Lords Sitting of 2 March 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Ripon.

Afghanistan
Lord Gridley Lord Gridley asked Her Majesty's Government:
Whether they will make a statement about the current Soviet presence in Afghanistan.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, there are some 115,000 Soviet troops in Afghanistan. We welcome Mr. Gorbachev's announcement of a date for their withdrawal. In their statement of 25th February, the Twelve again called for total and irrevocable withdrawal of Soviet troops in the course of 1988.
Lord Gridley: My Lords, I am most grateful to my noble friend the Minister for that Answer, especially as contrary reports keep appearing in the international press. Does not my noble friend agree that when total departure of the Soviet forces has taken place from Afghanistan a most dangerous vacuum would be created if no stable government were established at the time? The presence of seven heavily armed groups who could exhibit a desire to start action against those forces with whom they have been in conflict during the Soviet occupation must be considered. Finally, has consideration been given to the presence of a United Nations peacekeeping force, should that be necessary?
Lord Trefgarne: My Lords, I certainly agree that we would very much like to see a stable government established in Afghanistan at the time of the welcome withdrawal of Soviet troops. However, it is equally important that that government should be one which the people of Afghanistan have chosen for themselves.
As for the possibility of United Nations participation later, that would present considerable difficulties and I am not yet persuaded that there is need for such a presence, provided the Soviet withdrawal goes as we hope.
Lord Molloy: My Lords, perhaps I may ask the Minister whether or not the Government would be prepared to accept that the endeavours of Mr. Gorbachev ought to he matched by the USA and Pakistan.
Lord Trefgarne: My Lords, there are many discussions taking place, as I am sure the noble Lord will be aware. While the announcement of withdrawal by the Soviet Union is welcome, as I have said, we must remember that the Soviet Union created this problem. It was Soviet Union troops who arrived unannounced and uninvited in Afghanistan
174
all those years ago, so the onus is on the Soviet Union to provide a solution that facilitates withdrawal.
Lord Cledwyn of Penrhos: My Lords, was this problem discussed with Mr. Shultz when he spoke to the Prime Minister yesterday? Can the Minister say whether the composition of the interim government is regarded by Her Majesty's Government as an important factor; or do the Government agree with Mr. Shultz that that should not stand in the way of a withdrawal of Soviet troops and the signing of an agreement in Geneva?
Is the noble Lord aware that we are concerned, as he is, about possible instability in Afghanistan following the withdrawal of Soviet troops and that we support the idea of a United Nations presence during the interim period?
Lord Trefgarne: My Lords, I can confirm that there have been a number of exchanges between the relevant governments, including the United Kingdom Government, on this matter. As for finding a way for the future, we think that it would be highly desirable to have a stable government in place at the time of the Soviet withdrawal. However, as I said earlier, that must be a government which commands the respect and has the acceptance of the Afghan people. One must be careful not to place unnecessary roadblocks in the way of a Soviet withdrawal, which we regard as the first priority.
Lord Mellish: My Lords, we all welcome the recent statement of Mr. Gorbachev about withdrawing the troops. However, does the Minister agree that this is a grim reminder that 115,000 Soviet troops have been in Afghanistan, unasked and uninvited? It is a lesson to many people, including Members of this House, that we must watch out what we do with the Soviets.
Lord Trefgarne: My Lords, the noble Lord makes a serious point, if I may say so. It is certainly the case that Soviet Union troops arrived in Afghanistan uninvited and unrequired, in a way which commanded the condemnation of the entire world. It is therefore now the Soviet Union's responsibility to facilitate the withdrawal of its troops, if I may put it that way. We have to be careful in the current climate of thinking that everything has changed in the Soviet Union. While some things have changed to a welcome extent, certainly not everything has changed.
Lord Kennet: My Lords, do the Government agree that the time to stop arming and assisting the rebels is now? If so, will they do what they can to back Mr. Shultz in his apparent view that that is the case and in his efforts to detach United States policy from its former position that the time to stop arming the rebels is when the last Russian has gone?
Lord Trefgarne: My Lords, I look forward to the day when the people of Afghanistan can settle their affairs free from intervention of any kind, wherever it may come from. Since the Soviet invasion of' that country seven years ago, the Afghan people have been putting up what I consider to be a very brave

175
resistance to the unwanted intervention of the Soviet Union. I am glad that they were able to find their weapons from somewhere.
Lord Molloy: My Lords, it may not be very important to us, but we have to realise that in point of fact the Soviet Union was invited into Afghanistan by a communist government which claimed at the time that it was threatened by Pakistan. Even if we do not accept them, let us acknowledge the facts. We should also know what type of government is to be put in place in order for us to deal with it.
Lord Trefgarne: My Lords, as I recall it, the alleged invitation to the Soviet Union was issued by a chap who turned out to have been killed two days previously.
Lord Mason of Barnsley: My Lords, can the Minister tell the House what is the estimate of the number of Afghans who have been killed since the Soviet act of aggression took place?
Lord Trefgarne: My Lords, I do not have that number in front of me. I am aware that about 8 million Afghans altogether are refugees of one kind or another from the hostility which has been vented on their country.
The Earl of Selkirk: My Lords, would the noble Lord agree that the conduct of the Russian government in Afghanistan is a fundamental test of its integrity? Can the Minister say whether any preliminary steps have been taken to deal with what I agree is a difficult task; namely, the withdrawal of 100,000 troops?
Lord Trefgarne: My Lords, I am not aware that any withdrawals have yet commenced. My noble friend says that this is a test of Soviet integrity. That integrity—if that is what it was—was shattered the day that they walked into Afghanistan.

Roads: Local Authority Services
2.45 p.m.
Lord Underhill Lord Underhill asked Her Majesty's Government:
What are their intentions for the improvement and maintenance of local roads.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, improvement and maintenance of local roads is the responsibility of local highway authorities. We will continue to give them financial support for this purpose.
Lord Underhill: My Lords, is the Minister aware that in a speech to the Association of County Councils on 17th February, the Secretary of State criticised local authorities for under-spending on local roads, and he said that that implied overspending on other services? Is the Minister further
176
aware that many responsible bodies concerned with the maintenance of local roads consider that local authorities are under-financed, and that they can only carry out road work by sacrificing other essential services?
Lord Brabazon of Tara: My Lords, I am aware of the speech which my right honourable friend made. It is certainly true that local authorities have significantly under-spent on the provision allowed for them for road maintenance. We increased provision by 15 per cent. in 1986–87 and by a further 13 per cent. in 1987–88. In the year which is now coming to an end local authorities under-spent by £148 million on road maintenance. It is for the authorities to adjust their spending priorities to give road maintenance the priority which we believe it deserves.
Lord Graham of Edmonton: My Lords, does the Minister recall that under this Government the rate support grant to councils has been steadily reduced from 64 per cent. to 45 per cent.? Why do the Government persist in giving to local authorities the impossible choice between maintaining a good road programme, housing, education and the social services? Why do not the Government increase the general rate support grant?
Lord Brabazon of Tara: My Lords, if local authorities feel that they are not getting sufficient provision for other services, that is something which I have no doubt they will take up with the relevant authorities. We are all aware that local roads need maintenance; but we cannot accept that local authorities should choose to spend from that budget what they were allocated for other things.
Viscount Mountgarret: My Lords, is my noble friend aware that there is an undercurrent of feeling in certain local authorities that they might absolve themselves of the responsibility for the maintenance of local and minor roads and leave such maintenance and upkeep to the landowners, occupiers or tenants who use them? Is not this suggestion to be regretted?
Lord Brabazon of Tara: My Lords, there have been proposals put forward to make it easier for highway authorities to close little-used but expensive-to-maintain roads. A consultation paper was issued in 1985, and a wide spectrum of responses was received. These have been carefully considered. It is hoped to make an announcement of the Government's intentions in Parliament shortly.

Mental Health: After-Care
2.54 p.m.
Lord Mottistone Lord Mottistone asked Her Majesty's Government:
Whether they are satisfied that Section 117 (after-care) of the Mental Health Act 1983 is being implemented.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skellmersdale): My Lords, Section 117 of the Mental Health Act 1983 places a duty on both health authorities and local authorities to consider and arrange provision of the after-care needs of discharged patients formerly detained under certain sections of that Act. We believe that there are many good examples of after-care planning in different parts of the country, but elsewhere we understand that this is not the case. We will not be satisfied until there is an appropriate level of after-care for each patient covered by the section.
Lord Mottistone: My Lords, if that is the case, would it not be appropriate for the Government to encourage the regional and district health authorities to slow down the closing of hospital beds for the mentally ill until the Government are sure that aftercare facilities are available for the patients?
Lord Skelmersdale: My Lords, Section 117 does not cover all ex-patients from mental illness hospitals but, as I have just explained, only the detained ones. In March 1987 the Home Office and the Department of Health and Social Security jointly published revised guidelines for hospitals, consultant psychiatrists, social workers and probation officers on the supervision and after-care of mentally disordered offenders subject to a restriction under the Mental Health Act. The revised guidance was welcomed by the Mental Health Act Commission.
Lord Broxbourne: My Lords, does my noble friend accept that, when community care as an alternative to prolonged hospitalisation was introduced in the parent Mental Health Act 1959, it was fully accepted that there needed to be a firm logistical infrastructure for this concept? My noble friend is too enviably youthful to recall these matters at first hand, but will he accept the importance of the points so persuasively brought to the attention of your Lordships by my noble friend Lord Mottistone and reiterate the Government's intention to give this logistical support to after-care?
Lord Skelmersdale: Yes, my Lords, most certainly. I would acid that over the past eight months or so I have been in a position to study the 1959 Act and the proposals and circumstances flowing from it. I reiterate that care in the community as such, which is being studied by Sir Roy Griffiths at the moment, is rather broader than this Question actually implies.
Baroness Seear: My Lords, does the noble Lord accept that care in the community for whatever group we are talking about requires that there should be good local hospitals which can act as day centres, provide respite care and provide short-term nursing care? Why is it that there is so marked a tendency either to shut or to reduce in size local hospitals which have formed part of their community for a long time, which are well supported locally and which are very much loved?
Lord Skelmersdale: My Lords, the answer is, yes, to the first part of the noble Baroness's
178
supplementary question. As regards the second part, district health authorities all over the country are building the facilities that she and I would require them to do.
Lord Auckland: My Lords, can the Minister say what provision is being made in areas where there is a concentration of local mental hospitals? I instance Epsom near where I live and I declare my interest as the president of the friends of one such hospital. Is my noble friend aware that enormous attempts are being made to integrate some of their patients but that there are funding difficulties? Can he say whether any special provision is being made for these areas?
Lord Skelmersdale: Yes, my Lords, in some parts of the country, joint finance is being arranged between local authorities, social services departments and health authorities. In other parts of the country, health authorities give an annual dowry. However, it is most important that nobody should be discharged from hospital without a proper plan for his after-care.
Baroness Turner of Camden: My Lords, the noble Lord referred to the community care review of Sir Roy Griffiths. Would he be kind enough to let the House know when the report is expected? It was announced in 1986 and it was expected at the end of 1987. When will it be published? In view of the general concern about the level of community care, will its finding be made public in order that there can be public scrutiny of it?
Lord Skelmersdale: My Lords, I have very little to add to the very extensive Question Time debate which we had on this subject the other day except to say that my right honourable friend has registered the strong concern of your Lordships that it should be published, and published soon, and is giving the matter his urgent consideration.
Lord Mottistone: My Lords, my noble friend said earlier that Section 117 applied to detained patients. Does he not agree that it applies to people detained under Section 3, which concerns commission for treatment? It is a general requirement and is not just for people who are locked up.
Lord Skelmersdale: No, my Lords, but Section 117 refers to Sections 3, 37, 47 and 48 of the Act. Those sections cover what I might call various grades of compulsorily detained patients.

Comic Relief: Charitable Status
2.55 p.m.
Lord Allen of Abbeydale Lord Allen of Abbeydale asked Her Majesty's Government:
Whether Comic Relief is a registered charity.
The Minister of State, Home Office (Earl Ferrers): My Lords, Comic Relief is not a charity. It is a fundraising company which covenants all its profits to a registered parent charity, called Charity Projects.
Lord Allen of Abbeydale: My Lords, I should like to thank the Minister for that reply, which may perhaps come as a surprise to some. While I have no doubt that Comic Relief ran its recent successful appeal quite properly, does the Minister agree that his Answer highlights the fact that there is at present no effective statutory control over fund-raising activities? Does he therefore agree—and I believe that the organisers of Comic Relief would go along with this themselves—that there ought to be some such provision in the legislation on charities which the Government have promised?
Earl Ferrers: My Lords, in this case the operation of Comic Relief is controlled by both company law and tax law. My right honourable friend is concerned to see that legislation is produced during the lifetime of this Parliament further to control charities.
Lord Mishcon: My Lords, is the noble Earl aware that my grandchildren have been insisting that I was wearing facial additions in aid of Comic Relief when in fact I was not? On a more serious point, is it not the case that criticism should not attach to the conduct of Comic Relief by virtue not only of the fact that, as the noble Earl said, all its profits are covenanted in favour of Charity Projects Ltd., which is a registered charity, but also because no charges are made for fund-raising, which, again, is an example that other charities might well follow?
Earl Ferrers: My Lords, I was not aware of the requirement imposed upon the noble Lord, Lord Mishcon, by his grandchildren. He said that he was not wearing those facial additions. I did not realise that he was not.
With regard to the noble Lord's second more substantive point, this trading company lodges its accounts, which can be inspected at Companies House and which are therefore open to inspection by anyone.
Baroness Gardner of Parkes: My Lords, is the Minister aware that many of us are concerned about charities that do not give sufficient of their proceeds to other bodies for which they are intentionally raising the money? Is he aware of the degree of concern about the number of bodies applying to register as charities, about many of which we have doubts? Is it not time that there was a general review and reclassification of charities into those that are genuine and those that are not?
Earl Ferrers: My Lords, my noble friend is quite right to express concern about the position of charities in general. She will probably be aware that Sir Philip Woodfield carried out an efficiency scrutiny and made a report. My right honourable friend the Home Secretary has accepted that report and intends to introduce legislation during the lifetime of this Parliament to cover many of the points about which the noble Baroness is concerned.
Lord Houghton of Sowerby: My Lords, is the noble Earl aware that the BBC is another very large charitable trust? Its Children in Need Fund is collecting something like £14 million a year but it has
180
no public accountability whatsoever. Can we be assured that in the Government's review of charity law all these matters will receive consideration, particularly broadcast appeals for money, which are probably the most influential and largest collectors of money in the country?
Earl Ferrers: My Lords, I am not sure that the noble Lord was wholly right in respect of his last point. However, I can tell him that certainly one of the matters which is being considered is how best that aspect should be dealt with in such legislation as may be forthcoming.
Lord Allen of Abbeydale: My Lords, can the Minister say whether the Government have yet made up their minds to produce a White Paper outlining what may be contained in such future legislation?
Earl Ferrers: My Lords, it has not yet been decided whether to issue a White Paper.

City of Westminster Bill
Read a third time, and passed.

Social Security Bill
Lord Skelmersdale: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Bill be considered on Report in the following order:

Clauses 1 and 2,

Schedule 1,

Clauses 3 to 8,

Schedule 2,

Clauses 9 and 10,

Schedule 3,

Clauses 11 to 15,

Schedules 4 and 5,

Clauses 16 to 19.—(Lord Skelmersdale.)

On Question, Motion agreed to.

House of Lords Offices
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Dainton be appointed a member of the Select Committee on House of Lords Offices.—(The Chairman of Committees.)
On Question, Motion agreed to.

The Executive Power of Government
3 p.m.
Lord Jenkins of Hillhead Lord Jenkins of Hillhead rose to call attention to the concentration of power in the executive arm of government; and to move for Papers.
The noble Lord said: My Lords, it was our original intention to table this Motion in its memorable, if hackneyed, 18th century form, changing only one word from the proposition which John Dunning carried in another place on 6th April 1780. However, there were some difficulties of procedure which in relation to your Lordships' House I must confess to have not yet mastered. That fact is perhaps not altogether surprising because. I fear, I never learnt the analogous ones in another place over 39 years.
The thrust of our case can be best expressed in those words which have echoed around our political history for the past 208 years: that the influence of the Executive—which I substitute for Crown as no longer appropriate—is increasing and ought to be diminished.
Clearly the case needs to be sustained under two headings. First, is the concentration of power a reality? And, secondly, is it undesirable? I turn first to the factual premise. This country, as its name implies—or at least one of its names, the United Kingdom, so implies—is made up of three or four separate nations which have historically been separate polities. But despite that fact, it is one of the most centralised governments in the democractic world. It contrasts sharply in that respect with Germany, Italy, the United States, Australia and Canada. The two exceptions among countries of approximately our size, or greater, are France and Spain; but both of them are currently making quite strenuous efforts to move in a devolved or regionalised direction.
In my view there is no party point in this argument so far. The centralised position was considerably contributed to by the work of the Attlee Government. Even the Liberal Party, although the first to see the decentralisation light, celebrated its great days by spattering Scotland—not just the cosmopolitan west end of Glasgow but Scotland as a whole—with MPs of Southern or English origin. Most of them then habitually sent letters with "NB" written on them, signifying North Britain. That would not now be thought the most sensitive description for the last line of an address.
Our starting point is to say that at the beginning of this decade there was a hub of government which was unusually heavy in relation to the spokes. Far from any attempt having been made to correct that state of affairs, or any recognition being given to the growing popular hostility—and to some extent throughout the world— to the remoteness and bigness for their own sakes whether in government, companies, hospitals or schools and in almost all forms of activity, this Government have piled Pelion on Ossa and made doubly so a political system which was already over-centralised.
As regards the outlying nations of the United Kingdom, the prospect of devolution which was approached perhaps with caution but also with
182
respect by the noble Lord, Lord Home, and by Mr. Heath has now been virtually extirpated from the thought of the Conservative Party in Scotland. Indeed, that process of extirpation shows some sign of extending to that party in that part of the United Kingdom.
In England any thought of regionalism is equally contemptuously dismissed. But still more seriously, because it is a retreat from such little local powers which exist and not merely the blocking of an avenue of advance for the future, is the treatment of local government.
A generation ago there was a great local government tradition in this country, both in the cities and in the counties. When I became a young MP for Birmingham in 1950 the mantle of Joseph Chamberlain was still as it were hanging in the council house; a part of the raiment belonged to all parties. The town clerk and some of the other principal officers were figures of some considerable, almost austere, authority. They were not only the servants of the citizens but were also the guardians of legality and the near equals of the permanent secretaries in Whitehall.
I fear that the upheaval of 1973 and especially the short-lived innovation of the metropolitan counties did not assist the maintenance of that tradition. The Government's approach in the 'eighties is even worse than that. They have used every weakness of local government as an excuse for making it still weaker and every political extravagance, by a few authorities, as a reason for also penalising the responsible ones and transferring still more power to the centre. The result of that policy has been a degree of civic degradation—I use the word in its literal sense—which it would be difficult to imagine being imposed in any other democratic country.
London is unique among capitals in not now being allowed a unified voice. Paris and Washington were once in that category; but Paris was being punished for the commune, the horrors of which somewhat exceeded those of Mr. Livingstone. Washington was just an artificial government town made out of a swamp. Both cities have full rights today. I do not think that Presidents Mitterrand and Reagan would even dream of just winding up Mayors Chirac and Barry.
It is not just a question of London. The contrast between the puny and now constantly diminished power of our other great cities, for example, Edinburgh or Bristol, and the position of their analogues elsewhere is vast. It is simply unimaginable that the provisions of that rather sad little Local Government Bill which left your Lordships' House on Monday could be imposed by a central government on Mayor Koch's New York, the Hamburg Länder government or on Mayor Chaban-Delmas's Bordeaux.
Are we sure that they are worse governments? Even if some of them were worse, is it not the essence of responsible democracy that people should choose and face the consequences of their electoral choice? Yes, I understand the Government's reply to be: "But that is invalidated by the evils of caucus rule"—a single party commanding an overwhelming proportion of council seats and exercising power authoritatively often on the basis of a minority of the

183
votes cast. That is surely a dangerous argument for a government as dedicated to the maintenance of our present electoral system as are the present Government, especially when their own strength has never been securely founded on popular majorities. However, I do not want to get into national electoral reform arguments today. I end the section on local government with three propositions.
First, many of the local government evils complained of could be ended by making councils more representative of the community as a whole through proportional representation. Secondly, the main national argument against proportional representation, relating to the need for a strong executive, does not apply to local government where the committee system is the negation of that. Thirdly, it is very sad that fear of a possible paving role of electoral reform for local government should lead a government constantly to prefer the curbing of already too small local powers to a broadening of the base from which they are exercised.
The concentration of power to which the Motion draws attention is not only—although it is substantial—a question of geographical centralisation; it shows itself in the Government's attitude to the great independent public institutions in our national life and in the balance of power within the executive branch of government. Among Britain's best known independent institutions are, I suppose, the Church of England, the ancient universities, over one of which I have the honour to preside, the BBC and the House. I am not sure that the Government are fond of any of them today.
To disapprove of one, or even two, may be understandable, but to quarrel with all four at the same time points to a disputatious—one might also say intolerant—disposition. I do not propose to go over those institutions one by one: the House can look after itself; right reverend Prelates can look after the Church; and the BBC has had its fair share of attention recently; but I should like to say a word about the universities before we come to the detail of the Bill after Easter.
Some improvements in the Bill have been announced. I hope that there will be more. But it remains the case that the main thrust of the Bill, insofar as it relates to universities, is to give central government substantially more power to tell them how to conduct their academic affairs. Otherwise, what is the point of that section of the legislation? And if that threat of interference becomes a reality, we can say goodbye to the hope of maintaining in this country universities of the highest world class. There is no field in which central regulation is a greater enemy of excellence than in the organisation of the teaching and research in universities. Furthermore, if it were thought desirable to change the time-honoured relationship between the state and 40 universities, some of them ancient, some of them more recent, but all of them major institutions in their regions, surely the change at least merits a Bill of its own. It should not be tacked on as a type of sidewind to what is essentially a schools Bill.
There is no question of the sucking in of power from local to central government being balanced by
184
the fostering of individual institutions as bastions of contervailing power.
I turn lastly to the concentration of power within the Government. Gladstone regarded his Cabinet colleagues, once appointed, as just as inviolate as a College of Cardinals. Once there, they were there to stay. There was no question of their being removed if their views did not fit in with his. Baldwin's practice 40 years later was not greatly different. I would not pretend that that persisted until the onset of the present Government. Mr. Macmillan once performed a major act of managerial sacking, and the noble Lord, Lord Wilson, kept up interest by moving us around like horses competing in an annual gymkhana. Even so, the present position is extreme.
Since, to our regret. the noble Viscount. Lord Whitelaw, has left us, there are now only three members of the present Cabinet—other than the Prime Minister—who have survived the eight and three-quarter years. But they have all changed jobs. Nor is it the case, as has been so with nearly all the previous peace-time administrations of which I can think, that there are three or four major Ministers in the Government with an independent constituency and authority which gives them a position in the country not vastly different from that of the Prime Minister himself or herself, and which also makes them as inviolate and, therefore, as forthright in counsel, as was one of Gladstone's colleagues.
On the contrary, I have the impression that a greater number of issues and appointments, which I should have regarded as wholly within the prerogative of a senior Secretary of State, are now settled in No. 10 Downing Street.
There is therefore equally no question of a lack of countervailing power outside the Government being balanced by a collegiate equality within their ranks. The case that a high concentration of power has taken place, and is continuing to occur, I therefore suggest is substantially clear. Is it desirable? Can it be argued that that snuffing-out of local initiative; that artillery barrage against non-governmental institutions; that substantial retreat from disseminated Cabinet authority, is justified by the great quality of policy making and administration in which it results? Even if this were so, I would be hesitant about fully accepting the argument.
There is always great danger about sacrificing democracy for alleged efficiency. However, when I contemplate the handling of some of the dominating issues of the past couple of years—the Westland affair, the Spycatcher saga, the emergence of the poll tax proposal from a Cabinet almost none of whose members seem to be in favour of it—I find it difficult to believe that these issues could not have been handled at least equally well in some of our sister but much less centralised democracies. My Lords, I beg to move for Papers.
3.20 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, the House will undoubtedly be grateful to the noble Lord, Lord Jenkins of Hillhead, for initiating this debate on what is undoubtedly an important topic. The terms of the Motion are of substantial width and I look forward to stimulating

185
contributions from the remainder of your Lordships, and not least to the contribution of my noble friend Lord Colnbrook.
The noble Lord has called attention to the concentration of power in the executive arm of government and has expressed alarm, as he sees it, at an unhealthy centralisation of powers in the hands of the Executive. He has called up the spectre of the 1780s to assist him in this. I am bound to say that I do not accept the noble Lord's interpretation of the development of government in this country in the past 10 years.
We are of course not dealing with a federal state. We are dealing with our own state, a very special one— the United Kingdom. The traditional analysis of political power within this state sees it as requiring a balance between the legislative, the executive and the judicial arms of the state. Seen in those terms, I would reject the argument that the balance has swung undesirably in the direction of conferring excessive powers upon the Executive. I do not accept for one moment that the history of the past 10 years has seen a diminution in the effective power of Parliament vi.à.vis the Executive. The noble Lord did not say as much he suggested it; but I reject that suggestion.
I see the most significant development in the functions of Parliament during that period as the establishment, with the blessing of the present Government, of the system of Select Committees whereby the House of Commons is enabled to keep under review the activities of individual departments of state. I believe that these committees have given hack to Parliament an essentail scrutinising role which it had to a material extent lost. Moreover, the Select Committees of your Lordships' House have contributed in no small measure to this success.
I also believe that the power and vigour of your Lordships' House have been in no way diminished during the period under review. I do not accept the noble Lord's point on that matter in relation to what he termed "one of the independent institutions". The willingness and indeed eagerness of your Lordships' House to scrutinise and amend government legislative proposals is well recognised. I suggest that the Government's willingness to listen to your Lordships' views on these occasions is further clear evidence. I believe therefore that the noble Lord's fundamental thesis is misconceived.
At the same time, the regulation of the powers of the Executive by the law and by the courts has been significantly strengthened in recent years by the remarkable development of the concept of judicial review of administrative action. By that means the courts have not hesitated to nullify the effect of actions by the Government and other public bodies which have been carried out in excess of power or in an irregular manner or in a way which indicates an unreasonable exercise of power. New procedures have also been developed which have made it easier for the aggrieved citizen to obtain such remedies from the courts. The independence of tribunals in many cases has been reinforced by removing responsibility for them from the interested department and conferring it on, for instance, my noble and learned friend the Lord Chancellor, in consultation, I would hasten to add, where appropriate, with the Lord
186
Advocate. So much for concentration of power upon members of the Cabinet and their departments.
As regards the machinery of government, we have encouraged decentralisation, both geographically, by relocating offices away from London, and structurally. Within departments the financial management initiative has allowed the delegation of authority to managers at all levels and is an important part of the Government's drive for more efficient and economic use of resources in the Civil Service. Most recently my right honourable friend the Prime Minister has announced the Government's acceptance of the Ibbs Report that to the greatest extent practicable the executive functions of government should be carried out by agencies. Responsibility for the day-to-day operation of each agency will be delegated to a chief executive within a framework of policy objectives and resources set by the responsible Minister. While these agencies will be generally within the Civil Service, there may well be areas in which it is right to consider setting up outside agencies. The Government's aim is for a clear demarcation of responsibilities and the effective delivery of better services to the public.
In sum, I believe that the balance of power between the institutions of our constitution is in good repair and that the checks and balances which are worked into the system operate effectively on the whole.
Various criticisms were cogently made by the noble Lord, but I should like to look at some of the more specific allegations of centralisation of power which have from time to time been levelled against the Government, certain of which have been echoed in the noble Lord's remarks today. The theme of this criticism has been that the present Government have shown dictatorial tendencies by concentrating power in the central government at the expense of local and autonomous institutions. I do not accept that analysis. On the contrary, I see the history of the period since the present Government came to power as a process not of concentration but of diffusion of power away from central government and other overcentralised institutions, whereby that power has been handed back to more manageable units and eventually to the individuals who should be trusted wherever possible with the exercise of choice and decision-making.
The Government's philosophy on diffusion of power and transfer of powers which are not genuinely required by central government is exemplified in their policy of privatisation. This is based not merely on the economic consideration that private enterprise has been shown to be more efficient in the organisation of industry but on the wider considerations that ownership and decision-making should be diffused as widely as possible so that share ownership should become the right not of the minority but of the majority, and that those working in industry should have every opportunity to have a stake in their own industry, whether it be by management buy-outs or by other schemes of employee share ownership, which this government have done much to encourage.
Another important aspect of the Government's philosophy of the diffusion of power is our belief in the marketplace and the price mechanism as

