Lords Sitting of 25 April 1990

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

Green Belt: Increase
Baroness Strange Baroness Strange asked Her Majesty's Government:
What has been the increase in the total area of land designated as green belt since 1979.
Lord Reay: My Lords, the Government attach great importance to green belts as an essential element of planning policy. The extent of designated green belt in England has more than doubled since 1979. It has increased from 1·8 million acres to 4·5 million acres. That represents nearly 14 per cent. of the total land area of England.
Baroness Strange: My Lords, I thank my noble friend the Minister for his extremely encouraging reply. Can he assure us that land, once designated as green belt, cannot be rescheduled for building purposes?
Lord Reay: My Lords, the essential characteristic of green belts is their permanence, and their protection must be maintained for as far ahead as can be seen. Within green belts there is a general presumption against inappropriate development. Except in special circumstances, the construction of new buildings should not be approved unless it is for agriculture and forestry, outdoor sport, cemeteries, institutions standing in extensive grounds or other uses appropriate to a rural area.
The Earl of Kinnoull: My Lords, will my noble friend say whether the same protection is applied to draft green belt plans as to designated green belt plans?
Lord Reay: My Lords, I assume that the protection required under a green belt requires designation.
Lord Annan: My Lords, I take the noble Lord's point about cemeteries, but is it not also necessary to provide some housing in areas of that kind? Does he agree that that can be done by converting barns which are now disused and not necessary for agriculture in that part of the country?
Lord Reay: My Lords, it is the Government's view that the aim should be to use redundant buildings for purposes which are compatible with the green belt, including institutional uses. On the question of housing, there may be scope for local planning authorities to accept limited, low-cost housing development in existing green belt settlements.

Bird Conservation in Scotland
2.39 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
What progress has been made in designating special protection areas and Ramsar sites in Scotland.
The Minister of State, Scottish Office (Lord Sanderson of Bowden): My Lords, I am happy to say that my right honourable friend the Secretary of State for Scotland has today designated a further eight sites. Four of those are special protection areas, one is a Ramsar site and three sites have dual designation. There is now a total of 18 special protection areas and 19 Ramsar sites in Scotland. Details of the new sites designated have been placed in the Library.
Baroness Nicol: My Lords, I am grateful to the Minister for that Answer which will be welcomed widely both here and in Scotland. However, can he tell me whether yesterday's reply from his noble friend in the Department of the Environment, which stated that planning authorities should ensure that special protection areas are treated as though they were already designated, applies to Scotland as well as to England? If so, can he say what is happening in the case of Lurcher's Gully? Is that being given special treatment?
Lord Sanderson of Bowden: My Lords, I can assure the noble Baroness that under the SPD Circular 1/1988 planning authorities in Scotland are required to ensure that potential sites are treated as if they had been designated. The subject of Lurcher's Gully is at present under active consideration in the Scottish Office and I cannot give the noble Baroness any further information.
Lord Gisborough: My Lords, will my noble friend help me by saying what a Ramsar site is? Has it anything to do with sheep?
Lord Sanderson of Bowden: My Lords, my noble friend is wrong. A Ramsar site has nothing to do with sheep. It is all to do with wetlands.
Lord Tordoff: My Lords, will the Minister tell us whether Lurcher's Gully has anything to do with the Scottish national drink?
Lord Sanderson of Bowden: No, my Lords. Having been there in the middle of winter, I can assure the House that it has much to do with snow and nothing to do with whisky.
Lord Taylor of Gryfe: My Lords, will the Minister confirm that Lurcher's Gully is an important development for skiing and tourism in general and that the interests of the local population should not be lost sight of in the event of any designation taking place?
Lord Sanderson of Bowden: My Lords, as the noble Lord, Lord Taylor of Gryfe, will know, various views

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have been expressed by all and sundry as to the importance of Lurcher's Gully. It would be wrong for me to say anything further at this stage. However, the noble Lord will know from the Scottish newspapers that the Government are giving the matter considerable thought. I have no doubt that at the appropriate time my right honourable friend will take into account not only what the noble Lord has said but what others have said.
Lord Campbell of Croy: My Lords, on the question of Ramsar sites, which are wetlands internationally arranged for the benefit of birds, will the Government do everything possible to help to keep confidential the site where the crane has this spring come to breed in the United Kingdom for the first time for many years? Does he agree that, whether that site is in Scotland or in another part of the United Kingdom, it is best that we should not know?
Lord Sanderson of Bowden: My Lords, I thank my noble friend for that question and I am glad to tell him that I do not know.
Lord John-Mackie: My Lords, if the sites are for the benefit of the public so that they can see the birds, can the Minister tell the House what is the sense of keeping the sites private?
Lord Sanderson of Bowden: My Lords, we are at cross-purposes. The sites announced by my right honourable friend today are made public and will be available for the general public to visit. They are important bird sites covering the whole of Scotland, and today we have taken a great step forward in that area.

The Capercaillie: Protection
2.43 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether action is being taken to ensure that the capercaillie does not become extinct in Scotland.
Lord Sanderson of Bowden: My Lords, the capercaillie is a protected species and is presently listed in Part 1 of Schedule 2 of the Wildlife and Countryside Act 1981. As a result, it may only be killed or taken outside the close season; that is, between 1st October and 31st January. My colleague. Lord James Douglas-Hamilton, is presently consulting about the desirability of a statutory ban on their shooting. A copy of the consultation letter, showing those consulted, has been placed in the Library.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for his reply. Can he say whether enough is known about the present numbers of this reclusive but remarkable bird or about the factors which are tending to reduce its numbers? Is he aware that the capercaillie became extinct in Scotland and was reintroduced successfully in 1837?
Lord Sanderson of Bowden: Yes, my Lords. I was well aware of the fact that the capercaillie became extinct and was brought in from Sweden at the date mentioned by my noble friend. Regarding numbers, it is estimated that in the early 1970s 10,000 capercaillie existed; but there has been a sharp decline. It is quite difficult to give accurate figures, but the best estimate is that there are now only 2,000 birds.
Lord Taylor of Gryfe: My Lords, is the Minister aware of a survey by the Forestry Commission in the north of Scotland, which is the habitat of this magnificent bird, and that a decline in the numbers of birds there was observed? Is he further aware that the Forestry Commission imposed a ban on any Forestry Commission shooting of those birds? The birds are not shot for eating but simply as trophies for some of our European friends who come over to shoot in Scotland. Would the Minister encourage the Government to follow the lead of the Forestry Commission, which is given little credit for what it does in this field? Would he also encourage the Government to impose a similar ban throughout private woodlands as well as on Forestry Commission properties?
Lord Sanderson of Bowden: My Lords, this is a very big subject. I have no doubt that the noble Lord will study most carefully the results of the Government's consultation. I can assure him that very strong views have been expressed on both sides of the argument. I am well aware of the Forestry Commission's voluntary ban, which, I may say, has encouraged us to bring forward a consultation paper. Moreover, we should not have considered bringing forward a consultation paper had we not thought that there was a reason for having a good discussion about the matter at this stage.
Lord Geddes: My Lords, is my noble friend aware that capercaillie have been, and indeed still are, successfully reared at Fenton Barns in what I still insist on calling East Lothian?
Lord Sanderson of Bowden: My Lords, I was not aware of that fact. However, at the moment I am much more concerned with the preservation of the wild capercaillie and getting the right answer to the question of how we should go about preserving them for posterity.
Lord Carmichael of Kelvingrove: My Lords, I always thought that the name was capercailzie, but I may be wrong about today's spelling. I look forward to reading the report that Lord James Douglas-Hamilton in the other place will produce. From what I have discovered in the past few days, it appears that there are four or five possible reasons for the reduction in numbers of this bird. It seems to be overwhelmingly the case that shooting is the biggest single factor. It is one that we can do most about immediately. Will the Minister urge his friends to follow the ban introduced by the Forestry Commission in 1982? If so, does he agree that there may immediately be an improvement in the population figures of the capercailzie?
Lord Sanderson of Bowden: My Lords, I accept what the noble Lord says to the effect that shooting is one cause of the decline. The evidence of the Game Conservancy Council, when it becomes available, will show that that body comes to a different conclusion. The question of habitat is very important. The Forestry Commission and the Government brought in the same rates of grant for native pinewoods as for broadleaves in 1988 and that has encouraged the maintenance and extension of pinewoods. To date, the number of applications received by the Forestry Commission for planting native pines already exceeds 2,500 hectares.
Lord Mackie of Benshie: My Lords, would the Minister consider whether the same measures to prevent extinction might help the Tory Party in Scotland?
Lord Sanderson of Bowden: My Lords, that is another Question and one to which I shall not rise.
Baroress Strange: My Lords, is my noble friend aware that the 'z' in capercailzie is in fact the Anglo-Saxon yogh as in Colquhalzie, Menzies and Dalziel?
Lord Sanderson of Bowden: My Lords, I am always grateful to my noble friend for bringing forward remarks of that kind. I had no idea of it. I am very glad that she has enlightened the House on the matter.
Baroness Nicol: My Lords, is the Minister aware that ornithologists recommend that supplies of vaccinium myrtillus are good food for the chicks of the capercaillie? If the Forestry Commission could be persuaded to increase the planting of that desirable food, it might help the species.
Lord Sanderson of Bowden: My Lords, I thank the noble Baroness for her remarks. As I said, we are not certain of the reason for the decline in the numbers of capercaillie. One thing, however, is quite clear: when there is a considerable amount of wet weather at the wrong time of the year it is very detrimental to the species.
Lord Glenamara: My Lords, has the noble Lord seen the current issue of the Field magazine, which gives statistics for birds shot last year for sport in the United Kingdom? They show that 2·2 million birds were shot in this country for so-called sport. Does he agree that it is rather hypocritical to complain, as some noble Lords did yesterday, about people in continental Europe shooting wild birds? We justify such action in this country by legalising that which shows the gulf between morality and the law.
Lord Sanderson of Bowden: My Lords, I am not sure that I follow the question that the noble Lord has asked me. I have just returned from Cyprus where very few birds were to be seen, so I think that there is a problem in some other countries as well as our own. Provided that shooting is done legally and in a reasonable way, I consider that it is a
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perfectly valid sport to be carried out in the United Kingdom.
Lord Renton: My Lords, is my noble friend aware that the keeping of game often leads to the protection of wildlife? Has he noticed that on today's Order Paper all four of the oral Questions concern the preservation of wildlife and the protection of the environment? Does that not reveal commendable concern on the part of your Lordships? Will my noble friend take note that when the environment Bill comes before the House we shall need plenty of time to consider all of its provisions?
Lord Sanderson of Bowden: My Lords, I am sure that the usual channels have listened very carefully to what has been said by my noble friend. I accept that wildlife is a very important aspect of our life in the United Kingdom. With regard to the Institute of Terrestrial Ecology research of the capercaillie, three separate projects are taking place. The Forestry Commission has a project on winter habitat use. For the RSPB there is research on chick habitat use in the Abernethy forest. The ITE is monitoring the population in Glentanar. I do not believe that that illustrates that the Government and those working in that area are less than diligent.

Environment Week
2.52 p.m.
Lord Glenamara Lord Glenamara asked Her Majesty's Government:
Whether they are planning any events to mark Environment Week, which starts on 28th April.
Lord Reay: My Lords, my honourable friend the Minister for the Environment and Countryside will launch the Environment Week at the Telecom Tower on Thursday 26th April. The Government very much welcome this initiative by the Civic Trust to encourage people to help improve their local environment.
Lord Glenamara: My Lords, I am grateful to the noble Lord for his Answer. The annual Environment Week has the support of a very large number of reputable national organisations under the leadership of the Civic Trust and sponsored by British Telecom. Does he agree that it is an admirable opportunity to focus attention on improving, enhancing and preserving the environment? We are grateful that the Government are sending a Minister to open the event. It is too late this year to do anything more. However, can they not make a resolution to be rather more helpful and to do a little more next year?
Lord Reay: My Lords, I entirely agree with what the noble Lord said about the significance and value of Environment Week. We also consider it to be a wholly admirable occasion. It is an enterprise undertaken by the Civic Trust. Its intention is to focus attention on the local environment in order to encourage people to find out more about the area in which they live and to join in practical local projects.

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We consider that that is best left to the bodies which have joined together to bring it about. However, we have done what we consider appropriate in opening the week.
Lord Beloff: My Lords, is my noble friend aware that in New York yesterday there was an event in Central Park in honour of Earth Day? I take that to be an environmental cause. As a result of the event grave damage was caused to the vegetation of the park and four and a half tonnes of non-recyclable litter was left behind. Is not the best way of protecting the environment to be very wary of environmentalists?
Lord Reay: My Lords, I was not aware of the facts about which the noble Lord has informed the House. There were Earth Day events in this country also. So far as I know they did not lead to such unhappy consequences. There was no direct government involvement.
Lord Hatch of Lusby: My Lords, will the noble Lord consider a practical way in which the Government could show whether or not they are serious and genuine in their concern for the environment? The Government could announce that they are intending to give backing to the Bill which was sponsored in this House by the noble Baroness, Lady Robson, and which has passed through all its stages in this House. Will the noble Lord take this opportunity to say that the Government will back the Bill on CFCs? Such provision could greatly reduce those dangerous emissions of gases which are a direct danger to our environment.
Lord Reay: My Lords, that is an entirely different question. It is a matter for the other place.
Lord Mcintosh of Haringey: My Lords, I echo the welcome given by the noble Lord, Lord Glenamara, to the participation by the Minister of State for the Environment in Environment Week tomorrow. What participation is expected from the Departments of Transport and Energy? They have a very great involvement in environmental needs and improvement?
Lord Reay: My Lords, I am not aware of any other government involvement in Environment Week other than launching the week itself.
Lord John-Mackie: My Lords, we are all agreed that litter messes up the environment more than anything else. I hope that the Minister is aware that the young farmers' organisation has carried out an exercise of cleaning up litter in various areas. It deserves some credit for that.
Lord Reay: My Lords, a great many voluntary bodies are doing a great deal to clear up the environment. We welcome all such efforts. A considerable number of bodies are involved in Environment Week. I have a list that I shall not read out. They are all organisations which receive substantial government support.
Lord Stoddart of Swindon: My Lords, does the noble Lord consider it very surprising that the Department of Transport is not involved in Environment Week? Transport, in particular heavy lorries, is the cause of much destruction of the environment through fumes, noise and the destruction of people's property.
Lord Reay: My Lords, the intention of Environment Week is very much directed at local activities, very largely on a small scale. The leaflet that was distributed by British Telecom advertising the week listed some of the achievements last year. Those included items such as hanging baskets and window boxes which gave a facelift to Gateshead Technical College. An unsightly broken fence was pulled down and replaced in a single day by the Polesworth Society. A three-mile stretch of beach was cleared by the Llanelli Society. Those are thoroughly admirable achievements but we feel they are best left to local groups under the admirable lead of the bodies that organise them at the present time.
Baroness Nicol: My Lords, is UK 2000 making any contribution to the week; or is there not enough of the body left?
Lord Reay: My Lords, the Government provide the Civic Trust with financial support. The Civic Trust also receives support from the department via UK 2000. That amounts to £152,500.

Business
Lord Denham: My Lords I should like to say a word about this afternoon's short debates standing in the names of the noble Baroness, Lady David, and the noble and learned Lord, Lord Simon of Glaisdale. As the mover is allowed 15 minutes and the Minister should rise to reply not less than 20 minutes before the scheduled end of the debate, in the debate in the name of the noble Baroness the number of speakers is such that it is not necessary to propose a formal time-limit. However, I am confident that noble Lords will limit their speeches to lengths within the spirit of these short debates.
In the debate in the name of the noble and learned Lord, it means that all other speeches should be kept within a limit of 12 minutes.

Educational Governing Bodies
2.59 p.m.
Baroness David Baroness David rose to call attention to the case for balance on the governing bodies of places of education; and to move for Papers.
The noble Baroness said: My Lords, in introducing the debate on governing bodies I should like to look back in history to the 1944 Act so that we can appreciate the enormous changes that have taken place in the composition of those bodies and their vastly increased importance and responsibilities.
The 1944 Act was not prescriptive. LEAs could do pretty well as they chose provided that they

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allowed minor authority representation. A research study in the 1960s showed that only about one-third of schools had their own governing bodies. In 20 cases the borough councils simply nominated a single governing body to act for all their schools. In one borough there was a single body of managers for all primary schools and a single body of governors for all secondary schools.
The need for change and balance was forcefully made in the 1977 report, A New Partnership for our Schools, chaired by my noble friend Lord Taylor of Blackburn. I am glad that he will be speaking today. Paragraph 4.6 of the report states:
"the means by which governing bodies could be made more representative should be based on the recognition first and foremost that each of the four main interest groups"
that is LEAs, staff, parents and local community,
"can contribute towards the establishment of a partnership based on their common interest in the welfare of the school; second, that no one interest group should play a dominant role; and, third, that between them, members of the body should be able to speak with knowledge and experience over the whole range of matters which are likely to come up for discussion".
The Government made two attempts to write the partnership principle into law. As regards schools, the principle was included in the Education (No. 2) Acts 1980 and 1986 but they ignored it in regards to the governing bodies of further and higher education colleges and polytechnics where business interests predominate and the principle of balance has been lost. The Education Act 1988 set up their governing bodies.
The 1980 Act ensured that each school had its own governing body and that there should be minority authority representation. Voluntary aided and controlled schools had their foundation governors. The 1986 Act made more changes which are in force today. It does not provide for the full and equal partnership proposed by the Taylor Report. The size of the governing body is determined by the size of the school and it varies from nine to 19 members. There is an equal number of parent and LEA governors (between three and five); one to two teacher governors and the head if he or she so chooses; and three to six co-opted governors. The scope for co-option in voluntary controlled schools is reduced to one with the balance of places going to foundation governors. The rules for voluntary aided schools are less precise. There should be governors from the various categories but there needs to be a majority of foundation governors.
Clearly, the representation of foundation governors in voluntary controlled schools introduces a complicating factor in terms of achieving balance. The need to recognise the interests of the foundation is understood but it produces a contradiction in the approach. In the case of a voluntary aided school proprietors are given a legal majority over the governors. A school in which the LEA is in effect the proprietor has minority representation balancing that from the parents. It is an illustration of the complications and untidiness that inevitably exist in a mixed system. Indeed, it is indicative of the diminishing role of the LEA.
As regards LEA schools, one can make some criticism of the current prescription through
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legislation. One accepts the balance between parents and the LEA but prescribing the actual size of the governing bodies gives rise to some oddities. In the smallest school the governing body will outnumber the staff. In the largest school there may well be a case for increasing the teacher representation or introducing representation from other categories of staff. Where a school has been designated a community school surely there is a case for direct representation from the wider community which uses the facilities controlled by the governor. Under present legislation one can look only to governors to recognise that through co-option. We would argue for more flexibility.
Another problem, particularly for county councils, is the cycle for the appointment of governors as determined by the 1986 Act. The governors are appointed for a four-year term in the year immediately preceding county council elections. Within a year those appointed may cease to be properly representative if the electors change the composition of the council. Councils can remove their representatives and appoint new ones but that is not the happiest way of proceeding. Continuity is important.
It would be much better if there was provision that allowed councils to match the cycle for governing bodies with that of the council. That is not an argument for securing representation from a particular political party. I emphasise the fact that we do not support LEA governors being appointed to secure representation only for the majority party. I shall return to that issue. Nor is it an argument about representing the LEA at governors' meetings. Governors will want their LEA representatives to be able to take back their concerns to the authority. I consider that to be one of the most important aspects of LEA representation. Even though not all the LEA appointed governors will be councillors I believe that, for the reason of reporting to and from the education committee, it is important that a majority should be.
I return to political balance. The Government's attempts to achieve balance in the composition of governing bodies through legislation sits oddly with their opposition to using legislation in order to achieve a political balance in the representation of the LEA. A number of LEAs have appointed only members of the majority party and every political party has been guilty of that; for example, Barnet, Wandsworth and Kent for the Tories, the Isle of Wight for the SLD and Manchester for Labour. I believe that some pressure has been brought to bear, and in his reply the Minister will perhaps enlighten us about the latest position.
In an oral Question tabled on 17th January this year my noble friend Lord Peston asked Her Majesty's Government whether they would amend the Education Reform Act in order to ensure fair representation of local opinion on governing bodies. The answer was no. I was sorry about that because I believed that it would be at least appropriate for guidelines to be issued. I wonder whether in his reply the Minister will tell us of the most recent government thinking about that.
On 7th February this year my honourable friend Mr. Jack Straw introduced a Bill to ensure fair shares between the political parties in the LEA appointments. It will place a duty on each appointing LEA to ensure that the political balance of governing body appointments proportionately reflects the party balance on the appointing body. It is the first occasion in recent memory on which the Official Opposition has introduced a Bill.
Of course a balanced school governing body cannot be achieved by legislation alone. Questions must be asked about the ratio of men to women. Is the ethnic composition of the community which the school serves reflected? Are governing bodies dominated by education or by other professionals and businessmen? Questions have been asked about the appropriateness of teachers being appointed as parent governors.
There is also the question of students. During the passage of the Act we tried hard to secure student representations but we failed. I still believe that that is very misguided, particularly in schools where there are sixth forms, in sixth-form colleges and tertiary colleges where students may well be old enough to vote in local and national elections. After all, they are the consumers. My experience as a governor—that was before the implementation of the Act when we had student governors—was that they made useful, enlightening and refreshing contributions. Now we must make do with having them as observers.
The National Foundation for Education Research carried out a survey for the DES on membership. The report, entitled Reconstitution of Governing Bodies, was published last August and revealed serious under-representation of manual workers, ethnic minorities and women. Of all the co-opted governors there are 1,037 men to 489 women, only 55 places for manual workers, and almost three times as many for retired people. Maybe that reflects the increasing workload. The predominant group totalling 754 is from industry, business, the professions and education. I do not call that exactly balanced.
I now turn to further and higher education. In the PCFC sector of the independent nominees appointed by the Secretary of State—that is 50 per cent. of the body —more than two-thirds are company directors, managers, or from the professions. Of the 12·5 per cent. from the public sector, which would include educational interests, only 13 of the 72 have any direct contact with education. Of the rest, the LEA is entitled to between one and three places. I understand that in fact it is usually only one. Students are allowed one place, teachers one, general staff one, and up to two academic nominations from the academic board may be made. I think that that is shocking. Their input is of vital importance. As yet, there is little feedback about how the balance of representation is viewed by those directly involved with the colleges but the lack of educational input seems unfortunate to say the least.
As regards the FE colleges maintained by the LEAs, the ERA required the establishment of new
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governing bodies—the maximum size to be 25. In practice, in approving the instrument of government, the Secretary of State has mostly insisted on a maximum of 20 with just enough exceptions to be able to demonstrate that he is not automatically substituting that judgment for the provision made in the Act.
Apart from that, the basic legal limitations are that at least half of the governors should be representative of the world of employment or co-opted governors largely from the same sphere. LEA representation should not exceed 20 per cent. The effect of those factors has been to limit the scope for any very strong representation of other interests. It will be common for there to be only one trade union representative, staff representation will be limited and there are problems finding places for all the varying interests which may exist depending upon the particular role of the college.
The thinking behind the legislation has not been to achieve balance but to create employer-led governing bodies with the minimum necessary representation from other key interests. Surely greater flexibility is needed to reflect the particular role and nature of individual colleges—and they vary considerably —particularly now that the employer-led training and enterprise councils have been set up. It seems to me that there may be some duplication.
I have dealt with the composition of governing bodies and I now turn to their responsibilities particularly as regards the local management of schools and colleges. They now have much greater powers and burdens and of a different sort from before. With reference to the National Association of Governors and Managers, I agree that it is a mistake for governors to assume executive responsibility. They should be the channel through which the institution is accountable to the community it serves. Management must be undertaken by the head and senior staff. The governors set the rules and principles within which that management is conducted.
The direct executive role should come into play only when there is a need to intervene. If governors were to be regarded as the executive, that would place excessive demands on the time of lay people performing a voluntary task. There is considerable anxiety that governors are being overloaded. Meetings are longer, often going on for three hours. More sub-committees are being set up —for example, finance and appointments. Governors have to supervise the budget, appoint and dismiss staff and have responsibility for the maintenance and repair of buildings. They have to absorb an enormous amount of material. There have been more than 20 circulars in the past 12 months. Governors also have responsibility for creating a school's policy on sex and religious education and have to attend annual meetings of parents.
That service is voluntary. Many governors are finding that the out-of-pocket expenses are making it almost impossible for them to continue. The question of payment for loss of earnings or travel is left to individual local authorities and many do not pay. Therefore, bus fares, baby sitting fees and other costs can prove too expensive. There have been

