Lords Sitting of 22 January 1991

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

Police Manpower: Effect of Community Charge Capping
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
What action they propose to take following the warnings by a number of chief officers of police that community charge capping will lead to severe reductions in the numbers of police officers on the streets.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, both I and my noble friend Lord Ferrers have met a number of police authority representatives to hear their views. As was made clear in another place on 17th January, the Government stand by the capping intentions announced on 31st October. These remain firm but provisional, since under that statute we cannot take our decisions until after budgets have been set. When we do take our decisions all appropriate considerations will be taken into account, including the need for expenditure restraint, improving efficiency and the level of police manpower approved by my right honourable friend the Home Secretary.
Lord Harris of Greenwich: My Lords, I thank the Minister for that Answer. Is she aware that the chief officers of the six largest police forces outside London have warned the Government that the consequences of capping will be an immediate stop to the recruitment of new police officers, no new vehicles and major cuts or the abandonment of their entire capital programmes? Can such action be sensible when serious crime is increasing in this country?
Baroness Blatch: My Lords, we have met members of the authorities and spoken to some of the chief constables. We are aware of some of the arguments that are being presented. Budgets must be submitted in accordance with the criteria and it will be for my right honourable friend the Secretary of State to make his judgment at the time.
Lord Dean of Beswick: My Lords, is the Minister aware that the Chief Constable of Greater Manchester, Sir James Anderton, has been forced to recommend to the police authority a reduction in the number of civilian staff and the loss of 100 officers? Bearing in mind the fact that in Greater Manchester there is one of the highest incidence of crime in the country, is that not a retrograde step and will the Minister do something about it?
Baroness Blatch: My Lords, all of these arguments have been heard by myself and by my right honourable friend. The criteria for capping was well
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advanced in October last year. Budgets must be set in the light of those criteria, which have now been confirmed. It will be for my right honourable friend the Secretary of State to consider all the cases in the light of the budgets that will be set.
Baroness Hollis of Heigham: My Lords, in the light of the Minister's reply and the warnings given by six leading chief constables that they face cuts, will the Minister on behalf of the Department of the Environment confirm that the police authorities will not be penalised for overspending in order to maintain the staffing levels agreed by the Home Office? Can she confirm, in other words, that the DoE will not penalise those authorities for doing what the Home Office has prescribed?
Baroness Blatch: My Lords, it is not proper or appropriate for me to pre-empt the Secretary of State's judgment as regards the budgets that will be set for those authorities after a judgment about expenditure right across the authorities. In other words, everything that can be done will be done so as to protect the jobs of policemen.
Lord Boyd-Carpenter: My Lords, do not these questions suggest a doubt about whether it is wise to continue local authority control of the police?
Baroness Blatch: My Lords, I believe that that question is for another day.
Lord Williams of Elvel: My Lords, will the Minister reply to the question asked by my noble friend Lady Hollis about principle? It is not a question of trying to pre-empt the Secretary of State's judgment about individual cases but a question of principle. If the Home Office lays down certain standards of policing to which the local authorities must adhere, will the Secretary of State for the Environment accede to them when coming to judge the budgets of those same local authorities?
Baroness Blatch: My Lords, the noble Baroness did not pose that question. She asked whether guarantees could be given that penalties would not be imposed on those authorities. I cannot give that judgment in advance of their cases being heard. The budgets that are set must be lawful and must take into account statutory duties. They must also provide for an efficient police authority and take account of the approved level of police manpower.
Lord Hailsham of Saint Marylebone: My Lords, would not a policy alternative to that being put forward from the other side of the House be for local authorities to give police recruitment slightly more priority than some of the silly activities in which they indulge?
Baroness Blatch: My Lords, that is a factor. The proper use of resources is a constituent part of setting budgets.
Lord Harris of Greenwich: My Lords, although we welcome the fact that the arguments of the police authorities have been heard, is it not extraordinary that at a time when crime is rising we are talking about a cut in effective police manpower on the streets of more than 1,500 officers?
Baroness Blatch: My Lords, we are not talking about that. The noble Lord is now speculating about what might be contained within budgets which have not yet been set. When they are set consistent with the criteria, it will be for my right honourable friend to make his judgment.

The Gulf
2.42 p.m.
Lord Hatch of Lusby Lord Hatch of Lusby asked Her Majesty's Government:
What is their current policy regarding the Gulf crisis.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, our policy remains unchanged.
Lord Hatch of Lusby: My Lords, in view of the fact that it was announced this morning that there is at least grave danger of an environmental catastrophe beginning in the Gulf, can the noble Earl tell the House what attitude the British Government are adopting to the peace proposals, including the evacuation of Kuwait, proposed to the Secretary General of the United Nations by the Soviet Union, India and Algeria?
The Earl of Caithness: My Lords, our policy has been debated recently at length. The noble Lord spoke in the debate for no less than around 90 minutes, and I have nothing to add to what was said by my noble friend.
Lord Hailsham of Saint Marylebone: My Lords, is it not somewhat paradoxical that this Question should appear on the Order Paper after two debates on two successive Mondays on this very subject, in both of which the noble Lord, Lord Hatch of Lusby—whom we are always glad to see here—spoke longer than anybody else?
The Earl of Caithness: My Lords, nevertheless when a Question appears on the Order Paper we do our best to answer it.
Lord Jenkins of Putney: My Lords, there is a Question on the Order Paper. Will not the noble Earl answer it in the correct sense; that is, by saying that the Government's policy is to follow President Bush whatever he does under any possible circumstances, even if it leads to disaster? Is not that the Government's policy?
The Earl of Caithness: No, my Lords.
Lord Hatch of Lusby: My Lords, the Question on the Order Paper relates to today. In this tragic war events are moving hour by hour. I ask the noble Earl again to address himself to the reports of today. I understand, and with his Foreign Office briefing he can no doubt confirm or deny, that the Soviet Union, India and Algeria have put forward to the United Nations peace proposals which include the declared war aim of the Government to remove Saddam Hussein and the Iraqis from Kuwait. Will the noble
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Earl tell the House what attitude the British Government are adopting to these new proposals to bring the war to an end with the achievement of the stated war aims?
The Earl of Caithness: My Lords, the noble Lord is indulging in speculation. I leave the matter to the Official Report of yesterday.
Lord Elton: My Lords, does the noble Earl agree —as I believe the majority of noble Lords feel—that it is not the Government's policy simply to follow that of the United States? Nor can policy be properly developed under almost hourly questioning by Members of your Lordships' House wherever they sit?
The Earl of Caithness: My Lords, my noble friend is correct. Our policy has been clearly set down both here and in another place.
Lord Williams of Elvel: My Lords, will the noble Earl accept that the Government's current policy was well spelt out by the Leader of the House yesterday and that it has the support of the Opposition?
The Earl of Caithness: My Lords, I am grateful to the noble Lord.
Lord Mellish: My Lords, is the Minister aware that some of us on this side of the House believe our association with America to be a good one? If that were not so, it would be a bad thing for Britain and all that she represents. Is he further aware that some of us think that there is a sign to be read about the withdrawal from Kuwait by the blowing up of the oilfields by that wretched man, Saddam Hussein?
The Earl of Caithness: My Lords, in response to the first question, there is commonality among most Members of your Lordships' House.
Lord Taylor of Gryfe: My Lords, will the noble Earl answer the Question of the noble Lord, Lord Hatch of Lusby? It relates to new proposals put forward today to which there must presumably be some reaction or policy statement from Her Majesty's Government.
The Earl of Caithness: My Lords, at this stage I cannot say any more.

Child Benefit
2.48 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
What consideration they are giving to the improvement of child benefits.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, my right honourable friend the Secretary of State for Social Security is required by law to review the level of child benefit each year. From April the rate for the eldest eligible child in each family will be increased by £1 to £8·25 a week.
Lord Molloy: My Lords, I thank the noble Lord for that reply. Is he aware that the original child benefit legislation enjoyed the full support of all sides of the other place and of this House? It was welcomed throughout the nation. Then came the savage attack by this Tory Government in the form of the

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imposition of the three-year freeze. Is the noble Lord aware that the recent increase of £1 per child in no way makes up for the thousands of pounds lost especially by the poorest in our country in support of their children?
Lord Henley: My Lords, as I explained, my right honourable friend has a statutory duty to make an annual review. The freeze to which the noble Lord refers allowed him to make increases in income support for the less well off families this year and in previous years and to provide an improved package for those families and children.
Lord Carter: My Lords, is the Minister aware that the increase in child benefit of £1 a week for the first child means that the rich family with one child receives exactly the same increase in its weekly income as the poor family with four children? In fact it is a 13 per cent. increase for the rich family and a 3 per cent. increase for the poor family. What happened to the Government's principle of targeting benefits towards those who need them most?
Lord Henley: My Lords, any increase in child benefit would obviously benefit rich families as much as poor families. That is why over previous years we have increased the support available through income support.
Lord Molloy: My Lords, is the noble Lord aware that the impositions imposed on the Minister were to make sure that he or she maintained the level of child benefits? Since then it has been decided to freeze the benefits for three years and for there to be a meagre increase of £1. Does not the noble Lord agree that most people are frightened that child benefits will be means tested and gradually eased out of the social services?
Lord Henley: My Lords, the original statutory power obliged my right honourable friend to consider the rates then in force having regard to the national economic situation as a whole, the general standard of living and other such matters as he considered relevant. I repeat that the Government will continue to honour their manifesto commitment to pay child benefits as before to all families.
Lord Henderson of Brompton: My Lords, will the noble Lord ask the Secretary of State to consider both full indexation of child benefits and bringing them into tax? That would avoid this provision being the great burden on the Exchequer that it would otherwise be.
Lord Henley: My Lords, I shall bring the noble Lord's suggestion to the attention of my right honourable friend. As the noble Lord will appreciate, there are considerable problems in bringing child benefits into tax. With separate taxation, that is unlikely to achieve any worthwhile savings.
Lord Stoddart of Swindon: My Lords, does not the noble Lord agree that child benefits are the most popular and efficient manner for bringing badly needed assistance to families with children? Therefore, will he press his right honourable friend to reconsider the Government's policy on this matter? I ask that particularly bearing in mind that child benefits
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replaced tax allowances out of which the Government have had great benefit and which have made a great contribution towards the payment of child benefits?
Lord Henley: My Lords, as I have been trying to say, child benefits remain a worthwhile contribution to the expenses of all families. They were never intended to meet the full cost of bringing up a child. For the less well-off we have made appropriate increases over the years both in income support and in the appropriate premiums.
Lord Molloy: My Lords, can the Minister give a reply to the one vital point I made in my second supplementary question? Can he give the House an assurance that the Government will not bring in a means-tested supplement for child benefits?
Lord Henley: My Lords, as I said, we shall continue to honour our manifesto commitment.

House of Lords Offices: Select Committee Report
2.53 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that the first report from the Select Committee on House of Lords Offices be agreed to.
Moved, That the first report from the Select Committee be agreed to (HL Paper 15).—(The Chairman of Committees.)
Following is the report referred to:
1 Appointment of Sub-Committees
The following members of the Committee were appointed to the Sub-Committees:

(a) Library Sub-Committee

L. Dainton (Chairman)

V. Davidson

V. Falkland

L. McIntosh of Haringey

L. Peston

With the Clerk of the Parliaments.

With power to co-opt further Lords.

(b) Refreshment Department Sub-Committee

V. Allenby of Megiddo

L. Ampthill (Chairman)

L. Denham

L. Graham of Edmonton

B. Hylton-Foster

L. Mason of Barnsley

L. Nugent of Guildford

L. Tordoff

With the Clerk of the Parliaments.

With power to co-opt further Lords.

(c) Works of Art Sub-Committee

B. Ewart-Biggs

L. Gibson (Chairman)

L. Hesketh

L. Moran

With the Clerk of the Parliaments.

With power to co-opt further Lords.

(d) Computer Sub-Committee

L. Dainton

L. McIntosh of Haringey (Chairman)

L. Peston

With the Clerk of the Parliaments.

With power to co-opt further Lords.

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(e) Staff of the House Sub-Committee

L. Aberdare (Chairman)

L. Waddington (L. Privy Seal)

With the Clerk of the Parliaments and the Gentleman

Usher of the Black Rod.

With power to co-opt further Lords.

(f) Finance Sub-Committee

L. Aberdare (Chairman)

L. Ampthill

L. Dainton

L. Denham

L. Graham of Edmonton

L. McIntosh of Haringey

L. Tordoff

With the Clerk of the Parliaments.

With power to co-opt further Lords.

(g) Administration Sub-Committee

L. Aberdare (Chairman)

L. Ampthill

L. Dainton

L. Denham

L. Gibson

L. Graham of Edmonton

B. Hylton-Foster

L. McIntosh of Haringey

L. Nelson of Stafford

L. Tordoff

With the Clerk of the Parliaments and the Gentleman Usher of the Black Rod.

With power to co-opt further Lords.

2. Staff of the House.
A report from the Staff of the House Sub-Committee was made to the Committee who agreed to:

(a) the creation of an additional Personal Secretary (Grade 4) post to serve the Reading Clerk;

(b) a six month extension for the two temporary word processor operator posts in the Hansard Office;

(c) the creation of an additional Hansard word processor post, initially for a period of one year;

(d) the upgrading of one waiter/waitress post in the Refreshment Department from Band 6 to Band 10; and

(e) the upgrading of one General Assistant post in the Refreshment Department from Band 2 to Band 4.

3. Retirement of the Clerk of the Parliaments
The Committee wish to record, on the occasion of his retirement, their deep gratitude for the assistance that they have received from Sir John Sainty during the seven years he has served as Clerk of the Parliaments and Accounting Officer for the House of Lords Vote.
4. Parliament Office
The Committee were informed that, following the retirement of Sir John Sainty as Clerk of the Parliaments, Mr. P. D. G. Hayter, on his appointment as Reading Clerk, would also become Principal Finance Officer, that Mr. M. G. Pownall would be appointed Principal Clerk of the Committee and Overseas Offices and that Mr. B. P. Keith would be appointed Principal Clerk of Private Bills. The Committee were also informed of the promotions of Mr. W. G. Sleath to Senior Clerk.
5 Accommodation in the Chamber for Opposition Research Staff
The Committee recommend that the experimental provision of accommodation in the clerks box for up to three advisers to those Lords who sit on the Opposition front benches should be made permanent; and that the accommodation should be made available for this purpose during all stages of public bills, except second reading.
6 Computer Developments
The Committee were notified of the appointment of Mrs. S. White as House of Lords Computer Executive. The Committee also approved arrangements to delegate to the Clerk of the Parliaments the administrative procedures for authorising expenditure on computer projects for the House of Lords Offices.
8 Medical Facilities
The Committee were informed of a proposal for additional nursing staff at the Palace of Westminster and authorised payments of a proportion of the cost.
9 Architectural Archive
The Committee authorised provision in the Record Office Fund for the photocopying of plans and drawings of the Palace of Westminster for the Architectural Archive.
10 Uniform Allowances
The Committee authorised an increase in the allowances paid to Clerks at the Table, the Gentleman Usher and Yeoman Usher of the Black Rod and Doorkeepers for the purchase and maintenance of dress clothes.
11 Revised Scales of Pay and Allowances
The Committee confirmed the application of the following civil service memoranda to staff of the House of Lords:—

(a) CM/934 Subsistence and Meal Allowances.

(b) CM/935 Pay of Grades 4, 5, 6 and 7 and staff linked to I.P.M.S. grades.

(c) GM/456 Fees to Specialist Advisers.

(d) IM 90/3 Industrial staff pay.

12 Superannuation
The Committee were notified of the following awards made under the House of Lords Staff Pension Scheme:—

(a) Revised pension and lump sum to Mrs. J. Gilbane, Cleaner, who retired on 14th April 1990.

(b) Revised pension and lump sum to Mrs. G. R. Roberts, Cleaner, who retired on ill-health grounds on 23rd April 1990.

(c) Revised pension and lump sum to Mrs. J. R. Ryder, Head Cleaner, who retired on 19th May 1990.

(d) Revised pension and lump sum to Mrs. B. Howlett, Cleaner, who retired on 16th June 1990.

(e) Supplementary death benefit to personal representative of Mr. C. W. Hunt, former Senior Clerical Officer, who died on 26th February 1990.

(f) Revised pension and lump sum to Mr. W. Grant, Executive Officer, who retired on 24th June 1990.

(g) Pension and lump sum to Mrs. J. E. Watts, Cleaner, who retired on 22nd September 1990.

(h) Compensation payments, preserved pension and lump sum to Mr. I. S. Anderson, Executive Officer, who retired on 1st October 1990.

(i) Pension and lump sum to Mr. W. J. D. Low, Executive Officer, who retired on ill-health grounds on 1st November 1990.

(j) Pension and lump sum to Mrs. I. G. E. Reardon, Cleaner, who retired on 3rd November 1990.

(k) Preserved pension and lump sum to Miss E. M. McCaffrey, Legal Officer, who resigned on 28th October 1988.

(l) Preserved pension and lump sum to Mr. C. J. Headman, General Assistant, who resigned on 27th May 1988.

Development Board for Rural Wales Bill
Read a third time, and passed.

Statutory Sick Pay Bill
2.54 p.m.
Report received.
Clause 1 [Reduction in the amounts recoverable by employers who have paid statutory sick pay]:
Lord Carter Lord Carter moved Amendment No. 1:
Page 1, line 9, after ("employer") insert ("the relevant number of whose employees is defined in paragraph (aa) below")
The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendments Nos. 5 and 7. I do not wish to detain the House by rehearsing all the arguments and the debates that we had on Second Reading and during the Committee stage. The amendment seeks to exempt employers who employ less than 10 people. As noble Lords will remember, there was considerable debate at Committee stage regarding small employers. This amendment is an attempt by those outside this House, with the help of the noble Lord, Lord Stanley of Alderley, to define a small employer as someone who employs fewer than 10 people. If accepted the amendment would affect about 90 per cent. of all businesses.
We have tried to produce an amendment with a system which is administratively simple. It is targeted on those who most need help. In Committee we had some debate on the amendment tabled by the noble Lord, Lord Jenkin of Roding, which suggested a limit of five people. At the time it was felt that that was too few. The amendment which we put forward at that stage would have exempted all firms with fewer than 20 people. We listened to the arguments of the Government and felt that that number was perhaps too many. We believe that 10 employees is the correct number. The reason is that there is a precedent in the Wages Act 1986 which is related to rebates on redundancy payments and which defined the matter at the 10-employee level. In the amendment we have tried to meet the various points that the Minister made in Committee. We have excluded employees below the lower earnings level, casual workers and employees engaged in a private household. This amendment provides relief for small firms, which have a widely varying pattern of sickness and sick leave. It is much harder for them to accommodate one or two people being sick as opposed to the very large firms.
Last week the Committee accepted an amendment to alter the rebate percentage from 80 per cent. to 91 per cent. to avoid adding to the burden and cost on all firms at this time of recession. It is worth pointing out that between 1985 and 1987 small businesses as defined in this amendment created over a million new jobs whereas large businesses created about 20,000 jobs. We feel that there should be a simple and monthly basis for calculation. I am sure that some noble Lords will know from their post that there is considerable support from outside this House for this approach to the Bill. I feel that the House can accept this amendment in the way that it accepted the amendments at Committee stage. This amendment will bring genuine relief to small employers. I beg to move.
Earl Russell: My Lords, I thank the noble Lord, Lord Carter, for stepping so ably into the breach. I apologise to the House for cutting my arrival so extremely fine. That was because I was otherwise occupied and, as Lord Peter Wimsey once put it, "my mind being momentarily on my job". Any of us who occasionally feel any sense of incongruity about debating this business while such momentous events are taking place elsewhere might reflect that nothing better qualifies than a Bill on social security to meet the description "business as usual". The Committee stage of this Bill operated as, in theory, a Committee stage should: it narrowed down the area of disagreement very considerably. It served, in fact, as traditional legal pleadings used to do; namely, to define the point at issue.
The Government accepted the principle that there should be relief for small businesses. For that I am extremely grateful. The argument at Committee was between a figure of five, to which the Government were prepared to show sympathy, and a figure of 20 proposed by my noble kinsman Lord Stanley of Alderley and myself. Your Lordships will have noticed that I accept that one move towards compromise deserves another. The amendment put forward by the noble Lord, Lord Carter, and I shows that the figure has retreated from 20 to 10. In fact we are asking for only half a loaf. There is still quite a significant gap between 20 and the approximate number of five implied by the Government's amendment. Ninety-six per cent. of businesses in the country would have been covered by the figure of 20 employees; only 90 per cent. by 10. Therefore, 190,000 small businesses are at stake. That is not an insignificant quantity to be arguing about. Of those 190,000 businesses, one might note, since occupational sick pay has been given as one of the Government's chief justifications, 51 per cent. of firms with fewer than 10 employees have no occupational scheme.
The reason the Government gave for accepting the principle of exempting small businesses is the risk of the statistically insignificant sample. My noble kinsman said:
"We have been especially impressed by the representations made about the difficulties of applying averages to employers that have very few employees".—[Official Report, 14/1/91; col. 1006.]
We reach the real issue when we try to define the small employer and when we ask whether the definition of small employer the Government offer us, or at least in the amendment are promising to offer us hereafter, is sufficient. What is the size of the sample below which findings are not statistically significant?
My noble kinsman said in Committee that once we go above five employees, averages begin to bite. My noble friend Lady Seear and I expressed some surprise at that proposition. We asked my noble kinsman to write to us, which he very generously did. I cannot say that he has offered any clear reason for the proposition that above five employees averages begin to bite. We have checked this with the Library in another place. It said that the likelihood of sickness affecting 40 per cent. of the workforce—the likelihood of double the average incidence of sickness—is 25 per

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cent. in a business of five employees; it is 10 per cent. in a business of 10; in a business of 20 and above it is less than 5 per cent.
When my noble kinsman said that statistics begin to bite, he should have put a very heavy stress on the verb. Ten per cent. of businesses getting twice the average incidence of sickness is quite significant. I should stress that those statistics will under-rate rather than over-rate the actual risk. Illness is contagious. It has a multiplier effect so that in practice rather more than 10 per cent. of businesses of 10 people will experience an above average incidence of sickness. We take that rather seriously.
I remember another example of a statistically insignificant sample. In fact I came across one this weekend. My noble kinsman was particularly generous in making sure that I had a copy of the government amendment. He sent it to me at no fewer than three places. He sent it here, to my home and to my college. It so happens that all three of those were held up for two days or more in the first-class post. I admit that that is a sample of only three. But if one took a sample of 10 and there were no more cases that would still be an incidence of 30 per cent. failure to achieve delivery dates in a sample of 10. The Post Office assures us that the average figure is six, so what I have described can happen.
There are other defects in the government amendment which would lead me to argue that ours is preferable. By the form of its drafting the government amendment creates a pressure to lower wages. It goes by the total amount of national insurance contributions, so the less one pays one's employees, the more of them one can squeeze in under the net. That is surely an incentive for lower wages. There may be those who argue that that is a good thing; but in the end, in the form of housing benefit and family credit, the Department of Social Security will end up footing the bill. It is storing up trouble for itself.
There is a great deal of imprecision in the government amendment. A great deal is left to be defined by regulations: "small employer", they say,
"shall have the meaning assigned to it by regulations".
Subsection (1B) of their amendment says more or less that a small employer is a small employer is a small employer. I thank my noble kinsman for explaining privately, as no doubt he will do publicly in a few minutes, a little more of the thinking behind that. However, I feel that this is a case of doing more by regulations than we should. I accept the form of words used by my noble kinsman in Committee that once the principle has been accepted, then it is proper to fill in the detail by regulations. But the question here is: what is the principle? Judging by the attitude of the Committee last week, the question of the size of the small business exemption is widely regarded as a question of principle and one proper for the decision of the House and not proper for regulations.
We should also allow for the fact that the tone in which the Government's concession is discussed inside and outside the Chamber is a little different. In this Chamber the convention that a concession is met with a concession is very strong, and I honour it. Outside
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there is usually rather more stress on the substance and rather less on the style. In that context, I should like, by the leave of the House, to read from a letter I received this morning from the Building Employers Confederation. It says:
"The Government have tabled an amendment in the name of Lord Henley providing relief for very small employers. This can only be viewed as a gesture. Very many small employers will fail to qualify for relief set at this level. The Government argue that for firms greater in size than five the average sick rate ratios are likely to apply. This is not so. In firms of seven or eight employees it is well within the realms of possibility that as many as four—50 per cent. of the employees—could be off work simultaneously with 'flu or any infectious virus".
Our amendment is more appropriate to meet the problem. It is not defective in form. It does not have the unfortunate side effect of lowering wages. For all those reasons, we think it is a preferable way of solving the problem.
Lord Stanley of Alderley: My Lords, I have my name to the amendment and so I should say something about it, not that I am looking forward to doing so. I was responsible for encouraging the National Farmers Union to draft it. I am keen to see it, or something like it, accepted.
Since we tabled the amendment, the Government have tabled their amendment, albeit at the eleventh hour. At the twelfth hour—or should I say the thirteenth hour?—my noble kinsman Lord Henley went out of his way to indicate some of the Government's thinking. I am unhappy about the Government's regulatory amendment. In particular, I cannot accept the permissive power to extend the 100 per cent. reimbursement to whatever length the Government so decide. If my noble kinsman can indicate that he is prepared seriously to discuss this time period, I shall reluctantly yield to the Government by not voting for the amendment.
I believe that your Lordships have made abundantly clear to the Government the fact that this is a badly thought out Bill—I would say much worse than that. I, perhaps naively, suggest to your Lordships that we should give the Government the benefit of the doubt; that we should listen to the arguments for the proposed amendment and believe that they will suitably amend the Bill, especially as regards the point I have just made. I very much hope that the Government will live up to that trust.
Lord Henley: My Lords, in my introduction I should like to point out that I am not responsible for the Post Office. I shall of course send yet more copies of any future correspondence to my noble kinsman so as to ensure that he receives any letter which I wish to send to him.
In speaking to this amendment I shall obviously have to mention the amendment tabled in my name that I shall shortly be moving, depending on the outcome of this amendment. I believe that it would have been more helpful if these amendments had been grouped together, but that was not the wish. Therefore, I shall touch upon my amendment in dealing with Amendment No. I tabled in the name of my noble kinsman Lord Russell and moved by the noble Lord, Lord Carter, partly because the

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amendments deal with the same problem. I refer to the problem of small businesses, especially those with abnormal levels of sickness. The first amendment attempts to deal with the definition of a small business. We can be quite clear about the fact that we are not just dealing with the size of such businesses; we are also dealing with the definition. My noble kinsman proposes to define businesses by the number of employees. The amendment I propose will deal with the problem by reference to the level of national insurance contributions paid over the year or by reference to the number of employees.
Subsection (1C) of Amendment No. 10 provides for the definition of a "small employer" to be prescribed, as my noble kinsman said, in regulations. As the House will recognise, this is a key provision and the powers as drafted enable us to go down either of those two roads. At this stage of the proceedings I should say that we favour the national insurance contribution course.
There are a number of difficulties about relating the definition of a small employer to a specific number of employees. There is the time at which the size of the workforce is to be measured and what one does when that workforce fluctuates. There is also the question of whether all employees should be treated alike, even though some may not attract SSP liability and whether the employer with a lot of part-time as against full-time workers should be treated differently. All these points have been addressed by my noble kinsman and I pay tribute to his drafting skill. However, they make for complications.
My noble kinsman's amendment provides that to be treated as a small employer the employer should have fewer than 10 employees—I acknowledge that he has reduced this from his "less than 20" figure put forward in Committee, and I am most grateful for that fact—at the time at which the statutory sick pay is paid. This means that every time a payment of SSP is made the employer will have to be sure that he falls within this definition. Moreover, as my noble kinsman's amendment also provides for certain employees to be excluded from the calculation—and I obviously understand why—this further complicates the judgment he has to make. It should also be remembered that the employer may actually be recovering SSP from his contribution payments to the Inland Revenue some time after the payment has been made and it is at the latter time that he needs to know what rate to recover. For employers whose workforce fluctuates around the 10 mark, therefore, use of the number employees as the criterion would certainly not prove straightforward. It would also prove extremely difficult for the department to monitor as it would entail checking on the number of eligible employees in the workforce at the time individual payments of SSP were made.
We believe that a much fairer and considerably simpler scheme would be to use the level of the employer's contribution payments in the preceding tax year as the trigger in defining a small employer. This would focus the definition on an employer's
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actual wages bill rather than on the number of employees at a point in time and would provide for a great deal more flexibility.
Perhaps I may explain the scheme a little further. All employers are required within 14 days of the end of the tax year to complete a return to the Inland Revenue of the total amount of tax and national insurance contributions for which they are liable. The information is therefore readily available to employers. The Government's proposal is very simple. If the total contributions payable in one tax year are below a specified figure, then for the whole of the next tax year that employer will qualify to be treated as a small employer. Unlike my noble kinsman's amendment, there will be no need to make a judgment on this point every time SSP is paid and recovered. Neither will it be necessary to make special arrangements, as his amendment does, for people earning below the lower earnings level and part-time workers. The former will be automatically excluded and the reduced earnings of the latter will be taken account of in their reduced contribution liability.
The level of contributions which the Government would propose setting for 1991–92 is £15,000 per annum. The flexibility of that approach means that employers of many different sizes would be eligible to be treated as a small employer, depending on the overall level of their wages bill. Those with lower wages bills and least able to cope with protracted sickness would be eligible. Setting the level at £15,000 would benefit about 700,000 employers, ranging from an employer with four employees all earning at the upper earnings limit, currently £350 per week, to as many as 90 employees if they were earning at the lower earnings limit of £46 per week.
Of course those are extreme figures. The much greater likelihood is that there is a spread of earnings levels. Perhaps I may give the House some further examples of employers with workforces coming within that definition: 22 employees all earning £100 per week; 12 employees all earning £150 per week; nine employees all earning £175 per week (this more or less equates with my noble kinsman's amendment); six employees of whom four earn £200 per week and two £350 per week.
Alternatively, if I took average male earnings, which I understand are currently at £295 per week, that would give us a figure of five employees. If we took average female earnings of £201·50 that would allow for eight employees and if we took men and women together, where I understand the average earnings per week are £263·10, that would allow for six employees. Indeed, I could continue but I hope that I have said enough to convince the House of the range and flexibility of the method proposed.
I turn now to deal with the question posed by my noble kinsman Lord Stanley of Alderley. He referred to the issue of time. I had proposed to deal with that when speaking to my amendment but perhaps it would be useful to touch upon the second half of my amendment at this point so as to convince my noble kinsman of the virtues of Amendment No. 10.

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Subsection (1D) enables regulations to prescribe those payments of statutory sick pay on which an employer entitled to small employers relief can qualify for 100 per cent. reimbursement. In line with the undertaking I gave in Committee, it is proposed that this will come into operation once the employer has experienced above average sickness in his workforce —that is, when the contribution reductions are less likely to cover the cost of the extra SSP costs to him.
As in the previous subsection, the legislation enables the regulations to be drafted in one of two ways. The first, at paragraph (a), is by reference to the number of weeks for which an employee has been sick; the second, at (b), is by reference to the aggregate amount of SSP so far paid for the workforce as a whole.
The second option, relating to the aggregate amount of SSP in a tax year, has been included as the result of a meeting I had with my noble friend Lord Jenkin towards the end of last week. My noble friend proposed that we look at an employer's sickness experience for all his employees and when that had reached a certain level in the tax year, then 100 per cent. reimbursement would apply to all future payments of SSP in the year. We foresee some difficulties with that approach, particularly the need to have different earnings bands for different sized employers; otherwise an employer with one employee only might never qualify for the relief, while other employers with more employees would qualify quickly. I nevertheless undertook that the Government would further examine his proposal, and that we are now doing. Unfortunately, in the short time available since I saw my noble friend, it has not been possible fully to evaluate the proposal. In the spirit of the undertaking I gave to him, therefore, we have included a provision on the face of the Bill which would enable such a scheme to be covered.
The Government prefer, however, the first of the two options. We propose setting the trigger at eight weeks. That is the figure about which my noble kinsman Lord Stanley is worried. Thus when an employee had been sick for that number of weeks, if the employer was a small employer entitled to small employers relief he could recover SSP at the rate of 100 per cent. for so long as the period of sickness lasted. Moreover, if the employee went sick again within eight weeks of returning to work, the employer would receive 100 per cent. reimbursement immediately. That is in line with the current arrangements for paying SSP. Employers already have to record the number of weeks of SSP paid, whether linked or not, and they will, therefore, know as soon as an employee has been sick for a total of eight weeks. They will then need to note those records that therafter for so long as the current period of incapacity for work continues they can recover at the rate of 100 per cent. Those arrangements specifically address the problems which an employer can experience if he has an employee who is away for a protracted period.
As I said, we prefer the figure of eight weeks. We have pitched the figure at that level because if sickness
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lasts that long contribution reductions are less likely to cover the additional costs of SSP. The figure which my noble kinsman proposes in a later amendment and which he suggested earlier would be doubly favourable to the small employer, and I am unable to accept that figure. As I said, we are minded to go for eight weeks, but there is nothing on the face of the Bill specifying eight weeks. If we are persuaded that that figure is too high we shall obviously draft the regulations accordingly. I must stress that doors will remain open. We shall continue the consultation in which I have been involved over the past two weeks. We shall listen to any representations on the eight weeks. However, I must emphasise that at the moment we are minded to go for eight weeks.
In conclusion, I want to stress that our proposals are not set in concrete. That is why we propose the flexible approach we have in the regulations. We are of course willing to listen to any comments which employers or their organisations may put forward on the operation of those arrangements. The Government will also be monitoring the operation of the scheme and there will be scope further to amend the arrangements in the light of experience, should that prove necessary.
I hope that what I have said convinces my noble kinsman Lord Russell that an approach based on national insurance contributions of about £15,000 is the right one. In many cases, that will exceed the figure of 10. In some cases it will be less. From an administrative point of view our approach is simpler than merely stating a figure of 10.
Lord Carter: My Lords, the House will be grateful to the Minister for that explanation, but it does not go nearly far enough. Your Lordships' Committee and the Government made it clear that they wished to help the small employer when we debated the issue last week. As the Minister said, the Government have tabled a new clause on small employer relief. The advice we have taken shows that Government Amendment No. 10 goes no way towards meeting the concerns of the CBI, the NFU, the Forum of Private Business, the National Federation of the Self-Employed and Small Businesses and all the other organisations interested in the Bill. The amendment that I moved has the support of all those bodies.
As the Minister said, we have tried to meet the Government more than half way. There was a gap of from five to 20. Half way is 12½. We settled for 10. On the number of employees, we were careful to lift the drafting from the Wages Act 1986. It is not impossible to define the number of employees.
We believe that we have met most, if not all, of the Government's requirements as set out in Committee. I mentioned all those requirements when I moved the amendment. The Government's amendment does not meet the requirements the Committee set out last week, which is why we asked for the amendment to be de-grouped so that it could be dealt with as a separate issue and we could decide once and for all how best to deal with the number of employees. We feel that 10 is the right number.

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The crucial figure that the Minister omitted from his reply was the cost to the Government of this small employer relief. As I understand it, it is less than £2 million. That shows the effect the new clause will have with a £15,000 limit on national insurance contributions and the eight-week requirement.
Lord Henley: Perhaps the noble Lord will give way. I did not give any figures. I can do so now as the noble Lord has mentioned them. The cost will be between £1 million and £2 million; but the cost is not the relevant factor. The amendment is designed to meet the problem where a small business experiences considerably higher than average levels of sickness. Whether that costs £1 million, £2 million or £100 million is irrelevant. The amendment goes some way towards meeting the point.
Lord Carter: My Lords, I am afraid that that is not so. The cost to the government will show the benefit to the private sector. I shall explain why the eight weeks is wrong. I have been involved for 30 years with two businesses, each with a payroll of about 30 employees. I telephoned each of the offices this morning and asked the staff, many of whom have been with me for a number of years, to try to remember the number of employees in each of those companies who have been absent sick for more than eight weeks during that 30 years. In one case it was four and in the other five. That shows the weakness of the Government's amendment.
By relying upon eight weeks, the Government substantially reduce the cost. That is why the figure of £1 million to £2 million is important: it quantifies the benefit to the private sector. The Government amendment may be simple, but it would provide rough justice. At a time of recession a company which falls outside the £15,000 limit in one year but falls below the limit in the following year will not be eligible for small employer relief.
I said that the amendment I moved would affect some 90 per cent. of businesses. The calculation that we have been able to make in the short time that we have had available—a point that I shall deal with later —is that the Government's proposed new clause will affect firms with five employees or fewer, and so we have not moved from where we were in Committee last week on the amendment moved by the noble Lord, Lord Jenkin.
The Minister said that 700,000 employers would benefit: 700,000 will be eligible, but the number who will benefit will be very small. That is measured by the fact that the cost to the Government will be less than £2 million. The whole business of introducing this matter by regulation, in the teeth of what the Committee decided on the Henry VIII clause only last Monday, says a great deal about the considerable weakness of the Government amendment. We have no option other than to ask for the opinion of the House on Amendment No. 1.
3.28 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 126.

Division No. 1

CONTENTS

Acton, L.

Kennet, L.

Airedale, L.

Kilbracken, L.

Ardwick, L.

Kinloss, Ly.

Attlee, E.

Leatherland, L.

Aylestone, L.

Lockwood, B.

Bancroft, L.

Longford, E.

Banks, L.

Lovell-Davis, L.

Blease, L.

Mackie of Benshie, L.

Bonham-Carter, L.

McNair, L.

Boston of Faversham, L.

Mar, C.

Bottomley, L.

Marsh, L.

Briginshaw, L.

Mason of Barnsley, L.

Broadbridge, L.

Milner of Leeds, L.

Callaghan of Cardiff, L.

Molloy, L.

Campbell of Eskan, L.

Monson, L.

Carmichael of Kelvingrove, L.

Morris of Castle Morris, L.

Carter, L.

Murray of Epping Forest, L.

Cledwyn of Penrhos, L.

Nicol, B.

Clinton-Davis, L.

Ogmore, L.

Cocks of Hartcliffe, L.

Oram, L.

Craigavon, V.

Palmer, L.

Cudlipp, L.

Peston, L.

David, B.

Phillips, B.

Dean of Beswick, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Prys-Davies, L.

Ennals, L.

Rea, L.

Ewart-Biggs, B.

Ritchie of Dundee, L.

Ezra, L.

Robson of Kiddington, B.

Gallacher, L.

Rochester, L.

Galpern, L.

Russell, E.

Gladwyn, L.

Sainsbury, L.

Glenamara, L.

Saltoun of Abernethy, Ly.

Graham of Edmonton, L. [Teller.]

Seear, B.

Shackleton, L.

Gregson, L.

Shepherd, L.

Grey, E.

Stallard, L.

Grimond, L.

Stedman, B.

Hampton, L.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Taylor of Gryfe, L.

Hatch of Lusby, L.

Tordoff, L. [Teller.]

Hayter, L.

Turner of Camden, B.

Hirshfield, L.

Underhill, L.

Hollis of Heigham, B.

Wallace of Coslany, L.

Holme of Cheltenham, L.

Walston, L.

Hooson, L.

Whaddon, L.

Houghton of Sowerby, L.

White, B.

Hunt, L.

Williams of Elvel, L.

Irvine of Lairg, L.

Willis, L.

Jacques, L.

Winchilsea and Nottingham, E

Jay, L.

Winstanley, L.

Jenkins of Putney, L.

NOT-CONTENTS

Alexander of Tunis, E.

Cavendish of Furness, L.

Allerton, L.

Clanwilliam, E.

Annan, L.

Clitheroe, L.

Arran, E.

Cochrane of Cults, L.

Astor, V.

Constantine of Stanmore, L

Belhaven and Stenton, L.

Cottesloe, L.

Beloff, L.

Cox, B.

Belstead, L.

Craigton, L.

Bessborough, E.

Dacre of Glanton, L.

Blatch, B.

Davidson, V. [Teller.]

Blyth, L.

Denham, L. [Teller.]

Boardman, L.

Derwent, L.

Bolton, L.

Dulverton, L.

Borthwick, L.

Dundee, E.

Brabazon of Tara, L.

Effingham, E.

Brightman, L.

Elibank, L.

Brookeborough, V.

Ellenborough, L.

Brougham and Vaux, L.

Elliot of Harwood, B.

Caithness, E.

Elton, L.

Campbell of Alloway, L.

Erroll of Hale, L.

Campbell of Croy, L.

Flather, B.

Carnarvon, E.

Fortescue, E.

Carnegy of Lour, B.

Gardner of Parkes, B.

Carnock, L.

Gisborough, L.

93

Glenarthur, L.

Oxfuird, V.

Gray, L.

Pearson of Rannoch, L.

Grimston of Westbury, L.

Pender, L.

Hailsham of Saint Marylebone, L.

Perth, E.

Peyton of Yeovil, L.

Hardinge of Penshurst, L.

Pym, L.

Harmar-Nicholls, L.

Quinton, L.

Harvington, L.

Rankeillour, L.

Henley, L.

Reay, L.

Hesketh, L.

Rodney, L.

Hives, L.

Romney, E.

Hood, V.

St. Albans, Bp.

Jenkin of Roding, L.

St. John of Fawsley, L.

Johnston of Rockport, L.

Savile, L.

