Commons Sitting of 16 October 1990

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]

TEES AND HARTLEPOOL PORT AUTHORITY BILL
Order for Third Reading read.
To be read the Third time on Thursday.

SHARD BRIDGE BILL
Order for consideration read.
To be considered on Thursday.

SMITH, KLINE & FRENCH LABORATORIES, AUSTRALIA, AND MENLEY & JAMES, AUSTRALIA BILL [Lords]
Bill read a Second time, and committed.
Oral Answers to Questions
  HEALTH

    Nurses' Pay
    Mr. Ieuan Wyn Jones: To ask the Secretary of State for Health when he last met representatives of the Royal College of Nursing to discuss nurses' pay.
    The Secretary of State for Health (Mr. Kenneth Clarke): I last met representatives of the Royal College of Nursing formally on 1 February when I informed them of the Government's decision on the 1990 review body reports.
    Mr. Jones: Does the Secretary of State agree that there is a lack of confidence in the clinical grading appeals procedure and that matters will get worse, because there are fewer members of the slimline health authorities to hear and determine appeals? If NHS trusts are set up, there is even the prospect that the appeals procedure and clinical grading will disappear altogether in NHS hospitals. What does the Secretary of State propose to do, first, to speed up the appeals procedure and, secondly, to restore confidence in the system and thus morale in the profession?
    Mr. Clarke: The situation on grading appeals is something of a disgrace and it is entirely the fault of the nursing trade unions. [HON. MEMBERS: "No."] Yes, it is. When we first drew up the new grading arrangements, I put it to the nurses' trade union leaders that the existing appeals system would not work when dealing with all the appeals, because each individual case is dealt with as though it were a magistrates court hearing—one by one. I invited them to take part with me in discussions about streamlining the appeals procedure, but they refused. They preferred the existing Whitley council procedures. I hope that they will reflect upon that and that they will come back and have some sensible discussions about a proper appeals procedure. I have always suspected that some of
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    the trade unions, at least, prefer the nurses to be left with a sense of grievance which they can play upon rather than tackle the problem of getting the gradings right.
    Mr. John Greenway: May I advise my right hon. and learned Friend that last Saturday my wife went back to Hammersmith hospital for the 25th anniversary reunion of the nurses who, with her, went to that hospital in 1965? During that visit they were amazed to discover that there were twice as many nurses on the wards and that many patients were sent home for the weekend due to the improvement in clinical techniques and methods. Does not that demonstrate not only that there are more nurses but that when the Government's reforms are in place—[HON. MEMBERS: "Get on with it!"]—and these appeals are out of the way there will be every opportunity for the nursing profession to establish itself much more, which will enable nurses to feel that they have a much greater relationship with the hospital where they work?
    Mr. Clarke: My hon. Friend's wife may have had the misfortune to work in the national health service during the years when a Labour Government allowed nurses' pay to fall 21 per cent. behind inflation. It is now 40 per cent. ahead of inflation since we came to office. The profesesion is becoming well paid and much better staffed. The grading system gives nurses a much better career structure, as all nurses would recognise. It is high time that we got rid of the anomalous appeals system so as to enable the grading structure to work. Nursing is now a better-staffed and better-paid profession, with a better career structure than ever before. Nurses will get a great deal out of our improved and reformed national health service.
    Several Hon. Members rose—
    Mr. Speaker: Order. I request hon. Members to ask brief supplementary questions. Then we shall get further down the Order Paper.

    Community Care
    Mr. Illsley: To ask the Secretary of State for Health what representations he has received regarding funding arrangements for the Government's community care proposals.
    Mr. O'Brien: To ask the Secretary of State for Health what progress has been made on the implementation of the community care proposals contained in the National Health Service and Community Care Act 1990.
    Mr. Norman Hogg: To ask the Secretary of State for Health what representations he has received from local authorities regarding the Government's proposed changes in the organisation of community care.
    Mr. Andrew Welsh: To ask the Secretary of State for Health what representations he has received from organisations on the new arrangements for community care; and if he will make a statement.
    The Minister for Health (Mrs. Virginia Bottomley): We have received many representations on all aspects of our community care proposals. Those views informed the Government's decision on the phasing of community care and the local authority settlement announced by my right hon. Friend. the Secretary of State for the Environment on 19 July. The implementation of our proposals is

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    continuing to the timetable outlined by my right hon. and learned Friend the Secretary of State in his statement to the House on 18 July.
    Mr. Illsley: Is the Minister aware that many poll-tax-capped authorities such as mine in Barnsley are in considerable chaos following the collapse of the Government's proposals for community care? They are having to make cuts of up to £1 milliion and will face further cuts. Has the Minister discussed that in detail with the Department of the Environment to ensure that there will be adequate funding for those authorities next year?
    Mrs. Bottomley: There is no reason for the hon. Gentleman to blame the difficulties of his local authority on the decision to phase the implementation of the full community care proposals. It is clear that his local authority, and many others, will be able to develop their plans further and improve the management of their services. The fact that his authority has been charge-capped suggests that it could well invest some time in ensuring that it has the cost-effective and efficient services for the community once the policy is fully implemented.
    Mr. O'Brien: I remind the Minister of the letter that I sent her colleague the Secretary of State on 25 September and the acknowledgement that I received on 28 September. Attached to that was a letter from my constituent, Mrs. June Cadman, who cares for 70 mentally handicapped people, in which she explained the hardship faced by the people in her charge. The letter also contained an appeal for assistance for Leeds city council and Wakefield city council social services department.
    Because of the poll tax and the standard spending assessments, it is impossible for local authorities to help private homes. When will the Minister do something to help those people, to sustain those in need of care and attention and to help carers? May we have some assistance, please?
    Mrs. Bottomley: There is a project under way in the hon. Gentleman's constituency, involving the regional health authority, the housing department and the local authority, for the relocation of mentally handicapped people in the community. I am sure that my right hon. and learned Friend will reply to the hon. Gentleman's letter shortly. There is much to be done in the provision of care for mentally handicapped people and I am pleased that the hon. Gentleman is as concerned as we are to ensure that services for this needy group improve.
    Mr. Norman Hogg: As the Government did not think that community care in Scotland was worth a statement last July, when they announced the two-year delay, what advice is the Minister giving her right hon. and learned Friend the Secretary of State for Scotland, as there is much difficulty among local authorities in Scotland which are strapped for cash because of Government cuts and the inefficiency of the poll tax? A two-year delay in implementing community care looks extremely optimistic.
    Mrs. Bottomley: I urge the hon. Gentleman to speak swiftly to my hon. Friend the Minister of State, Scottish Office, who announced on 26 September the full plans for implementation in Scotland. It would be presumptuous of me as an English Minister to make further comment on plans for north of the border.
    Mr. Andrew Welsh: Where is the caring face of a Government who delay implementation of community care and starve the system of money for vulnerable groups such as elderly and disabled people? What is the Minister doing to bridge the financial gap between social security benefits and the costs of community care, or between revenue support grant and the costs of community care for local authorities? If the Minister tries to implement this scheme on the cheap she will simply create a recipe for social disaster.
    Mrs. Bottomley: Personal social services spending has increased by 47 per cent. in the past 10 years. That is a substantial increase, quite apart from the extra money available through the social security system. My right hon. Friend the Secretary of State for Social Security has made it clear that he is considering closely the income support questions. This year's settlement for local government would be regarded by my hon. Friends as generous and even Opposition Members would regard it as fair.
    Mrs. Currie: Is my hon. Friend aware that in Derbyshire the postponement of the community care reforms was met with a great sense of relief, because Derbyshire county council was nowhere near ready and implementation too soon would have put many people's lives and welfare at risk? Is she further aware that the first action of Derbyshire county council in response to poll tax capping was not to cut its administration, its local government newspaper or its publicity, but to cut entirely the grant to the Derbyshire coalition of disabled people?
    Mrs. Bottomley: That is yet another item in the catalogue of appalling decisions made by Derbyshire county council, which I understand has increased its staff by 8,000 since the Labour party took control. It is clear that many local authorities need those two years. The Select Committee on Social Services made it clear that there is a pressing timetable to implement the changes by next April and I have no doubt that health authorities, voluntary organisations, the private sector and local authorities will need to spend that time training and thinking through the management and cost-effectiveness of their proposals for care in the community.
    Mr. Thurnham: When considering funding, will my hon. Friend bear in mind the far greater cost-effectiveness of the voluntary sector in providing community care, especially for the mentally handicapped?
    Mrs. Bottomley: Once again, my hon. Friend leads me to comment on the comments of my hon. Friend the Member for Derbyshire, South (Mrs. Currie) about Derbyshire. Local authorities whose first decision is to cut support for the voluntary sector are thoroughly misguided. The voluntary sector has an excellent tradition of providing care in the community. That is why, for example, we especially identified the voluntary sector to support drug and alcohol misusers in the new specific grant announced by my right hon. and learned Friend the Secretary of State in July.
    Mr. Bowis: Is my hon. Friend now able to put at rest the genuine worries about funding of those running halfway houses for people coming out of alcohol and drug detoxification units? Without that service, it is difficult for such people to find their way back into a real life in the community.
    Mrs. Bottomley: My hon. Friend rightly identifies that especially needy group, who are costly in terms of services and who most certainly need a development of provision. He will know that there has been careful discussion with those organisations, which resulted in the specific grant announced in July. We believe that it will be possible for their valuable services to grow and to develop.
    Mr. Robin Cook: As these will be the last health questions before the uprating statement, can the Minister tell us what hope there is for all those residents on income support who now find that they cannot pay what their private home charges? What does she have to say to those elderly people who have had their personal allowances confiscated, who cannot buy toothpaste or newspapers and who cannot pay for stamps, and who still cannot pay the weekly cost of their home? How can she defend the double standard by which those on income support are put in the shared bedrooms with the poorer services? As it was the Government's decision to delay the community care programme for two years, what do Ministers intend to do for all those elderly and disabled residents who cannot wait until 1993 to pay this week's bill and are likely to be turned out if they try?
    Mrs. Bottomley: The hon. Gentleman knows full well that matters of uprating are for my right hon. Friend the Secretary of State for Social Security. However, it remains the case that local authorities will continue to make plans for care in the community. We remain committed to a mixed economy of care. It is important that local authorities, voluntary organisations and the private sector provide for the frail and the vulnerable. The hon. Gentleman always speaks as though resources were no object. One has only to consider—I hope that the poor and the vulnerable will do this—the record of the Labour party when in government. There has been a substantial increase in resources. I can make no further announcements without anticipating the comments of my right hon. Friend the Secretary of State for Social Security.

    Children Act 1989
    Mr. Bell: To ask the Secretary of State for Health what progress has been made on the implementation of the Children Act 1989.
    Mrs. Virginia Bottomley: We are consulting on the regulations guidance and rules of court necessary to implement the Act on 14 October 1991–363 days away. A comprehensive training and dissemination programme is under way.
    Mr. Bell: I am grateful to the Minister for that reply. As the Children Act 1989 came about partly as a result of events in Cleveland, does the Minister agree there are now proper multidisciplinary procedures in Cleveland for the handling of alleged child sexual abuse cases? Is not it a fact that the Cleveland child abuse crisis is at an end? Given the situation in Cleveland, is not it a pity that other authorities are acting as if we had never passed a Children Act through this Parliament? Would not it be helpful if we could advance the date of implementation from October 1991?
    Mrs. Bottomley: I fear that it is not possible to advance the date from October 1991. The training programme, involving social workers, court staff and many others, will
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    clearly be taxing for them to implement by that timetable. However, I can confirm that the social services inspectorate's report on Cleveland, which was published on 7 June this year, made it clear that good progress has been made, especially in the area of inter-agency working. It is essential that the lessons are learnt time and again that effective child protection means effective and trusting communication between local authorities, police departments, education departments and health departments. Cleveland has made great strides forward and I hope that many other local authorities will learn those lessons and ensure that they have the same working practices.
    Mr. Holt: Will my hon. Friend take it from me that, far from having gone away, the spectre of Cleveland has raised its head again this week? One of the two doctors at the heart of the whole affair, Dr. Wyatt, is now being systematically helped by his cohorts of two or three years ago in his efforts to get his job back in its previous form—which involved diagnosing children as sexually abused and thereby causing much distress to children, parents and grandparents in my constituency and throughout Cleveland. Will my hon. Friend make every effort now, today, to see that this attempt is knocked on the head straight away?
    Mrs. Bottomley: I well understand the concern that my hon. Friend has expressed. I can assure him that steps have already been taken by the health authority to resolve the matter. None of us can underestimate the seriousness of the situation that arose in Cleveland, but I believe that the lessons have been learnt. The important point is that the information should be disseminated to ensure that other local authorities across the country learn those lessons—to protect children and, above all, to respect the role of parents.
    Mr. Tom Clarke: Does the Minister accept that there will be profound disappointment at the fact that, following Royal Assent, an Act which arose from a great deal of consensus on both sides of the House is to take two years to implement? As the Government have declined to accept the views of the Central Council for Education and Training in Social Work, precisely what proposals do they have for essential training and what progress have they made in their commitment to family courts?
    Mrs. Bottomley: I believe that it is rather naive to think that the Children Act could be implemented in its full complexity any faster than is proposed. For example, 80 sets of regulations have to be produced. We are just producing the 20th issue of draft guidance, out of a collection of 30. It is a major task, involving local authorities, voluntary organisations, the police, health authorities and many others. We have a full training programme under way and £10 million worth of resources, in a ring-fenced sum, have been committed to ensure that that training takes place.
    We are talking not only about the detailed implementation of the Act but about the updating of "Working Together", the seminal document which advises all those involved of the vital importance of proper and effective communication. So often in child abuse cases, it is communication that goes wrong.
    The hon. Gentleman will know that great progress is being made in the integration of the law concerning various aspects of the family—not only children. I recently

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    announced a review of adoption law and we are also discussing divorce law. We believe that such developments will lead progressively to the creation of the conditions necessary for the establishment of a full family court.
    Mr. Sims: My hon. Friend is correct that the Children Act is an extremely complex piece of legislation, and it is probably one of the most important to emerge from Parliament this decade. I am sure that she is aware that practitioners in the field are enthusiastic about the provisions as they learn about them, but is she also aware that there is genuine concern that there may be insufficient resources to implement the proposals correctly? Can she give an assurance that resources will be available?
    Mrs. Bottomley: We are committed to ensuring that the Children Act is fully and effectively implemented. None of us can tolerate the existence of child neglect and abuse in our modern society. We have fewer children in care, but there are many children on the at-risk register. It is incumbent on us all—whether as politicians in local or central government or as members of the community—to protect those children. We have a major training programme, and the other resource aspects are the subject of regular discussions between the Department and the local authority organisations. I cannot give any further information about the personal social services allocation until after the autumn statement next month.
    Several Hon. Members rose—
    Mr. Speaker: Order. We are making rather slow progress this afternoon. [HON. MEMBERS: "It is the Minister's fault."] I am anxious to get on.

    Social Work
    Mr. Harry Barnes: To ask the Secretary of State for Health what steps are taken by his Department to monitor the ability of individual local authorities to carry out their statutory social work functions.
    Mrs. Virginia Bottomley: The Department's social services inspectorate keeps the Department informed about the provision of personal social services by individual local authorities.
    Mr. Barnes: Does the Department of Health read the reports and take action based on them, because it seems to me that the Department has little idea of what goes on in local government? For example, when the hon. Member for Derbyshire, South (Mrs. Currie) asked a question it seemed that she had also written the brief from which the Minister gave her answer, as it did not relate in any way to the problems and needs of Derbyshire. What extra money will be provided for the function and operation of the Children Act? The local authorities concerned have asked for £140 million. Will anything like that sum be available?
    Mrs. Bottomley: The information about what happens in Derbyshire comes from our "Key Indicators" document. That valuable document, which we produce annually, gives information about precisely how local authorities are spending their resources. In Derbyshire, one in three people over 75 receives a home help, free of charge. I do not believe that that is targeting resources or looking to value for money. That does not show a sense of responsibility in the provision of services.
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    With regard to resources for the Children Act, the hon. Gentleman, like others, will have to await the decisions and outcome of the autumn statement when he will discover the precise sums involved. I hope that the hon. Gentleman will encourage Derbyshire social services to use that money cost effectively and to resist the gimmicks so often identified by my hon. Friends.
    Mr. Gerald Bowden: In monitoring the social work functions of local authorities, has my hon. Friend the Minister had an opportunity to consider the way in which the London borough of Southwark discharged its duties at Grove Park children's home? If the disclosures in The Sunday Correspondent magazine are correct, is not it evident that children in the so-called care of Southwark are at even greater risk than if they were not in Southwark's care?
    Mrs. Bottomley: My hon. Friend has mentioned that home, which is in his constituency, to me before. The outrage and horror of many who saw precisely what was happening at the Grove Park children's home is shared by us all, and I am pleased to say that the home has closed. I have asked the social services inspectorate to report to me urgently on the provision of residential care for the difficult, turbulent bunch of teenagers in the capital cities. The easiest ones to foster are fostered, but residential homes have to cope with an extremely difficult and troublesome group. We look to the social services inspectorate once again to report back on that and I will certainly have urgent discussions with my hon. Friend the Member for Dulwich (Mr. Bowden) about it.

    Sanderson Hospital, Gosforth
    Mr. Cousins: To ask the Secretary of State for Health when he proposes to visit the Sanderson hospital, Gosforth.
    The Parliamentary Under-Secretary of State for Health (Mr. Stephen Dorrell): I have no immediate plans to do so.
    Mr. Cousins: Does the Minister accept that the Sanderson hospital is the last long-stay hospital for the elderly in Newcastle which does not face closure? It is part of a hospital group—the Royal Victoria infirmary—which is dithering over opt-out and has to make panic cuts to save £400,000 of overspending up to August. The site would make wonderful executive housing, or can the Minister assure us that there is still a place in the NHS for small kindly hospitals which care for patients who cannot easily be packaged or priced?
    Mr. Dorrell: I am not sure whether the hon. Gentleman was advocating the sale of the site for high-value executive houses, but I assure him that it is NHS policy to continue to use the Sanderson hospital for the care of the elderly, for which it currently has a distinguished record.

    General Practitioners
    Mr. Barry Field: To ask the Secretary of State for Health how many practices have now expressed an interest in joining the general practitioners' fund-holding scheme; and how many he estimates will meet the eligibility criteria and be ready for fund holding in April 1991.
    Mr. Jacques Arnold: To ask the Secretary of State for Health if he will make a statement on progress being made with applications for practice budgets for general practitioners.
    Mr. Kenneth Clarke: Around 350 practices are preparing for fund-holding status from 1 April 1991, and I have been much impressed by the quality and commitment to the scheme of the practices concerned.
    Mr. Field: Does my right hon. and learned Friend agree that, while a tiny minority of doctors continue to dispense their own brand of politics, the vast majority are playing an increasingly active part in the delivery of better health care throughout the country? Is it true that on the Isle of Wight a high percentage of doctors have applied to become fund holders?
    Mr. Clarke: I am glad to say that on the Isle of Wight three practices have been attracted by the idea of having much more control of how NHS money is spent on the isle. Those three practices cover about 30,000 of the residents, which is about one quarter of the population, so there is a particularly high level of interest on the isle. I also agree with my hon. Friend that the experience of fund holding and of the contract is proving very beneficial. Contrary to all the inventions of last year, the amount of time spent with patients is increasing, the amount of minor surgery is increasing, the amount of time spent on health promotion is increasing and the number of practices carrying out child surveillance is increasing. The number of staff and nurses employed by the practices has increased and they are all earning more money. No doubt the fund-holding practices in the isle intend to add to those achievements if they proceed with their applications.
    Mr. Arnold: Is not the approach that we should follow in respect of GPs' practice budgets one of slowly, slowly catchee monkey? Surely the objective is that we should get the finances to where the patients are and give the clout to general practitioners' practices. Would my right hon. and learned Friend care to contrast that with the full-blooded enthusiasm of Opposition Members to continue with a vast centralised bureaucracy?
    Mr. Clarke: The pace at which we proceed with fund holding is being determined by the rate at which GPs come forward to volunteer for the scheme. We have 350 practices still actively preparing for next year and many more practices are interested in coming along the year after that. They include some of the people who represented doctors in last year's rows about the scheme and the British Medical Association has now set up a separate group to represent those fund holders, which shows that we are winning converts in quite a lot of places.
    I agree with my hon. Friend that the interest of the profession in new developments and what they have achieved from the contract is in stark contrast with the negative positions that have been taken by the Opposition in their sole desire to turn the clock back, if they ever get the chance, to the old bureaucratic and less effective national health service.

    Hospital Services, Southend
    Mr. Teddy Taylor: To ask the Secretary of State for Health if he will pay a visit to Southend-on-Sea to inspect the hospital services.
    Mr. Dorrell: I have no immediate plans to do so.
    Mr. Taylor: Is the Minister aware that, for many years, our excellent hospitals in Southend have had to cope with being seriously underfunded in comparison with other districts because they happen to be in an overfunded region? As a new system of funding based on capitation is coming in in April, can the Minister assure Southend that that fairer system will result in something being done about consistent underfunding?
    Mr. Dorrell: I can confirm that, by national standards, Southend has been underfunded over a long period. It is one of the intentions of the reforms that will come in next April that we achieve a fairer distribution of funding around the country. That will not happen overnight, but it is our clear intention that it should happen over a reasonably short period.
    Sir Bernard Braine: Is my hon. Friend aware that it is not an inspection that is needed, nor even an admission that our district has been underfunded for many years past? We want some action.
    Mr. Dorrell: My right hon. Friend has an Act on the statute book which sets in place the machinery that will allow funds to flow in the way in which he desires. Action is coming.
    Mr. Cohen: When we see it we shall believe it. Is the Minister aware that Southend, like in my area of Waltham Forest, is covered by the North East Thames regional health authority, that that authority has recently slashed its capital programme and that many important developments have been cut as a result? When will the Minister do something about increasing that capital programme for a change?
    Mr. Dorrell: Since 1979 the NHS capital programme has increased by 57 per cent. in real terms. I wish that I could believe the hon. Gentleman when he says that he will believe it when he sees it. He has seen it for more than 11 years and apparently still does not believe it.

    Patient Care
    Mr. Andrew Mitchell: To ask the Secretary of State for Health what initiatives are being taken to promote a better quality of care for patients.
    Mrs. Virginia Bottomley: Better quality of service and care for patients is at the heart of the NHS reforms. Key ways of achieving that will be the devolution of responsibility to local level and agreements between purchasers and providers with clearly specified quality standards.
    Mr. Mitchell: Is not my hon. Friend's response an eloquent testimony to this Government's commitment to the National Health Service at a time when an aging population and welcome medical advances mean that there is a great deal to be done? Is not that a contrast to the capital-cutting, hospital building programme-cutting Labour Government who used to be in power?
    Mrs. Bottomley: I thank my hon. Friend for his words. In the words of my right hon. Friend the Member for Castle Point (Sir B. Braine), we believe in action, not words, and in putting quality at the forefront of our plans for the health service. My hon. Friend will know that the

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    scheme in his constituency is one of our national demonstration projects, focusing on quality. The children's out-patient department received £110,000 from the Department last year, once again making sure that the patient and the patient's family are at the forefront of health care.
    Mr. Kennedy: Given that the Minister is trying to reduce junior hospital doctors' working hours and to improve patient care in that way—as well as the working environment—what will be the effect on that of the national initiative on the opting out of hospitals as they seek self-governing trust status? Will junior hospital doctors be more or less likely to enjoy better working hours and better working conditions?
    Mrs. Bottomley: I am pleased that the hon. Gentleman has referred to our determined effort to tackle once and for all the unacceptable problem of some junior hospital doctors working unacceptable hours—unacceptable to them and to patients. Although considerable progress has already been made, we are determined to see further action in the specialties, hospitals and grades where the difficulty persists. I assure the hon. Gentleman that hospitals that become NHS trusts will, of course, abide by the manpower arrangements that have already been established, not only for junior hospital doctors' working hours, but in order to achieve a balance and to meet the safety net requirements.
    Dame Jill Knight: Does my hon. Friend concede that there are differing ideas among different patients about what constitutes quality of care, which often have nothing to do with medical care? Some patients want to be in a room by themselves, to have better food or not to be in a mixed ward. How are the proposals progressing that would allow patients to pay something towards achieving those objectives?
    Mrs. Bottomley: I greatly appreciate my hon. Friend's contribution. My hon. Friend the Under-Secretary of State recently announced an initiative to allow patients who wish to do so to pay for the extras that make such a difference to their patient care. I remind the House and my hon. Friends of the national quality exhibition that will take place in Birmingham in a fortnight, which will demonstrate practically the many quality initiatives which, above all, seek to make sure that patients, their wishes, interests and concerns will come first and be given the priority that they deserve.
    Ms. Harman: Does the Minister accept that a key factor in achieving quality of care for all patients is ensuring that they get the treatment that they need when they need it? Is not the Minister aware that hospitals throughout the country, such as Westminster, are closing wards to all but emergency admissions because of shortage of money? The Minister says that the Government believe in action, not words when it comes to quality health care, but why do the action and the words mean offering cuts to the Treasury instead of saving services for patients who need them?
    Mrs. Bottomley: It is rich for the hon. Lady to refer to action, not words. The Conservative party has increased the number of in-patients, and out-patients, and increased the number of day cases. On all fronts, there has been an improvement in the health service, leading to better patient care. However, we want to ensure that we continue to see perinatal mortality at a record low level, and that we see
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    not only a reduction in the number of women dying from cervical cancer, but an increase in the number of coronary artery bypass grafts and kidney treatments. That is why my right hon. and learned Friend the Secretary of State announced last week a programme of health targets to ensure that we continue to focus our efforts on clear, concrete and practical achievements and continue to build a better health service.
    Mr. Cormack: Does my hon. Friend accept that one group of patients has, tragically, received bad care? I am referring to the haemophiliac AIDS victims. Does she further accept that if the Government believe in action, not words, we cannot be satisfied with the response that we have received so far?
    Mrs. Bottomley: I understand my hon. Friend's words. He will have heard my hon. Friend the Under-Secretary of State in last night's debate. The fact is that there was no case of neglect in those cases. However, we accept the great tragedy and that is why such significant resources have been made available to the families, who were so grievously affected, amounting to an average of £28,000 each. However, we cannot expect that every time there is a tragedy in the health service, when there is no professional neglect, there will be instant compensation, because the implications for us all and for all health care would be enormous.

    NHS Trusts
    Mr. Cummings: To ask the Secretary of State for Health if he will make a statement on the progress made on public consultation following proposals for the formation of self-governing hospital trusts.
    Mr. Kenneth Clarke: A total of 66 units have applied to become national health service trusts in the first wave, which will become operational in April 1991. Regional health authorities are currently consulting on applications from potential trusts within their regions. I shall announce my decision on each application after I have had an opportunity to consider the outcome of the public consultation.
    Mr. Cummings: The Minister will be aware that Newcastle Royal Victoria infirmary is preparing for self-governing trust status in 1991. Is he further aware that in the run-up to 1991, 50 per cent. of children's surgical beds are to be closed for an indefinite period, thus denying a three-month-old baby in my village the chance of major surgery? Will the Minister confirm that the cash crisis in Newcastle Royal Victoria infirmary and the bed closures are part and parcel of a softening-up exercise to enable the infirmary to opt out easily next year?
    Mr. Clarke: Newcastle Royal Victoria infirmary is an extremely successful hospital, which, together with the other hospitals in Newcastle, is expanding the service, and has been doing so rapidly during recent years, thus consuming additional resources. I believe that it is the location of one of the biggest building sites in Newcastle, where the next phase of development is being financed at present. It is most unfortunate that some people in Newcastle, who are surrounded by an expanding and improving service, spend their time trying to make allegations about a part of the service where the health authority has chosen its priorities in order to live within

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    the ever-increasing sum of resources allocated to it. Doctors, nurses and others in Newcastle have expressed an interest in having more control over their own affairs. I am now considering the application in the light of the public consultations.
    Mr. Nicholas Winterton: My right hon. and learned Friend is fighting hard for additional funds for the national health service in his negotiations with the Treasury, about which I am delighted. Can he assure me that he is fighting for additional funds for the whole of the national health service, not just for hospitals that are prepared to put in a submission for self-governing status?
    Mr. Clarke: Of course, I am buoyed up by my hon. Friend's support for my current negotiations, and am glad to have him on my side. The Government's duty is to ensure that funds are available to carry out the policies to which we are committed. We have to equate that with the need to keep down inflation, which we have done successfully in previous years. The past two public spending rounds have increased the cash available to the national health service by 20 per cent.—a better two-year record than any Labour Secretary of State could ever claim or would ever be likely to claim. My hon. Friend will have to wait to see what happens in the third year.
    Mr. Robin Cook: Did the Secretary of State see last week's survey in Tory Sutton and Cheam, which found that among 6,000 residents there was a majority against the local application of six to one? As the Secretary of State cannot carry Sutton and Cheam, would he care to name to the House a single poll of the public that has come out in support of his proposals?
    Mr. Clarke: Those surveys are usually carried out on the back of extremely misleading propaganda put out by organisations financed by the Labour party and trade unions. I am considering serious applications by those who work in the hospitals and public consultations that address the issues, not the allegations about opting out of the national health service and other nonsense disseminated by the Labour party. The hon. Gentleman must know perfectly well from his personal experience that there is considerable enthusiasm among the staff and those closely involved in many of the applications for self-governing status. I shall judge them all on whether I believe that those attractive plans can be successfully carried forward to improve the service to patients.
    Mr. Michael Morris: Is my right hon. and learned Friend aware that the consultation documents are full of information about how the various trusts will provide the capacity to fill up the hospitals, but are less informative about how they will actually achieve that? Will he ensure that any representation that is received and accepted contains a fulsome part showing how the extra resource will be made available?
    Mr. Clarke: I am glad that my hon. Friend is studying the application documents, which is more than most people are doing who are organising local straw polls up and down the country. As my hon. Friend will know, the success of any hospitals in the new national health service will depend on the quality of care that they achieve, the quality of service that they give to GPs and patients and their ability to lag referrals. Some of the applications for self-governing status come from the finest hospitals in the
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    country and they are confident that if they are given more chance to run their own affairs, free from the old bureaucracy, they will attract more patients and resources under the new system.

    Cholesterol
    Mr. Dalyell: To ask the Secretary of State for Health if he will make a statement on his proposals for taking action against cholesterol-related problems, in the light of the responses he has had to the document of the departmental working party paper on cholesterol.
    Mr. Dorrell: The report from the standing Medical Advisory Committee was widely circulated with an invitation to respond by 31 October. When those responses are received, I shall be in a position to consider what action may be needed.
    Mr. Dalyell: Since coronary heart disease kills about 143,000 people in this country, putting us very near the top of the league, over what period will the £25 million announced by Lady Hooper be spent in relation to cholesterol blood-related problems?
    Mr. Dorrell: The hon. Gentleman may have heard my right hon. and learned Friend announce last week that he was intending to set up a portfolio of health targets, arid he identified coronary heart disease as a specific target: he wanted a 25 per cent. reduction in premature deaths associated with coronary heart disease by the year 2000. The amount of money that the hon. Gentleman identifies will clearly be used towards the achievement of that objective.

  Prime Minister

    Engagements
    Mr. Madden: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister (Mrs. Margaret Thatcher): This morning I had meetings with ministerial colleagues and others. In addition to my duties in the House, I shall be having further meetings later today. This evening I hope to have an audience of Her Majesty the Queen.
    Mr. Madden: May I ask the Prime Minister a question of which I gave her office notice earlier today? Will she take this opportunity to condemn Pol Pot and the Khmer Rouge for the mass murder of more than 1 million innocent Cambodians; and will she tell the House what action she and the Government are taking to stop Pol Pot and his allies marching back to power so that they can murder still more millions of innocent Cambodians?
    The Prime Minister: I am grateful to the hon. Gentleman. We have repeatedly made clear our utter abhorrence for the Khmer Rouge and all that it stands for. We have never given support of any kind to the Khmer Rouge. Our aim over many years has been to prevent a return to the atrocities of the Pol Pot years, and, as a permanent member of the United Nations Security Council, we are working to achieve that through a comprehensive political settlement.
    Mr. Lester: Does my right hon. Friend agree that those of us who seek to prevent the return of the Khmer Rouge

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    should wholeheartedly support the Supreme National Council which has now been established, comprising both internal and external Khmers, and that we should wholeheartedly support the comprehensive political settlement which, in annex 2, deals with disarmament, with mines, with caches of weapons, with the return of refugees and with free elections? Does she further agree that, as the British Government recognise neither the external Khmers nor the Hun Sen regime as a legitimate Government, we should talk equally to both sides?
    The Prime Minister: I am grateful to my hon. Friend. I agree with him that we should support the efforts of the five permanent members of the Security Council. This is another example of the five permanent members working very closely together. The Supreme National Council includes Hun Sen, Prince Sihanouk, Sonn San and the Khmer Rouge—those are its components. I agree with what my hon. Friend said.
    Mr. Kinnock: On the exchange rate mechanism, does the Prime Minister recall that on 20 September she was adamant, in her own words, that
    "the Madrid conditions won't be changed and they include getting inflation near to the European average"?
    Whatever happened in the following two weeks to make her completely cave in?
    The Prime Minister: The right hon. Gentleman will have heard what my right hon. Friend the Chancellor said in his excellent statement. Several conditions were laid out in the Madrid statement. A number of them had been fully achieved; some others were on the way. The most important was progress on the free movement of capital; the next, progress on free trade in financial services; the next, progress on the single market and further progress in competition policy. Monetary conditions here made possible a reduction of 1 per cent. in interest rates. Yes, we could have gone on further and waited until inflation had visibly come down, but so many of the conditions had been met and there was so much speculation about when we were going into the exchange rate mechanism that we took advantage of the excellent opportunity—[Interruption.]
    Mr. Speaker: Order. These are very important matters.
    The Prime Minister: —of the excellent opportunity of monetary conditions' coming within their limits to end all the speculation about when we should go in and go in, just one year after we had increased interest rates to 15 per cent., just before the Tory party conference.
    Mr. Kinnock: If the Prime Minister is so confident about her judgment, why will she not simply come to the House next week and speak in the debate? Is not it now obvious that her own personal position on this issue is utterly impossible to justify, and that she is just plain frit?
    The Prime Minister: Unlike the right hon. Gentleman, I have a most excellent Chancellor, an excellent Treasury team and a superb—[Interruption.]
    Mr. Speaker: Order.
    The Prime Minister: —and a superb Secretary of State for Trade and Industry. I shall be here answering questions every Tuesday and Thursday, and I hope that one day the right hon. Gentleman may know how to ask a good one.
    Mr. Mans: Does my right hon. Friend agree that a responsible policy on the environment must be both practical and realistic, and that to insist on the reduction of CO2 emissions around the turn of the century, while at the same time discounting the future use of nuclear power, increasing the use of fossil fuels such as coal and promoting cheaper petrol, makes no sense whatever? Does she agree that that policy is highly environmentally damaging as well?
    The Prime Minister: I agree with my hon. Friend. If one wants to reduce emissions of carbon dioxide, one of the best ways is to support nuclear power. Recently we have also seen a substantial increase in the price of oil and petrol, without attempting to put it up further. Any promises that are made should be capable of being fulfilled, and the earliest date on carbon dioxide emissions when we can fulfil this promise is the year 2005.
    Mr. Wallace: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Wallace: Does the Prime Minister agree that the honourable and decent way forward in the tragic case of the 1,200 haemophiliacs suffering from the AIDS virus is to offer far more generous compensation than has been the case up to now, rather than continuing to fund ever-increasing fees for lawyers to argue the toss over the matter?
    The Prime Minister: The Government have already made available some £34 million to the haemophiliacs who are suffering from this very grievous happening, as an ex gratia payment without prejudice to their taking legal action in the courts. Obviously, we wish to know the legal position before any further payment is considered.
    Mr. Alexander: Has my right hon. Friend had time to notice British Rail's 25 per cent. pay offer to its track-laying and signalling staff? Does she agree that pay awards of that order will merely outrage fare-paying passengers, stoke up inflation and put off further the day when we can reduce interest rates still more?
    The Prime Minister: If my recollection is correct, certain recommendations about signalling were made after the Clapham accident that must be taken into account when one judges that settlement. I am sure that my hon. Friend would agee that it is absolutely vital that we live up to the safety standards required of us by the report following that terrible accident.
    Mrs. Fyfe: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Lady to the reply that I gave some moments ago.
    Mrs. Fyfe: Does the right hon. Lady remember saying 15 months ago that lowering United Kingdom inflation was the most important of the Madrid conditions? If that is no longer the case, when and why did she begin to change her mind and decide that the right hon. Member for Blaby (Mr. Lawson) was right?
    The Prime Minister: Had the hon. Lady listened yesterday and earlier this afternoon, she would have heard the Chancellor and I both say that a large number of the

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    conditions had already been met and that there was an opportunity to go into the exchange rate mechanism. We took that decision and it was right. It has been warmly welcomed and I am amazed that Opposition Members are being so small minded about it. Did not they want us to go in?
    Sir Jim Spicer: Many hon. Members know the Kuwaiti ambassador, but not many know that three weeks ago his brother-in-law was seized by the Iraqi forces, taken away and tortured for 16 days, and then taken back to his home to be executed in front of his house and family. Will my right hon. Friend assure the House that people who perpetrate such crimes will not escape punishment?
    The Prime Minister: We all share the revulsion that has been expressed about that brutal act and we have seen the Amnesty International report about many other brutal acts conducted daily by Saddam Hussein in Kuwait. That makes it clear that we must deal with this man. I agree with my hon. Friend that he must be made answerable for these terrible crimes and must withdraw from Kuwait so that the legitimate Government of Kuwait can be restored. I join my hon. Friend in sending our sympathies to the Kuwaiti Government on this terrible brutality.
    Mr. Bernie Grant: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Grant: Is the Prime Minister aware of the indignation and outrage felt by Cypriots in my constituency about the Government's two-faced attitude to invasions? Troops have been sent to Saudi Arabia as a result of the invasion of Kuwait, but absolutely nothing has been done about the Turkish invasion of Cyprus. Is the Prime Minister—[Interruption.]
    Mr. Speaker: Order. Mr. Grant.
    Mr. Grant: Is the Prime Minister aware that the international financial bandit Mr. Asil Nadir and his company, Polly Peck, have made their money by stealing property, orange groves and hotels from Greek Cypriots who are living in exile in my constituency? Will she do something—[Interruption.]
    Mr. Speaker: Order. This House is for putting forward views that hon. Members feel strongly about. We have a right to do that.
    Mr. Grant: What will the Prime Minister do to prevent this carpetbagger, Mr. Nadir, from bringing his money, his ill-gotten gains, out of the north of Cyprus into this country in order to bail out his company, Polly Peck?
    The Prime Minister: Perhaps the hon. Gentleman has forgotten that the events in Cyprus that led to the Turkish invasion and the toppling of Makarios happened during
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    the lifetime of a Labour Government and the decision not to invoke the guarantee was that of the then Foreign Secretary who is now the noble Lord Callaghan. The hon. Gentleman will be fully aware that we wish to see the state of Cyprus continue bi-zonal and bi-communal and that we fully support the efforts of Mr. Perez de Cuellar, the United Nations Secretary-General, to bring that about. The hon. Gentleman knows full well that the matters that he raised in the latter part of his question are under investigation by the serious fraud squad.
    Mr. Aitken: Will my right hon. Friend comment on the recent press interview given by the general commanding the British forces in the Gulf, in which he said that he expected that further British troops who are still under training would be deployed in that area? Does my right hon. Friend agree that while that policy may well be welcome and right, it would be preferable for such anouncements to be made in the first place in Parliament?
    The Prime Minister: My hon. Friend is aware that the full armoured brigade is on its way there. I know of no intention to send any further people. Obviously, the brigade goes with its full support staff, including the engineers and the full hospital staff, which is not the 8,000 of the armoured brigade but about 11,000 in all. That is a part of the support for the armoured brigade.
    Mr. Fearn: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Fearn: Is the Prime Minister aware that 39 countries have now ratified the United Nations convention on the rights of the child? When will this country ratify those excellent terms? What are we waiting for?
    The Prime Minister: I signed the convention on behalf of the United Kingdom when I was at the United Nations; to ratify it, it would have to come before the House.
    Mr. Harry Greenway: Is my right hon. Friend aware that Mr. Tony Wilbraham, a Baghdad hostage and father of my constituents Joanne and Paul, could die as soon as Christmas from advanced lung cancer? Will she do all that she can to secure his early release together with that of his wife, who is standing by him and nursing him, and of other sick hostages who, so far, Saddam Hussein has not had the compassion to release?
    The Prime Minister: We have every sympathy with Mr. Wilbraham and his family and also with the others who are suffering from terminal illnesses and being so wickedly detained by Saddam Hussein. It shows the true nature of that person. As my hon. Friend knows, our ambassador is still in Baghdad, and he is making strenuous efforts to ensure that those people are released. We utterly condemn Saddam Hussein for not releasing them.

Questions to Ministers
3.30 pm
Mr. Michael Meacher: On a point of order, Mr. Speaker. I wish to draw to your attention to, and to seek a statement on, a matter that arose yesterday, and which I believe constitutes a serious abuse of the proper procedures of the House. Yesterday, immediately before Social Security Question Time, I happened to come across a set of abandoned papers, of which I have full copies with me. When I was able to examine them more closely after questions, I discovered that they were photocopies of 14 oral questions tabled to Social Security Ministers for that day, together with the replies that were to be given by Ministers—[Interruption.] I am sorry that the Prime Minister does not wish to know about this breach of procedure by her party.
The answers in the photocopies were, indeed, exactly the answers that were given by Ministers. In addition, there were 16 pages of briefing, in each case headed with the title "Bull points", putting substantial defensive arguments in favour of the Government's case. It is clear that that material was circulated among Government Back Benchers to assist them at Question Time. It is also clear that the drafted ministerial replies could have come only from the Government. The briefing sheets all had code figures, which I know from my experience in government are used by Whitehall officials. It is a clear abuse of the procedures of this House that advice and briefing from civil servants, which are supposed to be tendered privately to Ministers, are then secretly made available to the Government's supporters for partisan use in the Chamber.
In the past, it has been alleged that the Government were packing the Order Paper with favourable planted questions; it now appears that they are packing Question Time with favourable planted answers. I ask for a full inquiry into the matter and that a statement be made by the Secretary of State when that is complete.
Mr. Speaker: The hon. Gentleman gave me notice during Question Time of his intention to raise that matter. There is no objection to general briefings, and, as the hon. Gentleman said, he knows from his own experience that such briefings are frequently given. However, it is a discourtesy to right hon. and hon. Members who are to ask questions to reveal the proposed answers in advance, and I hope that that practice—if it has occurred—will cease.
Mr. Anthony Beaumont-Dark: We are used to bogus and hypocritical points of order being raised in this House.
Mr. Speaker: Then I judge that this is not to be one of them.
Mr. Beaumont-Dark: I withdraw the word "hypocritical", but more than one Opposition Member has told me that they have been asked to sign questions that they did not even understand—let alone understand the answer. The hon. Member for Oldham, West (Mr. Meacher) suggests that there is something hypocritical in the Government's actions, but if the Opposition ever came to office—which God forbid—they would do exactly the same things for which they are criticising the Government for doing.
Mr. Speaker: I have already made my own views absolutely clear.

NEW MEMBER
The following Member took and subscribed the Oath:
Edward O'Hara Esq., for Knowsley, South.

BILL PRESENTED
  WAR PENSIONS (DISREGARD)
  Mrs. Alice Mahon, supported by Mr. Jeremy Corbyn, Ms. Dawn Primarolo, Mr. Harry Barnes, Mr. Bob Cryer, Mr. Dennis Skinner, Mr. George Howarth, Mr. David Hinchliffe, Mr. Harry Cohen, Mr. Bernie Grant and Mr. John Battle, presented a Bill to provide that income from war pensions shall be disregarded for the purpose of assessing entitlement to any benefit payable out of the Social Security Fund or the National Insurance Fund: And the same was read the First time; and ordered to be read a Second time on Tuesday 23 October and to be printed. [Bill 197.]

  STATUTORY INSTRUMENTS, &c.
  Mr. Speaker: With the leave of the House, I will put together the three motions relating to statutory instruments.
  Ordered,
  That the draft Housing (Grants for Fire Escapes in Houses in Multiple Occupation) (Prescribed Percentage) (Scotland) Order 1990 be referred to a Standing Committee on Statutory Instruments &c.
  That the draft Parliamentary Constituencies (Scotland) (Miscellaneous Changes) Order 1990 be referred to a Standing Committee on Statutory Instruments, &c.
  That the draft Local Government Boundaries Commissioner (Northern Ireland) Order 1990 be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Patnick.]
  Mr. Speaker: Ten-minute Bill. Dawn Primarolo.
  Mr. Chris Mullin: On a point of order, Mr. Speaker.
  Mr. Speaker: Order. We are past the time for points of order, but I will hear the hon. Gentleman.
  Mr. Mullin: I was on my feet previously, Mr. Speaker. When I attempted to table a question for the Secretary of State for Defence, asking whether British service men or any other employees of his Department had been involved in providing military training—
  Mr. Speaker: Order. The hon. Gentleman is not in order to read out a disallowed question. The matter to which he refers has not been brought to my attention, and if the hon. Gentleman feels strongly, as evidently he does, perhaps he will come to see me. However, he cannot raise that matter openly in this Chamber.
  Mr. Mullin: Further to that point of order, Mr. Speaker. My question was blocked. On the one hand, the Government want us to believe that they are not giving aid to Cambodian resistance fighters, and on the other, they decline to answer questions about that matter.
  Mr. Speaker: Order. I have no responsibility for questions being blocked.