187
fundamentally democratic institutions which, if allowed to operate properly, will effectively reflect the wishes of individuals as consumers. This is a philosophy which in the past few years has, I suspect, come to be accepted by nearly all our political opponents. However, unlike them we have acted to give effect to our beliefs.
The powers which the Government possess in relation to the Monopolies and Mergers Commission and under the Financial Services Act do not represent a concentration of power in the hands of the Executive. They represent safeguards to prevent the undue concentration of power which would prevent the working of the market place and of the price mechanism. The Government have similarly not been afraid to apply these competitive criteria to the newly privatised industries. I instance the decision to allow competition between Mercury and British Telecom in relation to the provision of telephone services. The consumer protection legislation which we have passed and strengthened is another example of the exercise of powers for the purpose of enabling the individual to exercise a freer choice and to have greater protection vis-à-vis the manufacturer and the retailer, in relation to such matters as misleading price references and product liability.
However, the main way in which the energies of businesses and individuals have been liberated, resulting in greater efficiency and greater productivity, has been through our policies of deregulation. These policies are an essential part of our philosophy of returning the control of his business and his life to the individual. The years before this Government came into power saw, as I think the noble Lord accepted, a continuous increase of government intervention in the economy. The noble Lord witnessed the Attlee Government.
This reduced the ability of individuals to take decisions about their lives and about their businesses, and made it more difficult for people to manage and respond to the demands of the market. We corrected this situation by starting a bonfire of controls on prices, dividends, industrial development and foreign exchange transactions. Year after year, we have built on that with numerous measures designed to reduce unnecessary regulation. The drive towards deregulation is not of course an irresponsible free for all. It is subject to the safeguards for competition, consumer protection and so forth which I have mentioned. But each of those safeguards can crucially affect the way in which businesses work. For each item of regulation we must learn to calculate carefully the costs, direct and indirect, as well as the benefits.
The same theme of diffusion of power to the individual underlies our employment legislation, which has given more power to the individual trade unionist by providing for the holding of ballots for the election of union officials and for the purpose of deciding on strike action. The current Employment Bill further reinforces individual rights by establishing a commissioner for the rights of trade union members.
188
Our critics, however, say that in some of the major areas of policy we have unnecessarily concentrated power in the Government's hands. As the noble Lord said, this criticism is most frequently made of our policy in relation to local government. The object of our reforms in this area, however, has been to curb the monopoly powers of local authorities in such areas as education and housing by conferring more power on parents and tenants and, on the other hand, to spread the responsibility for local government, for instance by the introduction of the widely spread community charge payable by virtually all local government voters, as the just concomitant of their right to vote and to enjoy local services.
The noble Lord spoke about local democracy. What could be a better example of true local democracy than that? It is also the duty of government in this field to exercise a reasonable restraint on local government expenditure which forms a substantial proportion of total public expenditure and whose uncontrolled increase could substantially damage the national economy. The noble Lord made reference to New York. I have a recollection of a bankruptcy which was threatened for that city a short time ago. As far as I remember it was the federal authorities to whom the city looked for assistance. I think that at the end of the day that city may have been able to secure the savings which any properly regulated authority should be able to do without the necessity of legislation of the kind which we have found necessary to introduce in order to point the local councils in that direction.
We have also found it necessary to introduce measures which are aimed at curbing the well-recognised tendency to dictatorship by some local political parties in matters such as contract compliance which ought not to be subject to partisan political pressures.
Another area in which the Government are accused of excessive centralisation is that of education which the noble Lord again mentioned. Our philosophy here is that of enabling responsibility wherever possible to be diffused so that individual schools and colleges may exercise their own autonomy within a framework of basic requirements and standards which are laid down by law. That is what lies behind our encouragement of greater participation by parents and teachers in the government of our schools. As regards the important question of academic freedom to which the noble Lord pointed in this matter, particularly in relation to our institutions of higher education, our object is not centralisation but to combine effective control of the large central funds which are provided in this field with freedom for the institutions of higher education to decide their detailed priorities within their allocation and to disburse as they wish funds which have not been received from the Exchequer. It is in order to make these matters clear that my right honourable friend the Secretary of State for Education and Science has agreed to clarifying amendments to the Education Reform Bill, which your Lordships will no doubt shortly be debating.
I have to express a certain degree of surprise at the noble Lord's suggestion that these matters should be dealt with in two Bills. I should have thought that it

189
was perfectly clear that in the field of education, whether it be primary, secondary or higher education, it is proper that the framework should be looked at as a whole and not, as has so often been the case in the past, broken up into two or three parts.
As regards the health service, our whole approach has been to give greater responsibility to local management within the service so that it can have the maximum freedom to manage its budgets within the requirements of its own area.
In the field of housing, our philosophy has been that of attempting to give more responsibility to the individual householder, principally through the right-to-buy scheme which has given ownership to enormous numbers of former council house tenants—a policy which once more has been largely adopted by our political opponents. On the other hand, our policy as embodied in legislation now going through Parliament is to strengthen the rights of the occupiers of tenanted property, for instance by the introduction of tenants' choice which will enable them to choose a landlord in the form of a housing association or a housing co-operative where they are at present unhappy with their relationship with the local authority landlord. This is part of a policy of meeting the demand for good rented accommodation in which the tenants can take a pride.
That pride has been sadly lacking in many cases because of the remoteness and bigness, to use the phrase of the noble Lord, of the municipal housing authorities of which those people have been the tenants. I would use the words of the noble Lord to establish that in this area we arc going along the very line which he urges us to adopt, and far from being a brake upon local democracy that is a true and fundamental attribute of giving back to the individual his right of choice.
Our urban policy too has at times been criticised as a policy of centralisation and of erosion of local authority powers. That is to misunderstand the whole object of the policy, which is to create an effective partnership between local government, local authorities, other institutions such as the Scottish Development Agency, the local community and private enterprise. The schemes of enterprise allowances, enterprise trusts and enterprise training are all directed to this object, and are beginning to show positive and encouraging results, as has been proved in such areas as Corby and Teesside.
I have gone far and wide in order to make perfectly plain this Government's view that they are not a centralising government. The Government are indeed seeking by their measures the liberation of the people from excessive centralised control whether it be by government, by over-mighty subjects in the form of dictatorial local authorities, or unrepresentative trade union leadership. Those are the areas which have been responsible in the past for much of the stranglehold upon enterprise and freedom and which it has been this Government's purpose to replace by an enterprise philosophy based on the exercise of responsibility by the individual.
Looking at the situation in that way, I say that the proposition which the noble Lord has put forward is not only ill-founded but does not accord with the
190
facts of the past 10 years. For that reason, as I said at the beginning, I cannot accept his suggestion that we are seeing an unhealthy increase in the centralisation of government from (as I think he said) the spokes to the hub. The wheel is going round more swiftly because in this case we have been strengthening the rim and the spokes and making certain that the centre is equally well oiled.
3.40 p.m.
Lord Cledwyn of Penrhos: My Lords, the noble Lord, Lord Jenkins of Hillhead, has chosen a subject of the first importance for today's debate. We are grateful to him for that and for his impressive speech, in which he drew on his wide experience in many capacities. We also look forward to the maiden speech of the noble Lord, Lord Colnbrook.
I was disappointed by the response of the noble and learned Lord, Lord Cameron of Lochbroom, whom I respect, because I thought that he spoke with undue complacency. I hope that he will seek to give a more constructive and realistic reply to the charges made against the present Executive when he comes to wind up the debate later on.
As the noble Lord, Lord Jenkins of Hillhead, knows, I was brought up in a part of Wales which has always been wary of executive power and especially of its centralisation. The centralisation of Church and state in London and Canterbury had and continues to have a special significance for us. There were periods when that centralisation was cruel, arrogant and despotic. I am not referring merely to Edward I, the archetypal centralist, but to recent times. A study of the early life of Lloyd George, for example, illustrates the progress that we have made during the last 100 years.
During that period we have gained many vital freedoms, and this year we celebrate a centenary which appears to have been overlooked: we celebrate the great and Glorious Revolution of 1688, but not the establishment of county councils in 1888. Perhaps we may discover the reason for that as we proceed with the debate. But the creation of' elected local authorities with extensive statutory powers 100 years ago was one of the great democratic developments in this country. Furthermore, it was a check on the central Executive. I shall come back to that point in a moment.
The primary check on the Executive is Parliament itself, upon which the government is based. Although this House has shown that it can perform a crucial function, the chief responsibility rests on the House of Commons. The noble and learned Lord should study more carefully what has been happening in Parliament over the past nine years. The well known fact is that if the Government have a large majority in that House, and that majority is manageable and malleable, then the Executive arm becomes very powerful. The scene and all its implications arc so well known to noble Lords that I need not go into details.
In a very interesting hook which he wrote about 10 years ago, the noble and learned Lord, Lord Hailsham, issued a warning. It was a timely warning.

191
He said that "an elective dictatorship" could arise by a government:
"taking advantage of the virtual absolute sovereignty of the House of Commons to behave in a manner which is undeniably antidemocratic"
and sought to carry through changes which affected the whole country on the basis of little or no popular support.
We must look at the actions of the present Government against that background. The Government are in the process of driving through Parliament measures which are in part or in whole highly unpopular. After all, public opinion clearly expressed is or should be another check on the Executive and we ignore it at our peril. It seems that many Members of the party opposite in both Houses are deeply unhappy about the two most contentious measures which are presently going through another place.
I believe that a great test of parliamentary democracy is taking place at the present time. The noble and learned Lord, Lord Hailsham, argued 10 years ago that we had far too much legislation. I fully agree with him and argued that strongly in the last speech that I made in another place. Over the past few years the legislative programme has been progressively overloaded and this current Session is the worst of all. The Government seem to be intent on including all their major Bills in the first Session of Parliament. The guillotine comes down in another place and Bills are inadequately processed when they arrive here. What is our response to this? It strongly confirms my belief in the importance of this House as a revising Chamber and also my strong belief in the bicameral system of government.
Let us remember that since 1979 on very many occasions the Government have been obliged to concede vital points in the Division Lobby or in debate in this House. Given the majorities in the other place this House has proved itself to be the last major check on the Executive arm, and the people of this country have recognised that. Furthermore, I think that the televising of this House has brought it home more forcibly to the general public.
Nevertheless, the current weight of Bills is totally unsatisfactory. It shows a monumental insensitivity to the views and feelings on all sides of the House. The working Members of this Chamber want to do their duty by the public and they feel an intolerable frustration as spring and summer approach. I must give the Government this clear warning. If they look again at the legislative programme they will find Bills that they can defer until the next Session without any difficulty and without any loss of face whatever. Time after time we have seen the Government add hundreds of new amendments to Bills at a late stage causing acute difficulty to noble Lords and no doubt to parliamentary draftsmen as well.
I recall, as will noble Lords, the passage of the Financial Services Bill through this House and the numerous additional amendments of great importance which were brought forward at late stages. Many noble Lords opposite with great experience in the City and industry got up time after
192
time during the Committee and Report stages to protest to the Government at what was, in our view, a monstrous abuse of the second Chamber.
Furthermore, because of this volume of work the Executive is conferring powers, which would formerly have been given in substantive form, by way of orders which are voted on late at night in another place and unamendable. Worst of all, those Bills give Ministers sweeping power to amend or add to provisions approved in Parliament. These developments cause great disquiet, not least among many of those who hitherto have supported the party on the opposite Benches. I refer also to many Conservative councillors who have served local government well thoughout the years.
One of the glories of this country has been the freedom to criticise the Executive of any party. The press and the media are or should be another check on the Executive, but progressively since 1979 there has been a tendency to stamp on those who utter words of dissent or who embarrass the Government. If anyone or any programme criticises the Government one can be sure that the following day Mr. Tebbit will be on the platform castigating them. Then comes a response to Mr. Tebbit—far too ready a response, if I may say so—by the Executive.
The bulk of the press is of course supportive of the Government and I make no complaint about that, but anyone who steps out of line finds himself in trouble. The serious charges made the night before last in Granada's TV programme "World in Action" are extremely disquieting to say the least and call for a public inquiry.
Lord Harmar-Nicholls: My Lords, may I ask the noble Lord—
Lord Cledwyn of Penrhos: My Lords, I must pursue my theme. The noble Lord must make his speech in his own time.
An independent-minded journalist like Miss Kate Adey is castigated and exiled from this country for a time. The BBC is raided and brought before the courts. In what I regard as a great judgment, Mr. Justice Scott referred to those actions as ones
"which could not be achieved this side of the Iron Curtain".
Careful notice must be taken of what so distinguished a High Court judge says.
The noble Lord, Lord Jenkins, dealt quite rightly with local government because it is on that sector that the greatest attack has been made by the Government and where the greatest erosion of local authority has taken place. The elected local council has been described as the greatest political counterweight to the central government. It acts as the alternative channel for democratic participation. If things go on as at present, when Mrs. Thatcher leaves office that local council will be no more significant than the old parish council. It will be collecting refuse, mending the roads and clearing the drains. That is about all that will be left for those elected authorities to do. I say to the House with the utmost gravity that the final effect will be the extension of the power of Ministers, of Whitehall and of the Executive to a degree that is unprecedented in this country in peace-time.

193
In due course we shall receive the Local Government Finance Bill to which both the noble and learned Lord and the noble Lord, Lord Jenkins, have referred. I take a different view from that of the noble and learned Lord. I believe that it is a sinister and anti-democratic Bill. Mark it well, this Bill will put 75 per cent. of local government revenue into the hands of central government compared with 44 per cent. today. What remains will be limited by Whitehall under "poll tax capping." It has been calculated that the Bill authorises 344 cases in which Ministers alone will take decisions. Councils will become puppets at the end of Whitehall's strings.
What is the matter with this Government? There are a few bad councils, and I concede that immediately. They are liked as little by us as they are by the noble Lords opposite. But in recent years the great majority of local authorities in this country of all political persuasions and none have been efficient and responsible bodies.
Let us consider the Government's record towards local government since 1979, which is something of which the noble and learned Lord made great play. There have been 46 Local Government Acts of one kind or another during the past nine years. There have been 2,730 pages of local government legislation during the past nine years. There have been 12 major changes in local government financing during the past nine years. Slowly but surely the Government have undermined the confidence of men and women of all political persuasions who have served their communities well. They have done it and continue to do it against the wishes of all the organisations concerned which range from the churches and voluntary organisations to the CBI, the TUC and local authority associations.
The noble and learned Lord also referred to the Education Reform Bill which this House will receive in due course. I support what the noble Lord, Lord Jenkins, said about the universities, but in reply to the noble and learned Lord I should like to deal with another aspect; namely, the powers that are acquired by the central government under that Bill. There are at least 184 new powers of which only five are subject to the affirmative resolution procedure; 161 are negative; three of them are subject to parliamentary scrutiny by Committee only and 15 are subject to no scrutiny at all. That is not democracy, my Lords.
Again, under the national curriculum, school subjects for the first time will be specified in legislation and subject to variation by the Secretary of State by order. Attainment targets may be specified by the Secretary of State by order. The advisory bodies on the curriculum and on testing are to be appointed by the Secretary of State and have to comply with his directions. That is not democracy, my Lords.
Another subject is grant maintained schools. There is power under the Bill for the Secretary of State to approve without reference to set criteria the opting out of schools from the local authority system, without even a requirement to consult or to take account of public objections. That is not democracy, my Lords.
194
I hope that the noble and learned Lord will take advice and look again at this Bill before he replies to the debate this evening.
In 1973 the party opposite legislated to reform local government and there are some noble Lords present who had responsibility in government at that time. It was not a particularly successful operation but at least it was an attempt to reform local government. The Government are not now reforming local government; they are launching a blatant assault on local democracy and it is the executive arm which gobbles up the powers. To add insult to injury the Government have not thought fit to hold proper consultations at any stage in this major operation. Consultations mean informing people, discussing proposals with them and listening to them and then drafting legislation. This Government have driven a coach and horses through our traditional procedures. I am apprehensive because I do not want any government to make things easier for a possible future government of the extreme Left or extreme Right to get their grubby hands on the levers of power in this country. I do not believe that the Prime Minister or her Ministers wish to see such a development; indeed, we all recoil at the very thought of it. However, the cumulative policies of this Government may lead to it gradually and unobtrusively.
A book called The Coercive State was published last week. In that book it is argued that the decline of democracy and the consolidation of a more coercive state may well continue unnoticed. Members of this House, of all parties or none, and indeed the Government themselves, must reverse this trend before it goes too far.
Lord Harmar-Nicholls: My Lords, before the noble Lord sits down perhaps I may refer to that section of his speech in which he said that the government executive had interfered with criticism from the press and other media. Is he saying that the Government ought silently to accept unfair and damaging criticism when they believe that it is to the detriment of the country?
Lord Cledwyn of Penrhos: My Lords, what the Government ought to do through Ministers is to reply in the normal way as all politicians have done over the years.
3.59 p.m.
Lord Colnbrook: My Lords, every newcomer to your Lordships' House must be impressed by and be grateful for the kindness and courtesy shown by everybody, as I am impressed and grateful. I hope perhaps that that courtesy will be extended one step further this afternoon while I address your Lordships for the first time.
The noble Lord, Lord Jenkins of Hillhead, in moving his Motion drew our attention to a variety of ways in which he believed that the power of the Executive over the citizen is increasing. I am not sure that I can go along with every detail of his analysis but, since it is my business to avoid too much controversy this afternoon, I shall content myself by saying that I am sure he will agree with me that our

195
Government fall a very long way short of that most evil of all forms of government—dictatorship.
Over the centuries the world has suffered, and "suffered" is the right word, under a seemingly endless series of dictatorships—call them what one will: absolute monarchies, autocracies, tyrannies, police states and everything else. They all have three things in common: the will of the dictator brooks no criticism; that will is imposed by force; and the dictator can be removed only by force. That is no picture of this country.
It may be said that our Government are authoritarian. They have the authority of Parliament, freely elected by the British people in a secret ballot. It is my belief that it is a government's duty to use their authority for the public good. We can argue about what constitutes the public good, but I do not believe that many of your Lordships would wish to argue with the proposition that a government with authority should use it. We have all seen weak governments—governments with authority but without the will to use it—we have seen the trouble that that brings.
The noble Lord, Lord Jenkins of Hillhead, spoke of the way in which he believed that the balance between the power of central government on the one hand and of local authorities and the citizen on the other has shifted. It is my belief that that balance is always shifting, sometimes one way and sometimes another.
Perhaps I may give two recent examples, one in each direction. Over the last nine years, as my noble and learned friend Lord Cameron of Lochbroom reminded us earlier, we have seen a very considerable amount of denationalisation of industry. I know that the "in" word is "privatisation" but I think it is a very ugly word and I wish that somebody could think of a better one. That action must have reduced the power of central government which, while the industries were in public ownership, spent millions of man hours overseeing every detail of their operations, scrutinising every aspect of their plans for the future, arguing over every item of proposed capital expenditure, and having the power in the end to say yes or no. That power has virtually gone.
On the other side of the scale, 16 years ago Her Majesty's Govenment made a vast extension of their powers over the lives of 1½ million of our citizens. As your Lordships' know, for two and a half years I was Secretary of State for Northern Ireland. While I held that office, I exercised, as my predecessors had done and as my successors are doing today, all the powers previously held not by the Government here in London but by the Stormont Government and by the local councils—a greater range of powers than that held by any other Secretary of State. That was, and is, a very considerable concentration of power in the central government. I said then, and I say again now, that this is not a desirable system of government for a part of the United Kingdom in the long term, however much it may be necessary, in default of any agreement on an alternative, in the short term. Whichever way the balance has gone, and whichever way it may tilt in the future—as tilt it will—we are peculiarly blessed in this country by the actions of our
196
ancestors in creating very slowly, over more than 700 years, with mistakes and setbacks, the institution of Parliament.
It falls to me from time to time to lecture to young civil servants about Parliament and how it works. I always start my talk by telling them that Parliament is, and was designed to be, a nuisance to the Executive—to them. Governing the country, which is what civil servants do under the direction of Ministers, would be a lot easier if Parliament did not exist and there was no necessity for them to seek approval for what they want to do and to subject themselves to scrutiny of what they have done. However, we do exist; and we do those things.
As times change so do our methods of operation change. Your Lordships will know, as I do not, what changes have taken place in this House over the years. However, I am told that things have changed, and I have yet to meet anyone here who tells me that he believes that your Lordships' House played a more effective role 40 years ago than it does today. Whatever the reason, this must be to the good.
The other place has also changed. Some while ago there was a feeling in the country that Members of the other place acted too much as a rubber stamp to the wishes of their party leaders and that the proper detailed scrutiny of the Government's action was lacking. A commmon belief was that this was because of the machinations of those sinister characters, the Chief Whips. I do not think that that is entirely true and I hope that your Lordships do not regard me as particularly sinister, any more than you do those other Members of your Lordships' House who held the same office. However, be that as it may, as we have been reminded earlier this afternoon, nine years ago, on a Motion moved by my noble friend Lord St. John of Fawsley, the other place agreed to a series of departmental Select Committees charged with the duty of scrutinising any action, or inaction, of any government department, and to do so in public. I believe that this step, although certainly a nuisance and occasionally an embarrassment to the Government, was wholly beneficial for Parliament to carry out the role that the public expects of it.
I have referred to changes that have taken place. There will be more. One is coming very soon, now that the other place has resolved to admit the television cameras—a decision that is hound to make a difference to the way in which it conducts its business. What the other changes will be I cannot tell. I hope that noble Lords will acquit me of any desire to urge change upon your Lordships' House, let alone to say what that change might be. To do so would be a piece of high presumption on the part of so new an arrival and I plead not guilty to it. I say only this. If, in the future, there is a greater concentration of power in the hands of the Executive, the greater will be the need for the use of that power to be subjected to scrutiny and control. Parliament is the instrument created centuries ago for that purpose. Parliament has always sought to equip itself with the means to carry out that duty effectively. I hope and believe that Parliament always will.
4.8 p.m.
Lord Grimond: My Lords, it is a very great pleasure to have the opportunity on behalf of all noble Lords to congratulate the noble Lord, Lord Colnbrook, on a most notable and interesting maiden speech. I cannot quite claim him as a kinsman but we have a vague connection by marriage. However, that is not his only claim to fame. He has had a long and most distinguished career in politics and is entitled to address your Lordships' House with peculiar knowledge of government. He has followed that career with extraordinary dedication to the public interest.
I notice that it is very often the custom of those who congratulate maiden speakers, having complimented the maiden speaker on his speech, to pass on to quite different matters. However, it so happens that I should very much like to follow up some of the points which the noble Lord so ably made in his notable speech.
For instance, he spoke of the certainty that we are not threatened by dictatorship, and there I wholly agree with him. Of course we shall not be threatened by dictatorship so long as people like the noble Lord are in charge of government. However, I believe that the noble Lord. Lord Cledwyn, had a point when he said that, whatever happens now, the danger may be that shifts in the present parliamentary procedure may in time lead to a situation in which the government of this country become more extreme and will take advantage of the movement away from parliamentary control.
The noble Lord also spoke of his experience when lecturing to civil servants. He told them that Parliament is set up to be a nuisance. How right I believe him to be and how often that purpose is forgotten. The House of Commons, at any rate, does not exist to rule this country but to stop it being ruled too much. It should prevent the Government from taking too much power and make sure that the Government do not pursue their own interest at the expense of that of the public. All governments come to believe that their interest is the public interest, and all governments are wrong. The foundation of the British system is that government needs watching: that it becomes an interest on its own and needs to be controlled. It is to that issue that we need to direct our minds today.
I believe that Parliament has lost a great deal of control over government. I do not believe that that has been rectified by the setting up of select and specialist committees. I wholly agree with the noble Lord, and with the noble and learned Lord the Lord Advocate, that such committees are important and play a useful part in government. However, they are not the same as a powerful House of Commons, or even a powerful House of Lords. As have many Members of your Lordships' House, I have sat on such committees and know that one comes to sympathise with the Ministers. One travels round the country with them examining problems and one sees the difficulties of their job. However, it is not the job of Members of Parliament to sympathise with Ministers. They are sent to Parliament to keep a watch on Ministers, to make a nuisance of themselves
198
to Ministers, and to tell them that if they do not like their job or cannot do it they should go.
I believe that the development of specialist and select committees must be watched. It removes from the floor of the Chambers of Parliament a great deal of interest and power. It means that Members of Parliament become specialists instead of representing their constituents, who have suffered greatly from the bureaucratisation which we have seen in all arms of government. More and more of this country claims to be run by bureaucrats and by people who understand a narrow field of a particular expertise. I am not at all sure that the development of the equipment of Members of Parliament, with research workers and all the paraphernalia of modern offices, has been wholly desirable. It has meant that they spend their time examining White, Blue and Green Papers and in looking forward to the time when they become members of government or write hooks. It diverts their attention from criticising the Government, making a nuisance of themselves and representing their constituents.
I believe it is true that Parliament has largely lost control of public expenditure. In the light of the payroll vote, and the number of people in Parliament representing interests, it no longer provides the general representation of the country that it once did.
The noble and learned Lord the Lord Advocate referred to judicial review, which is a most important development. I understand that, so far, judicial review applies only to administration. I believe that what are to me new concepts, such as natural justice, are applicable only to administration. The people of this country are interested not only in administration but in the substance of legislation. I understand that judicial review in no way covers that aspect.
I believe that Parliament has largely lost control over the examination of legislation. The noble Lords, Lord Colnbrook and Lord Cledwyn, and others have pointed out the important work carried out by this House in the scrutiny of legislation. I believe, however, that that should be carried out by democratic representatives. It is not good enough that the Government should pour out immense quantities of ill-drafted legislation, push it through the House of Commons with a guillotine, and then expect your Lordships to put it right. That is not a good development of the democratic system.
The fault lies with the Executive. It produces far too much legislation which is far too badly drafted and it has now come to the conclusion that anything that goes wrong can be cured by more legislation. I recently discovered that when I entered Parliament the annual statutes were about one inch thick. They are now almost six inches thick, and I have no doubt that this year they will be eight inches thick. They were then contained in one volume. They are now in two or three volumes, and I have no doubt that soon they will be in four or five. That is a total misconception of how the country should be governed.
The British system of government has always allowed the Executive great power. As has been said, between elections it may be described as an "elective dictatorship". However, in our system of government