Kinnaird, L.

Selborne, E.

Lauderdale, E.

Skelmersdale, L.

Lloyd of Hampstead, L.

Slim, V.

Loch, L.

Soulsby of Swaffham Prior, L.

Long, V.

Strange, B.

Lucas of Chilworth, L.

Strathcarron, L.

Lurgan, L.

Strathclyde, L.

Lyell, L.

Strathmore and Kinghorne, E.

Mackay of Clashfern, L.

Strathspey, L.

Macleod of Borve, B.

Swansea, L.

Mancroft, L.

Teviot, L.

Manton, L.

Thomas of Gwydir, L.

Margadale, L.

Thorneycroft, L.

Massereene and Ferrard, V.

Tranmire, L.

Merrivale, L.

Trefgarne, L.

Mersey, V.

Trumpington, B.

Middleton, L.

Vaux of Harrowden, L.

Montgomery of Alamein, V.

Waddington, L.

Mountevans, L.

Wade of Chorlton, L.

Mowbray and Stourton, L.

Wharton, B.

Munster, E.

Whitelaw, V.

Nelson, E.

Wilberforce, L.

Norfolk, D.

Wolfson, L.

Norrie, L.

Wynford, L.

O'Brien of Lothbury, L.

Yarborough, E.

Onslow, E.

Resolved in the negative, and amendment disagreed to accordingly.
3.38 p.m.
Lord Henley Lord Henley moved Amendment No. 2:
Page 1, line 12, leave out (""so paid"") and insert (—by making"").
The noble Lord said: My Lords, in moving Amendment No. 2 I shall speak to Amendments Nos. 3, 6 and 10 which are in my name. I understand that we shall also speak to Amendments Nos. 4 and 11 in the name of the noble Lord, Lord Carter, and Amendments Nos. 12, 13 and 14 in the name of my noble friend Lord Stanley of Alderley.
It is obvious that in my previous speech I largely dealt with all that I wish to say on the amendment and it would be idle for me to repeat it. Perhaps when I come to wind up I can deal with points made and respond to the amendments in the names of my noble friend Lord Stanley and the noble Lord, Lord Carter. Some criticism was made in our debates on a different amendment during the Committee stage as to whether dealing with the detail of the scheme in the regulations follows normal practice; but there is no question of this being a Henry VIII clause.
However, the House will have noticed that the legislation provides for the first set of regulations under these provisions to be subject to affirmative resolutions. The House will then have an opportunity to discuss the terms of regulations when they are produced. I beg to move.
Lord Jenkin of Roding: My Lords, perhaps I may briefly intervene because, as my noble friend explained, the amendment has been tabled in response to the debate on the amendment that I moved in Committee. My noble friend has been as good as his word and brought forward an amendment which, in that respect, is a good deal better than mine.
I warmly support the part of his amendment that would define the small employer by reference to the payment of national insurance contributions in the year. Like the noble Earl, Lord Russell, I too am grateful for having had the opportunity to study the amendment in advance. In my case the post worked and I had my three copies all delivered on time. That may say something about averages, but I am grateful.
As one is precluded from speaking on a Report stage amendment after the Minister has spoken—I think that perhaps the noble Lord, Lord Carter, has not fully hoisted that on board—may I say that the effect of the £15,000 limit that my noble friend indicated is that the number of employees covered bears a close relationship to, and follows exactly, the range of levels of pay of the employer. In the typical example of a firm that pays four people £125 a week, three people at £175, and three at £200, you find that you have a firm with 10 employees, exactly the same as in the amendment. If all are paid at a lower rate, then there would be more of them. That seems to me to be entirely right. It is a good, flexible definition. I warmly applaud my noble friend for indicating that that is the preferred test for the definition of an employer.
As to the second arm, the threshold for the move from 80 per cent. to 100 per cent., I was frankly concerned when my noble friend indicated that the Government are at present leaning towards the first of his two alternatives; namely, to take it as a threshold for each individual employee rather than the aggregate of sick pay paid by the employer in question. A simple example will perhaps explain what I mean; I appreciate that I am plucking figures out of the air.
My noble friend indicated a figure of eight weeks. If you have one employee who reaches eight weeks of sickness, that triggers the move from 80 per cent. to 100 per cent., and thereafter the employer gets the 100 per cent. reimbursement for the statutory sick pay. If you have two employees both of whom are off for four weeks, you reach exactly the same level of payment by the employer but you are still a long way short of triggering the payment at the 100 per cent. rate.
Therefore, I was pleased to see that my noble friend agreed —and I am grateful to him for having met me with the chairman of the Forum Of Private Business when we argued the case—that if you are going to go down this road it must be on the basis of the aggregate sick pay paid by the employer in the year and not related to the individual employee. Otherwise, one ends up with completely illogical and, I would have thought, indefensible distinctions between different employers depending on how many employees are ill in the year and whether they reach the threshold.

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I take comfort from two points. First, my noble friend has included the power in paragraph (b) to act on the basis of the aggregate and he is also prepared to continue consulting with the interested parties to see that the best solution is achieved. I have no doubt that his figure of £1 million to £2 million, dependent on the level of the threshold taken, could well be higher if it is taken on the aggregate of all the sick pay paid in the year by an employer. I accept his point that there would have to be different thresholds for different numbers of employees, but that, I believe, is not too difficult.
I return to what I said last week in Committee. If you have average, or less than average, amounts of sickness in the firm, the effect of the proposed reduction to the national insurance contribution will leave the firm substantially better off. Therefore, I wish to suggest to my noble friend, his right honourable friend and Treasury Ministers, when they are deciding exactly what form the regulations should take, that they might be prepared to offer a modified reduction in the national insurance contribution so as to save some money there and have a far more logical and far fairer system of fixing the threshold at which you move to 100 per cent.
My noble friend has wisely left himself with the ability to take such action in the terms in which the empowering clause is drawn for the regulations. I urge with all the force I can command that he listens to those who will be pressing him in this direction and that the regulations, when they are put before the House, take that form. I am grateful that the Government have moved and that there is to be a significant small business exemption.
3.45 p.m.
Earl Russell: My Lords, I accept entirely what my noble kinsman the Minister said. This is not a Henry VIII clause. Nevertheless, it is not the only form in which occasionally this House has problems with regulations. My complaint is that we are being asked to buy a pig in a poke. My noble kinsman has frankly spelt out that the Government have not yet decided which form of definition they are using. That is a question that it might be proper for the House to decide.
The size of the exemption is another question that it would be proper for the House to decide. I accept my noble kinsman's formula that the question of principle is what is to be decided by this House, but the question of principle is, in part, a subjective question. What is to be seen as a question of principle must depend to an extent on what people are actually disagreeing about. I once defined business proper to be done in regulation as that which would empty the Chamber if it were embodied in a Bill. These issues do not seem to me to meet that test. In fact the Chamber is reasonably full.
There are also—and I must ask the Government to take this on board—special difficulties in dealing with regulations in this House because of the difficulty of having a vote on them. The concern of my noble kinsman Lord Stanley of Alderley about whether eight weeks is a sufficiently generous concession or
96
whether it could possibly be improved, is a definite point of substance. It is the sort of issue which, if embodied in a Bill, we could properly vote on. If we allow the Government the power to act by regulation we are simply saying, "Let the Government decide. We may be satisfied, or we may not, but whatever they do we have to take it." On a question that causes so much feeling, both inside and outside the House, I am not convinced that that is entirely proper.
I understand my noble kinsman's difficulties. This was a late concession, and a late conversion. Those speaking from the Opposition Benches cannot possibly reprove the Government for a late conversion. If they do they are going to queer their own pitch very considerably. Therefore, I do not blame my noble kinsman the Minister for his late conversion. I understand the difficulty of coming up with a satisfactory decision before Report stage.
I also appreciate that there is strong pressure to avoid bringing back questions at Third Reading that we can possibly dispose of earlier in the Bill. However, since the Government, by the Minister's own confession, have not yet decided what they are going to do I wonder, rather than asking us to authorise them to make the law, they will consider withdrawing the amendment for the time being and coming back at Third Reading when they have decided what they want to do and can spell it out for the House in an amendable form.
Lord Carter: My Lords, in discussing these groups of amendments, I wish to concentrate particularly on Amendment No. 11, which is my amendment to the Government's amendment. As a general point I should say that I am sure the House will realise that we are dealing with a complex group of amendments on a complicated subject. The Government's handling of this Bill in this Chamber and in another place has been nothing short of disgraceful. In another place the Second Reading took place on Monday 26th November 1990 and the Bill was rushed through all its remaining stages on Wednesday 28th November. The Committee stage of the Bill took place in this House on Monday 14th January. We were promised a government amendment to deal with small employers. I hear what the noble Earl, Lord Russell, says about the late conversion, but that does not apply to late tabling. The amendment was tabled very late on Friday and none of the essential information that we needed was given. The information concerning the £15,000 figure and the eight-week period was not available until yesterday afternoon. Those figures are obviously crucial.
Lord Henley: My Lords, I would remind the noble Lord, that Amendment No. 1 standing in the name of the noble Lord was also tabled late. There was no necessity whatever for that lateness.
Lord Carter: My Lords, the Minister knows extremely well that that is a paving amendment for an amendment which had been on the Marshalled List for some time. As I have said, the Government's amendment, which covers two pages, was tabled late on Friday. We received the information in a very skimpy form yesterday afternoon. That left us 1 ½

97
hours to take advice and to draft a very complicated amendment. The Minister might care to tell us just how this House is supposed to do a proper job of work —this applies particularly to those on the Opposition Benches who do not have the support of departmental officials—when his department behaves in this way.
As has already been said in an earlier debate, we feel that the government amendment falls far short of what is required to provide relief for the small employer. I would say to the noble Lord, Lord Jenkin, that I admit immediately that using the level of the national insurance contributions is an ingenious way of dealing with the matter. I would say to the noble Lord, Lord Jenkin, that I admit the advantages of that scheme compared with other methods of tackling the matter. Will the Minister confirm that we are referring here to the total of the employers' and the employees' contributions in the £15,000 figure? The Minister nods his head in confirmation. On average, that will mean that the provision will apply to firms with five or fewer full-time employees. As I said earlier, that could lead to rough justice, particularly in times of recession, for firms which are outside the limit this year. If such a firm's resources decline as a result of recession and its number of employees falls, it will spend a whole year outside the scheme even though its national insurance contributions amount to less than £15,000. Is there a danger of a wage trap in the approach that the Government are adopting? A qualifying period of eight weeks of sickness is much too long. The weakness of the clause is shown by the fact that its provisions will cost the Government less than £2 million. I repeat that I know of two firms with a total payroll of 60 employees. Over some 30 years I cannot recall that more than three or four employees in each firm had been off sick for more than eight weeks. One of those firms was a farm where the incidence of injury is perhaps higher than in other occupations. As I have said, this period is much too long for a qualifying period.
The Minister has been pressed by his noble friend Lord Stanley of Alderley and the noble Earl, Lord Russell, on this matter. I, too, wish to press him on the issue of whether the Government are prepared to reconsider that period of eight weeks. If they are, that would have a considerable effect on the way we regard the Government's amendment. By limiting the period to eight weeks, the vast majority of absences through sickness will be excluded.
I now turn to Amendment No. 11 which stands in my name. It is an amendment to the Government's Amendment No. 10. I apologise for its apparent complexity. As I have said, it was drafted in about 1½ hours with advice. Certainly if we had had more time, we would have been able to express it in simpler terms. I certainly undertake to improve and simplify it if the House is prepared to accept the principle behind the amendment. Despite the complexity of the wording, the principle is quite simple. It proposes that 100 per cent. reimbursement of statutory sick pay to employees should be automatically triggered when the rate of sickness reaches the equivalent of two weeks'
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sickness for all employees per year. No small business, whether it is above or below the threshold of the number of employees, would ever be out of pocket as a result of this approach. When the net monthly cost of statutory sick pay to the employer, that is the shortfall in statutory sick pay after government reimbursement, is more than £5 multiplied by the number of employees in the company in any one month—there is a reason for that figure which I shall not explain to your Lordships as it is a technical reason—the employer is able to claim 100 per cent. reimbursement for that month. The important point is that statutory sick pay has to be dealt with on a monthly basis. The amendment, in turn, deals with reimbursement on a monthly basis.
The flexibility of this method allows the problem to be identified before it reaches crisis point. Under the Government's system an employee would have to be absent for a full eight weeks before he could qualify for 100 per cent. reimbursement. This method is easier to calculate as it can be built into the existing method of payments received from the Government. Our proposal is easier to police because it is built into existing procedures. No special measures are required for small businesses because their interests are routinely protected through the self-adjusting nature of the scheme. The system is graduated and at no point do sudden dramatic changes occur on either side of a threshold.
I know that the Minister has discussed this amendment with those who drafted it and those who support it outside the House. Is he prepared at least to consider this principle? As I have said, we have had very little time to draft the amendment but I believe the Minister understands well what lies behind it. I hope the Minister is prepared at least to say that he will consult on the principle behind the amendment, which I believe is a simple one. If that is not possible, I hope the Minister will be prepared to consult on the number of weeks which the Government will use as a trigger. The Minister's remarks will help us to decide how to deal with our amendments.
Lord Stanley of Alderley: My Lords, it may be for the convenience of the House if I speak to the amendment of my noble kinsman as well as to Amendments Nos. 12, 13 and 14 which stand in my name. The Government's statements in Committee gave us hope that they had accepted the need to protect small employers from the extra costs facing all employers as a result of this Bill. The Government's amendment, however, gives the Government such wide powers that by itself it gives no indication of what they intend. It is thus the figures that we have just been given which hold the key.
The Government's amendment refers to employers' national insurance contribution payments. The Government's figure is £15,000 a year. That is misleading because that represents the total contribution including that of the employees. It is less generous than it initially appears. Based on national average earnings, it really only means five full-time employees or fewer. However, I am reluctantly prepared to accept this provision. My only amendment to this part

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of the Government's amendment is a practical one. It is contained in my Amendment No. 12 which would mean that as employers remit their national insurance contributions monthly, they should do the same for statutory sick pay.
My Amendment No. 13 is one about which I feel very strongly. I am delighted to be supported by my noble friend Lord Jenkin and the noble Lord, Lord Carter. The Government's proposals largely remove any real benefit to small employers. By limiting the 100 per cent. recoupment to sickness that is prolonged after eight weeks or so—I accept that my noble friend has not been definite—the vast majority of sickness absences and small employers' statutory sick payments are excluded. That was pointed out by the noble Lord, Lord Carter.
In both Houses the Government have made great play of the benefit to employers of the reduction in employers' national insurance contributions. However, that is extremely misleading. The 0.4 per cent. reduction applies only on earnings up to £185 a week. Above that figure the reduction is only .05 per cent. This will apply to most full-time employees. In effect the 0.4 per cent. saving will apply only to part-time and juvenile employees. I shall give an instance of this. For an employee earning £200 per week, the saving on the employer's national insurance contribution is only a paltry £5.20 per year. That is the equivalent of the difference between 80 per cent. and 100 per cent. SSP recoupment for only 2½ days SSP. However, in their generosity the Government are proposing that full recoupment should not start for eight weeks. If the Government are genuine in their desire to help small employers, 100 per cent. recoupment must apply to all SSP payments. That is the reason for my Amendment No.13, to which I am now speaking, to delete Clause (1D) of the government amendment.
The Government's clause is really a mean move to give small employers something with one hand only to take it away with the other—indeed, to take more away. This clause should be removed. Bearing in mind what my noble kinsman Lord Henley said previously, I hope that this amendment will be accepted. I fully understand that it may not be possible for him to do that now, as we drafted the amendment in somewhat of a hurry—noble Lords who were involved in this know the state we have been in over the past weekend —but if he cannot accept it now perhaps he will indicate what he might be prepared to do before Third Reading, or indeed at Third Reading?
I now move briefly to Amendment No. 14. As noble Lords will see, this changes all orders to affirmative orders. It appears to be the case that the first order is affirmative and the others negative. This amendment is very important because it would remove the justifiable fears expressed by my noble kinsman Lord Russell that it is wrong to rule by statutory instrument. But provided your Lordships' amendment insisting that any change to the rate should be subject to primary legislation is upheld—the Henry VIII clause; and I am sure that constitutionally it should be and I look at the noble and learned Lord, Lord Simon
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—I cannot see any government being able to argue, and they would have to argue it on the floor of the House if it were an affirmative order, that the rate for small businesses be altered to their detriment without so altering the main provisions of the Bill which, subject to your Lordships' Henry VIII provision being upheld, would require primary legislation.
Lord Harmar-Nicholls: My Lords, I am sorry that the noble Lord, Lord Carter, opened his argument with the remark about not having time and that the amendment was put down rather late. He knows, as I do, that there was plenty of time, bearing in mind the discussion and thought that had been given to the matter. That is not really the argument. It would have been better to have had a longer period so that, as he said, his own amendment could have been better thought out, but I think he weakened his argument. I am sorry that he opened what was otherwise a good argument with the sour business about it being put in too late for anything to be done.
My noble friend Lord Jenkin dealt with the matter in a much more mature way. He made it perfectly clear that the general direction shows some improvement on what we were told at Committee stage; but the improvement does not go far enough. At the Committee stage I used the argument that those of us who have day-to-day contact with small industries could produce our own evidence. I said at Committee stage that, as the position then stood, it really would be detrimental to small businesses such as those that I know, even to the point of encouraging us to dispense with labour at a time when we do not want to add to the unemployment list. My noble friend Lord Jenkin is right.
I have discussed this matter with the people who deal with the day-to-day matters of my small companies. There is the suggestion of aggregating the period for which people are off work instead of confining it to the individual, which at present would be of no help at all. The whole of our argument is that the people who need the help are the small employers. The extra burden that they will have put on to them is very real and it affects whether or not they are going to be successful, with everything that flows from that.
I agree with the noble Lord, Lord Carter, that if the saving is to be only £1 million to £2 million that is a clear indication that not much help will be given to anybody. My noble friend should take that point into account. He has given himself the powers under the supposed affirmative regulations that we have in mind to do something about this. Indeed, he could underwrite it by the time we come to Third Reading and when he replies to this short debate he could indicate that he is prepared to look at the position where he would aggregate rather than keep it to separate individuals.
I asked my people how often over the past two years we had had people off work for more than eight weeks. Staffordshire is a good healthy place to live in and over the past two years we have not had one person who has been off sick for more than eight weeks. Quite a number have been off for two, three and four weeks. I agree with the arithmetic of my

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noble friend Lord Jenkin that two fours make eight, and if my noble friend could indicate a figure of four that would mean something for the companies on which I can speak with some authority. It would not be absolute justice. I think they are entitled to full restitution as it is not their fault if an employee is ill.
If the Minister can indicate in his reply that the Government will look seriously and with sympathy at basing this on an aggregate, with four weeks rather than eight weeks being the figure upon which they base their regulation, they would be moving towards giving some help to those who need it; that is, the small businesses which will be affected by the Bill.
Lord Carter: My Lords, before the noble Lord sits down, as he referred to my remarks I should like to say that the point I was making was that the crucial information we needed was the £15,000 and the eight weeks. Only in that way could we decide on the quality of the Government's amendment. We received that information—and I accept that the Minister tried his hardest to get it to us, but the Department did not produce the figures—yesterday afternoon at three or four o'clock. The amendment had to be tabled by six o'clock and we had to take advice, to draft it and to table it. I do not think that was long enough.
Lord Boyd-Carpenter: My Lords, this amendment produces an improvement in the Bill, but it is a very small one and I do not share the enthusiasm for it of my noble friend Lord Jenkin of Roding.
I am grateful to my noble friend Lord Henley for giving consideration to some of the matters which were mentioned in Committee, but I do not think he is prepared to deny that this is a very small concession indeed and one which will do very little to remedy the damage which the Bill will do. On that question of damage, I should like to tell your Lordships of a communication I received this morning from a body that I had not realised was interested in this matter —the National Association of Citizens' Advice Bureaux, which is a politically wholly impartial body and one also detached from the particular interests of industry. It states:
"The CAB service views with considerable concern the proposals in this Bill. We fear that, by ending full reimbursement for payments under the statutory sick pay scheme, the proposals will provide employers with a positive incentive to dismiss workers who become sick".
That is a very serious allegation from a highly responsible and politically impartial body. I hope that the Government will pay some attention to it.
I understood my noble friend the Minister to say that before the next stage of the Bill he would have consultations. I ask him to include in those consultations the citizens advice bureaux and, in a different way, the CBI. I believe that my noble friend knows that there is considerable ill feeling among many outside bodies that they have not been consulted properly, or at all, about a matter which affects them a great deal. I hope that my noble friend will not take the line that because he has produced this amendment that is all that he needs to do. I hope and believe that
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he will enter into consultations forthwith and seek to see whether further changes should not be effected at Third Reading.
On that point, consultations have not been helped by the extraordinary haste with which the Bill has been pushed through. Intervals between stages have been very short indeed. In view of the very short discussions in another place, it is to be remembered that those discussions coincided with a time of considerable political excitement on totally different matters which no doubt distracted the attention of honourable Members from the serious issues which arise on this Bill.
The amendment could mean very little. It all depends upon how, if it is put into the Bill, it is used. It is largely a regulation-making provision. My noble friend said that it is not a Henry VIII clause. I rather agree. I think that it is a Henry VII clause—it is a little weaker. However, it contains complete powers to allow the Government either to make it effective or to make it largely ineffective.
If noble Lords will look at the text of the Bill they will see from subsections (1C) and (1D) that regulations "may" do this and "may" do that. There is no provision that they must or shall do it. Equally, when one looks at the last subsection of the amendment one sees that a statutory instrument will be subject to the affirmative procedure only in relation to the first regulations made under the Bill. That is no safeguard at all. There is nothing whatever to prevent the Government from producing an innocuous and not very important set of regulations as the first regulations, going amiably through the affirmative procedure and then putting the powerful regulations which really affect matters into the next set of regulations which are subject only to the negative procedure.
Therefore I hope that one of the amendments for Third Reading which my noble friend will consider will be to take out the word "first" in that subsection and provide that all of the regulations shall be subject to the affirmative procedure. I hate to say this of a Government for whom I have a very high regard and whom I have endeavoured over many years to support as enthusiastically as I could, but I should be happier if they were firmly tied down by such safeguards.
Finally, I agree very much with the noble Lord, Lord Carter, that the figure of eight weeks is far too high. One could argue for whatever lower period one prefers. My own view would be that three or four weeks would be appropriate but that is a matter on which opinions may very well differ. However, I believe that there is very little difference of view in this House that eight weeks is a very high figure and hardly likely to be of much value.
Therefore, in thanking my noble friend for having introduced an amendment at all I hope that he will not believe that it is an impressive or substantial one. One can apply to it the old quotation:
"Parturiunt montes, nascetur ridiculus mus".

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For the benefit of Members of your Lordships' House on the Liberal Democrat Benches I shall translate. It means that Lord Henley has been in labour and has produced a very small result.
4.15 p.m.
Lord Renton: My Lords, before my noble friend sits down can he say from his long experience of this type of legislation whether it has become usual in the past for regulations to be used for deciding not merely the detailed incidence of particular provisions but actual amounts?
Lord Boyd-Carpenter: My Lords, my recollection goes back to the six-and-a-half years during which I was Minister of Pensions and National Insurance. I should not like to give an answer about all of the legislation over that period but it is my clear recollection that in the fixing of amounts one always put the figure into the Bill.
Lord Donaldson of Kingsbridge: My Lords, should not the noble Lord, Lord Renton, address his questions to the Front Bench?
Lord Mottistone: My Lords, I too should like to remind the Government that this amendment was produced very late in the day. At Committee stage, when it was proposed, I suggested very strongly to my noble friend that his officials should discuss the matter with the CBI and other interested parties before the amendment was produced. In the event on Friday afternoon I was telephoned—on the Isle of Wight—to be told by the CBI that the department would not say what the amendment looked like. It was not until I was able to talk to staff in my noble friend's private office, which had been instructed to tell me what the amendment looked like, that we got the department moving to tell the CBI what was proposed. That was late on Friday, with the weekend coming up. It was very restrictive and appeared almost to be deliberate and intended to prevent advice being put forward. The net result is that we have an amendment for which, until I heard them just now, I did not have the vital figures. The CBI was able to squeeze the figures out yesterday. Without those vital figures the amendment meant nothing at all.
I do not blame my noble friend and his officials for this, but inevitably the amendment is not ideal because it had to be rushed out, as did the amendments to the amendment. Whether we accept the amendment or not is not important at this stage, but it would be worth my noble friend saying that he will come back at Third Reading with an improvement on the amendment which would be discussed by interested parties tomorrow and the next day. That still gives a bit of time. That would be very helpful because, as I see the Bill, without the amendment of the noble Lord, Lord Carter —which is not a party political amendment but has been produced by the Forum of Private Business (which could not be more non-socialist) and is a sound approach to the problem the provision could not be written into it by regulation if it was not accepted—if your Lordships see what I mean.
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If my noble friend does not intend to accept the amendment of the noble Lord, Lord Carter—and much the same argument applies to those of my noble friend Lord Stanley—perhaps he could say "I am interested in these amendments and I shall discuss with the people concerned, including the CBI, during the next couple of days how we can improve on the amendment we are now debating". If my noble friend would say something like that I believe that he would satisfy all of us, including even my noble friend Lord Jenkin who, although he has strongly supported the Government at every turn—I cannot quite say that I admire him for that but it is jolly good from the Government's point of view—has said that the Government's amendment could do with improvement.
Therefore, those of us who have studied the amendment—and sadly most of your Lordships have not had the opportunity to do so because you have not been kept in the picture—have only been able to do so because we managed to squeeze information out of the department over the weekend. Most of your Lordships therefore probably find much of what I have said hard to understand. The fact is that if my noble friend really wants to produce a Bill which is credible, which will work and which is fair and reasonable to small firms, I urge him strongly to say that he will produce a discussed alternative which embraces what is before us now for this House to consider at Third Reading.
Lord Simon of Glaisdale: My Lords, I respectfully agree with the noble Lord, Lord Stanley, and the noble Lord, Lord Boyd-Carpenter. It is highly desirable that regulations made under two different subsections inserted in Section 9 of the earlier Act should throughout be by affirmative resolution. I know of only one other case where the first occasion of the regulations being put was by affirmative procedure and subsequently by negative procedure, and that was in the Education (Student Loans) Bill (now Act) where the circumstances were entirely different. It seems to me that for the reasons given by the noble Lord, Lord Boyd-Carpenter, if the first regulations merit the affirmative procedure, that should be adopted throughout.
Baroness Platt of Writtle: My Lords, perhaps I may support the suggestion of my noble friend, Lord Mottistone, that there should be further consultation due to the lateness of this amendment. I understand that the Engineering Employers' Federation share the CBI's doubts about the meaning of the amendment and feel it should be clearer. At the present time, it seems to me to be very important that this should be clear. We should be encouraging employers in these important fields of manufacture to overcome the present recession.
Lord Henley: My Lords, again I should like to apologise for my amendments being somewhat late. I can assure my noble friend Lord Mottistone that it is in no way deliberate. We got them down on Friday and sent copies to as many noble Lords as possible. I think one should remember that the noble Lord, Lord Carter, and my noble friend Lord Stanley also put

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down a late amendment. I do not refer to the noble Earl's Amendment No. 9 but to Amendment No. 1, which was put down only yesterday and which I first saw today. It might be a purely paving amendment, but I was too polite to say earlier that it was a totally unnecessary paving amendment. Presumably it was put down for some peculiar procedural reasons. I make that comment only because, if we are being accused of putting down late amendments, I think the noble Lord, Lord Carter, also put down late amendments.
Turning to the regulations, I am not sure that I was grateful that my noble friend Lord Boyd-Carpenter referred to them as Henry VII regulations rather than Henry VIII regulations. As I remember, Henry VIII had something of a reputation for fiscal efficiency.
My noble kinsmen and others have raised the question of why we are dealing with the main provisions in regulations. As I think I have already said, it is deliberate policy on our part to provide maximum flexibility in designing the scheme. I indicated that the Government had preferences for the way in which the scheme should be designed. At this stage, we do not want to rule out other possibilities should they turn out to be more practical. For this reason, some of the powers in the more crucial areas keep our options open at this stage. Assuming that the House approves my amendments, we shall be prepared to listen in the interval between now and the laying of regulations to representations on the best way of operating the scheme. That was what I meant when I referred to the consultations in which we have engaged and in which we shall continue to engage. We shall listen to the representations of anyone who wishes to speak with us.
Lord Boyd-Carpenter: My Lords, it is important that there should be no misunderstanding here. Does that willingness to indulge in consultation also include a willingness to consider further amendments at Third Reading?
Lord Henley: My Lords, obviously I would consider further amendments at Third Reading. It is not for me to say what noble Lords should put down at Third Reading. If the noble Lord wishes to put down an amendment at Third Reading, so be it.
Lord Boyd-Carpenter: My Lords, the noble Lord has misunderstood me. I asked whether in his discussions with outside interested bodies he was prepared to listen to their suggested amendments for Third Reading.
Lord Henley: My Lords, if the noble Lord is suggesting that I should then bring forward their amendments, let me point out that what I am suggesting is that with our amendment as it stands we hope we should be able to achieve what would be desired, if we thought fit. I shall at this moment give no guarantee that I will bring forward amendments myself. The noble Lord can, as he well knows, bring forward amendments at Third Reading.
Lord Harmar-Nicholls: My Lords, in view of what my noble friend has just said, perhaps I may ask what
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is the point of the discussion. He says he is prepared to have discussions. Does he mean he is prepared to discuss, with the possibility that, arising from those discussions, he will think of an amendment at Third Reading?
Lord Henley: My Lords, I talked about discussions and I talked about the regulations. So far I have said we are minded to go for a £15,000 national insurance contribution threshold and eight weeks for a single employee threshold on the second part of my amendment. We shall listen to representations on those matters. I did not say that we would necessarily consider changing this amendment.
I turn now to the amendments to my amendment tabled by the noble Lord, Lord Carter, and my noble friend Lord Stanley. I should like to deal first with paving Amendment No. 4 and Amendment No. 11 to be moved by the noble Lord. Again, the noble Lord will appreciate that we have seen it only recently, but I hope we can help him. It is a far-reaching amendment which completely alters the basis on which I have suggested employers can get 100 per cent. reimbursement. Equally, it applies to all employers, although I understand that from the way the scheme has been designed it favours small employers.
As I said, the noble Lord is aware that neither I nor my officials have been able to study this in any detail. We saw it for the first time only this morning. But the noble Lord did explain that the scheme had been devised by Mr. Mendham of the Forum of Private Business. Mr. Mendham spoke to one of my officials about it only yesterday. I certainly pay tribute to Mr. Mendham for his diligence in coming forward at short notice with what at first glance appears to be a very complicated scheme. I understand that my officials will be prepared to see Mr. Mendham tomorrow to have further discussions about the scheme.
Lord Mottistone: My Lords, if that is so, is my noble friend confident that Amendment No. 11 can be incorporated in the Bill without further amendment to his amendment?
4.30 p.m.
Lord Henley: My Lords, no, because that amendment removes a large part of my amendment. But that would be a matter for the House to consider at Third Reading.
The noble Lord, Lord Carter, explained the way in which the amendment would work. I have to confess that I still remain somewhat mystified as to how it would operate so as to compensate only in cases of abnormal sickness patterns.
The amendment seems to assume that an employee can expect to have two weeks of sickness on average per year; that is, seven days of SSP would be payable in the case of workers on a five-day week, taking account of the customary three waiting days for SSP. This equals £60.90 where the lower rate of SSP is taken to be £43.50 a week. I understand that that sum per employee is then apportioned to each calendar month by dividing by 12 to arrive at an average sickness cost per month for the firm. Abnormal sickness pattern

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relief would fall due if in any month the gross SSP due exceeded the monthly average which the employer calculates.
I believe that is the flaw in the proposition as we understand it at the moment. It assumes that even in small firms sickness itself will be spread evenly throughout the year. At its most absurd, an employee who was sick for a total of 10 days in the year would have ten-twelfths of a day off sick each month. Clearly that is ridiculous. While it is appropriate to average costs on a monthly basis, the incidence of sickness is entirely random.
Perhaps I can illustrate that better by giving an example. In a firm of five employees using this formula the firm would qualify for abnormal sickness pattern relief if the monthly SSP payments exceeded an annual amount of £304.50 divided by 12; namely, £25.38. It will be obvious to the House that SSP in respect of less than one week's sickness for just one employee in any month would exceed that threshold. In effect, it is our belief that in those circumstances the employer would qualify for the relief in respect of virtually every spell of sickness. That is far from what could be described as abnormal. In view of that, I am not able to accept the noble Lord's amendment. However, as I said, my officials are prepared to have further discussions with Mr. Mendham about his proposals.
I turn now to the amendments of my noble friend Lord Stanley, Amendments Nos. 12, 13 and 14. I had the impression that these amendments received more support during discussions in the House than did the amendment with which I have just dealt. I start with Amendment No. 12 which sets a month as the period of contribution liability that would determine whether an employer qualified to be treated as a small employer. That contrasts with the Government's proposals which, as I have explained, would be prescribed in regulations as the preceding tax year. It is not clear from my noble friend's amendment which month would be so designated but I assume that it would be the month prior to when an SSP payment first became due. That would lead to a much more complicated system than that proposed in my amendment. It would mean that the employer could move in and out of eligibility for small employers' relief from month to month depending on the level of his contributions. This would be particularly difficult for those employers with fluctuating workforces, where there was seasonal working, overtime or part-time work; in fact whenever the wage bill varied significantly between months.
That contrasts with the simplicity of the proposals that I put forward under which once designated a small employer, the employer would so remain for the whole of the next tax year. The employer would not need to consider afresh each month whether he was still eligible to be treated as a small employer. He would know that once he had an employee who had been off sick for eight weeks he could get SSP reimbursed at the 100 per cent. rate without any further calculations on his part.
Finally, with regard to Amendment No. 12, it would be difficult for the department to monitor the
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correct application because the information would not be available from our own records. It would entail visiting employers and inspecting their records in every case. That is unlike our proposal whereby the information would be available in the end-of-year return that the employer already submits. For those reasons I cannot accept my noble friend's amendment.
Amendment No. 13 would remove from the Government's new clause the requirement that a specified level of sickness must have been reached before a small employer can revert to 100 per cent. reimbursement. All employers qualifying to be treated as small employers would be able to get 100 per cent. reimbursement for all the SSP paid.
On a number of occasions I have explained to the House the effects of the reductions in national insurance contributions and the fact that they are particularly weighted in favour of the small employer presuming that the small employer tends—I certainly believe that there is such a tendency—to employ the less well paid. I have given detailed examples of the way in which the additional SSP costs are more than offset by the reductions in contributions that we propose for many small employers.
My noble friend Lord Jenkin suggested that we might reduce the level of the proposed contributions. However, I must stress again that when my right honourable friend reduced the contributions he was able to do so because of the state of the fund. He saw that as in some way compensating employers for the changes that he proposed to statutory sick pay. But he was only able to do it because of the state of the fund. It is the state of the fund that has to be his consideration when making changes to the level of national insurance contributions.
I return to the matter of the reductions in contributions and the fact that they will normally more than compensate many small employers for additional SSP costs. Those figures have not been disputed. It is only when the small employer experiences protracted sickness in his workforce that he loses the benefit of the reduced national insurance contributions. That is why we came forward and why I gave the House the figure of eight weeks. We have so pitched it because we feel that that would be about the level at which small employers may begin to lose out from the national insurance contribution reductions.
I listened to what my noble friend Lord Jenkin said and to the words of my noble kinsman Lord Stanley. I must stress again that the figure of eight weeks is not set in concrete and is not on the face of the Bill. If we are persuaded that it is too high or that it might be better to go down the road of total number of employees over the year rather than the individual employee, we shall certainly take that into consideration and draft the regulations accordingly. The door will be open to all those who wish to make representations on that matter. Should my noble kinsman wish to suggest some alternative means to set the figure, we shall certainly consider it at Third Reading.
I come to my noble kinsman's third amendment in which he seeks to provide that all regulations made

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under these provisions should be subject to the affirmative resolution procedure. As I explained, the Government think it right that the first regulations should be affirmative. These will set the parameters for the start of the scheme and it is right that Parliament should have the opportunity to discuss the Government's plans for what in effect will be an entirely new procedure. But we felt that once the principle and initial levels for the scheme had been set, it would not seem necessary that further regulations, which may well be on very trivial matters, should come before the House.
Nevertheless, in view of representations that have been made to me quite forcefully by my noble kinsman Lord Stanley, the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Simon of Glaisdale, we are prepared to accept the noble Lord's amendment, Amendment No. 14. I am advised that in terms of its drafting, on which I congratulate my noble kinsman, it is not defective. I reserve the right to come back at Third Reading to correct any defect that it might have, should it be necessary, which I doubt. My noble kinsman Lord Stanley is a highly skilled draftsman and probably put it in absolutely the right form.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 3:
Page 1, line 13, at end insert ("an amount equal to the sum of—

(i) the aggregate of such of those payments as qualify for small employers' relief, and

(ii)").