Statutory Minimum Wage
3.38 pm
Ms. Dawn Primarolo: I beg to move,
That leave be given to bring in a Bill to make provision for the introduction of a statutory minimum wage; to make provision in respect of related duties and responsibilities of employers and wages councils; and for connected purposes.
Members of Parliament enjoy a statutory minimum wage, and it seems wholly wrong that one should be denied to the most poorly paid members of our society. The Government's so-called economic miracle has proved a mirage, especially for the low-paid in our society.
In Hansard on 17 May 1988, the Prime Minister argued that proof of the success of her economic policies was that
"Everyone in the nation has benefited from the increased prosperity".—[Official Report. 17 May 1988; Vol. 133, c. 801.]
I emphasise her word "everyone". That is the so-called trickle-down theory, but the hallmark of that theory under the Government has been the growth of inequality. The gap between the rich and the poor has increased due to the Government's economic and social policies.
The trickle-down theory originated in America, as so many of the Government's ideas do. John Kenneth Galbraith, an American economist, likened the trickle-down theory to the idea that if one feeds sufficient oats to a horse there will eventually be something for the sparrows. He noted that this theory was more popular with the horse than with the sparrow, which is no surprise. We note that directors awarded themselves pay increases in excess of 33 per cent. last year at the same time that the Government told the low-paid to cut their requests for decent wages.
To give an idea of the scope of low pay, I shall quote from evidence from the south-west region, where my constituency is situated, using Government statistics from the new earnings survey, which shows that the region is riddled with dramatic inequalities between men and women, part-time and full-time workers, non-manual and manual workers. The picture highlights, almost to the point of caricature, the fact that the Government's free market policies bring a divided society where economic affluence for some is paid for by poverty pay for many. It is appalling that people who work long, hard hours, sometimes six or seven days a week, should have to claim benefit to attempt to make ends meet.
Pay inequality has reached record levels. The 1990 new earnings survey shows that, in 1979, the lowest paid 10 per cent. of manual workers earned 68·3 per cent. of average pay. In 1990, the figure has dropped to 63 per cent., and it is lower than at any time since records began in 1886. The gap between the best paid and the lowest paid—pay inequality—is worse in 1990 than it was in 1886.
During the past 10 years, the best paid workers have received real pay increases 16 times greater than those for workers on low pay. The causes of low pay are manifold, but it is clear that, without intervention from Westminster, the south-west, like all other regions, will continue to have widening pay inequality and entrenched low pay.
The single market may well make matters worse by enabling more social dumping, whereby European companies can join relocating United Kingdoms firms to exploit the region's low pay.
A major cause of the poverty experienced by hundreds of thousands of workers and their families, in the south-west and elsewhere in the United Kingdom, are the
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Government's policies, which encourage the spread of low pay and inequality. The Government's lone opposition to the social charter, the proposed abolition of the wages councils, the threat of benefit suspension for unemployed people who refuse to take low-paid jobs, and encouragement for employers to pay benefit level wages in temporary wage top-up schemes all bear witness to that.
In the south-west, three quarters of a million workers—half those in employment—earn wages below the poverty line of £4·16 per hour; 400,000 workers, of whom eight out of 10 are women, would benefit immediately from the introduction of Labour's plans for a statutory minimum wage of £3·10 per hour.
The majority of workers in the south-west earn less than the Council of Europe's decency threshold of £4·32 an hour. Women are twice as likely to be lower paid than men and part-time workers are two and a half times more likely to earn less than £3 an hour. More and more firms are illegally underpaying their workers, but few are prosecuted, since the wages councils have been marginalised and isolated by the Government. We need to introduce a statutory minumum wage and to strengthen the statutory duties of the wages councils to enforce wages and to protect workers who go to them with complaints of low pay.
These rights must be extended to part-time and home workers, thus following the example of the European Community, which is developing the idea of atypical worker—those who do not work a normal working day. Our equality laws need to be strengthened, and social security benefits must be improved in order to reinforce the work of the wages councils. These proposals are a vital tool in the attack on poverty and inequality. Those who own companies have proved that their strategy is to keep as much as possible for themselves and to pay as little as possible to those they employ, thus hitting women workers the hardest.
A statutory minimum wage should be an essential part of our economic strategy. It would help to counter the trend of short-termism in the United Kingdom, whereby low pay and low productivity are chosen as low-cost alternatives to investment in training and equipment. A statutory minimum wage would lessen the danger of the United Kingdom becoming a low-wage region in Europe, by acting as an incentive to United Kingdom employers to pursue high-wage, high-investment and high-productivity business strategies.
Finally, a statutory minimum wage would alleviate the poverty and misery of hundreds of thousands of families whose labour is exploited by unscrupulous, unreasonable and unfair employers. I commend the Bill to the House.
Question put and agreed to.
Bill ordered to be brought in by Ms. Dawn Primarolo, Mrs. Alice Mahon, Mrs. Audrey Wise, Mr. Jeremy Corbyn, Mr. David Hinchliffe, Mr. Bob Cryer, Ms. Diane Abbott, Mr. Dennis Skinner, Mr. Tony Banks, Mr. Brian Sedgemore and Mrs. Maria Fyfe.

Statutory Minimum Wage
  STATUTORY MINIMUM WAGE
  Ms. Dawn Primarolo accordingly presented a Bill to make provision for the introduction of a statutory minimum wage; to make provision in respect of related duties and responsibilities of employers and wages councils; and for connected purposes; and the same was read the First time; and ordered to be read a Second time upon Friday 19 October and to be printed.—[Bill 198.]
Orders of the Day

  Law Reform (Miscellaneous Provisions) (Scotland) Bill [Lords]
  As amended (in the Standing Committee), considered.
  Motion made, and Question proposed.
  That the Law Reform (Miscellaneous Provisions) (Scotland) Bill [Lords], as amended, be considered in the following order, namely, new Clauses relating to Part I, Amendments to Part I, new Schedules relating to Part I, new Clauses relating to Part II, Amendments to Part II, new Schedules relating to Part II, new Clauses relating to Part III, Amendments to Part III, new Schedules relating to Part III, other new Clauses, other Amendments, other new Schedules.—[Lord James Douglas-Hamilton.]
  3.48 pm
  Mr. Brian Wilson: Before we get down to a detailed consideration of the Bill as it now stands, I am bound to express on behalf of my colleagues and some of those on the other side of the House extreme concern about the way in which, even at this late stage, the Bill has been handled by the Government. From start to finish, it has been a shambles.
  After the long summer recess, we thought that we were coming back to deal in a reasonably civilised way with what was left of the Bill—a much improved Bill after the changes and the arrangements made in Committee between the Opposition and the Government to remove certain clauses. We thought that we were coming back to consider about 30 new clauses and 150 amendments. I freely accept and welcome the fact that many of the new clauses and amendments were the result of concessions made by the Government to Members on both sides of the Committee. So far, so good.
  There was also some new business that the Government wished to introduce, which again was perfectly acceptable to us. However, as recently as Saturday morning, through the medium of the radio, we learned that the Government had decided to introduce into the Bill at this late stage two major and extremely contentious clauses. They are not contentious in the sense that we wish to oppose the spirit that lies behind them, but the new clauses merit a great deal of debate and they would have been debated had they been introduced in Committee. But they were not; and now, literally days before the Bill returned to the House, we were given notice that the Government intended to introduce two new clauses.
  I refer in particular to the clauses on children's evidence, live television links and supervised attendance orders. We will not oppose those clauses, but at every stage of the progress of the Bill, the legal process in Scotland has been treated with contempt. If the Government accepted that the clauses could not be dealt with fully in Committee—heaven knows, there were enough hours in Committee to debate many matters—how on earth can they logically justify moving them at this stage and saying, "You will now have to consider these matters with 30 new clauses and 150 amendments"? As the Minister well knows, we have at most a day and a half in which to dispense with that business.
  Labour Members will do their best to improve what will go on to the statute book. These are matters of concern, importance and complexity, so it is beyond reason to
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  suppose that we shall deal with the major issue of television evidence from children or the extraordinarily major reform in Scottish criminal proceedings of supervised attendance orders being available for fine defaulters in anything like the detail or seriousness that the subjects demand.
  It is right that we register our protest at this stage and advise the people of Scotland that, once again, important legal reform is being dealt with by the Government in this cavalier manner. They are interested not in passing what is right but in getting the legislation on the statute book in any shape or form. We will do our best tonight, but once again the behaviour of the Government is a disgrace.
  The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): I can reply quite briefly to the hon. Member for Cunninghame, North (Mr. Wilson) and will do so in the same spirit as he approached the subject.
  We have a substantial task ahead of us, but I am sure that the House will recognise that the bulk of the amendments were tabled as a result of concessions and commitments given to Back Benchers in Committee. We would be failing in our duty if we did not honour those commitments.
  Much of parts I and II of the Bill are complex matters of law, so it is important to take the opportunity on Report to make the drafting as clear and straightforward as possible. We have had to consider carefully the drafting of part II in the light of changes made in Committee. We dropped several clauses in parts III and IV in accordance with the understanding that they would not be reintroduced. Where we have brought forward new issues, the reason has generally been that an issue was raised but not debated in Committee, which was certainly the case in relation to child evidence. The hon. Member for Greenock and Port Glasgow (Dr. Godman) was right to raise that matter in Committee, and he made it clear that he would seek to return to it on Report.
  Dr. Norman A. Godman rose—
  Lord James Douglas-Hamilton: I hope to reply positively to the hon. Gentleman later, when we debate child evidence.
  Dr. Godman: On a point of order, Mr. Speaker. Is the Minister speaking on a point of order?
  Mr. Speaker: It is not a point of order. This is the consideration motion, which is debateable.
  Dr. Godman: I seek an assurance from the Minister in order to save time. Will he confirm that the Government will accept all my new clauses on children giving evidence in criminal proceedings?
  Lord James Douglas-Hamilton: I intend to accept the central point on video evidence. That does not include every aspect of new clause 1, but we shall go into the details later. I am grateful that the hon. Gentleman reintroduced the new clause.
  The dropping of certain provisions on fines had unforeseen effects which made necessary the introduction of the provision on supervised attendance orders. I should be grateful if Opposition Members could exercise a willing suspension of disbelief until we reach new clause 20. For our part, we are ready to debate any of the points that

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  Opposition Members may consider raise large issues and to explain why we regard the provisions as necessary and desirable in the interests of the Scottish people.
  Question put and agreed to.

New Clause 16

  DESIGNATED RELIGIOUS BODIES
  ".—(1) The Secretary of State may from time to time, by order, designate for the purposes of this section such recognised bodies as appear to him—

  (a) to have as their principal purpose the promotion of a religious objective;

  (b) to have as their principal activity the regular holding of acts of public worship; and

  (c) to be bodies which satisfy each of the conditions mentioned in subsection (2) below.

  (2) The conditions referred to in subsection (1)(c) above are—

  (a) subject to subsection (4) below, that the body has been established in Scotland for not less than 10 years;

  (b) that the body can demonstrate to the satisfaction of the Secretary of State that it has a membership of not less than 3,000 persons resident in Scotland who are 16 years of age or more; and

  (c) that the internal organisation of the body is such that one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the body and, in particular, that there are imposed on such component elements requirements as to the keeping of accounting records and the auditing of accounts which appear to the Secretary of State to correspond to those required by sections 3 and 4 of this Act.

  (3) Where a body is, for the time being, designated under subsection (1) above the following provisions of this Part of this Act shall not apply to the body nor to any component or structural element of the body which is, itself, a recognised body—

  section 1(5);

  section 3;

  section 4, other than subsections (6) to (8) and subsection (12);

  section 5(2) and (6);

  section 6; and

  section 7.

  (4) The Secretary of State may determine that the condition mentioned in subsection (2)(a) above shall not be required to be satisfied in the case of a body—

  (a) which has been created by the amalgamation of two or more bodies each of which, immediately before the amalgamation, either was designated under this section or appears to the Secretary of State to have been eligible for such designation; or

  (b) which has been constituted by persons who have removed themselves from membership of a body which, immediately before such removal, was so designated or appears to the Secretary of State to have been eligible for such designation.".—[Lord James Douglas-Hamilton.]

  Brought up, and read the First time.
  Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
  I found this the most difficult issue in the Bill. I will try to sum up quickly our point of view on it. New clause 16, in its former guise as new clause 2, was the subject of prolonged debate in Committee. As a result of the concerns of many hon. Members, I agreed to withdraw new clause 2 for further consideration. Having given the matter further thought, I concluded that the new clause should be part of the Bill with only a minor modification to its former form. New clause 16 seeks to provide a
  1062
  measure of exemption from the supervisory and accounting provisions of Part I for religious organisations with a substantial following in Scotland.
  Forceful representations were made to the Government that charities for the advancement of religion—Churches—are in some respects a special case. Religious freedom is, of course, a fundamental right of people in this country, and we must be careful that, in establishing a system of supervision, we do not prejudice or appear to prejudice that.
  The person concerned with the management and control of a religious charity will frequently be the religious leader of the community. To suspend a religious leader, as the court will be entitled to do for mismanagement of the secular affairs of the religious body, might be viewed as improper interference by the secular authority in spiritual matters. The state is, of course, most anxious not to become involved in any way in the spiritual affairs of the charity.
  A most important consideration is that, if we were to provide a blanket exemption for all bodies established for the advancement of religion, many undesirable, cult-like bodies would escape control. Some unscrupulous people might, indeed, deliberately set up charities with spurious religious purposes to escape the controls contained in the Bill. That must be avoided.
  A distinction also needs to be drawn between taking action to intervene in a Church's affairs or to enforce compliance, on the one hand, and simply including the Churches within the purview of those provisions concerned with disclosure, accounts and the Lord Advocate's right to investigate, on the other.
  Yet a further consideration, and one about which hon. Members who served in Committee were particularly concerned, is that, for obvious reasons, we do not wish to discriminate in favour of one religion over another on grounds of religious doctrine. That is certainly no business of the state.
  New clause 16 affords religious organisations capable of meeting certain criteria the opportunity of opting out from the supervisory and investigatory functions of the Lord Advocate and the courts. It enables them to prepare accounts in the manner in which they have in the past, provided that such accounts are generally of a standard similar to those provided for in clauses 3 and 4. It removes the possibility of sanctions being applied for noncompliance, but retains a right for members of the public to seek copies of accounts and the explanatory document.
  The provisions are necessarily a compromise, but I believe that they strike a reasonable balance between ensuring that there is internal control within the religious body as regards discipline and the requirement for production of accounts, and preserving a right for the public to be informed, while removing from such bodies anxiety, however misplaced it may seem, about interference by the state.
  This is difficult territory, and any solution must be a compromise. The new clause has the support of the Scottish Churches Committee, a body representing all the major Churches in Scotland whose combined membership of people over the age of 16 amounts to 1,600,000. Despite widespread reporting of the Standing Committee's consideration of the original clause and our having since consulted the minor Christian Churches and the non-Christian religions in Scotland, including the Jewish congregations, members of the Islamic and Hindu faiths,

  1063
  Jehovah's Witnesses, the Church of Jesus Christ of Latter-day Saints, the Religious Society of Friends, the Salvation Army and a wide variety of smaller bodies, I have received no representations to the effect that the provisions are unacceptable. On the other hand, I have received strong representations from the Scottish Churches Committee, the Moderator of the General Assembly of the Church of Scotland and various parish ministers to the effect that the new clause should be introduced.
  4 pm
  Mr. Menzies Campbell: I wonder whether the Minister could clarify a matter that is causing me some apprehension. It arises from the justification that he has advanced for the clause. Do I understand that one reason for the clause is to ensure that the Lord Advocate does not have to intervene in the affairs of religious charities in the same way as he might have to intervene in the affairs of non-religious charities?
  Surely the issue concerns the standard of conduct and the standard of behaviour of a charity, whether it is of religious origin or not. It is most curious to say that the exemption is being introduced for the purpose of ensuring that the Lord Advocate does not apply the same standard to religious charities as, by law, he would be obliged to apply to non-religious charities.
  Lord James Douglas-Hamilton: It is necessarily a compromise, and the public would retain the right to be informed. It is important that the larger Churches should be in a position to administer their own affairs and to have a two-tier system of supervision. It is important that they should have the opportunity to administer that system. We have specified the membership figure of 3,000 because an organisation with fewer members might not necessarily be able to form its own supervisory arrangements, and we had to be certain of that point. The hon. Member for Greenock and Port Glasgow (Dr. Godman) said that he wanted the smaller Churches to be properly consulted and many more of them will be included under the present new clause.
  Mr. Donald Dewar: We are starting what I think will be a long journey through this evening, and this will not be the most unimportant of our debates. A great deal of interest was expressed in this subject in Committee and a great many arguments were put to the Minister. The Minister is noted for his courtesy in debate, and perhaps we were misled by that. At the end of our mammoth discussion, he said that he would take away new clause 2, as it then was, and would reconsider it in the light of the many points that had been put to him. I suspect that there will be some disappointment that the changes and adjustments have been made on such a migerly basis—
  Mr. Menzies Campbell: Eh?
  Mr. Dewar: It is a new word. I have just invented it. I am rather good at that. I hope that Hansard will transcribe it accurately, because it represents a nice amalgam of the two words from which it derives.
  As I understand it, the only change that the Minister has been able to offer involves bringing the qualifying
  1064
  mark for membership down from 5,000, as it was originally, to 3,000. If one crosses that mark and meets the other obligations and qualifications set out in the new clause, one may get the advantages off the exemptions that are provided.
  I have some sympathy with the Minister, because I realise that he was attacked from two totally different directions during our earlier exchanges. A number of people took the view that there was no logical case for the exemption. The hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) and perhaps the hon. Member for Eastwood (Mr. Stewart) were among them. The former argued, perhaps in rather extreme terms, that religious bodies were just as prone to wrongdoing as any other body.
  Sir Nicholas Fairbairn: I have always understood that it was an assumption of the Christian Church that we all sin and that the purpose of a church was that we went there to be forgiven. The new clause is based on the assumption that Christians sin less than others. If that is the case, what is the point of the Church?
  Mr. Dewar: Indeed. To answer the hon. and learned Gentleman's question with all the seriousness that it deserves, if he examined the Presbyterian doctrine and in particular the doctrine of predestination, he would see that the Church is extremely useful in explaining to people who sin that they can still get to heaven and continue to sin in the meantime. That is a very comforting theological position, which I offer as worthy of study even to an unreconstructed member of the Scottish Episcopalian Church like the hon. and learned Member for Perth and Kinross.
  To return to the serious matter under discussion, the Minister had to withstand criticism from the hon. and learned Member for Perth and Kinross, who said that religious bodies are just as prone to wrongdoing as any other body. From that, the Minister argued that we should have no exemption for religious bodies. I did not accept that point of view; many of my colleagues and I were more worried about the fact that the exemption did not seem to be worth very much and the hurdles were such, to borrow a phrase from another setting, that it would be as easy for a religious body to gain the advantages of the exemptions as it would be for a rich man to get through the eye of a needle. Many people who should not be excluded would be excluded. That was our worry and that concern remains.
  I do not want to go through all the arguments, but I want to encourage the Minister to comment further on this matter. I am particularly concerned about the worth and practical application of the exemptions. Let us assume that a body has qualified for the exemptions as a religious body. The particularly important points are the accounts records in clause 3 and the annual accounts provisions in clause 4. We are told that a recognised body will not have to conform to those provisions.
  That is a quite substantial concession until, as I said in Committee, we consider new clause 16(2)(c), which states that there must be accounting records
  "and the auditing of accounts which appear to the Secretary of State to correspond to those required by sections 3 and 4 of this Act."
  I do not think that I am being obtuse or difficult when I suggest to the Minister that it is not clear what the exemption is worth. We do not need to accord with clauses

  1065
  3 and 4 or to run our accounts in compliance with those clauses, so long as the Secretary of State is "satisfied" that our accounts and audits correspond to clauses 3 and 4. That is a little puzzling, and the Minister should comment on it.
  Presumably there is a distinction between the two positions. Presumably a Church will be able to say to its auditor—or its board of managers, if it is part of the Church of Scotland—"We can accord to a certain standard which will get past the Secretary of State's scrutiny, but that is a lesser standard than that demanded by sections 3 and 4 of the Act, from which we are exempt."
  What is that gap? I agree that that is difficult for the Minister to answer, because it may not be defined. If the Minister defines it too generously, he will be open to attack by the hon. and learned Member for Perth and Kinross, who will say that he is lowering the standards and allowing the sinner to run away with the Church funds, metaphorically—and perhaps literally. On the other hand, if the Minister says that he will make it so tight that at the end of the day it will be just like clauses 3 and 4, as the new clause states, what on earth is the advantage of this new clause and this provision?
  The nub of the problem is that we do not know what we are being asked to agree to. Even those of us who have been reasonably diligent and have sat through the many hours of debate and have examined the new clause are none the wiser. That is the kernel of the argument. The Lord Advocate's powers of interdict and suspension under clause 5(2) and (6) and the powers of the Court of Session to manage under clause 6 are comparatively minor matters. At the end of the day, they arise only when some form of defalsification has been flushed out. There is a case for saying that, if that has happened in a charity, in any event those powers should apply.
  I ask the Minister to turn his mind to those matters. He warned us that he did not wish in any way to get involved in the spiritual affairs of the nation. His ancestors used to interfere freely in the spiritual affairs of the nation, as I remember from reading 17th-century Scottish history, but I do not want to encourage him in that respect. He started in his usual beguiling way by inviting us all to have a willing suspension of disbelief. My concern is that to accept the new clause or to pretend that we know what it means we must also have a willing suspension of disbelief. I am not very willing in that respect. The Minister must say a good deal more before he can expect hon. Members to nod the measure through.
  I am not in the least bit happy. I recognise that the Minister has a powerful argument and that he wrote to many organisations and that none objected. I must take cognisance of that, of course, but many questions, such as the definition of membership, are still unresolved. I fear that a large number of people in perfectly bona fide religious sects operating in Scotland at the moment may find that they are disqualifed from the advantages, ill-defined though they are, of this new clause. The Minister must be a good deal more specific than he has been so far.
  Mr. Menzies Campbell: I do not want to traverse the ground that was traversed at length in Committee. The new clause comes forward in substantially the same form as was considered by the Committee. I repeat one point that the Minister has not dealt with, and that is that subsection (1)(b) provides that, to qualify a body must
  1066
  "have as their principal activity the regular holding of acts of public worship".
  Certain religious bodies undoubtedly have as their principal purpose the promotion of a religious objective but do not necessarily have as their principal activity the regular holding of acts of public worship. Indeed, by their exclusive nature, some bodies do not permit admission to their ceremonies to people other than those who are already members. Therefore, they cannot be regarded as having as their principal activity the regular holding of acts of public worship, because the public do not have an unfettered right of access.
  That provision is unnecessarily restrictive. If a body is bona fide of a religious nature and has as its principal purpose a religious objective, why should it be subject to the restriction which this provision necessarily provides, that it must reflect that religious objective in the regular holding of acts of public worship? That point was raised in Committee, and so far in our proceedings the Minister has not considered it.
  I also draw to the Minister's attention subsection (2)(b), which reflects an alteration. The figure before the Committee was 5,000, not 3,000. There must be a justification for that change, and no doubt the Minister will tell us what it is.
  One of the effects of setting such a relatively high target is that a religious body that is set up with its principal purpose the promotion of a religious objective, even one that has as its principal activity the regular holding of acts of public worship, will not be able to qualify for the exemption that this new clause provides until it can demonstrate that it has a membership of 3,000 or more. That means that, for small bodies that start up, it may be difficult, if not impossible, to reach the threshold, yet they may be bona fide bodies that have as their principal purpose the promotion of religious objectives.
  Why has that hurdle been created in that way? What is the justification for inserting a threshold in terms of numbers? The new clause is far from satisfactory. I regret to say, bearing in mind what has already been described as the Minister's beguiling approach, that he has not really taken to heart the effective criticism that was advanced against the new clause in Committee. That is a great pity, because the exemption is something that we should introduce into our law for the benefit of religious bodies. It is a great pity if the exemption, as drafted, makes it difficult for certain bodies, which would otherwise justifiably be entitled to claim that exemption, to bring themselves within the embrace of the provision.
  I hope that the Minister will at least consider the matters that I have raised and now tell the House something of the thinking behind the new clause.
  Sir Hector Monro: This will be just a short intervention. Perhaps my hon. Friend the Minister will tell us something about the thinking behind the change to 3,000 members, and about which Churches will now be exempted that were not exempted before. That would give us some idea about the discussions and consultations that he has had since the Committee gave the almost unanimous view that the original clause was not satisfactory. I am sure that my hon. Friend has had discussions with various Churches, so perhaps he could let us know which ones made him change his mind.
  4.15 pm
  Mr. Harry Ewing: I am disappointed that the Minister has brought these provisions back to the House, because they have nothing to do with the right to religious freedom. It is confusing the issue—deliberately, in my view—for the Minister to introduce the new clause by making it clear that everyone has the right to exercise religious freedom. There is no debate about that. There is no difference between any of us participating in this debate on the issue of a person's right to exercise religious freedom.
  I am not saying that I do not believe the Minister when I say that I am surprised that the Scottish Churches Committee has not written to hon. Members on this issue. Scottish Churches are never slow to write to hon. Members on a range of issues—that is quite right, and I am not criticising them for it—but in this debate we are being led to believe that, although this is an issue on which Scottish Churches feel strongly, and although they knew that we would debate the matter today, they have not taken the trouble to write to the right hon. and hon. Members.
  I should like to nail my colours to the mast erected by the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn). Here I part company, to a certain extent, with my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), because I do not accept that Church charities—religious charities—should be treated separately or differently from the Royal National Lifeboat Institution, the boy scouts, the Boys Brigade or any other reputable charity in Scotland.
  I have not yet heard any explanation for that exemption or difference in treatment. If the Minister is making an exception, I do not understand why it should apply only to a religious body. Furthermore, I honestly cannot see the difference between a religious body that has 3,000 members and one that has 30 members. They are both religious bodies. The new clause is so artificial that it does not bear discussion in this House. However, as the Minister has tabled it, we must discuss it.
  As a member of the Church of Scotland, I know what happens when the Church decides to remove non-communicants from the roll. I suspect—I have no doubt that I shall receive a letter from the Church either rejecting or confirming my comments—that in future, in order to keep the number on the roll above the numerical limit that the Bill seeks to impose, fewer non-communicants will be removed from the register than in the past. I do not believe that that will do religious worship, the Church of Scotland or any other religious organisation any credit.
  What saddens me even more—I shall not say "angers me" because I have never found it possible to get angry with the Minister—is that we could have defeated him in Committee and taken the clause out of the Bill. In those circumstances, the Minister would not have dared to bring it back to the House, but we took the Minister at his word when he told us that he was going to take the clause away and have a rethink. But he has brought it back, and the extent of the rethink is a reduction from 5,000 to 3,000 in the level of qualifying membership.
  I shall not vote against the new clause, because there are other important aspects of the Bill that my colleagues want to discuss. However, I want to place on record my regret that the Minister has chosen to table the new clause. I would love to hear an explanation of why religious
  1068
  charities should be treated differently from the Royal National Lifeboat Institution, the Boys' Brigade, the boy scouts, the Cancer Research Campaign, the Multiple Sclerosis Society or any other charity with national standing that anyone cares to name. There is no difference, because they all serve a marvellous purpose and should all be treated on the same basis. One of them should not be given privileged treatment, as it is in the new clause.
  Mr. Allan Stewart: I do not often agree with the hon. Member for Falkirk, East (Mr. Ewing), but he has put his finger accurately on a number of key points that the House must consider. Like him, I was not only disappointed but astonished when my hon. Friend the Minister, with his customary courtesy, told me last night, when I had not yet read the amendments, that the new clause would be on the Notice Paper for the House to consider today. While the Minister said that he would take away the clause and reconsider it, which he has done—the House should be clear about that—my interpretation of the debate, like that of every other member of the Committee, was that the clause would either be withdrawn completely or radically altered.
  Let us consider the history of the new clause. The Bill has taken a long time to pass through the two houses, and the provisions were not in the original Bill or in the Bill considered by the other House. To my knowledge, the matter was not raised in the other House, although I could be wrong. It certainly was not raised on Second Reading, but suddenly came to the Committee out of the blue, where it was torn apart by both sides of the Committee. The hon. Member for Falkirk, East was undoubtedly correct to say that, if the original clause had been forced to a Division in Committee, it would have been lost.
  Although he has spoken with his customary courtesy, my hon. Friend the Minister must expand his explanation and tell us who are making the representations for the new clause. He has mentioned a committee. Like the hon. Member for Falkirk, East and all Scottish Members, I receive a large number of representations from Churches of all denominations on a wide range of issues. I have not received representations from people arguing for the new clause. My hon. Friend the Minister has referred to the strong representations that he has received, and I have no doubt that the Scottish Office has received strong representations. But if Churches feel so strongly about the matter, why have hon. Members not received strong representations? My hon. Friend the Minister is not at the pearly gates yet and does not answer to the Churches but to the House and to hon. Members.
  The Minister has said that there are no objections from the minor churches—I think that that is the correct term—or the non-Christian Churches. I realised that point in Committee, and I am grateful to him for consulting non-Christian churches. Will he tell the House more about what "no objections" means? It could simply mean that a letter is still sitting in somebody's pile somewhere. There is a difference between people positively saying that they are quite content with something, and not responding to it at all.
  My fundamental objection to the new clause, even as amended, relates to the point made by the hon. and learned Member for. Fife, North-East (Mr. Campbell) in Committee. I should prefer there to be no exemptions, but if there are to be exemptions let them be logical and rational. What is the justification for 3,000? This is not a

  1069
  statutory instrument; the House is considering primary legislation which cannot be changed without a new Bill. What happens if a Church passes the threshold or if it becomes a little less popular and drops just below the 3,000 point? Who is to decide? The House should not readily agree to the idea of a numerical threshold anyway.
  In passing, it is worth pointing out that, if the new clause had been around in Jerusalem in AD 30, our Lord and his disciples would not have qualified—they would not have met the criteria. There was no way in which they could have formed a designated religious body.
  The House is being asked to differentiate between religious bodies on purely arbitrary grounds: the number of years for which they have been established and the number of members that they allegedly have. Dividing Churches into these two categories on the basis of wholly arbitrary criteria is fundamentally wrong.
  Mr. Jim Sillars: Those of us who come in on Report are at a disadvantage compared with hon. Members who took part in the detailed, intimate examination in Committee, but it is interesting to see a consensus developing between the hon. Members for Falkirk, East (Mr. Ewing) and for Eastwood (Mr. Stewart). I go along with them; I see no rational grounds for the new clause. Indeed, the hon. Member for Eastwood took it apart, and if it was taken apart in Committee, the most sensible course of action would be for the Minister to withdraw it this afternoon.
  I agree with the hon. Members for Eastwood and for Falkirk, East that there is no sense in trying to exclude all other organisations by including the religious bodies. Let us examine the new clause in the light of the Minister's argument. Religious bodies are designated, but subsections (1)(a) and (b) contains a serious contradiction, which would probably exclude the adherents of Islam. Subsection (1)(a) reads:
  "to have as their principal purpose the promotion of a religious objective".
  Islam would probably qualify under that, but there is a second condition:
  "to have as their principal activity the regular holding of acts of public worship".
  It does not necessarily follow that that would include Islam. In fact, arguments could be adduced to show that it excludes Islam, which is very different in its theology and practice from the Christian religion.
  Public acts of worship form an important part of the whole ethos of Christianity, but the same is not true of Islam. For example, the adherents of Islam pray five times a day—there is a moving clock as the year progresses. There are no major acts of public worship at 2 am either in Glasgow or in Saudi Arabia. Islam is noted for a fundamental belief that there is a short and direct connection between the adherent and God, whereas in Christianity there are many moderators between the adherent and God. Ministers and priests play a far larger role in the Christian religion than do their counterparts, if such there be, in Islam, particularly among Sunni Muslims.
  If I were a follower of Islam, where would I fit in in those circumstances? It may be an unhappy consequence of putting new clause 16 on the statute book that, somewhere along the line in two or three years' time, an Islamic group comes along, there is a proper reading of the statute and they are told that, unlike their Christian brethren along the road, they are excluded from the
  1070
  provisions of what the hon. Member for Eastwood correctly pointed out is not a statutory instrument that can be easily altered but a fundamental Act of Parliament. I think that we are entitled to hear from the Minister whether I am correct in my interpretation of the potential exclusion of Islam from subsection (1)(a) and (b).
  I noticed that, in the letter that the Minister sent to the hon. Member for Glasgow, Garscadden (Mr. Dewar)—copies of which were received by members of the Committee—he said that he did not receive representations from minority and non-Christian organisations. However, did he specifically raise with the Islamic community in Scotland the problems that might arise under new clause 16?
  4.30 pm
  Dr. Godman: I wish to express disappointment at the conduct of the Minister, who is usually a generous and courteous Member of the House. He has not played the game with Committee members over the new clause.
  As others have said, the new clause might well have suffered defeat as it was originally worded if it had been put to a vote in Committee. The Minister will recall that I expressed serious reservations about its precursor. My concern was that small sects—such as Brethren, which have existed in some of our maritime communities for a considerable time—might well be excluded from the new clause because they had fewer than 3,000 members. Such small religious bodies are increasingly populated by elderly members; as the hon. Member for Eastwood (Mr. Stewart) has said, what happens when their numbers fall below 3,000? The figure of 3,000 is the defining criterion in the new clause.
  I should like to hear from the Minister whether he or his officials contacted any of those small religious bodies in our maritime communities—and other communities—to obtain their views on such a clause. I repeat that he has not played the game, and my advice to him is, "Take the new clause away".
  Where the interests of small and perhaps declining—in terms of numbers—sects are concerned, it is not good enough. The Minister should think again before attempting to bring such a measure to the House.
  Sir Nicholas Fairbairn: I do not want to be contentious on this Bill. I apologise to the Minister if by the slightest chance he feels that I am being duplicitous, but the new clause was not among the many communications that he sent me, with great courtesy and kindness. It therefore came as a surprise to me to discover, at 2.30 pm, that the new clause had got back into the Bill.
  I think that the matter is far more serious than has been suggested by any hon. Member who has spoken so far. We have not been slightly annoyed or partially misled; nor do we think that it is not quite right in detail. We have been totally misled, and it is entirely wrong in principle. As those who were not on the Committee will not know, but those who had the fortune—or misfortune—to be on it will, if we had not been misled, without the slightest question the new clause would have been roundly defeated and would never again have seen the light of day. In a spirit of Christian peace and light, we interpreted the Minister's view to be that he would take the animal out of the stable and that it would have its throat cut out of our

  1071
  view. However, it has come back and that is a rotten trick with which to start the debate on Report. I beg the Minister to do the honourable thing and forget it.
  It is offensive that the new clause again proceeds upon a false principle that was torn apart by hon. Members in all parts of the House. Either out of deference towards what is called religion, whatever that may be—I do not think that one could get agreement on it—or because of some fear of touching the cloth, we divide Christians into non-sinners or presumed non-sinners and those who work for or collect funds for a charity, who are assumed to be guilty.
  We should be clear about some of the exemptions that apply to the so-called religious bodies. To illustrate that, one can do no better than to look at clause 7(1) which says:
  "A person who—

  (a) has been convicted of an offence involving dishonesty;

  (b) is an undischarged bankrupt;

  (c) has been removed, under section 6 of this Act, from being concerned in the management or control of any body; or

  (d) is subject to a disqualification order under the Company Directors Disqualification Act 1986."

  That person is allowed to act for a religious charity but not for any other. I can understand the concepts of compassion and forgiveness of sin, but I cannot understand why a Christian who has committed a crime of dishonesty should not be allowed to raise funds for lifeboats whereas a Christian who is an undischarged bankrupt or who has been convicted of a crime of dishonesty is allowed to raise funds for a priest's retirement. The whole concept is not only confused but basically dishonest.
  Let us look further into the matter. I do not know why it should be assumed that we do not touch the cloth. I have defended a few priests for the most serious offences. I appeared in a case in which the priest said to Lord Wheatley, who was a Catholic, "I suppose you will not expect me to give evidence that breaks the confidentiality of confession." Lord Wheatley said, "No, and I will not expect you to commit perjury either, by breaking the oath that I have just administered. My advice to you, Father, is to bring your toothbrush tomorrow."
  Dr. Godman: I hope that that was not in Greenock.
  Sir Nicholas Fairbairn: There are no lady priests, so this one could not be confined in Greenock.
  I understand that we are all equal in the sight of God. This new clause arises from a ridiculous English concept that the established Church is somehow above the law. It has nothing to do with Scotland. Surely the Christian or the religious person would be the first to put his hand before the fire and the first to say, "Search my pockets, take my records, arrest me, prosecute me, do what you will for I know that I am pure," or "I know that I have sinned"—whichever it is.
  As I said earlier, even with a membership down to 3,000—I do not know whether that is at the Lord Chancellor's behest—half the split Free Presbyterian Church does not qualify. It is split into two parts, one of which consists of about 1,200 members. That is the part that thinks that it has the funds, which is a good reason, if ever there was a good reason, why it should not be exempted. I do not know whether the good Samaritan was an atheist. I do not
  1072
  understand why assumptions should be made about his charity if it were discovered that he was, or was not, a faithful Samaritan.
  This is a most serious matter. The new clause refers to minor religious bodies, whatever a religious body might be. I should have thought that the fervency of those who collect for lifeboat charities—for those in peril on the sea—would make them a religious body. I should have thought that the fervency of those who collect for the Save the Children Fund would make them a religious body. First, the clause is meaningless; secondly, it is hypocritical; thirdly, it is alien to the law of Scotland; and fourthly, it is an affront and wrong to exempt certain people from the activities of the Lord Advocate—when charities have to be subjected to such—on the presumption of holiness.
  I remember a case in Glasgow when the head of the criminal investigation department declined to arrest a priest because he was of the cloth. That priest turned his back until he reached Ireland, where he successfully resisted his extradition to Britain on the ground that the explosives in his possession made his a political crime—yet in the witness box in Glasgow he had given evidence in support of my client and claimed that he had no knowledge of those explosives.
  We should not imagine that the human beings who profess a religious belief—whatever that is—and can persuade 2,999 others to join them are holier than the rest of us. So that he can demonstrate that he is not holier than the rest of us, I suggest that my hon. Friend the Minister withdraws the clause so that we can proceed with the Bill.
  Mr. John McAllion: The Minister said that the purpose of the 3,000 limit was, at least in part, to exclude cult Churches from benefiting under the clause. I hope that he agrees that neither the Society of Friends nor the Unitarian Church could be described as cult organisations. However, their numbers in Scotland may well fall below the 3,000 limit. Has the Minister consulted either of those Churches and does he know specifically what the impact on them will be if the clause is passed?
  My local Unitarian Church in Dundee has asked me to do everything possible to ensure that the clause is not reinstated in the Bill. If that is the flavour coming from Dundee, I suspect that it is the flavour coming from the Quakers and the Unitarian Church throughout Scotland. I hope that the Minister will deal specifically with the question of those two Churches. When he listed the minor Churches that had been consulted, he did not mention either of them.
  Mrs. Maria Fyfe: I do not want to prolong the debate on this issue because there are a great many important aspects of the Bill that we wish to discuss. The Minister's press release referred to the question posed by the hon. Member for Glasgow, Govan (Mr. Sillars) about consultation with the minor Churches, including non-Christian denominations. The Minister nods. Does he recall that that point was pressed vigorously in Committee by several hon. Members, and that he undertook to begin that consultation?
  To which bodies did the Minister write? To which non-Christian denominations did he write? When did he write to them? What length of time did he give them to reply? My hon. Friend the Member for Dundee, East (Mr. McAllion) said that the Unitarian Church had expressed concern about the Bill, but it appears from the Minister's

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  press release that it did not take the opportunity to reply. Perhaps it did not have sufficient time to do so. The Government have a bad record on the way in which they consult—it is often done in a manner designed to create the least possible dissent from their views.
  4.45 pm
  Lord James Douglas-Hamilton: Some hon. Members have questioned the disapplication of the provision for exempted religious bodies. All religious bodies would probably view the question of what criteria should be used in the appointment of their members to offices in their organisations as a matter for them. We felt that it was necessary to recognise the legitimate interest of religious bodies, and we have therefore retained the provision for such bodies. We have incorporated the two-tier supervisory structure. That will provide the public with the necessary reassurance that the religious bodies will apply their own tests of reasonableness within their own structures. We believe that they will make decisions in which their members and the public can have confidence. Any religious body, on the introduction of a two-tier structure, can obtain the benefit of the exemption provisions.
  The hon. Member for Dundee, East (Mr. McAllion) referred to the Unitarian Church. It is ruled out because it does not have a two-tier structure. It is a member of the Scottish Churches Committee, which supports the clause, although the Unitarian Church may not. The Society of Friends would not meet the criteria. It may, however, be a recognised English body. Following consultation, it is clear that the religious bodies, especially the Scottish Churches Committee, strongly support the provision.
  The question posed by the hon. Member for Glasgow, Govan (Mr. Sillars) concerns me. I have every reason to believe that there is no impediment to giving Muslims recognition under subsection (1)(b). We explained to all the bodies consulted exactly what the clause contained.
  The hon. Member for Glasgow, Garscadden (Mr. Dewar) mentioned the keeping of accounts. That is covered in subsection (2)(c), which requires that
  "the internal organisation of the body is such that one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the body and, in particular, that there are imposed on such component elements requirements as to the keeping of accounting records and the auditing of accounts which appear to the Secretary of State to correspond"—
  that is the important word—
  "to those required by sections 3 and 4 of this Act."
  Mr. Dewar: I do not understand the meaning of the word "correspond" in this context. If the Minister is saying that the component elements will have to meet the exact same tests as those included in clauses 3 and 4, by definition the exemption is worthless. If he is saying that they do not have to meet those tests, the word "correspond" appears to have a rather peculiar definition, which he should give us.
  Lord James Douglas-Hamilton: As a rough and ready definition, the word "correspond" means "equivalent to". The point is that the Churches wish to exercise the supervision themselves. The question is whether they can be trusted to do that satisfactorily in the public interest, and I believe that they can.
  Mr. Dewar: The Minister has said something of interest, which I wish to understand. It appears that he is saying that, for the accounts and auditing procedures, he anticipates that the Secretary of State will insist on exactly the same standards as if clauses 3 and 4 applied. If so, it is not a matter of trusting the Churches, because it is the duty of the Secretary of State to be satisfied on that point and to insist upon it. The Minister is giving the Secretary of State the job of insisting that, in effect, clauses 3 and 4 are complied with. That is a distinction without merit.
  Lord James Douglas-Hamilton: I do not see why there should be any concern about the accounts. The Churches are concerned instead about whom they should appoint to the offices in question. They feel that should be a matter for them, that they should have their own supervisory arrangements, and that they can perform those functions at least as well as anybody else. They do not want the state to interfere in their affairs. Whether or not their fears are well founded, they firmly hold the convictions that they do.
  Mr. Menzies Campbell: The Minister's announcement that Quakers will not qualify under new clause 16 will come as something of a surprise to people in Scotland. That apart, the clause introduces a new limit of 3,000 persons, whereas the figure was 5,000 in Committee. Why has that change been made, and what is the purpose anyway of a qualifying figure? If the organisation fulfils the other criteria but has only 1,500 members, why should it be debarred from taking advantage of the exemption in new clause 16?
  Lord James Douglas-Hamilton: The purpose was to avoid the inevitable descent into sects. A line had to be drawn somewhere, but not so low that cults having dubious purposes would be admitted. After due consultation, it was felt that a figure of 3,000 provided a suitable dividing line at this stage—although, in my view, it could be reviewed in due course.
  The bodies that were consulted were the Hebrew congregation, the Islamic faith, Jehovah's Witnesses, the Church of Jesus Christ of the Latter Day Saints, the Society of Friends, the Salvation Army, and a variety of smaller bodies.
  Mr. Sillars: What will happen if there is a cult with 4,000 members?
  Lord James Douglas-Hamilton: That will depend on whether it satisfies the terms of the clause. I use the word "cult" advisedly. The hon. Gentleman may recall that some years ago a person who purported to be a religious leader caused a large number of young people to commit suicide. We must obviously be extremely careful, for that is not the type of activity that should be supported.
  All the Churches that I mentioned have memberships above the 5,000 limit. I remind right hon. and hon. Members that new clause 16 has the support of all the major Churches in Scotland, representing more than 1·5 million members over the age of 16. No body has made strong representations against the provisions.
  Question put and agreed to.
  Clause read a Second time, and added to the Bill.

New clause 23

  DORMANT ACCOUNTS OF CHARITIES IN BANKS ETC
  '(1) The Secretary of State may appoint a person to be the Scottish charities nominee (in this section referred to as "the nominee") who shall have the functions conferred by this section.
  (2) Where the nominee receives from a relevant institution the following information—

  (a) that every account held by the institution in the name of or on behalf of a named body is dormant; and

  (b) the amount of the balance standing to the credit of the body in each such account,

  and he is satisfied that the body is a recognised body, subsection (3) or, as the case may be, subsection (5) below shall apply as regards the body and such accounts.
  (3) Where the aggregate amount standing to the credit of the body in such accounts as are mentioned in subsection (2) above does not exceed £5,000, unless it appears to the nominee—

  (a) that a person is concerned in the management or control of the body; or

  (b) that there are circumstances relating to the body which would make it inappropriate to do so,

  he shall transfer the balance standing to the credit of the body in such accounts to such other recognised body as he may determine, having regard to the purposes of the body in whose name or on whose behalf the accounts are held and those of the body to which it is proposed to transfer the funds; and the body to which the funds are transfered under this subsection or subsection (4) below shall be entitled to apply such funds for its purposes as it thinks fit.
  (4) Where, in the case of a body to which subsection (3) above applies, the nominee is unable to ascertain the purposes of the body in whose name or on whose behalf such accounts are held, he shall transfer the balance standing in the name of the body concerned to such other recognised body as appears to him expedient.
  (5) Where the aggregate amount standing to the credit of the body in such accounts as are mentioned in subsection (2) above exceeds £5,000 or in any case to which paragraphs (a) or (b) of subsection (3) above applies, the nominee shall advise the Lord Advocate of the information received by him in respect of the body and of any other matter which appears to him to be relevant in the circumstances.
  (6) Where the Lord Advocate receives information in pursuance of subsection (5) above he shall inform the nominee—

  (a) in the case of a body which is a trust, whether he intends to exercise his power under section 11(2) of the Act to appoint new trustees to the body; or

  (b) in any case, if he intends to apply to the Court of Session for the appointment of an interim judicial factor under section 6(4)(c) of this Act,

  but if the Lord Advocate informs the nominee that he does not intend to proceed under either paragraph (a) or (b) above, subsection (3) above shall apply as regards the body and such accounts as are mentioned in subsection (2) above as if the aggregate amount of the balance referred to in subsection (3) did not exceed £5,000 and neither paragraph (a) nor (b) of that subsection applied.
  (7) Notwithstanding anything in any enactment or rule of law to the contrary, the nominee shall, by virtue of this subsection, have the right to effect any transaction (including a transaction closing the account) in relation to any account to which subsection (3) above applies; and the receipt of the nominee in respect of any funds withdrawn or transferred from an account by virtue of this subsection shall, as regards the interest of the nominee in respect of such funds, be a full and valid discharge to the relevant institution holding the account.
  (8) No liability (other than liability for a criminal offence) shall attach to the nominee in consequence of any act or omission of his in the performance of his functions under this section.
  (9) The power of the nominee to effect transactions in relation to the accounts of a body shall cease to have effect—

  (a) when the Lord Advocate notifies him of his intention to proceed under subsection (6) above;

  (b) if the relevant institution by which the accounts are held notifies the nominee that the accounts held by or on behalf of the body are no longer dormant; or

  (c) where the nominee becomes aware of the identity of a person concerned in the management or control of the body, when he informs the institution of that fact,

  and in any case to which paragraph (c) above applies, the nominee shall also inform the Lord Advocate of that fact.
  (10) The Secretary of State may, by regulations made under this section—

  (a) make provision as to the procedure to be followed by the nominee in exercising his powers under this section;

  (b) require the nominee to make to the Secretary of State an annual report as regards the exercise of his functions and such regulations may specify the form and content of such report; and the Secretary of State shall lay a copy of such report before each House of Parliament;

  (c) prescribe the circumstances in which and the extent to which the nominee may apply any interest accruing to any account as regards which subsection (3) above applies during any period for which he is entitled to effect transactions in respect of the account for the purpose of defraying his expenses in connection with the exercise of his functions under this section;

  (d) require the nominee to keep accounts as regards his outlays and expenses in connection with the exercise of his functions under this section; and

  (e) amend subsections (3) and (5) above by substituting a different figure for the figure for the time being mentioned in those subsections.

  (11) Where every account held by or on behalf of a body which appears to a relevant institution to be a recognised body is a dormant account, no obligation of confidentiality or requirement of secrecy (whether imposed by any enactment or rule of law or otherwise) shall prevent the institution from supplying to the nominee information such as is mentioned in subsection (12) below.
  (12) Information referred to in subsection (11) above is information relating to any account such as is mentioned in that subsection above which consists of any of the following:—

  (a) the amount of the balance of the account as at the date the information is supplied;

  (b) the last date on which a transaction (other than a transaction consisting only of the accrual of interest to the account) was effected in relation to the account;

  (c) so far as is known to the institution, the terms of the trust deed or other document constituting the body or any information as to the nature of the purposes of the body.