199
that has, to a great extent, been offset by what may be called the "convention of the constitution". The respect for minorities is extremely important. There has never been a doctrine in British government that the will of God is the will of the majority. In this country majorities have always been sensitive to the needs of minorities but I now sense that that is diminishing. Today governments believe that once they have a majority in Parliament they are entitled to override minorities and different views. I regard the growth of that belief as extremely grave.
Our system of government has also been greatly affected by, and has much benefited from, the existence of our independent institutions; from the respect in which they were held and from the power which they wielded. Foremost among them have been the law and the universities. Recent decisions about the pursuit of Mr. Wright and the prosecutions in Northern Ireland have done great harm to the law of Great Britain. Whatever one thinks about their justification, they have undoubtedly weakened the law in public opinion and respect and have brought it into some ridicule.
That is one of the most serious things which this Government have done. If they say that they have not done so, my reply will be that the public regard the actions of the legal authorities in such matters as being inspired by the Government. They may be wrong but, as noble Lords know, it is not only important that justice should be done but that it should be seen to be done, and in a way that people can understand.
Such events have led to the possibility of removing from the Government those who are the ultimate prosecuting authorities; the law officers. I do not believe that people will understand that the law is independent while looking back on recent events and considering the law's close relationship with the Government. Most people are becoming afraid that the basic tenets of the law—personal responsibility for one's actions and equality before the law— are being disregarded.
I have said that I believe that judicial review extends to administrative actions. Although I have not previously been much in favour of it, I also believe that the time is approaching when we need a Bill of Rights. If the power of the Executive continues to grow in the way it has, we must put a long-stop into the system. Until now I have regarded Parliament as being the guardian of our rights but now I am not sure that we do not need to reinforce Parliament.
In my view, among our great institutions are the universities. The noble Lord and the noble and learned Lord the Lord Advocate have said that the Government do not intend to interfere with the independence of the universities. But they are taking power to do so. I know they say they will not use it, but candidly. we have heard that before. Other governments of course may use it. If they are not going to interfere with the universities, why are they introducing these parts of the Bill? As my noble friend Lord Jenkins of Hillhead has said, it is really one of the most serious examples of the expanding power of the Executive.
200
Everything the Government say leads me to suppose that they regard the universities as their servants, to do what they feel is right and what they interpret as the public interest. At the moment they feel the most important thing is that universities should turn out skilled workers for industry. I do not believe that is the great need of this country at the moment. The need at the moment is that the universities should be independent centres of learning, criticism and judgment, and that they should not be put under leading businessmen and industrialists. For instance, I cannot think that the directors of Morgan Grenfell and so on are really suitable people to be put in charge of university funding. I trust that my noble friend is not a director of Morgan Grenfell! Quite clearly, in my generation what has been needed in the universities is this drawing together of knowledge and this criticism of how the country is behaving. They should not simply become technical colleges.
Finally, I should like to say a word about Scotland. Whatever may be said about the rest of the country, the noble and learned Lord the Lord Advocate must be well aware that although he may think this Government have some mandate (as it is called) for England, they have no mandate whatever for Scotland. They are showing no sign that they appreciate that. For instance, to my mind it is extraordinary that they should inflict the community charge upon Scotland before they impose it in England. It is quite clear that a huge majority in Scotland are against it, but the Government have paid no attention whatever to them.
In a previous debate the noble Lord, Lord Morton of Shuna, who is to speak later today, drew attention to the gross under-representation of Scottish institutions in this House and in government generally. Again, so far as I can see, no attention has been paid to that. So I say to the Government that if they want to refute the charges that have been made today, they must show more consideration for minorities. They must show that they really wish to encourage and maintain the complete independence and strength of our institutions and they must strengthen Parliament, however inconvenient that may be for the Government.
4.23 p.m.
Lord Donoughue: My Lords, we shall all wish to thank the noble Lord, Lord Jenkins, for raising this very important issue—one which I feel is most appropriate to the style and intellectual quality of this House. I should like also to congratulate the noble Lord, Lord Colnbrook, on his maiden speech. We know that apart from having a distinguished record in Northern Ireland he was one of the great magicians of the Whips' Office, persuading many intelligent men to support what deep in their hearts they knew was wrong. We know that, with his renowned charm and fairness, he will often do the same to us.
What are we discussing today? It is not an academic essay on constitutional theory. We are considering the practical working of government in Britain and its effects on the daily lives and liberties of British citizens. Having said that, however, I think it needs an historical context; it needs to be set within

201
Britain's constitutional history. As your Lordships will be aware, Britain has not suffered any major revolutionary change following a written constitution, as the Americans have, formally to protect liberties and to entrench a version of democracy. America did that, following French theories, through the separation of powers which, as every schoolboy knows, restrains the Executive by means of a separate and independent legislature and judiciary.
In Britain, we do not have that separation and that formal protection. We do of course still look to the legislature and the judiciary and, more recently, to the media and the democratic electorate as the countervailing powers to protect us, as citizens, from what in the 18th century they called the over-weening Executive. Our constitution is unwritten; it is not codified; it is flexible. It does not give guarantees and the Executive remain closely linked to the legislature and the judiciary.
That flexible constitution can of course be worked in various ways and the scope is there for an Executive with the will and the instinct to extend their powers and to abuse that loose consitutional framework. The noble Lord, Lord Jenkins, referred to John Dunning and his famous resolution of 1780. I was tempted to say "I remember it well"—having, a quarter of a century ago, written a small book on Lord North, who was Prime Minister at the time when John Dunning was so concerned. Though I will accept that perhaps not all your Lordships have read the book, I feel you will believe me when I assure you that Lord North was not an executive tyrant. Today, by comparison, we might look back and say "We should be so lucky".
Staying with history, I should also like to take up the reference made by my noble friend Lord Cledwyn to the glorious revolution—not so glorious, many of us would feel, but, even so, a response to excesses of the Executive which had the consequence of the beheading of one Stuart chief executive and the dethronement of another. The settlement which followed that had the effect of restraining the Executive and of ensuring parliamentary independence. I am not one of those who share the view that the present Prime Minister warrants such treatment yet, but I think this Executive should be cautioned to watch its step and their neck.
The noble Lord, Lord Jenkins, has made the arguments on the over-weening Executive, but one can say that it is partly a question of Executive and Prime Ministerial style. Different executives conduct themselves differently, with more or less authoritarian tendencies, and the British nation tends to survive. I was lucky to serve two Prime Ministers, the noble Lords, Lord Wilson and Lord Callaghan, and they showed differences of style. However, each shared deeply democratic instincts and sought consensus within their Cabinets and across the country. I believe that Mr. Heath and the noble Lord, Lord Home, did the same earlier. They headed executives without expanding the Executive's constitutional power, and they did not upset the constitutional balance to the detriment of the non-executive parts of government.
202
The question now is whether more recently, as the opener of this debate argued very strongly, we are reaching a more dangerous point. Certainly we have an executive style that is more aggressive. I concede that is not wholly a bad thing, especially remembering the problems that we suffered a decade earlier and particularly in 1979. So one understands those instincts; but I believe it is a question of degree. One might say that executive styles change; Prime Ministers learn; they get tired; the iron rusts and they prove mortal. And it is of course a great virtue of our democratic system that it provides for natural change and renewal. We do not need a glorious revolution to retire the present Prime Minister, or any subsequent ones. Time, the electorate and the 1922 Committee will all do that for us. However, that does not mean that we can complacently wait that long, although there are no immediate problems beyond style.
I believe that there are tendencies—I put it no stronger than that—within the present Executive which are a cause of great concern. They require immediate restraint now or damage will be done to our democracy. Because we have a flexible constitution that depends upon conventions and customs and often upon political courtesies, it is very important that no new, less delicate conventions are established setting precedents for excessive power in the future. That is what can damage our democracy and our liberties. I remind the Government that there is an obligation on governments to hand on our democratic heritage in healthy order.
To be more specific, I wish to draw attention to three areas of executive excess that particularly concern me. Each touches upon a part of that delicate constitutional balance that ensures the democratic dimension of our policy. The first was referred to in strong terms by the noble Lord, Lord Jenkins of Hillhead. It concerns the balance within the Executive between central and local government. The broad thrust of recent government legislation has been to centralise functions and powers by emasculating local government through changes in finance, education, ancillary services and so on.
Many of us understand the irritation that Ministers have felt at certain local lunacies. I lived in Camden for 20 years. The need there, I believe, was repairs to the system—not to diminish and humiliate local government. I have never believed that the man in Whitehall knows best. I think that, in their hearts, many noble Lords on the Government Benches do not believe that either. The majority of British local government constitutes a constitutional treasure, something which many other countries envy and which is still crucial to our plural democracy. I think that damaging it and building excessive power into the central Executive is wrong. For the historians, it is ironic to see a Conservative Administration as an agent of centralisation, diminishing local and individual liberties in ways and to an extent that must evoke the humourless sympathy of some of my former Stalinist colleagues in the Camden Labour Party. To diminish local government is simply to diminish our democracy.
Secondly, there is the increasing use of patronage, centralised in Downing Street, to support the ruling party and to eliminate alternative views from places

203
of influence. We all know that patronage, from which some of us have benefited, is a necessary oil in the machinery of government as well as rewarding and giving pleasure to many deserving citizens. But the recent trend has been excessively partisan. The dangers are clear. One is that it sets precedents for future Administrations. I am bound to report that the two Prime Ministers for whom I worked seemed strongly aware of a tradition that patronage was spread and that people of ability were not disqualified for the views they held. I heard them individually express those views when resisting the attempt to advance individuals with party but no other qualifications. That is, I believe, the right approach. It would be a great pity if we moved to an American kind of situation in which such patronage rewards are confined to party colours.
More immediately, patronage within Parliament is one of the factors destroying our independence by guaranteeing executive dominance on every issue. Let us take this Chamber. My noble friend Lord Cledwyn of Penrhos argued the case most impressively. Recently, the House—ironically, if you like as a non-elected chamber—has fought a rearguard battle to impose some parliamentary checks on the Executive and so exercise the historic function of the countervailing power. I feel increasingly that massive elevations opposite, each one of whom. I must say, we welcome individually, have snuffed out that slim flame of independence. There is a danger that this Chamber becomes a mere processor of executive legislation as, indeed, another place has already become—to such an extent, in my view, that it can be rescued only by proportional representation.
Parliament, except in those few instances of a hung Parliament, now rarely performs its traditional function of a countervailing check and balance to the Executive. The reality is that, through an electoral system that converts minorities of votes into a massive majority of seats in the Commons, through tight whipping and a parliamentary system that eliminates independent voting and through patronage that guarantees docile parliamentary majorities, Parliament is now in fact a subject colony of the Executive. It is part of the "elected dictatorship" of the noble and learned Lord, Lord Hailsham of Saint Marylebone.
Finally, like other noble Lords, I am concerned about a development less tangible but perhaps more sinister; that is, executive intervention to suppress alternative political and social opinions. Various manifestations of this have already been referred to: the attempts to suppress books, newspapers, leaking civil servants and so on. Usually the excuse is security of state; usually the true motive is to avoid embarrassment to the Executive. The suppression of diverse and uncomfortable views is an authoritarian tendency. I take the point of the noble Lord, Lord Grimond. Where the judiciary seems to be acting as an enthusiastic instrument—one notes that the noble and learned Lord, Lord Havers, presented a very commendable alternative approach during the Westland affair—and where the judiciary is seen as too closely associated with the Executive in such enterprises, it reminds us why the United States
204
constitutional creators in their wisdom decided to keep their judiciary separate.
In this context I refer to the harassment of the BBC, which I see as particularly unfortunate. The institutions of the media, and the BBC especially as the senior one, are crucial in our democracy for educating and informing our democratic public. We understand why governments and prime ministers feel that the BBC is biased. When I was in government we were totally convinced that the BBC was biased and full of Right wing propagandists. We therefore understand why the present Prime Minister is convinced that it is biased and full of Left wing propagandists. The BBC and all the media channels should be supported in performing the essential democratic function of upsetting prime ministers of all parties. I have great faith—I do not share some of the views expressed recently on television—in the new chairman and the vice-chairman who are known to many of us. They are their own men. They will need the support of Parliament against an intolerant Executive.
We have a constitution which protects liberties from a predator Executive only through conventions and a shared democratic culture. Those conventions and that culture arc proving fragile. Centralism and the concentration of central executive power have gone too far and should be diminished. Parliament has the historic obligations but not the power to rectify that. The reality is that we must appeal to the Executive themselves. Our democracy depends upon tolerance of diversity and a balance of plurality. The executive should demonstrate more often that they understand that fundamental truth of British history.
4.40 p.m.
Lord Joseph: My Lords, I agree with one comment made by the noble Lord, Lord Jenkins, in his speech, but not much else. I agree, sadly, with him that governments in north-west Europe seem to have been better governed than we have since the last war.
I thought that the noble Lord, Lord Jenkins—and I say this even though he is not in his place—was wrong to quote in support of his theme the great names of Dunning, Gladstone and even Baldwin. He failed to point out what, of course, he knows very well-that since the time of Dunning, Gladstone and even Baldwin there has been a totally unimaginable extension of government. All those three individuals would have been stunned to find how overgoverned we are. In fact—and I have said this often outside Parliament—in my view we have been for the past 40 years overgoverned, overmanned and overtaxed. It may be a coincidence that during those 40 years we have suffered relative economic decline and we have certainly suffered grave disappointments; for example, in education, housing and law and order.
It is not now an eloquent Back-Bencher, as Dunning was, who proclaims that government should govern less; it is now Conservative governments themselves. Since 1979 governments, both in their previous existence as an Opposition and in office, have declared their intention to reduce and improve government. It is a paradox and an irony that in many cases in order to reduce government one has to legislate; and your Lordships' House has

205
suffered some of the implications of that. However, governments since 1979 have declared their aim to withdraw government from areas where it should not be involved and, where it legitimately remains, to improve the effectiveness of government in the service of the citizen.
Governments since 1979, moreover, have rejected explicitly the previously prevailing illusion that governments could on their own and by their own efforts achieve the good society. Of course it is for government to set the framework of law, taxation and safety nets, but it cannot be for the Government by their own efforts to create the good society. I hope that many of your Lordships, particularly perhaps the right reverend Prelates, agree with that proposition.
1 have said outside Parliament that it has been one of the causes of our problems that the very first words that a British baby is apt to be taught to utter are that "The Government should do something about it"! However, there are many problems which the Government cannot solve. Governments can create the framework, yes.
Therefore, I turn to some of the catalogue quoted by the noble Lord, Lord Jenkins, and some noble Lords who followed him, in the case against the Government. First, I refer to the treatment of local authorities. It is unthinkable that cities in north-west Europe should have behaved as some of our cities have behaved in this country and I entirely accept the assertion by the noble Lord, Lord Cledwyn, that the behaviour of some of them did not appeal to him either. Of course I accept that.
I quote from an article in the New Statesman of 5th February 1987:
"It is shameful for municipal socialists that it has taken Tory legislation to force them into examining their council record as service providers".
Governments do not embark—and I say this to the noble Lords, Lord Cledwyn and Lord Donoughue—upon the sort of struggle with local authorities to control public spending from mere pleasure in legislating. The noble Lord, Lord Cledwyn, referred to 49 Bills. No government embark upon that for pleasure. Governments want to be loved, if only because they want to be re-elected. What governments were trying to do was control public spending so that we could get inflation down and employment up.
I ask your Lordships to consider what local authorities have presided over. They have presided over a grave decline—no; that overstates the case—a grave disappointment in the standard of education for most children going through our schools and certainly of those who most needed education because their homes were least supportive. It is the average and the below average child who has most needed help from schools and who has most suffered by the standards that are available.
I should like to go on about education. We shall argue about government policy towards universities—we shall certainly argue about that when the Education Reform Bill reaches this place—but I do not think your Lordships should be convinced at this stage that everything in universities
206
should remain exactly as it is at any rate while universities are so largely financed by the taxpayer.
Within the field of education I am sure that many polytechnics are rejoicing that the Government's legislation proposes to free them from the shackles of local authorities. I am sure that there are many people in the country rejoicing that the budgets of schools will be for decision by the governors. I am sure that many people in the country will rejoice when opting out from local authority control and into virtually a maintained status by grant becomes possible. Are those policies centralising?
No speaker in this debate has referred to one of the great acts of liberation from central control that governments since 1979 have introduced. When the Conservative Government came into office pay was controlled, prices were controlled, dividends were controlled and there was exchange control. We have abolished all those four controls. Is that centralising? I note that the noble Lord, Lord Jenkins, is associated with a party manifesto that proposes to bring hack a form of incomes policy. I might fairly ask the noble Lord: is not that centralising?
My noble friend Lord Colnbrook, in his effective maiden speech, referred—I want to emphasise his reference—to the denationalisation programme of successive Conservative governments since 1979. Fifteen major businesses employing in all over two-thirds of a million people have been removed from executive control by the Government. Is that centralising? Then there is the deregulating policy systematically pursued by government—not as effectively as some of us would wish, but that is the target— and I do not think that previous governments can point to that aim. Is that centralising?
Is it centralising that another manifestation of local authority mismanagement—namely, council housing estates—had their gates opened by Tory legislation with a million families choosing to become owner-occupiers? We have had Tory governments seeking—again not yet fully effectively— to expand the rented housing market so that citizens should have more choice. Is that centralising?
I refer to industrial relations. There was once a time when the newspapers were full of references to negotiations at No. 10, with beer and sandwiches; but not for nine years. Is that centralising? What about the return of trade unions to their members so that the dictatorships of some trade union leaders were shattered? That is to the credit of government since 1979. Is that centralising?
I believe that there is plenty to worry about. Your Lordships will know that I am particularly concerned with educational standards, productivity and other problems. I say to the noble Lord, Lord Donoughue, who has just spoken, when he indicts the lack of parliamentary control over the Executive, that it would be a help if Her Majesty's loyal Opposition had a coherent set of policies. It would help if instead of just agreeing with the Government's policies—belatedly—about much trade union reform and the sale of council houses it was to bring itself either to agree with the rest or to state rational alternatives to them. I do not find that the party to which the noble Lord, Lord Jenkins, now belongs is

207
much more coherent in its presentation of alternatives.
I say again that there is plenty that is worrying, but the desire of government to reduce the power of the public sector and to give power back to the citizens, even via legislation, is not one of them.
4.51 p.m.
Lord Walston: My Lords, first, let me congratulate the noble Lord, Lord Colnbrook, on his admirable, well-informed and non-controversial speech. Perhaps a short sojourn in the Eastern Caribbean has somewhat mellowed his outlook. I am glad that he has not lost entirely the effects of the sunshine there. I also give my very genuine thanks to my noble friend Lord Jenkins of Hillhead for giving us an opportunity to discuss this enormously important subject and for introducing it in such an admirable manner. His speech was scholarly, non-partisan, far-sighted and painted on a very wide canvas. It gave a ideal send-off and opening to this important debate.
I wish I could say the same of the speech of the noble and learned Lord the Lord Advocate. Frankly, I was disappointed in it. I had hoped that he would have approached this matter in the way that the opening speaker had approached it; namely, on a broad and non-partisan basis. Instead he gave us a very able defence of government policy over the last eight years. It was an able defence, as one would expect from an advocate with his experience. I am sure we shall hear that frequently again as we have done in the past, but on more appropriate occasions. I repeat that it is a disappointment to me that he missed this opportunity of entering into the general spirit and looking at this matter not in a party-political manner, but from the point of view of decades and generations.
We in this country, and particularly in this peculiarly undemocratic House, have very great pride in British democracy. We talk with reasonable and quite justifiable pride of the Mother of Parliaments, the Westminster style of democracy and so on. We are proud and happy when we can see attempts to reproduce the Westminster style of democracy in other areas with very different traditions. Sometimes it has worked and sometimes it has not. It is helpful and salutary for us sometimes to stop for a while and ask ourselves "What is this democracy that we have? Is it a true and genuine democracy; has it ever been a genuine democracy?" I speak with diffidence among distinguished historians who have already spoken and who are going to speak. I suggest to your Lordships that the nearest approach that we made to a genuine democracy was in the latter half of the 19th century. However, one has to admit that even after the Reform Acts we were still a very long way from having anything approaching universal suffrage. At that time the franchise was very restricted.
As the noble Lord, Lord Jenkins of Hillhead, pointed out so rightly, the Cabinets of those days were genuine colleges of equals with the power, strength and the initiative which came from them. Now we have something very different. While in no way casting any blame on our present Prime Minister, it is significant that increasingly one finds
208
newspapers and even radio and television, referring to "Mrs. Thatcher's Government" rather than to "Her Majesty's Government". I think that is significant.
I suggest to your Lordships—as the noble Lord, Lord Grimond, has already pointed out—that in the heydey of parliamentary democracy the power of the party and the power of the Whips was minimal compared with what it is today. Back Benchers in Parliament in those days with all their faults—and they had many of them—had a very great measure of independence. They had not only financial independence but also independence from party organisations. They were their own men.
Even as recently as the early 1950s—or was it between the wars?—one of the Members of your Lordships' House who attempted and succeeded in entering the House of Commons for a northern constituency, did not wish to spend the whole day talking to party officials in the constituency which was looking for a candidate. He told them that he would take the express from London to the nearest main-line station and if they cared to meet him in the first-class waiting room he would talk to them until the express bound for London came in and took him back to where he wished to be. In other words, he was independent to a very large extent—perhaps to too great an extent—of his local party.
Today that kind of thing is impossible. It is the party organisation, the Whips in Parliament and the local party organisations which really control the Back-Benchers. Whereas in what I can call "these good old days" Members of Parliament truly represented their constituents however limited their constituents might have been and however ignorant. Today they no longer do so. They have to represent what their party stands for; what the Whips tell them to stand for and what, in many cases, their party organisations in the constituencies tell them to do.
In those days there was another very important difference. The voters were limited and the issues were relatively simple. One was in favour of free trade or against it; one was in favour of home rule for Ireland or against it; one was for or against the prosecution of the Boer War. They were simple issues of that kind upon which people could make up their minds and say either "yes" or "no". Today conditions are very different indeed. There is universal suffrage and everybody has a say; everybody has the vote. The issues are infinitely more complex than they were before as regards foreign affairs; the nuclear disarmament issue; the issue of sanctions against South Africa, the issue of help to the Contras and the Sandanistas, and many other such matters of great complexity.
At home we have the issues of whether taxes should be lowered or more money spent on the National Health Service and whether there should be more privatisation or a maintenance of and possibly an increase in state enterprises. There are the issues of what should happen to education, a matter to which many noble Lords have referred; local government reform, the poll tax and so on. These are all difficult and complex matters and are very different from the simple matters of 100 years, 75 years or even 50 years ago.