The noble Lord said: My Lords, I beg to move.
Lord Carter Lord Carter had given notice of his intention to move, as an amendment to Amendment No. 3, Amendment No. 4:
Line 3, leave out ("small employers'") and insert ("abnormal sickness pattern").
The noble Lord said: My Lords, I had intended to move Amendment No. 4 but shall not do so.
[Amendment No. 4 not moved.]
On Question, Amendment No. 3 agreed to.
[Amendment No. 5 not moved.]
Lord Henley Lord Henley moved Amendment No. 6:
Page 1, line 14, leave out ("those payments") and insert:
("such of those payments as do not so qualify, by making").
The noble Lord said: My Lords, I spoke to this amendment when moving Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Lord Harmar-Nicholls: My Lords, did the House accept Amendment No. 4? There appeared to be some confusion.
Lord Henley: My Lords, the amendment was not moved by the noble Lord, Lord Carter.
Lord Harmar-Nicholls: My Lords, I had the impression that on the call for voices we approved Amendment No. 4. I am happy if the amendment was not moved.
[Amendment No. 7 not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 8:
Page 1, line 24, leave out subsection (2).
The noble Lord said: My Lords, it gives me great pleasure to move an amendment in the conventional way. I shall speak also to Amendments Nos. 17 and 19. Amendment No. 8 re-introduces the safeguard to the 7 per cent. compensation for costs to industry in operating the scheme. I do not propose to repeat the full explanation that I gave in Committee. It appears in Hansard at col. 1038. However, I wish to comment on the arguments put forward by my noble friend in defence of the subsection that I now seek to delete.
I have looked at the arguments and remain as unconvinced as I was when I first heard them. In essence, my noble friend suggested that as the proportion of employers taking up the extra 7 per cent. was limited to 75 per cent., clearly it was not valued. I find that line of argument puzzling. Surely a more obvious interpretation is that if three-quarters of all those entitled to claim do so, the provision is considered well worthwhile. Indeed, with a little more publicity for the provision it may reach even more of those who are eligible. If my noble friend's department were achieving 75 per cent. take-up rates in respect of some of its other targeted benefits, it would count them as a great success.
There is a situation in which it may not be necessary for me to invite your Lordships to support the amendment. In Committee I was unaware of the fact that if the amendment that was then accepted—that is 91 per cent. instead of 80 per cent.—is left in the Bill unchanged, there would be no need for the amendment now being debated. However, your Lordships may consider that if there is a danger that, without coming back to this House, the Government will at some stage seek to alter the 91 per cent. to another figure detrimental to industry, Amendment No. 8 and its consequential amendments, Nos. 17 and 19, should be included in the Bill as a safeguard.
I am reluctant to suggest to your Lordships that the Government may be inclined to alter the figure of 91 per cent., which proved to be a firm decision when voted upon. This is no time to put an extra burden upon industry for all the reasons given in Committee by many of my noble friends, by noble Lords opposite and reiterated today in an excellent article on the subject in the business section of The Times. Indeed, as the article indicates, since Committee the attention of those in industry as well as in government has been centred on the conflict in the Gulf. It is certainly no time for the Government to be heavy-handed by further antagonising industry unnecessarily.
Before reading the article in The Times I puzzled last night about the justification given by the Government for the Bill, let alone this part of it. Reading the introductory speech made by my noble friend Lord Henley on Second Reading, especially cols. 390 and 391, gave me no help in that respect; nor

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did reading his winding-up speech. He merely said that the Government had looked at the SSP scheme and decided to make certain changes. He gave no real justification for those changes. However, the article in The Times explains that the extra charges to industry are intended to discipline companies into having a more systematic approach to absenteeism.
Notwithstanding that, a letter written to the Financial Times yesterday by Mr. Richard Price, Deputy Director-General of the CBI, makes it clear that the explanation, which is believed to have been thought up after appreciation of the strength of the opposition to the changes, is bogus. I commend to your Lordships the letter to the Financial Times, as indeed I commend the article today in The Times.
Before I decide what to do with my amendment it would be helpful to have an indication from my noble friend that the Government intend to retain the cost-neutral position of the 91 per cent. I beg to move.
4.45 p.m.
Earl Russell: My Lords, we in the Liberal Democrat Party warmly support the amendment. We also agree with the comments made by the noble Lord, Lord Mottistone, about the relationship between this amendment and the 91 per cent. amendment carried in Committee. I shall not develop that argument further.
I shall comment briefly and in passing on the comments made by the noble Lord about absenteeism. The idea of the Bill provoking employers to clamp down on absenteeism is the opposite side of the coin to the fear of the National Association of Citizens Advice Bureaux, which was quoted by the noble Lord, Lord Boyd-Carpenter, that it will lead employers to arbitrary dismissals. The difficulty with action such as clamping down, for which the Bill creates an incentive, is that it always ends up being directed at the wrong people. It is very difficult to get such things right. If action is taken under too much pressure, it is probable that it will be directed at the wrong people. I support the amendment.
Lord Jenkin of Roding: My Lords, my noble friend Lord Mottistone took me to task in an earlier speech. On several occasions I expressed myself as being broadly in sympathy with the Government's objectives in bringing forward this legislation. I did so not least because of the headroom given to my right honourable friend the Secretary of State in securing savings in the Bill. He was therefore able to make a number of extremely valuable improvements in some of the most sensitive areas of social services. Not least is the improvement in child benefit. It was made absolutely clear in a Statement made in another place by my right honourable friend Mr. Newton that the achievements were linked. This afternoon I was intrigued to hear a number of noble Lords calling for improvements in child benefit after having marched through the Lobbies voting against the savings that made possible such an improvement as from next April.
My noble friend Lord Mottistone is looking for reasons for the introduction of the Bill. It is nothing to do with disciplining sickness, although it may have
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that effect on some employers. It was introduced because of the exigencies of the public expenditure round and the need for Mr. Newton to find headroom in order to make many much-needed improvements.
I do not cavil with the Government on that. That is the very stuff of which governments are made. It is a question of priorities. If one turns to the amendment moved by my noble friend Lord Mottistone, it is interesting to note that he is hoping to obtain a view from the Government on the defeat he inflicted on them last week. My guess is that my noble friend on the Front Bench will not be able to say anything about that.
I believe that we are well on the way to obtaining an acceptable package for the small firm. The Bill is designed to press particularly hard for the small firm. The package which has been introduced for the generality of employees—the reduction of national insurance contribution and matching the reduction from 100 per cent. to 80 per cent. for the reimbursement of statutory sick pay—deserves support, for the reasons spelt out in the leading article in the Financial Times. I may point out that Mr. Price's letter was not a very accurate response to that article, and my noble friend on the Front Bench may wish to say something about that. If my noble friend chooses to press his amendment to a Division on this occasion, once again I must make it clear that I shall be unable to support him.
Earl Russell: My Lords, the noble Lord was arguing that it is necessary to finance benefits. Can he answer the argument developed by the noble Lord, Lord Boyd-Carpenter, and others, that we would be financing benefits by killing the goose that lays the golden egg?
Lord Jenkin of Roding: My Lords, with the greatest respect to the noble Earl, I dealt with that in the Committee stage of the debate. The figure was 0.03 per cent. of the total wage bill. One is discussing a total wage bill that runs to over £300 billion a year, and we are speaking of 0.03 per cent. of that.
I do not accept the argument that for the generality of employees that imposes some intolerable hardship which justifies the very strong language used by my noble friend Lord Boyd-Carpenter and one or two other noble Lords on this side of the House in regard to this measure. They do not face the problem that Ministers face in seeking to build-in much needed and much called-for improvements in social services for which there is no other source of money.
My right honourable friend Mr. Newton has shown considerable courage and sense of priority in recognising the need for improvement in child benefit, in income support for people in residential care and nursing homes and in services for the disabled. If he is to introduce those improvements, for which many noble Lords have clamoured, he must find the savings to pay for them. That is the way in which successive governments have dealt with these matters; it is the way that he has dealt with them, and he has my support.
Lord Carter: My Lords, before the noble Lord sits down perhaps I may put a point to him. He made the same point at Committee stage last week. In fact I believe he is wrong. The Bill as originally drafted against the reduction in national insurance contributions was neutral in its effect on the cash flow of the Department of Social Security. There was £258 million on one side and £250 million on the other. He is right about the £100 million used to finance improvements in benefit. That came from the failure to uprate the levels of statutory sick pay and the failure to alter the thresholds. That was all dealt with in the uprating statement and has nothing to do with this Bill or the reduction in the employers' national insurance contribution.
Lord Jenkin of Roding: My Lords, with respect to the noble Lord, Lord Carter, who has long experience of these matters, he is leaving out of account a fact referred to by my noble friend on the last amendment. It was in response to a point I made that in terms of the management of public finance, the state of the national insurance fund and the question of public expenditure fall under different heads.
As I said earlier, I negotiated on those matters both as Chief Secretary to the Treasury and subsequently as Secretary of State for Social Services. The ordinary citizen sees this as public money coming out of the same pot. From the point of view of the control and management of public expenditure, the £250 million savings which will be secured by the Bill if the amendment is reversed—I have no knowledge of what the Government may be hoping in that regard—will help to finance much needed and much called-for improvements in other areas of the social services where there is no other source of income.
Lord Boyd-Carpenter: My Lords, I am sorry that my noble friend Lord Jenkin of Roding seeks to revive discussions which took place on Second Reading and at Committee stage on the general merits or demerits of the Bill. Even at this late stage he declines to face the real objection to the Bill; that is, that at a time of some degree of recession in the economy it is a mistake to add arbitrarily to the costs of industry.
It is no defence to say that it is the traditional defence of the young bastard; that is, it is only a little one. For some companies it is a considerable increase in costs, while at the same time the Government, and I am sure my noble friend, are doing their best to beg industry and the trade unions to keep down their costs. If it is so small an amount that it does not matter, the counter argument is that it will not be a large enough amount to support the great improvements that my noble friend foresees in the social services. He cannot have the argument both ways.
Like my noble friend, I sat on both sides of the table on these issues; I think I am right in saying that I sat rather longer than he did. He knows that our social services can properly ask for improvements right across the field. It is good that they should. But it is another matter to say that they should do so only by a measure which deliberately concentrates on raising the costs of industry. At this time to do so is rash. To
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do so in the face of criticism from every organisation representing industry that one has heard of, is unwise. I am afraid that the Government will regret it.
Baroness Turner of Camden: My Lords, I rise from these Benches to support the amendment moved by the noble Lord, Lord Mottistone. We supported it when the Bill was in Committee and do so again. Once again I support it from the standpoint of an employee. We have heard a great deal about the burdens of employers. However, as was pointed out by the noble Lord, Lord Boyd-Carpenter, burdens on employees are also involved.
If one has a situation in which further costs are seen to be imposed on employers, particularly small employers, that would inevitably affect employees. It affects the kind of benefits employees can hope to receive in the future. It affects whether or not better occupational schemes can be obtained or even introduced.
For that reason, as well as all the reasons adduced by other noble Lords on this side of the House, I support the amendment. Of course we do not want to see further burdens on employers, even large employers, at this stage. Burdens on large employers are implicit in the Bill, indeed in the whole package. If one is to vary the rates of sick pay so that a larger amount will be payable by those employers if they are making up sick pay to full pay, then such employers will have to make more funds available to cope with their existing occupational schemes. Therefore that is a further burden on the large employers as well as on the small ones.
For all those reasons I hope that the Government will at least give some assurance this afternoon on what they intend to do regarding the amendments passed in Committee. I agree with what the noble Lord, Lord Mottistone, said. If we can obtain some assurance in that respect it will not be necessary to press as far as the 7 per cent. amendment is concerned. Apart from that I support what has been said.
Lord Henley: My Lords, I do not intend to rehearse the arguments I put forward against the amendment at Committee stage. As my noble friend Lord Mottistone reminded us, he was successful in moving an amendment at Committee stage to change the figure of 80 per cent. to 91 per cent. My noble friend said that that was designed to achieve a cost neutrality.
My noble friend now seeks to include 7 per cent. He said that he will not press that if I can give him an assurance as to what will happen in another place. My noble friend knows full well that I cannot give that assurance. It would not be right for me to do so at this stage. It is for the Government to consider their position and for another place to decide. I cannot give him the assurance that he seeks. This House has agreed to the 91 per cent. amendment, if I can call it that, because of the alleged cost neutrality. It would be illogical to accept another amendment relating to 7 per cent.
My noble friend then referred to an alleged argument about disciplining employers in order to

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encourage them to take greater note of the level of sickness that their employees claim. We have never said that or claimed it as justification for the Bill. That is pure press speculation. I thank my noble friend Lord Jenkin for stressing why we have produced this Bill. Having stressed savings, I stress the increases that we have been able to make to, for example, child benefits, which we discussed today at Question Time, and also income support for those in residential care and nursing homes.
I wish to comment briefly on the letter from the CBI published in yesterday's Financial Times to which my noble friend Lord Mottistone referred. I refer to it only to correct one glaring mistake which is to be regretted. In the third paragraph, Mr. Price, the Deputy Director General of the CBI, stresses:
"Statutory sick pay is financed entirely through employers' and employees' national insurance contributions. It is an insured scheme, and contributors are entitled to claim".
That is not so. The contributory principle holds that people should receive entitlement to certain benefits if a requisite amount or number of national insurance contributions have been paid. The requirement refers to sickness benefit and all the other contributory benefits, but not to statutory sick pay which is administered by employers. It is sufficient that a sick person should be employed and earning above the lower earnings' limit for national insurance contributions. Someone who has just begun work and has not built up a record of contributions can get SSP. Even married women who have opted out of national insurance and who are on the lower rate and do not qualify for other state contributory benefits can still get SSP.
I remind the House that in recognising the status of SSP as a non-contributory benefit, the Social Security Act 1990 has placed its funding firmly on general taxation rather than on national insurance income as had formerly been the case. I do not think that I can say any more at this moment. As I said, my noble friend sought an assurance from me. I cannot give it. I hope that he will not try to persuade the House to accept the illogical argument he put forward for the previous amendment which was successful at Committee stage and now move away from what he alleged was cost neutrality towards a positive bonus to the employers.
Lord Mottistone: My Lords, that is disappointing. I do not accept the argument that my noble friend cannot be more reassuring about what might happen in another place. What happens there is entirely for the Government to decide. There is no reason to suppose that the House will take a different view. It can be made quite clear that the Government appreciate that this is an unpopular Bill which has been created without any discussion at all. Even at this late stage we are still being deprived of discussion. Where discussion has taken place it has been on a take-it-or-leave-it basis. It is the first time that that has happened in relation to the SSP since it started at the beginning of the 1980s. It is thoroughly unsatisfactory to force people to adopt this kind of approach. I cannot accept that this cost-neutral situation is going
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to be retained. In order to safeguard at least some of the provision I invite your Lordships to join me in the Lobby to see if we can win Amendment No. 8.
5.5 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 104; Not-Contents, 111.

Division No. 2

CONTENTS

Airedale, L.

Kilbracken, L.

Aldington, L.

Kilmarnock, L.

Ardwick, L.

Kirkhill, L.

Attlee, E.

Lockwood, B.

Aylestone, L.

Lovell-Davis, L.

Balfour of Inchrye, L.

Mackie of Benshie, L.

Birkett, L.

Masham of Ilton, B.

Blackstone, B.

Mason of Barnsley, L.

Blease, L.

Milner of Leeds, L.

Bonham-Carter, L.

Mishcon, L.

Boston of Faversham, L.

Monson, L.

Boyd-Carpenter, L.

Montagu of Beaulieu, L.

Broadbridge, L.

Morris of Castle Morris, L.

Brooks of Tremorfa, L.

Mottistone, L. [Teller.]

Buckmaster, V.

Mulley, L.

Campbell of Eskan, L.

Murray of Epping Forest, L.

Carmichael of Kelvingrove, L.

Nicol, B.

Carter, L.

Ogmore, L.

Cledwyn of Penrhos, L.

Oram, L.

Cocks of Hartcliffe, L.

Palmer, L.

Cudlipp, L.

Phillips, B.

Darcy (de Knayth), B.

Pitt of Hampstead, L.

David, B.

Prys-Davies, L.

Dean of Beswick, L.

Rea, L.

Dormand of Easington, L.

Renton, L.

Elliot of Harwood, B.

Richard, L.

Ennals, L.

Ritchie of Dundee, L.

Falkland, V.

Robson of Kiddington, B.

Fisher of Rednal, B.

Rochester, L.

Gainsborough, E.

Russell, E.

Gallacher, L. [Teller.]

Sainsbury, L.

Galpern, L.

Saltoun of Abernethy, Ly.

Gisborough, L.

Seear, B.

Gladwyn, L.

Shackleton, L.

Glenamara, L.

Shepherd, L.

Graham of Edmonton, L.

Stedman, B.

Greenway, L.

Stoddart of Swindon, L.

Gregson, L.

Strathcarron, L.

Grey, E.

Taylor of Blackburn, L.

Grimond, L.

Taylor of Gryfe, L.

Harvington, L.

Terrington, L.

Hatch of Lusby, L.

Thomson of Monifieth, L.

Hirshfield, L.

Tordoff, L.

Hollis of Heigham, B.

Turner of Camden, B.

Hughes, L.

Wallace of Coslany, L.

Hunt, L.

Whaddon, L.

Jacques, L.

White, B.

Jay, L.

Wigoder, L.

Jeger, B.

Williams of Elvel, L.

Jenkins of Hillhead, L.

Willis, L.

Jenkins of Putney, L.

Wilson of Rievaulx, L.

Kearton, L.

Winstanley, L.

NOT-CONTENTS

Alexander of Tunis, E.

Boardman, L.

Allenby of Megiddo, V.

Borthwick, L.

Allerton, L.

Brabazon of Tara, L.

Arran, E.

Bridgeman, V.

Ashbourne, L.

Brigstocke, B.

Astor, V.

Brookeborough, V.

Belhaven and Stenton, L.

Brougham and Vaux, L.

Belstead, L.

Butterworth, L.

Birdwood, L.

Caithness, E.

Blatch, B.

Campbell of Alloway, L.

Blyth, L.

Campbell of Croy, L.

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Carnarvon, E.

Lyell, L.

Carnock, L.

Mackay of Clashfern, L.

Cavendish of Furness, L.

Macleod of Borve, B.

Chelmer, L.

Mancroft, L.

Clitheroe, L.

Manton, L.

Cochrane of Cults, L.

Margadale, L.

Coleraine, L.

Massereene and Ferrard, V.

Constantine of Stanmore, L.

Merrivale, L.

Cottesloe, L.

Mersey, V.

Crickhowell, L.

Montgomery of Alamein, V.

Cumberlege, B.

Mountevans, L.

Davidson, V. [Teller.]

Mowbray and Stourton, L.

Denham, L.

Munster, E.

Derwent, L.

Nelson, E.

Dundee, E.

Northesk, E.

Eccles of Moulton, B.

Onslow, E.

Elibank, L.

Oppenheim-Barnes, B.

Elphinstone, L.

Orkney, E.

Elton, L.

Park of Monmouth, B.

Fanshawe of Richmond, L.

Pearson of Rannoch, L.

Flather, B.

Peyton of Yeovil, L.

Fortescue, E.

Quinton, L.

Gardner of Parkes, B.

Rankeillour, L.

Geddes, L.

Reay, L.

Glenarthur, L.

Rees, L.

Gray, L.

Rodney, L.

Grimston of Westbury, L.

Romney, E.

Hailsham of Saint Marylebone, L.

Sanderson of Bowden, L.

Selborne, E.

Hardinge of Penshurst, L.

Skelmersdale, L.

Hemphill, L.

Soulsby of Swaffham Prior, L

Henley, L.

Strange, B.

Hesketh, L.

Strathclyde, L.

Hives, L.

Strathcona and Mount Royal L.

Hood, V.

Howe, E.

Strathmore and Kinghorne, E

Ingrow, L.

Swansea, L.

Jeffreys, L.

Tranmire, L.

Jenkin of Roding, L.

Trumpington, B.

Johnston of Rockport, L.

Vaux of Harrowden, L.

King of Wartnaby, L.

Waddington, L.

Knollys, V.

Wade of Chorlton, L.

Liverpool, E.

Wyatt of Weeford, L.

Lloyd of Hampstead, L.

Wynford, L.

Long, V. [Teller.]

Young, B.

Lurgan, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.14 p.m.
Earl Russell moved Amendment No. 9:
Page 2, line 14, at end insert:
("(4A) The Secretary of State shall lay before Parliament during the year 1992 a report on the effects of the provisions of this Act on the employment practices of employers.").
The noble Earl said: My Lords, this amendment is designed to call attention to the possible effect of the Bill on employees. We have been hearing a good deal about the effect of the Bill on employers; but we on the Liberal Democrat Benches are equally concerned about the Bill having a number of undesirable effects on employees. The interests of employers and employees are obviously capable of conflicting, and on occasion do, but we on these Benches are also very well aware that there is between them a large element of common interest. The key to that element of common interest is that they both have an interest in belonging to a profitable firm. We believe that the Bill will threaten that common interest and will have a bad effect on employees as well as on employers. However, because this bad effect on employees will be secondary it has in many ways been most effectively addressed
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through trying to ease the pressure of the Bill on employers. It is nevertheless a matter of considerable concern to us in its own right.
I have drawn attention already to the fact that the Bill will create a wages stop at £184.50. Above that amount the employers have to pay the reimbursement at the higher rate. Below that they do not. The Bill will therefore tend to keep down wages. That will wipe out some of the department's precious savings in the form of housing benefit and family credit. It is extremely difficult to quantify that, but it is a consideration. I also think that the Bill will intensify the drive towards part-time work. That is creating a range of social problems in this country which we are only just beginning to address. We have a higher number of part-time workers than any other country in the EC except for the Netherlands. A great many of them are below the level at which they pay national insurance. The Bill will put more below that level. Those people are also very often without occupational sick pay schemes and without occupational pension schemes and are on the way to becoming an underclass. The Bill may tend to worsen that effect.
Ever since the Bill had its Second Reading in another place concern has been expressed about its effect on the disabled. I entirely accept the point made by Ministers that the disabled do not have a higher rate of absence through illness than other people, but we are not dealing here with what is true in fact. We are dealing with what employers will expect to be fact. It is well known that this is an area in which people are capable of a great deal of unjustified fear. Ministers' assurances that the disabled do not have an above average level of absence through illness may be quite compatible with employers employing fewer of them because they wrongly fear that they will have a higher than average level of sickness. In fact, statements that the level of sickness of the disabled is not above average need the maximum possible amount of publicity. But even that may not be enough.
The problem of dismissals has been briefly addressed several times. It is clearly linked with the pressure to encourage employers to clamp down on absenteeism. My noble kinsman said that that was not the Government's intention. Nevertheless, that will be the effect of the measure. It means that a high amount of sickness will cost employers more money. A nearly bankrupt employer is more liable to become a ruthless employer than one who has some spare money in his pocket. We think it will cause increased pressure towards dismissals. This measure is an extremely blunt instrument.
It may perfectly well be that a number of people are claiming days of absence on the ground of sickness but are not justified in doing so. I do not see any reason to suppose that those who are likely to be dismissed because their employer cannot afford their statutory sick pay are in any way likely to coincide with those who may perhaps be skiving. In fact, any connection between the two groups will be purely coincidental. If that effect is desired I do not think it will be achieved. I believe that instead we shall see the dismissal of

119
people who are genuinely ill. That once again will mean more costs falling on the Department of Social Security.
We shall also see more cases of what the citizens advice bureaux have found already—refusals to pay statutory sick pay. A North London citizens advice bureau had a case of an employee who was told nothing about any procedure for claiming statutory sick pay and was then refused it on the ground that she had not claimed within seven days. I know that an employer has to give reasons in writing for refusing to pay statutory sick pay. That has to be done in "a reasonable time", which is not a precise phrase. It was a phrase used in 1628, the King claiming that he might imprison people without trial for a reasonable time. John Selden remarked:
"At this little gap, all our liberties may slip out".
At this little gap, a good many people's statutory sick pay may slip out. Will my noble kinsman consider a more precise definition of "a reasonable time"; for example, perhaps it could be a week.
There is also the risk that such changes will mean fewer occupational sick pay schemes. I entirely agree with my noble kinsman in his admiration for such schemes. However, an employer facing business uncertainty is concerned to keep down his costs. Therefore he may be less sure than he was before that he can risk entering such a scheme.
Similarly, there will be further trouble with things which are already happening; for example, failure to provide an itemised payslip, which makes it difficult to calculate any entitlement, and failure to pay national insurance contributions. The Government are losing a considerable sum of money in that respect. If they are not worried about the situation, I believe that they should be. I beg to move.
Baroness Seear: My Lords, I should like to add a few remarks to those made by my noble friend and to expand slightly on a point which I attempted to raise—without, I admit, giving the Minister notice—in Committee. I refer to the implications of what we are doing as regards ethnic minorities. It is well understood—indeed there is no argument about the fact—that lower-paid workers run the risk of receiving smaller amounts of sick pay than they did before because of the raising of the level. That brings forward the issue of the ethnic minorities being overrepresented among the lower paid and therefore more likely to suffer from this reduction of sick pay than other groups of people.
Since the Committee stage, I have tried to obtain precise figures about the representation of ethnic minorities among the low paid. But, although I have contacted all the likely sources, no such figures exist. I believe that that tells us something about the lack of attention which we pay to the problem. However, there is no questioning the fact that the ethnic minorities are disproportionately highly represented among the unemployed, among those with no training and qualifications and among the unskilled.
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There is not much doubt that people who have the lowest level of qualifications and who are disproportionately represented among the unskilled will also be over-represented among the low-paid workers. Indeed those people make up the low-paid group.
I am fully aware that, in introducing the Bill, the Government had no intention that it should have an adverse effect disproportionately on members of ethnic minority groups. However, if my argument is correct—I believe it is—the fact remains that this could be a case of indirect discrimination. The proposed change will affect one ethnic group more than others because of its over-representation among the low paid. That being so, it is possible that this could lead to a case in the European Court of Justice. Therefore if the Government accept the amendment, I ask them to ensure that there will be a full report to Parliament at the end of the year on the impact of this legislation. Such a report should include information about how the changes have affected ethnic minority groups in employment in this country.
Lord Carter: My Lords, I have very little to add to the powerful arguments which have been put forward by those who have attached their names to this amendment. During the progress of the Bill, we have learnt that we do not know enough about employment practices. We also know that the Government are relying upon just one survey carried out by IFF Research Ltd. I believe that that survey was to some extent misleading because it was geared towards larger firms.
In my view, a report such as that suggested in the amendment would be a great help. There is real concern about the likely effects of the Bill. If the Government were to accept the amendment, I believe that it would help to allay some of those fears.
Lord Henley: My Lords, many suggestions have been made by those who have spoken as to the likely effect of the Bill on employees. Indeed we had the example of part-time workers, the suggestion that many people will suffer a wages stop at £184.50 per week, and mention was made of disabled workers. I was slightly confused by what my noble kinsman said about the effect of assurances from government Ministers that the disabled do not have a higher than average level of sickness. However, it is possible that I misunderstood what he said. He made allegations about possible increased pressure to dismiss workers and about increased refusals to pay statutory sick pay. He also suggested that a precise definition of "a reasonable period of time" should be laid down.
The noble Baroness, Lady Seear, spoke about ethnic minorities and said that there was a risk that we might be challenged in the European Court of Justice. I dealt with that matter in Committee when I said that I would certainly look at any evidence which was put before us.
I do not wish to respond to all those points at this stage. Instead, I should like to respond to the gist of the amendment that there should be a statutory report from the Secretary of State during 1992,
"on the effects of the provisions of this Act on the employment practices of employers".

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I hope that I shall be able to give my noble kinsman sufficient assurances that we shall, nevertheless, be undertaking appropriate monitoring. Of course, he is right to say that there should be some check on the way in which the Bill's provisions, or those of any Bill for that matter, operate. I can assure him that the Government will certainly want to know about this and that we shall be monitoring the effects of the changes.
My noble kinsman may well remember that at an earlier stage of the Bill's proceedings in another place my right honourable friend the Minister for Social Security and Disabled People said that monitoring would be etched on his heart just as Calais was etched on the heart of Queen Mary. Since that time I have discussed the matter with my right honourable friend. As I am sure my noble kinsman will agree, it would not be sensible to draw any firm conclusions about the effects of the changes on employers' practice in, for example, the provision of statutory sick pay, or occupational sick pay, until the new arrangements have been in place for some time. But, as I said, we shall be looking to monitor the proposals in the Bill both in the course of the compliance visits carried out by the department's inspectors and by other means, such as the feedback we receive from employers, employees and employer and employee organisations.
The Government would need to consider whether the results of our monitoring warranted a report being laid before Parliament. It would indeed be an unusual step to take in this type of social security legislation and I have to tell my noble kinsman that I think it extremely unlikely that this would be deemed necessary. Nevertheless we would of course ensure that the results of the monitoring action were available to the House on request and should it be considered that a statement, either by written reply or orally, was necessary this could certainly be arranged. I am sure that with his customary ingenuity my noble kinsman would find ways of further questioning the Government about this, should he consider it necessary.
With those assurances, I trust that he will feel able to withdraw his amendment.
Earl Russell: My Lords, I thank my noble kinsman for that reply. When his right honourable friend Mr. Scott referred to such monitoring being graven on his heart, as Calais was graven on Queen Mary's, I think that he led with his chin. I say that because the reason Calais was graven on Queen Mary's heart was because it was a failure. When considering monitoring, I hope that my noble kinsman and his right honourable friends will bear that factor in mind. Nevertheless, I believe that I have been given everything that I could reasonably expect. Accordingly, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 10:
After Clause 1, insert the following new clause:
Small employers' relief
.—(1) In section 9 of the Social Security and Housing Benefits Act 1982, before subsection (2) (meaning of "contributions payments") there shall be inserted—
"(1B) For the purposes of this section, a payment of statutory sick pay which an employer is liable to make to an employee for any day qualifies for small employers' relief if the employer is a small employer who has before that day been liable to make such payments of statutory sick pay as entitle him to relief in respect of that payment.
(1C) For the purposes of this section, "small employer" shall have the meaning assigned to it by regulations, and, without prejudice to the generality of the foregoing, any such regulations may in that connection make provision—

(a) for that expression to be defined by reference to—

(i) the number, or average number, of employees of the employer during a prescribed period; or

(ii) the amount of the employer's contributions payments for any prescribed period;

(b) for the amount of the employer's contributions payments for any prescribed period to be adjusted, estimated or otherwise attributed to him by reference to their amount in any other prescribed period.

(1D) Regulations shall prescribe the payments of statutory sick pay that entitle a small employer to small employers' relief in respect of any particular payment; and any such regulations may provide for that entitlement to be determined by reference to—

(a) the number of weeks for which the employer has been liable to pay statutory sick pay in respect of the employee in question in a prescribed period; or

(b) the total amount from time to time of the statutory sick pay which the employer has been liable to pay in respect of each of his employees in a prescribed period which includes the day for which he is liable to make the payment in question."

(2) In subsection (2) of that section (meaning of "contributions payments" in subsections (1) (a) and (1A)) for the words "and subsection (1A)" there shall be substituted the words "and subsection (1C)".
(3) In Part II of Schedule 5 to the Social Security Act 1986 (questions for the Secretary of State) in paragraph (b), after sub-paragraph (v) there shall be inserted the words "or
(vi) the amount of an employer's contributions payments for any period for the purposes of regulations under section 9(1C) of that Act."
(4) A statutory instrument containing (whether alone or with other provisions) the first regulations made under that section by virtue of this section shall not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Carter Lord Carter moved, as an amendment to Amendment No. 10, Amendment No. 11:
After Clause 1, Line 7, leave out from second ("for") to end of line 52 and insert ("abnormal sickness pattern relief if the payment was made for sickness in a month in respect of which the sum payable by way of reimbursement of statutory sick pay to that employer but for such relief exceeds a figure calculated by multiplying the sum of the average number of employees employed by that employer in that month by the sum of one-twelfth of 7 days' statutory sick pay paid at the lowest level then applicable.").
The noble Lord said: My Lords, in moving this amendment perhaps I may apologise to the House for the confusion which arose at an earlier stage over Amendment No. 4. Such confusion was entirely my fault and I apologise accordingly. I do not propose to deal with the amendment all over again because it has already been discussed. However, I should like the Minister to make absolutely clear what he means by "the consultations" to which he referred in an earlier response.
As the Minister is aware, the House has asked the Minister to consult the various bodies interested in the Bill and, if necessary, to amend his new clause before Third Reading. He said that the department was minded to consider the eight-week period for sickness. I understand that that will be during the consultations on the regulations. He also helpfully said that he was prepared to enter into discussions with Mr. Mendham of the Forum of Private Business about the exact implications of the scheme enshrined in Amendment No. II. It would be helpful if the Minister could explain to the House how those discussions will take place, what he would hope to do if the department were convinced of the merits of the scheme, and whether an amendment would be brought forward to the new clause on Third Reading or whether the issue would be covered by regulations?
5.30 p.m.
Lord Henley: My Lords, my understanding is that that would be possible. I repeat again that my understanding is that my officials are seeing Mr. Mendham tomorrow to discuss his scheme. We shall then discover more about how it works, what our feelings are and what the problems are.
Lord Carter: My Lords, that is helpful, and with that assurance I beg leave to withdraw the amendment.
Amendment No. 11, as an amendment to Amendment No. 10, by leave, withdrawn.
[Amendment No. 12, as an amendment to Amendment No. 10, not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley had given notice of his intention to move Amendment No. 13, as an amendment to Amendment No. 10:
After Clause 1, Leave out lines 27 to 39.
The noble Lord said: My Lords, I reply to the remarks of my noble kinsman Lord Henley on the intended eight-week threshold. We have been over this course well and truly. I am supported by my noble friend Lord Boyd-Carpenter: it is essential to have a reduction in the proposed, or intended —I am not sure what my noble kinsman said—eight-week threshold. I shall return to this point on Third Reading. I fear that I may have to return with a stick rather than a carrot.
[Amendment No. 13, as an amendment to Amendment No. 10, not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved, as an amendment to Amendment No. 10: Amendment No. 14.
After Clause 1, Line 49, leave out from ("instrument") to ("made") in line 50.
The noble Lord said: My Lords, I understand that my noble kinsman intends to accept the amendment. I beg to move.
Lord Henley: My Lords, we are prepared to accept the amendment, but, to protect my position, if it turns out to be drafted incorrectly, I reserve the right to bring forward an amendment to it on Third Reading.
Lord Stanley of Alderley: My Lords, I am most grateful to my noble kinsman.
On Question, amendment agreed to.
Amendment No. 10, as amended, agreed to.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 15:
After Clause 1, insert the following new clause:
("Extent: payments condition
. The provisions of this Act, insofar as they amend section 9 of the Social Security and Housing Benefits Act 1982 (recovery by employers of amounts paid by way of statutory sick pay), shall only have effect to the extent of the amount paid by an employer in respect of statutory sick pay paid to an employee during the first three weeks.").
The noble Baroness said: My Lords, we tabled a similar amendment in Committee but said that we would not move it because we would wait to see what transpired and consider our position. There have been some movements with the acceptance of the Government's amendment this afternoon. However, I believe that it is still worth speaking to the amendment we tabled originally because it refers to the three-week period. The Government have said in support of the Bill on a number of occasions that on average employees are sick for three weeks. They have used that argument to try to convince employers, especially small employers, that they will not lose by the Bill. This afternoon there has been talk of eight weeks which is far too long.
Some people are sick for longer than three weeks, and some suffer accidents which involve long absences. As the organisations representing the small businesses have said—it has been repeated in the House this afternoon—longer absences can often be coped with well by large organisations but small organisations are less able to do so, and usually have to take on temporary staff to fill the vacancy. Not surprisingly therefore there has been widespread opposition to the Bill.
The amendment would leave untouched the principle that this side of the House so dislikes, and the SSP would still cease to be the genuine state scheme that we support. However, there would at least be a restriction in relation to long-term sickness. After three weeks, there would be full reimbursement, and that is the objective of the amendment. We are concerned, as is the noble Earl, Lord Russell, with the position, in particular, of the disabled. The Government have said on a number of occasions that the disabled generally have a very much better health record than many people who are not registered disabled; but that, I am afraid, is not the view of the Disability Alliance.
The Disability Alliance claims that the disabled start with many disadvantages in the labour market in the first place; and if employers are encouraged, through the measures contained in the Bill, to look

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more carefully at the health records of those whom they are recruiting, such people will have even greater difficulty in obtaining employment and in retaining it. The amendment contains an ameliorating measure. It is important to put the arguments for it on record. The eight weeks, to which reference has been made in earlier debates, is far too long; three weeks is much more appropriate. I beg to move.
Earl Russell: My Lords, we on the Liberal Democrat Benches support the amendment. It is concerned, like a number of other amendments, with minimising the risk to a business suffering an exceptional incidence of sickness. Below three weeks, any losses suffered by the employer may be significant; they are unlikely to be crippling unless the margins are very tight indeed. However, when people have much longer absences from work—without breaching the eight weeks that we have been discussing earlier today—the losses may be severe. There may be a small business employing six people who may all be hurt in one car crash. In that case, the employer will have a severe burden of statutory sick pay in addition to having its whole workforce off sick and having to take on a new one. In such a case we could have an unnecessary bankruptcy. The amendment would help to protect us against that clearly undesirable situation. For that reason, among many others, we support it.
Lord Henley: My Lords, I listened to the example given by my noble kinsman of all the employees being injured in the same car crash. It is an extreme example, but the small extra cost of SSP would be the least of the employer's problems if all his employees were off for eight weeks. I am sure that my noble kinsman will accept that point.
I listened with great care to what the noble Baroness, Lady Turner, said as to her reasons for introducing this new clause. As she will appreciate, the Government's own amendment, which we discussed earlier this afternoon, would go a considerable way towards meeting the anxieties which she has expressed and is seeking to redress in the new clause. I recognise that the regulations to be made under the Government's amendment will not go so far as the new clause, which applies to all employers regardless of size. Neither do I agree that three weeks is the appropriate length of sickness on which to focus. But nevertheless I hope that she will accept that the Government's proposals will cover those employers most at risk should their employees have protracted periods of sickness.
The noble Baroness said that she wanted to repeat and put on record the fact that as a result of the proposals contained in the Bill, employers would be less likely to employ disabled people or those who suffer from poor health. If that were true, it would be cause for concern; but I strongly believe that that will not be the case. I gave an assurance earlier that we will be monitoring the implementation of the proposal. Several charges were made when SSP was first introduced, and later when it was extended to 28
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weeks; but the fears expressed then proved to be groundless. The Government do not believe the result will be any different on this occasion.
I am sure many noble Lords are aware—and I wish to repeat the assurance I gave earlier and which other ministerial colleagues have given on many occasions—that any suggestion that people with disabilities make bad employees is very far from the truth. Quite the reverse seems to be the case. During Second Reading I gave some figures about the attendance records of disabled people and they bear repeating now. The very comprehensive report, Employment and Handicap, published only six months ago, indicated that half the people in work with disabilities took less than five days a year off work for sickness or treatment. Over a five-year period half had not had a single spell of sickness or treatment which lasted as long as a month. The House will agree that there is certainly nothing in these figures to deter an employer from taking on a disabled person. There would be no extra SSP costs for the employer.
I turn now more specifically to the proposed new clause. The important point I wish to make concerns the cost. I have to tell the House that setting the level at which any employer would get 100 per cent. reimbursement on SSP spells lasting more than three weeks and applying the provision to all employers would have an estimated cost on the Bill of £40 million in 1991–92. This would seriously affect the overall public expenditure savings from the Bill and is not a change which the Government could contemplate.
As I said, the noble Baroness's new clause goes further than the Government's proposals. I have explained to the House on previous occasions the offsetting savings which the reductions in national insurance contributions will bring for employers. The Government have come forward with proposals for small employers for whom the effects of these reductions are largely negated because of protracted sickness within their workforce. As I explained, the powers in the Bill have deliberately been kept very flexible to enable us to come up with the most practicable schemes. I have to tell the noble Baroness that I cannot go further than that. I hope, therefore, that she will feel able to withdraw her amendment.
Baroness Turner of Camden: My Lords, I thank the Minister for his explanation. However, although what he says about the sickness records of disabled people is incontrovertible, we are talking about general perceptions. That was referred to earlier by the noble Earl, Lord Russell. This is the view of the Disability Alliance which is concerned about the Bill. That is why I and other noble Lords have made constant reference in discussions on the Bill to the position of disabled people.
Nevertheless, it is not my intention at this time to press the amendment, though I still hold the view that there are strong arguments for it. Although it would apply to all employers, if the House takes the government statement that the average length of absence is three weeks, I assume that there would still be some savings because the reimbursement would not become payable for anybody until after the three-week period.

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As I said, however, it is not my intention to press the amendment this evening. I therefore beg leave to withdraw it.
Amendment, by leave, withdrawn.
5.45 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 16:
After Clause 1, insert the following new clause:
("Extent: sick pay condition
. The provisions of this Act, in so far as they amend section 9 of the Social Security and Housing Benefits Act 1982 (recovery by employers of amounts paid by way of statutory sick pay), shall only have effect on employers offering occupational sick pay schemes to their employees.").
The noble Baroness said: My Lords, this is another amendment which we considered at Committee stage and then decided not to move because we wished to see the effects of the other amendments. Nevertheless, it is worth moving it now because part of the Government's case for the introduction of the Bill has been the growth in the number of occupational sick pay schemes. As we know, the figure of 91 per cent. has often been quoted from, I believe, a survey conducted by ITF Research Limited. This research, however, was oriented very much in the direction of larger employers and as we have often said on this side of the House, that does not mean that 91 per cent. of all employees are covered. It simply means that 91 per cent. of employers claim to operate some form of top-up sick pay arrangements.
The Government's argument is apparently that because these schemes are already in existence, in some cases paying up to full pay for a considerable time—but these are in the minority; the good schemes—the financial burden will not be as great as almost everyone in this House and a number of important organisations outside such as the CBI, the IOD, the IPM, the TUC and everybody else have been saying. The Government say that all those people are wrong and that it will not be such a burden.
Whether or not that argument is valid, it is nevertheless true that substantial numbers of employees are in employment where there are no such schemes. In the main, these employees are among the low paid—among those manual workers who may go from job to job as in the construction industry; among women who tend to make up the bulk of the really low paid; and of course part-time employees.
There is also evidence from citizens advice bureaux that such people have experienced difficulty under present arrangements in obtaining their statutory sick pay. Often they have had difficulty in getting the job in the first place and have been reluctant to pursue their rights in case they do not maintain the job. There have also been instances of dismissal of staff when sick. Without the employment qualification, such individuals cannot take their cases to industrial tribunals.
It is our belief that these cases are likely to multiply if the employer cannot claim reimbursement. What is therefore suggested in the amendment is that the new provisions in the Bill should apply only where there is in force an occupational sick pay scheme. By that, we
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mean a real scheme, a contractual obligation, not a situation in which the employer decides at his discretion to top up statutory sick pay.
For the remaining businesses—most of them small—which do not have contractual arrangements the present situation of 100 per cent. reimbursement should continue to apply. Only in this way will it be possible to ensure proper protection for the low paid, the disabled and those generally disadvantaged in the labour market. Even so, there will still be problems, as the evidence from CABs suggests. There will still be employers who seek to renege on their obligations to sick and injured employees. However, at least the situation will be no worse than it is at present for such people. I beg to move.
Lord Henley: My Lords, I do not wish to go over all the figures again but I must correct the noble Baroness on one—91 per cent. In one way or another that figure has come up a great deal in the Bill. I never said that it was 91 per cent. of employees. The noble Baroness just said that it is 91 per cent. of employers. In fact 91 per cent. of employees work for an employer who has some such scheme, though there may or may not be exclusion clauses. I listened with enormous care to what the noble Baroness said in moving the new clause but I am afraid that I remain deeply confused as to the reasoning behind it.
I appreciate that retaining 100 per cent. reimbursement for firms without occupational sick pay schemes could be of particular benefit to many smaller firms because a great many of those do not have such a scheme. However, it would be unlikely to assist the employees of those firms. To tie reimbursement rates to whether or not the employer has an occupational sick pay scheme could result in a serious disincentive for such employers to develop sick pay schemes. There would be a danger that the welcome growth of such schemes—and there has been a welcome growth, as I am sure the noble Baroness accepts—would be brought to a halt. This would not only be contrary to good employment practice and the encouragement of such schemes, but would be to the detriment of the employees concerned. I am sure that the noble Baroness does not want that.
It is certainly true that there has been a widespread growth in schemes and the Government welcome that. We feel that it indicates an acceptance by employers of a much greater responsibility to cover short-term sickness among their employees. However, the Government do not consider that it would be right to reward those employers who do not provide such cover by enabling them to continue to receive 100 per cent. reimbursement while their fellow employers who have taken on the extra cost of providing occupational cover can only recover a reduced reimbursement rate. That would be a very strange logic indeed. Bearing that in mind, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Turner of Camden: My Lords, I listened with some interest to what the noble Minister had to say, and I think there is something in what he had to say. We put this amendment down with small

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businesses in mind. We were often accused on this side of the House of not being in favour of small businesses, and I have to say that that is not so.
The amendment in respect of occupational schemes that we are now discussing was one submitted to us by the National Federation of the Self-Employed and Small Businesses. They were out to try to help small businesses who did not have their own occupational schemes and who were relying entirely on statutory sick pay to cover their employees when they were sick. It was to assist them that we put down the amendment in the first place. However, I note what the Minister has said. To that extent the amendment has some flaws in it, but it gave an opportunity to stress again the problems faced by small businesses without such occupational schemes. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Schedule [Repeals]:
[Amendment No. 17 not moved]
Lord Henley moved Amendment No. 18:
Page 4, line 6, column 3, leave out paragraph (b).
On Question, amendment agreed to.
[Amendment No. 19 not moved]
Lord Henley moved Amendment No. 20:

Page 4, line 21, column 3, at end insert:

("In Schedule 5, Part II, paragraph (b), the word "or" at the end of subparagraph (iv).")