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rumours of a large number of resignations from governing bodies because they find the job too much, because it is too expensive or they are dissatisfied with the budgets allotted to their schools. I have not found any solid evidence of that and there are conflicting accounts. However, perhaps the Minister has some figures on that.
To sum up, there have been efforts to achieve a balance on school governing bodies although women and ethnic minorities are seriously under-represented and the numbers allowed may restrict some representation particularly of the local community. The smaller body may give rise to some difficulty with the larger task which governing bodies have under LMS. In the further and higher education sector, I consider that the industry business employer interest has been carried too far, important though it is, and, that the educational contribution is not adequate. After all, primarily those are educational establishments.
When she replies I hope that the Minster can tell us that the work of these bodies will be monitored and that we shall have a report on them in the future. My Lords, I beg to move for Papers.
3.15 p.m.
The Earl of Swinton: My Lords, I begin by thanking the noble Baroness, Lady David, for introducing this debate. It is rather like old times for me. We have had many long and happy arguments across the Chamber on this subject. Whatever we have said to each other during the debates, we have always ended up as personal friends. There cannot be anything very bad about a person who spends a lot of her time in the Yorkshire Dales. The noble Lord, Lord Taylor of Blackburn, also knows much about this subject. I have always forgiven him for the fact that he comes from Lancashire. Nobody can be perfect in this life.
There was a time shortly after local government reorganisation when I could probably have gone into the Guinness Book of Records as sitting on more governing bodies than anybody else in the country. I was chairman of the then schools sub-committee of the North Yorkshire County Council. As such, I was an ex officio member of every maintained secondary school governing body in the country. The point of that was that if a crisis arose at a school, there should be somebody in authority from county hall who could go along and try to defuse it before it got out of hand. That was quite useful and I enjoyed it. I did not know a number of the schools, although I tried to attend the meetings of as many governing bodies as possible. I seemed to be going to meetings of governing bodies morning, noon and night, day in and day out. In the course of my office I tried to attend all of them but I did not manage it.
For that very reason I was also co-opted, not by the LEA but by the governing bodies themselves, on to all the voluntarily aided and direct grant schools in North Yorkshire. I was a member of the special services sub-committee in North Yorkshire which meant that I was an ex officio governor of all special schools in the county. I was a governor of Atlantic College, that excellent and unusual establishment in South Wales, because we were one of the first
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authorities to send children there. For good measure, I was also a manager of the two local village primary schools, a governor of an agricultural college, an outdoor education centre, two teacher training colleges, two further education colleges and two independent schools. I do not believe I quite made the ton but I very nearly did. I am quite certain that that is now illegal under the new legislation, which is probably just as well because no one can do all that. However, I have attended a few meetings of governing bodies over the years.
I should like to say a few words about political bias on governing bodies. To a certain extent I suspect that that has always been the case. Long before the 1944 Act, when the churches ran all the schools, I can imagine that the vicar invariably would have been the chairman of the governors or managers and would have invited the squire to join him along with a few other benefactors. I suspect that at that time the Church of England was the Tory Party at prayer. Even in those days, most of the governors or managers would have had the same political views.
It was certainly true in the early 1960s when I was first elected to the county council that local county councils had responsibility in their area for nominating managers of the primary schools. I certainly never asked anybody or tried to find out what political party they supported. However, among friends, neighbours and acquaintances in the villages, most tended to be conservative, at least with a small "c". Things have gone downhill since then as regards political bias. I shall return to that in a few moments.
It was rather intriguing that at that time a new secondary modern school opened in the local market town. There was great excitement. I was not a governor from the day it opened but I was so appointed very shortly afterwards. That was splendid. I forget exactly how the governors were appointed but there were a certain number from county hall, a certain number from district councils and some were co-opted. The first chairman was a very formidable lady who rode regularly to hounds. That was rather splendid. There was an absolutely unwritten rule that the governing body or sub-committee should never meet on two particular days of the week because that was the day when the Bedale Hunt met.
On the question of political bias, I do not want to be too controversial but I shall be delighted to hear what the noble Baroness, Lady David, says regarding the official policy of the Labour Party being not to insist that members of a governing body belong to one particular party.
I had a very interesting experience. The only maintained school of which I am still governor—in fact I am chairman of the governors, and am very pleased about that—is a special school. I do not like the word "special", but it is a very special school. I was involved when the school was planned and it was at the time when the noble Baroness, Lady Warnock, produced a report on which there was perhaps more unity than there was on one or two of her later reports. That was a report on special education.

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The school in question took all the ideas from the Warnock Report and incorporated them. It is now one of the leading schools of its kind in the country. On our governing body, which was formed by appointing so many representatives from each political party, we had the most delightful Labour Party appointment. He was attached to York University, a man of very good intellect and particularly interested in the study of children with special difficulties. His contribution to the school was enormous.
Following the next round of county council elections I was horrified to see that he was no longer on the school board of governors. I wrote to him and said that I was sorry that he had felt the need to resign and could not carry on but perhaps I could persuade him to change his mind. He replied that it was nothing like that. He said that the local Labour Party was going through one of its tendencies to the extreme Left and he had been chucked off because he was not nearly Left-wing enough. He was particularly angry about it.
His successor arrived, who was obviously very good politically and very far to the Left. He appeared for one meeting. He had no interest whatever in education, especially that of disadvantaged children. He saw that that particular governing body and the school were not the seedbed for some form of revolution and never attended another meeting. We managed to co-opt the previous Labour member back on to our governing body. He has been on the board for many years; sadly, he retired earlier this year due to lack of time. I thought that that was pretty disreputable behaviour and I am delighted that the party opposite has changed its policy in that regard.
The noble Baroness, Lady David mentioned the increased duties and responsibilities assigned to governors. That is a good thing. They are governors and it is a good idea that they should govern. The Government made a good job of the various pieces of legislation that they introduced. I must admit that when it was going through I had some personal doubts as to the wisdom of the provision allowing so many parents to be on governing boards. I admit that I was bigoted. I thought that they would be interested only in their own particular child, little Johnny or Sarah, and would not have a lot to contribute to the actual overall running excellence of the school. I am delighted to say that from my experience I have been proved totally wrong. The parents appointed to the boards have been extremely sensible, extremely helpful and not just interested in their own children. They have made an enormous contribution.
One of the most important responsibilities, with all the extra duties, is to ensure that correct training is given. I hope that what I am about to say will receive some publicity, not because I am trying to boast, but because it is a very good idea. Radio York put on for the Yorkshire area a series of radio broadcasts for new and more experienced governors. I took part in the first broadcast. There was an opportunity for people to listen to the series of weekly broadcasts and they could then write in. It
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ended with a general phone-in and certain people answering questions. I thought that that was a very good way of training people. If that were done on a nationwide scale it could have very good results.
The governing bodies are in pretty good heart at the moment. I listened to the list of grievances given by the noble Baroness. I am sure that my noble friend, when she winds up the debate, will answer most of them. Governors are doing a very good job. I was delighted to be proved wrong in my heart of hearts regarding parents on governing boards, and I believe governing bodies have an exciting future to look forward to.
3.25 p.m.
Lord Taylor of Blackburn: My Lords, I am delighted to be able to take part in the debate initiated by my noble friend Lady David this afternoon. I am also delighted to hear the noble Earl, Lord Swinton, taking part. It is like old times. We have been through many arguments and discussions; we can now look at the situation with different eyes and see what progress, if any, has been made.
There are one or two points I must take up with the noble Earl regarding the political position. It has been the policy of the Labour Party for many years—not just recently—to try to ensure that there is no single political party on a governing board. What happens in local parties is no concern of the national party. It is up to local individuals to decide. It is sad when there are people of high calibre leaving the boards of special schools, or any schools. We could recite cases of that kind throughout the country happening in Conservative Party areas. We do not want to enter into that debate this afternoon; we want to look at the balance within the schools.
I was asked in the early 1970s to chair this committee because of my feelings and because my views had been made known to various Secretaries of State and Ministers of Education as regards the political imbalance in various governing bodies—or rather they were called managers in those days. Like the noble Earl, Lord Swinton, I was very worried because I was the chairman of a county education committee. Being chairman of that committee meant that I was also chairman of 27 school boards. It was impossible to do justice to individual schools, being chairman of so many. We had managers' and governors' meetings approximately once a quarter, if that, though we were supposed to have them once a quarter. I sat in the chair with my vice-chairman, who was a Conservative, sitting at my side. The governing body comprised one-quarter of the education committee. The head teacher would come in and present his or her report. There would perhaps be one question put forward and the next head teacher would come in from the next school. Matters continued like that. It was a real farce.
I am pleased to say that all that has now changed. My committee chose the title A New Partnership, for the report. We were trying to get out of the political rat race which many authorities found themselves in. We wanted to strike a balance and a partnerhsip within the community. Our recommendations were that one-quarter of the board should be drawn from the LEA, because we acknowledged the work and the

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responsibility of the LEA. We wanted one-quarter of the board to be drawn from the staff, because, again, we acknowledged and recognised the work and contribution that the staff could make. When I say "staff I am not referring to the teaching staff alone, but also to the ancillary staff within the schools. We also wanted representatives of the community to comprise one-quarter, because the community has a lot to offer.
Schools can play a vital role in the community, especially in small rural areas, where they are the centre of all the local activities. Even in urban areas the community can be involved. People from the industrial organisations, trade unionists and various other prominent individuals can contribute a great deal to schools. We also wanted to involve the parents.
In our recommendations in the report we emphasised that we did not want any one particular body to be in complete control. In producing those recommendations we felt that we had obtained the right balance to help the school. We wanted people in the school with whom we could work. We also tried to do away with the situation in which both I and the noble Earl found ourselves by stipulating that nobody should serve on more than three or four governing bodies. We felt that they should perhaps serve on the board of a primary school, a junior school and a secondary school and could go on to part of a college, a technical college, and so on. We found that to be the right sort of balance, again, that any one individual could serve within the community.
We recommended that in order to persuade people to serve on these governing bodies one must give them a reasonable job, some work to do, so that they felt than they were bringing in their expertise. One cannot expect an industrialist, a trade unionist or a parent to attend a meeting where the only subject to be dealt with is the head teacher's report and the date of the next meeting. People will not attend meetings for that alone. Therefore we recommend to the Government—I am glad the recommendation was accepted—that more authority and responsibility should be given to governors. Now we have governors with more responsibility for the finances of the schools and other matters. The committee was not unanimous about that recommendation. A minority report said that it should not be done. Nevertheless, it came to pass and fortunately the Government accepted it.
These matters are important. We find in the polytechnics that there is not the balance that we had hoped for when the legislation was going through and they were taken out of the hands of the local authorities. We find also that my recommendations were not accepted in full because in some cases too many parents were on the boards and in other cases too many politicians. Nevertheless, we must let matters lie for a while and see how they work out. I look forward to hearing from the noble Baroness whether she can bring us up to date on how matters are working out, because one hears all kinds of stories.
One recommendation that we made—I am glad to say that it seems to be working in some parts of the
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country, though not in others —was on the training of governors. Many people misjudged our wishes in regard to training. They felt that we wanted governors to go in for a bachelor of education degree, or something of that nature. That was not the idea. We wanted something simple. I give an illustration which I believe sums up the position. When I was first appointed a magistrate about 27 years ago I was invited to sit on the Bench with no training whatever. Fortunately I had a wise old chairman who said, "Just sit back and listen to what goes on. You will find that after a while you will gain some experience". Of course, that has now changed and magistrates are trained. Now we are training governors.
It is important that governors should be trained because so much legislation has been enacted over the years. They do not need to be fully aware of every little dot and comma in the legislation but they should get to know the principles of it and become aware of their duties and their role.
One aspect which frightened us in the early days was whether we could convince people that the governing bodies were not set up to teach or to interfere but to assist. We recognised the professionalism of teachers. We recognised the work they do and the contribution that they make. We also realised that many teachers need assistance. They need assistance today probably more than ever before. Some of the best teachers I ever appointed came out of the services. Those people have had some experience of life and what goes on outside the teaching profession. They knew exactly what they wanted to get over to the children in their schools.
Unfortunately—I say this with the greatest of respect—what often happens these days is that people enter the teaching profession having gone from school to college and from college to university and then into teaching. They do not know what is going on in the world outside. Therefore, I should like to see more training of teachers in the activities of commerce and industry so that they can take that knowledge back into the schools. I believe that to be important.
If that experience cannot be obtained it can be acquired by having governors within the schools. They can impart that knowledge into the schools. I am not suggesting training for jobs because I do not believe education is training for jobs, especially at the secondary level. I believe education is training for life and that training for jobs comes later. Governors with that expertise are able to assist the teachers and tell them what is going on. They are industrialists and trade unionists and people from within the community. Parents, of course, can give their point of view, which is all part of the system.
Training is extremely important and I am glad that it is being carried out. Of course, there are areas like my own in Lancashire where there is a great ethnic community. It is important that ethnic communities should play a role within schools. They can do that by having their members co-opted on to governing bodies or elected by the parents' associations.
I am pleased that schools now also report to parents on what is happening in the schools. At one

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time schools were a closed book. Often an autocratic head teacher would not even allow parents to go beyond the school gate. However, much of that has been wiped away and parents are encouraged to go into the schools.
On the whole, I am pleased at the way governing bodies are moving forward. I am not satisfied, but I am pleased. I shall never be satisfied as I still want more. I shall always want more and I hope that I shall get more as time goes on. However, there is an enthusiasm that I have not seen for many years in many places throughout the country. I hope that local political parties will realise that there is this enthusiasm and allow the governors to govern. I hope that the Department of Education and Science will realise—this is equally important—that there should not be too much bureaucracy from the top.
I hope there will be a period of stability because over the past decade there has been far too much legislation on education. Time should now be allowed to let the dust settle and see how matters are progressing. We should not be constantly digging up the roots to see how the plant is growing; let it go its own steady way for a while and we can then perhaps rectify the wrongs of the 1980 and 1986 education Acts.
I look forward to the rest of the debate and to the Minister's reply. I am grateful to my colleague and noble friend Lady David for initiating the debate.
3.36 p.m.
Baroness Nicol: My Lords, I join in the thanks to my noble friend Lady David for introducing the debate and for the comprehensive way in which she did so. I have read the Department of Education and Science document School Governors: A New Role which the noble Baroness, Lady Blatch, was good enough to send to me. The new responsibilities are daunting and it does not surprise me to learn that the AMA regional meetings in March found that education officers were reporting an unusually high number of resignations from governing bodies.
I cannot equal the record of the noble Earl, Lord Swinton, but I served on four governing bodies simultaneously. Those covered three different age groups in the state system and a grant-aided school containing many private pupils. I therefore had a wide experience, but endeavouring to do those four jobs together was difficult. If I had to do that under the new rules I am sure that I could not cope—at least, I would not be able to do justice to each school. However, it was a rewarding experience.
As my noble friend Lady David pointed out in her informative introduction, very few of us who served at that time in the 1970s would have had the time to devote to detailed administration and the fine control of finances which now seems to be required. There were many excellent governors and their contribution to the educational and community life of the schools was beyond price. I hope that under the new regime such people will still be found. I am optimistic that they will.
The new responsibilities need first-class people who are able to give sufficient time to the job and
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who are fully committed to the success of our schools. As my noble friend said, a school is important to the whole community. It is part of the local scene and should be supported and cared for by all the political parties, no matter which party is in power in the town hall.
Concern for education is common to us all. I go further than my noble friend Lady David. I believe that minor parties which fail to win seats but which attract support from a significant section of the population should not be kept off governing bodies. The local authority appointing governors should take that into account. I understand that that has happened in some areas and not just involving one party, which would be the one-party approach.
School governing bodies are not intended to be political battlegrounds. Elected councillors have a part to play but neither they nor their officials should expect to dominate. From my own experience, though we were political appointees in a sense we were mixed appointees. I believe that without exception we all left our politics at the door except in the sense that one joins a political party because one thinks in a certain way. That way of thinking goes through everything that one does. That element of politics is valuable. It helps to achieve that balance that we all hope will continue.
The role of the local education authority is that of a facilitator which guides and advises. Since the schools are no longer run by the LEA after the 1988 Act, councillors should be using their influence to help the schools along rather than attempting to retain their power covertly. One of the tasks of the governors is to oversee the national curriculum. There is a danger that the school may concentrate on foundation subjects to the detriment of broader matters. The performing arts, environmental concerns and an awareness of the structures and problems of the local community and of society as a whole could be neglected if the right balance on the governing body is not achieved.
A briefing note from the CBI which many noble Lords will have received seems to attach overriding importance to the inclusion of industrial and commercial governors. Financial expertise is useful. In the past, industrial governors have given excellent service to many schools, but their expertise should not be allowed to obscure the priorities of education. My noble friend said that teachers should get industrial experience. They certainly should. It has been said to me on occasion in the past by head teachers that the commercial representatives do not appear to be nearly so willing to learn what is going on in education. It should be a two-way process. When people come from the CBI or any other organisation they should be prepared to learn at least the elements of what they are supposed to be doing.
A school is there first and foremost to provide a well-rounded and balanced programme to fit all of its pupils for the whole of their lives thereafter. Job training comes later, but training for life starts at school. It cannot and must not be run as a small business with emphasis only on the financial outturn. I fear that that may happen if we are not very careful. There are other balances to be achieved. A mixture of male and female governors is obviously desirable.

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My noble friend Lady David told us that that is not happening in some governing bodies and I regret that.
Though I am a great supporter of the idea of the equality of the sexes, there are differences of approach between the male and the female. Both should be represented on school governing bodies to bring their different approaches to the problems. It probably goes without saying that, so far as is reasonable, the religious and cultural backgrounds of the pupils should be reflected in the composition of the governing body. That may not be so easy to achieve but it is a matter which should be attempted especially where there is a large balance of pupils in one direction or the other. It will not be easy to find enough people of ability who can give the time for what is now an exacting task. Attempting to achieve a healthy balance of the necessary attitudes will make it even harder. The future well-being of our children is one of the most important aims of our society and we cannot afford to fail.
3.44
Lord Ritchie of Dundee: My Lords, I also add my appreciation to the noble Baroness, Lady David, for introducing this subject which is a very important one. I came prepared with certain things to say on the subject of balance. However, the noble Baroness has said them so well that I feel my job has been done for me. Instead I wish to say a few words about governing bodies in general and in particular to relay to your Lordships two conversations which I have had during the past week with people in key positions.
The first conversation was with the officer in charge of governing bodies in East Sussex which is my home county and home area. Both he and the other person I spoke with were, to my surprise and pleasure, extremely optimistic about the way in which governing bodies were proceeding. I thought that I would help to cheer up noble Lords this fine spring afternoon by relaying these conversations.
I certainly echo what the noble Earl, Lord Swinton, said about the fears of some of us in the early days that parents might not make the best sort of governors; that they might be too diffident or unconcerned to come forward and offer themselves. Possibly worse, they might be too exclusively preoccupied with the interests of their own children so that they would not be sufficiently disinterested in the governorship of the school.
I am assured that neither position is the case in East Sussex. Apparently, there is emerging a general willingness to serve on the part of the right kind of parent; namely, those who are prepared to shoulder the new burden of work and responsibility, the prospect of which is proving a salutary deterrent to the wrong kind of people. Parents are not being regarded as delegates to give voice to the complaints or dissatisfaction of other parents. They are sitting on governing bodies to give expression to their own free opinion in their capacity as elected representatives.
There is no evidence of political manipulation. A feeling of partnership is developing in many
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governing bodies based on the unspoken consensus that the matter of supreme importance is the welfare of the children. Such is the unbiased impression of a public servant.
I spoke next with a lady who heads a special unit set up by Lewisham Council. As noble Lords will know, Lewisham is one of the 13 London boroughs that has had to devise its own education service within a very limited length of time in view of the demise of the ILEA. Lewisham Council has set up a special unit with special responsibility for the advice and support of governing bodies throughout the borough. I was interested to know how an urban area would compare with my predominantly rural one. To my surprise, the lady gave a similar report on the situation in Lewisham and, as far as she knew, in other London boroughs. She knew a good deal.
By and large parents are coming forward although the number varies from one area to another. I assume that there will be less willingness to serve in areas of deprivation or those where there is a high black or Asian population. In that situation parents may very often feel themselves too unfamiliar with the language and with the system to offer themselves for election as school governors.
The lady described the political aspect as not really being an issue. The real issue was getting the right kind of people into the job. I understand that the boroughs of Lewisham, Greenwich and Southwark are having difficulty in finding enough paid-up party members to fill the large number of vacancies for their own nominees. The borough of Islington is considering adopting a policy of nominating non-paid-up members if necessary. That is in line with what the noble Baroness, Lady David, said just now: that there seems to be a very promising relaxation of the intense pressure to get party members into governorships. That is good news for all of us.
That relaxation of pressure will give greater opportunities for ethnic minorities to have adequate and fair representation on governing bodies. I repeat that the all-important point is to get the right kind of people; namely, those who are prepared for the work and the responsibility; who want to do the job; who have not been coerced on political grounds and who are dedicated to the best interests of the children. I speak with humility before the noble Earl and other noble Lords who have made references to the vast number of governorships that they have had in the past. Perhaps they would not be so ready to take on so many governorships these days. The lady I spoke to said—
The Earl of Swinton: My Lords, I was not boasting about the number of governing bodies. I was trying to make the point that it was a damned stupid system.
Lord Ritchie of Dundee: My Lords, the noble Earl's comment is amply confirmed by the lady I was speaking to who described as "outrageous" the idea of anyone serving at the moment on more than at most two governing bodies. That was her word. The permitted number is four but she considered that two is the maximum permissible in view of the new responsibilities.

