Lords Sitting of 2 July 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 Chester.

Road Safety: Third Brake Light
Baroness Macleod of Borve Baroness Macleod of Borve asked Her Majesty's Government:
Whether, in the interests of road safety, they will encourage the use of a third brake light in the rear windows of cars and taxis.
Viscount Davidson: Yes, my Lords. The Government have proposed amendments to the European standards for the installation of lights on cars. If these amendments were agreed, the additional stop lamp could be required by any member state choosing to do so. Unfortunately, it has not so far been possible to obtain agreement in the European Community to these amendments, as some other member states have opposed them. The subject is due to be discussed again, at our instigation, in Brussels on 13th July.
Baroness Macleod of BorveMy Lords, I thank my noble friend the Minister for that very encouraging reply. I wish the Government luck in the discussions. However, can he say, first, whether any of our well-known organisations are encouraging this step here? Secondly, is it correct that any individual citizen can put a brake light, as I have done, in the rear of his car?
Viscount Davidson: My Lords, I shall deal first with my noble friend's second question. The answer is, yes. However, as regards her first question, I am not sure which organisations she has in mind, but I can tell her that the British School of Motoring has fitted a third brake light to the whole of its fleet of Metros. The school has found that such action has resulted in an 18 per cent. reduction in rear-end collisions. The House can draw its own conclusions from that information.
Lord Strathcarron: My Lords, is my noble friend aware that in New York an experiment was carried out whereby half the cabs were fitted with an additional high rear light while the others were not? Is he further aware that the accident rate for the ones fitted with the extra light at the rear was very much lower than that for those cabs which were not so equipped?
Viscount Davidson: My Lords, I am grateful to my noble friend for that information. I can tell the House that the United States and Canada require the additional brake light, while the United Kingdom, Denmark, Ireland and the other Scandinavian countries allow it; but all the other EC states prohibit its installation.
Lord Carmichael of Kelvingrove: My Lords, I think that we all accept the fact that this is a safety measure. However, can the Minister say whether any attention has been paid to the fact that many of these lights appear—at least, to me—to be far too intense and that they can be rather disturbing to some people? Moreover, although I am taking the matter a little further than the issue of rear-end collisions, can he say whether anything has transpired from the experiment with road marking to keep vehicles a decent distance apart? I believe that there is an experimental stretch of road which is being used for this purpose. I appreciate the fact that this is slightly wide of the Question on the Order Paper, but it is aimed at the same basic effort to stop rear-end collisions.
Viscount Davidson: My Lords, the noble Lord asks a most interesting question. However, as he said, it goes slightly wide of the Question on the Order Paper. Nevertheless, I shall write to him on the matter.
Last year, my noble friend Lord Brabazon of Tara said that to avoid dazzle we were proposing that in future stop lamps fitted in the rear windscreens of new cars should be half of the intensity of standard stop lamps. I can now tell the House that the regulations were duly made last year to that effect, so that in future such lights will not be dazzling.

Eastern Europe: Aid
2.40 p.m.
Lord Rodney Lord Rodney asked Her Majesty's Government:
What measures they are taking to help Eastern Europe.
The Minister of State, Foreign and Commonwealth Office (Lord Barbazon of Tara): My Lords, we are helping Poland, Hungary, Czechoslovakia and the German Democratic Republic bilaterally through the Know How Fund. This will be extended to other countries once they are fully committed to reform. We also contribute to multilateral aid, including the European Community's structural aid and European Investment Bank lending for Poland and Hungary, food and humanitarian help for Poland and Romania, debt relief, the stabilisation fund for Poland and the new European Bank for Reconstruction and Development.
Lord Rodney: My Lords, I thank my noble friend the Minister for that Answer. It should be appreciated that this country took a lead in this idea which, I understand, is being followed by many other European countries. However, can he tell the House what other resources are being devoted to this fund?
Lord Brabazon of Tara: Yes, my Lords. We certainly took a lead so far as concerns Poland; indeed, we were the first in the field with the Know How Fund. We started with individual country pledges—for example, £50 million for Poland and £25 million for Hungary. However, now that the programme has been extended to include other

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countries, separate country pledges are less relevant and could restrict room for manoeuvre in responding to the needs of individual countries.
Lord Cledwyn of Penrhos: My Lords, as the noble Lord knows, the Dublin summit set up a study by the European Commission, involving the IMF, the World Bank and other organisations which he mentioned in his initial reply and in consultation with the Soviet Union, to study or to ascertain how best to assist that country in creating economic stability in that crucial part of the world. Does the Minister agree that the current discussions in Moscow make it clear beyond doubt that that study could be of historic importance? Further, can the Minister tell the House when that study is likely to be completed and to what extent Her Majesty's Government are committed to comply with any of its conclusions, provided that they are reasonable?
Lord Brabazon of Tara: My Lords, the noble Lord is certainly right in that it was agreed at the Dublin summit that this problem required close examination before we decided on the remedies—hence the Council's decision to ask the Commission to initiate a study involving experts from the international financial institutions. As he said, this is certainly of great importance. However, I am not quite sure about its timing. I know that the Commission has been asked to carry out this task as quickly as possible, but I am not sure about the expected date of completion. Naturally, when the recommendations are available, we shall look closely at them with a view to participation.
Lord Boyd-Carpenter: My Lords, is it not difficult to justify giving aid to the Soviet Union while that country continues to maintain its present high level of defence expenditure which takes a substantial proportion of its national product?
Lord Brabazon of Tara: My Lords, that my well be the case. The Soviet Union is a potentially rich country which has been subject to over 70 years' mismanagement on a monumental scale. Economic help can make no sense until there is real economic reform to support.
Lord Cledwyn of Penrhos: My Lords, is it not the case that if we do not encourage moderate policies in the Soviet Union the arms to which the noble Lord referred may well soon be used?
Lord Brabazon of Tara: My Lords, we are straying a little from the Question on the Order Paper. I am not sure whether Russia is included in the definition of Eastern Europe.
Lord Mellish: My Lords, are the Government pro-Gorbachev, against Gorbachev or neutral?
Lord Brabazon of Tara: My Lords, that is a different question, but we have supported Gorbachev throughout in the reforms that he has tried to make.
Lord Bonham-Carter: My Lords, will the Minister be so good as to tell your Lordships whether any steps have been taken to monitor the Know How Fund aid that we are giving and the aid that goes through the European Community to discover which type of aid is most effective and what impact it has had on the economies of the countries in question?
Lord Brabazon of Tara: My Lords, the Know How Fund is closely monitored. I could give your Lordships a list of all the projects so far allowed or in the pipeline. They are tailored mainly to what countries require and what they believe we are best placed to help them with. In respect of the European Community, the Commission is the body responsible for co-ordinating the assistance. I am sure that it will closely monitor the effects.
Lord Molloy: My Lords, does the Minister agree that whereas the Government have shown a lead in giving aid to some Eastern European countires, it might make political sense to give aid to the Soviet Union so that we might, in years to come, enjoy good trade with it? As a result we would not have to give aid but could enjoy a sensible trading agreement with that country.
Lord Brabazon of Tara: My Lords, I believe that I have dealt with the question of the Soviet Union. I have nothing further to say at the moment.
Lord Oram: My Lords, is there not a danger that aid given to Eastern Europe may be at the expense of that given to the developing countries? For instance, are not some ODA staff already being transferred from third world duties to Eastern European duties? Will the Minister give a water-tight undertaking that those people will be replaced in their original posts by people of similar calibre and experience? Is it not clear that the ODA will need more money if it is to undertake the additional duties it is being given and if the aid programme to developing countries is to go unharmed?
Lord Brabazon of Tara: My Lords, we have already given an assurance that aid to Eastern Europe, of the type that I have described today, is in addition to our existing aid programmes for other parts of the world. I am afraid that I cannot answer the noble Lord's question about where staff in the ODA come from or whether they will be returned to those duties subsequently.
Viscount St. Davids: My Lords, is it not important that we should not give aid to any former communist countries until it is clear that communism and socialism have ceased to exist in those areas? Throwing good money after bad is no way to help them. That money will be needed when they have recovered in order to give them the proper help that we wish them to have.
Lord Brabazon of Tara: My Lords, our aid and that of the Commission are tied to a number of criteria: that there should be free and fair elections in a pluralistic democracy; respect for human rights; the rule of law; the introduction of a market

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economy; and freedom of the press. So far the countries that I outlined in my original Answer have met those criteria.
Lord Whaddon: My Lords, bearing in mind the importance of moral gestures, as well as financial help, do the Government feel that the time has come to reconsider the return of General Sikorski's ashes to Poland? Will the Minister take up that question with the interested parties?
Lord Brabazon of Tara: My Lords, I am afraid that I am not in a position to reply to the noble Lord's quest ion at this moment. I have examined the issue in the past but I cannot remember the exact answer. I shall write to the noble Lord.

The Royal Shakespeare Company
2.50 p.m.
Lord Morris of Castle Morris Lord Morris of Castle Morris asked Her Majesty's Government:
What is their policy on the future of the Royal Shakespeare Company.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, the Government recognise the important role of the Royal Shakespeare Company as a national centre of excellence and one of the world's leading drama companies. The future role of the company must however be a matter for its board of management and the Arts Council as the main funding body.
Lord Morris of Castle Morris: My Lords, I am grateful to the noble Baroness for that Answer. Since the matter was last discussed in your Lordships' House, Royal Insurance has renewed its generous sponsorship yet again without producing any corresponding response from the Government. Is this because the Government still believe their subsidy to be sufficient? Or could it be because the Arts Council refuses to accept an earmarked grant?
Baroness Trumpington: My Lords, the grant to individual arts bodies is determined by the Arts Council independently of, and usually prior to, any commercial sponsorship obtained. The Government have maintained their grant to the Arts Council and sponsorship is an additional resource, not a replacement, for this. However, we welcome very much the decision of Royal Insurance to renew and to increase its sponsorship of the RSC.
Lord Beloff: My Lords, does my noble friend the Minister agree that were the Royal Shakespeare Company to put on Shakespeare properly, it would attract large audiences, particularly from the schools? It would then perhaps be able to manage without a subsidy altogether.
Baroness Trumpington: My Lords, that is a matter for the board of management of the Royal Shakespeare Company.
Lord Jenkins of Putney: My Lords, is the noble Baroness aware that—uncharacteristically—the noble Lord, Lord Beloff, is talking nonsense? Does she further agree that separation she draws between state and government support and commercial sponsorship—both of which are welcome—has always been, and will remain, important?
Baroness Trumpington: My Lords, since the Government came to power the Arts Council's grant has risen by nearly one-third in real terms. This year it has risen by 12·5 per cent.; over the next three years it will increase by 22 per cent. Economic factors will always mean that there are lean periods for arts companies, as for business in general. The fact that major arts organisations know three years in advance the expected level of their Arts Council grant means that arts companies can plan better to deal with their problems.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the noble Lord, Lord Beloff, makes a sound point? Is she further aware that I have been a regular attender at Stratford-upon-Avon every year for many years? Some young producers achieve productions so unconventional that they literally become a send-up of the work. The basic attraction of Shakespeare's wonderful plays is completely spoiled.
Baroness Trumpington: My Lords, the arts are booming as never before. Annual attendances at subsidised performances in England have increased from over 7 million in 1984–85 to over 9 million now. They are expected to rise to over 10 million next year.
Baroness Birk: My Lords, every time a Question is asked on the arts, we are all pleased to recognise the Government's great support and recognition of whichever theatre or museum is mentioned. Nevertheless, did the Minister not say that there were lean periods for arts companies? Is it right that arts companies should go through continuous lean periods and be underfunded all the time? That is the case here. It has been pointed out not only by the Priestly and Cork reports but also by the recent Wilding report. Are the Government prepared to do something about it before arts companies start to lose all the business sponsorship that has been gained?
Baroness Trumpington: My Lords, the Arts Council grant is above the rate of inflation. Funding of the RSC is a matter for the Arts Council. This financial year, the council has given the RSC an extra 11 per cent., taking its grant to over £6 million. Every organisation must operate within the resources available to it.
Baroness Birk: My Lords, should not the Government give the Arts Council more money so that it has the opportunity to give bigger subsidies?
Baroness Trumpington: My Lords, as I have just said, the Arts Council has been given more money by the Government. If the noble Baroness reads Hansard tomorrow, she will see that I gave that answer to a previous question.
Viscount Montgomery of Alamein: My Lords, is my noble friend aware that most of our distinguished actors started life in the repertory theatre? Throughout this country the large number of provincial repertory theatres are the nursery of the acting profession. Those theatres are just as worthy of support as the Royal Shakespeare Company. In view of its fame, the company is quite capable of standing on its feet.
Baroness Trumpington: My Lords, I agree that repertory is the best cradle for actors of the future. The quality of British arts is the best in the world and the capital city has an enormous variety. However, I am not just talking about London. The re-emergence of the great regional cities as centres of artistic excellence has been a splendid success over recent years. Birmingham, for example, is becoming the second city for the arts.
Lord Morris of Castle Morris: My Lords, following upon what the noble Baroness said, the value of the RSC to tourism has been conservatively estimated at about £25 million per year—
Noble Lords: Reading!
Lord Morris of Castle Morris: My Lords, can the Minister say how often officials at the OAL meet their counterparts at the Department of Employment which is responsible for tourism in order to assess that income and to assist the RSC to increase it? To put it another way, why starve this goose which lays such golden eggs?
Baroness Trumpington: My Lords, any meetings would be a matter for the board of management—
Noble Lords: Reading!
Baroness Trumpington: I am not reading—and the Arts Council itself.

Countryside Proposals: Progress
2.57 p.m.
Baroness David Baroness David asked Her Majesty's Government:
Whether they now have the information on the expected staffing and costs of the joint committee and country councils which are planned to come into being if the Environmental Protection Bill is enacted.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, work on the staffing, structure and organisation of the three new councils and the joint committee is continuing, as I explained to the noble Baroness in my Written Answer on 14th June. However, it is not yet complete and so no definitive costs are yet available.
Baroness David: My Lords, I cannot really thank the Minister for that Answer because it is not satisfactory. He told me in the Written Answer that
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work was being undertaken by the Government and the existing agencies on the staffing, structure and organisation of the new councils and the joint committee. Can he say whether the result of that work will be available before we go into Committee on Part VII of the Bill on Wednesday?
Lord Hesketh: My Lords, I fear that I shall have to give the noble Baroness what she will see as a second unsatisfactory answer. Work is proceeding, but I cannot give a guarantee that the result will be ready by Wednesday.
Baroness Nicol: My Lords, is it the Government's expectation that the new councils will be ready to start work on 1st April 1991? If the answer is yes, what steps are being taken to acquire and to finance the extra staff that will be needed? Is the Minister aware that the Worldwide Fund for Nature has calculated that in Scotland alone a further £10 million will be required this year to make the extra provision for staffing in April 1991?
Lord Hesketh: My Lords, I shall answer the last part of the noble Baroness's question first. I am well aware of that figure. However, I must remind your Lordships that the figure assumes a more than doubling of the number of staff required which we consider over optimistic, to say the least. In answer to the first part of the noble Baroness's question, the Government have already allowed an extra £1·4 million this year towards the cost of the changes.
Lord Moran: My Lords, is it the case that a report by the Nature Conservancy Council and outside consultants has estimated that the re-organisation will require an extra 400 permanent posts in order to deliver the same amount of nature conservation work as is available now? Is the Minister further aware that if statutory obligations are to be fulfilled an extra 600 posts will be needed? Will he consider placing this report, if it exists, in the Library of the House?
Lord Hesketh: My Lords, the Government have a responsibility to the taxpayer. However, we will take into account all the information that is placed in front of us. In the carrying out of their responsibilities, the Government are aware that there will be an increase in costs.
Lord McIntosh of Haringey: My Lords, will the Minister now acknowledge that that series of unsatisfactory answers has blown a gaping hole in the amendments which he has put down for the next day of the Committee stage of the Environmental Protection Bill? Those amendments were available in print only this morning. How can the Government propose a joint committee when they do not have the faintest idea what the staffing costs will be?
Lord Hesketh: My Lords, that is far from the truth. The Government committed £1.4 million this year in preparation for the changes that will take place. I said in an entirely satisfactory reply that the Government are aware that costs will increase. The changes are to be carried out because we wish to get

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the job done better. We would not have achieved that if we had not at the same time increased the true level of expenditure by 160 per cent. since the introduction of the 1981 Act.
Baroness Carnegy of Lour: My Lords, if the staffing of the joint committee proves to be the problem that noble Lords opposite suggest, are the Government open to the possibility of returning to their original proposals, which were that the chairmen for England, Scotland and Wales should simply liaise in a non-statutory way as and when required, as other organisations in the United Kingdom do so satisfactorily?
Lord Hesketh: My Lords, at the moment we are hoping to proceed as planned.
Baroness David: My Lords, will the Minister say whether the Treasury has agreed to any sum? Is he aware that we do not wish to be told after a certain length of time that resources will not be adequate because the Treasury will not agree to them?
Lord Hesketh: My Lords, it is rather hard to get the Treasury to agree to a figure before we have established what the figure is.

Enterprise and New Towns (Scotland) Bill
3.2 p.m.
The Minister of State, Scottish Office (Lord Sanderson of Bowden): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Enterprise and New Towns (Scotland) Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 23,

Schedule 3,

Clauses 24 and 25,

Schedule 2,

Clauses 26 to 38,

Schedules 4 and 5,

Clauses 39 and 40.—(Lord Sanderson of Bowden.)

On Question, Motion agreed to.

Road Traffic (Temporary Restrictions) Bill
Read a third time, and passed, and returned to the Commons with amendments.

Social Security Bill
3.3 p.m.
Lord Denham: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Social Security Bill, has consented to place Her prerogative and interest, so far as they are
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affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Henley.)
On Question, Bill read a third time.
Clause 1 [Attendance allowance for the terminally ill]:
Lord Carter Lord Carter moved Amendment No. 1:
Page 2, line 3, leave out from ("a") to ("and") in line 5 and insert ("severe progressive and incurable disease and his life expectancy is short;").
The noble Lord said: My Lords, this subject was discussed both in Committee and on Report. This probing amendment is a final attempt to clarify the meaning of the definitions in the clause and the intention of the Government in respect of the eligibility for attendance allowance of the terminally ill. I do not propose to go over all the ground again as we have had some full discussions on this difficult and sensitive matter. However, I wish to repeat the welcome on all sides of the House for the principle behind the Government's decision to extend attendance allowance to the terminally ill.
On Report at col. 36 on 11th June the noble Lord, Lord Henley, said that if the measure did not work well enough, the Government would amend the legislation, and that the Government would monitor the situation to see how the provision worked out in practice. It would be helpful if the Minister could explain just how the monitoring system will work. Will there be some kind of review of the decisions taken by the attendance allowance boards and, if so, who will conduct the review? Will there be guidelines or guidance for the attendance allowance boards?
Finally, has the proposed claim form which the claimant's doctor will have to complete yet been drafted? The wording of the form is important because of the sensitive nature of the subject matter. The noble Lord, Lord Kilmarnock, suggested on Report that we might be able to see the form in draft. As I have already said, the wording on the form will obviously be crucial. Will it be possible to see the form in draft? I emphasise that this amendment is very much a probing amendment. It is intended to tie up loose ends and obtain final clarification on these points. I beg to move.
Lord Henley: My Lords, I am grateful to the noble Lord for his welcome of this new subsection. I am also grateful to him for seeing me beforehand to tell me that this amendment was merely probing. I shall deal first with the point that the noble Lord raised as regards seeing the form in draft. I am afraid that that is not possible because we have sent it to the printers, but as soon as it comes back I shall allow him to have a look at it. I wrote to the noble Lord, Lord Kilmarnock, on this matter as he asked for reassurances on certain points and on the monitoring of the provision. I can make available to the noble

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Lord a copy of the letter that I sent to the noble Lord, Lord Kilmarnock.
We shall continue to monitor the position carefully and we shall keep information on the number of successful claims and on the number of those that are disallowed. We shall also keep figures on the types of diseases involved and on the ages of claimants, but most importantly we shall keep a careful eye on the time that is taken to process claims. Speed is of the essence in this matter. If the claims are not processed quickly, the whole point of the concession that this new section introduces is lost. In the light of the information that we shall gather, we shall always consider any need for changing the arrangements. However, that would require primary legislation. I hope those assurances are welcome. Once again I thank the noble Lord for the welcome he has expressed on many occasions for the spirit of the new subsection.
Lord Carter: My Lords, I am extremely grateful to the Minister for those remarks. I presume that if the format has gone to the printers it cannot be in draft form. I presume that the department has ordered the supply of documents that it requires. However, I am still grateful to the Minister. This is a topic that we have discussed all the way through the Bill. The various clarifications that we have received at each stage of the Bill have been helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter Lord Carter moved Amendment No. 2:
After Clause 1, insert the following new clause:
("The homeless: entitlement to benefits
.In Schedule 1A, Part I, of the Income Support (General) Regulations 1987, after paragraph 4, there shall be inserted the following—
"5. A person who has experienced a period of homelessness lasting for 7 days or more, shall be automatically entitled, except that in these circumstances entitlement would be for 3 months following the last day of homelessness.
5A. For the purposes of the above paragraph homelessness is defined as having no accommodation or having accommodation in a nightshelter, or other similar emergency short-stay hostel.".").
The noble Lord said: My Lords, this is a final attempt to get the Government to see sense as regards providing what has been termed a breathing space for homeless 16 to 17 year-olds. If accepted, the amendment would provide those homeless young people with the automatic entitlement to income support for three months to give them a chance to find a hostel place, to return home or to find somewhere to live.
We know that the Government have finally recognised this problem, at least in part, as they recently announced initiatives to deal with it. However, there is still a large gap in the necessary provision. It has long been recognised that the social security system places barriers in the way of young people who are trying to find accommodation. As I have said, the difficulties have been acknowledged in part by the Government and obviously we welcome their decision to provide the money for much needed
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permanent "move-on" accommodation in London as well as a sum of money to pay for deposits on private accommodation.
However, many 16 and 17 year-olds will be unable to take up this accommodation as they are not automatically eligible for income support to cover their essential living expenses. Experience has shown that young people moving into permanent accommodation can therefore fall into rent arrears and lose their homes. A breathing space for these youngsters is essential if they are to obtain a YTS place or a job. We are advised by Shelter that 40 per cent. of the young homeless become homeless after leaving care. They certainly have no home to return to. Granting these young people income support for three months will encourage those people who can provide accommodation to do so. It will save the cost of providing emergency accommodation as recently proposed by the Government. It will also help to cure what many people and the organizations concerned with this problem feel is one of the fundamental injustices in the system of income support. I beg to move.
Earl Russell: My Lords, the situation has changed slightly since we debated the amendment in Report. Since then we have had the Statement of 22nd June from the Minister's honourable friend Mr. Spicer on the problem of homelessness which takes us a little further forward. By way of a Written Answer the Minister's honourable friend said:
"The Government are determined that there should be no excuse for sleeping-out on the streets. Emergency accommodation will be made available. Sleeping rough is unacceptable. It is unhealthy and often dangerous. We must see an end to the concentrations of people sleeping out in city centres".
The word "end" was possibly optimistic. If the Minister's honourable friend accomplishes that he will achieve something that has not been achieved in recorded history.
With that single qualification I agree with what the Minister's honourable friend has said. I sympathise with it and want to help him to achieve his objective. The amendment, therefore, is brought back in that spirit because it will help to achieve the objectives that the Minister's honourable friend has set himself.
Mr. Spicer's initiative is essentially concerned with providing short-stay hostel places. That creates a first rung of the ladder. It pulls one's head above the water. However, it is not only one's head that one needs to pull above the water, particularly if the water is cold. One needs not only to get emergency accommodation in a hostel, because after that one needs to find permanent accommodation and training or regular employment.
The last time we discussed the issue I quoted the case of someone who every time she was discharged from a short-stay hostel lost the entitlement to income support and therefore could not put herself forward to a landlord or landlady and find a place to live and therefore could not obtain employment. I must remind the Government Front Bench that in the private rented sector landlords and landladies are not providing a social service. They are in business. There is no reason why they should accommodate people unless they expect to make a profit from doing

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so. Therefore, we believe that unless one provides a young person in that situation with income for a short period which makes him or her an acceptable tenant in the private rented sector there is no way out of the trap.
I am sure that my noble kinsman will again repeat the arguments about the YTS guarantee. He did so in a letter to me of 21st June and in a further letter of 24th June which, owing to delays which are by no means my noble kinsman's fault, I have only just begun to digest. In his letter of June 21st my noble kinsman said that the guarantee of an offer of a suitable YTS place applies to all 16 and 17 year-olds who want one. As a reply to a file of 70 cases in which that had not happened I find that statement a little surprising. My noble kinsman told me on 28th June that the Government have no hard evidence of cases where a YTS guarantee has not been met. I find it necessary to ask my noble kinsman what type of evidence he would regard as hard and how hard he would have to fall over it before he accepted it.
I should like to thank the Minister for his replies on two other points in his letter of 21st June. He pointed out that there is income support entitlement for 16 and 17 year-olds who are disabled, temporarily sick or caring for parents. However, I should be very grateful if he would undertake to convey that information once again in the form of guidance to benefit officers because it seems that by no means all of them are aware of it. There are a considerable number of cases where it has been brought to our attention that that has not been happening.
Even assuming for the sake of argument that the Government are correct that the YTS guarantee exists, it does not deal with the problem of accommodation. It does not deal with cases like the YTS photographic trainee whose firm suddenly went bankrupt. It does not deal with cases like those of people waiting to join the Army. My noble kinsman tells me that he is not aware of any such cases. I forwarded him details of two recently. I know that I have sent him a great pile of papers, but he will find when he looks at those papers that those cases are among them. They are all examples of ways in which, unless teenagers are guaranteed an income during the period when they try to enter training or employment, they cannot get out of the hole.
Even with the best will in the world YTS training cannot be made available instantly. It has to be suitable. I should like to confirm what my noble friend Lady Seear said in Committee. This is meant to be industrial training and therefore it is meant to be be suited to the skills and aptitudes of the person concerned. That is why it is supposed to be useful to employers, who play a significant part in the scheme. There is a real clash of meaning in the YTS between the industrial training element, which must be in the employers' interests, and the social service element, which must be available to everybody regardless of their suitability. It may be that there are some people who are unwilling to take on the slog of YTS training. My noble friends would regret that, but my noble friends would regard starvation as a disproportionate penalty. I am happy to support the amendment.
3.15 p.m.
Lord Boyd-Carpenter: My Lords, this is a rather unusual amendment, both in form and in substance. It takes the unusual form of using a provision in a statute to amend regulations. That is obviously an inconvenient procedure, particularly for those who will have to administer its provisions, in as much as there will be no indication in the regulations as at present printed that the statute has amended them. Nor is there anything in the statute to indicate the exact terms of the regulations which it amends. Therefore it is an inconvenient practice, but no doubt a permissible one.
The amendment goes too far. I shall leave the argument about the YTS to my noble friend the Minister because he has all the facts available to him, although I have little doubt that the assurances that he gave to the House at an earlier stage that the YTS provisions would cope with this type of situation can be repeated. That is up to him. What I dislike very much about the amendment is the use of the words "shall be automatically entitled" to income support for three months. That means that whatever the merits of the case, however much the homelessness may have been unnecessarily self-inflicted, the person concerned will be entitled to income support for three months because the provision states that it will be given automatically. That seems to me to be going too far and to be asking for the system to be abused.
Lord Henley: I thank my noble friend for speaking on the amendment and stressing the inconvenience of the form in which noble Lords are trying to achieve their ends.
On previous occasions I have outlined in some detail the Government's position regarding 16 and 17 year-olds. To recap, the Government believe that their policy towards 16 and 17 year-olds is the correct one and in the best interests of the young people themselves. The guarantee of an offer of a suitable YT place applies to 16 and 17 year-olds who want one. There is, therefore, no need for any young person to be without money. First, there are sufficient YT places throughout the country. There were some 160,000 vacancies nationally at the end of March 1990. I repeat the guarantee that I gave to my noble kinsman on previous occasions.
In passing perhaps I may touch briefly on two points that he raised. First, he mentioned the NACAB report which he quite rightly sent to me. I can give him the assurance that we shall discuss it. Officials in my department and the Department of Employment discussed that report with NACAB. But I ought to make one thing clear. The noble Earl says that we need evidence and that that report provides it. The names of individuals are not given and I do not object to that, but it is not clear from the report at what date those cases arose, whether before or after March.
The noble Earl will know that in March—I shall come to this point later—my right honourable friend the Secretary of State for Employment announced certain changes. I think therefore that it is highly relevant as to whether the cases highlighted in the NACAB report were pre-March or post-March.

1899
The second point that I should like to make is this. My noble kinsman asked for new guidance for the benefit offices as they were not doing what I had said that they ought to do. Again, perhaps he would like to come back to me with specific cases. I shall look into the matter. If the benefit offices are not performing in the manner in which they ought to be performing, the noble Earl is quite right to bring it to my attention.
As I said, there are sufficient YT places. Secondly, I should stress that income support remains payable to vulnerable groups such as the disabled and lone parents. In reply to the noble Lord, Lord Carter, who said that 40 per cent. of homeless 16 and 17 year-olds are children leaving care, the noble Lord knows that income support is available to 16 and 17 year-olds during the child benefit extension period when they have to live away from the parental home—for example, to those who are leaving care.
Thirdly, I ought to mention—again noble Lords will know this—that there is a discretionary safety net which enables income support to be paid in cases of unavoidable severe hardship.
These rules are delicately balanced to offer financial help to vulnerable youngsters without providing the incentive to leave home. If accepted, this amendment is likely to encourage some young people to sleep rough rather than look for accommodation. That would inevitably delay their entry into youth training or a job, and that cannot be to their advantage. Moreover, it might encourage some young people falsely to represent themselves as homeless in order to get benefit.
We recognise that some youngsters who are homeless or who have experienced homelessness need special consideration in the provision of a YT place. In March my right honourable friend the Secretary of State for Employment announced measures to ease access to YT which especially help the homeless. These include links between hostels accommodating homeless young people, social services departments, voluntary organisations and suitable training providers. They include a leaflet for distribution to voluntary organisations working with young people, describing YT and how to get young people into it and include the establishment of guarantee liasion officers to act as a focal point for dealing with the few cases of difficulty in getting a YT place.
The Government are seriously concerned about the young homeless. That is why they announced a balanced package of measures on 22nd June directed at helping single homeless people. It includes £15 million for immediate shelter, move-on accommodation and a rent deposit fund. Other parts of the package specifically targeted at young people include a £200,000 grant to Children's Society towards a short stay annexe to its London refuge. Measures directed at preventing young people becoming homeless also from a vital part of the package.
I cannot support this amendment because it does not seem to me to be in the best interests of the disadvantaged young people involved. The existing
1900
benefit provision, the improvements to the YT operation and the special programme to help single homeless people which I have described ensure that help is available for those who are vulnerable, especially the homeless. Consequently, no young person need be without an income.
But the Government have listened very carefully to the points made by noble Lords on the income support rules for all 16 and 17 year-olds, including the homeless, during the passage of the Bill through this House. The Government are also mindful of the representations made in another place and by various interested organisations. From the largely anecdotal evidence laid before us we have not been persuaded of the desirability of any major changes to existing rules. But we nevertheless recognise the need to have before us quantitive data on how well the rules are working in practice. I am therefore pleased to announce the Government's intention to commission independent research into the operation of benefit and YTS provisions for 16 and 17 year-olds. An announcement on the detail of the research will be made shortly.
I hope that with that assurance the noble Lord will feel able to withdraw the amendment.
Baroness Seear: My Lords, before the noble Lord sits down, he made an extremely interesting statement at the end about research being undertaken into the operation of both the social security provisions and the YTS. Will he comment on a point which my noble friend quoted me as having made before about getting the right fit in the YTS? If the training is to be taken seriously, it has to be training appropriate to the person who is being trained. That is a very important point from the employers' point of view as well as that of the youngsters.
No employer wants to have some unsuitable person pushed on to him under the training scheme because he has been told that he has to do it. Will that research go into some detail as to how well the YTS is fitting youngsters for the training that they undertake? Otherwise, it is a waste of money and time on everyone's part—the Government, the youngsters and the employers.
Lord Henley: My Lords, I am not sure that I can give the noble Baroness quite the assurance that she wants. I said that there will be research into the operation of both benefit and YTS, and I stress the YTS provisions. I hope that that will go far enough to satisfy the noble Baroness. I said that she would have to wait a while for the announcement of the detail of the research. At the moment all I can say is that there will be research into both benefit and YTS provisions for 16 and 17 year-olds. I hope that the noble Baroness will be prepared to leave the matter at that.
Lord Dormand of Easington: My Lords, before the noble Lord sits down will he say whether he agrees with the statement by his noble friend Lord Boyd-Carpenter that some homelessness is necessarily self-inflicted? I think that those were the words he used. If he agrees with that statement,

1901
would he like to say what proportion of homelessness is caused in that way?
Lord Henley: My Lords, the answer is quite obvious. It must be that some homelessness is self-inflicted. The noble Lord simply cannot deny that. If he expects me, having just announced that there will be research into this matter, to speculate on what percentage might by any definition be self-inflicted, he is obviously more naive than I thought. I cannot speculate before research has been commissioned. I can make the categoric statement that some surely must be self-inflicted.
Earl Russell: My Lords, I am sorry to keep preventing my noble kinsman from sitting down, but may I draw his attention to the fact that the cases to which I referred of people denied benefit because they were caring for sick parents or were ill are in the file which I sent to him on 11th June? Cases arising since March are being prepared and will be sent to him shortly.
Lord Henley: My Lords, I thank the noble Earl for that statement. I repeat that officials in my department and the Department of Employment will be discussing that report with NACAB. I ought to say however that it was not clear to us when we received that report whether the cases were pre-March or post-March. The question of whether they are pre-March or post-March is very important because my right honourable friend the Secretary of State for Employment announced various changes in March.
Lord Carter: My Lords, there are occasions when Ministers come to the Dispatch Box when we wonder whether they are living in the same world as the rest of us, especially when we hear of self-inflicted homelessness and encouraging youngsters to sleep rough. That may well be the case in a tiny minority of cases. However, I am not a lawyer, but I am told that hard cases make very bad law.
With regard to the survey, we have been down this road before. Those of us who have been active in the disability world remember the saga of the OPCS survey which was set up and which prevented any movement on legislation to help the disabled for some three, four or five years. When legislation finally emerged, only about 800,000 out of 6·5 million disabled people were helped. If the Government are setting up a survey, it is almost certainly an excuse for inaction.
One point that I should make is that no change in the overall government policy is required by this amendment. In 1989 the Government agreed income support entitlement to residents in night shelters. This new clause is simply an extension of that entitlement. It takes in other forms of temporary accommodation such as hostels and hotels for young people who have experienced a week of homelessness.
It is clear that we are not able to change the mind of the Government on this matter. All the organisations concerned with this problem have advised us of the seriousness of the situation. I think
1902
that the best thing to do is to ask the opinion of the House.
3.30 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 75; Not-Contents, 108.