  (13) For the purpose of this section—

  (a) a "relevant institution" is—

  (i) an institution which is authorised by the Bank of England to operate a deposit-taking business under Part I of the Banking Act 1987;

  (ii) a building society which is authorised by the Building Societies Commission under section 9 of the Building Societies Act 1986 to raise money from its members;

  (iii) such other institution mentioned in Schedule 2 to the Banking Act 1987 as the Secretary of State may, by regulations made under this section, prescribe;

  (b) an account is dormant if—

  (i) in the period of ten years preceding the date on which the institution reviews the account, no

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  transaction (other than a transaction consisting only of the accrual of interest to the account) has taken place in respect of the account; and

  (ii) the institution has no knowledge of the identity of any person concerned in the management or control of the body in whose name or on whose behalf the account is held.'.—Lord James Douglas-Hamilton.]

  Brought up, and read the First time.
  Madam Deputy Speaker (Miss Betty Boothroyd): With this it will be convenient to debate Government amendments Nos. 90 and 91.
  Lord James Douglas-Hamilton: In Committee, the hon. Member for Cunninghame, North (Mr. Wilson) tabled an amendment which would have required banks to identify accounts of recognised bodies which had lain unused and to require the Inland Revenue to list such bodies. The object of the hon. Member's clause was for moribund charitable funds to be brought back into use. That principle was warmly supported by Committee members, and I gave the hon. Member an assurance that I would explore with the banks how such moneys might be brought back into charitable use.
  The Committee of Scottish Clearing Bankers and the Building Societies Association have been co-operative in exploring how moribund charitable funds might be brought into use. We propose to remove any duty of confidentiality from the relevant institution in respect of dormant accounts and to enable them to inform an authorised person—the Scottish charities nominee—of such accounts. They will pass to the nominee details of the account holders' funds, and information as to the founding document. The nominee is to be satisfied that the account holders are recognised bodies. He will be concerned only with those which are recognised bodies. The nominee will have a right to effect transactions in respect of accounts.
  The nominee will take different actions according to whether the aggregate amount in the account is £5,000 or less, or more than £5,000. Where the amount is £5,000 or less, subsection (3) procedures provide that the nominee may transfer the balance to such other recognised body as he may determine, having regard to the purposes both of the moribund body and of the body to which he transfers the funds. In many instances, the amounts will be small, and it will not be economically viable to appoint new trustees. Frequently, trust deeds will not be located and therefore there will be no means of appointing trustees. The important consideration is that the money is made available for charitable use, so he is empowered under subsection (4) to transfer funds to such other recognised body as appears to him expedient.
  Subsection (5) relates to accounts with funds amounting to more than £5,000 and to cases under subsection (3)(a) and (b). Under that subsection, the nominee is to advise the Lord Advocate of the information received from the relevant institution about the body together with any other relevant matter. Under the powers of clause 11(2) and clause 6(4), the Lord Advocate is able to appoint trustees or to apply for the appointment of an interim judicial factor. Where the Lord Advocate does not so act, the nominee shall dispense the funds in the same way as those under £5,000.
  Subsection (10) empowers the Secretary of State to make certain provisions by regulations. They include the procedures to be followed by the nominee in exercising his
  1078
  powers, in reporting annually to the Secretary of State. They also require him to keep accounts under subsection (10), and the Secretary of State is to lay a copy of the report before each House of Parliament.
  The functions of the nominee must be paid for. Subsection (10)(c) enables my right hon. and learned Friend to prescribe the circumstances in which, and the extent to which, the nominee may apply any interest accruing during the period when he may effect transactions. Such interest would be used for defraying the nominee's expenses. There will therefore be no public expenditure implications.
  Power for the relevant institutions to report to the nominee are included in subsections (11) and (12). Clause 11 removes any duty of confidentiality while subsection (12) sets out the information to be provided to the nominee. I have received an assurance from the banks that their branches will undertake routine periodical trawls of dormant accounts to identify any that they believe fall within the definition of "recognised body". The institutions have assured me that they will make every effort to identify moribund charitable accounts and will make particular efforts to identify accounts with balances in excess of £50. Below that figure, the cost of the efforts involved in addressing the matters becomes a balancing factor, but they have undertaken to use their best endeavours.
  Given the assurances and co-operation of the relevant institutions, I am confident that this new provision will prove a very worthwhile innovation in ensuring that good use is made of charitable funds.
  Sir Nicholas Fairbairn: The criteria in subsection (13)(b) are very rigid, referring to
  "the period of ten years preceding the date on which the institution reviews the account"
  and to the institution having
  "no knowledge of the identity of any person concerned in the management or control of the body".
  Ten years seems to me to be an arbitrary period. Surely it should be that if the institution has lost contact with any person concerned with the body's management, the funds will be considered dormant in those circumstances.
  Lord James Douglas-Hamilton: I sympathise with the point that my hon. and learned Friend makes. We entered into detailed negotiations with the banks, and new clause 23 is drafted in such a way as to ensure that it can be effectively implemented. The spirit of the amendment proposed by the hon. Member for Cunninghame, North has been honoured; although a slightly different approach has been taken, nevertheless substantially the same objective is achieved in bringing funds into use. I am grateful to the hon. Member for Cunninghame, North for raising the matter and I hope that the House will support the clause.
  Mr. Wilson: This is probably the first evidence I have seen since entering the House of a good idea—if I can claim that for it—being translated into legislation. I am grateful to the Minister and to his civil servants for the work that has gone into producing what I hope is a useful reform, and one that was not conceived of at any stage of the Bill.
  Scotland will be taking the lead with this interesting innovation, and if it proves half as relevant as was suggested in Committee, it may be viewed with envy by other parts of the United Kingdom. In Committee, I

  1079
  qualified the value of my proposal but said that it could be useful in some cases—but as other members contributed their anecdotes, the suspicion grew that perhaps we were on to something much bigger than I had realised at the outset. It remains to be seen just how substantial that innovation will be.
  The basic point, which I shall reiterate for hon. Members who were not on the Committee, is that in my experience and in random contacts and researches in every rural and urban community in Scotland, there are funds which were raised for some specific purpose and which, for all sorts of historical reasons, have fallen into dereliction. In some cases, those funds have lain in banks for many years and no one knows that they are there: their purpose and the people who administered them have become lost in the mists of time.
  I shall follow this matter with considerable interest to see if we shall uncover something big or whether the funds are more modest.
  5 pm
  Sir Nicholas Fairbairn: I congratulate the hon. Gentleman on achieving the amendment. Many private accounts which were set up by or for people who are now dead, must be sitting in the coffers of banks. Perhaps he would like to table another amendment to the next law reform Bill to deal with those.
  Mr. Wilson: I should be so lucky. However that is a good point, and the hon. and learned Gentleman may recall that one of his English colleagues said in Committee that a Select Committee had discovered that literally tens of millions of pounds were being held in accounts on behalf of people who had gone into mental institutions or similar places. Money in bank accounts which to all intents and purposes have become defunct could amount to a great deal. We are taking the first step in Scotland, and I warmly welcome it.
  For my own clarification, as I am sure the Minister has attempted to meet the spirit of the original amendment, I shall ask him two questions—the first about the term "recognised bodies". As more than a few months have intervened, I have perhaps become hazy about all the debates that we had about recognised bodies, but in practical terms, are we talking about the type of organisation established perhaps 100, 50 or 30 years ago—in most cases pre-war—when the definitions of a recognised or non-recognised body were not current, as they have only recently become?
  Within the terms of the clause, will the phrase "recognised bodies" give the nominee access to the type of accounts which I have described? That question is purely for information, as the answer obviously could transform the situation, and I might have to withdraw everything good I said if that is not the case.
  Lord James Douglas-Hamilton: The answer is yes.
  Mr. Wilson: That is excellent; I shall withdraw nothing.
  Secondly, I should like clarification about the public availability of information given to the nominees. I should have thought that to some extent the activities of the nominee should be demand-led. If a village hall is to be built, and folk can check up and find that there is a 50-year-old village hall fund which no-one knew anything
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  about, then that is clearly better than having to wait for the nominee to tell them at some random time that such a fund exists. Will there be public access to the information that the nominee obtains?
  Lord James Douglas-Hamilton: Is the hon. Gentleman aware that the nominee will have to publish an annual report and from time to time may have to advertise information depending upon the situation, and that that matter is currently being looked into?
  Mr. Wilson: I know about the annual report and I welcome it, but it will deal with what has been done in the past year, rather than list funds and give an idea of what the nominee may do. However, I am happy to leave the matter there. Clearly, once a register of such funds is established, there should be public access to it.
  I do not want to delay the House, and I am delighted with what the Minister has done. I am perfectly happy with the mechanisms drawn up to bring this into effect. We shall know within a year or two whether the measure will be substantial. The important thing is the certainty that, in some communities in Scotland, money which would not previously have been available for useful purposes, which was given for useful purposes, will be unlocked because of the new clause. In that spirit, I thank the Minister for his efforts.
  Madam Deputy Speaker: Does the Minister wish to respond before I put the Question? He does not have to, as there seems to be a degree of agreement.
  Lord James Douglas-Hamilton: No.
  Question put and agreed to.
  Clause read a Second time, and added to the Bill.

New clause 7

  DUTIES OF COMMISSIONERS OF INLAND REVENUE
  'If any person requests from the Commissioners the name of any recognised body or other information relating to that body set out in section 1(1)(b) of this Act it shall be the duty of the Commissioners to supply that information in so far as it is in their possession.'—[Mr. Dewar.]
  Brought up, and read the First time.
  Mr. Dewar: I beg to move, That the clause be read a Second time.
  A minute ago, Madam Deputy Speaker, you referred to a degree of agreement. I guess that that will not exist with this new clause. I fear that the gap between myself and the Minister over this clause is unbridgeable.
  I regard this clause as a matter of some importance, because I hate to think how many hours we spend discussing the first 13 clauses of the Bill in Committee. As every hon. Member who has taken even a passing interest in the Bill will know, in those 13 clauses we have erected an extraordinarily complex machinery of control and scrutiny.
  We considered rules for accountants and auditors, and the powers of investigation of the Lord Advocate and the Court of Session, and we immersed ourselves in the world of recognised bodies, non-recognised bodies, registered charities and non-registered charities operating in Scotland, and in the problem of what constituted a Scottish charity, which greatly interested us. Many of those bodies had inescapable duties laid upon them, carrying the full force of the law. All that hung on the peg

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  of a new definition of charity, and a new availability of information about charities existing in Scotland which was to come from the Commissioners of Inland Revenue.
  What astonished me, and no doubt other hon. Members, in Committee was that, although we were laying down duties for members of charitable organisations, we were laying no duty upon the Commissioners of Inland Revenue to make the basic information available about whether a charity was recognised for tax purposes.
  That was a key matter, because the writ of the Charity Commissioners does not run in England. There is no register of charities which one can consult at present. We were going to put that right by giving people the opportunity to obtain information about who or what is registered for tax purposes as a charity by applying for it to the Commissioner of the Inland Revenue.
  I was amazed to discover, in part I, clause 1(i) of the Bill that there is
  "No obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise shall prevent the Commissioners of Inland Revenue (in this section referred to as "the Commissioners") from disclosing … to any person who requests it, the name of any recognised body and the address last used by the Commissioners for any communication with the body and the year when such communication occurred."
  The Minister explained that he did not wish to make it a duty to give us such information. After all, the Inland Revenue might be in difficulties—presumably it might be in the middle of some cost-cutting exercise or have a difficulty over staff. In theory, because there is no duty to provide information in the Bill, one is merely removing an inhibition that might prevent it from giving such information.
  If I turned up and said that I wanted to find out about body X, and whether it is recognised as such, as defined in part I of the Law Reform (Miscellaneous Provisions) (Scotland) Bill, the Commissioners of Inland Revenue might say that, for various reasons, they had fallen behind with their work in compiling the records, they are hard pressed and, in one way or another, it is not very convenient; and they could ask me to go away and come back at some future date. Legally, there will be no reason why they should not do that.
  The Minister will no doubt say, "It won't be like that; the CIR will carry out their part of the bargain." But there is no legal imperative that they should do so. That is an unsatisfactory state of affairs, which new clause 7 seeks to put right.
  We are erecting a complicated system around the duty to disclose which, it turns out, does not apply to the CIR. For example, let us consider the duty of a recognised body to make available on request to any member of the public an explanatory document setting out its aims and objectives. If it delays for more than one month in doing so, a complaint can be lodged with the Lord Advocate. If such complaint is lodged with him, then it may be noted for the purposes of clause 1(2). That is all posited on the assumption that there will be disclosure by the CIR.
  I take the simple view that it would make this whole construction a good deal more logical and understandable to everyone concerned if we imposed upon the CIR the duty of disclosure, as explained and described in clause 1. I hope, therefore, that the Minister will accept new clause 7. It is simple and straightforward and seems to me to provide justice to both parties to the bargain.
  Mr. Menzies Campbell: I support, as I did in Committee, the observations of the hon. Member for Glasgow, Garscadden (Mr. Dewar). When we create a sophisticated and, in some respects, an extremely onerous system for the regulation of charities in Scotland, a system which contains a number of explicit responsibilities and duties which we have not shrunk from spelling out in substantial—some would say overly substantial—detail, it is ludicrous to send this part of the Bill on its way if it does not contain an express duty to permit disclosure of the information that clause 1 is designed to elicit. As has been forcefully pointed out, if there is no duty, then, for any reason which may appear to be appropriate to the Commissioners of Inland Revenue, they may decline to make available the information that this part of the Bill is designed to give public currency.
  The Minister endeavoured in Committee—in my judgment, hardly successfully—to provide justification for the absence of that duty. He will remember that the way in which the relevant part of the Bill is framed creates a right for the CIR not be be bound by what is otherwise the universal rule of confidentiality. Even that came under scrutiny in Committee. The fundamental and central issue is whether the CIR are obliged to make information available. The absence of a duty of the kind that the new clause seeks to impose would make a substantial part of what this part of the Bill endeavours to bring about unattainable. I hope, therefore, that the Minister will be willing to accept the new clause or, if he is not prepared to do that, to give a better explanation for not doing so than he tendered in Committee.
  Lord James Douglas-Hamilton: Clause 1 rightly overrides the Inland Revenue's confidentiality rules, and empowers the Inland Revenue to disclose to the public the names and addresses of Scottish bodies that it recognised as charities for tax purposes. The new clause tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar) would place a statutory duty on the Inland Revenue to disclose that information.
  The new clause returns to a point that we discussed in Committee. I undertook then to consider what was practicable. I understand why the hon. Gentleman has raised the point, and I have considered it with great care. However, I am afraid that his new clause would lead to some practical problems. I think that the arrangements already provided for by clause 1 will work satisfactorily.
  It may help hon. Members who were not on the Standing Committee if I explain how the arrangements for public information will work. Once clause 1 comes into operation, members of the public will be able to ask the Inland Revenue's claims branch in Edinburgh whether particular Scottish bodies have been recognised as charities for tax purposes. Inquiries can be made either in writing or by telephone. The public will also be able to go to the claims branch office at Trinity Park house in Edinburgh and inspect a list of Scottish bodies which have been recognised as charities and which have been in contact with the Inland Revenue within the last 20 years. The list is likely to include about 15,000 charities and will be updated regularly.
  The Bill also gives the public the right to obtain further information about the charities direct from the charities themselves. Thus, members of the public will be able to have access to useful information which is not at present

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  publicly available. Furthermore, if there is sufficient demand for the microfiche, it will be made available in other public places.
  5.15 pm
  We have to bear in mind the fact that the Inland Revenue's records of charities date back to the 19th century. They were designed to meet the needs of tax administration, rather than as a public index. There are many cases where a Scottish body asks the Inland Revenue whether it qualifies as a charity for tax purposes, but it seldom, if ever, makes an actual claim to tax exemption later, because it does not receive the particular types of income on which it would need to claim a tax repayment.
  When a charity is wound up, it does not necessarily have to notify the Inland Revenue, so the Inland Revenue's index of charities will include many bodies which were recognised as charities many years ago but which no longer exist, or which have long since moved from their original address.
  Some inquirers may ask the Revenue about only one or two charities, but others may ask about a substantial number, or inspect the whole list. In that case, the new clause would in effect place a duty on the Revenue to provide a list of all Scottish charities ever recognised, which would mean going back very many years.
  Mr. Tam Dalyell: Is the Minister sure that he is right when he says that a charity does not have to inform the Inland Revenue if it is wound up? I recollect a Finance Bill—I cannot put a date on it because I sat on a number of Committees that considered Finance Bills—that discussed charity law in great detail. The Inland Revenue claimed that it found out the very moment when a charity ceased to operate. This is tied up tightly with charity law.
  Lord James Douglas-Hamilton: If registered, that would certainly be the case. I have received briefing not only from Scottish Office officials but also from the Inland Revenue on this point.
  The point that I am making is that much of the information included in such a list would be out of date. That would be unhelpful, and indeed positively misleading, to the public. That is why we propose that the list available for inspection will include only bodies which have had contact with the Revenue within the last 20 years. If an inquiry is made about a particular named body, it will of course be possible for the Inland Revenue to check back to their earlier records; and, of course, charities which are still active but have not been in touch with the Inland Revenue for more than 20 years can contact the Revenue again and ensure that they are included in the list.
  It is also possible that some small local charities will not be recorded in the central list at the claims branch because, at some time in the past, they have been dealt with by a local tax office which has consulted the claims branch informally. If any such bodies come to light, they can of course be added to the claims branch list, but if the Inland Revenue was put under a statutory duty, as the new clause proposes, it would have to make a comprehensive search of all local office files before the system came into operation, in order to ensure that it could comply with the duty. That would involve disproportionate work and expense.
  1084
  For all these reasons, I think that the new clause would be undesirable and would lead to practical problems. I can assure the House that the Inland Revenue will provide the information which clause 1 empowers it to do in the way I have already explained. I therefore hope that the hon. Gentleman will not feel that it is necessary to press his new clause.
  Mr. Dewar: I am sorry to disappoint the Minister, but I cannot say that my doubts have been swept away. He made the point that members of the public have a right, which cannot be defeated, to request information in the form of an explanatory document from a charity. It is odd, therefore, that members of the public should not have the right to request from the Commissioners of Inland Revenue essential information that would establish whether the body from which they might wish to require further information has charitable status.
  I was not impressed by the Minister's remarks. I am sure that the Commissioners of Inland Revenue will attempt to be helpful when they can, but I do not see why they alone should be left with a power of discretion that is not allowed to any of the other parties under part I of the Bill.
  New clause 7 is not immodestly drawn; it merely insists that there should be a duty on the commissioners to give
  "the name of any recognised body or other information relating to that body set out in section 1(1)(b) of this Act."
  We are suggesting not that they produce something that is not available to them on their records but merely that they ensure that the information on those records is available. If a local charity has never been recorded at central headquarters and has slipped through the net, its name cannot be produced. We are laying on them a duty to give information that is available and is on their records, to guard against the possibility that for some reason they will either allow the matter to slip, exercising their discretion, or will not make the information available.
  I cannot say that the Minister has reassured me. I do not think that his objections to the new clause are substantial, and I intend to press it.
  Lord James Douglas-Hamilton: I want to be clear that I did not mislead the hon. Member for Linlithgow (Mr. Dalyell). He asked whether charities have a need to inform the Revenue. The answer is that they do not need to do so for tax purposes, but they must give information on tax as required by the Revenue.
  Question put, That the clause be read a Second time:—
  The House divided: Ayes 141, Noes 184.

  Division No. 317]

  [5.21 pm

  AYES

  Abbott, Ms Diane

  Campbell, Ron (Blyth Valley)

  Allen, Graham

  Campbell-Savours, D. N.

  Archer, Rt Hon Peter

  Canavan, Dennis

  Ashdown, Rt Hon Paddy

  Clark, Dr David (S Shields)

  Banks, Tony (Newham NW)

  Clarke, Tom (Monklands W)

  Barnes, Harry (Derbyshire NE)

  Clwyd, Mrs Ann

  Barnes, Mrs Rosie (Greenwich)

  Cohen, Harry

  Barron, Kevin

  Coleman, Donald

  Battle, John

  Cook, Robin (Livingston)

  Bell, Stuart

  Cousins, Jim

  Bennett, A. F. (D'nt'n & R'dish)

  Crowther, Stan

  Bidwell, Sydney

  Cryer, Bob

  Blunkett, David

  Cummings, John

  Bray, Dr Jeremy

  Cunliffe, Lawrence

  Bruce, Malcolm (Gordon)

  Cunningham, Dr John

  Callaghan, Jim

  Dalyell, Tam

  Campbell, Menzies (Fife NE)

  Darling, Alistair

  1085

  Dewar, Donald

  Michie, Mrs Ray (Arg'l & Bute)

  Dixon, Don

  Moonie, Dr Lewis

  Dobson, Frank

  Morgan, Rhodri

  Doran, Frank

  Morley, Elliot

  Duffy, A. E. P.

  Morris, Rt Hon J. (Aberavon)

  Dunnachie, Jimmy

  Murphy, Paul

  Ewing, Harry (Falkirk E)

  Nellist, Dave

  Ewing, Mrs Margaret (Moray)

  Oakes, Rt Hon Gordon

  Fairbairn, Sir Nicholas

  O'Brien, William

  Fearn, Ronald

  O'Neill, Martin

  Field, Frank (Birkenhead)

  Orme, Rt Hon Stanley

  Fields, Terry (L'pool B G'n)

  Owen, Rt Hon Dr David

  Flannery, Martin

  Patchett, Terry

  Flynn, Paul

  Pike, Peter L.

  Foster, Derek

  Powell, Ray (Ogmore)

  Fyfe, Maria

  Primarolo, Dawn

  Galbraith, Sam

  Radice, Giles

  George, Bruce

  Richardson, Jo

  Godman, Dr Norman A.

  Robertson, George

  Griffiths, Win (Bridgend)

  Robinson, Geoffrey

  Hattersley, Rt Hon Roy

  Rogers, Allan

  Haynes, Frank

  Rooker, Jeff

  Heal, Mrs Sylvia

  Rowlands, Ted

  Hinchliffe, David

  Ruddock, Joan

  Hogg, N. (C'nauld & Kilsyth)

  Salmond, Alex

  Home Robertson, John

  Sheerman, Barry

  Howarth, George (Knowsley N)

  Sheldon, Rt Hon Robert

  Howells, Geraint

  Sillars, Jim

  Howells, Dr. Kim (Pontypridd)

  Skinner, Dennis

  Hughes, John (Coventry NE)

  Smith, C. (Isl'ton & F'bury)

  Hughes, Robert (Aberdeen N)

  Snape, Peter

  Ingram, Adam

  Soley, Clive

  Janner, Greville

  Steel, Rt Hon Sir David

  Jones, Barry (Alyn & Deeside)

  Steinberg, Gerry

  Jones, Ieuan (Ynys Môn)

  Stott, Roger

  Kaufman, Rt Hon Gerald

  Strang, Gavin

  Kennedy, Charles

  Thomas, Dr Dafydd Elis

  Kinnock, Rt Hon Neil

  Turner, Dennis

  Kirkwood, Archy

  Vaz, Keith

  Lestor, Joan (Eccles)

  Wallace, James

  Lofthouse, Geoffrey

  Walley, Joan

  McAllion, John

  Wardell, Gareth (Gower)

  McAvoy, Thomas

  Wareing, Robert N.

  McCartney, Ian

  Watson, Mike (Glasgow, C)

  McKay, Allen (Barnsley West)

  Welsh, Andrew (Angus E)

  McKelvey, William

  Williams, Rt Hon Alan

  McLeish, Henry

  Williams, Alan W. (Carm'then)

  Maclennan, Robert

  Wilson, Brian

  Madden, Max

  Winnick, David

  Mahon, Mrs Alice

  Wise, Mrs Audrey

  Marek, Dr John

  Worthington, Tony

  Marshall, David (Shettleston)

  Young, David (Bolton SE)

  Marshall, Jim (Leicester S)

  Maxton, John

  Tellers for the Ayes:

  Michael, Alun

  Mr. Ken Eastham and

  Michie, Bill (Sheffield Heeley)

  Mr. John McFall.

  NOES

  Alexander, Richard

  Burt, Alistair

  Alison, Rt Hon Michael

  Butler, Chris

  Amess, David

  Carrington, Matthew

  Arbuthnot, James

  Chapman, Sydney

  Arnold, Jacques (Gravesham)

  Clark, Sir W. (Croydon S)

  Arnold, Sir Thomas

  Clarke, Rt Hon K. (Rushcliffe)

  Aspinwall, Jack

  Conway, Derek

  Baker, Rt Hon K. (Mole Valley)

  Coombs, Anthony (Wyre F'rest)

  Batiste, Spencer

  Coombs, Simon (Swindon)

  Bennett, Nicholas (Pembroke)

  Cormack, Patrick

  Bonsor, Sir Nicholas

  Currie, Mrs Edwina

  Boscawen, Hon Robert

  Davies, Q. (Stamf'd & Spald'g)

  Boswell, Tim

  Davis, David (Boothferry)

  Bottomley, Peter

  Day, Stephen

  Bowden, Gerald (Dulwich)

  Devlin, Tim

  Bowis, John

  Dicks, Terry

  Braine, Rt Hon Sir Bernard

  Douglas-Hamilton, Lord James

  Brazier, Julian

  Dunn, Bob

  Browne, John (Winchester)

  Durant, Tony

  Buck, Sir Antony

  Evennett, David

  Budgen, Nicholas

  Fenner, Dame Peggy

  Burns, Simon

  Field, Barry (Isle of Wight)

  1086

  Fishburn, John Dudley

  Mills, Iain

  Fookes, Dame Janet

  Mitchell, Andrew (Gedling)

  Forman, Nigel

  Mitchell, Sir David

  Forsyth, Michael (Stirling)

  Monro, Sir Hector

  Forth, Eric

  Morris, M (N'hampton S)

  Fowler, Rt Hon Sir Norman

  Morrison, Sir Charles

  Fox, Sir Marcus

  Morrison, Rt Hon P (Chester)

  Franks, Cecil

  Mudd, David

  Freeman, Roger

  Neale, Gerrard

  French, Douglas

  Neubert, Michael

  Fry, Peter

  Newton, Rt Hon Tony

  Gardiner, George

  Nicholson, David (Taunton)

  Gill, Christopher

  Norris, Steve

  Glyn, Dr Sir Alan

  Onslow, Rt Hon Cranley

  Goodhart, Sir Philip

  Oppenheim, Phillip

  Goodlad, Alastair

  Paice, James

  Goodson-Wickes, Dr Charles

  Patnick, Irvine

  Gorman, Mrs Teresa

  Patten, Rt Hon Chris (Bath)

  Greenway, Harry (Ealing N)

  Pawsey, James

  Greenway, John (Ryedale)

  Porter, Barry (Wirral S)

  Griffiths, Peter (Portsmouth N)

  Porter, David (Waveney)

  Ground, Patrick

  Price, Sir David

  Grylls, Michael

  Raison, Rt Hon Timothy

  Hamilton, Neil (Tatton)

  Renton, Rt Hon Tim

  Hanley, Jeremy

  Rhodes James, Robert

  Hannam, John

  Riddick, Graham

  Hargreaves, A. (B'ham H'll Gr')

  Ridsdale, Sir Julian

  Hargreaves, Ken (Hyndburn)

  Rifkind, Rt Hon Malcolm

  Harris, David

  Ryder, Richard

  Hayes, Jerry

  Sackville, Hon Tom

  Hayward, Robert

  Sayeed, Jonathan

  Hicks, Mrs Maureen (Wolv' NE)

  Shaw, David (Dover)

  Higgins, Rt Hon Terence L.

  Shaw, Sir Michael (Scarb')

  Hill, James

  Sims, Roger

  Hind, Kenneth

  Skeet, Sir Trevor

  Holt, Richard

  Smith, Sir Dudley (Warwick)

  Hordern, Sir Peter

  Speed, Keith

  Howard, Rt Hon Michael

  Speller, Tony

  Howe, Rt Hon Sir Geoffrey

  Spicer, Sir Jim (Dorset W)

  Howell, Rt Hon David (G'dford)

  Squire, Robin

  Howell, Ralph (North Norfolk)

  Stern, Michael

  Hughes, Robert G. (Harrow W)

  Stewart, Allan (Eastwood)

  Hunter, Andrew

  Stewart, Andy (Sherwood)

  Jack, Michael

  Sumberg, David

  Janman, Tim

  Taylor, Ian (Esher)

  Johnson Smith, Sir Geoffrey

  Taylor, John M (Solihull)

  Jones, Gwilym (Cardiff N)

  Thompson, D. (Calder Valley)

  Jones, Robert B (Herts W)

  Thompson, Patrick (Norwich N)

  Kellett-Bowman, Dame Elaine

  Thornton, Malcolm

  Kilfedder, James

  Tracey, Richard

  King, Roger (B'ham N'thfield)

  Tredinnick, David

  King, Rt Hon Tom (Bridgwater)

  Trotter, Neville

  Kirkhope, Timothy

  Twinn, Dr Ian

  Knapman, Roger

  Viggers, Peter

  Knight, Greg (Derby North)

  Waddington, Rt Hon David

  Knight, Dame Jill (Edgbaston)

  Walden, George

  Lang, Ian

  Walker, Bill (T'side North)

  Latham, Michael

  Ward, John

  Lawrence, Ivan

  Watts, John

  Lester, Jim (Broxtowe)

  Wheeler, Sir John

  Lightbown, David

  Widdecombe, Ann

  Lord, Michael

  Wiggin, Jerry

  McCrindle, Robert

  Wilkinson, John

  MacKay, Andrew (E Berkshire)

  Winterton, Mrs Ann

  McNair-Wilson, Sir Michael

  Winterton, Nicholas

  McNair-Wilson, Sir Patrick

  Woodcock, Dr. Mike

  Malins, Humfrey

  Yeo, Tim

  Mans, Keith

  Young, Sir George (Acton)

  Maples, John

  Marshall, John (Hendon S)

  Tellers for the Noes:

  Martin, David (Portsmouth S)

  Mr. Nicholas Baker and

  Mellor, David

  Mr. Timothy Wood.

  Question accordingly negatived.

New clause 12

  CODE OF PRACTICE
  '(1) It shall be the duty of the Secretary of State, before the end of the period of one year beginning with the passing of this Act, to prepare in draft a code of practice containing such practical guidance as in the opinion of the Secretary of State would be helpful for the purposes of Part I of this Act.
  (2) Such a draft shall in particular contain guidance—

  (a) on the proper procedures and administrative arrangements for a charitable body, and

  (b) on the provision of information to the public by a charitable body regarding its activities and purposes.

  (3) The Secretary of State shall, before the end of the period of one year beginning with the passing of this Act, lay before both Houses of Parliament a draft of the code of practice prepared by him under subsection (1) above, to be approved by resolution of both Houses.
  (4) The Secretary of State may from time to time revise the whole or any part of a code of practice brought into effect under this section, provided that such revisions are laid before, and approved by, resolutions of both Houses of Parliament.
  (5) A failure on the part of any person to observe any provision of a code of practice which is for the time being in force shall not of itself render him liable to any proceedings; but in any proceedings under this or any other Act—

  (a) any such code shall be admissible in evidence, and

  (b) any provision of such a code of practice which appears to the Court to be relevant to any question arising in the proceedings shall be taken into account by the Court in determining that question.'.—[Dr. Godman.]

  Brought up, and read the First time.
  5.30 pm
  Dr. A. Godman: I beg to move, That the clause be read a Second time.
  My code of conduct is designed with the specific aim of giving guidance to those seeking to set up charities, as well as advising them of the need to adhere to the complicated rules and regulations that are outlined in part I. My hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) said a few minutes ago that we are faced by an extraordinarily complicated structure of rules and regulations for charities. He is right.
  In part I, for example, the topics range from clause 1,
  "Information as to recognised charities",
  to:
  "Duty to keep accounting records",
  "Annual accounts and report".
  and the role of the Lord Advocate in this scheme of things, which is dealt with in clause 5. The role of the Court of Session is outlined in clause 6. Clause 7 is concerned with the disqualification of persons concerned in the management of such bodies. We all know that, occasionally, the odd character happens on a charity and exploits it in his own nefarious interests. There is also an important clause, clause 9, concerned with small charities.
  There is a need for a code of conduct for small charities. I remind the Minister and the House of the Industrial Relations Act 1971. I think that it came into force on 28 February 1972, as you would know, Madam Deputy Speaker. That labour law was dreadful in itself, but its one redeeming feature was the code of practice that was introduced with it. It was aimed largely at small companies that were unfamiliar with the formal processes of collective
  1088
  bargaining. I put it to the Minister that small charities are in a position with this Bill analogous to that of the small firms confronted with the code of practice in 1972. I hope that this provision survives longer than the Industrial Relations Act 1971 did.
  There is an important principle here. I was not in Parliament at that time. Although I was opposed to the Industrial Relations Act 1971, I welcomed the code of practice because it was a fine little document in terms of grievance and disciplinary procedures. I would argue that this legislation concerning charities—especially small charities—needs such a fine little document.
  Some people may say that there is no need for such a code of practice. I can perhaps understand the reason for such reservations, especially, for example, in respect of the fine charity with which I am involved, which was mentioned just now by my hon. Friend the Member for Falkirk, East (Mr. Ewing). Like many large and long-established charities, the Royal National Lifeboat Institution has a strict code of conduct for its various component bodies and strict rules governing its collections and other charitable activities. But often small charities are formed when a number of people come together to give sustenance to those in distress.
  For example, in my constituency, following the tragic death of a couple who died in horrible circumstances in a house fire in Port Glasgow, a number of neighbours came together with the object of raising money to provide the young daughter with sustenance and comfort. In fishing communities, in particular, people come together in the immediate aftermath of a tragedy to raise money for the dependants of those who have been lost; that is also not an unfamiliar experience in mining communities.
  I promise to be brief, Madam Deputy Speaker. I am anxious to hurry along to the new clauses dealing with children giving evidence in criminal proceedings. In passing, let me say that I am delighted with the fine, generous comments that the Minister made when he referred to those new clauses.
  We need to give guidance to small charities, because such bodies may not have the means to obtain advice from lawyers or similar professionals. A code of practice could, I think, give comfort to the individuals involved—particularly in regard to their onerous responsibilities vis-a-vis the Lord Advocate. Some of those responsibilities are entirely right and proper, but the Government must nevertheless give guidance to such bodies. I look forward to a positive response from the Minister to the new clause.
  Lord James Douglas-Hamilton: The new clause tabled by the hon. Member for Greenock and Port Glasgow (Dr. Godman) would provide guidance to charities on how to comply with the requirements of part I of the Bill. The hon. Gentleman proposes that that should be achieved by introduction of a code of practice that would require approval by resolution of both Houses of Parliament. He also proposes that such a code should not be legally binding but that where a person has failed to observe any provisions of the Bill it should be admissible in court proceedings and could be taken account of by the court in its determination.
  I sympathise with the purpose and aim of the hon. Gentleman, which is essentially to provide guidance to charities on how to comply with the requirements laid upon them by part I. I do not, however, believe that the means of providing that guidance should be as proposed in

  1089
  the new clause. I do not consider it necessary to provide a code of practice when adequate provisions are set out in the primary and secondary legislation.
  I also have some doubts about asking the court, as the new clause provides, to have regard to the code of practice in determining a question that will already have been covered in the primary legislation. That strikes me as likely to frustrate, rather than assist, determination by the courts. However, I certainly accept that the charities should have guidance on how to comply with the requirements of part I and I assure the hon. Gentleman that full guidance on that will be provided by the Scottish Home and Health Department by means of publicity, and also by circulars to recognised bodies.
  I should also mention the fact that the Scottish Council for Voluntary Organisations already provides helpful guidance to charities and it will, no doubt, continue to do so. Now that he has been given that assurance, I hope that the hon. Gentleman will not seek to press the new clause.
  Dr. Godman: The Minister is an honourable man and I am perfectly willing to accept his assurance that the provisions will be publicised. On the basis of that assurance, I beg to ask leave to withdraw the motion.
  Motion and clause, by leave, withdrawn.

Clause 1

  INFORMATION AS TO RECOGNISED CHARITIES
  Amendments made: No. 90, in page 2, line 2, leave out from 'body' to end of line 5 and insert
  'such as is mentioned in subsection (1A) below,'.
  No. 91, in page 2, line 9, at end insert:—
  '(lA) A recognised body referred to in subsection (1)(a) above is a body—

  (a) which appears to the Commissioners to be or to have been carrying on activities which are not charitable or to be or to have been applying any of its funds for purposes which are not charitable;

  (b) which is certified by the Lord Advocate as being a body in respect of which information has been provided to the Scottish charities nominee by a relevant institution in pursuance of section [Dormant accounts of charities in banks etc.] of this Act.'.—[Lord James Douglas-Hamilton.]

  Lord James Douglas-Hamilton: I beg to move Government amendment No. 1, in page 2, line 43, leave out 'conclusive' and insert 'sufficient'.
  Clause 1(7) provides that, for the purposes of any proceedings under part 1 of the Bill, a certificate signed by a person authorised to do so by the commissioners of Inland Revenue shall be "conclusive" evidence of the fact that the Revenue has recognised the body as a charity. It was suggested in Committee that the word "sufficient" would be preferable and consistent with other legislation. My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) had a lot to do with the amendment.
  Mr. Menzies Campbell: I welcome the fact that the Minister has shown rather more flexibility today than he did during our long passage at arms in Committee, when hon. Members on both sides of the House argued the matter quite forcefully.
  Will the Minister confirm that what is now to be legislated for is a system in which a challenge will be available to someone who seeks to challenge the accuracy of what is apparently purported to be correct by virtue of
  1090
  the provision. The argument in Committee turned on the question whether, if the evidence was conclusive, no challenge would be permitted. By substituting the word "sufficient", the Minister has opened the door to challenge in cases where that may be appropriate. That seems to me a more equitable way in which to dispose of the matter than was originally envisaged in the Bill.
  Sir Nicholas Fairbairn: I will just say that my gratitude is sufficient; it is not conclusive.
  Amendment agreed to.

Clause 2

  NON-RECOGNISED BODIES
  5.45 pm
  Lord James Douglas-Hamilton: I beg to move Government amendment No. 2, in page 3, line 3, leave out subsection (2) and insert—
  '(2) For the purposes of this Part of this Act, any body which is not—

  (a) a recognised body; or

  (b) a body which is—

  (i) registered as a charity in England and Wales under section 4 of the Charities Act 1960; or

  (ii) a charity which is not required to register by virtue of subsection (4) is a non-recognised body.'

  Madam Deputy Speaker: With this we may take Government amendment No. 13.
  Lord James Douglas-Hamilton: Clause 2(2) defines the expression "non-recognised" body. The subsection was criticised by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) and by my hon. Friend the Member for Ipswich (Mr. Irvine), who found the double negatives confusing. The amendment is a drafting amendment, the purpose of which is to avoid the use of multiple negatives.
  Mr. Dewar: I am sorry that the hon. Member for Ipswich (Mr. Irvine) is not with us today because, on occasion, he greatly entertained me in Committee. I certainly had a great deal of sympathy with his inability to follow the tortuous double negatives that were built into the Bill.
  Out of curiosity, I should like to engage the Minister's attention on a much smaller matter. By a happy coincidence, amendment No. 13 refers to clause 13, which states:
  "'non-recognised body' has the meaning given by section 2 of this Act".
  Amendment No. 13 would remove the words
  "has the meaning given by"
  and insert the words
  "shall be construed in accordance with"
  Can the Minister explain why that important change is proposed and what practical difference the amendment will make?
  Lord James Douglas-Hamilton: It makes for greater accuracy and clarity and would make the provision easier for the general public to interpret.
  Amendment agreed to.

Clause 5

  POWERS OF LORD ADVOCATE TO INVESTIGATE CHARITIES AND TO SUSPEND TRUSTEES
  Lord James Douglas-Hamilton: I beg to move amendment No. 3 in page 7, line 2 after 'apply' insert 'by summary application'.
  Madam Deputy Speaker: With this it will be convenient to take Government amendments Nos 4 and 5.
  Lord James Douglas-Hamilton: These amendments relate to procedural matters under clause 5. Amendment No. 3 is a simple clarifying amendment which makes it plain that application by a nominated officer to the sheriff for an order under clause 5(6) is by the summary application procedure.
  Amendment No. 4 is also a clarifying amendment. Subsection 5(6)(a) specifies that the nominated officer may apply to the sheriff for an order requiring a person to attend to answer questions and provide information at a time and place specified in the order. The insertion of the word "and" makes it clear that the order requires the person not only to attend, but also to answer questions and provide information.
  Amendment No. 5 inserts a new subsection after subsection (6). It reflects concern in Committee that a person required by a court order to provide answers to the nominated officer might be faced with the choice of obeying the order and incriminating himself by answering the questions or possibly to commit an offence by refusing to make a statement and thus breaching the court order.
  It is important to bear in mind that these are civil and not criminal proceedings. They relate to the investigation of an officer appointed by the Lord Advocate to discover whether there appears to have been misconduct or mismanagement of a charity's affairs. I recognise the concern expressed by several Committee members, including the hon. Member for Glasgow, Garscadden (Mr. Dewar), that there should be no room for doubt. The amendment makes it clear that a person must answer truthfully questions put to him by a nominated officer when an order has been made under subsection (6) and that he may not refuse to answer on grounds that his answer might incriminate him.
  The new provision that amendment No. 5 seeks to insert also makes it clear that no answer to a question under subsection (6) may be used in any subsequent criminal proceedings against the person. I believe that in practice the nominated officer will act more like a Department of Trade and Industry official than a procurator fiscal. If he asks a question and receives an apparently incriminating reply, the nominated officer will normally terminate the interview immediately and refer the matter to the Lord Advocate with a view to the matter being referred to the police for criminal investigation if an incriminating answer gave rise to questions not as to whether there had been a breach of trust, but as to a serious crime.
  Mr. Menzies Campbell: On the occasion of such a transaction as the Minister has described, does he envisage that the nominated officer would put the person summoned on oath and require him to take the oath in conventional terms like that taken by a witness giving evidence in court?
  Lord James Douglas-Hamilton: Statements to the nominated officer will not be under oath.
  Mr. Dewar: Although it is difficult with our time constraints and our inability to amend the Bill now, I would like the Minister to give us a little more help. He has already shed some light on the Government's intentions. As the Minister has said, the concern is that we have a rather cumbersome procedure whereby the Lord Advocate, having decided to inquire into a charity, appoints a nominated officer. If that nominated officer meets a refusal to co-operate, he can go to the sheriff for an order under clause 5(6) which would force the person concerned to answer questions or to furnish information at a time and place specified in the order.
  The concern was that that person might in effect be asked to incriminate himself. The Minister has explained that we are talking about civil proceedings and that nothing that is said will be admissible in evidence in any subsequent criminal proceedings.
  The position is still quite difficult. If I am being interrogated or questioned by the nominated officer, it will cause me some unease if I have to answer a question which, if I answer it honestly—we are talking about the real world here—will be written down and although it may not be used as primary evidence in any criminal proceedings, will be passed to the Lord Advocate who is, after all, instructing the nominated officer. The Lord Advocate has certain other duties of a criminal nature. Obviously I may be prejudicing my future quite considerably if I proceed to follow the advice that the Minister has given and answer the questions honestly.
  I want to be clear about what would happen if I do not answer the questions. If I say that I am very sorry, but I do not want to answer a particular question, am I caught by clause 5(7)? I have complied with the order in the sense that I have turned up and answered questions. Do I have to answer every question? If I say that, in effect, I wish to plead the Scottish equivalent of the fifth amendment, will I be caught by the penalty in clause 5(7) or would I be a person under clause 5(8)
  "who wilfully alters, suppresses, conceals or destroys and record which he may be required to furnish or transmit"?
  I should not have thought so, but what is the sanction? The person is not on oath, as the Minister has explained. He cannot be in contempt because he is not in a court although I suppose that it may be a "once removed" contempt of the order made under clause 5(6) by the sheriff.
  Apart from a sense of scout's honour which may not apply very strongly in the circumstances that I have outlined, what is to stop someone simply saying, "I've told you all that I intend to tell you and I've gone as far as I'm going"? Someone might well want to do that if he was being precognosced about the matter by the Crown Office or anyone else. I am still a little unhappy about a situation in which the Minister glibly states that someone must answer questions which of course are not admissible as evidence but which will be put on a hot line and a quick fax machine back to the Lord Advocate. That person is being placed in a position in which, apparently, he has to incriminate himself.
  Sir Nicholas Fairbairn: I am extremely worried, and the worries that I voiced in Committee have not been allayed by this, I assume, charitable attempt by the Minister to remove them.