On Question, amendment agreed to.

Statutory Sick Pay Bill

  Natural Heritage (Scotland) Bill [H.L.]
  5.51 p.m.
  Read a third time.
  Clause 1 [Scottish Natural Heritage]:
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 1:
  Page 1, line 12, at end insert ("and
  (c) to protect, by preventing the dumping of radioactive waste under the surface of the land").
  The noble Lord said: My Lords, the Scottish Natural Heritage will be the first agency in Scotland to have wide-ranging responsibilities and powers in relation to the environment. It therefore seems to us important that its responsibilities include the disposal of radioactive waste because of the potentially harmful effects on the environment.
  Clause 1(1) of the Bill requires the Scottish Natural Heritage to
  "have regard to the desirability of securing that anything done, whether by SNH or any other person, in relation to the natural heritage of Scotland is undertaken in a manner which is sustainable".
  We had this argument before, but there is no harm in going over it again. The deep disposal of radioactive waste is a matter for which the SNH should have responsibility, because compared with above ground on-site storage it does not allow for effective monitoring and retrieval, and therefore cannot be regarded as "sustainable". The Minister will be aware of the arguments—I think he heard most of them
  130
  before—and I only hope that he will have looked at them seriously and perhaps reconsidered the point of view he had last time. I beg to move.
  Lord Campbell of Croy: My Lords, I spoke on this subject when a similar amendment was introduced at Committee stage. I feel surprised that it should appear again today at Third Reading. I thought it had been completely disposed of at that stage. It requires me to repeat—and I shall say it as quickly as I can—what I said before. I shall summarise it and remind your Lordships that this amendment simply says "radioactive waste". The effect would be that the new body, Scottish Natural Heritage, would have to prevent the disposing of any kind of radioactive waste under the surface of the land, as I see it, anywhere in Scotland—the whole of Scotland.
  I pointed out that a large proportion of low-level radioactive waste—I have been informed by the scientists about 30 per cent. of it—is produced from the gloves, equipment, and other materials from radiotherapy in hospitals and other uses of radium in hospitals in the treating of cancer and other serious diseases, and also in research in universities in Scotland. This is all radioactive waste. There is nothing in this amendment which says high-level radioactive waste. It would include the low-level radioactive waste of the kind that I have described.
  The effect of this amendment would be that those items from hospitals in Aberdeen, Inverness, or wherever it may be, and the universities would have to be carted to England or Wales. Alternatively, it would have to be left, in the terms of this amendment, above the ground. What is the point of leaving low-level radioactive waste above the ground in Scotland when it would have been safer—although it is not a dangerous item—if it were below the ground?
  I pointed that out last time and the noble Lord, Lord Carmichael, quite quickly withdrew the amendment. I shall go on now and add this to what I said before: I deplore unnecessarily frightening people in Scotland about anything connected with radioactivity. You then court popularity as a populist politician by being against it all and by frightening people quite unnecessarily in the first place. This is what the SNP has done in Scotland, and it is the sort of thing it would do; but I feel dismayed and saddened by the Front Bench of the Labour Party joining in and putting this forward simply because they know that some people have been frightened by the SNP propaganda about any kind of radioactivity. This from the party which, in the late 1960s, when I was in another place, were keen on the "white heat of technology", and here we are dealing with technology that is beneficial and remedial.
  I hope that this will not be pursued. I must describe this as puerile, unscientific and uneducated. It is a silly amendment. I did not say that on the last occasion, as I was much too polite but now it has come up again. I think I referred to it all very politely, but on this occasion I will not do so. It is a silly amendment and I cannot possibly advise the House to accept it.
  Lord Renton: My Lords, I agree with what my noble friend has said. But I have a further reason for

  131
  suggesting that the amendment should not be made. Subsection (1) of this clause endeavours to explain the general aims and purposes of the SNH and does so in clear terms. The amendment adds a particular purpose when many other particular purposes could have been included. Whatever the merits of finding ways of preventing the dumping of radioactive waste—and we have had other legislation that deals with this—this is not the place to introduce this matter. It would spoil the generality of this well drafted subsection.
  The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde): My Lords, during the Committee stage I had hoped to satisfy the noble Lords apposite in whose name the amendment stands that it would be quite inappropriate to commit Scottish Natural Heritage to adopting a particular policy in relation to the disposal of radioactive waste in advance of considering any actual proposals. I appreciate the anxiety of noble Lords and others on this matter; but like my noble friend Lord Campbell of Croy, I think that the noble Lord, Lord Carmichael, has got it wrong.
  I very much regret with my noble friend that the arguments at Committee stage did not succeed in convincing the noble Lord, Lord Carmichael. It may therefore be helpful if I respond in a more fundamental way to some of the considerations that evidently underly the amendment. The first point relates to the use of the word "dumping". This is most emphatically not a recognised term in the nuclear or indeed the waste disposal industry. The more extreme environmentalists—and I do not think that should include the noble Lord, Lord Carmichael—use the word "dumping" to capture the headlines when they mean disposal.
  In the case of radioactive waste, the Government have a policy of achieving safe disposal in an engineered repository deep under the ground, such as already exist in Sweden and Germany. Before such a repository can be built, the normal planning procedures must be observed. Accordingly, there can be no question of dumping anything anywhere in the normal sense of the word.
  A further misconception which appears to have influenced the thinking behind the amendment is the view that Scotland is being used as a waste dump. I find this suggestion quite surprising since most of the radioactive waste which is produced in Scotland is, in fact, transported into England for disposal or reprocessing. It is perhaps a commentary on the absurd extremes to which current scaremongering now extends that some people believe such a blatant untruth.
  I hope that in view of what I and my noble friends have said, the noble Lord, Lord Carmichael, will agree that his amendments will not help Scottish Natural Heritage, or indeed the natural heritage of Scotland itself.
  6 p.m.
  Lord Carmichael of Kelvingrove: My Lords, I make no apology for raising this subject once again. I take note of the words used by the noble Lord, Lord
  132
  Campbell of Croy. I also took note of the words used by the noble Lord, Lord Renton, when he said the subsection was not a suitable place for this provision. We always trust the great knowledge of the noble Lord in these matters.
  The noble Lord, Lord Campbell of Croy, should be aware that it is not the Scottish nationalists who have raised the matter of radioactive waste. When bores were being drilled in the north and in the south of Scotland, people became very afraid. We are not talking about hospital waste in this instance. Most people are aware that we are talking about fairly active waste with a long half-life.
  Lord Campbell of Croy: My Lords, I thank the noble Lord for giving way. However, I should point out that his amendment covers all radioactive waste. His amendment would cover the items that I have described. Since the Committee stage of the Bill I attended a meeting of the Foundation of Science and Technology which was chaired by the noble Lord, Lord Lloyd of Kilgerran. Some noble Lords who are scientists were present at the meeting, as were other scientists from all over the country. I asked one of the speakers to give me the percentage of low level waste which is in question. I was given a figure of about 30 per cent.
  Lord Carmichael of Kelvingrove: My Lords, I thank the noble Lord for his second contribution to this debate. However, I believe we were all roughly aware of the amount of waste involved. This amendment may be defective but I believe it will help those in another place to draft a more accurate amendment. I stress that I make no apologies for tabling this amendment. We shall continue to question what is happening to waste in Scotland. The Minister suggested that most of our waste was going to England. We accept that. However, the Minister also knows that there is a great deal of anxiety in Scotland as people feel that at some point the waste will no longer go to England but will be taken up to the north of Scotland to Dounreay.
  As I have said, this amendment will certainly appear in another place and it may be improved as a result of the consideration that has been given to it in your Lordships' House. In the meantime I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 2:
  Page 1, line 16, leave out ("is sustainable") and insert ("secures the sustainability of that national heritage and the environment").
  The noble Lord said: My Lords, we have already discussed this matter. We have tried to introduce a slightly different form of words this time as we really wish to obtain a statutory definition of the word "sustainable". The Minister was unable to provide us with such a definition on the previous occasion when we discussed the matter. This is an important matter. It seems wise to secure a wider brief if only to ascertain that Scottish Natural Heritage will be able to advise against undertakings in Scotland which may adversely affect the environment even of areas furth of Scotland.

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  I feel that some attempt should be made to impress upon Scottish Natural Heritage that any development should be sustainable as regards Scotland's environment and heritage. I beg to move.
  Lord Mackie of Benshie: My Lords, I do not wish to be hard on the noble Lord, Lord Carmichael, as he has already suffered today. However, I wish to ask him what the difference is between "sustainable" and "sustainability". I do not believe that the word "sustainability" makes the position any clearer. It would be far better to leave the word "sustainable" in the Bill.
  Lord Renton: My Lords, this amendment would make the subsection longer without adding anything to its meaning or effect.
  Baroness Nicol: My Lords, in supporting my noble friend on this amendment I should, for the benefit of the House, say that we have at last apparently agreed on a definition of the word "sustainable" in this context. Last Wednesday in a debate in this House I raised the question of sustainable development as defined in the Brundtland Report. I was assured by the Government spokesman on that occasion that the Government accept the concept expressed in that report. I forget the exact words used, but the definition stated that we should so use the earth's resources as to ensure that we could meet our needs without depriving our successors of being able to meet their needs. Therefore we have a definition. I apologise for my slightly defective wording. On that occasion we obtained a definition of "sustainability" from the Government. I hope that that definition can be stated wherever the word is used in future.
  Lord Strathclyde: My Lords, I admire the perseverance which the noble Lord, Lord Carmichael, has shown on the subject of sustainability. The concept is not only one new to legislation, which therefore deserves to be tested in the way the noble Lord has sought to do, but it is also fundamental to the work of Scottish Natural Heritage and all other statutory bodies dealing with the natural heritage.
  I do not consider, however, that this latest attempt to clarify this provision adds anything to the Bill. The phrase "secures the sustainability" simply echoes the word "securing" earlier in the clause and may therefore be confusing to the reader. This will be clear when I read the clause as it would be if the amendment were accepted. The duty would become,
  "Scottish Natural Heritage shall have regard to the desirability of securing that anything done, whether by SNH or any other person, in relation to the natural heritage of Scotland is undertaken in a manner which secures the sustainability of that national heritage and the environment".
  The duty relating to sustainability, is, as I have said, one new to legislation. We therefore decided that the duty needed to be expressed as precisely as possible in an attempt to make it clear cut. That I believe we have achieved by focusing the duty on "anything" that is done to the natural heritage. SNH therefore has something concrete and tangible to look at and can consider the effect of such a provision on the natural heritage. The amendment, however, removes the
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  precision we have aimed at. It does so by shifting the focus of SNH's attention away from what might be done to affect the natural heritage directly onto the natural heritage itself.
  The Government's intention is that SNH will seek to persuade and influence all those whose work and activity in one way or another affects the natural heritage to undertake their activities in a sustainable manner. Certainly if anything done to the natural heritage is not done in a sustainable manner, then the natural heritage is not likely to be sustained. I submit therefore that the noble Lord's amendment is less precise in giving a clear statutory duty to SNH than is the Bill as presently drafted, and therefore makes it more difficult for SNH to know what is necessary to discharge that duty.
  I appreciate that this is a difficult point, and I have been drawing some fine distinctions. The subject is too important not to be dealt with as carefully as possible. I have given very particular thought to the amendment, and am resisting it because I am convinced it does not improve the Bill. Indeed, as I have tried to explain, it could go further and have a negative effect by making the provision less clear and less easy to apply.
  As for the comments of the noble Baroness, Lady Nicol, at Second Reading and in Committee, I spelt out the Government's view of sustainability. That situation has not changed. I do not know to what the noble Baroness was referring in last Wednesday's debate. I have not had an opportunity to read it, but I suspect that the government spokesman, the Minister for the Department of the Environment, would undoubtedly have agreed with my previous definitions of sustainability which are as wide and far-ranging as possible.
  Lord Carmichael of Kelvingrove: My Lords, I am most grateful for the care which the Minister has taken over this amendment and also for clarification of the Government's attitude to sustainability and the belief that it is better than the amendment that was down in my name, which is possibly true.
  I am grateful to my noble friend Lady Nicol for her contribution. I am sure that, if the Minister reads the report, as I am sure he will, he will appreciate that this is a very important subject. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 3:
  Page 1, line 23, at end, insert:
  (""Amenity" means all those aspects of Scotland's natural heritage which engender its enjoyment including its accessibility, the appearance of managed, designed and natural landscapes, and the design and siting of facilities for recreation.").
  The noble Lord said: My Lords, I think it would be for the convenience of the House if Amendments Nos. 3 and 4 were taken together.
  It is unclear whether natural heritage as defined in Clause 1(3) of the Bill includes those aspects of the landscape which have been man-influenced. Furthermore, it is not clear whether SNH will be able to advise the Government on the design and location

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  of artefacts in the countryside such as buildings, roads, signs and so on, and on its work to further the undertaking and enjoyment of the natural heritage including the interpretation of rural ways of life.
  By helping to explain the meaning of the word "amenity", the amendment will ensure that such work can continue from other bodies into Scottish Natural Heritage. I am sure the Minister will be aware of what we are trying to suggest here. For example, one may go along a very beautiful country road and come to a once attractive small town where that attractiveness has been obliterated by signs of tea shops, curio shops, and so on. I want them to be there but some consideration could be given to the type of placards displayed. The Minister may be aware that Westminster Council has been taking steps because of the proliferation of estate agents' boards in the area. That type of thing is not "big brother" but just slight advice to try to improve matters. That is the purpose of Amendment No. 3.
  Amendment No. 4 seeks to ensure that Scottish Natural Heritage is empowered to provide advice to the Secretary of State and other Ministers over the full range of its functions and expertise. Clause 1 of the Bill defines the aim of the Scottish Natural Heritage. It is,
  "to secure the conservation and enhancement of; and to foster understanding and facilitate the enjoyment of, the natural heritage of Scotland".
  As drafted, Clause 2(1) gives Scottish Natural Heritage the functions of advising Ministers on policies affecting the natural heritage. As the aims of SNH extend to facilitating enjoyment of this heritage, so also should its advisory functions. The amendment is meant to ensure that that is so. I beg to move.
  6.15 p.m.
  Lord Taylor of Gryfe: My Lords, I have a certain amount of sympathy with the amendment. Not only does it highlight the importance of the environmental functions of the new body, it also places some emphasis on the enjoyment of the countryside and the facilities for recreation. I sometimes feel that these environmental debates are conducted as though protection of the environment involved establishing wilderness areas. This amendment states what amenity is about.
  For example, I notice that south of the Border—now that we are free of the shackles of Peterborough we can perhaps look at their antics and activities—it has been established that in the south of England there is a great shortage of golf courses. That appeals to farmers who are not enjoying the best of times. However, some of the nature conservancy and so-called environmental protection bodies send letters to The Times saying that we must not have more golf courses and that somehow or other they affect the amenity of the area. I know of nothing more beautiful than a golf course, living as I do in St. Andrews. I am quite sure that the noble Lord, Lord Stodart of Leaston, whose land is near Muirfield concurs with that view. It is important to emphasise in the Bill that golf courses and other forms of recreation are not an
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  offence to amenity but can in fact enhance the environment. Consequently, I support the amendment.
  Lord Campbell of Alloway: My Lords, there is objection to the amendment because it is desperately circuitous. Clause 1(3) states that "the natural heritage of Scotland" includes amenity. But the amendment begins "'Amenity' means". It is a limited definition which restricts the Oxford English Dictionary meaning of "amenity" to precisely what is contained in the amendment. Surely that cannot be the intention when one considers the interesting observation of the noble Lord, Lord Taylor of Gryfe. With respect, the wording would be desperately difficult to operate in practice.
  Lord Strathclyde: My Lords, I am afraid that these amendments seem to be treading over much of the ground which we covered both in Committee and on Report. We have debated the issue of the role of SNH with regard to access to and enjoyment of our natural heritage and I have made it clear that the Government recognise the importance of these issues and are committed to SNH's role in pursuing them.
  However, perhaps I may take the opportunity to stress once again that with this Bill we are moving away from the language of the Countryside (Scotland) Act 1967 which sets out the basis of such concepts at some length. In this Bill, we are seeking to set up a statutory framework within which SNH can operate.
  It is not proper to single out, on the face of the Bill, any aspect of the work of SNH. It is quite clear what SNH's role and remit will be, and I do not see that these amendments go any way towards improving upon that. I agree with my noble friend Lord Campbell of Alloway that to define amenity is, in itself, unnecessary. Your Lordships will appreciate that it is neither possible nor even desirable to define every concept within the Bill. In this case in particular, I can see absolutely no need for a definition of amenity. What is meant by it is quite clear to all concerned, and has been throughout its existence in legislation since 1967. In any event, to include a definition which is apparently so precise would seem to exclude other things which might otherwise properly be construed as being part of amenity. We intend that the Bill should operate for many years to come in a positive and efficient way; so we would not wish to impose a tight definition on every concept at this stage.
  Perhaps I may reply briefly to the noble Lord, Lord Taylor of Gryfe. Facilities are already covered by Clause 1(1) (b) of the Bill which gives Scottish Natural Heritage an aim of facilitating enjoyment of the natural heritage. I suspect that the noble Lord would agree with me that that should and would include golf courses.
  I trust that in the light of what I have said, the noble Lord, Lord Carmichael of Kelvingrove, will see fit to withdraw his amendment.
  Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for his reply, which I found very full and interesting. I beg leave to withdraw the amendment.

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  Amendment, by leave, withdrawn.
  [Amendment No. 4 not moved.]
  Clause 3 [Duty to take account of certain matters]:
  Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 5:
  Page 2, line 39, leave out ("and").
  The noble Lord said: My Lords, Amendment No. 5 is a paving amendment for Amendment No. 6. I hope that it is convenient if I speak to Amendment No. 8 at the same time.
  The amendments seek to add to the interests which SNH should consider when exercising its functions. To the needs of agriculture, commercial fisheries and forestry, they seek to add other traditional land uses and sources of rural employment; and to the interests of local communities they seek to add those of landholders.
  I hope that it will be helpful if I give an example of one important interest which would thus be included in SNH's affections which without the amendments looks as though it may instead attract SNH's hostility—and very powerful that hostility would be. The interest to which I refer, which is literally vital to the Scottish highland economy and heritage, is that of our wild red deer and the deer management industry which depend on it.
  As your Lordships may be aware, at Report I probed SNH's attitude to our deer and their management and was a little surprised when the Minister said that SNH would approach them in exactly the same way as it would other users of the countryside.
  That in itself cannot be right. After all, deer management is a wider industry than the sporting interest in deer, which is itself very important. Deer management includes the whole welfare of our largest land animal, one which must be judged by any standards to be among the most beautiful. Deer management depends on the ownership or tenancy of land in a way that many other land uses do not.
  The Red Deer Commission estimates that some 600 full-time jobs depend on the wild red deer in Scotland, mostly in the remotest and most delicate areas of the highland natural heritage. For the cost associated with each one of those jobs I estimate that at least £20,000 per annum—or a total of some £12 million per annum—is being invested by the estates in the highland economy. Other economic spin-offs are considerably greater. Wild deer attract no subsidy from the taxpayer. They are also highly sustainable in the best sense of that expression as intended by the Bill.
  Be that as it may, there are clear signs that without the protection offered by the amendments SNH may be hostile to our wild red deer. Both the Countryside Commission and the Nature Conservancy Council, which are being merged to form SNH, are sending out some very worrying signals in this regard. For example, the Countryside Commission for Scotland cites over-grazing by too many red deer as one of its main reasons for wishing to create four large national parks, to be managed by SNH and other bureaucracies at a cost to the taxpayer of some £8
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  million per annum. It is odd that the Countryside Commission lays no blame on the two million or so sheep which share the 300,000 red deer's range and food supply.
  Since Report stage I have also acquired correspondence from the Nature Conservancy Council which shows that the Nature Conservancy Council agrees with the Countryside Commission that red deer are largely responsible for the alleged destruction of much of the flora of the highland heritage. The Nature Conservancy for Scotland would like to reduce the deer population in many areas to a level where natural regeneration of native trees and shrubs might occur without costly fencing, which the Nature Conservancy Council does not favour. That means shooting at least 90 per cent. of the current stock and continuing an intensive shooting programme indefinitely. The Nature Conservancy Council proposes to start that programme as soon as possible in an area which stretches from the headwaters of the River Dee to the A.9. That area coincides nicely with the Countryside Commission's proposed new national park for the Cairngorms.
  Yet the widely respected scientist most closely associated with the Nature Conservancy Council's own work on deer on the island of Rhum, Dr. Timothy Clutton-Brock, casts grave doubts on the Nature Conservancy Council's position on the matter. In a letter to me last week he said:
  "We know distressingly little about the effects of deer on upland vegetation … In addition to investigating how different deer densities affect plant and animal communities we need to know how different combinations of deer, sheep and cattle affect their environment … We currently know little about the causes of long-term changes in the ecology of the Highlands, and many factors other than changes in deer density are probably involved".
  So there are substantial differences of opinion among the scientists on this matter. I am happy to make copies of the relevant correspondence available in your Lordships' Library.
  Furthermore, I have to say that the Nature Conservancy Council's own record on deer management can be somewhat distressing. Let us look at the example of Creag Meagaidh, a hill in Inverness-shire which the Nature Conservancy Council bought in 1986. It then decided that it wanted the birch and rowan trees to regenerate naturally, and that meant getting rid of the deer. A fence was accordingly built along the road at the bottom of the hill and up two sides of the hill, but the fence was not completed along the top of the hill.
  Until that happened, the normal estate cull from that ground was about 50 deer per annum and that maintained a healthy herd. However, it did not permit the natural regeneration of birch and rowan—not exactly our rarest trees. In the past three years the Nature Conservancy Council has disposed of 832 deer, and the annual count of deer present on that ground has fallen from 600 deer in 1986 to 148 last year.
  The project has had a very bad effect on neighbouring estates because the deer are drawn in over the top of the hill to their destruction in the trap

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  below. I spoke to an eye-witness yesterday who on one occasion saw three helicopters taking out the carcases because normal extraction was not possible given the number of deer that had just been shot.
  That brings me to a perplexing procedural matter. My noble friend the Minister has said that the Government intend to bring forward an amendment when the Bill reaches another place to allow the Red Deer Commission to shoot deer to protect the natural heritage on the advice of SNH. The Red Deer Commission is very anxious not to have any obligation thrust upon it and hopes to maintain its statutory independence. However, as things stand today we do not know what the amendment will say so we cannot discuss it further.
  That is all the more perplexing because my honourable friend the Minister in another place said at a major conference on deer in Inverness on 22nd October that the amendment would be introduced only if reaction from all concerned was favourable following widespread consultation. No such consultation has taken place and so all those with the welfare of our wild deer at heart can perhaps be forgiven for being suspicious and hostile at the moment to that eventual amendment.
  Whatever that amendment may say if and when it is tabled, the situation is still very worrying because Clause 5 of the Bill as presently drafted would allow SNH to carry out massive deer culls even without the participation of the Red Deer Commission. Clause 5(3), if one looks at it closely, shows that SNH has all the powers it needs in that regard. I believe that we shall return to the matter under Amendment No. 11.
  I hope that I have said enough to show that the amendments are necessary, at least to protect not only our magnificent wild deer but also the unsubsidised industry, vital to the highland economy, which depends on them.
  I should also draw your Lordships' attention to paragraph 4 of Schedule 1. If the interests covered by the amendments are not included in the Bill at Clause 3 they may not be represented on the board of SNH either. That would surely not be appropriate.
  Finally, I come back to the Minister's suggestion at Report that if the amendments are accepted, all sorts of other interests might expect to be included under Clause 3 of the Bill. I wonder whether that is so. I should have thought that all those other interests, most of them entirely honourable and appropriate to the purposes of the Bill, are already included in Clause 1 or under the rest of Clause 3. However, it is simply not accurate to say that our traditional land uses and sources of rural employment are included within the term "social and economic development". Development is surely something different. There is a very important place for it of course, but it is different.
  The amendments would make certain that, among other things, one of the most magnificent examples of our natural fauna is well treated in future, and that all our traditional land uses and the unsubsidised employment they bring will not be wrongly penalised by the future SNH. I beg to move.
  6.30 p.m.
  Lord Glenarthur: My Lords, I very strongly support the amendments which have been so admirably moved by my noble friend Lord Pearson. Almost exactly nine years ago we embarked upon a discussion of the Deer (Amendment) (Scotland) Act. That Bill is etched upon my mind, not just because I was the person who was persuaded to pilot it through your Lordships' House, but because of the very great experience and knowledge of many of your Lordships which was brought to bear on the subject and the very thorough debates which we had upon the Bill in all its stages.
  Although the amendments of my noble friend Lord Pearson refer to Clause 3, as he indicated, I do not think that we can consider that clause in isolation. I have real concerns, as he has, about the apparently sweeping powers of Clause 5 and the corresponding narrowness of the duties placed upon SNH in Clause 3. That is the theme that I should like to develop.
  I am the first to agree that some control of deer to prevent excessive damage to the natural heritage may be necessary. However, there should certainly be a full examination of all the implications—the kinds of things to which my noble friend has referred—and how they should be addressed in consultation with, and to achieve agreement between, all those who are concerned and know about these matters.
  My noble friend referred to a conference that took place on 22nd October on the theme deer, mountains and man which was addressed by my honourable friend the Parliamentary Under-Secretary of State. During that conference full consultation on the subjects relevant to this Bill was suggested. I wonder whether my noble friend Lord Strathclyde can say who was consulted and what has been the fruit of that consultation. Is he able to say whether any body has been particularly slow in coming forward with views?
  We shall deal with other aspects of Clause 5 later, but in so far as the clause affects deer, I think that two points are worth making. The first is that the word "scheme" appears in clause 5(1). There may well be a correlation between that term in the Bill and deer control schemes which are featured in Section 7 of the Deer (Scotland) Act.
  Again, as my noble friend describes, Clause 5(3) states:
  "SNH may undertake, promote or coordinate, either by itself or in conjunction with any other authority or person, measures to implement the proposals mentioned in subsection (1) …".
  That seems to me to be a most sweeping power when it comes to the control of deer.
  To add to that, my noble friend Lord Strathclyde has forecast an amendment being brought forward in another place to amend the Deer (Scotland) Act.
  I am bound to say that I am more than a little surprised that it has not been possible to bring forward this amendment in your Lordships' House where so much expertise resides. Perhaps my noble friend will be able to say why and tell us which sections of the Deer (Scotland) Act he proposes to amend.

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  I hope my noble friend will realise that I believe there is an intention to amend Section 7 of the Deer (Scotland) Act to give powers to impose deer control schemes to protect the natural heritage. The powers given to the Red Deer Commission to arrange for control under varying circumstances are very carefully graded. First, in Section 6 of the Deer (Scotland) Act the Red Deer Commission:
  "shall authorise in writing … any person who in their opinion is competent to do so to follow and kill"
  deer under certain circumstances. That power is upgraded in Section 6A which introduces a further power of the Commission to deal with marauding deer. The final part deals with the matter of control schemes which can be imposed; I have to say to your Lordships that to the best of my knowledge in the 30 years or more since the passing of the Act they have never been invoked. I think it would be much more sensible to bring forward suitable amendments to Sections 6, 6A and 7 so that the graded response allowed for other purposes could be followed for the protection of the natural habitat, or whatever words might be used. To go straight to Section 7 is far to heavy-handed, and I am sure that such an idea would, very rightly, be strongly resisted.
  The fact that the SNH may require some special power to prevent excessive damage by deer to the natural habitat does not mean that they should have a sole or overriding interest, or that they should be the only source of advice to the Red Deer Commission. But that is what is currently proposed, and I hope that my noble friend can bring us up to date. While we are in this uncertain state over this issue we really do need other safeguards, and that is why placing additional duties on SNH, as this amendment proposes, goes some way to providing those safeguards.
  I hope that my noble friend will recognise that there are very real and genuine concerns over this matter. I am sorry to say that I do not believe that the process of consultation has been carried out in a way which is likely to take account of all the interests of deer management.
  I hope that my noble friend will be able to provide considerable reassurance on a matter which very seriously exercises many of your Lordships.
  Lord Charteris of Amisfield: My Lords, as Chairman of the National Heritage Memorial Fund, I would like to say that some time ago we provided about £750,000 of public money for the Royal Society for the Protection of Birds in order that they might acquire, first, Loch Garten and, secondly, a large slice of Abernethy Forest. The main purpose of the acquisition as far as Loch Garten was concerned was to preserve the osprey, and one of the other purposes was the regeneration of the natural forest.
  I do not think anybody ever contemplated that it would be possible to allow regeneration of the forest without fencing. When we were considering this matter with the RSPB I do not think we had any idea that, in order to ensure regeneration, we would have to get rid of 90 per cent. of the red deer and, I suppose, the same proportion of sheep. We had always assumed that this would have to be done by fencing. It seems
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  clear to me that the alternative to fencing is wholesale slaughter, and I very much hope that everybody will get that idea out of their minds. I believe it is absolutely essential that the SNH should be under an obligation to take into account the interests of the rural industries, of which the noble Lord, Lord Pearson, has spoken so eloquently.
  I should also like to speak about the inclusion of land holders in this clause. The National Heritage Memorial Fund has always taken the view that our heritage is best preserved by those who own it because they know and love it. Whatever views one may have on that, it is quite clear that land holders—by that I mean landowners and tenants—are an essential element in the equation. The fact that they are not mentioned in the Bill as it stands arouses in my mind and that of many others fears that the Government may have intentions against them. I hope therefore that this very reasonable amendment will be accepted. If so, I know that it will set many minds at rest. I very much support it.
  Lord Mackie of Benshie: My Lords, I rise to support the amendment to which I have put my name. Clause 3 provides that:
  "It shall be the duty of SNH in exercising its functions to take such account as may be appropriate in the circumstances of—
  (b) the needs of agriculture, fisheries and forestry".
  The amendment, which is eminently reasonable, would include:
  "other traditional land uses and sources of rural employment".
  The provision of employment by sporting activities in the Highlands in particular is of immense importance. All the hotels and remote places, for example, depend enormously on fishing. I know that the term used in the clause is "fisheries" but that can mean many things. Rod fishing is of infinitely greater importance to many people in the Highlands than is either net fishing or rearing of salmon in fisheries.
  The case for red deer was made with great eloquence and at considerable length by the noble Lord, Lord Pearson. He gave an example of a public body doing something foolish. I can cite many more examples of land holders and landowners doing something even more foolish. One has only to look around.
  It is necessary for the public to take part in the preservation of our heritage; but we should consult the proper interests in the Highlands. Highlands landowners who are not traditionally the friends of the Liberal Party are under attack. In many cases they are very nice people and sometimes they are Scottish. They play an enormously important role. It would be only reasonable for the Government to mention those very important interests in the clause so that Scottish Natural Heritage can take note of them. This is a very reasonable amendment and I hope that those interests will be considered.
  I take up a point raised by the noble Lord, Lord Glenarthur, who said that it was curious that the Government should not introduce an amendment in this House. I can only suggest that it is a matter of a cowardly approach in that they want to get the Bill through the Commons. With their majority there, they

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  can defend it against the much greater expertise in this House. I can assure them that the matter will be looked at carefully.
  Before I sit down, I should like to return to the topic of deer. We must consider what part they play. When the Deer Commission was set up its first chairman was a friend of mine, Mr. Michael Crichton-Stuart. It had a clear remit to ensure that the deer population was kept within bounds and properly managed and to co-operate with the land holders or landlords in that respect. The fact is that there are far too many deer and in many places the population has doubled. There is no doubt that there is a problem. There is also no doubt that the Red Deer Commission in its present form has not managed to cope with it. I accept many of the arguments, but we ought to look closely at the matter.
  The amendment is a good and sound one and the Government would be very foolish not to accept it.
  6.45 p.m.
  Viscount Massereene and Ferrard: My Lords, perhaps I may intervene at this point. I was brought up in a deer forest and I have written about red deer. Throughout my life I have had great experience of deer and the Highlands generally. The noble Lord who has just sat down spoke of how some people could be very foolish. I agree. I have found that the Civil Service can be very foolish.
  Let me give an instance. Two or three months ago something remarkable happened: a new nature conservancy man had been appointed and, without approaching me or any of my staff, decided to put an enormous circle around my deer sanctuary, which consisted of some 12,000 acres within a forest of about 30,000 acres called Ben More. The area used to be famous for its stags, which were heavier than in Scotland, and it was beautifully managed. We went in for breeding. We were known for the big heads and the mature stags. There were also sheep.
  As noble Lords probably know, sheep came to the Highlands when the land was cleared. Before them there were cattle on the hills. Cattle are far better for the hills than sheep which ruin the vegetation. At the end of the 19th century a great many sheep were taken off the Highlands. It had to do with the development of Australia. I remember lambs being sold for two or three shillings a head. When the sheep went, the deer increased greatly.
  Michael Crichton-Stuart was also a friend of mine. He was a charming person but, with due respect to him, he did not know a great deal about deer. It is strange to note that the first two chairmen appointed to the Highlands and Islands Development Board were both professors of urban planning. How can anyone be so foolish as to appoint professors of urban planning to the Highlands and Islands Development Board? It is hard to imagine but it happened.
  I must defend the deer. They are a most beautiful animal. They are also a source of great employment. Deer which are properly managed bring in a great income to estates. There appears to be some plan or plot in BBC television to picture deer as eating all the trees in the Highlands and destroying the scenery.
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  That is nonsense. There are plenty of trees on my ground. It is the sheep which are the close grazers. They destroy the natural expanse of trees and cause harm. I do not want to go on but—
  Noble Lords: Order!
  Viscount Massereene and Ferrard: —when the Red Deer Commission was formed there were many more deer in the Highlands because there was more grazing land. Their numbers were decreased deliberately as a result of the large amount of planting. We must not go too far. I know some people who are supposed to be experts but they have not been brought up in the country, with wildlife. They should take the advice of some landowners because they do not have practical experience.
  If we allow the Civil Service to control the wildlife of the Highlands soon we shall have no wildlife. For example, I have rare birds on my land but I am losing those because of the increase in the number of people walking over the hills. That is in spite of the fact that I had made paths and built roads and bridges at my own expense in order to help the hikers. As I said previously, a new conservation man was appointed and he turned a large part of my ground into an SSSI without asking me. I already had four SSSIs—
  Noble Lords: Order, order!
  Baroness Carnegy of Lour: My Lords, it is clear that most noble Lords believe that the amendment is about deer. It is an important subject and I am sure that Members in another place will pay a great deal of attention to your Lordships' comments. Members of this House have great expertise on the subject. However, the amendment does not mention deer. I wish to follow my noble neighbour, Lord Mackie of Benshie, along the lines of the more general sense of the amendment.
  Scottish Natural Heritage should take account of the effect that its decisions may have on job opportunities in an area and on the rural enterprise and land management that creates jobs. Careful consideration must be given to the remoter parts of Scotland where people and earning opportunities for them are few.
  I do not know whether the amendment is worded in the best way. I have never before heard the term "landholder" used in legislation but that may be due to my ignorance. If it means occupier or owner the Bill should state that because it would be clearer. Is the phrase "traditional land uses", picturesque though it is, sufficiently specific or flexible at a time of rapid change in the countryside? Perhaps my noble friend on the Front Bench will comment upon that. I hope that my noble friend Lord Pearson will tell the House whether he believes that wording to be essential to the amendment.
  I wonder whether there are activities that are vital to people living and working in the countryside which do not have consideration under the Bill as it stands. I was unable to be present during previous stages of the Bill but after reading the discussions I wonder

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  whether all the necessary issues are not already covered. I appreciate that the specific subject of deer will be sorted out in another place.
  Must Scottish Natural Heritage take account, for example, of small businesses which smoke salmon and trout and the land that they use for car parks and so forth? Must it take account of farm shops? Must it take account of businesses which supply venison for home consumption and for export? Will it take account of the letting of shooting and stalking rights which are vital to the tourist industry and the rural economy? For example, the number of Italian farmers who now go shooting in Angus where I live is growing every year. It is an important part of the area's rural economy.
  If under the Bill any of those aspects could be ignored by Scottish Natural Heritage the Minister should accept the amendment as it stands or bring forward an improved amendment in another place. I hope that he will not ignore the matter completely and I hope that we shall not concentrate only on deer.
  The Earl of Erroll: My Lords, I must first declare an interest. I am a trustee of an estate in the Cairngorms. It means that I have a duty to consider how best to balance the long-term interests of the wildlife, the woodland, the people who live on and around the estate and the family who has looked after it for generations and will do so into the future. I hope that the estate will carry on for a great deal longer because that is what long-term planning is about. One does not achieve that so much from a person who holds a position for only a few years. It may be his lifetime but his children and family will not carry on the work after him.
  Without adding to the Bill the words contained in the amendments, Scottish Natural Heritage must consider some but not all of the factors. It is not impossible to take them into account. As trustees we have entered into management agreements with the NCC to regenerate areas of birchwood while keeping the deer which are essential to the area's economy. People often forget that the good, old traditional Highland sporting activities employ more people and contribute slightly more money to the Scottish economy than the modern activity of fish farming, which has already hit troubled waters. Therefore, a long-term view is essential.
  I have three major worries. The first is that centralising such decisions into one body means that any mistake that is made will affect the whole area, and possibly irreversibly so. The decision will probably be made in good faith. However, we do not know and cannot foresee everything; human beings are not infallible. My second worry concerns bad publicity. It is known that the NCC wishes to regenerate all the natural and birchwood forests. That is very laudable. However, it requires the killing of 80 to 90 per cent., that is, most of the red deer in Scotland. That is admitted.
  It is often forgotten that woods also harbour vermin. That will decimate the grouse, so bird interests
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  will be affected. All the forests were planted on flow land. New birds and new wildlife were introduced but so complete was the change that old bird populations were wiped out or moved off. Will that be popular with the conservationists? We know that grouse and other birds will not nest within half a mile of the woodland.
  My third worry is that this is socialist legislation. Expropriating the rights of private owners is socialist policy; it is not Conservative legislation. I was always given to understand that the present Government were in favour of private ownership and individual rights, not centralisation.
  7 p.m.
  Lord Taylor of Gryfe: My Lords, I hesitate to interrupt the noble Earl. He is covering the whole position of nature conservancy which was debated at Committee and Report stages. We are now in the final stages. I wonder whether it is appropriate to deal with the whole range of activities of this new body, or whether the noble Earl should concentrate exclusively on the amendment.
  The Earl of Erroll: My Lords, I am about to conclude. The rights of private individuals, who are not given any representation, are being expropriated because landholders are excluded. I thank the noble Lord for raising the point; I had probably not made it clear. If landholders are to be included then I shall not worry. That is the point of the amendment.
  I am worried about the devastation of a wrong decision on the economy of the Highlands. It could be as bad as the clearances; the results could be similar. I hope that that does not happen.
  Lord Grimond: My Lords, the mover of the amendment made a powerful case regarding the treatment of the red deer. I trust that he will receive a satisfactory answer. I know nothing about deer. I come from a part of the Highlands in which they are a rarity. There are some red deer in Orkney. They were imported. However, the man who imported them apparently did not realise that they could swim. They turned up in odd parts of Orkney because he thought the sea would do the job normally done by fencing.
  Valid points have been made about deer. I want to draw the attention of the House to the phrase in the amendment, "traditional land uses". In Orkney there is a suspicion that these conservation bodies are less interested in conserving the existing land, beauty and employment of Orkney than they are in drawing up new schemes for doing something different or designating SSSIs. I hope that those suspicions are wrong.
  There is a suspicion that the increase of bureaucracy in these bodies has led to a shift of emphasis from conservation to tourism, development and schemes of that sort. The amendment can usefully draw attention to the need to protect traditional land uses.
  It is perfectly justifiable to include landholders in the Bill. Landholders are not the same as the community. It is difficult to say what a local community is. But landholders are vital to the

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  countryside. They made it and they look after it. If the conservation bodies are wise they will make every effort to work with the landholders. Again there is a suspicion that they are against the landholders. That suspicion may be unfounded, but it must be eradicated.
  Therefore I share the view of those who do not like incorporating innumerable points into Bills. People will say that something else is left out. If one includes the community, which is extremely important, then one should also include landholders.
  Lord Dulverton: My Lords, having tried to say a few words of welcome a week or two ago to the new set-up for Scottish Natural Heritage, I have somehow missed out on a move within the Bill which causes me the most serious and indeed fearful alarm. That is the matter under discussion. It is a move that is taking place to give powers to SNH to advise—virtually to order —the Red Deer Commission, to destroy the native red deer of the Highlands in huge numbers.
  Having served both with the old NCC, and for many years with the Red Deer Commission, I know well the pressures from the NCC to reduce deer populations and so enable the natural regeneration of trees and shrubs, drastically reduced over the centuries at the hand of man.
  I digress and relate a personal experience. Having pursued an active policy over 20 years to get trees growing again at Glen Feshie in the central Highlands on what I believed to have been truly sound lines, I was under considerable pressure from the NCC to reduce the well-managed—I stress "well-managed"—deer population to enable natural regeneration to take place without protecting fences. That in practical terms—I checked with reliable scientific sources—would have called for a reduction from a total population of over 1,000 deer to around 40 head. Had that been possible to achieve and maintain, with other deer stocks all around, it would have meant the utter destruction of Glen Feshie's main asset. I succeeded in resisting such nonsense and at the same time did much to restore the tree and shrub cover, for which I received praise from a number of quarters.
  With those experiences behind me I must tell the House that I am full of fear that the SNH may be given powers virtually to direct the RDC to take an active part in destroying viable and valuable deer populations with all the employment that they generate. Apart from other deleterious considerations, that would have a most damaging effect upon what is an important land use in the Highlands as well as a truly magnificent population of noble and beautiful natural fauna. If the duty we have been speaking of were wished upon the Red Deer Commission the result would be to make it quite unpopular throughout the country. And it already has a difficult enough job to do.
  Baroness Strange: My Lords, I support the amendment of my noble friend Lord Pearson. If the clause is carried in its present form my noble friend says that the Government intend in another place to amend Section 7 of the Deer (Scotland) Act to provide
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  additional powers to the Red Deer Commission and Scottish Natural Heritage to control or decimate deer. In layman's terms that means a bloody slaughter of thousands of deer. I find that concept deeply upsetting and repugnant, as I am sure do other noble Lords.
  The Earl of Perth: My Lords, I shall be brief. I have heard all the eloquent defences of the deer and I am sure that the Minister will pay attention to them. I want to speak on Amendment No. 8 which deals with the interests of local communities.
  We have heard most eloquently expressed by the noble Lord, Lord Grimond, and my noble friend Lord Charteris, that those who live on that land—the landholders and the tenants—know a great deal and are the best guardians of where they live. I hope therefore that the amendment will be accepted or that we are told categorically by the Minister what "local communities" means. I hope that includes what we have been talking about.
  Lord Strathclyde: My Lords, I am grateful to my noble friend Lord Pearson of Rannoch for giving us the opportunity of discussing once again the interests included in this provision of the Bill. I shall speak to the same amendments as my noble friend. The balancing duty placed on SNH will be crucial to the way in which it will exercise its functions. I can well understand noble Lords wishing to be quite clear as to the elements SNH should need to take appropriate account of. I am grateful to my noble friend for providing a useful opportunity to attempt to clarify the position regarding field sports, as I am aware that my remarks on this subject on Report caused my noble friend some anxiety.
  As I said on that occasion, field sports are a vital part of the financial viability of estate management. No one can deny the contribution that they make to employment in Scotland and to the country's revenue. I am most anxious to make that clear. But what I must also make equally clear is the fundamental point that the more we agree on the economic importance of field sports, the more certain it must become that they will be taken into appropriate account by SNH as part of Clause 3(c). That provision refers to the need for
  "social and economic development in Scotland or any part of Scotland."
  "Any part of Scotland" could of course mean a single particular estate. There should therefore be no doubt in anyone's mind that the Bill already does all that my noble friend wishes it to do in relation to field sports.
  I may have inadvertently misled my noble friend when I said that field sports are no different from other types of enjoyment of the countryside. There are two aspects to field sports. They can be viewed from the standpoint of those who provide the sport and for whom they are, as I have just said, a most important form of economic activity. But field sports can also be viewed from the point of view of the participant. It is from that standpoint that they can be seen as one of many forms of enjoyment of the countryside. Scottish Natural Heritage will have a two-fold interest in field sports, and will need to take account of both aspects in discharging its duty under Clause 3.