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Governing bodies are encountering plenty of problems. It occurs to me that with their new importance central government may have to listen to them. The first and most obvious example is connected with local financial management. In the London boroughs all present governors who were appointed two years ago will be due for retirement in two years' time, just when local financial management becomes effective in London. That will create problems. East Sussex has been reproved by the Department of Education for being too sensitive to local issues in applying the formula funding. It has apparently considered too closely the particular needs of particular schools. I should have thought it was obvious that schools in deprived areas may require more generous funding than others, but not according to the Department of Education and Science. I shall give one example.
The Moulsecomb district of Brighton is a deprived area. Two or three years ago—I have forgotten exactly when —two small children strayed away from their homes and were kidnapped and murdered in a park nearby. They were on their way to or from the local shop. Since then East Sussex has put extra resources into lunchtime and breaktime supervision in the primary schools of that part of Brighton, as much to allay the anxieties of parents as anything else. With central funding the LEA had the flexibility to do this. With strictly controlled formula funding such care would be "too sensitive" in the eyes of the department. That protection is no longer offered. My hope is that the governing bodies of the schools will be able to make themselves heard where the LEAs have not been able to.
This Government have not listened for 10 years but they have now created governing bodies with parent power which I sincerely hope will make a thorough nuisance of themselves. Is it too much to hope that where the Government turn a deaf ear to local authorities, to HMI and to the teacher unions, they may have to fit a hearing aid to their own creatures, the newly formed governing bodies, when they protest about the state of our maintained schools, which were described only yesterday, by the chairman of the headmasters' conference no less, as "scandalously underfunded"? What machinery will there be for the new governing bodies to voice their concern and demand some satisfaction? I hope that the Minister will give us some reassurance on that point.
3.53 p.m.
Baroness Blackstone: My Lords, like the noble Earl, Lord Swinton, I too have served on a number of governing bodies of both schools and colleges, though I cannot begin to compete with him in terms of the number of schools or colleges on whose governing bodies I have sat. Indeed, I wonder how he finds time for anything else in his life. Perhaps he sleeps rather less than the rest of us. But what both he and the rest of us taking part in the debate must remember is that since the Education Reform Act 1988 the powers of school governing bodies have been greatly increased. My noble friend Lady Nicol
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referred to daunting new responsibilities. That seems to be an apt description.
The introduction of local financial management means that governors now have to take decisions about school budgets and how they should be spent. They also have much increased powers with respect to the employment of teachers and other staff which previously resided with the local education authorities. These changes give the governing bodies of schools an importance which they did not have in the past. There have also been changes in the powers of polytechnic governing bodies as a result of the removal of the polytechnics from the local authority sector, and in the powers of college governors, again as a result of the devolution of financial management from the local authorities to the colleges. These changes greatly increase the need to ensure that there is a proper balance on governing bodies of the various interests which ought to be represented. Governing bodies can now influence what happens in the institutions for which they are responsible far more directly than they could in the past.
During this debate we have focused mainly on primary and secondary schools. In replying for the Opposition, it is only right that I should do the same. I shall not go into the details of the 1986 Act, nor will I comment on or describe the recommendations of the report by my noble friend Lord Taylor of Blackburn. However, I should like to say how delighted I am that, as one of the acknowledged experts in this area, he has been able to contribute to the debate.
While focusing on the schools, I want to say something about the post-school sector. In passing, I should also like to record that there are some 600 nursery schools in England and Wales, and that they are not required to have governing bodies. I am puzzled as to why this should be the case. Why have they been excluded? Many of those schools are larger than a good many rural primary schools. I know that LEAs usually make some kind of informal arrangements for their governance. However, surely there should be a requirement for them to have governing bodies. Perhaps the noble Baroness who is to reply can say whether the Government have any plans for rectifying this rather odd anomaly. And if they do not have any such plans, why not?
The first concern about balance involves the representation of local education practices of some authorities in appointing to these positions only members of the majority party. I should like to restate what has already been said by my noble friends. We deplore this practice. Fortunately, nearly all authorities have now come into line, partly because of the campaigning of the Opposition spokesman in another place, Mr. Jack Straw. I am glad to say that the remaining Labour authority guilty in this respect, Manchester, is about to reconsider its policy of excluding Conservatives from LEA governorships. However, my understanding of the latest position is that the London borough of Bamet is still turning its face against changing its policy of making all LEA governor appointments from the ranks of the local Tory Party, even though 30 per cent. of councillors

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are Labour—the figure will be a good deal higher after 3rd May—and 5 per cent. are Liberal Democrats.
Is it not rather surprising that the Government should have let the Tories get away with this in the Prime Minister's own constituency when both the Secretary of State and his predecessor have said that this practice is quite unacceptable? If Labour were to gain control in Barnet—admittedly something of a tall order, because it would require a swing of more than 13 per cent., but it is not beyond the bounds of possibility —how would the Government view the wholesale replacement of all Conservative governors by Labour governors? I hope that a Labour-controlled council in Barnet would not do that. However, the Tories' provocative behaviour could evoke a tit-for-tat response. Conservative councillors in Barnet clearly do not have the interests of pupils at the forefront of their thinking. If they did, they would have conceded long ago the need for balance. This is not the best way of ensuring some continuity on governing bodies when there is a change in control after local elections.
I have some sympathy with the Government's wish to avoid legislation on this matter. In some ways it would be taking a sledge hammer to crack a nut. Moreover, local authorities may wish to make some appointments of people with no political affiliations but with relevant expertise and commitment to do the job properly. As the noble Lord; Lord Ritchie of Dundee, has already said, it would certainly be wrong to insist that LEAs make political affiliation an essential requirement for appointment to school governing bodies. However, my noble friend Lady David is surely right to ask for guidelines on this somewhat vexed question.
As has already been said, there are a number of other questions of balance besides political affiliation. It is obviously desirable that the composition of governing bodies should cover a broad cross-section of the community. Indeed, so far as. possible they ought to reflect the community which the school concerned actually serves. It is particularly important that there are substantial numbers of black and Asian governors in areas of high Afro-Caribbean and Asian populations. The ethnic minorities are currently under-represented according to research carried out by the National Foundation for Educational Research. Perhaps in her reply the noble Baroness can say what steps the Government might take to encourage higher participation from the ethnic minorities. For example, could LEAs be asked to nominate from the ethnic minorities where they are under-represented?
As my noble friends Lady David and Lady Nicol said, it is also rather disappointing to discover that there are many more men than women on governing bodies; for example, 58 per cent. compared to 42 per cent. according to the NFER study. That is in spite of the fact that women form the majority of parent and teacher governors. However, even in those categories they are in the minority in secondary schools. But the most serious imbalance is in the co-opted group of governors where according to the NFER study there were 1,037 men to 489 women.
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Most disappointing of all is the fact that only about a quarter of women chair governing bodies. It is high time that that situation was changed and that more women were chairing these bodies, whether they ride to hounds or not. That will only happen when LEAs, which take a disproportionate share of the chairmanships, appoint more women and encourage them to chair these bodies. The NFER finding that only 55 out of 1,534 governors were in manual jobs is also a cause for concern.
There has been some concern expressed this afternoon about school governing bodies being perhaps over-full of people who are already in the education industry. If that is the case—and the evidence is rather conflicting—then it could be argued that the Government's intention to provide opportunities for parents and for representatives of the local community to become involved in educational decision-making at the school level has been thwarted.
At the same time, I have a great deal of sympathy with the teachers' unions which we hear denigrated in this House rather too often. They argue that it would be quite wrong to deny teacher parents the right to stand as governors like any other parent. Nevertheless, the findings of one study which suggested that between 40 per cent. and 50 per cent. of governors were involved in a professional capacity in education in some way is perhaps a little worrying. It is worrying if we accept —as I believe we probably should—that those from outside education, including parents, have a contribution to make in that it is desirable to broaden the base of educational decision-making at this level. It would be interesting to know how the Government are responding to this genuinely difficult dilemma.
The more successful we are in bringing new people into education decision-making through governing bodies, the more important it is to provide adequate training for them. I was glad to hear both the noble Earl and my noble friend Lord Taylor of Blackburn refer to the importance of training. The Government have provided funding for the training of governors through the education support grant mechanism. That was a welcome initiative. However, the need for training will not go away when the ESG runs out in two years' time. Indeed, local financial management, as has already been said, will go on putting increasing demands on governors to deal with a great many complex problems.
Training can help to create confidence, as well as improving the quality of the decisions made. In turn, this should help stem the tide of resignations which some fear are likely because of the demands of local financial management. Can the noble Baroness say what the Government intend to do when the ESC money runs out? It will not do to tell us that the LEAs must do this out of existing resources. We all know just how constrained local authority education budgets have become. We all know that poll tax capping will make matters even worse in some authorities.
At present nearly all government training is done outside the schools. However, the Task Group on School Management set up by the DES has argued that the most effective training of heads and deputies

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is done within the schools, although some of their training must be done outside. The National Association of Governors and Managers has suggested that the same applies to governors: rather than sending them off in ones and twos to train at outside centres, group training with all the governors working together, using open learning packs which have now become available, ought to be tried.
Would the Government consider delegating some funds to schools, perhaps on a pilot basis, to be spent on governor training of that kind? Would they also consider allowing some bids through the Department of Education and Science local authority training grant scheme for the training of governors? Some joint training of heads and deputies with the chairman and the deputy chairman of governing bodies would be particularly helpful. The local management of schools must be a partnership between heads and government—it might help to forge this partnership with some joint training.
I turn now to the post-school sector. Some rather regrettable decisions were taken by the Government to legislate to stuff the governing bodies of polytechnics and colleges under the PCFC and LEA FE colleges with businessmen and perhaps businesswomen. I have nothing against businessmen; indeed, some of them are very splendid people and some of my best friends are businessmen. However, I cannot see why they should be regarded as so special and their potential contribution so great that they should be expected to take the lion's share of places.
The Government also took the view—again, wrong in my opinion—that FE and HE colleges maintained by the LEAs should also have large numbers of employers on them. Under the Education Reform Act, from the 1st of this month PCFC institutions have to have large numbers of so-called independent governors who come from industry, commerce and the professions. On the other hand, the LEAs which, after all, maintained these institutions before, are left with minimal representation of between one and three governors. I suggest that that number is too small and that it does not create a balanced governing body.
The appointments made to those governing bodies by the Secretary of State have been heavily biased in favour of male middle management so far as concerns employment interests. I regret that fact. Is that really what we want? I do not think so. Surely, just as balance is important on school governing bodies, so it is among the governors of the polytechnics and the colleges. What kind of monitoring do the Government have in mind in relation to the new unbalanced bodies that they have created? I would be grateful for some indication of their intentions in this respect. It would also be useful if a survey, similar to that carried out by the NFER on schools, could be undertaken of the new membership of the governing bodies of polytechnics and colleges.
I shall deal now with the LEA FE colleges. The prescription that at least 50 per cent. of governors should either represent employment interests or be
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co-optees seems to be heavy handed. The Secretary of State has been in some conflict with LEAs when considering the approval of proposed instruments of government for each college. It would be interesting to see an analysis of his decisions on the composition of governing bodies in this sector. As my noble friend Lady David said, it is unfortunate that education interests have now been neglected and the interests of industry, of commerce and of the professions overstated so far as concerns the governing bodies of post-school institutions.
Last but not least, it is terribly regrettable that students are so poorly represented on the governing bodies of post-school institutions. Many Members from all sides of your Lordships' House questioned the wisdom of restricting the number of places to only one student in debates during the passage of the Education Reform Bill. Those of us with rather more experience of these matters than the previous Secretary of State, Mr. Baker, made it clear that the student's voice is a valuable one and that a minimum of two places for students would have been more appropriate. As in the case of the poll tax, as in the case of an over-prescriptive national curriculum and as in the case of a top heavy system of testing, he simply would not listen. Perhaps his successor will be willing to look again at this matter, as well as the other questions raised in this debate on the very great importance of balance in the governing bodies of our educational institutions.
4.9 p.m.
Baroness Blatch: My Lords, perhaps I may add my thanks to those already expressed to the noble Baroness, Lady David, for allowing this very important subject to be discussed. Although few Members have spoken in the debate, it has certainly not lacked quality. As I know most of the speakers personally, I know that the experience they have brought to the debate is considerable.
I think I shall be joined by those who have spoken in the debate if I admit to some degree of relief about the self-condemnation of my noble friend. He took a fairly dim view of a number of governing bodies. It was a pretty impressive list. However, I hope that the days are past when people sat on large numbers of governing bodies when one had to question the kind of contribution they made, not because they were not good people but simply because they were entirely overstretched.
I wish specifically to mention the noble Lord, Lord Taylor of Blackburn. The work that he and his committee did in the field of opening up governing bodies was particularly welcome. The thrust of the work of the Taylor Committee was probably rather different from where I stand. Many of us in local authorities welcomed that report. Those of us who already had governing bodies found that what we were doing was underwritten by the report of that committee. However, in many parts of the country there was a chalk mark across the playground beyond which parents and governors had no place. The change was something of a revolution in many parts of the country but was nevertheless welcome.
Perhaps I may also thank the noble Lord, Lord Ritchie, for the note of optimism. There is certainly

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an air of optimism in our new governing bodies. We have identified much common ground on both sides of the House. The issue before us is not a party political one and I am pleased to note that almost everyone who has spoken has mentioned that.
Before tackling in detail some of the specific issues which have been raised, I should like if I may to reinforce two particular areas of agreement which unite all Members of this House, and then deal with one area of disagreement which the noble Baroness has emphasised but which I do not think is as significant as she has suggested.
The first and fundamental agreement is on the importance of the governing body—implied in the Motion before us and given full expression by your Lordships throughout this short debate. Governing bodies are the means through which we seek to ensure that our educational institutions are not only for their communities but of their communities and answerable to their needs.
A good governing body is close to the institution for which it is responsible and has the best interests of its pupils and students at heart. The new arrangements for school government set in place in the 1986 Act and given full force by the Education Reform Act 1988 allow school governors to exercise significant control over the curriculum, over staffing and over the finances of the school. We have sought to set in place arrangements which will allow these weighty responsibilities to be exercised effectively; for we are clear that it is at school level that they are best discharged, within an overall statutory framework.
We do not accept that the task we have given governors in this context is too weighty for them. However, I note the understandable comment made by the noble Baroness, Lady Nicol. Comparing what has gone before with the present duties of the governing body shows that there is quite a distinction. However, we accept that governors will need help and encouragement to carry out the task effectively. We have therefore made arrangements for training for both college and school governors., We are giving grant in support of some £23 million of LEA expenditure on governor training. We are also offering a good deal of central help, both by producing materials for all governors such as our Guide to the Law and by producing training packages which LEAs and governors themselves can use to develop their skills.
At this point perhaps I may say in response to the noble Baroness, Lady Blackstone, referring to her request about ESGs, that I cannot give a specific answer because I do not think what happens when ESGs run out has been considered. However, I can promise that as long as training for governors is considered important, funding for it will be considered in the setting of budgets each year by the department. I can go no further than that.
In offering this kind of help we are also conscious of the need to limit the flow of paper to governors. We aim to send out only material of direct, practical use, written in a clear style and accessible to governors from all backgrounds. The results so far are most encouraging. We have had two surveys
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of reconstitution of school governing bodies. The evidence is that governors from all walks of life are coming forward willingly to meet the new challenges. This was a point made very well by the noble Lord, Lord Ritchie. The response from business governors who some sceptics forecast would never devote the necessary time and energy to the task has been particularly pleasing. Over 40 per cent. of governors who are employed, other than those elected as teacher governors, are from business and the professions. The signs are equally encouraging for college governing bodies.
Perhaps I may say a word on the fair amount of criticism that has been made about the fact that by and large our representatives in business and commerce come from middle or senior management. For many of us who served in local authorities one of our great criticisms about the representatives from business and commerce was that often they were not sufficiently high level to go back and make practices change in companies. We want the kind of representation from companies whereby the people who are sitting on the governing bodies can go back to the workplace in their companies. That was the point made by the noble Lord, Lord Taylor of Blackburn. Those representatives will have an increased understanding of what is done in our schools. They can then make something happen at company level so that full advantage can be taken of it and they can learn from each other.
We are certainly not complacent. We recognise and admit the burdens on governors over recent months. We are therefore carrying out a further survey to see what early evidence of turnover can tell us. But we are confident for the future. The evidence from pilot local management schemes is that once new responsibilities turn from theoretical problems into real opportunities, giving governors and heads the opportunity to control resources and direct them for the good of the school, the effect on morale is powerful and very positive. We expect to see this pattern repeated in the 87 authorities which have delegated at least some budgets for 1990-91.
So on the importance of governors we are all agreed. What about balance? That too is a matter of general agreement. I mean here both kinds of balance—that between the interest groups on the governing body and that among LEA nominees in particular.
The 1986 Act set in place arrangements for overall balance in appointments to school governing bodies. There are a number of important interests which need a strong voice on the governing body and we have secured that. Parents will have a strong voice through their elected representatives. The teachers will have a similar though smaller representation. The LEA will be able to nominate the same number of members as the parents. Those members will collectively co-opt a significant number of representatives of the wider community, in particular local business and industry but also any other groups with whom links can usefully be established.
I return to a point made by the noble Lord, Lord Taylor of Blackburn, about quarters. Looking at the arithmetic for the new composition of governing

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bodies, the LEA and the parents have one-quarter representation each. The other 50 per cent. is made up of staff and community representation. So we have continued to honour that recommendation of the Taylor Report.
Similarly, we have ensured under the Education Reform Act that college governing bodies have no more than 20 per cent. of their governors nominated by the LEA. Employment interests and co-opted governors make up at least 50 per cent. of each college governing body, with the remaining members representing staff, students and the local community.
This arrangement replaced one in which the LEA had a majority of all appointees on most governing bodies—a system under which the whole notion of independent power for governing bodies would have been no more than a sham. We have not replaced LEA domination with an overall majority for any other group. The philosophy behind our reforms is indeed one of balance, of encouraging dialogue and working together so that the governing body reflects the full spectrum of views inside and outside the school and college and can set a balanced course in the light of competing claims. Again, in the words of the noble Lord, Lord Taylor of Blackburn, the essence of partnership is very important.
A number of specific points were made. The noble Baronesses, Lady David and Lady Blackstone, asked about the state of play with the schools in Barnet, Kent and elsewhere. The department can give the House only partial information on this matter for the good reason that those decisions on political appointments have been subject to change and second thoughts, not surprisingly, as time has gone on. I understand that Kent and Wandsworth, to our knowledge at the moment, may have reversed their earlier thinking.
The noble Baroness, Lady David, questioned whether there could be guidelines for making LEA appointments. I am afraid not. We are clear about the issue here. Appointments and elections to those bodies are already governed by regulations made under the 1986 Act. There are no plans to issue further guidelines. I believe it is a matter for local authorities.
The noble Baronesses, Lady David, Lady Nicol and Lady Blackstone, were concerned about the numbers of resignations. In connection with the survey that was mentioned during the course of the debate, I should say that the department commissioned the National Foundation for Educational Research to conduct a survey of LEAs regarding the reconstitution of county and maintained special schools' governing bodies. That took place during the autumn term of 1988. The results of the survey were published in February 1989 and it is clear that the recruitment of governors of all kinds was generally successful. The number of vacancies at that time represented only 1 per cent. of the total number of places. The NFER carried out a further survey of 500 county schools during the summer of 1989 and the report was published on 19th September 1989. That report showed that the
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number of vacant places on governing bodies remains at about 1 per cent.
A point was made in connection with women governors. I am pleased to say that the latest figures that we have on the split between men and women on governing bodies show that women account for 42 per cent. of governors while men account for 58 per cent. Further to that, the criticism was made that more women on governing bodies should be chairmen. I cannot be specific about that matter because I do not have figures but I can say that at least three Ladies of this Chamber, including myself, come from a county where there was a predominance of women chairmen of governing bodies. However, I accept that I am only speaking about one authority rather than the majority of authorities. That subject may well form part of another survey.
The other important issue that was raised concerned ethnic minority representation. The survey of schools suggests that ethnic minority representation on governing bodies accounts for about 2·5 per cent. of the total. Of the ethnic minority governors reported on, 13 per cent. were LEA appointees, 36 per cent. were parent governors, 2 per cent. were teacher governors and 49 per cent. were co-optees. The ethnic minority groups covered by the survey consisted of Afro-Caribbean or other black groups, Indians, Pakistanis, Bangladeshis and the Chinese. I think it is fair to say that where there is a predominance of ethnic minorities in an area, one would expect them to be represented on governing bodies and if that were not the case LEAs would have to be asked why that was so.
The matter of nursery schools was raised. Given that nursery provision is not part of statutory provision, to make a requirement in law for there to be governing bodies for nursery schools is not part of our planning. However, it would be interesting to know whether there is any nursery school in the country that does not have some kind of informal arrangement as regards communication with the local authority.
On the question of college governing bodies, I can assure all those who asked whether they would be the subject of a survey that that will be the case. The noble Lord, Lord Taylor of Blackburn, made a point about training. I think those who talk about training can be rather intimidating. Those people who do not have degrees can be put off if they are made to feel that a degree is necessary to be a governor. I feel very strongly that we must not intimidate people or inhibit them from coming forward to be governors. I also think that we should not overtrain governors. The last thing we want to do is to suck governors into the system. They need to be an independent interface between an LEA and their school, not an arm of the LEA. However, they need to understand the job they have to do. Therefore the purpose of training for them is to enable them to understand the job in hand rather than to enable them to act as an extension of the local authority.
I now come to the point of disagreement. I should re-emphasise the fact that your Lordships are united on much of this matter. However, where I differ from the noble Baroness, and must continue to do so, is in whether this issue is capable of resolution

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by statute. Our only difference lies in finding a means to an end. I am not convinced that this issue can be resolved by statute. I have not been convinced of that during the course of this debate. I believe it would be a victory for those who are seeking improperly to make this a party political matter for us to require it to be seen as such by law. We shall not give them that satisfaction.
Quite apart from this issue of principle there are severe practical difficulties as regards legislating in this way. When the Bill was given a First Reading in another place it did not manage to find a way round the difficulties. We cannot legislate for balance on every individual governing body. That would be a mathematical impossibility given the small number of LEA appointees under the new arrangements. The Bill would also have given the right to appoint governors to any political grouping on the council, however small, without any restriction. The parallel which has been drawn with the requirement for balance on council committees is not a fair one. That extends only to council members who have personally stood the test of the ballot box.
On this issue, which I believe is a relatively minor one, I must beg leave to continue to disagree with the noble Baroness. I hope, however, that she will agree that there is more that unites us than divides us on this matter. The aim we all share is to encourage and support governing bodies of all kinds as they work for better education in their institutions throughout the country, whether they are large or small. We aim most particularly to encourage them to work in the interests of our children.
Baroness David: My Lords, I wish to thank all the speakers who have taken part in this short debate, though there were not many speakers. The quality of the debate has been good and each individual had his or her own contribution to make. It is particularly nice (o be facing my old opponent, the noble Earl, Lord Swinton, as we have faced each other across the Chamber so often. I should not imagine that anyone can equal his record as regards the number of governing bodies that he has sat on. He certainly would not be allowed to sit on so many governing bodies now as the maximum number that one can sit on is four. The noble Lord, Lord Ritchie, pointed that out. However, in view of the new responsibilities I should imagine that to sit on four governing bodies is quite sufficient.
I was interested in the ideas of the noble Earl regarding training. A number of speakers have referred to training, and it is an extremely important matter. I agree with the noble Baroness, Lady Blatch, that one does not want to overtrain people. One must leave them their individuality. It was interesting to hear the noble Lord, Lord Taylor, talk about his committee. However, we do not have the resources that he suggested. Staff are not available in the numbers that the Taylor Committee recommended.
I was also interested to hear what the noble Lord, Lord Ritchie, said about parents coming forward. When parents were first elected to governing bodies, it was quite difficult to get enough of them in many cases, The situation is obviously improving, but
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we must encourage the ethnic minorities to come forward in greater numbers. We must find some way to achieve that.
I am sorry that nursery schools are not to have governing bodies, as my noble friend Lady Blackstone suggested. I believe it is a pity that they should not be treated like other institutions. However, I was delighted to hear that less paper will arrive on governors' desks. Clearly that has been a matter that has overwhelmed them. I am also glad to hear that there have not been many resignations. However, as the new governing bodies have only taken over their increased responsibilities recently, it will be some time before we shall know exactly what is happening and whether governors can take all they are being asked to take.
I am glad that there will be a further survey. I hope that survey will encompass the further and higher education colleges. That is the area where my noble friend Lady Blackstone and I have the greatest anxiety as the balance on their governing bodies does not seem evident. If a survey is carried out within the next year or so when the new governing bodies have had some experience of their new roles, the results will be extremely interesting. Again, I thank all speakers who have taken part in the debate. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.