209
There has been an enormous spread of the media, of newspapers, of television in particular, and of the radio. The electorate is far better informed. Clearly, voters have divergent views on many of these matters. Rather less clearly, Members of Parliament must have divergent views on them. They cannot all agree 100 per cent. with what is going on in the particular party for which they have voted or under whose auspices they sit as Members of Parliament. In spite of this, as the noble Lord, Lord Colnbrook, so rightly pointed out, the power of the Whips makes it difficult for the ordinary Back-Benchers to fulfil his function of, in the words of the noble Lord, "being a nuisance". This is one of the great troubles, as the noble Lord, Lord Grimond, rightly stressed.
Unfortunately, our present two-party system makes it impossible for the thoughtful voter to be a wholehearted supporter of one party or another. Hence there have arisen pressure groups—parties within parties, the Left, the Right and so on— both in Parliament in the parliamentary parties and within the constituencies themselves. Most sinister of all, there has been in certain cases the capture of local party organisations by completely unrepresentative minorities and therefore the selection in safe seats of people who represent the extremes rather than the feeling of the majority of the electorate. It is factors of this kind which to a very large extent have contributed towards the growth of authoritarian central government unrepresentative of people's wishes.
After all, the present Government were elected by 43 per cent. of those who cast their votes and by an even smaller percentage of the total electorate of the country. I do not think that any of your Lordships would disagree that if there were a completely free vote among existing Members of Parliament on one side or another, but specifically on the Government side, they would not give their wholehearted support to some of the policies which the present government are pursuing. This point applies equally to past governments or even future governments. I do not want to make a party political point.
We now have, to use words slightly different from those of the noble and learned Lord, Lord Hailsham,
"a dictatorship of a minority under the guise of parliamentary democracy".
It might be apt at this stage to remind your Lordships of the very wise comments of Trevelyan in his English Social History. He wrote:
"…unless we become a Totalitarian State and forget all our Englishry. There will always be something mediaeval in our ways of thinking, especially in our idea that people and corporations have rights and liberties which the state ought in some degree to respect, in spite of the legal omnicompetence of Parliament".
Those words carry far more weight and significance today than when they were written some 40 or 50 years ago.
The same applies to local government as applies to national government. I shall not develop the arguments about local government. They have been put forward far more ably than I could attempt to do. It is of significance that the powers of local government are today being whittled away with great rapidity. The present Government abolished some time ago their own child in the shape of the GLC.
210
This general, slow, inexorable march towards authoritarianism, whether we have a government of the Left or of the Right, will continue until—and here I am happy to have the support of the noble Lord, Lord Donoughue—we have some form of electroral reform. Only electoral reform will give our increasingly informed and involved electorate the chance to vote for a party which more closely approaches each voter's ideals. Only electoral reform will give a chance to the parties to form openly and above hoard electoral pacts and coalitions with those other parties whose ideals most closely resemble theirs. This is surely preferable to the deals done in so-called smoke-filled rooms, without any publicity and with nobody knowing it, between the different pressure groups which today form our existing major political parties.
Those deals, formed without publicity and without the knowledge of the electorate, are between groups whose interests are more often their own private and group interests rather than the interests of the whole country. That is why I believe that electoral reform is the only way in which we can avoid this slow but inevitable march towards increased centralisation and authoritarian government.
5.8 p.m.
Baroness Blackstone: My Lords, I should like to begin by congratulating the noble Lord, Lord Colnbrook, on his excellent maiden speech. I hope that we shall be hearing very much more from him in this House. I should also like to thank the noble Lord, Lord Jenkins of Hillhead, for initiating this debate. There can never have been a more timely subject for this House to consider.
Some of the events of the past year have revealed a quite extraordinary insensitivity on the part of the Government to the requirements of a healthy democracy. These include a free press, an independent system of broadcasting and the widest possible discussion of the policy options being considered by the Government. A legal system and a judiciary which are, and are perceived to be, above political interference is another prerequisite. They also include the delegation of powers from central to local government, which maximises the degree of local discretion and local decision making, the free flow of new ideas derived from strong and independent academic institutions, the involvement of the consumer in decisions about public services and above all the acceptance of the desirability of opposition as a source of criticism and as a mechanism for refining policy in a positive way.
In their excessive concentration of power in the Executive the Government have at one time or another disregarded all of these requirements of a healthy democracy.
It is a strange and sad paradox that a Government with a hugh majority and enjoying their third term in office should have so much difficulty in brooking opposition. It might be thought that they would have the confidence to welcome greater openness and freedom of information but, unfortunately, it appears that the old adage, "power corrupts" is only too true. Three victories in a row seemed to have confirmed the Prime Minister's sense that only she

211
can be right and that there is no alternative to her approach and her view of what is needed.
As the noble Lord, Lord Jenkins of Hillhead, has said, it is now clear that not only does the Prime Minister find it difficult to accept external opposition; she also cannot accept opposition from within. The numbers of relatively youthful noble Lords opposite, who are political refugees from Mrs. Thatcher's Cabinet purges, are evidence of that fact. Not only do we have too much power in the executive area of government but we also have, within the Executive, too great a concentration of power in the Prime Minister's hands at 10 Downing Street.
Cabinet government involves collective decision making. Certainly collective decision making took place when I worked in the Cabinet Office, under the noble Lords, Lord Wilson and Lord Callaghan. However, it is apparent that there are many occasions when Mrs. Thatcher has made a mockery of it by dominating and bullying the Cabinet to such a degree that its decisions are, in practice, the Prime Minister's. The longer people with great power are cut off from personal criticism, the more dangerous the situation becomes.
It is equally dangerous to try to muzzle the press and the broadcasting authorities. We are all dependent on the media—as other noble Lords have already said—both for information and for critical analysis of government policy. The fact that the great majority of newspapers in this country support the Government is apparently not enough. It is because some of them will not kowtow to the Government that we are faced with the sorry spectacle of thousands of pounds of taxpayers' money being used to pursue them in the courts. The newspapers' crime is that they wish to publish information which is now available to people in many other countries. Therefore to continue to pretend that this policy has anything to do with keeping the information from a potential enemy is patently absurd. British newspapers are surely right to consider that such information should be available to the British public in the same way as it is available to the public in the United States of America, Australia, the Republic of Ireland and in many other countries.
By pursuing the newspapers in the courts, one can only conclude that the Government's tactic is to bully them into submission on this and other issues. Even if the newspapers win their case, the time, effort and cost involved in such action may deter others, or the same newspapers, from defending themselves on another occasion.
The noble Lord, Lord Jenkins of Hillhead, said that the BBC had received a considerable amount of coverage. He concentrated on the universities. I shall do the reverse, although I endorse every word that he said with regard to universities. However, I should perhaps declare an interest as I am the Chairman of the BBC's General Advisory Council.
I believe that the Government's actions towards the BBC are a sinister threat to an independent broadcasting system which has been, and should be, one of our most cherished institutions. The raid on the BBC's premises in Glasgow over the "Zircon"
212
programme, in which several van loads of material were seized, has been widely condemned and rightly so. Another example is the injunction against the BBC over the programme "My Country Right or Wrong", which had already been through the D-notice procedure. My noble friend Lord Cledwyn of Penrhos referred to Mr. Tebbit. Mr. Norman Tebbit's calculated and cynical act in his attack on the BBC for bias and his threat to monitor every news and current affairs programme is yet a further example of that threat. Of course Mr. Tebbit's real agenda involved bullying and browbeating the BBC before the election in order to secure an easier ride for the Government; and to some extent, regrettably, that policy has worked.
Those who hold power must be accountable to those who put them into such positions of power. One way of holding them to account is through tough and searching questions from the media. Such questions must of course be directed far more to those who hold power, than to those who are in opposition. If our broadcasters are to suffer from a loss of nerve and confidence in their own investigative journalism and their exposure of politicians to issues that, perhaps, such politicians would prefer not to see exposed, it would be a sad day for democracy. Can we therefore have some indication from the Government that they will recognise this necessity and that they will refrain from using bullying tactics towards our broadcasters in the future?
It was a sad day for democracy when the Government imposed a three-line Whip on its own supporters in another place in January, when Mr. Richard Shepherd brought forward a Private Members' Bill to reform the Official Secrets Act. It is widely recognised that the operation of Section 2 of that Act is a complete and utter farce; its reform is long overdue. But, nevertheless, instead of using the opportunity presented by Mr. Shepherd's Bill to amend it where necessary in Committee, the Government instructed its supporters to throw it out. The Government promise instead to introduce their own Bill. I am afraid that the Government's record so far does not suggest that any Bill they bring forward will have the necessary liberalising effect of enabling new government policies, which are under consideration, to be openly discussed and considered by those who will be affected by them.
At present the Government can suppress anything they wish on the ground that it is an "official secret". They have used that power to great effect. The Official Secrets Act must be reformed, but we also need a freedom of information Act. I should like to know when we can look forward to this provision, so that we can experience some of the benefits of openness currently enjoyed in the United States? Anyone who has worked in the civil service is aware of the inhibiting effect the Act has on free discussion with those outside Whitehall about policy options. As my noble friend Lord Donoughue said, the man in Whitehall—I should add the man or woman in Whitehall—does not necessarily know best. Many civil servants are fully aware that they do not know best. Those that I talked to find that the atmosphere under this Government is even more inhibiting to gathering outside views that in the past. Censorship and secrecy have been two methods that the

213
Government have employed to strengthen the concentration of power in the hands of the Executive; the third has been centralisation.
The noble Lord, Lord Joseph, referred to this country as being over-governed. It is, however, peculiarly inconsistent to come to power making use of rhetoric about "rolling back the frontiers of the state" only to end up with ever-increasing ministerial intervention. In fact, far from rolling back the frontiers, the Government have established new and unprecedented frontiers that bite into the territory of others; notably local government. Their contempt for local democracy has been manifested in countless different ways, from the rates Act to the abolition of the GLC and the metropolitan counties, together with many other examples which have already been mentioned.
The latest examples of the Government's attitude are the Education Reform Bill and their inner-city policies. The Secretary of State for Education will have taken upon himself 85 additional powers if the Bill is enacted. The noble Lord, Lord Joseph, mentioned opting out of local authorities. I think he referred to the "shackles of local authorities". He did not, however, mention opting into central Government control. Will people really rejoice about opting into more central government control? I do not think so. Can it be right to concentrate so much additional power into the hands of just one member of the Executive; namely, the Secretary of State for Education? At the same time, the powers of local education authorities will be greatly reduced and, I should add, the professional autonomy of teachers will be threatened.
In the inner cities we are witnessing the squeezing out of the local authorities that wish to play some role in their revival. Centrally appointed urban development corporations, centrally appointed and organised inner-city task forces, and the use of urban renewal grants to the private sector—bypassing local government—are all examples. Do we want the Department of Employment and the Department of Trade and Industry to turn into new colonial offices, treating the inner cities as the new colonies? Local authorities have sometimes come up with genuine attempts to create new partnerships to focus on urban regeneration. Manchester and Birmingham put forward proposals for their own UDCs. The Secretary of State for the Environment threw them out. It appears that he could not contemplate sharing power with local government.
Lord Joseph: My Lords, perhaps the noble Baroness will allow me to intervene briefly. Is there no connection between the problems of inner cities and the previous policies of the local authorities concerned with them?
Baroness Blackstone: My Lords, no. I believe that the main problems of the inner cities relate to central government policies, high unemployment and inadequate funding for housing.
The Government have also indulged in a certain amount of rhetoric about the importance of the consumer. Indeed, the noble and learned Lord referred to that point. However, in those public
214
services, such as social security, that they run directly, there is little evidence of much responsiveness to the consumer. A few visits to DHSS local offices will demonstrate just how little they have done.
The Government also claim that they wish to give parents more say in the education service. The noble and learned Lord also referred to that. Here. I must give some credit to the Government for increasing the representation of parents on governing bodies, even if part of the aim was to reduce the role of the local authorities. But if the Government are serious about that, surely they must take into account parents' views on whether they want the boroughs to run education in inner London or the ILEA to continue. Perhaps I may ask the Minister whether the government will amend their position on education in inner London in the light of the results of the parents' poll which is to take place. If the answer is to be, no, they will not, we can only conclude that the Executive is willing to disregard consumers' views and do exactly what it wants, despite all its claims.
The real test of any government in a democracy is whether they have the maturity to recognise the value of countervailing forces and powers however inconvenient they may be at times. Despite what the noble Lord, Lord Joseph, said, the trade unions are one of those countervailing forces. When he asks whether it is centralising to ignore the trade unions, my answer is that it is centralising.
Unfortunately, all the familiar checks and balances on the concentration of power in the Executive about which every A-level student of British constitution learns, are not enough when we are confronted by a government utterly convinced of their own ideological superiority and determined to set their face against pluralism. In the end, the freedom of the individual rests on those countervailing forces. We must light to protect them.
5.23 p.m.
Lord Ezra: My Lords, it is undoubtedly one of the major roles, if not the major role, of the legislature of any democratic nation to exercise continued vigilance of the Executive's actions to ensure that there is no excessive concentration of power, and that that power is not exercised unduly strongly.
Normally that function is performed in the ordinary course of the parliamentary processes— through the questioning of the executive arm, through debates on matters of major public concern and through the scrutiny of proposed legislation. We owe the noble Lord, Lord Jenkins of Hillhead, a debt of gratitude for enabling us to take stock of the situation as a whole. From time to time that needs to be done. We have had this afternoon the opportunity to look at the whole problem of the possible excessive concentration of power in the hands of the Executive instead or dealing with it in the normal course of our business.
There have been many eloquent speeches, from both sides of the House, expressing varied opinions on this subject, as one would expect. Towards the end of the debate I should like to concentrate on one issue rather than roam over the whole field. The issue on which I should like to concentrate is one with which I have had some familiarity; that is, denationalisation

215
or privatisation. I should like to deal with that issue more especially because three noble Lords opposite referred to it as evidence of the de-concentration of power by the Government. That was the view taken by the noble and learned Lord the Lord Advocate, the noble Lord, Lord Colnbrook, in his eloquent maiden speech and the noble Lord, Lord Joseph, with whom I had the opportunity to discuss these matters before the Government came to power.
There are many aspects of the Government's privatisation campaign with which many people can agree. One of the objectives, which has been to diminish the day-to-day intervention of government in the affairs of major enterprises, is laudable; another, to subject those enterprises to competition, is also laudable. What might be described as the first stage of the Government's privatisation programme reasonably achieved those two objectives—the selling of enterprises such as Associated British Ports, the National Freight Corporation, Amersham International, Jaguar and so on. The trouble and the undue exercise of government power have come in what might be described as the second stage of privatisation; namely, the privatisation of essential services, because that raises totally different issues. We are talking here of telephones and gas, which have already been privatised, and electricity and water, which are about to be privatised.
Those issues raise fundamental questions affecting every citizen. It is not merely a question, as in the case of the other privatisations, of deciding whether one wants to buy a Jaguar or a Rover car, especially in its new form—no doubt much enhanced; it is not merely a question of free choice. One does not have a choice about a telephone. One has relatively little choice about gas, if gas is connected. One cannot rip it all out and change if one dislikes something to do with the gas industry. Electricity dominates everyone, and so does water.
The Government have been wrong in the way in which they have tackled those fundamental issues. They have exercised their power in a way which is not necessarily consistent with the public interest. In the case of British Telecom, for example, the first step was taken in 1981 to carry through certain desirable measures of liberalisation, especially in the choice of appliances. But there were many of us during the debates on the Telecommunications Bill who asked the Government why they had not taken the liberalisation process further before the privatisation measure was introduced. What then happened was that a virtual monopoly was privatised, with a limited amount of competition, and restricted by government licence. No other licences were granted except to Mercury. That virtual monopoly was sold privately. It was sold at a time which turns out to have been most unfortunate from the point of view of the enterprise because it was going through a major process of technological change, and that was hound to cause a certain amount of disruption. It is very unfortunate for the management, who I think were in no way to blame, that people have come to regard the process of privatisation as having led to a much reduced standard. I do not think that was necessarily so; I think it was a question of timing. But what I
216
think was wrong was that liberalisation was not extended much further before privatisation because were that so we should have had the salubrious impact of more competition which we lack today.
The gas measure was even worse because no attempt was made to introduce even the most limited element of competition within the gas market before privatisation. A total public monopoly was made a total private monopoly. To add to the difficulty of that situation, the regulatory framework introduced for gas was of the most minimal nature. Here no blame attaches to the directors general of Oftel or Ofgas. I think that Professor Carlsberg and Mr. James McKinnon have both done an admirable job within the strict limits of the law as affects their activities.
However the problem remains that we are now landed as a nation with two massive private monopolies which are affecting our daily lives in the services which we have to use. The Government appear to have had second thoughts about the way in which these major services should be privatised when they came to electricity, as we learnt only the other day. They went out of their way to introduce some measure of competition. But it could well he asked how real that competition is likely to be in the light of the two major companies which will be set up. They are known colloquially in the trade as G1 and G2—G1 being the 70 per cent. generating company and G2 being the 30 per cent. company.
It was put forward—and indeed the noble Lord, Lord Peyton of Yeovil, put it forward in a Question—that in a major issue of this kind the Government should formally have consulted the nation through a Green Paper instead of giving their views in a White Paper. The effect of the White Paper is that the rules are already laid down. No doubt we shall be having many debates through the various stages of the Bill, but effectively the line is laid down and there is nothing we can do fundamentally to change it, even though many doubts have been expressed about the proposed solution.
Equally there are many doubts about the proposed solution to the privatisation of the water industry. Originally the Government fully supported the concept of the integrated river cycle. They put forward in a consultative document the view that that was something which had to he maintained. They have since changed their minds on this but they still wish to go ahead with the privatisation measure. I think this again raises very serious issues for the nation, all the more so as one of the essential elements of the change will be that the charging for water will be transferred from the present system to one of metering which may or may not be more desirable. As it will affect everybody I should have thought that a measure of public debate was desirable.
So I conclude that this is an illustration of the Government dealing with matters of very widespread public interest in a way which suggests that they are using their power excessively. When it comes to changing the way in which basic services are organised and used in this country, I believe that we as an adult democratic nation should be fully consulted about all the options before decisions are reached.
5.35 p.m.
Lord Beloff: My Lords, this House has many merits and it has certain defects. The principal defect, in my humble view, is a tendency to self-congratulation. It contains—we contain among ourselves—persons who have held high office in the service of government, heads of notable departments of state and other persons with great and valuable experience in public life. I have no doubt that the noble Lord, Lord Jenkins of Hillhead, when he put forward his Motion was hoping to generate a debate which would enable us to call on their experience as well as on that of the two or three holders of high ministerial office who have graced our proceedings this afternoon.
It would have been indeed interesting to learn how the current executive branch of government is believed to operate, and what weaknesses it may have. I have more than once in your Lordships' House referred to what I believe to be the excessive influence of the Treasury. However, that has been lacking, and with the exception of one or two speeches it has turned out to be yet another piece of Opposition-Government ping-pong.
I note, for instance, the extreme virulence of the attacks upon Her Majesty's Government in all these respects by the noble Baroness, Lady Blackstone. I take her point in particular because she was so keen to demonstrate how inimical Her Majesty's Government arc to the free expression of opinion in the media. Then she revealed that she is herself chairman of the advisory hoard to the BBC. I can only say that I can think of no authoritarian country and very few democratic countries which would have a person holding her views of the Government heading the principal advisory body to a national broadcasting system. It seems to me that by that admission she made the whole of her argument redundant.
However, let me return, if I may, to the noble Lord, Lord Jenkins of Hillhead, to whom we owe this interesting opportunity—interesting even if we have not yet taken full advantage of it. I understand it is to be the case in the relatively near future, when the mergers have gone ahead, that the noble Lord is to be the leader of the new merged party. Perhaps I may call them the "Peculiar Democrats" for shorthand purposes—at any rate, a party which merges two political traditions, those of the Liberal Party and those of the Social Democratic Party.
In proposing a Motion of this kind, the noble Lord no doubt brings with him allegiance to those two traditions. He has also been distinguished in our public life, the public life of Europe, by being president of the European Commission. If one were looking for an executive which had shown an almost irresistible tendency to try to increase its powers, I think one might have looked to begin with at the European Commission. Almost every day we are told of some changes in our arrangements, some addition to the burdens of taxation which it wishes us to undertake in the name of the European ideal as it conceives it. But this executive is a non-elected body. It has not even the historic merit of being a hereditary body. It consists of a group— I shall not be overpolite—of discarded Ministers. It is difficult to see why, if such a group succumbs to the temptation
218
of trying to arrogate extra power to itself, this should not normally be the case. I believe this always to be the case in cabinets or presidencies or whatever the executive branch of government may be in different styles of democratic politics.
I come hack to the two, as it were, native traditions. I am a little surprised that if the noble Lord wished to make his case he did not at least appear before us in sackcloth and ashes because he represents two traditions both of which have been of a centralising character.
The Liberal Party in the 19th and early 20th centuries was, as its relics frequently remind us, the father of the welfare state. At every stage in the creation of the welfare state, at every new power—many of them desirable powers for government to have—it was possible either to centralise or to go for some building on existing local or voluntary initiatives. In every case that occurs to me at the moment, the decision was taken in favour of centralisation.
It may well be that I am referring to the Liberal Party in the past and not to more recent events. But, of course, we have to take it for granted that a party which has lost power at the centre but which retains some representation in the organs of local or regional government, depending upon the system in place, is bound to say, "Well, if we cannot have power at the centre, let us see if we cannot make something of the power that we have."
In my view, the devotion of the peculiar democrats, the merged parties, to local initiative is a reflection of the fact that they realise that their hopes of office at the centre are non-existent and that therefore they must do the best they can. That is perfectly honourable.
I think it was the noble Lord, Lord Donoughue, who mentioned federal governments. In the United States, when the Republicans have been in power in Washington, the Democrats have paraded around under the banner of states rights. Yet when there have been Democractic governments in Washington—there is the famous example of Franklin Roosevelt and the New Deal—states rights are forgotten altogether and there is a great shift of power to the centre. So it will be again if the Democrats recover that power after the next elections.
I am not talking only in relation to major public services. Both the noble Lord, Lord Jenkins of Hillhead, who is the chancellor of my university, and the noble Lord, Lord Grimond, who, I think, has not altogether understood the amendments which the Government are putting forward in another place, insisted on the importance of not intervening in the affairs of the universities. As I have had some involvement in trying to moderate the Government's proposals in that regard, I am obviously sympathetic to the view that by and large universities and other such institutions flourish best in conditions of autonomy.
However, if one looks at what is now proposed and compares it with what Parliament did in the 19th century when it sent Royal Commissions to investigate the conditions of the then very few universities and when it legislated to impose entirely

219
new conditions for membership and for admission to the universities, one realises that there was a constant series of interventions. Those interventions were at least the equivalent of anything which the present Government intend.
I do not accept for a moment the caricature of the noble Lord, Lord Grimond, that the interests of the Government lie only in the production of individuals suitable for industrial employment. That view misses a great deal of the need from time to time to reorganise our institutions in relation to teaching and science as in other aspects of the national life.
Then we come to the Social Democratic Party. One may say that a party which has committed hara-kiri so soon after birth has not a great deal to contribute. But, of course, we know that the Social Democratic Party is not in itself something with long independent roots. It is an offshoot of the Labour Party during whose terms of office the noble Lord, Lord Jenkins, and some of his associates played an important part. They have since been involved in creating and now dismantling the Social Democratic Party.
I cannot recollect, during the period when the noble Lord, Lord Jenkins, and his friends enjoyed office in Labour Governments, that their prime concern was to reduce their influence, their importance and their degree of central concern with what was going on in whatever branch of government they might have been involved. For instance, something has been said about education in schools. The most remarkable and dramatic interference with our schooling system was that made by an administration including Mrs. Shirley Williams, the then Secretary of State for Education, which insisted upon making the comprehensive model of secondary education the norm. One can approve of that model, as no doubt most noble Lords opposite do. One can think, as I do, that its introduction produced one of the difficulties which this country has had to face in becoming a more modern industrial society. Whichever view one takes, one cannot say that Mrs. Williams's tenure of office was marked by any refraining from the use of executive power to the fullest possible amount.
So much for the truth. The truth is that government has expanded. With that expansion, inevitably the number of people who administer has also expanded while the machinery required to control government has become more complex.
We are beginning, I think, to see some modest attempts—my noble friend Lord Joseph referred to them—to go back upon that. I would agree with him that it takes a long time. A new balance may be fixed. However, where I think noble Lords opposite have got it wrong, if I may say so, is that they believe that the country as a whole is not interested in a strong executive government, that it craves for the weakness of coalitions induced (if that is the right word) by proportional representation or the division of powers between the executive branch and the legislature, and by greater intervention on the part of the legislature.
The noble Lord, Lord Grimond, seemed to think that the judges might even immerse themselves in the substance of legislation as well as in its
220
administration. I do not believe that to be the case. I believe it to be true of all modern democratic societies that where people believe they have problems to be solved, on the whole they expect the leadership of the executive branch to be where those problems find solutions.
One has only to look at the United States, which has been referred to more than once in our debate. A division of powers in the 18th century which perhaps the noble Lord, Lord Donoughue, is the only person left to defend, results in the virtual breakdown of government, both domestic and in matters of foreign and defence policy which affect us all very nearly. It produces a paralysis in election years and near paralysis much of the rest of the time. I do not think that that is what this country wants.
I think that whether the leader of the party is likely to be a powerful and determined leader of an executive weighs more with people in deciding how to cast their votes in elections than legislative policies, plans for government expenditure or indeed anything else. Noble Lords may regret that. They may look hack, as did the noble Lord, Lord Walston, to a 19th century House of Commons where gentlemen of independent means without parliamentary salaries played a rather different role. I do not think that that is true of democracies. Democracies which do not have strong executive government tend to end up with authoritarian government, the form condemned on both sides of your Lordships' House today.
5.51 p.m.
Lord Winstanley: My Lords, as usual, I enjoyed the speech of the noble Lord, Lord Beloff, and as usual I disagreed with much of it. I hope that the noble Lord will forgive me if I say that I rather regret that he did not use this occasion to develop further the very interesting ideas which he expressed to your Lordships' House on an earlier occasion regarding the restoration of some form of parliamentary control over essential services when those services are by their very nature a monopoly. That would have been highly relevant today.
With regard to his fears as to the role of the noble Baroness, Lady Blackstone, as chairman of the BBC General Advisory Council, perhaps I may reassure him. I am sure that he knows that the BBC never takes any notice of its advice and therefore I do not think that he should read too much into the appointment of the noble Baroness.
It is a great pleasure and honour to take part in a debate initiated by my noble friend Lord Jenkins of Hillhead. We are very fortunate to have the noble Lord in our House, and we on these Benches regard ourselves as particularly fortunate to have the noble Lord with us.
Before I come to the particular points that I wish to make in this debate. I should like to take up two matters which were made by the noble and learned Lord the Lord Advocate in his speech, if he will give me his attention. The noble and learned Lord referred with some pride to the work of the specialist Select Committees. I agree with him and I do not wholly agree with my noble friend Lord Grimond with regard to the Select Committees. I think that over the years in Britain we have lacked political

221
machinery capable of looking at policies in the long term and at the long-term needs of industry, the health service, or education. The Select Committees have been able to do that. I also think that the Select Committees have given Members of Parliament an opportunity to play a constructive role in the formative stage of policy-making rather than the normal role of voting policy through when a Bill comes forward. Therefore I agree with the noble and learned Lord the Lord Advocate in taking pride in the Select Committees.
However, if the Government are so delighted with the Select Committees it seems odd that they are very reluctant to accept any of the Select Committees' recommendations. If the noble and learned Lord could tell us that shortly the Government will be accepting the recommendations of the Select Committee with regard to additional funding for the National Health Service, I think that most of the wind would be taken out of most of our sails.
The noble Lord also expressed great pride at what the Government have done in moving government departments out of London. I honestly do not think that the noble and learned Lord understands what devolution should be. It does not consist of moving a lot of people somewhere else. You do not devolve power from London merely by shifting the typing pool from the Department of the Environment 20 miles up the Thames. You do not devolve power by moving part of the DHSS to Blackpool or indeed up to Newcastle. Devolution does not concern numbers, it involves power and influence. You need only to move one or two people.
For example, if the headquarters of the National Health Service were no longer in the Elephant and Castle but were moved to York I believe that quite rapidly the headquarters of the firms which build hospitals would find it convenient to be placed in York as well. The headquarters of the firms which supply drugs, equipment and instruments to the National Health Service would also find it very convenient and advantageous to move their operations to York. In other words, one would have established a focal point out of London which would have a magnetic effect in moving power from London. I think that small moves such as setting up the Driver and Vehicle Licensing Centre at Swansea do nothing to remove power from London.
Let me now come hack to what I intended to say when I sought to speak in this debate. I should like to concentrate on one or two constitutional matters whereby the present state of affairs might be remedied, with particular reference to the restoration of power to Parliament, a matter about which I thought the noble Lord, Lord Donoughue, spoke so eloquently.
In their manifesto which has been referred to so often in this debate (it is interesting that so many noble Lords took the trouble to look at that document) the Alliance parties included an important section setting out a package of constitutional reforms. I much regretted that during the campaign little attention was given to those either on television or on party platforms because so much time was taken up with matters of defence, which I grant are important. I think that it was assumed that
222
the general public were not interested in constitutional reform. If they are not interested they ought to be, because constitutional reform is necessary if we are to effect some of the changes which I believe the general public would like to see.
I shall say nothing further about electoral reform save that I believe that democracy will not be fully restored until we have an electoral system which ensures that parliament reflects more accurately the political wishes of the electorate. However, other constitutional matters were included in the manifesto. I shall concentrate on just one. If I have left myself enough time, I should then like to put forward a somewhat eccentric, and some might say heretical, view of my own which I expressed many years ago in another place to the consternation of my own party Whip and also the other party Whips. That I shall leave till later.
In our constitutional package it was proposed that we should move to the election of Parliaments for a fixed term. I know that everyone is familiar with the damage that is caused by the uncertainty of the election date. Once speculation starts about when there is to be an election it seems that a paralysis descends over the nation, over industry, commerce and almost everything else. Investment is halted, decisions are postponed, or what is perhaps worse short-term decisions are taken while everybody waits for the magic date to be announced.
I am aware that if Parliaments were elected for a fixed term there would always be a period of damaging uncertainty. However, I believe that it would be a shorter period. Everyone would know when the election would be instead of uncertainty continuing year after year.
There are other aspects of that question which I believe are of particular relevance to my noble friend's Motion. In this country we are very fond of boasting that we do not place great power in one pair of hands. Do we not? I take the view that the personal and private right to fix the date of a general election, or call a general election whenever the Prime Minister wishes, is a very comprehensive power indeed. It is certainly not a power possessed by an American President. If an American President is defeated on some favourite policy issue in Congress or the Senate he cannot say: "Right, pull up your wickets, take your hats home, we shall declare, the game is over, we shall have an election". He has to put up with it and then perhaps try again later and see if he has more success. But not here. Our constitutional arrangements are such that they do not provide for a government defeat on a crucial issue, with the result that the Government never is defeated.
I am not suggesting that the Government ought to be defeated every week—I think that perhaps every eight or 10 weeks might be appropriate. However, if we once got away from the assumption that the Government cannot ever be defeated without, as it were, precipitating some kind of constitutional catastrophe so that there was an assumption that the Government might be defeated, then I do not think that it would be necessary for the Government to he defeated very often. The Government would then start to consult with Members in advance instead of merely when everything has finally been decided.