DIVISION No.1

CONTENTS

Addington, L.

Kinloss, Ly.

Ardwick, L.

Leatherland, L.

Aylestone, L.

Listowel, E.

Birk, B.

Llewelyn-Davies of Hastoe, B.

Bonham-Carter, L.

Bottomley, L.

Lloyd of Kilgerran, L.

Brightman, L.

Longford, E.

Broadbridge, L.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

Mais, L.

Mar, C.

Carter, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Molloy, L.

Clinton-Davis, L.

Nicol, B.

Darcy (de Knayth), B.

Northfield, L.

David, B.

Oram, L.

Davies of Penrhys, L.

Pitt of Hampstead, L.

Dean of Beswick, L.

Richard, L.

Dormand of Easington, L.

Rochester, L.

Ewart-Biggs, B.

Ross of Newport, L.

Fisher of Rednal, B.

Russell, E.

Fitt, L.

Sainsbury, L.

Gallacher, L.

Seear, B. [Teller.]

Galpern, L.

Serota, B.

Graham of Edmonton, L. [Teller.]

Shackleton, L.

Shannon, E.

Grey, E.

Shaughnessy, L.

Grimond, L.

Shepherd, L.

Halsbury, E.

Stallard, L.

Hampton, L.

Stedman, B.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Henderson of Brompton, L.

Strabolgi, L.

Hirshfield, L.

Thomson of Monifieth, L.

Hollis of Heigham, B.

Tordoff, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Hunt, L.

Wallace of Coslany, L.

Jay, L.

Walston, L.

Jenkins of Putney, L.

Wigoder, L.

John-Mackie, L.

Williams of Elvel, L.

Kearton, L.

Wilson of Rievaulx, L.

NOT-CONTENTS

Allenby of Megiddo, V.

De Freyne, L.

Allerton, L.

Denham, L. [Teller.]

Ampthill, L.

Dudley, B.

Annaly, L.

Eccles of Moulton, B.

Arran, E.

Effingham, E.

Auckland, L.

Ellenborough, L.

Beloff, L.

Elliot of Harwood, B.

Belstead, L.

Elton, L.

Bessborough, E.

Erroll, E.

Blatch, B.

Erroll of Hale, L.

Blyth, L.

Ferrers, E.

Borthwick, L.

Flather, B.

Boyd-Carpenter, L.

Fraser of Carmyllie, L.

Brabazon of Tara, L.

Fraser of Kilmorack, L.

Brigstocke, B.

Gainford, L.

Brougham and Vaux, L.

Goold, L.

Butterworth, L.

Gridley, L.

Campbell of Croy, L.

Hailsham of Saint Marylebone, L.

Carnegy of Lour, B.

Carnock, L.

Harmar-Nicholls, L.

Cavendish of Furness, L.

Havers, L.

Clanwilliam, E.

Henley, L.

Cottesloe, L.

Hesketh, L.

Cox, B.

Hives, L.

Davidson, V. [Teller.]

Home of the Hirsel, L.

1903

Hood, V.

Peyton of Yeovil, L.

Hooper, B.

Porritt, L.

Howe, E.

Quinton, L.

Ironside, L.

Rankeillour, L.

Jenkin of Roding, L.

Reay, L.

Kimball, L.

Renton, L.

Kinnaird, L.

Rodney, L.

Long, V.

Romney, E.

Lucas of Chilworth, L.

St. Davids, V.

Lyell, L.

St John of Fawsley, L.

McColl of Dulwich, L.

Saltoun of Abernethy, Ly.

Mackay of Clashfern, L.

Sanderson of Bowden, L.

Manchester, D.

Seebohm, L.

Manton, L.

Skelmersdale, L.

Massereene and Ferrard, V.

Strange, B.

Merrivale, L.

Strathclyde, L.

Mersey, V.

Strathmore and Kinghorne, E.

Montgomery of Alamein, V.

Mountevans, L.

Sudeley, L.

Mountgarret, V.

Teviot, L.

Mowbray and Stourton, L.

Thomas of Gwydir, L.

Munster, E.

Trumpington, B.

Nelson, E.

Ullswater, V.

Norrie, L.

Vaux of Harrowden, L.

Nugent of Guildford, L.

Wade of Chorlton, L.

Oxfuird, V.

Wedgwood, L.

Pearson of Rannoch, L.

Whitelaw, V.

Peel, E.

Wise, L.

Pender, L.

Wolfson, L.

Penrhyn, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.38 p.m.
Baroness David Baroness David moved Amendment No. 3:
After Clause 1, insert the following new clause:
("Income Support: persons under 18
.In regulation 13A of the Income Support (General) Regulations 1987, for paragraphs (2)(b) and (3) there shall be substituted the following sub-paragraph—

"(b) for the period for which that paragraph applies or, if the date on which he attains the age of 18 falls within that period, for so much thereof as falls before that date".").

The noble Baroness said: My Lords, once again I come back to a modest, limited amendment about 16 and 17 year-olds living away from home. The amendment would enable them to claim income support until such time as they found a suitable youth training place or job. That would given them a little more help and a little more time. Young people must be allowed to make the occasional choice if they are to succeed in what they are going to do. Having a little more money means that it is much easier to find somewhere to live. A deposit may be asked for. If they have somewhere to live they are much more likely to obtain a job. Employers are very reluctant to take on people with no address.
Shelter has done some research. It has found that when the young have no home they have difficulty in finding a job or a suitable youth training place even though there are some youth training places in the country.
We all know about the child benefit extension, which lasts for a limited period of 12 or 16 weeks depending on the time of year, and the bridging loan, which is £15 a week and can be claimed only for eight weeks out of a 52-week period. We know about the severe hardship payments. However, of 21,218 applications between September 1988 and January 1990 over 7,000 (one-third) were refused. Those provisions are simply not adequate.
In his reply this time I hope that the Minister will not say that the Government do not wish to encourage young people to leave home but that if this extra support were available it would be an incentive to leave. I think that that is arrant nonsense. A large percentage of the homeless are those who have been in care. Centrepoint, for instance, says that 40 per cent. of the young who go to them for help have been in care. Then there are those who leave home because of having suffered abuse.
Unfortunately, the noble Baroness, Lady Faithfull, is unable to be present and sends her apologies. Like me, she was extremely disappointed, indeed angered, by the response of the noble Lord, Lord Henley, on Report. When we saw Mrs. Shephard we thought that we were getting somewhere because she made sympathetic noises. I hope that our persistence shows the seriousness with which we view the problem. There is a real problem, as is made abundantly clear by evidence from the citizens advice bureaux, Shelter and other voluntary bodies.
In his reply on Report the Minister made reference to monitoring. He said:
"We have continuously monitored the effect of the changes. We have done this through the collection of information from local DSS offices and from the severe hardship unit".—[Official Report, 11/6/90; col. 135.]
However, Shelter and other voluntary bodies carried out research "on the job", meeting the homeless at Centrepoint and other hostels where people had gone hoping to find accommodation.
I hope that the Government will be more charitable and caring and show greater understanding. As the noble Earl, Lord Russell, said, Mr. Spicer has shown some anxiety about the homeless. I was also interested to hear about the proposed research review. However, the research will take time. We want the help now to meet what is a real problem. I beg to move.
Lord Renton: My Lords, the amendment is an attempt to use primary legislation to amend secondary legislation. Whatever its merits, and I do not yet commit myself to a view, I suggest to the noble Baroness that such a course would cause great confusion on the statute book, in our book of collected statutory instruments and to the users of statutes. The point has been raised several times in recent months both during the course of this Bill and the National Health Service and Community Care Bill. I hope that the Government will always take the view that this is not the way to amend secondary legislation.
Earl Russell: My Lords, I listened with interest to the noble Lord, Lord Renton, and also the noble Lord, Lord Boyd-Carpenter, who made a similar point in relation to a previous amendment. The noble Lord, Lord Renton, knows that I listened with interest when he made the point previously. We have spoken privately about the subject. The proposal is worth thought. The difficulty is that we are led to believe that Parliament is a sovereign body. Parliament may enact what it sees fit to enact. The question is: if Parliament is not to act in this way,

1905
what method should it adopt? I am not clear of the answer.
Where a statutory instrument is in place but we believe that it has been proved by evidence to be unsatisfactory, there must be a parliamentary procedure by which we can bring about a change. The only procedure that I can see is an attempt by primary legislation. I admit that that causes difficulties. It appears that the moral to be learnt is that the Government are doing too much by regulation and too little by primary legislation. If we cannot bring about change this way, how can we do so?
I hope that in reply my noble kinsman will not repeat information about the crude total number of YTS places as he did in respect of the previous amendment. I must again stress what was said by my noble friend Lady Seear. The scheme is supposed to be a training scheme. It is no use offering a place in construction to someone who intends to train to be a garage mechanic. It is no use offering a place which is in the wrong area because the scheme does not provide enough money to enter the rented market miles away from home.
In his letter to me dated 28th June my noble kinsman dismissed entirely the geographical difficulties of providing YTS places in the Western Isles. They are a little more formidable than he suggested. I do not see that we can meet the scheme's double purpose of providing a safety net to keep people alive and of providing industrial training. There must be a safety net under the training aspect because there are plenty of problems which do not fit the scheme. For instance, the problem of people being available for a short period has been drawn to my attention. There are people who have completed a YTS course thereby proving their willingness to do so, and who have found employment, only for the firm to fold. As they were three months short of their 18th birthday they were ineligible for income support Such a situation does not deserve starvation.
Again in his letter dated 28th June, my noble kinsman stated:
"They could put in some useful time on YT in preparation for whatever is to come".
I am not clear what that phrase means. It does not sound like a training scheme. I hope that my noble kinsman will explain it to me. I do not see that the Government can continue to rely on the scheme's double purpose. They should think about how far-reaching are the implications of disentitling a group of British subjects to benefit. The right to benefit, the right to vote and the duty to pay taxes are interlocked. To be deprived of any one of those is to become a second-class citizen. I hope that the House views the possibility with considerable misgiving.
3.45 p.m.
Lord Henderson of Brompton: My Lords, I shall speak briefly in support of the amendment. However, I wish first to say a few words to the noble Lords, Lord Boyd-Carpenter and Lord Renton. I had the honour to serve on the committee considering
1906
the preparation of legislation when the noble Lord, Lord Renton, was chairman. I sympathise with what the noble Earl said. If one cannot amend subordinate legislation in this way, how can one amend it? If it cannot be amended, Parliament is not supreme. That is an unanswerable argument. I believe that the way to make such a course acceptable is to include words to the effect that the regulations shall be amended accordingly. If those simple words are included, the regulations will be entirely intelligible to anyone interested in the subject and there will be no confusion.
Lord Boyd-Carpenter: My Lords, I wish to add a few words because I have not yet taken part in the debate. The noble Lord, Lord Henderson, appeared to put forward a reasonable case but surely there is a good alternative procedure. If noble Lords desire to alter the provisions of a regulation they can table a Motion in the ordinary way requesting the Government to amend the regulation. If noble Lords can persuade the House to carry that Motion most governments will be inclined to respond. If governments do not respond they will get themselves into considerable difficulties and trouble. Surely that is the practical way of proceeding. However, the course proposed in this and a previous amendment, whereby one has a statute in the list of statutes appearing to amend a regulation in the book of regulations, will cause unnecessary confusion. There appears to be a simple way round the problem.
Lord Renton: My Lords, before the noble Lord replies to my noble friend I wish to remind him that the report of the committee of which he was such a valuable member—
Baroness David: My Lords, is the noble Lord, Lord Renton, in order?
Lord Renton: My Lords, I hope that I am in order. I understood that the noble Lord, Lord Henderson, had given way to me. I wish to make only a short point which is relevant to what was said by him and the noble Earl, Lord Russell. In that report we pointed out that primary legislation was intended to last a long time; it should not be permanent but quasi-permanent, whereas matters likely to change from time to time should be covered by regulations. As my noble friend Lord Boyd-Carpenter pointed out, they can be amended.
Lord Henley: My Lords, I do not intend to follow my noble friend—
Lord Henderson of Brompton: My Lords, I was on my feet and was interrupted by two noble Lords. I was very happy to give way but I have not finished my speech.
I say to the noble Lord, Lord Boyd-Carpenter, that his proposal, although ingenious, is not legislation. If one House of Parliament cannot propose in primary legislation to amend subordinate legislation under a previous Act, then that Parliament is not sovereign and you are taking away from the sovereignty of Parliament. That is intrinsically undesirable.

1907
According to my recollection, the Government are very happy to subscribe to this device. Parliamentary counsel use this form of legislation. That being so, I should have thought that both noble Lords would be happy that this amendment should be drafted in this way. That is all I wish to say on that.
On the substance of the amendment, like other noble Lords, I very much welcome the announcement made by the noble Lord, Lord Henley, of the proposed inquiry. However, in the interim what it is to be done for those unfortunate people? It is important that in the meantime this amendment should be accepted. I wish that the previous amendment had been accepted for the same reason.
Lord Henley: My Lords, I do not intend to follow my noble friends Lord Renton and Lord Boyd-Carpenter and the noble Lord, Lord Henderson, or my noble kinsman in this very fascinating discussion on primary and secondary legislation. I object to this amendment but not on those grounds and therefore I hope that noble Lords will bear with me if I refuse to be drawn into discussion on that matter.
When speaking to this amendment I was going to make the announcement which I made on the previous amendment apropos research. It now seems that this amendment has followed the previous amendment. Nevertheless, I repeat that we shall commission research to look into the matter of 16 and 17 year-olds and YTS. That research will be ready by early 1991. I should stress that the Government will obviously respond to that. Changes which noble Lords will remember in July, November and March emphasise our willingness to respond to research.
Perhaps I may deal with one or two other points made by noble Lords during the debate. My noble kinsman Lord Russell asked about the suitability of individual YTS places and quoted from my letter. The Training Agency will do its best to match the young person with the sort of training that is wanted. However, I believe that at the end of the day—and my noble kinsman queried part of my letter—a second choice is better than nothing at all. It is better that a young person should be doing some form of youth training rather than remain on benefit.
Baroness Seear: My Lords, the noble Lord totally misses the point. A little longer to find the right course at a small cost is better than taking the wrong course, failing on it and being a nuisance for the rest of your life.
Lord Henley: My Lords, I do not accept that. The Training Agency will do its best. There will not always be a course which is absolutely ideal for the young person in question. However, I stick to what I say. At the end of the day the second choice will always be better than nothing at all and will be better than that young person receiving income support.
My noble kinsman raised the question of offshore islands and stressed their remoteness. I quite
1908
understand that. However, I should stress that where training needs cannot be met locally, arrangements can be made for the young person to take a suitable course in a different area. If he then has to live away from home, the reasonable costs of accommodation and related travel can be met.
The Government have always recognised that some youngsters need special consideration as regards the provision of a YT place. That is why those considered vulnerable and who need time and help to secure a YT place can claim income support during the period of child benefit extension. That does not mean that we should give up on those youngsters who need help. Indeed, we cannot afford to do so.
Their problems can be accommodated in a number of ways. The first is through YTS which aims to provide quality training tailored to the needs of the individual. That includes those youngsters with special training needs such as those who lack motivation or who have disabilities. Secondly, initial training offers in-depth assessment and remedial help for young people who would otherwise have difficulty in being accepted or coping with YT. That is intended to bring youngsters with particular problems—for example, the homeless and those with severe emotional or behavioural problems—to a point at which they are ready for mainstream YT.
This amendment could discourage some young people who most need help from taking full advantage of the YT guarantee which I have repeated again this afternoon and provide them with an all too easy route back to benefit dependence. I do not feel that that is in the best interests of the young person.
I end by repeating the announcement which I made on the earlier amendment. There will be research. If necessary the Government will respond to that when it becomes available early in 1991. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment because I cannot add anything more to what I said on the previous amendment.
Lord Carter: My Lords, the noble Lord mentioned the research when speaking to this and the previous amendment. Can he tell the House who will be conducting it? We remember the promised independent review of disability benefits. That was in fact an internal review. It turned into a White Paper which was produced without any consultation with the voluntary organisations and was succeeded by a Bill published three days after the White Paper.
Lord Henley: My Lords, had the noble Lord listened to me on the previous amendment he would have heard me say that we intend to commission independent research into the operation of benefit and YTS provisions. It will be independent. I cannot say who is to conduct it because we have not yet decided who to commission. I am sure that as soon as that is decided, the noble Lord will be told about it.
Earl Russell: My Lords, will the Government consider the case for commissioning academics rather than consultants?
Lord Henley: My Lords, I am not sure that I can respond to that, knowing that my noble kinsman comes from the academic fraternity. However, I shall certainly pass on the comment to my right honourable friend the Secretary of State. When he comes to commission the research I am sure that he will consider who is the most appropriate person. If the noble Earl wishes to put forward any names from the academic community I am sure that they will be taken into account.
Baroness David: My Lords, I thank noble Lords who have supported the amendment. I am particularly grateful to the noble Lord, Lord Henderson, for rebutting the arguments of the noble Lords, Lord Renton and Lord Boyd-Carpenter.
Lord Boyd-Carpenter: My Lords, he did not. He got it wrong.
Baroness David: My Lords, the noble Lord, Lord Henderson, put forward a very good case.
The noble Lord, Lord Henley, said that the Government's objections to these amendments was not as to their form. Therefore, we can ignore that.
I am sorry that the Government's position has not shifted at all. Although of course the research is very welcome, nevertheless it will be nine months at the very earliest before anything can be done. For young people that is a long time. As the noble Earl, Lord Russell said, we need this safety net. We feel very strongly about this and I shall ask the opinion of the House.
4 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 120.

DIVISION NO. 2

CONTENTS

Ardwick, L.

Hampton, L.

Aylestone, L.

Hanworth, V.

Birk, B.

Harris of Greenwich, L.

Blackstone, B.

Henderson of Brompton, L.

Bonham-Carter, L.

Hirshfield, L.

Bottomley, L.

Hollis of Heigham, B.

Brightman, L.

Houghton of Sowerby, L.

Broadbridge, L.

Hughes, L.

Bruce of Donington, L.

Hunt, L.

Carmichael of Kelvingrove, L.

Jay, L.

Jenkins of Putney, L.

Carter, L.

John-Mackie, L.

Cledwyn of Penrhos, L.

Kearton, L.

Clinton-Davis, L.

Kinloss, Ly.

Darcy (de Knayth), B.

Leatherland, L.

David, B

Lewis of Newnham, L.

Davies of Penrhys, L.

Listowel, E.

Dean of Beswick, L.

Llewelyn-Davies of Hastoe, B.

Dormand of Easington, L.

Ewart-Biggs, B.

Lloyd of Kilgerran, L.

Fisher of Rednal, B.

Longford, E.

Fitt, L.

Mais, L.

Gallacher, L.

Mar, C.

Galpern, L.

Mishcon, L.

Graham of Edmonton, L. [Teller.]

Molloy, L.

Morris of Kenwood, L.

Grey, E.

Murray of Epping Forest, L.

Halsbury, E.

Nathan, L.

1910

Nicol, B.

Shackelton, L.

Northfield, L.

Shepherd, L.

Oram, L.

Stallard, L.

Peston, L.

Stedman, B.

Phillips, B.

Stoddart of Swindon, L.

Pitt of Hampstead, L.

Thomson of Monifieth, L.

Richard, L.

Tordoff, L.

Rochester, L.

Turner of Camden, B.

Ross of Newport, L.

Wallace of Coslany, L.

Russell, E. [Teller.]

Walston, L.

White, B.

Sainsbury, L.

Williams of Elvel, L.

Seear, B.

Wilson of Rievaulx, L.

Serota, B.

NOT-CONTENTS

Alexander of Tunis, E.

Killearn, L.

Allenby of Megiddo, V.

Kimball, L.

Allerton, L.

Kinnaird, L.

Ampthill, L.

Lauderdale, E.

Annaly, L.

Layton, L.

Arran, E.

Liverpool, E.

Auckland, L.

Long, V.

Barber, L.

Lucas of Chilworth, L.

Beloff, L.

Lyell, L.

Belstead, L.

McColl of Dulwich, L.

Bessborough, E.

Mackay of Clashfern, L.

Blatch, B.

Manchester, D.

Blyth, L.

Mancroft, L.

Boardman, L.

Manton, L.

Borthwick, L.

Massereene and Ferrard, V.

Boyd-Carpenter, L.

Merrivale, L.

Brabazon of Tara, L.

Mersey, V.

Brigstocke, B.

Montgomery of Alamein, V.

Brougham and Vaux, L.

Mountevans, L.

Butterworth, L.

Mountgarret, V.

Campbell of Alloway, L.

Mowbray and Stourton, L.

Campbell of Croy, L.

Munster, E.

Carnegy of Lour, B.

Nelson, E.

Carnock, L.

Norrie, L.

Cavendish of Furness, L.

Nugent of Guildford, L.

Clanwilliam, E.

Oxfuird, V.

Cottesloe, L.

Pearson of Rannoch, L.

Cox, B.

Peel, E.

Craigton, L.

Pender, L.

Cullen of Ashbourne, L.

Penrhyn, L.

Davidson, V.[Teller.]

Peyton of Yeovil, L.

De Freyne, L.

Porritt, L.

Denham, L. [Teller]

Quinton, L.

Eccles of Moulton, B.

Rankeillour, L.

Eden of Winton, L.

Reay, L.

Effingham, E.

Renton, L.

Ellenborough, L.

Renwick, L.

Elliot of Harwood, B.

Rippon of Hexham, L.

Elton, L.

Rodney, L.

Erroll, E.

Romney, E.

Erroll of Hale, L.

St. Davids, V.

Ferrers, E.

Saltoun of Abernethy, Ly.

Flather, B.

Sanderson of Bowden, L.

Fraser of Carmyllie, L.

Skelmersdale, L.

Fraser of Kilmorack, L.

Strange, B.

Gainford, L.

Strathclyde, L.

Goold, L.

Strathmore and Kinghorne, E.

Gridley, L.

Hailsham of Saint Marylebone, L.

Sudeley, L.

Swansea, L.

Harmar-Nicholls, L.

Teviot, L.

Havers, L.

Thomas of Gwydir, L.

Henley, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Home of the Hirsel, L.

Vaux of Harrowden, L.

Hood, V.

Wade of Chorlton, L.

Hooper, B.

Wedgwood, L.

Howe, E.

Whitelaw, V.

Jenkin of Roding, L.

Wise, L.

Johnston of Rockport, L.

Wolfson, L.

Joseph, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.7 p.m.
[Amendments Nos. 4 and 5 not moved.]
Baroness Seear Baroness Seear moved Amendment No. 6:
After Clause 14, insert the following new clause:
("Protection of carers who remain in the home
.—(1) Section 22 of the Social Security Act 1986 (Calculation of Income Related Benefits) shall have effect subject to the amendments specified in subsection (2) below.
(2) Where a person has been admitted permanently to accommodation provided under Part III of the National Assistance Act 1948, nursing home or hospital, the Secretary of State shall prescribe that in calculating the claimant's capital, any dwelling shall be disregarded if it is occupied in whole or in part by a person—

(a) whose sole or main place of residence is that dwelling; and

(b) who is aged 30 or over, was engaged for at least 35 hours a week in caring for the claimant in at least 80 of the 104 weeks immediately preceding the claimant's admission to such accommodation, nursing home or hospital, and was not employed to provide such care by any body in the exercise of its functions under any enactment.".

The noble Baroness said: My Lords, this amendment, in one form or another, must now be familiar to your Lordships. It arises not only in this Bill, but also in other Bills. The case is as strong as ever. The purpose of the amendment is to protect people whose relatives have been taken into a care institution either temporarily or permanently. The effect is that the family home cannot be sold in order to meet the costs of caring.
We accept that there are limitations upon the way in which the provisions can be applied, but it is essential that the people listed in the amendment are able to maintain their homes. Many of these people have given up their own homes in order to move in and look after the person who has been moved into the institution, temporarily or permanently. For them to lose their home is quite unreasonable.
Encouraging community care, with all the uncertainties of finance, will increasingly mean asking family and friends to take a major part in that caring. They will at least need some security that they will keep a roof over their heads after they have been caring for a while. It is to safeguard that position that we tabled the amendment. The amount of money that the Government would save by rejecting the amendment can only be negligible; the amount of good that it would do for the persons involved and the encouragement it would give to individual carers at home is very great indeed. I beg to move.
Lord Carter: I was pleased to add my name to this amendment. As the Minister is aware, it is a problem that we have discussed at various stages of this Bill and indeed of the National Health Service Bill. As I have said in the past and will repeat, successive governments of all colours have shamelessly exploited carers over the years. They save the public purse a great deal of money, and this is the sort of amendment the Government should be prepared to accept.
Lord Henley: My Lords, as the noble Baroness said, this is familiar territory and I am not sure that
1912
I can add much to what I said at earlier stages. Having said that, when we last debated this matter on Report the amendment was in a somewhat different form. I said on that occasion that I had some sympathy with the objectives but that the amendment was drawn rather too widely. I am pleased to see that this new amendment is rather more prescriptive and I congratulate the noble Baroness on her inventiveness.
Baroness Seear: My Lords, I did not draft it, someone else did.
Lord Henley: My Lords, I am sure that the noble Baroness was really responsible and she drafted the amendment rather well.
Clearly the amendment is more prescriptive and has slightly more to offer, but I fear that it is still drawn rather more widely than I would wish and that it would prove very difficult to operate with any degree of certainty. I shall refer to those difficulties in a moment. Meanwhile, I should remind the House how important it is to bear in mind the needs of the people living in residential accommodation who will have to pay for the care that they will continue to receive.
The property which is the subject of this amendment is the claimant's former home and as such the realisation of its value would do much to provide the claimant with a level of comfort he or she has perhaps not previously enjoyed. I mention this not to minimise the valuable role played by many carers but to remind the House that we must take full account of the needs of both the carer and the claimant.
I return to the difficulties that I have with this new amendment. If accepted it would mean that the claimant would not reap any benefits from the property if, for example, it was occupied by a former carer in their thirties even if they, or in some instances their partner, were in full-time work. Furthermore, as currently drafted, the amendment would enable former carers who have lived elsewhere to move into the claimant's home some time after they have entered residential care accommodation or hospital and so take advantage of the proposed disregard.
Adjudicating authorities would also have problems trying to operate this amendment. I am sure that it is right that the carer should have been engaged for a substantial number of hours each week—a minimum of 35 hours is the sort of figure I have in mind—and of course it would be in line with the qualifying conditions for invalid care allowance. However, I do not know how the adjudicating authorities could hope to prove or disprove that this 35-hour condition had been satisfied unless invalid care allowance was previously in payment and that care had been given for at least 80 out of the previous 104 weeks. I think that we have to be mindful that these events would have passed and that the adjudicating authority would be looking at them in retrospect—all in all, a rather difficult task.
The Government are very conscious of the debt they owe to carers and while I am unable to accept

