why. The Government must do better today than merely say that "shall" is defective. If one goes through the Bill I doubt whether one finds any word appearing quite so often as the word "shall", apart possibly from the word "regulations." I accept that another amendment inserted in another place, namely Lords amendment No. 2, is relevant to our deliberations. This amendment says:

Division No. 318.]


[6.30 p.m.

Allaun, FrankBid well, SydneyCallaghan, Rt Hon J. (Cardiff SE)
Anderson, DonaldBishop, E. S.Callaghan, Jim (Middleton & P)
Archer, PeterBlenkinsop, ArthurCampbell, Ian
Armstrong, ErnestBooth, AlbertCanavan, Dennis
Atkins, Ronald (Preston N)Boothroyd, Miss BettyCant, R. B.
Atkinson, NormanBottomley, Rt Hon ArthurCarmichael, Neil
Bagler, Gordon A. T.Boyden, James (Bish Auck)Carter-Jones, Lewis
Barnett, Guy (Greenwich)Bradley, TomCartwright, John
Bates, AltBrown, Hugh D. (Provan)Castle, Rt Hon Barbara
Bean, R. E.Buchan, NormanClemitson, Ivor
Benn, Rt Hon Anthony WedgwoodBuchanan, RichardCohen, Stanley
Bennett, Andrew (Stockport N)Butler, Mrs Joyce (Wood Green)Coleman, Donald

"The power to prescribe different rates under subsection (2) shall be exercised as to bring different rates into force on such day as the Secretary of State may by order specify."

This, however, is not good enough because the power referred to is permissive and not mandatory. We on this side of the House find ourselves in the strange position of defending an amendment which the Government accepted three weeks ago from one of their own back benchers. We are happy to have this opportunity, and we propose to resist Lords amendments Nos 1 and 2.

I assume from the comprehensiveness of the hon. Gentleman's speech that he is practising to write the definitive biography of the new leader of his party. I think, however, that we should be grateful for his putting on the record in considerable detail the history of this affair.

All I would say is that, of course, it is the case that "may" is replaced by "shall" in Lords amendment No. 1. On the other hand, the word "shall" appears clearly in Lords amendment No. 2. The total result of all the amendments which we are discussing is to provide in proper legal form everything which my hon. Friend was putting forward in his amendment. We have, therefore, given the assistance of the Government draftsman to ensuring that this Bill, when it completes its parliamentary process, should be in the correct legal language. Nothing has changed except drafting since the Bill was in another place, and I do not know what the hon. Gentleman is making such a fuss about.

Question put, That this House doth agree with the Lords in the said amendment:—

The House divided: Ayes 261, Noes 251.