223
I believe that that would flow from the institution of a system of a Parliament selected for a fixed term with the constitutional effects that would inevitably follow. I shall quote merely one example of something that might have been different under that different system. It is one particular example from my own limited and lowly experience years ago in another place which I have chosen because my noble friend, Lord Jenkins, had some connection with it. It concerns an unlamented measure known as the selective employment tax. I do not think that noble Lords will have forgotten it. I remember that two days after it was originally introduced the then Prime Minister, who is now the noble Lord, Lord Wilson of Rievaulx, made a speech to the press in which he said:
"I accept that the measure is crude and clumsy in its implications but it can be refined later".
I spent four years in that business of "refining later".
In the debates on the selective employment tax at that time many speeches were made on measures such as the Budget, the Finance Bill, the Selective Employment Payments Bill, and so on. Irrespective of speeches made by Ministers (among whom was Mr. Ray Gunter) there were 39 speeches made from the Government Benches at different stages of that Bill, of which 38 condemned it. There was only one speech in favour and that came from Mr. Roy Hattersley who shortly after obtained the promotion which he had so clearly earned. Member after Member said the same thing: that this measure was absurd and that if there must be an employment tax it should be a percentage payroll tax across the board so that it could be varied regionally according to the needs of the different regions or industrially according to the needs of different industries and without being in breach of the GATT. There should not be the strange assumption that, for example, if a tax is put on services all the hairdressers will shut up shop and go to work in aircraft factories, My Lords, what rubbish!
It was pointed out that the measure would have a disastrous effect on agriculture and a critical effect on charities; it was taking more money from the development areas which other government departments were trying to help than it was taking from the rich areas; it would put out of employment elderly people at a time when one had learnt that it was not only economically valuable but socially valuable for many elderly people to remain in employment; it would have a drastic effect on tourism, which was our principal dollar earner; and so on.
What happened? Within a matter of weeks the tax was changed with regard to agriculture; we were all smothered under telegrams. Quite soon it was changed with regard to the regions with a special premium in the regions. After another year it was changed with regard to the elderly and part-time workers. After another year it was changed with regard to tourism with a special premium for hotels in certain areas which were catering for foreign visitors, and so on. In the fourth year the Government decided to set up a commission. In fact, I think that it was the noble Lord, Lord Jenkins, who set up the Reddaway Commission,—if my memory
224
serves me aright—to look into the matter. At the end of the day after it had looked into the problem, the main thrust of its report argued that it would have been much simpler merely to have introduced a percentage payroll tax across the board. That was the argument used by Members on the Government side of the House on the day that the Bill was first introduced.
I believe that it ought to be possible for Parliament to reject an unwise or unpopular measure without precipitating some kind of constitutional catastrophe. If it became possible to do that, I think that government legislation might soon be very different and the power of Parliament might be restored.
I should like to move on very quickly to my single heresy, which I said I would express before I sat down. A long time ago when I first entered another place I was rather puzzled by the power of the Whips. I took a little notice of the power of the Whips but at the time I thought that in Britain we had an obsession with the sanctity of secret ballots. Votes in trade unions and elsewhere have to be secret. What would happen, I thought, if Members of Parliament voted secretly? I know that constituents think that they have a perfect right to know how their Members have voted. I personally take much more the view of Burke that a Member of Parliament is not a delegate and that he is appointed by his constituents to use his own judgment. I believe that if Members in another place voted secretly so that nobody knew how they had voted then that would make quite a difference to legislation and an immense difference to the power of the Whips.
I venture to suggest that if that system existed now there is not a shadow of doubt but that child benefit would most certainly be uprated. There is no doubt at all that we should have heard the last of the poll tax and I am absolutely certain that the Education Reform Bill, when it finally arrived at your Lordships' House, would be in a very different shape indeed. I merely put that suggestion forward—I drop a pebble in the pond, if I may so refer to your Lordships' House, in the hope of creating one or two ripples.
I should like to say to my noble friend who introduced this debate that I hope that it has produced a few ripples and that in the end those ripples will turn into a wave which will perhaps do something to restore the power of Parliament to what it once was.
6.5 p.m.
The Earl of Longford: My Lords, I much enjoyed the speech of the noble Lord, Lord Winstanley, and perhaps I may be forgiven if I do not attempt to match the experience or the arguments of the noble Lord. We are all grateful to the noble Lord, Lord Jenkins, who is a former Chancellor of the Exchequer and now Chancellor of Oxford University, which I imagine is a unique combination. Unfortunately he is not present in the Chamber to confirm whether or not that is so. He made what Sir Winston Churchill would have called an elegant and spacious speech, and many elegant speeches followed. Naturally I prefer those made from these Benches, starting with the speech of my noble friend and Leader.

225
I must join with the noble Baroness, Lady Blackstone, who made such a notable intervention, and other noble Lords in paying tribute to the noble Lord, Lord Colnbrook. Certainly he arrested the attention of us all. I know that we shall all want to hear from him often. I suppose that he is what the noble Baroness, Lady Blackstone, would call a political refugee in this place. He is not the only one. They are keeping each other good company. I shall come to that subject later, but after the noble Lord's speech today I cannot imagine how Mrs. Thatcher is surviving, without him.
In all its aspects this topic is hardly new. The first essay that I ever wrote for an Oxford tutor more than 60 years ago dealt with these issues. I see that the noble Lord. Lord Jenkins, has returned to his place, so I shall repeat my tribute to him. I dealt with these issues in the first essay that I ever wrote for an Oxford tutor more than 60 years ago, and when I myself became a tutor I inflicted this kind of topic on my pupils year after year. Eventually I returned to Oxford for a while after the fall of the Attlee Government and studied with no less a person than Mr. Nigel Lawson; but whether he benefited from my early guidance I have no idea. At any rate, I was well up in that subject at the time.
The text book that we used to read in the 1930s was one by Ramsay Muir—How Britain is Governed. He was a good liberal figure whom some of the older Members of the House will remember. He had something to say about the then Prime Minister. I shall deal entirely with that topic, though it has been dealt with very well by the noble Lord, Lord Jenkins, the noble Baroness, Lady Blackstone, and others. I shall concentrate on that subject.
In his book, published in 1930, Mr. Ramsay Muir said:
"Lord Morley once described the Prime Minister as 'the keystone of the Cabinet arch'. The metaphor is a good one, but it does not sufficiently express the greatness of the office. One of the sanctified phrases, repeated by all the text-books, is that in the Cabinet the Prime Minister is only primus inter pares, first among equals".
In 1930 Ramsay Muir said that that was nonsense. At that time the Prime Minister was not particularly dominant. If one considers Baldwin and MacDonald, it was not until Neville Chamberlain that there was a dominant Prime Minister.
Of the 11 Prime Ministers whom I have known personally or known slightly, Chamberlain is the only one who compares to our present leader in his dominance of the Cabinet and the system generally. He managed to dispose of his Cabinet just as quickly. The Earl of Swinton—one of his most valued and intimate colleagues—was soon got rid of. The noble Lord, Lord Home, has written about this with great authority. I do not say that the Prime Minister was wrong to do so according to his lights, but he then managed to dispose of Sir Anthony Eden (as he then was), and Mr. Duff Cooper (as he then was). It may be said that they resigned, but I have a theory—which may or may not be altogether sound—that with very few exceptions no one ever resigns from a Cabinet except on health grounds before the Prime Minister is thoroughly glad to sec him go. I myself resigned from a Cabinet. I may be asked whether that is a view of the attitude of Mr. Wilson (as he then was) to me. I have never dared to ask him, so somebody else must
226
find that out one day. We can fairly say that those who did not correspond with Mr. Chamberlain's ideas were disposed of in the way that Mrs. Thatcher has disposed of 18 out of 21 of the Cabinet.
Time does not permit me to run through the rest of the Prime Ministers. Although we are glad to have at least two of them with us this evening, it is one reason for not trying to comment on their performance. It may be pointed out to me that Harold Macmillan one night sacked—
Baroness Phillips: My Lords, it was nine.
The Earl of Longford: My Lords, the number has gone up to nine. He got rid of a third of his Cabinet. I do not think that Mrs. Thatcher has ever disposed of so many colleagues quite so briskly as that. However, it has often been said that one of Harold Macmillan's reasons was insecurity. He felt insecure and took this step to reassure himself. I have always been told—and there may be someone here who will correct this—that when he appeared before the 1922 Committee the next day it kept him waiting for 10 minutes outside the door. I cannot imagine that if Mrs. Thatcher called on the 1922 Committee it would dare to keep her waiting for one minute, let alone 10. The balance of power was very different in those days.
We come now to the time of Mrs. Thatcher. The House is thick with historians tonight, but I submit that the office of Prime Minister would not have been described by Ramsay Muir in 1979 very differently from the way in which he described it in 1929 when he wrote the book. Certainly there has been a big change. I do not think it has been disputed by anyone here that there has been a great change in the way the office of Prime Minister has operated. Some changes have been for the better. Noble Lords opposite are committed to that view. They could not sit on that Bench and hold any other view. Undoubtedly historians will say that a big phenomenon is Thatcherism. Many people will say, "I am very proud to be called a Thatcherite". However, that is the new fact.
What does it amount to? Some will say it is because she is a woman; and that no man would be allowed to dispose of his colleagues in quite that way. There may be something in that. However, leaving out that aspect, she has undoubtedly decided (as I think the phrase is) "You have to be one of us", and only three out of the original 21 turned out to be "one of us". Where are the others now? Some of the best are seated on the Government Benches opposite. The others I suppose will follow in due course. We are very pleased to see them. Mrs. Thatcher's loss is our gain; and how welcome they are.
One has to ask oneself whether there is anything to be done about this situation. I do not think that one can call it a defect in the constitution. Here is a very determined woman who is supposed to have said, "All men are weak, and public school men are weaker than others". I do not know whether she said that, but she probably thinks so. She has been able to treat people in that way. One might say that any Prime Minister could have done so. However, the political circumstances have to be favourable. I do not think

227
it would therefore happen every time. I do not blame her; I do not blame anyone; I do not blame the constitution. We note what has come about. It may well be that with other Prime Ministers the situation will be totally different.
I conclude by saying that there are two ways in which this position could reasonably be restricted. First, the patronage in the hands of the Prime Minister is enormous. The two Prime Ministers present tonight may consider that it was not too great. But certainly it is very large. I learnt that 145 Members of this House were appointed on the recommendation of Mrs. Thatcher. Some would have been nominated by Opposition parties. However, even making that allowance, one has to agree that it is far too large a share of patronage to lie in the hands of any one fallible human being. One can think of ways in which one could set up machinery to restrict that total, absolute power.
Secondly—and this I think in the end is more important—I believe that I am right in saying that all the permanent under-secretaries now in office have been appointed by this one person. If anyone wishes to correct me I shall be put straight. However, I give the Minister notice of this question. It would be very interesting to have his answer because I have met eminent people in this House who have been permanent secretaries and who are by no means sure of the answer.
What is the position of the Prime Minister with regard to the appointment of permanent secretaries? One might also ask about the deputy secretaries, but I shall leave them out of this issue. How long has she had this power? Does she appoint them; or does she merely confirm the appointments What is the arrangement and where is it to be found written down? It would be interesting for all of us—whether we think it is a healthy development or the opposite—to know the nature of this power.
How can it be corrected? That is another matter. I have spoken for long enough. I leave the matter wide open. I remember years ago once hearing Einstein asked whether there was any reason to prefer a limited number of axioms to a very large number if one was drawing up a system of thought. He paused for a long time and said, "It is all a matter of good taste". When it comes to Prime Ministers it is simply a question of good taste as to whether one prefers the present form of government or some earlier government, whether that of the noble Lord, Lord Home, or that of the noble Lord, Lord Callaghan, or whoever it may be. For my part I would never hope to serve under a better Prime Minister than Lord Attlee. However, I am leaving out a comparison of present company. We are very honoured to have them with us tonight.
6.19 p.m.
Baroness Seear: My Lords, the response from the Govenment Benches to the criticisms, and indeed the attack, from the noble Lord, Lord Jenkins of Hillhead, has been carried out by four noble Lords. The noble Lord, Lord Colnbrook, in a very elegant and moderate speech spoke in the manner that one would expect from anyone making a maiden speech.
228
The noble Lord, Lord Beloff, spent 12 of his 16 minutes—presumably believing that attack is the best form of defence—in attacking the new merged party. It will not formally be merging until tomorrow but he is entitled to anticipate events by 24 hours. He gave it a new name which may not be universally adopted. He also attributed to it many views which I do not believe he will find in the publications of that body. However, after 12 minutes he said that he came to the truth which, as he saw it, was about the position and the attitude of the country in relation to the nature of government. He said that the country wanted strong government.
I am sure that when the Government are doing what people want, the people want strong government. However, I shall be interested to see whether the noble Lord. Lord Beloff, can produce any evidence to show that the people want strong government when the Government are doing things which they do not want. For example, if the noble Lord, Lord Beloff, had been with me in the North of England during the election campaign, he would have found that the kind of strong government which the people were experiencing was not particularly popular in many constituencies there. Moreover, the Government will not have forgotten that it was still less popular in Scotland where the Government were totally routed. There the Government had given a particular demonstration of strong government. As a defence for what the Government are doing, and for their present approach, it seems to me to be slightly weak.
The burden of what was said by the noble Lord, Lord Joseph, and the noble and learned Lord the Lord Advocate was in many ways similar. They emphasised the extent to which the Government had freed industry by getting rid of nationalisation and the interference of government through that system. They saw that as a great advance. We on these Benches have never been advocates of Clause 4. To that extent we go a long way towards agreeing that in general there is a strong argument in favour of privatisation, provided that it can be accompanied by competition in the interests of the consumer.
The criticism of the Government is that in their enthusiasm for privatisation or denationalisation —and I agree with the noble Lord that of the two ugly terms the latter is the least objectionable—they have created monopolies, as has been said by several noble Lords speaking from these and the Labour Benches. No freedom has been given to the consumer; indeed the contrary is the case. In proposed further acts of denationalisation, so little are they able to produce genuine competition that they are setting up regulatory systems. They can find no way of denationalising and at the same time providing competition for the particular public utilities. I suggest that that is not a strong argument in favour of what has been done by the Government to get rid of central control.
The noble Lords also spoke of the way in which the Government had decentralised certain aspects of government. I agree with my noble friend Lord Winstanley in that moving a few civil servants from Swansea makes no basic difference to what goes on. Nor do I believe that the new proposals for agencies

229
will be a great act of decentralisation. We were recently told that, although they would make a difference to the running of the Civil Service, they would make no difference to the way in which it was controlled. The control would still remain in the hands of the Government. Why that example should be put forward as a demonstration of the way in which Government are decentralising is difficult to see.
The noble Lord, Lord Joseph, made considerable play of the extent to which deregulation —"taking the burdens off business" is the phrase that a good many noble Lords remember all too well—has been a great act of decentralisation and of increase of freedom. However, that has been an increase of freedom for some citizens but a further limitation of freedom for others. For example, in respect of those people for whom there is no longer a claim for unfair dismissal because the length of their employment has been extended, the removal of burdens and deregulation can hardly be seen as an increase in freedom as the Government would see it. Those were the major defences along with—does the noble Lord wish to intervene?
Lord Joseph: My Lords, I should like to remind the noble Baroness that pay, price, dividend and exchange controls are far more significant than those matters which she has mentioned.
Baroness Seear: My Lords, the noble Lord will however agree that he mentioned all the other matters. The Government have controlled pay largely through unemployment. The noble Lord shakes his head but he would hardly deny that a big increase in unemployment is likely, to say the least, to modify pay claims. The noble Lord again shakes his head but I believe that he would not find many people who would shake their heads with him, except in disapproval of what he has said. Again, that is an example of the fact that what appears to be freedom to some people is not freedom in the eyes of others. As regards exchange controls, I agree that there have been some actions in the economic sphere which have had the effect of decentralising and creating freedoms but the range is very limited.
The major defence put forward by the noble and learned Lord the Lord Advocate was the introduction of Select Committees. Up to a point we would agree that that has proved to be an advance in the control of the Executive by Parliament. However, as the noble and learned Lord is well aware, and as my noble friend Lord Grimond commented, where the exercise of the powers of the Select Committees has been too inconvenient, it has been found possible by the Executive to put considerable curbs upon them. That has limited the way in which the Select Committees have been able to exercise effective control over the working of the Executive. I believe that those defences, as they have been put forward, are not very substantial. If the noble and learned Lord the Lord Advocate was sitting in his judicial capacity, I believe that he would say that the defence for the prosecution was pretty weak.
The defences amount to an admission that the Government do not understand the real substance of the acaisations—or if they do, they do not wish to
230
face them—being made against them as regards the extent to which the countervailing powers essential in a democracy are being weakened and the danger to democracy of any weakening of those powers.
Other noble Lords have referred to the position of the universities. We understand that the Government are making modifications in the proposed regulation of' universities as a result of strong criticism from all quarters of the university world. The fact that those strong criticisms were necessary to make the Government think again is evidence of how little they understand the value and importance attached to university freedom. Other noble Lords better informed than I have pointed out that the Government's treatment of the BBC on a number of occasions shows that they do not understand the importance of having all forms of the media free to criticise so that there exists the important countervailing power.
I should like to turn to two areas of great importance in local government. It is the seed bed of democracy. That is where people learn to exercise democratic freedom and powers and where they learn to be effective democrats. However, that can be done only if they have the powers to exercise. Local government demonstrates the all-important democratic right and duty of looking after the affairs of a local area, and exercising power to the benefit of local people who have put into power counsellors who are answerable to them.
That is at the very heart of democracy, and to weaken local government is to weaken democracy at its very roots. We have been told again and again in your Lordships' House that there have been such abuses of local government power that it has been essential for the Government to step in. But, really, how many local authorities have been dangerously irresponsible? How many dozens of responsible local authorities are there up and down the country, of all political colours, which have exercised their powers with the greatest care and the greatest responsibility?
I say again that if the Government are worried about those extremist and foolish local authorities, there was no need to take the great sledgehammer that they have taken to deal with them and to stop local authorities using moneys which are their own in order to deal with local problems and taking away from them, for instance, powers over their own schools and so on. We can deal with that problem perfectly simply by introducing proportional representation in local government.
The noble Lord, Lord Boyd-Carpenter, always laughs—and he has a particularly high-pitched laugh—whenever I mention proportional representation. The fact that proportional representation may well be particularly appropriate for dealing with this problem has nothing to do with the fact that it might or might not be beneficial to my own particular party. I am arguing the case. I am not doing what noble Lords opposite so often do, which is simply to assert that proportional representation would be of no use whatever. I am arguing that proportional representation would in fact make it extremely difficult to get extremist councils elected, because the proportion of people in the electorate who favour extremist action is so small that they

231
would never be elected. That is an argument: it is not an assertion. If the noble Lord really believes that in many local authorities there are so many people of either the militant Left or the militant Right—and to me they are equally objectionable—that they would in fact be in power on their local authority, I should be very surprised indeed if he could prove it.
Lord Boyd-Carpenter: My Lords, as the noble Baroness has referred to me, will she allow me to say that I did indicate amusement and I hope she did not regard that as discourteous? It happened simply because I find absolutely fascinating the way in which spokespersons from the Liberal Benches succeed in dragging in proportional representation on every conceivable subject and I was delighted to sec the noble Baroness right up to form.
Baroness Seear: My Lords, I point out to the noble Lord, Lord Boyd-Carpenter, that I am not dragging it in. I am mentioning it because it is highly appropriate to the matter we are discussing and I can think of no better way of controlling extremism in local government. The heart of the argument is that extremism in local government had to be curtailed. I am saying that there was no need for the Government to diminish the powers of all local authorities in the way in which they are doing, when there is another instrument to hand which they are afraid to use, because if it were proved to be valuable in local government someone might say it might be a good thing to have at Westminster. I look firmly at the Labour Benches when I say this because their enthusiasm for changes along those lines has not been conspicuous. So the attack on local government has been an attack on democracy, and that we regard as very serious indeed.
When it comes to Parliament there can surely be no doubt, given the present system in our Parliament, about the power of Parliament to exercise effective control, especially when there is a huge majority such as there is at present. I will not drag in proportional representation again; otherwise I shall have the noble Lord, Lord Boyd-Carpenter, on his feet for a second time; but the fact remains that the Government have a huge majority based on a minority of votes. That is just a statement of fact and the conclusions for the parliamentary system I shall leave your Lordships to draw for yourselves. It means that the role of the Back-Benchers has become very slight indeed and their power to exercise control over the Executive is very limited. This is something which causes us all the very gravest concern. It makes it far too easy for the Government to get their own way, regardless of criticism even from their own Benches.
I might mention the way in which the Government, not content with that power, are pushing it still further. I think I am right in saying that one of the few powers remaining to Back-Benchers has been the power to introduce a Private Member's Bill. Am I not right in saying that when Mr. Shepherd introduced his Bill a few weeks ago, for the first time ever the Government produced a three-line Whip against a Private Member's Bill—thus reducing still further one of the few powers still remaining to Back-Benchers? What will be the use of having the right to
232
introduce a Private Member's Bill if, when the Government do not like it, they can put a three-line Whip on against it?
Then there is the question of your Lordships' House. If the Government were really serious about the importance of strengthening the legislature against the Executive and if they recognised that this is an issue of importance, they would take the opportunity while in government to reform your Lordships' House so that it represented a more legitimate base of criticism for the Government. I believe your Lordships realise that again and again in this House we know that we are right and the Government are not right in the legislation they bring forward. However, because of the base on which this House stands we hesitate to exercise the kind of control over the Executive that we ought to exercise. Moreover, a House which had more confidence because of the base on which it rested would be a much more powerful challenge to the Executive. That may indeed be one reason why the present Government have done nothing about it. It always seemed to us that this would be the ideal opportunity.
We were always told in the past—though I must say we have heard much less about it recently—that the Labour Party wanted to get rid of your Lordships' House. There has been silence on that subject recently. But it would surely be better that this reform should come from a Conservative Government and that this House should be put into a position of really being a second limb and able to exercise the kind of challenge to Government that a strong Parliament needs. Without strong opposition in Parliament, parliamentary democracy withers.
6.38 p.m.
Lord Morton of Shona: My Lords, we are grateful to the noble Lord, Lord Jenkins of Hillhead, for initiating this important debate, which has ranged far and wide. It is my pleasant duty to offer congratulations to the noble Lord, Lord Colnbrook, on his maiden speech. With as little parliamentary experience as I have, there is something slightly Gilbertian about my offering congratulations to someone as experienced as the noble Lord, Lord Colnbrook. The noble Lord, like the noble and learned Lord, the Lord Advocate, mentioned the Select Committees. They are indeed beneficial; it is unfortunate that the Government appear to pay so little attention to them and even block them, as they appeared to do in the Westland inquiry.
Your Lordships have raised a whole range of issues, including the press and the BBC. I was interested particularly in the speeches of the noble Baroness, Lady Blackstone, and of the noble Lord, Lord Donoughue. I am inhibited on this subject, not because I do not agree with Lord Justice Bingham that freedom of the press is not an optional extra, but because I am professionally involved in a case in Scotland where I am acting for people on the other side from the noble and learned Lord who is to speak next. I think it would be inappropriate to comment further on this type of issue.
Freedom of choice has been one of the Government's main supports. The noble Lord, Lord Joseph, rightly referred to freedom from control of

233
prices, pay, dividends and exchange. We on this side would find it unfortunate if, with that, there was freedom for unemployment to rise as the natural consequence of the Government's industrial policies. The Government have given wide choice to those who can afford it. In our view, they have reduced the freedom of choice of the poor by increasing the burden of taxation on them. Our policies were and will be designed to give to those who now cannot afford to choose the opportunity to have a real choice.
Parliament is regarded as supreme. As we have been told, we have no written constitution, no entrenched clauses and no paramount declaration of rights. The courts, because of the supremacy of Parliament, have not been given power to protect individuals or groups against the Executive, except in very limited ways. The elective dictatorship that the noble and learned Lord, Lord Hailsham of Saint Marylebone, raised 10 years ago is now clearly much more dictatorial.
There is now apparently, according to the comments of the noble Lord, Lord Walston, my noble friend Lord Longford and the noble Baroness, Lady Blackstone, too much power in the hands of the Prime Minister and not enough with the Cabinet. I do not think that I am competent to comment. It may be so. It certainly appears that the power of Parliament as against the Executive has been very much reduced. The remarks of the noble Baroness, Lady Seear, on the reform of the House of Lords are welcomed on these Benches. We would certainly welcome reform of this House.
It may be that some method will have to be introduced so that judicial review is not restricted to the extent that it now is. Judicial review does not seem to be a suitable or sufficient remedy. The merits of an executive decision cannot be challenged unless it can be regarded as wholly irrational. One can only challenge the procedure in reaching the decision. This often means that the courts tell the Government how they should properly set about doing something, and the Government then go and do it. Perhaps it is time to consider whether the courts should have a wider jurisdiction to hear challenges of executive action.
The noble Lord, Lord Beloff, raised the question of comprehensive schools in the life of the last Labour Government. As I understand it, the education Bill now going through Parliament gives no power to a local authority to challenge the Executive as to the form of schools. I remind the noble Lord that in the Tameside case in 1976 a local authority did just that in respect of comprehensive schools. There was power then. But the Government in the current legislation have decided against such a power. Because of that kind of change, I suggest that we consider giving the courts power to challenge the merits of decision so that people will be able to say, "This executive decision is manifestly unjust and should be challenged." The power exists in many other democracies. I suggest that our democracy is not so perfect that we cannot learn from others.
It is local authorities that perhaps most of your Lordships have concentrated upon. In 1971 the White Paper on local government, produced by a Conservative Government, said:
"A vigorous local democracy means that authorities must be given real functions with power of decision and the ability to take action
234
without being subjected to excessive regulation by central Government through financial and other controls".
The noble Lord, Lord Joseph, suggests that a Bill presently going through Parliament will increase the availability of housing for rent. I suggest that local authorities find it difficult to understand why in the last nine years they have been prevented from spending money on building houses, especiallly when that money has accrued from the sale of council houses.
The Government disagree—at least, I presume they do—with what was said in the 1971 White Paper. They have imposed an immense edifice of controls. They have removed power from local authorities and either assumed control themselves or appointed quangos to take over, as in the case of inner city development. I presume that that is their intention because yesterday's Hansard at col. 90 contains the most astonishing assertion by the Government that I have seen for some time. It is that,
"it is not the Government's policy to interfere in local government".
I am not quite certain what they think they have been doing over the last nine years. In Scotland we have gone from the Tenants' Rights, Etc. (Scotland) Act 1980 through numerous Acts controlling spending and publicity to the abolition of domestic rates legislation; and now we have the Local Government Bill and the Housing (Scotland) Bill.
In Scotland the latest example of not interfering in local government is a prime ministerial intervention in the matter of a school closure, which resulted in a statutory instrument being put through on 26th January to alter the system and make closures of schools referable to the Secretary of State rather than a matter of decision for the local authority. The Joint Committee on Statutory Instruments considers this to be a failure to comply with the statutory instruments legislation. The drafting was described as "substantially defective". However, the Government just go ahead with the regulation, which certainly takes the power from the local authority to decide which school should close and gives it to the Secretary of State. If the editor of the Sunday Times had not been a one-time pupil of that school, there may well have been less concern.
The noble Lord, Lord Donoughue, my noble friend Lord Longford and other noble Lords referred to patronage. Prior to the office of this Government, it was the practice of successive Secretaries of State—most notably perhaps the noble Lords Lord Campbell of Croy and Lord Ross of Marnock—in making appointments to local boards and local authorities, to be careful to ensure that they were properly representative of the area concerned. That has all gone. As my noble friend Lord Longford said, the appointment now will be of someone who is "one of us". Not only are the boards now unrepresentative, but their number has increased, or at least partly so, to allow Ministers to avoid responsibility. Even then, however, government interference occurs. The health boards in Scotland have been told—against the wishes of the members of the boards, it appears, judging from what they say on television—to enforce competitive tendering. This is despite evidence such as that reported in The Times yesterday to the effect that private sector tendering is not effective in cleaning hospitals.