1913
the amendment, even in its revised form, I repeat the assurance that I gave to the House only a matter of days ago. We are monitoring the position of carers with particular emphasis on those who would have to find other accommodation. If there are cases in which particular hardship might arise and which are not eased by the existing disregards—and we have not come across a case so far—we will certainly consider whether anything further needs to be done in regulations. Should that prove necessary, it would be a relatively straightforward matter to introduce a change by way of secondary legislation. No amendment would be needed to primary legislation.
In the meantime I am sure the House will be pleased to know that the existing regulations already fully disregard property which is occupied by a former carer who is either the claimant's partner or a relative of the family aged 60 or over or who is incapacitated. Many carers are assisted by these rules. The noble Baroness will probably be disappointed with my response but I hope she will be able to accept my reassurances and withdraw the amendment.
4.15 p.m.
Baroness Seear: My Lords, I am grateful for very small mercies and I thank the Minister for his more sympathetic approach. However, before the Bill goes back to another place perhaps he will consider one other possible option. He referred to the difficulty of administering the amendment. Will he consider people who are already drawing invalid care allowance? That will restrict the proposal to a small number of people but at least it would be a clearly identifiable number.
I do not expect the noble Lord to bargain with me across the Floor of the House, but perhaps he can say that the Government will at least think about that possibility. Having said that, and as we have lost the previous two Divisions by nearly 50 votes, I do not intend to press the amendment.
Lord Henley: My Lords, before the noble Baroness withdraws the amendment perhaps I may add that this morning we considered the question of carers who are in receipt of invalid care allowance. We endeavoured to ascertain the number of carers who are partners. In the short time available we were not able to obtain that information; it might have provided at least one interesting statistic. Certainly we shall continue to monitor the situation and, as I said, if we find that there is a problem—we do not have much evidence to show that there is—changes can be made by means of secondary legislation. I shall now sit down and allow the noble Baroness to withdraw her amendment.
Baroness Seear: My Lords, I shall endeavour to obtain some evidence for the noble Lord. I hope that if I produce it he will continue thinking and not wait for the results of a monitoring process, which can go on for a long time. If my evidence prompts his thoughts into action it will be extremely well received in many quarters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 [Minor and consequential amendments]:
Lord Carter Lord Carter moved Amendment No. 7:
Page 58, line 43, after ("applies") insert ("it shall be the duty of the Secretary of State to refer to an adjudication officer for review any such decision as is referred to in subsection (7)(b) above where, in his opinion, such a review would result in the payment of benefit, or of an increased amount of benefit, to any person and".
The noble Lord said: My Lords, this is a technical but very important amendment regarding the severe disablement allowance. The need for it arises from a recent decision by the social security commissioners concerning the interpretation of the 1987 income support regulations. The specific regulation concerned dealt with the qualifying conditions for receiving severe disablement allowance. Among those conditions was a requirement that the disabled person should not have anyone over the age of 18 living with him but certain people were not to be counted for this purpose.
One of the groups that does not count is anyone with whom the claimant "jointly occupies" the premises. The Department of Social Security interpreted this regulation to mean only anyone who is a co-owner or liable to share responsibility with the claimant or the claimant's partner for outgoings. The commissioner ruled that "jointly occupies" in the regulation should not be given the technical interpretation adopted by the department but an ordinary straightforward meaning and should apply if the persons in question who normally reside together jointly occupy the premises in the sense of equality of access and use as distinct from a situation where restrictions are imposed in relation to those matters.
The regulations were amended on 9th October 1989 as a result of the commissioners' decision, and this decision relates only to the pre-October regulations. Claimants requesting a review of the original award of income support should be entitled to benefit backdated for a year from the date of the request for a review. They should therefore be entitled to arrears of benefit for at least a year from the date of the request for a review until October 1989.
To ensure that all those severely disabled people currently in receipt of income support should be paid the benefit owed to them, the amendment seeks to impose a duty on the Secretary of State to ensure that all those claimants potentially affected have their cases referred to an adjudication officer and their entitlement to benefit reviewed. In view of the Government's increased emphasis on care in the community it is important that severely disabled people who are living in the community rather than going into hospital or institutionalised care should get all the help available, either through the carer receiving invalid care allowance or, for those managing on income support, through severe disability premium.
This is an important decision by the commissioners and it seems only just that those who have lost out as a result of the department's misinterpretation of the regulations should be compensated. I beg to move.
Earl Russell: My Lords, on behalf of the Liberal Democrat Benches I am happy to support this amendment. It involves the status of judicial decisions and therefore the entitlement to review for other claimants which may arise as a consequence of a judicial decision.
The weakness of the Government's decision is shown in the wording of the 1986 regulations. They seem to be under the impression that judicial decisions actually change the law. I believe that Regulation 72 contains the words:
"erroneous by virtue of a decision of a court of law".
However, it is not like that. The courts do not make law; they declare it. Therefore, when the courts of law declare something to be the law that means it always was the law and the department was mistaken in supposing otherwise. That is why an entitlement operating retrospectively may arise as a result of a judicial decision. I hope that is something to which the Government will continue to pay attention. I am happy to support the amendment.
Lord Henley: My Lords, I shall deal with the case that the noble Lord, Lord Carter, referred to towards the end of my speech. However, first I shall deal with the generality of the amendment, as I understand it, because it was tabled on Friday and is quite new.
The amendment would require the Secretary of State to identify all cases benefiting from a reinterpretation of the law so that they could be reviewed and payment made. Such a provision would mean that a search for past cases would have to be carried out in all instances without account being taken of the administrative and financial difficulties involved in doing so. I pause here to point out to my noble kinsman that he is quite right in saying that the courts declare the law rather than reinterpret it. However, we are dealing with the practicalities of life here. That is why I wish to set out the impracticalities surrounding the Secretary of State trawling back through every single possible case to find each person who might have benefited from what I referred to as reinterpretation of the law but which my noble kinsman referred to as a mere declaration of the law.
Documentary evidence of past claims is limited because of the routine destruction of documents. The search through past records is expensive both in terms of manpower—with costs in some cases reaching several million pounds—and in terms of the inevitable diversion of administrative resources from dealing with current claimants.
Perhaps I may state the legal position of the Secretary of State. At the moment he is under no statutory duty to conduct a search for past cases in which claims or questions have been decided by adjudication officers on a particular understanding of the law which by a subsequent decision of a commissioner or the courts is shown to have been wrong. In all cases the person concerned has a legitimate expectation that a search, within the bounds of reasonableness, will be made by the Secretary of State. He is wholly entitled to give full account to all the administrative and financial
1916
difficulties which may arise if a trawl were to be conducted.
In view of the possibility of a disaffected claimant seeking remedy via judicial review, the Secretary of State needs to be able to demonstrate that he has considered the need for a search or trawl, that all the relevant facts have been carefully weighed and that the reasoning behind a decision not to trawl is on record.
In effect, we do what we can to identify cases affected by a reinterpretation of the law, but I hope noble Lords will agree that there is a limit to how far we can reasonably be expected to go. If, for example, a reinterpretation of the law gives a small amount of benefit to a bare handful of claimants and they could only be identified by way of a complete trawl of all past and present case papers at an administrative cost of many million of pounds, I am sure that most noble Lords will agree that what this amendment would oblige the Secretary of State to do is indeed far beyond the bounds of what is reasonable. We do, after all, need to be mindful that administration should be economical, and that what we do imposes no more than a reasonable burden upon the taxpayer who eventually foots the bill for that administration.
I now refer briefly to the case of Mr. Crompton to which the noble Lord, Lord Carter, referred. In effect the noble Lord asked what impact paragraph 7 has on that case and on people like him. It depends on whether the chief adjudication officer decides to lodge an appeal and the outcome of that appeal if there is one. If the decision stands, Mr. Crompton will be paid any benefit award in full accord with the decision of the commissioner and the social security appeal tribunal to whom the appeal has been remitted, whether or not this provision is introduced.
With this provision on the statute book any claimants analogous to Mr. Crompton would have their benefit entitlement restricted to 17th May, the date when the regulation was reinterpreted by the commissioner. Since the relevant regulation was changed last October, the effect of this paragraph in the Bill would be that no one else in Mr. Crompton's position would benefit from the particular decision of the commissioner unless they themselves have also appealed to the commissioner.
I hope that explains to the noble Lord the point that he was trying to make. I also hope that what I have said about the generality of the new insertion in Schedule 5 will persuade the noble Lord to withdraw his amendment.
Lord Carter: My Lords, I understand the problem to which the Minister has referred. It is extraordinary that the department misinterpreted the regulations. This young man, Simon Crompton, suffers from Down's Syndrome. He needs constant care and supervision from his parents who are themselves retired. They do not receive any extra help for looking after him. It is extraordinary that the department interpreted the regulations in the way that it did. This is an obvious case for assistance.
We are advised that the trawl to which the Minister referred can be achieved quite simply. The Secretary of State could identify all income support claimants

1917
who are currently in receipt of an attendance allowance and who are not in receipt of a severe disability premium. The local offices could then be instructed to review the entitlement of those claimants. Obviously, if the duty was there, a great deal of work would be undertaken by the voluntary organisations who would bring the cases to the attention of the adjudication officers.
I do not intend to divide the House on this matter. A point of principle is involved here and it is very worrying indeed. We have discussed this matter a number of times and the noble Earl, Lord Russell, has drawn attention to it as well. It seems that bureaucratic efficiency and comfort is to be preferred to helping these very deserving cases. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 8:
Page 59, line 34, after ("treated") insert ("under section 51B(1) of the Social Security Act 1986").
The noble Lord said: My Lords, in moving this amendment I speak also to Amendment No. 9. I apologise to the House for bringing these two amendments forward at this stage and for not having flagged them beforehand. I wrote to the noble Lord, Lord Carter, and my noble kinsman, Lord Russell, on Friday giving them warning of what I proposed to do. These amendments are intended merely to clarify improve the drafting so as to remove any potential ambiguity in paragraph 7 as it stands at present. I can assure the House that the amendments do not alter in any way the purpose of this provision which I have already explained to the House on earlier occasions. I beg to move.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 9:
Page 60, line 32, after ("treated") insert ("under section 51B(1) of the Social Security Act 1986").
On Question, amendment agreed to.
Lord Henley: My Lords, I beg to move that the Bill do now pass. We have had a number of valuable and constructive debates on the measures in the Bill and across the field of social security legislation. I should like to pay a particular tribute to the contribution made to the proceedings by, among others, the noble Baroness, Lady Turner, the noble Lord, Lord Carter, my noble kinsman Lord Russell and the noble Baroness, Lady Seear. Last but not least, I should also like to thank my noble friend Lady Blatch for doing so much and for giving me such valuable support throughout the passage of the Bill.
Many other noble Lords and noble Baronesses have spoken on both sides of the House. It would take too long to mention all their names, but I thank them all for their contributions to this debate and for the help that they have been. As our debates have been so thorough it would not be right to detain the House overlong with my remarks about the Bill at this late, stage. I have said before that the measure before us is not a major piece of social security
1918
legislation but that its scope is nevertheless substantial. It contains both necessary fine tuning and some substantial measures to implement new policy. I ought just to reiterate some of the main themes.
We have spent some while in debate on benefits for disabled people. The Bill provides for part of the comprehensive strategy for disability benefits set out in The Way Ahead. The first set of these changes has already been introduced. These include increases in the income support and housing benefit disability and disabled child's premium; an increase in the earnings limit for invalid care allowance and an increase in the therapeutic earnings limit for invalidity benefit and severe disablement allowance. The measures in this Bill are a further step. Further measures—the new disability allowance and disability employment credit—will be introduced by April 1992. Once all of this strategy is implemented we will be giving extra help to some 850,000 people—with a net effect of increasing benefit expenditure by some £300 million. Of course this is on top of an expenditure on the long-term sick and disabled and on their carers which stands currently at nearly £10 billion per year and has almost doubled in real terms since 1979. This underlines most effectively the real strength of our commitment to disabled people.
The Bill also includes important measures to give greater protection for the members of occupational pension schemes—building on the changes which we have made in this area in recent years which have changed so substantially the climate of thinking about private pensions and about provision for retirement. The introduction of a pensions ombudsman will provide, for the first time, a realistic alternative to the High Court for individuals who have a dispute with their scheme. The Government have also tackled—in what I believe to be a fair and balanced way—the related issues of the indexation of pensions and the use of scheme surpluses. I hope that the House will now recognise how much these measures will assist the occupational pensioner both by enabling him to receive the necessary help and advice and by ensuring that the value of his pension is protected.
The Bill also includes a package of measures to improve the arrangements for the collection of maintenance for lone parents. They will mean that DSS can seek maintenance based on a realistic assessment of the costs of the lone parent's responsibility as child carer. The transfer of rights for children under a DSS order will save lone parents the trouble of going to court to get a private maintenance order. DSS action to enforce a private maintenance order in arrears for lone parents on benefit will mean quick action without the need for lone parents to approach the courts. These measures will all provide worthwhile help while we press on with our wide-ranging review of the maintenance system as a whole.
We have spent much time in debate both as regards this Bill and the National Health Service and Community Care Bill on the important subject of

1919
the benefits paid to the residents of residential care and nursing homes. We are taking what I believe to be a series of sensible and measured steps to assist in dealing with what I think we all recognise is an extremely difficult problem. I have referred on a number of occasions to the commitment made by my right honourable friend to undertake a rapid investigation into the costs of residential care and nursing homes. I am sure the House will be interested to know that we have just commissioned the management consultants Price, Waterhouse to undertake this for us.
We have also spent some time debating the social fund. I would emphasise again that the amendments in the Bill do not represent any change in policy. They simply reaffirm the basic principle of the scheme—endorsed by Parliament during the passage of the 1986 Act—that the fund should operate flexibly but within a sound financial framework. The Bill also includes a large number of other more minor provisions—and most of them have also been debated by your Lordships at some length. The Bill as a whole is part of our measured and deliberate strategy to prepare the social security system to meet the needs of the new decade. I commend it to the House.
Moved, That the Bill do now pass—(Lord Henley.)
Lord Carter: My Lords, the Minister will not be surprised to learn that I do not agree with all that he has just said. Indeed, to compare this Bill with a curate's egg would be extremely unfair to curates. There are aspects of the Bill that obviously we welcome. For example, the inclusion of a provision for attendance allowance for the terminally ill. At a number of stages of the Bill we have congratulated the Government on fulfilling the obligation they gave in last year's debates on the Social Security Bill. The House will remember that it agreed to amendments on students and benefits and on the clause concerning the recovery of damages from benefit payments. However, we could make very little progress on more fundamental issues such as administration of the social fund, benefits for 16 and 17 year-olds, and the plight of homeless families.
I have referred to the amendments that the House agreed concerning the right of students to claim social security benefits. Similar amendments were debated on the student loans Bill and it is to be hoped that the Government will not simply overturn those amendments without further and serious thought in the Commons. I can tell the Minister that the student community will be watching with great interest the way in which the Government respond to those amendments affecting students that have been agreed by this House.
The other set of student amendments that the House agreed dealt with entitlement to claim housing benefit and allowances for regional housing costs. Of particular importance is the fact that postgraduate students are not entitled to loans under the student loans scheme but are at the same time to be disqualified from claiming housing benefit. These changes to the Bill are significant because the other
1920
place has never had a proper chance to discuss the question of students being withdrawn from the benefits system. We hope that the Government will allow a full debate on these amendments when they are returned to the other place, and will not guillotine them as they did a number of important amendments concerning community care which were tabled to the National Health Service and Community Care Bill.
We have received a number of assurances from the Minister, which we certainly welcome. I am referring to those regarding attendance allowance and the terminally ill, which we have indeed discussed earlier today; the commitment, over time, to increase severe disablement allowance to the same rate as invalidity benefit; the link between youth training and automatic reinstatement of severe disablement allowance; and the assurances that were given regarding treatment of refugees and income support, when the Government said that they had some sympathy with the position that we outlined and would consider amending the rules on income support through regulations at a later date.
However, there are a number of areas where we were very disappointed. We made no improvement at all on a number of important and familiar issues such as the uprating of child benefit, which we tried in two different directions at Committee and Report stage; and the extension of mobility allowance for the severely mentally handicapped, an issue that the noble Lord, Lord Allen of Abbeydale, and I and others pressed on the Government during our deliberations on last year's Bill and indeed this year's Bill without success. I hope that the Government will be able finally to agree the figures with us on the number of people who would be affected by this, so that we may hope that at some stage we could extend the mobility allowance and have some idea of the numbers that would be affected. Those of us who have been involved with this are quite confident about the numbers that we have produced. But we know that the department has not been able to agree with us.
The administration of the social fund, the benefit rights and levels of 16 and 17 year-olds and the under-25s, the homeless families placed in board-and-lodging accommodation, all have been completely untouched by the measures in this Bill. Of course we attempted to move an amendment to help the veterans of the nuclear tests in the Pacific, and that was rejected.
Despite discussions during the passage of this Bill and the National Health Service and Community Care Bill we have achieved no help at all for existing residents in residential care. We feel that they are still to be left in danger of eviction because of a shortfall in income support. The Minister will know that the situation regarding housing benefit remains a matter of some concern with the voluntary organisations, with this business of a "notional rent" to be applied to all claims in local authority areas.
However, we have done a lot of work on the Bill. I should certainly like to thank my noble friend Lady Turner for her great expertise on pensions, which relieved me of the need to deal with that section of

1921
the Bill. I know that she will say a word later about that. Finally, I should like to thank the noble Lord, Lord Henley, and the noble Baroness, Lady Blatch, for their unfailing courtesy and good humour throughout the passage of the Bill.
We have also, as they will well know, been considering the National Health Service and Community Care Bill alongside this Bill. We have certainly seen a lot of each other in recent weeks, and in the early hours of the morning. We certainly disagreed—quite fundamentally on occasion—but we have never fallen out. The Bill leaves the House with some improvements, a substantial number of defects, and I fear with still large gaps in the provision of a proper, just and adequate system for social security. I feel that the only way to put that right would be the return of a Labour Government.
Earl Russell: My Lords, it is sometimes maintained that family quarrels are more bitter than others. I am deeply grateful to my noble kinsman for helping to ensure that that should not be so. I am grateful to him for his unfailing courtesy, his unfailing good humour and his care in dealing with points that have arisen and for keeping me on my toes by being, like his predecessor in the office, never more dangerous than when apparently on the ropes.
I should also like to thank the noble Baroness, Lady Blatch, for her good humour and for what seems to me to be an impressive gift for sensing the mood of the House and for teasing which on occasion has enlivened our proceedings a great deal. When I look back on the Bill, one of the things that I shall remember is the cushion of the noble Baroness. Speaking as one who happens to be about the right size for these Procrustean Benches, whenever in future I attack mindless bureaucratic uniformity, the cushion of the noble Baroness will come into my mind.
On the business of the Bill, I cannot speak quite so much in terms of agreement. The Bill has been with us for a long time. It had its Second Reading on 20th April. That is partly because, to my regret, this subject is sometimes treated as a Cinderella subject and has been given a lower priority than some apparently more exciting Bills. In so far as that length of time arises from the number of amendments that we have put down, I feel no need to make an apology. It is the duty of Opposition parties to notice what is amiss. At this stage, with the changes that came into effect in 1988 reaching a point where we can observe their effects, it is particularly the duty of Opposition parties to observe what they believe to be going wrong. If they did not draw that to the attention of the House, they would be failing in their duty.
I was a little sad to hear the words of the noble Lord the Lord Privy Seal, when we discussed child benefit, to the effect that he regarded it as unfortunate to bring back an amendment with which another place the previous year had expressed disagreement. Parliaments normally bring back things which governments do not like and have done so for many centuries.
Perhaps I may take a quite trivial example. The Bill for the abbreviation of Michaelmas term, which
1922
reached the statute book in 1641, had been moved continuously for some 60 years before it reached the statute book. When my great-grandfather was elected MP for the City in 1847, he was elected alongside Baron Lionel de Rothschild, who, being Jewish by religion as well as by race, was denied the right to take his seat. As any good Liberal would, my great-grandfather put down a Jewish Disabilities Bill to put the situation right. It was defeated. My great-grandfather moved that Bill in 12 consecutive Sessions before it finally reached the statute book. In the light of some of the things said since the War Crimes Bill, I think that I am doubly entitled to testify to the pride that I have always taken in that story. I hope not to have to emulate my great-grandfather, but there are some subjects on which, if I need to, I shall.
The priority issue in the Bill for me has been the issue of teenagers. I shall not dwell further on the subject now save to raise one point about the drive that has gone on over the past week against young beggars. I accept that begging is not an efficient method of relief. It is not targeted. Some of the beggars may be fraudulent. The trouble is that one never knows. However, it has been the policy of Parliament, at least since 1601 and probably going back even further, that discouragement of begging had to go hand-in-hand with an insistence that relief was available from public funds because that created the title to discourage begging. I am not sure whether that is the situation at present.
The noble Lord, Lord Boyd-Carpenter, asked at Second Reading for Opposition spokesmen to state their priorities. My first priority is that we should not have anyone reduced to starvation. Teenagers and board and lodging for the homeless where there is measured malnutrition are cases that for me come within the priority category in saying that no one should starve.
My second priority category concerns what I have come to think of as the bottle-neck amendments. I refer to people who, because of the lack of a little extra help, are restricted from climbing out of benefit and getting back into employment, which is the objective that we should all wish to see. The amendments for deposits to be payable on the social fund and for a child care disregard on income support were the two priority amendments in that category. There were many others.
In the course of debate, we uncovered a real difference of philosophy. I am reminded of the noble Lord, Lord Home of the Hirsel—to whom the House will want to wish a very happy birthday—
Noble Lords: Hear, hear!
Earl Russell:—reflecting on the difference between a half-full and a half-empty whisky bottle. Where I see a bottleneck, I see people being impeded from getting out. Where the Government see a bottleneck, they see ravening hordes craving for benefits, struggling to get in. The Government therefore try to make the bottleneck narrower and narrower: I try to make it wider and wider.
In the process, the Government are making the cost of the social security system a great deal larger

1923
than it needs to be. The issue of cost has come up many times. The irony is that I think I am perhaps more concerned about the cost of the system than the Government are. When my noble kinsman said at Second Reading that he made no apology to me for the cost of the system, I began to wonder whether I had at last avenged my great-grandfather's honour and stolen the Tory's clothes.
The main reason why the system is so expensive is that it supports too many people. I do not think that that is because they are addicts of benefit. I do not think that it is a form of nicotine. I believe that it is because the ways of escape are being made too difficult and small meannesses are having the effect of preventing people from taking employment or obtaining housing and forcing them into continuing dependence. The Government are therefore forcing themselves to spend more than they need. We cannot view with equanimity a figure of 17 per cent. of our population dependent on benefit. I cannot believe that in most cases that is because they wish to be.
The trouble here is the department's deep concern with fraud. No Liberal Democrat feels comfortable with fraud. We must stop it. The question is one of priorities. Speaking in the debate on the humble Address on 24th November 1988, my noble friend Lord Harris of Greenwich pointed out that there were 3,335 officials dealing with social security fraud while we were short of reaching the establishment of 79 in the serious fraud squad. I question whether that is a cost-effective sense of priorities. I also question whether social security benefits are quite as attractive as the department's philosophy seems to suppose and whether it perhaps risks finding itself emulating the late Sir Alan Herbert's epitaph on an archbishop:
"My predecessors, fighting sin,
Did their best to bring men in,
But I was best, without a doubt,
At keeping the unworthy out.
So when I died, the Church was one,
And that was me".
There is one major area of victory here; namely, the amendments on students. I am delighted by our success on that. When another place considers those amendments, we would be unwise to allow it the impression that, when amendments come back to us reversed, we never insist on them. We saw in the National Health Service and Community Care Bill that that idea encourages the other place to think that it can reverse any of our amendments with impunity. It risks reducing us to the status of the Social Security Advisory Committee. We may ask the Government to think again, but, if that were to become accepted, we have no power with which to encourage them to do so. To attempt to do things with no power is an unpolitical method of proceeding.
Where that approach might lead us is indicated by the Parliamentary Under-Secretary of State for Education and Science in an interview with my college student newspaper on 22nd June. He denied altogether that, on the subject of student benefits, the Social Security Advisory Committee had been critical of the Government. I was very surprised to
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hear that denial. The definition of the word "critical" in this matter is worthy of thought.
On the substance, it is most important that students should be supported above benefit level. The Minister's right honourable friend, Mr. Scott, admitted to me on 20th April that this is not at present the case. In his reply to me of 15th June, my noble kinsman stated that he did not like the charge but—noble Lords can read that reply carefully because my noble kinsman has deposited a copy of it in the Library—I do not think that he denied it.
In order to bring students up to benefit levels, we need another £400 in London; we need another £600 to £800 in areas of expensive housing in the South-East and in Edinburgh; and perhaps rather less in the North-West and in Sheffield. That is a considerable gap. The Department of Education and Science would be rather unwise to give up the entitlement because in future negotiations with the Treasury on levels of student support, it could be a very powerful hand to play. The department could always tell the Treasury, "If you do not give us the money, you will have to pay it to the Department of Health and Social Security instead; you won't save anything". In fact, the principle of a safety net would operate. Once again, that illustrates why I believe that to be a safety net from which no category of our citizens should legitimately be deprived.
The Earl of Longford: My Lords, before the noble Earl sits down, I have a question to ask him. In recent years he has become one of the most impressive Members of this House. However, since he mentioned the name of his great-grandfather, who we all associate with parliamentary reform and services to the Jewish community, will he agree that he took a very hostile line towards Roman Catholics? Will he repudiate that?
Earl Russell: My Lords, I think that we have lived beyond no popery; I think that that is a bygone which we can allow to be bygone.
Lord Boyd-Carpenter: My Lords, all social security Bills are important because they matter a great deal to certain sections of the community which are in one way or another in need or in difficulty. They are equally important because our whole social security system requires constant supervision by the Minister, constant review by Parliament and changes to be made to deal with different situations; for example, the emergence of different needs, changes in the economy and changes in the national way of life. Therefore, this is a very important Bill. I hope that the fact that your Lordships have taken a good deal of time to deal with it—and rightly so in my view—will not deter the Government from introducing future legislation as it appears necessary.
I do not believe that you can operate our social security system without fairly constant new legislation. Its ramifications are so wide and affect so many people that only considerable vigilance can deal with the situation. Equally, it may involve very difficult decisions for the Government of the day because, whatever view you take on the economic situation, there is only a limited amount of money

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available. When you have a social security Bill, a decision must be taken to determine the needs that you must meet and you will meet, and the needs, however respectable and worthy, which are not entitled to be given the highest priority. That is a most difficult situation upon which you cannot possibly hope to have unanimity either in Parliament or in public opinion. However, it is a responsibility which falls fairly and squarely upon the Government of the day and, in particular, upon the Secretary of State.
I should like to refer specifically to two items in the Bill. The first is the very sensible appointment of a pensions ombudsman. I often wonder why we use the title "ombudsman". As the duty of the ombudsman is to nag, it may well be thought more appropriate to have an ombudswoman or, in modern terminology, an "ombudsperson".
Baroness Turner of Camden: Order!
Lord Boyd-Carpenter: My Lords, I thought that that suggestion would go down well with the noble Baroness! However, having said that, this is a good appointment. It is an excellent idea because there are many cases in which the social security system causes difficulty to individuals. It is most useful to have someone to whom individuals can go and ask for support in solving their problems.
The other part of the Bill which I especially applaud—and I am conscious of the fact that I am now repeating what I said on Second Reading—is in Clause 1. I refer to the provision of attendance allowance for the terminally ill. That is a real advance which noble Lords in all quarters of the House warmly applauded. I particularly admire the sensitive provision under which the application for the benefit can be made without the knowledge of the person concerned. I can think of many cases where this provision would have been useful. I can think of one such case in my own experience where that consideration was of crucial importance. In that particular case, to have allowed the patient to know what was happening would have had a very unhappy effect on her morale. It is a first-class provision on which my right honourable friend the Secretary of State and the department are to be warmly congratulated.
Finally, I echo the remarks made by the noble Earl, Lord Russell, in approbation and approval of the way in which the Bill has been handled by my noble friends on the Front Bench. I refer to my noble friends Lord Henley and Lady Blatch. I have probably had as much experience of taking social security legislation through Parliament as anyone. I served for six-and-a-half-years as the Minister responsible in another place. I cannot recall at present how many Bills I took through. In any event, it was a substantial number. Therefore, I am in a position to appreciate and understand as well as any of your Lordships what a strain and what a difficult task it is. You are dealing with matters upon which people feel passionately, about which people feel that wrongs are perhaps being inflicted and where people feel strongly that there are hard cases which
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should be remedied and helped. It is an enormously difficult task.
I congratulate both my noble friends on the skill, the courtesy and the good temper with which they have conducted our proceedings. I am glad that my noble friend the Leader of the House is present in the Chamber. He should also know how much noble Lords on both sides of the House approve of the way in which this measure has been handled by the Ministers responsible. I should like very humbly to congratulate them and to say that the skill which they have shown in handling this difficult measure is, I am afraid, an indication that a sensible government will perhaps give them more and more employment in conducting legislation because they do it so well. However, whether my noble friends regard that as an agreeable prospect is another matter.
I am glad that the Bill has now reached its final stage, although it does not do what many Members of your Lordships' House would like to have seen done in certain respects. I fully understand what the noble Lord, Lord Carter, and the noble Earl, Lord Russell, said. However, it marks an advance of a considerable nature. It will do much good to many people who need good doing to them. I very much hope that it will soon be on the statute book.
5 p.m.
Baroness Turner of Camden: My Lords, I too express my thanks to the Minister and the noble Baroness, Lady Blatch, for the way in which they have dealt with the often hostile amendments that we have put down on this side of the House. I shall not go into the Bill in detail, because my noble friend has already done so. He dealt with the clauses relating to disability, carers, the various social security benefits and so on.
I should like to make a few remarks about the pensions part of the Bill before it leaves the House. Most of the innovations in that part of the Bill are welcomed by this side of the House. Our complaint has been that the innovations do not go far enough. They followed closely the recommendations of the Occupational Pensions Board, of which I still have the honour to be a member. The net result will be that generally much greater protection is provided to members of occupational pension schemes. I do not however believe that we have seen the end of legislation in the pension field.
I am certain that in the not too distant future we shall have to return to the issue of state pension ages because that interlocks and interacts with occupational pension provision. Clearly, the Government will have to study that matter because of the decisions of the European Court, the Barber judgment, and so on. We shall have to consider equal state pension ages, and when the Government do so I hope that they will take full account of the recommendations of your Lordships' Select Committee, which have already been before the House.
There is then the question of the indexing of occupational pension schemes. Those provisions are to be welcomed. We, as your Lordships will be aware, wanted to see full retail prices indexing, but we

1927
regard indexation up to the 5 per cent. limit as an advance on what existed and something on which it will be possible to build. We should like to see all pension schemes treated in the same way, and indexing, and provisions for it, extended to personal private pensions and contracted-out money purchase schemes. We might be able to return to that issue at the end of the quinquennium, as not exactly promised, but possibly suggested, by the Minister.
Then we have the whole subject of takeovers and mergers. Again, we hope that the Bill's provisions will act as deterrents for predators, because there has been a great deal of concern in the past that large pension surpluses have been an attraction to predators in the takeover and merger field. The Bill's provisions provide some further protection for occupational pensioners and members of other schemes.
I welcome the ombudsman/ombudswoman. I believe that he is called ombudsman because the term is a Scandinavian one. Unlike the noble Lord, Lord Boyd-Carpenter, I do not believe that women have the monopoly of nagging. As your Lordships are aware, I should have preferred a tribunal because I believe that that would be the more appropriate mechanism in a situation which of course interlocks with employment. We already have tripartite industrial tribunals dealing successfully with employment. It seems to me, and to a majority of us on the OPB, that a tribunal system would have been preferable. However, the Government have not chosen to go down that route. They have chosen instead to have an ombudsman scheme. We wish it well, and we shall monitor it carefully to see that it does the job that the Government intend it to do.
Before I leave the Bill, there is one aspect of it which caused me a great deal of distress. I am sorry to have to raise it yet again. This morning I received a letter from the solicitors acting for Mr. McKernan, the elderly pensioner whose case I raised on Report as the subject of an amendment which, unfortunately, I lost. It will be recalled that that individual, aged 74, suffered from occupational deafness. The Court of Appeal decided that he was entitled to benefit which had been denied by the DSS; and yet now we have, tucked away in the schedule, a provision which retrospectively has the effect of robbing him and other people of benefit.
I gather from my honourable friend in the other place, the Member for Manchester, Wythenshaw, whose constituent Mr. McKernan is, that there was no opportunity to debate that issue in the other place because of the guillotine procedure. That is even more unfortunate, because it means that that individual has been robbed of benefit, as have many others in a similar situation, without the other place having the opportunity to give the proposal democratic scrutiny. That is entirely regrettable. In any event, retrospective legislation is something which I understood that your Lordships' House had always set its face against. I very much regret that we were unable to do anything about that provision on Report.
1928
Having said that, it remains for me to repeat what my noble friend said: this is not the last time that we shall be looking at social security in the House. I hope that the Government will not feel disposed to use their automatic majority in the other place to undo the amendments approved in your Lordships' House.
Lord Henley: My Lords, I shall respond briefly to some of the points which have been made. The noble Lord, Lord Carter, likened the Bill to the famous curate's egg. He then went on to say that that would be unfair to curates. That was a strange remark. I looked carefully around at the right reverend Prelates because I did not think that curates could lay eggs.
Lord Carter: Only Ministers, my Lords.
Lord Henley: My Lords, I shall leave it at that. As I said, I shall deal with one or two of the points upon which I might be able to say something of use. Bearing in mind the time problems, it would be unwise of me to respond to all the points made. The noble Lord, Lord Carter, rightly asked when the decision would be made as to how housing benefit will be calculated. In the past, I assured the noble Lord that we should make a response fairly soon. I can now give him a more hopeful answer. We hope to respond by the end of the month. I hope that he will accept that that is more definite than when, in the past, it was stated that it would be soon.
The noble Lord and my noble kinsman mentioned the number of amendments carried in the House which relate to students' benefit entitlement. All I can say is we are considering carefully the implications of those amendments. My right honourable friend the Secretary of State will announce his intentions in due course. The noble Lord asked whether discussions in another place will be guillotined. That is of course entirely a matter for the other place. The noble Lord would not expect me to comment on that point now.
The noble Lord also remarked upon the Government's refusal to extend mobility allowance to all people who are not independently mobile. I remind the House that there has been a six-fold increase in the number of mobility allowance recipients since 1978–79. In April of this year we introduced arrangements extending payment of the mobility allowance to people who, as the noble Lord is aware, are both deaf and blind. From April 1992 it is intended to introduce a new disability allowance which will enable people who are not independently mobile also to qualify. We estimate that by 1993–94 some 150,000 people will qualify for the new, lower rate of help for mobility needs.
I appreciate my noble friend's remarks in welcoming the pensions ombudsman. I do not follow him by suggesting that there might be a pensions ombudswoman. My noble friend will have noticed the reaction to his remarks. I hope that, whether it is a pensions ombudsman or ombudswoman, the best person who can be found will be appointed.
The noble Baroness, Lady Turner, said that she would prefer a tribunal to a pensions ombudsman.