The Constitution: Powers of a Second Chamber
4.28 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale rose to call attention to the appropriate powers and constitution of a second Chamber within the British Constitution; and to move for Papers.
The noble and learned Lord said: My Lords, I presume to say that I am quite content with the powers and constitution of your Lordships' House as they are at the moment. However, proposals for alteration are in the air. Nothing like the same consideration and public debate has taken place in relation to these proposals as took place, for example, between 1910 and 1925. Therefore it seemed to me that your Lordships' House, as the most appropriate forum of all, would give great benefit by giving thought, even in this short debate, to this question. I hope that in due course the usual channels may provide time for the ampler debate that is needed, when the noble Lord the Lord Privy Seal has finished wearing out our features on his legislative grindstone. I hope that we can then turn to what seems to me to be the more profitable task for your Lordships; namely, to discuss broad issues of policy, particularly future policy such as this.
As this is a short debate and a very big subject, I do not propose to do more than try to set out heads of agenda, so to speak, for your Lordships' consideration. I hope thus to provide additional time for noble Lords whom your Lordships will undoubtedly wish to hear at the greatest length possible. However, as I cannot see the clock I should be grateful if a noble Lord in my vicinity would alert

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me when I have been talking for 12 minutes, when I shall bring my observations to an end if I have not done so before then.
The Motion refers both to powers and to constitution, or in other words composition; indeed, those are related. The powers to be given to a second Chamber must be affected by the duties expected from the Chamber, and vice versa. In the end there must be a balance between those two considerations.
First, one should ask whether there is a need for two parliamentary Chambers. It is true that all parties in this country, so far as I know, are united on the subject; and in almost every case that I can call to mind foreign opinion demands two parliamentary Chambers. But if we ask why that is so it may help us to analyse what is required. Two parliamentary Chambers are presumably required because one Chamber, whether by composition or by power—or more likely by both—cannot perform all the tasks that are demanded of it which are necessary for the performance of a parliamentary Chamber.
I have been using the term "parliamentary Chamber" rather than "legislative Chamber" advertently, for the reasons which I think I have already made obvious. If it is the case that we need two Chambers because one is not sufficiently copious and flexible to deal with all the tasks demanded, does it not follow that it would be uneconomic if the second Chamber merely duplicated the first in respect of either powers or composition?
I placed the Motion in the context of the British Constitution. I have assumed thereby that the other place, the House of Commons, will continue to exercise much the same powers, particularly concerning finance, and have much the same composition in the future. I know that parties above the gangway on the Opposition side of the House would wish to have a system of proportional representation, and that might come as a result of bargaining in a hung parliament; but on the whole that seems to me unlikely. Moreover, if it did come about, the whole subject of your Lordships' present consideration would have to be thought out anew. So I assume that the lower Chamber will be first-past-the-post on the principle as at present electorally devised.
The advantages of the first-past-the-post system were stated cogently recently by the noble Earl, Lord Ferrers, in the debate on the Bill of the noble Lord, Lord Bonham-Carter. I will not waste your Lordships' time in repeating them, because it is the disadvantages which point to the composition and powers of the second Chamber which are really in question today.
The first of those disadvantages is that although the members represent their constituents in an elected Chamber that Chamber is not necessarily representative in political colour of the electorate as a whole. Indeed, since 1945 we have never had in government a party which commanded the votes of the majority of the electorate. The second disadvantage is that a first-past-the-post system gives inadequate weight and representation to minorities, not least to Cross-Bench opinion, which I think is a
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very powerful political consideration. I think that that is strongly represented in your Lordships' House. The third disadvantage—and I appeal to the several noble Lords and the noble Baroness who have had experience of the other place—is the sharply polemical nature of its politics, both on the hustings and in the Chamber. Of course, that has its advantage, but the disadvantage is a very real one. It is that such politics become distasteful to many people who would be usefully represented in a parliament, particularly the elderly statesmen of great experience whose expertise should be drawn on.
If I am right, those disadvantages point to a not wholly elected second Chamber. If it is to be elected in part, should that part not be elected by proportional representation on a regional basis in order to be complementary? The non-elected part could be either a hereditary element or what used to be called "fancy franchises" such as the chairmen of the Trades Union Congress and the CBI, the vice chancellors of universities—although I realise that at present they are unlikely to be popular with the Government—senior judges and similar people. The third way of having your non-elected element is the present system of appointees.
As for the hereditary element, in the past it has been subject to contumely: the fourteenth wearer of a noble nose—Lloyd George down in Limehouse, and so on —but in these days we really know much more about genetics and the cultural influence of a political ambiance.
We need not be afraid of the hereditary element. It has real advantages, particularly by way of continuity and tradition. In a debate like this, noble Lords must be conscious that at the Dispatch Box, where the noble Lord the Leader of the House will shortly speak, there spoke Disraeli, Salisbury and Rosebery as Prime Ministers, noble Lords who were ex-Prime Ministers, like Balfour, Baldwin and many others. Today we are greatly honoured by the presence of three former Prime Ministers in our midst.
It therefore seems to me that there is a strong argument for continuance of the hereditary element. It would be advantageous if it were recruited like the representative Peers of Scotland and Ireland in the former constitution, and by proportional representation so that there would be a regional element and an element of young Peers, who have proved themselves so valuable in this House in recent practice.
I would not countenance the fancy franchises simply because one does not know where to stop. If you are to have the Moderator of one Free Church, where do you stop? My specific would be that we should continue with the present system of appointment, which works well.
Perhaps I may refer briefly to three other matters. First, in this context, should we not reconsider the need for a written constitution? Secondly, there is the question of finance, a subject which, as the noble Lord, Lord Diamond, intends to speak, I can safely leave to him. We have seen in the recent student loans Bill that the control of finance is absolutely clinching. I take it that that would remain in the

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House of Commons. The third matter, with which I do not think the House of Commons deals well, is scrutiny of legislation. I merely call to noble Lords' recollection the proposal of the noble Lord, Lord Rippon of Hexham, that we should have a specialised committee in order to scrutinise legislation quite apart from policy. My Lords, I beg to move for Papers.
4.43 p.m.
Lord Beloff: My Lords, we have all had frequent occasion to thank the noble and learned Lord, Lord Simon of Glaisdale, for guidance on our constitutional position and the proper practices of this House, but this afternoon we are grateful to him again in another respect for raising this as a general issue of national policy and for his cogent suggestions as to possible change.
We perhaps tend occasionally to fall into a degree of self-admiring complacency. We say on all sides of the House, "We are a revising Chamber—jolly good thing" but does that represent our true beliefs? We know, for instance, that Her Majesty's Opposition, which may—I say no more than that—be transformed in a couple of years into Her Majesty's Government, hold a different view. They are committed not only to abolishing this Chamber in its present form, but to replacing it with an elected body.
In the review of policy published by the Labour Party last year, it gave some details as to what they would consist of It would be a regionally elected body. It would have some functions in revision or scrutiny of legislation. It would have a curious power to delay ordinary legislation by only one return to the other place. However, on matters in which governments were thought to have infringed human rights in that legislation, the new second Chamber would have the power to delay the implementation of legislation for the rest of that Parliament.
Those are all interesting ideas, but they raise a great many questions. We have the opportunity this afternoon, with the noble Lord, Lord Mishcon, replying for the Opposition, to put to him some questions which may be in our minds. What, for instance, is the assumption about the kind of people who would seek election? Would they be tempted to serve by the offer of salaries? What other reasons could be given to them to serve? Is it expected that they would, like so many Members of the European Parliament, be either young politicians on the make or elderly politicians in retreat?
With regard to the protection of constitutional rights and human rights, how are those rights to be defined unless we have a written constitution with a Bill of Rights? If we are to have a written constitution with a Bill of Rights, why should a Chamber of a legislature be entrusted with defending them when, in every other democratic system, that is thought to be an appropriate matter for a court of law? Is there not some confusion in the question of what is legislative and what is judicial?
We are also told in the policy statement that the House would differ from the present one not only in being wholly elected, but in having no Ministers
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present. I find it difficult to see how legislation can usefully be discussed in the absence of those responsible for putting it forward. Therefore, one must again ask what kind of consideration it is thought that a body with no ministerial representation could give to legislation.
It is also laid down that no legislation should be introduced originally into the second Chamber. One wonders what kind of parliamentary timetable is envisaged for that future bicameral legislature. I hope that the noble Lord, Lord Mishcon, is prepared to answer those questions because they are clearly matters of considerable interest.
Lord Mishcon: My Lords, perhaps the noble Lord, Lord Beloff, would deliver his own speech instead of making me manufacture mine.
Lord Beloff: My Lords, it seems to me to be not uncommon in this House to ask questions of representatives of political parties about documents to which they are publicly committed. I have not made, and would not venture to make, a speech for the noble Lord, Lord Mishcon, but he often asks questions of this side of the House and that is, after all, common form in our procedure. It would certainly not be for me to speculate on what his answers will be. So much then for Her Majesty's would-be Government.
However, I should point out that there is some relevance in their proposals for the future and their attitude to our present proceedings which occasionally seem to me to be dominated by the idea that no precedent should be set which could in any way strengthen the revising powers of this Chamber. For instance, on Monday we had the last round on the student loans Bill, to which spokesmen of Her Majesty's Opposition, along with some members of my own party and members of the other Opposition parties, have given consistent opposition. Yet, when it came to the vote, although a number of Peers on the Labour Benches voted in accordance with their views, the Front Bench remained mute and glued, if I may say so, to the Bench. The understanding is that it was decided that no precedent should be set by which the House of Commons could be asked to think again more than once. That, as I said, is in accordance with the proposals for the new second Chamber.
However, on our side of the House there may also be questions upon which my noble friend the Leader of the House may wish to enlarge. What is the true attitude of Her Majesty's Ministers to the revising functions of this House? Are they happy with the way in which those functions are exercised? It appears to some us that in certain quarters it is thought that the House of Lords is a rather disagreeable nuisance, that it occasionally presses for measures which Ministers have already decided are unacceptable, and that the business should be to get the Government's measures through with the maximum of celerity.
I hope that the noble Lord the Leader of the House will say that I am judging on too few instances for a generalisation to be possible. But if we are to defend the House with its present composition and present

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powers, it can be done only on the basis that governments of whatever complexion are prepared to take seriously the often expert opinion which the current system favours in the present House.
There are other possible There are other possible weaknesses which the Procedure Committee looks at from time to time: whether we could make more use of our committees and so forth. After a decade of experience in your Lordships' House it seems to me that there is something much more crucial and difficult to tackle, which brings me back to the question of Ministers. I believe that it is difficult for this House fully to exercise either its powers of questioning the Executive or its legislative powers when in most cases the individual who responds from the Front Bench is a junior Minister or even a Whip with only that status. It means that, whereas in another place the responsible Minister can respond immediately if he so desires and can explain his point of view or the reason why the point of view expressed in criticism of his policy is unacceptable, in this House the most that we can obtain is an assurance that our views will be conveyed to the senior Minister in another place. I am sure that that is always done effectively, though occasionally, one feels, a little grudgingly. But is that really sufficient?
If we are to prolong the life of this House as it has developed over the centuries, might there not come a time when Ministers of the Crown from another place occasionally help us to understand and follow the thrust of their policies?
4.55 p.m.
The Earl of Longford: My Lords, I must begin with an apology to both the noble and learned Lord, Lord Simon, who introduced the debate in such an interesting fashion, and the noble Lord, the Leader of the House, who is to reply. I must also apologise to the whole House because I am afraid that I have to leave early in order to discuss these matters before a much less select audience. It is an audience of perhaps millions of people, yet I think I may say that although we are less numerous we are perhaps better informed.
The fact that my name appears early in the list of speakers does not mean that my leaders attach any significance to my contribution. It will be entirely impersonal. I hope that it will not embarrass the noble Lord, Lord Mishcon. If he is embarrassed by it, I am sure that he can handle the situation and will laugh it off.
The noble Lord, Lord Beloff, set an impossible standard for himself. I have known him make the greatest of attacks on the Government. Today he has been an almost slavish admirer of the Government. At least, that is what I gather from his attitude to the Opposition. The noble Lord has in my time made the most deadly attack on the Government ever mounted from the Conservative Benches; but we did not have that today. The noble Lord put a series of questions to my noble friend, which I am sure he will handle perfectly.
I do not wish to provoke the noble Lord. However, there was a fundamental omission in his speech. He
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did not say whether or not he can justify the present composition of this House? I love the House of Lords; I am grateful for many years of happiness here. It is a peculiar place. No one has ever copied it; no one is ever likely to.
Let us consider its composition. I have made a few inquiries and I have obtained some figures from my party office which I imagine will be substantially accepted. There are 782 hereditary Peers out of 1,176 Members. In other words, two-thirds of noble Lords are hereditary. Straightaway that makes it a very peculiar Chamber. How many of those 782 hereditary Peers take the Labour Whip? The answer is 12. That makes the voting system absurd.
Of course it is absurd. One has here the best debates in the world and the worst voting system. No one could possibly justify the voting system and on one has ever done so, at least not in my hearing. That is why the noble Lord, Lord Beloff, wisely did not attach himself to it. So that is the situation today. To put it another way, there are four times as many Peers taking the Conservative Whip as take the Labour Whip. How can a Labour Government be expected to lie down indefinitely under that situation? It would be absurd to suppose that they would do so.
In my few remarks I shall imagine—though it is far from being the case—that my revered leader, who is the noble Lord, Lord Mishcon, has asked for my advice on what the Labour Party ought to do if returned to power. I offer a few thoughts of my own.
There are three options open to a Labour Government. The first is to do nothing, or nothing substantial. The second is to proceed by way of consensus. The third is to proceed without consensus. For the first Labour Government following the election there is a good deal to be said for doing nothing or at any rate doing nothing substantial. There will be great social injustices to be put right, much poverty to relieve and many other very important matters to tackle. So my first piece of advice to that government is to think long and carefully before doing anything at all about reform of the House of Lords. However, that could not remain the position. A party could not say, "We are too busy to think about it." Eventually, one has to come up with a point of view.
The question therefore arises of whether one could find a consensus or must go on without one. In 1968 a consensus was almost agreed. It was agreed between the leaders of the two parties. I was about to say that I took the initiative but in fact it came originally from the Clerk's Table, and from the late Henry Burrows, who recommended to me on the golf links at Rye, where we met every week, to consider what he called the two-writ plan. When I had just missed a putt, he would say to me, "You do believe in the two-writ plan, don't you?"
Eventually, when I became Leader of the House I recommended the two-writ plan. The subject was taken up by more important people and very nearly became the law of the land. It did not do so; it was sabotaged by eminent people on the far Right or far Left in the House of Commons. That was what happened to the last attempt at a consensus. If

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anyone thinks that a fundamental consensus is possible, I shall be delighted to frame one again. However, I cannot think that any consensus is likely in view of the position that I have explained about the hereditary peerage.
If I were a Member of the Conservative Party I should think long and carefully before I abandoned such a colossal advantage. Members would have to be very hard pressed—perhaps having to consider that the Chamber was about to be abolished —before they agreed to that. It is true that the noble Lord, Lord Carrington, in his memoirs has recommended an elected second Chamber. It is not impossible to consider a consensus, but it seems unlikely.
We are therefore faced with the question of the approach of the Labour Government, if not in the next parliament then in the following one. If one gets rid of the hereditary element, one is left with the question of whether one has an elected or appointed Chamber. I do not believe that a combination of the two would be a very happy solution although some countries adopt that method.
I speak personally. Although the noble Lord, Lord Beloff, is entitled to make debating points about the policy provisionally stated by my party, and we are a very long way from seeing that carried into force, we are still at the stage when those within the Labour Party are entitled to offer guidance and thoughts, however humbly, to those who frame our policy.
I believe that an elected Chamber would produce a second class version of the House of Commons. I am not in favour of that. We are then left with the suggestion of an appointed Chamber. One big disadvantage about that which will occur to everybody is that it places enormous patronage in the hands of the Prime Minister of the day. So far as possible, that is mitigated. The Prime Minister consults with other leaders and so on. Nevertheless, it is a fundamental difficulty. I do not think that it will be completely overcome in any form of appointed Chamber.
The best approach that I can suggest is that some statutory commission be set up and that the Prime Minister should be under a statutory obligation to consult that commission before making appointments. Whatever method is adopted, it will never be perfect. However, if one were looking to the long-term future, one should proceed along that line.
It will not have escaped the notice of noble Lords that in the very notable debate on student loans recently the noble Lord, Lord Boyd-Carpenter, expressed strong disapproval of the student loans measure. Perhaps I may complete the remark; I know that the noble Lord will be on his feet in a moment. He expressed the most damning criticism of that measure. However, when it came to the vote he voted in the Conservative Lobby. That is the situation with regard to party politics. With the huge Conservative majority, that will be the position until there is a fundamental reform.
Lord Boyd-Carpenter: My Lords, before the noble Earl leaves that matter, I hope that he will consult Hansard a little more carefully than he appears to
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have done. He will see that on the amendments that really mattered my vote was cast in favour of the amendments and against the Government. Perhaps he will be good enough to withdraw the general effect of what he said a moment ago.
The Earl of Longford: My Lords, I shall only add to the general effect by saying that the noble Lord showed increased wisdom as the debates went on.
I have allowed myself to be distracted. I intended to say a word about hereditary Peers. It will not have escaped notice that the main initiative—the crucial Motion —was taken by a hereditary Peer if ever there was one, the noble Earl, Lord Russell. There is no name more famous in the hereditary peerage than that of Russell. We must therefore face the fact, as it was faced in 1968 when we spoke of reforms, that a great many hereditary Peers ought to be appointed Peers. I therefore close on that note. It would be a tragedy if the great wisdom and faithfulness of the hereditary Peers in this House were lost.
5.7 p.m.
Lord Addington: In speaking on this debate, I feel a little shy in coming to the fore. Not only am I very much younger and less experienced in the procedure of this House, and also have no experience in the procedure of another place but also, as a hereditary Peer I feel that to a very great extent I shall be criticising what I am said to stand for.
The debate calls into question the appropriate powers and constitution of a second Chamber within the British Constitution. I suggest that before we discuss the second Chamber we must first look at the British Constitution as it currently stands. At the moment the House of Commons sits very long hours. I believe that they are the longest of any legislative body anywhere. It still cannot get through its entire workload. On many occasions we seem to be picking up the pieces and debating subjects that have not been debated in another place. On certain occasions the guillotine comes down very hard. We are indeed a gilded dustpan and brush. I suggest that if that situation continues there is no point in discussing procedure here because we have a body with fundamental flaws. It has the initiative, power and prestige behind it but we would be just tinkering with the edges.
The party for which I speak is very strongly in favour of great reform of the procedure of the government of this country. As is well known, we are in favour of some system of proportional representation. Because of the first-past-the-post system we have been very hard-pressed to achieve an appropriate representation of the number of votes cast in our favour. Such a system does not gain great favour with the other political parties. I freely admit that the political party on my left is starting to take steps towards proportional representation for government of at least part of the country. The Scottish party is suggesting that if there were an assembly for Scotland it should have a PR selection process for those who sit on it. However, we do not feel that one can undertake any fundamental reforms unless one first reforms the House of Commons. That is the basic point with which I entirely agree.