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  It may not be directly relevant to the amendments that we have before us, but most noble Lords who have spoken have mentioned the plight of deer. I intend to take some time to explain exactly what it is that the Government mean. I shall also explain why the amendments that I promised would be tabled in the other place will be brought forward there rather than in this House. I shall also explain the various anxieties which my noble friends have about the amount of consultation that has taken place.
  As regards providing new conservation powers for the Red Deer Commission, I can entirely understand my noble friends' apprehension. I am sure that my explanation of what is proposed will put at rest the minds of my noble friend Lord Pearson and other noble Lords. There is a common consent that in some areas there is an over-population of hinds. The Red Deer Commission, as the Government's statutory adviser on red deer, has made representations to both the Government and owners on this matter for many years. I know that there is disagreement about counting methods. But there is essential broad agreement that there are too many hinds.
  The old population of deer, particularly hinds, may in some areas result in damage to natural vegetation and habitat. Many areas of native woodland are failing to regenerate and could well disappear. That is widely regarded as being detrimental. As currently drafted, the Deer (Scotland) Act 1959 does not allow the Red Deer Commission to take into account damage by deer to anything other than agriculture and forestry. In particular, the commission has no statutory requirement to take into account damage by deer to natural vegetation or more generally to the flora and fauna and the landscape.
  The Government therefore intend to rectify that by seeking an amendment to the 1959 Act which will allow the commission to take action under Section 7 of the Act to reduce damage to the natural heritage interests in the same way as it can take action where there is damage to agriculture and forestry. I must emphasise that, in view of the views which have been expressed, we are not seeking new powers here. We are merely seeking a broadening of the definition of existing powers to embrace the natural heritage intent. I also understand that broadly speaking the Scottish Landowners' Federation which I met yesterday is essentially in favour of the proposal.
  Lord Burton: My Lords, my noble friend is wrong on that matter. I am a member of the executive. So far as I know, this matter has never been discussed by the federation. I do not know where my noble friend got that information.
  Lord Strathclyde: My Lords, that is the impression I received, but I am quite happy to be corrected by my noble friend. I know that some of your Lordships are concerned about the effectiveness and strength of the commission's deer control scheme powers under Section 7 of the 1959 Act. I hope that I can allay these anxieties with the following explanation. As currently drafted, Section 7 permits the commission to draw up a scheme for the control of deer where it considers that
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  a cull should be undertaken to prevent further damage to agriculture and forestry, and where the appropriate reduction in the deer numbers cannot be secured voluntarily through consultation with the owners and the occupiers of land. Only where agreement is not obtained can the commission draw up a control scheme. That requires the Secretary of State's approval. These schemes are complex and they are considered to be very much a last resort. The Government and the commission continue to prefer the use of voluntary agreements; but these last resort powers will, as a result of the amendment, ensure that deer numbers can be controlled, and they will encompass damage to the natural heritage as well as to agriculture and forestry.
  I now turn to the role of Scottish Natural Heritage in relation to our proposals to amend the 1959 Act. SNH, under the provisions of Clause 2 of this Bill, can give advice covering the natural heritage to anyone it considers appropriate. In the Government's view that advisory role is likely to be a major activity of SNH. It is vital that it is undertaken in a spirit of co-operation so that it is influential in bringing about improvements in the management of all aspects of the environment which affect the natural heritage.
  I must make it clear that we shall not legislate to allow Scottish Natural Heritage to dictate deer management policy to the Red Deer Commission. There is a great deal of misapprehension on that point. Both Scottish Natural Heritage and the Red Deer Commission are statutorily answerable to Parliament and they are funded by the Secretary of State. Both have important advisory roles to the Secretary of State. But neither can tell the other what to do although both can advise the other. In the case of deer management the Government expect that Scottish Natural Heritage could provide advice to the Red Deer Commission where there are effects on and implications for the natural heritage. The commission itself may seek such advice. Additionally, Scottish Natural Heritage may provide such advice.
  However, in either situation it is up to the commission to decide what to do with the advice in the light of its statutory functions and responsibilities. The commission may decide that it would be inappropriate for it to take action where fencing rather than culling appears to be the most effective solution. It may accept the advice and seek to secure the reduction in numbers in consultation with owners.
  Lord Taylor of Gryfe: My Lords, I am sorry to interrupt the noble Lord. He speaks about "the commission". Is it correct to say that we are speaking about two commissions? Can the noble Lord define the area concerning the Red Deer Commission? Can he also say what will happen if there is a conflict about advice?
  Lord Strathclyde: My Lords, we are not speaking about two commissions. We are talking about the Red Deer Commission and Scottish Natural Heritage. There will be new powers in that the Red Deer Commission will be allowed to cull deer on the basis that they are damaging the natural heritage. That is on the same basis under which it can currently take the

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  same action in respect of damage done to forestry and agriculture. I am not saying that Scottish Natural Heritage will have a right to demand that the Red Deer Commission cull deer because of damage to the natural heritage. It is that point which my noble friends have been so concerned about; namely, that an environmental body should have the power to dictate to landowners, shooters and everyone else involved in the deer industry. That would be highly detrimental to the industry, and would oblige the Red Deer Commission to act. That is not the position. I also understand that there is some difficulty because I have not produced any amendments. Those will be introduced in the House of Commons.
  Lord Mackie of Benshie: My Lords, has the Red Deer Commission, under which the population of deer has doubled, done its job properly? Does the noble Lord envisage any alteration in its set up?
  Lord Strathclyde: My Lords, as a Government, we already have a commitment that at some stage in the future we will review deer legislation as a whole. That is broadly welcomed by those who come across the Red Deer Commission and by those who are deeply involved in the deer world and would like to see adjustments to the legislation to make the management of deer more effective.
  I hope that I have both clarified the Government's intentions on amendments to the 1959 Act and removed the concerns of noble Lords about the relationship between the Red Deer Commission and Scottish Natural Heritage. When the Bill returns from the Commons we shall have ample opportunity to debate these matters.
  Perhaps I may briefly explain why the amendments were not brought first to the House of Lords. We announced our intention only at the end of October. Since then we have formally sought the views of three relevant statutory agencies—the Red Deer Commission, the NCC and the Countryside Commission—and have received views informally from other interests. Indeed we received further views from the Red Deer Commission only a few days ago—some of those ideas were picked up by my noble friend Lord Glenarthur—and so we have not had time to digest them.
  Lady Saltoun of Abernethy: My Lords, have the Government sought the views of the British Deer Society?
  Lord Strathclyde: My Lords, I am aware that the British Deer Society has made its views well known to the Government.
  We were therefore not in a position to make final decisions and to instruct the drafting of the necessary amendments in time for Third Reading in this House. I heralded that quite plainly at Second Reading in November. This is clearly an important issue and we must take time to make sure that we get it right. That is why we take account of all the views expressed. We have had an opportunity today to listen to my noble friend's views. Everything said in this debate will play a part in setting the framework of the amendments for when they come before the House of Commons. There
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  has never been any suggestion of cowardice on the part of the Government in bringing forward amendments to the House of Lords. I would much rather have had these amendments in the first place. We could then have got to grips with them while at the same time allaying the fears of some noble Lords about what will happen to the deer.
  Perhaps I may briefly turn to the amendments themselves. The reference to,
  "other traditional land uses and sources of rural employment",
  is somewhat vague and imprecise. My noble friend has not precisely defined what he means. I am not sure that the term covers anything that is not already dealt with in Clause 3(c) by "social and economic development". Indeed, the matter is well-covered in Clause 3(c). I also appreciate the reasons behind the wish to include a reference to the landholder. My noble friend Lady Carnegy asked me whether that has appeared in other legislation. It may appear in ancient legislation but there is no recollection of it in newer legislation. However, that does not necessarily mean that it is a bad thing.
  I am not disputing the needs behind the amendments. There are grounds for concern. I feel that the Government should look again at how Clause 3 is worded and we can consider how we can include some of the ideas put forward by my noble friends. I do not feel able to accept the amendments as they stand. I hope my noble friend Lord Pearson will understand that. I accept on balance that something more is needed in paragraphs (b), (c) and (d) of the clause. I shall therefore take away the issue if my noble friend withdraws the amendment. I shall look again at the drafting and then bring forward an amendment in the House of Commons. In the light of that undertaking, I hope that my noble friend will be prepared to withdraw the amendment.
  The Earl of Perth: My Lords, several noble Lords have asked about the meaning of "local communities". Does the term include landholders and tenants? It is essential for us to have that question answered before we can make a judgment.
  Lord Renton: My Lords, I ask my noble friend to bear in mind another point when considering the drafting. The word "development" in paragraph (c) is one of limitation. It is a word of somewhat narrow effect. My noble friend should not rest upon that, thinking that it covers the various other things which my noble friend Lord Pearson has suggested.
  Lord Strathclyde: My Lords, I have been asked two clear questions. The noble Earl, Lord Perth, asked about local communities. The noble Lady, Lady Saltoun, pushed through an amendment at Report stage. The Government were keen not to include local communities on the basis that they were already included in paragraphs (b) and (c). However, the Government were overturned on that matter. We were not prepared to accept the amendment precisely because of the point raised by the noble Earl—what are local communities? I do not have a very good answer to that question. We shall have to see what happens when the Bill goes to another place.

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  In my assurance concerning the substantive amendments before us I said that I would review paragraphs (b), (c) and (d). That review will include a close look at what the House is trying to say when it refers to local communities and landholders. We can then ensure that landlords, tenants and all those involved on the rural side of the land are included within the definition. The idea of the definitions was to make the provision as wide and as all-encompassing as possible.
  I say the same thing to my noble friend Lord Renton. I understand the point that "development" is in some way limiting and that it deals with something new rather than old. That is precisely one of the issues I shall look at in my review of the wording.
  Lord Pearson of Rannoch: My Lords, I am grateful to my noble friend the Minister for his explanations. My noble friend Lady Carnegy queried the wording of the amendments and asked whether interests other than deer might be genuinely included in them. Unfortunately, the debate started off on that point and may have focused too much on that area. There are of course other major concerns. I would expect some of the activities mentioned by my noble friend to be covered by the amendments. One thinks of trout fishing. I hope that noble Lords will not think me facetious if one includes the cutting of peat and other activities of the traditional rural economy. I was grateful for what the noble Lord, Lord Grimond, said about landholders. He said that he does not object to telescoping expressions in an amendment of this kind. It is true that the wording was suggested by the Scottish Landowners Federation. It was rather windy of the word "landowner". I do not think that other noble Lords were so fearful this evening. The word "landholders" was aimed at landowners and their tenants and occupiers.
  However, I am most grateful to my noble friend the Minister for the assurance that SNH will in no circumstances dictate to the Red Deer Commission and for the other assurances which he gave. On the understanding that we shall be able to have close and proper examination of the alterations to Clause 3 on its return from another place, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 6 not moved.]
  7.30 p.m.
  Lord Strathclyde Lord Strathclyde moved Amendment No. 7:
  Page 2, line 40, leave out ("sustainable").
  The noble Lord said: My Lords, this amendment is designed to correct some confusion which crept into our proceedings on Report on 18th December. Your Lordships may recall that we divided on a pair of amendments moved successfully by the noble Lady, Lady Saltoun of Abernethy. The substantive amendment of course related to the inclusion in SNH's balancing duty of a reference to,
  "the interests of local communities".
  I confirm to the House that we shall look closely at that aspect of the matter. There was some confusion,
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  however, as to the correct number of that amendment, and as a result both the reference to "local communities" and the reference to "sustainable" earlier in Clause 3 were included. That was not intended. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 8 not moved.]
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 9:
  Page 2, line 42, at end insert:
  ("(e) the need to conserve and interpret the archaeological, historical and cultural heritage of Scotland").
  The noble Lord said: My Lords, this amendment has been put forward because the Bill as drafted does not appear to recognise the key relationships between the natural and the archaeological heritage. It is not just that archaeological and historic sites and monuments hold an intrinsic value—though obviously they do—but that their presence contributes to the visual beauty and diversity of landscape. Landscape is also the storehouse of information about the way our ancestors interacted with the natural heritage and, therefore, about the evolution of the landscape. Conservation of the landscape and its natural heritage requires that knowledge.
  The amendment would secure the recognition of such factors. It would allow Scottish Natural Heritage to take an interest in the evaluation of the heritage in its care and to work with other appropriate authorities, thus ensuring its future conservation and sustainable use. I do not think that this is an epic-making amendment, but I believe that it is a helpful one. I hope that the Minister will be able to accept it. I beg to move.
  Lord Strathclyde: My Lords, I am grateful to the noble Lord for highlighting the need to conserve and interpret the archaeological, historical and cultural heritage of Scotland. That is certainly a task which the Government strongly support. It is, of course, a role which is undertaken very successfully by, for example, the Royal Commission on Ancient and Historic Monuments of Scotland and the Historic Buildings and Monuments directorate of the Scottish Office Environment Department which is shortly to achieve agency status under the name Historic Scotland. The concept of the cultural heritage causes some difficulty, partly because of its wide-ranging nature but also because the word "cultural" is generally perceived as being in contrast to "natural".
  SNH will inherit the present close links with HBM which both NCCS and CCS have at present. There is a great deal of very useful co-operation between these bodies at the moment, both in general and on specific projects. While the importance of archaeology will be fully recognised by SNH, a specific reference to it in the Bill is not required as a result of the links already mentioned.
  There are a number of problems with the amendment. The reference to "interpret" would take SNH considerably beyond its logical remit. For those reasons I am not prepared to accept the amendment,

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  but I trust that the noble Lord will accept what I said in the spirit in which it was intended. I believe that it is worth explaining to the House exactly what are our views on such an important subject. In the circumstances, I hope that the noble Lord will withdraw his amendment.
  Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister. I hope that we can proceed with the Bill as amicably as we have just dealt with this amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 4 [Nature conservation functions]:
  Lord Strathclyde Lord Strathclyde moved Amendment No. 10:
  Page 3, line 5, at end insert:
  ("( ) The amendments made by Schedule 9 to that Act to enactments extending to Scotland shall continue to extend to Scotland.").
  The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 28, 29 and 42. This group of amendments deals with the relationship of Scottish Natural Heritage to nature conservation legislation as embodied in, and amended by, the Environmental Protection Act 1990. I beg to move.
  On Question, amendment agreed to.
  Clause 5 [Development projects or schemes]:
  Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 11:
  Page 3, line 38, at end insert:
  ("(3A) Where, in the exercise of its functions under subsections (1) and (3) above, SNH proposes any development project or scheme other than the designation of an SSSI, it must give notice in writing of such project or scheme to the owners and occupiers of the land concerned and to the local planning authority in whose area the land is situated, and such project or scheme shall be subject to an appeal procedure to be set out in a statutory instrument made by the Secretary of State.
  (3B) Any statutory instrument made under subsection (3A) above shall be subject to affirmative resolution of both Houses of Parliament.").
  The noble Lady said: My Lords, we know that the Countryside Commission wishes to make four national parks in the mountain areas of Scotland. Whether that is a good idea is very much open to argument but it is one of the projects which we know that it wishes to undertake. We also realise as we read Clause 5 of the Bill, starting with subsection (3) and going back to subsection (1), that Scottish Natural Heritage,
  "may undertake … by itself … measures to implement the proposals mentioned in subsection (1)".
  Those measures are,
  "proposals with respect to any area for a development project or scheme … which fosters understanding or enjoyment of the natural heritage of Scotland".
  Reading that clause and taking it in conjunction with the amendments which we understand may be introduced in another place to the Deer Act 1959, it would be possible for SNH to put pressure on the Red Deer Commission to cull a large number of deer on the grounds that it wishes to promote the natural regeneration of woodlands without the expense of deer fencing. To achieve natural regeneration of
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  woodlands, mainly birch and without deer fencing, a really massive cull would be necessary. In fact, the near extermination of the deer population would be necessary because the level of deer population compatible with natural regeneration is between one and two beasts per hundred hectares.
  When that action had been taken and the deer forest destroyed for stalking purposes, the value of the land would plummet by, at present day values, about £20,000 to £30,000 per stag shot in the stalking season. At that stage SNH could, under the provisions of Clause 5, purchase the land compulsorily in order to establish the national parks. Compensation would have to be paid, but would it be paid at such a level? Have the Government actually considered the cost of compensation?
  As a result of such action many stalkers employed on the land would become redundant. This would happen because with little or no stalking potential and no stalking rents, or very inadequate stalking rents, there would be neither jobs for them nor the income to pay their wages. It is possible that some of them might be offered jobs as park rangers, but I do not gain the impression that experienced, skilled stalkers want to spend the rest of their lives picking up the litter left by hikers, or whatever park rangers do.
  Stalkers are young men. They have to be young and very fit otherwise they could not do the job. Such young men very often have young children. In Upper Glen Dee, above Braemar, which is an area that I know well, the only young people with children in the glen are the stalkers. The rest of the population are middle-aged or quite elderly. If the stalkers leave the area there will be no young people in the glen. That also applies in many remote areas. Is that what the Government want? It is certainly not what the people concerned want. If that were to happen, it really would be nationalisation by the hack door by an unelected quango created by the Government and accountable to no one.
  Amendment No. 11 creates an appeal mechanism. It would give those whose lives will be most affected by the situation that I have described, and whose livelihoods may be put at risk, a chance to make their views heard. To create a body such as SNH without there being any right of appeal against its diktats is unacceptable, undemocratic and worthy only of regimes such as Saddam Hussein's. I beg to move.
  Lord Grimond: My Lords, I support the amendment to which I have put my name. The general arguments for a right of appeal have been rehearsed in the House at some length, and I do not intend to go over them all again. I find it extraordinary that the Government should hand these serious powers over rights of property to a non-elected body, without there being any right of appeal. I find it amazing that any government should do that. As a matter of principle, as the noble Lady said, I should have thought that that runs contrary to nearly everything our parliamentary system and law are supposed to stand for.
  As I said, the body is not elected; it is appointed. It appears to be able to bypass such elected bodies as

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  might be able to interfere. We are not talking about a minor matter. People are deeply suspicious about having their land designated as an SSSI, and not without reason. As I ventured to say previously, it is a deeply rooted tradition in the Highlands—
  Lady Saltoun of Abernethy: My Lords, if the noble Lord will give way, the amendment does not relate to SSSIs. It relates to everything except SSSIs.
  Lord Grimond: My Lords, I fully appreciate that point. There is a deep-rooted feeling in the Highlands that the ordinary landowner, be it landlord, crofter or tenant, wishes to hang on to his land. He has had enough of having it run by absentee landlords or public bodies. As I have said, we are treading on delicate ground. We are putting our heavy feet down in a way which would not be tolerated in any other part of our jurisdiction. I therefore support the principle that SNH should be subject to certain appeal procedures and planning authorities when it proposes to take steps which deeply interfere with the rights of individuals.
  I pass from that topic to a point that I have already made: if we are to have proper conservation, it is vital that we carry with us the people who live on the land. At the moment we are losing them. There is deep suspicion in Orkney. Far too much of the land has been designated for one purpose or another. No one knows why. I asked the conservation people why the whole of the western end of Orkney has been designated, but there has been no sufficient answer.
  Secondly, I hope that the Government have read the speeches of the noble Lords, Lord Pearson, and Lord Kimball on Report. They pointed out where conservation authorities' rulings, without a right of appeal, that overruled the landlords' recommendations had proved to be disastrous. There is no ultimate wisdom in those bodies. They are entitled to say only that they have considered matters carefully and that they are knowledgeable people, but that does not mean that they are God Almighty. No one will hand over decisions on ordinary law and justify that by saying that the judges are good people. We must get the law right. That is what we have so far not done in regard to these matters.
  I do not know whether it is in order to quote it, but I was given a letter from the chairman designate. I should like to know whether it is a quotable letter. The note with it said that the Minister might quote the letter. Perhaps I may ask the Minister whether he intends to quote it.
  Lord Strathclyde: The noble Lord, Lord Grimond, is talking about the letter that the chairman of NCCS, Mr. Magnus Magnusson, wrote to me, a copy of which I put in the Library. It forewarns my noble friends of his ideas about the future of NCCS and its development into SNH. With respect to the noble Lord, that letter is not relevant to the amendment. It is relevant to Amendment No.30 which I hope we shall discuss soon.
  Lord Grimond: My Lords, it appears to me to be relevant to all these amendments. I gather that it is in
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  order to quote from the letter. As I said on Second Reading, I have the highest admiration for the chairman designate. He is an admirable choice. In many respects the letter is useful and important, but I am not convinced by its main argument. I understand it to mean that he will reconsider all these matters of designation, schemes and so forth and would like matters left as they are until he has done that. I reject that argument. We have had a long experience of SSSIs and different schemes and they have proved to be unsatisfactory. Many Members of the House, including the noble Lords, Lord Campbell of Croy and Lord Taylor of Gryfe, have constantly raised this matter. It is not a new matter. We have experience of it, and we should act upon it.
  It is not right for Parliament to say, "We know that all this needs altering. We know that it is bad, but we intend to continue it for some indefinite period". It is difficult to decide how long it may take before a conclusion is reached. The right course is for Parliament to put the matter right, as it sees it now, and then if SNH wishes to amend the scheme in years to come, all well and good. Surely no one will say that, once a defect in the law has been proved, one should continue with the law. One should alter it as soon as possible.
  If the new body is to be successful, it is essential that it carries with it the people in the Highlands. I have said that four times this evening and on many previous occasions. The conservation body failed to do so a year or two ago in Orkney—the situation may now be better—because it rode roughshod over people. I know a man who was simply told one day that he could no longer cut peat from his peat bank which his family had worked for generations. That would be intolerable in any other part of this country. It is intolerable in the Highlands. It is essential that SNH starts off on the right foot, and that in the Bill the House amends the procedures which have proved to be unsatisfactory so as to give the new body a chance to say that it is starting on a better footing and, "We admit that our predecessors have been wrong in the past. We admit that there are things that need doing. Here is the first instalment. We shall consider the whole matter further. It may then need reconsideration, but in the meantime we agree that there are faults and that those faults should be put right".
  Lord Campbell of Croy: My Lords, as the noble Lord mentioned me perhaps I could intervene. I spoke on the Environmental Protection Bill last year which is the parent Bill. I understand the sentiments expressed by the noble Lord, but I must make it clear that the amendment relates to projects or schemes other than the designation of SSSIs. When I spoke on that occasion and on the Second Reading of this Bill, I dealt with the huge area of SSSIs and the feelings that have been generated in certain areas of Scotland that they blighted or devalued the land. They are feelings that are probably not justified but which nonetheless exist.
  I agree with the sentiments, but I must make it clear that when I was speaking I was not talking about anything to do with the amendment. I might be able

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  to help the noble Lord if I say that my understanding is that SSSIs were introduced in legislation about 1948 and were hardly used until the early 1980s when the Wildlife and Countryside Bill was enacted. As I see it, one of the reasons that we are not discussing the designation of SSSIs is that it is not in order to try to change a major statute—that is the Wildlife and Countryside Act—in the course of this Bill. Therefore we are discussing something different, that is projects and schemes.
  Perhaps it will save time if I say this now instead of on Amendment No. 30 where it could perhaps be more relevant. When I spoke on previous occasions I said that I hoped the changes in the Bill would help to promote confidence by bringing all the decisions and consultations much nearer to the people in the remote Highlands, central Scotland or wherever it might be. I drew attention to the fact that there was concern about the lack of an appeal. I hope that the changes that the Environmental Protection Act introduces and this subsequent Bill will help to promote better feelings in Scotland and overcome some of the difficulties.
  I am not sure whether the noble Lady, Lady Saltoun, intends to pursue the point. She has given us a chance to debate it by suggesting a whole new procedure with statutory instruments on schemes and projects. I hope that we will not need to make a change like this in the Bill on Third Reading but will see how the new arrangements work. After all, there is quite a lot to swallow and much to be done, if we consider that the Nature Conservancy Council will be disbanded at the end of March, only a few weeks away. We have much to do and I prefer to see how the new organisation and the new arrangements settle down. I hope that they will lead to much better feelings in the areas concerned rather than trying to make changes like this. However, I congratulate the noble Lady on allowing us to discuss the subject by putting down the amendment.
  The Earl of Dundee: My Lords, with this proposed amendment we are considering the relevance of the principle that there should be a right of appeal against designation of national parks or any project other than an SSSI. It could, I suppose, be argued against the amendment that it might lead to too much hard work for everybody. However, in this case where the designations will be few, that is hardly likely.
  Lord Campbell of Croy: It is not designations.
  The Earl of Dundee: My Lords, I stand corrected, it is not designations. Nevertheless it is a decision by the SNH to create national parks or something other than an SSSI. Even if what is proposed by the amendment were to lead to extra work, surely it would be unreasonable to contend that that is a more weighty matter than upholding the important principle of appeal.
  Another consideration is that if we do not have a system of appeal at all, we put far too great a burden on the SNH whose officers would have the unenviable task of enforcing an irrevocable decision which everybody might well live to regret. There was the
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  warning given by Winston Churchill about unelected bodies and institutions which are allowed to become too powerful and whose utterances become the solid masonry of unquestionable opinion and the padded cells of indubitable facts.
  On the other hand, it has been alleged that, while it may be in order to avoid such excesses and instead to maintain a sensible system of appeal in Scotland, it would not do at all to bring such well balanced arrangements south of the Border. If that fear really exists and we decide in favour of the amendment—as I hope we shall—it will not be the only time that north of the Border we have set a good example and done the right thing first.
  Lord Taylor of Gryfe: My Lords, we have had three speeches from the other side of the House and so far as I can gather none from this side. Perhaps I may intervene to say that I support the general view expressed by the noble Lord, Lord Grimond, but we are not dealing with SSSIs. We may return to the theme of his speech on Amendment No. 30 which deals specifically with SSSIs.
  In so far as Amendment No. 11 contains provisions for an appeals procedure on decisions of the new Scottish Natural Heritage, I support it. I have always felt rather nervous about it having powers. As the noble Lord, Lord Grimond, pointed out, a body appointed by the Secretary of State and responsible to no one has complete powers in these matters. That is a dangerous precedent.
  The amendment refers not only to the owners and occupiers of land but also to the local planning authority. I have always felt that local authorities should be involved in these decisions. They are the elected representatives of the people who are affected by the decisions. The local planning authorities in most parts of Scotland have, by agreement, adopted in their areas a land use strategy. Surely any decisions of the new body should be related in some way to the thinking and the attitudes of the local people in the development of the land use strategy. Therefore, in so far as it introduces the appeals procedure and the rights of the local authorities and local planning authorities, I hope that the amendment will be approved.
  Baroness Carnegy of Lour: My Lords, I have much sympathy for the amendment and for the amendment on SSSIs which was defeated in the House. It was a pity that the House did not allow the Government to go a little further and did not rule it out of order. That has been somewhat damaging to our discussion on the subject.
  It seems to me unfortunate to suggest that there should be an appeals system for matters other than SSSIs but not one for SSSIs. They are much the most likely to damage the interests of small people in agriculture and similar occupations. Justice demands that much more than this proposal. If we were talking about National Power that would be a different matter, but we are talking about any project other than SSSIs which seems to me to be a wide-ranging suggestion.

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  To talk of local planning authorities is not adequate. It may well be the strategic planning authority where there are separate councils, one of which is local, the other having strategic planning responsibilities. They should be included. Of course landowners, land users and land occupants should be asked about developments. That would not be setting a precedent; the Countryside Commission consults with landowners all the time about different projects which it undertakes. It seems to work quite well, although occasionally there is a squabble and there can be a compulsory purchase. However, I should not have thought that to adopt this amendment when there is none similar for SSSIs is the right way round. I think it is overdoing things; it would be enormously expensive and unwieldy. The amendment is a good vehicle for discussing the issue but it is not at all a good amendment.
  Lord Mackie of Benshie: My Lords, I support my noble friend Lord Grimond on the amendment. It was brought forward because unfortunately the Labour Party did not support the amendment on SSSIs. That is why this amendment was tabled. It is not just to protect the interests of the owners of deer forests but, as my noble friend said, of the man who cuts peat. I feel more deeply for his interests.
  This is a principle to which the Government must pay attention. I was having lunch today with a distinguished Scottish lawyer. He said that in his opinion an appeal to the European Court of Justice on the point of no appeal against decisions by an arbitrary appointed body would probably succeed. The Government would be wise to pay some attention to this notorious injustice.
  8 p.m.
  The Earl of Perth: My Lords, we are creating—and I welcome it—Scottish Natural Heritage. But let us be quite clear: we are also creating a quango. It may be, and I hope it will be, a good quango doing a wonderful job along the lines of the Bill. In general principle, I believe all noble Lords welcome it. However, we are giving it powers that can affect the lives and well-being, indeed, the very livelihood, of those who live in Scotland. Have they, after consultation, if the quango decides otherwise, anywhere to go to protect themselves? No. There is no appeal.
  Nor is there any appeal, it is argued, in England and Wales. Very well, England and Wales might well follow the lead of Scotland, as has so often happened. To argue that a lack of trust is being shown in the new body is totally unrealistic. It may well be that for five years it will behave well. But what about after five years? Who knows? I hope very much that your Lordships will go along with the amendment. It is vital to our confidence in the heritage body. It is a pity that we cannot also cover SSSIs. However, there is another method in Amendment No. 30 for tackling that matter. I ask the Government to recognise the importance of what we are asking.
  Baroness Strange: My Lords, I support the amendment of the noble Lady, Lady Saltoun. I stress
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  to my noble friend Lord Strathclyde that the Bill applies only to Scotland and to Scottish interests and has no effect on any other part of the United Kingdom. It seems to me that the clause is totally against the Arbroath declaration of independence and that to allow any body, however praiseworthy its aims, to take total power without any redress to the individual is an utter negation of personal liberty and freedom, and as such should be resisted by anyone who upholds democracy.
  Lord Pearson of Rannoch: My Lords, I should like to add to what the noble Lady, Lady Saltoun, said about Clause 5. To get an understanding of its sweeping powers one has to start with subsection (3), which allows Scottish Natural Heritage to undertake by itself almost any of the measures in subsections (1) and (2). So far as I can see those powers would allow the SNH to set up national parks without appeal and would certainly allow SNH to carry out control schemes for deer with or without the Red Deer Commission.
  It might be helpful if I say that I understand that the reason for such sweeping powers being included in the Bill is that SNH is to embody the powers of both the Nature Conservancy and the Countryside Commission as they were separately. When they were separate, they often used to squabble about things. Now they are being merged they are likely to be agreed about some highly undesirable objectives. Two of those objectives are setting up national parks and shooting huge numbers of deer. I cannot help feeling that an appeal procedure in the background would make them behave much better in regard to these issues and others mentioned by noble Lords. That is why I feel that some form of appeal is so appropriate.
  Lord Carmichael of Kelvingrove: My Lords, may I ask the noble Lord the Minister a question? We shall soon be discussing Amendment No. 30. It seems to me in retrospect a pity that these amendments were not grouped. We have really heard all the arguments for Amendment No. 30. I do not think we have missed any. I wonder therefore whether the Minister would consider grouping them. It is now Third Reading. It would assist expeditious control of business if that were done.
  Lord Campbell of Croy: My Lords, before the noble Lord sits down may I say that I think it is too late now? I agree that it would have been better if the two had been grouped, but it would be a little unfair. All I suggest is that we have a self-denying ordinance and do not repeat ourselves on Amendment No. 30.
  Lord Strathclyde: My Lords, if I may join in this debate, Amendment No. 30 deals with SSSIs and an appeals procedure, and I look forward to, and relish, the discussion we shall have on that amendment. Amendment No. 11 has nothing to do with SSSIs, although it has an appeals procedure. What I hope to explain in the course of the next few minutes is that the amendment is totally unnecessary and that noble Lords have misunderstood the provisions of Clause 5.

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  There is nothing to get worried about, and I hope that the noble Lady, Lady Saltoun, will withdraw her amendment.
  The type of projects which we intend SNH to carry out under the provisions of this clause are very much of the type already undertaken by the Countryside Commission for Scotland in relation to countryside matters under Section 5 of the Countryside (Scotland) Act 1967. Indeed, the clause is very largely an updating of the provisions of Sections 5 and 6 of the 1967 Act and does not propose any new mechanisms for undertaking projects. There is no question of it contravening the declaration of independence of Arbroath, which my noble friend Lady Strange mentioned. At least, I hope not.
  SNH, like the Countryside Commission for Scotland, would be quite able to carry out projects on land which it owned itself. In the case of land belonging to someone else it would obviously require the agreement of the landowner concerned before SNH could implement the proposals for the particular projects. It might be useful if I attempted to explain what might be involved in such schemes. Many similar schemes undertaken by the Countryside Commission for Scotland in the past have been concentrated on urban fringe areas, notably the Kilpatricks and Clyde-Calders projects, and have made a valuable contribution to the regeneration of the countryside around towns. Certainly, we would wish this sort of work to continue with the creation of SNH.
  This is a completely different type of arrangement to an SSSI. It is intended that these development projects should in some way improve upon an existing situation and so they are not, as such, designations geared purely to the conservation of an area, as is the case with SSSIs. We had a valuable discussion on Report concerning the scope of Clause 5, and I think it would be useful to emphasise some of the points which were made then in order to reassure your Lordships as to how the clause will operate.
  Clause 5 does not empower Scottish Natural Heritage to set up and run any kind of project which might be considered appropriate to achieving its general aims and purposes. It is deliberately restricted to projects which will demonstrate new approaches to natural heritage issues. Emphasis is to be on experimentation and creativity and this is achieved by requiring any proposals prepared by Scottish Natural Heritage to meet both of the criteria specified in subsection (2). Thus, while a proposal may involve the application of established, as well as entirely innovative methods, concepts or techniques, it must also be designed to show the appropriateness of the project to the area in question or to similar areas. If it does not overcome that second hurdle, because, for instance, an identical project has already been undertaken in a similar area, the project is not one with which Scottish Natural Heritage may get involved.. I hope that I have said enough to illustrate the restrictive nature of Scottish Natural Heritage's powers under this provision.
  Turning to the question of Scottish Natural Heritage's powers under Clause 5 vis-é-vis landowners, in most instances where the Countryside
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  Commission for Scotland has used such schemes previously, the agreement of the landowner has been very easy to obtain since the land concerned has generally been of little value and not in any gainful use. I anticipate that the same will be done for any order put forward by SNH. Consequently, the procedures proposed in this amendment are not necessary. In the unlikely event of SNH wishing to pursue a project where the landowner does not consent, it could in theory do this by means of compulsory acquisition of the land, subject to approval by the Secretary of State. It is very unlikely that such a situation would arise for the reasons I have just explained; but if it did, such action would be subject to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 which allows for objections to be made to the compulsory purchase order and a public local inquiry to be held if necessary. This in itself is sufficient protection for landowners and local people in the event of a dispute.
  Noble Lords may be anxious about the apparent scope of subsection (3) of Clause 5. I can give a categorical assurance on this point. Subsection (3) merely confers a power on Scottish Natural Heritage to take measures to implement its proposals. This does not affect the rights of third parties. More specifically, it does not mean that Scottish Natural Heritage is exempted from complying with any requirement under the general law which might be applicable to the measures that it proposes to take.
  If I may use an analogy, subsection (3) is like part of the memorandum and articles of association of a limited company. A company can do only what it is expressly empowered to do by those documents. Similarly, a statutory body such as Scottish Natural Heritage can only have functions conferred on it by statute. A company may be empowered by its memorandum and articles of association to operate licensed premises, but to do that it must first acquire suitable property, by agreement, and then obtain a liquor licence. Likewise, subsection (3) empowers Scottish Natural Heritage to implement its proposals for a development project or scheme. However, before doing so it must obtain any planning permission that might be necessary, and also the consent of the owner of the land on which the measures are to be taken. Failing such consent, Scottish Natural Heritage's only alternative is to acquire the land and, as I have already mentioned, there are already adequate procedures laid down to protect the landowner's interests in this situation. There is nothing in Clause 5 which will override these general principles. Scottish Natural Heritage has no other powers available allowing it to carry out a development project or scheme against the owner's wishes. There are some specific objections to the terms of the amendment, for example that the appeals procedure is unnecessarily heavy-handed. I shall not delve any further into that.
  The current provisions in the 1967 Act on which Clause 5 is modelled have operated successfully for more than 20 years and I am not aware of their causing any difficulty so far as concerns landowners. I can assure noble Lords that, as a matter of law, the

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  amendment is not necessary to limit the powers of Scottish Natural Heritage under this clause and so I trust that the noble Lords will withdraw it.
  I shall respond to the fear expressed that Scottish Natural Heritage could use the powers under this clause to introduce national parks. That clearly would not be possible under the terms of this clause. It is for the Government and not for Scottish Natural Heritage to make a decision on national parks. Scottish Natural Heritage can advise on such matters and that would be expected; but it is for the Government to make such decisions. I hope that I have made myself clear.
  Lord Pearson of Rannoch: My Lords, I am grateful to the noble Lord for giving way, but that is not what the clause states. The clause says:
  "SNH may undertake … by itself … measures to implement the proposals mentioned in subsection (1) above".
  Subsection (1) refers to a,
  "scheme which … fosters understanding or enjoyment of the natural heritage of Scotland".
  That is all the clause states. That is the only way one can read it. It does not mention other legislation.
  Lord Strathclyde: My Lords, Clause 5(2) (a) qualifies that by stating that proposals shall,
  "in relation to that area involve the application of new or developed methods, concepts or techniques".
  National parks would hardly fit into the criteria of Clause 5(2) (a) or (b). I hope the noble Lord will accept that point.
  Lord Pearson of Rannoch: I must confess that I have not had time to examine that point. However, on the other hand, the provision is designed to illustrate the appropriateness of a project. Certainly the scheme we are talking about could relate to our old friend, the mass culling of deer. The clause seems to be very powerful. It certainly requires some form of simple appeal which the Secretary of State himself can decide.
  Lord Burton: My Lords, I take it that if a cycle track or a long distance path were desired, the heritage body would be able to implement such facilities without any appeal.
  Lord Strathclyde: My Lords, as I have explained, SNH needs to obtain the agreement of the landowner. I understand that as a matter of general law nothing more is needed in this clause. Clause 5(3) does not allow Scottish Natural Heritage to do anything unlawful. Therefore SNH cannot do things which break the general law. This measure is not an overriding power on anything that Scottish Natural Heritage would wish to do.
  Lady Saltoun of Abernethy: My Lords, in spite of all that the noble Lord, Lord Strathclyde, has said, it still seems to me that Clause 5 gives SNH considerable powers. If the appeals mechanism that we have suggested is heavy-handed, it can possibly be amended at a later stage. I still stand on my premise that to create a quango—SNH is a quango—without an appeals mechanism for any of the projects that the quango may introduce which may affect people's lives and livelihoods is intolerable. I accept that there is an
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  appeals mechanism for compulsory purchase, but there are all kinds of other things which the body may wish to undertake for which there is no appeals mechanism. In view of the amount of support that this amendment has gained on all sides of the House, and as I am still not convinced about the matter, I shall ask the opinion of the House.
  8.16 p.m.
  On Question, Whether the said amendment (No. 11) shall be agreed to?
  Their Lordships divided: Contents, 65; Not-Contents, 45.