Colquhoun, Mrs MaureenJackson, Colin (Brighouse)Prescott, John
Concannon, J. D.Jackson, Miss Margaret (Lincoln)Price, C. (Lewisham W)
Conlan, BernardJanner, GrevillePrice, William (Rugby)
Cook, Robin F. (Edin C)Jay, Rt Hon DouglasRadice, Giles
Corbett, RobinJeger, Mrs. LenaRichardson, Miss Jo
Cox, Thomas (Tooting)Jenkins, Hugh (Putney)Roberts, Albert (Normanton)
Craigen, J. M. (Maryhill)Johnson, James (Hull West)Roberts, Gwilym (Cannock)
Cronin, JohnJohnson, Walter (Derby S)Robertson, John (Paisley)
Crosland, Rt Hon AnthonyJones, Alec (Rhondda)Rodgers, George (Chorley)
Cunningham, G. (Islington S)Jones, Barry (East Flint)Rooker, J. W.
Cunningham, Dr J. (Whiteh)Jones, Dan (Burnley)Roper, John
Dalyell, TamJudd, FrankRyman, John
Davidson, ArthurKaufman, GeraldSandelson, Neville
Davies, Bryan (Enfield N)Kelley, RichardSedgemore, Brian
Davies, Denzil (Llanelli)Kerr, RussellSelby, Harry
Davies, Ifor (Gower)Kilroy-Silk, RobertShaw, Arnold (Ilford South)
Davis, Clinton (Hackney C)Lamborn, HarrySheldon, Robert (Ashton-u-Lyne)
Deakins, EricLamond, JamesShore, Rt Hon Peter
Dean, Joseph (Leeds West)Latham, Arthur (Paddington)Short, Rt Hon E. (Newcastle C)
Delargy, HughLee, JohnShort, Mrs Renée (Wolv NE)
Dell, Rt Hon EdmundLestor, Miss Joan (Eton & Slough)Silkin, Rt Hon John (Deptford)
Dempsey, JamesLever, Rt Hon HaroldSilkin, Rt Hon S. C. (Dulwich)
Dormand, J. D.Lewis, Arthur (Newham N)Sillars, James
Douglas-Mann, BruceLewis, Ron (Carlisle)Silverman, Julius
Duffy, A. E. P.Litterick, TomSkinner, Dennis
Dunn, James A.Loyden, EddieSmall, William
Dunnett, JackLuard, EvanSmith, John (N Lanarkshire)
Dunwoody, Mrs GwynethLyon, Alexander (York)Snape, Peter
Eadie, AlexLyons, Edward (Bradford W)Spearing, Nigel
Edge, GeoffMcCartney, HughSpriggs, Leslie
Edwards, Robert (Wolv SE)MacFarquhar, RoderickStallard A. W.
Ellis, John (Brigg & Scun)Mackenzie, GregorStewart, Rt Hon M. (Fulham)
Ellis, Tom (Wrexham)Maclennan, RobertStott, Roger
English, MichaelMcMillan, Tom (Glasgow C)Strang, Gavin
Evans, Fred (Caerphilly)Madden, MaxStrauss, Rt Hon G. R.
Evans, Ioan (Aberdare)Magee, BryanSummerskill, Hon Dr Shirley
Evans, John (Newton)Mahon, SimonSwain, Thomas
Ewing, Harry (Stirling)Mallalieu, J. P. W.Taylor, Mrs Ann (Bolton W)
Faulds, AndrewMarks, KennethThomas, Mike (Newcastle E)
Fitch, Alan (Wigan)Marquand, DavidThomas, Ron (Bristol NW)
Flannery, MartinMarshall, Dr Edmund (Goole)Tinn, James
Fletcher, Ted (Darlington)Marshall, Jim (Leicester S)Tomlinson, John
Foot, Rt Hon MichaelMason, Rt Hon RoyTomney, Frank
Forrester, JohnMaynard, Miss JoanTorney, Tom
Fowler, Gerald (The Wrekin)Meacher, MichaelTuck, Raphael
Fraser, John (Lambeth, N'w'd)Mellish, Rt Hon RobertUrwin, T. W.
Garrett, John (Norwich S)Mendelson, JohnVarley, Rt Hon Eric G.
Garrett, W. E. (Wallsend)Mikardo, IanWainwright, Edwin (Dearne V)
George, BruceMillan, BruceWalden, Brian (B'ham, L'dyw'd)
Gilbert, Dr JohnMiller, Dr M. S. (E Kilbride)Walker, Harold (Doncaster)
Ginsburg, DavidMiller, Mrs Millie (Ilford N)Walker, Terry (Kingswood)
Gould, BryanMitchell, R. C. (Soton, Itchen)Ward, Michael
Gourlay, HarryMolloy, WilliamWatkins, David
Graham, TedMoorman EricWatkinson, John
Grant, George (Morpeth)Morris, Charles R. (Openshaw)Weetch, Ken
Grocott, BruceMoyle, RolandWeitzman, David
Hamilton, W. W. (Central Fife)Mulley, Rt Hon FrederickWellbeloved, James
Hardy, PeterMurray, Rt Hon Ronald KingWhite, Frank R. (Bury)
Harper, JosephNewens, StanleyWhite, James (Pollok)
Harrison, Walter (Wakefield)Ogden, EricWhitehead, Phillip
Hart, Rt Hon JudithO'Halloran, MichaelWhitlock, William
Hatton, FrankO'Malley, Rt Hon BrianWilley, Rt Hon Frederick
Hayman, Mrs HeleneOrbach, MauriceWilliams, Alan (Swansea W)
Heffer, Eric S.Orme, Rt Hon StanleyWilliams, Alan Lee (Hornch'ch)
Hooley, FrankOvenden, JohnWilliams, Rt Hon Shirley (Hertford)
Horam, JohnOwen, Dr DavidWilliams, W. T. (Warrington)
Howell, Dennis (B'ham, Sm H)Padley, WalterWilson Alexander (Hamilton)
Hoyle, Doug (Nelson)Palmer, ArthurWilson, William (Coventry SE)
Huckfield, LesPark, GeorgeWise, Mrs Audrey
Hughes, Rt Hon C (Anglesey)Parker, JohnWoodall, Alec
Hughes, Mark (Durham)Parry, RobertWoof, Robert
Hughes, Robert (Aberdeen N)Pavitt, LaurieWrigglesworth, Ian
Hughes, Roy (Newport)Pearl, Rt Hon FredYoung, David (Bolton E)
Hunter, AdamPendry, TomTELLERS FOR THE AYES:
Irvine, Rt Hon Sir A. (Edge Hill)Perry, ErnestMr. David Stoddart and
Irving, Rt Hon S. (Dartford)Phipps, Dr ColinMr. James Hamilton.