1929
We debated that point in Committee, I hope that she looks forward to the pensions ombudsman system working well over the coming years and I am glad that she welcomes the Bill's pensions legislation. I accept that she would like many parts of it to go further. She particularly included the state pension age and suggested that we ought to aim towards its equalisation. As I have said in the past, the matter is complex and requires careful consideration. As the noble Baroness rightly mentioned, there is the European Court ruling on the Barber case. As she knows, that does not affect state pensions but we are considering the implications of the case. We have stressed that it is for schemes themselves to take legal advice on each scheme's circumstances.
go no further on state pensions other than what I have said on many occasions in the hope that at some point we shall be able to to the demands for equal state pensions. these matters are of great complexity: they important and not something on which we should rush into premature decisions.
Baroness Phillips: My Lords, before the noble Lord sits down, will he forgive me if I ask a question? He said, "We hope at some point". May we have something more definite? This has been going on a long time; we should like something a little more definite than "we hope". By 1993 some of these people will be dead.
Lord Henley: My Lords, no, I am afraid that I cannot help the noble Baroness any further. It is a complex matter and we cannot rush into premature decisions. I have stated that the Government accept that there is a case for equalisation. How we achieve that and how long it will take is complex. We must bear in mind that there are people in their 40s who have already made plans for retirement on the basis of a pension at whatever their retirement age. It is a complex problem that cannot be solved overnight.
My noble kinsman referred to the Bill as a "Cinderella" Bill. He implied that the Government's treatment of social security matters was like the treatment of Cinderella. I do not accept this. A great deal of time has been devoted to the Bill and an unprecedented level of resources is devoted by the Government to social security. My noble kinsman went on to state in a rather peculiar fashion that the Government should spend less on social security and that would be a sign of greater success. I cannot accept that point. If the noble Earl considers those on whom the money is spent, I believe that he will agree with me that it generally goes to those in need. The general thrust of all our measures is to that end. However, to say that by removing bottle-necks we shall reduce expenditure is a great over simplification. I suspect that, if my noble kinsman's party had been in government at some time over the past 70 or 80 years and had had some experience of administering a social security system, he might have realised that the matter is not as simple as such glib remarks suggest.
Perhaps I may end by emphasising again that the changes in this Bill represent only one chapter in our continuing development of the social security
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system. This year we intend to spend—and I make no apologies for repeating the figure which the noble Earl accused me of over emphasising—some £56 billion on social security. That is well over £1 billion per week, or £20 per week for every man, woman or child in the country. The total is over one-third higher in real terms than expenditure in 1979. Nevertheless, we plan to increase that total to £60 billion next year. The total represents 30 per cent. of all public expenditure. These are enormous sums. However, I should stress that the resources at our disposal—and this is something which my noble friend Lord Boyd-Carpenter stressed—are not infinite. My right honourable friend has a clear duty to ensure that the funds are used wisely and responsibly.
It is essential for the Government to have a responsible approach. I was always told that that should be the hallmark of Opposition as well. I have therefore taken the trouble to do a little arithmetic. The total cost of the additions that noble Lords on the Opposition Benches have sought to make to the Bill during its passage through the House would amount to roughly £1.8 billion in the first full year, or a full penny on the basic rate of income tax. I believe that to offer a programme of that kind is both irresponsible and ill-considered. It is not a mark of either meanness or lack of care that the Government should reject the amendments. We stand by our record and our strategy and I commend the Bill to the House.
Lord Williams of Elvel: My Lords, before the noble Lord sits down, can he tell the House whether the calculation he announced was made by officials in his department or by Conservative Central Office?
Lord Henley: My Lords, it was made by officials in my department.
On Question, Bill passed, and returned to the Commons with amendments.

Consumer Guarantees Bill
5.15 p.m.
Baroness Ewart-Biggs: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ewart-Biggs).
On Question, Motion agreed to.
Clause 1 [The Consumer Guarantee]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 1:
Page 1, line 7, after ("guarantee") insert ("given in relation to a specified product,").
The noble Baroness said: My Lords, I beg to move Amendment No. 1. As noble Lords will recall, I spoke to it during the earlier Report stage. I therefore do not wish to take up the time of your Lordships.
On Question, amendment agreed to.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendments Nos. 2 to 5:
Page 2, line 9, after ("of") insert ("additional").
Page 2, line 9, after "charge" insert ("other than a charge made in accordance with paragraph (g) or (h) below,").
Page 3, line 5, at end insert:
("(2) In this section, a specified product means a product which is specified for the purposes of this section in regulations made by the Secretary of State.
(3) The Secretary of State shall not make regulations by virtue of this section except in relation to products which are ordinarily supplied for private use or consumption.
(4) The power to make regulations under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power —

(a) to make different provision for different cases; and

(b) to make such supplemental, consequential and transitional provisions as the Secretary of State considers appropriate.".

Page 3, line 5, at end insert:
("(2) Nothing in this section requires the guarantor to collect any product from, or return any product or replacement product to, any place outside the United Kingdom.
(3) Where the consumer who seeks to rely on a Consumer Guarantee is resident outside the United Kingdom, he may in his notice under section 1(j) above nominate an address in the United Kingdom from which the product in question is to be collected by the guarantor, and to which it or any replacement is to be returned.").
On Question, amendments agreed to.
Clause 3 [Enforceability of guarantees]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendments Nos. 6 and 7:
Page 3, line 18, leave out from ("period") to end of line 20, and insert ("indicated, as if those terms constituted a contract between the guarantor and the consumer.").
Page 3, line 20, at end insert:
("( ) The proper law of such a contract shall be deemed to be that of part of the United Kingdom in which the product was first supplied to a consumer.").
The noble Baroness said: My Lords, I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
[Amendment No. 8 not moved.]
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendments Nos. 9 and 10:
After Clause 3, insert the following new clause:
("Choice of Consumer Guarantees
.—(1) Where a product is covered by two Consumer Guarantees, one given by the producer and the other by the supplier, a consumer may invoke only one of them, but he may choose which.
(2) A consumer who has invoked one Consumer Guarantee may not then invoke the other even where he releases the guarantor under the first Consumer Guarantee from discharging any obligation under that Guarantee.").
After Clause 3, insert the following new clause:
("Title and Consumer Guarantee
.—(1) Subject to the following provisions of this section, the title to a product shall not be affected by anything done to or with it pursuant to a Consumer Guarantee covering the product.
(2) Where, pursuant to a Consumer Guarantee, the guarantor replaced a product—

(a) the title to the replaced product shall vest in the guarantor when the consumer receives the replacement, and

(b) any person who immediately before that time had any title to the replaced product shall at that time have vested in him the corresponding title to the replacement product.

1932
(3) Where any title to a replacement product is substituted for title to the replaced product by virtue of subsection (2)(b) above, references to the replaced product in any insurance policy or other document shall be treated as including references to the replacement product.
(4) Nothing in this section requires a person who had agreed to buy or otherwise acquire the replaced product, to buy or acquire the replacement product instead.").
On Question, amendments agreed to,
Clause 4 [Power to make regulations]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendments Nos. 11 and 12:
Page 4, line 3, leave out ("increase") and insert ("change").
Page 4, line 3, leave out from ("of') to ("the") in line 4.
On Question, amendments agreed to.
Clause 5 [Definitions]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 13:
Page 4, line 42, after ("1987") insert ("where that person is domiciled in the United Kingdom by virtue of any provision of the Civil Jurisdiction and Judgments Act 1982").
On Question, amendment agreed to.
Clause 7 [Acceptance of goods and opportunity to examine them]
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 14:
Page 6, line 24, leave out subsection (5) and insert:
("(5) Where the buyer deals as a customer or (in Scotland) the contract is a consumer contract, the buyer is not deemed to have accepted the goods for the purposes of subsection (4) above until he has had a reasonable opportunity of examining them for the purpose mentioned in subsection (2) above.").
Viscount Ullswater: My Lords, I believe that on the previous occasion the noble Baroness moved Amendments Nos. 9 to 13 and 15 and 16, excluding Amendment No. 14. Has that been changed?
Baroness Ewart-Biggs: My Lords, we considered Amendment No. 14 in Committee. The point at issue is whether the House agrees that there are circumstances where a consumer should lose his right to a refund under the Sale of Goods Act 1979 even before he has had a reasonable opportunity to examine the goods. The Minister responded to this at Committee stage. I am moving it once again because I cannot think of any good reason why a consumer should lose the right to a refund even before he has had a fair chance to see whether the product works satisfactorily. I beg to move.
Lord Denham: My Lords, Amendments Nos. 1 to 7 are already in the Bill. Amendment No. 8 was not moved. The noble Baroness moved Amendments Nos. 9 to the end en bloc. The Question that has been put is that Amendments Nos. 9 to 16 at the end of the Marshalled List be agreed to en bloc.
On Question, amendment agreed to.
Clause 13 [Short title, commencement and extent]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendments Nos. 15 and 16:
Page 9, line 25, leave out subsections (2) and (3) and insert:
("(2) Part I of this Act shall come into force on the day when regulations are made for the first time under section 1(4) above.

1933
(3) Part II of this Act shall come into force at the end of the period of two months beginning with the day on which it is passed.").
Page 9, line 36, leave out ("to Scotland but only Part I and this section apply").
The noble Baroness said: My Lords, I have spoken to these amendments on a previous occasion. I beg to move.
On Question, amendments agreed to.

Environmental Protection Bill
5.20 p m.
Lord Reay: My Lords, on behalf of my noble friend Lord Hesketh I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Reay.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 314A:
After Clause 94, insert the following new clause:
("Amendment to procedure in connection with registrations and a authorisations
. In subsection (1) of section 11 of the Radioactive Substances Act 1960 (referred to in this Part as "the 1960 Act") (procedure in connection with registrations and authorisations), for the words "may afford to such local authorities or" there shall be substituted the words "to any local authority within whose area the keeping, use, disposal or accumulation takes place (or is expected to take place) or which is otherwise affected by such an activity, and may afford to".").
The noble Lord said: I beg to move Amendment No. 314A standing in the name of my noble friend Lord McIntosh of Haringey. The purpose of this amendment is to insert a requirement into the 1960 Act for local authorities to be given the opportunity of a hearing as regards applications for the keeping or disposal of nuclear material and other such matters in their areas before the Secretary of State makes a decision.
At present under Section 11 of the Act the Secretary of State has discretion on whether to involve a local authority. The issues raised by the amendment have already been discussed on previous occasions. The Dudley case will be well known to the Minister. The problem encountered by Dudley Metropolitan Borough Council is paramount, stark, real and relevant. In summary, Dudley Metropolitan Borough Council took the Secretary of State to court and won. The subject of the case was an incident where the Secretary of State had granted an application under Section 6 of the 1960 Act for a waste disposal plant to treat radioactive substances on a local industrial estate close to residential development.
The issue was pursued in the House of Commons by my honourable friend Ms. Joan Walley MP, who subsequently set out the issue in a letter to a Minister. A reply to that letter has now been received. The letter from Ms. Walley of 15th May pointed out that a revised authorisation to dispose of radioactive waste at the Peartree Lane site was issued after the
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court case, again without the council being afforded the opportunity of a hearing.
The particular concern in the Dudley case related to the authorisations under Section 6 of the Act, which covers disposal of radioactive waste or material. This amendment has been drafted so that a hearing would be required for a local authority in the following instances of consents under the 1960 Act. A hearing would be required for the registration of premises on which radioactive materials are kept; the registration of mobile radioactive apparatus; the disposal of radioactive waste; and the accumulation of radioactive waste with a view to subsequent disposal.
I move this amendment at this stage to test the principle of the involvement of local authorities in a decision as representatives of the local community on this sensitive matter. It would be helpful if the Government could give any indication of their attitude to Section 6 applications. This is a probing amendment. I do not intend to press it. We may or may not come back to the issue on Report.
The Minister may well say that he has taken steps to secure that local authorities are notified of applications that have been granted in the various kinds of cases that are covered by the 1960 Act. However, that is like slamming the stable door after the horse has bolted. Notification after the event does not meet the basic objection encountered in the Dudley case, which is that if the local council has no voice, the local community is effectively deprived of any involvement in such applications.
We contend that the state of the law is highly unsatisfactory. In the Dudley case the Secretary of State conceded in court that he had not directed his mind to the question of whether the council should be afforded a hearing before he made his decision. The interpretation by the Department of the Environment of the Act had in practice been to consider whether to give a local authority a hearing only in the case where the applicant himself had chosen to take up the opportunity of a hearing. In the Dudley case the applicant did not seek a hearing and the first that Dudley heard of the authorisation was when it received a copy of it after it had been granted.
This is a serious matter. I remind the Committee that the incident at Dudley could happen anywhere else. I am indebted to Dudley Metropolitan Borough's legal officer for giving me the basic facts. The matter arose on 9th November 1988 when, without any prior consultation or discussion, the council received from Her Majesty's Inspectorate of Pollution a copy of an authorisation issued to Waste Incineration Services Limited permitting the disposal of solid and liquid organic radioactive waste at the Peartree Lane site. The accompanying letter stated:
"low level solid, liquid or gaseous waste within the limits set out in the authorization might be safely discharged to the environment … no special measures need be taken by the Council.
That is highly contentious. Certainly the right of a local authority at least to state its case before such an application is granted is, at the very least, eminently sensible.
When that letter was received, the council replied and objected to the authorisation on three grounds. First, it objected to the lack of consultation and, secondly, to the fact that the disposal plant was not yet fully commissioned. Thirdly, the council stated that the waste disposal licence had not yet been agreed or finalised. In reply to that letter, the inspectorate responded to those objections by stating that it remained satisfied that the authorisation should take effect.
When the appropriate committee of the local authority met, it became extremely concerned at the authorisation to dispose of radioactive waste without any prior consultation or discussion with the council. I hope no one in the Committee thinks the council was being alarmist, unduly pessimistic or unduly anxious in wanting some discussion. It was not asking for the right to make a decision but merely for some discussion on the authorisation that affected the borough. The legal officer of the authority informed me that its committee considered that the Secretary of State's action had been "highhanded, cavalier and unreasonable". The Committee was most anxious to pursue the possibility of challenging his action by way of judicial review. That right was granted and a hearing took place. The council was delighted when its application was successful. The court granted the declaration sought; namely,
"that the Secretary of State was under a duty to consider whether he should afford the Council the opportunity of a hearing under Section 11(1)(c) of the Radioactive Substances Act, 1960 before issuing an authorisation to dispose of radioactive waste to Waste Incineration Services Ltd.".
At the hearing an undertaking was given on behalf of the Secretary of State that he would give proper consideration to this point before issuing a fresh authorisation under the Act.
I wish to refer briefly to a letter which my honourable friend in another place, Joan Walley, received from Mr. David Heathcoat-Amory. It stated:
"On the general issue, you propose that local authorities should have an automatic right to a hearing. I cannot agree. For at least thirty years the control of radioactive substances has been and should remain a central government responsibility".
I hope the Committee will agree that local authorities should have an automatic right to a hearing. No one is arguing that it should be other than a central government responsibility. We are arguing that a local authority should have a right to state a case before that responsibility is discharged.
The Minister went on to say:
"It is a matter for local authorities only where the proposed disposal has a significant effect on the locality".
Who is to decide whether it will have a significant effect on a locality? He continued:
"or where the local authority must take special precautions as the result of a disposal. In such cases the existing requirements of RSA60 quite rightly require the proper consultation with a local authority and other public authorities concerned".
I hope that I have indicated, in a sober manner, the seriousness of this small point in this massive Bill. The opportunity to raise the matter has been presented because the Government are quite rightly
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doing a great deal to strengthen the protection of the environment. I believe that it is a matter of principle and not one of party animus. It is a matter of interpretation, but I can assure the Minister that the Association of Metropolitan Authorities which has briefed me in this matter looks upon it as a very serious matter indeed. I beg to move.
5.30 p.m.
Lord Reay: The effect of the amendment would be to oblige the Secretary of State to give the opportunity of a hearing in respect of every registration and authorisation to the local authority in whose area the activity occurred and to any other such authority affected by the activity. Under the Radioactive Substances Act 1960 at present a hearing must be given on request to any person refused a registration or authorisation or who has been granted one subject to conditions. The Secretary of State must consider whether to afford a hearing to such local authorities or other persons as he considers appropriate. Following the outcome of the Dudley case to which the noble Lord, Lord Graham of Edmonton, referred, the Secretary of State specifically considers affording a hearing to the local authority and others regardless of whether the recipient does or does not request such a hearing.
I am afraid that we do not agree with the amendment proposed by the noble Lord. In many cases, particularly regarding registrations in respect of the keeping and use of radioactive material, local authorities will have no role to play nor action to take. We can therefore see no case for giving them an automatic right to a hearing in such circumstances. In cases where local authorities play a role in the relevant activity, for example where the disposal would take place on a local authority site, that will be taken into account by the Secretary of State in considering whether to grant a hearing.
I must, however, draw the attention of the Committee to the changes which we are introducing to the system in the Bill. The hearing system is being retained but only in respect of the larger operations involving the United Kingdom Atomic Energy Authority or premises with a nuclear site licence—for example, a nuclear power station. In those cases local authorities are required to be consulted and that fact will be taken into account when considering the issue of a hearing.
The vast majority of applications—there are at present nearly 9,000 as opposed to the 30 major operations—will in future, under the provisions of paragraph 10 of Schedule 5, be subject to an appeals procedure to the Secretary of State against the decision of the chief inspector, who is taking over the power of authorisation and registration. Once again, where a local authority is required to take some action, for example, where disposal to the local authority disposal site arises, the local authority will be consulted.
The details of the appeals procedure will be the subject of secondary legislation but it is the Government's intention that where there is an appeal to the Secretary of State local authorities

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which have been consulted because they are required to take some action will be able to make representations.
Finally, I should mention that under the provisions of the Bill, as part of our move to more openness, copies of all applications will be sent to the local authorities in whose area the proposed activity will take place. In referring to the copies of the Section 6 applications, the noble Lord, Lord Graham, suggested that this was a question of shutting the stable door after the horse had bolted. Applications will be passed to the councils before an authorisation is granted, thus giving the authority the necessary opportunity to comment.
The overall effect of the provisions is that local authorities will be kept fully informed of all proposals for keeping, using, accumulating or disposing of radioactive substances. They will be consulted where they have a role to play, and where they have such a role they will have the opportunity to make representations.
Lord Clinton-Davis: With respect, I believe that the noble Lord's answer to the case which was presented very reasonably by my noble friend Lord Graham indicates a somewhat high-handed attitude on the part of the department, not simply about local authorities. As my noble friend said, the Secretary of State has the discretion to determine in this instance whether the local authority may have a locus in the matter. It also indicates a high-handed attitude towards the local populace.
One of the difficulties that has constantly confronted local government and people involved in the disposal of waste, particularly in such a sensitive area as radioactive waste, is that local people feel cut out of the decision-making process. It is surely not a good thing for many people to feel disenfranchised. They then frequently become very hostile to the objectives which are being pursued in terms of disposal. I should have thought that a somewhat less rigid attitude on the part of the department would have been reasonable in these circum stances.
To what extent does the noble Lord who has spoken for the Government suggest that this would be an impediment to the decision-making process? If local authorities have no locus in the matter they will not wilfully interfere. They want to carry out their responsibilities to the local electorate. They frequently find that this is an area which is particularly sensitive. It is an area which, if that sensitivity is not recognised, can so frequently give rise to unjustified hostility. Therefore, in the interests of making decisions which are seen to be democratic, it is probable that the purposes which the Government want to put forward will be advanced rather than hindered.
To that extent, therefore, I find the Government's response not only disappointing but also foreign to their own purposes. Therefore, I join with my noble friend in asking the Government to reconsider the statement that has just been made so that when we come to the Report stage of the Bill we might hear something rather more positive from them than has been the case this afternoon.
Lord Graham of Edmonton: Like my noble friend Lord Clinton-Davis, I am baffled as to what impediment to progress or the speed of the planning process would result if a local authority is given the right to state its case. It does not necessarily follow that given the right to state a case the authority will wish to state it on every occasion. The rules provide that the Secretary of State will have the discretion to decide whether or not to provide a local authority with the opportunity to state a case. That is all very well, but this is a question of whether the man in Marsham Street knows better than the man in Dudley town hall or any other town hall.
I repeat what I said earlier when I made my substantive case. There is no question of challenging the right of central government and its agencies to make the decisions. The Chamber is full of people who have experience of serving on local, metropolitan, London borough or county councils. Mistakes can happen and when something dreadful occurs, whether it relates to an obnoxious smell or is a danger or whatever, people turn first to the local council and ask, "What did you say or do?" It is bad for democracy if the answer of the local council is, "Well, we wrote a letter. That is all that we could do. We sent for the Member of Parliament and he tried to do something. But our powers were limited".
The Minister said that they—the Government—will decide in circumstances in which they consider that the local authority has no role to play. I cannot envisage any application in which the local authority has no role to play, though I can well imagine it not being actively involved in giving planning permission and oversight, etc.
The Minister and, I believe, his advisers entirely misjudge the raison d'être of a local council and councillors. They are responsible for what happens in their communities. They may not be legally responsible. However, most people look to their town hall for some protection and assurance. We believe that the local authorities should have an automatic right.
The Minister tried to fob off the charge by saying that in future copies of all applications would be submitted to the local council. I can imagine that causing even more aggravation. Copies of applications will be sent to the local council but it will not have the automatic right to put a case against them. Its views may very well be sought but it will not be able to attend a hearing.
I am afraid that the Minister has been less than fair to what is a community point of view although it is a non-political point of view. I intend to withdraw the amendment but before doing so I wonder whether the Minister has anything further to say on this matter.
Lord Reay: I do not have much to add to my original reply to the amendment. I reject the charge that the Government are being high-handed in this matter. Following the outcome of the Dudley case and as a result of the decision on that occasion, the Secretary of State specifically considers affording a hearing to local authorities and others regardless of whether such a request for a hearing is made by the recipient.

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I believe that the noble Lord recognises our position. Where a local authority is required to take some action then the local authority will be consulted; but in other cases we do not believe it appropriate that the local authority should have an automatic right to be consulted.
Lord Graham of Edmonton: That is a disappointing response. The Minister in effect is again saying that—to use the clumsy phrase—the men in Marsham Street know better than the people in the local town hall about the depth of feeling and anxiety of local councillors. Those who serve on local councils will no doubt take careful note. This is not a tuppenny-ha'penny affair. A great deal of damage can be done to public confidence in the absence of the local authority (of whatever political persuasion) being given the opportunity to go back to the community and say, "At least I told the inspector or the man from the Ministry what we, the local representatives, think".
The Minister has done nothing at all to allay the natural anxieties of people in the local areas. We listened carefully to what he had to say. We shall certainly come back to this matter at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Clause 95 [Fees and charges under 1960 Act]:
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 315:
Page 102, line 43, leave out ("sections") and insert ("section").
The noble Earl said: In moving this amendment I should like to speak also to Amendments Nos. 320 and 323. Amendments Nos. 315, 320 and 323 are designed to simplify the drafting of the Bill. Amendment No. 323 removes from Clause 95 the separate new provision on fees and charges for Scotland, but the effect of that provision is retained by Amendment No. 320. As a result of these changes, the effect of the clause will remain unaltered but the clause will be a little shorter. I beg to move.
On Question, amendment agreed to.
Lord Reay Lord Reay moved Amendment No. 316:
Page 103, line 5, leave out ("for varying") and insert ("in respect of the variation of").
The noble Lord said: This is a group of minor amendments designed to clarify the Government's intentions in Clause 95, which provides for the introduction of a charging scheme. It is our aim that fees and charges levied under the scheme should cover the cost of administration of registrations and authorisations at all stages. That includes consideration of applications and the issue of the registration and authorisation documents; related inspections; assessments of existing and new plant and sites for the purposes of registrations and authorisations and the effects that they might have on the environment; and monitoring the
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environment for compliance with registrations and authorisations.
The new Section 15A(4) as currently drafted enables the recovery of expenditure relating to registrations or authorisations effected or granted under the provisions of the 1960 Act. This wording would allow charging for the work involved in approving the registration or authorisation but does not make it clear that it would enable recovery of costs such as inspection and assessment work nor the costs of monitoring radioactive discharges.
Amendment No. 321, by referring to the functions relating to the registrations and authorisations, clarifies the scope of the clause to embrace the full range of costs which the Government are seeking to recover.
Amendments Nos. 316, 317 and 318 are technical amendments, designed to ensure consistency of drafting within Section 15A(1). Section 15A(1)(a) refers to fees payable in respect of applications, and these amendments provide for the same phrase to be used when referring to fees payable for varying registrations and authorisations (in paragraph (b)) and charges payable for the subsistence of registrations and authorisations (in paragraph (c)). I commend these amendments to the Committee. I beg to move.
On Question, amendment agreed to.
Lord Reay Lord Reay moved Amendments Nos. 317 and 318:
Page 103, line 6, leave out ("for varying") and insert ("in respect of the variation of").
Page 103, line 11, leave out ("consideration") and insert ("respect").
On Question, amendments agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 319:
Page 103, line 14, leave out from ("and") to end of line 16 and insert ("if it appears to the enforcing authority that the holder of an authorisation has failed to pay a charge in due consideration of the subsistence of the authorisation, he may, by notice in writing served on the holder, revoke the authorisation.").
The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 322 but not, as the grouping suggests, to Amendments Nos. 324 and 325 because Amendments Nos. 324 and 325 deal with notices while the former amendments deal only with charges.
The first amendment largely seeks to bring Part V into line with the rest of the Bill, particularly Part I. The replacement section which forms the core of this amendment comes directly from Clause 8(8) of the Bill. I suggest to the Committee that it provides some continuity and indeed consistency where fees and charges are concerned. Surely the conditions of an authorisation should relate solely to the running of a plant. It cannot be said that charges relate in any manner or form to the operation of that plant. Hence they should be excluded from the conditions of an authorisation.
A charging scheme should run independently of an authorisation procedure so that charges can be recoverable as an ordinary debt in the usual way. I understand that that is so in the case of cost recovery charges which are made currently by the nuclear

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installations inspectorate to site licences. It is also likely to be of value to the authorities since they will be able to alter the structure of a charging scheme without the authorisation; and to do so more easily if it is not fixed in legislation.
The way that the Bill is currently framed means that industry may be asked to pay twice for the same thing. Without Amendment No. 322, I can see very little discipline being applied to a control authority to avoid any duplication of effort and thereby cost. The nuclear industry is particularly vulnerable to double charging; so also are other industries since many carry out their own monitoring procedures. Industry can carry out monitoring and produce results. Why cannot those results be deemed acceptable to a control authority if that control authority has already agreed the criteria? Otherwise, we shall see a control authority producing its own monitoring. That may well have a greater expense attributed to it. It may also encourage industry to reduce its own efforts in monitoring. Therefore something can slip through the net.
Why cannot we have a co-ordination of monitoring so that we have the same criteria? I can see no such provision in the Bill. We could thereby reduce both effort and costs. That is the substance of the two amendments. I beg to move.
Lord Reay: Amendment No. 319 would remove from the conditions of authorisation the requirement that arty applicable charge must be paid and proposes instead to give the chief inspector the power in cases of non-payment to revoke the authorisation.
It is our view that the current drafting is more effective in the context of this part of the Bill. By making payment of prescribed charges a condition of authorisation, it gives the chief inspector greater flexibility in his response to non-payment. Instead of having to make a choice between doing nothing and revoking an authorisation—which could be the effect of my noble friend's amendment—he has other options open to him such as issuing an enforcement notice or initiating a prosecution. That would be particularly relevant where the chief inspector wished an authorisation to continue; for example, in a university or hospital where perhaps more than one activity might be covered by a single authorisation and where it would be inappropriate therefore to revoke the authorisation.
In Amendment No. 322 my noble friend proposes that where an operator is required as a condition of his authorisation to carry out monitoring, he should not be required to meet the cost of monitoring carried out by the control authority. I am afraid that we cannot agree with the intention of the amendment. In accordance with the polluter-pays principle, we intend to recover from operators the costs to government of undertaking their duties under the Radioactive Substances Act 1960. This intention was clearly set out in our recently published consultation document on the proposals for the amendment of the 1960 Act, and was strongly supported. None of the respondents raised objections to the principle involved.
I believe it is quite right that as a condition of an authorisation an operator can be required to carry
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out certain types of monitoring; and that if a chief inspector regards it as necessary that other monitoring should be carried out by him, then those costs should also be borne by operators. Where monitoring is carried out by both parties, that carried out by the control authority will not duplicate that carried out by the operator; rather it will supplement it, as necessary.
Lord Lucas of Chilworth: I am grateful to the Minister for his response. On the first amendment, I do not believe that it gives the inspector flexibility; I believe that it gives him a much greater leverage. If he can close down a plant by the somewhat punitive tool of the charge, that does not seem to show much flexibility. I shall wish to consider what my noble friend has said at rather greater length. I may wish to come back to it later.
On Amendment No. 322 my noble friend misunderstood my intention a little. There is no intention to escape the now generally accepted principle that the polluter should pay. It is a question of whether the polluter should pay twice. He gives me no encouragement in his answer to suggest that there should be a proper and joint consultation to ensure that there is no overlap between the monitoring process undertaken by the company's own inspectorate and the control authority. Again I shall wish to consider the matter further. I may wish to bring it back at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 320:
Page 103, line 31, at end insert ("and different schemes may be made and revised for different areas.").
On Question, amendment agreed to.
Lord Reay Lord Reay moved Amendment No. 321:
Page 103, line 37, leave out from ("Food") to end of line 39 and insert ("in exercising or performing their functions under this Act in relation to registrations and authorisations").
On Question, amendment agreed to.
[Amendment No. 322 not moved.]
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 323:
Page 103, leave out from beginning of line 43 to end of line 9 on page 104.
On Question, amendment agreed to.
Clause 95, as amended, agreed to.
Clause 96 [Enforcement powers of chief inspector]:
6 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 323A:
Page 104, line 21, at end insert ("or
(c) is keeping, using, disposing of or accumulating radioactive material, or using mobile radioactive equipment, in a manner which is causing, or which in his opinion may cause, harm to the environment or to human health").
The noble Lord said: I beg to move Amendment No. 323A which stands in the name of my noble friend Lord McIntosh of Haringey.
The purpose of the amendment is to insert a criterion under the new provisions on enforcement notices, whereby the chief inspector may take action where he considers that there is damage to environment or health. The amendment also draws attention to disparities in drafting between the new Sections 11B and 11C contained in Clause 96 whereby the environmental issue is addressed in the latter.
New Section 11B, inserted into the Radioactive Substances Act 1960 by the first part of Clause 96, is intended to set out the grounds on which the chief inspector may serve an enforcement notice on a person operating under licence within terms of the Act. Under the new section as drafted, the criteria which the chief inspector may use are limited to a failure to comply with a limitation under the authorisation, or a likelihood of such failure to comply. A notice once issued must state the chief inspector's opinion, specify the matters constituting the failure (or likely to constitute a failure) and specify the steps to be taken. These provisions in subsections (1) and (2) of the new section fall short of enabling the chief inspector to issue an enforcement notice where damage to the environment or health is anticipated.
The first amendment would, therefore, give the chief inspector powers where he believed that radioactive material was kept, used, disposed of or accumulated (or such equipment used) in a way which was causing or was likely to cause harm to the environment or to human health, specifying steps to remedy the matter. The purpose of Section 11B, therefore, is to give the chief inspector a power to order a tightening up of standards, or a clean-up operation, as a means of limiting or averting harm while falling short of a full prohibition. The second amendment is a consequential amendment on this provision.
It might be considered curious that the approach adopted in these amendments is reflected in the second section, Section 11C contained in Clause 96. Under subsection (1) of that new section, the chief inspector has power to serve a notice where he considers that the carrying on of an activity involves an imminent risk of pollution of the environment or harm to human health. A notice under Section 11C may be served whether or not licence conditions are being complied with, and includes a requirement that the activity shall be suspended until specified steps to reduce or avert the harm have been taken. In other words, the power to go beyond the condition of the licence and to assess the damage to health or to the environment exists in respect of more serious cases which may lead to a prohibition notice but does not exist in cases where smaller steps only are to be taken.
The Minister may reply that Section 11B is intended to deal only with the enforcement of licence conditions and that serious cases involving a prohibition or cessation of activity can be dealt with under Section 11C. The problem with that interpretation is that small examples of damage to the environment or to health, which might not in themselves justify a prohibition notice, will fall
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between the two sections. Under subsection (3) of Section 11C there is a requirement that a notice shall direct that an authorisation shall cease at least in part while the notice is in effect. In other words, Section 11C can be used only where the inspector is prepared to suspend or revoke the licence. It appears that it will not be effective in cases where (perhaps as a result of the increased understanding of the technology) there is understood to be damage to the environment or to health, but not of such significance that a stop notice will immediately be justified.
I am asking the Minister to consider whether there is not a small but perhaps significant loophole in these provisions. And more generally, I ask him to explain the thinking behind the difference in the scope of these two new sections. I beg to move.
Lord Reay: Clause 96 introduces new enforcement powers for the chief inspector. These are the powers to serve enforcement notices and prohibition notices. The chief inspector may serve an enforcement notice if he is of the opinion that a person is failing to comply, or is likely to fail to comply, with any limitation or condition subject to which any registration or authorisation issued under the Act has effect. Should the chief inspector be of the opinion that the continuation of a register or authorised activity risks causing pollution to the environment or harm to human health, regardless of whether or not the conditions of the registration or authorisation have been breached, he may serve a prohibition notice. These powers reflect our determination to prevent pollution wherever possible. I am sure that they will generally be welcomed by the Committee.
The amendments proposed by the noble Lord, Lord Graham, on behalf of his noble friend, demonstrates his anxiety that effective action should be taken to combat pollution or the threat of it. I fully share his anxiety and for that reason we have introduced the two new enforcement powers. We believe that the amendments are unnecessary because we have already catered for his anxiety.
Amendments Nos. 323A and 323B would have the effect of empowering the chief inspector to serve an enforcement notice if he were of the opinion that a person was keeping or using radioactive material, or mobile radioactive apparatus, or accumulating or disposing of radioactive waste in such a manner as to cause or threaten to cause harm to the environment. The Bill as drafted already empowers the chief inspector to deal with those situations effectively.
Registrations and authorisations issued under the Act contain stringent conditions which prevent a registered or authorised person from acting in such a way as to cause harm to the environment or to human health. Should he do so he will be in breach of his conditions and Clause 96 enables the chief inspector to serve an enforcement notice on him. Should immediate action be needed—for example, if a person is acting in such a way that, in the opinion of the chief inspector, harm to the environment or to human health may be caused and such harm is