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I cannot see how one can countenance a situation where one has an elected Chamber, with a second chamber—a subservient Chamber—elected by a different system. If a PR system were used, the Chamber would have a better claim to being a more representational body, when confronted by a House of Commons which was selected by a first-past-the-post system. I can safely say that if I had such legitimacy behind me, I would have absolutely no hesitation in disagreeing with and voting against any measure that was brought forward from another Chamber. If I felt that I had more legitimacy I would consider that I had the absolute right to oppose such a measure.
If we are to take steps to overcome the problem, we must start other reforms, looking first at ourselves. All Members on this side of the House have on occasion been angered by the fact that many Members of your Lordships' House who are not seen for months or literally years on end arrive and will outvote those of us who regularly attend. It is a matter that has caused great consternation in this House and brings the Chamber into disrepute outside.
I do not know what can be done about that. My favourite suggestion is that anybody who is not prepared to turn up for a small proportion of the number of days that we sit in one parliamentary year might, for instance, lose their voting rights in the next. It would mean that those who are not prepared to take an interest in and at least listen to the debates should not be able to influence the procedure of the House until they have done so. In that way we can keep their opinions which on many occasions are valid. I agree that many noble Lords can attend for only one or two days in a Session but they would be able to speak with knowledge and expertise when required. I suggest that that is the first issue we should look at when reforming the Chamber unless we are prepared to undertake a major constitutional change which would ultimately be required before an elected Chamber could replace the House.
It is often suggested to me outside the Chamber that we should become a totally nominated House. That second suggested change has precedent in the 1968 reforms. However, as was pointed out by the noble Earl, Lord Longford, there is a danger that whoever is in charge of the nominations to this House would soon create a new Chamber. Furthermore, with each change of government there may be a new influx of Peers. There could be several thousand Members of this House after 20 years.
I suggest that such a situation is not only farcical but extremely dangerous. Effectively it would create a body of yes-men in the Chamber. That has not happened yet. In respect of the student loans Bill the noble Lord, Lord Boyd-Carpenter, went against his normal stance of supporting the Government. I am personally grateful and was glad that he voted with us for many of the substantive amendments. I suggest that there is a danger of creating such a body; for instance, by appointing people with vested interests in doing what the Government say or creating interests for them in order to ensure that they will do so.
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We must look carefully at the way in which we behave if we are to retain any degree of credibility. At present our standing is high. Before I came to this House it was suggested that not only would I be a much younger Member but vaguely akin to something from a different planet; that Members of the House would not know what was going on and I should be much more aware. I can safely tell all and sundry that when I arrived I soon became aware of my ignorance on the vast majority of matters. We have a high standing and we must maintain it. Our first priority should be to make reforms which will ensure that we do so. Any fundamental reform must look on this Chamber as being part of the whole legislative process. If we lose sight of that anything that we do will become superfluous.
5.13 p.m.
Lord Somers: My Lords, I first wish to apologise to your Lordships and to the noble Lord the Leader of the House because I must leave before the end of the debate. I shall read carefully everything that has been said. When we discussed the matter some years ago, a suggestion was made which then appealed to me. It was that we should have a two-tier House consisting of Peers who could speak and vote, and Peers who could only speak. After thinking about the matter carefully, I realised that such a system would create two difficulties. First, who will make the selection; and, secondly, on what grounds will they do so? The more I thought about the matter, the more I realised that the best prescription for your Lordships' House is that which already exists; a mixture of heredity and life Peers.
I have been a Member of this House for almost 40 years. I remember the time when life Peers first arrived and I am the first to say that they have made an enormous contribution. The House is more alive than it was when I first arrived. However, the hereditary system should be preserved. I wish to say a few words about it because a great deal of abuse has been thrown at it. It is not so extraordinary that the hereditary system should work; it works in other walks of life. For instance. Bach would not have been such a superb musician had it not been for the fact that his father, brothers, uncles and practically his whole family were professional musicians. Therefore, the hereditary system has an influence. I am the first to admit that sometimes the system makes mistakes; but so does the electoral system. There cannot be many noble Lords who are unable to name members of one elected body or another who are by no means suitable for the work that they are supposed to carry out.
I wish to mention one outstanding member of the hereditary system; of course, I am speaking of Her Majesty the Queen. Some noble Lords may say that it is not a similar case, but I believe that it is precisely and exactly the same. Her Majesty the Queen occupies her position simply and solely because she is the daughter of His late Majesty King George VI and for no other reason. But how magnificently she has fulfilled that position!
Noble Lords: Hear, hear!
Lord Somers: My Lords, nobody could work harder than the Queen. There is no 36-hour week for her; she is on duty practically all day, every day. She seldom has a day to herself. She attends countless events many of which can be of little interest to her although she never betrays the fact. She visits every corner of the globe—if it is possible for a sphere to have corners—and everywhere she goes she arouses admiration, loyalty and love.
Noble Lords: Hear, hear!
Lord Somers: Can your Lordships honestly see any elected head of state doing so much? I certainly cannot.
Many noble Lords said that an electoral system would be ideal for your Lordships' House. However, it must be remembered that such a system has a great disadvantage. The elected Member always looks back at his electorate before doing or saying anything and wondering whether his future re-election will be affected. Therefore, he cannot have a completely disinterested mind. This House does not have that disadvantage and to a large extent that is the most splendid thing about it. Sometimes I wish the independence could be a little more widespread. With the exception of the Government Front Bench, I should like to see the House consisting entirely of Cross-Benchers. That is by no means because I sit on the Cross-Benches—and if any noble Lord thinks that, he has it the wrong way round. I sit on the Cross-Benches because I dislike party politics. Party politics are the poison of practically the whole world. They make it impossible to give an absolutely unbiased view. However, that is my own personal opinion.
As regards this evening's debate, I believe that a second Chamber is absolutely essential, and except for perhaps minor alterations I should like to see it preserved as it is.
5.20 p.m.
Lord Diamond: My Lords, it gives me particular pleasure to follow the noble Lord, Lord Somers—my twin. His experience of this House in years is exactly double mine—that is, 40 years against 20—but the number of years for which we have been on the earth is exactly the same.
I express my deep gratitude to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this subject and for inviting the Leader of the House—I am grateful to him for attending and for listening to all the speeches so far —through the usual channels to try to afford time for a fuller debate because obviously the topics to be considered are far too lengthy, important and wide-ranging to be considered satisfactorily under the form of a short debate.
To begin with, I wish to concentrate on two points which I think are of considerable importance. I hope that your Lordships do not consider them to be of minor importance. They are matters which affect our rights and powers under the heading of this debate. We have two delaying powers in order to enable us to maintain certain important principles such as the democratic principle involved in limiting
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the length of a Parliament or the independence of the judiciary involved in not allowing one House alone to dismiss a judge. Over those important constitutional principles we have an absolute veto; that is, the consent of both Houses is required and there is no question of the other House overriding us if we disagree on those matters.
In order to enable us to maintain our power to consider and revise legislation, we have a limited power of delay. That arises because of course it would be a matter of doubt as to whether the other place would give serious consideration to all our suggestions unless there lay behind that the muscle of being able to delay for a period. Expressed simply, that period of delay is one year but that is perhaps an over-simplification.
In short, we have those powers to enable us to ensure that that somewhat rumbustious, necessarily partisan and guillotine-friendly body which we call the other place gives serious consideration to our suggestions and should—to use the regular phrase—be brought to think again. That is my understanding, which is perhaps over-simplified, of the present constitutional position.
As to the power of delay, in 1911 it was made clear that that power was intended to be used. Has it been used? It has been used hardly at all. It has been felt to be too dangerous; would possibly give rise to a conflict with the other place; and, as with any other muscle, there is always the danger of atrophy setting in through lack of exercise of the power.
Why are we afraid to use it? The answer is that it is too strong a power. It has been likened to the sting of a bee; that is only to be used in the final resort and only to be used once. We all know what happens to the bee afterwards. I take the view that we should reduce that power of delay to six months as was recommended in the 1968 White Paper. That would give to the other place the appearance of being helpful to it but in practice it would give to us the likelihood of using a power which we are afraid to use. Therefore, in practice, that would add immeasurably to our real power of delay.
As to the veto, that exists for the major reasons which I have indicted. It also exists with regard to statutory instruments. There was a very interesting series of speeches on Monday, as noble Lords present will remember. Why on earth do we regard statutory instruments, delegated legislation generally, as being in the same category as the maintenance of democracy and justice? Clearly it is not.
I have always accepted the explanation that that matter was not dealt with in 1911 because nobody conceived that it would be of any importance. It was a facility which governments practically did not use. People at that time could not conceive of a Bill like the student loans Bill where a government come forward and say, "Give us the power and we will give you the rules". Certainly that could not have been envisaged. However, as we know, the very fact of the increasing volume of legislation means that naturally, governments turn more and more to delegating powers under a Bill. Although Ministers have the final responsibility, more and more of the

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subsidiary legislation is carried out, as we all know, by the Executive and not by Parliament. More and more that is the case and, therefore, more and more it is necessary for us to have powers in relation to delegated legislation.
There was great rejoicing on Monday when your Lordships were reminded that the Government have been good enough to allow a change from the negative to the affirmative resolution on the first introduction of the rules to which I refer. That is a complete snare and delusion. The Government have given absolutely nothing to your Lordships' House. As we all know, what happens is that the dangers of exercising our rights with regard to affirmative resolutions are so great—namely, the power of veto —that we do not use them. If we did, every single statutory instrument brought before us approved by the other place and of which we did not approve would die. There is an absolute power of veto. I resisted all sorts of pressures to take a different view when I had certain responsibilities in these matters. We wisely—I repeat wisely—continued not to exercise our right under that veto to vote down a statutory instrument approved by another place.
We now have the situation that an instrument cannot be amended, it cannot be denied, and it has the appearance of giving your Lordships' House some say in the matter. It gives the other House some say in the matter, but it gives us nothing. Therefore I suggest that the root cause of this problem is not merely that the convention is a little unclear; it is that it is far too strong. It is like an atomic weapon, which you may well have but God forbid you should ever use it.
I invite the Leader of the House seriously to consider taking steps to see that that power is reduced and changed to a power of delay under an Act of Parliament of the kind to which I have referred, the 1911 Act. On the assumption that there would then be a six-month power of delay, that would be perfectly adequate for both the purposes to which I referred—making the other place think again and making our views felt with regard to the ever-increasing volume of statutory instruments which will inevitably come before us. Those are two important matters which could immediately be taken in hand.
Regarding the general constitution of your Lordships' House, which I now understand to mean the composition, I am bound to say that the real power and continuity of this place rely on its legitimacy, its acceptability to the populace and electorate as a whole. With regard to its legitimacy, the greatest deterrent to its acceptability is the hereditary principle.
I have referred to that principle many times. The Conservative committee chaired by the noble Lord, Lord Home, said that there was no justification for it. A senior ex-Cabinet Minister pushed a document through my letter box inviting me to support him and sound Tory principles. Noble Lords can see that the document is blue-edged. It says:
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"Britain enjoys less constitutional protection against extremist minority governments than any other democratic country. Like Lord Hailsham, I favour an elected House of Lords".
So in part does virtually every committee that has considered the matter—either elected or part elected.
My view and that of the joint body of Liberals and Social Democrats which considered this matter and published a very full report under the chairmanship of a distinguished judge is that the sensible way is to have a House that is part elected and part nominated but non-hereditary, though the hereditary Peers could continue for the time being.
My time is up. That illustrates how important it is to debate this matter again when these issues can be discussed more fully.
5.34 p.m.
Baroness White: My Lords, I am sure that we all wish to thank the noble and learned Lord, Lord Simon of Glaisdale, for yet again enabling us to consider our position as a second Chamber within the British Constitution. These exercises in introspection have recurred with a certain regularity for nearly 100 years, since the defeat of Gladstone's second Home Rule Bill upset the apple cart and started people thinking. In practical terms the only major changes made to our powers were the drastic changes which occurred in 1911, with regard to powers, and again in 1958 when our composition was considerably changed by the advent of life Peers and of women Members. That was a change which I regard as being very much for the better.
It is generally agreed that this short debate—grateful as we are for the occasion—is not suitable for discussing these very wide-ranging topics. Nevertheless, it may result in better arrangements being made in the future. However, we have no certainty that any major changes will ensue in the future even if we have a most successful debate, whatever government may be in power within the next few years. I say that because past experience is not in the least encouraging, when one thinks of the 1907 arrangement, the Bryce Commission, or the near consensus in 1968 which the combination of Enoch Powell and Michael Foot destroyed. We are an extraordinarily difficult House to deal with by way of major reform.
My own thinking is that perhaps we might do better to look more closely not to a very distant future, but to ourselves as we are. I suggest that the majority of Members of this House agree that we operate more by quality and influence than by direct power, which rests elsewhere. My concern is that that influence may be in danger of decline. I will explain why in a moment.
I am concerned about the tenor of some proposals for our future put forward by my own political colleagues in another place. I believe that they need further consideration, although I do not believe that they are anything like as definite as the noble Lord, Lord Beloff, would have us suppose.
Lord Beloff: My Lords, perhaps I may intervene. I brought with me, in case someone said that, the

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actual text from a document which refers to the "Final report of Labour's Policy Review". I should have thought a final report was final.
Baroness White: Not in politics my Lords! I leave my noble friend Lord Mishcon on the Front Bench to deal with this matter except for one point which I will touch on before I conclude. I have spent nearly 45 years working in the Palace of Westminster, first, in the Press Gallery and the Lobby; then on Back and Front Benches in both Houses—20 years in each. So I have a fair claim to a reasonable perspective.
When I came to your Lordships' House in 1970—I might say that I came here voluntarily because I could have held my House of Commons seat —like most Members of another place I had only a sketchy idea of how this House worked. However, experience has convinced me of its value. While we all recognise the very difficult problem of a built-in Conservative majority, I do not intend to pursue that issue on this occasion. What worries me is how effective we are in influencing government business and government policy, not on the occasions of manipulative crisis votes, but on a day-to-day basis.
If our value is based on influence, how successful are we? What is the point of having unparalleled talent on the Benches of this House with so many noble Lords having invaluable experience, usually at the highest level of public or private endeavour, if the Government pay little attention to their opinions? By what method if we have no power —because our decisions can so easily be overturned when one party has an overwhelming majority in the other place—do we exploit the value of the experience and talents of this House?
That brings me to the Government Front Bench. I am sure that the Leader of the House will not take me amiss if I sound to him perhaps unkindly critical. Nowadays we have only two Cabinet Ministers in this House. That matter has already been touched upon in the debate. At the junior end are the Under-Secretaries of which we have six, plus the Whips. They are such nice young men! We have an affectionate appreciation for all of them. They are all hereditary Peers, but they cannot help that. There are two admirable women, both life Peers who had to work their passage before coming here.
All of the team work very hard. However, one doubts whether they are in a position significantly to influence departmental policy. They stick to their briefs and they do their best. As I said, we appreciate that. However, how much can they really convey of the value which is to be found in the expertise in many quarters of this House?
In between the Cabinet and the juniors come the five Ministers of State and the Paymaster. I do not know what one calls those who come between the monkey and the organ grinder. Here there is considerable varied and valuable experience but, again, how effective that is departmentally one can only guess.
Apart from the noble and learned Lord the Lord Chancellor, I think it is fair to say that on the Government Front Bench there is now no
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heavyweight champion, past or present. The former heavyweights are all elsewhere. Furthermore, only one Member of the present Government Front Bench has had direct experience as a Member of another place, which is astonishing but I believe that is correct. I refer to the Lord Advocate. No one else really knows how the other place works, yet that is the Chamber which possesses the power.
I am sure that the Lord Advocate does a first-rate job for Scotland but I cannot suppose that he would claim to have very much political clout. By comparison, therefore, with some previous Administrations, the recent 10 years of Conservative rule has not strengthened this House, but weakened it. We may perhaps surmise that we are not the Prime Minister's favourite child.
It is of concern to those of us who have been accustomed in another place to debating with those who have the power of decision to come here and find that we are in a situation where with the best endeavours in the world we do not have the opportunity to influence what will happen. As the noble Lord, Lord Diamond, rightly said. We are too frightened to use such powers as we do have.
That brings me to another touchstone of our value as a second Chamber. This is an area with which I have been particularly concerned since I had the privilege of coming to this House. I refer to the work of our investigative committees. I mention these because they have an almost worldwide reputation for the quality of their investigations. I am not including the domestic or procedural committees of the House, excellent as they are, but referring to the European Community Scrutiny Committee and the Select Committee on Science and Technology. Some 10 years ago I had the honour of being chairman of the European committee—a position since held by my noble friends Lady Llewellyn-Davies and Lady Serota. Its standards had been set by the much lamented Lady Tweedsmuir. I am well aware that the noble Lord, Lord Diamond, played a part for a short period at the beginning but I am sure he will agree that it was really Lady Tweedsmuir who set the scene.
In my time 96 Members of your Lordships' House worked on the main European committee and its seven sub-committees. There are now six sub-committees but only 74 of your Lordships labour thereon. However, the volume and complexity of the material emanating from Brussels increases almost daily and will continue to do so. It is a tremendous effort to keep pace with the changes in the European scene. One can ask whether this is work which should be left to the other place, which has itself vastly increased the number of its committees during the past decade or so. I hope not. I hope we shall continue to regard this work as one of our major contributions to the body politic of this country.
There is a profound difference between the regimes of the two Houses. Our approach is not based primarily on party interests or party numbers. In the investigative committees we aim for a broad balance on the main committee but membership of the working sub-committees is based on experience, expertise and excellence wherever those qualities may be found. We are genuine seekers after truth.

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Our work is generally on a consensual basis. It is partly for those reasons that the reputation of these committees stands as high as it does.
However, with the grudgingly slow pace at which new creations are being made, in some areas we are running short of expertise. Older Members become less active and younger Members are snapped up for other public duties. There are some very important areas of the natural and physical sciences and in the developing areas of technology, and so on, where it is difficult for us to recruit working Peers. This particularly applies to the European committee, where it is difficult for my noble friend to find Members to chair and to work on some of the sub-committees.
We need the experience and judgment of men and women, many of whom would never stand for election to this House under any form of proportional representation, regionalism or whatever. They are far too much engaged in their own work, but they will give time, because they feel that it is worthwhile, to these important committees of this House.
This is an area to which we can contribute in a way that the other place cannot. This is a matter to which our political colleagues in the other place should pay more attention, and I hope that my noble friend Lord Mishcon, will tell them so.
5.48 p.m.
Lord Dunleath: My Lords, for as long as I can remember—and I have no doubt for much longer than that—the possibility of reform of your Lordships' House has been a matter for discussion. One of the main arguments that it should be reformed is that your Lordships are not accountable to the public. I respectfully submit that in many respects that is more of an advantage than a disadvantage. For a start, I am not aware of any abuse that has arisen in my time as a result of non-accountability of your Lordships' House.
However, I turn to the advantages which I suggest exist. Many of your Lordships have spent years as elected representatives in another and much more prestigious place than that in which I served three terms of office. I would not have had the opportunity to serve those three terms of office had it not been for the fact that proportional representation was the form of franchise in Northern Ireland at that time.
Unless my experience is very different from theirs, I would go along with the noble Lord, Lord Somers, in saying that it is very difficult to avoid the shadow of the constituents. You tend to think twice before saying anything that might be unpopular. Worse still, you think many times if the realisation comes to you that it is several months since you said anything at all. Therefore, there is the pressure on the elected representative to say something just to get it into the local press so that the constituents can see that the elected representative is still functioning. Therefore, there is a temptation to speak even if you have nothing to say. That is one of the main advantages of your Lordships' House. There is no incentive to speak in this place unless you have something to say.
There is another element. If you are going to show your constituents that you are still functioning, you
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have to do constituency work. In my experience that is almost a full time job. It would mean that we would be deprived of the expertise of many of the noble Lords and Ladies whom we are privileged to have in this House at the moment. It also means that, being a full time job, a salary would have to be payable. That would be extremely regrettable. It would entirely change the tenor and character of your Lordships' House if this were to be a place where Members had to be paid.
If there were to be an elected body in this Chamber it would be on a regional basis, and I presume that there would be no constituencies as such. We all know that unless you have a constituency of a manageable size, it is virtually impossible to make yourself felt. With such a constituency you can move about, do constituency work, get yourself known and establish a reputation on a regional basis for being a hard worker. That will be very difficult to do. On a regional basis only those who had nationally known names would stand much chance of being elected.
That is the second reason for being opposed to having an elected Chamber. My primary reason is one which has been raised already by several noble Lords. In my view one of the greatest strengths of this place is the size of the Cross-Bench coupled with the fact that to the best of my knowledge, though I have never actually tried it, defiance of the Whip, if you take it, does not incur a penalty. I understand that in another place whereas one or two transgressions may be permissible, if repeatedly you defy the Whip, that Whip is withdrawn and you are then on the short list for deselection unless your constituency party and association are firmly behind you.
That means that in this place noble Lords can vote according to their conscience and accumulated knowledge and expertise. In my view, that makes us a truly revising and possibly at times a reforming Chamber. That is a role which the other place would find it very much more difficult to assume under present circumstances.
Having spoken of the importance of the Cross-Bench, it is a fact that if you stand for election as an Independent, there is very little chance of being elected unless again you have a nationally-known name. You have no party machine to work for you and no well-known policy which you can sell to the nation unless you are a crusader of some kind. Therefore, the question boils down to being well known. You cannot very well be a previous and prominent politician because that is incompatible with being an Independent. Therefore, you either have to be a television personality, perhaps a nationally known and successful sportsman, or a pop star. I certainly do not come into any of those categories though perhaps some Members do. I believe that qualification would very much narrow down the field.
Therefore, in my view the fact that we are not accountable is an advantage rather than a disadvantage. It may be asked: What is the need for reform? That has been mentioned already. I am both aware of and in sympathy with the concern that when there is likely to be a critical vote on the afternoon of the debate, people turn up many of

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whom one cannot remember having seen before. They come to vote and then go away again. Sometimes, but not always, the result is that the final decision of this House is contrary to the wishes of the majority of Members who have researched the Motion in advance, followed it through all its stages in the other place, followed any stages through which it has been in this place, and therefore have gone to vote in an informed manner. Yet that body of expertise is overthrown by people who have come in because they have been whipped from distant places. That is the main reason that criticism can be addressed at your Lordships' House.
Therefore, the question is this: if any reform is needed, how can it be approached? I say not on the voting record. It is entirely commendable to refrain from voting on Motions about which you know nothing. That is my policy. I would say not on the speaking record. I would defend the right of Members to come to this place whenever there is a subject on which they can make a contribution, but not to feel it necessary to speak on matters about which they know nothing.
My father sat in this place for 24 years and to the best of my knowledge he never spoke. He was a shy man by personality. More important, I believe he felt that there was nothing that he could tell noble Lords of the day that they did not know already. It is most unlikely, but if there had been a debate on large-leafed Himalayan rhododendrons, he might have made his maiden speech because he was an expert on that subject. In the event there was no such debate so he never spoke. That is absolutely right and I am sure that many noble Lords wish that I had followed his example.
Another criterion should not be expertise. After all, who can fairly say who is competent to speak on a matter and who is not? Another aspect has been touched on already. A good case has been made for the elimination of hereditary Peers. I wish to refer to one experience that I had. I was interviewed on one occasion by Simon Winchester, a prominent and well-respected journalist. He was researching material for a book either on your Lordships' House or on the parliamentary system in Britain —I cannot remember which. I said to him that while I totally supported the system of having an Upper House I could not see the justification for having hereditary Peers. He replied that although he used to agree with that view, he had changed his mind. He said that to eliminate hereditary Peers and have only life Peers would immediately raise the average age of Members of the House to 70-plus. I see the noble Lord, Lord Blease, looking at me. I was not speaking about him.
Secondly, the hereditary system, although random, is probably as good a form of selection as one can have. I do not favour eliminating hereditary Peers, who are in fact, as the noble Lord, Lord Somers, mentioned, declining in numbers. Some 45 have no successors, and so the number is actually dwindling. One idea is to have representative Peers. But it would be difficult to be fair, and it would be difficult to keep the system divorced from party political influence. Such influence would be regrettable. Therefore I agree with the noble Lord, Lord
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Addington, who suggested that a minimum attendance might be the best solution.
I can think of no fairer way. Noble Lords who had not attended more than a minimum number of times over a certain period would be disqualified unless they had a valid excuse, such as serving overseas and so on. It is the fairest method that I can think of. But I would argue most vehemently—I feel very strongly about this —against having an elected Upper House.
6.2 p.m.
Lord Jenkins of Putney: My Lords, all noble Lords, or at any rate most noble Lords, will be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for introducing this discussion. Although I am grateful to him for introducing the discussion I found myself disagreeing with much of what he said. It is the subject for which I am grateful rather than the content of what he had to say. However, he said it extraordinarily well. The fact that I found myself disagreeing with him would not matter much except that one or two other noble Lords were also in disagreement.
While I was waiting to speak I was thinking of one or two sayings. I may venture to disagree with the noble and learned Lord, Lord Simon, but I find myself in strong agreement with Disraeli. He said that without party there can be no democracy in modern society. Only in a place like this, which is responsible for important secondary decisions but is not the primary place where decisions are taken, can the luxury of Cross-Benches be afforded. In a place from which democracy emanated, only the party system can maintain and spread democracy. Only the party system can give people the sense that what they say when they vote counts, that they are in fact, though indirectly, governing themselves.
Some speakers have suggested that democracy is inconvenient. So it is. It is that very inconvenience which makes it good. In this Chamber we are free to say what we damn well please. That is a great luxury for us but do we pause and ask ourselves whether we are speaking for anyone other than for ourselves? What right have we to speak only for ourselves? By what virtue do we sit here when most other people do not-sit here and do not enjoy the privileges which we enjoy? Therefore the notion that there is something highly creditable about this Chamber brings me to another saying which passed through my mind while I was waiting to speak—self-praise is no recommendation.
I shall quote another distinguished Conservative, Winston Churchill. He said—I cannot remember what he said. I shall come back to it. I should have taken the precaution of writing it down.
Lord Mishcon: "Give us the tools, and we will finish the job".
Lord Jenkins of Putney: No, my Lords, that is not the one. There is another one. I shall come back to it.
In the meantime I shall quote a sentence from the document referred to by the noble Lord, Lord Beloff,