  Division No. 3

  CONTENTS

  Acton, L.

  Margadale, L.

  Allenby of Megiddo, V.

  Masham of Ilton, B.

  Astor of Hever, L.

  Massereene and Ferrard, V.

  Boardman, L.

  Monson, L.

  Brightman, L.

  Napier and Ettrick, L.

  Burton, L.

  Newall, L.

  Cairns, E.

  Norfolk, D.

  Charteris of Amisfield, L.

  Northesk, E.

  Cochrane of Cults, L.

  Onslow, E.

  Craigavon, V.

  Palmer, L.

  Craigmyle, L.

  Pearson of Rannoch, L. [Teller.]

  Dulverton, L.

  Dundee, E.

  Perth, E.

  Elliot of Harwood, B.

  Rankeillour, L.

  Erroll, E.

  Rees, L.

  Ezra, L.

  Renton, L.

  Gisborough, L.

  Rochester, L.

  Glenarthur, L.

  Roxburghe, D.

  Greenway, L.

  Russell, E.

  Grey, E.

  Saltoun of Abernethy, Ly. [Teller.]

  Grimond, L.

  Grimston of Westbury, L.

  Soulsby of Swaffham Prior, L.

  Grimthorpe, L.

  Stodart of Leaston, L.

  Hacking, L.

  Strange, B.

  Hollis of Heigham, B.

  Swansea, L.

  Hooson, L.

  Taylor of Gryfe, L.

  Jeffreys, L.

  Thomson of Monifieth, L.

  Kimball, L.

  Tordoff, L.

  Kinloss, Ly.

  Vestey, L.

  Lawrence, L.

  Winchilsea and Nottingham, E

  Lindsey and Abingdon, E.

  Winstanley, L.

  Lyell, L.

  Winterbottom, L.

  Mackie of Benshie, L.

  Woolton, E.

  Mancroft, L.

  NOT-CONTENTS

  Arran, E.

  Jenkin of Roding, L.

  Astor, V.

  Kagan, L.

  Belstead, L.

  Layton, L.

  Blatch, B.

  Lockwood, B.

  Blease, L.

  Long, V. [Teller.]

  Blyth, L.

  Mersey, V.

  Borthwick, L.

  Molloy, L.

  Brabazon of Tara, L.

  Mountevans, L.

  Brougham and Vaux, L.

  Nicol, B.

  Butterworth, L.

  Parry, L.

  Caithness, E.

  Prior, L.

  Campbell of Croy, L.

  Quinton, L.

  Carnegy of Lour, B.

  Reay, L.

  Cavendish of Furness, L.

  Romney, E.

  Clanwilliam, E.

  Skelmersdale, L.

  Cumberlege, B.

  Strathclyde, L.

  Davidson, V.

  Strathmore and Kinghorne, E.

  Denham, L. [Teller.]

  Taylor of Blackburn, L.

  Galpern, L.

  Thomas of Gwydir, L.

  Graham of Edmonton, L.

  Trumpington, B.

  Henley, L.

  Wade of Chorlton, L.

  Hesketh, L.

  Wynford, L.

  Hives, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  8.25 p.m.
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 12:
  After Clause 5, insert the following new clause:
  ("Vehicle restriction orders
  .—(1) For the purpose of preventing damage to the natural heritage, SNH may, by order (hereinafter referred to as a "Vehicle Restriction Order") restrict the use of all-terrain or other vehicles on land. An order made by SNH under this section shall be submitted to the Secretary of State and shall not have effect unless confirmed by him.
  (2) Such an Order shall define—

  (a) the area of land within which the use of such vehicles is to be restricted;

  (b) the restrictions which shall apply; and

  (c) the reasons by which SNH were motivated to make the order.

  (3) An order made under subsection (1) above may relate only to land which is—

  (a) a nature reserve within the meaning of section 15 of the National Parks and Access to the Countryside Act 1949 or an area which is subject to an agreement under section 15 of the Countryside Act 1968 (Areas of Special Scientific Interest);

  (b) a National Scenic Area designated under section 262C of the Town and Country Planning (Scotland) Act 1972;

  (c) an area in respect of which SNH has prepared proposals for a development project or scheme under section (5) above; or

  (d) a long-distance route within the meaning of section 54 of the Countryside (Scotland) Act 1967.

  (4) Subject to subsection (5) below, no person shall use all-terrain or other vehicles on land defined in an order made under subsection (1) above in contravention with restrictions defined therein.
  (5) Subsection (4) shall not apply if—

  (a) the use of the vehicle was made with the written consent of SNH, or

  (b) the use of the vehicle related to an emergency, particulars of which were notified to SNH as soon as practicable after the emergency.

  (6) A person who contravenes subsection (4) above, shall be liable—

  (a) on summary conviction, to a fine not exceeding level 5;

  (b) on conviction on indictment, to a fine.

  (7) An order made under this section shall be registered either—

  (a) in a case where the land affected by the order is registered in that Register in the Land Register of Scotland; or

  (b) in any other case, in the appropriate Division of the General Register of Sasines.

  (8) The provisions as to the making, confirmation, coming into operation and validity of orders in Schedule 3 to the Countryside (Scotland) Act 1967 shall also apply to orders made under this section.").
  The noble Lord said: My Lords, Amendment No. 12 is to insert a new clause. Perhaps it would be helpful if we took with this Amendment No. 41.
  This is rather a long amendment. I am sure the Minister will be well aware of its purpose, and I am anxious to get his point of view on it. The insertion of this new clause would allow Scottish Natural Heritage to make vehicle restriction orders because there are
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  increasingly numerous and significant problems which can be controlled in no other way. To use all-terrain vehicles, ATVs, or off-the-road four-wheel-drive vehicles, has been of enormous value in countryside and estate management, in deer management, for transportation of sportsmen to lochs and river banks, and for other aspects of countryside work. They have all been assisted through the use of such vehicles, but there has been a downside. This has brought significant problems to certain areas of land. Frequent use across fragile terrain, for instance high on the hill or across wet and peaty areas, can result in considerable damage. Ongoing erosion disturbs natural communities, and causes visual scarring.
  Vehicle restriction orders are by no means intended to prevent the use of ATVs but to regulate their use within the environmental constraints of various areas, and to ensure that they are used within the resilience of the vegetation, the soils and the physiography of each site.
  The more I look at the amendment, the more I become conscious of its rather wordy nature, but it was given to me with the best of intentions. I should like the Minister to explain how the Government see the Scottish Natural Heritage resolving the problem of off-road vehicular uses without the use of some vehicle restriction orders given the difficulties of securing agreement with landowners and other land management interests and given the significant problems highlighted by the recent case in Strath Dearn.
  There is a wider issue. The Minister must be aware that in more populous parts of the country close to large urban areas there are complaints about too much use of mountain bikes and motorbikes, and certain areas are being very severely affected by them. This amendment is to try to give the Government some idea of the way we think a restriction order could apply. I beg to move.
  Lord Mackie of Benshie: My Lords, I think I know something about the case that prompted this amendment, which is the case of a proprietor of a river in the far North. He used multi-wheeled vehicles to take his fishing guests and fishing tenants—and the income was very important—up to the top of the river. That was causing some damage. I am not taking his part or anyone else's, but merely setting out the conflicting interests in this case. It reached such a point that both sides drove their heels in. At one point he said he would make a branch road. He offered solutions, and the solutions were turned down repeatedly. I do not know what the ultimate outcome was, but this is a perfect example of the need for some form of arbitration procedure or some form of appeal. I do not know how the issue was resolved but I know that both sides dug in their heels.
  The proprietor had a very strong case in that many of his tenants, who were paying rent and maintaining employment on the estate, were elderly chaps. They could not possibly walk to the head of the river where they fished and where some of the best beats were. That was one case of the type which we considered in relation to the other points and I hope that the Minister will address both sides of the problem.
  Lord Burton: My Lords, I noticed that in moving the amendment the noble Lord appeared to think that the amendment covered mountain bikes. I wonder whether that is the case because they are not mechanical vehicles. I believe that it is highly desirable that they should be included because they are among the most destructive of vehicles. They have a narrow wheel which makes a track down the hill. The water starts running in the track and then one has a burn running down the road. Therefore I hope that mountain bikes will be covered by the amendment but I am not sure that the proposed wording covers them.
  Lord Carmichael of Kelvingrove: My Lords, with the leave of the House perhaps I may explain that I raised the question of mountain bikes because wheeled traffic on hills is a growing problem. I recognise that they could be covered without causing too much disturbance to anyone. I noted the point made by the noble Lord, Lord Mackie of Benshie. The matter has to be handled very carefully. That is why I asked the Minister for advice. We have seen in the popular press that that is an activity which is increasingly becoming a worry to those in the countryside.
  8.30 p.m.
  Lord Strathclyde: My Lords, I am somewhat surprised to see the amendment being tabled today. I know that the use of vehicles in an off-road situation is of concern to some people in particular areas and can cause erosion and create noise and other nuisances. Nevertheless, I regret to say that the Government have not previously been advised of such anxiety by our statutory adviser, the Countryside Commission for Scotland. I should have thought that if there was a pressing or vital need for the introduction of a provision such as the vehicle restriction order proposed here the Countryside Commission for Scotland might well have drawn it to the attention of the Government on a previous occasion. The commission's recently published report reviewing the conservation and management of the mountain areas of Scotland—which is the most authoritative recent statement on these matters—does not analyse the problem or propose the solution set out in the amendment.
  I have some difficulty in accepting the detail of the provisions. The Government have stressed that SNH will build upon the voluntary principle developed in nature and landscape conservation over many years. To instigate a system of the sort envisaged by the amendment which allows the imposition of an order without offering the opportunity of agreement with the landowners concerned would go against that essential principle and consequently would damage much of the good will which has been established in such areas.
  I also feel that much consultation with all concerned and further investigation of the problem would be required before we could seriously consider a statutory provision along the lines proposed in the amendment. To rush through legislation of this kind is obviously not desirable, nor does it appear to be necessary. It is important that if controls were to be imposed they should be enforceable. Further
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  consideration would be needed on how to achieve that, and quite clearly that is a difficult aspect of the proposal.
  In the light of those comments I hope that the noble Lord will see fit to withdraw the amendment.
  I do not wish to detract in any way from what the noble Lord, Lord Mackie of Benshie, said. I was not sure whether he was in favour of or against the proposals of the noble Lord, Lord Carmichael. I rather suspect that he was against them. He made other points concerning SSSIs and we shall come to that issue.
  Lord Mackie of Benshie: My Lords, before the Minister sits down perhaps I may explain that my point was that the case that I mentioned illustrates the need for some form of appeal or arbitration.
  Lord Carmichael of Kelvingrove: My Lords, I am satisfied that the Minister has got the message from those who took part in the discussion. I am surprised that he was not aware of the problem. I believe that the problem is particularly severe in the Lake District, and it is a growing problem in some parts of Scotland.
  I can see the difficulty in rushing legislation through. I am sure that he is now aware that this is a problem which, while it may not be enormous now, is likely to grow. The more accessible the countryside becomes the more people will take four-wheel drive vehicles out to the hills.
  I hope that the Minister will take the proposal back and have it put in the department's archives so that it can be pulled out when appropriate. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 6 [Powers of entry]:
  Lord Strathclyde Lord Strathclyde moved Amendment No. 13:
  Page 4, line 42, at end insert:
  ("( ) the making of an access order by SNH under Part II of the Countryside (Scotland) Act 1967;").
  The noble Lord said: My Lords, in moving Amendment No. 13 I should like to speak also to Amendments Nos. 14 to 26, 31 to 36, 39 and 40. The amendments result from a number of undertakings that I gave when we discussed the provisions of Clause 6 both in Committee and on Report. The amendments fulfil those undertakings.
  Essentially they concern the rights of entry of Scottish Natural Heritage and rectify several anomalies. I am quite happy to speak to specific amendments if requested. Generally speaking, I believe that they improve the Bill. We have brought together the different rights of entry in different parts of the Bill. We have extended the period of notice from seven days to 14 days. We have also provided that where practicable SNH should contact the owner. I hope that that will suffice. I beg to move.
  Lady Saltoun of Abernethy: My Lords, I am very grateful to the noble Lord for the amendments, which fulfil his undertakings given at Report stage.
  On Question, amendment agreed to.
  Lord Strathclyde Lord Strathclyde moved Amendments Nos. 14 to 26:
  Page 5, line 2, leave out ("by virtue of this Act by SNH") and insert ("by SNH by virtue of—

  (a) Part II of the Countryside (Scotland) Act 1967; or

  (b) this Part of this Act;").

  Page 5, line 4, leave out from ("by") to ("may") in line 5 and insert ("SNH").
  Page 5, line 10, leave out ("seven") and insert ("fourteen").
  Page 5, line 11, at end insert ("and, where practicable, to the owner").
  Page 5, line 14, after third ("the") insert ("soil or"). Page 5, line 24, at end insert:
  ("(5A) Subject to subsection (5B) below, if the sheriff is satisfied that there is a reasonable ground for entry upon any land which a person is entitled to enter in pursuance of this section and—

  (a) that admission to that land has been refused;

  (b) that such refusal is apprehended; or

  (c) that the land is unoccupied or the occupier is temporarily absent,

  then the sheriff may grant a warrant authorising that person to enter t he land, if necessary using such force as is reasonable in all the circumstances and a warrant issued in pursuance of this section shall continue in force until the purpose for which the entry is required has been satisfied.
  (5B) Without prejudice to subsection (3) above, in any case to which paragraph (a) or (b) of subsection (5A) above applies the sheriff shall not grant a warrant unless he is satisfied that a notice of the intended entry has been served on the occupier of the land and, where practicable, on the owner not less than fourteen days before the demand for entry was made.").
  Page 5, line 26, after ("persons") insert ("and such equipment").
  Page 5, line 27, leave out ("premises") where it first occurs and inset ("land upon").
  Page 5, line 27, leave out ("premises") where it second occurs and insert ("land").
  Page 5, line 28, leave out ("premises or) and insert ("land from").
  Page 5, line 28, leave out ("them") and insert ("it").
  Page 5, line 29, leave out ("them") and insert ("it").
  Page 5, line 33, at end insert:
  ("(7A) It shall be the duty of SNH to compensate any person who has sustained damage by reason of—

  (a) the exercise by a person authorised by SNH of any powers conferred on him by virtue of this section; or

  (b) the failure of a person so authorised to perform the duty imposed on him by subsection (6) above,

  except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person's entitlement to compensation in pursuance of this subsection or as to the amount of the compensation shall be determined by arbitration.").
  On Question, amendments agreed to.
  Clause 8 [Grants and loans]:
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 27:
  Page 6, line 7, at end insert (", including payments to persons or bodies outwith Scotland whose purpose assists SNH in attainment of these aims and purposes.").
  The noble Lord said: My Lords, the amendment seeks to ensure that Scottish Natural Heritage will continue to provide grant aid for bodies operating in the whole of Great Britain or the United Kingdom, or to international bodies with objectives and aims parallel to those of SNH. In that way we can be certain
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  that SNH will be able to continue important work currently carried out both by the NCC and the Countryside Commission for Scotland in supporting bodies such as the Royal Society for the Protection of Birds, which has a UK remit, and agencies such as the International Union for the Conservation of Nature and Natural Resources (a component of UNESCO) and the European federation of nature and natural parks.
  The amendment will also strengthen the resolve and statutory ability for co-operation through the Joint Nature Conservation Committee and statutory conservation agencies in Britain. It will assist in giving clear legitimacy to cross-border projects. I beg to move.
  Lord Strathclyde: My Lords, there is no need for the amendment. Scottish Natural Heritage will be a Scottish body dealing with Scottish issues. Its general aims and purposes, as listed in Clause 1(1) will relate to the natural heritage of Scotland. Under the provisions of Clause 8(1) as drafted, SNH will be able to make a grant or loan to any person or body which does anything conducive to its general aims and purposes. There is no restriction on such grants or loans being made only within Scotland. There may well be situations where a British or international organisation wishes to carry out a project which is helpful to the natural heritage of Scotland in some way or another and thus conducive to the general aims and purposes of SNH. In those circumstances, SNH would be perfectly entitled to offer it a grant or loan. I am sure that that will satisfy the noble Lord.
  Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for that clarification. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 10 [Directions by Secretary of State]:
  Lord Strathclyde Lord Strathclyde moved Amendments Nos. 28 and 29:
  Page 7, line 20, at beginning insert (Subject to subsection (3) below,").
  Page 7, line 24, at end insert:
  ("(3) The Secretary of State shall not give directions under this section in respect of functions conferred on SNH by virtue of section 4(4) of this Act.").
  On Question, amendments agreed to.
  Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 30:
  After Clause 10, insert the following new clause:
  ("Reviewing of existing SSSI's
  . — (1) Within 5 years from the appointed date in section 12 below, it shall be the duty of SNH to conduct a review of all Sites of Special Scientific Interest designated at that date, particularly as regards—

  (a) potentially damaging operations;

  (b) consented activities;

  (c) management agreements;

  (d) Nature Conservation Orders; and

  (e) compensation arrangements,

  within the meaning of the Code of Guidance for SSSI's and the Wildlife and Countryside Act 1981.
  (2) On completion of its review, SNH shall publish a report on the existing SSSI's, containing for each SSSI a recommendation whether the designation of that area as an SSSI shall be continued or withdrawn.
  (3) Where, following publication of the report under subsection (2) above, SNH receives objections from the owners or occupiers of the land or from the local planning authority in whose area the SSSI is situated as to the continued designation of their land as an SSSI within a period of 6 months from the notification of the proposals, and where, after considering the said objections SNH remains satisfied as to the merits of the designation, it shall refer the matter to the Secretary of State.
  (4) The Secretary of State shall—

  (a) cause a local enquiry to be held; or

  (b) afford any person or any representative of SNH, the owners or occupiers of the land and the local planning authority an opportunity of being heard by a person appointed by the Secretary of State for the purpose.

  (5) On considering any representations made and the report of the person appointed to hear those representations under subsection (4), the Secretary of State may either—

  (a) confirm the continued designation of the land as an SSSI; or

  (b) make an order revoking or amending the designation, as he thinks appropriate in the light of the report, representations or objections.").

  The noble Lord said: My Lords, this amendment seeks to place a duty on SNH to review all sites of special scientific interest which have been already designated on the date SNH comes into being. SNH would complete and report on this review within five years. If owners or occupiers or the local planning authority are not satisfied with the result of that review, this amendment will grant them a right of appeal.
  During the passage of this Bill in your Lordships' House my noble friend the Minister has made more than one statement to the effect that he agrees the Nature Conservancy has been insensitive and that there has been something essentially wrong with the way the Nature Conservancy has operated in the past. He has asked us to trust the new SNH not to behave in a similar fashion in future. Yet as I understand it, all the present staff of the Nature Conservancy, and indeed the Countryside Commission, are being offered employment in the new SNH. The fact that they will in future be based in Scotland is not very reassuring as to their future attitudes, which may well stay the same as their recent attitudes.
  The same narrow scientific minds will be applied to the unfathomable mysteries of nature, and it is inconceivable they will always be right. I happily concede that under the new board of SNH, particularly under the guidance of its new chairman, SNH may make many fewer mistakes than did the NCC in the past. As it happens, this amendment does not seek to set up an appeal against SSSIs designated after SNH comes into being; it seeks to re-examine the past which the Minister admits has been unsatisfactory.
  I understand that SNH may be intending to conduct its own review of the designations and restrictions made over the past seven years or so. Surely, that must be appropriate, but many of the same scientists who insisted on the designations and
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  restrictions in the first place will now be involved in their revision. It will not be easy for them to admit that they got it wrong. In addition, some restrictions which may have seemed reasonable seven years ago may have become inappropriate in the meantime; but that will not be easy to admit either.
  I know that SNH is setting up a new science research and development board which may help SNH towards objectivity in this regard; but I cannot help feeling that it would be very helpful to them to have the knowledge in the back of their minds that if the landowner, occupier or local authority was still not satisfied with their judgment, at the end of the day they could be taken to appeal. I am sure that in those circumstances the appeals would be few and far between and Scotland's natural heritage would be all the more healthy for that. I beg to move.
  Lady Saltoun of Abernethy: My Lords, I should like to give an example of the consequences of the Nature Conservancy Council's intransigence regarding the management of an SSSI.
  In June 1986 part of Invereshie Farm near Kincraig in Inverness-shire was notified as an SSSI. This was confirmed in 1987, and the Nature Conservancy specified certain operations as damaging. In 1989, a further and overlapping part of Invereshie Farm was notified as an SSSI on the grounds that it was marsh and mire. When the owners pointed out that it was in fact hard gravel, the NCC changed their grounds to "semi-natural woodland and the habitat of a rare biting insect". It is perhaps worth observing here that both the woodland and the rare biting insect were existing very happily before the NCC notified the SSSI and the potentially damaging operations began.
  On February 4th and 5th 1990 the River Feshie burst its banks and did considerable damage to both forestry and farmland. The NCC refused to allow the owner to take the necessary steps to reinstate the river to its pre-1990 course. While argument was going on, further damage occurred to the river banks due to flooding later in the year. The February flood reached the farm steading. The boathouse and a chalet at Loch Insh Watersports received damage; the public highway was damaged; at Lynchat there was damage to the railway line, and to roads and bridges in the vicinity. Lynchat and Kingussie sewage works were flooded and the waters came right up to Kingussie School. If the only works that the NCC will agree to are carried out and steps are not taken to restore the river to its proper course future flood damage may be even more severe, but the owners have no option but to sign a management agreement with the NCC, insure so far as possible against flood damage in case they are unable to prove consequential damage against the NCC and negotiate as favourable an agreement in terms of compensation as possible.
  It is also interesting that before the land was flooded, there was an abundance of varied bird life: Hoopus swans, rare wild duck and others. This is diminishing as the cessation of grazing and arable farming has destroyed a lot of the birds' sources of food. The Secretary of State, when appealed to, could do nothing because there was no right of appeal against the conditions imposed by the NCC.

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  I have read a letter sent to the noble Lord, Lord Strathclyde, by Magnus Magnusson, chairman of NCC Scotland and chairman-designate of SNH, virtually saying: "Please do not let anybody make nasty rules about the rights of appeal. We know we have been a bit naughty in the past, but if we promise to try to be good boys in the future please give us a chance". The formal appeals procedure, which he says the nine-month consultation period represents, is about as much use as the right of Little Red Riding Hood to appeal to the Wolf, because SNH will be judge and jury in all matters. As for the law having to be amended in England and Wales, that is the most feeble argument I have ever heard. Let it be amended.
  In an article on 12th January in the Daily Telegraph the noble Earl, Lord Cranbrook, chairman-designate of English Nature—the English branch of NCC—was quoted as having said that he would he wary of giving the NCC the absolute power to protect important areas of the British Isles as the British, with their sense of justice, would then demand an appeal system. I am demanding an appeal system, because, as I said before, it is monstrous to create this quango, of which the NCC would be a part, which is an appointed body, not democratically elected, and give no right of appeal against arbitrary and very often ill-informed decisions which not only have the reverse effect to that which they are intended to have, but also cause extensive and dangerous damage to public and private property, and also possibly destroy the livelihoods of the people who live in the area.
  I appeal to noble Lords on all sides of the House to support this amendment in the name of freedom and democracy.
  8.45 p.m.
  Lord Stodart of Leaston: My Lords, I find myself in a certain amount of difficulty because I am a very old friend of Sir Magnus Magnusson—if that is the correct name to use. The last thing I want is to give the impression that I want to give other than a fair wind for the body over which he is going to preside. I am the last person to suggest that the NCC, whose decisions we are now asking him to review, have not had a very important part to play, and that on many occasions I think they have done well. There are many instances of excellent co-operation, due primarily I think to the tactical approach of the NCC's representative. After all, diplomacy is crucial if a farmer is to be persuaded to stop farming part of his land in a way to which he has learnt it will best respond in return for an unknown amount of compensation. Things get very much worse if in response to the farmer's misgivings he is told—I do not say it has happened all that often, but it has happened occasionally—that, whether or not he likes it, this is how it is going to be.
  Sadly that is what has happened in what I hope is only a minority of cases. I suppose the effect on the NCC and attitudes toward it is equivalent to that felt by a lady who ran a successful hotel in Scotland. She said to me, "One bad meal takes 50 good ones to undo the damage".
  I want to give your Lordships two examples of an area where I think a review is badly needed. First, it is
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  needed on the Island of Stroma off the coast of Caithness which is 1,000 acres in all. One day the whole island was designated as an SSSI. The reseeding which the farmer wanted to do was declared to be impossible. There was an obvious loss of income and although the area under the SSSI was ultimately reduced from 1,000 to 340 acres, the loss of income as calculated by the North of Scotland College of Agriculture, which is a fairly expert body, came to £14,500 a year. The NCC offered £6,500, then £7,800 and ultimately £12,000, five years after the notification, the farmer having to pay all the costs involved.
  Secondly, there is what I suppose may be called the notorious Alcock case in Aberdeenshire. In a way this is perhaps the most ironical example. A farmer who was enthusiastic about wild flowers and was doing his own thing, keeping cattle off the hill at the relevant time of year so that the orchids could grow, was so enthusiastic that he did not demur when a friend asked if he might bring someone from the NCC, which was bound to be interested in what the farmer was doing. Indeed it was. No longer was he able to do his own thing. An SSSI designation was slapped on the land with, to use his own words, "a whole list of restrictions which prohibit virtually all agricultural and most other operations on the land involved".
  Of course there was an argument about compensation. I am not aware whether or not the figure has yet been settled but according to him the figure will fall well short of the one that the farmer originally suggested. In his words, "The strings attached to conservation projects can have the misfortune of turning into nooses". The case formed part of a farming programme on the Scottish radio wavelength. The other half of the programme was devoted to an experience with an SSSI in Berwickshire which had gone like a charm.
  I come back to what I believe is the secret of the whole matter; namely, the approach by the NCC in the old days. As I said, I think—at least I hope—that it is only in a minority of cases that injustice is done. But one should not neglect the minority. That is why I strongly support the principle of appeals.
  This amendment asks for a review of existing SSSIs. It may well be a stepping stone—I hope that it is—for a review of all future designations by the Secretary of State. As I said at Report stage, it seems to me that this is a golden opportunity for the Secretary of State for Scotland. There is a totally new set-up. Peterborough will no longer have influence. There will be the Secretary of State and all his departments—including environment and agriculture —with their Ministers working on the same corridor as himself.
  I recall that when I served in that office one almost hoped that there might be a dispute because when there was a dispute one was invited into the Secretary of State's office to discuss the matter over an excellent beverage before the Secretary of State came to his decision. That is unlike what may happen here, where I can well see difficulties arising and Ministers who say, "Don't let us have this sort of thing. We shall have to go across to the Department of the Environment and argue it out".

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  We have the golden opportunity to take a step forward. I profoundly hope that we shall do so.
  Baroness Nicol: My Lords, I shall not speak for very long on this amendment. After all, our decision was made on the matter of appeals to the Secretary of State and I am rather surprised that the debate has been reopened. I believe that review and monitoring is an essential part of any sensible SSSI programme. In fact that happens. It will be seen from the reports of the Nature Conservancy Council that SSSIs are denotified. That means that for whatever reason they are no longer suitable to maintain in that category. Therefore I do not object to the suggested review.
  However, I question whether it is realistic to ask that body to complete a review in five years. When the Wildlife and Countryside Act came into force in 1981, as part of that exercise the Nature Conservancy Council had to renotify all the SSSIs that had been designated up to that time. It took nine years. That was because the resources were not available to it. There was neither the money nor the manpower to make it possible.
  If the Government are saying that they will make money and manpower available to enable Scottish Natural Heritage to complete its review in five years, I should have no objection to it. Failing that, it is not a very reasonable programme to suggest. I hope that the Government will make clear in their response that they will either refuse the review, offer longer time or offer more money.
  Lord Burton: My Lords, I should like to make two short points. First, I believe that there is a need for a re-designation because in many cases it has never been specified—the grounds are unknown to anyone else, so far as I can see—why an area has been designated or indeed what it is intended to protect in that particular area. I know of one SSSI which affected me. I tried my best to find out what was wanted or what was involved and could get no information. My noble friend Lord Stodart raised that point. It is important that the designation is explained carefully. One will have the co-operation of the owners in most cases when they realise that something needs protecting. That applies in Caithness at the moment, where there is a great deal of unhappiness about some of the areas specified. No one knows why an area is to be protected. I was at a very well attended meeting of a FFWAG (farming, forestry and wildlife advisory group) there. It was a well attended meeting. The NCC was supposed to tell the meeting why such a designation had been made and what was being done. It was deplorable to find that we could not get any answers from it. I think the answer was that the NCC itself did not know.
  The other point which I should like to raise is that I am not quite sure whether designations under the ancient monuments legislation are involved in any way. I should have thought it rather important that any heritage body should look after those.
  A particular piece of land caused great excitement because it was believed that it contained a number of circles. Having received a map I went to investigate
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  and discovered that the Pony Club had been schooling its ponies. I am fairly confident that another recent case of a circular feature is on land where cattle have been feeding in seven metre circles. In spite of my suggestion that the council should investigate before designating, designation is to continue. Such matters should be the responsibility of our heritage body and not be left to the few good ladies of Edinburgh.
  9 p.m.
  Lord Grimond: My Lords, the amendment was admirably introduced and it is clear. I believe that it will appeal to your Lordships' House. I agree with the noble Lord, Lord Burton, that the areas of designation are far from clear. Far too large an area of the Highlands has been designated and therefore the whole procedure has been devalued. Surely it is essential to reconsider the situation. If any noble Lords are in doubt, that appears to be the belief of the new body. It proposes to review the procedures and is bound to review the effect on different areas. Therefore, we are merely putting into legislation directions that the new body will welcome.
  It was rightly said by the mover of the amendment, the noble Lord, Lord Pearson, that scientists are extremely obstinate and never more obstinate than when they are wrong. Indeed, they are wrong three or four times out of five. The protection against that is the appeal written into the amendment. If we do not like the decision recommended by the scientists we can appeal against it. I agree that one of the great dangers is that although scientists are upright, splendid men, they are extremely pig-headed. I do not like to mention names but certain organisations contain scientists who are great friends of mine and they are obstinate almost beyond belief. They were wrong to a degree that only scientists can be wrong. Therefore, we are right in insisting that there should be protection against the decisions.
  We are taking the path that the new body wishes to take and I can see no reason why the Government should resist the amendment. It is apparent that the SSSIs cannot be fixed for all time and must be reviewed. It is arguable whether this timescale is right but we cannot write SSSIs into the history of the world for ever. This is a suitable moment for insisting on review by the new body.
  The Earl of Dundee: My Lords, if we believe that all SSSIs are sensibly designated, we must reject the amendment. However, during previous stages of the Bill in this House my noble friend Lord Strathclyde referred to the unsatisfactory basis upon which, until now, Scottish decisions have been made in Peterborough. Many noble Lords have given convincing examples of contradictions and absence of wisdom in previous designations. A significant proportion of existing SSSIs are satisfactory and, therefore, when they are called for reconsideration after five years they will in all probability remain so designated. I hope that that consideration will give comfort to the noble Baroness, Lady Nicol. The

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  amendment allows the correction of the anomalies and mistakes which have already been fully drawn to our attention.
  Lord Taylor of Gryfe: My Lords, this is an important amendment. It raises again the important principle that the noble Lord, Lord Grimond, mentioned in an earlier debate; that is the opportunity for review. We are not talking about reviewing the decisions of the new body but about reviewing the decisions that were made in Peterborough. The fact that the Government in their wisdom decided that the exercise should be decentralised and decisions should be made closer to the area in question is the justification for review. I believe that the new body will welcome that step because it will stamp its authority on decisions made before its existence.
  The new body will have difficulty in receiving acceptance of its authority. It made an excellent public relations move when Mr. Magnus Magnusson was appointed as chairman because he is a highly respected individual. The new body must gain acceptance but because in some cases it has inherited the decisions of the Nature Conservancy Council in England it is slightly prejudiced. Therefore, it is a good idea that the new body should look at decisions after a period of five years.
  We are not talking about small areas of Scotland. We are talking about 1 million hectares—that is 10 per cent. of the land surface of Scotland—which has been designated as SSSIs by the Nature Conservancy Council in Peterborough. It is right and just that we should look at those decisions because we are nearer the ground, nearer the local authority, nearer the people who find employment in the areas and, above all, we are sensitive to our responsibilities to protect our heritage and amenities. I wish to support the new body. We should give it greater authority, greater respect and greater acceptability by saying, "All right, you are starting anew. Just look at what you have inherited and find out whether it is consistent with your view of your new responsibilities".
  After the last debate the Nature Conservancy Council, through the noble Earl, Lord Cranbrook, was good enough to send me the guidebook of its work in the designation of SSSIs. There is no doubt about its power and authority. Of course it notifies you that your area is to be designated and you are allowed three months in which to make representations to the council. It will then consider the matter but in the meantime your area is designated. After considering your representations as a landowner or as someone with an interest in the area it delivers the punchline, that its decision ultimately determines whether or not the notification is confirmed.
  That means that it is a quango, appointed by the Secretary of State, which makes the final decision against which there is no appeal. It is that principle to which we are opposed in the amendment.
  I received representations from the Highland Regional Council, which covers one of the areas most affected, as can be imagined. It is the elected representative of the people of the Highlands. I do not know the political affiliation of its members, but they point out that,
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  "it is singularly disappointing to the Regional Council that the provisions of Section 28 of the Wildlife Act should provide the power of judge and jury to the Nature Conservancy Council … Highland Region would not be so alarmed at the situation if the powers conferred on the NCC were exercised in a selective and discriminating way".
  Its experience does not justify support or confidence in those judgments.
  Over 15 per cent. of the entire area covered by the Highland Region is now designated as SSSIs. Surely it is right and proper that we should ponder for a moment whether the uniform coverage of a whole area of Scotland should be designated as a SSSI. Is it not right that after a five-year period that designation should be examined and consideration given to whether the decisions were well made?
  Local authorities have their own land use strategy studies. Is it not right that they should be brought into the picture to see whether their ideas of the development of land use in their area are consistent with the decisions of a quango? Therefore I strongly urge the House to support Amendment No. 30 as being one way of ensuring a degree of local democracy and, at the same time, giving new and added authority to the body now being set up.
  Lord Renton: My Lords, I also support the amendment for reasons which have already been given. However, I ask the House to bear in mind that nothing will happen for five years. A somewhat elaborate and costly exercise which ought to take place will take place. We have already been given examples of SSSIs which are obsolete or which may have been inadvertently destroyed or damaged by climatic change. I am aware of one specific area where a two-year drought in effect destroyed vegetation which was the reason for the SSSI designation. In those circumstances, bearing in mind that the land is meanwhile sterilised, why should the owner and occupier wait for five years before something is done?
  Therefore, I support the amendment and hope that it will be added to the Bill. However, I suggest to my noble friend on the Front Bench that if it is included in the Bill and goes to another place, he should also consider giving leave to the owner or occupier to apply to the SNH for a review of the specific SSSI designation that has become obsolete. The SNH should be informed that the designation interferes with legitimate alternate land use and be asked to decide whether or not the area should continue to be so designated. If SNH persists, it may be reasonable for the owner or occupier to be given the opportunity illustrated in subsections (3), (4) and (5) of the new clause, of having the matter raised and being sent to the Secretary of State.
  Baroness Nicol: My Lords, before the noble Lord sits down, did I understand him to say that the SSSI designation was absolute? I wish it were so. We are constantly asking that the SSSI designation be absolute. In fact it is not. It is constantly being overturned by developers throughout the country. Therefore to say it is an absolute designation is incorrect.
  Lord Renton: My Lords, as the noble Baroness has asked about that matter perhaps I may say that I feel

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  bound to agree with her. Where sometimes there has been an inadvertent interference with the land containing the SSSI, alas, the damage has been done and it may not be possible to put the clock back.
  Baroness Carnegy of Lour: My Lords, on a previous occasion I said that I was sorry that we had not progressed further on the possibility of allowing appeal by people against designation. It is important that the Government continue to consider the matter and find a way, whether a statutory or informal form of appeal, to enable people to question the designation of their specific area.
  We have had many examples to show why that is true. The amendment worries me. I understand perfectly why it has been moved. It is possible to have a review within five years of all the existing designations in Scotland. I do not know what it would cost because there are many hundreds of them. I hope that my noble friend can supply that information. The review would have to consider every single one and even those about which everybody is perfectly happy. It seems an idiotic measure to impose through legislation a review of that kind.
  It is possible to publish a report. But what will happen if a local authority or an owner or occupier objects and Scottish Natural Heritage continues with its view? The whole panoply of a public inquiry is opened up. Alternatively, a person has access to the Secretary of State. I expect that public inquiry will be chosen more often than the alternative. That will be enormously expensive, cumbersome and time-wasting. A very odd way around the situation has been proposed because we have not progressed any further with a system of appeals. The small farmer struggling to make a living who finds himself frustrated by designation should have a right of appeal. That is common justice. There should be a comeback.
  I applaud my noble friends and the noble Lady, Lady Saltoun, for not giving in on this issue. They are quite right to pursue it. This amendment is not the answer. I hope that we shall not add it to the Bill. The provision will not work for a number of reasons which have already been given. The measure would be very time-wasting and expensive. I hope that my noble friend can say that he sees a way forward for people to have some comeback against Scottish Natural Heritage.
  The reason for the change is a sad story. We have the new body because the old one was by no means always sensitive to the particular needs of Scotland. I am opposed to the proposed procedure and I cannot support the amendment.
  9.15 p.m.
  Lady Saltoun of Abernethy: My Lords, perhaps I misheard the noble Baroness. I think she said that the plaintiff, as it were, would probably opt for a local inquiry. The decision as to whether a local inquiry should be held is for the Secretary of State.
  Lord Carmichael of Kelvingrove: My Lords, as the argument continues I find myself becoming more and
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  more perplexed. I have discussed the issue with a number of noble Lords outside the Chamber. They are aware that it is rather a cumbersome amendment. I agree with the noble Baroness, Lady Carnegy of Lour, that if it is accepted it will lead to considerable problems. For example, the noble Lord, Lord Stodart, gave the example of a small farmer who might fight a case of this kind and who might require lengthy legal advice. He spoke in terms of £5,000 in costs. The amendment is meant for the person who can afford to go to a QC to put his case for him.
  Lord Stodart of Leaston: My Lords, that is a perfectly fair point but two blacks do not make a white. The case I gave related to the island of Stroma and was one in which considerable legal costs were involved. It took five years to reach a decision. I would like to see decisions made much more quickly, as they should be if there were a proper appeals system. What the noble Lord explained has been taking place already.
  Lord Carmichael of Kelvingrove: My Lords, the reason why I said that I agreed with the noble Baroness, Lady Carnegy, was that the small farmer and landowner would be disadvantaged. There are probably not many farmers who can cope with a local inquiry. Subsection (4) (b) of the new clause states:
  "The Secretary of State shall afford any person or any representative of SNH, the owners or occupiers of the land and the local planning authority an opportunity of being heard by a person appointed by the Secretary of State for the purpose".
  Obviously that is going to be a long drawn-out problem. The Minister has already been asked whether he can give some idea of how many outstanding cases there are. In four instances the sites concerned have already become SSSIs. Has the Minister any idea of the resources necessary to fulfil the task? It has been mentioned in a number of contributions that even the people affected did not know why an SSSI had been designated.
  The amendment would result in a bureaucratic nightmare. I have been reading the handbook. If it is still going to be used—it was certainly used in the old cases—that seems highly unsatisfactory. I look forward to hearing what the Minister has to say.
  Lord Taylor of Gryfe: My Lords, the handbook from which I read covers SSSIs which have already been designated. Under this amendment we are looking at those made under the handbook.
  Lord Mackie of Benshie: My Lords, perhaps the Minister will spare us his brief and simply accept the amendment.
  Lord Strathclyde: My Lords, that is a kind suggestion. Unfortunately, I have a greater responsibility. I should like to examine the amendment, point out its flaws, explain why the Government are in their present position and then request my noble Friend, Lord Pearson of Rannoch to withdraw it.
  The amendment contains two distinctive elements. First, subsections (1) and (2) would place a formal statutory duty on SNH to review all sites of special scientific interest which are designated at an appointed