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considered to be imminent—that person may be served with a prohibition notice. Therefore, the two types of notice effectively complement each other. I hope that the noble Lord will accept my explanation and will not press his amendment.
Lord Graham of Edmonton: I am grateful to the Minister for the care that he took in stating his case and pointing out, perhaps fairly, that the amendments are unnecessary. I am used to being told by Ministers that my amendments are unnecessary and, aggravatingly, finding that they are unnecessary. I do not doubt that again the Minister is right.
We are dealing with sensitive issues. The Minister has told me that the chief inspector has the power to act quickly and arbitrarily in order to assure the public and to threaten someone who he may suspect of acting in a way which is ultra vices his permission. If the power is already contained in the Bill that will set at rest the mind of the Association of Metropolitan Authorities which represents many local authorities. The Minister's reply will be read carefully. I doubt that I shall need to return to the matter at a later stage but if necessary I shall. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 323B not moved.]
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 324:
Page 104, line 42, at end insert:
("(c) A person on whom an enforcement notice is served may appeal against the notice to the Secretary of State,").
The noble Lord said: I wish to speak also to Amendment No. 325. I am grateful to the Minister for dealing with the two amendments separately. They deal with enforcement notices and prohibition notices. As the Bill is drafted there is no right of appeal in the event of an enforcement notice or prohibition notice being served on an industrial company. In all fairness to industry there should be such a right of appeal. It would allow a company to put its case to the Secretary of State or to a person nominated by the Secretary of State if that were the wish.
One must bear in mind that in the industry dealing with radioactive substances a refusal without the ability to put one's case can be extraordinarily costly to a company in monetary terms and, more importantly, in terms of its reputation. In Part I, Clause 15 provides for appeals as respects authorisations and against variation, enforcement and prohibition notices. Although the subject matter in Part I and this part may be different, surely the natural justice element is precisely the same. It is on that basis that I beg to move Amendment No. 324.
Lord Reay: Amendments Nos. 324 and 325 seek a right of appeal for operators in respect of enforcement and prohibition notices. However, I am informed that that right is already given in Schedule 5(10) in the new Section 11D(2). It applies to any person. Therefore my noble friend can be reassured by that.
Lord Lucas of Chilworth: I am most grateful to the Minister for pointing that out to me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 325 not moved.]
Clause 96 agreed to.
Clause 97 agreed to.
Clause 98 [Application to Crown of 1960 Act]:
On Question, Whether Clause 98 shall stand part of the Bill?
Lord Renton: I have given notice to the Lord Chairman and to my noble friends on the Front Bench that I wish to refer briefly to Clause 98. It provides that, with the exception of MOD premises, those occupied by visiting forces and Her Majesty in her personal capacity, the Crown shall be bound by these provisions. It also provides that instead of criminal prosecutions where there has been a breach of the requirements of the Act, the High Court, or the Court of Session in Scotland, may on application from the enforcing authority make a declaration of non-compliance.
One welcomes this modification of Crown privilege. This point was raised at midnight one evening last week and my noble friends are considering the matter in relation to statutory nuisances. I hope that we have this right or nearly right now. However, one should bear in mind that, although subsection (1) of the new Section 14 of the 1960 Act is welcome—it states that the provisions of the Act shall bind the Crown—subsection (2) states that it does not apply to premises:
"occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence".
Nor does it apply:
"for the purposes of a visiting force".
I cannot expect a reply on this point from my noble friend at present. However, we should be assured at a later stage of the Bill that visiting forces, being exempt from the provisions of this important Act, have given an undertaking that they will nevertheless comply with it, because we have very large visiting forces here. We welcome them. However, we expect them to co-operate in the protection of the environment and to join, I hope, with our armed forces in setting an example to the rest of the Community.
Therefore, at a later stage I should like to be assured that measures are being taken to ensure co-operation. I need say nothing further except that I hope that my noble friends will take on board this very gentle warning. We shall have to return to this matter on Report.
Lord Reay: I am grateful to my noble friend and I am extremely interested in what he said. I shall read carefully what he said, consider it and then take the matter from there.
Clause 98 agreed to.
Clause 99 agreed to.
Schedule 5 [Further Amendments of the Radioactive Substances Act 1960]:
6.15 p.m.
Lord Tordoff Lord Tordoff moved Amendment No. 325A:
Page 165, line 35, at end insert:
("( ) In subsection (3) (offences relating to the disclosure of information)

(a) for the words "relating to any relevant process or" there shall be substituted the words "whose disclosure is contrary to the interests of national security or which relates to any"; and

(b) the definition of "relevant process" shall be omitted.").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 325E and 325F. Members of the Committee who were involved in the passage of the Food Safety Bill through this Chamber may remember that I moved amendments stimulated by the Campaign for Freedom of Information on the question of manufacturing processes. After consultations with the Government, they were good enough to modify their original provisions, believing that, as we said, they were unnecessarily stringent.
I say straight away that the current Bill is welcome in that it goes a long way down the route of positive disclosure of information and nothing I say should detract from that. As we know, it extends the public's right to information in various areas by requiring public registers containing certain specified information to be available to the public.
Schedule 5 deals with amending the provisions of the Radioactive Substances Act 1960 which regulates the use of radioactive materials and disposal of waste. My amendments seek to modify the new disclosure provisions of the current Bill. Section 13(3) of the 1960 Act states:
"If any person discloses any information relating to any relevant process or trade secret used in carrying on any particular undertaking which has been given to or obtained by him under this Act or in connection with the execution thereof, he shall … be guilty of an offence under this subsection".
That offence can carry a maximum penalty of two years' imprisonment. The current Bill increases the fines which can be imposed for this offence on summary conviction from £400 to £2,000.
The key to that section is the words:
"any relevant process or trade secret".
The Bill's disclosure provisions also steer clear, in other parts, of the phrase "relevant processes". No information about a relevant process or trade secret or information which the Secretary of State has directed must not be disclosed on national security grounds will be disclosed under the new disclosure provisions.
Relevant process is defined as:
"any process applied for the purposes of, or in connection with, the production or use of radioactive material".
That seems to us to be rather too wide. It is possible that that definition was inserted into the 1960 Act on the assumption that the use of radioactive materials was largely to do with atomic weapons production and that "relevant process" was an all-embracing way of saying "national security". One understands that that might have been the case. Civil nuclear power was in its infancy and some of the
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current uses of radioactive materials in consumer products such as smoke alarms or for food irradiation were unheard of. The use of radioactivity in medical research and treatment was not as well developed as it is today.
Incidentally, the secrecy clause does not directly impede disclosure about radioactive wastes. That is because "relevant process" is defined in terms of the handling of radioactive materials, and the definition of the latter specifically excludes radioactive wastes. On the other hand, there is no direct duty to disclose information about radioactive waste disposal. The amendment, if accepted, would be the only requirement.
The present situation therefore is that there is no duty to disclose information regarding problems relating to disposal of radioactive waste and there is a legal bar on the disclosure about processes which generate radioactive waste. That is out of keeping with the spirit of the Bill, which is generally positive. It inhibits disclosure; in other words, it inhibits an inspector from explaining why a problem has arisen or from trying to allay fears by explaining the precautions that have been taken. He cannot discuss anything relating to the process, otherwise he comes under the terms of these rather stringent gaol sentences.
The clause is excessive. Any necessary protection could be achieved by limiting the clause to trade secrets and to national security. It is redundant because the new Official Secrets Act also protects information relating to defence, including nuclear weapons and nuclear weapons research. However, for the offence under the Official Secrets Act the disclosure must be damaging, and no proof of harm is required for an offence under the Radioactive Substances Act.
To sum up, the three amendments leave in place the existing protection of trade secrets, which is important. In tabling these amendments, there is no intention to undermine people's trade secrets. The amendment removes the protection for "any relevant process" and deletes the definition of "relevant process" from the 1960 Act, as the concept would then be redundant. Instead, it would protect information the disclosure of which is contrary to the interests of national security. That is a phrase used elsewhere in the Bill and is one of the grounds for withholding material from public registers of pollution information.
It is not my intention to press the amendments today. I hope that the Government can give some indication of their immediate feelings; but it may be an idea that at some stage between now and the later stages of the Bill we hold discussions with the relevant Minister. It is in that spirit that I beg to move the amendment.
Lord Graham of Edmonton: This amendment is supported by those of us on these Benches. I rise simply to say that the noble Lord, Lord Tordoff, put the case very well. There is little more that I can add.
I hope that the Minister is seized of two points. First, that there needs to be full and frank disclosure of information; secondly, there needs to be access to

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that information by the public and those who are interested and affected. We are not simply speaking of the citizen or the consumer but commercial interests as well. There needs to be a sense of balance.
The Bill is part of a parliamentary process to open up access to information. The noble Lord, Lord Tordoff, rightly pointed out that above all else we need to protect national security and commercial confidentiality. The amendment being moved and the subsequent group achieve precisely that effect, and at the same time maintain those two protections.
Lord Reay: Amendment No. 325A seeks to amend the offence provision in Section 13(3) of the Radioactive Substances Act 1960 relating to the disclosure of information by removing the offence of disclosing information relating to a relevant process and replacing it with an offence of disclosing information contrary to the interests of national security. It also removes the definition of "relevant process" in Section 13(3) of the 1960 Act.
Amendment No. 325E would require the chief inspector to refrain from disclosing information contrary to the interests of national security, instead of refraining from disclosing information relating to any "relevant process". Amendment No. 325F would amend the powers of the chief inspector and, as the case may be, the Minister of Agriculture, Fisheries and Food, to direct local authorities that all or any part of documents sent to them is not to be available for public inspection. Instead of giving directions for the purpose of preventing disclosure of "relevant processes", directions would be given for the purpose of disclosing information contrary to the interests of national security.
I am afraid that the Government are not able to accept these amendments. I appreciate that under other parts of the Bill there are only two categories of information where public access to information is to be restricted; that is, information which is commercial-in-confidence, and information the disclosure of which is contrary to the interests of national security. Under the 1960 Act we have a third category, namely disclosure of information relating to any "relevant process". The noble Lord, Lord Tordoff, read out the definition of "relevant process" from the 1960 Act. It has been an offence to disclose such information since the 1960 Act was enacted; and given the very nature of radioactive substances, we consider it right that that situation should remain. There can be instances where information on radioactive material cannot be properly classified as "trade secret" or as having national security implications—for example, some university activities such as the operation of large irradiation sources—but where disclosure should rightfully be restricted. I would expect such instances to be infrequent, but in the interests of equity it is only right that there should be provision for them.
I ask the Committee to bear in mind the considerable amount of information which will become available to the public in respect of radioactive substances as a result of the provisions of the new Section 13A. All registrations and authorisations to discharge radioactive waste into
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the environment will be available to members of the public from relevant local authorities and Her Majesty's Inspectorate of Pollution. Details of what radioactive chemicals are authorised for discharge into sewers, for example, will be in the public domain for the first time. That demonstrates our commitment to greater openness while recognising that a balance must be struck.
I note the intention of the noble Lord, Lord Tordoff, not to press the amendment. I shall be happy to meet him at any time to discuss the issue further. Meanwhile, I hope that I have given him at least the initial reaction of the Government to the amendment.
Lord Tordoff: I am grateful to the noble Lord. It seemed to me that he was not quarrelling with the argument that I placed before the Committee, save that there might be processes which fall somewhere between the scope of the present provisions and the scope of the amendment that I moved; for example, certain university processes.
I do not believe that it is beyond the wit of everyone concerned to define those processes and include them in the Bill. That would exclude from this compendium phrase those matters which should be in the public domain in the interests of enabling the inspector to reassure the public in cases where things have gone wrong. That is something we shall need to consider further. I am grateful to the Minister for his offer to discuss the matter with me. On that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Tordoff Lord Tordoff moved Amendment No. 325B:
Page 166, line 31, at end insert:
"( ) any report of an investigation which he has carried out into the effect on human health or environment arising from any activity which is or is required to be subject to an authorisation or registration under this Act.").
The noble Lord said: In moving Amendment No. 325B, I shall speak also to Amendments Nos. 325C and 325D. The amendment refers to paragraph 15 of Schedule 5 on page 166 of the Bill as printed. It contains a list of items of which the chief inspector shall keep copies. Those copies are kept partly to fill the filing cabinets of the people involved, but partly also to give the public access to them. The amendments extend that list; in other words, they extend the subjects on which we believe disclosure should be available to the public. For example, Amendment No. 325B requires a chief inspector to make available a copy of any report of an investigation which he has carried out into possible human health and environmental hazards arising from activities regulated under the 1960 Act. There is no precedent for that in the Bill. We also want to see some of the requirements introduced elsewhere.
Amendment No. 325C requires the chief inspector to disclose, on request, details of any convictions against any person under the 1960 Act. This mirrors disclosure provisions elsewhere in the Bill. For example, Clause 20(1)(f) requires convictions to be entered on registers relating to integrated pollution control so it does not seem unreasonable that they should be included in relation to this part of the Bill.
Clause 61(1)(f) requires convictions to be entered on registers of waste disposal.
Finally, Amendment No. 325D adds sampling results of the type of information which the chief inspector must disclose. He would have to say what action, if any, he has taken as a result of any sampling inquiry. This requirement is modelled on similar provisions in the 1989 regulations relating to the control of pollution registers which require the National Rivers Authority to keep public registers of water pollution sampling and to note any action taken as a result of any findings. The amendment is therefore a modest expansion of provisions already contained in the Bill. Nevertheless, we believe that these extensions are necessary in the interests of the general public. I beg to move.
6.30 p.m.
Lord Reay: The effect of Amendment No. 325B would be to require the chief inspector to send to local authorities, and to keep and make available to the public himself, any report relating to any investigation about the effect of any activity under the Bill on the environment or human health. This amendment is so widely drawn that it would place an absolute obligation on the chief inspector to make available almost all the written work of the inspectorate. Such a system would be counter-productive in that it would swamp the system and make it less effective in giving the public the opportunity to examine documents of real significance.
There are similar objections to Amendment No. 325D which would require every analysis of every sample to be sent to local authorities and kept and made available to the public by the chief inspector. We do, however, intend that summary data will be immediately available and that more detailed information will be available on request. The data immediately available would indicate that further information was available. In this way we aim to have a system that is easy to use while at the same time being comprehensive.
Amendment No. 325C would require the chief inspector to send to local authorities and keep himself a record of convictions under the Bill. The drafting of the amendment is flawed in that it would require records of convictions to be kept without any time limit, contrary to the Rehabilitation of Offenders Act 1974, but we are in sympathy with its aims. If the noble Lord will withdraw this amendment we will submit a correctly worded amendment for consideration on Report.
Lord Tordoff: I am most grateful. It is nice to have at least one sugar-plum in a short afternoon's work. I am not surprised at the reply on the other two amendments. I have some hesitation about them as drafted. The wise course for us to take is to consider the matter. I am interested in what the noble Lord said about having a summary kept of the information available. That sounds a useful facility. Again, this can be discussed, but I am grateful for the noble Lord's response to the amendments, particularly
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Amendment No. 325C. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 325C to 325F not moved.]
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 326:
Page 167, line 27, after ("Scotland)") insert ("— (a)").
The noble Earl said: In moving this amendment I speak also to Amendments Nos. 327, 328 and 390. These amendments make changes to the Radioactive Substances Act 1960 which affect Scotland only. Amendment No. 326 is a minor drafting change. Amendment No. 327 makes a change to the Scottish application of the 1960 Act which is consequential on the revision of Section 11 of that Act in Schedule 5 of the Bill, Amendment No. 328 updates the list of enactments contained in Schedule 1 of the 1960 Act, which has become somewhat dog-eared since 1960. Amendment No. 390 is consequential on Amendment No. 328. I beg to move.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 327:
Page 167, line 36, at end insert (";
(b) after paragraph (e) there shall be inserted the following paragraph—
"(f) in section 11, subsections (1) and (4) shall be omitted." ").
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne moved Amendment No. 328:
Page 167, line 36, at end insert:
("18A. —(1) In Schedule 1 to the 1960 Act (enactments, other than local enactments, to which section 9(1) applies)—

(a) paragraphs 9 and 11 shall be omitted;

(b) after paragraph 17 there shall be added the following paragraphs—

"17A. Section 201 of the Local Government (Scotland) Act 1973.
17B. Section 124 of the Civic Government (Scotland) Act 1982." ").
On Question, amendment agreed to.
Schedule 5, as amended, agreed to.
Clause 100 [Purpose of Part VI and meaning of "genetically modified organisms" and related expressions]:
Lord McColl of Dulwich Lord McColl of Dulwich moved Amendment No. 328A:
Page 107, line 32, at end insert:
("( ) This Part shall not apply to organisms produced according to good industrial large-scale practice (GILSP) as agreed by the Organisation for Economic Co-operation and Development (OECD).").
The noble Lord said: In moving this Amendment I speak also to Amendment No. 328B. These amendments are concerned with genetically modified organisms (GMOs). The Committee will know that genetic engineering is used to put useful genes into bacteria, yeasts and other micro-organisms which can then be cultivated to

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produce such products as insulin, blood clot dissolvers and other products of use to man.
Clearly these production organisms are contained within culture vessels, so these practices are perfectly safe as they are embraced by what is known as good industrial large-scale practice (GILSP), which is a concept of minimal physical containment that has been applied to industrial large-scale uses of certain genetically modified organisms. These organisms have been determined by rigorous assessment to be of low risk. The assessment includes the criteria of limited survival in the environment without adverse consequences.
This good industrial large-scale practice is part of a much wider scientific framework developed by the Organisation for Economic Co-operation and Development for the safe use of recombinant organisms in industry and the environment. It has been widely adopted by national, European and United States regulators alike; in particular, the Health and Safety Executive's genetic manipulation regulations of 1989 and the European Commission's directives on biotechnology.
These good industrial large-scale practice organisms are widely used throughout industry, particularly in the food and antibiotic industries, for strain improvement purposes. There are three notable examples. The first is escherichia coli; a bacterium used in the production of human growth hormone and insulin. The second example is penicillium chrysogenum, which is a fungus used in the production of penicillin G. The third example is a saccharomyces species which is a yeast used in the production of beer.
Not only would it seem inappropriate on scientific grounds to include good industrial large-scale practice organisms within the scope of Part VI of the Bill, but I also believe that the commercial penalty would be too high a price to pay. The increased regulatory burden would reduce investment in these genetic engineering programmes.
As regards Amendment No. 328B, the recently-adopted European directive on the deliberate release into the environment of GMOs specifically excludes these natural recombinant techniques from its scope. Incidentally, that European directive was agreed by all environmental Ministers, including our own, on 23rd April of this year. The United Kingdom Genetic Manipulation Regulations 1989 also exclude techniques that occur naturally.
If such techniques were included in this Bill it would put the UK industry at a serious competitive disadvantage with its European counterparts in terms of the regulatory bureaucracy. The techniques are widely used in industry; in particular, mutagenesis accounts for most if not all micro-organisms used in the United Kingdom antibiotics industry. It would also follow from this amendment that Clause 100, line 25, should have deleted from it the words,
"or of mutation inducing agents".
I beg to move.
Lord Clinton-Davis: I listened with care but not with total comprehension to the remarks of the noble Lord, Lord McColl. It is not because he did not explain the matter very well, but that it involves some knowledge of technology. I confess that that is beyond me. Perhaps I may turn to something a little more mundane. What worries me is that, as I understand it, the OECD is in the process of revising its guidelines. It has produced a draft paper which is currently being considered by government.
That being the case, is it not premature for the proposal made by the noble Lord to be moved at this juncture? It will be interesting to hear the Government's response to what the noble Lord has argued. I hope that they will say that it is premature to introduce this notion into the Bill. As I understand it, the definition is not static. Therefore, it may be inappropriate to include it in primary legislation. That deals with Amendment No. 328A.
I now turn to Amendment No. 328B, which is a somewhat dangerous amendment proposed by the noble Lord. It tries to narrow the definition of a GMO to an extremely narrow and confined extent. Effectively, it would neutralise the purpose of the section. This is an area that is changing with great rapidity. Therefore, is there not a strong case for saying that we need to have flexibility in order to control modified organisms? Consequently, it would be preferable to have a wide definition narrowed by regulation in this particular instance rather than a narrow, closed definition. I look forward to hearing what the Government have to say.
6.45 p.m.
The Earl of Halsbury: I take a different view to that put forward by the noble Lord, Lord Clinton-Davis. In the course of my professional career I have been involved in the fermentation industries. I know perfectly well that it is no good barring the front door and leaving the kitchen window open. These organisms are continually mutating; they are affected by wild strains, cross-fertilisation and so on. It is a long time ago but, in the 1950s or thereabouts, Professor Pontecorvo of Glasgow University came to me and said, "I have made a discovery; I wonder if I have made an invention".
He had discovered that if one takes yeasts that normally breed not sexually, but asexually, and dopes them with camphor and colchicine, they will breed sexually. Then one can cross two different species of yeast. I said to him, "I do not know whether you can make a patent application on that but I shall try on your behalf". That was in the context of the National Research Development Corporation, because at that time I was the managing director.
Curiously enough, we managed to persuade the Patent Office to grant a patent on the process. I remember reading the specification and taking a taxi round to the Royal Society and seeing there the father of my present noble friend Lord Adrian, who was then President of the Royal Society. I put him on notice that this was the beginning of genetic engineering. He said to me, "What can I do about it?" I said, "Nothing, except to keep your eyes open

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because there are potential hazards here if we by any chance cross mutagenic pathogens with something else that spreads very easily among human beings".
That is going to happen in any case. We are always having natural mutations. Is cancer research to be brought to an end because we want to find out whether mutagenic agents are also carcinogens? That has been going on for years and years. I believe that the only objection that can be made to the alteration proposed by the noble Lord's amendment—particularly the long list coupled with any forms of natural modification—is that it might possibly fall foul of the exclusio alterius rule, which is a legal doctrine that I only dimly understand. Therefore, I shall not try to expound it except to say that, if one gives a long list of things such as that in the amendment, it may be argued that exclusion of something that you have not mentioned was deliberate. The courts may have to deal with that.
The right attitude to a possible modification of its own rules by the OECD is to wait until it happens and then see what should be done about it. We do not have to violate its rules because it has made a new one. In the meantime, so long as what the noble Lord proposes is conformable to the rules that the OECD is currently working to, then I support his amendment.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): Perhaps I may say at the outset of Part VI of the Bill, that I feel somewhat humble in the presence of many Members of the Committee who are great scientists. I hope that it will not become too readily obvious that I am not a great scientist. I shall do my best to try to take the Committee through this particular part of the Bill. In this instance I shall endeavour to allay the fears of my noble friend.
Both these amendments seek to exclude certain organisms from the scope of Part VI. The effect of Amendment No. 328A would be to disapply Part VI to organisms produced according to good industrial large-scale practice (GILSP) as agreed by the OECD. Amendment No. 328B would extend the list of techniques which are not to be prescribed for the purposes of determining which organisms are to be regarded as genetically modified for the purposes of Part VI.
My noble friend adduces both scientific and commercial arguments in support of his case. I respect his arguments on both grounds, but do not consider that the Bill's provisions will lead to the outcome he fears. The Government accepts that good industrial large-scale practices are valuable. We acknowledge that they have been developed on a sound scientific basis. However, the fact that we may have some confidence about the effects on the environment—for example, of waste streams from some contained uses—of GILSP organisms is not sufficient to exclude them as a category from this Bill. Furthermore, the criteria for classification of an organism in the GILSP category may change over time and we should not be well advised to make exemptions such as these in the Bill itself.
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Part VI is a good example of the precautionary approach at work, particularly as it seeks to control potentially new risks to our environment. On those grounds, I think it would be unwise to accept Amendment No. 328A. There is no reason, however, why necessary caution should result in damage to our biotechnology industry. The Bill provides for a regulatory response which matches the risks from particular GMOs as well as ample scope for appropriate exemptions where the risks are known and controllable. The Committee may be assured that GILSP GMOs will be treated in a way which takes full account of the confidence that their inclusion in the GILSP category gives that steps are being taken to protect the environment.
Similar arguments apply to Amendment No. 328B. My noble friend may be assured that care will be taken to ensure that initiative in the British biotechnology industry is not stifled when particular techniques are prescribed as "genetic modification". As I have made clear, the Bill provides for an appropriate hierarchy of control depending on the risks involved. The less the risk, the less the bureaucracy.
On the other hand, we must seek to establish a framework which can cope with as yet unknown risks. It is of course impossible to predict the advance of scientific knowledge and techniques. In summary, the noble Lord's amendment would remove recombinant DNA techniques from the scope of Part VI. If we accept the amendment we run the danger of holding hostages to fortune by saying that certain techniques we now believe to be safe will always be so.
As regards the noble Lord, Lord Cinton-Davis, and his reference to the EC and the OECD, I can tell him that the provisions of Part VI will allow the full implementation of the two EC directives on GMOs. There is a need for wide provision precisely to enable all contingencies to be covered. I hope that I have been able to persuade my noble friend not to press these two amendments.
Lord McColl of Dulwich: I should like to thank the Minister for his helpful and careful response, and also the noble Lord, Lord Clinton-Davis, and the noble Earl, Lord Halsbury, for their helpful comments. I reserve the right to come back on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 328B not moved.]
Clause 100 agreed to.
Clause 101 [Meaning of "damage to the environment", "control" and related expressions in Part VI]:
Lord Nathan Lord Nathan moved Amendment No. 328D:
Page 108, line 34, leave out from ("environment") to end of line 38 and insert ("includes harm to the living organisms supported by the environment").
The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Lewis. This is a short point but it arises from

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the insistence of the Government, which I well understand from earlier debates we have had, that each part of the Bill is to be treated separately in relation to the definitions to be applied. We are therefore permitted, and indeed bound, to look at the definitions in this part of the Bill separately from the definitions in any other part.
It seems odd to me, after the considerable care that I know has been extended in preparing this draft, that damage to the physical environment appears—I thought originally by accident—to have been excluded from the definition of "damage to the environment". The environment itself is defined in Clause 101(2):
"The 'environment' consists of land, air and water".
Under the definition of "damage to the environment" appearing in Clause 101(3) it appears that damage to the physical environment is not included. I cannot believe that that was intended when one considers that micro-organisms can not only damage other organisms or adversely affect man himself but can be, and are, used to have an impact upon minerals and so forth. They are used for the purpose of oil clean-up, for instance.
As I understand that "land" must be interpreted in accordance with its normal interpretation in English law; it means not only the surface but all the minerals beneath it. It surely also applies to buildings, the stone from which they are built and, for instance, the limestone paving in national parks. Therefore, it seems to me that some attention requires to be given to that, and that is the purpose of this brief amendment.
The effect of the amendment would be, first of all, greatly to shorten the definition—which I think must be helpful because, frankly, it is a rather convoluted subsection—and merely to refer to the fact that damage to the environment includes (it is not exclusive),
"harm to the living organisms supported by the environment".
The Deputy Chairman of Committees (Lord Cullen of Ashbourne): If this amendment is agreed to, I shall not be able to call Amendment No. 328C.
Lord McColl of Dulwich: I should like to support the noble Lord in his amendment. My quarrel with this is the suggestion that GMOs are dangerous, and the qualification comes later, which is a pity. When this amendment was discussed in another place the Minister made the point that controls must prevent damage rather than apply only after it has occurred. It would seem possible that he may have misinterpreted what the amendment seeks to achieve. We are not talking about grammatical differences between one version of a definition as against another, but trying to make the fundamental point that the present drafting of the description of "damage to the environment" implies that all GMOs are dangerous, and obviously this is not the case. I should like to support the amendment.
The Earl of Arran: Clause 101 defined key concepts relating to the protection of the environment from possible damage from GMOs. I endorse your Lordships' concern that we should be particularly
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sure that the definitions set out in the clause acheive their purpose. These two amendments in the name of my noble friend and the noble Lord, Lord Nathan, appear to risk losing the idea that damage to the environment should be defined as necessarily following from the presence of GMOs in it. It redefines the meaning of "damage to the environment" by putting the emphasis on the actual causing of harm as opposed to the capability to cause harm.
In our view, the existing wording of the Bill establishes the idea of anticipating damage very clearly. The definition of "damage to the environment" in Clause 101(3) stands on two distinct feet: that GMOs are present in the environment and that they are capable of causing harm. "Harm" is, in turn, defined at Clause 101(6). The noble Lord's alternative wording would introduce an element of imprecision since it might be seen to imply that damage to the environment must actually occur in order for GMOs which are capable of causing damage to come within the scope of the definition at Clause 101(4). This would be unacceptable as it would inhibit preventive action being taken against released GMOs where the risk of damage was high. It is for that reason that I ask the noble Lord not to press this amendment.
The effect of Amendment No. 328D would be to restrict the definition of "damage to the environment" to saying no more than that such damage includes harm to the living organisms supported by the environment. I can understand the noble Lord's concern to ensure that the concept of environmental damage is as wide-ranging as possible. However, his amendment is unacceptable again because it seeks to establish the scope of the meaning of "damage to the environment" without defining the term itself. As I have implied in relation to Amendment No. 328C, the notion of the capability of GMOs to cause damage—and the possibility of taking pre-emptive action, if necessary, to prevent damage—is fundamental to Part VI of the Bill. That notion must be covered in the definition "damage to the environment". If the noble Lord's amendment were accepted, it would be lost, so I urge him not to press the amendment.
7 p.m.
Lord Nathan: The Minister has made two points to which I should like to refer. He has not answered the point that the damage—as he would say, feared rather than effective—to the physical environment is not, as I understand it, included in the definition in Clause 101(3). That was the main point to which I wished to draw attention.
It is difficult to have a definition of "damage to the environment" which comprehends the danger of damage to the environment. If that is the concept which it is desired shall be incorporated, something quite specific to cope with that point should be stated. As a simple concept in itself, "damage to the environment" seems to me scarcely to require definition at all. However, we are dealing here with an intricate and complicated area and I entirely accept that the phrase can appropriately be inserted