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  The hon. Member for Glasgow, Garscadden (Mr. Dewar) has put his finger on a number of important points. With regard to this provision, we are in a nebulous state. I do not know whether the appearance is to be in public or in private, or whether members of the press or the CID are entitled to be present. There is certainly nothing in the statute to prevent their being present.
  I do not believe that the sheriff could say to someone, "You are going to be asked a question," and then have any alternative under the statute but to say, "And you've got to answer it." That is the thrust of the provision. It would take a brave fellow to say, "I have actually read the provision and I know that I've got to turn up, but I equally know that there is no provision telling me that I've got to answer." If someone is dragged along to a star chamber court and put before a judge, there is an assumption that one must answer. If I was a sheriff, I would find it difficult to know whether I was entitled to order the chap either to answer, or be prevaricating on a contempt, or to say that the chap did not have to answer.
  Mr. Menzies Campbell: The hon. and learned Gentleman is right to point to the absence of a clear indication in the Bill of what would happen in the circumstances that he has described. Has he considered the fact that the ambiguity and lack of specification in the Bill may go further than even he has imagined? The sheriff may not necessarily be involved in the proceedings after he has issued an order to a nominated officer. On the face of the Bill, it seems that, once someone becomes a nominated officer, it is up to that person to go off and examine—using the word loosely—the person against whom the order has been made. However, all that seems to be regarded as taking place away from the sheriff court and away from the presence of the sheriff. If I am right about that, the possibility of the precise difficulty to which the hon. Member for Glasgow, Garscadden (Mr. Dewar) eloquently referred seems, if anything, to be yet more likely than the circumstances that the hon. and learned Gentleman has postulated.
  Sir Nicholas Fairbairn: I am obliged to the hon. and learned Gentleman. There are terrible pitfalls which are not cured by the amendment. I had forgotten, of course, that the nominee can take someone off to a hole in the wall and cross-examine him. There is no suggestion that he needs corroboration of what that person is supposed to have said. There is no suggestion of the principles of safeguard against being misled. One has only to be involved in cases concerning customs and excise officers rather than policemen to realise how important such protections are.
  6 pm
  Apart from that, two other matters give me the greatest concern. First, is the nominee allowed to say that the press can be present so that admissions which are not admissible in evidence against the fellow can be published in the press? If that fellow says, "As a matter of fact, my granny was suffering from cancer so I just nicked all the funds before I cut the head off the beagle," and it appears in the press but is not admissible in evidence, I should not have thought that the "not admissible in evidence" provision was very helpful.
  Secondly, I am worried about the presumption of guilt which arises easily, if sometimes properly, in the minds of policemen and prosecutors. If the nominee sends along a
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  document which states that Willie Smith admits that he has been subtracting 50 per cent. of donations over the years, or any other incriminating statement, do not tell me that any prosecution will not proceed on the assumption that that is true when previously there was no evidence to suggest it. The fact that one cannot actually use those words does not help. Heaven knows, there is not an hon. Member present who does not know of cases in Scotland in which evidence was not invented to justify presumed assumptions, particularly of an alleged confession.
  The amendment is dangerous, not because the Minister is not trying to help, but because the provision does not help. The nominee can wear a knuckleduster and say, "You answer my questions or I will hit you." That might be a breach of the law. He might say, "You realise that if you do not give me the answers that I would like, you may be in severe trouble." That is not a breach of the law by a nominee. I suppose that it might he a form of assault, but he is not an officer of the law—he is trying to get the answers that he wants.
  It is a terrible path that the Lord Advocate and the courts of Scotland are being asked to tread. People collecting for charities will be subjected to a third degree from which even the most appalling terrorist would be protected.
  Mr. Harry Ewing: I approach this matter on the basis that the interviews will be held in private and that the press will not be present. Two points worry me. The first is the lack of corroboration. Will the person being interviewed be entitled to have a representative present with him at the interview and whether the person who was nominated by the sheriff will have someone with him to corroborate the interview? The law of Scotland is based on corroboration. The Minister should say something about corroboration.
  Secondly, the Minister explained what would happen in the interview. Once, in the view of the nominated person, the person being interviewed gives an incriminating answer, the nominated person would then, to use the Minister's words, immediately terminate the interview. Whether the Minister likes it or not, that would be a judgment. The nominated person would judge that the person being interviewed has made a statement that may or may not lead to criminal proceedings but which certainly merits being reported to the Lord Advocate for further investigation on the basis that criminal proceedings might follow. That is fraught with difficulties. I am not sure how that matter can be handled, and I am not happy about it.
  It seems that there will be a one-to-one situation—no corroboration. The nominated person will make a judgment the background of a statement by the person being interviewed and will immediately terminate the interview. The matter will then be sent to the Lord Advocate for further investigation. As the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) said, that is fraught with difficulties. I know that this matter is difficult for the Minister also, but I should he grateful for further explanation of those points.
  Mr. Menzies Campbell: The difficulties that have arisen in short consideration of this matter only serve to underline the fact that, when the provisions were framed and when the additional amendment was sought to be added, there was insufficient analytical consideration of the nature of the transaction between the nominated

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  officer and the person who was summoned by virtue of an order of the sheriff. Ex facie of the Bill, the sheriff, having pronounced his order, is functus—he no longer has part in the proceedings. The nominated officer goes off with the order. It is as though an attempt had been made to add to the procedure known as commission and diligence and specification of documents—the equivalent of discovery in England and Wales.
  It is as though, in addition, something had been added which requires a person to provide information in formal or informal circumstances, depending on the decision of the nominated officer, and which may be public or private because there is no specification of the proper method of proceeding. The circumstances may be formal or informal in the sense that one nominated officer may adopt the wholly informal approach—that of a conversation—and another may treat the matter with greater formality and ask the person who has been summoned to sit in a certain place and to conduct the proceedings in a particular way as though it were a formal investigation.
  Sir Nicholas Fairbairn: Another matter that the hon. and learned Gentleman might care to consider is that he adduced from the Minister the fact that the proceedings would not be under oath. If they are not under oath, on what possible basis could there be a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933?
  Mr. Menzies Campbell: I am much obliged to the hon. and learned Gentleman, who has anticipated my next point. It appears that the nominated officer must give some warning when the proceedings commence. If, depending on my answer, I may be liable to prosecution for contravention of the False Oaths (Scotland) Act 1933, albeit perhaps a prosecution that is not founded on what I may have said, surely I should be entitled to a warning that the proceedings before the nominated officer might have that criminal consequence, yet there is no such provision.
  The Minister says—no doubt sincerely—that, when an incriminating answer appears to have been given, the nominated officer will terminate the interview. Whether he does or not is the nominated officer's choice. Nothing in the Bill states that, as soon as an incriminating answer is given, the nominated officer must terminate the interview. Furthermore, neither the nominated officer nor the person being questioned may appreciate at a particular moment that that is an incriminating answer and might have the consequences to which other hon. Members have referred.
  That is why the point made by the hon. Member for Falkirk, East (Mr. Ewing) is so important. If a person is summoned to meet a nominated officer, is he or she entitled to be represented, or is this situation similar to the examination for bankruptcy proceedings about which there was considerable doubt in Scotland for a long time on the question whether the bankrupt was entitled to be represented at his own proceedings?
  Far too many questions have been left unanswered. To return to my earlier point, they remain unanswered because there has not been any rigorous examination of the consequences of inserting such a provision in the Bill. It is perfectly right for the hon. and learned Member for Perth and Kinross to talk with some awe about the powers
  1096
  of the Customs and Excise and of VAT inspectors. The hon. and learned Gentleman knows that, in the case of the Lord Advocate v. Friel, Lord Ross—now Lord Justice-Clerk Ross—took a vigorous view against the method of questioning used by the Customs and Excise inspectors. He held strongly that they were not entitled to conduct themselves in a way that was contrary to the principles laid down in the law of Scotland, stemming from the case of Chalmers v. the Lord Advocate.
  Far too many questions are unanswered. There are far too many opportunities for mistake, confusion and injustice. That is why I believe that the provision does not bear the hallmark of careful and analytical consideration and it certainly does not bear the hallmark of any rigorous
  My final point echoes to some extent what was said by the hon. Member for Glasgow, Garscadden (Mr. Dewar). An answer may be incriminating. It may not be able to be used in criminal proceedings later against that person. It may form the basis upon which other investigations can be carried out, by referring, for example, to the location of a certain piece of evidence. The statement about where the evidence is said to be located may not be admissible, but if someone examines the box in which the papers that have been referred to can be found, those papers and their findings may in turn come to be the incriminating evidence. It is artificial to suggest that there is as much protection as the Minister appears to claim for a person who is asked in response to an order from the sheriff.
  Sir Nicholas Fairbairn: On the hon. and learned Gentleman's point about the False Oaths (Scotland) Act, although a section states that that may not be used in evidence in criminal proceedings, there is no way in which the Act comes into this unless it can be put to the person who is on oath, when subsequently charged with a criminal offence, that he or she previously said something different from the nominee.
  Mr. Menzies Campbell: The hon. and learned Gentleman is quite correct. To establish a conviction under the False Oaths (Scotland) Act 1933, it will be necessary to prove that what was said to the nominated officer was false, and that can be done only by leading evidence in relation to what was said to have been incriminating.
  This is a can of worms. Although it is commonplace in Committee or on Report for hon. Members to complain that the provisions are insufficiently detailed or insufficiently well thought out, in this case such criticisms are more than germane. They go right to the heart of what the Minister is endeavouring to persuade the House to accept. I hope that he will realise that hon. Members of all parties have advanced points of great substance, not mere debating points.
  If, in the light of what has been said, he is not satisfied with what he is trying to persuade the House to accept, he should take the honourable course and withdraw the
  6.15 pm
  Lord James Douglas-Hamilton: Several interesting points have been raised. I begin with the question asked by the hon. Member for Glasgow, Garscadden (Mr. Dewar) about whether the person who is being interviewed would be caught by clause 5(7) if he or she refused to answer the question. The person would be so caught, because

  1097
  subsection (6) requires the person to answer such questions as may be asked under subsection (4). An offence would therefore have been committed.
  The hon. and learned Member for Fife, North-East (Mr. Campbell) asked whether a sheriff would be present at the interview. The hon. Member for Falkirk, East (Mr. Ewing) asked about corroboration. The sheriff will not be involved in the interview. The offence will be required to be proved beyond reasonable doubt in the same way as any other offence and will be subject to the requirement of corroboration.
  Mr. Dewar rose—
  Lord James Douglas-Hamilton: I shall give way to the hon. Gentleman in a moment.
  The hon. Member for Falkirk, East also asked whether a person is entitled to be legally represented at the interview. The Bill does not create a right for a person to be legally represented, but I assure the hon. Gentleman that no objection will be made if a person wishes to be legally represented at the interview.
  The hon. Member for Garscadden—
  Mr. Menzies Campbell: I am grateful to the Minister for giving way, and I do not wish to thrash this point unnecessarily. Suppose the nominated officer said, "I am not prepared to allow you to have the solicitor of your choice present at this examination." The person who has been summoned has no right to the presence of a solicitor or any other person. If the nominated officer takes that decision, the person who has been summoned will have to abide by it. How can that be just?
  Lord James Douglas-Hamilton: I am giving an undertaking that that will not happen. Such a person would be allowed to have a solicitor with him.
  Mr. Dewar: Could the Minister say a little more about the effect of the criminal penalty in clause 5(7)? Obviously, an offence would have to be established by corroborated evidence. One therefore assumes that there will be people in the room other than the interviewee and the interviewer—
  Mr. Menzies Campbell: Such as a shorthand writer?
  Mr. Dewar: Is there, for example—I am being helpfully prompted from the left—likely to be someone such as a shorthand writer present? If there are only two people in the room, corroboration will prove a remarkable difficulty. Perhaps the Minister could say something about that.
  Lord James Douglas-Hamilton: I sincerely hope that in most of the cases that we believe would involve a possible breach of trust, or something of that nature, there will be no question of criminal proceedings. However, if somebody refuses to answer or to provide accounts where they undoubtedly exist, the provisions will prove necessary to ensure that those who have given money to a charity or those who will benefit from it are not disadvantaged or prejudiced in the process.
  Mr. Dewar: Absolutely. However, I am referring to what the Minister helpfully said about clause 5(7)—that, if a person refuses to answer a question, he or she will be open to a fine not exceeding level 5 on the standard scale. That is clearly a criminal prosecution. I am simply trying to establish who the Minister expects to be in the room to provide the corroboration.
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  While the Minister is at it, perhaps he could say more about his guarantee that a solicitor can represent the person being interviewed. It will be an odd situation, because presumably a solicitor is present to give his client advice about his right and might well be tempted to say, "I don't think that you should give that information, because you will incriminate yourself." What would be the solicitor's position if he gave that advice and if the client purported to take it?
  Lord James Douglas-Hamilton: The hon. Gentleman has answered his own question—he said that a shorthand writer or someone of that nature would probably be with the nominated person. If an offence were committed, it would be subject to the normal rules relating to proof and corroboration when it came before a court.
  Sir Nicholas Fairbairn rose—
  Lord James Douglas-Hamilton: I want to answer the question about false oaths, and my hon. and learned Friend can come back on this in a minute if he likes. It is clear that no answer to a question under subsection (6) can be used in any subsequent criminal proceedings. This will operate in the same way as Department of Trade and Industry inspectors, who have not run into tremendous difficulties in this connection. There are precedents for DTI inspectors making investigations. If, when making an investigation, an inspector, instead of finding evidence of breach of trust, runs into a case of serious fraud, he stops immediately and reports it to the Lord Advocate.
  I mentioned that no answer to a question under subsection 6 could be used in any subsequent criminal proceedings against the person, except under section 2 of the False Oaths (Scotland) Act 1933, which relates to the making of false statements without oath. Section 2 states:
  "If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—

  (a) in a statutory declaration; or

  (b) in an abstract, account, balancing sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return or other document, which he is authorised or required to make, attest, or verify by, under, or in pursuance of any public general Act of Parliament for the time being in force; or

  (c) in any oral declaration or oral answer which he is authorised or required to make by, under, or in pursuance of any public general Act of Parliament for the time being in force,

  he shall be guilty of a crime."
  I think that that is quite straightforward, and there is no question of that provision being repealed.
  Amendment agreed to.
  Amendments made: No. 4, in page 7, line 4, after 'attend' insert 'and'.
  No. 5, in page 7, line 12, at end add—
  '( ) A person shall not be excused from answering such questions as he may be required to answer by virtue of subsection (6) above on the ground that the answer may incriminate or tend to incriminate him, but a statement made by him in answer to any such question shall not be admissible in evidence in any subsequent criminal proceedings against him, except in a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933.'.—[Lord James Douglas-Hamilton.]

Clause 6

  POWERS OF COURT OF SESSION TO DEAL WITH MANAGEMENT OF CHARITIES
  Amendment made: No. 6 in page 10, line 11, leave out from 'the' where it second occurs to '; and' in line 12 and insert
  'charitable purposes of that body, or the charitable purposes which are purported to be the purposes of that body'.—[Lord James Douglas-Hamilton.]

Clause 9

  SMALL CHARITIES
  Lord James Douglas-Hamilton: I beg to move amendment No. 7, in page 13, line 43, leave out 'intentions' and insert 'spirit'.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 8.
  Lord James Douglas-Hamilton: These are purely drafting amendments. I am grateful to my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn), who drew our attention to drafting inconsistencies in Committee.
  Amendment agreed to.
  Amendment made: No. 8, in page 14, line 16, leave out 'intention' and insert 'spirit'—[Lord James Douglas-Hamilton.]

Clause 11

  APPOINTMENT OF TRUSTEES
  Amendments made: No. 9, in page 16, line 10, leave out
  'both the Lord Advocate and'.
  No. 10, in page 16, line 13, at end insert—
  '(2) Where in the case of any trust which is a recognised body—

  (a) the number of trustees is less than three; and

  (b) it appears to the Lord Advocate that the trustees will not, or are unable to, exercise their power under subsection (1) above,

  if it appears to the Lord Advocate expedient to do so, he may exercise the power in place of the trustees.'—[Lord James Douglas-Hamilton.]

Clause 13

  INTERPRETATION OF PART I, REGULATIONS AND ORDERS
  Lord James Douglas-Hamilton: I beg to move amendment No. 11, in page 16, line 35, leave out 'an unincorporated body'.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 12.
  Lord James Douglas-Hamilton: Clause 31 provides a definition for "body" that is intended to make it clear that "body" refers to unincorporated bodies such as trusts or associations. They are purely drafting amendments.
  Amendment agreed to.
  Amendments made: No. 12, in page 16, line 38, after 'court' insert
  'in relation to an unincorporated body'.—[Lord James Douglas-Hamilton.]
  No. 13, in page 16, line 46, leave out
  'has the meaning given by'
  and insert
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  'shall be construed in accordance with'.—[Lord James Douglas-Hamilton.]

New Clause 15

  BOARD'S INTERVENTION POWERS
  '.—(1) The powers conferred on the Board by this section may be exercised if, after such inquiry (if any) as the Board consider appropriate, it appears to them to be desirable to do so for the purpose of protecting the interests of the clients, or prospective clients, of an independent qualified conveyancer or an executry practitioner (each of whom is in this section referred to as a "relevant practitioner").
  (2) The Board may, in particular, exercise any such power where it appears to them that a relevant practitioner—

  (a) is no longer a fit and proper person to provide conveyancing services or, as the case may be, executry services;

  (b) has ceased, for whatever reason, to provide such services; or

  (c) has failed, or is likely to fail, to comply with regulations made under section 15(10A) or, as the case may be, section 16(10) of this Act.

  (3) The Board may direct the relevant practitioner not to dispose of, or otherwise deal with, except in accordance with the terms of the direction—

  (a) any assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent qualified conveyancer or, as the case may be, an executry practitioner; or

  (b) any assets of the practitioner which are specified, or of a kind specified, in the direction.

  (4) The Board may direct the relevant practitioner to transfer to the Board, or to such persons (in this section referred to as "the trustees") as may be specified in the direction—

  (a) all assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent qualified conveyancer or, as the case may be, an executry practitioner; or

  (b) any assets of the practitioner which are specified, or of a kind specified, in the direction.

  (5) A relevant practitioner to whom a direction is given may, within 21 days of the date on which the direction is received by him, apply to the Court of Session, which may make such order in the matter as it thinks fit.
  (6) A relevant practitioner to whom a direction is given shall comply with it as soon as it takes effect (and whether or not he proposes to apply to the Court of Session under subsection (5) above).
  (7) If, on an application to the Court of Session by the Board, the court is satisfied—

  (a) that a relevant practitioner has failed, within a reasonable time, to comply with any direction given to him; or

  (b) that there is a reasonable likelihood that a relevant practitioner will so fail,

  the court may make an order requiring the practitioner, and any other person whom the court considers it appropriate to subject to its order, to take such steps as the court may direct with a view to securing compliance with the direction.
  (8) Any assets which have been transferred as a result of a direction given under subsection (4) above shall be held by the Board, or by the trustees, on trust for the client or, as the case may be, the practitioner concerned.
  (9) The trustees may deal with any assets which have been transferred to them only in accordance with directions given to them by the Board.
  (10) If the Board have reasonable cause to believe that a relevant practitioner or an employee of a relevant practitioner has been guilty of dishonesty resulting in pecuniary loss to a

  1101
  client of the relevant practitioner, they may apply to the Court of Session for an order that no payment be made by any bank, building society or other body named in the order out of any bank, building society or other account or any sum deposited in the name of the relevant practitioner without the leave of the court and the court may make such an order.
  (11) Any direction under this section—

  (a) shall be given in writing;

  (b) shall state the reason why it is being given;

  (c) shall take effect on such date as may be specified in the direction (which may be the date on which it is served on the relevant practitioner); and

  (d) may be varied or revoked by a further direction given by the Board.

  (12) In this section—
  "assets" includes any sum of money (in whatever form and whether or not in any bank, building society or other account) and any book, account, deed or other document held by the relevant practitioner on his own behalf in connection with his business as a relevant practitioner or on behalf of the client concerned; and
  "independent qualified conveyancer" and "executry practitioner" respectively include any independent qualified conveyancer or executry practitioner whether or not he was registered as such at the time when the matter in relation to which the Board exercise or propose to exercise their powers under this section arose and notwithstanding that subsequent to that time he has ceased to be so registered.'—[Lord James Douglas-Hamilton.]
  Brought up, and read the First time.
  Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 38, 51, 53 and 63 to 66.
  Lord James Douglas-Hamilton: The new clause was not heralded during our discussions in Committee, so it may be helpful to the House if I briefly outline its purpose and effect.
  The provision is intended to enhance the regulatory structure under which the board is to operate. It corresponds closely to an amendment brought forward during the Report stage of the Courts and Legal Services Bill. The new clause gives the board the power to intervene in the business of an independent, qualified conveyancer or an executory practitioner where it appears to the board that the interests of the practitioners' clients are likely to be put at serious risk. I do not envisage that that power will be used often, but it could prove valuable if a practitioner were to deviate from acceptable business practice to such an extent as to threaten the interests of clients or prospective clients.
  Under the new clause, the board's powers are backed up by an enforcement mechanism that allows it to go to the Court of Session for an order to secure compliance. I do not believe that the new clause is controversial. It represents the final component of the regulatory regime that we have established for independent qualified conveyancers and executory practitioners.
  Mr. Dewar: I am quite prepared to accept that the new clause is non-controversial, and I am delighted to hear that it is the final component. However, I fear that it may not be the last time that I hear about independent qualified conveyancers. I understand that the new clause deals largely with the winding up of businesses of independent qualified conveyancers—not a particularly cheery subject for those who have faith in the new breed of operator. I am
  1102
  advised that it gives the conveyancing board powers similar, in terms of dealing with their assets, to those allowed to the Law Society of Scotland, in terms of sections 45 and 46 of the Solicitors (Scotland) Act 1980. I certainly do not have strong feelings on that matter, and I am prepared to see it go through.
  Mr. Harry Ewing: Does the Minister envisage that the procedure would be activated on a complaint from the client, or is there some other way that I have not understood?
  Lord James Douglas-Hamilton: It would normally be activated on a complaint from the client, unless some untoward facts were discovered. I sincerely hope that nothing of that nature will ever occur.
  Question put and agreed to.
  Clause read a Second time and added to the Bill.

New clause 22
  MULTI-NATIONAL PRACTICES
  '. Before section 61 of the 1980 Act there shall be inserted the following section—
  MULTI-NATIONAL PRACTICES

    Multi-national practices
    60A.—(1) Subject to the provisions of this section, solicitors and incorporated practices may enter into multi-national practices with registered foreign lawyers.
    (2) The Council shall maintain a register of foreign lawyers, and may make rules with regard to registration; and, without prejudice to the generality of the foregoing, such rules may include provision as to—

    (a) the manner in which applications for registration are to be made;

    (b) the fees payable in respect of such applications;

    (c) conditions which may be imposed in respect of registration; and

    (d) the period for which any such registration is to run.

    (3) Section 34(2) and (3) apply to rules made under subsection (2) as they apply to rules made under that section.
    (4) Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section and the Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register.
    (5) Subject to subsection (6), the Secretary of State may by order made by statutory instrument provide that any enactment or instrument—

    (a) passed or made before the commencement of this section;

    (b) having effect in relation to solicitors; and

    (c) specified in the order,

    shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors.
    (6) Before making any order under subsection (5), the Secretary of State shall consult the Council.
    (7) An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Secretary of State specifies in the order.
    (8) No order shall be made under subsection (5) unless a draft of the order has been approved by both Houses of Parliament.".'—[Lord James Douglas-Hamilton.]
    Brought up, and read the first time.
    Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
    Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 97, 100, 101 and 113 to 115.
    Lord James Douglas-Hamilton: New clause 22 will be welcomed by the whole House. The Bill already provides for the removal of existing statutory barriers to the formation of multinational practices. The new clause makes it clear that Scottish solicitors are entitled to enter into such practices. More significantly, it gives the council of the Law Society of Scotland powers to regulate such practices.
    The House will wish to know that the amendment has been discussed with the Law Society, which indicated its support for the new clause and the policy in general. The new clause places the Council of the Law Society under a duty to maintain a register of foreign lawyers with whom Scottish lawyers are to be permitted to go into partnership. They will be lawyers whose native jurisdiction is regulated to the society's satisfaction.
    The new clause is an enabling power rather than a detailed attempt to regulate multinational practices. It creates a flexible framework within which details can be worked out in the light of developments in national legal practice, and thus the Secretary of State is accorded a regulation-making power under subsection (5) to attach existing statutes and statutory instruments to foreign lawyers practising in Scotland or in partnership with Scottish solicitors where he considers that appropriate. That power is to be exercised only after consultation with the Law Society's council and is subject to affirmative resolution in both Houses of Parliament.
    I believe that the new clause paves the way for the enhancement of business opportunities for the Scottish legal profession and better services for clients.
    The remaining amendments in the group are primarily intended to clarify the position of multi-disciplinary practices in the regulatory framework that governs solicitors. The House will be aware that the Bill already provides for the removal of the existing statutory barriers to the formation of multi-disciplinary practices—those involving solicitors and members of other professional disciplines—and for shifting responsibility for the extent to which multi-disciplinary practices should be permitted to the council of the Law Society of Scotland. That is quite proper, as the solicitor profession in Scotland is very much a self-regulating one, and it should be for the council to decide on practising structures for its members.
    Mr. Dewar: There is no objection from any quarter with which I have been in touch to the proposals on multinational practices in the new clause, but it would be helpful if the Minister said a little more about them.
    I understand that multinational practices contain foreign lawyers who will register with the Law Society of Scotland and who are not necessarily restricted to being lawyers who qualified in another EC country—they can come from any part of the world. Amendment No. 114 defines a foreign lawyer as
    "a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland".
    Sir Nicholas Fairbairn: Does foreign in this case include England?
    6.30 pm
    Mr. Dewar: I assumed that it does, for these purposes. No doubt the Scottish National party would take an interest in the matter if its members were present, but unfortunately their enthusiasm for law reform in Scotland ran out some hours ago and they are not here to participate in discussing this relevant point.
    For these purposes it is fair to say that a foreign lawyer will be an English lawyer, so an English lawyer can become a partner in a Scottish law firm as long as he is registered with the Law Society of Scotland and it is satisfied with his qualifications and his ability to practise. I am not sure what test the society will apply—perhaps the Minister will tell us.
    The English jurisdiction is fairly close to the Scottish one, but it seems that even a Spanish, Australian or Papua New Guinean—I cast no aspersions—could perfectly well become a partner. Presumably the Law Society of Scotland will apply a test of competence in the law of Scotland before such a lawyer is allowed to join a practice. No doubt those matters have been discussed with the Law Society; perhaps the Minister can tell us more.
    One of the problems with the Bill, of which even Members who are not connected with the measure will have heard, is the extreme danger of reading it in terms of the words that appear within its covers. Sometimes the Government mean the opposite of what the legislation appears to do. That was exemplified in the case of the multidisciplinary practices, which we are defining in the Bill. I am delighted, incidentally, to see the hon. Member for Tayside, North (Mr. Walker) in his place. Not only does he hold the distinguished office of vice-chairman of the Conservative party in Scotland, but I note that he is acting as parliamentary private secretary to the Under-Secretary of State, a responsibility that he bears with distinction. Perhaps it is now one that substitutes for his vice-chairmanship, which dangles by the proverbial thread.
    As the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) will recall, when we discussed multidisciplinary practices, we were removing the barriers to them. That was the clear message on the face of the Bill, but it emerged that that was not what we were doing at all. We were not inviting the arrival of those practices. The Government had entered into a private agreement with the Faculty of Advocates first, and thereafter rather more publicly with the Law Society of Scotland, to the effect that they would approve any regulations that would ban multi-disciplinary practices. So there were to be none at all in Scotland in the foreseeable future.
    There was a moment of high comedy when we were asked not to defeat a certain part of the Bill on the ground that it prevented the Office of Fair Trading from interfering with our affairs, and because that office was being banned from the field, level or otherwise, it would be even harder for multi-disciplinary practices to enter by the side door or the back door.
    So, despite the defining of multi-disciplinary practices, the Government, the Committee and everyone else have agreed not to have them. I want to find out whether the same will apply to multinational practices. Although we appear to be removing barriers and giving them the green light, perhaps there is already an agreement not to have them. Can the Minister clear up that point and say a word or two about the MDPs that we are so neatly defining in

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    amendment No. 114, sub-paragraph (ab)? That may be something of an academic exercise, in view of the arrangements that have been reached, but although the matter was spelt out in Committee, it might be helpful if it were spelt out again on the Floor of the House.
    Mr. Harry Ewing: I welcome the proposal to have multinational practices. I suspect that one of the great difficulties of pursuing cases on behalf of clients against the background of tragedies such as Piper Alpha and Lockerbie is our lack of experience in working on a multinational basis. But it is also important to warn the people of Scotland of what lies ahead. I look forward to the day when Ross, Harper and Murphy becomes Ross, Harper, Murphy, Ashrap, Gomez and Waleski.
    Mr. Menzies Campbell: I should like to ask the Minister to be forthcoming about what precisely is conveyed by subsection (4), which reads:
    "Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section."
    Some distinguished foreign lawyers may find the prospect attractive.
    "The Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register."
    One can see circumstances in which the legal profession of which the applicant is a member is so regulated as to ensure that he is a person of good character or financial probity, or that he regularly fulfils responsibilities equivalent to those in Scotland under the solicitors accounts rules. Legal professions may prudently impose such tests on these lawyers, but there appears to be no provision here requiring the council to consider whether they are sufficiently expert in and knowledgeable about Scottish law to be able to enter a professional relationship with Scottish lawyers.
    It may be argued that it should not matter whether a person qualified in Spanish law is sufficiently qualified in Scottish law, but partnerships of solicitors attract joint and several liability; so it may equally be argued that before any multinational practice may be created a lawyer coming to it from a foreign jurisdiction should be shown to be well enough versed in the law of Scotland at least to understand the responsibilities of partnership in Scotland.
    As I read subsection (4), it is concerned with the way in which the native or the domestic legal system of which the foreign lawyer is a member may be regulated. It is not concerned with whether any such applicant is sufficiently versed in Scottish law to understand the consequences of entering into a partnership with Scottish solicitors. That seems to me to be an omission. Perhaps it is a deliberate omission; if so, no doubt the Minister will tell us. If he accepts that it is an omission by reason of oversight, however, I hope that he will at least give some consideration to the point that I have made. At the very least, it seems to be desirable that anyone entering into a partnership with a Scottish lawyer should be aware of what the consequences may be, in terms of personal liability and what the responsibilities to the Law Society of Scotland and the provisions of the accounts rules undoubtedly are.
    Lord James Douglas-Hamilton: One of the questions that I was asked was whether the term "foreign lawyer" included English lawyers. Amendment No. 114 defines "foreign lawyer" as
    "a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland."
    The hon. and learned Member for Fife, North-East (Mr. Campbell) and the hon. Member for Glasgow, Garscadden (Mr. Dewar) asked who would decide which jurisdictions were acceptable for inclusion in the register of foreign lawyers—for example, whether the educational requirements were sufficient. That will be for the Law Society regulations to decide. The test will be the arrangements for training and fitness in the home jurisdiction of the applicant concerned.
    I was also asked whether multi-disciplinary practices would exist. The answer is yes, if the Law Society wants them. The amendments provide for them to be adequately regulated. The hon. Member for Garscadden looks amused, but it is important that we secure the acceptability of the amendments. The Law Society pressed hard for the amendments on multinational practices, and I suspect that there will be more pressure in that regard. The Secretary of State and I both devilled, before being advocates to a QC who is now a European judge—that is a sign of the greater contact between European nations.
    Let me say to the hon. Member for Falkirk, East (Mr. Ewing) that I am surprised that, as the shadow Secretary of State is a partner of Ross, Harper and Murphy, he did not at least mention the name of the hon. Member for Garscadden before mentioning many extra names.
    Mr. Dewar: I wish this point to be put clearly on the record. On multi-disciplinary practices, the Minister is saying that the Government will abide by what the Law Society of Scotland wants—that they will endorse the decision. If the Law Society wants multi-disciplinary practices, so be it, and if it does not, so be it.
    Lord James Douglas-Hamilton: That is exactly what I am saying. I have had very satisfactory meetings with the Law Society, and I can confirm that it finds the amendments acceptable.
    Mr. Menzies Campbell: Is the Minister saying that, if the Law Society of Scotland considers it appropriate that a foreign lawyer should have some knowledge of Scottish law and the consequences and liabilities of entering into partnership with Scottish solicitors, it may impose that as a qualification before admitting any individual to the register that it will maintain?
    Lord James Douglas-Hamilton: Yes, it could regulate multinational practices. We are at an early stage, but obviously it will become an issue in 1992, when there will be more competition between European countries. It is only right that this provision should be included in the Bill so that they can take the necessary action as required.
    Question put and agreed to.
    Clause read a Second time, and added to the Bill.

Clause 14

  THE SCOTTISH CONVEYANCING AND EXECUTRY SERVICES BOARD
  Lord James Douglas-Hamilton: I beg to move amendment No. 21, in page 18, line 31, leave out
  'providing such services in the course of practising as solicitors'.
  Mr. Deputy Speaker (Mr. Harold Walker): With this we may take Government amendments Nos. 22, 34 and 99.
  Lord James Douglas-Hamilton: The amendments are intended to deal with the concerns expressed by a number of hon. Members in Committee about the demarcation of regulatory responsibilities between the Scottish Conveyancing and Executry Services Board and the Law Society. The hon. Member for Glasgow, Garscadden (Mr. Dewar) and the hon. and learned Member for Fife, North-East (Mr. Campbell) both spoke eloquently on this topic. I hope that they will agree that the amendments make it absolutely clear that the jurisdiction of the board does not extend to solicitors, who will be regulated by the Law Society alone. It will not be possible for a solicitor to register as a qualified conveyancer or an executry practitioner without first having had his name removed from the roll of solicitors. I believe that the amendments clarify the position.
  Mr. Dewar: I welcome that. There was considerable concern in Committee about the possible overlap when someone was both a solicitor and an independent qualified conveyancer. There was a feeling that there might be differences in the rules and regulations and problems about jurisdiction.
  As I understand the import of this group of amendments, the conveyancing board will look after the qualified conveyancers and the Law Society will rule supreme with solicitors. The two cannot be combined. That seems a sensible improvement on the rather confused situation that could potentially have existed. I thank the Minister for his efforts.
  Amendment agreed to.
  Amendment made: No. 22, in page 18, line 37, leave out
  'providing such services in the course of practising as solicitors'.—[Lord James Douglas-Hamilton.]

Clause 15

  QUALIFIED CONVEYANCERS
  Lord James Douglas-Hamilton: I beg to move amendment No. 23, in page 19, line 21, leave out '(4)' and insert '(13)'.
  Mr. Deputy Speaker: With this we may also consider the following amendments: No. 136, in page 19, line 24, leave out 'may' and insert 'shall'.
  Government amendments Nos. 24, 25, 35, 36 and 37.
  6.45 pm
  Lord James Douglas-Hamilton: I shall be happy to accept amendment No. 136 when it is moved. It ensures consistency between the rules governing registration of executry practitioners and qualified conveyancers, and I am grateful to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for bringing it before the House.
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  Amendments Nos. 23, 24, 25, 35 and 36 seek to establish a standard time limit for appeals against decisions made by the Scottish Conveyancing and Executry Services Board relating to disciplinary matters and to the refusal of applications for registration as a qualified conveyancer or as an executry practitioner. The House will have noted that clause 18(10) already provides for such a time limit in connection with the disciplinary measures imposed by the board. The amendments aim for a consistent approach throughout part II.
  I am sure that the House will agree that 21 days is a reasonable period within which an aggrieved practitioner can be expected to appeal against a decision made by the board. It corresponds exactly to similar provisions in the Solicitors (Scotland) Act 1980, which is perhaps the most relevant comparable legislation.
  Amendment No. 37 fulfils an undertaking that I gave to my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) during the Committee's consideration of his amendment No. 253. Its purpose is to place the Secretary of State under a specific duty to include provisions relating to educational qualifications and practical training in the regulations governing the conduct and practice of executry practitioners, which he is required to make under clause 16. While it was always the Government's intention that such matters should be covered in the regulations, the amendment puts the matter beyond question. I wish to make it clear that we have responded to the concern expressed by the hon. Member for Garscadden in Committee.
  Mr. Dewar: There is no time to go over what is obviously an improved position. I can only say that I am grateful to the Minister for accepting amendment No. 136, which I shall move when we come to it. It is important that we give proper attention to educational qualifications and to training qualifications in the area where both qualified conveyancers and executry practitioners operate.
  The amendments that we shall consider this evening go a long way to meet some of the doubts and anxieties that were expressed in Committee, and I am glad to see them on the amendment paper.
  Amendment made: No. 136, in page 19, line 24, leave out 'may' and insert 'shall'.—[Mr. Dewar.]
  Amendments made: No. 24, in page 19, line 31, after 'may' insert
  ',within 21 days of the date on which the Board's decision is intimated to him,'.
  No. 25, in page 19, line 33, leave out
  'if he is not satisfied'
  and insert
  'within 21 days of the date on which the outcome of such review is intimated to him'.
  No. 97, in page 20, line 5, at end insert—
  'or
  (d) a multi-disciplinary practice within the meaning of that section,'.—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 26, in page 20, line 22, at end insert—
  '(10A) The Secretary of State shall, subject to section 36 of this Act and after consultation with such persons as he considers appropriate, by regulations make such provision as he thinks fit with a view to maintaining appropriate standards of conduct and practice of independent qualified conveyancers, and such regulations shall, in particular, make provision with respect to—

  (a) the manner in which such conveyancers conduct the provision of conveyancing services;

  1109

  (b) conflicts of interest;

  (c) the contractual obligations of such conveyancers;

  (d) the holding of clients' money; and

  (e) the disclosure of and accounting for commissions.

  (10B) Regulations under subsection (10A) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.'
  Mr. Deputy Speaker: With this we may take Government amendments Nos. 27 to 32, 43, 56 and 57.
  Lord James Douglas-Hamilton: Broadly speaking, the amendments reflect the terms of an amendment that was tabled in Committee—again, by the hon. Member for Glasgow, Garscadden (Mr. Dewar)—with some further consequential amendments.
  The purpose of the amendments is to place responsibility for making rules governing the conduct and practice of independent qualified conveyancers in the hands of the Secretary of State, who will be required to make such rules in the form of regulations that will, in turn, be subject to affirmative resolution in both Houses of Parliament. When our amended conveyancing proposals were brought before the Committee, our initial view was that it should be for the board to make the rules, subject to the approval of the Secretary of State; however, on reflection a further degree of parliamentary scrutiny is considered appropriate, and I am happy to commend the amendments that so clearly reflect the Committee's wishes.
  Mr. Dewar: This is becoming something of a dialogue, but for the best of all possible reasons the Minister has again been helpful. The decision that the Secretary of State should make resolutions that are open to affirmative procedure strengthens parliamentary scrutiny in an area in which there is a degree of public interest. My hon. Friend the Member for Dundee, East (Mr. McAllion) is muttering. I assure him that the whole point is to allow him into the discussion rather than having it confined to the conveyancing board. I hope that he is pleased at that, and I look forward to hearing his many contributions when we debate the regulations that will ultimately be laid.
  Amendment agreed to.
  Amendments made: No. 27, in page 20, line 25, leave out 'subsections (12) and (13)' and insert 'subsection (12)'.
  No. 28, in page 20, line 28, at end insert 'and'.
  No. 29, in page 20, leave out lines 33 to 45.
  No. 30, in page 21, line 5, leave out 'or (11)(c)'.
  No. 31, in page 21, line 11, leave out 'a' and insert 'an independent'.
  No. 32, in page 21, line 11, leave out
  'rules made under subsection (11)(c)'
  and insert
  'regulations made under subsection (10A)'.—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 33, in page 22, line 4, at end insert—
  '(18A) Where an offence under subsection (17)(a) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

  (a) any director, secretary or other similar officer of the body corporate; or

  (b) any person who was purporting to act in any such capacity,

  1110
  he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
  (18B) Where an offence under subsection (17)(a) above is committed by a partnership and is proved to have been committed with the consent or connivance of a partner, he (as well as the partnership) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.'
  Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 39, 83 and 86.
  Lord James Douglas-Hamilton: In a sense, the amendments are technical. They are designed to remove existing doubts about whether the law at present would allow the prosecution of individual partners and managers of organisations involved in the provision of legal services as well as the organisations themselves.
  Amendment agreed to.
  Lord James Douglas-Hamilton: I beg to move amendment No. 98, in page 22, line 4 at end insert—
  '(18C) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

  (a) a solicitor;

  (b) an incorporated practice within the meaning of section 65 of the 1980 Act;

  (c) a multi-disciplinary practice within the meaning of that section; or

  (d) another independent qualified conveyancer,

  knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice or independent qualified conveyancer, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.'
  Mr. Deputy Speaker: With this it will be convenient to consider the following amendment No. 137, in page 22, line 4 at end insert:—
  '(18C) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

  (a) a solicitor;

  (b) an incorporated practice within the meaning of Section 65 of the 1980 Act;

  (c) a multi-disciplinary practice within the meaning of Section 65 of the 1980 Act; or

  (e) another independent qualified conveyancer,

  knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice, or independent qualified conveyancer, shall be guilty of an offence and liable in summary conviction to a fine not exceeding level 4 on the standard scale.'.
  Government amendments Nos. 110 and 112.
  Lord James Douglas-Hamilton: This group of amendments clarifies the business relationships which can be entered into by independent qualified conveyancers and solicitors. The first amendment fulfils an undertaking that I gave in Committee to my hon. Friend the Member for Eastwood (Mr. Stewart). It prevents an independent qualified conveyancer from acting on an agency basis for persons other than solicitors or other independent qualified conveyancers. The obvious example of such an arrangement—I do not think that it is a likely scenario—would be a large financial institution seeking to use independent qualified conveyancers as agents, thus gaining access to the financial market by the back door. Amendment No. 137, which was tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar) similarly

  1111
  seeks to prevent such business relationships, and is virtually identical to amendment No. 98, which I hope he will feel able to support.
  Amendment No. 110 clarifies the extent of the provision in section 26 of the Solicitors (Scotland) Act 1980 which makes it an offence for solicitors to act on a similar agency basis for unqualified persons. It makes it clear that solicitors will be able to act on such a basis for independent qualified conveyancers and executry practitioners within their specific areas of legal practice. The amendment also makes it clear that solicitors will be able to work on that basis in law centres. That matter was raised in Committee by the hon. Member for Garscadden and, although we discussed it only briefly, the Committee clearly supported the concept of law centres. I think that the law centre in Castlemilk was mentioned. Therefore, the amendment removes one of the remaining legal obstacles to the establishment of law centres and it has the support of the Law Society.
  Amendment No. 112 disapplies the offence provision in section 32 of the 1980 Act from independent qualified conveyancers preparing writs relating to heritable or moveable estate. I suggest that they relate only to moveable estate connected with the conveyancing transaction concerned. The amendments are concerned primarily with agency arrangements involving solicitors and qualified conveyancers.
  Mr. Dewar: This is a complicated series of amendments and it would not help if I were to plunge into them. At the moment I am not sure that I am competent to do so. I am grateful to the Minister for a series of proposals which largely meet points that were raised in Committee. It is important for the independence of qualified conveyancers to be safeguarded. That is a polite way of saying that this is another move to ensure that the banks and building societies do not get into this field, as originally envisaged. As I understand it, the amendment will prevent conveyancers from being employed by banks or building societies. They will have to work on their own behalf or for solicitors. They cannot work for a financial institution as was at one time envisaged. That is important.
  The law centres are a rather technical matter. A number of points were raised about them in Committee and I shall certainly consider how far the Minister has been able to go. I am glad that he feels that he has been able to meet some of the worries expressed by the law centres. The movement has not had as much positive encouragement in Scotland as it deserves. Perhaps we may return to that on another occasion.
  Sir Nicholas Fairbairn: I welcome the amendments, which I thought that I had suggested.
  Mr. Brian Wilson: You can have them.
  Sir Nicholas Fairbairn: No man is a prophet in his own country. I hope that the message will go from here that it will be a criminal offence for anybody to attempt to get around the exclusion of institutions to do conveyancing by employing them as runners, lackeys or fags—whatever one may call them. It is a criminal matter now, and it is important for that to be known.
  Amendment agreed to.
  Amendments made: No. 34, in page 22, leave out line 9.
  No. 99, in page 22, line 11, leave out 'such' and insert 'conveyancing'.—[Lord James Douglas-Hamilton.]

Clause 16

  EXECUTRY PRACTITIONERS
  Amendments made: No. 35, in page 22, line 44, after 'may' insert
  'within 21 days of the date on which the Board's decision is intimated to it'.
  No. 36, in page 22, line 46, leave out
  'if it is not satisfied'
  and insert
  'within 21 days of the date on which the outcome of such review is intimated to it'.
  No. 37, in page 23, line 16, leave out 'may' and insert 'shall'.
  No. 38, in page 23, leave out lines 22 to 25.
  No. 39, in page 23, line 47, at end insert—
  '(16) Where an offence under subsection (14) above is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.'—[Lord James Douglas-Hamilton.]

Clause 17

  EXECUTRY SERVICES BY RECOGNISED FINANCIAL INSTITUTIONS
  Lord James Douglas-Hamilton: I beg to move amendment No. 40, in page 24, line 1, at beginning insert
  'Subject to subsection (2A) below,'.
  Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 41, 42, 124 and 141.
  Lord James Douglas-Hamilton: The most important of these amendments is No. 41 which is again designed to meet the concerns expressed in Committee by the hon. Member for Glasgow, Garscadden (Mr. Dewar) relating to the competence of a recognised financial institution wishing to offer executory services. The amendment requires such an institution to notify the board that it complies with certain standards about the educational qualifications and practical training of its executory staff, which will be prescribed in regulations made by the Secretary of State. The provision ensures that financial institutions recognised under clause 17 employ adequately trained staff for the purposes of offering executory services. I am happy to accept amendment No. 141 in the name of the hon. Member for Garscadden. It should not be confused with amendment No. 41, which is also in this group. That provides that the regulations will be subject to affirmative resolution.
  Amendments Nos. 40 and 42 deal with the possibility that an institution might, for whatever reason, fail to maintain a suitable complaints mechanism or suitable standards of training for its staff, notwithstanding the fact that it was fully up to standard at the time when it notified the board of its intention to offer executory services. In

  1113
  such circumstances, the institution is required by the amendment to stop providing executory services and to notify the board that it is doing so.
  The amendments go a long way towards meeting the concerns expressed in Committee. Amendment No. 124 is technical and clarifies clause 17 in relation to the Insurance Companies Act 1982. Section 16 of that Act specifies the areas of business which, under statute, insurance companies are permitted to undertake. The amendment makes it clear that clause 17 does not extend that area of business. The amendments will introduce additional consumer safeguards for the provision of executory services.
  Mr. Dewar: I thank the Minister for the amendments. As he said, they are in response to worries expressed by me and other hon. Members in Committee. I had better mention other hon. Members in case I stand on the distinguished and learned toes of the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn). I am prepared to share the technicality of this matter with him.
  It is important that financial institutions such as banks and building societies which are already offering executry services to the public should not, because they are already in the field, be exempt from providing qualifications in training and education for those dispensing the service. It would have been an anomaly if anyone registering as an executry practitioner now had to meet certain standards, while the big boys who were in the area earlier were exempt from the same requirement. Amendment No. 41 seems to meet that point. I shall not even complain about my amendment (a) not appearing on the order paper. The main purpose of the Committee has been met.
  7 pm
  I am glad that the Minister has accepted amendment No. 141, which means that regulations laid under clause 17(1) will be subject to positive resolution by the House. That is consistent with what we decided earlier this evening, and it is appropriate. I thank the Minister.
  Amendment agreed to.
  Amendments made: No. 41, in page 24, line 3, after 'so;' insert—
  '(aa) it complies with such requirements as may be prescribed by regulations made by the Secretary of State with respect to the educational qualifications and practical training of those of its employees who are to be engaged in the provision of executry services;'.
  No. 42, in page 24, line 23, at end insert—
  '(2A) Where—

  (a) a recognised financial institution ceases (for whatever reason) to comply with the requirements with respect to educational qualifications and practical training referred to in paragraph (aa) of subsection (1) above;

  (b) a recognised financial institution ceases (for whatever reason) to be a member of, or otherwise subject to, a scheme referred to in a notice given by it under that subsection; or

  (c) such a scheme ceases to comply with the requirements mentioned in paragraph (b)(ii) of that subsection,

  the recognised financial institution shall notify the Board of that fact and shall forthwith cease providing executry services.'
  No. 124, in page 24, line 29, at end insert—
  '(4A) This section, so far as it relates to a body or subsidiary mentioned in subsection (2)(c) or (d) above, is
  1114
  without prejudice to section 16 of the Insurance Companies Act 1982 (restriction of insurance companies to insurance business).'—[Lord James Douglas-Hamilton.]
  No. 141, in page 24, line 30, leave out subsection (5) and insert—
  '(5) Regulations under subsection (1) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament'.—[Mr. Dewar.]