Adley, RobertGrant, Anthony (Harrow C)Mudd, David
Aitken, JonathanGray, HamishNeave, Airey
Alison, MichaelGriffiths, EldonNelson, Anthony
Amery, Rt Hon JulianGrist, IanNeubert, Michael
Arnold, TomGrylls, MichaelNewton, Tony
Atkins, Rt Hon H. (Spelthorne)Hall, Sir JohnNormanton, Tom
Awdry, DanielHall-Davis, A. G. F.Nott, John
Bain, Mrs MargaretHamilton, Michael (Salisbury)Onslow, Cranley
Baker, KennethHampson, Dr KeithOppenheim, Mrs Sally
Banks, RobertHannam, JohnPage, John (Harrow West)
Beith, A. J.Harrison, Col Sir Harwood (Eye)Page, Rt Hon P. Graham (Crosby)
Bell, RonaldHastings, StephenPaisley, Rev Ian
Benyon, W.Havers, Sir MichaelPardoe, John
Biffen, JohnHawkins, PaulPattie, Geoffrey
Biggs-Davison, JohnHayhoe, BarneyPenhaligon, David
Blaker, PeterHenderson, DouglasPercival, Ian
Body, RichardHeseltine, MichaelPeyton, Rt Hon John
Boscawen, Hon RobertHolland, PhilipPink, R. Bonner
Bottomley, PeterHordern, PeterPrice, David (Eastleigh)
Bowden, A. (Brighton, Kemptown)Howe, Rt Hon Sir GeoffreyPrior, Rt Hon James
Boyson, Or Rhodes (Brent)Howell, David (Gulldford)Pym, Rt Hon Francis
Braine, Sir BernardHowell, Ralph (North Norfolk)Raison, Timothy
Brittan, LeonHunt, JohnRathbone, Tim
Brocklebank-Fowler, C.Hurd, DouglasRees, Peter (Dover & Deal)
Brotherton, MichaelHutchison, Michael ClarkRenton, Rt Hon Sir D. (Hunts)
Brown, Sir Edward (Bath)Irvine, Bryant Godman (Rye)Renton, Tim (Mid-Sussex)
Bryan, Sir PaulIrving, Charles (Cheltenham)Rhys Williams, Sir Brandon
Buchanan-Smith, AlickJames, DavidRidley, Hon Nicholas
Buck, AntonyJenkin, Rt Hon P. (Wanst'd & W'dt'd)Ridsdale, Julian
Budgen, NickJessel, TobyRifkind, Malcolm
Bulmer, EsmondJohnson Smith, G. (E Grinstead)Roberts, Michael (Cardiff NW)
Carlisle, MarkJones, Arthur (Daventry)Roberts, Wyn (Conway)
Carr, Rt Hon RobertJopling, MichaelRodgers, Sir John (Sevenoaks)
Carson, JohnKershaw, AnthonyRoss, Stephen (Isle of Wight)
Chalker, Mrs LyndaKimball, MarcusRossi, Hugh (Hornsey)
Channon, PaulKing, Evelyn (South Dorset)Rost, Peter (SE Derbyshire)
Churchill, W. S.King, Tom (Bridgwater)Royle, Sir Anthony
Clark, Alan (Plymouth, Sutton)Kirk, PeterSainsbury, Tim
Clark, William (Croydon S)Knight, Mrs JillSt. John Stevas, Norman
Cockcroft, JohnKnox, DavidScott, Nicholas
Cooke, Robert (Bristol W)Lane, DavidShaw, Giles (Pudsey)
Cope, JohnLangford-Holt, Sir JohnShaw, Michael (Scarborough)
Cordle, John H.Latham, Michael (Melton)Shelton, William (Streatham)
Cormack, PatrickLawrence, IvanShepherd, Colin
Corrie, JohnLawson, NigelSilvester, Fred
Costain, A. P.Le Marchant, SpencerSims, Roger
Critchley, JulianLester, Jim (Beeston)Sinclair, Sir George