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  date and to publish the results of its review. Secondly, subsections (3), (4) and (5) seek to institute a right of appeal for all such SSSIs to the Secretary of State through the establishment of a hearing procedure. Many of the provisions in both parts of the amendment are, I am afraid, flawed and I suspect impractical.
  The Government are not against the reviewing of sites of special scientific interest. Indeed, that has been the practice of NCC over the past nine years, as indicated by the noble Baroness, Lady Nicol. In the past decade, NCC has had to reconsider all sites notified under the 1949 Act in the light of the provisions set out in Section 28 of the Wildlife and Countryside Act 1981. It has therefore reviewed all sites and decided whether a site should be notified in its original or amended form, both in terms of the area covered, and therefore the site boundaries, and the activities which would be permitted within the site if the scientific interest was to be maintained.
  This substantial renotification task is now almost complete. In Scotland, 97 per cent. of sites notified under the 1949 Act have been renotified. To undertake the review process all over again is in our view totally impractical. It is a misuse of the resources that we provide to the NCC and diverts staff effort from the more positive tasks. I also wonder how many owners and occupiers would welcome a reassessment.
  Subsection (1) is also impractical as it would require SNH staff to deliver the majority of its resources to the review of sites as the amendment as drafted suggests that a review has to be completed within five years. There are also a number of technical flaws to subsections (1) and (2). I shall not go into them in detail. I am sure that the noble Lady, Lady Saltoun and my noble friend Lord Pearson accept that their drafting is far from perfect.
  Perhaps I may now turn to the appeals procedure set out in subsections (3), (4) and (5). We have had two previous debates on the principles and practice of an appeals procedure. The proposal for a right of appeal, for example, appears to misunderstand the statutory procedures laid down in the Wildlife and Countryside Act 1981. Those are fundamental to the way that the system operates. I shall not repeat them as I have made this clear on previous occasions. Giving the Secretary of State the right to determine whether an SSSI should continue to be designated or revoked or amended, as subsection (5) suggests, would place him in an almost impossible situation.
  Your Lordships will appreciate that the Secretary of State is the planning Minister for Scotland and in that quasi-judicial capacity has the opportunity to determine planning applications, particularly on SSSIs where the NCC or SNH object to a development proposal. If in that situation the Secretary of State has already decided that the scientific interest of the site justifies that it should be notified as an SSSI, then he is fettering his discretion to make a decision on a planning application which would undermine or affect the scientific interest of the site. In effect, he is deciding before any planning application for any type of development is made that the nature conservation status is likely to outweigh a
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  development proposal. I therefore submit to noble Lords that the proposals for the role of the Secretary of State are fundamentally flawed.
  There are also considerable practical problems with the subsections (3), (4) and (5). The right of appeal procedures which are proposed in the amendment would be costly and would require a new level of bureaucracy to make judgments on a body which has been set up by Parliament with a specific statutory duty.
  I am surprised that nowhere does the amendment state on what basis representations might be made against the continuation of an SSSI. Your Lordships are well familiar with the fact that SSSIs are notified on the basis of the special scientific interest of an area. However, my understanding of subsections (3), (4) and (5) is that representations may be couched much more widely than scientific ones.
  Finally, I have both in Committee and on Report indicated the new procedures which the Nature Conservancy Council for Scotland intend to operate from April of this year. Magnus Magnusson, the chairman designate of NCCS, has given a written assurance as to how he expects the new procedures to operate. As noble Lords know, I have circulated a copy of that letter and placed it in the Library. Nevertheless, perhaps noble Lords will bear with me while I quote some of the salient points which I believe to be relevant to the new style of operation of both NCCS and, in the future, Scottish Natural Heritage. In doing so, perhaps I may make the plea that we should not prejudge this new organisation. In his letter Mr. Magnusson places great stress on consultation with owners and occupiers. He says:
  "We will be looking at ways to improve and extend the informal consultations which our staff hold at present with potential SSSI clients. We recognise that the present procedures make unusual demands on the capabilities of individual staff members to undertake this often difficult and sensitive task and we shall be considering carefully what implications this might have for the organisational structure of SNH on the ground. We should also consider whether we can alter the present nomenclature of potentially damaging operations to something more user friendly and constructive such as operations requiring consultation. I take the view that it would be best for NCCS to see what it can achieve informally during the course of the next operational year and subsequently assess whether any formal adjustment should be made in the enabling legislation to facilitate improved consultation and operational procedures at the local level."
  The chairman designate goes on to indicate that the regional boards which are being established by NCCS will be the first level of decision-making. He continues to say that:
  "they are to be established in order to improve local accountability and sensitivity of administration on a whole range of environmental initiatives and casework issues including of course SSSI designation."
  I shall not quote more from Mr. Magnusson's letter because, of course, it is available to all noble Lords. However, I hope that I have made clear the fact that the review proposals in the amendments are inefficient, costly and technically flawed. Moreover, they would negate much of the work which has been undertaken by NCC in Scotland over the past decade.
  I hope that I have fully explained the Government's position. I understand what noble Lords have said. I must now ask my noble friend Lord Pearson of

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  Rannoch to withdraw his amendment. I hope that he and the noble Lady, Lady Saltoun, will understand that my hope for the future is very much shaped by what Mr. Magnusson says about the new organisation, Scottish Natural Heritage; namely, that it is there to work wholeheartedly with landowners and occupiers of land to preserve the heritage of Scotland.
  Lord Pearson of Rannoch: My Lords, I thank my noble friend for that explanation. I too have read the letter from Magnus Magnusson. I am afraid that I do not find it convincing. We are all prepared to give him the benefit of the doubt over the future of his new organisation, but what he says about the past is that any adjustment to past SSSIs might have a demoralising effect on the staff, and so on. He feels that criticism might be perceived as being overdone.
  I accept that all the subsections of the amendment may not be perfect; but I do not accept that it would necessarily be expensive to operate for the small farmer. Nevertheless, if we were to approve it, it would give your Lordships' House the chance to look at anything decided in another place on the amendment and indeed the whole area. From that point of view alone it must be worth testing the opinion of the House.
  9.31 p.m.
  On Question, Whether the said amendment (No. 30) shall be agreed to?
  Their Lordships divided: Contents, 44; Not-Contents, 33.

  Division No. 4

  CONTENTS

  Acton, L.

  Lyell, L.

  Airedale, L.

  Mackie of Benshie, L.

  Allenby of Megiddo, V.

  Masham of Ilton, B.

  Boardman, L.

  Palmer, L.

  Borthwick, L.

  Pearson of Rannoch, L. [Teller.]

  Brightman, L.

  Brookeborough, V.

  Rankeillour, L.

  Burton, L.

  Renton, L.

  Cairns, E.

  Rochester, L.

  Clanwilliam, E.

  Roxburghe, D.

  Cochrane of Cults, L.

  Russell, E.

  Craigmyle, L.

  Saltoun of Abernethy, Ly. [Teller.]

  Dundee, E.

  Elliot of Harwood, B.

  Soulsby of Swaffham Prior, L.

  Ezra, L.

  Stodart of Leaston, L.

  Gisborough, L.

  Strange, B.

  Glenarthur, L.

  Swansea, L.

  Grey, E.

  Taylor of Gryfe, L.

  Grimond, L.

  Tordoff, L.

  Grimston of Westbury, L.

  Vestey, L.

  Grimthorpe, L.

  Wigoder, L.

  Hacking, L.

  Woolton, E.

  Kimball, L.

  Wynford, L.

  NOT-CONTENTS

  Ampthill, L.

  Cavendish of Furness, L.

  Arran, E.

  Davidson, V.

  Astor, V.

  Dean of Beswick, L.

  Belstead, L.

  Denham, L. [Teller.]

  Blatch, B.

  Graham of Edmonton, L.

  Blyth, L.

  Henley, L.

  Brabazon of Tara, L.

  Jeffreys, L.

  Brougham and Vaux, L.

  Jenkin of Roding, L.

  Butterworth, L.

  Long, V. [Teller.]

  Caithness, E.

  Nicol, B.

  Campbell of Croy, L.

  Parry, L.

  Carnegy of Lour, B.

  Prior, L.

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  Reay, L.

  Taylor of Blackburn, L.

  Romney, E.

  Thomas of Gwydir, L.

  Skelmersdale, L.

  Trumpington, B.

  Strathclyde, L.

  Wade of Chorlton, L.

  Strathmore and Kinghorne, E.

  Resolved in the affirmative, and amendment agreed to accordingly.
  9.38 p.m.
  Clause 17 [Rights of entry and inspection]:
  Lord Strathclyde Lord Strathclyde moved Amendment No. 31:
  Leave out Clause 17.
  On Question, amendment agreed to.
  Clause 21 [Rights of entry and inspection]:
  Lord Strathclyde Lord Strathclyde moved Amendment No. 32:
  Leave out Clause 21.
  On Question, amendment agreed to.
  Lord Strathclyde Lord Strathclyde moved Amendment No. 33:
  After Clause 23, insert the following new clause:
  Rights of entry and inspection under Parts II and III
  (" .—(1) Any person duly authorised in writing by a river purification authority, a water authority or a water development board may at any reasonable time enter upon any land for the purpose of—

  (a) exercising any power or performing any duty conferred or imposed on the authority or board or that person by virtue of Part II or III of this Act;

  (b) determining whether circumstances exist which require the exercise of such a power or performance of such a duty and, if so, in what manner such power or duty should be exercised or performed;

  (c) determining whether any provision of either of these Parts of this Act or of an instrument made by virtue of one of these Parts is being complied with; or

  (d) carrying out such inspections, measurements and tests on the land or of any articles, including water, on it and taking away such samples of the land or such articles as he considers appropriate for such inspections, measurements or tests.

  (2) Subject to subsection (3) below, if the sheriff is satisfied that there is a reasonable ground for entry upon any land which a person is entitled to enter in pursuance of subsection (1) above and—

  (a) that admission to that land has been refused;

  (b) that such refusal is apprehended;

  (c) that entry upon the land was sought in an emergency;

  (d) that the land is unoccupied or the occupier is temporarily absent; or

  (e) that an application for admission to the land would defeat the object of the entry,

  then the sheriff may grant a warrant authorising that person to enter the land, if necessary using such force as is reasonable in all the circumstances.
  (3) Without prejudice to subsection (6) below, in any case to which paragraph (a) or (b) of subsection (2) above applies the sheriff shall not grant a warrant unless he is satisfied that a notice of the intended entry has been served on the occupier of the land not less than seven days before the demand for entry was made.
  (4) A warrant issued in pursuance of this section shall continue in force until the purpose for which the entry is required has been satisfied.
  (5) A person authorised to enter upon any land in pursuance of this section—

  (a) shall, if so required, produce evidence of his authority before he enters upon the land; and

  (b) may take with him on to the land such other persons and such equipment as may be necessary.

  (6) Admission to any land used for residential purposes and admission with heavy equipment to any other land shall not, except—

  (a) in an emergency;

  (b) in a case where land is unoccupied; or

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  (c) in a case where to serve notice of intended entry would defeat the object of the entry,

  be demanded as of right in pursuance of subsection (1) above unless a notice of intended entry has been served on the occupier not less than seven days before the demand is made.
  (7) A person who, in the exercise of the powers conferred on him by virtue of this section, enters upon any land which is unoccupied or from which the occupier is temporarily absent shall leave the land as effectively secured against unautharised entry as he found it.
  (8) A person who wilfully obstructs any person acting in the exercise of his powers under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
  (9) It shall he the duty of the river purification authority to compensate any person who has sustained damage by reason of—

  (a) the exercise by a person authorised by the authority of any powers conferred on him by virtue of this section; or

  (b) the failure of a person so authorised to perform the duty imposed on him by subsection (7) above,

  except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person's
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  entitlement to compensation in pursuance of this subsection or as to the amount of the compensation shall be determined by arbitration.
  (10) Any reference in this section to an emergency is a reference to a case where a person requiring entry upon land has reasonable cause to believe that—

  (a) there is a reduction in the volume, or a deterioration in the quality, of water such as would be likely to endanger human life or health or adversely affect the viability of aquatic flora or fauna; and

  (b) immediate entry is necessary to verify the existence of these circumstances or to ascertain their cause or to effect a remedy.

  (11) In this section "land" includes a vessel.").
  On Question, amendment agreed to.
  Clause 24 [Service of documents]:
  Lord Strathclyde Lord Strathclyde moved Amendments Nos. 34 to 36:
  Page 18, line 5, leave out ("premises") and insert ("land").
  Page 18, line 7, leave out ("premises") and insert ("land").
  Page 18, line 9, leave out ("premises appear to be or are") and insert ("land appears to be or is").
  On Question, amendments agreed to.
  Schedule 1 [Constitution and proceedings of Scottish Natural Heritage]:
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 37:
  Page 20, line 17, at end insert ("shall consult such associations or bodies appearing to him to have significant expertise in management of, or knowledge about, the natural heritage of Scotland, and.").
  The noble Lord said: My Lords, this amendment would give the opportunity for the quango to be a bit more democratic. Until now most quangos have been based on political patronage. This amendment seeks to ensure that the Secretary of State consults widely with knowledgeable bodies before making appointments to the Scottish Natural Heritage. This should assist in identifying the best people for these important appointments and in winning public respect for the authority of the SNH; it would also improve relations between the SNH and key partner groups.
  A requirement for the Secretary of State to consult before making appointments to the board of the Countryside Commission for Scotland was contained in the Countryside (Scotland) Act 1967. To omit such a requirement from the Bill appears to be a rather backward step, which I hope the Minister will refuse to take. I beg to move.
  Lord Strathclyde: My Lords, I must resist the amendment for practical and technical reasons. The practical reason is that the formulation contained in the amendment is imprecise. There is an enormous range of bodies interested in the natural heritage of Scotland, and it would be impossible for the Secretary of State ever to decide where to draw the line in consulting them, or whether he had properly fulfilled the duty imposed on him under the amendment. I can also foresee that there could be a great deal of difficulty in deciding whether a particular body had "significant" expertise about the management of the natural heritage or "significant" knowledge of it.
  The technical objection is related to that uncertainty. The amendment would lay the Secretary of State open to the objection that he had not consulted every organisation or body which he ought, according to an objector, to have consulted. That situation could be used to challenge any appointment which the Secretary of State had made. The validity of those appointments would be brought into doubt as a result. That is an undesirable position.
  These considerations led us to decide not to include a similar provision in the Bill. I can, however, give the noble Lord an assurance that the Secretary of State will indeed consult bodies with an interest before he makes any appointments to SNH of fills any vacancies in the board of the body. In addition, he will also consider any nominations made to him direct. I hope that that will satisfy the noble Lord.
  Lord Carmichael of Kelvingrove: My Lords, before the Minister sits down can he tell us whether these problems arose under the Countryside (Scotland) Act 1967? Were there objections about consultation then? We are simply asking that the same, or close to the same, provision be included in the Bill as is in the Countryside (Scotland) Act 1967. It is seldom that an
  190
  amendment is accepted for practical reasons. Usually the Minister takes it away, but here there is no chance of bringing another amendment except in another place. However, it would be interesting if he was able to answer the rather obvious question as to how the consultation worked under the old Act, or whether it worked at all.
  Lord Strathclyde: My Lords, I have to tell the noble Lord that I have not the faintest idea how it operated in 1967, but I feel that I have made a fairly logical defence of my own position and the noble Lord has not refuted what I have said. Perhaps one slight reason why the 1967 Act was different was that there was a much narrower range of interests under that particular Act, and therefore it was much easier to define the number of people to be consulted. The Scottish Natural Heritage, as we have seen, has an enormously wide variety of interests. In addition, since 1967 the number of people involved in the environment and the natural heritage has expanded enormously. I think that that is rather a good reason.
  Lord Carmichael of Kelvingrove: My Lords, if the Minister had told me that earlier I would have been delighted, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  9.45 p.m.
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 38:
  Page 22, line 41, after ("members") insert ("or employees").
  The noble Lord said: My Lords, this amendment provides additional flexibility which may be of real value to Scottish Natural Heritage. The intention appears to be to have a small, powerful executive board, perhaps comprising as few as eight members and certainly not more than 12. As drafted, this clearly limits the number of committees which may operate at any one time.
  Given that there is a drive to secure much better community involvement and local accountability in the work of SNH than has existed with the Nature Conservancy Council, local committees—sometimes these may be subject based and may exist for relatively short periods—may become a commonplace modus operandi for SNH. That would be impossible if one member of each committee always had to be drawn from a pool of eight to 12 SNH board members. If an employee of SNH were able to be a member of such committees, greater flexibility would be achieved. The chairman would decide which committees employees could sit on and which committees had to include a board member. The amendment is intended to be helpful. I beg to move.
  Lord Strathclyde: My Lords, the committees appointed by SNH, particularly those set up as regional boards, will play a vital role in SNH's work, especially at local level. We believe it is essential that there should be at least one member of the board of SNH on each such committee to ensure uniformity of policy and approach, together with a mechanism for reporting to the main board.

  191
  It would be entirely possible under the amendment for the member of SNH to be replaced on those committees by an employee of SNH. While SNH's employees will play an important part in the development and implementation of its policies on the natural heritage, it will not be for employees to decide what those policies ought to be. That being so, it would not be appropriate to allow a committee to be established the membership of which comprised one employee of SNH while the remainder were other varieties of non-members of SNH.
  There is of course—this will, I think, be helpful to the noble Lord—nothing in the provision as it stands in the Bill at present which would prevent an employee of SNH being appointed to a committee, as employees of SNH are all within the category of non-members of SNH. But that appointment would need to be in addition to the SNH member. In this case, I can give the noble Lord his cake and he can eat it.
  Lord Carmichael of Kelvingrove: My Lords, the Minister has not, of course, given me icing. As I said, the amendment is intended to be helpful. I believe that if there were too many committees and only eight members of SNH were represented on those committees, those members could be put under strain. I do not know whether the Government will take up this matter in another place. However, I must be grateful for the Minister's remarks. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 7 [Further provisions regarding drought orders]:
  Lord Strathclyde Lord Strathclyde moved Amendments Nos. 39 and 40:
  Page 38, line 48, leave out ("21") and insert ("(Rights of entry and inspection under Parts II and III)").
  Page 39, line 6, leave out ("21(2)") and insert ("(Rights of entry and inspection under Parts II and III)(2)").
  The noble Lord said: My Lords, I beg to move Amendments Nos. 39 and 40 en bloc.
  On Question, amendments agreed to.
  Schedule 10 [Miscellaneous Amendments]:
  [Amendment No. 41 not moved.]
  Schedule 11 [Repeals]:
  Lord Strathclyde Lord Strathclyde moved Amendment No. 42:
  Page 47, line 5, at end insert:

  ("1965 c. 74.

  Superannuation Act 1965.

  In section 39(1), in paragraph 7 the words "The Nature Conservancy Council for Scotland.")

  On Question, amendment agreed to.
  Amendment (privilege) made.
  Lord Strathclyde: My Lords, I beg to move, That the Bill do now pass.
  The Natural Heritage (Scotland) Bill is designed to establish SNH by merging the Nature Conservancy Council for Scotland and the Countryside Commission for Scotland. This is an administrative change to provide the new body's basic aims and purposes, set down its general functions and responsibilities and update particular powers in the
  192
  present countryside legislation. It also ensures that the new agency continues to operate under all the relevant Great Britain nature conservation legislation, including Part VII of the Environmental Protection Act 1990.
  During the course of the passage of the Bill through this House we have considered its terms very carefully. As a result of our very useful debates amendments have been made. We have extended the balance in duty in Clause 3; clarified in Clause 4 the read-across from the 1990 Act; revised the powers of entry in Clause 6; and have given SNH the power to make access agreements and orders. We have also had illuminating debates regarding the Government's intentions, on the meaning of sustainability, on powers regarding red deer and on the operation of the SSSI system.
  Although the parts of the Bill dealing with water resources have perhaps attracted less attention, they are nevertheless of importance dealing as they do with subjects such as drought and the control of extractions for irrigation purposes. Various minor and technical amendments have been made to Parts II and III.
  I am confident that the Bill leaves the House in an improved state, albeit that the Government have sought to defend their position and the House has chosen not to accept that advice. However, this Bill now goes to another place and I am sure that when it returns it will be in an even better state. I am grateful to everyone who has contributed to our discussions, and I beg to move that the Bill do now pass.
  Moved, That the Bill do now pass—(Lord Strathclyde.)
  Lord Carmichael of Kelvingrove: My Lords, I thank the Minister. I had not realised that he had conceded as much in the Bill as he read out. I think that was the one part he read slowly. It has been an interesting Bill, but clearly there are parts where he is not going to get agreement in the House. I just wonder how the Government will handle some of the problems when dealing with the amendments we have made. We owe them a great deal concerning this Bill, partly due to the composition of your Lordships' House, and I hope that when the Bill goes to another place it will be as well discussed as it has been here.
  Lord Campbell of Croy: My Lords, this Bill supports the reorganisation to be brought about by the Environmental Protection Act of the last Session. I am glad that the Government have introduced this Bill at the beginning of this Session and I hope that it will become law in the summer, no doubt after full debates in another place on local communities, red deer and other points which we have left to them to look at again.
  I concern myself with the parent Bill. I was a member of the Carver Committee which started work over a year ago. Our recommendations in that committee were accepted almost in toto by the Government. A suggestion of mine to change the name of the Scottish Development Department, which I advocated at least twice in speeches in this House, has now been accepted. Therefore, I feel that I must

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  take this opportunity of congratulating the Government and thanking them because earlier this month they announced that the Scottish Development Department will in future be called the Scottish Office Environment Department. That will help the public in that the department's main functions will be clearer and also that it carries out in Scotland what the Department of the Environment does in England, including housing and local government.
  The Environmental Protection Act and this Bill will lead to consultations and decisions taking place much nearer to the sites and areas concerned than in the past. I hope that this will promote confidence among those who reside in those areas who feel that their lives will be affected and that it will also lead to co-operation in preserving valuable habitats and natural treasures in our countryside.
  Lady Saltoun of Abernethy: My Lords, I thank very warmly the noble Lord, Lord Strathclyde, for his unfailing help and courtesy throughout the passage of the Bill. I thank him for what he has conceded and commiserate with him for what has been wrung out of him in Divisions. I hope that amendments will be produced in another place to introduce an appeal mechanism against the notification of SSSIs.
  Lord Pearson of Rannoch: My Lords, I too should like to join in thanking my noble friend Lord Strathclyde for the extreme courtesy he has shown both on and off stage. I hope that we may look forward to further discussions on the Bill in future.
  On Question, Bill passed, and sent to the Commons.

  Caravans (Standard Community Charge and Rating) Bill
  9.55 p.m.
  Baroness Blatch: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
  Moved, That the House do now resolve itself into Committee.—(Baroness Blatch.)
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The LORD AIREDALE in the Chair.]
  Clause 1 [Caravans in England and Wales: standard community charges and non-domestic rates]:
  Clause 1 agreed to.
  Clause 2 [Caravans in Scotland: Standard Community Charges and non-domestic rates]:
  Lord Campbell of Croy Lord Campbell of Croy moved an amendment:
  Page 2, line 43, leave out from ("shall") to end of line 45 and insert ("not be made unless a draft of them has been laid before and approved by a resolution of both Houses of Parliament.")
  The noble Lord said: The Bill is welcome as a whole. It excludes certain categories of caravan from liability to the standard community charge and makes them subject to rates.
  The Committee will recall that the standard charge was originally designed to be a levy on second homes. When passing through this Chamber the Abolition of Domestic Rates Etc. (Scotland) Act 1987 and the similar Act for England and Wales a year later we introduced the standard as well as the personal community charge.
  Most of us understood and supported the proposition that someone who was well enough off to have a second home should not be relieved altogether of any payment when domestic rates on houses disappeared. In the event, that standard community charge has become an immediate levy on empty residential premises. That is how most local authorities have interpreted the legislation.
  That led to extraordinary anomalies during the first year in Scotland before the system had started in England and Wales. Members of the Committee will remember that in this Chamber I drew attention to some of those anomalies at Question Time and in debates. The Government responded by issuing guidance to local authorities for the future which greatly improved the situation to the benefit of England and Wales because the guidance was issued before 1st April last year. However, it was too late for Scotland where the system had been introduced the previous year.
  The Bill is part of the same process. Clause 1 applies to England and Wales and Clause 2 entirely to Scotland. The Bill is of special importance to Scotland where the standard charge has been in operation for more than twice as long as it has in England and Wales. In Scotland we are nearing the end of our second year.
  Clause 2(3) gives the Secretary of State for Scotland wide discretion in making regulations to rationalise the valuation and rating of caravans, which are now once again to be rated. To underline the importance of the issue to the Scottish tourist industry and to dwellers in caravans in Scotland, my amendment would require the regulations to come before both Houses under the affirmative procedure rather than the negative. I do not suggest that we need make the change in the Bill. My purpose is to probe and to discover the Government's intentions regarding the regulations.
  In recent years the Committee will have heard me draw attention to the wide discrepancies in the rating of caravans north and south of the Scottish Border. Identical caravans on either side of that border, only a few metres apart, pay very different rate bills. The one in Scotland could be about twice as much as the other. There is now a great opportunity to remove those anomalies.
  Last week, I informed my noble friend Lady Blatch and her office that the purpose of my amendment was to obtain a statement on the Government's intentions. The Department of the Environment deals only with England. My noble friend Lady Blatch is in that department and also in charge of this Bill in this House. I hope that with the notice I have given she has been able to obtain any necessary information from the Scottish Office. As a result, can she assure us that in these regulations it is the intention of the Secretary

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  of State for Scotland to aim for harmonisation and parity with England and Wales? Will the Scottish Secretary when formulating his proposals have consultations with representatives of the leading organisations concerned? Any assurance she can give today will be valuable in maintaining confidence during the period of waiting before the regulations are formulated and published. I beg to move.
  10 p.m.
  Baroness Hollis of Heigham: Obviously, we on this side support the Bill. However, I should like to ask the Minister to give guidance to the Committee as to whether, were she to accept the amendment moved by the noble Lord, Lord Campbell, she would expect it to apply also to England.
  The first reason why we on this side would like an affirmative resolution for England is that we continue to have some unease about aspects of the Bill. As was suggested on Second Reading in this House and in the stages n another House, we suspect that there will continue to be problems on a site where there are caravans which are main residences generating poll tax, other touring caravans generating the non-business rate, and chalets which are second homes and which carry the standard community charge, all being of equal value on the same site. We have concerns in that respect, which is why with an affirmative resolution we might have an opportunity to review any subsequent anomalies which may emerge.
  The second reason why we would welcome an affirmative resolution for England, were the Minister to grant it for Scotland, is that we are concerned—this was an issue raised on Second Reading here and in another place—about the effect on local authority income, particularly in those district councils which have responsibility for seaside resorts or national parks.
  Of course, the Minister was quite right to say on Second Reading that that income was not taken into account when calculating spending assessments and the interaction with poll tax levies; in other words, it was a plus. However, what the Minister did not mention but which the DoE said on her behalf, was that the plus is to be considered by local authorities as offsetting some of the shortfall in collecting the poll tax. This is a problem not only in Scotland but also in England where, according to the Audit Commission, the collection rates are running perhaps one-third behind what we as local authorities would by now have collected in rates.
  Therefore especially for the seaside towns, that loss in income, which can no longer be set against falls in collection, will be a modest but real loss to some local authority budgets. The confusion between chattels and homes on the one hand and collection rates on the other is associated with a poll tax which is anomalous and deeply unfair.
  Therefore if the Minister is minded to accept the amendment moved by the noble Lord, Lord Campbell, perhaps she would indicate whether, for other reasons, but the same good cause, she will consider applying it also to England and Wales.
  Baroness Blatch: The powers sought under Clause 2(3) mirror those in Clause 1(7) and will be used to make any necessary minor technical adjustments to the rating regime applying to caravans. Given the use of the power, it would not seem appropriate to seek the affirmative resolution of both Houses of Parliament.
  The power; which my right honourable friend the Secretary of State for Scotland will exercise to prescribe a revised level of derating for all caravans in Scotland is not the one contained in Clause 2(3) of the Bill. He will use his powers under Section 6 of the Local Government, (Scotland) Act 1975. Orders under Section 6 of the 1975 Act are subject to the affirmative resolution of both Houses of Parliament, and your Lordships will therefore have every opportunity to discuss any proposals to deal with the derating of caravans. Therefore, all the particular points made by my noble friend apply.
  The noble Baroness ranged much more widely than those two points. The matters she raised do not refer to this amendment. They are separate subjects in themselves. However, the affirmative resolution which is contained within the other Act will apply to all the areas of concern that have been mentioned.
  My right honourable friend the Secretary of State for Scotland will shortly be consulting widely on a draft order giving effect to his proposal to increase the level of derating of caravans from its present level of 40 per cent. and to extend it to all caravans with retrospective effect from 1st April 1990. The intention behind increasing the level of derating applying to caravans is to compensate broadly for the difference between the average rateable values of caravans in England and in Scotland.
  I have written to the noble Lord to tell him that I have arranged for copies of the draft regulations that we propose to make under Clause 1(7) of the Bill to be placed in the Library where they will be available for the scrutiny of other noble Lords. I shall welcome any comments on the draft regulations. Officials of the Department of the Environment have also sent copies of the draft to representatives of the National Caravan Council and the British Holiday and Home Parks Association. We shall welcome any comments from them also.
  With those assurances I hope that the noble Lord will feel able to withdraw his amendment.
  Baroness Hollis of Heigham: Perhaps the noble Baroness will clarify a point that she made in passing and on which I remain unclear. Did she say that the affirmative resolution principle will apply in this Bill to England and Wales despite Clause 1 of the Bill?
  Baroness Blatch: The affirmative resolution applies to derating matters for all caravans in England and Wales.
  Lord Campbell of Croy: I thank my noble friend for her reply. I hope I made clear in my opening remarks that I did not intend to press this amendment and have it put into the Bill. It seems that my object has been achieved since I understand that the derating which is visualised about this operation will be carried out by

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  the Secretary of State for Scotland under another Act. Under that Act the regulations will have to come to both Houses under the affirmative procedure. My noble friend made it clear that there will be opportunities to talk about that very important subject when it comes to this Chamber.
  I listened for the assurance that the Secretary of State for Scotland intended to make changes in derating and to extend the derating (as my noble friend described it) with a view to equalising with the situation in England and Wales. That is what mainly worried those concerned in Scotland; whether the regulations come under this Bill or under the Act to which my noble friend referred, they will be just as content that the assurance has been given, as I heard just now, that it is the intention of the Secretary of State for Scotland to extend derating with a view to trying to harmonise and reach parity with the situation in England and Wales. With that I am glad to withdraw my amendment.
  Baroness Blatch: Before the amendment is withdrawn I ought to clarify something I said that might have confused the noble Baroness, for which I apologise. I am advised that the amendment applies to Clause 2, which relates to Scotland only. The regulations under Clause 1 which apply to England will be subject to negative resolution. We have already placed in the Library the technical regulations to be made under Clause 1 of the Bill. I hope the Committee will accept that it would not be appropriate to make those technical regulations subject to affirmative resolution.
  Baroness Hollis of Heigham: I thank the noble Baroness for being in a position to amend her statement so quickly. In that case she will understand that we should like to reserve our position and perhaps return to it.
  Lord Campbell of Croy: This is a Committee stage and it seems that I have not quite completed the business. My noble friend sent me the draft of the regulations for England and Wales but naturally they did not in any way touch on the subjects which concern us in Scotland. I was interested to see them and I am sure that those interested in the subject in England and Wales will be glad that they are in the Library should they wish to look at them.
  The Scottish regulations, whether under this Bill or another Act, will deal with the subject that I have raised. Therefore those are the regulations which are of importance. They cannot yet be available in draft because my noble friend—again I am glad to say—has given an assurance that the Secretary of State for Scotland is going to embark on discussions with the organisations with which he is already in touch. Unless any other noble Lord has a matter to raise, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 agreed to.
  The remaining clause agreed to.
  House resumed: Bill reported without amendment.
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  On Question, That the Report be now received?
  Lord Graham of Edmonton: My Lords, I was consulted earlier today as to whether the Committee and Report stages of the Bill could be taken today. I raise no objection although the matter did not appear on the Order Paper. However, I wish to reinforce the remarks made by my noble friend Lady Hollis. The Third Reading has yet to be heard and at that later stage we may decide to return to certain matters. Tonight we are dealing only with the Committee and Report stages of the Bill. The Third Reading will be heard at a future date.
  Report received.

  Horses: Export for Slaughter
  10.12 p.m.
  Lord Houghton of Sowerby Lord Houghton of Sowerby rose to ask Her Majesty's Government what steps they are taking to maintain the present restrictions on the export of horses for slaughter and to reduce the long distance and cross-channel export of farm animals.
  The noble Lord said: My Lords, I must first apologise to noble Lords who put down their names to speak in the debate for the confusion that arose about whether it was to go ahead or be postponed. Apology is due especially to the noble Baroness, Lady Wharton, who has chosen this occasion on which to make her maiden speech. I apologise to her most sincerely for the unnecessary strain to which she was put, first in getting geared up to make her maiden speech, then being told that the debate was postponed, and then learning that it would take place after all. Such confusions arise from time to time but I assure the noble Baroness that I bear no responsibility for the situation. More than one noble Lord who put his name to the list of speakers will say that he has been cheated of the opportunity of taking part in the debate. Therefore, my apologies must also extend to them.
  I am in an abject mood because of the misunderstandings. I do not like the situation, especially when the Chief Whip feels distressed about what has happened and shows that so obviously. It has made me distressed too, but we must let it pass. Because of the hour and the matters to which I have referred I shall be brief in order to give other noble Lords and the Minister the maximum amount of time in which to deal with the subject.
  We know what the Question is about. Noble Lords taking part in the debate fully understand the issues concerned. They stem from the biggest decision of all; that is, the decision of this country to join the European Economic Community. I am reminded of what is the root of the matter when I see the stickers on my envelopes from day to day, which say, "Do not let Europe rule Britannia".
  That is not my starting point. I shall not turn my back on the Common Market because of such difficulties. We must overcome them. It is in an attempt to obtain a basis for overcoming the problems that I raise the matter this evening.
  We are dealing with horses in a special category. We are dealing too with other farm animals; but although important, they are not quite as distinctive in the complications of the situation. Over 30 years ago we erected a barrier to prevent people coming from the Continent to buy our horses, donkeys and ponies for shipment back to Europe for slaughter for meat. That transportation was stopped a long time ago. If the ideas of the Common Market for uniformity throughout the EC prevail it is possible that such special protection may be regarded as a restraint of trade that must be removed.
  However, trade must take second place to the welfare of animals. Frequently in debates Ministers have said, regarding, for example, poultry conditions prior to slaughter that the welfare of the birds must come first. I say that the welfare of the animals must come first. There cannot be trade in animals if that trade brings about conditions of hardship or cruelty that we find intolerable. In that respect we must have regard to what we are doing if we lift the barrier against the export of horses.
  Sheep and other animals are in a different category. Sheep are being shipped all over the world. The sheep, I believe, is now the most ill-treated animal in the world. Thousands travel from Australia and New Zealand to the Middle East. I have seen them being loaded on to ships by the tens of thousands; we also export a great many. There is a special need to protect animals in transit.
  One may ask why, given the high state of technology in refrigeration, there should be this movement of animals. We want to know from the Minister—I hope that she is fully informed—where we now stand in discussions with the EC on the future arrangements affecting our horses and the export of our other farm animals. After all, they cross the Channel, which is a more difficult journey than most other animals in Europe travelling overland undertake.
  I ask whether regulations are in existence. If so, who has seen them? Have they been approved? Where does Parliament come in to the review of the situation? Will protection come out as a directive or in the form of regulations? I have done my best to find out where the matter now stands. I am told that it is awaiting the Council of Ministers. Others say that it has not yet reached even that stage. I hope that the Minister will be able to say where we are; what attitude the Government are taking on matters arising from the subject; and what hope we have of an amicable settlement or compromise on the Question.
  I leave the matter there to enable noble Lords to make their own contributions to the debate. We await with great interest and understanding the maiden speech of the noble Baroness, Lady Wharton.
  10.20 p.m.
  Baroness Wharton: My Lords, before I begin I should like to express my gratitude and appreciation to all noble Lords who have made me feel so welcome in this House. I thank the noble Lord, Lord Houghton, for once again raising the issue of live
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  horses being exported for slaughter after 1992, thereby giving me this opportunity to speak for the first time in your Lordships' House.
  Most of us in this country have a love of horses and would consider it abhorrent to think of them as part of our diet. But since I accept that that is not a universally-held view, I believe that we must retain the right to maintain our standards of animal welfare rather than have different standards imposed on us. Our own agriculture Minister has publicly stated the Government's commitment to arguing for the UK to retain the minimum values order, which has for the past 40 years successfully prevented the export of live horses.
  Horses—in fact, all food animals—should be spared the horrors of live export; the prolonged transport to distant abattoirs; the inadequacy of being fed and watered en route; and in some cases the less than humane dispatch meted out to them at journey's end in certain countries because of insufficient resources and manpower to supervise proper methods of slaughter.
  For such reasons I heartily endorse the plea of the RSPCA and the BVA Animal Welfare Foundation that the maximum journey time for live animals, including loading, should be no longer than eight hours. Were we able to secure that we could in practice stop most of the current export of live food from this country and thus end the misery the animals have to suffer at present. It is often argued that French and Italian housewives demand fresh, locally-killed meat. However, the facts do not support that assertion. The European Community imported approximately 750,000 live horses for slaughter in 1981, mostly from Eastern Europe. By 1989 that figure had dropped to approximately 140,000.
  Admittedly there has been a slight decline in the consumption of horse meat in Europe, but not that much. What has happened is that more and more carcasses have been imported, mostly from the USA. This trend towards a carcass trade in all forms of meat should be encouraged rather than discouraged. It is worth noting here that our own abattoir industry could benefit from the increased employment were we ever to find ourselves in a position where we cease exporting all live animals. I believe that farmers receive the same payment irrespective of the animals' final destination.
  It is heartening to know that under the Animal Health Act 1981 orders have been made which will come into force on 1st March this year laying down conditions for the welfare, comfort and safety of animals in transit, with special controls for horses. Even so, we in this country take a slightly different view of what is cruel and what is not cruel. I sometimes feel that greater care is taken in the transportation of fruit and vegetables since we, the consumers, would not consider buying the produce if it were bruised and battered. I wonder why animals destined for European dinner tables are treated so casually.
  For my own part, I should like to see some sort of veterinary inspection agency, with enough power to

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  enforce the regulations which ensure the welfare of our animals. After all, there was one petition recently appealing for the special protection which our horses already have under the minimum values order to continue after 1992. Some 250,000 people, including myself, signed it. That surely indicates the strength of feeling in the country.
  Over the weeks that I have been privileged to be part of this House I have spoken with many of your Lordships on this subject. Thankfully, we all agree that the horse deserves to retain the protection it now enjoys, at least for sufficient time to enable us to judge whether the new regulations for animal welfare in transit are being effectively enforced. Enforcement is the problem in Europe. Finally, may I thank your Lordships for listening to my views on what is for many of us an extremely emotive subject.
  10.25 p.m.
  Lord Kimball: My Lords, how fortunate the House is that the noble Baroness, Lady Wharton, succeeded in taking her barony out of abeyance in her favour. It is a pleasure for the House to hear her. It is an even greater pleasure for us to have her in our midst. She spoke of the number of signatures on the petition. It was her charm and ability that succeeded in getting so many of your Lordships' signatures on that petition.
  It is always very difficult for someone coming into the House to choose the subject for a maiden speech. I am certain that noble Lords on all sides of the House will agree that the noble Baroness has chosen a moment to make her maiden speech which shows that she really believes in the subject. She has the subject at heart. I can imagine no better reason than that for making a maiden speech. We are all grateful to her for the way in which she has spoken to us.
  The noble Baroness has spoken with knowledge of and feeling for this subject. We all hope that this is the first of many such speeches she will make in this vein, which I know all noble Lords find so attractive. I hope that the demands of bringing up four children, of looking after her composer husband and of pursuing her career as a famous and much in demand portrait photographer will not reduce her attendance in the House. We all appreciate it.
  The whole House is rightly concerned about the subject raised by the noble Lord, Lord Houghton, in his Unstarred Question. In 1992 we lose the minimum value protection for the export of horses. We lose it because within the European Community there will be no exports. There is no problem over bloodstock. There will be no problem over the performance horse being exported because by 1992 one hopes and trusts that all performance horses will be registered. We shall know whether they are going abroad for show jumping, for showing or for some other purpose. There is not a problem about the knackers' trade. A horse which has broken his leg and has to be put down is sent to the knackers. The problem we are considering at the moment concerns the large number of horses in the middle.
  I am thinking in particular of the 16-hand horse which is worth about £500 if it is slaughtered for
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  human consumption. There is no reason why horses should not be humanely slaughtered and go for human consumption. The best protection any animal has is a good price at the end of its life. If it fetches a good price at the end of its life it means that it has been well handled and looked after. This is the category of horses with which the House is concerned tonight.
  Within the United Kingdom at the moment only three or perhaps four slaughterhouses meet the requirements of EC regulations for the slaughtering of horses for human consumption. Someone thinking of building a slaughterhouse to slaughter horses for human consumption must consider demand, throught-put and how many horses will come forward. We have no knowledge of what the extent of the trade may be. Farmers are asked how many horses they have on their farm. However, there are many breeders of horses. I refer in particular to the verderers of the New Forest and to people in the Welsh Hills, to whom I suspect my noble friend Lord Swansea will refer. They breed an enormous number of what I call scrub ponies which do not go for riding, for pleasure or for the bloodstock industry. It is commercially sensible to breed them for slaughter. The important point is that they should be slaughtered in this country.
  The horse world as a whole must dissociate itself from the campaign being run by the RSPCA. The RSPCA, as many noble Lords will know, has discredited itself by the pictures it has used in this campaign and by the way it is trying to involve the muscle of the horse lobby, which within the English constituency is fairly substantial, in the problems of sheep, pigs and cattle for export. The horse world would be very ill-advised to get involved in a general overall campaign.
  In my view, the horse world ought to concentrate upon one problem. Quite simply, the only safeguard you have for your horse when it goes to slaughter for human consumption—because you want to get the best price for it—is that it should only go abroad on the hook. I do not believe that there is any safeguard in transport regulations. For example, can you imagine a Frenchman abiding by such regulations? Can you imagine what a lorry driver would do with a horse suffering from a broken leg in the back of his truck? How would he know what to do with it? Further, can you imagine lorry drivers letting horses out of the vehicles in order to water them? It is not feasible. It must be stipulated quite firmly that any horse leaving this country must do so only on the hook. In those circumstances, everyone who breeds horses will have a clear conscience on the matter.
  There are one or two breeders of horses to whom it may be difficult to say, "You must send your horses for slaughter in this country." There are 40 different breed societies in this country today. The bulk of them —I dare say my noble friend Lord Soulsby will deal with this point—receive a grant from the Betting Levy Board in some form or another. We should say quite clearly that if your horse has a service from a stallion that is subsidised by the board, then, in exchange for that service—whether it is from the Hunters' Improvement Society or from any of the other breed