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the Final report of Labour's Policy Review for the 1990s. The first sentence of the subsection which deals with this Chamber says:
"A second chamber of Parliament based on inheritance and patronage is unacceptable in a modem democracy".
This Chamber is the only place in the country or in the world where that statement would be challenged. We must recognise ourselves for what we are. We are an anachronism. We are a useful anachronism. We are a place in which good work is done. But we should not pretend that we have any constitutional justification which would carry a moment's conviction anywhere else outside this Chamber. That brings me to my recollection of Winston Churchill's words. He said that we are, more than we know, the creatures of our institutions. Only we creatures of this institution could begin to think that we have the kind of merit which has been described to us by so many speakers. We have not. But we do a useful and good job.
For that reason when I was in the other place I spoke against my colleagues at the time who said that we could do with a single Chamber. I even questioned Harold Laski's addiction to unicameralism, which was a great thing to do at the time. To this day I am still convinced that he was wrong and I was right. We must have two Chambers. The two Front Benches tried to bring about reform in 1968. They came together and said that they would abolish hereditary peerages and arrange a system of patronage whereby the Prime Minister of the day would in future have the right to choose Members of the Upper House. Unfortunately, as my noble friend Lord Longford said before he had to depart, the proposals were upended by the fact that the Back Benchers would not follow the Front Benchers into the Lobby. There was a substantial rebellion on both sides.
This illustrates the fact that one can always go through a Lobby with people with whom one fundamentally disagrees. I went through the Lobby with Enoch Powell—he, because he did not want to see any change in your Lordships' House; and I, because I felt that the proposed change was entirely inadequate and that something more substantial should have taken place. The notion that one cannot for opposite reasons go into a Lobby and upset the Government is not valid. However, that is by the way.
I seem to be full of quotations today —and they have been mostly quotations from Conservatives. At a Conservative Party Conference in the early 1980s a motion was put forward to reform the House of Lords in the then current Parliament. However, it was opposed by the noble Baroness, Lady Young, who was the Conservative Leader of the House at that time, on the ground that such a measure would need all-party agreement and no such agreement was in sight. I think that what the Labour Party document says is true.
It is all very well for us to carry resolutions abolishing this House and not specifying what should replace it, if anything. It is all very well for Conservatives to propose alternatives at their
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conferences. However, how you deal with it from that point on is a different proposition. What do you do? How do you move from one position to another? That is the difficulty which has never been faced.
Here we are in our present situation and over there is the desirable position that we wish to reach. Just how can it be reached? When I hear a reasonable proposition in that respect I shall be more convinced of the possibility—I am convinced of the desirability —of making a fundamental alteration to this House. I think perhaps it could be done; but the notion that you can do it without all-party agreement is an illusion. Such an agreement is not only made between the two Front Benches; it must also extend throughout the House. Changing the constitution is the most difficult task you can undertake in a traditional society like ours. However, I think that it should be done.
I believe that this Chamber is wrong in its present form. As I said, I think that the Labour Party proposal to which I referred contains some very good ideas which I think could, and should, be carried out. However, I wonder how far it will get. Will it get from here to an election manifesto? I am inclined to doubt it. Further, if it were to be included in an election manifesto, how far would it get in the Chamber? Would it be tabled before all the other important matters? Of course it would not. Even if it were to be tabled, as all the Committee stages would be taken in the Chamber itself, no other business would be transacted for about six months. Would any government give it that degree of importance? I think not. Constitutional change is vitally important; it ought to be carried out, but I wish someone would tell me how.
6.12 p.m.
Lord Mishcon: My Lords, all of us who regard it as a privilege to be a Member of this very civilised House—and I am proud to call myself one—will be indebted to the noble and learned Lord, Lord Simon of Glaisdale, for giving us the opportunity even in a short debate to discuss our future. I must say that if anyone is to introduce it in this Chamber I do not think that any of us would prefer a name other than that of the noble and learned Lord. It is not just a question of his political career which was eminent, or of his judicial career which was even more eminent. He has been a great fighter in this House for the rights of the Members of the House of Lords. The noble Lord the Leader of the House had to put up with some very fine and direct oratory quite recently in the Courts and Legal Services Bill as to the infringement of the rights of this House by those who dominate the Front Bench opposite.
I am told—although I have never understood it —that the astrology page of a newspaper is one which is very popular among readers. I suppose, therefore, that it is with some joy that we are able to indulge in a little astrology tonight by looking into our future. I hope that the noble Lord, Lord Beloff, will not mind very much if I look into his stars at this moment. In two or three years' time I see the noble Lord moving his seat. I see him with neighbours opposite of great intelligence and wisdom wishing to care for the traditions of this great

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country, but wishing to do it justice, reflecting upon words which they may have uttered when not having the responsibility of government and finding that those words may have to be altered in the interests of all concerned. I also see him rising to his feet and cheering what they have done. That, I suppose, is the answer I would give to the noble Lord in response to the various questions which he asked me.
The duties and powers of this House have been discussed today but no one has referred, as yet, to the Bryce conference. It was held in 1917; that is only six years after the Parliament Act and obviously when this country was at war. At that conference, which consisted of Members of both Houses, Lord Bryce set out the conference's views on the powers and duties of this Chamber. As those views are very succinct I hope your Lordships will forgive me if I quote the four functions. They were quoted by the Leader of the Opposition in one of the debates which have taken place on the powers and duties of your Lordships' House.
The four functions were:
First, the examination and revision of Bills brought from the other place. Secondly, the initiation of Bills dealing with subjects of a comparatively non-controversial character. Thirdly, the interposition of so much delay—and no more—in the passing of a Bill into law as may enable the opinion of the nation to be adequately expressed upon it. Fourthly, to act as a forum for the discussion of general questions of policy—such as foreign affairs".—[Official Report, 3/4/84; col. 691.]
Those words set out very succinctly the duties of this House which we have tried to fulfil. It is not quite a powerless House. I can remember many occasions on which your Lordships have acted with due wisdom in defeating the Government and where, indeed, amendments have gone to another place and have not been reversed by virtue of the fact that there was respect for the opinion which your Lordships had expressed by the votes cast.
I was glad that the noble Baroness, Lady White, referred to the other matters which have been added to the duties of this House. She talked about the European Committee and its sub-committees. She was so right in what she said. She mentioned the Standing Committee on Science and Technology which is so much admired not only throughout the nation but also, as she rightly said, universally among those interested in such matters.
However, there was just one other matter which was not mentioned. I refer to the power of this House—and in my view it is a very valuable one—to put a negative in the way of the other place endeavouring to extend its life beyond five years. What a valuable right that is in the defence of freedom and democracy which we so value in this realm of ours. These are powers and duties of a very substantial nature which one realises must be carried out by some Chamber, if not this one.
Therefore, if one asks oneself the next question —"Do you have to have a second Chamber to carry out these duties and powers?" —the answer must be yes. There must be a programme for the future, in spite of the fact that such a programme might have to be altered in the light of wisdom as it may evolve. That programme says that there must be a second Chamber.
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We then move on to a very robust description of your Lordships' House. I remember very well that it was given by my noble friend Lord Houghton of Sowerby, whose eloquence seems to increase with the years that grace him. I wonder how he came from these Benches because in introducing the debate on the powers and duties of the Lords he used the words:
"Your Lordships' House is the only restraint in Parliament to the arrogance of an elective dictatorship"—[Official Report, 19/12/84; col. 657.]
That came from our Benches. I was amazed at the words; they have remained with me over the passage of time.
We then come to the question of whether the composition of our House is right, given that we have these essential powers and duties. I believe that they are important. I would not use the words of my noble friend Lord Houghton but they are important to safeguard the freedom of our people. On that composition I listened to the noble Lord, Lord Diamond. I took the trouble to read the speech that he made not long ago when he dealt with a Motion that concerned the powers and duties of the House in regard to Public Bills and so on. He did not quote—as he was entitled to—the words that occur in the report of the committee, I believe I am right in saying, that was set up by the Conservative Party and the noble Lord, Lord Home. I wish to refer to them because he cited them in his speech. We must take into account that this is not limited to one side of your Lordships' House. It concerns the essential reform of the composition of the House.
The noble Lord, Lord Diamond, will remember that on 3rd November 1983, according to the Official Report, he referred to the Bow Group on the reform of the House of Lords. That group said:
"Reform of the House of Lords is urgent if the second Chamber of Parliament is to be preserved". [Official Report, 3/11/83; col. 643.]
What did the Conservative committee on the reform of the House of Lords, chaired by the eminent noble Lord, Lord Home of the Hirsel, say? It did not believe that leaving things just as they were should be considered a viable option. With regard to the composition of the House the report considered that it was virtually impossible to defend.
I should have thought that it was common ground that we must ensure that there is a second Chamber. We must ensure that the powers and duties of the second Chamber are roughly consonant with those that we have. Some of us wish that they were a little more effective with regard to statutory instruments and other such matters, as the noble Lord, Lord Diamond, said. For the future we must look at the composition of the House. That is where the hereditary principle comes up against logic and democracy. I say this with the utmost deference to the many noble friends I have in the House who sit here as a result of their inheritance.
As with many things that happen in our wonderful country, we start with a complete illogicality in our Constitution which, as we all know, is not written, and in the composition of many of our institutions. It seems to work. However, in regard to making

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decisions on behalf of the nation one must do a little more than just say, "It is illogical but it works".
In closing what I have to say to noble Lords who have been patiently listening to me trying to wind up the debate on this side of the House, perhaps I personally may cast doubts on the question of elections to the House. This was carefully considered in the White Paper on House of Lords reform issued in 1969 by a Labour Government. We must consider what that Government said in regard to any matters that the noble Lord, Lord Beloff, raised quite properly in his speech.
I shall not bore your Lordships by reading the remarks but at pages 10 and 11 the White Paper came down hard and fast against the idea of regional and national elections. It did so on the basis that we cannot have a Chamber which competes with the House of Commons. The White Paper advanced other arguments and I have no doubt that those arguments will come up again when final decisions are made. Who should make them? I should have thought —but here again I venture humbly to give a private view—that there will have to be a broadly based Royal Commission reviewing all the reform debates that have taken place in your Lordships' House. It will ignore the speech I have just made since it will be deemed to be worthless, but it will examine all the speeches of my other colleagues in the House. The Royal Commission will look at White Papers and other documents that have been published over the years. Somehow or other I believe that the future of the country will demand a second Chamber. May it be as worthy of history as your Lordships' House has been up till now.
6.27 p.m.
The Lord Privy Seal (Lord Belstead): My Lords, I wish to thank the noble and learned Lord, Lord Simon of Glaisdale, for the debate this afternoon which gives us the opportunity to air our perceptions of the composition and powers of a second Chamber within our Constitution.
I wish to approach what could in a way be a hypothetical question from a basis of hard fact by examining where we are at present. In short, I feel it may be useful if I seek first to outline the functions of this House so as to focus on the purpose of a second Chamber and the very reasons for its existence.
I am sure that all your Lordships will join the noble Lord, Lord Mishcon, in endorsing the summary of the duties of the House set out so many years ago by the Bryce Conference. That summary had as its fourth function general debate. One of the valuable functions of the House is the comparatively frequent opportunities for general debates. Those opportunities have, if anything, increased since the institution of Motions for short debates which are balloted for every month. They are sometimes the chosen form of a Wednesday debate, as we saw last week when debates moved from Benches on this side of the House on tenant farming and forestry occupied the afternoon.
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It is in our general debates that the advantages of the composition of your Lordships' House are apparent. As the noble Lord, Lord Dunleath, said, there are many noble Lords who bring to your Lordships' House particular experience and knowledge from outside the political arena. There is no doubt that that is one of the reasons why the House can claim to make a substantial contribution to public debate.
Since several of your Lordships' speeches have referred to the composition of the House, perhaps I may say how glad I was to hear the noble and learned Lord say that we need not be afraid of a hereditary element in the House. Indeed, I was glad to hear the noble Earl, Lord Longford, express the same view even more robustly. The noble Earl has the distinction of having been created a Peer in his own right at the same time as having inherited peerages. In his absence, I should like to suggest that the noble Earl, Lord Longford, demonstrates in many ways the advantages of the composition of this House in his own person. What I am saying is that many hereditary Peers can make a unique contribution, largely because so many come to the House by routes other than through professional politics. For very much the same reason life Peers also make a unique contribution.
Once again, it was the noble and learned Lord, Lord Simon of Glaisdale, who referred to "fancy franchisers". Two of the examples that the noble and learned Lord mentioned—namely, former Secretaries General of the Trades Union Congress and vice-chancellors—have been and are represented in this House not through election but through the conferment of life peerages. To me that argues the strength of our present system.
However, the legislative function of your Lordships' House, as opposed to its debating functions, is to revise and to go through Bills line by line and clause by clause. With that function goes the power to amend or even to delay legislation. Those powers are limited partly by convention and partly by statute.
As all noble Lords well know, there is the convention of the Salisbury-Addison doctrine. That means that the House does not oppose, in principle, legislation for which a Government with a majority in another place has a mandate; in other words, the House does not oppose the principle of a manifesto Bill.
In that context, I was interested in the views of the noble Lord, Lord Addington. However, I thought that his proposal that it was another place that needed reforming stretches the Motion before us this afternoon, if it does not go beyond it. Nevertheless, the remarks of the noble Lord regarding how much freer he would feel to vote against measures coming from another place if he had been elected rather than being an hereditary Peer were important because they illustrate the dangers of conflict which would be inherent in a comprehensive reform. Therefore there are limitations, by convention, on what we do here, and there are the powers and limitations enshrined in the Parliament Acts of 1911 and 1949. So the House has a delaying power, in effect of one

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year, under the 1949 Act. The 1911 Act gives a power—the noble Lords, Lord Diamond and Lord Mishcon, reminded us of that power—of an absolute right of veto in respect of any Bill which would seek to extend the maximum duration of a Parliament for more than five years.
The most topical constraint on the powers of your Lordships' House—this was a matter debated as recently as last Monday—is the financial privilege of the House of Commons. Aids and supply were confirmed as being in the sole gift of the other place by the Parliamentary resolutions of the House of Commons in 1671 and 1678, and were later amplified by the resolutions of 1860 and 1910. In addition of course further limitations in respect of money Bills were imposed by the Parliament Act of 1911.
I would contend therefore that the two main functions of the House are debating matters of public interest or concern and revising Public Bills. Those are two of the four functions that were chosen by the Bryce Commission. But in addition many of your Lordships contribute hours of time to work on Private Bill or Hybrid Bill committees. Many noble Lords also contribute to the valuable work of the Select Committees of the House. That work has an effect on legislation as it is going through Parliament. I am thinking of the Science and Technology Committee and of course the European Communities Committee. I agree with the noble Baroness, Lady White, that the House can take pride in its foresight in that when the United Kingdom entered the European Community 17 years ago, not only was a Select Committee on European legislation established, but its structure consists to this day of sub-committees covering the main subject areas of European directives. The reports of those sub-committees are, I know, read with great interest, not only in Britain but in the other countries of the European Community.
What conclusions should be drawn from this catalogue of the work of your Lordships' House? First, as I have already mentioned, I believe we benefit greatly from the wide range of experience and knowledge to be found here which is drawn from each of the political parties and from the very large number of noble Lords who sit on the Cross-Benches.
Although I must confess that I did not agree with the criticism of party politics made by the noble Lord, Lord Somers—I thought that was well answered by the noble Lord, Lord Jenkins of Putney —I do, nonetheless, agree with the noble Lord that it is a strength of the House that we have a large number of Cross-Bench Peers.
Secondly, I believe it is a major advantage for a revising Chamber that we are not a mirror image of the House of Commons. Your Lordships' House is unelected, and your Lordships speak here in a personal and not in a representative capacity. A further difference is that no political party in this House has an overall majority. That is due not least to the very substantial number of Cross-Bench Peers who sit in your Lordships' House independent of party allegiance and who interestingly enough, do not have a single elected equivalent in another place.
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When one considers that there are about 240 Peers who sit on the Cross-Benches, that is a remarkable difference between the two Houses.
Thirdly,—this is perhaps the most important of all the conclusions that I would draw about our work—the Committee and Report stages of Bills provide us with a valuable opportunity for revision and a further screening process for proposals which are of public concern. This is of particular importance—I shall say this before any other noble Lord says it—when Bills have been subject to the guillotine in another place.
The noble Baroness, Lady White, nonetheless, asked what real influence this Chamber has. Some measure of our revising work was shown in the previous Session of Parliament where statistics show that the House made 2,401 amendments to Bills, of which all but a handful were accepted by another place. Of course a large proportion of those amendments were of a technical or tidying-up nature. However, as the noble Lord, Lord Mishcon, rightly reminded us, many would have been substantive and many were important. Their sheer volume shows the extent of the revising work which has to be done before legislation can reach the statute book and proves the part that is played in that process by the second Chamber.
Nonetheless, from time to time proposals are made to reform both the composition and the powers of your Lordships' House. It is interesting to reflect that the last attempt in 1968 foundered not here, but in another place. It might well be assumed that if a Bill to reform the composition of the House of Lords was to be sabotaged, it would have happened in your Lordships' House where, with no Speaker and few rules of order, we rely on self-restraint, essentially regulating our proceedings by a kind of self-denying ordinance. That must be an arrangement which is unique among the legislative assemblies of the world.
I have therefore waited in some anticipation to hear this afternoon the plans which noble Lords opposite have devised for the future of your Lordships' House. As my noble friend Lord Beloff pointed out, there is a policy document which contains such proposals. Previously, I had understood that the Labour Party favours an elected House—however, I think it is fair to say that the method of election has not been revealed —which would act as the guardian of fundamental rights. Those rights are termed colloquially in some speeches a charter of rights. That would consist of Bills which could not be altered within the lifetime of a Parliament without the express consent of a reformed House.
I find that easy enough to understand. Less easy to comprehend is the relationship of an elected second Chamber to the powers it would have; for apparently, according to the Labour Party's policy review of last year, its reformed House of Lords would be a Chamber in which no legislation would be introduced and no Ministers would sit. That is not exactly an assembly to which people would compete enthusiastically to be elected, and not exactly a Chamber which would do anything to meet

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the criticisms of the Government voiced by the noble Baroness, Lady White, in her speech.
Like my noble friend Lord Beloff, I find the Labour proposals raise a number of questions which, if noble Lords opposite will forgive me, have not been answered this afternoon. I pick out one. On the one hand, the Labour Party expects the second Chamber to stand up to the House of Commons in protecting the Bills which would fall within the scope of its charter of rights; on the other hand, it is clear that there would be one opportunity only for revision of a measure by the House of Lords before final consideration by the House of Commons and that the second Chamber would not be designed to frustrate the will of the Commons. It is not easy to understand how that could be guaranteed in an elected Chamber unless the House's power were to be whittled away almost to nothing.
Lord Mishcon: My Lords, perhaps the noble Lord would be kind enough to give way. Of course it is very easy to criticise proposals for reform. Before the noble Lord finishes his speech, are we to hear whether he, on behalf of the Government, has any reform proposals at all to which we could listen, or is he going to say that he wants the situation that we are in to continue for ever?
Lord Belstead: My Lords, the noble Lord made an interesting speech. As he is always very courteous, I am sure he will not think that I am being brusque in any way when I say that, unlike noble Lords opposite, I shall indeed indicate before I finish how I see the House of the future proceeding.
I have been genuinely disappointed —which is why I said a few words about the plans of the party opposite—not to hear some explanation of what noble Lords opposite really envisage for the reform of this House if they had the chance, although they have put out a document.
Before coming to that point, perhaps I may say that the Motion of the noble and learned Lord, Lord Simon, invited us to consider the appropriate powers and constitution of a second Chamber within the British constitution. I have considered our present powers and constitution, and have commented on the plans of the party opposite. From these Benches I can say that we certainly do not contemplate a comprehensive reform of that kind; but that is not to say that I believe that everything must remain exactly the same.
When my noble friend Lord Whitelaw was Leader of your Lordships' House, he was instrumental in setting up the group on the working of the House of which I was a member. That group provided us with an opportunity of reviewing many of our procedures. The changes which flowed from the work of that group were not earth-shattering, but I believe they were valuable. Part of their merit was that they have been integrated into our procedures with very little disruptive effect.
I believe that must be right. The British constitution is not a machine; it is an organism. It grows and changes, and its institutions grow and
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change with it. Sometimes the very weight of the legislation with which we deal has stretched the procedures of your Lordships' House, but I believe that it is precisely such pressures which can bring about valuable changes in our procedures.
Thus on occasions I see as positive pressures which some of your Lordships may see as negative. But I hope that we can all agree on one thing. The fact that we are prepared to debate these matters in the midst of a heavy legislative Session demonstrates that the present House retains the capacity to debate its own place in the constitution and to consider change if need be.
Before I finish, perhaps I may answer three questions. My noble friend Lord Beloff made an assertion that there are some—I believe my noble friend thought, in politics—who perhaps do not really value the revising function of the House. I should like to make it quite clear that I believe that this function of your Lordships' House is taken seriously on all sides in politics. That is certainly the case within the Government. I wish that all Bills were perfect on introduction, but they are not. I need only reiterate the very large number of changes made in this House to show how vital the revising function is for the Government's own legislation, as well as for many other reasons.
I listened very carefully to the noble Lord, Lord Diamond, when the noble Lord referred to the delaying power and the power of veto. I must state that I do not believe your Lordships refrain from using your undoubted powers for the delaying of primary legislation, or in rejecting secondary legislation, simply because the House is afraid to do so, as I think the noble Lord suggested. It is a long-standing principle that it is Parliament's duty to secure the Crown's business, so I believe that if your Lordships' powers were infinitely greater than they are today your Lordships would wisely —and I take that word from those which the noble Lord used—accept at least the vast majority of statutory instruments. That being so, I do not believe that to introduce a six months delaying power would be to increase the real efficiency of your Lordships' scrutiny of subordinate legislation which, after all, is exercised in detail by a the Joint Committee on Statutory Instruments.
Finally, perhaps I may say to the noble Lord, Lord Jenkins of Putney, that I was glad that he qualified his description of this House as an anachronism by conceding that this is a place where useful work is done. I cannot follow the noble Lord in quoting eminent Conservatives, but I can quote to him a wise proverb in return: "If it works, don't fix it".
In that context I hope it does not sound complacent if I conclude by saying that the present arrangements for the House not only work but, broadly speaking, have stood the test of time. This is very important, and here for once I most certainly agree with the noble Lord, Lord Jenkins. On all the evidence, not only is the principle of a bicameral legislature obviously crucial to the parliamentary process but clearly there is a considerable workload which falls on the House as the revising Chamber.