Davies, Rt Hon J. (Knutsford)Lewis, Kenneth (Rutland)Skeet, T. H. H.
Dean, Paul IN. Somerset)Lloyd, IanSmith, Cyril (Rochdale)
Douglas-Hamilton, Lord JamesLuce, RichardSmith, Dudley (Warwick)
Drayson, BurnabyMcAdden, Sir StephenSpeed, Keith
Durant, TonyMecCormick, IainSpence, John
Dykes, HughMcCrindle, RobertSpicer, Michael (S Worcester)
Eden, Rt Hon Sir JohnMacfarlane, NeilSproat, Iain
Edwards, Nicholas (Pembroke)MacGregor, JohnStainton, Keith
Elliott, Sir WilliamMacmillan, Rt Hon M. (Farnham)Stanbrook, Ivor
Emery, PeterMcNair-Wilson, M. (Newbury)Stanley, John
Eyre, ReginaldMcNair-Wilson, P. (New Forest)Steel, David (Roxburgh)
Fairbairn, NicholasMadel, DavidSteen, Anthony (Wavertree)
Fell, AnthonyMarshall, Michael (Arundel)Stewart, Donald (Western Isles)
Finsberg, GeoffreyMarten, NeilStokes, John
Fisher, Sir NigelMates, MichaelTaylor, R. (Croydon NW)
Fletcher, Alex (Edinburgh N)Mather, CarolTaylor, Teddy (Cathcart)
Fletcher-Cooke, CharlesMaude, AngusTebbit, Norman
Fookes, Miss JanetMaudling, Rt Hon ReginaldTemple-Morris, Peter
Fowler, Norman (Sutton C'f'd)Mawby, RayThatcher, Rt Hon Margaret
Fox, MarcusMaxwell-Hyslop, RobinThomas, Rt Hon P. (Hendon S)
Freud, ClementMayhew, PatrickThorpe, Rt Hon Jeremy (N Devon)
Fry, PeterMeyer, Sir AnthonyTownsend, Cyril D.
Gardiner, George (Reigate)Miller, Hal (Bromsgrove)Trotter, Neville
Gardner, Edward (S Fylde)Mills, PeterTugendhat, Christopher
Gilmour, Rt Hon Ian (Chesham)Miscampbell, Normanvan Straubenzee, W. R.
Gilmour, Sir John (East Fife)Mitchell, David (Basingstoke)Vaughan, Dr Gerard
Glyn, Dr AlanMoate, RogerViggers, Peter
Godber, Rt Hon JosephMonro, HectorWainwright, Richard (Colne V)
Goodhart, PhilipMontgomery, FergusWakeham, John
Goodhew, VictorMoore, John (Croydon C)Walker-Smith, Rt Hon Sir Derek
Goodlad, AlastairMorgan-Giles, Rear-AdmiralWall, Patrick
Gorst, JohnMorris, Michael (Northampton S)Walters, Dennis
Gow, Ian (Eastbourne)Morrison, Charles (Devizes)Warren, Kenneth
Gower, Sir Raymond (Barry)Morrison, Hon Peter (Chester)Watt, Hamish

Weatherill, BernardWiggin, Jerry
Wells, JohnWinterton, NicholasTELLERS FOR THE NOES
Welsh, AndrewWood, Rt Hon RichardMr. Anthony Berry and
Whitelaw, Rt Hon WilliamYoung, Sir G. (Ealing, Acton)Mr. Russell Fairgrieve.

Question accordingly agreed to. [ Special Entry.]

Lords amendment agreed to: No. 2, in page 3, line 31, leave out from "otherwise" to the end of line 32 and insert:

"(2A) The power to prescribe different rates under subsection (2) above shall be exercised so as to bring different rates into force on such day as the Secretary of State may by order specify."—[Mr. Meacher.]

[ Special Entry.]