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here, provided that it covers damage to the physical environment as well as other matters.
It seems to me that my amendment meets the case. I shall clearly wish to consider carefully what the Minister has said and read his reply in Hansard. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 328C not moved.]
[Amendment No. 329 had been withdrawn from the Marshalled List.]
Lord Hesketh Lord Hesketh moved Amendment No. 329A:
Page 108, line 41, leave out ("article or other substance") and insert ("other thing").
The noble Lord said: To avoid any confusion, there is a number to the amendment which does not appear on the Marshalled List. I believe that I am correct in saying that it is Amendment No. 329A. I hope that that helps by way of explanation. Although the amendment does not have a number against it in the Marshalled List, it has a number none the less. In moving this amendment, I wish to speak also to Amendments Nos. 330A, 330B and 333ZA.
Amendment No. 329A is a drafting amendment. The effect of Amendments Nos. 330A and 330B is to extend the definition of "harm" in Clause 101(6) to cover harm to the health of humans as well as other living organisms. Amendment No. 333ZA is a consequential amendment which prevents the Secretary of State from imposing consent limitations under Clause 106 in connection with human health and safety matters under the Health and Safety at Work Act 1974. I beg to move.
On Question, amendment agreed to.
Lord Nathan Lord Nathan moved Amendment No. 330:
Page 109, line 7, leave out ("harm to the health of living organisms") and insert (", in the case of living organisms, harm to the health of those organisms").
The noble Lord said: This is another question of definition. It is not necessary for me to repeat the points that I raised earlier. According to the definition in subsection (6), "harm" means:
"harm to the health of living organisms".
The definition does not include harm to the physical components of the environment which are defined. It is the same point again. The amendment is designed to effect the same cure that I mentioned previously; namely, that "harm" in the case of living organisms means harm to the health of those organisms. Under the terms of the amendment, as in the case of damage, "harm" would apply equally to harm to the physical environment, which seems desirable. I beg to move.
The Earl of Arran: The effect of Amendment No. 330 would be to alter the definition of "harm" to emphasise that in the case of living organisms it means harm to the health of those organisms. We consider that the present wording achieves the same
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effect but in plainer language. I therefore ask the noble Lord to consider withdrawing his amendment.
Lord Nathan: I am much in favour of plainer language. My amendment has the merit of being somewhat shorter. However, I understand that the noble Earl feels it impossible to accept the amendment and I therefore beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Hesketh Lord Hesketh moved Amendment No. 330A:
Page 109, line 7, after ("or) insert ("humans or other").
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 330B:
Page 109, line 9, leave out ("means") and insert ("includes").
On Question, amendment agreed to.
Lord Craigton Lord Craigton moved Amendment No. 331:
Page 109, line 31, leave out ("deliberately causes") and insert ("fails without reasonable cause to keep it").
The noble Lord said: The question here is whether the words "deliberately" and "intentionally" mean more or less the same thing. Under the Wildlife and Countryside Act 1981, the word used in six different contexts is "intentionally"—not "deliberately"—destroys, injures, picks or uproots.
The Bill uses the phrase "deliberately" releases in a similar context. Under the 1981 Act, the Nature Conservancy Council, Bob Stebbings and many others were unable to secure convictions against offenders who deliberately destroyed bats or their roosts and who knew perfectly well what they were doing and that it was an offence. However, they pleaded to the court, "I'm sorry. I made a mistake. I didn't know. I didn't realise".
The word "deliberately" has the same weakness. The phrase that I suggest would prevent the offender from saying, "Sorry, I didn't know", because he should have known. The court can decide whether he failed to to keep control "without reasonable cause". I beg to move.
Lord Hesketh: The effect of Amendment No. 331 would be to change the definition of the circumstances when an organism is regarded to have been "released". Instead of referring to the deliberate act of releasing an organism, the amendment defines the term by reference to failure without reasonable cause to keep the organism concerned under control.
The effect sought—to cover the circumstances where a GMO is released because its owner fails to keep it under control—is already covered by the definition of "escapes" in Clause 101(10). That is why we resist my noble friend's amendment.
Lord Dean of Beswick: I rise in support of the amendment because recent history has shown us that when people are not obligated by law to carry out a function they often ignore it. One of the greatest sufferers has been the environment; for example, the wholesale pollution of some of the major rivers of Europe is supposed to have happened by accident, but I do not believe that. The noble Lord does us a

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service by drawing such matters to our attention on the basis that the obligation must be forceful and not as contained in the Bill.
Lord Craigton: I thank the noble Lord for his support. This particular point is causing us much worry as regards the 1981 Act. I have given the Minister notice of this and he knows exactly what are the arguments. However, if he is satisfied with the wording I must withdraw the amendment. Nevertheless, I remain rather unsatisfied and I very much hope that we shall not have a case in the future where someone says, "I am sorry, I made a mistake; but I did not mean to do it". In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 331 A:
After Clause 101, insert the following new clause:
("Advisory Committee on Releases to the Environment
.—(1) The Secretary of State shall as soon as practicable establish an Advisory Committee on Releases to the Environment, for the purposes of making recommendations as to releases of genetically modified organisms.
(2) The committee shall be composed of persons appointed by the Secretary of State.
(3) The committee shall advise the Health and Safety Executive and the Secretary of State on all matters relating to the releases of modified organisms into the Environment.
(4) The committee shall undertake the following activities —

(a) advising the Secretary of State on applications for consents under section 105 below, including any conditions to be attached to such a consent under section 106 below;

(b) the development of codes of practice and guidance for persons seeking to apply for consents;

(c) advising the Secretary of State on the possible categorisation of releases;

(d) advising the Secretary of State on the desirability or otherwise of research, in particular on matters relating to releases;

(e) reviewing on behalf of the Secretary of State the results of releases under consents granted in accordance with this Part;

(f) liaising as appropriate with relevant organisations in other countries;

(g) advising the Secretary of State as to any desirable changes to legislative provisions or to procedure;

(h) assisting the Health and Safety Executive and the Secretary of State in the event of any problems arising from the release or escape of a modified organism; and

(i) such other activities as the Secretary of State may specify.
(5) The committee established under this section shall submit an Annual Report to the Secretary of State on its activities, and he shall lay any such Report before Parliament.
(6) The Secretary of State shall publish any advice submitted to him by the committee, subject only to the exclusion of such matters as may be commercially confidential or confidential in the interests of national security.
(7) For the purposes of facilitating the exercise of its functions under this section, the Secretary of State shall ensure adequate information is available to the committee (and to such other advisory committees as may be appropriate) to enable any such committee to consider each application for consent over such period as may be reasonable, and to submit a recommendation to him, before that application is determined.
(8) For the purposes of subsection (6) above, the Secretary of State may determine that information is commercially confidential if its being published would prejudice to an unreasonable degree the commercial interests of a person, subject to the requirements of any current Directive of the European Community.").
The noble Lord said: I am moving this amendment which is tabled in the name of my noble friend Lord McIntosh of Haringey. He is unable to be here at present and has asked me to speak on his behalf. We have tabled this amendment because we are not satisified that the preconditions which exist for the committee, which the Government have introduced, will enable it to operate satisfactorily. We wish, at least, to test their views on the matter. We should like to see a committee which is able to carry out its work effectively; which will have an existence that is secure; which will have a definitive role and a right to be consulted on each case—that accords with the recommendations made by the Royal Commission—and which will also have minimum safeguards to secure public disclosure of information.
In our submission, the proposal we make in no way impairs the ultimate responsibility which the Secretary of State wished to underline in the course of debates in another place; namely, that he was ultimately responsible for such decisions. That remains inviolate so far as concerns this amendment.
We believe that the proposed advisory committee on releases to the environment which would be set up by the Secretary of State should be a statutory body. We propose that the main recommendations of the Royal Commission should be followed. Consequently, we are suggesting that the committee should be required as a matter of law to submit an annual report and that its advice should be published or at least publishable—leaving aside the important considerations, which we appreciate, that it may be necessary to exclude commercially confidential information or information relating to national security, so long as there is no abuse of that exception as is often the case at present. We also seek to ensure that the committee should have sufficient time and opportunity to consider each application for consent.
What then is the present position adumbrated by the Government? I do not know whether it is my fault, but the lights in the Chamber seem to be going out. Perhaps the lights are dimming all over the United Kingdom. Notwithstanding what has just happened, I want to try to cast some light on the situation.
The present position as perceived by the Government is that the committee should be a non-statutory body. Moreover, to make matters worse, it is a committee which can be replaced at any time at a stroke or on a whim by the Secretary of State. There is no requirement for the Government to consult the committee. Of course, it may be that matters will be referred to it by the Government, but equally the advice which it gives may well be put aside in a compartment of a drawer somewhere and completely bypassed.
The committee is not independent of the Government. There is no requirement for its advice to be published. I believe that, in a day and age when transparency is becoming—or, at least, it should be becoming—the norm, this is wholly unsatisfactory. Moreover, the Secretary of State is not required to indicate whether the committee's advice has been accepted or to give reasons for any decision he may make. Similarly, he has no obligation to consult

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the committee. I do not think that that is a very satisfactory situation.
The Royal Commission on Environmental Pollution made many pertinent recommendations. The amendment we propose addresses those recommendations which the Government seek to ignore. We suggest that the advisory committee should advise on the scope for categorising releases; advise on the need for research, especially on matters relating to releases; review the outcome of such releases, liaise with overseas organisations; advise on the possible need for changes in legislation and procedures; and produce an annual report on its activities, on developments in the subject and on the lessons which may be learned.
We also suggest that the Government should be under an obligation to consult the committee in the event of any problem arising from the release or escape of a modified organism. I do not think that any of those propositions is in the least revolutionary; notably they follow, as I said, the recommendations of the Royal Commission.
We also feel that it is appropriate that we should be following in this instance Article 19(4) of EC Directive 90/220, which concerns the deliberate release of GMOs into the environment. I put this question directly to the Minister: why should not that directive be followed in this legislation?
We seek to achieve by way of this amendment a real balance between the needs of commercial confidentiality and the requirements of public disclosure. We are in no way complaining about the composition of the Secretary of State's powers to set up the statutory committee in the way in which he thinks appropriate. Indeed, the Government have not failed that test and we make no complaint in that respect.
We also suggest that the advisory committee should have the role of drawing up codes of practice and guidance. That requirement is important at a time when, as has frequently been said during the course of our debates, we are facing a changing situation. Codes of practice need to take that fact into account so that industry can be guided, although it may not be possible to erect legal regulations in sufficient time to deal with the position. It would be helpful to receive from the Government some assurance that they see this role as being appropriate for the advisory committee. Should not the advisory committee also have a specific role in being able to draft regulations as well as codes of practice? I address that question directly to the Minister.
I have one complaint to make. The Royal Commission went to enormous trouble during three years of deliberations to consider the matter and to bring forward these substantive recommendations. However, the Government have sought to ignore them. The situation is even worse. The current advisory committees were not consulted before the Government issued a consultative paper on the introduction of modified organisms into the environment. They were not told of the conclusions reached by them following that consultation which have resulted in this part of the Bill. It is profoundly
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unsatisfactory that the situation should have evolved in this way. It means that one must in the future question the Government's attitude about the role of this particular advisory committee.
We know that as a matter of practice the Government have been somewhat cavalier about consultation. Why should we take them on trust in the future? It is with those—I hope that the Minister will agree—important points in mind which reflect upon the Government's future intentions about the committee, its scope and activities, that I raise this matter. I beg to move.
Lord Lewis of Newnham: I support much of what the noble Lord, Lord Clinton-Davis, has said. As Chairman of the Royal Commission, I am sure that many of his statements are right about the time we spent on that study, the intensity of our concern and the importance that the commission placed on the matter. I go so far as to say that the success of the application of GMOs would depend upon the release committee. It is important to give it good recognition. In addition, I am very much of the opinion that its work should be made public—a point to which I am sure we shall return on other amendments, as and when they come up—and that public access to information is important for success in this area of work.
The other important feature is that I should like to feel that if we were to give the committee more substance and standing, that would ensure a constant stream of applications to it. There would be no selection of applications. All applications for release would have to go before that committee.
Lord Addington: I give what support I can to the amendment. Much of what can be said has already been said by those who are expert in the field. Such a committee may not be necessary, but it would be useful. When it comes to those important issues, the Government cannot have too much advice, and the debate cannot be public enough. Too many decisions tend to be taken behind closed doors. There is always a danger of people looking for what they want to see from scientific advice rather than seeing what is actually there.
The Earl of Arran: We are sympathetic to the notion behind this amendment. Indeed, it conforms with the approach that the Government have already adopted on the provision of advice to the Secretary of State on the matters with which Part VI is concerned. Noble Lords will be aware that on 27th April the Minister announced details in another place of a single committee to advise on all aspects of the safety of the release to the environment of genetically modified organisms. Under the chairmanship of Professor John Beringer, the Advisory Committee on Releases to the Environment (ACRE) will advise on notifications and applications for consent to release GMOs and on research needs, proposals for regulations, written guidance and other matters. There is, however, no need for reference to ACRE on the face of the Bill since the Secretary of State can already obtain advice from whomsoever he chooses.

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Perhaps I may expand on the points made by the noble Lords, Lord Clinton-Davis and Lord Lewis. The committee will be able to function effectively. Noble Lords can be assured that it will be secure. Its role has been defined in another place. An undertaking has been given that information will be made available while giving due respect to commercial confidentiality. The committee will give advice on categories of releases, on research and on guidance. Assurances have already been given on those matters. Nothing will be gained by making the committee statutory. The release of information will be adequate to meet the requirements of the EC directives. The committee will advise on codes of practice.
However, we can understand the view that a statutory committee would lend weight to the Secretary of State's views. We are therefore prepared to reconsider noble Lords' arguments without any commitment that the Government will bring forward an amendment to provide statutory backing for ACRE. On that understanding, I hope that the noble Lord will be able to withdraw the amendment.
Lord Clinton-Davis: We welcome the position taken by the Minister in his response. The fact that he is prepared, without commitment, to reconsider the point means that we shall clearly have to return to it on Report. I thank noble Lords who have spoken in support of the amendment. Above all, I thank the Minister. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 331B:
After Clause 101, insert the following new clause:
("Duty to consult
.—(1) It shall be the duty of the Secretary of State before he makes any regulations in pursuance of this Part to consult such persons appearing to him to be appropriate and to take into consideration any representations made to him before issuing such regulations.").
The noble Lord said: The proposed new clause relates to the Secretary of State's duty to consult before making regulations. It provides:
"It shall be the duty of the Secretary of State before he makes any regulations in pursuance of this Part to consult such persons appearing to him to be appropriate and to take into consideration any representations made to him before issuing such regulations".
It is of great concern to many people that some of the most important parts of the regulatory system on GMOs will be settled by regulation and will not be debated during the passage of primary legislation. The Bill gives the Secretary of State a broad power to set down in regulations what should or should not be considered harmful for the purposes of the legislation. That power is designed to cater for those GMOs deliberately intended to cause harm; for example, those acting as pesticides which would otherwise be outlawed by the definition of harm.
It is obviously a power that should be used with great caution. There should be wide consultation with appropriate experts and interests before harm of any kind is exempted from the legislation. Other areas where the regulations will decide important
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issues of policy include the criteria for risk assessments, the circumstances under which a consent will be required, and the circumstances under which exemptions from any part of the system will be allowed.
Some of those matters will be determined by the requirements of the European directives on contained use and deliberate release; but as a general principle it is important that regulations receive wider debate than is possible under the usual system for laying statutory instruments.
The amendment is extracted from a parallel power in Section 50 of the Health and Safety at Work etc. Act. That proposal seems to be eminently sensible and reasonable bearing in mind the sensitivity that exists in respect of such matters. Without interfering with the power-making mechanisms, we believe that it is necessary, as a minimum, to consult such persons—that includes organisations—appearing to the Secretary of State to be appropriate. My advice comes from the Green Alliance whose members know a great deal about the issue. Their views should be respected. I beg to move.
7.30 p.m.
Lord Hesketh: The amendment would have the effect of imposing a statutory duty on the Secretary of State to consult before making regulations under Part VI. It comes, as the noble Lord pointed out, from Section 50 of the Health and Safety at Work etc. Act.
I can assure the Committee that the Secretary of State fully intends to consult on the full range of matters on which he has power to make regulations under Part VI. The Committee can be confident that consultations will be comprehensive and thorough; that the scientific community, both sides of industry, environmental groups and others will be included in consultations, and that all views will be taken into account. I believe that the noble Lord's amendment, though it parallels the commitment that I have given, would not surpass it.
Lord Graham of Edmonton: Again, I am sure that those outside the House will be obliged to the Minister, who said that the amendment is not necessary, not least because he intends that the Bill should do exactly what the amendment lays down. I am sure that he understands the anxiety of people outside the House who wish to make sure that they are consulted. The Minister has not said that every body that thinks it ought to be consulted will be. However I accept what he has said.
The Minister smiles and no doubt he and his advisers will have some idea of whom to consult. I do not mean that it will be a subjective, narrow list. It would be nonsense if the Minister did not include in his consultation the people with something sensible and useful to say. Not only should good relations be borne in mind but also the protection of the environment.
I am sure that those outside the House will read what the Minister has said. I earnestly believe that he has probably said much that may satisfy them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 [Risk assessment and notification requirements]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 331C:
Page 109, line 39, after ("import") insert ("or export").
The noble Lord said: I wish to move Amendment No. 331C and speak to Amendments Nos. 331E, 331H, 331P and 331U to 331Y. These amendments all relate to the export of genetically modified organisms. They would place persons seeking to export such organisms under the duty in Clauses 102 and 103 to undertake a risk assessment and precautions. They would also subject such persons to the possibility of a prohibition notice under Clause 104 and the enforcement provision in Clause 10. Most important, they would require the receipt of a consent under Clause 105. The Minister will understand that these are probing amendments at this stage.
We believe that the amendments raise a genuine issue of difficulty. It is recognised that there may be problems in legislating on them under solely United Kingdom provisions. The major concern is over the export of pesticides, which is covered by the Food and Environment Protection Act 1985. The Act does not make adequate provision for export control. It gives Ministers power to request information, but no more. As many GMOs are in practice likely to be pesticides, there is concern that this aspect of release should be dealt with in this legislation. There is concern too that GMOs may be exported to be used on a trial or experimental basis in less developed countries without adequate safeguards. As there is no international convention yet in place, it is felt that UK legislation should address the issue.
The basic problem, however, is the lack of regulation on GMOs other than in the United States and Japan and in the form of recently issued directives within the European Community. Clearly there is a practical limit on the extent to which UK legislation can regulate activities whose primary focus is an unregulated country, although it is presumably open to us to make requirements of people to the extent that they operate in this country in particular. The consent and risk assessment requirements could possibly be made applicable to exporters before an organism is transferred overseas. We ask the Minister to give his views on this point.
Amendment No. 331E deals with marketing within the European Community. The amendment looks at broadly the same issue in connection with the marketing of GMOs abroad and whether the duties under Clause 102 ought to apply. The intention of the amendment is to argue that the marketing of GMOs, whether it is intended that the sale should take place within the UK, the EC or further afield, should be subject at least to the requirements of a risk assessment and notification under Clause 102.
Similar considerations would arise as in relation to the larger group of amendments prompted by concern over pesticides. However, as the technology develops, the amendments would be applicable to a broader range of GMOs. The issue or marketing of genetically modified organisms arguably raises
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complex questions about the way in which their properties are projected for sale and the degree of knowledge imparted to the customer as to the likely levels of risk attached. For example, would it not be desirable for a firm seeking to market a GMO to carry out a risk assessment, to notify the Secretary of State and to be required to make at least a summary of that risk assessment available to any purchaser?
Given the lack of regulation across most of the globe, safeguards such as these would appear to be the minimum that would be acceptable to secure even broadly similar patterns of use in different countries. There seems to be little point in a finely developed regulatory system in Britain and the European Community if there are few, if any, constraints on the use of GMOs generated within those countries and sold outside. I beg to move.
The Earl of Arran: We agree that there are major problems in controlling and containing the risks associated with GMOs. That after all is the whole reason for Part IV. We can therefore understand the noble Lord's concern to see that the exported GMOs do not create problems for other countries.
The EC directives respectively on the contained use and deliberate release of GMOs contain provisions for the exchange of information on organisms and for clearance by member states before GMO products are marketed. These provisions will be implemented through regulations under Part VI of the Bill for the environment and the Health and Safety at Work Act for health.
In the EC setting, the problem which the GMO might present for the environment of another member state will be considered by that state. That is as it should be because only the receiving state can assess the problem for its environment which a GMO might present.
The noble Lord's amendments seek to go much wider than the directives in terms of the requirements to be applied to GMOs which are to be exported and, in the case of Amendment No. 331E, the countries in which those requirements will operate. While the noble Lord's intention is understandable, this Bill is not the place to pursue such an approach. The regime in Part VI can only take account of risk assessment factors which are relevant to this country and by virtue of the EC directives to the Community. It would be impracticable for the Secretary of State to take into account risk assessment factors relevant to other countries in reaching his decisions.
There is particularly the point that the noble Lord, Lord Graham of Edmonton, dwelt on for some time concerning the export of pesticides. The risk assessment of GMOs and GMOs contained in pesticides will necessarily have a United Kingdom-based risk assessment. The Bill is not the place in which to make provision for the export of pesticides. I understand fully that the noble Lord said that this was a probing amendment and I hope that these answers will satisfy him.
Lord Clinton-Davis: The noble Lord has said that this is not the correct vehicle through which to

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consider exports of pesticides to developing countries. Nevertheless, with respect, I should have thought that it was wholly appropriate to ascertain the Government's views about the possibility of an international convention on this. At present there seems to be absolutley nothing, as my noble friend said at the outset, about GMOs being exported on an experimental basis to developing countries where there may be wholly inadequate safeguards to prevent the population from being exposed to quite unnecessary risks.
That brings to my mind a situation which affected a proposal which was introduced by the Commission and for which I was responsible. I believe it was introduced in 1987. We considered that chemicals which were banned or severely limited for use in the Community—we were largely thinking of pesticides—should be the subject of a proposal for notification to the importing third world country as regards the nature of the chemical. Further, we decided the importing country should have the right to state within a specified time that it did not want the chemical. In that way a government could intervene to frustrate a contract made between an exporter and an importer in a situation where public health could be severely endangered. Equally the importing country could say that the public health element was not as important as getting rid of the pests by using the pesticide concerned.
That proposal was attacked by this Government—in fairness, many other governments also opposed it—on the grounds that one could only proceed to deal with this matter on the basis of an international convention. We are entitled to ask on this occasion what progress the Government have made and what action they have taken to stimulate activity to procure an international convention to eliminate the absolute scandal of the present time whereby literally millions of people according to the World Health Organisation are exposed to risks from activity of this kind. Health is being endangered and lives are being lost on a daily basis. I am glad that my noble friend raised this issue. I think it is appropriate to ask the Government where they stand, even though, as the Minister has perhaps properly asserted, this provision is not the right vehicle in a legislative sense to deal with what is an important matter.
Baroness White: I wish strongly to support my noble friend in this matter. While I entirely accept the submission by the Minister that this provision is not necessarily the right vehicle for legislation, we are, on the other hand, facing more and more problems as regards perfectly reputable firms, and some that are not quite so reputable, being frustrated in dealings with the more developed countries, particularly of the EC. Therefore, understandably in certain circumstances, they are seeking other countries where they can send their products. We are particularly concerned with pesticides at the moment, but there may be other areas which will concern us in the future.
Are the Government going to think actively about this matter? Will they not just take refuge in the fact that in this Bill we can go no further than our
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own shores? This matter is another aspect of the relationship between the developed and the developing world. We have faced similar problems as regards the disposal of toxic waste and other matters. In many ways this issue poses a more insidious danger than that of toxic wastes. People may act wrongly from the point of view of the interests of their country, but at least in the matter of waste it is easier for a lay person or a lay official to judge the situation. For lay people this is a much more difficult area in which to reach a conclusion. Lay people have great difficulty in knowing what they should do for the best. It is therefore all the more important that we should address our minds to this issue and discuss it in an international forum.
Lord Craigton: This matter is a great worry to all of us. I hope the Government will take the initiative to call a world convention or something of that kind to get this matter sorted out. The situation at present is very bad.
Lord Monkswell: I have two points to make. While this provision may not be the best vehicle to tackle the problem, we may have to adopt it because it is the only vehicle available to us if the Government cannot provide any other avenues of progress. Further, although superficially Her Majesty's Government are not responsible for what happens beyond our shores in terms of what is exported from this country, we must remember that the world is shrinking every day. Citizens from this country travel widely overseas. It is quite possible that our citizens will be affected by whatever we export to other countries. I believe that the Government have some responsibility in this area. As I have said, failing the advent of any other vehicle that the Government can suggest, we may have to resort to the vehicle we have in front of us.
The Earl of Arran: I should comment on the international anxiety that several Members of the Committee have mentioned. The United Kingdom Government support the pursuit of vigorous international action on GMOs and have been influential in the EC and OECD in securing rational and workable solutions. The United Kingdom will continue to work in international fora such as the United Nations Environment Programme, for a consistent framework of control which embraces and protects the interests of all countries.
7.45 p.m.
Lord Graham of Edmonton: I know that the Minister means well, but one is left with the impression that this provision is not the right vehicle for this matter. Everyone who has spoken acknowledges that. However, that will not prevent people outside and those who have spoken here tonight from taking any opportunity they can to draw attention to what they consider to be a potentially dangerous situation.
The Minister rested his case on the fact that there are limits to what we can do in the context of this country and of the EC. We cannot interfere too much with what happens in other countries. I remind the

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Minister that when organisms escape elsewhere in the world, for example at Chernobyl, they affect us all. I take the point of what the Minister has said about some of the initiatives which have been taken, which I respect and acknowledge. Nevertheless, we must be seen to be concerned about this matter.
Last week a large conference on the ozone layer took place. There was a Statement in another place on that matter today. I listened to the remarks made at that conference by a lady who I believe came from India. She said that it was all very well for the West to lay down conditions and dates for compliance with certain conditions. She said that her country did not want dates, but rather the technology to deal with the problem. At the end of the day literally billions of people will want to make the world a better place, but they are not so rich as we are and they are not as technologically advanced as we are. We were hoping that the Minister could tell us that he was well seized of our anxieties on this matter. We are concerned about our own health and the health of our children, but we are also concerned about our responsibility as human beings to other human beings throughout the world.
We have sought in this provision to try to deal with the issue so far as we can. The noble Lord, Lord Craigton, said in effect that we should take some initiative on this matter. The conference that ended last week was obviously not a direct step in this regard. In my notes I have written that there is no international convention yet in place to deal with this particular point. However, the noble Lord, Lord Craigton, said we should discuss setting up such a convention.
We are not fools and we know that finances and resources are limited and that the Government have certain priorities. The Government are not a free agent. Nevertheless, I think the Minister could have given a more sympathetic reply. I intend to withdraw the amendment. I do not know whether the Minister has a final word to say, even if it is only goodbye.
The Earl of Arran: I merely wished to say to the noble Lord, Lord Graham, that we entirely accept the valuable points that have been made by the noble Lord and many other Members of the Committee, too. We are anxious to continue to play a role in international fora. At this stage I do not believe that I can say anything more helpful than that we have listened very carefully to the anxieties put forward by Members of the Committee.
Lord Graham of Edmonton: I beg to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 331D:
Page 109, line 39, leave out ("release").
The noble Lord said: In speaking to Amendment No. 331D standing in the name of my noble friend Lord McIntosh of Haringey, I should also like to speak to Amendments Nos. 331J, 332J, 332K and 332N. The amendments would delete the word
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"release", and Amendment No. 332K proposes a new subsection reading:
"Subject to subsections (7) and (7A) below, no person shall release any genetically modified organism except in pursuance of a consent granted by the Secretary of State in accordance with any limitations or conditions to which the consent is subject".
The effect would be that every proposed release of a genetically-modified organism would be subject to a full consent procedure.
The Bill as drafted does not require that all releases of GMOs go through a consent procedure; namely, that they are subject to scrutiny by an expert committee which advises the Secretary of State on whether the release should take place and under what conditions. Clauses 102 and 105 set out three different levels of control. At the first level of control a risk assessment must be carried out and records kept. At the second level the Secretary of State must be notified. At the third level of control a consent from the Secretary of State must be obtained.
All of those different levels of control can be applied to the genetic modification "acts" covered by the Bill: importing, acquiring, releasing and marketing, in addition to keeping, which is not categorised as an act. It is not therefore clear that all releases will be required to have a consent. We are very concerned that no release to the environment should, at the present level of knowledge, be allowed to go ahead without being subject to a full consent procedure.
The 13th report of the Royal Commission on Environmental Pollution stresses that point. Paragraph 6.7 states:
"Given the lack of experience of releases of GEOs … and the certainty that the scope and power of genetic engineering will increase, it would be imprudent at present to define categories which may be exempted from scrutiny".
The RCEP has repeatedly sought clarification from Ministers as to what kind of releases are envisaged as not needing to go through the consent system. The only clarification has been that the matter will be settled in regulations.
In practice, in future years the use of exemptions could be expected to lead to amendments imposing a requirement for consents to all initial releases of GMOs. That is not specified in the Bill. It should cover at least all such initial releases in the UK whether or not the modification has taken place in the UK or releases have occurred elsewhere in the EC or the world. To comply with EC law some such consents would have to be automatic where permission has already been given in another member state with similar geography, but would nevertheless entail a formal agreement of the UK Government prior to release. An assurance that the UK competent authority would consult ACRE and possibly ACGM before consenting to a request from another member state to agree a release would be helpful.
The provision of a consent should involve ACRE examining the information provided by those intending such a release and then making a recommendation to Government. I beg to move.
The Earl of Arran: A fundamental premise of the structure of Part VI of the Bill is that it should be

1973
able to accommodate different types of GMO which present varying degrees of risk to the environment. The structure therefore provides a hierarchy of controls—risk assessment, notification and consent—which seeks to match the level of scrutiny required with the degree of risk presented. The Government strongly believe that that flexible approach is in the best interests of environmental safety and the biotechnology industry. It reflects the approach already adopted in the human safety field as well as the philosophy of the EC directives.
In practice many releases are likely to be among the most risky GMO activities and to require consent. However, we cannot see any advantage in seeking to build into the Bill the rigid assumption of the amendment of the noble Lord, Lord Graham, that the risk of all releases will be such as to require them to be subject to consent. Some releases are likely to be of low risk, for example, GMOs released into waste streams from contained manufacturing processes. Other releases may be seen to be acceptably safe in future as knowledge and techniques progress.
A provision for general consents, as sought by Amendment No. 332N, would achieve nothing that is not already achieved by the scope of the exemptions which can be prescribed under subsections (7) and (11) of Clause 105. The approach adopted allows us to respond to those various situations in a responsible and considered manner. It is for those reasons that I hope that I have succeeded in persuading the noble Lord not to press his amendment.
Lord Lewis of Newnham: I should like to speak to the amendment. I speak with some considerable concern. The Royal Commission spent a great deal of time discussing with a great many people their concern over this particular aspect. I understand that the process of sending such matters to the appropriate committee and seeking its opinion before release could be time-consuming. However, I do not believe that that need be the case. It is perfectly reasonable for the appropriate committee to deal with the matter very expeditiously.
However, I believe that the effect on the public at large is of tremendous importance. If what is assumed to be a simple, non-harmful, genetically-engineered organism is subsequently discovered to be dangerous and has not been considered by the committee it could be a recipe for disaster in the future.
At this stage we are in a very delicate situation in relation to the public at large. That is a point to which I keep returning. The public are worried about such organisms. I do not believe that they have any need to worry if we go through the procedure that has been laid down in the Bill, but I am concerned that blanket releases may be authorised for certain types of organism.
Lord Graham of Edmonton: The Minister has done his best but his reply was disappointing. He made much of the varying levels of risk that could be attached to the release of GMOs. One of the releases that he said would be considered less risky than
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others was emission into waste streams. Can the Minister tell the Committee why releases into waste streams are viewed as less dangerous than other forms of release? The Minister pointed out that some are more dangerous than others. However, we should like to know what are the criteria which determine what is potentially dangerous. We believe that the procedure that we propose, tiresome and time-consuming as it may turn out to be, is nevertheless the safest. I should like to hear what the Minister has to say about the point that I have just raised.
The Earl of Arran: Perhaps I may turn first to the point raised by the noble Lord, Lord Lewis. The provisions of Part VI, in allowing for a hierarchy of controls, are intended to apply for a long period and to cover a wide range of operations involving GMOs. The need is for a structure in the enabling legislation which would allow appropriately rigorous levels of control, risk assessment, notification or consent to be applied depending on the circumstances of the time. The degree of scrutiny appropriate to particular GMO proposals is mainly a matter for regulations, and in drafting those we shall take into account the views of the Royal Commission and others. The ACRE will also advise on that aspect.
With regard to the point raised by the noble Lord, Lord Graham, I have already said that we strongly believe that the flexible approach is in the best interests of environmental safety and also the biotechnology industry. I can tell him that many contained uses are of GLISP organisms which, as already pointed out, are considered not to pose a significant threat to the environment.
Lord Graham of Edmonton: I am genuinely not competent to argue the case; but there are others who are and they have spoken in this debate on this and other aspects of the matter. I spoke on the premise that the Minister is well advised and the integrity of that advice is not in question. But, as the noble Baroness, Lady White, said earlier, the Minister must give peace of mind to the public. The public become very concerned when they believe that what the Minister calls a flexible approach might mean that there will be less rigour applied to some situations than to others for no reason other than that it is more costly, time-consuming, wearisome or whatever to do the job properly.
All I can do this evening is take away this amendment, consider what the Minister said, and perhaps come back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 331E not moved.]
8 p.m.
Lord Hesketh Lord Hesketh moved Amendment No. 331F:
Page 109, line 41, leave out from first ("or) to ("any") in line 42.
The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 331G, 331K, 331L and 332B. These are all drafting amendments. I beg to move.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 331G:
Page 109, line 42, leave out ("may be") and insert ("are").
On Question, amendment agreed to.
[Amendment No. 331H not moved.]
The Deputy Chairman of Committees (The Viscount of Oxfuird): If the next amendment is agreed to, I cannot call Amendment No. 331K due to pre-emption.
[Amendment No. 331J not moved.]
Lord Hesketh Lord Hesketh moved Amendment No. 331K:
Page 109, line 45, after ("release") insert ("or market").
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 331L:
Page 110, line 10, leave out ("may be") and insert ("are").
On Question, amendment agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 331M:
Page 110, line 40, at end insert:
("(8A) The Secretary of State shall for the purposes of facilitating the effective implementation of this section issue a Code of Guidance covering matters to which it relates.").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 332C. These amendments deal with the code of practice relating to Clause 102 (risk assessment) and Clause 103 (general duties).
The purpose of the amendments is to probe the Government's intentions. I hope that the Minister will say something helpful to those who are interested in this matter.
In the case of these amendments, it is the Secretary of State rather than the advisory committee who would form the source of codes of practice. The amendments seek to learn the Government's intentions on these issues. It is envisaged that the advisory committee would have a substantial role in advising the Secretary of State on drawing up any such code.
The basic purpose is to enable the maximum degree of clarity to be achieved from the point of view of users of GMOs in the form of non-legislative guidance which could back up regulations and an evolving pattern of consents. A number of government departments are likely to be involved. The value of the guidance would be to establish so far as is possible common methods of working. That is the basis of the amendments. I beg to move.
Lord Hesketh: Amendment No. 331M would have the effect of requiring the Secretary of State to issue a code of guidance in connection with the risk assessment and notification requirements of Clause 102. Amendment No. 332C requires the Secretary of State to develop a code of guidance in connection with the general duty requirements of Clause 103.
I can appreciate that the success of Part VI in controlling the risks to environmental safety presented by GMOs will to a large extent depend on the quality of that guidance available to those involved in the biotechnology industry. One of the
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roles of ACRE will be to develop guidance on good practice, for example on the handling and containment of GMOs. However, the risk assessment, notification and general duty requirements are plainly stated on the face of the Bill, with adequate provision for the details of those requirements to be spelt out in regulations. We do not believe that a statutory requirement for codes of guidance would add anything that we do not already have in the Bill.
Lord Graham of Edmonton: I am prepared to take the Minister's word that the Bill already contains what the amendment seeks to achieve. However, as he knows, the Association of Metropolitan Authorities and other bodies feel that it would be helpful to have the code of guidance referred to in Amendments Nos. 331M and 332C written on the face of the Bill.
We are in the hands of the Minister who will have to carry responsibility in the future if anything goes wrong which might have been obviated had there been clearer guidance and practice. Those are responsibilities that the Government have to take. It is our responsibility to raise the issues, probe the intentions and place on record what we believe to be the best way forward. I do not dispute the Minister's observation that there is no need for this amendment. He recognises that guidance is required; but, as I understand it, that is already provided in some other form in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102, as amended, agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 331N:
After Clause 102, insert the following new clause:
("Public Registers on use of genetically modified organisms
.—(1) It shall be the duty of the Secretary of State to establish as soon as practicable and to maintain public registers containing prescribed particulars of—

(a) any notification of a use of a genetically modified organism under section 102(1) above;

(b) any application for a consent made under section 105 below, and any such consents together with any conditions at any time included in such consents under section 106 below;

(c) any direction issued under section 102(8) above;

(d) any notice issued under section 104(1) below;

(e) any notice issued under section 105(6) below;

(f) any notices issued under section 105(10) below;

(g) any conviction of a person for any offence under section 112 below;

(h) the information on the basis of which the Secretary of State has granted any consent, including any advice or recommendations made by any advisory committee; and

(i) information received in pursuance of the conditions of consents granted by the Secretary of State; and

(j) such other information as may be prescribed in regulations made by the Secretary of State.