Clause 18

  PROFESSIONAL MISCONDUCT, INADEQUATE PROFESSIONAL SERVICES, ETC.
  Amendment made: No. 43, in page 24, line 39, leave out
  'rules made under section 15(11)(c) or, as the case may be, regulations made under section'
  and insert
  'regulations made under section 15(10A) or'.—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 44, in page 25, line 20, at end insert——
  '(ee) in a case where the practitioner has provided inadequate professional services, to direct the practitioner to pay to the client by way of compensation such sum, not exceeding £1,000, as the Board may specify;'.
  Mr. Deputy Speaker: With this we may discuss Government amendments Nos. 45, 125, 79 to 81 and 126.
  Lord James Douglas-Hamilton: These amendments fulfil an undertaking that I gave during the Committee's consideration of new clause 12, which was tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar). I said that I would accept the principle behind that new clause, and I have tabled the amendments to do so.
  The amendments provide the Council of the Law Society, the Scottish Solicitors Discipline Tribunal and the Scottish Conveyancing and Executry Services Board with a power to order the payment of compensation by a practitioner against whom a complaint of providing inadequate professional services has been upheld. It is intended that the compensation will be for distress or inconvenience that the client has suffered, although it will be open to those disciplinary bodies to order the payment of compensation for a specific and quantifiable financial loss. Amendments along these lines have been pressed for by the Scottish Consumer Council since the introduction of the Bill in another place and I am confident that the consumer lobby will give them a warm welcome. The Law Society of Scotland has indicated that it does not dispute the principle on which the amendments are based.
  The House will wish to be aware that a corresponding provision along these lines is included in the Courts and Legal Services Bill—indeed, it was specifically sought by the English Law Society. The amendments also include a further refinement, included after detailed discussions with the Law Society of Scotland, which makes it clear that any decision of the board, the tribunal or the council cannot be founded upon in any proceedings in order to show negligence on the part of the practitioner; that any award of compensation will be totally without prejudice to the client's right of redress under civil law; and that the amount of any award of compensation can be taken into

  1115
  account in the calculation of any award of damages by a court. Those provisos are eminently sensible and will, I hope, meet with the approval of the House.
  The compensation power provides a useful additional remedy to the disciplinary sanctions already available to the board, the council and the tribunal.
  Mr. Dewar: We have been moving along at fair lick and we have dealt with a great many quite important, but on the whole technical, matters.
  The amendment is worth a particular welcome. It has been tabled in response to a new clause that I moved in Committee, but in a sense it is the culmination of a campaign. I join the Minister in paying tribute to the Scottish Consumer Council that lobbied for the amendment. Its chair, Barbara Kelly, was present when these matters were discussed in Committee. The amendment provides an important new power and extends the remedies available to the public in their dealings with solicitors when something has gone wrong. That is useful and important.
  We are all aware that the Law Society rightly takes a stringent view of dishonesty or a failure to abide by the solicitors' account rules. However, the general public have felt for some time that there has been a lack of provisions to deal with problems of shoddy work, delay, inadequacy or incompetence. The Law Society already has the power to instruct that the work be put right either by the solicitor free of charge, or by another solicitor at the expense of the defaulting solicitor.
  I am aware of the problems through my experience in my constituency and through my contacts with the public. Even those who are now somewhat distant from the everyday business of the law profession are often recipients of stories about it and tales of distress. There is no doubt that those who are faced with inadequate professional services, and the delay and the problems that flow from that, suffer inconvenience and distress. It is right that a power should be available to the Law Society, through its disciplinary machinery, to offer some form of compensation.
  The wear and tear on the nerves and the general aggravation that can result from the problem of trying for many weeks, perhaps months, to get a satisfactory answer from the defaulting solicitor can be a considerable burden for those concerned. I think that £1,000 is a fair sum to have available as an upper limit—not as compensation, but as a payment to mark the inconvenience and distress that has been caused.
  Sir Nicholas Fairbairn: The hon. Gentleman said that it was not compensation, but the amendment states, "by way of compensation".
  Mr. Dewar: I understand that, and I know that there was some discussion about whether the word "compensation" should be included. I am interpreting the word as I believe it will be interpreted in practice. It is not compensation for a loss, but the giving of some solace for the inconvenience and distress that has been caused. Had the amendment been tabled in Committee, I would have looked for a different word—
  Sir Nicholas Fairbairn: "Solatium".
  Mr. Dewar: "Solatium" has been suggested by a man of law as a suitable shot at getting the right nuance.
  I am making a distinction of some importance, and whatever the word in the Bill, I suspect that it will be approached more in the terms of solace or solatium by the Law Society when it operates the scheme. It is in that spirit that I welcome the amendment as an important improvement on the current position. Although a minor matter on another level, it is important to those concerned. It is right that the powers should be available, and I am glad that the Minister has given way on that.
  Sir Nicholas Fairbairn: I welcome the amendment, but I want to put certain questions to my hon. Friend the Minister. I am not sure whether I misheard him, but I thought that he suggested that the fine—it is solatium for the client but a fine for the practitioner—could be subtracted from any award given in civil proceedings. That would be wrong.
  I do not like absolutes such as £1,000. People may have suffered appalling experiences and immeasurable losses. There is nothing magic about £1,000, except that it operates on the decimal system. It is idiotic. We just agreed to amendment No. 33, which contains words in the law of Scotland that are new to me:
  "shall be liable to be proceeded against and punished accordingly."
  Is it not the threat of eternal life to be proceeded against and punished accordingly? It does not say, "You will only be burnt for 10 minutes," or "Satan's oven will not be allowed to be turned up above 50 degrees." If we are to introduce into the law of Scotland the concept of according punishment, why not do it here?
  It seems ridiculous to pluck from the air some symbolic, maniacal figure such as £1,000. If an appropriate sum would be £10,000, £50,000 or, as in a recent case in England, £3 million, why should that not be the sum awarded? I see no point to imposing a limit. Why not use instead the words "and punish accordingly"? If we are to introduce marvellous, 16th-century wording of that kind into the law of Scotland, why impose a limit of £1,000? If it is suggested that the award is made by way of compensation, will not the argument be made by the lawyer appearing for the solicitor in future civil proceedings that the complainant has already been compensated? The advocate may argue that, under the Act, the Law Society has awarded compensation of £958.
  While I welcome the right of the board to punish delinquent practitioners, the choice of words is most unfortunate, because the word "compensation" can be used in two senses. In cases of reparations, one often finds that the person suffering an injury only begins to recover when he or she has won their case—even if they are awarded only one penny. I appreciate that the complainer may be compensated in the sense that he or she will be made to feel better, but there is also the punishment of the delinquent practitioner to consider. I ask my hon. Friend the Minister seriously to reconsider whether there needs to be an imaginary limit rather than revert to those wonderful and ancient words of "punish accordingly".
  Lord James Douglas-Hamilton: I first make the point that such compensation cannot be founded upon in the courts if a negligence action is subsequently raised, because it relates to distress or inconvenience arising from inadequate professional services. We are talking not in terms of punishment but of assisting the individual

  1117
  concerned. Compensation paid to the client is not to be regarded as a fine upon the solicitor. There is a maximum of £1,000, and the Law Society can award up to that sum—but it does not set limits on what the courts can award. In any event, negligence actions are completely separate from the provision before us.
  Amendment agreed to.
  Amendment made: No. 45, in page 25, line 43, leave out 'or (b)' and insert ', (b) or (dd)'—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 46, in page 25, line 47, at end insert—
  '(6A) Where a practitioner—

  (a) fails to comply with a notice under subsection (6) above; or

  (b) complies with such a notice but the Board are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates, the Board may apply to the Court of Session for an order requiring the practitioner to comply with the direction to which the notice relates within such time as the court may order.'

  The amendment provides the board with an additional enforcement power, to enable it to ensure compliance with any disciplinary direction that it may issue under clause 18(6). It allows the board to invoke the power of the court in support of its disciplinary measures, by providing for it to seek an order from the Court of Session requiring the practitioner to comply with a disciplinary direction. A similar power is available to the council of the Law Society, to secure enforcement of its disciplinary decisions by application to the solicitors' disciplinary tribunal. The amendment provides a useful addition to the board's powers, and I commend it to the House.
  Amendment agreed to.
  Lord James Douglas-Hamilton: I beg to move amendment No. 47, in page 26, leave out from the beginning of line 21 to 'refrain' in line 27.
  Mr. Deputy Speaker (Sir Paul Dean): With this, it will be convenient to consider the following: Government amendments Nos. 48 to 50.
  Amendment No. 139, in schedule 7, page 94, leave out lines 13 to 15 and insert:—
  'In paragraph 14 for the words "may be published in such manner as the Tribunal may determine" there shall be substituted the words "shall where the solicitor complained against is found guilty of professional misconduct or of providing an inadequate professional service be published in such manner as the Tribunal may determine and in all other cases every decision may be published in such manner as the Tribunal may determine.".'.
  Government amendment No. 84.
  7.15 pm
  Lord James Douglas-Hamilton: Amendment No. 47 was the subject of considerable debate in Committee. It deals with the extent of the publicity that should be given to the decisions of the Scottish Conveyancing and Executry Services Board and of the Scottish Solicitors Discipline Tribunal. Hon. Members who were on the Committee will recall that, following lively debate, I undertook to reconsider the matter.
  I have reached the view that all decisions of both the board and tribunal should be published, including the names of the practitioners against whom there has been no finding. In doing so, I have taken fully into account
  1118
  representations to the effect that even an acquittal could damage a practitioner's reputation, on the argument that there is no smoke without fire. However, I do not believe that that is likely to be a problem in practice—not least because there is likely to be little public interest in the names of those who have been acquitted. That has proved to be the case south of the border, where the English solicitors' disciplinary tribunal publishes its findings in full. The General Medical Council does likewise.
  I do not accept that any special provisions should be made for Scottish solicitors in that respect. Both the board and the tribunal retain a discretion to refrain from publishing names or any other information that might damage the interest of persons other than the practitioner or his close associates or their families. That proviso was requested by the Lord President of the Court of Session, and is eminently sensible. The drafting amendments seek to remove the uncertainty about the effects of the provision that was expressed in Committee. I am aware that this issue divided the Committee, but I am satisfied that the amendments capture its overall mood.
  Mr. Dewar: I am bound to observe that the amendments do not capture my mood. The Committee was divided—not between parties, but between those in all parts of it, which presented the Minister with a genuine difficulty in reaching his decision. It would not be sensible to pursue my objections at this stage, but I must express my personal regret at the Minister's decision, which I believe is the wrong one.
  It is important that any solicitor held to be guilty of dishonesty or of bad practice, who is the subject of any finding of guilt—to use a shorthand, lay term—in respect of proper professional ethics should have his name and the finding published. However, I have grave reservations about that being done where there has been no finding of fault.
  I am unimpressed by the Minister's arguments. Even in General Medical Council findings of no fault or not guilty, its hearings are held in public and it publishes its findings, but its practice should not bind us in considering the correct procedure in disciplining solicitors. Anyone who followed the recent case of the unfortunate doctor who was found not guilty of having sexual intercourse with one of his patients will know that even the colour of his underwear became the subject of prurient and astonishingly widespread public interest. That doctor would be amazed to hear the Minister say that a finding of not guilty may not necessarily damage the reputation of the individual concerned. Of course it can.
  I accept that the General Medical Council is in a slightly different situation, in that its hearings are public, so that journalists can attend to report the juicy bits of evidence. That will not happen with solicitors' hearings, but even where there is no finding of fault, details of the hearings may still come to the public notice.
  Perhaps I should now put on my own sackcloth and ashes and tell the Minister that such hearings are matters of not only public but professional interest. Although I read the informative articles in each issue of the Law Society of Scotland's journal when I was in private practice, I also checked the records of the disciplinary committee that appeared at the back of that publication. If I learned that one of my colleagues or someone whom I vaguely knew had been up before the committee, and even if that individual had not been found to be at fault,

  1119
  I could not help noting that a charge had been brought at all—and the fact that it had did not do that individual's reputation any good in my mind.
  To be quite honest, his professional reputation suffered. People used to say, "Well, you know, he has been before the disciplinary committee a couple of times. All right, they didn't get anything on him, but!" Solicitors are no more objective about presumptions of innocence than any other group, and they are just as much of a gossipy village as any other vested interest or professional group. It is nonsense for the Minister to say that there will be no damage.
  In amendment No. 84 we have gone to great lengths to say that there need not be publication if it would damage the interests of any person other than the solicitor, his partner or their families. Also, there ought to be some consideration for the inevitable damage that could result for someone who is also worthy of consideration: the solicitor who has been the subject of allegations which have not been proved to be justified.
  Publication is bound to have a damaging effect, for the reasons that I have given. Clearly, my own preference would have been for my amendment No. 139, because it said that there should be no discretion, if there was a finding of fault, which is a big change from the present arrangements. If solicitors were found guilty of the complaint made against them, their names had to be published, subject to the necessary qualifications in amendment No. 84.
  However, if the finding was not guilty, we should at least leave the element of discretion so that, if it was clear that there was no moral turpitude and the allegations made had been held not to be proved, the discretionary committee of the Law Society could decide that, even if there was an interest in ventilating the circumstances of the case because it made a point of practice about which solicitors ought to be aware, it could be done without naming the solicitor concerned. That seems to be a sensible provision, and I am sorry that it has not found favour with the Minister. He is wrong, and individuals may suffer as a result.
  Sir Nicholas Fairbairn: I agree wholeheartedly with the hon. Member for Glasgow, Garscadden (Mr. Dewar) as I can imagine nothing more harmful than publication. As he generously suggested, professional people are no less scurrilous in their suspicions, although there should be a presumption of innocence, than non-professional people. If someone comes up before the disciplinary committee and gets off twice, all they will say is that he has got away with it again. Publication will be a slur on a solicitor's professional reputation and it will be impossible to remove it.
  I was astonished that a Scottish Minister should pray in aid the English section of the General Medical Council as an example to show that people did not suffer. I do not suppose there is any hon. Member in the Chamber who does not remember the name of the doctor the hon. Member for Garscadden mentioned, but the women with whom he was supposed to have had intercourse were protected and known as Mrs. A and Mrs B.
  The General Medical Council presumed guilt before it started, because it said that a couple of women could not be named, although their practices could not be affected as
  1120
  they did not have any. Their livelihoods and their families would not be affected, but the council said that the man who was wrongly accused could be named and the press were able to name him. I would not want the English section of the General Medical Council to be taken for an upholder of morals if that is the way that it behaves.
  Therefore, at the very least there should be the discretion not to disclose the name of a solicitor against whom a complaint has been made. 1 could name many cases—but I shall not—in which a disappointed litigant has made allegations against a solicitor, frequently at the same time as litigation but often years later, for motives which were entirely vindictive, irrational and emotional. There is absolutely no reason why the solicitor's livelihood, or that of his family and his partners, as well as his clients' interests should be put at risk by the publication of such an accusation. People remember accusations, but they rarely remember acquittals.
  Mr. Menzies Campbell: If the Minister seeks to rely on the General Medical Council, one can only assume that he was on holiday throughout the months of August and September. Anyone who had any regard to the nature and degree of publicity which attached to the proceedings referred to by the hon. Member for Garscadden could not but believe that a procedure which resulted in such publicity was thoroughly defective and damaging. The subject of such publicity has little chance of recovering.
  I hope that the individual we are discussing will recover, but the nature of the coverage in the press, on television and radio was such that he will find it a substantial obstacle to overcome. These matters must be assessed against the principle of public interest. It is clearly in the public interest that they should know about solicitors who have contravened the rules and regulations and have been found guilty of so doing.
  One might argue that, for the public's protection, they should know which solicitors have fallen below the prescribed standards of behaviour and conduct, so that they can exercise a choice about going to that solicitor. Also, they can be advised that discipline and behaviour are taken seriously by the Solicitors Discipline Tribunal.
  Where is the public interest in publishing the names of people who have not been found to have contravened the regulations? Hon. Members on both sides of the House and in Committee have accepted that the professional and financial consequences may be substantial for the individual concerned and for his partners and associates.
  The Minister has taken a broad brush, and decided to publish and be damned, but the people who will be damned are those who do not deserve to be. Even at this stage, the Minister should be able to exercise his independent judgment, and take a decision for which he would be praised by both sides of the House—a decision that would reflect an independence of mind appropriate to the office that he holds—and say that he will think the matter over again. If he withdrew the amendment and gave it further consideration, he would earn the respect of the whole House.
  Mr. Harry Ewing: It is a great pity that the example of the General Medical Council has been thrust into the debate. There is no comparison between a medical practitioner who is accused of misconduct and the procedure followed when a legal practitioner is accused of malpractice.

  1121
  In the case of the medical practitioner, whether a consultant or general practitioner, a whole host of procedures are followed before the case finally goes to the General Medical Council. Many cases do not even reach the council, because they are dealt with and disposed of at an intermediate stage. That is not the case with legal practitioners, because there is only one avenue for dealing with their alleged misdemeanors.
  The example of the General Medical Council is a red herring, for the reasons I have already stated and also because the council is constituted differently from the tribunal which considers allegations made against legal practitioners. The General Medical Council includes members of the public. My hon. Friend the Member for Aberdeen, North (Mr. Hughes) was a lay member of the council for a number of years, and a number of lay members sit in judgment on cases. There is no comparison between what happens to a medical practitioner and what happens to a legal practitioner when they transgress.
  The Minister ought to accede to the request by the hon. and learned Member for Fife, North-East (Mr. Campbell) and take this matter away. There is no doubt whatsoever that it would do almost irreparable damage to a solicitor practising in a closely knit community. Anyone who thinks that closely knit communities are to be found only in villages knows nothing of some of Scotland's larger urban areas. In my constituency, all the solicitors who practise in Falkirk, Grangemouth and Bo'ness are well known to every person who lives in those communities. If, after a disciplinary hearing, any one of those solicitors was found not to have transgressed yet had his or her name published, I can give the Minister an absolute guarantee—my hon. Friend the Member for Linlithgow (Mr. Dalyell) is here; he knows the communities that I am talking about as well as I do, and in the case of Bo'ness better than I do—that that solicitor's practice would be damaged beyond repair.
  7.30 pm
  It is a major error for the Minister to suggest that those who are found not to have trangressed should have their names published. I accept what the Minister said about there being no smoke without fire. A balance has to be struck. Do we publish the name of someone who is found not to have transgressed and therefore seek to clear that person's name, or do we withhold the name and hope that people accept that that person has not transgressed?
  I accept that a balance has to be struck, but it is not a fine balance. The heavy balance of probability comes down in favour of not publishing that person's name. Damage will be done in any case, but the damage could be minimised by not publishing the names of those who were found not to have transgressed. The names of those who were found to have transgressed should certainly be published, but those who have not transgressed can do without the ignominy of their names being published, with the statement that they have been found not guilty. There is nothing more damning. The Minister ought therefore to withdraw the amendment.
  Mr. Dalyell: When colleagues have spent many hours on a Bill, those hon. Members who did not spend those many hours upstairs ought to be reticent. Perhaps, however, I may be allowed to break silence on this issue—and briefly.
  1122
  I am strongly in favour of the arguments that were first advanced by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar). My strong, ferocious feeiing is the result of constituency experience. When my hon. Friend the Member for Falkirk, East (Mr. Ewing) referred to Bo'ness he may have been thinking of a particular case that arose some years before Bo'ness became part of his constituency, when I represented it. The case is indelibly marked on my memory. It demonstrates how vulnerable solicitors can be if someone bears a grudge against them, a grudge that is perhaps completely ill-founded. Doctors are also vulnerable, and the police are becoming more and more vulnerable.
  As my hon. Friend the Member for Falkirk, East said, the trouble is that there is no smoke without fire. Mud sticks in small Scottish communities. This is not a party matter. When it becomes clear that the mood of the House of Commons is such that the Minister ought to think again—this Minister has a reputation, well deserved, in my opinion, for decency and for listening—and since he has heard colleagus on all sides ask him to think again about this matter, as a result of all our experiences, he should do so. Therefore I ask him, please, to do so.
  Lord James Douglas-Hamilton: We have had very interesting debates, both tonight and in Committee. The tenor of the representations made on that occasion was rather different. Powerful speeches were made in Committee on the subject in support of the proposition that there should be no special treatment for lawyers on the question of what publicity should be given to the disciplinary decisions of the relevant regulatory authorities.
  Views on the matter do not divide along party political lines. For example, on that occasion the hon. Member for Falkirk, East (Mr. Ewing) said that he saw no grounds for making a special case for lawyers in this context. On looking into the position with regard to similar professional regulatory authorities, I am of the firm view that the case for giving publicity to the decisions of the council, the tribunal and the board in all cases is conclusive.
  I recognise the strongly held views both inside and outside the legal profession on this question. Nevertheless, I believe that the amendments that I have tabled reflect a sensible and moderate approach. I hope, therefore, that the hon. Member for Glasgow, Garscadden (Mr. Dewar) will not feel that he has to press amendment No. 139 to a Division. I do not see the need for any secrecy in connection with the decisions of the tribunal or the board, whatever the outcome of the case in question.
  Mr. Wilson: We intend to press this matter to a vote because an important point of principle is involved. What both we and the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) have been asking is: do we believe in smearing people? To publish a verdict of innocence but still to broadcast the fact that the case occurred amounts to stigmatising a person's reputation.
  Sir Nicholas Fairbairn: I advise the hon. Gentleman—I shall not charge for this opinion—that if he wants to defame someone without the risk of having to pay damages, all that he needs to say is, "My dear boy, let me be the first to deny this rumour that is going about that you are a paedophile."
  Mr. Wilson: Perhaps we could have a conference to agree on which rumours about the hon. and learned Gentleman we should deny.
  I am not a lawyer; I have a journalistic background. People have come to see me on many occasions because they were obsessed by what they regarded as a legal grievance. That has occurred particularly in the Highlands. Crofting throws up innumerable cases of that kind. Such people go to every lawyer in the Highlands and Islands and become absolutely convinced that each new lawyer they see is more bent and less interested in their case than the previous lawyer. People who are obsessed in that way take their case from lawyer to lawyer.
  I have spent many hours trying to get to the bottom of complicated cases in order to find out whether someone has been badly treated. As soon as one realises that a person has been to 10 lawyers and that the first nine agree, one's suspicions are aroused. When a person is convinced of his rectitude but when in law he does not have a leg to stand on, the idea that the lawyers should be exposed as having failed their client, or should be suspected of having failed their client by the publication of this material, would be gratuitous, offensive and unnecessary, and would not lead to public satisfaction with the process. It would discredit people who had no cause to be discredited.
  We all agree that wrongdoing and malpractice should be published, but where malpractice and wrongdoing have been found not to have been committed there should be no publication. It is a simple principle. I wish that it could be extended beyond solicitors to many others. There is nothing so damaging as the dirty little paragraph in a local newspaper telling the world that someone has been found not guilty of something. Two wrongs do not make a right. Let us not enshrine in law, by means of the amendment, the principle that solicitors should be treated in the same way.
  Mr. Deputy Speaker: The Question is that the amendment be made—
  Mr. Dewar rose—
  Mr. Deputy Speaker: Order. We are dealing with amendment No. 47.
  Mr. Dewar: On a point of order, Mr. Deputy Speaker. It would save a lot of confusion if I say that I shall recommend to my hon. Friends that we force a Division on amendment No. 139.
  Mr. Deputy Speaker: The hon. Gentleman can do that, but it appears way on in the Order Paper. We cannot take a Division on amendment No. 139 until we reach it on the Order Paper. The hon. Gentleman could certainly divide the House on that amendment, but it would not happen for some time. Perhaps he would like to reconsider his position in the light of that.
  Mr. Dewar: The only way that I could achieve the effect that I wish is either to vote for amendment No. 139 or against Government amendment No. 84. That might have the effect of marking the point that I make. I do not know whether it would be easier to divide on Government amendment No. 84. Unfortunately, it is a mixed bag of amendments, but I am sure that the Chair understands my difficulty.
  Mr. Deputy Speaker: If I could help the hon. Gentleman, I would, but Government amendment No. 84 appears a long way down the Order Paper. It will not be possible to vote on it until we reach it.
  Mr. Dalyell: Further to that point of order, Mr. Deputy Speaker. Might not this be one of the occasions when parliamentary procedure is a bit unhappy in its effects? In the light of what has been said, some hon. Members would like to give the Minister time to consult his ministerial colleagues and advisers and reach a considered decision. I am very much against Ministers being forced, at point blank range, into a decision when, if given more time, they might reach a different decision.
  Mr. Dewar: In the circumstances, I will not divide the House at this point, but I reserve the option to do so on amendment No. 139 when we reach it. That would be common sense. I am attracted to the point made by my hon. Friend the Member for Linlithgow (Mr. Dalyell). I do not know whether the Minister has any room for manoeuvre, but he will have gathered that we feel quite strongly about this point of principle and that our feelings are shared by some Conservative Members.
  I hope that it is not improper to say that I have had conversations with the Law Society on the matter and that in general it supports the point that I am making. There is quite a group of interested people and of people of some expertise, and perhaps in the interval before we reach amendment No. 139, the Minister will consider his position and consult representatives of the Law Society, who are in the building.
  Mr. Deputy Speaker: I understand the difficulty that the House is in, but I can give the hon. Member for Glasgow, Garscadden (Mr. Dewar) an assurance that, when we reach amendment No. 139, if he desires to divide the House, that desire will be conceded by the Chair.
  Mr. Harry Ewing: Further to that point of order, Mr. Deputy Speaker. To clear the mind of hon. Members, the vote on amendment No. 139 is anything but imminent. As I read the Order Paper, it would be the last vote in our consideration. That takes the pressure off the Minister and gives him much more time to reach that sensible conclusion.
  Mr. Deputy Speaker: I hope that we have reached a sensible and happy conclusion.
  Amendment No. 47 agreed to.
  Amendments made: No. 48, in page 26, in line 29, after 'than' insert '(i)'.
  No. 49, in page 26, line 30, leave out 'and' and insert 'or (ii)'.
  No. 50, in page 26, line 31, after first 'or' insert '(iii)'.
  No. 51, in page 26, line 42, leave out 'inquiries under this section' and insert
  'this section and section (Board's intervention powers).'
  No. 125, in page 26, line 42, at end insert—
  '(11A) The Secretary of State, after consulting the Board, may by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(dd) above by substituting for the sum for the time being specified in that provision such other sum as he considers appropriate.
  (11B) The taking of any steps under subsection (2) above shall not be founded upon in any proceedings for the purpose of showing that the practitioner in respect of whom the steps were taken was negligent.

  1125
  (11C) A direction under subsection (2)(dd) above to a practitioner to pay compensation to a client shall not prejudice any right of that client to take proceedings against that practitioner for damages in respect of any loss which he alleges he has suffered as a result of that practitioner's negligence, and any sum directed to be paid to that client under that provision may be taken into account in the computation of any award of damages made to him in any such proceedings.'—[Lord James Douglas-Hamilton.]

Clause 20

  INTERPRETATION OF SECTIONS 14 TO 19
  Amendment made: No. 53, in page 27, line 29, at end insert
  'except where the context otherwise requires'.—[Lord James Douglas-Hamilton.]

Clause 28

  RULES OF CONDUCT ETC.
  Amendments made: No. 100, in page 36, line 35, after 'discipline)' insert—
  '(a) at the end of subsection (1A) there shall be inserted—
  "and
  (f) make such additional or different provision as the Council think fit in relation to solicitors who, or incorporated practices which, are partners in or directors of multi-disciplinary practices."; and
  (b)'.
  No. 101, in page 36, line 39, leave out from 'prohibiting' to 'shall' in line 42 and insert
  'the formation of multi-disciplinary practices'.—[Lord James Douglas-Hamilton.]

Clause 31

  JUDICIAL APPOINTMENTS
  7.45 pm
  Lord James Douglas-Hamilton: I beg to move amendment No. 54, in page 39, line 21, leave out
  'and the High Court of Justiciary'.
  Mr. Deputy Speaker: With this, it will be convenient to consider Government amendments Nos. 55 and 70 to 77.
  Lord James Douglas-Hamilton: There has been considerable support for the principle underlying the new provisions contained in paragraph 4(2)(b) of schedule 4 relating to the filling of vacancies in the Inner House of the Court of Session. Under existing provisions, when a vacancy arises in a division of the Inner House, the most senior lord ordinary is automatically appointed. In many circumstances, it may well be that, not least by virtue of his experience, the most senior lord ordinary is indeed the best-fitted judge to fill the vacancy, but, equally, there is no reason to suppose that that will necessarily be true on each and every occasion.
  The Buggins' turn principle, if I may so describe it, may have worked well enough in the past, but it hardly seems appropriate in modern circumstances. In recent years, there has been a very substantial increase in the work loads of the Supreme Courts, a significant increase in the number of judges and an increased use of extra divisions in the Inner House. Until 1988, judges of the Inner and Outer Houses received identical salaries but in that year, to
  1126
  reflect current circumstances, the Top Salaries Review Body recommended, and the Government accepted, that a salary differential should be introduced.
  To reflect those changes, provision has been made in the Bill for vacancies in the Inner House to be filled by the Lord President and Lord Justice Clerk in consultation, as appropriate, with the other judges. In our deliberations in Committee on these new provisions, it was suggested that it would be appropriate for there to be statutory provision for the Secretary of State also to be involved in these appointments. My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) was keen on that amendment. The Secretary of State is, of course, involved in other judicial appointments to the Supreme and Sheriff Courts, and with regard to appointments to the Inner House it would seem to be appropriate for there to be some measure of accountability to Parliament.
  On that basis, the Government have tabled the amendment, which provides that the consent of the Secretary of State will be required for appointments to the Inner house. The Lord President and the Lord Justice Clerk have been consulted about the amendment and have expressed themselves content with it, for their interests. The amendment meets the concern expressed in Committee, and I commend it to the House.
  The purpose of amendments Nos. 54, 55, and 71 to 77 is to put beyond doubt the jurisdiction of temporary judges appointed under the provisions of the Bill. It has been the intention since the outset that judges, whether permanent or temporary, appointed under the new provisions should, like the existing senators, be able to sit in the Court of Session and the High Court, and the amendments are designed to ensure that that will be so.
  Mrs. Fyfe: Will political involvement mean that henceforth the Minister might take the opportunity to monitor the appointment of women judges, whether they be temporary or permanent, Inner or Outer or superior or inferior?
  Lord James Douglas-Hamilton: The principle is that they are appointed on merit.
  Sir Nicholas Fairbairn: I thank the Minister for making these changes, but during the recess I have had a better idea than the one that I suggested to him, and I should like to put it on record in Hansard.
  The Bill provides that the Lord President and the Lord Justice Clerk shall consult such other judges as they think appropriate. It seems proper that they should consult all the judges. One of the greatest Scottish traditions, for judges, peers and other matters, is that those who are part of the fraternity should judge who is appropriate to act on their behalf. The Senate of the College of Justice is a collegiate court. Until the life peerage was introduced, which some of us greatly regret, the peers of Scotland elected from their number those whom they thought worthy to be in the House of Lords, and peers created before 1707—I am not sure whether the Dukes of Hamilton were—are entitled to nominate which of their children shall succeed them. I hope that the Minister appreciates that terrible duty. The concept of democratic selection is an important matter.
  With the greatest respect to my hon. Friend the Minister, I must say that he is not being quite truthful with the House when he says that the purpose of the amendment, which seeks to leave out the words:

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  "and the High Court of Justiciary",
  is to put beyond doubt that the people named are allowed to appear. No judge is appointed as a judge in the High Court of Justiciary. He is appointed as a Senator of the College of Justice, and he takes the oath in the Court of Session and not in the High Court of Justiciary. He is entitled to appear in the High Court of Justiciary, although the amendment does not say that. It says merely that, for the purposes, he is a Lord Commissioner of the Senate. I say with respect through my hon. Friend to his civil servants that they have realised that they got it wrong historically and they have corrected it. However, when we correct a mistake, let us not pretend that we are trying to put matters beyond doubt.
  Mr. Menzies Campbell: It seemed a rather curious provision when it was first put forward that promotion, as I suppose that it would be regarded, from the Outer House to the Inner House should be left to the Lord President of the Court of Session and the Lord Justice Clerk who, after all, are the people who occupy the chairs of the two appellate divisions of the court. What the Minister has now told the House that he is prepared to accept represents a proper compromise, not least because those appointed to the office of Senator of the College of Justice are appointed by the monarch, but on the recommendation of the Secretary of State for Scotland.
  To introduce the Secretary of State into the procedure by which a judge may be promoted from the Outer House to the Inner House seems entirely consistent with the procedure adopted when judges are appointed in the first place. For that reason, I welcome what the Minister has said. It reflects a proper balance of the interests that we have discussed. The Minister has properly reflected the argument in Committee in what he has told the House that he is willing to accept.
  Amendment agreed to.
  Amendment made: No. 55, in page 39, line 32, leave out 'and the High Court of Justiciary'.—[Lord James Douglas-Hamilton.]

Clause 36

  ADVISORY AND SUPERVISORY FUNCTIONS OF THE DIRECTOR
  Amendments made: No. 56, in page 42, line 36, after 'section' insert '15(10A) or'.
  No. 57, in page 42, line 38, leave out 'or (11)(c)'—[Lord James Douglas-Hamilton.]

New clause 13
  RESTRICTION ON NUMBER OF PERSONS IN LICENSED PREMISES
  '.—(1) After section 38 of the principal Act (power of licensing board to make byelaws) there shall be inserted the following section:—
  RESTRICTION ON NUMBER OF PERSONS IN LICENSED PREMISES

    Restriction on number of persons in licensed premises.
    38A.—(1) A licensing board, when granting a licence, may attach a condition to the licence limiting the number of persons to be admitted to the premises in respect of which the licence is granted.
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    (2) The holder of a licence to which a condition under subsection (1) above is attached or any employee or agent of his shall be guilty of an offence if there is a breach of such a condition."
    (2) In section 17(6) of the principal Act (appeal as to conditions attached to licence) after the expression "38(3)" there shall be inserted the expression ",38A(1)".
    (3) In Schedule 5 to the principal Act (offences and penalties) after the entry in respect of section 38(4) there shall be inserted the following entry:—

    "Section 38A(2)

    Breach of condition attached to licence

    Yes Yes level 3 on the standard scale".'.

    —[Lord James Douglas-Hamilton.]
    Brought up, and read the First time.
    Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
    In Committee in another place, an amendment was moved enabling a licensing board, in granting renewal of a licence, and after consulting the fire authority, to fix, in the interests of public safety, the maximum number of persons entitled to be within the premises concerned from time to time and to make that number of condition of the licence.
    On behalf of the Government, the then Minister of State said that he was aware of the problems of overcrowding in public houses in the Borders in the summer months that had given rise to the amendment, notwithstanding that under the Bill the fire authority will be added to the list of competent objectors to applications and that boards will have increased powers to impose restriction orders on licensed premises. He said that the Government would take the matter away and consider it further with a view to returning to it during the later stages of the Bill. I must say to the hon. and learned Member for Fife, North-East (Mr. Campbell) that members of his own party made that proposal.
    Mr. Menzies Campbell: Name them.
    Lord James Douglas-Hamilton: The proposal was put forward on behalf of the noble Lord Mackie of Benshie, who used to be a Member of this House.
    I remember the former Secretary of State, Willie Ross, being asked by an hon. Member who represented a Cunninghame constituency when he had last been in a Scottish pub. His reply was, "Not as long as I can remember."
    I believe that there is a serious safety risk. I could go through the evidence from the police and from the firemasters in certain circumstances. The point was made in the other place that there were similar provisions for restrictions on numbers in other enactments in respect of which similar difficulties could be said to exist in terms of the concentration of people in particular parts of the building. Lord Tordoff doubtless had in mind, among other enactments, section 41 of the Civic Government (Scotland) Act 1982, which provides that a public entertainment licence shall be required for the use of premises as a place of public entertainment, and that a licensing authority may attach conditions to such a licence limiting the number of persons to be admitted to the premises. So far as we are aware, enforcement of that provision has not given rise to any difficulty.

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    A number of licensing boards have already invited the Secretary of State to consent to amendment of byelaws to include a provision that would enable the board to limit the number of persons in licensed premises. However, in our view, such a provision could not be framed in a way that was not ultra vires, and the Secretary of State has been powerless to act.
    I should mention that the chief constables of Grampian and Central, and the firemaster of Grampian have all written to express their concern about the lack of control of numbers in licensed premises. They suggest that, in some cases, it can lead to extreme danger to the public as a result of overcrowding. They are concerned that there are no powers under present licensing legislation to enable them to act.
    The Scottish Office shares that concern and sees the new clause as an important additional public safety measure. In our view, it should not lead to widespread restrictions on numbers being imposed. We should expect licensing boards to consider the circumstances carefully when they have it in mind to impose such a condition, to do so with due regard to any concern of the applicant and to set such a condition only when they are satisfied that the measure is necessary in the interests of public safety. The premises, for example, may be regularly crowded for social events such as birthday parties and discos. The new clause is deliberately widely drawn so that boards will be able to specify the condition in the terms appropriate to a case. It will, of course, be open to the applicant to appeal to the sheriff against the terms if he so wishes.
    Mr. Wilson: I thought for a moment that the Minister was going to give us a wee song, perhaps something like, "I knew a man who knew a man who couldn't get a drink in Peebles". The difference is that the man who could not get a drink in Peebles is a Member of the House of Lords. It is a tradition with these people when there is a slight irritation to think, "We'd better get some legislation through because we couldn't get to the bar at the common ridings."
    This is a foolish and potentially dangerous proposal. If it is generally enforced, it will cause infinitely more problems than it will ever resolve. In his somewhat puzzling closing remarks, the Minister seemed to suggest that he did not want to see it enforced. Why on earth is it being put on the statute book when there are already many other ways of addressing the problem?
    It is worth looking a little more closely at the origins of the new clause and also pointing out that we heard nothing of it in Committee. If we had, it would have received the usual savaging from Committee members of all parties. It was best withheld as a little surprise package for tonight.
    It was not, alas, Lord Mackie of Benshie in person who introduced the new clause. It was Lord Tordoff who, according to the Minister, thinks of little else but the Civic Government (Scotland) Act 1982. I have been asked who Lord Tordoff is. I am sure that the hon. and learned Member for Fife, North-East (Mr. Campbell) will be able to give us copious biographical details. Unfortunately Lord Tordoff had to do the job because Lord Mackie of Benshie, he apologised, could not be present as he had an engagement at the cathedral in Lincoln involving laying up the colours of his old squadron. In the course of researching this matter, I am bound to wonder at the crowded social life that Lord Mackie enjoys.
    Sir Nicholas Fairbairn: I know that we are not supposed to know anything about Members of the other place. Has Lord Tordoff ever been in Scotland and, if so, has he ever been in a pub in Scotland?
    Mr. Wilson: Perhaps he got his title from what he perceived to be the instruction shouted at him when he entered a pub in Scotland.
    The plot thickens because Lord Tordoff informed the House of Lords:
    "The amendment arises out of discussions between my hon. Friend Mr. Archy Kirkwood and the police, and correspondence between my right hon. Friend Sir David Steel and the Ettrick and Lauderdale District Council"—
    this is the exciting bit—
    "following experiences in the Roxburgh district."
    In his peroration, Lord Tordoff declared:
    "It is because of that considerable perturbation in the Borders that I move the amendment."——[Official Report, House of Lords, 17 May 1990; Vol. 409, c. 412–13.]
    8 pm
    I thought to myself, "Perturbation is building up in the Borders, so by the time we reach the new clause, the Liberal Benches will be crowded with perturbed Borderers." Only a few minutes ago, I saw the distinguished former leader of the Liberal party, the right hon. Member for Tweeddale, Ettrick and Lauderdale (Sir D. Steel) entering the Chamber. What is more, he had brought with him the right hon. Member for Yeovil (Mr. Ashdown). I thought to myself, "Here is a true measure of the perturbation in the Borders. The right hon. Member for Tweeddale, Ettrick and Lauderdale not only comes here in person; he brings the leader of his party with him." But then they left. So where is testimony to the source of the disease? Where are the hon. Members ready and willing to support the proposal?
    Mr. Menzies Campbell: It is too crowded.
    Mr. Wilson: I do not think that there is any danger of the Liberal Benches becoming too crowded.
    Where is the first-hand evidence of the circumstances that gave rise to this nonsense in the first place? Alas, we are not to hear from the perturbed representatives of Border constituencies—unless, that is, the hon. and learned Member for Fife, North-East is acting as their surrogate. Perhaps he will be the Lord Tordoff of these proceedings.
    I accept that the power in the new clause is an enabling power. The new clause does not say, "This must happen" but allows licensing boards to set limits if they so wish. But once the power exists, it will be used. The licensing boards are not noted for their coyness. They do not usually say, "There are things that we can do but we decline to do them." If the power exists to set limits, they will set limits.
    Such limits will become part of the normal licensing procedure and the important point is that they will apply on a year-round basis. They will be in force every day of the year. For 360 or even 364 days of the year, they may be perfectly sensible and reasonable limits. What I find irritating and unacceptable about the new clause—and this is why I have referred to its origins and to common ridings and riots in Roxburgh—is that it is aimed specifically at overcrowding in pubs on the big day in the small town. It is aimed at the big day in the local community—the one day in the year, perhaps, when the pubs will be en fête and overspilling and when people will be pouring into them in a general atmosphere of bonhomie.

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    For that one day in the year, there may not really be enough pubs to cope, but everyone adjusts and things go along very well. They certainly go along very well in every community—large or small—that I know in Scotland. If pubs have to observe a limit to avoid being found guilty of a criminal offence, there will have to be a man at the door—like a MacBrayne purser—standing there clicking them in and clicking them out, or perhaps even a turnstile, to ensure that the number of people in the pub does not exceed the legal limit.
    Let me go back to my home town for an example. I am not familiar with the Border ridings, which may, indeed, be riotous occasions, but I think the Cowal games—the ones I know best—are quite a good example. I should not like to be the guy standing at the door of a pub during the games weekend saying, "We can have 150 inside; would the other 500 mind waiting outside in an orderly queue until there is room in the pub?" I am sure that neither Lord Tordoff nor Lord Mackie of Benshie imagined themselves being outside in the queue. No doubt they thought that they would be inside among the 150. The new clause would cause infinitely more problems than exist at present.
    The problem would also arise on the night of the big football match, when pubs near the ground are inundated with people. Of course, people exercise their judgment: if the pub is so crowded that it is clear that they are not going to get a drink, they will not stand there waiting. I know that people should not drink on the way to football matches—it is very wicked—but some of them do. The pubs are crowded when people go in for a quick drink between work and an evening kick-off. Under the new clause they would be told to stand in a queue by a man on the door regulating the number of people in the pub to avoid a criminal offence being committed. I know that I am approaching the matter in a light-hearted way but I say in all seriousness that, in this, I can see the potential for trouble. It is ridiculous to legislate without taking account of the real circumstances that are bound to arise.
    Another objection, raised in the other place by Lord Macaulay of Bragar, is that there may be only one man standing at the door in a pub where there are three bars. Two of those bars might be empty while the other is going like a fair. That would mean that we should have to have three men standing at each pub door to ensure that each space within the same licensed premises fell within the law. The new clause is impractical and unworkable and anyone who has anything to do with the licensed trade will confirm that.
    There are already many ways of countering overcrowding. We already have legislation on the statute book. In the notes that the Minister kindly supplied to us, he points out that, in preparing the new clause, the Government had regard to section 1 of the Civic Government (Scotland) Act 1982 and that they also took account of the fact that, under the present Bill, the fire authority will be added to the list of competent objectors to applications, and boards will have increased powers to impose restriction orders in relation to the hours of opening of licensed premises. I repeat that there are many ways of approaching the matter, although I shall not go into all of them now. The most sensible way of dealing with serious overcrowding is for the police to exercise their right to enter and say, "There are too many people in this pub; please get some
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    of them out." That is how matters function on a practical basis. It would be wrong, foolish and misguided to legislate as is proposed. It gives me no pleasure to do so, but I confidently predict that the new clause would create an awful lot more problems than it would solve. The Minister should take it away and reconsider it.
    Sir Hector Monro: The hon. Member for Cunninghame, North (Mr. Wilson) has put the case for the opposition so well that not a great deal needs to be added. I hope that my hon. Friend the Minister will think twice about proceeding with the new clause. He knows that it would have had no hope of getting through the Standing Committee—for the very good reason that it is impracticable. I am the last chap to want to legislate for something that is practically impossible.
    The new clause seems to have stemmed from Lord Mackie's visits to Border common ridings. As someone who has been to many dozens of common ridings—in the Borders, in Dumfries and Galloway and even in Strathclyde—I know that they are conducted with great good humour, that the police always manage the crowds with great sympathy and that the whole day goes by without any trouble. It is significant that those who advocate the new clause seem to belong to the police forces and fire services in the north-east; they are not from the Borders or from Dumfries and Galloway.
    We should also bear in mind the fact that 20 Lord Mackie of Benshie would have a lot more trouble getting into a pub than 50 Members for Kilmarnock and Loudoun—on grounds of physical presence alone.
    I agree with the point that the hon. Member for Cunninghame, North made about pubs with several doors and several bars. I shall not go into the rugby stories that I could tell about the length of rugby bars and so on. But with the best will in the world, how is a publican to check all his bars and doors while doing his best to sell drams and pints behind the counter?
    In practical terms, the new clause would be impossible to implement, and we should think twice about proceeding with it, given that there seems to be so little evidence in its favour. Those of us with practical experience of the crowding that is alleged to cause offence would disagree with the argument that my hon. Friend the Minister is advancing.
    We should bear in mind the fact that the common ridings take place in each town only once a year. However, we should also consider the many occasions when football and rugby crowds gather after matches. Those people certainly cause overcrowding, but only for a relatively short period. Why should they not do that? Why can we not get together in a huddle and have a drink if we want? There is no reason why we should be prevented from doing that.
    The world may be a great nanny society in which people are not allowed to do anything; sooner or later we will not even be able to eat or drink. It would be very disappointing if the Government, who encourage freedom of choice, were to prevent me from going to the pub of my choice after a good rugby international at Murrayfield, particularly when we have all been so good at the match and have had nothing to drink. It seems very hard for the Government to stop us having anything to drink when we leave the game simply because there are too many people in a pub.