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Your Lordships' House performs an essential function as a Chamber of revision and deliberation, and as a guarantee of constitutional continuity. Long may it continue to do so.
6.48 p.m.
Lord Simon of Glaisdale: My Lords, I should like to thank all of your Lordships who have contributed to the debate for the most important ideas that have been ventilated. The very fertility of those ideas points irresistibly to the need for a more ample debate, although I venture to say that today's debate has been fully justified.
In opening the debate, I invoked the shades of Beaconsfield, of Salisbury and of Rosebery. During the debate I rather felt hovering around us also the shade of the Abbé Sieyes, because we have had plenty of constitutional ideas ventilated.
It would be inappropriate for me to mention any particular speech, although I propose to make two exceptions. First, I know all your Lordships would wish, through me, to express our appreciation that the noble Lord the Lord Privy Seal has replied to the debate as a member of the Cabinet. I venture to think that when his speech is read—although he always expresses himself with caution—it will be seen to contain a lot that will give hope to those who have spoken today.
The other speech that I wish to mention is that of the noble Baroness, Lady White. I do that, not because we have been colleagues in one place or another for many years, but because she started her curriculum of political life with her experience in the Parliamentary Press Gallery. However, she was, so to speak, born in a Dispatch Box. Having said that, I merely repeat my thanks to noble Lords and beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

Pharmaceutical Innovation: Patent Protection in the EC
6.50 p.m.
Lord Hacking Lord Hacking rose to ask Her Majesty's Government whether they support the European Commission's proposals to restore patent protection for new pharmaceutical innovation and, if so, what steps they are taking to secure agreement to the proposals.
The noble Lord said: My Lords, my Question is directed towards a draft Council regulation which was adopted by the Commission of the European Communities on 28th March but which has only recently taken the form of an English version. It is the proposed Council Regulation Concerning the Creation of a Supplementary Protection Certificate for Medicinal Products. It applies both to human and veterinary medicinal products and its objective is to extend the patent protection for those medicinal products.
It is proposed that the Council regulation will operate in this way: manufacturers of medicinal products who both have a patent still in force and a valid authorisation will be entitled to apply for an
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extension of patent protection up to a maximum of 10 years. This will effectively create patent protection for medicinal products for a period of 16 years. The calculations for that are somewhat complicated in Article 6 of the draft Council regulation, but, assisted with a drawing board, it comes to a simple 16 years.
It is also proposed in Article 13 of the draft Council regulation that there will be transitional provisions which will apply when there is a valid patent but no authorisation —the situation being that the product is being developed but not to the point of it having been licensed to be used on the market—or if the product is covered both by a valid patent and by a valid authorisation the transitional provisions under Article 13 will be extended when the patent expires on or after 1st July 1992 and the authorisation has been obtained after 1st January 1984. Again, without getting out any pocket calculators, the effect of that is to enable patent protection for medicinal products, which would otherwise have their period of patent protection ended by that date, to be extended beyond 1st July 1992.
Despite the slightly complicated calculation in Article 6, the Council regulation is remarkably free of bureaucratic content. It is proposed that it will operate through existing patent offices in member states and will not be the producer of more bureaucracy.
In asking this Question in the House, I am seeking the best commitment that I can from Her Majesty's Government of their support for the proposal. It may therefore be helpful to noble Lords if I give some indication of the timetable as I understand it to be. As I have already told noble Lords, the Council regulation has been adopted by the Commission and it must now go through the process of being approved and adopted by the Council. The first period therefore is the consultation period with member states and with the relevant departments of state in every member state. I understand that it is planned that that consultation period will end roughly at the end of May. At that stage it is proposed that the Council will adopt the draft Council regulation in whatever form it may be by the end of that consultation period.
After that, the further processes must be gone through. The opinions of the Economic and Social Committee of the Community must be taken as the European Parliament is also entitled to be consulted. I therefore anticipate that the Council of Ministers will finally adopt the Council regulation, on the basis that it goes satisfactorily through all those processes, some time before the end of the year.
The timing of the Question is therefore of some importance in this member state of the European Community in ascertaining the position of Her Majesty's Government on the proposal and in encouraging the Government to be as supportive as they can, if they are not to be persuaded to be totally supportive, of the proposal. I say that with a caveat. There are one or two paragraphs in the Council regulation upon which I or others should like to make representations, but those are matters of detail and I need not at this stage take noble Lords or the Minister through those aspects.
The value of patents has been perceived for many centuries. Indeed, patents have had their advocates of support in this country for over 400 years. There are references in the 15th and 16th centuries as to the value of patents. I think I am right in saying that the first time patents were introduced in a statutory form in the United Kingdom was in 1624. The value of patents can be illustrated in a different way because, when the Netherlands abolished its patent system in 1869, it found that there was a diminishing proportion of exports of manufactured goods and therefore reintroduced the patent system in 1912.
The value of the patent system in the United Kingdom was assessed in the Banks Report on the British patent system which was presented to Parliament in July 1970. As the basis of my Question is the value of patents, I can do no better than quote what the Banks Committee said in chapter 2 of its report. It broke down the value of patents into four parts. It says:
"first, that it encourages research and invention; second, that it induces an inventor to disclose his discoveries instead of keeping them as a trade secret; third, that it offers a reward for the expense of developing inventions to the stage at which they are commercially practicable; and fourth, that it provides an inducement to invest capital in new lines of production which might not appear profitable if many competing producers embarked on them simultaneously".
Again, it is interesting to note the widespread support that the Banks Committee was able to attribute to the system of patent production. Paragraph 58 of the report refers to consultations with,
"the Ministry of Technology, the Confederation of British Industry, the Trades Union Congress, industrial and professional associations and individual industrial firms, and an analysis of all the evidence shows it to be positively and overwhelmingly in favour of the maintenance of the patents system".
Unfortunately the patents system has not worked very well in recent years for the pharmaceutical industry. That is because the pharmaceutical industry has been faced with ever more complicated research and longer periods of development. It has also rightly been faced with increasingly stringent licensing procedures and—although they are now abolished—licences of right. As a result the pharmaceutical industry's period of effective patent protection for its products has averaged out at only 10 or 12 years. Indeed, in the explanatory memorandum to the EC regulation it is shown as low as eight years.
I can tell noble Lords that with certain drugs of considerable importance to patients—for example, a drug called Feldine, which is an non-steroidal, anti-inflammatory drug for the treatment of arthritic diseases; Diprivan, an anaesthetic drug of special value for day surgery; and Zoladex, a drug used for the treatment of prostate cancer—the period of effective protection was considerably less than the 8 or 12 years to which I drew your Lordships' attention. For Feldine it was four years; for Diprivan it was five years and for Zoladex it was only six years.
Arising from that there have been a number of debates in this House—for example, on licences of right—and the matter has also been subject to
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consideration by your Lordships' Select Committee on Science and Technology. Its report. Priorities in Medical Research, was ordered to be printed on 1st March 1988. At paragraph 6.8 the committee said (I shall read the whole of the paragraph because it is of particular importance):
"The Government should ensure that patent protection available to the pharmaceutical industry in the United Kingdom in practice affords levels of protection similar to that afforded by the patent laws in major competing countries, both in Europe and in the United States and Japan. The Committee are aware that the Government is taking steps in the Copyright, Designs and Patents Bill to deal with the anomaly in the United Kingdom's present licence of right provisions which constrain effective patent life".
That has been dealt with in the 1988 Act.
The report continues:
"The Government has not however tackled a further point on effective patent life: when periods for drug testing and registration are lengthened, this effectively reduces the period during which a product will be on the market with full patent protection (the period during which the company can recoup its investment). The Committee believe that it is important that the United Kingdom keeps in step internationally because otherwise companies will either take their research elsewhere, or else they will need to charge higher prices for new drugs to recoup their investment in a shorter time. Both of these eventualities would be bad for the United Kingdom. The Committee are aware that these matters may need European action. The Government should press our partners in Europe on the point if necessary".
Therefore the arrival of this report should be welcome news. It is also heartening to learn that the Government recognise the value of the pharmaceutical industry. I can do no better than quote from a recent speech of Mr. Kenneth Clarke, which he made on 16th February 1990. About the British pharmaceutical industry. He said:
"The starting point for this Government's—and indeed any Government's—approach to prescribing has to be recognition of the tremendous contribution drug therapies have made to the treatment of NHS patients and the enhancement of their quality of life. It is a great tribute to the UK pharmaceutical industry that it should be a world leader in producing innovative products whose result is to help alleviate human suffering. On any realistic forecast of the future we can expect the demand for drugs to increase both in response to new treatments brought about by medical advance and the fact that life expectation will continue to rise".
However, I ask noble Lords to consider this Council regulation—as it must be considered—in terms of a European perspective. The Council regulation is directly applicable in all member states and in any event is directed toward the pharmaceutical companies throughout the world community. It is therefore particularly significant that 10 years ago the number of molecules—that is, the active ingredient of a new pharmaceutical product —of European origin to reach the research and development stage was 65 per cent. That figure has now dropped to only 40 per cent. That information has been obtained from paragraph 6 of the explanatory memorandum to the EC draft Council regulation. Therefore, the effect of this proposal will give the European pharmaceutical industry equivalent patent protection to that enjoyed in the USA and Japan.
I shall listen with care to the Minister's reply and all that he says but particularly to what he says on this point. I am particularly anxious that the Government do not place themselves in a position of conflict. On the one hand, the Government are

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the supporter of British industry and the case for supporting the pharmaceutical industry, as I have described to your Lordships, must be a strong if not an overwhelming one. On the other hand—this is also recognised in the explanatory memorandum, so it is not unique to the United Kingdom—the Government also have another concern, which is the cost of the National Health Service. One can go on producing figures to show that pharmaceutical products do not cause increases in the overall cost of keeping the nation in good health.
I have already addressed your Lordships for 16 minutes and I do not want to develop my argument in great detail. However, I should like in particular to hear from the Minister that the Government are dealing with this matter and approach it from the position of the best interests of British industry. I want to be assured that in their approach to this matter they will not place themselves in a position of conflict as the monopolistic buyer of pharmaceutical products within the United Kingdom.
The benefit to the pharmaceutical industry and the society which it serves in having that additional patent protection is enormous. At this very time there is research being conducted —for which patents have already been obtained—into asthma, migraine, acute schizophrenia, multiple sclerosis, Parkinson's disease and Alzheimer's disease. All that research can only be accomplished if the pharmaceutical industry can invest with confidence in its own and our future. On that basis I ask this Question.
7.10 p.m.
Lord Jenkin of Roding: My Lords, the House is deeply indebted to the noble Lord, Lord Hacking, for drawing attention to what I think by any standards is one of the most far-reaching and, from my point of view, most welcome proposals that we have had for some time from the Commission in the field of pharmaceuticals. Nearly a year ago I had the privilege of being invited to make the keynote address to the annual conference of the European Federation of Pharmaceutical Industry Associations, which is, as it were, the European Trade Association for the pharmaceutical industry—EFPIA. At that conference we were addressed by the commissioner responsible, Dr. Martin Bangemann. I found it quite interesting to see how much common ground existed between the commission and many of those who addressed the conference, including, I add with humility, myself. I drew the conference's attention to precisely the point that the noble Lord, Lord Hacking, has mentioned about the erosion of the effective patent period because of the conflict between two different regulatory procedures to which the industry is perhaps more subject than any other. I am sure that the noble Lord was right to make the point.
The patent legislation is now intended to give patent protection for 20 years. The great majority of industries enjoy a period of 20 years. But for the pharmaceutical industry the period has been progressively reduced from the moment that the clock begins to run because of the length of time after the filing of a patent that is taken up by the
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necessary procedures, which are mainly aimed at efficacy and safety. The hurdles that a new drug has to overcome—and I agree with the noble Lord, Lord Hacking—quite rightly, before it may be prescribed and used by the medical profession for the benefit of patients, are now very substantial indeed and have been lengthening. We all cast our minds back to the dreadful thalidomide tragedy. There have since been a number of other instances where drugs originally thought to have a balance of advantage over disadvantage have turned out the other way.
I never miss an opportunity to make the point, and I do so again, that no really efficacious drug is ever without risks. It would not be effective if it were not fairly powerful. It is therefore a question of balancing the benefit with the risk. However, one needs to know the risk and that requires a great deal of clinical trial and other work. It is interesting that the commission states that the effective period for a pharmaceutical patent is now eight years. It is the conflict between the intention of giving 20 years and the amount of time that is actually given that has justifiably caused a good deal of anxiety in the industry and should have been causing the Government some anxiety.
Let me state one or two truths. I hope that noble Lords will forgive me if I make some points that I made to the conference in Paris 11 months ago. The pharmaceutical industry will remain competitive only to the extent that it is able to continue to finance research and development. That is what lies at the heart of the argument. If one does not see sufficient reward for the expenditures—and they are very substantial expenditures; for any one, single drug the expenditure can run into hundreds of millions of pounds before one eventually finds a product that can be put on the market—then one does not undertake the research. Alternatively—and it is a point upon which the European Commission has seized —one moves to do one's work and to exploit the results of it in countries where the patent climate is more favourable than it has been in recent years in Europe.
The Commission has drawn attention to the fact that over the past 10 years the proportion of new drugs that have emerged from the European industry has fallen. I quote from the explanatory memorandum for the proposed regulation to which the noble Lord, Lord Hacking, referred. In Part One under the general headline "Aims", paragraph 6 states:
"Over about the last 10 years there has been a fall in the number of molecules of European origin that have reached the research and development stage (40 per cent. as against 65 per cent. 10 years ago) and a slow erosion of European market shares as compared with those of the USA and Japan".
It continues:
"US and Japanese companies have, since 1984 and 1988 respectively, benefited from patent term restoration for pharmaceutical products on their national markets".
Therefore the conference paid a good deal of attention to that. It was considerably heartened when it heard the commissioner, Mr Bangemann, in the course of his speech—and he referred to these arguments —state:
"The requirements of the proper functioning of the internal market, the improvement of our competiveness compared to our trading partners, and the promotion of research in the area of

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health, are fundamental objectives which justify a proposal for a Community measure in this field.
"A legislative initiative could therefore be envisaged by the Commission for the end of this year".
We have had to wait a little longer for it than that. However I repeat what I said. It is rare to read a Commission proposal and an explanatory memorandum with which I find myself more in agreement than this. It seems to make all the points with great clarity.
One point has been made by the consultants who have been appointed by the British drug industry to look at the proposals. Messrs. Touche Ross state in their brief report:
"The UK attracts a disproportionately large share of research investment in the EC because of its innovative track record".
That is one of the most remarkable factors. Three of the very major drug discoveries that are the largest selling drugs in the world in recent years had their origin in British research laboratories. That is a matter in which the nation and the industry can take considerable pride. The report of Touche Ross continues:
"The benefits are considerable in terms of high added value, and export potential from related active manufacture and from royalties and profits to the UK-based company. It is therefore particularly vulnerable to reductions in R&D spend and well placed to obtain a share of extra R&D spend".
The noble Lord, Lord Hacking, referred to the debates that we had on the copyright legislation when we were dealing with the four-year period with regard to the licence of right. There was a very widespread agreement in the Committee at that time that there was a considerable danger that if patents lost their attraction to any greater extent we would see a reduction in the amount of R&D that was done in this country, and its transfer abroad.
There seemed to be all the arguments for supporting this regulation, which, as the noble Lord has described with great clarity, will give a maximum additional 10 years with an overall maximum of 16 years for a patent where there is a considerable period between the filing of the patent and the beginning of the exploitation. Yet one reads that there is bound to be—indeed the Commission has acknowledged this—a very great deal of opposition to it. It clearly sees that this will not be a straightforward process in the Commission. What are the arguments against and what are the answers? There are two main arguments. One is directed to cost; and, secondly, and related to that, is the question of competition and the availability of the generic products rather than the branded products where the drug industry generally obtains its return.
The Commission has this to say. These are very important arguments. I quote from the explanatory memorandum, at paragraph 24:
"The argument concerning health and social security costs is no doubt the most important. Health expenditure is rising continuously throughout the world. At the same time, the shortfalls in the social security system are a subject of concern to those with political responsibilities. It is therefore legitimate to question the possible effects of this proposal for a Regulation on costs.
"The system established by the proposal does not apply to all patented medicinal products placed on the market, but only to
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those which consist in new medicinal products. A large proportion of medicinal products sold on the market have only few innovative features, or none at all. These are not covered by the scope of the proposal. Each year, only about 50 new medicinal products are authorised worldwide. It is these that are covered by the proposal for a Directive. As for the transitional arrangement provided for in the proposal, the aim of this is to strike a fair balance between what industry needs and what can reasonably be accepted by society".
The Commission then makes an important point, particularly in relation to this country where we have the pharmaceutical price regulation scheme. It states:
"Furthermore, the proposal for regulation does not affect the Member States' ability to control the prices of medicinal products on their markets".
There is another point which it is perfectly fair to make and which was made by the Commission. If there is a long period in which to exploit your patent perhaps you can then afford to charge a lower price rather than attempting to recoup your expenditure over a shorter period by charging high prices.
I have been at both ends of the argument; at the Treasury and in the DHSS as it then was. I have never had any difficulty in accepting the argument that if we are to have a thriving and prosperous pharmaceutical industry—and that same argument applies to the Community as a whole—the industry must invest a great deal in research and development and in new products. Therefore, it must have the incentive to do that and the resources to pay for it. That will not be achieved by the continual erosion of the effective patent life; therefore, I believe that the proposal is justified on those grounds.
The other argument about generics is well answered in the explanatory memorandum. It is that if there is a shorter patent life the cheaper generic products will appear quicker on the market because there will be more competition. The Commission states:
"However, this will not mean any reduction in competition. The well known effect of the patents system is to promote competition through innovation. For this, a balance is struck between the encouragement of innovation and the making of innovations available to society by disclosing them. Generic products exist only if new medicinal products are developed and disclosed. Producers of generic products therefore have every interest in not seeing research being stifled".
The argument used by those who facilely say that we should have more generic products on the market in order to reduce the costs of prescribing to the health service can be seen to be short term. It is interesting to note that in this country a higher proportion of generic products are prescribed and sold—approximately 15 per cent.—compared with half or less in our main competitor countries in Europe.
On the grounds of cost and competition the proposal has everything to be said for it. I believe that the Department of Health will be sympathetic to the argument. Initially the battle will be with the Treasury and then with some of the interested parties who will be lobbying powerfully in Brussels to have the proposal amended. I hope that this evening my noble friend on the Front Bench will assure the House that the Government accept the principles and that they will do their best to prevent any erosion of the proposals. Furthermore, I hope he will say that they will listen sympathetically to those who

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will argue that if a patent period is intended to be 20 years why is the proposal limited to a maximum of 16 years? They should also look at the effect of the transitional proposals. I know the Commission says that it has struck a fair balance but there is an argument to suggest that the new certificate for patents already in force should be made more widely available. That would be of advantage to the United Kingdom drug companies thereby encouraging them to carry out research.
I hope that at least the Government will say that they will not countenance any erosion of this modest but important proposal as the procedures are fulfilled and that by the end of 1991 the regulation will become effective. In this country the pharmaceutical industry has a huge balance of payments surplus and is extremely valuable to the economy. Therefore, I hope that it will have the encouragement of knowing that not only has the Community made a valuable change to its legislative background but that Her Majesty's Government have given the proposals their fullest support.
7.25 p.m.
Lord Butterfield: My Lords, I apologise most sincerely to the noble Lord, Lord Hacking, for becoming caught up in a most extraordinary traffic jam between Bowring's Tower in the City and Parliament Square. In my view, there was something close to a London coronary thrombosis on the Embankment. However, I am now proud and pleased to be here.
I am also proud to speak in support of the Question tabled by the noble Lord. I am a user of pharmaceutical products. I am old and grey and when I look back on all that the world and the national pharmaceutical industry has done to help doctors and patients during the past 50 years that I have been involved in medicine I see that the scene has unrecognisably altered. I am also in a position to raise a voice in support of our industry because for six years I had the privilege and honour of being chairman of the Medicines Commission. It was set up under the Medicines Act and has an overall responsibility of keeping a watchful eye on the way in which the Act proceeds. It also heard appeals against the decisions of the medicines divisions and the various official committees.
I agree with everything said by the noble Lord, Lord Jenkin of Roding, about the industry. I support the way in which he displayed and mounted the arguments for this important development which will extend the patent life of our products. I have two reasons for encouraging the Government to proceed along these lines. The first was raised by the noble Lord, Lord Jenkin; it is the pharmaceutical price regulation committee. It was in existence when I was a member of the Medicines Commission. If ever there was an example to hold up of how a government—they representing the taxpayer, the National Health Service and to some extent the medical profession—and the industry worked together it was that committee.
I wish to pay tribute in particular to Mr. Long of the medicines division, who had a heavy
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responsibility for the discussions. Perhaps in recent years noble Lords have noticed that in photographs of Test matches people are seen wagging their fingers at the umpire. However, as regards the pharmaceutical price regulation committee I never detected any complaints or noises about the decision of the umpire: it was final. We must be grateful that the committee has been so well launched and is so well founded. It gives all sides an important assurance as regards the funding of the pharmaceutical industry and the way in which it can recoup its costs of development. The committee is an important touchstone and ensures that we are achieving the kind of fair play for which we are world renowned.
Another point which I wish to make is about our pharmaceutical industry and the increasing costs which it faces. Those costs must be recouped during the sale of the product in general but particularly during the time that the patent is operating. The noble Lord, Lord Jenkin, reminded us of the industry's contribution to our balance of payments of £2 billion per year. That will not be the final positive figure but that is a fairly remarkable performance in my view.
Apart from the dreadful thalidomide tragedy, the industry, with its regulatory bodies in this country, the United States and elsewhere, has achieved a remarkable record for the safety of products as regards the patients. We must all agree that there are no completely safe medicines. There just cannot be. I am loathe to try to develop that point further in the presence of my noble friend Lord Hunter of Newington. He was a professor of therapeutics and I have only been a professor of physic, which actually means the application of natural philosophy to the body. Therefore, I am not in his class on pharmocological matters.
Following that terrible thalidomide tragedy, that safety record is a great triumph of the application of care to the testing, reporting and combing of the reports by the civil servants over the years. Recently with some other noble Lords I had the privilege of visiting the research laboratories of our leading pharmaceutical company, Glaxo. There they showed us a file of 87 volumes which had to be sent off when a new product was to be presented for scrutiny. Each of those 87 volumes had no fewer than 500 pages. It is a great triumph on the part of the civil servants that they are able to read it and check it as quickly as they can to make sure that no mistakes are made and that there are no awkward clues about unexpected toxic effects lying in that record. However, one must not be surprised if it takes them four or eight years, or that length of time, to sort it out. In my view it is in that sphere that the pharmaceutical industry is asking for help.
It seems to me that the arguments have been very well put and there is little more that I can say. However, it is very important that I convey to your Lordships that modern pharmaceutical research and development is very close to important British research ideas, developments and, indeed, Nobel Prizes. When I was a medical student most of our effective drugs either came from the refinement of plant products or from our belief that we were having