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  societies —you should undertake, in the event of your horse not becoming a performance horse, to send it for slaughter in this country. That will enable the slaughterers to have some idea of what the throughput will be and what the number of horses coming forward is likely to be.
  I conclude not only by congratulating the noble Baroness, Lady Wharton, for her contribution to the debate but also by adding that I believe all of us who love our horses only wish them to leave this country on the hook. Anything else is just not on.
  10.32 p.m.
  Baroness Masham of Ilton: My Lords, I thank the noble Lord, Lord Houghton of Sowerby, for instigating this debate tonight. I have the greatest admiration for his energy and zest. He has a splendid fighting spirit which adds strength to any campaign that he undertakes. The noble Lord and I live in Marsham Street. When our local shops were knocked down, we protested. It is to be hoped that there will be some shops among the new buildings which are to be built under the new scheme. I do not always support all the noble Lord's campaigns. But on this one, which deals with the export of horses for slaughter and the cross-channel export of farm animals, I am an equal supporter.
  At this point I feel that I must declare an interest in that I have a stud of Highland ponies. I believe that it is the biggest Highland pony stud in the UK and Europe. The noble Baroness, Lady Trumpington, has stayed with my family. She has visited the ponies. I even named one of them after her; he was a colt called "Trumps". He might have been a stallion but was wanted for riding for the disabled. He is now a very popular pony doing a very worthwhile job, giving pleasure and benefit to many disabled people.
  I believe that many people worked hard to achieve the present regulations for the protection of horses. It would be horrifying if we were to let them disappear in 1992. After last summer, when the French demonstrated by setting light to carriers containing living sheep, there is no doubt in my mind that all travel arrangements for animals need strengthening and policing. I also breed sheep. Of course, sheep may not be as intelligent as horses; but they still need to be treated humanely.
  I was brought up during the war. After the war, I visited a concentration camp in Germany. I feel a shudder every time I see a film about people being transported in cattle trucks to the camps. I get the same sick feeling when I think of the animals being transported across the Channel. They are hurded together, pushed, beaten and poked with sticks.
  I have exported ponies to France and Germany to be used as family ponies and for breeding. They have travelled under careful regulations. The last pony went to Germany in a splendid, padded, modernised box. At Christmas I received a card and photograph of the pony in her new, happy home. I shall be sending a copy of Hansard of this debate to Germany asking for their help through the European Parliament to protect horses.
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  I am uneasy about what goes on at some horse sales. Not long ago I visited one, and several groups of horses and ponies never appeared in the ring. They just disappeared. I had a feeling that they were going for meat without having a chance of being bought in the ring. It seems almost as though there is an underground movement.
  Donkeys can be very abused. I bought a donkey and foal at a sale after bidding against the roughest dealers I have ever seen. When I got the animals home, I found that the donkey had a stake through her hoof, a huge infected sore on her buttocks and was covered in lice. She had arrived in a lot from Ireland. Britain and Ireland are said to be horse-loving nations. Among their populations there are many cruel and callous people who are interested only in what can be made out of the poor, unfortunate animals. We need throughout Europe to have more than minimum standards. We need a foolproof system to ensure that those standards are observed. We must also remember that barriers between countries are to come down. That will make inspections much more difficult.
  As a breeder, when I sell ponies I have to be careful about where they go in case they fall into bad hands. However careful one is, one cannot be sure what will happen when animals change hands.
  It is splendid that we have had a maiden speaker today. That adds importance to the debate. I congratulate the noble Baroness, Lady Wharton, and I look forward to tackling this problem with her. This may be only the beginning of a long, hard slog. All of us here tonight are aware of how strongly people feel about what might happen in 1992 unless something is done.
  I had my back broken while riding in a point-to-point. Some people might think that I had had enough of horses. No, that was an accident. Accidents happen in all sorts of ways. I still love most animals. The horse is an intelligent and sensitive animal. It seems to sense what is going on. The noble Lord, Lord Houghton, will remember when the Ministry of Agriculture, Fisheries and Food sold and dispersed the Highland ponies from its stud in Inverness; he spoke about that matter in your Lordships' House. I bought one of the stallions, an intelligent pony with a great spirit. There is no doubt that he had been mistreated in Scotland by the men who may have been frightened of him. He never forgot. Whenever a strange man appeared, he would show fear. Horses form an historic part of our heritage.
  Recently I had a meeting with the right honourable Sir Leon Brittan, one of the European Commissioners. I urged him to help in this matter. The problem seems to be that the man responsible for dealing with the transportation of animals to Europe is an Irish Commissioner. He just might be a Pontius Pilate, and find it easier to wash his hands of any responsibility which might complicate European free trade.
  Last year, I asked a supplementary question to a Starred Question in your Lordships' House. It was answered by the noble Earl, Lord Strathmore and

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  Kinghorne. I asked whether it would not be better and more humane if horses which went for meat to Europe went as carcasses. The noble Earl gave what I call a rather Pontius Pilate answer. He said that the Europeans preferred fresh meat. But his conscience, or somebody told him otherwise and afterwards he wrote a letter to me. He was not happy; I think several Ministers are not happy.
  We cannot simply give way over this, we must stand up for what is just and humane. The noble Baroness, Lady Trumpington, has had a great amount of pleasure out of horses. Could she meet the Irish Commissioner and tell him what every animal-loving person wants? We do not want horses and other animals to suffer; the noble Baroness is not one to be overridden.
  The British Government represent the British people. I hope that they will clearly make known to Europe the wish of the majority of our population. I hope that the noble Baroness will have a satisfactory and clear answer for us tonight.
  10.40 p.m.
  Lord Soulsby of Swaffham Prior: My Lords, I too congratulate the noble Baroness, Lady Wharton, on her maiden speech. Her perceptive analysis of the situation of horses and the welfare of animals during transport has assisted us considerably. As she said, this is an emotive issue and all have seen, read or heard of the horrific situations both in this country and overseas in the transport of animals. I wish to refer tonight not only to horses but also to other animals.
  As a horse doctor—which is what people would have called me many years ago—I believe that two issues come up when one is concerned about the transport of animals. The first is the gross offence to human sensibility that animals should be treated in this way. I believe that the way a nation treats its animals is a mark of the civilisation of that nation.
  The second issue is to make an objective assessment of animal welfare in transport. Important scientific data are now beginning to emerge and all indications are that the transport of animals considerably affects their physiology and welfare. Welfare might be defined as the attempts by which an animal copes with its environment. There are a number of measures of that: the ability to survive; the health; the growth; the reproductive physiology, and the behaviour of the animal.
  Stress is where the animal makes an abnormal effort physiologically to cope with its environment. It may do this in a variety of ways, some of which can be measured chemically by taking blood or saliva samples and others by observing the behaviour of the animal. We now know that all animals are affected in one way or another during transport; so much so that in regard to the animals to which my noble friend Lord Kimball referred—thoroughbreds and performance horses—guidelines are produced by the veterinary committee of the International Equestrian Federation for the transport of these first-class passengers. They are treated to food and water every
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  six to eight hours and arrive at their destination ready to work in the sense that they are performance animals.
  However, this evening we are concerned not with the first-class Concorde passenger animals but with the more lowly horses that are sent for slaughter. At present they are adequately attended to and transport is controlled under the Animal Health Act 1981 where the minimum value system operates. The danger is that the European Commission will abolish that.
  I must say that I am attracted to the suggestion made by the noble Lord, Lord Kimball, that those breed societies that have a subsidy provided to them through, for example, the Horse Race Betting Levy Board, might provide some sort of covenant that their animals will not be subject to export for meat purposes. That might well be explored further.
  Unfortunately, all the evidence that we have from the Commissioner for Agriculture in Brussels is that he is not too helpful in his consideration of the minimal value system at present operating in the United Kingdom. Nevertheless, some amendments are being proposed to the directives. But the whole issue must be based on the scientific evidence of the effect of transport across a wide range of species which are transported both in this country and elsewhere, the ages of the animals concerned, and the rearing that these animals have had prior to their transport.
  There are a number of examples which give an idea of the issues that we must note. For example, acclimatisation prior to transport greatly reduces the stress of transport itself. Probably that is why performance horses of all kinds can stand up to transport more effectively than animals that are transported for the first time.
  There is also the social grouping of animals. Animals develop a hierarchical structure and if transported in that single hierarchical structure they are better enabled to withstand transport than if hierarchical groups are mixed, because when the mixing takes place aggression naturally develops as the hierarchical groups sort themselves out to discover a new top animal. It is the animals in the lower scale of the social structure that suffer most. Similarly, animals reared in isolation are under great stress in sorting out their hierarchical structure when put together in groups.
  A very critical time for animals under transport is that of loading and unloading. The physical exertion of loading, the noise, the physical contact with humans, and often at times the physical damage, are great stress factors. There is an opportunity there for the physical improvement of transport, trucks, lorries, and other means of transport in order to minimise this very stressful period of loading and unloading.
  Then, of course, there is the stress that we have heard about caused by lack of food and water, lack of ventilation, and so on. Animals undergo great physiological stresses which can be measured. Nevertheless, it is important to assess it in relationship to what we believe on a subjective basis. For example, contrary to what one might think, young calves aged one to three weeks suffer less from transport than

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  those aged from three to four months. The calves that suffer most during transport are those of six months of age or more. Much of this is related to animal behaviour and the social structure.
  There is also an economic effect of poor welfare. It has been shown with poultry, calves and sheep that poor transport associated with poor welfare ends up in a poorer value of carcass or animal at the other end of the line. Livestock owners and rearers of livestock should be made aware of the fact that the more they look after the welfare of their animals while they are in transit, the better it will be for their own pockets.
  Much of the evidence on the effects of transport on animal welfare has been summarised by the British Veterinary Association and the British Equine Veterinary Association. They have made firm recommendations on these issues in Brussels and elsewhere. Those recommendations are based on the scientific evidence which accords with the general theme —this is certainly true of horses—that it is far better to export meat on the hook than in living form. Those bodies have also produced well thought-out guidelines which make strong recommendations.
  Let us hope that new legislation, if that be needed in this country—and we cannot convince the Commission to stay with the concept of minimum value—is based on the sound evidence of scientific facts as they are uncovered. I hope the Minister will ensure that legislation so enacted will take account of the increasing amount of excellent scientific information that is being uncovered, especially in the United Kingdom. I suggest that some of the work currently being carried out in this country on animal welfare in transport is the best in Europe. That work must surely be a strong guide to the way that we should transport animals in the future.
  10.52 p.m.
  Viscount Allenby of Megiddo: My Lords, we are indeed most grateful to the noble Lord, Lord Houghton of Sowerby, for introducing this subject yet again in your Lordships' House. That move reflects the growing concern that is felt throughout the country over the export of live horses for slaughter. That concern has been amply demonstrated both in your Lordships' House and in another place by no fewer than 25 Questions and two Early Day Motions that have been tabled during the past year alone.
  Generally the Government's response has been sympathetic and it is clear that pressure is being brought on our EC partners to introduce more practical regulations to safeguard the welfare of horses. Sadly, it has to be said that not all our partners share the same concern about the treatment of our animals.
  In general, I shall confine my remarks to equines. I shall not cloud the issue by referring to other animals. Already a great deal has been said about minimum values. But surely the bottom line is that people in this country do not want to allow our horses and ponies to be exported for slaughter. The minimum value regulations were never intended as anything more than a means to that end.
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  I wish to comment on one word only in the Question before us and that is "export". It is worth reminding noble Lords that after 1992 there will be no export trade because we shall all be in the same market. We have always thought of ourselves as great exporters of horses and ponies for breeding and racing, but the word "export" will no longer exist.
  So, where do we stand? We are a country with some 50,000 horses and more than 100,000 people connected with horses, many of whom are dependent on horses for their livelihoods. Those people will see horses transported by greedy and uncaring entrepreneurs and continental butchers. They know there is financial gain in the export of live horses to the Continent where they can be slaughtered for human consumption on demand. Profit can be made from using hides, offal and horn to manufacture other items such as glue and fertilisers. We would consider such practices unacceptable in this country. They are carried out purely for profit and greed.
  The draft EC regulations tell us that frontier checks will take place only at external frontiers of the Community, with a new system of control added to replace the internal frontier checks. The draft regulations provide for staging posts and veterinary inspections. It is all very fine for the legislators at Brussels to say this and that will happen, but it is very easy to see real loopholes. I shall try briefly to draw attention to some of them.
  The EC regulations say that an animal, irrespective of type and breed, shall not be left for more than 24 hours without being watered or fed. Our present United Kingdom regulations provide for food and water every 12 hours, and it is well known that different types of animal suffer from stress to different degrees, as so aptly described by the noble Baroness in her excellent speech.
  Some of us may have seen the recent QED television documentary on flying horses, which showed the airlift of horses from this country to Australia by the long route through Canada. One could not but be impressed by the expert handling of the horses and the precautions taken by the veterinary surgeon on board, but one had little difficulty in realising the stress on those horses, in particular the young horse that tried to escape in flight somewhere over the North Pole. It had all become too much for him, and he tried to get out. There was also the bureaucratic delay in not allowing the relief crew on board, and the delay in landing at Sydney—all the sort of things that happen on the ground.
  One has only to reflect on the additional suffering of the horses in question if those animals had been couped up in large trucks without partitions, trundled across Europe at high speed destined for a slaughterhouse in France or Italy, some journeys lasting nearly two days, or probably much longer with delays caused by strikes, the weather and transport breakdowns.
  I question the effectiveness of staging posts. One wonders how hey are to be co-ordinated to stop the spread of disease. I believe that there is a very real

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  threat of disease resulting from the transportation and staging of horses, and most farm animals. One wonders whether competition, demonstration and breeding animals will have to use those staging posts, and under what conditions.
  Animal transport is an extremely expensive form of transport. The EC regulations will provide that such vehicles are marked with a symbol indicating the presence of live animals, but will they provide the appropriate type of transport for the particular type of animal being carried, and ensure that the accepted stocking densities as laid down in the EC regulations are not exceeded?
  Theft of horses and ponies is a regular occurrence, and often one sees in agricultural markets throughout the country old and tired horses being sold when their owners either have no further use for them or are unable to afford to keep them. I recently bought a horse out of a knacker's yard in Liverpool, and he is a fine animal. Increasingly the market is beginning to appreciate that there are more horses available for slaughter. These animals go for slaughter together with those specifically bred for the slaughter trade.
  Freeze-branding has done a great deal to reduce the theft of animals, but unfortunately we have too many horses in this country that are neither freeze-branded nor have papers. Many of the breed societies, in particular the Thoroughbred Breed Society, have excellent registration systems, but the time has arrived when all horses need to be registered nationally on a central system so that every horse and pony will have an internationally recognised set of papers. It is to be hoped that this will prevent the illegal movement and sale of horses. I am led to believe that the Government would welcome such a scheme provided that it is self-financing. I also understand that a great deal of work and money has already been put into computer hardware and software for such a scheme, but there is a reluctance to proceed further on the grounds of cost. That is understandable, but I would urge the Government to show leadership in helping the various societies come together to get a centralised registration certificate under way. I believe that that is an essential link in the welfare of our horse population for the future and I hope that the Government will respond to that point.
  Frankly, I do not have much confidence in the new Community regulations. We know from such organisations as the RSPCA and the International League for the Protection of Horses and their inspectors in Europe that the existing regulations are frequently flouted. With the removal of frontier and border checks after 1993 abuses will be easier and detection much more difficult. What value are the regulations without proper policing and enforcement to ensure their effectiveness?
  I believe that we should continue to press our EC partners for horses for slaughter to be slaughtered in the country of origin and only sent to other countries either frozen or chilled. It is essential that there are proper safeguards. That will also save a great deal of trouble, money and policing of the regulations. We
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  also need realistically to safeguard the welfare of our animals while they are being transported, as the EC draft regulation sets out to do. We need to influence our EC partners regarding maximum journey times, the effectiveness of staging posts, stocking densities and an approval system for vehicles for the transport of livestock.
  The loss of protection for our horses, which has been so effective in recent years, would be a retrograde step. In particular, as drafted in the EC regulations the rules governing travel times and the period between watering and feeding are clearly unsatisfactory. There remain doubts about whether there will be effective prevention of the free movement of stolen horses and effective policing of the welfare of horses in transport for slaughter under the proposed EC regulations.
  The threat of importation of disease to Community-based horses resulting from the transport of horses for slaughter between EC countries and from countries outside the EC is very real. It could affect not only the well-being of horses at risk but also the very livelihood of all those associated with the valuable and important horse-based industry.
  I very much hope that some of our partners within the EC, especially the Germans and the Irish, will show willing in trying to help us find a humane solution to this emotive issue against a background of growing concern.
  11.2 p.m.
  Lord Swansea: My Lords, it is late and I shall try to be brief.
  First, I must congratulate the noble Baroness, Lady Wharton, on her excellent maiden speech. As earlier this evening she was nearly frustrated and denied the opportunity to give it, she must be feeling very relieved that it is now over. We all look forward to hearing her speak again.
  I fully support what the noble Lord, Lord Houghton, has said. For generations we have regarded ourselves as a caring nation and have led the way in promoting animal welfare. Some of your Lordships may have seen a print dating from the beginning of the last century which shows someone who is obviously a gentleman leading with a straight left and knocking down a carter who has been ill-treating and over-loading his horse. It reflects the tradition that we like to think that we have in this country. For hundreds of years the horse has had a very special place in our affections. It is a noble animal which was described by Kipling as one of man's first friends.
  Some years ago I bred Welsh mountain ponies on a small scale. I remember how much I was impressed by them as a breed. They are very affectionate and intelligent and have a temperament which is ideally suited to a child's first pony. When the mares foaled one hoped that the foal would be a filly. If it was a colt and, as generally happened, not worth breeding from, it was gelded and frequently it was sold. I have often been saddened by the sight of unwanted foals at sales being taken off to an unknown destination. As my

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  noble friend Lord Kimball said, there may be some Welsh farmers who make a business out of breeding ponies for sale for meat.
  There was evidence that many of those foals were going overseas for slaughter so the breed society imposed a minimum value rule to reduce the trade. That rule, or something very like it, was later incorporated in the Animal Health Act 1981.
  Much of the public objections to the slaughter of horses arises from sentiment. Many people just cannot bear the thought of dear old Pickles being turned into dog meat, still less the thought that some people would have such depraved tastes that they actually liked horse meat. Yet the fact remains that there are such people. The objectors can console themselves with the reflection that there is no accounting for the tastes of foreigners. We must acknowledge the tastes of other people much as we may feel they are repugnant to us. The main point at issue is to avoid unnecessary suffering to animals being exported.
  There is a body called Compassion in World Farming which has been diligently pursuing the question of cruelty to farm animals, and in this context farm animals include horses. It has compiled horrifying accounts of the conditions under which horses have to travel on their way to abattoirs abroad. It has been collecting signatures to a petition which has now reached the splendid total of 960,000, and it hopes before long to make it a million. Some of your Lordships may have seen these accounts. For those of us who still have any hair, those accounts may well make it stand on end. They paint a picture of animals having to endure hours of crowded travelling without room to move, often falling, being trampled under foot and having legs broken. In hot weather they have to spend hours without food and water, and many arrive at their journey's end barely able to stand. Some die on the way: they are the lucky ones.
  What can be done to eliminate suffering? Assuming it is necessary in the first place for this trade to continue, the most desirable course would be to slaughter the animals in this country under controlled conditions in our abattoirs and transport the carcases oversees. Surely, the sheer economics of this method should be enough, instead of transporting frightened and crowded animals on the hoof. Although transport by refrigerated ship would at first sight probably look more expensive, such a ship would be able to carry more carcases and the final cost would be much the same.
  When my noble friend comes to reply to the debate, I hope she will be able to assure your Lordships that the Government are alive to the deeply-felt opinions which have been expressed. We must all be grateful to the noble Lord, Lord Houghton of Sowerby, for his persistence in bringing this matter to your Lordships' attention. If, as some of us fear, the Government do not intend to take any action, we no longer have the right to call ourselves a nation of animal lovers.
  11.8 p.m.
  Lord Dunleath: My Lords, I join in expressing thanks to the noble Lord, Lord Houghton, for having raised this important and urgent topic. Of one thing
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  there is no doubt. Every noble Lady and noble Lord who has spoken is very much better informed about the subject than I am. It was a great pleasure to hear the noble Baroness, Lady Wharton, make so valuable a contribution. We look forward to hearing her further contributions in this place so as appropriately to raise the standard of debate upon whatever topic we may be discussing.
  The noble Lord's motion covers not only horses but other farm livestock. It is true to say, I believe, that lengthy journeys by livestock of any sort are not only arduous but in many cases downright cruel. It is repugnant to any right thinking person.
  As the noble Baroness, Lady Masham, said, horses are intelligent and sensitive creatures. I am no expert but I am told that they develop a tremendous sense of trust in their owners. Therefore, distressing though the circumstances of a long journey may be to any form of livestock, it is more particularly distressing to horses which are so sensitive.
  Quite apart from the mental stress, there is the physical damage that they can sustain. Maybe the noble Lord, Lord Swansea, was referring to an exceptionally horrific video which showed the condition of horses after they had endured a long journey. It showed them being unloaded and the way in which they were treated and slaughtered. I am very glad that I did not see the video. Apparently it was shown to a group of journalists. Although journalists, by the nature of the profession that they pursue, are hardened to unpleasant things and have to assimilate distasteful sights, quite a number of them had to leave the room during the showing. It was not just that they did not care to look at it. The scenes were so horrible that they had to go out and vomit. They were physically sick. That was the extent of it. Most of us are fortunate enough not to have had to endure anything so physically sickening.
  Therefore, contrary to some of the advice that I have received, I continue to believe that it is essential to exert every pressure to ensure that British minimum values are maintained when we enter the single European market next year. I am told that this is unacceptable to the European Parliament. But the European Parliament should be persuaded to change its mind. So far as I can see that is the only way that a proper safeguard can be provided.
  The fallback position is that each member state in the European Community should be entitled and authorised to designate the place of slaughter for its own equines. That would certainly be of help. But how are we to guard against people who export horses or ponies under the guise of sending them away to be ridden or for breeding purposes when in fact they go for slaughter? I cannot see any better means than the minimum values measure that in past years has prevented so much abuse.
  All livestock, whether horses or other animals, should only have to travel the minimum distance from the place where they have been reared or kept to the point of slaughter. I agree that eight hours is probably the maximum period that ought to be enforced. I tend

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  to agree that both the drivers and the vehicles which convey the animals should be certified as being fit for the purpose. Personnel and drivers should be competent and certified as being trained to look after the animals.
  I am not sure of the position in Great Britain. If I correctly understood the noble Lord, Lord Kimball, he said that there was no particular problem so far as concerned knackers. I hope that is right. Unfortunately, it is not the case where I come from in Northern Ireland. The certified renderers will not accept an injured animal as a result of the scare of BSE. Farmers and breeders are up against a real problem.
  While the means of disposal of fallen animals is a major problem, advertisements continue to appear in the press offering roughly £50 per animal. That compares with about £150 which one must pay to have a fallen animal disposed of in an authorised dump. From the point of view of the farmer, it is obviously more attractive to receive £50 and to have the animal taken away than to have to pay £150 to get rid of it. I am sure that for the most part horse owners would be more sensitive. But the problem exists.
  What happens to the fallen animals which are sold to those who advertise for them in the press? I am sorry to say that I suspect they find their way through illicit means to the Continent or elsewhere and are transported live. On the Continent there is a premium on horse meat which is labelled as being home killed. It is terrifying to think of an injured animal, perhaps with a broken leg, being transported live to the Continent. I understand that even in this country there are shady means of introducing unfit meat into the butcher's trade. "Super glue" is an expression that has been used to describe portions of meat which have been stuck together with blood plasma. It is not at all pleasant.
  Not only do we in Northern Ireland have the problem that the renderers will not take fallen animals. There is also the additional distance that must be travelled by live animals being exported. They must make either two sea journeys or a longer sea and road journey. All the arguments put forward by noble Lords about exporting animals from Great Britain apply even more strongly to those exported from the other side of the Irish channel.
  The Government should rigorously investigate whether there exist the illicit means of exporting animals I have suggested. They should bring maximum pressure to bear on the European Council of Agricultural Ministers to agree safeguards—the minimum values being the most watertight —so that past and present cruelties can never be repeated.
  11.19 p.m.
  Lord Mackie of Benshie: My Lords, I too congratulate the noble Baroness, Lady Wharton, on her maiden speech, and particularly for her good sense in sitting down inside five minutes. That will endear her to the House and enable her to speak for longer at her next offering which we eagerly await.
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  The Minister must assure the House that with regard to the export of horses, live or dead, the susceptibilities and the long-held traditions of this country will be respected by derogation, or simply by insistence on the part of our Government, to ensure that we do not experience the scenes described by other noble Lords in the debate. I am not familiar with the export of horses; but I know a little about the transport of sheep over long distances.
  I was the Member for Caithness and Sutherland, and I fought and re-fought that seat for a long time. I bought sheep and lambs at the sales in Lairg and in Caithness. Indeed on one occasion I bought some sheep from the noble Lord, Lord Kimball. I am happy to inform him that they did very well. However, it was well over 200 miles from Caithness to my farm in Angus. Initially I had some unfortunate experiences.
  The sheep were collected from all over Sutherland —distances of 50 to 100 miles—in the morning or the day before and penned-up in Lairg. They were sold the next day and distributed all over Scotland and even down to England. They were under considerable stress in a double journey to the mart, being driven through the sale ring and back to their pens; the buyer—in my case myself—then had to find a contractor to transport them a further 200 miles.
  My experience was that it was not the length of the journey that was the problem; it was the capacity of the contractor. If he was a good man and understood how to load the sheep; how to pack them in not too loosely and not too tightly; and ensured that there was adequate ventilation—and some carriers had roofs which allowed ventilation in hot weather and cover in bad weather—he could deliver my sheep to my farm in good order sometimes within and sometimes a little beyond 12 hours. It depended on the capacity of the float, the skill of the driver and his desire to please the customer.
  The period suggested in the proposed regulations for Europe is 24 hours. There is no question but that that is too long. However, if the regulations insist on proper machinery, proper floats and inspectors to keep people up to the mark, then we can accept the NFU recommendations—a period of 12 hours with a derogation from that in special or emergency circumstances. That will be a great improvement on the present proposal and on many of the present appalling circumstances in which sheep are transported.
  We should examine a number of other regulations. Some are a little silly; for example, the putting of ramps onto pick-ups with which a farmer might collect a sick sheep from the field and transport it to the farm. A little commonsense is needed in that situation. But in the main, in regard to the animals with which I am familiar, we should insist that the rules are good as regards the equipment; that the timing, loading and arrival of the animals is subject to the regulations; and that the regulations are adhered to.
  11.25 p.m.
  Lord Gallacher: My Lords, we on this side of the House strongly support my noble friend Lord Houghton of Sowerby in asking Her Majesty's Government this evening about steps being taken to maintain the present restrictions on the export from the United Kingdom of horses for slaughter. We should also like to express our appreciation for the maiden speech by the noble Baroness, Lady Wharton.
  We are especially anxious about the European Community proposals which will abolish British welfare regulations, including the minimum welfare clause in the Animal Health Act. We appreciate that Her Majesty's Government have been seeking to retain present legislation. We see no necessity for the live export of horses intended for slaughter. Can the Minister say whether the Commission's proposals are based on those articles of the Treaty of Rome which were amended by the Single European Act? If so, are Her Majesty's Government satisfied with this legal basis? Does it provide for derogation by a member state on humanitarian grounds? Public opinion in Britain will be outraged if horses are sent live for slaughter in EC member states. The Community's image here will be badly affected especially if the justification for such a policy is the completion of the internal market.
  My noble friend Lord Houghton also asked for a reduction in the long distance and cross-channel export of live farm animals other than horses. I think it is necessary to set the British export trade into perspective. The Meat and Livestock Commission's 23rd annual report records that the value of United Kingdom meat exports in 1989 were £597 million, representing an increase over 1988 of 19 per cent. by value. One in every four tonnes of lamb and one in every six tonnes of beef went for export while 7 per cent. of our pork production also went overseas. In the case of beef and lamb, much of this trade consists of live animals. That is regrettable and we should seek to change it. But buyers at the present time require it because in some cases animals are bought for fattening and in other cases because they prefer their own methods of slaughtering and presentation. These markets are vital for British producers. The Meat and Livestock Commission is active in promoting exhibitions, trade missions and seminars not only in the European Community but in other markets. For the record it can be said that the Meat and Livestock Commission now has marketing offices in Paris, Frankfurt and Milan.
  The conditions under which live exports from Britain go abroad are of much concern as also are the conditions of slaughter in certain countries. Quite rightly, that has been touched on by several speakers this evening. We appreciate that Her Majesty's Government are anxious to ensure that the treatment of sheep and cattle in transit and at point of slaughter is no less favourable than it would be in Britain. Pressure is being applied by Britain for Community legislation in these areas as well as proper enforcement. Can the Minister say what progress has been made concerning the welfare of live sheep and
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  cattle for export? Can the noble Baroness also say whether such live exports after leaving Britain, (where regulations exist and are in force) are handled in transit by those engaged in this trade to the same standard as they are handled in transit at home?
  We quite rightly require that humane conditions are observed throughout the journey regardless of the length of time which that journey may take. For example, are firms in the trade vetted for their suitability to be in it? Are the drivers engaged in the trade trained not merely in driving but in handling animals? Can a disparate group of traders continuously maintain the standards that are required in transit? These aspects of the problem are not much discussed; yet, in our view, they are basic to solving the problems. I finish by asking the Minister to say whether she will consider as a practical step inviting the Meat and Livestock Commission to review the position concerning transport both now and in the post-1992 period.
  11.29 p.m.
  The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, the noble Lord, Lord Houghton, has worked long and tirelessly on behalf of animals, whose cause has certainly been enhanced by having him as their champion. Indeed all speakers in today's interesting debate deserve credit for their concern for animal welfare. The noble Baroness, Lady Wharton, emphasised this concern by choosing this debate for her compassionate maiden speech. I add my congratulations to those of other noble Lords. The proceedings have also reflected the strength of public feeling for animals to be properly protected, in law and also in practice. I shall deal first with the important question of horse exports for slaughter. This subject has touched the hearts of literally thousands, including my own.
  It may be helpful if I place the issue into context. The minimum value controls relating to export of horses from this country are laid down in the Animal Health Act 1981, yet they date back much further; from the last century for horses, while controls on ponies originated in 1969. The arrangements are actually rather complicated since they include export licensing, pre-export rest and veterinary inspection in various circumstances. But essentially the export of ponies and certain types of horse, including donkeys, is prohibited if their value is less than that laid down in the 1981 Act. The agriculture departments require a valuation from an approved valuer before such animals can be exported. The aim has been to make it uneconomic to buy horses and ponies in Britain and export them for slaughter. The system has stood the test of time in fulfilling the desired objective. I honestly think that the noble Lord, Lord Dunleath, has no reason to suppose that an illicit trade is going on. If he has any information and proper evidence on this matter I hope he will send it to me.
  In the summer of 1989 the Commission tabled proposals for a Community regulation on the protection of animals during transport. Since the minimum values system is purely a national

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  arrangement it was inevitable that it would be called into question in the context of the completion of the single market by the end of 1992. I find it extraordinary that there are still many people outside this House who seem unaware of the Government's position. I am not sure why that should be so because we have consistently made our position clear. I must therefore reassure my noble friend Lord Swansea that we do not intend to allow an export trade in horses and ponies for slaughter to resume. I hope that I have made myself clear.
  The noble Lord, Lord Houghton, felt that the Government cared more for exports than welfare. That is not true. All animal transporters should know that we shall take whatever measures are necessary to deal with offenders. Matters are, however, complicat-ed when events occur outside the United Kingdom. That in a way answers a point raised by the noble Lord, Lord Gallacher. Pressure from the public—and from groups such as the International League for the Protection of Horses—on Ministers, Members of Parliament and of the European Parliament and the European Commission has been massive. The Government continue to receive hundreds of letters as well as petitions of varying sizes. The depth of feeling has therefore been abundantly demonstrated. We do not intend to disappoint all those people.
  At this point I should like to pay tribute to the noble Baroness, Lady Masham, and to my noble friend Lord Kimball, who are playing a strong part in the co-ordination of the campaign. And celebrities in the horse world, such as Peter O'Sullevan, the incomparable race commentator, are keeping the issue in the public eye. We are on their side. I mention in passing that I was thrilled when the noble Baroness, Lady Masham, named her beautiful pony after me. I have to tell her that I cannot claim to be a stallion, but I was once a mayor.
  I must tell the noble Lord, Lord Gallacher, that, despite all the activity I have described, there has been little progress to report. Our case must be made during negotiations on the EC proposals on animal welfare during transport. There has, however, been only one Brussels meeting so far to discuss these proposals, and that was almost a year ago. So no one should expect an early solution. I am therefore unable to answer the noble Lord's point on the legality.
  The noble Lord, Lord Houghton, asked whether EC controls will be as regulation or as a directive. The proposals are in the form of regulation but final decisions rest with the Council of Ministers. Majority opinion appears to favour a directive and the United Kingdom could go along with this. That would need detailed implementing of legislation in this country but would not provide the latitude to adjust the controls as some people may imagine.
  When discussions resume we shall need allies. I therefore welcome efforts which are being directed towards opinion in other countries. I am playing my own part in ministerial contacts with member states, for the ultimate decisions lie with the Council of Ministers rather than the Commission. Nevertheless,
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  Commissioner MacSharry has said that when it comes to welfare all animals, whatever their value, must be given the necessary protection. We agree with those sentiments, but experience has shown that relatively low value equines, such as old working horses and moorland ponies, may not always be treated as carefully as more valuable animals.
  The noble Viscount, Lord Allenby, referred to the recent QED programme on BBC Television. I also saw the broadcast. Both he and I are aware of the lengths to which people will go to ensure that valuable horses reach a distant destination in good condition. Yet in that case, as the noble Viscount said—where racehorses were being flown to Australia—there were problems, despite the best laid plans. Not nearly so much care and attention will be lavished on the horse bound for the meat man.
  I agree with the noble Baroness on the question of enforcement, or lack of it, in other countries. Observance of the rules will be absolutely vital to their success. That is why we support the proposal for a Community inspectorate which can mount on-the-spot inspections and keep national authorities up to the mark. We also support the principle of journey limits for slaughter animals but this must be linked to their feeding and watering needs, rather than a catch-all eight-hour limit. Both the noble Lord, Lord Dunleath, and the noble Baroness mentioned that point in their speeches.
  My noble friend Lord Kimball asked whether there should be more abattoirs for the slaughter of horses. Any licensed abattoir wishing to slaughter horses is able to do so on application to the appropriate enforcement authority. Provided that the specific requirements in legislation regarding horse slaughter are met, it is for individual abattoir operators to make a commercial decision about whether to slaughter horses. The small number of premises approved for the slaughter of horses would seem to indicate that many abattoir operators do not consider such slaughter to be commercially viable.
  My noble friend also mentioned the fact that there would not be a problem with the performance horse in the future because he hoped that, by the end of 1992, they would be registered. I very much agree with him about the importance of registration of these horses. I actually have an important meeting with concerned parties tomorrow afternoon on that matter.
  I have carefully avoided mention of our negotiating tactics and the precise methods of controlling trade which may be discussed in the Community. It is certainly difficult to envisage all other member states agreeing to a Community-wide system of minimum values—and it is of course the basic objective of the new regulation to bring in common standards which are uniformly enforced throughout the Community. Where special considerations apply to one or two member states however—such as the sea journey for our exports, and those of Ireland, to the Continent —it is only right that these should be recognised. At the same time we must not overlook the need for sensible, practical safeguards for all horse transport. For example, the Community measures must

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  acknowledge the special needs of horses for frequent access to water in particular. We also believe that the proposals are incorrect in saying that horses in all cases should be allowed to lie down in their horse boxes or other means of transport. In their case short tethers should be preferred.
  The debate has covered the long distance transport of all farm animals and especially the export trade. Our starting point here is rather different from that for horses. We permit the export of farm livestock for further fattening or slaughter but only after each animal has been rested, fed, watered and inspected for fitness to travel at one of the approved export lairages near the ports. Their loading is also officially supervised. To have introduced a general unilateral ban of food animal exports would undoubtedly have led to the United Kingdom Government appearing before the European Court. That is not our way.
  I was most interested in the remarks of my noble friend Lord Soulsby arising from his long experience and expertise. Farm livestock can be, and is, transported satisfactorily over long distances provided that proper welfare safeguards are followed. I am thinking here primarily, but not solely, about meeting the animals' feeding and watering needs. Those vary of course depending upon the type and category of animal and can be affected by factors such as temperature and ventilation. The Commission's proposals envisage that there should be different maximum intervals for resting, feeding and watering for different species and that those periods should become journey limits for slaughter animals. The Government agree with that approach rather than the introduction of a blanket limit for all animals destined for slaughter; but whatever the mandatory limitation, the arrangements must make practical sense; for example, in relation to animals destined for fattening or breeding. They must also be enforceable.
  In that connection we are encouraged by the proposal for a Community inspectorate to help ensure uniform application of all the rules and we shall encourage the Commission in that area. We do not want the authorities in other Community countries merely to pay lip service to the controls. Those must be observed by all.
  My noble friend Lord Soulsby mentioned the BVA recommendations. It has submitted its proposals to
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  the FAWC. Its contribution will be valuable in the veterinary context. I understand that on this occasion it may be re-evaluating some aspects of its advice.
  The Commission's transport proposals envisage establishing special rules, not just for resting, feeding and watering animals during journeys, but also for staging points, stocking densities and vehicle design and approval. The Government look forward to being guided in those areas by advice from the Farm Animal Welfare Council. The rules themselves will be drafted after the Commission has consulted its appointed experts. We shall therefore decide our detailed positions nearer the time; but we intend to make it clear that a maximum feeding and watering interval is just that. It must not be regarded as the norm, especially during hot, humid weather.
  I very much agree with the remarks of the noble Lord, Lord Mackie of Benshie, especially as we are not entirely satisfied that a simple set of stocking density figures should apply in all circumstances. We want to avoid the problems of overcrowding on livestock lorries. At the same time, account must be taken of variables such as the age and condition of the animals, expected temperatures and humidity, the length of the journey and the characteristics of the vehicle, including ventilation.
  I should like to finish by emphasising the Government's commitment to establishing high welfare standards throughout the Community. This remains a major priority for my right honourable friend the Minister of Agriculture, Fisheries and Food. He announced an initiative last February to bring about tighter controls in the Community on many issues of welfare concern.
  The noble Baroness, Lady Masham, said that I was not one to be overridden and suggested that I should go to see Commissioner MacSharry. I can assure her that when these matters come to be discussed in the Council of Ministers, the British Government's view will be put by my right honourable friend the Minister. He is not one to be overridden either.

  Killingholme Generating Stations (Ancillary Powers) Bill [H.L.]
  Read a first time, passed through all its remaining stages pro forma, and sent to the Commons.
  House adjourned at fifteen minutes before midnight.