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    It is beyond one's comprehension to imagine the hard-pressed police behaving like Securicor and, as the hon. Member for Cunninghame, North (Mr. Wilson) said, checking people into the pub and then out again and even counting two if they are on a stretcher. The burden that we would be placing on the police force at a time when the police are particularly hard pressed is unimaginable.
    We need more practical evidence from those involved in these affairs before we grant such tough powers to the licensing boards to allow them to tell a publican that he cannot have 100 people in his pub on a Saturday night or 50 people in at any one time while the police, the publican and his staff must also somehow ensure that the law is enforced. There may be good intentions behind the new clause, but it would be bad legislation.
    Mr. Menzies Campbell: I should begin by declaring an interest. If new clause 13 is accepted, it may do much to create work for lawyers and especially work for those who, like me, from time to time practice in licensing law.
    Although the Minister referred to my next point in his speech, and the issue is not reflected in the Bill, it is objectionable that a discretion is to be conferred on licensing boards without any sign of the factors upon which that discretion is to be exercised. The Minister referred to public safety. However, there is nothing in the new clause about public safety, convenience, comfort, nuisance, undue disturbance or anything else which features elsewhere in licensing legislation. It is unreasonable to confer on licensing boards a discretion as unfettered as this.
    A license holder's only remedy to the provision would be to invoke the appeal provisions in clause 39, which provide a fairly restricted basis on which an appeal may be taken. If a board imposes a series of arbitrary limits on the number of people who may be admitted to a licensed premises within its jurisdiction, virtually all such impositions will go to appeal. Apart from creating work for lawyers, the Minister will ensure that the work of the sheriff court in Scotland is severely prejudiced and curtailed.
    One should confer no discretion on an administrative body unless it is essential that that discretion is required in the public interest and no other way of preserving that public interest can be found. In the hands of responsible licensing boards that would create no difficulties, but from time to tune, boards act irresponsibly or unreasonably. They are sometimes motivated by considerations other than the merits of the application before them. The Minister should not confer yet another discretion on licensing boards willy-nilly.
    One of the important changes to the law effected by the Licensing (Scotland) Act 1976, with which the hon. Member for Falkirk, East (Mr. Ewing) had so much to do, took away the unfettered discretion from licensing boards. At that time, Parliament thought it necessary that a new system of licensing should be created in which there was less discretion and in which decisions were more easily understood and more amenable to analysis and explanation. I believe that that was the correct way to proceed and I believe that the new clause contradicts that.
    So far, the evidence in support of the new clause is pretty thin. I respect the views of Lord Tordoff and Lord Mackie of Benshie, because they are as entitled to their views as anyone else. However, their views are worth no more than mine or the views of the hon. Member for
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    Falkirk, East, the hon. Member for Dumfries (Sir H. Monro) or anyone else with any experience of public houses in Scotland—and I include the Minister in that. No doubt, when he should have been reading the newspapers and discovering what was happening in the General Medical Council, he was in public houses around the country considering whether this proposal was necessary to preserve the peace and quiet of the people of Scotland.
    The new clause is not necessary, it is ineptly framed, and it confers a discretion which is not needed and which may be abused. Those seem compelling reasons why we should not accept it.
    8.15 pm
    Mr. Allan Stewart: As the debate progresses, I hope that my hon. Friend the Minister is becoming increasingly convinced that the sensible course of action is to enhance his reputation for independence of mind and withdraw the new clause.
    The House is in great difficulty when the Minister's justification for the new clause is that the subject was raised in another place in the context of a problem arising from the Border common ridings. The House has heard that my hon. Friend the Member for Dumfries (Sir H. Monro), who knows about the Border common ridings, is wholly opposed to this new clause.
    If the justification for the new clause arises from problems at the Border common ridings, it is surprising that my hon. Friend the Minister calls in evidence representations from Grampian police and Central police. We can be reasonably assured that they do not have a particular expertise in what happens at the Border common ridings.
    My hon. Friend the Minister also said that he did not expect there to be many restrictions on numbers in practice, although I may have got him wrong. If he does not expect there to be many restrictions in practice, why has he tabled the new clause? I do not want to labour the point about the Standing Committee. My hon. Friend the Minister has done his best with this Bill and has faced severe difficulties not of his making. However, if the issue was raised in another place and if an assurance was given that the Government would consider this provision, why was it not introduced in Standing Committee? That is where the provision should have been considered in detail. When hon. Members on both sides of the House do not want to stay up late, the House is placed in great difficulty if new provisions are brought forward on Report which are completely unrelated to the discussions that took place in Committee.
    I do not want to detain the House, but I want to repeat a point which has been underlined by hon. Members on both sides of the House. The people in the licensing trade to whom I have spoken believe that the new clause is unnecessary and, for reasons given by hon. Members tonight, that it is impractical and unenforceable. The House should not pass such legislation. I hope that my hon. Friend the Minister will recognise that and that he will greatly enhance his already high reputation by withdrawing the new clause at the end of this debate.
    Mr. Harry Ewing: I am beginning to be seriously worried about the Minister. The new clause reads like something that was said to him as a joke in a pub but which he has taken seriously and translated into the proposed legislation. As the Minister listens to the debate,

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    surely he will come to the conclusion that he should withdraw the proposal. The legislation is founded on a number of points that the Minister put to us.
    Lord Mackie of Benshie and I are very good friends. I have shared a drink with the noble Lord on many occasions. All I can say is that if there is a pub in the Borders in which Lord Mackie could not get a drink, it must be some pub. I have been in his company often in much bigger crowds than we get in pubs in the Borders and I have never noticed Lord Mackie having any difficulty in getting himself a drink, or in getting me one for that matter. I place no great emphasis on the fact that Lord Mackie had difficulty in getting a drink in a pub somewhere in the Borders.
    The Minister told us that his hon. Friend the then Minister of State in another place was anxious to deal with the problem of overcrowding. I am the first to concede—this is the one concession that I shall make to the Minister—that the then Minister of State, Lord Sanderson, certainly knows a thing or two about overcrowding. Since he became chairman of the Tory party, he has fairly cleaned out the office in Chester street. If there was any overcrowding there, the noble Lord cleared it out.
    The Minister told us that he has had two letters, one from the chief constable of Grampian and another from the chief constable of Central.
    Sir Nicholas Fairbairn: It's the same fella.
    Mr. Harry Ewing: I agree with the hon. and learned Gentleman. I have a feeling that it is the same fella. The present chief constable of Grampian took up his post on 1 September—[Interruption.] He was previously the chief constable of Central. I want to see those letters because I honestly believe that it was the same chief constable who wrote both letters.
    Hon. Members are ridiculing the new clause because it deserves to be ridiculed. It is simply not capable of implementation. If there is one thing that we should not do when legislating, it is to introduce provisions that are incapable of implementation. All that we are doing is badly affecting the people in respect of whom the legislation would be applied—that is, the licensing board, licensees and, as the hon. Member for Dumfries (Sir H. Monro) said, the police force. They simply could not enforce it.
    I have been watching the civil servants' Box. I have great affection for the people who occupy the Box. My right hon. and hon. Friends on the Opposition Front Bench will be working with them in a year's time, so I keep in with them. This afternoon the personnel in the Box changed at regular intervals depending on which part of the Bill and which clause we were debating. That is similar to what happens in a pub. A man goes into the pub, has a drink and comes out. Is the Minister trying to tell the House that we shall have someone standing at the door, saying, "There can be 150 in there. There are 149, so whoever is at the top of the queue can go in"? That is absolute madness.
    Licensed clubs operate on a different basis. The licensing board is certainly responsible for granting a licence to a licensed club, but the licensed club is under an
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    obligation to submit a list of members on a three-yearly basis before the licensing board will grant a new licence to a licensed club.
    Mr. Dennis Canavan: To the sheriff.
    Mr. Ewing: I am grateful to my hon. Friend the Member for Falkirk, West (Mr. Canavan).
    Before it will grant a new licence, the licensing board sees the official list of members. What will the licensing board do if the club has a membership of 800 people—every member is entitled to get into the club as that is part of the conditions of membership—but the capacity of the premises is only 300? Will the licensing board refuse a licence because the club has been successful in attracting 800 members but has accommodation for only 300? All those points serve to make the clause look more and more ridiculous. The Minister should say, "I have seen the light. I will withdraw the new clause because I know that it is not practicable."
    Sir Nicholas Fairbairn: It is offensive that such a new clause should be introduced when it was not considered in Committee. That is the first of my propositions. Lest the Minister think that I shall be too serious, I shall give him one promise. I shall give him a way out, but I shall come to that at the end of my speech.
    I am glad to say that the hon. and learned Member for Fife, North-East (Mr. Campbell) denied Christ Benshie before the fire, and Lord whoever-he-was whom I had never heard of who has never been in Scotland.
    I wish to say various things partly in replication of what other hon. Members have said. As my hon. Friend the Member for Dumfries (Sir H. Monro) said, it is idiotic to base the number allowed in a public house on the number of those who use it annually or occasionally. As the hon. and learned Member for Fife, North-East said, it is manifestly unfair to reverse the intention of the 1976 Act to take arbitrary powers from the licensing authority. It has every form of absurdity. I shall point to the practicalities to demonstrate the absurdity.
    The licensing authority—I am arguing for the moment without giving away my secret exit for the Minister—may say, "You may allow only 200 people in." I have in mind that bar at the end of Rose street, where people went on their way to Murrayfield, with that nasty woman, Ma Scott. The licensing authority may say, "You may allow only 200 people in Ma Scott's bar." After being at Murrayfield, 90 per cent. of the people who drink at Ma Scott's bar stand on the pavement outside anyway. Are they part of the people who are supposedly in the bar?
    Along comes diligent Police Constable Brian Wilson, accompanied by Sergeant Harry Ewing. He goes into the public bar and, as everyone sways around saying, "Wasn't that a great game?", he says, "Stand still everybody, I am going to count you." Unfortunately, the pub is already so full that they cannot get around to count them. Eventually they manage to push their way through to the loo entrance at the back in the far corner to make sure that there is nobody in there to be included in the numbers. They manage to count 200 people in the pub.
    One person then says, "I am actually a bartender," "Sorry, we will start again. You go outside. I am just counting the drinkers." He counts all the drinkers—199. He knocks at the locked door of the loo, and there are two people in it—a pair of gays who were not there to have a

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    drink—and he says to Ma Scott, "You have committed a criminal offence; I have counted these people and there are 201 in here. Did you realise that?"
    Can anyone imagine a greater absurdity? Meanwhile, in addition to those to whom I have alluded, there are people waiting outside the pub, like people waiting outside a loo, saying, "Come on, hurry up—I'm desperate." It is fatuous. I have never heard such junk. I have never heard any junk like that being thrown at us at this stage in a debate.
    8.30 pm
    The hon. and learned Member for Fife, North-East (Mr. Campbell) pointed out the important criterion of public safety and the role of fire officers. Mr. Oliver, formerly chief constable of Central Scotland and now the chief constable of Grampian, has written two letters about these serious matters, but when was a chap last burned in a pub? When was a chap last suffocated or asphyxiated in a pub? When was a chap last trampled to death in a pub? I suppose that in the history of Glasgow pubs the answer would be that if the punter realised that the fellow who runs the "Ship Bank Vaults" had one extra fellow in there, he might just stab him to death and say, "You're dead, I've saved you from being prosecuted, mister."
    I should like to give the Minister a way out now. When granting a licence, a licensing board may attach a condition to that licence limiting the number of persons to be admitted to the premises in respect of which the licence is granted. As all hon. Members know, the ultimate lie that a Minister can tell, which is fed to him from the civil servants' Box to get him out of a difficulty, is "Unfortunately, the drafting is defective." The great secret is that nothing here says "at any one time". So the licensing board, when granting a licence, can say, "Until you lose your licence, you are only allowed to admit 100 people into your pub."
    If it wants to be really sadistic, a licensing board could say, "Yes, Mr. Grant, we are granting you your licence and we are very impressed with the money that you have spent to comply with the safety regulations and the fact that you have lavatories for the disabled, the incurable and the blind, and facilities for dogs and cats, but we will only ever allow you to have one person on those premises. Do you still want your licence, Mr. Grant?" It has nothing to do with overcrowding. The provisions state simply that the number of people who will ever be allowed on the premises is limited. The drafting is therefore defective. If that is not a lifeboat into which a Minister can be pushed by those in the Box, there is no other known craft that can save him. There we have it.
    The other thing that I find particularly infuriating is that, essentially, it is an English argument to say that someone is not allowed to enter a pub if a policeman, a fire officer or even a chief constable wearing two different chief constable's hats takes the view that he thinks that you might not enjoy the experience. I do not particularly mind that. I go into pubs—some of which are empty, some of which are full—and I can tell the House that before I have had my first drink, I would have a hell of a job counting the people up to see whether there are more people than there are supposed to be.
    This is nonsense. If the Minister does not withdraw the new clause, he will be a laughing stock. If he does not withdraw this piece of mad Lewis Carroll fantasy, it will be passed into the laws of Scotland by the English majority in this House who have not heard one word of the argument.
    1138
    Furthermore, it will be passed by people who have probably never been in an English pub or any other pub. The day I receive a letter from a constituent stating, "Do you realise, Sir Nicholas, that I had to wait for half an hour for a drink in an overcrowded pub after Celtic beat Rangers?", I shall be very surprised, and the day I find a Scotsman who thinks that there is a danger of his being crushed on the way to get a drink, I shall be even more surprised. Let us throw this new clause in the swill bin where it belongs.
    Mrs. Margaret Ewing: Before the Minister accepts the lifeline that has been thrown to him by his hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn)—at least, I hope he will do so—I must express my own anger that the new clause has been tabled at this stage. We spent many hours in Committee discussing all aspects of the Bill, but only now, at this very late stage, has this particularly ludicrous new clause been tabled.
    The practicalities of trying to implement the provisions have been highlighted by many hon. Members. It almost seems as though we are considering an employment opportunity scheme whereby we could have flying squads of counting agents dashing around the villages and small towns of Scotland when they have their gala days or common ridings.
    I should like to pick up a point made by the hon. Member for Cunninghame, North (Mr. Wilson) and to talk about the importance of the big days for small communities when their pubs are extremely busy and perhaps overcrowded. I remind the Minister that in many small communities in areas such as the one that I represent, the big days or big weeks around an agricultural show are vital in sustaining the economies of those communities.
    If the Minister visits Keith in Banffshire on the two days of the Keith show, he will find not only that the show ground is extremely busy, but that the pubs, the tourist shops, the restaurants, the fish and chip shops and the grocer are all busy because people from all around are buying from other businesses in the town. That is vital to those communities. The same would be true if the Minister were to visit Dallas, Garmouth, Kingston or Spey.
    If the Minister were to visit any of those small communities on their gala day, he would see that that is when the tourists are there and that that is when the pubs and many other small businesses are busy and taking the money that will help to sustain them during the many other weeks when nobody else will be there apart from members of the local community.
    Such businesses deserve our support. If the Minister brings in such a ludicrous new clause, which would detract from many of the fetes and gala days, he will be doing a great disservice to the rural communities of Scotland.
    Lord James Douglas-Hamilton: This has been an interesting and colourful debate. I advise my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) that the drafting is based closely on the previous Civic Government (Scotland) Act 1982 which my hon. Friend the Member for Eastwood (Mr. Stewart) piloted on to the statute book and on which my hon. and learned Friend himself may have advised on the drafting when he was Solicitor-General for Scotland. [HON. MEMBERS: "Oh!"] However—
    Sir Nicholas Fairbairn: If my hon. Friend the Minister can find any contribution from me to suggest that the number of people in a pub, myself included, should be controlled by a licensing authority, will he please direct me to the relevant part of the Civic Government (Scotland) Act?
    Lord James Douglas-Hamilton: I am certainly not going that far, but I can reassure my hon. and learned Friend that new clause 13 does not apply to registered clubs, which in any case receive their certificate of registration from the sheriff, not the licensing board. It is also clear that boards are not administrative bodies but consist of the democratically elected representatives of local people, and they are the appropriate bodies to decide when the proposed condition should be applied.
    Mr. Harry Ewing: The Minister is wrong. The certificate of registration is given by the sheriff, but the liquor licence is given by the licensing board. The sheriff does not grant liquor licences; the licensing board grants the club's licence.
    Lord James Douglas-Hamilton: The information that I received states that the provision will not apply to registered clubs, but I shall certainly check the point made by the hon. Gentleman. He is correct to say that certificates of registration are granted by the sheriff, not the licensing board. The licensee has a right of appeal under section 39 of the Licensing (Scotland) Act 1976. Section 39(4) provides that the sheriff may uphold the matter on appeal if he considers that the board has exercised its discretion in an unreasonable manner.
    The background to the new clause involved representations from the police and the Grampian fire brigade. I have checked, and the letters that I received are not confidential, so I shall make arrangements to have them placed in the Library. I stress that it was not the same chief constable who wrote on both ocasions, but different ones. [HON. MEMBERS: "Name them."] I am happy to name them. One was from the chief superintendent of central Scotland police and the other from Chief Constable Lynn of Grampian police.
    The most significant letter comes from Grampian fire brigade's fire master. I shall not mention the particular club about which he is concerned and about which he made many points in his letter. He expressed concern about the numbers attending discos. He stated:
    "The club … could not point out a means of escape in case of fire and when this means of escape was identified and followed, it was found to be obstructed."
    Mr. Menzies Campbell: The Minister is reading from a letter that refers to clubs. I understand that the proposal before the House applies not to clubs, but only to licensed premises. Clubs are registered under a separate part of the licensing legislation.
    Lord James Douglas-Hamilton: Yes, but the principal point made in the letter relates to discos—I shall certainly place the letter in the Library. The principal point he makes is:
    "this situation is causing great concern to the Fire Authority and clearly some action must be taken immediately."
    I must make it absolutely clear that the new clause is a permissive provision; it is obviously not mandatory.
    Mr. Dewar: The Minister is concerned about fires, but my impression is that the premises that he says are not
    1140
    covered by the clause—clubs and so on—are those most likely to have fire disasters. I concede that that is anecdotal evidence, but all my memories of newspaper articles suggest that. I take the point made by the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) that it is not pubs that go up in a blaze but the very premises that the Minister says are being excluded from the provision. Surely there are other ways, through fire regulations, of covering the fire danger.
    In his support, the Minister has advanced two policemen and one fire master. How widespread has his consultation been? What about Strathclyde and the licensing boards? I should have thought that it was the views of the board members who are to have the power wished upon them that should be of importance. I suspect that for most people interested in the matter, the new clause comes as an equally puzzling surprise as it does to hon. Members.
    Lord James Douglas-Hamilton: I shall go back a stage to the point about clubs. The discos to which I referred are not registered clubs, although they call themselves that—they are licensed premises, so the provision would apply to them.
    That issue was raised at an earlier stage of the Bill, we promised to consider it and we received the further representations that I mentioned.
    The new clause deliberately refrains from specifying circumstances in which a condition might be imposed, because we believe that it is right and proper that the licensing board should exercise its discretion against the background of its local knowledge in determining where the condition is appropriate. Any unreasonable exercise of that discretion is challengeable by means of the provisions enabling the applicant to appeal to the sheriff. Similarly, on the question of how the licence holder should ensure that the numbers in his premises are limited in accordance with the condition, we would expect licensing boards to take account of representations that applicants may wish to make during the hearing.
    The 1976 Act already contains provisions imposing duties on licence holders in relation to the good order of their premises. Section 76 makes it an offence to sell alcohol to people who are drunk. The responsible licence holder can reasonably be expected to ensure also that his premises are not overcrowded where there is potential for that problem to occur.
    It has been suggested elsewhere that that would require electronic counting equipment. The advocation of the condition in particular cases would be a matter for the licensing board. It is important to bear in mind that, should proceedings be taken against the licence holder for breach of the condition, the police and the licensing board would no doubt have regard to the seriousness of the breach and the risk to public safety that had occurred or was likely to occur.
    The new clause is intended to reduce significantly the risk to public safety from overcrowding of licensed premises. It is framed in general terms to give licensing boards maximum flexibility in determining when and how its use would be appropriate, taking account of the concerns that the applicants may have.
    8.45 pm
    Sir Hector Monro: Surely my hon. Friend is not going to leave the matter like that. He has not explained how the condition will be breached. Hon. Members on both sides have shown the impossibility of controlling the number of people in a pub on a busy night, surely, as the new clause has received universal opposition, he will think again.
    Lord James Douglas-Hamilton: Let me make it plain that, when somebody applies for a licence—for example, for a wedding party—and intends to invite a large number of people, through the by-laws a restriction may be placed on the numbers involved.
    Mr. Wilson: I seriously begin to wonder whether the Minster has a clue what he is putting through. If we were talking about a specific licence for a specific function, it would be different. It is clear from the new clause that the figure would apply 365 days of the year to the premises and take no account of specific circumstances. The Minister must not put through this ridiculous piece of legislation on the basis of a personal misunderstanding of what it is about.
    Lord James Douglas-Hamilton: The consideration that weighs most heavily with me is that of safety, which has emanated from the Grampian police and fire master. I have concluded my remarks.
    Mr. Wilson rose—
    Mr. Deputy Speaker: Is the Minister giving way?
    Lord James Douglas-Hamilton: No.
    Mr. Deputy Speaker: If the hon. Member for Cunninghame, North (Mr. Wilson) has already spoken, he needs the leave of the House to speak again.
    Mr. Wilson: With the leave of the House, I shall briefly seek to sum up. To put it at its mildest, the balance of the argument has been against the Minister. The points that have been raised from both sides of the House remain conspicuously unanswered. If we were arguing the merits of the case tonight, we should have to cancel the Division because the No Lobby would be overcrowded. I hope that hon. Members from outwith Scotland who have been listening to the debate will at least pass on to their colleagues outside that every Scottish Member who has spoken, including every Conservative Member, apart from the Minister, has not only opposed the provision but ridiculed and roasted it, for excellent reasons. If people troop in to vote the measure through, they bear the responsibility for it.
    Sir Nicholas Fairbairn: The Minister has said that his prime consideration is public safety. He is also in charge of the Scottish Development Department—it is under his authority. It might say that it was not going to put in a pedestrian crossing in a certain place because only 22 people had been knocked down so far, so it did not qualify. How many people have ever been crushed or burned in pubs in Scotland? The answer is none, so why are we passing legislation to protect people from something that has never happened?
    Mr. Wilson: The hon. and learned Gentleman is absolutely right. Another aspect that the Minister has not mentioned is that other crowds will be created by this. They might not be inside the pub but they will be outside,
    1142
    so instead of being happy customers they will be extremely dissatisfied people, perhaps outside in bad weather, and they will see no rational reason why they are not allowed inside the pub.
    The Minister has also not mentioned that we are creating a new criminal offence. It will not result only in a black mark at the next licensing board; the person who administers the pub and allows in a number above the quota will be guilty of a criminal offence. That is outrageous.
    Mr. Menzies Campbell: Is the hon. Gentleman aware that certain licensing boards regard behaviour outside the licensed premises as capable of being relied upon to establish that the premises are not being properly managed? If an artificial limit on the permissible numbers inside is created, and as a result people congregate outside, when reliance may be placed on their conduct as a reason for removing the licence, the consequence of such a proposal may be that innocent people will suffer the loss of their licence, not simply a breach of condition.
    Mr. Wilson: That is another excellent point. If we were playing games, I could go around the Chamber and hon. Members could adduce additional arguments against the proposal. If the measure had been discussed in Committee, it could have been better examined. We are getting no answers and we expect none, but very serious points have been raised.
    Sir Nicholas Fairbairn: There is a perfectly good solution: if anyone in the pub is sober enough to count up to the limit, all he will do is buy pints and pass them out to those standing outside—not a very good idea.
    Mr. Wilson: The hon. and learned Gentleman confirms my point. Football or rugby crowds have never been examined in this context. Does anyone seriously think that in these circumstances—
    Lord James Douglas-Hamilton: I have given further consideration to the matter and, given what has been said, I think that there is a case for consulting more widely than merely with Grampian police. That means that we shall not be able to deal with the matter conclusively in this Bill, but I shall withdraw the new clause and we will consult more widely—
    Mr. Dennis Canavan: Hear, hear.
    Lord James Douglas-Hamilton: The hon. Gentleman had better wait until he gets back to his constituency, where he will find that the police take a view different from him.
    Mr. Canavan: They usually do.
    Lord James Douglas-Hamilton: Indeed. My hon. Friends have validly stated that there should be wider consultation, so the matter cannot be dealt with in the context of this Bill.
    I beg to ask leave to withdraw the motion.
    Motion and clause, by leave, withdrawn.

New clause 14
  WHOLESALE SELLING OF ALCOHOLIC LIQUOR
  '.—(1) After section 90 of the principal Act there shall be inserted the following section—
  WHOLESALE SELLING OF ALCOHOLIC LIQUOR

    Wholesale selling of alcoholic liquor.
    90A.—(1) A wholesaler or his employee or agent who barters, sells, or exposes or offers for sale alcoholic liquor shall be guilty of an offence unless—

    (a) he does so from premises which are used exclusively for wholesale trading (whether solely of alcoholic liquor or not); or

    (b) he does so from licensed premises, a licensed canteen or a registered club during the hours in respect of which it is lawful to sell alcohol by retail from or in these premises, that canteen or that club.

    (2) A wholesaler or his employee or agent who sells alcoholic liquor to a person under 18 shall be guilty of an offence.
    (3) A wholesaler or his employee or agent who causes or permits a person under 18 to sell alcoholic liquor without that sale having been specifically approved by a person of or over 18 shall be guilty of an offence.

    "Section 90A(1)

    Dealing wholesale other than from permitted premises

    Yes

    —

    level 5 on the standard scale

    Section 90A(2)

    Wholesaler selling liquor to person under 18

    Yes

    —

    level 3 on the standard scale

    Section 90A(3)

    Wholesaler permitting person under 18 to sell alcohol without approval

    Yes

    —

    level 1 on the standard scale".'

    Brought up, and read the First time.
    Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
    The new clause seeks to remedy an anomaly that has arisen in the control of the wholesale of alcohol. The Finance Act 1981 removed the excise licence requirements for wholesalers of alcohol and repealed the provisions contained in section 94 of the Licensing (Scotland) Act 1976 with the effect that wholesalers of alcohol are no longer subject to any controls. Thus, anyone can call himself a wholesaler and sell alcohol in quantity without requiring a licence. The licensed trade, licensing profits and the police have expressed concern about the present position.
    We have consulted wholesale and retail interests, the Law Society and the Convention of Scottish Local Authorities on the possibility of introducing appropriate controls, including restrictions on the sale of alcohol to and by persons under 18. All those who responded agreed that there should be controls over wholesale of alcoholic liquor.
    We have, however, no wish to impose unnecessary restraints on the great majority of entirely respectable wholesale operations, but we recognise that the present statutory provision leaves it open to people to deal in wholesale of alcohol from unsuitable premises, such as garages, or to existing licencees to circumvent the restrictions of their licences—for example, by trading in wholesale quantities on Sundays. In Committee there was unanimous opposition to our proposal that off-licences be permitted to open on Sundays, and we therefore consider it right that we should close the loophole which permits wholesale on Sunday under existing statute.
    The new clause creates an offence for a wholesaler, his employee or agent to barter, sell, expose or offer for sale alcoholic liquor unless he does so from premises exclusively used for wholesale trading or from licensed premises, a licensed canteen or a registered club during the hours when it is lawful to sell alcohol by retail in these premises, that canteen or club.
    (4) Section 67 of this Act (penalties for offences) shall apply in respect of offences under this section as if references in that section to a licence-holder were references to a wholesaler.
    (5) Section 71 of this Act (defence of due diligence) shall apply to any person charged with an offence under this section as if the reference in that section to a licence-holder were a reference to a wholesaler.
    (6) In this section,
    "licence-holder" includes the holder of a licence under Part III of this Act; and
    "wholesale" and "wholesaler", insofar as they relate to the sale of alcoholic liquor, have the meaning given in section 4(1) of the Alcoholic Liquor Duties Act 1979 in relation to dealing in alcoholic liquor.".
    (2) In Schedule 5 to that Act, after the entry relating to section 90(c) there shall be inserted—
    —[Lord James Douglas-Hamilton.]
    The new clause makes provision in subsections (2) and (3) for it to be an offence for a wholesaler, his employee or agent to sell alcohol to anyone under 18, or to permit the sale of alcohol by anyone under 18 without the sale being specifically approved by someone over 18. Subsection (4) applies the penalty provisions in section 67 of the 1976 Act, which apply to a licence holder, to a wholesaler, and subsection (5) applies to a wholesaler the defence of due diligence provisions in section 71 which applies to a licence holder. Subsection (6) defines the terms "licence holder", "wholesale" and "wholesaler" which appear in the new clause. Sub-paragraph (2) inserts into schedule 5 of the 1976 Act, which lists the penalties for offences against the provisions of the 1976 Act, the new penalties contained in subsections (1), (2) and (3) of the new clause.
    Mr. Wilson: This is an astute and well drafted clause, as one would expect of the Minister, and we wholly support it.
    Mr. Allan Stewart: I warmly congratulate the Minister. An important loophole has been closed. There was a real problem of abuse, and I hope that the House will agree to the new clause.
    Mr. McAllion: As the Minister said, the new clause makes it an offence to sell alcohol to people under 18 in certain designated places. It also makes it an offence for someone under 18 to sell alcohol in such places, but it does not make it an offence for such a person to consume alcohol in these places.
    As the Minister knows, Dundee district council has instigated a campaign against under-age drinking and has pioneered new byelaws under which it prohibits the consumption of alcohol in designated public places. The council is campaigning for the Government to legislate to make it an offence for under 18-year-olds to consume alcohol in public places. Will the Government listen sympathetically to the council's request and look for the earliest possible opportunity to introduce such legislation?
    Mr. Harry Ewing: I thank the Minister for his sensible decision to withdraw new clause 13. New clause 14 makes

    1145
    much more sense, closing, as it does, the Sunday loophole to which the hon. Member for Eastwood (Mr. Stewart) referred.
    The measure relates primarily to cash-and-carry establishments between Monday and Saturday. I reiterate what I said in Committee about the wholesale selling of alcohol and the retail selling of alcohol by or to persons under 18 years of age. We shall solve the problem only when we introduce provisions that make it compulsory for supermarkets and cash-and-carries to sell alcohol separately from all other goods. People purchasing alcohol should be served separately: the people on the check-outs are far too busy to see whether the person passing through the check-out is over or under 18. I would not blame them if an offence were committed, because they are under tremendous pressure. We should do the same with alcohol as we do with tobacco. One cannot select one's own tobacco; one must be served with cigarettes and tobacco in a supermarket or wholesale outlet. We should deal with the under-18 problem more firmly.
    9 pm
    Lord James Douglas-Hamilton: There are three trial schemes for experimental byelaws operating in Scotland now. In the light of the success or failure of the schemes, which will be reviewed in due course, we shall consider taking the matter further.
    I give way to the hon. Member for Monklands, West (Mr. Clarke), as I know that he is interested in this matter.
    Mr. Tom Clarke: I hope that the Minister will agree that I have not taken up too much of his, the Committee's or the House's time during consideration of the Bill. The Minister was kind enough to give me an interview when I was making representations on behalf of Monklands and Strathkelvin district councils, both of which were interested in the scheme and would have liked to have been the subject of the experiment.
    The Minister has said that, in the three districts where the experiment is taking place, developments are being monitored. He presumably hopes that he will soon be able to make a decision on its success or otherwise. How soon can we look forward to that? Even at this stage, is he in a position to say whether the exercise has been productive or otherwise?
    Lord James Douglas-Hamilton: It will be a few months before I am in a position to say that. However, I shall look into the matter and write to the hon. Gentleman, because I know that he is very interested. The nearest of the schemes is in Motherwell, which is not far from his own constituency.
    Question put and agreed to.
    Clause read a Second time and added to the Bill.

Clause 41

  PERMITTED HOURS
  Lord James Douglas-Hamilton: I beg to move amendment No. 19, in page 47, leave out lines 32 to 36.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 20.
  Lord James Douglas-Hamilton: After a lengthy debate, the Committee agreed the amendment in the name of my hon. Friend the Member for Eastwood (Mr. Stewart)—
  1146
  who is here tonight—to remove section 64(4) from the Licensing (Scotland) Act 1976, with the intention of enabling licensing boards to grant occasional or regular extensions of the permitted hours of public houses on Sundays, which now run from 12.30 pm to 2.30 pm and from 6.30 pm to 11 pm. At the conclusion of the debate, I explained that the effect of the amendment would be to enable licensing boards to grant extensions of the permitted hours of public houses on Sundays for the periods before 12.30 pm and after 11 pm. I also suggested that a clarifying amendment would be needed on Report.
  Both in the substantive debate and as a result of the changes following my statement, a range of views were expressed about the intentions of the Committee. Several hon. Members referred to the need to put public houses and hotels on the same basis; others argued that public houses should not be open before 12.30 pm. In summing up, the hon. Member for Glasgow, Garscadden (Mr. Dewar) said that he was under the impression that the amendment not only dealt with the afternoon break, but provided also for later opening at the discretion of the licensing board.
  Amendment No. 19 deletes from clause 41 the references to extensions from Saturday night to Sunday morning. This provision is now inserted in amendment No. 20, which introduces into clause 42 an amended section 64(4) to empower licensing boards to grant occasional or regular extensions of permitted hours on Sundays in respect of public houses only to premises to which section 59 of the 1976 Act applies—restaurants in public houses—or after 2.30 pm. That will enable boards to grant late-night as well as afternoon extensions on a Sunday, if they consider it appropriate.
  In considering applications, the licensing board will be required to refuse an application if the grant would cause undue disturbance or public nuisance in the locality. This is on all fours with the test for Sunday opening within the permitted hours, which is specified in clause 42(4).
  Mr. Wilson: I fully support the amendment: it gets the balance right—a balance that the Committee wanted. On the one hand, there is a general tightening up on the granting of late licences, while the Sunday anomaly has been removed. On the other hand, every member of the Committee—indeed, I think, most hon. Members—would support the view that there should not be Sunday-morning opening. If that were accepted, the balance would tilt too far in the other direction. The Minister has the balance about right.
  I should like to place on record the representations that I received at a meeting on Friday with representatives of the Scottish area of the National Association of Licensed House Managers. They are opposed to Sunday opening for the understandable reason that that is the only time at which some of them can be with their families. I respect that consideration. I voted for longer Sunday opening and I shall not renege on that now. The licensed trade will have to address the matter. One cannot deal with the problem faced by that small group of people by a general denial of what is perceived as an extension of other people's freedom of choice. Plainly, that is a problem for that group of people, and I hope that the licensed trade will look at ways of avoiding the need for such managers to be as constantly on the premises as they seem to be at present.
  The managers also said that nobody should be under any illusion about the fact that the consumer pays for the

  1147
  extension of opening hours. As they have said, the extension of opening times throughout the 1980s has been accompanied by an increase in the price of drink that is higher than the increase in the retail prices index. They maintain that that is significantly related to the extension of opening hours. The consumer should be aware of that.
  As I have said, I think that the Minister has struck the right balance. The boards have a special responsibility to ensure that risks of disturbance and intrusion upon other people's rights are taken into account, especially in relation to late opening on Sundays. The boards will have to exercise that power with care. I support the amendment and welcome what the Minister has brought back from the Committee.
  Mr. Allan Stewart: I thank my hon. Friend the Minister for his consideration of this matter following the debate and vote in Committee on my amendment. I did not intend, and I do not think that any Member of the Committee intended, that the debate would result in opening on a Sunday morning. The Minister has struck the right balance, and I hope that the House will support the amendments.
  Mr. Harry Ewing: For the benefit of those outside who will read the report of our proceedings, I should like to place on record my understanding of the position on Sunday. I hope that the Minister will confirm or correct my interpretation. It is that the licence holder has to make an application to the licensing board to open between 2.30 and 6 pm on a Sunday and that the board has a discretion about whether to grant that application. For an extension after 11 pm, the licence holder would make an application against the background of the changes to the principal Act, which rightly introduces restrictions on extended hours after 11 pm. I hope that the Minister will confirm that there will not be automatic opening between 2.30 and 6 pm but that the licence holder has to apply to the licensing board, which will have the power to grant or refuse the application.
  Lord James Douglas-Hamilton: I confirm what the hon. Gentleman says, but the time is not 6 pm—it is 6.30 pm.
  Amendment agreed to.

Clause 42

  SUNDAY OPENING OF LICENSED PREMISES
  Mr. Menzies Campbell: I beg to move amendment No. 92, in page 48, line 29 after '(a)', insert
  'in subsection (1) after the words "applicant or" in line 7, the words "or any partner or director thereof or any person having a substantial interest therein,"
  (ab).'.
  Mr. Speaker: With this it will be convenient to consider amendment No. 93, in page 48, line 41 at end insert:—
  '(4A) In section 31 of the principal Act, (suspension of licence on receipt of complaint), in subsection (2)(a) after "licensed holder" insert the words "or any director or partner thereof or employee or agent with the responsibility for the day to day running of the premises, or any person having a substantial interest therein, or any person on whose behalf or for whose benefit the premises are managed".'.
  Mr. Campbell: I shall begin by again declaring an interest. I have already declared a professional interest in that from time to time I have practised before the licensing board and from time to time I am consulted by those with an interest in licensing matters. It is appropriate to make that declaration of interest because the issue about which I shall speak is one upon which I have been professionally consulted by Dundee district licensing board. However, it is a matter of general application because circumstances have been presented to the Kirkcaldy board and, more recently, before the Renfrew district licensing board. That shows that the issue to which the amendments are directed has application throughout Scotland.
  The issue arises out of the grounds upon which an application may be refused or a licence suspended. Section 17(1) of the Licensing (Scotland) Act 1976 sets out fair grounds upon which a licence may be refused. The first of those is that
  "the applicant … is not a fit and proper person to be the holder of a licence".
  Some controversy has arisen about whether, in the case of a limited company that applies for a licence, the licensing board is entitled to look behind the legal personality of the limited company and at the character of its directors, to determine whether they are fit and proper persons to be the holders of a licence. It is argued by some that, because of the way in which the legislation is framed, the board would be entitled to look at the character of the company and at the character of the manager of the premises, but not at the character of the directors of the company. That has caused some concern in a number of instances.
  It follows from that that, if an application is made under section 17(1) of the principal Act for the suspension of a licence, one of the grounds of which provides that the licence holder is no longer a fit and proper person to be the holder of a licence, if the licence holder is a limited company it is not possible to look at the character of the directors of that company.
  The practical consequence of that is that, although a limited company that applies for a licence and obtains it may have a board of directors comprised of men of total probity and acceptability, the shares of that company might be transferred and the directors of the company changed. It may be that the new directors of the company would not, under any circumstances, be the sort of individuals to whom a licensing board would have been disposed to grant a licence. In some cases, that is perceived by licensing boards to be a considerable restriction on their quite legitimate and, in my view, perfectly proper power to restrict the issue of licences to persons—I use the word in its broad sense—who are fit and proper people to receive such a licence.
  The most recent case, which the Minister may already have to hand, involves Renfrew district licensing board. It was reported in the 1990 Scottish civil law reports on page 436. I shall read from the rubric of that decision. Sheriff Stoddart of Paisley held that
  "the board had misinterpreted ss. 17(1)(a) and 17(3) and were not entitled to look at the characters of any persons other than the company itself and its proposed manager."
  That means that it was and would be quite improper for a board to look at the character of the directors of the company that had applied for a licence.
  There is some controversy about whether that is the correct view, but it is a recorded case in which a sheriff took that view. Consequently, in the minds of a number of

  1149
  licensing boards in Scotland there is a doubt about the precise nature of their powers. The purpose of the amendment and of the related amendment No. 93 is to seek to remove that doubt. The words that we seek to insert at the appropriate place are:
  "any partner or director thereof or any person having a substantial interest therein".
  The phrase, "any partner thereof" relates to the fact that in Scotland a partnership may have a legal personality separate from its partners. That is why it is necessary to make a reference to "any partner". I explained earlier the reason for the words "or director thereof", and the words
  "or any person having a substantial interest therein"
  will deal with the circumstances in which the majority shareholding may be in the hands of an individual who would not otherwise be regarded as a fit and proper holder of a licence.
  9.15 pm
  Amendment No. 93 relates to the circumstances in which, under section 31, an attempt may be made to suspend a licence. At present, the only ground given is that the holder is no longer thought to be a fit and proper person. Amendment No. 93 would insert the words
  "or any director or partner thereof or employee or agent with the responsibility for the day to day running of the premises".
  That harks back to section 11. It refers also to
  "any person having a substantial interest therein, or any person on whose behalf or for whose benefit the premises are managed."
  That refers to the terms of section 17(1)(a).
  I hope that the Minister will feel well disposed towards the amendments, which are meant to reflect substantial judicial uncertainty as to precisely what interpretation section 17(1)(a) will bear and to assist licensing boards, which are worried that a corporate veil may be available to individuals who might otherwise not be considered proper persons to hold licences. By creating a £100 off-the-shelf company having two £1 shares, and by using a person of good character to serve as an employee or agent, people who under no circumstances would be admitted to the onerous responsibilities of holding a licence would be able to subvert the considerable concern that chief constables, licensing boards and members of the public may feel at the fitness of certain individuals to have the responsibility for the sale of exciseable liquor.
  Mr. Ernie Ross: Concern is felt among members of licensing committees when they suspect that, as the hon. and learned Gentleman suggests, an individual has created a company and is hiding behind another person with the clear intention of circumventing the licensing authority's original decision to refuse a licence because of that individual's character.
  Mr. Campbell: The hon. Gentleman makes the point most succinctly.
  The amendments are an attempt to prevent people who would otherwise not be entitled to a licence from obtaining and enjoying the benefits of one by the device of creating a company and employing a person of good character as their manager or employee. Given the sophisticated licensing system that we now have north of the border, such a deception should not be possible. I hope that the Minister is sympathetic to the principle, even if he is not in agreement with the wording of the two amendments.
  Mr. McAllion: I add my words of support to those of the hon. and learned Member for Fife, North-East (Mr.
  1150
  Campbell), because there is growing concern in Dundee that an unwelcome situation could rapidly develop. If the sheriff court appeal decision is upheld—I understand that it has gone to the Court of Session—the licensing board might have to accept that it is not in a position reasonably to refuse licences to individuals who are not fit and proper persons.
  In a recent case in Dundee, the applicant for a licence had a record of theft and drug abuse, but the licence was refused more because it related to premises which had been used for the sale of pornographic material. It was refused, but if those people had set up a shell company and hidden behind it and the people who managed it on their behalf, if the sheriff court decision had been upheld, the licensing board believed that it would have had no alternative but to grant a licence to the shell company, thereby allowing people to gain control of a licence who are not the kind of people who could be considered as fit and proper to hold it.
  It is not merely the licensing board which is concerned. The local authority and the police are also worried about this development. As they pointed out, it is the wording of the 1976 Act which is wrong. It is too loose and is open to interpretation. That loophole has to be closed by the Minister. I hope that he will listen carefully to the amendment and will accept it.
  Lord James Douglas-Hamilton: We have heard an interesting legal argument. The amendments would considerably widen the fit and proper person criterion in section 17 of the 1976 Act to enable the refusal of a licence and, in section 31, the suspension of a licence.
  I understand that the interpretation of the "fit and proper person" criterion, where the applicant or licence holder is a corporation or company, has been raised in particular cases. The hon. and learned Member for Fife, North-East has mentioned one case which bears out what I believe to be the position. The issue has been whether criminal records of directors and companies are relevant to consideration of the criterion.
  The view has been taken that the fact that one partner or director was not a fit and proper person did not necessarily mean that the partnership was not fit and proper to hold the licence, especially if another person was responsible for the day-to-day running of the premises. Also, it has been maintained that a number of factors may be relevant to the consideration of a company's application, such as whether the company has any criminal convictions, whether there is a history of any difficulties with other licensed or unlicensed premises owned or managed by the company, and whether it obeys the law on the health and safety of its employees. In the Government's view, that interpretation and the existing statutory provisions are appropriate and adequate and there is no justification for widening the criteria in the way that the amendments propose.
  The licensing board should be concerned with the operation of the licensed premises, rather than with past actions or reputations of persons with an interest in the company which owns the premises. If, through the subsequent actions of directors or partners, the company acquires convictions or a poor reputation for licensing, those should be relevant considerations in relation to the exercise of powers under sections 17 or 31.
  Mr. Menzies Campbell: I may not have made myself clear. If a certain individual with criminal convictions applies for a licence, the chief constable may object to the application on the ground that he is not a fit and proper person. If the same person buys a company for £100 off the shelf, with two £1 shares, and obtains a reputable person to manage the premises on a day-to-day basis, making himself a director, through the device of the corporate veil he is able to obtain a licence that no licensing board would have given to him. In the face of that, how can the Minister say that the Government are satisfied with the legislation?
  I do not know whether the Minister has had the opportunity to read Sheriff Stoddart's judgment. He said that the board
  "were not entitled to look at the characters of any persons other than the company itself and its proposed manager".
  I know that there is some controversy, but that is the view of one sheriff. In that sheriffdom, Renfrew district licensing board will be bound by that view.
  Is the Minister seriously telling the House that it is right for someone who, by reason of their character, would not be entitled to obtain a licence none the less to be able to create a company for £100 and use that mechanism to obtain a licence? Surely that cannot be the Government's view. If it is, public opinion will be surprised.
  Lord James Douglas-Hamilton: The hon. and learned Member has put his point of view. The relevant considerations are any difficulties that a company might have had with other licensed or unlicensed premises that it owned or managed.
  The criterion used by the hon. and learned Gentleman to amend the sections in the way proposed would widen the criterion beyond what was originally intended, and beyond what we consider to be appropriate or necessary. I hope that the hon. and learned Gentleman will not press his amendment.
  Mr. Ernie Ross: I think that we shall be pressing the amendment to a Division. The Minister did not listen to what was said by the hon. and learned Member for Fife, North-East (Mr. Campbell). We do not want such a company to have a licence in the first place. The Minister suggests that an individual who is unable to get a licence under the normal licensing procedure should be allowed to form a company and that we should then wait and see whether that company turns out to be a good company. We do not want either that person or his company to have a licence. In a number of instances, however, that has happened. The Minister misses the point completely.
  Lord James Douglas-Hamilton: I see the point clearly. If a company is run by several people, the fact that one person may not be a fit and proper person does not necessarily mean that the company is not a fit and proper body to have the licence.
  Mr. Dewar: I have listened with interest to the point made by the hon. and learned Member for Fife, North-East (Mr. Campbell). He made a reasonable and persuasive case. It does not seem to be in the public interest that people who, because of their past record and character, would be laughed out of the licensing court should be able to buy a £100 company which they wholly control, since they own the entire equity, hire a manager of apparent respectability and happily thereafter enjoy the fruits of holding that licence.
  1152
  I suppose that it is possible to argue that, while the manager is in place, everything may be reasonably well run because of his integrity, but that is a matter for argument. One can envisage the pressures that might develop which would make the position less satisfactory. Apart from that speculative point, it is clear that the beneficial owner of the company would pocket the profits. I do not believe that that was ever intended. Certainly we should not wish to defend that position.
  I hope that the Minister will not take it amiss when I say that he is being a little obtuse in misunderstanding a simple point and the thrust of the hon. and learned Gentleman's arguments. I ask him to address the question in its simplest form. Let us assume that two partners who have been in trouble with the licensing courts over the years, who have a bad record and who are unlikely to be regarded by the police as suitable for holding a licence, buy an off-the-shelf company, provide themselves with that fig leaf and the additional cover of a manager of no known bad form and then sit back and enjoy the fruits of holding their licence. Can that be satisfactory? Is it defensible? Yet that is happening. There are precedents for the fears that have been expressed. The Minister ought to think again.
  Mr. Ernie Ross: It is not just that. We have discovered that such companies own more than one public house by means of this procedure. That is even worse. People who are not fit and proper persons to hold one licence now hold a number off licences by means of the shady deal of creating companies.
  Mr. Dewar: My hon. Friend reinforces the point. I hope that I have made it clear that we sympathise with the thrust off the amendment. We hope that the Minister will be able to adopt a more flexible view than that which he has adopted in the past few minutes.
  Lord James Douglas-Hamilton: The amendments might deal with the problem, but they are widely drawn. For example, they require the board to consider what constitutes a substantial interest. At this stage, we cannot agree to amendments which raise important and difficult legal issues of that nature.
  Mr. Menzies Campbell: I do not know whether I was wrong to detect a sudden burst of reasonableness in what the Minister has just said. Is he saying that he is willing, having heard what has been said fairly vociferously on the Opposition side of the House, to take the matter away and consider it? He should remember that the Bill must be considered by another place. If he is not saying that—he shakes his head to show that he is not—I shall feel compelled to press the amendment to a vote.
  I give the Minister one last chance. It will look pretty peculiar to the public of Scotland if the Minister is not willing to take the opportunity to prevent the abuse that the hon. Members for Dundee, East (Mr. McAllion) and for Dundee, West (Mr. Ross) have outlined in such stark and eloquent terms.
  9.30 pm
  It cannot be sensible to allow people who as individuals would not be allowed the responsibility of running licensed premises to create, through the corporate veil, a wholly dud mechanism to deceive the licensing board, for that is effectively what it is. The deception may be understood by the licensing board, but deception it undoubtedly is. It drives a horse and cart through the efforts of licensing

  1153
  boards to control the fitness, propriety and character of those who make applications before them. I urge the Minister, who has shown a willingness to respond to the force of argument, to give one last consideration to the point, because I assure him that if he does not give the sympathetic consideration for which we are arguing, public opinion in Scotland, and perhaps opinion on licensing boards, will find it difficult to understand his position.
  Question put, That the amendment be made:—
  The House divided: Ayes 102, Noes 154.

  Division No. 318]

  [9.30 pm

  AYES

  Abbott, Ms Diane

  Jones, Barry (Alyn & Deeside)

  Ashdown, Rt Hon Paddy

  Kaufman, Rt Hon Gerald

  Barnes, Harry (Derbyshire NE)

  Kennedy, Charles

  Barnes, Mrs Rosie (Greenwich)

  Leadbitter, Ted

  Barron, Kevin

  Lofthouse, Geoffrey

  Bennett, A. F. (D'nt'n & R'dish)

  McAllion, John

  Bidwell, Sydney

  McAvoy, Thomas

  Blunkett, David

  McCartney, Ian

  Boateng, Paul

  McFall, John

  Callaghan, Jim

  McKay, Allen (Barnsley West)

  Campbell, Menzies (Fife NE)

  McKelvey, William

  Campbell-Savours, D. N.