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a direct influence on chemistry inside the cell. The new pharmaceutical products are much more concerned with working on the surface of the cells of the body.
I should like your Lordships to consider the cells of the body rather like the moon with craters. Those craters are special shapes on the surface of the cells which accept certain messages and signals. In my work we have been very interested in which part of the insulin molecule fits into its particular little slot on the surface of the cells.
All that has come out of two great British developments: first, that of the Braggs of Cambridge who won a physics Nobel Prize for work on what is called X-ray crystallography, working out the structure of molecules, including proteins. Secondly, there was the quite remarkable work of the doyen of molecular biology in Cambridge, Max Perutz, who worked out the exact sequence of the atoms in the red pigment of the blood.
I am leading your Lordships in this direction. Young laboratory workers can now take one of the craters from the moon, multiply it and then, with patience, they can crystallise repeatedly the same crater. They can then take pictures of the structure of the crater and more intriguingly, through the developments in computer technology—and let us not forget that this country has had a good deal to do with the development of computers at the University of Manchester—they can take the crater, rotate it and look at it. In that way they can actually look at the little hole in the crater into which the biological signal fits. Once they have got that far they can go into the laboratory and start to try and fashion new chemicals which will stick in that little hole and get in the way of whatever they are trying to interfere with.
I am trying to make two points to your Lordships: first, that that is a really exciting modern development. It stems from fundamental British research and the British pharmaceutical industry is well to the forefront in that application of molecular biology. It is a way in which new products can be designed without resorting to a very large animal testing programme.
I should read into the record that none of us can see any alternative to giving new drugs to living creatures. I suppose it may be argued that those of us who are over a certain age —and I expect that I have already reached it—should volunteer to be the subjects for the drug development programmes. However, we have not yet reached that stage in our Good Samaritan acts. Until that is seen to be one way in which one can help the race, it seems to me that we must inevitably recognise that we must have animal testing.
These modern techniques and the crater on the moon image which I have given to your Lordships are providing marvellous new ways of short-circuiting much of the old experimental work. However, your Lordships will not be surprised if I say that it is very expensive. At Glaxo £400 million per year is being spent on their research and development programme. For that they expect to
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have a brand new drug on average once a year and two or three important developments which will be better than a competitor's drug in any particular field of activity.
Inevitably, that will be the big poker game of the pharmaceutical world. That poker game is being played like mad in America. When the molecular biology plant had been operating for a few years in Cambridge we discovered that of the first 350 men who came to be trained in it, over 300 came from the United States. We all know where they have gone now. They have returned to America and are helping the pharmaceutical industry there.
There can be no doubt that the resources available in the research laboratories in Japan are prodigious. Even British pharmaceutical chemists who visit the laboratories in Japan are dazzled by the array of apparatus. We must be very grateful that in some mysterious way—perhaps since Sir Francis Bacon's time —we have produced these people who can think laterally and come up with new ideas. The pharmaceutical industry is a very important part of that and it is for that reason that I hope Her Majesty's Government will give serious consideration to this proposal. It is a way of ensuring that they have blood in their circulation and can stand up to international competition.
Along with our colleagues in West Germany, where there has been this great chemical industry, in France the Pasteur Institute has produced much work on antibodies; and we have our own molecular biology industry. I hope that those three old European cultures and countries are given the encouragement embraced by this proposal. We could then give the rest of the world a good run for their money. I hope we give the encouragement where it is due.
7.41 p.m.
Lord Auckland: My Lords, I join with others in thanking the noble Lord, Lord Hacking, for introducing this very important Question in his usual very persuasive manner. I am one of the few Members of your Lordships' House taking part in this debate who is not a doctor or a scientist, has no interest to declare in the pharmaceutical industry and has not been a Minister—shadow or of substance. However, my family for many generations had a great interest in the medical industry.
This is a very complicated subject. Patent law is complicated enough by itself for those who are experts, let alone those who are not. However, some very important questions arise. We shall be full members of the European Community within two years. Quite clearly the whole question of patent law is very important in any case.
There are two very important aspects to this Question. The first relates to those who are working in the British pharmaceutical industry, particularly in research and development; the second relates to drug safety. As my noble friend Lord Jenkin of Roding and others rightly pointed out, there is no such thing as a completely safe drug. If the proposals inherent in the Question of the noble Lord, Lord Hacking, are adopted, it will be an enormous

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incentive to drug safety. It will prevent, I shall not call them "private companies" but companies which have not had to go through the long process of research and drug safety, jumping the queue. That is why the Question is so important.
The British pharmaceutical industry has a fine record in its very careful drug testing. Like the noble Lords, Lord Hacking and Lord Butterfield, I too visited the Glaxo laboratories. I have a relative who actually works for that fine company. Mention has been made of such diseases as migraine, Alzheimer's disease and asthma; all are diseases for which, if it were not for medical research and the thorough testing by British pharmaceutical companies, there would be no cure. There is at least a partial cure for asthma. One must hope with regard to other conditions such as Alzheimer's disease that with the present research there will eventually be a cure. There are now remissions for many of those conditions. If it were not for the innovations of the pharmaceutical industry they could not take place.
It is vitally important that patent law is reasonably embarked upon. I cannot see that the request inherent in the Question is other than thoroughly reasoned. It would not only encourage more people to enter medical research because they would know that their products were thoroughly tested, but it would enhance the safety of drugs. Drug safety is an emotive matter. Leaving aside thalidomide, as has already been mentioned there have been one or two other very tragic occurrences. They are tragic to the families concerned, but if one looks at the record of the pharmaceutical industry as a whole there are very few such accidents—if I may use that word.
There is then the matter of allergies. One hopes that the pharmaceutical industry will eventually be able to combat the whole question of allergies, particularly in the field of cancer. If one is given a drug and another has to be prescribed, there may be side effects. That is an esoteric subject at this time on a Wednesday evening, but it is one of great importance. I also believe that an extension of patent protection can do much to enhance that research.
With those few remarks, I urge my noble friend the Minister to give very careful consideration to the views of the noble Lord, Lord Hacking, and other noble Lords with their lifetimes of experience in this very important industry.
7.47 p.m.
Lord Hunter of Newington: My Lords, perhaps I may also add my thanks to the noble Lord, Lord Hacking, for giving us this opportunity. I will be brief because there seems to be unanimity in the House and I do not disagree with that.
For the past two days, with the help of the officials of our European committee, I have been trying to obtain the English version of this regulation. We have not yet been able to obtain it and I am therefore at somewhat of a disadvantage. However, I have the paper from the European Federation of Pharmaceutical Industries Association. That tells me, as the noble Lord, Lord Hacking, and others mentioned, that what is proposed in the first instance is that there should be a regulation. The argument
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used by the European federation with regard to that regulation is that it is directly applicable and so avoids differences in the ways that EC member states implement it.
It is on that point that I wish to ask a number of questions. The European committee has wide experience of the differences between our lifestyle in this country and abroad and are spending a great deal of time studying the Single European Act. One is reminded of the position in 1963 when the Committee on the Safety of Medicines was appointed. That was the predecessor of the committee of the noble Lord, Lord Butterfield. The person chosen to chair that committee was Sir Derrick Dunlop. He was chosen for his charm and ability. I feel almost as though his spirit was abroad in this House tonight because it was his work with the pharmaceutical industry which led to their co-operation, even though they knew—and it happened—that what was to be demanded of them from the chairman of the clinical trials committee and others like myself would affect the patent life of drugs. Since then I have been pressing and had long discussions on many occasions with Mr. Long as to what can be done.
The case is substantial. It has been made forcefully and eloquently. However, I am uncertain—I ask the Minister for advice—about the effect in regard to a number of aspects. One is the recognition in our pricing of medicines committee of the research base of the companies concerned. I remember discussing this on many occasions. The result of that is a strong United Kingdom industry which contributes significantly to exports, as has been said. I am sure that that procedure is supported by the Department of Trade and Industry and the Department of Health. If we are to have a regulation imposed upon us which avoids differences on how member states do things, we want an assurance from the Government that we shall not upset a system that is so important to our industry.
I should also like to say that the way the limited list was handled by the present Secretary of State in a previous incarnation, and by the Government, was excellent. We have not prejudiced the situation of the pharmaceutical industry in this country, which is in sharp contrast to a number of other countries that I do not need to name.
There are two other factors. One is the text of the Commission's regulation and the other is the Government's recent decision to introduce a special office headed by a chief of research and development who obviously would have an interest in the pharmaceutical industry. We want to ensure that what is allowed to continue and flourish is the best of the British system. Therefore, we are seeking assurances that the Commission's proposals do not fundamentally upset this system. When replying to this Question I ask the Minister to tell the House whether the Government expect, as I believe we would expect, the new director of research and development to be a next generation Sir Derrick Dunlop with the charm to obtain the productive co-operation of the pharmaceutical industry in this important matter.
7.52 p.m.
Lord Peston: My Lords, in replying to the short debate for the Opposition I should declare an interest; namely, I am a member of the council of the Royal Pharmaceutical Society of Great Britain, which, as noble Lords will know, is the statutory body concerned with the profession of pharmacy in this country. In saying I declare an interest, I do not mean that I have a pecuniary interest but simply that I find the twin subjects of the profession of pharmacy and the pharmaceutical industry extremely interesting. They are fascinating activities, especially to an economist.
I extend the normal courtesies to the noble Lord, Lord Hacking, in thanking him for tabling this Unstarred Question but, as he knows, I believe that he has been somewhat premature in doing so. I have listened to his argument that timing is of some importance but, speaking for myself, I was only able to obtain yesterday the document that I think we are talking about by courtesy of a colleague. During that period I was fully involved until the early hours with the new health legislation and I have only had an opportunity to look at the document during the course of today.
I have to say that I have not been able to think it through or to obtain any advice. Indeed, I also have some difficulty since the document does not appear to be dated or have any authenticity about it and therefore I have no way of knowing the status of the document. I am not even certain that the document I have is the same document that others have. I hope it is. Therefore, though I understand that the noble Lord, Lord Hacking, feels he should raise this matter now, I have to say that because of my position I certainly cannot give him a view which can be defined as that of the official Opposition.
Indeed, I would be surprised if the noble Viscount, Lord Ullswater, who is replying for the Government, can give a definitive reply. Obviously he is slightly better supported with expert advice than I am but these matters must be examined with great care. I go further. I would be unhappy if the noble Viscount felt that he were able to answer the Question in terms. I would consider him to be rushing into this matter too rapidly.
Having said that, it may assist noble Lords if I outline some general principles and state my views on the subject generally. May I also say that, although I intend to support strongly the pharmaceutical industry, I am not an uncritical admirer of that industry. The industry spends an enormous amount of money on public relations and seems to have about the worst image of any industry in this country. How it managed to achieve that is slightly beyond me, but one possible explanation is that some of us find certain aspects of its marketing methods a little difficult to accept.
However, the central principle that I put forward is that we need, have had and can have in this country, a successful pharmaceutical industry. Such an industry must be research based. The industry must be profitable. Indeed, in terms of the industry itself, what success means is profitability. I hasten to add that in considering the profitability of the
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industry I, for one, believe that it is right to look at the overall position. I do not accept those who point to the fact that companies make enormous profits on individual pharmaceutical products. What those people should do is look at all the other products on which no profits are made at all and where, in fact, companies make considerable losses. I do not believe that it is a criticism of the industry to say that when companies have had success they are doing very well out of it. In an area like this, which is so full of risk and uncertainty, that is exactly what one would expect to happen. That is also a not unacceptable state of affairs if the industry is earning those profits by meeting consumer demand and, more generally, consumer needs. Therefore, I start from the position that I do not regard profit as bad in this industry.
I also add—a point made by other noble Lords—that I am fully aware of the international mobility of this industry. As my initial position referred to the United Kingdom I underline what I want to see. I am not, so to speak, a world altruist in this field. I am pleased if drugs are discovered elsewhere but I want to see a successful industry in this country.
A research-based industry does not depend solely on patent protection. Curiously enough, when we were finishing our deliberations on the student loans Bill recently I believe it was the noble Lord, Lord Adrian, who pointed out how important postgraduate research was to this country and how important was the stock of postgraduate students for this industry if it is to survive and advance. Nonetheless, one must accept that in this field innovation centrally depends on patent protection. Certainly, I accept as a general principle that this industry deserves decent treatment in the way that patent laws are applied to it. If, as the noble Lord, Lord Hacking, stated clearly, for technical reasons the law as it stands gives too limited a protection; if the period of effective protection it receives is simply shorter than the legislators originally intended for industry in general; if because of the particular nature of this industry it does not receive sufficient patent protection, then I entirely agree that something must be done. Therefore, there is no difference between us in that regard.
Incidentally, perhaps I may add a point which shows why debates of this nature are worthwhile but why one must think further. It had not occurred to me—a point made by the noble Lord, Lord Auckland —that if the industry is assisted in this way it might also improve the safety aspect. That seemed to be a persuasive point and certainly a point on which I wish to reflect further; but that would add to the case as I see it.
More than one noble Lord—certainly the noble Lord, Lord Jenkin of Roding, and also the noble Lord, Lord Hacking himself—pointed out that there is sometimes an apparent tension between the needs of the industry, on the one hand, and those of the National Health Service, on the other. The tension is there. I refer to what the noble Lord, Lord Jenkin of Roding, said in that what we seek to do is to achieve a fair balance. I regard that as possible. I am not saying that in every single year the Secretary of State gets the balance right. The industry complains

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that in the use of the pharmaceutical price regulation scheme the industry is being squeezed excessively. On other occasions it appears that the industry is not being squeezed enough.
The odd factor about the pharmaceutical price regulation scheme is that it is not a price regulation scheme per se. It is a profit control scheme, which is a fact people often forget. I believe that the Government have it within their power to get the balance right. I add very strongly here my own view at the moment. It is argued that by helping the industry we may be neglecting the needs of the NHS and the taxpayer. However, I do not accept that view as over whelming. I believe that we can both help the industry and protect the taxpayer who finances the National Health Service. We can get that matter right.
As an economist I am not saying that everything is perfect as regards pharmaceutical prices. What we have seen happening in the past few years with so-called parallel imports suggests to me that something has gone seriously wrong on pricing generally in Europe. The noble Lord, Lord Auckland, mentioned 1992 and all that. I shall be intrigued in trying to work out whether the differential prices that we see in Europe can persist beyond 1992.
Those are my broad remarks. I hope that they will be interpreted as supportive of what the regulation is. That is certainly my intention. Equally, I hope that I am regarded as a critical supporter of the industry. I place on record, as other noble Lords have done, my convinced view that the drug advances we have achieved have been enormously important in terms of improving the health of the nation. The drug advances that we wish to see will be equally important. I do not wish to detract from that.
It is rare for me to say this speaking from the Dispatch Box, but broadly speaking I agree with virtually everything that noble Lords have said. More generally, I am sure that either through your Lordships' Select Committee on Europe or in some other way we shall return to this subject. In reiterating my remark that I am not yet ready to say anything finally on the subject, I also hope that it is a matter that we can return to very soon in order to hear something more definitive from the Government. I am not saying that I am not interested in what we are about to hear from the Minister. I also hope that we shall have something more helpful to say from these Benches.
8.3 p.m.
Viscount Ullswater: My Lords, I am grateful to the noble Lord, Lord Hacking, for raising this important matter of the proper duration of patent protection to be afforded to new pharmaceutical innovations. I have listened with interest to the learned and very germane views that have been put forward on it today.
As has been outlined, new pharmaceutical products may only be marketed once they have passed safety tests and been given statutory approval. That means that for a new drug a substantial proportion of the patent life—which in the UK and
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most other EC countries is 20 years starting from the patent filing date—has often elapsed before sales of that drug can begin.
As the noble Lord, Lord Hacking, has explained, the European Commission is bringing forward proposals for a Council regulation concerning the creation of a supplementary protection certificate for medicinal products. The grant of such a certificate would extend the period of protection of a new medicinal product beyond that conferred by the relevant patent by a period equal to the patent life lost in obtaining marketing approval, minus four years, subject to a maximum extension of 10 years. The Commission believes this formula will provide new patented drugs with a period of monopoly which is consistent with that in other sectors of technology. Transitional provisions for certain drugs that have already been patented in the recent past are also envisaged.
While the certificate would have the effect of extending the period of protection afforded by an initial patent, it is presented as a notionally separate piece of industrial property from the patent. By doing so, the Commission hopes to avoid a clash with the European Patent Convention, which specifies a patent term of 20 years, and to which 10 European Community states, including the UK, as well as four non-Community states, belong.
I should point out that although the European Commission floated last year some informal preliminary proposals, its formal proposals, including an explanation of the aims behind them, have only very recently become available. Indeed, I understand that even now these proposals have not yet been officially forwarded by the Commission to the Council of Ministers. I hope that that will help the noble Lord, Lord Hunter.
The Government have not yet had an adequate opportunity to examine these formal proposals and are not in a position now to take a view on them. The noble Lord, Lord Peston, has pointed out that the Government should not be rushed in these matters. I agree with him. We are assessing them and will naturally take due account of the significant arguments for and against them, including those which have been articulated in the debate this evening.
Several arguments in support of the measure have been advanced by, among others, the European Commission itself. Foremost among these is the observation that the portion of the 20-year patent term on a new drug which elapses before marketing authorisation is granted is now on average some 12 years. As the noble Lord, Lord Jenkin of Roding, told us, that erosion of the effective patent life is continuing to increase because the necessary safety tests are becoming more time-consuming.
It is widely asserted that the patent life left —some eight years on average—is insufficient to allow the industry's heavy investment in research and development to be recouped and profits to be maintained at a level which creates the incentive for further innovation. It is argued that the owners of pharmaceutical patents should therefore be compensated, at least partially, for the loss of patent

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life which they must bear in performing safety tests, which I am sure all would accept are essential but which are nonetheless imposed as a statutory obligation. Although this burden does not bear uniquely on the pharmaceutical industry, since it also applies to, among others, the pesticide and food additive sectors, it is one which does not affect most fields of technology.
Perhaps I may say in this context that the Government fully recognise the important role played by the United Kingdom pharmaceutical industry. It makes an enormous contribution to the prevention and treatment of disease and illness throughout the world. It also makes a major contribution to the health of the UK economy, as can be measured, for example, in terms of its exports of some £2 billion and a balance of payments surplus in excess of £900 million last year.
The Government appreciate, moreover, that the success of this industry is founded on the basis of a substantial investment in research and development in this country. To enable that investment to be recouped, it is essential that effective patent protection is available for the products obtained given that they are expensive to innovate but easy for others to copy. That is also necessary for the encouragement of further innovation, particularly as new drugs become harder to invent, albeit that they will carry the expectation of greater returns.
It was indeed recognition of such considerations which led the Government to include in the Copyright, Designs and Patents Act 1988 provisions which extended from 16 to 20 years the maximum unhampered life of older pharmaceutical patents granted under the Patents Act 1949. Notwithstanding these arguments, however, the Government, in coming to a decision on the European Commission's proposals, need also to give due consideration to countervailing factors. The justification for the proposed certificate demands careful scrutiny to ensure that it is in fact necessary—that is, that continuing erosion of patent life in the United Kingdom is actually placing essential research and development at risk—and that the increased revenues which would be generated by effectively extending patent term for new drugs is indeed required to fund further innovation.
Furthermore, the Government need to examine the Commission's assertion that a longer period of drug protection is necessary in maintaining the prominence and excellence of pharmaceutical research in the Community. It has been suggested by contrast that other factors, such as the availability of highly skilled research personnel and relatively inexpensive facilities, are the keys to attracting and retaining research laboratories. Strong patent protection is arguably more important in respect of countries where products are to be manufactured or sold rather than in those where they are researched. This of course raises the related question of whether extending the monopoly conferred by a patent within the European Community market benefits non-EC patent owners more than it does EC businesses which own patents.
The broader effects of the Commission's proposals beyond those on the research-based pharmaceutical
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industry also require examination. The generic drug manufacturing industry in the United Kingdom is relatively small but should not be overlooked. The ability of that industry eventually to produce legitimately generic versions of drugs represents a keen incentive to efficiency through competition, which can provide advantages for industry and the consumer. Generic drug producers are dependent on a flow of drugs coming out of patent, which in turn requires research-based industry to be able to reap sufficient reward to be encouraged to undertake the initial innovation. However, a balance needs to be struck, since extending patent term will defer the onset of the competitive situation and may be expected to have a direct effect on drug availability and probably drug prices. I must tell the noble Lord, Lord Hacking, that in this context the Government will need to consider the implications of the proposals for the National Health Service as the principal consumer of pharmaceuticals in the United Kingdom.
The noble Lord, Lord Butterfield, has drawn our attention to the good work of the price regulation scheme and the fair balance that it has achieved. The pharmaceutical price regulation scheme is a profit control mechanism, not a price control mechanism, as the noble Lord, Lord Peston, pointed out. It provides support for research and development in the costs that it allows. It has encouraged the establishment of research and development centres and the setting up of manufacture here. Overall, pharmaceutical price regulation has balanced the needs of the patient with the needs of industry to research and discover new products. The operation of pharmaceutical price regulation mechanisms in the United Kingdom and elsewhere within the European Community will also clearly have a bearing on the proposals' possible effect on drug prices, but it is nevertheless important that the Government should give full and separate consideration to the price implications of extending the duration of drug monopoly protection.
It has been observed that measures have already been taken by the governments of the United States and Japan to provide a degree of extension of patent term for pharmaceutical products. However, it should be borne in mind that these are limited extensions, available only in particular circumstances. In the United States, for example, there is a 14-year ceiling on the patented marketing period allowed and the patentee has to be able to demonstrate diligence in order to obtain an extension. Whether or not the United States and Japanese decisions to provide for extensions represent precedents which the European Community should follow, it is notable that the European Commission's proposals are even more generous than the provisions in those countries.
I turn to one or two of the points raised in debate. My noble friend Lord Jenkin of Roding stressed the erosion of patent life. The Government accept that there has been this erosion but I point out that sales of a drug do not cease at the end of the patent cover. The pharmaceutical price regulation scheme currently allows companies to launch a new product at a price chosen by the company. Doubtless, any

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increase in patent life would need to be taken into account when setting the price in those altered circumstances.
My noble friend Lord Auckland suggested that medicines, whether branded or general, must satisfy the quality, safety and efficacy conditions before obtaining a licence and a place in the market. Drug safety is important. The increasing number of clinical tests undertaken has inevitably reduced the market life. I can assure my noble friend that this will be one of the considerations in any review.
I think I answered the question about the proposals not being submitted to the Council. A formal test has not therefore been received. As soon as one has been it will be deposited in the Library.
The pharmaceutical price regulation scheme is a voluntary agreement and its existence is recognised by the Government as providing a means of containing profits and therefore prices. Its length of life will need to be considered in the light of the movement towards 1992.
I should say to the noble Lord, Lord Hacking, that I am doubtful whether the consultative period will be over by the end of May and that the adoption will be by the Council by the end of the year.
The European Commission's proposals clearly raise a number of complex issues which the Government will wish to weigh carefully before reaching a conclusion. The views of interested circles have been, and continue to be, canvassed. The Government will take due account of those views,
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and of course of those expressed today, in judging the merits of the Commission's proposals in regard both to their general principles and to their finer details and will take a view on them at the appropriate time.
Lord Hacking: My Lords, before the noble Viscount sits down I should be grateful if he could assist the House on the timetable. He told the House that he was unable to give a definitive reply at this stage and he mentioned some doubt about whether the timetable that I put forward could be adhered to. Does he accept that there is a limited timetable for consultation with member states? Will he also be kind enough to accept that the argument that the pharmaceutical industry should have an extension to its patent protection period is hardly new? In those circumstances can he tell the House when the Government will be ready to give their response; and when they are ready, whether they will make their response public?
Viscount Ullswater: My Lords, I think the answer to that request is no. I have outlined the position in which the Government find themselves. The consultation period is taking place at present. I am afraid that I cannot go further in informing the noble Lord or the House as to when that period will be completed or what the next step will be.
House adjourned at twenty minutes past eight o'clock.