235
The wishes of local governments and local electorates are being completely ignored. As has been pointed out, the Government have forced through the poll tax Act. The noble Lord, Lord Sanderson of Bowden, proudly asserted that he had found one local authority official who favoured it. The result of the election showed how the people of Scotland viewed it. Why should not people in Scotland be able to control their own local affairs?
The noble Lord, Lord Beloff, asked where devolving of power had occurred under any previous Labour or Libral Government. Has he forgotten the devolution for Scotland Act of 1978? Certainly there were attempts to get devolution. Why should the people of Scotland, Yorkshire, Devon or Wales not be able to run their own areas as they wish, in the areas where they have particular local interests?
There has been much discussion about universities and education on which I do not feel that I should take up the time of your Lordships. This debate has been about democracy and freedom. The concentration of power in the Executive is a denial of both. That is because it is an attitude of superiority—"We, the Government, know best what is good for you, the people." It is the nanny principle which treats anyone who disagrees as being a mentally defective child, if not criminally disposed.
Being the son of a Church of Scotland minister I was brought up to believe that every person is of equal worth. Being trained in the law I was taught that it was the law of Scotland that everyone was equal in the sight of the law. I think that principle is asserted in England. I suspect that it is certainly asserted in Wales. There are no doubt defects in our countries about the way the law applies equality, but I believe in equality for both the reasons of my upbringing and my training. I believe that equality is the basic reason for our democracy.
Oliver Cromwell, one of the founders of British democracy, was always prepared to consider the arguments of the other side. Before the Battle of Dunbar—which was in 1650, if my memory serves me right—he addressed the Scots kirk leaders and asked them to consider that "ye may be mistaken." We on this side of the House consider that the Government's attitude is wholly mistaken and that it is dangerous to democracy that the Government show no inclination to listen.
6.53 p.m.
Lord Cameron of Lochbroom: My Lords, with the leave of your Lordships, on behalf of the Government I shall endeavour to sum up some of the themes that have run through this extremely important and thoughtful debate.
The noble Lord, Lord Walston, at the outset took me to task for not approaching this in an historical way. I had eschewed that thought because it seemed to me that it was better to look at the present than to consider the past. Indeed, that was a point put more forcefully by my noble friend Lord Beloff. However, I do recall that, as the noble Lord, Lord Cledwyn of Penrhos, reminded us, it is 100 years since the County Council Act was passed and Frederick Maitland,
236
writing about the constitutional law of England, pointed out that that made England—he referred to England—a much governed country. It is therefore perhaps important to keep in mind the effect of the local government reforms which sprang from the great reform Act of 1832 as being something new. Democracy as we knew it, if it existed in the sense we think of it, existed only in parliamentary terms until about 1832. It is the 1834 Act, and subsequent Acts, that began to reform the whole basis of local government.
My noble friend Lord Joseph made an extremely important speech. He took up and put to the House certain detailed and specific questions with regard to this Government and their diffusion of power. I have to say that it appeared to me, at the end of the day, that those questions remained unanswered. The noble Baroness, Lady Seear, asked about and to an extent accepted that deregulation involved the Government giving up powers which they have previously held to regulate the economy. That is a most important part of any question of powers in a government and one which existed in government before 1979 and was given up by this one. Equally, this Government, by a process of denationalisation, has given up what otherwise has been termed the commanding heights of the economy—
Baroness Seear: My Lords, I am sorry to interrupt the noble and learned Lord; but since he mentioned me on the question of deregulation, perhaps I may say that I admitted that this increased freedom for some, but I also made the point (which was the substance of my argument) that it limited freedom for others.
Lord Cameron of Lochbroom: My Lords, I listened to the noble Baroness and she made the point that control came through unemployment, but the Government's view is that unemployment is affected by the process of wealth creation, and we have seen the success of that policy over the past three years.
In some ways I have been diverted because one of the most important points which was the subject of substantial discussion concerned the relationship between Parliament and the Executive. I was very happy to hear the noble Lord, Lord Cledwyn of Penrhos, indicate his confidence in the bicameral system. We all have seen the importance of that system over many years—perhaps more particularly recently. However, we must bear in mind that the other place is an important part of the parliamentary process. It is the House in which the person who commands the majority becomes the Prime Minister.
I suggest that some of the fears that have been expressed today about the lack of countervailing forces stem from something which my noble friend Lord Joseph said—the importance in a parliamentary democracy of having a strong Her Majesty's loyal Opposition. It may be that what we have been discussing today as being the excesses, it is said, of strong government really reflects the fact that we do not presently have the strong Opposition which our proper parliamentary democracy requires. The reasons for that are many and I do not speculate upon them; I simply make the point to your Lordships.

237
Another matter was raised with regard to the procedures of this and the other House. I was heartened by the views of the noble Lord, Lord Winstanley, on the matter of Select Committees. I am in no doubt that they are important. I have to say that, having received correspondence from Members of the other place about their constituency problems, I do not think the fears expressed that they do not represent constituency interests are well placed. I suspect that they do and that they express their views forcefully.
The noble Lord, Lord Winstanley, took me to task on the devolution of executive powers in relation to departments being sent out to other parts of the country. I suggest that they do contribute to the diffusion of power. They increase the number of centres of management. They give individual managers more opportunity to exercise initiative and responsibility, and they reduce the inefficiences which arise from excessive bureaucratic centralisation. Perhaps those are the acorns from which great oaks will grow. I believe that the noble Lord accepted that if it were to go further it may well have other and beneficial effects for the periphery. I have taken careful note of what the noble Lord and others have said on this issue.
Another issue which arose was that of the power of this Prime Minister. It was suggested that she exercised an influence which was disproportionate to her office. I accept that she is a very strong leader, but I observed the other day—contrary to what the noble Baroness, Lady Blackstone, suggested—that she does listen to her Ministers. If the newspapers are correct, it appeared that she was persuaded by the Secretary of State for Energy to adopt a different view as regards the manner in which electricity privatisation might go forward. Other noble Lords probably know her far better than I. I have never myself found her unreceptive of advice. We are talking about a strong Cabinet—
The Earl of Longford: My Lords, is the noble Lord going to say anything further in reply to the questions which I gave notice of?
Lord Cameron of Lochbroom: My Lords, I have not forgotten them. I was going to deal with those matters in a moment. My right honourable friend the Prime Minister undoubtedly runs a strong Government and she has a strong Cabinet. It was suggested that she now has only three out of her original Cabinet. But she has been in office now for nine years and it is perhaps not surprising that during that time it was appropriate to allow for a certain number of changes in high office. I should have thought that noble Lords who have far more knowledge than I of government would agree that there should be changes at times otherwise the system whereby a party draws support from its members becomes stultified. It has already been pointed out that those who have Cabinet experience have now made their appearance here. I should have thought that they were a most welcome addition to your Lordships' House.
A number of your Lordships—notably the noble Earl, Lord Longford—the noble Lord, Lord
238
Donoughue, and the noble Baroness, Lady Blackstone, referred to the issue of patronage. So far as I am aware, the powers which the present Prime Minister has are in fact no different from those which were available to her predecessors. There has been no change in this matter. However, because of the length of time which she has been in office, it inevitably means that she has had to consider a greater number of appointments than most of her predecessors.
The Earl of Longford: My Lords, perhaps I may ask the crucial question: does she make the appointments?
Lord Cameron of Lochbroom: My Lords, as I understand it, the matter of appointments which she has to consider are, for instance, the appointment of senior civil servants, judges and bishops and any other persons whose appointment requires the approval of the Prime Minister. That being so, at the end of the day these must be matters which are for her to decide. I hope that gives the response to the noble Earl.
The Earl of Longford: My Lords, I am afraid it does not.
Lord Cameron of Lochbroom: My Lords, I shall look at what we have said and if I may, I shall write further to him on the matter.
The noble Lord, Lord Winstanley, raised the interesting issue of a fixed-term parliament. All these matters including that of reform must be a matter of consensus between the parties. I would not wish to be taken further as regards that subject. There was one issue which I was concerned about. In particular the noble Lord, Lord Cledwyn, and other noble Lords referred to the question of delegated legislation. This is not something which is in any sense new. First, the use of such legislation enables Bills to be freed of many detailed and technical matters which would otherwise clutter up the statute book. Equally, where a scheme is going to require frequent amendment, it is sensible for it to be in the regulations rather than in the primary legislation in order to avoid the provision of a further Bill each time an amendment is needed. I remind your Lordships that any proposed statutory instrument rather than a Bill does not mean that it escapes scrutiny by parliament. It is considered for both its legal and procedural aspects by the Joint Committee on Statutory Instruments. The noble Lord, Lord Morton of Shuna, made reference to one form of scrutiny of a statutory instrument which has just taken place.
I am aware that these matters have been subject to criticism from time to time. I simply echo a point made by my noble and learned friend the Lord Chancellor in the course of the Third Reading of the Legal Aid Bill. He pointed out that the current legal aid legislation and scheme requires something of the order of 60 separate powers. The Bill which has just passed through your Lordships' House contains only 50. The noble Lord, Lord Cledwyn, referred to the Education Reform Bill which is going through. I believe he pointed out that there are something of the order of 180 new powers.

239
I have to say—and perhaps this is a matter that we can look at in more detail in due course—that we have to see what these powers involve. My understanding is that the vast majority of them are minor or consequential powers which are necessary for carrying out a more significant power or duty designed to enable, for instance, responsibility to be devolved to individual schools or colleges. That is precisely what the Bill is about.
Lord Cledwyn of Penrhos: My Lords. I am most grateful to the noble and learned Lord. He has not dealt with the gravamen of this argument; namely, that in several Bills this Government have transferred important powers from elected authorities to Ministers and to quangos. This has been done progressively over the past few years. This is a matter of high concern to those on this and on the other side of the House.
Lord Cameron of Lochbroom: My Lords, I believe that I dealt with that in my earlier speech. I do not accept that Ministers have taken additional powers. We have established certain independent bodies to whom we have given powers but they remain independent of government.
As regards the matter of the local authorities, as it has been pointed out we have abolished the Greater London Council and the Metropolitan Counties. That was to secure a more simple and efficient form of local government. The powers were taken to the lower tier.
The noble Lord, Lord Morton, raised the question of devolution. Since this matter was the subject of a debate very recently in this House, I hope that the noble Lord will forgive me if I do not go through the arguments made at that time. They were stated quite clearly on behalf of the Government by my noble friend Lord Sanderson of Bowden.
The Education Reform Bill and in particular the provisions for higher education were the subject of substantial comment by many noble Lords, including the noble Lord, Lord Jenkins, at the beginning of the debate, the noble Lords, Lord Cledwyn, Lord Joseph and Lord Grimond, and the noble Baroness, Lady Blackstone. The Government have received many comments on the higher education provisions of the Bill, as my noble friend Lord Beloff made quite clear. The Government do not have the sinister motives that are sometimes imputed to them, and no government would do other than wish to maintain a healthy higher education provision. That is what we seek to do in the Bill.
The noble Lord, Lord Cledwyn, also referred to press freedom. The noble Lord will perhaps forgive me if, like the noble Lord, Lord Morton, I am careful in what I say on this subject. Noble Lords will understand that I am presently involved in Scotland in a case concerning this matter. Therefore I do not wish to comment further.
The noble Baroness, Lady Blackstone, referred to what she termed the raid on the BBC as in some way involving government. Perhaps I may invite her to read the Hansard report of a Private Notice Question and the Answer which I gave in response to the noble
240
and learned Lord, Lord Wilson of Langside, early in February last. I hope that that will set the matter in perspective. That is the most I can do other than to say in general that the Government have made clear the reasons certain legal action was taken. This does not in any sense indicate that we are endeavouring to bring into existence some form of censorship of the press.
In his most interesting speech my noble friend Lord Colnbrook referred to the importance of government being able to govern and having the will to do so. He pointed out the need for an authority in Parliament also. The Government entirely endorse everything he said on that matter and endorse his final view that they would never be party to a concentration of power involving a diminution of Parliament's authority. How could it be otherwise when it is to seek approval that they come before Parliament to put their policies and to have them debated and discussed before they can be given effect?
The noble Lord, Lord Grimond, mentioned the issue of the judiciary being involved in statutory interpretation. The noble Lord, Lord Morton, went further in his arguments with regard to an extension of administrative review. As a matter of principle I caution your Lordships about proceeding along this line. As I said in my opening remarks, we depend upon a balance between the Executive, the legislature and the judiciary. It has always been the case that it is before the legislature that they should take responsibility for their acts and not allow the judges who are not elected to be involved. Indeed, the judges themselves have made clear a desire not to be involved in the political decisions. No doubt the noble and learned Lord, Lord Elwyn-Jones, would be forceful on that issue.
The noble Lord, Lord Donoughue, dealt with the view of achieving a proper balance between central and local government. On that matter he said that Whitehall does not know best. In her speech, the noble Baroness, Lady Seear, referred to the local authority and its schools. It is surely the schools in which the parents are most interested. It may well be that at times the local authority does not know what is best for the school and therefore there is need for a board for schools.
It was for that reason, among others, that my right honourable friend the Secretary of State intervened to make clear that, where an education authority sought to close a school, in certain circumstances it would require to obtain the consent of the Secretary of State. That power had been available under previous Labour Governments and, I accept, under the Conservative Government until about 1981, a point which the noble Lord, Lord Ross of Marnock, made in the course of an earlier debate.
Lord Morton of Shuna: My Lords, I was endeavouring to make the point that the Joint Committee on Statutory Instruments had challenged the legality of the regulation and its drafting. The Government just sailed on without paying any attention.
Lord Cameron of Lochbroom: My Lords, with respect to the noble Lord, he ought to read the report. My recollection is that the report included the

241
response which indicated the view that it was considered to be within powers and to have been legally put before the House in accordance with the 1946 Act.
Baroness Blackstone: My Lords, on the subject of parents, to which the noble and learned Lord has just referred, will be answer the question that I put earlier about the parents' poll in ILEA and what the Government intend to do?
Lord Cameron of Lochbroom: My Lords, I was about to deal with some of the points the noble Baroness had put to me. The first one concerned the Official Secrets Act. We on this side of the House accept the need for reform of the Act. As is well known, my right honourable friend the Home Secretary has announced that proposals for reform will be set out in a White Paper which it is hoped will be laid before Parliament in June this year with a view to early legislation.
As regards ILEA, my understanding is that the Bill as originally drafted gave each of the 13 inner London boroughs the right to opt out of ILEA and to run its own education service like the outer London boroughs. I am advised that four boroughs indicated they would opt out and others showed an interest but were worried about the prospects of a rump of ILEA remaining, consisting only of the poorest boroughs. In the light of those concerns, and indeed of strong Back-Bench opinion which was expressed in another place by way of an Early Day Motion, the Government decided not to allow ILEA to continue and have tabled amendments whereby ILEA will be abolished in 1990. Therefore all London boroughs will be on the same footing. I hope that that answer at least gives a response to the point made by the noble Baroness, Lady Blackstone.
Baroness Blackstone: My Lords, with respect, I do not believe that what the noble Lord has just said answers my question. It merely tells us something that we already know.
Lord Cameron of Lochbroom: My Lords, if that be so, then I am sorry that I have not been able to supply the noble Baroness with any further information.
The noble Lord, Lord Ezra, dealt with the matter of denationalisation in many of the services. As I understood it, the point he was making was that those were near monopolies and therefore there was only a limited element of competition that could be employed. The Government have already made plain their views on that issue. Indeed, as regards the telcommunication and gas industries, I think your Lordships had an opportunity to debate that matter only last week. It would be otiose for me to take the matter further.
We believe that it is proper and possible to obtain substantial advantages in many ways from the denationalisation of those further industries. We also believe that as a result of such action many advantages will accrue to the nation.
The noble Baroness, Lady Seear, towards the end of her speech, referred to the issue of local democracy and of local councils. That same point about local
242
councils was made, I think forcefully, at the outset by the noble Lords, Lord Jenkins of Hillhead and Lord Cledwyn of Penrhos. I am bound to say that it would have been pleasant if it had been unnecessary to bring such legislation in to make councils act in a proper and reasonable way when seeking tenders and when trying to secure the best value for money for their ratepayers. The point made in relation to that issue by the noble Lord, Lord Joseph, was a very cogent one. In some respects of course it must be a matter of regret that that policy was necessary because we accept that many councils carried out their functions properly. Nevertheless, we were obliged to deal with those who were not doing so. It is only the latter that have anything to fear from the powers we sought to gain from Parliament.
There were a number of other matters raised by the noble Baroness, Lady Seear, in connection with local democracy. I think she described representative councils as being the "seed bed" of democracy with local councillors close to their representatives. I do not dispute all that she said. The important aspect is that where they affect the national interest by the policies they pursue, they go beyond the bounds and ambits of their functions. It is only then—and rightly so—that it may be necessary to intervene and thereby restrict their functions.
Any study of local government history would reveal that it is jejeune to assert that it is only in the past 10 years that local government functions have been curtailed in favour of centralised administration.
In the 1950s the late Herbert Morrison wrote that it was:
"a matter of some concern that the functions of local government have tended to diminish in a number of respects, and that local authorities are increasingly subject to control and instructions from Whitehall".
By that time therefore the process which your Lordships have taken to issue was well underway. Herbert Morrison went on to say:
"Gas, electricity, hospitals, public assistance, and valuation have been taken from local government. If it cannot he helped, taking account of the larger public interest involved, well, that is too bad".
Let us look at the situation from where we stand today. We find that gas is back in private hands; electricity is about to be privatised and hospital administration is under review. We are putting responsibility back to local decision. As regards social security—which is what has followed on public assistance—we have established an organisation that is completely independent of the Department of Health and Social Security to administer and run social security appeal tribunals. In all of those areas the Government have made such matters the subject of diffusion of power.
I am conscious that in my summing up I have not been able to answer all the points that were raised. However, I have endeavoured to do so on all the major issues that your Lordships raised. I must say that the way in which the Government have acted, far from centralising power, has in fact distributed it away from the executive arm and secured more effectively that freedom of choice is the guiding light in our society. We have also ensured that opportunity—despite what the noble Lord, Lord Morton, said—is now offered to those who have thus far been so denied.
7.27 p.m.
Lord Jenkins of Hillhead: My Lords, I should like to thank the 15 noble Lords who have taken part in the debate which started four-and-a-half hours ago. I should especially like to thank the noble Lord, Lord Colnbrook, for his excellent maiden speech in which he gave us all an object lesson by demonstrating his old Chief Whip skill of how to be succinctly authoritative. I also took much pleasure from the speech of the noble Lord, Lord Beloff. He began, I thought, by rebuking the noble Baroness, Lady Blackstone, for having played party political ping-pong in her speech, instead of applying an objective analysis to the subject. He then went on to generalise it. I thought her speech was a striking one. However, he then proceeded, in the most entertaining way, to make more party political points than I have ever heard made in any speech since I joined the House. Nevertheless, it was a most enjoyable performance.
I thank the noble and learned Lord the Lord Advocate for having replied twice to the House. I do not think he need apologise for not having been able to cover the subject exhaustively. I think to some extent he and I—at any rate, in his intervention this afternoon—passed slightly like ships in the night; respecting each other's water space but perhaps not exchanging many mutually comprehended beams of light.
I now switch to another metaphor; another form of transport which is perhaps better than a "near miss". I thank the noble and learned Lord the Lord Advocate for the attention that he has given to the debate. Furthermore, I hope that this debate has been useful. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.

Northern Ireland (Emergency Provisions) Acts 1978 and 1987 (Continuance) Order 1988
7.29 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 16th February be approved [17th Report from the Joint Committee].
The noble Lord said: My Lords, the order presents something of an unusual day so far as Northern Ireland debates are concerned. On a number of occasions in the past, my predecessors and I have come to the House to seek your Lordships' approval of the renewal of the emergency provisions, but always on a six-monthly basis. Following changes brought about by the Northern Ireland (Emergency Provisions) Act 1987, this is the first of what will now be annual debates on these matters. This year, for the first time, we also have the report of my noble friend Lord Colville of Culross, to inform and enlighten our discussions.
In a moment I should like to give a brief summary of the security situation over the past year or so, which will go some way to explain why the Government feel it necessary to recommend that the provisions of the Acts should be continued in force for a further period.
But, first, it might help your Lordships if I were to give a brief reminder as to what the two Acts contain. To begin with, the 1978 Act. This serves three purposes; it provides the security forces with extra powers to deal with the special problems of terrorism in Northern Ireland. These include powers to stop and question, arrest, enter, search and seize. It also provides powers to proscribe organisations and creates offences concerning the collection of information which might be of use to terrorists, training people in the manufacture or use of firearms or explosives for improper purposes, and displaying public support for proscribed organisations. It also provides the legal authority for the so-called "Diplock-courts" which under serious terrorist-type offences are tried by a single judge sitting without a jury. The provisions relating to all of these powers will lapse on 21st March this year unless continued in force by the order we are considering today.
I turn now to the 1987 Act. This came into force in June of last year, since your Lordships last debated the emergency provisions. It gave effect to certain recommendations by the late Sir George Baker and made a number of important changes to the earlier Act. I shall take your Lordships through the changes. First, all emergency arrest powers now require "reasonable grounds for suspicion". Secondly, searches of dwellings and searches of persons other than in a public place now require "reasonable grounds for suspicion". Thirdly, the maximum period for which the RUC can hold a suspected terrorist on its own authority is now 48 hours, instead of 72. Next, the onus in hail applications in scheduled cases is now on the prosecution, rather than the defence. Next, the statutory guidance on the admissibility of confession evidence in scheduled cases was rephrased to reflect the courts' view that admissions obtained by the use or threat of violence should not be admissible, and to state the judges' discretion to exclude any admission in the interests of justice or out of fairness to the accused. The most important change is that both Acts will now lapse in 1992. If similar provisions continue to be necessary they will have to be re-enacted by means of a Bill.
In addition, the 1987 Act introduced a new statutory right for persons arrested under the emergency powers to have someone notified of their arrest and whereabouts, and to have access to legal advice. The Act also gives my right honourable friend the Secretary of State the authority to impose statutory time limits on pre-trial stages of proceedings and introduces a statutory scheme for regulating security guard companies in Northern Ireland. These provisions are also subject to the renewal procedure.
There is one part of the new 1987 Act which I should like to draw specifically to your Lordships' attention. This is the Part III, which sets up a new statutory scheme for regulating security guard companies in Northern Ireland. This part provides that from the 1st January 1988 it is an offence to provide, or to offer to provide, security guard services without a certificate from my department. A certificate can be withheld or withdrawn where a proscribed organisation, or an organisation closely associated with a proscribed organisation, would be likely to benefit from the issue of such a certificate. In other words this arrangement was introduced to