  McLeish, Henry

  Canavan, Dennis

  Madden, Max

  Carlile, Alex (Mont'g)

  Mahon, Mrs Alice

  Clarke, Tom (Monklands W)

  Marshall, David (Shettleston)

  Clay, Bob

  Marshall, Jim (Leicester S)

  Clwyd, Mrs Ann

  Maxton, John

  Cohen, Harry

  Michael, Alun

  Coleman, Donald

  Michie, Bill (Sheffield Heeley)

  Cook, Robin (Livingston)

  Moonie, Dr Lewis

  Cousins, Jim

  Morgan, Rhodri

  Crowther, Stan

  Murphy, Paul

  Cryer, Bob

  Nellist, Dave

  Cunliffe, Lawrence

  O'Brien, William

  Dalyell, Tam

  Orme, Rt Hon Stanley

  Darling, Alistair

  Patchett, Terry

  Dewar, Donald

  Powell, Ray (Ogmore)

  Dixon, Don

  Primarolo, Dawn

  Dobson, Frank

  Rogers, Allan

  Duffy, A. E. P.

  Ross, Ernie (Dundee W)

  Dunnachie, Jimmy

  Skinner, Dennis

  Eastham, Ken

  Smith, C. (Isl'ton & F'bury)

  Ewing, Harry (Falkirk E)

  Steel, Rt Hon Sir David

  Ewing, Mrs Margaret (Moray)

  Steinberg, Gerry

  Fearn, Ronald

  Strang, Gavin

  Flynn, Paul

  Turner, Dennis

  Foot, Rt Hon Michael

  Vaz, Keith

  Foster, Derek

  Wallace, James

  Fyfe, Maria

  Walley, Joan

  Galbraith, Sam

  Wardell, Gareth (Gower)

  George, Bruce

  Wareing, Robert N.

  Godman, Dr Norman A.

  Watson, Mike (Glasgow, C)

  Harman, Ms Harriet

  Welsh, Andrew (Angus E)

  Haynes, Frank

  Williams, Alan W. (Carm'then)

  Hogg, N. (C'nauld & Kilsyth)

  Wilson, Brian

  Home Robertson, John

  Winnick, David

  Howarth, George (Knowsley N)

  Wise, Mrs Audrey

  Howell, Rt Hon D. (S'heath)

  Worthington, Tony

  Hughes, John (Coventry NE)

  Young, David (Bolton SE)

  Hughes, Robert (Aberdeen N)

  Illsley, Eric

  Tellers for the Ayes:

  Ingram, Adam

  Mrs. Ray Michie and

  Janner, Greville

  Mr. Malcolm Bruce.

  NOES

  Alison, Rt Hon Michael

  Bennett, Nicholas (Pembroke)

  Amess, David

  Biffen, Rt Hon John

  Arbuthnot, James

  Bonsor, Sir Nicholas

  Arnold, Jacques (Gravesham)

  Boscawen, Hon Robert

  Ashby, David

  Boswell, Tim

  Aspinwall, Jack

  Bottomley, Mrs Virginia

  Baker, Nicholas (Dorset N)

  Bowis, John

  Batiste, Spencer

  Braine, Rt Hon Sir Bernard

  Bendall, Vivian

  Brazier, Julian

  1154

  Browne, John (Winchester)

  Kirkhope, Timothy

  Bruce, Ian (Dorset South)

  Knight, Greg (Derby North)

  Buck, Sir Antony

  Knight, Dame Jill (Edgbaston)

  Budgen, Nicholas

  Lang, Ian

  Burns, Simon

  Latham, Michael

  Burt, Alistair

  Lee, John (Pendle)

  Butler, Chris

  Lightbown, David

  Carrington, Matthew

  Lord, Michael

  Carttiss, Michael

  Macfarlane, Sir Neil

  Chapman, Sydney

  MacKay, Andrew (E Berkshire)

  Clark, Sir W. (Croydon S)

  McNair-Wilson, Sir Michael

  Clarke, Rt Hon K. (Rushcliffe)

  McNair-Wilson, Sir Patrick

  Conway, Derek

  Malins, Humfrey

  Coombs, Anthony (Wyre F'rest)

  Mans, Keith

  Coombs, Simon (Swindon)

  Maples, John

  Cormack, Patrick

  Marshall, John (Hendon S)

  Davies, Q. (Stamf'd & Spald'g)

  Martin, David (Portsmouth S)

  Davis, David (Boothferry)

  Mellor, David

  Day, Stephen

  Meyer, Sir Anthony

  Dicks, Terry

  Miller, Sir Hal

  Douglas-Hamilton, Lord James

  Mills, Iain

  Dover, Den

  Mitchell, Sir David

  Dunn, Bob

  Monro, Sir Hector

  Evennett, David

  Morris, M (N'hampton S)

  Fairbairn, Sir Nicholas

  Morrison, Sir Charles

  Fenner, Dame Peggy

  Moss, Malcolm

  Fookes, Dame Janet

  Neubert, Michael

  Forman, Nigel

  Newton, Rt Hon Tony

  Forsyth, Michael (Stirling)

  Nicholson, David (Taunton)

  Franks, Cecil

  Norris, Steve

  Freeman, Roger

  Paice, James

  French, Douglas

  Patnick, Irvine

  Fry, Peter

  Pawsey, James

  Gardiner, George

  Porter, David (Waveney)

  Glyn, Dr Sir Alan

  Price, Sir David

  Goodlad, Alastair

  Renton, Rt Hon Tim

  Goodson-Wickes, Dr Charles

  Riddick, Graham

  Greenway, Harry (Ealing N)

  Ridsdale, Sir Julian

  Greenway, John (Ryedale)

  Rifkind, Rt Hon Malcolm

  Gregory, Conal

  Shaw, David (Dover)

  Griffiths, Peter (Portsmouth N)

  Skeet, Sir Trevor

  Grylls, Michael

  Smith, Sir Dudley (Warwick)

  Hamilton, Hon Archie (Epsom)

  Stewart, Allan (Eastwood)

  Hamilton, Neil (Tatton)

  Stewart, Andy (Sherwood)

  Hanley, Jeremy

  Taylor, Ian (Esher)

  Hannam, John

  Taylor, John M (Solihull)

  Hargreaves, A. (B'ham H'll Gr')

  Thatcher, Rt Hon Margaret

  Hargreaves, Ken (Hyndburn)

  Thompson, D. (Calder Valley)

  Harris, David

  Thompson, Patrick (Norwich N)

  Hawkins, Christopher

  Thornton, Malcolm

  Hayward, Robert

  Thurnham, Peter

  Hicks, Mrs Maureen (Wolv' NE)

  Tracey, Richard

  Hill, James

  Tredinnick, David

  Hind, Kenneth

  Trotter, Neville

  Hordern, Sir Peter

  Twinn, Dr Ian

  Howard, Rt Hon Michael

  Waddington, Rt Hon David

  Howarth, G. (Cannock & B'wd)

  Walden, George

  Howell, Ralph (North Norfolk)

  Walker, Bill (T'side North)

  Hughes, Robert G. (Harrow W)

  Watts, John

  Hunt, Sir John (Ravensbourne)

  Wheeler, Sir John

  Hunter, Andrew

  Widdecombe, Ann

  Jack, Michael

  Wilkinson, John

  Janman, Tim

  Winterton, Nicholas

  Johnson Smith, Sir Geoffrey

  Woodcock, Dr. Mike

  Jones, Gwilym (Cardiff N)

  Yeo, Tim

  Jones, Robert B (Herts W)

  Young, Sir George (Acton)

  Jopling, Rt Hon Michael

  Kellett-Bowman, Dame Elaine

  Tellers for the Noes:

  Kilfedder, James

  Mr. Tom Sackville, and

  King, Roger (B'ham N'thfield)

  Mr. Timothy Wood.

  Question accordingly negatived.
  Amendment made: No. 20, in page 48, leave out line 50 and insert—
  '(7) In section 64 (extensions to permitted hours), for subsection (4) there shall be substituted the following subsections—
  "(4) A licensing board shall not grant an application from the holder of a public house licence for an occasional or regular extension of permitted hours on Sundays except—

  (a) as respects premises to which section 59 of this Act applies and for the purposes of that section; and

  (b) in the case of other premises, as respects any period or periods after half-past two in the afternoon,

  and the board shall refuse to grant such an application if it finds that the extension of permitted hours would cause undue disturbance or public nuisance in the locality.
  (4A) Nothing in subsection (4) above shall prevent the granting of an application for an occasional or regular extension of permitted hours on a Saturday for a period which continues into Sunday morning.".'.—[Lord James Douglas-Hamilton.]

New Clause 20

  SUPERVISED ATTENDANCE ORDERS AS ALTERNATIVES TO IMPRISONMENT ON FINE DEFAULT
  '.—(1) A court may make a supervised attendance order in the circumstances specified in subsection (3) below.
  (2) A supervised attendance order is an order made by a court with the consent of an offender requiring him—

  (a) to attend a place of supervision for such time, being 10, 20, 30, 40, 50 or 60 hours, as is specified in the order; and

  (b) during that time, to carry out such instructions as may be given to him by the supervising officer.

  (3) The circumstances are where—

  (a) the offender is of or over 16 years of age; and

  (b) having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and either of the following sub-paragraphs applies—

  (i) the court, prior to the commencement of this section, has imposed on him a period of imprisonment under paragraph (a) of subsection (1) of section 407 of the Criminal Procedure (Scotland) Act 1975 (power of court, when imposing a fine, to impose also imprisonment on default) but he has not served any of that period of imprisonment;

  (ii) the court, but for this section, would also have imposed on him a period of imprisonment under that paragraph or paragraph (b) of that subsection (power of court to impose imprisonment when a person fails to pay a fine or any part or instalment thereof); and

  (c) the court considers a supervised attendance order more appropriate than the serving of or, as the case may be, imposition of such a period of imprisonment.

  (4) Where, in respect of an offender, a court makes a supervised attendance order in circumstances where sub-paragraph (i) of paragraph (b) of subsection (3) above applies, the making of that order shall have the effect of discharging the sentence of imprisonment imposed on the offender.
  (5) Schedule (Supervised attendance orders: further provisions) to this Act has effect for the purpose of making further and qualifying provision as to supervised attendance orders.
  (6) In this section—
  "local authority" means a regional or islands council;
  "place of supervision" means such place as may be determined for the purposes of a supervised attendance order by the supervising officer; and
  "supervising officer", in relation to a supervised attendance order, means a person appointed or assigned under Schedule (Supervised attendance orders: further provisions) to this Act by the local authority whose area includes the locality in which the offender resides or will be residing when the order comes into force.'.—[Lord James Douglas-Hamilton.]
  Brought up, and read the First time.
  Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
  Mr. Speaker: With this, it will be convenient to take Government amendments Nos. 95, 94 and 96.
  Lord James Douglas-Hamilton: The need for the new clause and the amendments arises as a consequence of clause 51(3), which restricts the use of community service orders to cases in which the court would otherwise have imposed a custodial sentence. Although cheaper than imprisonment, community service is still a relatively scarce resource and, if it is to make a real impact on the numbers sent to prison, it needs to be targeted effectively on more serious offenders. Research has shown that, in many cases, community service has been used in place of other non-custodial disposals in circumstances where imprisonment would have been unlikely.
  Dr. Godman: What consultations have taken place with social work departments about the implementation of the proposal? Presumably social workers will play a key role. Do they need further training, or does the Minister believe that they are now entirely competent to perform the task that they will be called upon to perform?
  9.45 pm
  Lord James Douglas-Hamilton: Consultation took place in April and there was strong support for the proposal. About 10,000 people go to prison for fine default and it was felt not only that it would be better if they paid, but that it would be better if those who could not pay had a supervised attendance order of this type.
  One likely result of the restriction of the use of community service is an increase in the number of offenders who receive fines and hence in the number of fine defaulters. At present, imprisonment is the only penalty available to the courts for fine default. As I said, some 10,000 people are imprisoned every year in Scotland for that reason. If we are trying to encourage the use of non-custodial penalties, such as community service for offences serious enough to justify imprisonment, it would be inconsistent to countenance an increase in the numbers going to prison for fine default when the original offence did not merit custody.
  We believe that the solution is to offer the courts a limited alternative to prison for use in fine default cases. We have called this a supervised attendance order, which would be used only for fine default and would be the only penalty other than imprisonment available to the courts in default cases.
  The supervised attandance order is intended to punish by imposing a fine on the offenders' free time and by the imposition of regular discipline through punctual attandance and satisfactory behaviour with a sanction throughout of return to court and, ultimately, the possibility of imprisonment for non-compliance.
  The new order has several features in common with community service orders and the schedule follows closely the procedures laid down in the Community Service by Offenders (Scotland) Act 1978, but there are important distinctions. Supervised attandance orders will be of short duration. They will last for between 10 and 60 hours rising in discrete units of 10 hours while community service orders have a minimum of 40 hours and a maximum of 240.

  1157
  Offenders on community service perform unpaid work of benefit to the community often organised on an individual placement basis. The intention is that offenders on supervised attendance orders will be placed on group activity that can be provided at low cost. As well as unpaid work, sessions will be devoted to tackling anti-social behaviour such as alcohol misuse and to drug education and responsibilities to society.
  It is intended to introduce supervised attandance orders on an incremental basis commencing with sheriff courts and subsequently to extend their availability to the stipendiary magistrates court and the district courts. We propose that the orders be supervised and managed by local authority social work departments in accordance with agreed national standards and that local authorities should be reimbursed in full for the agreed costs of provision. I can tell the hon. Member for Greenock and Port Glasgow (Dr. Godman) that I have every confidence in social workers and that this is something that they will welcome and be able to implement with great efficiency and effectiveness.
  Dr. Godman: Like the Minister, I have every confidence in social workers, although he might suggest that I have to say that, given that I am married to one. In each and every case, will the supervising officer mentioned in new clause 20(2)(b) he a fully qualified social worker?
  Lord James Douglas-Hamilton: I shall answer that when I reply to the debate. It is better that the hon. Gentleman should have a correct answer in a few minutes than that I should give an answer off the top of my head.
  Dr. Godman: This is an important question.
  Lord James Douglas-Hamilton: Of course it is. I believe that in most cases it would be a social worker, but I want to confirm whether that will be so in all cases.
  Mr. Ernie Ross: The Minister said that the cost of activities carried out under the supervised orders would be wholly reimbursed to the local authority. Will it get the money beforehand or will it have to claim it afterwards?
  Lord James Douglas-Hamilton: I shall check that, but I imagine that the authority will get the full funding beforehand. I shall let the hon. Gentleman know the answer.
  In line with our present initiative in respect of other services such as probation, parole and social inquiry reports, we propose to form a consultative group, including representation from local authorities, the judicial and other relevant interests, to draw up guidelines to supervised attendance orders and to discuss the administrative and financial aspects involved. I should expect the point that the hon. Member for Dundee, West (Mr. Ross) mentioned to be looked at specifically by the group drawing up the guidelines.
  Mr. Ian McCartney: As an English Member, I am interested in the point that the Minister is making, in the sense that what happens in Scotland usually eventually finds its way to England. I do not think that the Minister adequately answered the point that was raised by my hon. Friend the Member for Dundee, West (Mr. Ross). Does the measure, for example, meet the needs of retraining or additional employment? A social work department in Scotland may require to employ one or two additional social workers to deal specifically with referrals
  1158
  under the system and, because of that, it will have revenue consequences for the employment or retraining of staff specifically to deal with the issues raised in the new clause. Will there be new resources to deal with that?
  Lord James Douglas-Hamilton: The hon. Gentleman is quite right to raise that specific point. That precise issue will be looked at by the consultative group that is discussing the financial aspects involved. It also bears on the question that I was asked by the hon. Member for Greenock and Port Glasgow, about whether the supervising officer would always be a social worker. The answer is, not necessarily. Community service supervision is provided by non-qualified staff under the general management and control of social workers.
  During the passage of the Bill in another place, various amendments were tabled which were intended to simplify and standardise the level of proof in respect of breaches of probation and community service orders. At that time the Lord Advocate advised that he was in sympathy with the intention of the amendments and that the Government would consider bringing forward an amendment that would meet their objectives at a later stage. Our proposals for supervised attendance orders in corporate such intentions by specifying that the evidence of one witness shall be sufficient to prove failure to comply with an order. The proposed amendment to schedule 7 achieves the same effect in relation to the Community Service by Offenders (Scotland) Act 1978.
  The hon. Member for Dundee, West asked whether 100 per cent. funding would be made before or after expenditure was incurred. I am informed that an allocation will be made in advance, based on the projected number of orders, and then adjusted in the light of outturn numbers. The answer is exactly what the hon. Gentleman would wish.
  I commend the amendments to the House as a practical and humane alternative to the present provisions for dealing with fine default. I believe that they will be widely welcomed in Scotland.
  Mr. Dewar: This is an important debate which fear, if no other arrangements for our business can be made, will take a considerable period. Therefore, I hope that the House will bear with me if I set out some of the considerations fairly fully. I am sure that arrangements could be made for a more sensible disposal of the business, but I am awaiting news about that.
  Of course I appreciate the intentions behind the new clause as the Minister has explained them, but I am still a little surprised that we are facing the new clause. I discovered the proposals because I happened to be listening to early morning radio last Saturday when the ever efficient British Broadcasting Corporation's Scottish arm—I do not mention any particular individual—happened to comment upon the matter. That comment also included the suggestion that it was all part of the implementation of the thoroughly unpleasant speech made by the right hon. and learned Member for Ribble Valley (Mr. Waddington) at the Conservative party conference—
  Dame Elaine Kellett-Bowman: It was a splendid speech.
  Mr. Dewar: The hon. Lady may well think that it was a splendid speech, but she will not be surprised to know

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  that that confirms all my prejudices. It is a happy state of affairs when we reinforce each other's prejudices so completely and with such enthusiasm.
  I have read the speech that the Home Secretary made at the Conservative party conference. It does not seem to throw much light on this new clause. I therefore exonerate him from that charge.
  In passing, however, I must add that the matter of the prison population which is, of course, connected with this new clause, is also bound up with the changes in parole that we shall presumably face as a result of the Kincraig report. When the Minister replies to the debate, I very much hope that he can say something about that. I further hope that we shall not see any legislation in the spirit of the Home Secretary's speech, and that the Kincraig report recommendations will not be a Scottish insert in the penny dreadful which is what I expect next Session's criminal justice Bill for England to be if the right hon. and learned Member for Ribble Valley has his way. If there is to be a major piece of legislation on parole, with all the ramifications for the courts and the prison system, I shall expect it to be taken as a Scottish measure in a Scottish setting. I hope that the Minister can reassure me on that point.
  Having made those preliminary points, I now turn to the new clause in some detail. I was interested in what the Minister said. The notes that he was good enough to circulate to me two or three days ago referred to the research suggesting that community service orders, which are analogous to the supervised attendance orders that we are discussing, were often imposed where a fine would be the appropriate alternative. The point was made—and was reinforced in statutory form in this Bill—that the Government intend that community service orders should be imposed only where the alternative would be imprisonment. I do not for a moment dissent from the general value of that and believe that it is sensible that the community service orders should be used for the purpose for which they were designed.
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  The Minister's theory, as I understand it—I hope that I am not misrepresenting him—is that, because a number of community service orders were used where the proper alternative would have been a heavy fine and as, in future, that heavy fine will be imposed rather than a community service order, we shall have more heavy fines and more non-payments as a result of clause 51(3). As I understand it, that is the mainstream of the Minister's argument to justify the new clause.
  Dr. Godman: I am concerned about something that the Minister said earlier—that those supervising such offenders when carrying out attendance duties may not be social workers. Given my hon. Friend's wide experience, where does he think that such supervisors will be found? Paragraph 3 of the Minister's explanatory memorandum states that such attendance would cover constructive use being made of time and activities, alcohol and drug education, employment seeking and application, and responsibility to society. Who on earth will supervise someone in those circumstances other than the social worker who has had some training and experience in probation work. I say that because it is important, and I am sure that my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) has not overlooked it.
  Mr. Dewar: I am grateful to my hon. Friend. I have not overlooked the matter, and shall come to it later in my speech. I may say in passing that I have a voyeur's experience of social work. [Interruption.] It may be that, as someone who is married to one, my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) has had a voyeur's experience of social work as well.
  Dr. Godman: My experience is legitimate.
  Mr. Dewar: I will not go into that, but I was a professional observer—
  It being Ten o'clock, the debate stood adjourned.
  Ordered,
  That the debate be resumed tomorrow.

Health Authorities (Membership)
10 pm
Mr. Robin Cook: I beg to move,
That an humble Address be presented to Her Majesty, praying that the Family Health Services Authorities (Membership and Procedure) Regulations 1990 (S.I., 1990, No. 1330) dated 2nd July 1990, a copy of which was laid before this House on 5th July, be annulled.
I understand that it will be convenient to discuss also the second motion,
That an humble Address be presented to Her Majesty, praying that the Regional and District Health Authorities (Membership and Procedure) Regulations 1990 (S.I., 1990, No. 1331), dated 2nd July 1990, a copy of which was laid before this House on 5th July, be annulled.
To save time, I propose to confine my remarks to the regulations relating to regional and district health authorities. For the convenience of the House, I state that we intend to divide the House on those regulations at the end of the debate.
The debate's shortness is not a measure of its importance. The regulations provide for the creation of health authorities across England and Wales and give those countries health authorities explicitly modelled on the board of directors. Each health authority is to have five executive directors and five non-executive directors. There is no room within that small scope for representatives of the local authorities. At the very time when every progressive writer on health policy is urging us to break down the barriers between the health service and the social services, the Government have chosen to break the link between social service authorities and health authorities.
There is no prospect of community care ever succeeding if the local authorities which provide the community services are kept outside the doors while the health authorities decide which patients to put into the communities. In addition, no room has been found within those health authorities for the representatives of the people who work for them.
For the first time, so far as I am aware, the regulations write into law the offensive principle that, if one is a paid employee of a trade union, one will be debarred from that civic office. The full flavour of the regulations is contained in regulation 13, on which it is worth dwelling. Regulation 13(a) provides that one is disqualified for appointment if one has within the preceding five years been convicted; sub-paragraph (b) provides that a person is disqualified if he or she has been bankrupt; sub-paragraph (c) provides that someone is disqualified if he or she has been dismissed; and sub-paragraph (h) provides that someone is disqualified if he or she holds any paid appointment or office with a trade union. Convicts, bankrupts and trade unionists are clearly an unsavoury bunch.
Such institutionalised discrimination is thoroughly repugnant. People who work for trade unions are entitled to the same chance as anyone else of serving their communities on their local health authority. They should not be penalised because they work for an organisation of which the Government disapprove. Even more worrying is the fact that there is precious little room on the health authorities for the representatives of the people who use the hospitals.
This debate is not a theoretical one about how the regulations might work in the abstract. Characteristically, the Government did not wait until after the debate before going ahead with the appointments. They have already
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appointed people to almost every place on both regional and district health authorities. If the prayers are carried this evening, the Parliamentary Under-Secretary of State will tomorrow be in the embarrassing position of signing a thousand letters to appointees explaining what has happened.
I have the evidence of the people whom the Government want to run the authorities and I should like to share some of that evidence with the House. The most remarkable feature of those who have been appointed to the new health authorities is that they come from a dramatically narrow occupational base. I have completed a survey of 700 new members of these health authorities. There are exceptions to the rule. There are occasional areas in which it would appear that progressive chairs of district health authorities have succeeded in retaining a balance on health authorities, but the overwhelming majority of health authorities look more like local chambers of commerce than a public service.
The single largest professional group among non-executive members are company directors. Of the 700 whom we have surveyed, no fewer than 400 have a commercial background as industrialists, business men, accountants and lawyers.
Mr. David Ashby: Not enough.
Mr. Cook: In fairness to the Secretary of State, I must defend him against that claim by saying that, after a decade of decline in Britain's manufacturing base, he is to be congratulated on finding so many industrialists with whom to stuff the health authorities. I thank the right hon. and learned Gentleman for his honesty. He has given a clear signal to the House and to the nation that he intends the NHS to be run as just another commercial business. The notion that he frequently puts about—that the health authorities will be the voice of the consumer—is singularly droll, given the evidence of the people who have been appointed to the health authorities.
This clutch of businessmen have spent their entire working lives on the opposite side of the fence from the consumers. It is not even obvious that they are consumers of the very health services that they are now appointed to run. There are some interesting conflicts of interest which would have bothered a previous Government, whether Labour or Conservative. East Hertfordshire health authority now contains a marketing manager of Glaxo, a retired manager of International Computers Limited and a director of Blue Arrow. All three of those companies are major contractors to the NHS. Why is it all wrong that paid employees of staff unions should be on the health authorities, because there would be a conflict of interest, but all right for paid employees of suppliers to the NHS to serve on the same boards?
I concede that there may be a case for having a representative of the local business community on the local health authority—
The Secretary of State for Health (Mr. Kenneth Clarke): Very good.
Mr. Cook: I would not go so far as to suggest that they should command a clear majority of places, but I would concede a case for having a representative of the local business community.

1163
A remarkable feature of the appointments is that many of them are not even local business men. In Hull, none of the non-executive members lives in Hull. In Leicester, none of the non-executive members lives in the city of Leicester. In Lancaster, four out of the five non-executive members do not live in Lancashire. In Greenwich, the local authority representatives have been replaced by a double glazing executive from Bromley and a computer executive from Chislehurst—[Interruption.] If the Secretary of State is interested in speaking in the debate, I am sure that he will succeed in catching the Chair's eye at the appropriate time. He seems to have overlooked the fact that it is not customary in this House to make one's speech while another hon. Member is on his feet.
This House insists—Conservative Members have themselves insisted in recent legislation—that all members of local authorities must live in the area covered by those local authorities. Why should it be so different for the health authorities that the Government appoint?
There are of course a few stragglers surviving from the local councils, not because they are dominated by those councils but because they have been picked by the Secretary of State—or, if he wishes to be pedantic, picked by those whom he has picked on the regional health authorities. I hope that Conservative Members will forgive me for reminding them that, despite the wonderful illusions of presentation, Conservative councillors are currently a minority on local authorities throughout Britain. However, one would not know that from the councillors selected for appointment to the health authorities, which contain a healthy majority of Conservatives. Indeed, three fifths of all councillors appointed to the health authorities are Conservatives. In addition to those councillors, we have counted five chairs of Conservative constituency associations and one vice-chair of the Bow group.
At the very time when eastern Europe is booting out the party nomenclatura, the Secretary of State is busy filling health authorities with new Conservative nomenclatura. In some cases, the appointments are almost designed to promote conflict with the local authority. In Shropshire, the Conservatives are in opposition, and the chair of the social services authority is Labour. Of the five non-executive members appointed to the Shropshire health authority, three are councillors and all three are Conservative. Such appointments are an abuse of patronage—an abuse all the more serious because the posts are no longer filled out of a sense of duty: they are now paid posts, with part-time salaries of £5,000 for 20 days' work. Ministers cannot treat that patronage as a private pork barrel for friends of the Conservative party.
I wish to make it clear that the next Labour Government will not regard itself as bound by those appointments. [Interruption.] If the Secretary of State cares to listen, rather than lecture as I know is his preference in all circumstances, he may hear what the Labour party's position is. In the short term, we will replace many of the appointments with people who represent the local community, live in the local community and use the national health service.
In the longer term, we will scrap those health authorities, restore the representatives of local authorities and rebuild the partnership between the health authorities
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and the social services authorities. We will drop the ban on people who work for those who work for the health authorities. We will create health authorities that will be there to serve the local communities, not to serve a Secretary of State in Whitehall, and who are therefore accountable to their local communities and not to a Secretary of State.
The Labour party would bury the regulations with the short shrift that befits such an abuse of central power.
10.12 pm
Mr. Michael Morris: I want to contrast the two statutory instruments.
I do not share the concern of the hon. Member for Livingston (Mr. Cook) about the employment of business people and business techniques in the running of the health service; for a long time some of those disciplines should have been there and used, and the employment of some of those people is therefore entirely appropriate. However, I do share his feeling that there should not be appointees—especially on the district health authorities or the family health services authorities—who are not local. It seems entirely wrong for us to appoint such people to those authorities, although I do not share his view in relation to a regional health authority. I reserve judgment on the operations of the regional health authorities: I want to see how they settle down, and whether they perform better than their predecessors.
I welcome the changes that have been made to the district health authorities, which are generally welcomed in my constituency by those who take an interest in the health service—apart from those who lost their seats. I shall contrast that with what is happening in the family health service authorities in my constituency and in the other area that I know well, which is where I live in Bedfordshire. Things are not going well on the ground in either of those areas. It appears that the chairmen do not know their areas very well. Why have I still not been briefed about the identity of "Mr. Mustard" in the family health services authority in my county? I wrote asking about that three weeks ago and it seems strange that I have not yet been told. Perhaps no one in Northampton has heard of him, but I am sure that he is an accomplished gentleman in the field of business. We wish him well in his assignment.
The original briefing on family health services authorities stated:
"The previous statutory framework for sub-committees within which FPCs worked has been largely removed."
That may be so, but the family health services authorities are now appointing hosts of associate members. What on earth is the difference between sub-committees, which on the whole were reasonably effective, certainly in my constituency, and this host of associate members? The matter seems to be getting out of hand and I hope that my right hon. and learned Friend the Secretary of State will take to task any family health services authority that appoints many associate members.
I hope that the war between the Department of Health and the medical profession is over. Our health service cannot be run without the good will of the medical profession, especially at family health service level. One of the problems is representation on the FHSAs. We must listen to medical professionals who are prepared to give time and energy and who know their areas exceedingly well. They are not listened to at the moment but I hope that in future they will be.
10.16 pm
Mr. David Hinchliffe: First, I should like to raise a couple of technical points. The National Association for Mental Health, MIND, is concerned about the implications of recent changes. It has made it clear to me that it is worried about the accountability of the new-style DHA members and the decisions taken about detained patients under the Mental Health Act 1984. I should like the Minister to comment on that. MIND says that the new regulations will remove the link that health authority members must have with the Mental Health Act Commission. MIND sees that as a retrograde step because it reduces the accountability which is healthy in relation to psychiatric patients who may be compulsorily detained by regulation.
MIND says tha the new regulations meean that the new-style health authorities and hospital trusts are not required to have health authority or trust members represented on the committee that decides on issues about detained patients. I am sure that the Minister is aware of the seriousness of that, especially for patients who have had their liberty removed by the exercise of the legal provisions of the Mental Health Act. MIND says that there is no doubt accountability by the Mental Health Act Commission to the DHA or the trust. Even at this late stage, I hope that the Government will consider that technical point.
I should like to restate the concern expressed in Committee by Opposition Members about the way in which the regulations will completely remove the formal links between local authorities and district health authorities on the issue of joint planning for community care. That is strange at a time when we see good examples in many parts of the country of local authorities and health authorities working together on community care. We are trying to refoirm community care and many Opposition Members support some aspects of the legislation on community care. However, the arrangements now before the House will destroy the formal liaison that exists.
I shall now refer to democracy in the national health service. I am proud to have spent all my life in a society that has enjoyed the tremendous achievement of the Labour Government of the 1940s. The NHS is supported by the vast majority of the electorate. From the word go, however, one of the major failures of the NHS has been the lack of any real democratic accountability to the patients, its users. Under this and previous Conservative Governments, there have been moves away from the limited accountability that existed in the organisation prior to 1974. The reorganisation in 1974 moved accountability further away from the patients; the 1983 changes added to that problem, and the 1990 changes remove any element of local accountability in the NHS.
I am a supporter of community health councils: indeed, I am a former vice-chairman. However, if they posed any challenge or threat to Government policies and were a bulwark of defence of the NHS, I am sure that the Government would have abolished them in recent legislation. I shall continue to support CHCs, but their powers were emasculated some considerable time ago.
I want to be parochial and deal with the problems of Wakefield and question the sort of people who have been appointed to the new health authority. I speak as someone who served on a health authority for a number of years and, as I said, on a community health council. I take a
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close interest in health issues in my constituency. It has always struck me as strange that since the Wakefield district health authority came into existence, it has never appointed a chairperson who has lived within the area. Is there a problem with Wakefield? Are our people unsuitable to be chairpersons of health authorities? Why cannot someone who lives in the area be appointed? The chair of a health authority is an important job. What is so wrong with my constituents that they are not suitable for and do not have the ability to hold the chair of the local health authority?
It is interesting that, including the chair, one third of the non-executive members live outside the area served by the health authority. That is not an academic point; it is important. If someone is in the position to make important decisions about the treatment of patients in the NHS, occasionally it might be useful for that person to be a patient and to sample the facilities available. I recently attended a clinic with a member of my family and I was appalled to see the number of people crammed into it. Large numbers of elderly people were standing because no chairs were available.
I am not attacking the consultants or the nursing staff, who do their level best to ease the problems, but there is something radically wrong with a management that fails to provide chairs for people in their 70s, 80s and 90s while they are waiting for treatment. Sometimes they have to wait two or three hours before receiving basic treatment. I should like those who are making the decisions to sample the facilities, because they would then realise what people have to tolerate. I suspect that a number of those who serve on the health authority in Wakefield would never go anywhere near the NHS.
Another issue, which was a problem with the previous structure of health authorities and will be an even bigger problem now, is when such very busy people, with all their commercial and business interests, will find the opportunity to visit hospital wards and clinics, as they should, to see what is happening at the grassroots level. I do not suggest, nor do I need to suggest, any political bias in the appointments in Wakefield, but half the non-executive members who live in the area live in one electoral ward. I am sure that it is a coincidence, but it is the only ward in the entire Wakefield district to elect Conservative councillors. People who know the area will appreciate that Sandal is not representative of the Wakefield district, but it is very well represented on the new health authority.
One third of the people of Wakefield live on council estates. Would it be unreasonable to expect at least one member of the health authority to live on a council estate and therefore have some insight into the problems of the working class?
We should have health authorities that are composed entirely of people who live in the areas that they serve and who actually use health service facilities that are, or are not, available, as the case may be. The membership of the authorities should genuinely reflect the aspirations, needs and views of the local community. Why should not they include a few working-class mums who have experience of sitting in a clinic for two or three hours, waiting for treatment? Such people would properly be able to express the views and real concerns of the service users.
Why should there not also be direct democratic accountability? Why shy away from health authority elections? I would go further even than my own party and

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suggest that we should go from door to door, telling people that they should vote for a particular health authority candidate. We would also be able to learn what the public want, in the way that we do when canvassing in local or general elections.
My plea, more to the next Labour Government and to my right hon. and hon. Friends on the Front Bench than to the present Tory Government, is that we should move towards direct elections, for I am sure that they would be welcomed by the vast majority of our constituents.
10.25 pm
Dame Elaine Kellett-Bowman: In Lancaster we are lucky in the calibre of our district health authority, whose members include people of wide experience who know the area well. They are led by our exceedingly able existing district chairman, who has piloted huge improvements and innovations so that our local health service is at or near the top of any list of criteria or league table that one cares to use.
I am a great believer in encouraging the state of marriage, and I feel sure that the Government share my views. I am therefore puzzled by the regulations, because, while the Government have removed the advantage of unmarried couples living together in respect of mortgages, and the advantage of unmarried couples living together for social security purposes, they have reinstated in the regulations the disadvantage for a married couple living together in respect of the declaration of interest.
I refer to regulation 13(6) of SI 1330, and to the words
"the interest of one of a married couple living together"
and to regulation 20(5) in SI 1331, which refers to the situation
"in the case of married persons living together."
Why should they be at a disadvantage? I should like an answer.
10.27 pm
Mrs. Alice Mahon: In Committee stage on the National Health Service and Community Care Bill, my hon. Friend the Member for Newcastle upon Tyne, Central (Mr. Cousins) referred to the new district health authorities as a system of management that Queen Victoria would have recognised when she surveyed the crowned heads of Europe, and he was absolutely right. Everything leads back to the Secretary of State, and my hon. Friend the Member for Livingston (Mr. Cook) was also correct when he said that the new set-up is centralisation in an extreme form.
In the case of Calderdale district health authority, off go the two council representatives, who happen to be elected Labour councillors, and the trade union representative, and on come the business men, with only one exception. We have the same chair as before in Alan Templeton, an ex-director of the Halifax Insurance Company. During his chairmanship, he has presided over every cut that the Government have proposed, even using his casting vote to get rid of the NHS's own laundry service, a decision which was followed by a few disastrous years.
The newly appointed vice-chair, Barry George, was vice-chair of the previous district health authority. From
1168
the positions that he takes, he is obviously a Thatcherite. Until recently, he was employed as an architect. A new member of the authority, Clifford Fee, is a long-time Tory party member. He is a former chair of Halifax Conservative Association and recently retired from the family business. His new post should pay about £250 per meeting, which is a nice little earner for a recently retired business man. We have Dr. Hughes, who was previously a board member and is a fairly reactionary, right-wing medic. When I was a member of the district health authority, he only came alive when there were cuts to be made. He always voted for them.
Another new member of the board is a solicitor, and not someone whom I have heard had any interest in or knowledge of the national health service until his recent election to the board, which has already met and voted through a round of cuts which will lead to the loss of 99 beds. I imagine that the solicitor is a Government supporter because he voted for the cuts without any previous experience, as far as anyone can tell, of the national health service.
The one saving grace is that a woman, Jackie Stark, has been elected to the board. She was the only person to vote against the cuts, and she has spent most of her life working for the voluntary sector. Apart from that one exception, we have middle-aged men with business backgrounds who will slavishly follow any cuts that the Secretary of State suggests.
Today I learned that the latest infant mortality rates in Calderdale were shocking. In Calderdale the rate is 12·6 per cent., in Yorkshire and Humberside it is 9·1 per cent., and in the rest of England and Wales it is 8·4 per cent. The perinatal statistics—deaths in first week or stillbirths—were 12·9 per cent. in Calderdale, 8·5 per cent. in Yorkshire and 8·3 per cent. for England and Wales as a whole. Given those statistics, I must ask myself what on earth this Tory-appointed group of people were doing voting for cuts in beds and cuts in maternity services.
I know that the Secretary of State and his Ministers have received representations from a group of people in Calderdale about planning permission for a 40-bed private home for people with learning difficulties. I mentioned the issue when I was on the Committee on the National Health Service and Community Care Bill. That plan is totally at odds with the district health authority's philosophy of care for such people. The group making representations came out of hospital recently and are speaking up on behalf of their friends in Stansfield View, who are totally opposed to the home.
I think that there is a hidden agenda and that Stansfield View will be emptied while 40 people with learning and physical difficulties are still waiting to come out. If planning permission is given—it seems that it will be—they will end up in a totally unsuitable home, situated between a canal and a river, on a rat-infested industrial site. The business men appointed by the Secretary of State will happily go ahead with that, but it bodes ill for the people of Calderdale.
I am disgusted at the deliberate way in which the Government have put their friends into lucrative part-time jobs. I hope that the rest of the country and the people of Calderdale realise that those whom the Secretary of State has placed on the board will earn about £250 an hour and they will make all the wrong decisions.
10.33 pm
Mr. David Evennett: I support the regulations, and do not share the concerns that have been expressed by Opposition Members this evening.
Change for change's sake is never a good idea, but change to improve the system should be supported. Following the hon. Member for Halifax (Mrs. Mahon) is always an experience, but her view of democracy in the health service is totally wrong. Democratic control over the NHS is represented by Parliament and by the Secretary of State. That has always been the case and it always will be. We are the guardians of the national health service.
The Opposition spokesman, the hon. Member for Livingston (Mr. Cook), is living in the past. He and the hon. Member for Halifax seem to want to see their old friends, the Labour councillors and the trade union members, restored to the health authority—people who were not elected but nominated on a political basis. By means of the regulations, the Government intend to introduce better management and more management experience into the national health service.
Mrs. Mahon: Will the hon. Gentleman give way?
Mr. Evennett: No. The hon. Lady has had her opportunity to speak. It is high time that she listened to some common sense.
If the management of the national health service is to be improved, new people with management and business skills must be persuaded to offer their services. The NHS is a much valued and much loved national institution. However, we hear much criticism of the NHS in our constituency surgeries. The criticism that is most generally voiced, in both general and specific terms, relates to the local management of the NHS.
Unfortunately, there have been many examples of poor management. Although more money has been poured into the NHS, so that more patients can be treated, the criticism that is expressed—it is a valid criticism in certain areas—is that there has not been more effective and efficient utilisation of resources in the interests of patients. We need good management at all levels in the NHS to ensure that patient services are, and continue to be, first class.
How can good management be achieved? Local councillors were not elected to the district health authorities; they were appointed. Why should local authorities appoint health authority representatives? Of course there must be liaison between local authority social services and the NHS, but we need better management. Therefore, if we can appoint people who are better qualified to serve NHS management at local level, we should do so.
Mr. Geoffrey Lofthouse: Will the hon. Gentleman give way?
Mr. Evennett: Yes, I shall give way to the hon. Gentleman.
Mr. Lofthouse: If we accept that better management is required and that better management should be provided by people with experience of management in manufacturing industry, why is it necessary to go miles away from local health authority areas to pick such people? Does it mean that no suitable people can be found in the area?
Mr. Evennett: The point is that we want the best people, wherever they may come from, so that they can provide expertise for the management of the NHS.
In conclusion—
Mr. Bob Cryer: Will the hon. Gentleman give way?
Mr. Evennett: No, I shall not give way. The hon. Gentleman never listens. If he did so, he might learn something. We have had too many sedentary interventions from him over many years.
We want to improve the NHS. We have put more money into it, and more patients have been treated. What we need now is a better management structure in the interests of patients.
10.37 pm
Mr. Charles Kennedy: I echo the concern expressed during the passage of the Bill, both on the Floor of the House and in Committee, and also tonight about regulations of this nature that are the consequence of the Bill having been passed.
The hon. Member for Livingston (Mr. Cook) referred to the number of business men who have been appointed. We should not be surprised about that. The thrust of the reforms is to put the NHS on a more business-cum-private footing. From the Government's point of view, therefore, it is entirely consistent that business men should be put in charge of the NHS. As has been acknowledged, however, certainly on this side of the House and to a certain extent by Conservative Members, the sad thing is that all too often the business men and others who have been appointed have no direct local contacts. That is inappropriate when we are talking about the management of the NHS.
Why is it, one wonders, that people have so often been moved in from other parts of the country to serve on district health authorities? I suspect that the reason is partly that, in some parts of the country, the political complexion is such that it may not be as easy as the Secretary of State would wish to find people of both his and his Government's cast of mind to serve on the authorities. Therefore, people have to be shipped in from elsewhere.
There is a more practical reason. If someone lives in a local community and is facing pressures and having to take difficult decisions—if he is the subject of letters in local newspapers, of people phoning him at home and of people making their concerns known to him when he is shopping—that is something of a strain. It is much easier to take cold-blooded decisions resulting in cuts, closures and a diminution of the health service when someone does not have to face the people whom his decisions will adversely affect. That is one of the reasons why the thinking of the Secretary of State in making these appointments is so clear.
Mr. Cryer: Is there a possible third reason—that if, as is unlikely, the Tories are re-elected, they have in place, free from any local accountability, a remote character ready to take the next step of privatising the national health service?
Mr. Kennedy: I would be straying a bit wide of the regulations if I answered that, but given the motives and the means that this legislation have given rise to, one