(2) The Secretary of State shall make appropriate arrangements to secure public access to the information contained in any register.
(3) The requirements of this section shall be subject to any determination of commercial confidentiality or national security by the Secretary of State and information may, for this purpose, be regarded as commercially confidential if its being contained in the register would prejudice to an unreasonable

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degree the commercial interests of a person, subject to the requirements of any current Directive of the European Community.").
The noble Lord said: This amendment stands in the name of my noble friend Lord McIntosh. It is a new clause which goes into some detail.
In essence, the amendment specifies information which should be put on registers for public examination. The categories are parallel to those for the registers set up under the IPC part of the Bill together with some additional categories recommended by the Royal Commission on Environmental Pollution.
During the Commons Committee discussions of the Bill, the Minister in a letter to Members of the Committee announced an intention to set up registers of information but denied the need to write access to information on to the face of the Bill. The letter a1so stated:
"There will be occasions when great care will be needed in placing information on the register",
and went on:
"The right approach … is for the Secretary of State to proceed from a presumption in favour of releasing information, while recognising the need judiciously to limit the information as circumstances indicate".
That kind of assurance does not give adequate guarantees on public access of information as it implies that much can be left to ministerial discretion. We want to see a requirement on the Secretary of State to establish registers written into the primary legislation. I beg to move.
Lord Lewis of Newnham: With reference to the groupings, Amendment No. 336 touches on a different topic altogether. Therefore, I withdraw it from the groupings list. I shall speak to Amendment No. 338.
In Part VI of the Bill, no provision is made for public access to information about the release of GMOs. I believe that the Government consider that they already have adequate powers for that. However, Amendment No. 338, which stands in the names of my noble friend Lord Nathan and myself, is designed to ensure that the Secretary of State provides public access not just to information about the decision that he has taken but also the information on the basis of which the decision has been taken.
That provision leads directly from a recommendation of the Royal Commission. Recommendation 12.30 states:
"The legislation should empower the licensing authorities to allow public access to the information on the basis of which the Release Committee has made its recommendation. It should also enable them, if they considered it appropriate before allowing access, to invite the applicant to comment on the request for information and to take account of the applicant's views on commercial confidentiality".
It is important to recognise that there could be a problem with regard to commercial confidentiality although I believe that with the technique of genetic engineering one is concerned more with the method of intrusion of the gene, rather than the gene itself and where it is. It is an important feature that may be missed in some of the general considerations.
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However, because genetic engineering is a new science, there is a natural apprehension about it. It is a point that we have laboured on a number of occasions. I am reminded of my predecessor's phrase in a Royal Commission report which stated that secrecy fuels fear. I am sure that that is an important point that we must make absolutely clear. Public access to information such as the environmental risk assessment will help to allay that.
I hope that the Government will agree to provide information which goes beyond that normally contained in public registers.
8.15 p.m.
Lord Addington: I should like to support what the noble Lord has said. It is important to instil confidence with regard to public information. As has already been stated, ignorance is a great breeder of fear.
In this new field of scientific endeavour, we are dealing with matters about which no one is 100 per cent. sure because they are new and developing areas. Surely the public have a right to know what is going on. To have such a provision written on the face of the Bill would be a step forward.
Lord Nathan: Perhaps I may supplement what the noble Lord, Lord Lewis, said about information. There are two factors which drive one towards the necessity for the provision to the public (and I shall return to what I mean by that in a moment) of the maximum information about what has been released; and the grounds upon which that decision has been made which may go beyond what may be necessary in other contexts, in particular dealing with the chemical field.
So far there has been a certain distrust but no obvious indications of direct opposition to the development of genetic engineering on a wide scale. The advantages are enormous and they are widely recognised. On the other hand, there is very widespread concern about many factors with regard to the technique. They range from a general concern about interfering with the operations of nature and so forth—what has sometimes been called the Frankenstein syndrome—and the normal concerns about experiments and products produced by these completely novel techniques.
Certain leaders in the industries concerned have confirmed that if there is not the information, and not the public confidence, there is a great danger that the whole project of genetic engineering on a commercial scale may be frustrated by public opposition motivated by fear of the unknown. If one has such a reaction from the public, the whole industry will come to a stop. That is something that most of us would deeply regret. Information availability is crucial to ensure that the whole process can continue.
It is quite clear—it is inherent in the Government's proposals—that after a release there will be careful monitoring of the effect of the release. That is clearly essential. Monitoring of the effects of a release is not necessarily contained within the 200 square yards within which the release has taken place. It might be required over a very substantial

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area. We have in the Chamber a remarkable number of people who are engaged in such bodies as the Royal Society for the Protection of Birds and other nature conservancy activities. They know much about the conservation of nature and will be available to detect whether something peculiar is going on. They will be able to be brought into the monitoring system.
If the public do not know what has been released, it is extremely difficult to monitor the effect. Unless one knows what one may be looking for it is very unlikely that one will find what one seeks.
Those are two reasons why I believe that wide dissemination of information is crucial to the success of the project. I therefore strongly support the amendment.
Lord Hesketh: These amendments seek in various ways to make provision on the face of the Bill for the recording and availability of information about GMO operations. Amendment No. 331N imposes a duty on the Secretary of State to establish public registers of information on GMOs containing particulars of matters covered by Part VI. Amendment No. 338 requires public access to background information about release consents.
Perhaps I may make absolutely clear that the Government are as committed to allowing access to information about Part VI matters as they are to information about matters connected with any other part of the Bill. The precise nature of this commitment was set out by the Minister in a letter dated 1st March to the chairman of the Standing Committee which considered this Bill in another place.
We have already undertaken to set up public registers of information obtained under Part VI. The registers will give details of notifications made and consents granted. They will contain information on, for example, the nature of the GMO involved in a particular operation, the location of the operation and any foreseeable effects on the environment. In addition, information on such matters as prohibition notices issued, inspections made, convictions for offences committed, and so on, will also be provided.
We intend there to be a general presumption in favour of releasing information, with certain exceptions, whose good sense I hope that noble Lords will acknowledge. For example, certain deliberate releases of GMOs will often be for R&D trials and will be proposed for the express purpose of obtaining information for ongoing development of a potential product. In other cases, the risks may not be of a commercial interest as such but to the environment itself through wilful and perhaps malicious interference with, for example, release test sites. Reasonable exceptions to provide protection in such cases will be made to the information made available.
In addition to these very specific commitments on the release of information, noble Lords will be aware that Clause 105(4) makes provision for applications for consent to be advertised. In the light of these various points there is strictly no need for other
1980
reference to public access to information on the face of the Bill, in particular because the Secretary of State already has powers to disclose information on matters for which he is responsible. However, I can see that certain features of the amendment would bring Part VI into line with the information powers in the rest of the Bill and I will consider further whether some kind of statutory register of Part VI information would be appropriate.
Lord Graham of Edmonton: That is the best offer we are going to get tonight. I have looked at my supporters and they have nodded their heads. In the circumstances we are prepared to accept the explanation; it is a step in the right direction. I listened carefully and noted that much of what the Minister said is contained in Amendment No. 331N. By inference he made copious references to Amendments Nos. 336 and 338. It would be pointless to try to make points because the Minister has indicated that amendments will appear before us at a later stage. I am grateful to him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 331P not moved.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 331Q:
Page 111, line 13, at end insert:
("(1A) The Secretary of State shall, after consultation with persons involved in the acquisition, keeping, importation, or release of genetically modified organisms, develop Codes of Practice and Guidance and where appropriate, Regulations, for the acquisition, keeping, importation and release of such organisms, and such Codes, guidance or regulations shall specify the levels of containment necessary for the degree of risk associated with particular organisms.").
The noble Lord said: This is my cue. Clause 103(3), paragraphs (b) and (c), may be seen to be contradictory. They provide that if there is any undefined risk to the environment the person shall cease to keep the organism. The provision is too wide because there will always be a risk to the environment. The amendment attempts to require the Secretary of State to consult on the formulation of guidance and codes of practice as in the Health and Safety at Work Act. They will assist with the assignment of levels of containment necessary to minimise risk of escape into the environment and allow the specification of the containment necessary to retain the organisms within acceptable risk levels. I beg to move.
The Earl of Arran: As was said in relation to a previous group of amendments, a statutory requirement for codes of guidance or practice would add nothing to what already appears on the face of the Bill. Similarly, the qualifications to Clause 103 suggested by the noble Lord, Lord Graham, would not change what we already have. Whether risks are containable is a matter for judgment which can be interpreted only by the courts, and the noble Lord's additional words would not change that. For that reason I ask him to withdraw his amendment.
Lord Graham of Edmonton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 331R:
Page 111, line 23, leave out ("a") and insert ("an unreasonable").
The noble Earl said: This amendment is grouped with Amendment No. 332E. I move it in the same spirit as I supported an amendment tabled by my noble friend Lord Nathan and another amendment tabled by another Member of the Committee—I am afraid that I cannot remember who. All three of us were an example of Homer nodding because the matter was dealt with on the next page of the Bill. However, I hope that the fate will not overtake these amendments.
The amendments are intended to provide the courts with a viable Act which can be interpreted by the use of common sense and good judgment. There is no doubt that we live surrounded by risks. Some of them we can identify but others await identification and we know nothing of them. When identified it often transpires that the risks as they emerge are greater than others we were getting into a tizzy about earlier. We would have done better to try to concentrate on identifying them.
The amendment alters the wording slightly so as to provide for "an unreasonable" risk and "an unacceptable" risk. It is left open for those who interpret the Act to exercise good judgment in listening to evidence. If a risk is left unqualified there is a permanent ban on anything that can be identified as a risk, however small. Therefore the amendment is an improvement in draftmanship.
As was said by my noble friends Lord Nathan and Lord Lewis, there is a danger in alarming the public unduly. One must remember that the media are permanently in a conspiracy to get the public into a state of neurotic anxiety. It is quite unnecessary. Nature is always producing attack and counter-attack. I attack the lawn; I rip up the turf and plant a rose bed. The difference between the turf and the rose bed is purely subjective from the standpoint of preference. Nature proceeds to counter-attack by launching an avalanche of greenfly on to my roses. Being wise in my generation I perform various tricks to encourage the breeding of ladybirds which will eat the greenfly. Life is a pyramid based on death and we are at its apex.
There are many advantages in some of the newly-engineered organisms but they contain an element of risk. The balance of advantage over risk calls for very nice judgment. We ought not to make that nice judgment impossible by putting an unqualified ban on whatever may contain an aspect of risk as we move into the future. I beg to move.
The Earl of Arran: We agree that efforts to prevent damage to the environment should concentrate on GMOs, which present real rather than trivial risks and we can see that the noble Earl's amendments seek to point up the distinction between real and trivial risks. However, I do not consider that the qualifications proposed would help us in determining the acceptability of the degree of risk presented by particular GMOs. Whether risks are unreasonable or unacceptable is a matter of judgment based on the facts of individual cases. The
1982
terms "unreasonable" and "unacceptable" would not provide meaningful guidance as to their interpretation. Any risk of damage to the environment should be taken into account. The need is to eliminate the risk to the point where it becomes too trivial to warrant further action. The noble Earl's words would not get round the need to weigh up and assess the risks before taking any action in connection with GMOs. For those reasons I ask him not to press his amendments.
The Earl of Halsbury: I shall not divide the Committee at this hour but I found that a disappointing reaction. I was trying to mobilise the characteristic of intelligence which is said to distinguish man from the brute but alas so rarely does. I sought to mobilise it so that it is brought to bear on the construction of an Act of Parliament which comes before the courts, which should decide other than by pure reflex action. Of course the noble Earl is right in saying that the construction which I propose calls for interpretation, intelligence and in the summoning of evidence as to how the risk should be quantified. However, the Bill puts a ban on any act of judgment and I find that totally unacceptable.
Since the hour is late and since the noble Earl is not in a yielding mood, I must reserve my position until Report. In the interim I hope to convince him that I am not talking nonsense and that it is a worthy amendment which will improve the quality of the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3315 to 331Y not moved.]
8.30 p.m.
Lord Craigton Lord Craigton moved Amendment No. 332:
Page 112" line 8, after ("cost") insert ("in view of known present and possible future dangers").
The noble Lord said: I was unable to move my Amendment No. 83, which deals with exactly the same point. If this amendment is agreed to, I shall move formally Amendment No. 83 on Report.
When I read this Bill I was perplexed about the meaning of "excessive cost". There was no help in the Bill and when I read the Second Reading debate I realised that I was not alone in that. At col. 490 the noble Lord, Lord McIntosh, worried that the Minister's practice note could be interpreted as putting cost above environmental protection. Later he said that it could be subject to misinterpretation. At col. 510 the noble Lord, Lord McNair, in his maiden speech, asked what criteria we should consider in deciding the question of excessive cost. At col. 542 the noble Baroness, Lady Nicol, observed:
"I have yet to hear anyone explain what 'excessive cost' means".
At col. 578, in reply, the Minister referred to the interpretion paper deposited in the Library, which he said, light-heartedly, "will allay many fears". Should this Bill give rise to fears which can only be allayed by reading a separate paper?
What did the Minister say about excessive costs? Page 3 of the paper states:
"If, for instance, there is one technology which reduces the emission of a polluting substance by 90 per cent. and another

1983
which reduces the emission by 95 per cent. but at four times the cost, it may be the proper judgment to hold that because of the small benefit and the great cost the second technology would entail excessive cost. If the emissions were particularly dangerous, on the other hand, it [might] be proper to judge that the additional cost was not excessive".
On what criteria are "excessive" to be judged and by whom? Turning to page 1 of the Minister's paper, he states:
"In the last resort the courts could overturn a decision if it was manifestly unreasonable".
Every Member of this Committee knows that what the Minister says in interpreting a clause in a Bill as recorded in Hansard is not the law of the land, nor is the Minister's paper in the Library. The Minister and his staff have access to the paper in order to intepret "excessive". However, can we be assured that the courts will have a copy of the paper? Are the courts not entitled to rely on what is in the Bill? We are agitating about practices which may involve great and unknown dangers for the nation and posterity. There may, and possibly will, be differences between scientists. For the court to give an opinion it has to be established that the technique used will protect us from all known and possible future dangers. Should that not be in the Bill? I beg to move.
Lord McNair: I should like to support everything which the noble Lord, Lord Craigton, said. I thank him for referring so kindly to my maiden speech and I support the amendment.
Lord Hesketh: Amendment No. 332 makes a qualification to the requirement for those releasing GMOs to use BATNEEC to prevent damage to the environment. The qualification proposed—that BATNEEC should be applied:
"in view of known present and possible future dangers"—
is not unnecessary. It is unnecessary because BATNEEC already embraces the notion that circumstances may change. It means that those releasing GMOs are constantly to review the risks of damage to the environment and to take appropriate action. The noble Lord's qualifying phrase is therefore redundant because this process will always involve having an eye both on present and on possible future dangers.
The phrase is not satisfactory because it implies a weakening of the BATNEEC requirement. BATNEEC provides a necessary long-stop against the risk of damage to the environment remaining undetected by the consent and notification system. I can understand that there may be some anxiety about its meaning in particular cases. I can assure operators, and the Committee, that expert guidance on good practice, on which the Advisory Committee on Releases to the Environment will advise, will be provided in an easily-updated form. A further safeguard is contained in Clause 106, which provides a procedure for the resolution of conflict between consent conditions and BATNEEC.
When my noble friend referred to page 3 of the document in the Library, I thought that the words he used were a rather admirable explanation of how
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one can solve a difficult problem. Cost is not put above environmental protection. Cost has to be weighed against the protection for the environment and the ability of the person to pay for protection. That has also to be taken into account.
In answer to the question posed by my noble friend, at the end of the day the ultimate arbiter will be the courts. I hope that, in the light of that explanation, he will withdraw his amendment.
Lord Craigton: Before the Minister sits down, is he intending to allow the courts to have a copy of his paper or is he relying on what he said? It worries me that the courts have no guidance if it is not written upon the face of the Bill.
Lord Hesketh: It is virtually impossible to put everything on the face of the Bill. We should finish up with a Bill of impossible length.
Lord Craigton: I shall use the well-known phrase that I shall read carefully what the Minister said and consider whether to return to this matter on Report.
Amendment, by leave, withdrawn.
[Amendment No. 332A not moved.]
Lord Hesketh Lord Hesketh moved Amendment No. 332B:
Page 112, line 15, leave out ("or to release") and insert ("to release or to market").
On Question, amendment agreed to.
[Amendment No. 332C not moved.]
Clause 103, as amended, agreed to.
Clause 104 [Prohibition notices]:
[Amendments No. 332D and 332E not moved.]
Clause 104 agreed to.
Lord McNair Lord McNair moved Amendment No. 332F:
After Clause 104, insert the following new clause:
("The Genetic Modification Commission
.—(1) There shall be established a body to be called the Genetic Modification Commission (in this Part referred to as "the Commission") to perform the functions assigned to it by or under this Part.
(2) The members of the Commission, of whom there shall be not less than eight, shall be appointed by the Secretary of State after consultation with such organisations as they consider appropriate.
(3) The Commission shall give to the Secretary of State advice on matters relating to the execution of this Part of the Act or the exercise of any power conferred by it, or otherwise relating to genetic modification, where either the Commission consider it expedient, or they are requested by the Secretary of State to do so.").
The noble Lord said: Amendment No. 332F is an important amendment and makes good a serious omission from the Bill. While we on these Benches welcome the setting up of committees to cover the environmental and safety implications of notifications and consents, we strongly believe that there is also a need for a genetic modification commission. This body would consider longer term questions rather than ad hoc situations because there are considerable long-term economic, social and ethical issues raised by genetic modification. Such a commission would also have a remit to consider all aspects of GMOs, from broad ethical questions to

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those of a detailed technical nature, and should not be confined to considerations of ethics alone.
The proposal is modelled on that in Section 2 of the Medicines Act 1968, which seems to us to have sufficiently broad terms of reference. The membership of the commission should reflect different kinds of expertise, including scientific, technical and employee interests, although these should perhaps not be listed in the terms of reference in the interests of future flexibility. The terms of reference should express the commitment in general terms.
Members of the commission, who would be appointed by the Secretary of State, could be nominated by interest groups but should not be mandated by them so that individual members are not tied to a particular stance on any issue. I beg to move.
Lord Graham of Edmonton: I rise because the name of my noble friend Lord McIntosh of Haringey is on the amendment. The basic points have been covered very well by the noble Lord, Lord McNair.
The amendment gives dignity and status, which in turn will earn respect from those from whom respect should come, for what is being done in this field. The logistics of the provision could be improved or amended. The Minister and his advisers are aware that the genesis for the genetics modification commission comes from the recommendation for the setting up of the Medicines Commission. That seemed to us to have sufficiently broad germs of reference to be helpful.
As the noble Lord, Lord McNair, points out, it will provide a synthesis for bringing together various kinds of expertise—scientific and technical—public policy, community and employee interests and a great deal more. I hope that the Minister can accept the amendment.
The Earl of Arran: The general responsibilities of this proposed commission are very widely expressed, while its particular purposes, as described in the noble Lord's amendment, are already served by other means. The Advisory Committee on Genetic Modification (ACGM), set up under the Health and Safety Commission's powers under the Health and Safety at Work Act 1974, exists to advise on general questions of genetic modification. So far as releases to the environment are concerned, the Secretary of State will be advised by the Advisory Committee on Releases to the Environment (ACRE), whose membership was announced by the Minister in another place on 27th April.
The noble Lord's amendment would add nothing to the roles already carried out by ACGM and ACRE. It is for that reason that we cannot accept the amendment.
Lord McNair: Obviously I am disappointed by the reply of the Minister, but I shall consider his comments and reserve the right to bring the matter forward at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 332G:
After Clause 104, insert the following new clause:
("Liability
.Any person to whom section 102 applies shall be liable for the damage and injury to the environment caused by any organism to which this Part applies to which his duties under that section relate, irrespective of fault on his part.").
The noble Lord said: In moving Amendment No. 332G standing in the name of my noble friend Lord McIntosh of Haringey I shall speak also to Amendment No. 340ZA. These amendments deal with strict liability, and the Minister's advisers may see that they approach the issue from a different angle. They could be looked upon as alternatives. The first is modelled on wording from the draft EC directive on civil liability for damage caused by waste.
The imposition of a duty of care and strict liability for damage to the environment are areas of concern. The Royal Commission has expressed concern that civil liability in relation to GMOs is not adequately catered for. There is concern that traditional liability law, which covers damage to persons and property, would not adequately cater for the environment where it is in common ownership. The draft EC directive, from which the first formulation was drawn, seeks to establish strict liability for damage to the environment and gives both public authorities and common interest groups the right to take action.
This is a probing amendment, as are many that have been moved from this side today. We are anxious to obtain the Government's views of the matter. Perhaps I could remind the Minister that the Royal Commission, in paragraph 8.19, supported strict liability where any person released a GMO without the necessary consents. A number of observers take the view that this foundation is too cautious, leading to complex moral issues thrown up by Clause 106(5)(c), where the concept of best available techniques not entailing excessive cost (BATNEEC), which already sits awkwardly in Parts I and II of the Bill, is applied to the possible release of GMOs. I beg to move.
The Earl of Arran: Part VI, in common with other parts of the Bill, makes no special provision regarding civil liability for damage to the environment. Its purpose is to set up a statutory scheme for the regulation of activities involving genetically modified organisms. This scheme is enforced by a system of criminal offences, with stiff penalties which include fines of up to £20,000 on summary conviction and unlimited fines for some offences on conviction on indictment.
In addition to the criminal penalties which can be imposed, Clauses 114 and 115 provide that, where an offence has been committed, the offender can be ordered by the court to take steps to remedy the matters in respect of which he has been convicted and he can be required to cover the costs of remedying the harm caused. These provisions flow from the provisions regarding criminal offences and are entirely appropriate to the provisions of Part VI.

1987
The statutory scheme set up on Part VI is quite separate from questions of civil liability. There already exist provisions regarding civil liability which will apply to genetically modified organisms and they include the strict liability which is sought to be imposed by Amendments Nos. 332G and 340ZA. In the case of Rylands v. Fletcher liability for damage caused by the escape of dangerous things, without proof of negligence, was held to exist. The judge in that case (Judge Blackburn) said:
"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape".
Even though that was written in 1866, it would appear to be entirely apt to deal with genetically modified organisms.
If it is said that there are exceptions to the rule in Rylands v. Fletcher, this is true. The rule applies only where the dangerous things escape from land. But the rules as to occupiers' liability will apply where they have not escaped and the damage occurs on the land on which the GMOs are kept; and the rule of strict liability applies only where there is some special use bringing with it increased danger. But where there is no such danger there can be no reason for imposing liability where it would not otherwise exist. I ask the noble Lord not to press the amendment.
Lord Graham of Edmonton: I am grateful to the Minister for the care he has taken in explaining why the provisions of the amendment are not necessary in the context of the Bill. I shall read carefully what he has said and may come back later. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 332H to 332K not moved.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 332L:
Page 113, line 37, at end insert:
("(4A) In prescribing the level of information and manner of advertisement required for the purposes of subsection (4) above, the Secretary of State shall secure that—

(a) sufficient information is available in the advertisement to enable any person to make any objection, and in particular he shall ensure that, notwithstanding any considerations of commercial confidentiality, information at a level not less than that required in any relevant Directive of the European Community shall be prescribed;

(b) any advertisement of an intention to release a genetically modified organism shall contain a description of the organism, name and address of the notifier, purpose of release and location of release; and

(c) notice shall be published as soon as practicable in the London Gazette or, as the case may be, in the Edinburgh Gazette.").