245
choke off money destined for terrorist organisations. This is part of a sustained approach from government to deal with the very serious problem of paramilitary financing. I am glad to say that the scheme appears to be working. As my noble friend Lord Colville commented in his report, a number of companies did not apply for a certificate when they were given an opportunity to do so.
The 1987 Act was therefore a major piece of legislation which was designed essentially to refine the emergency powers in a way which would help to maintain the sensitive balance between protecting the rights of individuals and making sure that the security forces have effective powers to tackle terrorism. Today's debate is the first substantive opportunity that your Lordships have had to consider how the revised 1978 Act has operated, together with the other new arrangements introduced by the 1987 Act.
Those then are the main provisions of the two Acts we are considering today. I should now like briefly to turn to the report by my noble friend Lord Colville of Culross to which I have already referred. My noble friend was appointed last year to review the operation of the two Acts during the year, and to advise on whether any of the provisions currently in force could be allowed to lapse. On behalf of Her Majesty's Government, I should like to thank him for the thorough and interesting report that he has produced. I am pleased to see that he is behind me, because I have to tell your Lordships that my sight gets worse and worse. I am able to identify the players in front of me. I am pleased that my noble friend is in range and visible behind me. We are all grateful for the work that he has done, not just on this report but on others which your Lordships know are available in the Printed Paper Office.
I should like to refer your Lordships to the first of my noble friend's main conclusions. This was—I quote from page 7 paragraph 3(i) of his report—that
"the overwhelming view is an insistence on, or acceptance of, the emergency powers remaining in force".
In other words, my noble friend's clear conclusion was that the time has not yet arrived when any of the provisions should be allowed to lapse. As is clear from the terms of the continuance order before the House, that is also the view of the Government. This would seem to be an appropraite moment for me to emphasise that both I, and the rest of the Government, regret that in 1988 it is still necessary to have special measures to deal with terrorism in Northern Ireland.
I am pleased that the noble Lord, Lord Blease, agrees with that, because we all know that this epidemic of terrorism has continued for close on 20 years. All of us in your Lordships' House, and, I believe, throughout these islands and throughout the world, will be pleased when the day arrives that the powers contained in the Act and described in the order are no longer necessary. However, we are convinced, given the continuing high level of terrorist violence in the Province, that there is no alternative at present but to keep the current powers in force. I hope that whatever the view of your Lordships on these powers all noble Lords will take heart from some of the comments made by my noble friend in his
246
report. On page 3, in paragraph 1.5 he started by saying that he,
"gained the impression that the Act is being used with due reflection, moderation and commonsense; that refinements of earlier activities have reduced the reaction, at least, to what are seen as oppressive powers; and that the courts are strict in their interpretation of police and military activities both in criminal and civil suits".
He went on to say in section 5 of the report:
"The Northern Ireland courts arc astute to interpret the Emergency Provisions Acts most strictly in favour of the liberty of the subject".
I hope that everybody in your Lordships' House and everybody who takes an interest in the debates both here and in another place will draw reassurance from these remarks of the noble Viscount, Lord Colville.
Although my noble friend did not suggest that any of the provisions should now lapse, he made a number of other suggestions and recommendations which he believed would lead to improvements. Of course, they are not directly relevant to the main question before us this evening. I should like to comment briefly on one or two of them. My noble friend suggested that our statistical information on the operation of the two Acts could be improved. That is something we shall certainly consider and I hope we shall be able to assist my noble friend further in the future.
Another of his main recommendations was that robbery and aggravated burglary should be removed from the list of scheduled offences. As a general principle, we are very anxious that as many cases as possible should be heard by jury trial. This is something which we shall therefore consider very carefully. At the same time we shall consider his recommendation that urgent steps be taken to remedy a technical deficiency in Schedule 4 to the 1978 Act regarding the Nuclear Material (Offences) Act 1983.
In section 7 of his report, my noble friend also made a number of suggestions as to the contents of the proposed code of practice relating to the exercise of emergency powers. I should like to take the opportunity this evening to reassure him, and indeed your Lordships about one important point which my noble friend made in this connection. He was concerned that the code would not cover the exercise of the power of arrest contained in Section 12 of the 1984 Prevention of Terrorism Act. This is the main power of arrest used in Northern Ireland in connection with terrorism and I can assure the House that it will indeed be covered by the code. I hope that that will be of some reassurance to my noble friend. I am sure that he and all of us will have more to say about it in the future.
I have been taking your Lordships through the mysteries and wonders of the main provisions of the two Acts we are considering this evening, together with some of my noble friends' comments upon them. Perhaps I may take your Lordships briefly through the backdrop which reflects our examination of these provisions. That, of course, is the security situation in Northern Ireland. As noble Lords will know and everybody will be aware, terrorism still haunts the life of Northern Ireland. Shootings and bombings continue at a high level and increased in 1987 to the levels of the early 1980s. Since January last year, 105 people have lost their lives as a result of the emergency. This figure includes eight IRA gunmen who died at Loughgall, six terrorists who

247
blew themselves up with their own bombs and seven members of the Irish Nationalist Liberation Army who were murdered during a bitter internal feud of their own.
But the figure of 105 also includes 11 members of the armed forces and 16 members of the Royal Ulster Constabulary and the Royal Ulster Constabulary Reserve, together with—let us not forget—the 11 innocent civilians who died at the war memorial in Enniskillen in one of the more callous and appalling attacks of the whole of the terrorist campaign. Never let us forget that the figure of 105 includes two more deaths—those of Lord Justice Gibson and his wife who were callously murdered by a horrendous explosion as they returned from holiday last April. I am sure that all noble Lords will join me in expressing our condemnation and revulsion at this appalling, tragic and wasteful loss of life.
At the same time I want to reflect a brighter note by expressing the gratitude of the Government for the amazing and continuous courage and determination of the security forces, the police and the army, for their efforts to uphold the rule of law in Northern Ireland. Past events have brought the police in particular much into the limelight of late but I have no hesitation in saying that the community as a whole owes them a great debt for their tremendous, herculean efforts over the years.
I have pointed out that terrorist violence continued at a high level in 1987; there were one or two new developments in this scenario. Of course 1987 saw the introduction of what we now call the "drogue-bomb", a device made of high explosive which is used by the Provisional IRA to try to penetrate armoured vehicles. This device—some 50 have been used since the summer of last year—claimed the life of a police officer on 25th January this year. The discovery of a massive arms shipment on the "Eksund" was a major bonus for the forces of law and order but has led to greater worries that similar shipments may already have got through.
Despite the high level of terrorist activity, there have been a number of major successes on the part of the security forces. They have continued to bring prosecutions before the courts. In recent years, an average of some 600 people a year have been convicted for terrorist-type offences. The security forces have also seized some 13,000 pounds of explosives since the beginning of last year. I am given to understand that that is in the region of 6 tonnes of explosives, something like the area of two rows of Benches in your Lordships' House. That is the amount of explosive that has been seized since the beginning of last year. And that is only the explosives. Over 80,000 rounds of sundry ammunition have also been seized. In the last five months alone, there have been 13 major arms finds, including four in the Republic. All of these have led to the recovery of large quantities of explosives and ammunition as well as other bomb-making equipment, rifles, pistols, hand grenades, mortars and RPG 7 rocket-launchers. Not all were destined for the Republican paramilitaries.
The security forces north of the border have also continued to enjoy close co-operation from their counterparts in the south. We in the Government
248
want to acknowledge and express our gratitude to the Irish authorities for their efforts to deal with the terrorism and for the support we have received from them. Despite the setbacks of recent weeks, they have continued to give full co-operation at working level. They have shown themselves determined to take firm action against terrorism. To take one example, your Lordships will be aware that they mounted what has been described as the biggest single security operation ever in the south following the discovery of the "Eksund" arms shipment to search for arms and ammunition that may have been hidden in the Republic.
That operation, which involved some 7,000 Irish security personnel, lasted for two weeks and concentrated on the border area. It was backed up by a security force operation in the north designed to prevent the movement of arms to evade the search in the south. An arrangement is also in place between the two Governments which allows bomb disposal officers from one jurisdiction to cross into the other at the invitation of the relevant local police commander to deal with explosive devices placed on or near the border. These are two tangible demonstrations of the real progress that we believe has been made in developing cross-border cooperation on security issues and we look to the possibility of developing co-operation still further.
This, then, is the situation we face in Northern Ireland today. I have to tell your Lordships that there is no sign of the terrorist threat diminishing. On the contrary, the number of shootings and bombings has increased in the last 12 months. As the House may have seen recently, the Chief Constable of the RUC has warned that the terrorists have substantial amounts of weaponry. Almost daily there are serious attacks, particularly on members of the security forces. It is against that background that I have no hesitation in recommending to your Lordships that the temporary provisions of the Emergency Provisions Acts should be kept in force for a further 12 months. That view, I am happy to say, is shared by my noble friend Lord Colville of Culross. With his recommendation and indeed all the remarks that I have made so far, I commend the order to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 16th February be approved. [17th Report from the Joint Committee]—(Lord Lyell.)
7.50 p.m.
Lord Pays-Davies: My Lords, I thank the noble Lord, Lord Lyell, for taking us through the main provisions of the two Acts, for describing the grim background to the emergency legislation and for advancing the Government's case for renewal of the legislation for a further period of 12 months.
On behalf of my noble friends on these Benches I join with the Minister in expressing a tribute to the courage of the men and women of Northern Ireland and to the members of the security forces, including the police. However, we have no love for the provisions contained in the legislation which the House is being asked to renew for a period of 12 months. We obviously regret that the Government have to seek its renewal.

249
I very much regret to say that while this legislation is of immense importance to the people of Northern Ireland, I have a feeling that it is of little concern to the overwhelming majority of people on the mainland. So its renewal in 1988 just comes and goes in an endless chain of renewals. Somehow it does not make an impression on the mainland.
I see that the noble Viscount, Lord Colville of Culross, is in the Chamber. I join with the Minister in thanking him for his thorough report on the operation of the emergency legislation in Northern Ireland last year. Given the extremely tight timetable against which the noble Viscount was working, it is perhaps not surprising that there was only a meagre response to his invitation to the general public to submit written evidence. However, I earnestly hope that the tight timetable explains that poor response and that the apparent inadequate response is not evidence that the sensitivity of the citizens of Northern Ireland has become blunted by years of familiarity with emergency legislation.
We have also noted with satisfaction that the noble Viscount, Lord Colville, was able to give us the reassuring conclusions to which the Minister has referred. While the noble Viscount, Lord Colville, does not recommend that any of the provisions of the emergency legislation should be allowed to lapse, nevertheless it seems to me that he has placed on record a number of issues which are a cause of concern to those organisations which are involved with civil and human rights and which wish to see the law in Northern Ireland—to use the words of the noble Viscount, Lord Colville—edging back towards normality. I have a feeling that the words of the noble Viscount and his observations and comments will be an important starting point and material for future debates on the Act and the need to provide safeguards against its abuse.
I am also mindful that the Northern Ireland Standing Advisory Commission on Human Rights considers that the present legislative situation remains unsatisfactory and has drawn the attention of the Secretary of State to about five main areas which are of concern to it. Those, again, are important areas to which we shall have to return in future debates.
As we are tonight discussing an order which cannot be amended and as the new Act has been in force for a matter of only about nine months, I propose to speak briefly on the background to the renewal of the emergency legislation and to press for political initiatives by the Government. I think that that is the best way I can assist in this debate.
Clearly the background is less encouraging, less persuasive, and less helpful than it was 12 months ago when it was possible to ease just a little some aspects of the provisions of the earlier legislation. Indeed, right up to about two months ago there appears to have been slow but steady and genuine progress in the direction of reconciliation. However, by today the Catholic and Nationalist community in Northern Ireland may be forgiven for believing that very little has changed in the 20 years to which the Minister has referred. Those are the 20 years since the noble Lord, Lord Hunt, recommended that the RUC should be transformed from the paramilitary force it had become to a normal police force.
250
It seems that old allegations, old beliefs and old suspicions have been revived over the past two or three months. We now know that as late as 1982 a special unit of the RUC was operating without proper control; and yet that was information which Stalker and Sampson had to drag out of the system after a lapse of about five and a half years.
We also know that some members of the police force are beyond the reach of the law. So this new evidence which has been about since the month of January reinforces ancient Catholic and Nationalist suspicion and hostility. That is the measure of the loss and the damage inflicted in the past few months.
The main damage was inflicted by the dramatic, unexpected and grave Statement of the Attorney-General on 25th January. It is the judgment of men of unquestioned integrity in Northern Ireland with whom I have contact that that Statement did more than any other single event to undermine the slowly growing confidence in the rule of law in Northern Ireland and to undermine confidence in the slowly growing respect for the professionalism which the RUC has recently been demonstrating. It also undermined confidence in the potential promise contained in the seeds of the Anglo-lrish Agreement—and they were no more than seeds.
The Statement of 25th January has caused deep and lasting damage. But need it be permanent damage? It is almost inconceivable that the Government or the learned Attorney-General failed to foresee or to predict the damaging consequences which would flow from the Statement. That the consequences were predictable and were foreseeable also leads to the worrying presumption that someone in authority intended those very consequences. That is an old presumption, but is the noble Lord, Lord Lyell, able to rebut it? Or will the Minister leave us to infer as has been suggested by Dr. FitzGerald, that Ministers stumbled or muddled into a huge error of judgment?
Much damage has been inflicted on Northern Ireland since the beginning of the year. Obstacles have been thrown across the path of reconciliation. According to the Government of the Republic, cooperation between the Garda and the RUC "has been seriously damaged". For obvious reasons and given the sinister build-up of very dangerous weapons in the island of Ireland (of which we have heard a great deal in recent weeks) this is a consequence of the gravest concern to the people of the Province. I note that the Minister spoke in more reassuring terms about co-operation between the Garda and the RUC, but I would remind him of those words of the Irish Government.
It may be that we simply have to live with the events of last January. However, looking to the future, from these Benches we should like to get the message across to the Government that they should immediately be taking positive steps with the main aim of creating a climate of trust and confidence in Northern Ireland and between London and Dublin. We think that that is what is needed and should be the immediate prime concern. Positive action to that end can of course take several forms.
Thus, even at this late stage and notwithstanding a previous decision to the contrary, we think it would be helpful if the Government were to submit the

251
Stalker-Sampson Reports (or an abridged version which does not damage the truth) to the Irish Government through the machinery of the Anglo-Irish Conference and particularly by virtue of Article 8. Such a decision could now be defended on the grounds that since the Attorney-General's statement was made a great deal of evidence contained in the report has become publicly available in Mr. Stalker's book and the RUC cannot be further damaged. Is that something that can be reconsidered?
Again, it would be helpful if Mr. Kelly and the police authority could be persuaded to complete their preliminary investigation quickly and not simply in the maturity of time. They should publicly propose a quick timetable of progress towards the hearing of the disciplinary proceedings which are considered to be necessary. Moreover, it should be apparent to all the citizens of the Province that investigation of the conduct of the very senior police officers is being entrusted to a person of the highest standing who will have the authority to question even the highest police officer in Northern Ireland if that should be necessary in order to get to the truth.
We again ask the Government to reconsider the very wise words of my noble and learned friend Lord Elwyn-Jones when he cautiously suggested from this Bench that the safest way of proceeding in these exceptionally complex and difficult circumstances would be by means of a judicial review into the whole matter.
We believe that such measures would go a long way towards achieving the trust which must be the cornerstone of good Anglo-Irish relations. But if these measures are not acceptable to the Government we must press the Minister to tell the House what steps the Government propose to take in order to repair the damage and to rebuild confidence and trust.
Later this year the Anglo-Irish Agreement will be reviewed. At a time when eminent military figures with wide experience of operations in Northern Ireland are saying openly that the Provisional IRA cannot be defeated militarily, it is not too soon to hope that the Government will seek to build further on the basis of the Anglo-Irish Agreement because it bears within it the seeds of growth. We feel that the time must be ripe for a radical growth in decentralised power given to the elected representatives of Northern Ireland within a framework which recognises the historic identity of the island of which it forms a part.
8.5 p.m.
Lord Hylton: My Lords, before considering the details of the order before the House tonight in the light of two Acts and about four reports, I should like to mention some general points. I do so with some trepidation in the presence of one, and sometimes two, former Secretaries of State. The whole House and both Parliaments will wish to congratulate the security services of our two countries on the massive amounts of arms and explosives discovered in both the north and south of Ireland in recent weeks.
It is a truism that democratic government anywhere rests on a mixture of consent and
252
coercion—more one hopes of the former but with always a degree of the latter. Conciliation and clemency seek to produce consent, coercion seeks to produce compliance. Conciliation and coercion are the two policies that have been pursued over several centuries in Ireland, both north and south. They are not mutually exclusive and it is possible to use both at the same time. Nevertheless, I suggest that it is crucial that any government should be clear in their mind as to what they are trying to do and that they should spell out very clearly their aims and objectives and their methods. I trust that by their deeds Her Majesty's Government will make plain their intent to conciliate the law abiding.
The goodwill and active co-operation of the Irish Republic are necessary for success in containing and eliminating terrorism in Northern Ireland which also threatens law and order in the Republic and imposes a greater per capita burden on the citizens of Ireland.
Secondly, a large measure of consent is necessary from both sections of Northern Ireland society in which two major traditions are worthy of respect so long as they keep within the law. It is therefore a mistake to see the Anglo-Irish Agreement of 1985 solely as a matter of security co-operation, important as that may be, or simply as dealing with the administration of justice. The text of the agreement shows beyond any doubt that it is concerned with political matters including inter-parliamentary relations and with the economic, social and cultural relations of two interdependent countries. It is therefore urgent that the Government should spell out their intention to conciliate as well as to coerce and also to improve east-west relations within these islands as well as the north-south and inter-Ulster situations.
On the question of clemency, your Lordships may have noticed that the Belfast Telegraph (a reputable and moderate newspaper) in its editorial of 26th February quoted suggestions that the compassion extended to Private Thain should also be shown to the young offenders imprisoned at the present time at the discretion of the Secretary of State, some of whom have served a term of 12 or 13 years of imprisonment. This suggestion was picked up in an unusual consensus in yesterday's debate in another place by at least three honourable gentlemen, including Messrs. Mallon, Paisley and Alton. To their requests for clemency I should like to add mine for those life prisoners who have shown by their own actions that they have broken all links with terrorism—and I do know one or two such people.
We are having a far better debate tonight because of three reports that are available to us from the pen of the noble Viscount, Lord Colville of Culross. I should like to call him my noble friend since we studied at the same university, whatever might now be our political views. He has done us a service by reviewing and reporting on this Act and the Prevention of Terrorism Act. He even succeeds in making these dreary and complex matters readable and for that we are most grateful. I agree with him that tonight's order—alas!—is still necessary and I regret that the Opposition divided against it in another place.
I am sorry that my noble friend had difficulties with his working timetable as he explains on pages 2 and

253
3 of his report. I ask the Government to try to overcome those difficulties before the next review because they reduced the comments from affected individuals and organisations, as was mentioned by the noble Lord, Lord Prys-Davies.
There are many good things in my noble friend's report. On pages 29 and 30 he comes down in favour of manslaughter verdicts as a possible middle term between, on the one hand, a verdict of murder and, on the other hand, an acquittal, following the Australian precedent. This is a point that was previously raised in this House by the noble Lord, Lord Donaldson of Kingsbridge, and myself. I think it may help to resolve some difficult issues on the use of excessive force. Will the Government legislate on that point as it seems that the judges will not develop the common law to do it?
As regards hail, it is satisfactory that Table 2 of the report shows that the percentage of scheduled cases granted hail has been rising steadily. It rose from 39 per cent. in 1978 to nearly 70 per cent. in the first half of 1987. Similarly there has been a rising trend in applications for certifying out for trial by jury and a healthy number of certificates has been granted. I am glad that my noble friend notes on page 11 that certifying in—which is the opposite procedure—to the Diplock court, as distinct from the present procedure of certifying out, could have value as a statement of priorities. I am pleased that he recommends that many cases of robbery and aggravated burglary should go for trial by jury.
As regards certifying in, I question whether that procedure would inevitably be prejudical to the defence. The public interest in conviction for ordinary serious crimes must surely be just as great as that for serious scheduled crimes. Will the Government please take further legal advice on that point?
I turn now to the Notes to Part I of Schedule 4 to the 1978 Act. These already allow the Attorney-General to deschedule charges of murder and manslaughter, which are the most serious offences. Why therefore should we not allow the Attorney-General to deschedule any offence if he thinks fit and let it go to jury? Why do we fetter his discretion in the way that applies at present?
Then there is the question of who does the certifying. The Note to Table 3 of the report states:
"The Attorney-General personally considers each instance which is capable of being certified out".
Applications for certificates have varied between 352 and 877 in recent years. One therefore questions how much personal consideration the Attorney-General can give to each case. Since he is normally located in London, I think that he must rely heavily on the advice of the Director of Public Prosecutions and the police in Northern Ireland. I urge that in future the consideration should be carried out in Northern Ireland by an independent law officer of the Crown who does not have the same interest in securing convictions as does the Director of Public Prosecutions.
One sees from the report that pre-trial delays have decreased since the ending of the so-called super-grass cases, but I note that Table 6 of the report only gives figures for the first half of 1987. Perhaps therefore I may put two questions to the
254
Government. First, when will the Secretary of State use the powers mentioned by the Minister, which he already has under Section 3 of the 1987 Act, to set time limits? To do so would put Northern Ireland on the same footing as Scotland and England in respect of its scheduled offences. Secondly, can your Lordships, the Government or anyone else persuade the members of the Northern Ireland Bar not to take the whole of July, August and September as holiday, and thus increase the time available for trial?
I come now to the important question of powers to reintroduce detention under Section 12 of the Act, mentioned in pages 20 and 21 of the report. Will the Government legislate to repeal that power? If not, please will they tell us why not, in view of the Government's cancellation of all derogations to the European Convention on Human Rights and also because I understand that an Order in Council will be needed in any case before detention can be reactivated?
More serious than any of the technical points that I have just mentioned is the matter of ill treatment of persons in custody. In spite of the Bennett Report (Cmnd. 7497) of 1979 and the report of Sir George Baker, complaints still flow in from persons arrested under both the Prevention of Terrorism Act and the Act that we are discussing tonight.
In Table 11 of his report on the operation in 1987 of the Prevention of Terrorism Act, my noble friend Lord Colville gives details of complaints dealt with during that year by the police complaints hoard. Out of the 364 allegations 287 were serious because they involved assault in police stations or following arrest. Threats totalled 28 allegations and there were 17 allegations of falsified statements or threats to falsify, and seven allegations about access to doctors and solicitors. Out of all these allegations, 66 were held to be unsubstantiated, 36 were withdrawn and 182 were incapable of being completed; yet only one charge has been brought against a police officer by the Director of Public Prosecutions and one case recommended for disciplinary action.
The Gillen case, which came before the High Court of Northern Ireland in January, illustrates the situation. It involved serious injuries to a man in a police interrogation centre—injuries which a police surgeon accepted. I have written to the Secretary of State about this matter and await his reply.
Turning to possible remedies and improvements, will the Government make sure that video recording and taping of police interviews takes place? I ask that because it seems that closed circuit television monitoring recommended by Bennett and introduced since does not appear to have done the job. I say that with great regret.
As regards the application of the Police and Criminal Evidence Act as legislation applying in Northern Ireland, the noble Viscount, Lord Colville, mentioned this matter on page 15 with regard to Section 78, and on pages 34 to 36 regarding the impact of this legislation on the two counterterrorism Acts that we are considering tonight. This legislation has in England, and I think probably in Scotland, brought with it codes of practice which will be of great importance. They concern, first, the power to stop, search and arrest; and, secondly, treatment in

255
custody. We need two codes and they must lock together and cover all situations including the first 48 hours in custody from which period the bulk of complaints seems to arise and to which at present the fewest safeguards apply.
A code of conduct has already been issued to the Royal Ulster Constabulary which should be made public. I happen to have a copy; and so does the Committee on Administration of Justice in Northern Ireland although it did not give me mine. It is an admirable 12-point document and deserves to be widely known and studied. I have written to the chief constable about this matter and I trust that the Government will succeed in persuading him to publish that code of conduct. This is another recommendation of the Standing Advisory Commission on Human Rights in its 13th annual report.
On police complaints, I welcome the new commission whose full membership was recently announced. However, I hope that the Government will take the earliest possible opportunity to improve even the new procedures in the light of Chapter 9 of the report of the Standing Advisory Commission on Human Rights which I have just mentioned.
The noble Lord, Lord Lyell, in his introductory speech, held out a little hope that quite soon there might be consolidation of the two varieties of the emergency provisions Act with which we are now coping. I understand that the noble Viscount was given a consolidated text. Apparently therefore it is already in existence. I should like a little more consolidation even than that. I should like to see the emergency provisions Act and the Prevention of Terrorism Act consolidated as they affect Northern Ireland. This is clearly in the mind of the noble Viscount at page 38 of this report, and in the mind of the Standing Advisory Commission on Human Rights, at pages 67 and 68. Cannot this be achieved by means of the order procedure without the necessity of an immensely long piece of brand new legislation?
On judicial supervision of police detention, as part of the pre-trial process, I trust that the Government will study and implement the recommendations of the standing advisory commission for dealing with the period following the first 36 hours in custody. I follow a number of Members of your Lordships' House, such as the noble Lord, Lord Wade, the noble and learned Lord, Lord Scarman, and the noble Lord, Lord Broxbourne, together with the whole range of Northern Ireland political parties, in once again urging the Government to take steps to write the European Convention on Human Rights into the domestic law of the United Kingdom; or, if they cannot do so in the United Kingdom, at least into the domestic law of Northern Ireland, including Protocols 1, 4 and 7.
Perhaps I may also ask the Government whether, and when, they will ratify the European convention on the prevention of torture, which goes wider than just police custody matters to include prison boards of visitors and mental health hospitals. Here again I rely on Chapter 5 of the report of the standing advisory commission.
256
Lastly, perhaps I may commend to Her Majesty's Government, to your Lordships, and to any interested readers, the recent report, Human Rights and Responsibilities in Britain and Ireland, which came from a unique inter-Church working party drawn from both countries, north and south Ireland and including both unionist and nationalist politicians. It is edited by my friend Sydney Bailey, and was published by Macmillan in January. Two very brief quotes from it will show its quality. It states:
"There is not a vestige of a basis for the use of violence for political ends in Northern Ireland".
On the other hand, a little further on it states:
"The security forces must use the minimum necessary force and use it discriminatingly".
To conclude, I should like to touch very briefly on three institutional improvements. I have mentioned this in your Lordships' House before. Cannot there be a standing commission of Privy Counsellors to consider grievances, issues touching upon security and the administration of justice, and improvements in those areas? This suggestion is not new; it has arisen before. Can there also be a permanent north/south Ireland security committee? Finally—and this has been around since 1981 and is mentioned in the Anglo-Irish Agreement in Article 12—is it not time that we had a parliamentary tier to our working arrangements to bring together this Parliament and the Parliament in Dublin?
8.26 p.m.
Viscount Brookeborough: My Lords, the Northern Ireland (Emergency Provisions) Acts that we are discussing are perhaps two of the most important and serious pieces of legislation concerning any single part of the United Kingdom. As I am the new boy here perhaps it is a little out of place for me to say that it is surprising that this legislation which is definitely the most important legislation concerning Northern Ireland has to be dealt with at this time of night. In casual conversations many noble Lords have said how much more they would like to know about Northern Ireland. When the business is carried out at this time of night it is not surprising that after a busy Tuesday, and a busier Thursday to come, people are not able to stay and listen.
It must be remembered that everyone in Northern Ireland is affected to some extent by these measures in their everyday life. In particular the security situation in the Province hinges on the correct and reasonable implementation of these Acts. I should like to pick up a couple of points that the noble Lord, Lord Lyell, raised. When discussing security forces, and terrorists, I was a little disappointed to hear him refer to the innocent victims of Enniskillen. Of course they were innocent but by implication—and he does not mean this, I know—it seems, and would seem to people in Northern Ireland, and the security forces, that civilians are innocent, and terrorists are not. But because he has not mentioned them, what about the security forces? Our security forces are innocent and it is the terrorists who are guilty and that must be made clear. I know that the news media often make that mistake as well. Our security forces—the regular British Army, the Ulster Defence Regiment and the police—are innocent. It is the terrorists who are guilty.