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cannot, being as generous as possible to the Government, dismiss the possibility of such a change following under a future Tory Administration. That should be said loud and clear; I welcome the hon. Gentleman's intervention.
It is regrettable that, in addition to the other examples that have been given of the trade unions and local authorities, the Government resisted an amendment moved in Committee—their track record on these appointments confirms how useful that amendment would have been—to improve the comparatively meagre number of nurses who have been appointed. At the time of the original Griffiths management report and the recommendations that flowed from it, the Government were reluctant to concede a central role in the management of the health service to the nursing profession. They conceded it in due course, which was welcome.
Further down the line of management, that absence of guaranteed or direct nursing input has been replicated in the appointments that have been made. The Secretary of State was given lists of nominees by the regions from which to choose non-executive members. Nurses appeared on those lists, and some of the executive members are nurses, but the regions of Wessex, Yorkshire, South West Thames and North West Thames have no nursing representatives on the new bodies.
That is not good for the health service, especially when the thrust is towards a business or management-orientated health service to deal with such items as throughput, which, as any nurse could advise those bodies, is not a mark of success. If people are discharged from the hospital sector into the community before they have recovered, their chances of recovery may be damaged and another statistic may be added to the admissions column a few weeks later. Throughput is not a categoric or sufficiently illuminating indication of success in the health service. Nobody would be better advised to tell a health authority that than a nurse, but all too often nurses have not been appointed.
The classic example of a lack of local knowledge occurred recently. We all know the very tragic circumstances that gave rise to the by-election campaign in Eastbourne. The Conservative candidate is known to us as the former Member for Glanford and Scunthorpe. He was recently adopted, and at this stage his knowledge of Eastbourne is not full and detailed. That was borne out by his statement during the campaign pointing to the success of one of the local hospitals. A photograph of that hospital was subsequently produced which showed it to be a pile of rubble.
That highlights the dangers of having people who do not have sufficient local knowledge expounding the virtues of the health service in a given locality. It was a classic example which considerably embarrassed the local campaign and, I suspect, the Conservative party nationally.
Mr. Rhodri Morgan: It was a successful demolition.
Mr. Kennedy: As the hon. Gentleman says, it was a successful demolition. It remains to be seen whether a phoenix will rise from the ashes. One lives in some doubt about that.
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The new system is unrepresentative and undemocratic. It will put more and more power in the hands of central Government at the expense of local communities. For that reason, we shall be joining the Labour party in opposing the regulations.
10.45 pm
Sir Michael McNair-Wilson: I welcome the revision of the membership of the regional and district health authorities, and of the family health services, as much as anything because the previous membership of those bodies, even if drawn from a wider catchment, were remarkably out of touch with the areas and the populations that they claimed to represent. How rarely do I remember any of those authorities holding a public meeting in my constituency to explain the problems they were up against. The whole question of public accountability by those bodies has not left much of a mark on me.
One of the weaknesses of these authorities always seemed to lie in the fact that, apart from the officers, most of the members were not sure what job they were meant to perform or whom they represented. In those terms, to have a more businesslike approach or, as my right hon. and learned Friend the Secretary of State said, to make a more effective decision-making team seems to make good sense and to be wholly welcome.
However, business efficiency and effective decision-making, although important—no one would dispute that every health authority requires that expertise—may be too narrow an approach. Nobody disputes the need for the NHS to be able to draw on business acumen and, as the internal market develops, that ability will become ever more important. However, what requirement is there for the new, non-executive officers to be NHS patients? That question has already been asked by the Opposition.
I believe that the members should be not only directors but consumers of the authorities if they are to have a valuable input into the discussions of those authorities. The regulations seem to have the single drawback that they lay too little stress on the voice of the consumer or on how the new bodies are to be accountable to the communities they serve. They are appointed for four years, but not by local people. Is their sole remit business efficiency? if so, what proposals are there for giving the voice of the patient some way of being heard?
Community health councils have also been mentioned. I suggest that, up to a certain point, they can fulfil the job of being the consumer's voice. However, if we want them to succeed as the consumer's voice in the newly shaped national health service, surely one of the non-executive members should be the chairman of the local CHC or there should be room for co-opted members on the new bodies. After all, if we are concerned with business acumen, and with restructuring and reshaping the national health service to give it a more businesslike approach to its massive task and to the huge funds it handles, we should follow big business down the road of having either a customer relations director or a customer relations manager among those who are non-executive, co-opted members.
In welcoming the changes, I believe that there is still a gap in what has been proposed. We should give the patient's voice rather more time to be heard than seems to be possible with these proposals.
Mr. Ian McCartney: I promise you, Mr. Deputy Speaker, that I shall take only a couple of minutes. I saw you raise your eyebrows when I rose, and I know that a number of hon. Members wish to participate. I am glad that you can take a joke.
I am probably one of the few hon. Members who knows the wrath of the Secretary of State. In his earlier office of Minister for Health, he sacked me from my local family practitioner committee. Conservative Members will probably say, "That is the only good decision that he has made at the Department of Health." I was sacked purely and simply because I had been put on the committee by the local authority and was asking pertinent but awkward questions about the administration of the committee. The right hon. and learned Gentleman could not find a local authority member with whom to replace me because there were no elected Conservative representatives in our area at the time. He left the position vacant rather than making a fresh appointment from among the local authorities.
The Secretary of State has a long history of attempting to remove from authorities people with political views that he does not like, including some of the most efficient and hard-working people in the national health service, who have been withdrawn from service over the years.
The present regulations represent the final nail in the coffin of public accountability and public and local representation in the national health service. My authority, which looks after 340,000 people, has the following criteria: one must not live or work in Wigan, and if one is a member of the local authority or a community group that has comments to pass about the running of the health authority one will be excluded. Amazingly, when the present chairman of the health authority was appointed he said that he knew nothing about the running of the authority but that he was a quick learner.
Since then, Mr. Hague has, indeed, learnt quickly. He has learnt about hospital closures because he is constantly closing hospitals. He has learnt about privatisation through his wholesale closure of hospitals and as he has privatised care for the elderly and the mentally ill. He knows something about contracts. At almost every health authority meeting, when the first item on the agenda is reached, the "public interest" is invoked, a resolution is passed and the public are thrown out. The authority then proceeds to talk about contracts for companies such as Takare. In privacy, the authority may change the whole system of contracts so that Takare is the only company that can apply for and obtain contracts. In private, the authority consistently acts against the public interest.
A Mr. Robertson, the retired chief executive of Robertson's jam, is to be appointed to the family health services authority. At least the health service in Wigan can look forward to jam tomorrow. Mr. Robertson is somewhat coy when it comes to whether he lives in the borough. The press statement sent to local Members of Parliament says that he lives somewhere in Cheshire. The members of the health service authority representing the professions also live anywhere but Wigan—in Cheshire, in Lancashire, in Bolton and in other parts of Greater Manchester but not in the local community.
I should have no personal objection to the Conservatives even controlling the health services authority if they lived in the borough and if they used, and were accountable for, its services. But that is plainly not the case. The Government are a centralising Government who are taking for themselves complete political control of
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the health service by means of appointees who do not live in or care for the local community and who do not care for the national health service. Many of those appointed have been appointed for one reason—their sole objective during their two or four-year term is to privatise as much of the health service as they can, preferably before the next general election. That is why I welcome the statement by my hon. Friend the Member for Livingston (Mr. Cook), that at the earliest possible opportunity Messrs. Robertson and Hague et al will be sacked and replaced by people who live and work in the community and who have a commitment to the national health service.
10.54 pm
Mr. Frank Haynes: I am a bit surprised that the Secretary of State for Health has left the Chamber. He should be ashamed of himself. He should be here listening to what we are saying because the Opposition totally disagree with his proposals. Indeed, one or two observations have also been made by Conservative Members—[Interruption.] Ah, the Secretary of State must have heard me because he has just returned to the Chamber.
We know what is going on. We know what the Secretary of State is doing. He frittered around with transport before he came to social services and I remember well what happened. The Secretary of State has made a mess since he took over his flaming job. He is now moving towards more closures for the national health.
The Secretary of State need not frown because I shall put him in the picture. He is coming to my constituency on Saturday for "Europe Week" and he will stand on a platform with the Conservative candidate for the next general election. [Interruption.] That is not a big joke. It is a serious matter. I warn the Secretary of State that he is going to get an earbashing on Saturday.
The Secretary of State obviously has some influence on cuts and the way in which a local health authority should spend its money. The Secretary of State knows where the King's Mill hospital is because he lives just down the road in Rushcliffe. I do not know what his constituents think about him there, nor do I know what people think of him in the city of Nottingham after what the Secretary of State has done there.
The Secretary of State must be aware of the finances that have been made available for Central Nottinghamshire district health authority. He has appointed people to carry out his dirty work. That is what it is all about. There will be no come-back. They sit around the table and tell the manager what she has to do—and the manager is a lady in Central Nottinghamshire. That wonderful lady has done a first-class job since she was appointed, but she will not be able to do the job that she should be doing because the Secretary of State has appointed all those bosses from all over the damn place and has sacked the real link with the community.
The Secretary of State talks about community care and he gets the Prime Minister to say the same things. They say that they care about the facilities that are provided in the community. At the Victoria hospital in Mansfield there are a number of bungalows provided for the mentally handicapped. They were built so that the parents of mentally handicapped children could have some respite. The children could move into the bungalows to allow the parents some freedom, a change and a rest. Two of those

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bungalows are to be closed, yet the Government talk about caring for the community. They could not care less. One of my colleagues made a good point earlier: every step that the Secretary of State has taken with regard to the NHS has been a step towards privatisation.
Mr. Kenneth Clarke: I am sure that the hon. Member for Ashfield (Mr. Haynes) will agree that I cannot leave it to my hon. Friend the Under-Secretary of State for Health to answer all that.
I am glad that I shall be meeting the hon. Gentleman in the Asda carpark at Sutton in Ashfield on Saturday. The hon. Gentleman's predecessor used to campaign with me for Europe and I hope that the hon. Gentleman will join me on Saturday. I hope that he has heard that the Labour party has undergone a conversion and the party's policy is now also in favour of "Europe Week". I look forward to visiting King's Mill again. I know it extremely well.
Mr. Haynes: On a point of order, Mr. Deputy Speaker.
Mr. Clarke: No, after the hon. Gentleman has heard me out on King's Mill.
Mr. Haynes: On a point of order, Mr. Deputy Speaker. In my contribution I have not mentioned Europe—[Interruption.] Wait a minute—except for "Europe Week." That is all. That is what the Secretary of State is coming to. That is all I have said about Europe.
Mr. Deputy Speaker (Mr. Harold Walker): Order. I very much—
Mr. Clarke: The last time I visited King's Mill hospital was to open a major extension that the Government had financed. I look forward to the expansion of services in Central Nottinghamshire health authority. To which of the new appointments to Central Nottinghamshire health authority does the hon. Gentleman really object? He is a fair man. He is not as partisan as he likes to make out on the Floor of the House. He knows perfectly well that we have appointed people who are interested in a better health service in central Ashfield. Would he please not lark about trying to claim that he seriously objects—[Interruption.] The hon. Member for Livingston (Mr. Cook) has to go in for jobbery because he needs votes to be elected to the national executive. The hon. Member for Ashfield (Mr. Haynes)—I nearly said my hon. Friend the Member for Ashfield—knows perfectly well that he does not really object to any of the people whom I have appointed to Central Nottinghamshire district health authority.
Mr. Haynes: He has got a bloody neck. He really has got a neck to make a comment of that sort.
Mr. Deputy Speaker: Order. That sort of coarse language is uncharacteristic of the hon. Gentleman.
Mr. Haynes: I withdraw it, but I still mean it. I have not been laughing. The Secretary of State is still laughing—he has been laughing throughout the debate. He thinks that this a damn joke. This is a serious matter. We are all complaining about the rundown of the national health service in our own areas, and now the Secretary of State has appointed bosses who jump to attention when he says so. He is pouring money into their pockets. No doubt they
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will get an increase pretty soon—[Interruption.] A part-time job with a damn good salary to go along with it, but to do his dirty work.
The reason why ward closures are taking place is that people are frightened of overspending by the end of the financial year. The reason why people are overspending is that this Secretary of State has cut services in the Central Nottinghamshire district. That is having a serious effect on the Ashfield constituency. I wanted to get up and say it, and I have said it.
11.2 pm
Ms. Joan Walley: I shall be very brief, as time is passing by all too quickly in this important debate. My points are about North Staffordshire district health authority. We do not want business men who have no knowledge of the local area or of local services wheeled in to deal with the management of the national health service. My hon. Friends have made it quite clear that there is a hidden agenda—that the changes are taking us one step nearer to the privatisation of the national health service.
Nurses who have been recruited in north Staffordshire and nurses on Project 2000 ask me whether I realise that they are afraid that there will be no jobs by the time they finish their training. What do business men know about decisions that are made behind the scenes by the Government? It is absolutely impossible to train the number of nurses who are needed.
A further point to which I object very strongly is that, having reduced the numbers on the district health authority, we now have to wheel in ex-members of the district health authority to deal with nurse regradings. They are paid in the region of £40 a day. Why cannot some concern be introduced? Why could we not have had people who are prepared to do that work, have knowledge, put in the time and visit all the different facilities in the area?
The community health council in north Staffordshire has made it clear that it thinks that it is totally out of order that it can no longer as of right sit on the district health authority. That is entirely wrong. We have heard so much about the interests of consumers, or patients, but there are moves afoot for the health authority to meet behind closed doors and for business men to run the NHS.
In north Staffordshire, a health profile report has been commissioned by the Stoke-on-Trent city council. It has identified huge amounts of ill health within Stoke-on-Trent. How can key decisions on health be made if there is no link between those who have been democratically elected? How are we to deal with the great problems posed by ill health under such undemocratic arrangements? I do not want the NHS to be run on entirely commercial lines.
11.5 pm
The Parliamentary Under-Secretary of State for Health (Mr. Stephen Dorrell): Although no one would realise it after listening to the contributions of Opposition Members, the regulations are designed to demonstrate the Government's commitment to improving the delivery of the national health service and to ensure that the health care that the British people enjoy from the NHS will continue to improve. The regulations are part of the programme which gives effect to the Government's commitment to more effective management within the NHS. That is understood by my hon. Friends the

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Members for Erith and Crayford (Mr. Evennett) and for Newbury (Sir M. McNair-Wilson), and I thank them for their support.
The NHS is a vast organisation—it is the largest employer in Europe. It is not a business, and we do not pretend that it is. It is, however, a huge organisation, and it can and should benefit from more business-like management, more effective management and by securing the best use of the resources that are devoted to it by the taxpayer on behalf of the patient. That is the purpose to which the motions are directed.
Mr. Lofthouse: If that expertise is required, why is it that a member of the Pontefract health authority is the managing director of the Rockware glass group—his factory is on the border of my constituency and an adjoining one and he lives in Rotherham—and another is a doctor's wife who lives in Wetherby, which is 20 miles away? I do not have the full list of the members at my disposal. Is there not a doctor's wife or a business man within the Pontefract health authority who has the expertise to do the job?
Mr. Dorrell: The hon. Gentleman is advancing an argument which was introduced on several occasions by one or two of his hon. Friends. If the purpose of the health authority is to secure the good management of health resources within its area, why does he consider it vital that every member of it should have what he deems to be the right postcode? That would not seem to be the critical factor when someone is nominated to serve on the health authority.
I must tell Opposition Members who feel so strongly about postcodes that their view is not shared by the majority of those who are involved daily with the management of the NHS. I have heard less adverse comment about the commitment to a more effective, slimmer and more efficient health service than about all the other principles that come within the NHS reforms. It is hardly a secret that the reforms have generated a degree of interest and controversy. Even the hon. Member for Livingston (Mr. Cook) could not make a leak out of that.
Within the national health service, this set of proposals is almost entirely uncontroversial. It is only Opposition Members, who are so consumed by the conviction that every decision in the NHS management should be regarded as political, who see this as a controversial initiative.
The hon. Member for Livingston has not answered in his mind the fundamental question—what a health authority is there for: is it a political forum or a management organisation? Is it there to hold an interesting debate about the quality of health care and the ideas of its members about health care in a particular area, or is it an organisation charged with the effective use of health service resources in a particular locality to produce the best health care it can for the patients who live there? I have no doubt what the answer is, but the hon. Gentleman does not seem to have sorted it out in his mind.
Let us consider the charges that he levied against the regulations this evening. He said that there was no representation as of right on the health authorities for the local authority of the district. That is correct, but there is no representation on the health authorities for anyone else
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either. They are not there as representational organisations—that is not their function, but the function of the community health council within the context of the health service.
When we are asked to whom the health service is accountable, the answer, as my hon. Friend the Member for Erith and Crayford correctly said, is that, since the day of its inception, the health service has been accountable to Health Ministers, not local bureaucracies, in whatever form they have existed during the history of the service.
Mr. Morgan: That is splitting hairs.
Mr. Dorrell: To talk of parliamentary accountability is not splitting hairs; it is an important matter.
Mr. Morgan: When the Minister describes the health authorities as management organisations, he surely forgets that health authority members also acted a s lay representatives when anybody was appointed to a senior position in a hospital. They were also asked to take particular care of one hospital and acted as lay representatives on grading appeals for nurses. Surely, if they are management organisations, numbers on them are suddenly reduced from 20 plus to five and the position is not thought through, we are then confronted with the problem of what to do with functions other than those of the business whizz kid management organisations, that the previous health authority members carried out.
Was there ever better evidence of a Government proposal that had not been thought through than this evidence that they are going back to the ex-members of health authorities that they have just sacked and asking them to do for money what they previously did for nothing when sitting on grading appeals for nurses?
Mr. Dorrell: Never have I heard better evidence of the tail wagging the dog. Are the authorities there in order to provide a quarry for people to perform those important, valuable functions, or are they there as a group of people whose job it is to manage the health service within a locality? I have already made clear my answer to that question.
Mr. Cook: I shall carry the Under-Secretary back to the comment that he made a moment ago—that it is not his intention that the health authorities should be representative. I would certainly agree that the Government have achieved that objective through the appointments. But he made the case that the job of representation is a task for the community health councils. If he is to rely on them to inject a note of representation into decision making in the health service, will he now issue an instruction to all those health authorities which, since August, have withdrawn observer status from the community health council at their meetings and simultaneously refused to send members of the new authorities along to community health council meetings?
Mr. Dorrell: Certainly not because the purpose of representational organisations such as CHCs is to have sufficient roots in the community to be aware at all times of the community's needs and represent those to the health authority. Through the local Member of Parliament or whatever organisations they wish to approach, they should ensure that their views about the health authority's policies are known and understood. That is the legitimate function

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of the CHC. It is not part of its function to second-guess and become involved in the management process. The two functions are separate and should be seen as such.
The second point made by the hon. Member for Livingston was not dissimilar from the one that he made in his intervention a moment ago. He took us to task for debarring from membership of health authorities paid officials of unions whose members are employees of the health authority in question. The straightforward reason for that is that it clarifies whose task is that of representation—whether it be CHCs representing patients, or paid union officials representing employees—and whose that of management. The two tasks are separate and can be better discharged if they are understood by all parties to be separate.
Thirdly, the hon. Gentleman said that members of the health authorities were overwhelmingly business men. His mathematics was interesting. He quoted the percentage of business men as 52, a figure that included laywers. As a lapsed business man, I am bound to say that I do not regard lawyers as business men.
We make no apology for having sought to introduce to the structure of the health authorities people with experience of managing large organisations. We believe that that will provide more efficient management of our public health service.
Once the hon. Gentleman had got those three weak arguments off his chest, he degenerated into wild accusations about political bias. That was when he showed himself in his true colours. He left behind the measured tones of his initial arguments and began accusing us of all sorts of political malpractice—including the introduction to this country of the principles of nomenclatura. He showed that he understood those principles so well that he intends to apply them in reverse in the unlikely event of a Labour Government being elected.
My hon. Friend the Member for Northampton, South (Mr. Morris) asked why the associate membership—in the context of FHSAs—should continue to contribute to the work of the authority in addition to the slimmed down authority itself. I believe that that is a more efficient way to proceed than past methods. The narrow, smaller group will have the responsibility for evolving the policy of the authority in the area, but that does not stop its members calling on the wider group of associate members to discharge some of the less central functions of the authority.
That has always been explicit in the model that we have advanced for health authorities' discharge of their functions. To some extent, it also answers the point made earlier by the hon. Member for Cardiff, West (Mr. Morgan)—
Mr. Michael Morris: If the associate members are to discharge such a valuable function, am I to understand that they are not to be paid? Are they supposed to do the work on a voluntary basis?
Mr. Dorrell: They will continue to do the work on the same basis as before. The smaller group will be paid for the additional responsibilities of full membership of an authority.
The hon. Member for Wakefield (Mr. Hinchliffe) said that he was proud of the NHS, and had always regarded
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himself as a lifelong supporter of its principles and the way in which it had been introduced; he then said that he felt that our proposals represented inadequate democratic accountability in the running of the service. He has not reconciled himself to the fact that those two statements are fundamentally contradictory.
The NHS that was introduced in 1947 was a national service, accountable to Parliament, whose democratic accountability was—through Ministers—to the House of Commons. It is not, and never has been, a system of different local health services accountable to a local elected body. If the hon. Gentleman can persuade his hon. Friends that that is what Labour policy should be, I shall watch with interest—and I shall be very pleased to argue against it, because I do not believe that it represents either an efficient way in which to use resources or a just way in which to provide health care. But the hon. Gentleman cannot claim to be a supporter of a national health service and then, in his next breath, argue for the disintegration of the NHS into a series of locally democratically accountable health services.
Mr. Hinchliffe: Will the Minister give way?
Mr. Dorrell: I will give way once more, but I cannot engage in a debate on every point.
Mr. Hinchliffe: Throughout its history, the NHS has involved local people—either councillors or members of hospital management committees—who live among people who use the service, and who use it themselves. My objection to the structure set up by the Government is that there is no accountability to local people; the Government's model involves people who do not live in the area concerned, and who have nothing to do with activities such as visiting hospitals and clinics and seeing the problems that face the NHS daily—nothing to do with participation. The Minister has not responded to that point.
Mr. Dorrell: Several Opposition Members have convinced themselves that the health authorities are being staffed with people who—almost to a man—have no connection with the area in which they work. That is a travesty of the truth. Certainly we have not insisted on what I call the postcode test; but the vast majority live either in or very close to the health authority districts in which they will serve, and all will quickly develop a deeper knowledge of the authorities in their areas than any previous generation of health authority members.
My hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman) raised an interesting point about whether we were discriminating against married couples. If we had listed every conceivable relationship that could lead to a conflict of interests which should properly be declared, these measures would be enormously lengthy. There is a specific requirement for the interest of the spouse of a health authority member to be regarded in the same way as the interest of the member himself, or herself. Beyond that, however, it depends on the understanding, or desire to act properly, of each member of the health authority, whom we expect to declare any commercial activity that might give him or her an interest. The provision to which my hon. Friend referred is not intended to give carte blanche to anyone whose relationship falls outside that test not to consider whether he has an interest that he should declare.

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The hon. Member for Ross, Cromarty and Skye (Mr. Kennedy) asked whether nurses should be represented on health authorities. He should remember that, under the reforms to be introduced in April, health authorities will be the bodies purchasing health care on behalf of a resident population. The Government continue to think it important that there should be a medical input into the management of units within the NHS: that is, that the management of hospitals—whether they are trusts or directly managed units—should involve such input. It is not obvious to me, however, that it is essential to have a "nurse input" into what is basically a contracting organisation.
My hon. Friend the Member for Newbury asked whether there should be a stronger voice for the patient in the form of a customer relations director. My hon. Friend does not seem to place as much emphasis as I do on the fact that the health authority itself is customer/patient-centred. After April, the whole purpose of a health authority will be to look at the health needs of everyone in a defined geographical area and to devote all its efforts to trying to secure the best possible health care for the resident population for which it is responsible. The idea of a customer relations director in an organisation that is totally directed to that purpose is somewhat otiose.
Sir Michael McNair-Wilson: Many organisations that do nothing but serve the customer for commercial purposes think that it is best to have a customer relations manager. Why should the health authorities be different? If they did not have to take it upon themselves to assume that they know what the customer wants and that they are always right, they would listen to what the customer says.
Mr. Dorrell: The difference lies in the phrase "for commercial purposes". A commercial organisation serves the customer, but also has to serve shareholders. That is not the case with a health authority, whose sole task is to use public money to secure the best quality health care for its resident population.
The House heard an interesting discussion between the hon. Member for Makerfield (Mr. McCartney), the hon. Member for Ashfield (Mr. Haynes) and the absent hon. Member for Bradford, South (Mr. Cryer). They convinced themselves that the Government had embarked upon a programme of privatisation of the national health service. None of the hon. Gentlemen explained why, if that was the case, we did not take the opportunity in our White Paper on the future of the NHS to explain such a policy and the reasons for it.
Mr. McCartney: Will the Minister give way?
Mr. Dorrell: I have given way a great deal.
Mr. McCartney: On a point of order, Mr. Deputy Speaker. Surely the Minister should not be allowed to attack hon. Members and then to refuse to allow interventions. Let us have a free debate.
Mr. Deputy Speaker: Order. Mr. Dorrell.
Mr. Dorrell: Those three hon. Members satisfied themselves, although I think no other hon. Member, that there was a paper tiger lurking in the bushes—the privatisation of the NHS. They then had a heroic battle in which no doubt they convinced themselves that they were the victors. It was not instructive for any of us.
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The regulations represent a major improvement in the way in which the health service is run and everyone who works in the service knows that. The argument about the future of the service is not just about the level of spending. It is also about how best we can provide for the efficient management of the NHS in order to ensure that that money buys the best possible health care for the patient. The Opposition have not taken a single step into that part of the argument. We have heard no proposals from them about how they would ensure maximum improvement and efficiency in the service. The Government proposals will improve efficiency, and I commend them to the House.
Mr. Robin Cook: I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.
Motion made, and Question put,
That an humble Address be presented to Her Majesty, praying that the Regional and District Health Authorities (Membership and Procedure) Regulations 1990 (S.I., 1990, No. 1331), dated 2nd July 1990, a copy of which was laid before this House on 5th July, be annulled.—[Mr. Robin Cook.]
The House divided: Ayes 94, Noes 158.

Division No. 319]

[11.29 pm

AYES

Abbott, Ms Diane

McAvoy, Thomas

Allen, Graham

McCartney, Ian

Barnes, Harry (Derbyshire NE)

McFall, John

Barnes, Mrs Rosie (Greenwich)

McKay, Allen (Barnsley West)

Barron, Kevin

McKelvey, William

Bennett, A. F. (D'nt'n & R'dish)

Maclennan, Robert

Blunkett, David

Mahon, Mrs Alice

Boateng, Paul

Marshall, David (Shettleston)

Callaghan, Jim

Marshall, Jim (Leicester S)

Campbell, Menzies (Fife NE)

Maxton, John

Campbell, Ron (Blyth Valley)

Meale, Alan

Campbell-Savours, D. N.

Michael, Alun

Canavan, Dennis

Michie, Bill (Sheffield Heeley)

Clarke, Tom (Monklands W)

Moonie, Dr Lewis

Clay, Bob

Morgan, Rhodri

Cohen, Harry

Morley, Elliot

Coleman, Donald

Murphy, Paul

Cook, Robin (Livingston)

Nellist, Dave

Cousins, Jim

O'Brien, William

Crowther, Stan

Orme, Rt Hon Stanley

Cryer, Bob

Patchett, Terry

Cummings, John

Pike, Peter L.

Cunliffe, Lawrence

Powell, Ray (Ogmore)

Dalyell, Tam

Primarolo, Dawn

Darling, Alistair

Robertson, George

Dewar, Donald

Ross, Ernie (Dundee W)

Dixon, Don

Salmond, Alex

Dunnachie, Jimmy

Skinner, Dennis

Ewing, Harry (Falkirk E)

Smith, C. (Isl'ton & F'bury)

Ewing, Mrs Margaret (Moray)

Steinberg, Gerry

Flynn, Paul

Strang, Gavin

Foster, Derek

Thomas, Dr Dafydd Elis

Fyfe, Maria

Turner, Dennis

George, Bruce

Vaz, Keith

Griffiths, Win (Bridgend)

Wallace, James

Harman, Ms Harriet

Walley, Joan

Heal, Mrs Sylvia

Wardell, Gareth (Gower)

Hinchliffe, David

Wareing, Robert N.

Home Robertson, John

Watson, Mike (Glasgow, C)

Hughes, John (Coventry NE)

Welsh, Andrew (Angus E)

Hughes, Robert (Aberdeen N)

Williams, Alan W. (Carm'then)

Illsley, Eric

Wilson, Brian

Ingram, Adam

Winnick, David

Jones, Barry (Alyn & Deeside)

Wise, Mrs Audrey

Jones, Ieuan (Ynys Môn)

Young, David (Bolton SE)

Kennedy, Charles

Leadbitter, Ted

Tellers for the Ayes:

Lofthouse, Geoffrey

Mr. Ken Eastham and

McAllion, John

Mr. Frank Haynes.

1183

NOES

Adley, Robert

Hordern, Sir Peter

Alison, Rt Hon Michael

Howarth, G. (Cannock & B'wd)

Amess, David

Howell, Ralph (North Norfolk)

Arbuthnot, James

Hughes, Robert G. (Harrow W)

Arnold, Jacques (Gravesham)

Hunt, Sir John (Ravensbourne)

Arnold, Sir Thomas

Hunter, Andrew

Ashby, David

Jack, Michael

Aspinwall, Jack

Janman, Tim

Atkins, Robert

Johnson Smith, Sir Geoffrey

Baker, Nicholas (Dorset N)

Jones, Gwilym (Cardiff N)

Batiste, Spencer

Jones, Robert B (Herts W)

Bellingham, Henry

Jopling, Rt Hon Michael

Bennett, Nicholas (Pembroke)

Kellett-Bowman, Dame Elaine

Bevan, David Gilroy

King, Roger (B'ham N'thfield)

Biffen, Rt Hon John

King, Rt Hon Tom (Bridgwater)

Boscawen, Hon Robert

Kirkhope, Timothy

Boswell, Tim

Knapman, Roger

Bottomley, Peter

Knight, Greg (Derby North)

Bottomley, Mrs Virginia

Knight, Dame Jill (Edgbaston)

Bowis, John

Lang, Ian

Brazier, Julian

Latham, Michael

Bruce, Ian (Dorset South)

Lawrence, Ivan

Budgen, Nicholas

Lee, John (Pendle)

Burns, Simon

Lightbown, David

Burt, Alistair

Lord, Michael

Butler, Chris

Macfarlane, Sir Neil

Carrington, Matthew

MacKay, Andrew (E Berkshire)

Carttiss, Michael

McNair-Wilson, Sir Michael

Chapman, Sydney

McNair-Wilson, Sir Patrick

Chope, Christopher

Malins, Humfrey

Clark, Sir W. (Croydon S)

Mans, Keith

Clarke, Rt Hon K. (Rushcliffe)

Maples, John

Conway, Derek

Martin, David (Portsmouth S)

Coombs, Anthony (Wyre F'rest)

Mellor, David

Coombs, Simon (Swindon)

Meyer, Sir Anthony

Cormack, Patrick

Miller, Sir Hal

Currie, Mrs Edwina

Mills, Iain

Davies, Q. (Stamf'd & Spald'g)

Mitchell, Sir David

Davis, David (Boothferry)

Monro, Sir Hector

Day, Stephen

Morris, M (N'hampton S)

Devlin, Tim

Morrison, Sir Charles

Dicks, Terry

Moss, Malcolm

Dorrell, Stephen

Neale, Gerrard

Douglas-Hamilton, Lord James

Neubert, Michael

Dover, Den

Newton, Rt Hon Tony

Dunn, Bob

Nicholson, David (Taunton)

Evennett, David

Norris, Steve

Fairbairn, Sir Nicholas

Onslow, Rt Hon Cranley

Fenner, Dame Peggy

Paice, James

Fishburn, John Dudley

Pawsey, James

Forsyth, Michael (Stirling)

Porter, David (Waveney)

Forth, Eric

Price, Sir David

Fox, Sir Marcus

Renton, Rt Hon Tim

Franks, Cecil

Ridsdale, Sir Julian

Freeman, Roger

Shaw, David (Dover)

French, Douglas

Shephard, Mrs G. (Norfolk SW)

Fry, Peter

Skeet, Sir Trevor

Gardiner, George

Taylor, Ian (Esher)

Glyn, Dr Sir Alan

Taylor, John M (Solihull)

Goodhart, Sir Philip

Thompson, D. (Calder Valley)

Goodlad, Alastair

Thompson, Patrick (Norwich N)

Goodson-Wickes, Dr Charles

Thornton, Malcolm

Greenway, Harry (Ealing N)

Thurnham, Peter

Greenway, John (Ryedale)

Tracey, Richard

Gregory, Conal

Tredinnick, David

Griffiths, Peter (Portsmouth N)

Trotter, Neville

Grylls, Michael

Twinn, Dr Ian

Hamilton, Hon Archie (Epsom)

Waddington, Rt Hon David

Hamilton, Neil (Tatton)

Walden, George

Hanley, Jeremy

Walker, Bill (T'side North)

Hannam, John

Ward, John

Hargreaves, A. (B'ham H'll Gr')

Watts, John

Hargreaves, Ken (Hyndburn)

Wheeler, Sir John

Harris, David

Widdecombe, Ann

Hawkins, Christopher

Wilkinson, John

Hayward, Robert

Winterton, Mrs Ann

Hill, James

Winterton, Nicholas

Hind, Kenneth

Wood, Timothy

1184

Yeo, Tim

Tellers for the Noes:

Young, Sir George (Acton)

Mr. Irvine Patnick and

Mr. Tom Sackville.

Question accordingly negatived.

PROCEDURE
Motion made,
That this House agrees with the recommendations contained in the First Report of the Select Committee on Procedure of this Session (House of Commons Paper No. 379).—[Mr. Wood.]
Hon. Members: Object.

QUESTIONS TO MEMBERS, ETC.
Motion made,
That with effect from the beginning of the next Session of Parliament Standing Order No. 17 (Questions to Members) and Standing Order No. 18 (Notices of motions, amendments and questions) be repealed and the following Standing Orders be made—

QUESTIONS TO MEMBERS, ETC.

  Time for taking questions
  (1)—Questions shall be taken on Monday, Tuesday, Wednesday and Thursday, after private business has been disposed of.
  (2) No question shall be taken after half-past three o'clock, except questions which have not appeared on the paper but which are in Mr. Speaker's opinion of an urgent character and relate either to matters of public importance or to the arrangement of business.
  (3) Any questions tabled for written answer on a day on which the House does not sit by reason of the continuance of a previous sitting shall be deemed to be questions for written answer on the next sitting day and shall appear on the Order Paper for that day.

  Notices of questions, motions and amendments
  (1)—Notices of questions shall be given by Members in writing to the Table Office.
  (2) A notice of a question, or of an amendment to a motion standing on the Order Paper for which no day has been fixed or of the addition of a name in support of such a motion or amendment, which is given after half-past ten o'clock in the evening shall be treated for all purposes as if it were a notice handed in after the rising of the House.
  (3) A Member shall indicate on the notice of any question whether it is for oral, written or priority written answer.
  (4) Where a Member has indicated that a question is for priority written answer the Minister shall cause an answer to be given to the Member on the date for which notice has been given, provided that the requirement of notice shall be the same for such questions as that prescribed in this order for questions for oral answer.
  (5) Notice of a question for oral answer may not be given on a day earlier than ten sitting days before the day for answer, provided that, where that earliest day would otherwise fall on a Friday, the earliest day on which such notice may be given will instead be the previous sitting day.
  (6) Notice of any question for oral answer must appear at latest on the notice paper circulated two days (excluding Saturday and Sunday) before that on which an answer is desired.
  (7) When it is proposed that the House shall adjourn for a period of less than four days, any day during that period (other than a Saturday or Sunday) shall be counted as a sitting day for the purpose of calculating the period in paragraph (5) of this order.
  (8) When notice shall have been given of a Motion for the adjournment of the House for more than three days Mr. Speaker may cause to have printed and circulated with the Vote a memorandum superseding the provisions of paragraphs (5) and (6) of this order and instead setting out the earliest day on which notice of questions for oral answer may be given for each of the first ten sitting days after that adjournment, provided that each such day shall as far as practicable fall on the same day of the week as that on which the question is to be answered and shall not be fewer than fourteen days before the day for answer; and also setting out the latest day for notice of questions for oral answer on each of the first two sitting days following that adjournment

  1185
  provided that each such day shall not be fewer than two days (excluding Saturday and Sunday) before the day for answer.—[Mr. Wood.]
  Hon. Members: Object.

  Disabled Children (Mobility Allowance)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Wood.]
  11.40 pm
  Mr. Terry Patchett: I am most grateful for the opportunity of raising this issue on the Floor of the House as there has been burning contention in my constituency and nationwide about the great injustice whereby sufferers under the age of five are denied mobility allowance.
  A lot of money has dribbled through the Government's fingers, and many rich people have got richer. The Government had the money and, with a little effort, could have provided for the sad cases in which young couples have disabled children under the age of five but are denied benefit.
  In July I asked the Secretary of State if he would bring forward proposals to amend the Social Security Act 1990 to grant disabled under-fives the right to mobility allowance. As expected, the Government announced that they had no plans to do so. I am bitter about that. When reading the document, "The Way Ahead", I noticed that once again those children are denied that benefit.
  While I appreciate that this is a national issue, a case in my constituency highlights the seriousness of the problem. Mr. and Mrs. Jow in Bolton on Dearne were blessed with triplets, but unfortunately two of them suffer from cerebral palsy, which denies Mrs. Jow the chance to go out to earn a living to supplement her husband's income as she is a full-time carer for the children. As they suffer from different degrees of the problem, the two children go to separate schools, which creates a transport problem and extra expense. Five or six times each month, they have to go to hospital, and—believe it or not—while there is a guideline of five years of age for benefits, it costs just as much to run a car for a three-year-old as it does for a five-year-old.
  I am pleased that in recent months the Government have set a precedent in relation to attendance allowance and have wiped out the age limit there. I am therefore hopeful that the Minister will think carefully about this matter when she responds to my comments.
  I do not intend to go on at length as 1 am sure that all hon. Members present, including the Minister, are aware of the problem. It is a crying shame that so many rich people have benefited while other people suffer this terrible financial burden and the country cannot help them out. It is a disgrace that the Government will allow them to live in such hardship when a few pounds could help them out and make a great deal of difference to the quality of their lives.
  I have explained the case of the triplets, two of whom are disabled. Mr. and Mrs. Jow have another child—four children in all—and the two invalids should be receiving mobility allowance. They are not the only case in my constituency. I know of at least a dozen similar cases.
  I cannot understand the hard and fast stance that the Government have taken on this matter, given that they relented and recognised the problem for attendance allowance. I see no difference with mobility allowance. Nor can I see any difference in the price of petrol to run a three, four or five-year-old kiddie to hospital.
  I hope that we can convince the Government that They ought to recognise that this is a problem. To solve it would

  1187
  not break the bank. It would help many young couples who suffer this heavy financial burden. It is the Government's duty to assist those people.
  11.44 pm
  The Parliamentary Under-Secretary of State for Social Security (Mrs. Gillian Shephard): I congratulate the hon. Member for Barnsley, East (Mr. Patchett) on raising this subject so soon after our return from the summer recess and for the responsible way in which he has put the case. I know that he tried to raise the subject during the debate on the Consolidated Fund Bill before the summer recess but was unsuccessful because his name was too far down the list. However, both of us were briefed on that occasion, too.
  The hon. Gentleman generously referred to the fact that the Government have made changes in the arrangements for disabled children and for disabled people in general. The Government are very much aware of the difficulties faced by disabled people and by the people who look after them. I am particularly conscious of the problems faced by the parents of severely disabled young children.
  I was interested to hear which case the hon. Gentleman would raise to highlight his concern. The problem has concerned him for some time as he has tabled a number of parliamentary questions about it. The case that he raised relates to triplets, two of whom are disabled. The hon. Gentleman raised specifically the question of entitlement to mobility allowance, but he also referred to other areas of disability provision. Therefore, I should like to place mobility allowance in the wider context of the total social security provision that is made for disabled people and their carers.
  In the past few months there has been an increase in the amount of help provided for families with disabled children. The social security system offers a network of provision for families with disabled children, in addition to mobility allowance. Extra help is available in the premiums which are paid with the income-related benefits—income support, housing benefit and community charge benefit. Help for carers is given through the invalid care allowance. The main benefit for disabled children, however, is attendance allowance, which provides £37·55 per week for people—children as well as adults—who need attention or supervision both during the day and at night, and £25·05 per week for those with lesser attendance needs.
  When attendance allowance was introduced in 1971 the lower age limit was set at the age of two. The Government have been aware of the case that has been made on behalf of families with disabled children—that many handicapped children have additional attendance needs.
  Mr. Dave Nellist: The Minister may remember that my hon. Friend the Member for Preston (Mrs. Wise) and I pressed her colleague, the Minister of State, to review the decision that children under the age of two were not, until recently, entitled to attendance allowance. When the Government decided to conduct a review and then to give about 3,000 families entitlement to the £37 attendance allowance for children under the age of two, why did they not also take the opportunity to consider what my hon. Friend the Member for Barnsley, East (Mr. Patchett) has advocated—a review
  1188
  of the age limit which bars those same familes from entitlement to mobility allowance for young children? That is the nub of this Adjournment debate.
  Mrs. Shephard: I shall deal later with the distinction between the criteria used for attendance allowance and for mobility allowance. With the hon. Member for Coventry, South-East (Mr. Nellist), I was a member of the Committee which considered these matters in great detail. I am sure that he is as glad as I am that the Government were able to make the change in the attendance allowance. I shall deal later with what the Government believe is the essential difference between the criteria for the two allowances. The hon. Gentleman is right to say that some 3,000 families have gained from the change.
  Invalid care allowance may also be payable where a person has given up work to look after a child who is receiving attendance allowance. A family with a very severely disabled baby can qualify for as much as £65 a week extra. If there are two severely disabled babies, they qualify for £65 a week extra and £37·55 for the other baby. At a time when there are many pressing demands on the social security budget, the House will agree that that represents a significant improvement for families with disabled babies.
  When my right hon. Friend the Secretary of State announced the abolition of the lower age limit for attendance allowance on 25 October last year, he also announced some other changes to the benefit system to help families with disabled children. First, the child's disability premium, which is paid with income support for families with a disabled child, was aligned with the adult rate. That meant an increase from £6·50 to £15·40 a week. It took effect in April and it is estimated that it will help 20,000 families.
  A further change that will help families with disabled children came into effect at the beginning of this month. From October, we have introduced a carer's premium of £10 a week into income support for those receiving invalid care allowance. We hope that that will help 30,000 carers. The premiums in income support carry through into the calculations for housing benefit, giving help with rent, and community charge benefit.
  I should like to draw the House's attention to the surveys undertaken by the Office of Population Censuses and Surveys into disability and its effects on expenditure for families with disabled children. Its findings showed that the extra expenditure as a result of disability was obviously affected by the severity and type of disability, but the relationship was less clear for children than for adults. Children require a certain amount of care and attention, and the amounts of extra expenditure varied little in the lower categories—about £4·55, rising to a peak of an average of £12·53 a week in the highest severity category. The higher rate of attendance allowance is £37·55 a week and the lower rate is £25·05 a week. There is a considerable gap between those figures.
  The abolition of the lower age limit for attendance allowance showed that the Government were concerned about the needs of families with young handicapped children. What I wish to say about mobility allowance must be considered in the light of the full range of social security provisions and the improvements that we have made rather than in isolation.
  To explain that, it would be helpful to remind the House of the background to mobility allowance, which

  1189
  was introduced in 1976 as a cash benefit to help severely disabled people with the extra costs that they incur in getting out and about. The Government of the day decided that, in the light of the resources available, the main medical eligibility criteria for the allowance should be inability or virtual inability to walk due to physical disablement. That means, in practical terms, that entitlement to the allowance is based on an assessment of walking ability.
  Since mobility allowance was introduced, the lower age limit has remained at the age of five. The choice of the lower age limit is a matter of judgment, in which two important factors must be borne in mind. The first is the walking ability of young children and the second is the deployment of finite resources. All of us are born unable to walk and all healthy children require supervision and guidance for a few years to make use of their walking ability. There is a case, therefore, to place a lower age limit on mobility allowance.
  The assessment of walking ability involves difficult judgments. Children acquire walking ability from 10 months upwards, but it may be difficult to pinpoint an age below five at which one could make a simple and dispassionate judgment about walking ability. I quote the words of the right hon. Member for Manchester, Wythenshawe (Mr. Morris) when he was introducing the allowance in a debate in 1975. He said:
  "very young children are given mobility help whether able-bodied or disabled."
  The choice of age five represents the judgment of successive Governments on where it is reasonable to draw the line. To reduce the lower age limit—or to abolish it—would cost several million pounds. All decisions to spend money are a matter of competing priorities—more money here means less money to spend elsewhere. The cost of reducing or abolishing the lower age limit for mobility allowance might well be a lower priority for social security spending than some of the other measures that have already been introduced by the Government specifically to help families with young, disabled children.
  Mr. Nellist: I am grateful for a second opportunity to intervene. Does not the Minister have a sense of déjà vu? She reminded the House that she served on the same Committee as I was on. We got the same arguments about the attendance allowance and the need to wait until two years before one could assess whether a disabled baby would need the additional help of the attendance allowance. My hon. Friend the Member for Barnsley, East (Mr. Patchett) has given a family case in his constituency. We are talking about people about whom doctors say that, from an early age, their parents will have many problems in trying to cope. If the children were put into the care of local authorities, or of a hospital, we should be talking not about £30, £50 or £60 a week, but about £150, £200 or £250 a week of the nation's resources to look after them. Cannot the Minister see that this is the same argument as we got on the attendance allowance?
  Mrs. Shephard: I certainly have a sense of déjà vu. To quote again from the right hon. Member for Wythenshawe, he said:
  "we are trying to spread the finite resources as equally and as well as we can.—[Official Report, 11 June 1975; Vol. 893, c. 503.]
  1190
  I could not put it better than the hon. Member for Coventry, South-East when he says that there is a sense of déjà vu.
  Mr. Patchett: On assessment, I recognise the Minister's argument to a certain extent. However, surely we are speaking about cases that are confirmed and that require hospital treatment. That means that transport is needed. I thought that the intention of the mobility allowance was to assist couples with the problem of transport. The issue of assessment does not come into it when it can be confirmed, by doctors and from medical evidence, that the cases require hospital treatment and, therefore, transport, which the children would get if they were five years of age. As I said earlier, I do not follow the logic of saying that the cost of petrol for the journey to the hospital is negligible when, if the children were five years of age they would have some assistance. I am arguing about confirmed cases.
  Mrs. Shephard: I understand that the hon. Gentleman feels strongly about these particular cases, as everybody would. However, I have tried to demonstrate that that particular family and others in a similar position are given extra resources to meet the extra needs of those children when they are very young through the attendance allowance and through other help such as income support and invalid care allowance, which I have already outlined. That is the way in which the extra needs are provided for financially through the social security system.
  We have, of course, extended the upper age limit for the payment of mobility allowance from 75 to 80—because the oldest recipients were due to reach the original upper limit. The extension was an interim measure introduced while we were considering the findings of the OPCS surveys of disabled people. I do not want to belittle the concern for the family that the hon. Member for Barnsley, East feels, but I must remind him of my earlier quotation from the OPCS survey about the level of extra expenditure for disabled children. I have tried to illustrate the fact that the expenditure that the survey found necessary is far exceeded by what is given through attendance allowance and through the other allowances available through income support.
  Let me say something about the other responses to the OPCS surveys and about "The Way Ahead", the basis for the Government's new structure for benefits for disabled people. Mobility and attendance allowance are to be subsumed by the new disability allowance. I believe that I am right in saying that the hon. Member for Barnsley, East has a copy of "The Way Ahead". He will therefore have seen that, while we intend to remove altogether the upper limit of 80 for the payment of mobility allowance when that allowance is incorporated in the disability allowance, we do not have any plans to extend the age limit downwards.
  In the past 10 years, we have spent a great deal on developments for disabled people. The proposals that we outlined in "The Way Ahead", along with the changes that we announced last October, will add about £300 million to our expenditure on benefits for the long-term sick and disabled by 1993. We estimate that about 850,000 people will receive extra help.
  In addition to the extension of the upper age limit for the mobility allowance from 75 to 80, we further extended the allowance in the changes that we announced last October. We introduced special arrangements from last

  1191
  April to help deaf-blind people who need to be accompanied when they are out of doors because of their dual handicaps. We have estimated that that change will help about 3,000 people, including quite a large number of children.
  Mr. Geoffrey Lofthouse: I greatly appreciate the benefits that are already available to such unfortunate families. But surely the main reason for the debate is this. The two children to whom my hon. Friend the Member for Barnsley, East (Mr. Patchett) referred are aged four. What is the difference between taking two children aged four to hospital and taking two children aged five to hospital? There is none, and some families might find it extremely difficult to purchase a motor vehicle to transport their children without the mobility allowance. If we accept that the mobility allowance is necessary, should not we reduce the lower age limit? I realise that there are financial constraints, but I should have thought that only a small amount would be required to reduce the age from five to two.
  Mrs. Shephard: I appreciate the concern of the hon. Member for Pontefract and Castleford (Mr. Lofthouse) who often takes part in debates on disability and who speaks with much knowledge of families with such difficulties.
  I had hoped that I had made the position clear. We are faced with a combination of the difficulty of assessing young children for mobility allowance, given that they would anyway need some help in being mobile and the lack of resources. That was stated clearly by the right hon. Member for Wythenshawe when mobility allowance was introduced. I cannot put it better than the right hon. Gentleman, who said that there were two constraints—the difficulty of assessing young children and the question of finite resources.
  All the hon. Members who have spoken have given a sympathetic account of their concern for young children with disabilities. I hope that I have tried to express the Government's concern and the ways in which we have tried to help families with disabled children with the undoubted extra expenses that they incur as a result of having disabled children.
  Mr. Allen McKay: Will the hon. Gentleman give way?
  Mrs Shephard: I think that I am an hon. Lady, but I shall certainly give way.
  Mr. McKay: I am sorry. It must be my bifocals.
  Surely the Minister's argument about why the age limit cannot be reduced from five falls when we consider that the allowances given to children at the age of three are also given to children aged four, five and six. At five an additional allowance, the mobility allowance, is available. Is the Minister trying to tell us that the assessment arrangements and the ability of people to assess have not changed since 1974?
  Mrs. Shephard: No, of course I am not saying that. I am saying that perhaps children have not particularly changed since 1974. I refer the hon. Gentleman to the debate that took place at that time and the right hon. Member for Wythenshawe stated then that he thought that school age was about the right age at which to set the mobility allowance.
  However, all Opposition Members tonight, including those wearing bifocals, which is obviously a particular handicap in recognising Members on the other side of the House, have demonstrated their sympathy for disabled children. I have tried to explain the network of provision that we are trying to extend through social security to families with a disabled child.
  I have explained how the allowances have been brought in, slightly changed and increased. It might be worth while stating that over the past 10 years expenditure on the long-term sick and disabled has risen by £4 billion in real terms. There has been an increase of 98 per cent. in those receiving invalidity benefit; an increase of 77 per cent. in those receiving non-contributory disability benefits; a 200 per cent. increase in those receiving attendance allowance; and a 547 per cent. increase in those receiving mobility allowance.
  I recognise that the line that I am taking is a disappointment to the hon. Member for Barnsley, East because I know that he feels strongly about this particular case. I just want to remind him of the improvements that we have been able to make and I thank him again for making such a serious and responsible presentation of his case to the House.
  Question put and agreed to.
  Adjourned accordingly at seven minutes past Twelve o'clock.