The noble Lord said: In moving this amendment I speak also to Amendment No. 332M. These amendments deal with advertisements. The purpose is to specify minimum levels of information in advertisements concerning applications for consent and to require their placement with a single source.
Clause 105(4) contains a requirement for an advertisement regarding application for consent. It
1988
was explained in Committee in the Commons that it is intended that this should happen before consideration of the application by ACRE and will allow the committee to consider representations by those concerned when the application is made. However, what right would those seeing the advertisement have to information which would allow them to produce a reasoned objection to the application? The opportunity to comment is part of a specific recommendation by the Royal Commission, in its report, paragraph 8.27. The amendment specifies minimum levels of information in advertisements and that there is a single form for advertisements, not merely notifications in local papers.
The minimum level of information specified by EC directives includes, as mentioned earlier, the nature of the organism, the place of release, the name and address of those intending the release, and so on. I beg to move.
Lord Hesketh: The effect of Amendment No. 332L would be to require the Secretary of State to ensure that advertisements in relation to consents included sufficient information to enable an objection to be made and that they complied with the information requirements of the EC GMO directives. It would also require a certain minimum amount of information to be included and advertisements to be published in the London Gazette or Edinburgh Gazette. In some ways this reminds me of a similar amendment last year in respect of the Water Bill.
The amendment is unnecessary because Clause 105(4) already provides for the Secretary of State to prescribe the information and advertisement requirements which will be necessary to his consideration of consent applications. The UK has an obligation to implement the EC GMO directives by September 1991 and the information and other requirements of those directives in respect of environmental safety will be implemented through regulations under Part VI. The information requirements of the directives conform with the substance of the noble Lord's amendments. Since we already have an obligation, in effect, to do what he wants as well as the means to do it, his amendment is unnecessary.
The effect of Amendment No. 332M would be to make provision for the Secretary of State to prescribe for the exemption from the consent requirements of certain kinds of organisms or types of organisms. I can appreciate the reasoning behind this amendment. The risks associated with certain kinds of releases might be such that it would not be necessary to apply the full-blown consent procedures to them. Certain kinds of innocuous waste-streams arising from some contained industrial GMO processes may well fall into this category. However, it is the person using the GMO who will be responsible for its effects. I think the wording of Clause 105(7) and (11), which contain the provisions for the Secretary of State to make exemptions, better reflects that idea as it stands. That is why we resist Amendment No. 332M.
Lord Graham of Edmonton: I perceive that the Minister and his advisers appreciate what I seek to

1989
achieve with these amendments. Although the noble Lord did not use the words "sympathy", "understand" or "appreciate" I believe that he was sympathetic and that he understood and appreciated what we are seeking to do. When we read what he said I believe there will be a great measure of satisfaction throughout the Committee in respect of the point that we have sought to make. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(Amendments Nos. 332M and 332N not moved.]
Lord Hesketh Lord Hesketh moved Amendment No. 332P:
Page 114, line 14, leave out from ("the") to ("holder") in line 15.
The noble Lord said: This is a technical amendment. I beg to move.
On Question, amendment agreed to.
Clause 105, as amended, agreed to.
Lord Lewis of Newnham Lord Lewis of Newnham moved Amendment No. 333:
After Clause 105, insert the following new clause:
("Duty to send copies of advisory committees' recommendations to interested parties
. —(1) The Secretary of State shall send, to a person who has applied under section 105 above for a consent and to any person who has made a representation to him in respect of the application, a copy of any recommendation from an advisory committee on the basis of which he is considering the application.
(2) The Secretary of state shall take account of any representation received as a result of the information supplied under subsection (1) above.").
The noble Lord said: I move this amendment which is tabled in my name and that of my noble friend Lord Nathan. I begin by apologising. Our drafting has been so subtle that we seem to have missed the point. The clause heading in the margin reads;
"Duty to send copies of advisory committees' recommendations to interested parties".
That is the beginning rather than the end of the story. What we are really seeking to raise is the fact that the Bill makes no provision for an appeal against the Secretary of State's decision on an application for consent to release a GMO.
Since there is no appropriate higher authority to consider appeals, the amendment proposes to allow the Secretary of State to take his decision but, before doing so, that applicant or anyone who made representation should see the recommendations that the Secretary of State received from his advisory committee. That would give an opportunity to challenge the recommendation and would be a substitute for an appeal system. This proposal was made by the Royal Commission on Environmental Pollution in its 13th report. The point was simply that it was generally felt that some form of appeal system was required but that we could not see our way to implement it in any direct sense. Therefore, the proposals in the amendment seem to provide a mechanism whereby we could essentially have an appeal system in operation de facto if not de jure. The amendment touches on a number of other proposed amendments. I beg to move.
The Earl of Arran: Amendment No. 333 imposes a duty on the Secretary of State to send copies of the advisory committee's recommendations on consents to the consent applicant and persons who have made representations on the application.
The Advisory Committee on Releases to the Environment (ACRE) is charged with advising the Secretary of State on the environmental aspects of consent applications. The membership of ACRE has been announced and we believe the Committee will agree that the skills of the members are comprehensive and very wide ranging. We have every confidence that its advice to the Secretary of State will be of the highest quality. At the end of day, decisions taken in respect of applications are for the Secretary of State alone. It would be inappropriate—as well as confusing—for other parties to prolong the debate after he has been advised by ACRE.
As a background to all of this, there can be no question but that the Secretary of State will have sufficiently wide powers under Clause 105 to obtain all the relevant information he needs to consider applications properly. This includes information obtained from other parties as the result of advertising and specific notification as well as information from applicants. In practice, ACRE will work closely with applicants and other interested parties in developing recommendations. This will include, for example, inviting applicants to committee meetings to answer questions about proposals.
I hope that the noble Lord, Lord Lewis, will accept that the Secretary of State will make decisions about consents on a well-informed basis and that it would be inappropriate to make the system more elaborate. For those reasons I hope he will not press his amendment.
Lord Dean of Beswick: The noble Lord, Lord Lewis, has made a reasonable and positive case for his amendment. I have to say with some sadness that Ministers keep falling back onto the powers given to the Secretary of State and what he can do. We know from the past few years, and even longer ago that successive Secretaries of State have not been models of consistency. Their approach to subjects can often differ depending on personality. I do not want to go into detail at this hour of the night about Ministers who have been removed from office for various causes or non-causes by the present Prime Minister.
It is not good enough to say that because the Secretary of State is given certain powers and responsibilities it follows that that is the answer and that, in the wider concept, people will obtain the information. As a layman looking at the origin of this amendment, it has not been put forward by people with a political axe to grind. The amendment has been tabled by those with expertise in the subject transcending the knowledge of any Secretary of State who usually falls back for advice given in the main by his civil servants. I do not know what the noble Lord, Lord Lewis, intends to do about the amendment, but it is worthy of far more consideration by the Minister than it has been given hitherto.
9 p.m.
Lord Nathan: This amendment has a certain relationship to the question of public information. The issue of information available to the public sounds innocent. It would be true if it were limited to the ordinary person such as me expressing views on particular GMOs and their consequences. That would carry no weight at all.
That point about the availability of public information is not only that the public at large should have it, but that they can also appoint experts in the field who will advise them how matters should be dealt with. One can imagine that a public interest group might engage an eminent scientist to look into a particular application for the release of a GMO. It is entirely sensible that that should happen and that the people appointing him, or the person himself, should be able to make representations to the Secretary of State concerning a decision shortly to be made by him so that the representative may inform the Secretary of State of his views.
That is a way in which the right of appeal on the technical aspects can be dealt with. The difficulty one has in establishing a right of appeal is that if one is vesting the Secretary of State with the power, it is not practical to have an appeal in the ordinary sense of the word. This provision is a substitute for that, and it is an appropriate method of dealing with the problem.
Lord Monkswell: I support this amendment. There are two points to be made. It seems that we have here a very elegant mechanism to provide the Secretary of State with a second bite of the cherry; namely, an opportunity to look at the matters twice. When one considers the position of this Chamber, that is exactly what Parliament provides for the Government—that is to say, the opportunity to have two bites of the cherry; one in the other place, and one here. There is a considerable precedent for that.
The other matter is the practical implications. We are talking about a very new field of knowledge. We must proceed very carefully as that field of knowledge develops. I shall give one example of another field of new knowledge where it appears that a mistake was made in the development of wave power. A group of experts analysed the economics of wave power and produced an answer which, some years later, was demonstrated to be erroneous.
I am sure that if the mechanism suggested by this amendment had been available then, and there had been an opportunity for public scrutiny of the recommendations made to the Secretary of State and for further responses to be made, that error might have been picked up many years ago. For those reasons, I also support this amendment.
Baroness White: We should take this matter seriously. This amendment may not be the best way of dealing with it. If I am correct in my supposition, as things stand there is no obligation on the Secretary of State to explain to anyone the basis on which he may reach a perfectly valid conclusion. It is possible that it may not be an entirely satisfactory conclusion. However, a Secretary of State is under no obligation
1992
to explain why he has reached a certain conclusion. I assume that he gives his decision on the application that has been made to him.
In this rapidly-developing field there are so many uncertainties. There may be an advantage in making the reasons apparent—one might use the word "transparent" which is so popular in Brussels—so that one has some idea what led the Secretary of State to reach a conclusion. We should think a little more about this matter; namely, in what way members of the public and the scientists concerned are to know of the mental process which led the Secretary of State to come to his conclusion. To achieve that there must be some provision for the applicant to publish, or make public use of, the reasons for the decision reached by the Secretary of State.
It is this situation which worries some of us who are not necessarily competent to judge the scientific basis of the Secretary of State's decision, but who would like to follow the reasoning at what I might call a New Scientist level.
The Earl of Arran: Perhaps I may make clear to the noble Lord, Lord Nathan, that the advertisement proposals will ensure that any person can approach the Secretary of State and/or the person proposing the release. For the benefit of any Members of the Committee who were not here earlier this evening, we have already indicated that we shall be considering the position of registers.
In answer to the noble Lord, Lord Dean, it is not as though the Secretary of State were acting in limbo. The Advisory Committee on Releases to the Environment (ACRE) has the responsibility of advising the Secretary of State about consent applications. It is an extremely well-informed and highly qualified body of people. We have every confidence, as I have said before that its advice to the Secretary of State will be of the very highest quality at all times.
Baroness White: That is not the point at issue. We are not denying for a moment that the advice may be admirable. One would expect the advice to be well-founded. The point is this: who will know what the advice was?
Lord Dean of Beswick: I hope that I am in order in rising at this time. My noble friend Lady White made the point that I was intending to make. My noble friend's previous point was a vital one. She said that the Secretary of State would make the final decision. As she and the Minister said, he has probably got the finest advice in the land, but from what the Minister says it almost puts the Secretary of State in an unchallengeable position. When he makes the decision, he may choose to discount the advice that he is given. It has not been unknown for Secretaries of State in a variety of matters to have flown in the face of advice. If the press reports are correct we have just had a perfect example of this in what happened to nuclear energy, when it appears that a Secretary of State totally discounted all the advice given by the experts in that field.

1993
I think that the Minister must change his stance a bit. If he says that the body that will be advising the Secretary of State will be composed of experts and that they will be marvellous people, perhaps the best in the world or the best in the land at their profession, I should not dispute that for one moment. But I dispute that it then leaves the Secretary of State in an unassailable position to take a decision that so far as I can see would even be difficult to challenge in the courts of the land.
That is a dangerous situation in an area where the frontiers of science are expanding. As a layman I think that it is a dangerous situation for us to be left in. The Government have to come across with something a bit better. They keep falling back on the fact that there will be expert advice analysed by the Secretary of State and he can then deliver his verdict. The matter will not be resolved tonight, but my view is that that is not good enough.
Lord Lewis of Newnham: I thank noble Lords who have spoken in favour of the amendment. It clearly is a difficult point. I am somewhat disappointed that the Minister cannot see a way of applying this type of what I believe to be a gentle form of appeals system which would allow people at least to have faith and establish what they believe to be the actuality of the situation. However, I see on looking at the Marshalled List that we are to have yet other cases of appeal systems being brought forward, so if I may I should like to contemplate what has been said tonight and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 106 [Consents: limitations and conditions]:
Lord Hesketh Lord Hesketh moved Amendment No. 333ZA:
Page 114, line 25, at end insert ("; but no limitations or conditions shall be imposed for the purpose only of securing the health of persons at work (within the meaning of Part I of the Health and Safety at Work Etc. Act 1974).").
The noble Lord said: I beg to move Amendment No. 333ZA. I have spoken to this amendment.
On Question, amendment agreed to.
[Amendment No. 333ZB not moved.]
Lord Hesketh Lord Hesketh moved Amendments Nos. 333ZC to 333ZC:
Page 114, line 40, after ("informed") insert ("(by reference to the nature of the organisms and the manner in which he intends to keep them after their importation or acquisition)").
Page 114, line 41, leave out ("may be") and insert ("are").
Page 115, line 3, leave out ("may be") and insert ("are").
Page 115, line 15, after ("informed") insert ("(by reference to the nature of the organisms and the extent and manner of the release or marketing)").
Page 115, line 16, leave out ("may be") and insert ("are").
The noble Lord said: I beg to move en bloc Amendments Nos. 333ZC, 333ZD, 333ZE, 333ZF and 333ZG, which are drafting amendments.
On Question, amendments agreed to.
[Amendment No. 333ZH not moved.]
Clause 106, as amended, agreed to.
Lord McColl of Dulwich Lord McColl of Dulwich moved Amendment No. 333A:
After Clause 106, insert the following new clause:
("Appeals against enforcing authority
.—(1) The following persons, namely—

(a) a person who has been refused the grant of a consent under section 105 above;

(b) a person who is aggrieved by the limitations and conditions attached, under any provisions of this Part, to his consent;

(c) a person whose consent has been revoked or varied under section 105 above;

may appeal against the decision of the enforcing authority to the Secretary of State.
(2) A person on whom a prohibition notice is served by the regulatory authority under section 104 may appeal against the notice to the Secretary of State.
(3) Where an appeal under this section is made to the Secretary of State—

(a) the Secretary of State may refer any matter involved in the appeal to a person appointed by him for the purpose; or

(b) the Secretary of State may, instead of determining the appeal himself, direct that the appeal or any matter involved in it shall be determined by a person appointed by him for the purposes;

and a person appointed under paragraph (b) above for the purpose of an appeal shall have the same powers under subsection (5), (6) or (7) below as the Secretary of State.
(4) An appeal under this section shall, if and to the extent required by regulations under subsection (10) below, be advertised in such manner as may be prescribed by regulations under that subsection.
(5) If either party to the appeal so requests or the Secretary of State so decides, an appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private).
(6) On determining an appeal against a decision of an enforcing authority under subsection (1) above, the Secretary of State—

(a) may affirm the decision;

(b) where the decision was a refusal to grant a consent, may direct the enforcing authority to grant a consent;

(c) where the decision was as to the conditions attached to a consent, may quash all or any of the conditions of the consent;

(d) where the decision was to revoke or vary a consent, may quash the decision;

and where he exercises any of the powers in paragraphs (b), (c) or (d) above, he may give directions as to the conditions to be attached to the consent.
(7) On the determination of an appeal under subsection (2) above the Secretary of State may either quash or affirm the notice and, if he affirms it, may do so either in its original form or with such modifications as he may in the circumstances think fit.
(8) Where an appeal is brought under subsection (1) above against the revocation of a consent, the revocation shall not take effect pending the final determination or the withdrawal of the appeal.
(9) Where an appeal is brought under subsection (2) above against a notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.
(10) Provision may be made by the Secretary of State by regulations with respect to appeals under this section and in particular—

(a) as to the period within which and the manner in which appeals are to be brought; and

(b) as to the manner in which appeals are to be considered.").

The noble Lord said: Amendment No. 333 moved by the noble Lords, Lord Nathan and Lord Lewis, was so subtle, clever and gentle that as a professor

1995
of surgery I failed to appreciate that it was an appeals procedure. I should like to move Amendment No. 333A, which is a new clause option and which is extracted from Part I of the Bill,
"Integrated Pollution Control and Air Pollution Control by Local Authorities".
It attempts to provide an appeal mechanism for those who have been refused authorisation to work with GMOs, who are unhappy with the conditions attached to such authorisation or who receive a prohibition notice in relation to such work.
This is a mechanism for appealing to the Secretary of State against the decision of the enforcing authority. For that mechanism to work, it will be necessary for the Secretary of State to designate another body—the enforcing authority—for the purposes of exercising the functions conferred or imposed by that part, as one clearly cannot appeal to him against his own decisions. We suggest that it would be most appropriate if that designation were given to the new Advisory Committee on Release to the Environment which is being set up under the auspices of the Department of Environment and the Health and Safety Commission in order to advise on releases to the environment.
In the highly unlikely event that this amendment is not acceptable, I should like Amendment No. 333B to be considered. The new clause option would allow a formal right to make representation to the Secretary of State before an adverse decision is made. That alternative would obviate the need to delegate powers to a subordinate body.
For the development of sound and sensible legislation, it is right in principle to include some type of mechanism to allow those who have been turned down a chance to make an appeal. Such a mechanism already exists in Part I of the Bill and it would seem wise to have something similar introduced into Part VI. I beg to move.
9.15 p.m.
Lord Lewis of Newnham: I wish to speak in favour of the appeal system. It was one of the features that we looked at on the Royal Commission. However, like the noble Lord, Lord McColl, we had great difficulty in trying to designate who the enforcing authority should be. The idea that it might be the release committee appeared attractive, but it was recognised that there might be important features other than the purely scientific impact of a particular approach. That was why we moved away from that type of solution to the problem.
However, I am in total sympathy, as must be evident from my previous comments, with some form of appeal system. There is an element of justice in the system. It must be seen that a person at least has an opportunity to express an alternative case or has a chance of contending the case against him.
The Earl of Arran: The amendments seek to establish an appeals system in respect of consents and other matters. Amendment No. 333A attempts to apply the Part I appeals provisions to Part VI. Unfortunately, it does not take account of one crucial difference between Parts I and VI. Decisions about authorisations under Part I are to be made by either
1996
the chief inspector or the local authority. Appeal to the Secretary of State is therefore right and appropriate. However, under Part VI the Secretary of State himself makes the decisions on consents and imposes limitations or conditions when they are granted. It is clearly impossible to appeal to the Secretary of State against a decision of the Secretary of State. Any such provision would result in the Secretary of State making a decision and then being required to consider his own decision on the basis of the same facts as his original decision. That is not logical.
The option of designating the Advisory Committee on Releases to the Environment as an "enforcing authority" against whose decisions an appeal could be made to the Secretary of State would also be inappropriate. Part VI attempts to deal with a relatively new and fast-developing technology. It is right that the Secretary of State should be responsible and accountable to Parliament for the implications for environmental safety. The advice that the Secretary of State will receive from ACRE will of course be of the highest quality, but it is right that the Secretary of State should be responsible and accountable to Parliament for the operation of Part VI.
Similar arguments apply to Amendment No. 333B—the second string of my noble friend's bow on appeals. At the end of the day, the Secretary of State is responsible for decisions under Part VI and applicants for consents will in any case have the opportunity to discuss their proposals with ACRE. I hope that I have persuaded my noble friend not to press his amendment.
Lord Dean of Beswick: Historically, it has always been a fact of life in the United Kingdom that there must be some form of appeal in important matters. Although to laymen like myself these are new frontiers, surely there should be some appeal mechanism.
The Minister may well make a bona fide case by saying that it would be logical to appeal to a Secretary of State against his decision. However, in my view, it would also be logical to ask to whom an aggrieved person could go if he feels strongly that, despite the marvellous recommendations that the Minister received from the appropriate body, he has made an appalling blunder. Ministers of all political persuasions have been guilty of such errors in the past. Therefore, it is relevant to ask the Minister this question. If a person was so aggrieved that he thought the Secretary of State was completely wrong in the verdict he delivered, to whom would such a person address his appeal? Would that person have to go through the trauma of instigating private litigation through the courts on such a basis?
Baroness White: I think that we are back where we were a short time ago. We have reached the stage where an appeal from the Secretary of State to the Secretary of State does not make constitutional sense. However, I think that there should be a strong obligation on him to ensure that the decisions he makes and the reasons therefor are made manifest. The reason we believe that such matters should be

1997
made transparent is very much the same as the one we put forward in connection with Amendment No. 333. It did not appear to me then, and it does not appear to me now, that the Government have thought the matter through.
Lord Monkswell: I have a few reservations about the suggestion which has just been made by way of this amendment. I must admit that I prefer the earlier suggestion for a mechanism of appeal. By using the word "appeal", I wonder whether we are constraining our arguments too much. It is most important that we should consider the public interest. The Secretary of State must hold the public interest in the forefront of his considerations.
In this discussion we are endeavouring to find out what would be the best mechanism to protect the public interest. We should not aim solely to protect the developers of these organisms so as to enable them to appeal against their development, we should also consider the other side of the matter—namely, the public interest in placing adequate restrictions on their use and dissemination. Therefore, some form of appeal mechanism is needed to cover both sides of the issue.
We must be careful about the use of the word "appeal". It is most important that the Secretary of State should have available to him all strands of information and opinion regarding the situation. As I said, I prefer the earlier suggestion of a mechanism whereby extra information could be obtained effectively by publication after the recommendation of the learned group—I am not sure what its official title would be—to the Secretary of State. In those circumstances other people would have the opportunity to say, "Yes, we agree" or, "No, we do not agree". Such a provision would give the Secretary of State the ability to receive other strands of information. I take the point that on occasion it may not concern the scientific element; it may be that public awareness or other factors need to be taken into consideration in the wider human and political environment. For those reasons, I am not too happy with the amendment which has just been moved and I very much prefer the suggestion contained in the previous amendment.
The Earl of Arran: Perhaps I may deal first with the point made by the noble Lord, Lord Dean of Beswick. I have no doubt that the noble Lord, Lord Graham of Edmonton, is aware of the issue involved. There are many decisions taken by the Secretary of State against which there is no right of appeal. However, there is always the remedy of judicial review for an aggrieved person. That mechanism has been successfully used in many cases and it can give a speedy remedy.
In answer to the more general points which have been raised, I understand that there is a desire to ensure that the basis upon which decisions are made should be known and that the Secretary of State's reasons should also be known. The commitment that we have already given to look at the inclusion of a statutory provision for registers should give some reassurance about the availability of information at an early stage. The reasons for the
1998
Secretary of State's desires may also form part of the available information. The opportunity to make representations to the advisory committee is already given. I believe and hope that that explanation answers some of the points that Members have raised.
Lord McColl of Dulwich: I thank my noble friend for his helpful response, and all those who have taken part in the debate. Having listened to all the arguments, I believe that I prefer the amendment of the noble Lords, Lord Nathan and Lord Lewis. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 333B not moved.]
Clause 107 [Fees and charges]:
Lord Hesketh Lord Hesketh moved Amendment No. 334:
Page 115, line 46, leave out ("consideration") and insert ("respect").
The noble Lord said: I speak also to Amendment No. 335. The two amendments are drafting amendments. I beg to move.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 335:
Page 116, line 11, leave out ("relating") and insert ("in discharging his functions under this Part in relation").
On Question, amendment agreed to.
Clause 107, as amended, agreed to.
Lord Lewis of Newnham Lord Lewis of Newnham moved Amendment No. 336:
After Clause 107, insert the following new clause:
("Register of persons authorised to release genetically modified organisms
.—(1) The Secretary of State shall maintain a register of persons authorised by him as fit and proper to carry out the release of genetically modified organisms to the environment. Authorisation may apply in respect of the release of all organisms or of certain classes of organism.
(2) No person not authorised under subsection (1) shall release a genetically modified organism to the environment except in such cases or circumstances as may be prescribed by the Secretary of State in regulations under this section.").
The noble Lord said: Perhaps I may speak to the amendment on behalf of my noble friend Lord Nathan and myself. The amendment requires the Secretary of State to set up a register of people considered fit and proper who will release GMOs. It also creates an offence, with appropriate penalties, for anyone not on the register who carries out a release. The Royal Commission on Environmental Pollution recommended such a register in its 13th report. The relevant quotation is:
"Appropriate arrangements should be made for the registration of the companies or other organisations which carry out trial releases. Criteria for their entry to the register should include the employment of suitably qualified personnel, the provision of appropriate training, designation of safety officers and the establishment of a local safety assessment committee. Registered organisations should be required to identify one or more registered persons who would be responsible for releases".
The thinking behind the register is that some releases may be acceptable only if they are carried out carefully to minimise any risks. The amendment

1999
would provide powers to ensure that such releases were carried out only by people who had convinced the Secretary of State that they were fit and proper to do so.
The Royal Commission's report set out some of those criteria. I have just more or less illustrated those points. Anyone who carried out a release incompetently would be removed from the register, thus providing an extra incentive to take care with releases.
Although Clause 105 enables the Secretary of State to require the releaser to have a consent, it does not establish that only fit and proper persons can hold consents. It does not establish that the Secretary of State, faced with an application for two identical releases—one, let us say, from a well-established and reputable person, with a good track record and one from someone who was in a less confident situation—could approve the former and reject the latter. Nor does it provide that a release which is exempted from the consent requirement, which appears to be possible, should nevertheless be carried out only by a fit and proper person.
There are now in place tight controls on who may spray agricultural pesticides. GMO pesticides will be covered by those controls, but other forms of GMOs may also need controls on releases. The amendment seeks to establish such controls. I beg to move.
9.30 p.m.
Lord Hesketh: I am in a slight state of confusion whether or not the noble Lord, Lord Lewis, was also speaking to later amendments. I wonder whether he took his later amendments out of the grouping list when he took out Amendment No. 336 earlier this evening or whether they remain with that original grouping and we are only dealing with Amendment No. 336.
Lord Lewis of Newnham: I am speaking only on Amendment No. 336. Amendment No. 333 has been dealt with.
Lord Hesketh: This is so; but later amendments were grouped with Amendment No. 333. I wondered whether they remained with the original grouping.
Lord Lewis of Newnham: Yes.
Lord Hesketh: I am grateful to the noble Lord, and I apologise for having had to inquire. The arguments for and against registers of authorised releasers, whether or not statutory, are very important. With GMOs we are dealing with techniques and processes which in many cases are at the frontiers of biotechnology. That is why the responsibility for Part VI is placed firmly in the hands of the Secretary of State.
We are strongly of the view that because of the extreme novelty and innovation of many proposed GMO releases, each proposal needs to be assessed on its individual merits. A prime consideration must be the ability of the proposer to conduct the release. Releases will differ, one from another, for example, in location, extent or type of genetic modification.
2000
Assessments of the competence of those proposing to make releases therefore need to be considered separately in each case.
If we attempted to generalise this process by granting prior authorisation to certain persons, whatever their individual qualities and skills, difficulties would arise. This would be, for example, in testing a person for suitability for inclusion in the register and testing that a person once registered had kept pace with developments in the field.
I hope that the noble Lord accepts that we have very seriously considered whether a releaser register would be appropriate. The arguments that I have deployed are the reasons we resist the noble Lord's amendment.
Lord Dean of Beswick: Perhaps it is remiss of me to keep rising at this time of night, but the Minister is proceeding on the assumption that we start from the base that all those involved in these emissions are goodies till proved baddies. The noble Lord, Lord Lewis, has made a legitimate case. Whatever walk of life one works in, whether it is building, engineering, the City of London or the legal profession, there are people who have made reputations that stand being tested by anybody. There are other people involved in those spheres who do not come out so well, whichever yardstick one uses.
For the Government to proceed on the basis that everybody in this sphere must be considered from the same angle seems to me to be starting from the wrong premise. The noble Lord, Lord Lewis, has made a legitimate case. The Government may do well to examine it in rather more depth than just the answer given tonight that they think it will come out all right. I see no demerit in taking the point that people with an established reputation can be put on trust against those who are an unknown quantity.
Lord Hesketh: I must resist this suggestion, particularly as it comes from the Benches of the noble Lord, Lord Dean. The Government are constantly questioned about why they are not tougher. Then we introduce a state of affairs where we err on the side of caution and immediately the noble Lord, Lord Dean of Beswick, assaults me for going the wrong way. I feel it has a slightly hollow ring in this case.
Lord Dean of Beswick: I do not wish to delay the Committee, but I am entitled to ask the Minister what he refers to.
Lord Nathan: I am delighted to hear the Minister say that he is considering each particular release as requiring a specific consent. That is extremely cheering. However, I think some reality needs to be brought into the discussion in that at the moment we are at the stage of dealing with trial releases in the course of development. Inevitably the supposition in one's mind is that the developer of a particular GMO is the party who knows all about it and who is probably extremely knowledgeable and competent to carry out the release. In that context it may not be necessary to consider the matter of registering

2001
releasers. However, there are other contexts to consider.
One is where for example, a company or a person properly imports a genetically engineered organism or a product made with a genetically engineered organism. He may be perfectly competent in every way but he may not have experience in carrying out releases. In that case a register of releasers would be helpful. One thinks of the expert consultants in this field—there are few of them—who could well qualify as experts for the purpose of releases.
However, beyond the trial area there is the matter of spraying pesticides which the noble Lord, Lord Lewis, mentioned. We know that that is covered by applicable consents. The noble Lord in answering a question referred to the fact that this Bill is supposed to cover a long period and to have the necessary flexibility. Let us suppose that a technique is developed of spraying metal with a view either to preventing rust or getting rid of it. Let us hope that this is developed in the not too distant future. That process may require just as much care as the spraying of pesticides, but it would not be covered by the pesticides regulations. One can think of all kinds of situations where the use and application of a finished product comprising GMOs would need to be dealt with with care and expertise. It is for that purpose among others that registered releasers would be a useful classification to ensure that those releases were carried out by competent and well tried people.
Lord Hesketh: I do not wish to delay the Committee. I am sure that the noble Lord, Lord Nathan, does not want to hear a repetition of what I have said. There is one part of the argument that I would emphasise more than any other, which is that we are concerned that someone's ability may become weakened while he is on the register. There is no protection against that state of affairs. That is one of the reasons why there were so many lengthy discussions on the problems of the register.
Lord Lewis of Newnham: I am concerned about this matter, but I take it that we are talking here about a different timescale. I am consoled by the fact that in the initial stages the register will essentially be an individual register of the people who are carrying out the trial experiments. However, a time will come—that is the success story of genetically modified organisms—when there will be general releases of GMOs on a commercial scale of the same nature and magnitude as occur at the moment with pesticides.
However, as we approach that time—I admit that it will not be in the immediate future—I merely request that this point will have the opportunity to be reconsidered. We shall then move into exactly the same regime as has been accepted for certain other types of releases. All we are doing is insisting—that has been pointed out by my noble friend Lord Nathan—that certain types of release do not come under the pesticide legislation. However, exactly the same kinds of problems will be associated with them from the point of view of society at large. With that pointer, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108 [Appointment etc of inspectors]:
The Earl of Arran The Earl of Arran moved Amendment No. 336A:
Page 116, line 16, leave out from ("inspectors") to (", such") in line 17 and insert ("for carrying this Part into effect").
The noble Earl said: Amendment No. 336A improves the wording of Clause 108 by clarifying that the Secretary of State may appoint inspectors for the purpose of carrying Part VI into effect. The effect of Amendments Nos. 340ZB and 336B is to enable the Secretary of State to delegate enforcement functions under Part VI by agreement. I beg to move.
Lord Dean of Beswick: I should like the Minister to explain the Government's intentions. The amendment removed the word "inspectors" for the definition of those appointed to police the genetic modification regulations. Is it still intended to conclude an agency agreement with the HSE to provide the inspectors? Currently there are only two inspectors in an establishment of three which means that it is 33 per cent. below the full establishment. That small number already has to police nearly 400 institutions. What are the Government's intentions in that regard?
The Earl of Arran: The enforcement of Part VI will be undertaken largely by inspectors appointed under Clause 108. There are two main requirements for such inspectors. First, they should possess appropriate expertise, which will require special training and development in such a new field. Secondly, the inspection arrangements should as far as possible synchronise with those operated by existing inspectorates, particularly HSE inspectors who are responsible for enforcing human safety aspects of GMO operations in order to avoid duplication of visits to premises.
Existing HSE inspectors have an excellent track record in enforcing the existing human health controls over GMOs. At present they lack environmental expertise to enforce the proposed provisions because the Health and Safety at Work etc. Act does not protect the environment. However, subject to appropriate recruitment and training they are well placed to gain the necessary additional expertise.
All things considered, the most sensible and efficient arrangement therefore seems likely to be one in which HSE acts on behalf of DoE and other departments under an agency agreement. Amendment No. 340ZB provides appropriate delegation powers on which to base such an agreement. The Committee will be pleased to know that we already have arrangements for such an agreement well in hand.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 336B:
Page 116, line 29, at end insert:
("(5) In this Part "inspector" means, subject to section (Delegation of enforcement functions) below, a person appointed as an inspector under subsection (1) above.").
On Question, amendment agreed to.
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 336C:
Page 116, line 29, at end insert:
("(5) The Secretary of State shall satisfy himself in respect of each financial year in which functions under this Part are exercisable that adequate resources and staffing for inspection and enforcement are available to secure the effective implementation of the requirements of this Act.").
The noble Lord said: The amendment draws attention to concern over the level of staffing of the inspectorate which will assist the Secretary of State and whose work will inform the advisory committee. Will the Minister make a statement on the level of resources available and whether they will be adequate?
Lord Hesketh: The effect of Amendment No. 336C is to require that the Secretary of State satisfies himself in respect of the annual resources available for the inspection and enforcement requirements of Part VI. The Government have repeatedly made it clear that resources will be available to do the work required under the Bill. That applies as much to Part VI as to the rest of the Bill, as I have repeatedly emphasised throughout the passage of the Bill in Committee. Thus I do not believe that the noble Lord's amendment will allow us to improve on that assurance.
Lord Dean of Beswick: On the basis of the Minister's reply I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108, as amended, agreed to.
9.45 p.m.
Clause 109 [Rights of entry and inspection]:
The Earl of Arran The Earl of Arran moved Amendment No. 336D:
Page 116, line 32, leave out ("purpose of assisting in") and insert ("purposes of").
The noble Earl said: On behalf of my noble friend, in moving this amendment I shall speak also to Amendments Nos. 336E, 336F and 336G. These are all straightforward amendments which seek to clarify the rights of entry and inspection of inspectors appointed by the Secretary of State under Clause 109. I beg to move.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendments Nos. 336E to 336G:
Page 116, line 34, leave out ("so far as exercisable in relation to premises").
Page 117, line 6, after second ("him") insert ("any person duly authorised by the Secretary of State and").
Page 118, line 26, leave out from ("possession") to ("an") in line 27 and insert ("under that power of —

(a) any thing that forms part of a batch of similar things, or

(b) any substance,").

On Question, amendments agreed to.
Clause 109, as amended, agreed to.
Clause 110 [Obtaining of information from persons]:
[Amendments Nos. 337 and 337A not moved.]
Clause 110 agreed to.
Clause 111 [Power to deal with cause of imminent danger of damage to the environment]:
Lord Hesketh Lord Hesketh moved Amendment No. 337B:
Page 119, line 14, leave out from ("of") to ("found") and insert ("anything").
The noble Lord said: Amendments Nos. 337B to 337F are of a clarifying and technical nature. I beg to move.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendments Nos. 337C to 337F:
Page 119, line 26, leave out from ("premises") to first ("a") in line 27.
Page 119, line 29, leave out from ("after") to ("has") and insert ("anything").
Page 119, line 34, leave out from ("where") to ("was") and insert ("it").
Page 119, line 35, leave out from ("on to (", also") and insert ("it").
The noble Lord said: I beg to move these amendments en bloc.
On Question, amendments agreed to.
Clause 111, as amended, agreed to.
[Amendment No. 338 not moved.]
Clause 112 [Offences]:
Lord Hesketh Lord Hesketh moved Amendment No. 338A:
Page 120, line 4, after ("(3)") insert ("(a), (b) or (c)").
The noble Lord said: This is a technical amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 339 and 340 not moved.]
Clause 112, as amended, agreed to.
Clauses 113 to 115 agreed to.
[Amendment No. 340ZA not moved.]
Lord Hesketh Lord Hesketh moved Amendment No. 340ZB:
Before Clause 116, insert the following new clause:
("Delegation of enforcement functions
.—(1) The Secretary of State may, by an agreement made with any public authority, delegate to that authority or to any officer appointed by an authority exercising functions on behalf of that authority any of his enforcement functions under this Part, subject to such restrictions and conditions as may be specified in the agreement.
(2) For the purpose of this section the following are "enforcement functions" of the Secretary of State, that is to say, his functions under—

section 104;

section 108(1) and (4);

section 110;

section 112(10); and

section 115;

and "inspector" in sections 109 and 111 includes, to the extent of the delegation, any inspector appointed by an authority other

2005
than the Secretary of State by virtue of an agreement under this section.
(3) The Secretary of State shall, if and so far as an agreement under this section so provides, make payments to the authority to reimburse the authority the expenses incurred in the performance of functions delegated under this section; but no such agreement shall be made without the approval of the Treasury.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 116 agreed to.
Clause 117 [Definitions]:
[Amendments Nos. 340A to 342 not moved.]
Clause 117 agreed to.
Lord Reay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at ten minutes before ten o'clock.