257
Another point in the speech of the noble Lord, Lord Lyell, to which the noble Lord, Lord Prys-Davies, also referred, is the level of cross-border security. We may have an Anglo-Irish Agreement at present but no other civilised countries in Europe need any agreement to have cross-border security. It is ridiculous that cross-border security is not of the highest level at all times. There may be hiccups but it should still continue and it should be top class. We have been at this for a long time.
Perhaps I may take up a point that the noble Lord, Lord Hylton, mentioned. To a certain extent in some speeches made here it comes up more often. It seems as though the complaint is that we have not found a way to convict our policemen of torture, bad handling of prisoners, and various other matters. Such complaints are made by terrorists in their thousands. If we believe that one complaint taken up by the DPP out of the many hundreds mentioned by the noble Lord is a bad statistic, they will lodge even more complaints. If that is the view, the situation will become worse because the vast proportion of complaints are totally unjustified. They are brought forward to waste the time of the security forces and to cost money in legal effort. It is a compliment to the Royal Ulster Constabulary and to the prison service that only one complaint was justified, and I am glad to see that.
Without this legislation our security forces would be powerless in their task of protecting life and property from terrorist action. I am not qualified to go into the complications involved in the wording and legal implications of these Acts. However, I should like to explain from a practical point of view the importance of the continuation of this legislation. I am from a generation which was young enough to have been at school during the first civil rights marches of 1968–69. We have lived through 19 years of tragic violence. There can be few members of that generation who have not had a close friend or relation ruthlessly murdered or severely injured by terrorists from one faction or another.
I could list the names of over 30 people whom I have known well and with whom I have worked. They include shopkeepers from Enniskillen and even the sexton of our parish church, who was brutally murdered in Enniskillen about 13 months ago while serving the public on duty as a part-time policeman. Some receive more publicity than others, such as those murdered or injured in Enniskillen on Remembrance Sunday. It is important that they received the publicity, but most of the other murders become statistics in no time.
There is a tendency for people on this side of the Irish Sea to use the phrase, "an acceptable level of violence". I believe that that phrase will be brought into more use as a result of certain comments made over the past few days, especially on television, about the fact that we shall not defeat the IRA militarily. For the law-abiding citizens on both sides of the community in Northern Ireland—if noble Lords do not believe that there are law-abiding citizens on both sides they should come and see—there is no such thing as an acceptable level of terrorist violence.
One of the most important functions of this legislation is to provide the support and powers for our security forces to carry out their increasingly difficult duties. One cannot deny that the recent
258
problems relating to the Royal Ulster Constabulary and the army have been well-publicised. However, these incidents should be put into perspective and I believe that the news media especially should have a responsibility in publicising the facts. They should publish the good as well as the had side of life so that things that go wrong can be seen against the vast amount of dangerous duties which achieve positive results.
I do not wish to bore the House with easily forgotten statistics but your Lordships may find the following to be of interest. Out of every 400,000 cars stopped by the security forces in general there is only one substantiated complaint. As regards the Ulster Defence Regiment, which is maligned from many sides, including cross-border, in all duties there is only one substantiated complaint resulting in a charge by the DPP per 6 million man hours of duty. The Ulster Defence Regiment is predominantly a part-time force which annually carries out 12 million man hours of duty to fight terrorism. I do not have the figures for the RUC, but over the past eight years it has been attacked by bombs or bullets 7,500 times.
Those figures show that our security forces have standards of conduct second to none in the world-wide fight against terrorism. It is for that reason that I find it hard to accept and to listen to so many speeches condemning our forces and not the terrorists. We expect and receive the highest levels of professionalism and dedication and we should be immensely proud of these courageous men and women. It is sad to see the amount of unwarranted criticism directed at our security forces from so many different sides. We owe it to them to give support.
I should like to refer specifically to one section of the Acts. I draw attention to the report of my noble friend Lord Colville of Culross. At page 28, section 6.2, he discusses the minimum use of force by the army and the police. He writes about the use of a charge of murder for a soldier or policeman who kills a member of the public during an incident and it is subsequently discovered that the soldier or policeman made a mistake in assessing the situation and over-reacted. My noble friend suggests that in such cases it could be made possible for a charge of manslaughter to be used but that a change in legislation would be required in order to do so.
However, to devise a law for use against members of the security forces alone would be discriminatory against them and would undoubtedly inhibit them in their task of defeating terrorism. It might be seen as an effort to find a charge on which to convict members of our security forces unjustifiably. I cannot support such a move. Let us remember that, but for the terrorists, we should not be asking our policemen and soldiers to make split-second life or death decisions.
Some noble Lords may wonder about the kinds of situations to which I am referring. I should like to give two short examples of what may occur. When at or near a border checkpoint local people are normally aware that they should not move in a suspicious manner. However, let us suppose that a farmer goes to see a sick cow in a field beside the base but that he has forgotten to telephone in advance to say what he is doing. He walks around the hedge carrying equipment to treat the cow. A soldier or a

259
policeman on duty watches him for a second wondering whether he might be a danger to them and be carrying a gun. By chance a car below the sanger backfires a couple of times. The farmer jumps into a hedge fearing a gun battle, or runs away, and the soldier shoots him believing that the farmer has fired shots at the checkpoint.
I emphasise that the change in legislation deals with that kind of incident and not an incident when a weapon is fired accidentally: it is when the intention exists to shoot the person, albeit that it is subsequently discovered that it was for the wrong reason. There are no totally safe rules, and snap decisions must be made with life or death consequences. A sentence I read in last Sunday's Sunday Telegraph sums it up. It reads:
"Every officer knows that, if he errs on one side, some of his men may he murdered, while if he errs on the other side, they might be facing a murder charge".
I have mentioned soldiers who are on duty, but it is much more difficult for soldiers of the Ulster Defence Regiment and policemen while they are off duty. As regards the Ulster Defence Regiment, the statistics show that of 172 soldiers murdered only 32 were on duty. In addition, 45 ex-soldiers were murdered in the same kind of situation, off duty. That shows that 90 per cent. have been killed off duty. As regards the Royal Ulster Constabulary, the figures show that 181 policemen were murdered on duty and 71 were murdered off duty. I do not have the figures as regards ex-members, but there are a substantial number. Those statistics show that well over 50 per cent. of those killed in the security forces resident in Northern Ireland were killed while off duty.
It is interesting to note that the security forces actually are safer while on duty. These people can never afford to relax for a minute. Each one has to be aware that lie might be attacked at any time. For instance, late at night travelling home, he may wonder whether a car travelling in the same direction as himself contains terrorists. He knows that his family could be held hostage by terrorists waiting to shoot him on his return to the house. If a shadow moves in his backyard he cannot afford to dismiss it as a cat or something being blown by the wind, as others might. He must consider that it could be a terrorist.
The problem here is that these brave people have often been killed while alone. We cannot know what prior warning of impending disaster they may have had. We do not know that many of them may have seen their attackers prior to the incident. It is not inconceivable that their suspicions were aroused but, due to their subconscious minds warning them to be over-cautious about opening fire for fear of incurring a murder charge, they did not react quickly enough—and as a result they died.
In these examples your Lordships will see that decisions are difficult enough without introducing discriminatory legislation such as that suggested in the report of the noble Viscount, Lord Colville. I hope that what I said makes sense and that, should the occasion arise, these thoughts will be given due consideration. I support the continuance of this legislation.
8.41 p.m.
Lord Moran: My Lords, I have listened with great interest and attention to the speech of the noble Viscount, Lord Brookeborough, who comes to us from Fermanagh and introduces into our debates a valuable sense of reality. I think the facts and figures that he has given us are very useful indeed.
The Minister made a strong case for the continuance of the present order, and I am glad that the noble Viscount, Lord Colville of Culross, said in his report that the Act was being used with due reflection, moderation and commonsense. Like my noble friend Lord Hylton, I too was surprised that in another place the Labour Party opposed the order.
I should like to say first a brief word about security policy. I have argued before in this House that the security forces ought not to adopt a role that is too purely defensive, allowing the IRA to choose at leisure the time and place of the next attack, but that they should take the initiative in trying to get on top of terrorism. I have said, too, that if this involves some modification of the legal framework, I hope that will be looked at. I believe a change of this sort may in due course be necessary and indeed urgent, in view of the new and sophisticated arms the IRA have acquired. The Minister told us about the impact grenades which have been used already by the IRA. There are also many suggestions that the IRA may possess missiles that can be used against helicopters. If so, clearly that will involve a modification of security policy.
Secondly, I should like to ask about the objectives of the British Army in Northern Ireland. The Secretary of State said in another place on the 6th May last (at col. 737 of Commons Hansard) when security was being debated:
"I make it absolutely clear that our determination is to pursue our efforts until such time as terrorism is destroyed".
Later, after the appalling outrage at Enniskillen, he said that he wanted to:
"make it clear to the men of violence that no threat or outrage destroys our resolve, but makes us all the more determined to rid the Province of the evil of terrorism".
That was said in the other place on the 9th November 1987 at col. 20 of Hansard. He ended one intervention in the same debate by saying at col. 22:
"We need the fullest support of every Democrat in the country and of every Democrat in Northern Ireland, to defeat the terrorist".
My Lords, I emphasise the word "defeat".
The other night there was a programme on television, which I did not see. However, I read the report of it in the Independent on 1st March. The report quoted General Glover (who was I believe a former commander of Land Forces in Northern Ireland) as saying:
"In no way can or will the Provisional IRA ever be defeated militarily. The Army's role has been now for some time … to help create the conditions whereby a full democractic, peaceful, political solution can be achieved."
He went on, according to this report, to say that,
"the IRA's 'long war' would last as long as the Provisionals had the stamina and the political motivation, and 'so long as there is a divided island of Ireland'."
It seemed to me a little strange that General Glover should describe the Army's role in that way and that

261
after the Secretary of State had talked about the need to defeat terrorism the General should say that to defeat terrorism was impossible. I know the Secretary of State gave a radio interview today in which, I gather, he said that some people sounded surprised when generals made comments of that kind, but he said it had always been recognised that, on its own, there is no military solution and that we were going to defeat terrorism but it was not going to be done by military means alone but also by strong support from the security forces and the defeat of men of violence as well.
I fully understand the need to make political progress, which is obviously of the first importance. However, I should like to ask the Minister, in the light of these statements, what exactly is the role of the British Army in Northern Ireland, in the Government's view.
Thirdly, I should like to say a word about cross-border security and the Anglo-Irish Agreement. On this occasion I do not propose to repeat my objections to the agreement although they have not, I fear, diminished with time: too many of my earlier fears have been borne out by events. But surely the agreement ought, above all, to be promoting co-operation between the two governments in combating terrorism, which is the common enemy of both our countries.
During recent weeks, far from speaking out against the continuing terrorist threat and the hard and dangerous work done by the security forces on both sides of the border, there has been from Dublin a torrent of denigration and abuse of the security forces. Every opportunity has been taken to attack them, not to mention matters involving the Court of Appeal and the Attorney General. From someone like Cardinal O'Fiaich, I fear one must expect this; but it seems to me very unfortunate that we should get these attacks from a head of government such as Mr. Haughey. I have seen from him no public recognition of the extraordinary restraint and discipline exercised by the security forces in Northern Ireland, operating in very dangerous circumstances, as the noble Viscount, Lord Brookeborough, has reminded us just now, and under conditions of great strain. We have only to look at the contrast of what is going on in Israel to see how extraordinarily professional and disciplined our security forces are.
I was struck by the statistics that the noble Viscount gave to us. I do not know whether your Lordships noticed a letter published in yesterday's Independent from Senator Mary Robinson in Dublin. The letter struck me as being thoughtful and interesting. She discussed these matters and concluded by saying that:
"a review of the working of the Anglo-Irish Conference is mandatory before the end of 1988."
She went on to say:
"there is a critical need to take stock of the agreement itself and of the perceptions of both governments as to its central objective. If there cannot be agreement on that, the question must be raised as to whether the Anglo-Irish Conference should continue on its present form. It might be better to suspend its operation in order to encourage the tentative talks about talks between leaders of the political parties in Northern Ireland, which offer a better prospect of filling the political vacuum there."
That is an interesting view to come from Dublin, and one worth considering.
262
Finally. I wish to say a brief word about extradition. I mentioned this when the noble Baroness, Lady Ewart-Biggs, asked a Starred Question about relations with the Republic of Ireland on 19th February and asked for sonic figures about extradition. The Minister and I had some discussion about archangelic matters, but I do not think that on that occasion he gave me the figures for which I asked. I should like to ask him now, therefore, how many persons have been extradited to this country from the Republic of Ireland since the Anglo-Irish agreement came into force and how many requests for extradition which have been made to the authorities in the Republic of Ireland remain outstanding.
8.48 p.m.
Lord Lyell: My Lords, we have had a forthright and detailed debate on the order that I have presented to the House. First, I wish to thank noble Lords who have taken part. I think that the House will forgive me if I say how much we appreciated the speech of my noble friend Lord Brookeborough since it was probably the most frightening speech that he will make in the House. It was his second speech. He has had the liberty of being listened to this time. I am sure he will accept that on another occasion noble Lords may wish to interrupt or question him and will wish to treat him as a fully fledged Member of the House. I congratulate him on his remarks, some of which I hope I shall be able to answer. Once again, I pay tribute to the voice of Fermanagh, that most lovely county in Northern Ireland.
The noble Lord, Lord Prys-Davies, against the background of the security situation, the order that I have presented and the two Acts, explained the need for reconciliation. I wish to stress two points to the noble Lord. The Royal Ulster Constabulary—each man and woman—is a professional force meeting a situation that I have described. The noble Lord, Lord Prys-Davies, went on to amplify it, and it was further amplified by my noble friend Lord Brookeborough. I believe that the noble Lord, Lord Prys-Davies, would accept that. I pay my tribute to each and every one of them.
I hope that the noble Lord and your Lordships will accept from me that no one is beyond the reach of the law. Nothing that was said by my noble and learned friend on the Woolsack in the Statement on 25th January and by myself in the Statement that I repeated on 17th February could be construed as saying that anybody is beyond the reach of the law.
Lord Prys-Davies: My Lords, if the Attorney-General or the Director of Public Prosecutions decide for reasons of security that proceedings will not be taken, is not that officer above the reach of the law?
Lord Lyell: My Lords, that may be the interpretation of the noble Lord. I am not crossing the boundary of what was said by my noble and learned friend or of the Statement in another place by my right honourable and learned friend the Attorney-General, which was repeated here word for word. He spelt it out. I am not crossing one millimetre beyond what was repeated by my noble

263
and learned friend and said by my right honourable and learned friend. If the noble Lord, Lord Prys-Davies, wishes to put that interpretation on it, that is his interpretation. I do not accept that.
The noble Lord asked about the McLachlan report and particularly about the Stalker report. As far as the Stalker-Sampson investigation is concerned, there can be no doubt that many hard lessons have been learnt since the events that took place in November and December 1982. They also gave rise to the Stalker-Sampson inquiry.
I stressed in my response on 17th Febraury, and perhaps I should stress again, that arising from the investigations by Mr. Stalker and Mr. Sampson a special inspection of the Royal Ulster Constabulary was carried out by Mr. McLachlan, one of Her Majesty's inspectors of constabulary. His report concentrated on two problems: first, how the Special Branch could be maintained as an integral branch of the overall force; and, secondly, what procedures should be followed to ensure that full and accurate information is given to the Director of Public Prosecutions, notwithstanding security and other considerations. All the recommendations made by Mr. McLachlan have been accepted in principle by the Chief Constable of the RUC. Discussions are under way between the Director of Public Prosecutions and the Chief Constable to examine the safeguards for full disclosure of information to the DPP.
The noble Lord, Lord Prys-Davies, went on to ask about cross-border security. I can only reiterate the statement by the Taoiseach in the debate in the Irish Parliament on 17th February this year. He said that in the security area his Government has two priority objectives,
"firstly, the protection of the security of this state; and secondly, the protection to the utmost of our ability of the interests and the security of all the people of Northern Ireland."
He continued:
"It is those objectives that dictate cross-border co-operation. It is obviously in the interests of both countries that this co-operation should be as effective as possible, and only the men of violence stand to gain from anything less".
Those were fairly strong—and, I believe, in the context of Irish politics—forthright comments by the Taoiseach.
As to the thoughts of the noble Lord, Lord Prys-Davies, on Mr. Stalker's book or report, I would not attempt to put any interpretation upon the book written by Mr. Stalker or any of the things that he may have said in the press. I would have nothing to say tonight about the investigation being carried out by Mr. Kelly, the Chief Constable of Staffordshire. I am sure that he will be aware of everything that is being said here this evening. He will carry out the investigation. He knows that he must carry out the investigation as quickly as possible; but he must do the job that he believes needs to be done. I hope that that covers the points raised by the noble Lord, Lord Prys-Davies.
The noble Lord, Lord Hylton, raised a number of points. I am grateful that, as is his wont, he gave me some indication of the points he intended to raise, a
264
good few of which I hope to answer. He had a query about the Police and Criminal Evidence Act. I stress that my right honourable friend has agreed to the preparation of a Northern Ireland order, which would introduce legislation similar to that contained in the Police and Criminal Evidence Act 1984 which applies in this country. We intend that the order will, first, strengthen police powers; secondly, that it will regulate the rights and privileges of persons in custody; thirdly, that it will reform the law relating to evidence; and, fourthly, among other things provide for police and public consultation. I should add that the Government intend to publish their proposals for the legislation later this year.
The noble Lord, Lord Hylton, referred to cross-border security. I believe I have covered that in my reply to the noble Lord, Lord Prys-Davies.
As regards extradition, I will attempt to give the figures to the noble Lord, Lord Moran, later as I do not have them to hand at the moment. We welcome the decision of the Irish Government to allow their extradition Act to come into force on 1st December as planned. This will enable them to ratify the European Convention on Terrorism. The Irish Extradition (Amendment) Act, which was passed before Christmas 1987, made sundry provisions. It unilaterally amended the extradition arrangements between the United Kingdom and the Republic of Ireland. We expressed our concern about the passage of the legislation at that time as we felt it might present difficulties.
We had hoped that a note from our own Attorney-General confirming that the United Kingdom prosecuting authorities had considered the evidence, as they are required to do, and had decided that it was sufficient to justify a prosecution would enable warrants to be backed. That apparently is not the case. However, the two Attorney-Generals—our own Attorney-General and that of the Republic—are considering what is needed to enable extradition to proceed effectively. I think that will be what all of us wish.
The noble Lord, Lord Hylton, asked about delays before trials and the time limits for bail. Both these points come under the 1987 Act. I believe that Table VI in my noble friend's report is also of some relevance to this query. As regards delays, the Director of Public Prosecutions, the courts and the police continue to cope well with processing the large number of cases that involve serious offences. I believe that the majority of cases go through quickly. The position is monitored on a regular basis by all the agencies involved. The Government are concerned to eliminate avoidable delays, and measures taken to this end in recent years include, among other things, the review of the organisation and staffing levels in the RUC and the DPP's office.
Secondly, there is the establishment of what we call a fast stream to identify and take forward cases which could be brought to trial relatively quickly. Thirdly, a presiding judge has been appointed to Belfast Crown Court to oversee the listing of cases. Further, we have appointed two additional High Court judges and an additional county court judge. Twelve additional Queen's Counsel have been appointed by

265
my noble friend who normally sits on the Woolsack, significantly increasing the number of senior counsel available for criminal cases. As a result, for those in custody at the time of their trial who are charged with scheduled offences the average period from remand to committal fell from 36 weeks in 1985—and let us not forget that that is eight and a half months—to 31 weeks in 1987; that is, just over seven months. The time from committal to trial fell from 21 weeks to 18 weeks.
As regards time limits, I am afraid we have not been able to take any decision on whether these should be introduced for bringing cases to trial. We would first want to assess the experience in England and Wales and to collect more data about the performance of the criminal justice system in Northern Ireland.
The noble Lord, Lord Hylton, asked about what we call Secretary of State "pleasure" cases—those detained at the Secretary of State's pleasure— and young life-sentence prisoners. I should like to make three points in this respect. All life-sentence and pleasure prisoners are regularly reviewed by the review board under the chairmanship of the permanent under-secretary of the department in order to determine when a recommendation should be made to my right honourable friend the Secretary of State for a release on licence. I want to stress that my colleagues and I are particularly concerned about prisoners serving these pleasure sentences who were caught up in violence at an early age. In all cases the particular circumstances of Northern Ireland are taken fully into account and the prisoner's age at the date of the crime is an important factor. I assure the noble Lord, Lord Hylton, that that is one of the factors given full weight.
I should like to add that all those who are serving detention during the Secretary of State's pleasure have been convicted of murder. Before releasing a prisoner on licence the Secretary of State must be satisfied that not only has a period been served which marks the seriousness of the offence but that the public will not be put at risk by the release of such a prisoner hack into the community.
Since the beginning of 1984, 82 prisoners, of whom 46 were life prisoners and 36 prisoners detained at the Secretary of State's pleasure, have been given dates for release on licence. Of that total figure, 54 have been released. A further nine of the prisoners serving life sentence are at present at the advanced stage of ministerial and judicial consultation.
The noble Lord, Lord Hylton, referred to our response to the report of my noble friend. As regards timing, the debate had to be held before 21st March this year when the main provision of the Act will elapse. This meant that much of the work on these annual interviews, as my noble friend pointed out, had to be conducted in the busy Christmas-New Year period. Perhaps I should not describe how they may be busy, but certainly my noble friend was busy. However, I am sure your Lordships will recall that this date was chosen for the renewal of the temporary provisions and the emergency provisions in order to coincide with the renewal of the Prevention of Terrorism Act 1984. We thought at the time that it
266
would help your Lordships' House and another place if the debates on the renewals took place at more or less the same time.
I accept that the time of year at which these debates take place creates difficulties for my noble friend. However, I hope that as people become more accustomed to the annual review, they will be able to prepare themselves a little more thoroughly than was my noble friend. To those who may wish to give evidence to my noble friend, I say that we shall ensure that earlier notice is given in future of the particular reviews.
There was another query raised by the noble Lord, Lord Hylton, about the statistics relating to certifying out. That appears in the 1987 Act. We are in the process of establishing whether the information can be made available. I shall let my noble friend and indeed your Lordships know that these involve the examination of each particular case file which requires a considerable amount of effort. I believe that will be accepted by noble friends and any of your Lordships who are involved in a close study of jurisprudence and the law. As regards certifying in and not out—namely, that cases should be scheduled—I believe that the case can be spelt out and seen in paragraph 4(2)(4) of my noble friend's report. Perhaps I may briefly draw the attention of your Lordships to the fact that my right honourable and learned friend the Attorney-General makes substantial use of his authority to send terrorist-type offences to jury trial. I should like to refer your Lordships to the figures shown in Table 3 of my noble friend's report. Those show that in 1986 my right honourable and learned friend received 495 applications, and in 304 instances the cases went to jury trial.
The noble Lord, Lord Hylton, raised the question of the admissibility of statements and referred to the Police and Criminal Evidence Act. I believe I have covered that point earlier and I offer my apologies. As regards detention, we see that in Schedule 4 to the 1978 Act. I believe that we shall not be able to take the opportunity tonight to repeal Section 12 of Schedule 1 of the 1978 Act. This contains power to detain without trial. In paragraph 5 of the report my noble friend observed that would not be possible in the context of the debate today because it would require primary legislation. We believe it is important to retain the provisions on the statute book in case there is a sudden or dramatic deterioration in the security situation.
There were two further queries by the noble Lord, Lord Hylton, about the code of practice and also about the consolidation of emergency legislation. Perhaps I may clear up one query which has come to my mind, and I believe also crossed the minds of your Lordships. That refers to the review presented by my noble friend, Lord Colville. I believe he suggested that the code might not cover Section 12 of the Prevention of Terrorism Act. This is the main arrest power in the Province as regards terrorism. I wish to stress that, notwithstanding the thoughts of my noble friend, it is our intention that that power under Section 12 of the Prevention of Terrorism Act should be dealt with in the code.

267
So far as concerns consolidation, in the light of the decision which was made to make the provisions in the forthcoming prevention of Terrorism Bill permanent, and the fact that that legislation applies throughout the United Kingdom, it would not be feasible to consolidate all the emergency legislation applying to Northern Ireland in one particular Act.
I believe I have covered most of the questions raised by the noble Lord, Lord Hylton. My noble friend Lord Brookeborough raised one or two queries. The first was about the timing of the debates this evening. I have to say to him with all good wishes "Join the club", since every speaker on the other Benches, makes complaints—and rightly so—to my noble friend the Chief Whip. I hope my friend will add his weight to the complaints.
My noble friend expressed disappointment about one or two of the terms I used in my opening comments. I hope that I did not give offence to him or to anybody else in Northern Ireland when I referred to the innocent victims of the atrocity at Enniskillen. I referred to the amazing and continuous courage and determination of the security forces. We can sit here in your Lordships' House; I might go to my home in Scotland; or we might go around what we call in Northern Ireland "GB". But to us it is amazing that men and women serve in the security forces at permanent risk to their lives. They have done this for 20 years, and they continue to do it. Their courage and determination should be noticed and applauded. I want to do that personally and I believe that your Lordships too will wish to do so.
My noble friend also referred to the thoughts and expressions of General Glover on the BBC television programme "Panorama" earlier this week. The best thing I can do is to refer my noble friend and the noble Lord, Lord Moran, to the remarks made in another place last night by my right honourable friend the Minister of State. At col. 912 of the Official Report my right honourable friend referred to the "Panorama" programme. The gist of what General Glover said was that there was no military solution to the problems that all of us face in the Province. My right honourable friend stressed that this Government and preceding governments have repeated that many times. It has been reflected in the policies followed by successive governments to try to do what they can to improve the political climate in the Province. It is equally wrong to say that the problems of the Province can be resolved purely and solely by military solutions. I shall not weary your Lordships with further comments, and I do not want to go further than that. However, I want to assure my noble friend that I take his thoughts very seriously.
The noble Lord, Lord Moran, asked about extradition. I covered the points about extradition in my earlier reply to the noble Lord, Lord Hylton. As
268
regards what the Taoiseach said in the Irish Parliament, certainly I cannot speak for him and I am sure that he would not wish me to speak for him. Nobody would expect me to do that from this position this evening. As regards the role of the army, I do not think that I can give a suitable and succinct reply tonight. Perhaps I may gather my thoughts and write to the noble Lord as briefly as possible, giving my thoughts on the role of the army. I again refer the noble Lord to what was said by my right honourable friend in another place last night.
I am afraid that I still do not have the figures for extradition asked for by the noble Lord, Lord Moran. I guarantee that I shall write to him with those figures. The noble Lord referred to the supplementary questions that were asked by the noble Lord in reply to the Question put by the noble Baroness. Lady Ewart-Biggs. The noble Lord will be fair and admit that he asked at least four supplementary questions. I took the easiest one about the Archangel Gabriel. I shall not go into celestial or spiritual affairs tonight. If I missed the query about extradition and the numbers I shall certainly write to him as soon as is possible.
I hope that I have answered all the questions. If there are any points that I should have made, I shall write to the noble Lord who asked the question. The Motion before us this evening asks that the provisions of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987 should remain in force for a further 12 months. I have said all that I want to say tonight about the security forces and the security position. I call upon all the people of Northern Ireland to help the police by co-operating with them by giving them the support and information that they need to bring to justice those responsible for the continuing violence. The gunmen and the bombers will be defeated if ordinary men and women—I stress this point—have the courage to come forward and assist the police. Anybody who lives in Northern Ireland will know that it can be difficult to give information and often requires a very courageous decision—a decision which anywhere else in the United Kingdom we would regard as quite normal. It requires courage, and we admire ordinary men and women who come forward to help the police. I commend the order to your Lordships.
On Question, Motion agreed to.

River Humber (Burcom Outfall) Bill [H.L.]
Committed to an Unopposed Bill Committee.
House adjourned at twenty minutes past nine o'clock.